Irvin v. Zamora

• Decision Date: 31 August 2001
• Docket Number: No. 99CV2350(NLS).,99CV2350(NLS).
• Parties: Steven Derrick IRVIN, Plaintiff, v. D. ZAMORA, et al., Defendants.
• Court: U.S. District Court — Southern District of California

Page 1125

161 F.Supp.2d 1125

Steven Derrick IRVIN, Plaintiff, v. D. ZAMORA, et al., Defendants.

No. 99CV2350(NLS).

United States District Court, S.D. California.

August 31, 2001.

Steven Derrick Irvin, pro se.

Randall A. Pinal, Deputy Atty. Gen., Office of the Attorney General of the State of California, San Diego, CA, for Defendants.

ORDER CONSTRUING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS A MOTION TO DISMISS AND ORDER DENYING MOTION TO DISMISS [Doc. No. 50]

STORMES, United States Magistrate Judge.

Plaintiff Steven Derrick Irvin, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint pursuant to Title 42, United States Code, section 1983, against officials at Calipatria State Prison ("Calipatria"). Before the Court is defendants' Motion for Summary Judgment, as well as plaintiff's Opposition thereto, and defendants' Reply. In their Motion, defendants seek an order granting summary judgment in favor of defendants Pyle, Alsip, and Fox on the ground that plaintiff failed to exhaust administrative remedies as to his claims against these defendants. For the reasons outlined below, defendants' Motion for Summary Judgment will be construed as a nonenumerated Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12 and will be DENIED.¹

Procedural History

On February 25, 2000, defendants filed a Motion to Dismiss seeking dismissal on a number of grounds, one of which was that all causes of action in plaintiff's original Complaint should be dismissed for failure to exhaust administrative remedies. At that time, controlling law in the Ninth Circuit indicated that "[e]xhaustion of administrative remedies under section 1997e(a) is not required if a prisoner's section 1983 claim seeks only money damages and if the correctional facility's administrative grievance procedure does not allow for such an award." Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir.1999), cert. denied, 528 U.S. 1074, 120 S.Ct. 787, 145 L.Ed.2d 664 (2000). Based on Rumbles, the Court found that it was not necessary for plaintiff to exhaust his administrative remedies because he was only seeking monetary damages by way of his Complaint. As a result, this Court denied defendants' Motion to Dismiss to the extent it sought dismissal of the action for failure to exhaust administrative remedies. [Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's Complaint, filed Oct. 4, 2000, at 6-7.]

By way of their Motion for Summary Judgment, defendants are asking the Court to revisit the exhaustion issue, but only as to defendants Pyle, Alsip, and Fox, based on retroactive application of the Supreme Court's recent decision in Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001). In Booth, the Supreme Court held that the exhaustion requirement is mandatory and must be satisfied regardless of the relief offered through the administrative process. Booth, 121 S.Ct. at 1825. The Supreme Court's decision in Booth overrules Rumbles and is applicable to this case. Harper v. Virginia Department of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (holding that a rule of federal law that is applied by the Supreme Court "is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the Supreme Court's] announcement of the rule").

For reasons that are not relevant to the instant Motion, defendants' prior Motion to Dismiss was also granted on a number of grounds, but plaintiff was granted leave to amend his Complaint. [Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's Complaint, filed Oct. 4, 2000, at 19.] Thereafter, plaintiff submitted a Motion indicating he did not intend to file an amended complaint and requested that he be permitted to proceed with the claims remaining in his original Complaint following the Court's Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's Complaint filed October 4, 2000. By Order filed November 16, 2000, this Court ordered defendants to answer or otherwise respond to the remaining claims in plaintiff's Complaint. Defendants then filed an Answer on November 27, 2000.

Background

Originally, plaintiff's Complaint contained four causes of action alleging: (1) deliberate indifference to serious medical needs against defendants Blackman, Klipa, and Zamora; (2) deliberate indifference to health and safety against defendants Pyle and Alsip; (3) deliberate indifference/failure to supervise and train against defendants Zamora and Fox; and (4) conspiracy to deny access to the courts against defendants Kitterman, Zamora, Fox, Pyle, and Alsip. As a result of the Court's Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's Complaint filed October 4, 2000, the following allegations remain to be determined: (1) in the first cause of action, deliberate indifference to plaintiff's serious medical needs against defendants Blackman and Klipa (defendant Zamora was dismissed from this cause of action); (2) in the second cause of action, deliberate indifference to plaintiff's health and safety against defendants Pyle and Alsip; and (3) in the third cause of action, failure to supervise and train against defendant Fox (defendant Zamora was dismissed from this cause of action). The fourth cause of action for conspiracy to deny plaintiff access to the courts was dismissed entirely as to all defendants named therein.

Plaintiff's Complaint alleges that on November 6, 1998 defendants Pyle and Alsip failed to take reasonable safety precautions while spraying pesticides "in an inhabited prison housing unit," thereby exposing him and others to "harmful" and "toxic" substances. [Compl., at 13.] According to the Complaint, defendants Pyle and Alsip, acting under the direction of defendant Fox, sprayed a pesticide known as Killmaster II and allowed the pesticide to enter the facility's "air conditioning intake." [Compl., at 8.] Plaintiff further alleges that defendant Fox knew that his "staff was ill trained in the handling of toxic pesticides." [Compl., at 14-15.]

According to plaintiff, he was standing in his cell on November 6, 1998 when he was showered with a liquid substance coming out of the air vent. Plaintiff further alleges that the pesticide got into his eyes and mouth, causing him to vomit and to have difficulty breathing. Plaintiff called for help. Other inmates were calling for help at the same time. About twenty minutes later, defendant Lopez arrived and ordered defendant Olive to open plaintiff's cell. Plaintiff was then given a pass to go to the medical clinic. When plaintiff arrived at the window for the medical clinic, he alleges that defendant Blackman, a nurse, and defendant Klipa, a medical technical assistant, were sitting at their desks approximately twenty feet away. Plaintiff advised defendants Blackman and Klipa that he had vomited, was having a problem breathing and seeing, and that his skin was burning and irritated. Without moving from their desks, defendants Blackman and Klipa allegedly told plaintiff he looked fine, that it was not their responsibility to see plaintiff, and that they would issue a rules violation report if plaintiff did not move away from the window. According to plaintiff, other prisoners were being brought to the clinic for treatment, and defendants Blackman and Klipa also turned them away without any medical treatment.

Thereafter, on November 7, 9, and 13, plaintiff claims he filed three sick call forms requesting to be examined by a physician for his illnesses, which he believes were caused by pesticide exposure. Plaintiff believes defendant Blackman, who told plaintiff his sick call forms had been misplaced, deliberately failed to put plaintiff's name on the list of inmates who were to be examined by a physician. Plaintiff then filed a number of complaints about his lack of medical treatment. According to plaintiff, he was not examined by a physician until several months later on March 5, 1999. At that time, the physician found that plaintiff's respiratory system was normal. A neurological examination also performed at that time was normal. Appropriate x-ray and laboratory tests were ordered.

Through the inmate appeal process, plaintiff was able to obtain a copy of the Material Safety Data Sheet ("MSDA") for the pesticide, Killmaster II, a copy of which is attached to plaintiff's Complaint. Plaintiff alleges that as a result of pesticide exposure he continues to suffer from respiratory problems, severe migraine headaches, and a skin rash.

Discussion

I. Dismissal vs. Summary Judgment.

Plaintiff argues that defendants' Motion for Summary Judgment should be denied because the issue of exhaustion is properly raised in a motion to dismiss and not in a summary judgment motion. Defendants contend that pursuant to Ninth Circuit precedent their Motion and the exhaustion issue is properly before the Court.

The general rule in the Ninth Circuit is that "failure to exhaust nonjudicial remedies is a matter in abatement, not going to the merits of the claim, and as such is not properly raised in a motion for summary judgment." Ritza v. Internat'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir.1988). See also Stauffer Chem. Co. v. FDA, 670 F.2d 106, 108 (9th Cir.1982); Studio Elec. Tech. Local 728 v. Internat'l Photographers, 598 F.2d 551, 552 n. 2 (9th Cir. 1979). The Ninth Circuit in Ritza also indicated that when a defendant files a summary judgment motion that raises the issue of exhaustion of nonjudicial remedies, the motion should be treated as a "nonenumerated" motion to dismiss under Federal Rule of Civil Procedure 12(b). Ritza, 837 F.2d at 368-369. Accordingly, this Court will construe defendants' summary judgment motion as a nonenumerated motion under ...