Alcala v. Martel, 2:09-cv-3407 FCD JFM (PC)
| Decision Date | 05 July 2011 |
| Docket Number | No. 2:09-cv-3407 FCD JFM (PC),2:09-cv-3407 FCD JFM (PC) |
| Parties | JOSEPH G. ALCALA, Plaintiff, v. MIKE MARTEL, Warden, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
JOSEPH G. ALCALA, Plaintiff,
v.
MIKE MARTEL, Warden, et al., Defendants.
No. 2:09-cv-3407 FCD JFM (PC)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
DATED: July 5, 2011.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendants' motion to dismiss. Plaintiff opposes the motion. Also before the court is defendants' motion to modify the March 16, 2011 scheduling order.
This action is proceeding on plaintiff's June 22, 2010 second amended complaint ("SAC"). In this court's October 27, 2010 screening order, the SAC was found to assert an Eighth Amendment claim for deliberate indifference to medical needs against defendants Dr. Naseer, Nurse Palomino and Correctional Officer Carillo.1 At all times relevant to this action, plaintiff was housed at Mule Creek State Prison ("MCSP") in Ione, California.
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Plaintiff alleges that on or about May 2008, he began to feel sick and nauseous, and later discovered an egg-sized lump on the left side of his abdomen. SAC at 7. Plaintiff immediately submitted a medical request form to see Dr. Naseer. Id On May 19, 2008, plaintiff was seen by Dr. Naseer and Nurse Palomino, both of whom felt the lump on plaintiff's abdomen. Id. Plaintiff was placed on an unidentified waiting list and scheduled for a CAT scan. Id.
Following this visit and prior to the CAT scan, plaintiff felt a second lump on the right side of his abdomen and began to suffer from severe bloating, nausea, constipation, loss of appetite, loss of weight and extreme pain and discomfort. SAC at 7. Plaintiff submitted multiple medical request forms to see Dr. Naseer again, but was only able to see Nurse Palomino who, on June 12, 2008, gave plaintiff Tylenol for pain management. Id. at 7-8.
On June 13, 2008, plaintiff went "man-down" in his cell. SAC at 8. Plaintiff was immediately taken to the prison clinic where he was seen by Dr. Hawkins, who, upon examination, ordered plaintiff transferred to San Joaquin General Hospital for further medical care and treatment. Id. After receiving several x-rays and a CAT scan at San Joaquin General Hospital, plaintiff was returned to MCSP on June 15, 2008. Id. On June 17, 2008, plaintiff was summoned to the prison clinic and seen by Nurse Palomino, who placed plaintiff an another unidentified waiting list and scheduled him for a biopsy. Id. Nurse Palomino again gave plaintiff Tylenol for pain management. Id.
Despite repeated pleas for assistance with his array of symptoms and pain, plaintiff claims that medical staff, including Nurse Palomino, informed plaintiff that they could do nothing for him and suggested he fill out additional medical request forms. SAC at 9.
On June 30, 2008, plaintiff again went "man-down" in his cell and a "code one" medical emergency was called. SAC at 9. Carillo, the correctional officer on duty, arrived at plaintiff's cell and stated "Let me see, what's wrong with you?," "There's nothing wrong with you," "Come on," "Get up," and "I know you're only faking." Id. When medical staff arrived at plaintiff's cell, Carillo insisted there was nothing wrong with plaintiff. Id. Although the medical
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staff brought a stretcher to carry plaintiff from his cell, Carillo prevented them from doing so. Id. Thus, plaintiff was forced to walk to the prison clinic, where he sat for approximately 2-3 hours before being sent to the prison's main infirmary. Id.
At the infirmary, plaintiff was seen by a doctor who gave plaintiff two shots of morphine and made arrangements for plaintiff's immediate transfer to San Joaquin General Hospital. SAC at 8-9. Plaintiff remained in the hospital from June 30, 2008 to July 2, 2008. Id. at 10. While there and after a series of medical tests, plaintiff was informed that he had cancer. Id.
Upon his return to MCSP and due to a lack of available beds at the prison's infirmary, plaintiff was placed in Administrative Segregation from July 3, 2008 to July 11, 2008. SAC at 10-11. On July 11, 2008, plaintiff went "man-down" in his cell for a third time and was transported to the San Joaquin General Hospital. Id. at 11. Plaintiff remained in the hospital for approximately ten days where he was diagnosed with stage 4 lymphoma cancer. Id. Plaintiff was told that, without further emergency medical care, the cancer would have proven fatal. Id. Plaintiff received his first chemotherapy treatment on July 19, 2008 at the San Joaquin General Hospital. Id.
Plaintiff initiated this action on December 8, 2009 as a petition for writ of habeas corpus. See Doc. No. 1. Plaintiff's petition was comprised of two claims: the instant claim and a challenge to a disciplinary conviction and subsequent loss of good-time credits. Because the first claim concerned his conditions of confinement and the second claim concerned the fact or duration of his confinement, the court converted the petition to a civil rights action, and plaintiff was ordered to bring his challenge to the disciplinary conviction in a separate action pursuant to 28 U.S.C. § 2254. See Doc. No. 10; Related Case 2:10-cv-3448-JFM.
On February 28, 2011, defendants filed an answer. On March 16, 2011, a discovery and scheduling order issued. On April 13, 2011, defendants filed a motion to dismiss.
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On April 25, 2011, plaintiff filed an opposition. On April 28, 2011, defendants filed a reply. On May 10, 2011, plaintiff filed a sur-reply.
On June 2, 2011, defendants filed a motion to modify the scheduling order. On June 17, 2011, plaintiff filed a statement of non-opposition to this motion.
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
On November 30, 2010, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir.2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
1. Defendants' Motion to Dismiss
In their motion to dismiss, defendants seek dismissal of plaintiff's SAC on the ground that plaintiff did not proceed to the Director's Level of Review with his administrative grievance and, thus, did not exhaust his administrative remedies.
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"Section 1997e(a) of Title 42 of the United States Code provides:
No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001)." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. Dec. 5, 2002). Exhaustion must precede the filing of the complaint; compliance with the statute is not achieved by satisfying the exhaustion requirement during the course of an action. Id. at 1200. Claims dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. Id.
In Jones v. Bock, 549 U.S. 199, 218 (2007), the United States Supreme Court held "that a prison's own grievance process, not [42 U.S.C. § 1997e(a)], determines how detailed a grievance must be to satisfy" the statutory requirement. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In Griffin, the Ninth Circuit held that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Id. at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). "The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id.
California's Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within fifteen working days of "the event or decision being appealed," the inmate must ordinarily file an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal. Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c). [Footnote...
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