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July 11, 2012
ANA TAVAREZ, PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Plaintiff Ana Tavarez seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for benefits under the Social Security Act (the "Act"). Both parties move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the Commissioner's decision is affirmed; accordingly, the Commissioner's motion is granted and Tavarez's complaint is dismissed.
Tavarez claims that she suffers from a variety of impairments, including lower back problems, hyperthyroid, high cholesterol, frozen right shoulder, and a heart condition.
She first applied for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI) on April 24, 2008, alleging a disability onset date of January 31, 2003. The SSI application was approved because Tavarez became disabled with a back disorder beginning on April 1, 2008. The application for DIB was denied because Tavarez was not disabled through September 30, 2004, her date last insured.*fn1 She did not appeal the denial of DIB. Tavarez filed another application for DIB on October 10, 2008, alleging disability beginning on January 13, 2000. After that application was denied, she requested a hearing before an Administrative Law Judge ("ALJ").
As an initial matter, the ALJ determined that Tavarez was insured through September 30, 2004. To be entitled to DIB, a claimant must establish that she became disabled while she had insured status. See 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1). The ALJ next began to apply the familiar five-step process, and first found that Tavarez had not engaged in substantial gainful activity between January 13, 2000 and September 20, 2004. Second, the ALJ found that "there were no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment." A.R. at 463. Specifically, the ALJ stated that there "is no supporting documentation in the record that even remotely indicates that [Tavarez] was physically incapacitated as of January 13, 2000 the alleged onset date or at any time up to September 30, 2004 the date last insured. All of the medical records support an onset date in 2008 or 2009." A.R. at 468-69. Accordingly, the ALJ found that Tavarez did not have a disability between her alleged onset date and her date last insured. Because the ALJ determined at step two that Tavarez was not disabled, he did not proceed to the remaining three steps.
On September 29, 2009, the ALJ issued his decision concluding that Tavarez was not disabled within the meaning of the Act prior to her date last insured. On April 27, 2011, the Appeals Council denied her request for review. On June 2, 2011, the Appeals Council set aside the April 27 action to consider new evidence submitted by Tavarez; after considering this additional information, the Appeals Council again denied the request for review, rendering the Commissioner's decision to deny benefits final. Tavarez timely sought judicial review.
"In reviewing the final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The claimant bears the burden of proof on the first four steps of the five-step disability inquiry, while the Social Security Administration bears the burden on the last step. See Green-Younger v. Barnhart, 335 F.3d 99, 105 (2d Cir. 2003).
Tavarez challenges the Commissioner's decision on the following grounds: (1) that the 2008 SSI award mandates a finding that Tavarez is also entitled to DIB; (2) that the ALJ failed to develop the record; and (3) that the Appeals Council failed to consider new and material evidence.
A. SSI Award
Tavarez first argues that because the definition of "disability" for the purposes of SSI and DIB is identical, and her 2008 SSI application was approved with an onset date of January 21, 2003, the outcome of her SSI application mandates an approval of the current DIB claim. The Commissioner counters that the approved onset date for the SSI benefits was actually April 1, 2008. The Disability Determination form pertaining to Tavarez's SSI application supports the 2008 onset date. See Decl. of Bryant Wilder, Ex. B. Thus, the challenged ALJ decision, which states that the record supports a 2008 or 2009 onset date, is in fact consistent with the terms of the earlier SSI decision.
Both requiring that a claimant be disabled, DIB and SSI utilize the same definition of "disability" -- that the claimant is unable " to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Although the programs are substantively identical, however, in practice DIB requires that a claimant show that she became disabled during a period when she was insured; SSI has no such requirement. See 42 U.S.C. §§ 1381a, 1382(a).
The DIB and SSI programs provide different types of benefits: "Whereas [DIB] establishes an insurance program available to all contributors, SSI is a need-based program available to claimants whose income and resources fall below a minimum subsistence level."
Pappas v. Bowen, 863 F.2d 227, 228 (2d Cir. 1988). As an insurance program, DIB requires that a claimant have coverage at the time the claimant becomes disabled. See Arnone v. Bowen, 882 F.2d 34, 35 (2d Cir. 1989) ("To be eligible for disability insurance benefits, an applicant must be 'insured for disability insurance benefits.'" (quoting 42 U.S.C. § 423(1)(A))). As a need-based program, SSI does not require contributions in exchange for coverage. See Pappas, 863 F.2d at 228.
Even if Tavarez were correct about the onset date for her SSI benefits, she has not cited any cases in support of her argument that an SSI determination could "mandate" a consistent DIB finding. Accordingly, the SSI determination has no bearing on the validity of the Commissioner's decision for Tavarez's DIB application.
B. Development of the Record
Next, Tavarez argues that the ALJ had an obligation to seek additional medical documentation for the period from January 13, 2000 through September 30, 2004. Specifically, she argues that the ALJ did not ask questions at the hearing about Tavarez's pre-2004 impairments or seek out additional medical documents, and that because of the ALJ's failure, "the record reviewed by the ALJ did not contain any medical records for the period prior to" the date last insured. Pl's Mem. of Law at 20.
It is true that because "Social Security disability determinations are investigatory, or inquisitorial, rather than adversarial," the "duty of the ALJ, unlike that of a judge at trial, is to "investigate and develop the facts and develop the arguments both for and against the granting of benefits." Vincent v. Comm'r of Social Sec., 651 F.3d 299, 205 (2d Cir. 2011) (internal quotation marks omitted). It is also true, however, that the claimant has the initial burden to demonstrate the existence of a disabling condition by "furnish[ing] medical and other evidence that [the Commissioner] can use to reach conclusions about [the claimant's] medical impairment(s)." 20 C.F.R. § 416.912(a); see Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). The claimant also bears the burden, when contending that the ALJ failed to develop the record, to show that the missing evidence was significant and harmful to her claim. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"); Pratts v. Chater, 94 F.3d 34, 37-38 (2d Cir. 1996) (the record upon which the ALJ relied was "significantly compromised" by the failure to develop the record).
Tavarez did not meet her burden of showing that she suffered from severe medical impairments prior to her date last insured. Tavarez did not bring pre-2004 medical evidence to the ALJ's attention and did not provide any information about physicians who treated her during the relevant period. At her hearing, she told the ALJ that she first experienced shoulder pain in 2008 and that she had an MRI of her lower back in 2007; she also attributed her leaving work in 1999 to a decision to care for her young child, not to health problems. She did not mention that she suffered from severe back pain or shoulder pain prior to 2004. She did, however, submit voluminous medical records showing that she began to suffer from these medical conditions around 2008. An ALJ must fill in gaps in the treatment record, but he is not obligated to make a claimant's case for her or guess at what conditions she may suffer from, in the absence of any foundational evidence that demonstrates potential gaps in the record. "[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal quotation marks omitted).
Nor has Tavarez met her burden to show that the ALJ's failure to seek out such evidence compromised her claim. Tavarez refers abstractly to the fact that the ALJ did not ask questions about her pre-2004 treatment, and that the record lacked medical evidence for the relevant period, but does not say what such questions would have revealed, or what missing records the ALJ should have tracked down, if such records even exist. See Gonzalez ex rel. Guzman v. Sec. of U.S. Dep't of Health & Human Serv., 360 Fed. Appx. 240, 245 n.4 (2d Cir. 2010) ("[I]t is, in the first instance, the claimant's burden to provide adequate medical evidence. Moreover, plaintiff here has failed to identify what records are missing and how they would affect [the] case. Accordingly, we do not find any infirmity in the ALJ's development of the record.
C. Appeals Council
Finally, Tavarez contends that the Appeals Council failed to consider new and material evidence. The Appeals Council, in denying Tavarez's request for review, stated that it "considered the reasons [she] disagree[d] with the [ALJ] decision and the additional evidence listed on the enclosed Order of Appeals Council. We found that this information does not provide a basis for changing the [ALJ] decision." A.R. at 2. In particular, the Appeals Council determined that the new evidence related to a time after Tavarez's date last insured, and so did "not affect the decision about whether [she was] disabled at the time [she was] last insured for disability benefits." Id.
"Social Security regulations expressly authorize a claimant to submit new and material evidence to the Appeals Council when requesting review of an ALJ's decision. If the new evidence relates to a period before the ALJ's decision, the Appeals Council shall evaluate the entire record including the new and material evidence submitted. . . [and] then review the case if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record." Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996) (internal citations and quotation marks omitted). New evidence warrants remand when that evidence is "material," meaning that (1) it is "relevant to the claimant's condition during the time period for which benefits were denied," (2) it is "probative," and (3) there is "a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant's application differently." Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (internal quotation marks omitted).
As the Appeals Council noted, the majority of the new evidence Tavarez submitted related to her condition after her 2004 date last insured, and therefore is not relevant to her claim. The Appeals Council decision also shows that it considered evidence from Dr. Donald McNicol, Tavarez's treating internist, dated August 31, 2001 through March 23, 2006. The doctor's notes from McNicol do not contain any objective medical evidence or laboratory tests. Those records contain only one mention of Tavarez suffering from back pain and receiving a prescription for painkillers during the relevant period, in August 2001. This passing, one-time reference does not support Tavarez's claim that she suffered from chronic lower back problems. Thus, there is not a reasonable possibility that these medical records would have influenced the ALJ's decision. Similarly, a 2009 letter from McNicol, opining that Tavarez suffered from chronic back pain "sufficiently severe to render her disabled from" 2000 through 2007, cannot justify remand. A.R. at 338. That opinion is inconsistent with all of the available medical evidence, which overwhelmingly shows that Tavarez did not suffer from a debilitating back condition until around 2008. McNicol's unsupported opinion, without more, would not countermand the ALJ's findings. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("A treating physician's statement that the claimant is disabled cannot itself be determinative.").
Accordingly, the contents of this new evidence would not have influenced the ALJ to decide Tavarez's application differently, and the Appeals Council properly decided that a remand for reconsideration was not necessary.
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is granted, the final decision to deny benefits under the Act is affirmed, and Tavarez's complaint is dismissed.
FREDERIC BLOCK Senior United States District Judge
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Spain, Turkey, Greece and Egypt are all popular places for our summer holidays, but what destinations will we be jetting off to in the future? These resorts would need to be bathed in sun in the summer months and full of history and culture. Here are 3 places that I think could be holiday destinations of the future.
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'Arrival' Review
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Senises, Siomara (owner) – Miami
By Jay Rogers
Published December 10, 2011
Killing Place:
A Woman's Care, Inc.
68 NE 167th St, Ste A
Miami, FL 33162
3500 Fairfax Ln
Davie, FL 33330-4628
A Woman's Care, Inc. was incorporated by Siomara Senises and Maria Peguero on April 30, 1989 in the state of Florida and is currently an active corporation.
Siomara Senises represents A Woman's Care, Inc. as their registered agent.
Maria Peguero is the founder of A Woman's Care II, Inc. and Hialeah Woman's Choice Clinic, Inc.
Siomara Senises was also the administrator of Best Care Woman's Center, an abortion clinic that used three unlicensed people to perform abortions.
Clinic's two owners arrested
Miami Herald Tues, July 19, 2005
By Mary Ellen Klas, Herald Editor
A Miami clinic lost its license and it's owners were arrested in the second case involving the same unlicensed doctor performing abortions.
Jose Rodriguez, 52, and Magaly Gil, 56, both of Miami, were arrested and released on $5,000 bond after detectives concluded that they knew Kieron Nisbet was not licensed to practice medicine in Florida, Nisbet is alleged to have performed abortions in November at their clinic, Best Care Woman's Center, 8380 SW Eighth Street.
Sgt Llevat of Miami-Dade unlicensed practitioner's unit (305-477-1616) says that Gil and Rodriguez were arrested for "aiding & abetting." When asked if administrator Siomara Senises could be charged for the same offense, Sgt Llevat said yes, "it's in the Florida Statutes and Senises used 3 unlicensed people at her clinic also."
Senises was never charged and is still the administrator for three abortion clinics in Florida, these two in Hialeah & another in North Miami, named , "A Woman's Care".
If clinic administrator, Senises was licensed as a Real Estate Broker and she hired an unlicensed abortionist, a cleaning lady, and a University of Miami student to sell Real Estate without a license, would the State of Florida allow Senises to keep her Real Estate brokers license to conduct future sales, and oversee sales people in other Real Estate offices?
The former attorney-unlicensed abortionist-Robelto Osborne was convicted of 4 felony counts of practicing medicine without a license in October of 2005.
The current abortionist-Frantz Bazile, who performed the abortion that resulted in the baby dying in the hialeah clinic, has a prior record for the same type of offense in Illinois.
Summing up the details below it basically states that this MDespicable abortionist, Frantz Bazile, had been noted for attempting to perform an abortion on a 17 Year old girl, but didn't realize how far along she was either. He ripped spongy material (mature placenta) from the baby's body, sutured up the profusely bleeding young mom, and rushed her off to the hospital. As the mom was drugged for pain, the baby, torn apart by the whole experience, hung for life, was delivered alive by cesarean section and later died from this "gross & negligent" quack alley abortion.
Several unlicensed abortionists found in Miami
In stories related to the use of unlicensed doctors performing abortions in Miami (Miami Herald, "Two owners arrested in abortion clinic probe," July 19, 2005 and NBC 6 TV's, "Man Accused Of Performing Abortions Without License," May 5, 2005) it was revealed that Kieron Nisbet has been accused of giving anesthesia without a license to abortion patients at, A GYN Diagnostic Center abortion clinic in Miramar.
During the investigation of the clinic detectives concluded that Nisbet was not licensed to practice medicine in Florida.
Since then, two patients have come forward and claimed that Nisbet performed abortions on them at the Best Care Women Center in Miami.
The patients, who identified Nisbet in a photo line-up, said they received treatment from both Nisbet and also Yaqueline Martinez, who was arrested in March on suspicion of practicing nursing without a license.
"This person spoke to them, conducted a sonogram exam and, in one case, diagnosed a person, telling them how many weeks pregnant they were and then led them to a room where they were introduced to Mr. Nisbet as the doctor who would be performing the procedure," Sgt. Hector Llevat of the Miami-Dade police said.
As if to cover their trail, police said, Nisbet or Martinez forged the signature of a real doctor on the patients' files. Police arrested the clinic owners whom they claimed knew the man was operating without a valid medical license.
Police said they believe Nisbet also illegally performed abortions at a Hialeah abortion clinic, A Women's Care II, during the same time and has fled to Trinidad to escape an arrest warrant they obtained for him.
Nisbet was investigated by the Unlicensed Practitioner Unit (UPU) and is wanted by the Miami-Dade Police Department (MDPD) for practicing medicine without a license at the Best Care Women's Center, in Miami.
The investigation dates back to November 2004. A Miami detective said they have now received solid information that the doctor is hiding out in Trinidad with family. They believe that he is also performing abortions in Trinidad, possibly under a false name.
In 2005, The Florida Department of Health's (DOH) Unlicensed Activity (ULA) Unit announced that their joint investigation with the Miami-Dade Police Department led to the arrest of Jose Rodriguez and Magaly Gil for aiding and abetting the unlicensed practice of medicine.
Rodriguez and Gil own Best Care Women's Center located at 8380 SW 8 th St. in Miami. Both voluntarily relinquished the abortion clinic license for the women's center after allegations surfaced that Rodriguez and Gil allowed unlicensed physicians to perform pregnancy termination procedures at Best Care. The pair were owners of several abortion clinics in the Miami-Dade area.
Kieron Nisbet
Forerunner - Home » Florida's Murder Industry »
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United States District Court, E.D. California
July 3, 2014
ANDRE WELLS, Plaintiff,v.D. KYTE, [1] Defendant.
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that defendant Kyte denied him due process in proceedings related to a rules violation report that resulted in a loss of good time credits. Plaintiff moves to amend his complaint and to stay these proceedings; defendant moves to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and/or for summary judgment for failure to exhaust administrative remedies. For the reasons stated below, plaintiff's motions must be denied and this action must be dismissed.
I. Defendant's Motion to Dismiss and Motion for Summary Judgment
A. Background
On February 7, 2014, defendant moved to dismiss pursuant to Rule 12(b), on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit.[2] ECF No. 16. He also moved to dismiss pursuant to Rule 12(b)(6). Id. Plaintiff opposed the motion and defendant filed a reply. ECF Nos. 19, 21. Thereafter, defendant withdrew the unenumerated 12(b) portion of his motion to dismiss, in light of Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), in which the United States Court of Appeals for the Ninth Circuit held that a motion for summary judgment, and not a motion to dismiss, should be filed where evidence extrinsic to the complaint is presented to demonstrate the failure to exhaust. ECF No. 29.
On May 19, 2014, defendant refiled the exhaustion motion as a motion for summary judgment.[3] ECF No. 33. Plaintiff did not respond to the summary judgment motion. Although Local Rule 230(l) provides that a responding party's failure "to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions" the court will consider plaintiff's arguments presented in his earlier opposition to the previously filed motion to dismiss (ECF No. 19) in resolving the summary judgment motion.[4]
B. Exhaustion under the PLRA
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions [under section 1983 of this title] until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Prison conditions" subject to the exhaustion requirement have been defined broadly as "the effects of actions by government officials on the lives of persons confined in prison...." 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has included in the complaint, but need only provide the level of detail required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (purpose of exhaustion requirement is to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case").
Prisoners who file grievances must use a form provided by the California Department of Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline the action requested. The grievance process, as defined by California regulations, has three levels of review to address an inmate's claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has received a "Director's Level Decision, " or third level review, with respect to his issues or claims. Id. § 3084.1(b).
Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be "available, " there must be the "possibility of some relief...." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
Failure to exhaust is "an affirmative defense the defendant must plead and prove." Jones v. Bock, 549 U.S. 199, 204, 216 (2007). To bear this burden:
a defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case.... With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, "available."
Brown, 422 F.3d at 936-37 (citations omitted).
If under the Rule 56 summary judgment standard, the court concludes that plaintiff has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120, overruled on other grounds by Albino, 747 F.3d 1162.
C. Summary Judgment Standard
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 ("[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.'"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment... is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air, " and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.
D. Discussion
Plaintiff filed the instant action on March 11, 2013. ECF No. 1. Accordingly, the court must determine whether plaintiff exhausted his administrative remedies regarding his due process claim against Kyte prior to that date, and if not, whether plaintiff may be excused from the pre-filing exhaustion requirement. See Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010).
Defendant's evidence shows that plaintiff failed to complete the exhaustion process prior to commencing this action. See ECF No. 33-3 ("Zamora Decl."); ECF No. 33-4 ("Clark Decl."). The evidence shows that plaintiff submitted an administrative grievance (log number CSP-S-12-01355) regarding the claim that plaintiff now asserts against Kyte in this action. Clark Decl., Ex. E. The grievance was granted in part at the Second Level on August 13, 2012. Id. The Second Level response advised plaintiff that he could seek further review at the Third Level. Id. An exhibit to plaintiff's complaint shows that the grievance was received at the Third Level on September 26, 2012. ECF No. 1 at 5. But on October 8, 2012, the grievance was screened out for failure to attach supporting documents. Id. at 6; Zamora Decl. ¶ 6. The grievance was not subsequently accepted for review at the Third Level prior to plaintiff's commencement of this lawsuit. See Zamora Decl. ¶ 5. Thus, defendant has shown that plaintiff filed this action prematurely, before he had exhausted all available administrative remedies. That is, there is no dispute as to any genuine issue of material fact regarding plaintiff's exhaustion of administrative remedies.
To defeat defendant's motion, plaintiff must demonstrate that there is a genuine dispute over a material issue of fact as to whether he actually exhausted available remedies, or as to whether he should be excused from the exhaustion requirement.
Plaintiff concedes in his opposition that grievance number CSP-S-12-01355 concerns the claim giving rise to this lawsuit. ECF No. 19 at 1. He claims he "did everything possible to give CDC the opportunity to make [him] [w]hole, " but that his appeal was "frustrated & impeded." Id. However, he provides no evidence or other facts to refute defendant's evidence that the appeal was rejected at the Third Level for failure to provide supporting documents, or to otherwise demonstrate that he properly re-submitted his appeal to the Third Level with the required documents. Thus, it remains undisputed that administrative remedies remained available to plaintiff prior to his filing of this lawsuit.
Because there is no dispute that plaintiff failed to comply with the exhaustion procedure, and or that his failure in this regard should not be excused, defendant's summary judgment motion must be granted.[5] See McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statue makes exhaustion a precondition to suit."); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (prisoner brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court).
II. Plaintiff's Motion to Amend
Plaintiff moves to amend his complaint to "add a actual injury claim" based on a hernia he "acquired while exercising in the hole." ECF No. 20 at 4. His proposed amendment to the complaint reads as follows: "Gary Swarthout. Actual injury claime [sic]; Hernias from working out in the hole which could stress and lead to a scheduled surgery. Swarthout not correcting mistake." Id., § IV. As discussed below, the requested amendment must be denied as futile.
Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Here, defendant moved to dismiss on February 7, 2014. ECF No. 16. Plaintiff moved to amend his complaint more than 21 days thereafter. See ECF No. 20 (Mot. to Amend, dated March 8, 2014).
Nonetheless, Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). The policy of freely granting leave to amend should be applied with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).
Here, plaintiff's motion to amend is futile, and his proposed amendments fail to state a claim upon which relief could be granted, and could not properly be joined in this action. In its original screening order, the court informed plaintiff of the following:
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009). Rather, a plaintiff must plead that each defendant, through his own individual actions, has violated the Constitution. Id. It is plaintiff's responsibility to allege facts to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
ECF No. 6 at 3.
The court dismissed defendant Swarthout from the original complaint because plaintiff had "named him solely because of his role as Warden, " which "is not a proper basis for liability." Id. Plaintiff's proposed amendment to his complaint does not cure this defect. Likewise, plaintiff's new allegations regarding a "hernia" and "actual injury" fall far short of the requirements, set forth above, for stating a claim under 42 U.S.C. § 1983. They also appear to be completely unrelated to the due process claim against defendant Kite. It does not appear from plaintiff's motion or proposed amendments that any claim regarding a hernia arose out the due process violation alleged against defendant Kite and involves a common question of law or fact. Thus, any claim related to the hernia would not be properly joined in this action.[6] See Fed.R.Civ.P. 20(a)(2).
For these reasons, plaintiff's motion to amend is denied.
III. Plaintiff's Motion to Stay
Plaintiff also moves to stay this case pending a determination as to whether counsel will be appointed for him in a different federal lawsuit. ECF No. 32. A party seeking a stay must make out a clear case of hardship or inequity in being required to go forward. Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). Here, plaintiff makes no such showing. The motion is denied.
IV. Order and Recommendation
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motions to strike the amended complaint and the unauthorized surreply (ECF Nos. 22, 30) are granted.
2. Plaintiff's motion to amend (ECF No. 20) is denied.
3. Plaintiff's motion to stay (ECF No. 32) is denied.
Further, IT IS HEREBY RECOMMENDED that defendant's summary judgment motion (ECF No. 33) be granted, that the Clerk terminate the Rule 12(b)(6) motion to dismiss (ECF No. 16), and that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Description for 1161 Vine Street New Lenox, IL 60451
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