Erineo Cano v. Nicole Taylor, et al

Filing

FILED OPINION (BARRY G. SILVERMAN, CONSUELO M. CALLAHAN and N. RANDY SMITH) AFFIRMED in part (as to the summary judgment on count I and the denial of appointed counsel) and VACATED and REMANDED in part (as to the dismissal of counts II and III). Judge: BGS Dissenting, Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [8936470]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERINEO CANO, AKA Eddie Cano,
Plaintiff-Appellant,
v.

No. 10-17030
D.C. No.
2:07-cv-02456ROS

NICOLE TAYLOR, Psychologist;
SUSAN KAZ, Psychologist;
MEREDITH MITSIFER, Psychologist;
RALPH MERTENS, Psychologist;
DORA B. SCHRIRO, Warden,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted
December 3, 2013—San Francisco, California
Filed January 14, 2014
Before: Barry G. Silverman, Consuelo M. Callahan,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Silverman

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CANO V. TAYLOR
SUMMARY*

Prisoner Civil Rights
The panel affirmed the district court’s summary judgment
and denial of appointment of counsel and vacated in part the
district court’s dismissal for failure to exhaust administrative
remedies under the Prison Litigation Reform Act and
remanded in a 42 U.S.C. § 1983 action brought by a former
prison inmate who alleged deliberate indifference to his
mental health needs, and violations of his right to freely
exercise his religious beliefs and have access to the courts.
The panel determined that plaintiff’s claims for injunctive
and declaratory relief were mooted by his release from prison.
The panel held that plaintiff’s claim regarding inadequate
medical care amounted to a difference of opinion as to his
medical treatment, which was not actionable. The panel
therefore affirmed the district court’s summary judgment on
that claim. The panel also affirmed the district court’s denial
of plaintiff’s request for appointment of counsel, determining
that plaintiff was unlikely to succeed on the merits, and could
adequately present his claims pro se.
The panel held that the district court incorrectly dismissed
the religious freedom and access to the courts claims as
unexhausted under the Prison Litigation Reform Act. The
panel held that federal claims that arise as a cause of action
prior to the filing of the initial complaint may be added to a
complaint via an amendment, as long as they are
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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administratively exhausted prior to the amendment.
Therefore, for purposes of the exhaustion requirement, the
date of the First Amended Complaint’s filing is the proper
yardstick. The panel remanded for further proceedings as to
those claims.
Dissenting as to Part II(D), Judge Silverman stated that
under Ninth Circuit precedent a prisoner may not file first,
then exhaust later. Judge Silverman would therefore affirm
the district court in all respects.

COUNSEL
Kelly A. Kszywienski (argued) and Andrew M. Jacobs, Snell
& Wilmer L.L.P., Phoenix, Arizona, for Plaintiff-Appellant.
Claudia Acosta Collings (argued), Assistant Attorney
General, Tucson, Arizona, for Defendants-Appellees.

OPINION
CALLAHAN, Circuit Judge:
Erineo Cano, a former prison inmate, appeals from the
district court’s judgment in his 42 U.S.C. § 1983 action
alleging deliberate indifference to his mental health needs in
violation of the Eighth Amendment (count I), and violations
of his right to freely exercise his religious beliefs and to have
access to the courts, in violation of the First and Fourteenth
Amendments (counts II and III). The district court granted
summary judgment on count I, and dismissed counts II and
III for failure to exhaust administrative remedies, pursuant to

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the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a). On appeal, Cano challenges both decisions, as
well as the district court’s rulings denying him appointment
of counsel and in forma pauperis (“IFP”) status.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm in part and reverse and remand in part.
I.
Cano filed his original district court complaint on
December 4, 2007. Cano alleged that while an inmate in a
facility run by the Arizona Department of Corrections (“AZ
DOC”), he did not receive proper medical care for his mental
illness, with the result that he became suicidal. Although he
was seen regularly by mental health care professionals at the
prison where he was housed, he was unhappy with the quality
of care he was offered, and disagreed with the types of
medications he was prescribed. The record also indicates a
diagnosis of malingering and violence, the latter of which
(along with non-compliance and his own personal requests)
prohibited him from actively participating in the mental
health program.
On May 29, 2008, Cano filed a “Motion for Leave to Add
Claims” and a First Amended Complaint (“FAC”). The FAC
added counts II and III for alleged violations of Cano’s First
and Fourteenth Amendment rights. Count II claimed that
Cano’s freedom of religion was violated because kosher food
was not made available to him.1 Count III argued that he was

1

Plaintiff’s FAC stated that “Plaintiff’s religion is premised upon a
fundamentalist approach to the Old Testament. While Plaintiff does not
consider himself ‘Jewish,’ he does adhere to teachings and practices that

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denied meaningful access to the courts because a self-help
litigation manual he had previously utilized had been
removed from the prison library, and “no other self-help
litigation manual ha[d] been substituted.”
On September 18, 2009, defendant Schriro, Director of
the AZ DOC, filed a 12(b) motion to dismiss counts II and III
as barred by 42 U.S.C. § 1997e(a) for failure to exhaust
administrative remedies. Cano argued that he exhausted
administrative remedies.
The district court, however, dismissed counts II and III
without prejudice on the grounds that the administrative
appeals submitted by Cano as to those counts were dated after
the filing date of the initial complaint. Thus, although the
FAC was filed after the administrative appeals for counts II
and III were allegedly exhausted, the court, using the date of
the original complaint, found that counts II and III were not
administratively exhausted as required under the PLRA.
Because it found the date of the original complaint to be
dispositive of the exhaustion issue, the district court did not
reach the question of whether Cano, in fact, had followed
proper prison procedures in pursuing administrative remedies
as to counts II and III.
Cano filed a timely notice of appeal, and the Appellate
Commissioner appointed counsel for purposes of this appeal
only. During the pendency of this appeal, Cano was released
from prison.

are part of the Jewish faith. . . . Plaintiff has been forced to eat unclean and
unholy foods that are forbidden by his religion.”

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II.
A.

Appellees argue that Cano’s release from prison renders
his claims for injunctive and declaratory relief moot.
We have held that a prisoner’s claims for punitive and
compensatory relief may remain viable after his release.
McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095–1096
(9th Cir. 2004) (“If [the plaintiff] is entitled to collect
damages in the event that it succeeds on the merits, the case
does not become moot even though declaratory and injunctive
relief are no longer of any use.”) (quoting Z Channel Ltd.
P’ship v. Home Box Office, Inc., 931 F.2d 1338, 1341 (9th
Cir. 1991)); see also Rhodes v. Robinson, 408 F.3d 559, 566
n.8 (9th Cir. 2005) (“[I]t is firmly established that claims for
monetary damages survive a prisoner’s release from the
officers’ custody.”).2
Here, Cano sought not only preliminary and permanent
injunctions, but also declaratory relief and punitive and
compensatory damages. Consistent with case law, Cano’s
claims for injunctive and declaratory relief are mooted by his
release from prison, but his other claims may not be.

2

See also Johnson v. Doughty, 433 F.3d 1001, 1004 n.3 (7th Cir. 2006)
(prisoner’s Eighth Amendment suit for deliberate indifference to his
medical needs was not mooted by his release from custody; although
injunction was no longer an available remedy, his damages claims were
live issues.); and Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011)
(reversing on mootness because of the existence of claimed nominal and
punitive damages, without deciding whether compensatory damages were
available under the PLRA).

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B.
At best, Cano’s claim regarding inadequate medical care
amounts to a difference of opinion as to his medical
treatment, which is not actionable. The Supreme Court has
held that “to show an Eighth Amendment violation a prisoner
must typically show that a defendant acted, not just
negligently, but with ‘deliberate indifference.’” Minneci v.
Pollard, 132 S. Ct. 617, 625 (2012). In the instant case, there
is no evidence that Cano’s medical needs were treated with
deliberate indifference.
Rather, the record indicates that the Defendants were very
responsive to Cano’s complaints. The record is replete with
health need request forms filed by Cano and the record
indicates that Cano was seen by mental health care employees
regularly for his complaints. For example, Cano was seen:
•

sixty-three times by psychologist Taylor in a sixteenmonth period;

•

thirty-six times by psychologist Mertens between
2007 and 2008;

•

by three psychiatrists and ten psychologists or
psychology associates a total of approximately 106
times in 2007;

•

by one psychiatrist and fifteen psychologists or
psychology associates a total of approximately 232
times in 2008;

•

by two psychiatrists and nine psychologists or
psychology associates over 100 times in 2009;

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•

by one psychiatrist and two psychologists five times
in 2010 prior to his release in February of that year.

Further, there is a great deal of evidence that his suicide
threats were manipulative in nature. Cano was placed on
suicide watch 15 times during 16 months as a result of his
statements that he was thinking of harming himself. The
record indicates that during follow-up visits to his cell,
Cano’s chief complaint was boredom, and he sought a
television and radio in his cell. For instance, Cano repeatedly
stated that he “need[ed] a change of scenery” or that he
“needed a tv or radio for diversion. That is what I would
have gotten out of the mental health program.”
Further, Cano was an uncooperative and difficult patient.
The record indicates that Cano repeatedly and regularly
exhibited violent behaviors and therefore could not be placed
in a lower custody part of the prison (a unit other than the
Special Management Unit (“SMU”) or the pod in the mental
health unit) because he was a danger to himself and/or others.
For example, the prison’s daily cell-front visit logs show
statements by Cano such as: “I feel like harming someone
else.”; “You f- with me, I’ll get you. You f- with me, I’ll
mess you up.”; “I’m feeling angry. I am not ready to go back
today.”; “Get the f- away from my face.”; “I had an episode
yesterday - I punched my bunk for 20 minutes.”; and “I’ll cut
your f-ing head off.” There are also 28 documented refusals
by Cano to take his medication in the record.3 There are
countless forms in the record demonstrating follow-up by

3

It is unclear if these represent all instances of Cano’s refusal, or
whether there were more. Many of these medication logs were signed by
Cano; others were not, because in some cases he refused to interact with
those offering medication, instead responding with epithets and profanity.

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staff, including cell-front visits to check on Cano’s mood,
continuous progress reports, psychiatric follow-ups, mental
health treatment plans, and watch discharge summaries.
In short, the record indicates that prison mental healthcare
professionals were incredibly responsive to Cano’s needs and
no reasonable trier of fact could find that there was deliberate
indifference to Cano’s complaints. Therefore, the district
court’s grant of summary judgment on count I is affirmed.4
C.
Cano also appeals the district court’s denial of his request
for appointed counsel. The decision to appoint counsel in a
civil suit is one of discretion and a district court’s
determination will be overturned only for abuse of that
discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009). A district court must determine whether a) there is a
likelihood of success on the merits; and b) the prisoner is
unable to articulate his claims in light of the complexity of
the legal issues involved. Id. None of these factors is
dispositive; rather they must be considered cumulatively. Id.
In the instant case, there are no exceptional
circumstances, because Cano is unlikely to succeed on the
merits, and Cano has been able to articulate his legal claims
in light of the complexity of the issues involved. Therefore,
we affirm the district court’s denial of Cano’s request for
counsel.

4

Appellees also argue that Cano’s Count I claims are barred because
§ 1997e(e) bars recovery for complaints of mental or emotional injury
where no physical injury is alleged. Since the deliberate indifference
standard is not met, we need not reach this issue.

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Cano argues that the district court, in granting summary
judgment as to count I and denying the appointment of
counsel, improperly relied on Hutchinson v. United States,
838 F.2d 390, 393 (9th Cir. 1988), for the proposition that it
was incumbent on him “to provide an affidavit or deposition
of an expert to establish the standard of care.” It appears that
the district court may have overstated the need for an expert,
but if error, this was harmless error because the district court
properly held that Cano’s “conclusory allegations as to the
adequacy of care or his worsening mental condition are
insufficient to defeat summary judgment.” The district court
correctly noted that the copies of medical records that Cano
provided do not make a prima facie case for his argument.
Cano also argues that denial of appointed counsel was
improper because the district court addressed the merits of
Defendants’ motion for summary judgment before it
addressed his likelihood of success (and thus whether or not
he should be appointed counsel). The basis for Cano’s
contention seems to be that the district court’s denial of
summary judgment has one paragraph regarding Cano’s
request for appointed counsel, which appears at the very end
of the order. This argument lacks merit. The placement of
the language denying counsel after the language discussing
summary judgment, does not establish that the district court
considered appointment of counsel only after it ruled on
summary judgment. Further, it does not matter how the
district court addressed the merits of Cano’s complaint, as
long as it fairly considers Cano’s claims.
D.
We review the district court’s dismissal of claims for
failure to exhaust administrative remedies de novo but review

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factual determinations for clear error. Sapp v. Kimbrell,
623 F.3d 813, 821 (9th Cir. 2010).
The PLRA is intended to eliminate frivolous lawsuits, but
not to eliminate the ameliorative effect achieved by valid
constitutionally-based challenges. See Woods v. Carey,
722 F.3d 1177, 1182–1183 (9th Cir. 2013).5 The PLRA
requires that a prisoner exhaust available administrative
remedies before bringing a federal action concerning prison
conditions:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner

5

In Woods v. Carey, the Ninth Circuit summed up the policy goals of
the PLRA as follows:
Congress enacted the PLRA to deter frivolous prisoner
lawsuits that needlessly wasted judicial resources and
to provide for their dismissal at an early stage. It did so
in part by seeking to limit the number of prisoner
claims that are filed.
....
Congress did not, however, intend to discourage the
collection of awards in those comparatively few
meritorious cases in which the district court had found
that the prisoner’s constitutional rights had been
violated and that the prisoner was entitled to collect
damages for that violation. The majority of these
actions result in low-damage awards for the prisoner,
but can affect substantial change in the prison
conditions or prisoner treatment.
722 F.3d 1177, 1182–1183 (9th Cir. 2013) (internal citations omitted).

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confined in any jail, prison, or other
correctional facility until such administrative
remedies as are available are exhausted.

42 U.S.C. § 1997e(a). See also Griffin v. Arpaio, 557 F.3d
1117, 1119 (9th Cir. 2009). This requirement is in keeping
with the main purpose of the PLRA, which was to address the
overwhelming number of suits brought by prisoners.
141 Cong. Rec. S14413 (daily ed. Sept. 27, 1995).
The Ninth Circuit has explained that Congress
purposefully made exhaustion a precondition to suit, rather
than to judgment, and that this was done with the goal of
affording corrections officials the opportunity to address
complaints internally. McKinney v. Carey, 311 F.3d 1198,
1200–1201 (9th Cir. 2002) (per curiam). In some cases, this
may obviate the need for a suit; in others, it would filter out
frivolous claims or clarify the record for those cases that
proceed to federal court. Id. The PLRA’s exhaustion
requirement, the McKinney panel explained, furthers these
Congressional objectives. Id.
While a prisoner is required to exhaust administrative
remedies prior to filing suit, “‘[t]he PLRA requires that an
inmate exhaust only those administrative remedies ‘as are
available.’’” Albino v. Baca, 697 F.3d 1023, 1030 (9th Cir.
2012) (internal citations omitted). “The failure to exhaust
administrative remedies is an affirmative defense on which
the defendant bears the burden of proof.” Akhtar v. J. Mesa,
698 F.3d 1202, 1210 (9th Cir. 2012).
Not long ago, we held that a prisoner may file an
amended complaint and add new claims where the additional
cause of action arose after the initial filing, as long as he has

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exhausted administrative remedies as to those additional
claims before filing the amended filing. See Rhodes
Robinson, 621 F.3d 1002 (9th Cir. 2010); see also Akhtar,
698 F.3d at 1210. In Akhtar, we stated:
We have held that “a prisoner does not
comply with [the exhaustion] requirement by
exhausting available remedies during the
course of the litigation.” If, however, a
plaintiff files an amended complaint adding
new claims based on conduct that occurred
after the filing of the initial complaint, the
plaintiff need only show that the new claims
were exhausted before tendering the amended
complaint to the clerk for filing.
Id. (citing McKinney v. Carey, 311 F.3d at 1199; also citing
Rhodes, 621 F.3d at 1007).
Here, we have a slightly different factual situation,
because counts II and III arose as causes of action prior to the
filing of the initial complaint, but were (allegedly properly)
exhausted between the filing of the initial complaint and the
FAC, when they were added. Following the logic of Rhodes
and Akhtar, we hold that claims that arose as a cause of action
prior to the filing of the initial complaint may be added to a
complaint via an amendment, as long as they are
administratively exhausted prior to the amendment.
In Rhodes, we explained that Ninth Circuit case law
interpreting the PLRA
must be read and applied in the larger context
of the pleading framework established by the

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Federal Rules of Civil Procedure. As a
general rule, when a plaintiff files an amended
complaint, [t]he amended complaint
supercedes the original, the latter being
treated thereafter as non-existent. Nothing in
the PLRA’s exhaustion requirement creates an
exception to this basic premise of our
jurisprudence on pleadings.

Rhodes, 621 F.3d at 1005 (internal quotation marks and
citations omitted). Therefore, for purposes of the exhaustion
requirement, the date of the FAC’s filing is the proper
yardstick.
Moreover, a district court’s discretion to allow the
addition of a new claim in an amended complaint should not
be curtailed where it is not required by law or statute.
Nothing in the PLRA or the Ninth Circuit’s reasoning in
Akhtar bars the use of the FAC. See Rhodes, 621 F.3d at
1005 (“In drafting the PLRA, ‘when Congress meant to
depart from the usual procedural requirements, it did so
expressly.’ . . . The PLRA ‘does not—explicitly or
implicitly—justify deviating from the usual procedural
practice beyond the departures specified by the PLRA
itself.’”) (internal citations omitted).
Allowing counts II and III to proceed as part of the FAC
serves the policies underlying the PLRA. The purpose of the
PLRA is to discourage frivolous prisoner lawsuits and thus
reduce resulting costs on society by decreasing the burden on
the courts. See Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.
1999). In this case, forcing the plaintiff to file a separate suit
regarding his First Amendment freedom of religion and
access to the courts claims would not further the policy goals

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of the PLRA, because plaintiff could proceed to file those
claims as a separate action (the district court having
dismissed them without prejudice).
Accordingly, the dismissal of counts II and III is vacated
because it was based on the determination that Cano had not
exhausted his administrative remedies prior to the filing of his
initial complaint, rather than his amended complaint.
Because the district court focused on when the grievances
in counts II and III arose, rather than whether and when the
administrative remedies were exhausted, the grant of the
motion to dismiss must be vacated. However, because the
district court did not address Cano’s attempts to exhaust his
administrative remedies, nor did it address whether his
attempts were procedurally unsound or whether they
complied with the internal deadlines of the AZ DOC, we
remand for consideration of this issue.6

6

Appellees have also raised the argument that Cano did not follow
proper Arizona State Department of Corrections procedure in exhausting
counts II and III. If this were so, it would indeed be a valid cause for
dismissal. The Supreme Court has held that:
Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course
of its proceedings.
Woodford v. Ngo, 548 U.S. 81, 91 (2006).

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III.

Cano’s claims for injunctive and declaratory relief are
mooted by his release, but his claims for other damages are
not. We affirm summary judgment in favor of Defendants on
count I, as the record clearly indicates that Appellees have
adequately responded to Cano’s medical needs, even though
Cano has a difference of opinion with Appellees as to proper
medication and treatment. We also affirm the denial of
Cano’s motion for appointment of counsel, as Cano’s claim
is unlikely to succeed on the merits, and he can adequately
present his claims pro se.
We vacate and remand the district court’s dismissal of
counts II and III. The district court incorrectly dismissed
counts II and III because they arose prior to the filing of the
initial complaint even though the administrative remedies
were allegedly exhausted prior to the filing of the first
amended complaint. This exhaustion ruling is not required by
the PLRA nor consistent with the spirit of Ninth Circuit case
law. Rather, following Rhodes, 621 F.3d 1002, we hold that
federal claims which are added to a suit via an amendment
and which are administratively exhausted prior to that
amendment, comply with the PLRA’s exhaustion
requirement. On remand, the district court may address
Appellees’ contentions that Cano has not exhausted his
administrative remedies for counts II and III and whether
Cano’s attempt to file his FAC should be denied for some
other reason.
AFFIRMED in part (as to the summary judgment on
count I and the denial of appointed counsel) and VACATED
and REMANDED in part (as to the dismissal of counts II
and III).

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SILVERMAN, Circuit Judge, dissenting as to Part II(D):
Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012) held that
a prisoner may not file first, then exhaust later. Quoting
McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002), the
Akhtar court reiterated that “a prisoner does not comply with
[the exhaustion] requirement by exhausting available
remedies during the course of the litigation.” Id. at 1210.
Yet that is exactly what Cano did here. He filed an
amended complaint asserting claims that existed before the
original complaint was filed, but were not administratively
exhausted until after that complaint was filed. In other words,
he did precisely what Akhtar and McKinney say he is not
permitted to do – exhaust during the course of the litigation.
This is not a situation as in Rhodes v. Robinson, 621 F.3d
1002 (9th Cir. 2010) where a plaintiff sought to amend his
complaint to raise new claims that did not arise until after the
original complaint was filed. In that circumstance, “[i]f . . .
a plaintiff files an amended complaint adding new claims
based on conduct that occurred after the filing of the initial
complaint, the plaintiff need only show that the new claims
were exhausted before tendering the amended complaint to
the clerk.” Akhtar at 1210 (emphasis added).
The purpose behind the requirement of exhaustion of
administrative remedies would be completely undermined if
a plaintiff can sue first, then exhaust on the fly. But even if
one thinks that Akhtar and McKinney were wrongly decided,
we are duty bound to follow them, just as the district court
correctly did. See United States v. Orm Hieng, 679 F.3d
1131, 1139 (9th Cir. 2012) (“As a three-judge panel, we are
bound by circuit precedent unless the United States Supreme
Court or an en banc court of our circuit has undercut the

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theory or reasoning underlying the prior circuit precedent in
such a way that the cases are clearly irreconcilable.”)
(internal quotations omitted).
I would affirm the district court in all respects.

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