Asberry v. Cate et al

Filing 97

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/06/13 recommending that defendants' motions to dismiss 63 and 84 be granted in part and denied in part as follows: a. Defendants' motion to dismiss plaintif 's failure to protect claims as to defendants Elston, Virga and Dr. Chen be denied; b. Defendants' motion to dismiss plaintiff's Eighth Amendment claims as to defendants Dr. Wedell and Dr. Ali be denied as to plaintiff's claims t hat he was not timely provided physical therapy or a waist chain chrono; c. Defendants' motion to dismis plaintiff's state law claims be denied without prejudice; and in all other respects, defendants' motion to dismiss be granted base d on plaintiff's failure to exhaust his claims as to defendants McCarvel, Dr. Bobbola, Dr. Nangalama, Dr. Dhillon and Dr. Duc. Defendants Phelps, Elston, Virga, Dr. Chen, Dr. Wedell and Dr. Ali be directed to file an answer within 14 days from any district court order adopting the instant findings and recommendations. Motions to dismiss 63 and 84 referred referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

TONY ASBERRY,

11
12

Plaintiff,

No. 2:11-cv-2462 KJM KJN P

vs.

13

MATTHEW CATE, et al.,

14

Defendants.

15
16

FINDINGS AND RECOMMENDATIONS
/

I. Introduction

17

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,

18

with an action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s third

19

amended complaint against defendants Virga, Phelps, McCarval, Bobbala, Nangalama, Wedell,

20

Ali, Elston, Dhillon, Duc, and Chen.1 Plaintiff alleges that defendants violated his Eighth

21

Amendment right to be protected from harm caused by another inmate, and that he subsequently

22

received inadequate medical care in violation of the Eighth Amendment. Plaintiff also includes

23

several state law claims. (Dkt. No. 55.) Pending before the court are defendants’ motions to

24
25
26

1

It appears that defendants Elston and Chen were incorrectly named as “Elton,” and
“Chin,” in the third amended complaint. (Dkt. No. 84 at 1.) Defendant Cate and plaintiff’s
retaliation claims were dismissed on September 27, 2012. (Dkt. No. 78.)
1

1

dismiss these claims based on a failure to first exhaust administrative remedies (except as to

2

defendant Phelps), and failure to plead facts sufficient to state a claim for relief under Federal

3

Rule of Civil Procedure 12(b)(6), based on plaintiff’s alleged failure to comply with the

4

California Government Tort Claims Act. After careful review of the record, the undersigned

5

concludes that defendants’ motions to dismiss should be granted in part, and denied in part.

6

II. Plaintiff’s Third2 Amended Complaint

7

Plaintiff’s claims arise from a cell move on January 25, 2010, and plaintiff’s claim

8

that he was assaulted by his new cellmate, inmate Wilson, the following day, during which

9

plaintiff suffered injuries to his back and neck.3 (Dkt. No. 49.) Plaintiff claims that (a) defendant

10

Elston failed to protect plaintiff by bringing inmate Wilson to plaintiff’s cell on January 25,

11

2010, and ordering plaintiff to accept Wilson as his cellmate or plaintiff would face disciplinary

12

action; (b) defendant McCarvel failed to protect plaintiff from inmate Wilson’s attack on January

13

26, 2010; (c) defendant Virga failed to protect plaintiff by improperly classifying inmate Wilson;

14

and (d) defendant Chen failed to protect plaintiff because he misdiagnosed Wilson, and it was

15

defendant Chen’s evaluation of inmate Wilson that eventually led to plaintiff being housed with

16

inmate Wilson, resulting in plaintiff’s injuries (dkt. no. 93 at 6).

17

Plaintiff alleges that defendant Dr. Bobbala examined plaintiff in February of

18

2010, by punching and chopping plaintiff in the back, and attempting to bend plaintiff over, all

19

while asking plaintiff “does that hurt?,” and without giving plaintiff any medical treatment,

20

except for ordering an x-ray. (Dkt. No. 49 at 9-10.) On March 30, 2010, plaintiff claims his

21

back went out, but all defendant Dr. Nangalama did was ask a few questions, and prescribed

22
23
24
25
26

2

Although plaintiff entitled his filing as a “Second Amended Complaint,” plaintiff first
amended his complaint on November 21, 2011 (dkt. no. 12), and filed a second amended
complaint on December 1, 2011 (dkt. no. 13).
3

In the third amended complaint, plaintiff does not challenge the subsequent rules
violation report No. C10-01-033 (hereafter “RVR”), signed on February 5, 2010, or raise due
process claims concerning the hearing on the RVR (dkt. no. 80 at 52-55). (Dkt. No. 49, passim.)
2

1

plaintiff no pain medication. (Id. at 10.) On April 9, 2010, plaintiff was seen by defendant Dr.

2

Wedell, who told plaintiff he would need muscle relaxers, physical therapy, and a waist chain

3

chrono. On September 7, 2010, plaintiff was seen by defendant Dr. Ali, who allegedly told

4

plaintiff that he needed back surgery, but that “it was up to others to order it;” Dr. Ali ordered

5

methadone, an MRI, a back brace, and a wheelchair chrono for plaintiff. (Id.) On April 26,

6

2011, plaintiff was seen by defendant Dr. Dhillon for MRI test results; plaintiff alleges Dr.

7

Dhillon would not reveal the MRI results, but instead ordered a second MRI. On July 12, 2011,

8

plaintiff saw Dr. Dhillon again, and when plaintiff asked him about the MRI results, Dr. Dhillon

9

allegedly told plaintiff that his knee was within normal limits, and that plaintiff had Hepatitis-C.

10

Plaintiff states he did not receive an MRI for his knee and does not have Hepatitis-C. On

11

October 20, 2011, plaintiff was escorted to medical by Correctional Officer Conely to see

12

defendant Dr. Duc, and obtain the results from the second MRI. (Id. at 11.) When plaintiff

13

asked for his results, plaintiff alleges Officer Conely began gesturing to Dr. Duc as if to say

14

“don’t tell him the results,” and defendant Dr. Duc allegedly told plaintiff that another doctor

15

would give plaintiff the second MRI results. (Id.) Plaintiff alleges these medical doctors denied

16

and delayed plaintiff’s medical care in violation of the Eighth Amendment.

17

III. Motions to Dismiss - Failure to Exhaust

18

Defendants claim plaintiff failed to first exhaust his administrative remedies as to

19

all defendants except defendant Phelps. Plaintiff was informed of the requirements for opposing

20

a motion to dismiss for failure to exhaust administrative remedies on August 20, 2012, and

21

October 30, 2012. (Dkt. Nos. 63, 84.) Plaintiff filed oppositions (dkt. nos. 80, 93), and

22

defendants filed replies (dkt. nos. 83, 95.)

23

A. Legal Standard re Exhaustion

24

The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e

25

to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

26

§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
3

1

facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

2

Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S.

3

516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of

4

confinement, whether they involve general circumstances or particular episodes, and whether

5

they allege excessive force or some other wrong. Porter, 534 U.S. at 532.

6

Exhaustion of all “available” remedies is mandatory; those remedies need not

7

meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v.

8

Churner, 532 U.S. 731, 740 n.5 (2001). Even when the prisoner seeks relief not available in

9

grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532

10

U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative

11

process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734.

12

The fact that the administrative procedure cannot result in the particular form of relief requested

13

by the prisoner does not excuse exhaustion because some sort of relief or responsive action may

14

result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes

15

of exhaustion requirement include allowing prison to take responsive action, filtering out

16

frivolous cases, and creating administrative records). The Supreme Court has cautioned courts

17

against reading futility or other exceptions into the PLRA exhaustion requirement. See Booth,

18

532 U.S. at 741 n.6.

19

A prisoner need not exhaust further levels of review once he has either received

20

all the remedies that are “available” at an intermediate level of review, or has been reliably

21

informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d

22

926, 934-35 (9th Cir. 2005). Because there can be no absence of exhaustion unless some relief

23

remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief

24

remained available, whether at unexhausted levels or through awaiting the results of the relief

25

already granted as a result of that process. Id., at 936-37.

26

////
4

1

As noted above, the PLRA requires proper exhaustion of administrative remedies.

2

Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an

3

agency’s deadlines and other critical procedural rules because no adjudicative system can

4

function effectively without imposing some orderly structure on the course of its proceedings.”

5

Id. at 90-91. Thus, compliance with grievance procedures is required by the PLRA to properly

6

exhaust. Id. The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or

7

otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. When the

8

rules of the prison or jail do not dictate the requisite level of detail for proper review, a prisoner’s

9

complaint “suffices if it alerts the prison to the nature of the wrong for which redress is sought.”

10

Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is because the primary

11

purpose of a prison’s administrative review system is to “notify the prison of a problem and to

12

facilitate its resolution.” Griffin, 557 F.3d at 1120.

13

Non-exhaustion under § 1997e(a) is an affirmative defense which should be

14

brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil

15

Procedure 12(b). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Moreover, the court

16

may look beyond the pleadings to determine whether a plaintiff exhausted his administrative

17

remedies. Id. at 1119-20.

18

B. California Prisons’ Grievance Procedures

19

California regulations allow a prisoner to appeal any action or decision by a prison

20

official that adversely affects the prisoner's welfare. Cal. Code Regs. tit. 15, § 3084.1(a). To

21

exhaust a grievance, an inmate must pursue his appeal through four levels, one “informal” and

22

three “formal.” Id. §§ 3084.5, 3084.1(a). An inmate must file the initial grievance within 15

23

working days of the action being appealed, and he must file each administrative appeal within 15

24

working days of receiving an adverse decision at a lower level. Id. § 3084.6(c).

25
26

At the informal level, an inmate must seek to have the involved prison employee
resolve the problem. Id. § 3084.5(a). If this request is unsuccessful, the inmate must then fill out
5

1

a “Form 602,” the “Inmate/Parolee Appeal Form,” describing the problem and action requested.

2

Id. § 3084.2(a). An “appeals coordinator” at the prison “screen[s]” each appeal before

3

forwarding it on for review on the merits. Id. § 3084.3(a). The appeals coordinator may reject,

4

or “screen,” an appeal for various reasons, including failure to comply with the 15-day time limit,

5

incompleteness or omission of necessary supporting documents, or failure to attempt to resolve

6

the grievance informally. Id. §§ 3084.3, 3084.6(c). When the appeals coordinator rejects an

7

appeal, he must fill out a form that explains why the appeal is unacceptable and instructs the

8

inmate on what he must do to qualify the appeal for processing. Id. § 3084.3(d). If it appears

9

from the appeal form that the prisoner has difficulty describing the problem in writing, the

10

appeals coordinator must arrange an interview with the prisoner to help clarify or complete the

11

appeal. Id. § 3084.3(b)(3). Once the appeals coordinator allows an appeal to go forward, the

12

inmate must pursue it through three levels of formal review. Id. § 3084.5.

13

C. Administrative Appeals

14

Plaintiff filed his original complaint on September 16, 2011, and provided

15

exhibits which the court has reviewed in connection with this motion. (Dkt. Nos. 1-1, 1-2.) At

16

the time the underlying claims accrued, plaintiff was housed at California State Prison -

17

Sacramento (“CSP-SAC”). Defendants provided the declaration of J.D. Lozano, Chief of the

18

Office of Appeals for the California Department of Corrections and Rehabilitation (“CDCR”).

19

Chief Lozano described the grievance procedure for inmates held in the CDCR, and submitted

20

copies of plaintiff’s grievances submitted between January 26, 2010, and September 16, 2011.

21

(Dkt. No. 63-3 at 1-43.) Defendants also provided the declaration of K. Daly, Appeals

22

Coordinator for CSP-SAC, who described the screening process for appeals, and filed copies of

23

plaintiff’s appeals that were screened out during the relevant time frame. (Dkt. No. 63-4 at 1-

24

21.) Finally, defendants submitted the declaration of L.D. Zamora, Chief of the Office of Third

25

Level Appeals (“OTLA”) for California Correctional Health Care Services (“CCHCS”) in

26

Sacramento, California. (Dkt. No. 63-5 at 1-2.) Chief Zamora described the procedure for
6

1

appeals concerning health care, and provided copies of medical appeals filed by plaintiff during

2

the relevant time period. (Dkt. No. 63-5 at 1-33.)

3

D. Third Level Appeals

4

As noted above, Chief Lozano provided copies of plaintiff’s appeals that were

5

denied at the third level of review. The court reviewed these appeals4 and determined that only

6

third level appeals SAC-10-00226 and SAC-10-10-12683 raised claims relevant herein. (Dkt.

7

Nos. 63-3 at 12-15; 63-5 at 10.)

8

1. Appeal SAC-10-00226

9

In appeal SAC-10-00226, signed February 1, 2010, plaintiff sought an

10

investigation into his claims, and to be compensated in some form. (Dkt. No. 63-3 at 12.)

11

Plaintiff alleged that on January 25, 2010, defendant Phelps made a cell move that resulted in

12

plaintiff being celled with inmate Wilson. Plaintiff alleged that inmate Wilson suffers from a

13

mental disorder, has an anger problem, and is violent, unclean, and refused to shower. Plaintiff

14

alleged that inmate Wilson attacked him because plaintiff offered Wilson a bar of soap. Plaintiff

15

stated that he requested an investigation into why defendant Phelps moved inmate Wilson into

16

plaintiff’s cell. (Dkt. No. 63-3 at 15.) Plaintiff noted that at 7:00 a.m. on January 26, 2010,

17

while housed in a medical holding cell next to inmate Wilson, plaintiff remarked to defendant

18
4

19
20
21
22
23
24
25
26

Appeals SAC-09-01676 and SAC-09-1633 challenged food service issues. (Dkt. No.
63-3 at 4-10.) Appeal SAC-01246 challenged the denial of showers. (Id. at 17-20.) Appeal
SAC-11-00227 claimed misuse of force by a nondefendant correctional officer on February 7,
2011. (Id. at 22-29.) Appeal SAC-11-00443 challenged the improper turning off of plaintiff’s
toilet flushing mechanism. (Id. at 31-34.) Appeal SAC-00501 challenged an April 9, 2011 cell
search. (Id. at 36-43.) Appeal SAC-11-00417 was a staff complaint against a nondefendant
correctional officer on an unspecified date. (Dkt. No. 63-4 at 8-11.) Appeal SAC-10-10-12500
complained of medical care received for itching and scratching. (Dkt. No. 63-5 at 4-8.) Appeal
SAC-HC-11013255 sought clarification of a comprehensive accommodation chrono issued
January 18, 2011. (Id. at 16-20.) Finally, appeal SAC-10-10-13021 challenged plaintiff’s
medical treatment for nightmares and PTSD by Dr. Delgado and Dr. Chen. (Id. at 22-31.)
However, plaintiff does not name Dr. Delgado as a defendant, and plaintiff does not challenge
Dr. Chen’s medical care in the third amended complaint. Rather, plaintiff alleges it was Dr.
Chen’s evaluation that allowed for inmate Wilson to be double-celled, resulting in plaintiff’s
injuries. This appeal does not raise such a claim as to Dr. Chen. Thus, appeal SAC-10-10-13021
does not serve to exhaust plaintiff’s administrative remedies as to Dr. Chen.
7

1

Phelps that inmate Wilson should be single-celled. (Dkt. No. 63-3 at 15.) Plaintiff alleged

2

defendant Phelps responded, “I know he (Wilson) should not even be on the mainline with main

3

population inmates.” (Id.) Plaintiff claimed this statement “implies that [defendant] Phelps

4

already knew moving inmate Wilson in the cell with [plaintiff] would be a problem.” (Id.)

5

In the first level appeal response, Correctional Sgt. Rose summarized plaintiff’s

6

appeal as alleging defendant Phelps housed plaintiff improperly with a cellmate who should have

7

been on single cell status, and defendant Phelps was aware of this fact. (Dkt. No. 1-1 at 6.) Sgt.

8

Rose noted that during the interview, plaintiff stated that his “main concern was that [defendant]

9

Phelps housed you with inmate Wilson knowing you were not compatible.” (Id.) Sgt. Rose

10

noted that defendant Phelps was interviewed on March 5, 2010, and stated that plaintiff was

11

housed with Wilson because both were “double-cell cleared and were compatible.” (Id.)

12

Plaintiff sought a second level review, stating he was dissatisfied with the first

13

level decision, without specifying any further factual allegations. (Dkt. No. 63-3 at 13.)

14

Defendant Virga provided the second level decision, summarizing plaintiff’s appeal by

15

articulating plaintiff’s claims set forth in his initial appeal. (Dkt. No. 1-1 at 8.) Defendant Virga

16

reiterated the first level appeal response that both plaintiff and inmate Wilson were cleared for

17

double-cell housing, and no incompatibility factors were revealed in a records review. (Id.)

18

Defendant Virga found that staff acted appropriately. (Id.)

19

In seeking third level review, plaintiff stated that the prior reviewers failed to

20

acknowledge his request for an investigation into plaintiff’s issues, “particularly inmate Wilson’s

21

mental health issues, and Wilson’s inability to effectively program in the main population as a

22

double cell status prisoner.” (Dkt. Nos. 63-3 at 13; 1-1 at 3.)

23

The third level review reiterated plaintiff’s claims against defendant Phelps. The

24

third level review examiner found that plaintiff provided no credible evidence to substantiate his

25

claim that CSP-SAC staff knowingly housed him with a violent, mentally ill inmate. (Dkt. No.

26

1-1 at 11.) “Staff attested that both inmates were cleared for double cell housing and there were
8

1

no documented incompatibility factors.” (Id.) In connection with plaintiff’s claim that Wilson

2

struck him in the face in response to plaintiff’s offer of soap, the examiner noted that plaintiff

3

failed to advise staff at the time so that Wilson could be removed. (Id.)

4

In this appeal, SAC-10-00226, plaintiff does not allege facts concerning or

5

challenging the January 26, 2010 attack on plaintiff by inmate Wilson, or plaintiff’s claim that

6

defendant McCarvel failed to protect plaintiff. (Dkt. No. 63-3 at 12-15.)

7

Defendants contend that this appeal only exhausts plaintiff’s claims as to

8

defendant Phelps, because it fails to allege any wrongdoing on the part of defendant McCarvel,

9

and was filed prior to any alleged wrongdoing on the part of the other named defendants.

10

In his opposition, plaintiff claims he did not learn of defendant Virga’s

11

involvement until much later in plaintiff’s investigation. (Dkt. No. 80 at 4.) Plaintiff states that

12

although he could not appeal the classification of another inmate, he could include that claim in

13

appealing the RVR that he claims resulted from defendant Virga’s classification of inmate

14

Wilson, as well as the actions of defendant McCarvel who authored the RVR. (Id.) The hearing

15

on the RVR, postponed pending the district attorney’s decision to prosecute, occurred on July 30,

16

2010. Plaintiff contends he could not file an appeal until he was found guilty of the RVR, issued

17

a final copy of the RVR, as well as a 128-G chrono approving the disciplinary process by a

18

classification committee. (Id. at 5.) Plaintiff argues that he did not timely receive a copy of the

19

final RVR. (Id.) On August 18, 2010, plaintiff went before the classification committee, and

20

submitted his appeal of the RVR on the same day. (Id. at 6.) However, the appeal was rejected

21

based on plaintiff’s failure to attach the complete RVR, and plaintiff included too many issues in

22

one appeal. (Id.) Plaintiff alleges he tried on many occasions to obtain a copy of the RVR, but

23

claims he did not receive a copy until November 1, 2010, and filed his appeal the same day. (Id.

24

at 7.) The appeal was rejected as untimely. (Id.) Plaintiff claims these efforts demonstrate that

25

plaintiff was not allowed to exhaust his claims as to defendants McCarvel and Virga. (Id. at 9.)

26

////
9

1

Plaintiff also argues that appeal SAC-10-00226 exhausts plaintiff’s claims against

2

defendants McCarvel, and Virga, but does not explain why. (Dkt. No. 80 at 24:6-8.) In his

3

verified supplemental opposition, plaintiff contends that this appeal exhausted his administrative

4

remedies as to defendants Elston and Chen. (Dkt. No. 93 at 5.) Although plaintiff did not

5

reference defendant Elston by name in the appeal, plaintiff contends he referenced defendant

6

Elston’s actions, which was to tell plaintiff that if he refused a cellmate, he would face a range of

7

disciplinary actions, including placement in administrative segregation. (Id., citing Dkt. No. 63-3

8

at 14.) Plaintiff also argues that he did not learn of defendant Chen’s involvement until much

9

later. (Dkt. No. 93 at 6.) Moreover, plaintiff contends that the CDCR would not process an

10

appeal from a prisoner that revealed information about another inmate’s mental health. (Id.)

11

In reply, defendants argue that appeal SAC-10-00226 does not reference

12

defendant McCarvel’s response to the January 26, 2010 alleged cell fight, or defendant Virga’s

13

classification of inmate Wilson. (Dkt. No. 83 at 3.) Thus, defendants contend this appeal failed

14

to put prison officials on notice of any wrongdoing on the part of defendants McCarvel and

15

Virga. (Id.)

16

A grievance suffices to exhaust a claim if it puts the prison on adequate notice of

17

the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need

18

only provide the level of detail required by the prison’s regulations. Jones v. Bock, 549 U.S.

19

199, 218 (2007). The California regulations require only that an inmate “describe the problem

20

and the action requested.” Cal. Code Regs. tit. 15, § 3084.2(a). Where a prison’s regulations are

21

“incomplete as to the factual specificity [required in an inmate’s grievance], a grievance suffices

22

if it alerts the prison to the nature of the wrong for which redress is sought.” Griffin, 557 F.3d at

23

1120 (9th Cir. 2009) (internal quotation marks omitted).

24

The court finds that plaintiff’s appeal SAC-10-00226 challenged the alleged

25

improper cell move placing inmate Wilson in the same cell as plaintiff on January 25, 2010, and

26

specifically named defendant Phelps. Plaintiff included language as to defendant Elston that
10

1

tracks the language contained in the instant complaint. Plaintiff is not required to name all

2

potential defendants in his administrative grievance. See Jones, 549 U.S. at 219, citing Johnson

3

v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a

4

grievance is to alert prison officials to a problem, not to provide personal notice to a particular

5

official that he may be sued; the grievance process is not a summons and complaint that initiates

6

adversarial litigation.”). Plaintiff’s allegation that he was forced to accept a cellmate or receive

7

disciplinary action was sufficient to put prison officials on notice of plaintiff’s allegations. Here,

8

plaintiff claims that defendant Elston failed to protect plaintiff by forcing him to accept a

9

cellmate or receive disciplinary action. Thus, defendants’ motion to dismiss plaintiff’s claim as

10

to defendant Elston should be denied.

11

Plaintiff’s allegations as to defendants Virga and Dr. Chen present a closer

12

question. The Ninth Circuit has explained that a prisoner is not required to allege every fact

13

necessary to prove a legal claim in his administrative appeal. See Griffin, 557 F.3d at 1120.

14

Instead, “the primary purpose of a grievance is to notify the prison of the problem and facilitate

15

its resolution, not to lay the groundwork for litigation.” Id., 557 F.3d at 1120-21; see also Gomez

16

v. Winslow, 177 F.Supp.2d 977, 983, 985 (N.D. Cal. 2001) (California prisoner need not provide

17

prison officials with a “preview of his lawsuit by reciting every possible theory of recovery or

18

every factual detail that might be relevant.”); Irvin v. Zamora, 161 F.Supp. 2d 1130, 1134-35

19

(S.D. Cal. 2001) (holding that so long as the plaintiff's grievance “present[s] the relevant factual

20

circumstances giving rise to a potential claim,” the basic purposes of the exhaustion requirement

21

are fulfilled).

22

Here, defendants are correct that plaintiff did not specifically challenge defendant

23

Virga’s classification of inmate Wilson for double cell housing, and did not argue that inmate

24

Wilson’s psychiatrist misdiagnosed Wilson, or improperly evaluated Wilson to find it

25

appropriate for Wilson to be double celled. However, plaintiff noted that inmate Wilson had a

26

mental disorder, and asked prison officials to investigate why defendant Phelps placed Wilson in
11

1

plaintiff’s cell. In the first level review, the summary of the appeal noted plaintiff’s allegation

2

that inmate Wilson should have been on single cell status. (Dkt. No. 1-1 at 6.) These allegations

3

were sufficient to put prison officials on notice that plaintiff challenged the decision to double-

4

cell inmate Wilson based on Wilson’s mental disorder. Plaintiff was not required to give prison

5

officials a “preview of his lawsuit by reciting every possible theory of recovery or every factual

6

detail that might be relevant” in the appeal, Gomez, 177 F.Supp. 2d at 983; plaintiff only needed

7

to describe the facts that gave rise to potential claims he might raise.

8

Liberally construed, plaintiff’s factual allegations should have led prison officials

9

to investigate inmate Wilson’s classification for double cell housing, and, because plaintiff noted

10

inmate Wilson’s mental disorder, should also have led prison officials to review Wilson’s

11

psychiatrist’s recommendation or evaluation concerning Wilson’s double cell status, if any.

12

Moreover, plaintiff alleges he did not learn of the involvement of defendant Virga and Chen in

13

inmate Wilson’s cell move until much later. And, in seeking third level review, plaintiff argued

14

that prison officials failed to acknowledge his request for an investigation into plaintiff’s issues,

15

“particularly inmate Wilson’s mental health issues, and Wilson’s inability to effectively program

16

in the main population as a double cell status prisoner.” (Dkt. Nos. 63-3 at 13; 1-1 at 3.) Had

17

plaintiff filed second or third appeals once he learned of the involvement of defendants Virga and

18

Dr. Chen, plaintiff risked the screening out of such appeals as duplicative of appeal SAC-10-

19

00226. Because plaintiff described the relevant factual circumstances that gave rise to these

20

related claims, and pled them sufficiently, the court finds that plaintiff provided prison officials

21

with adequate notice, and exhausted these failure to protect claims as to defendants Virga and Dr.

22

Chen. Accordingly, the court recommends that defendants’ motion to dismiss plaintiff’s claims

23

as to defendants Virga and Dr. Chen be denied.

24

On the other hand, appeal SAC-10-00226 makes no mention of defendant

25

McCarvel or his alleged actions on January 26, 2010. Indeed, it appears plaintiff’s allegations in

26

this appeal end the morning of January 26, 2010, before the altercation between plaintiff and
12

1

inmate Wilson that led to plaintiff’s back and neck injuries. Because there are no factual

2

allegations sufficient to put prison officials on notice of plaintiff’s claim that defendant

3

McCarvel failed to protect plaintiff on January 26, 2010, appeal SAC-10-00226 cannot serve to

4

exhaust plaintiff’s claims as to defendant McCarvel.

5

2. Appeal SAC-10-10-12683

6

In appeal SAC-10-10-12683, signed November 5, 2010, plaintiff requested to

7

receive physical therapy for his back, and to be provided the necessary transportation to get to

8

and from physical therapy, including a wheelchair and a back brace. (Dkt. No. 63-5 at 10.)

9

Plaintiff alleges that on April 9, 2010, Dr. Wedell prescribed physical therapy for plaintiff’s back

10

and neck injuries, but plaintiff was not provided transportation for his first physical therapy

11

session until May 25, 2010, and therefore did not receive physical therapy until May 25, 2010.

12

(Id. at 12.) Plaintiff informed the therapist that he was housed in administrative segregation, that

13

he did not have a medical chrono to be cuffed in the front or with waist chains, so the therapist

14

would have to make temporary arrangements until plaintiff could get the medical chrono. (Id.)

15

Plaintiff claimed the therapist told plaintiff the therapist would take care of it. (Id.) Plaintiff saw

16

defendant Dr. Wedell on May 30, 2010, and reported the transportation issues, and plaintiff

17

alleged that Dr. Wedell said he “would take care of the mix-up.” (Id.) Plaintiff was not provided

18

physical therapy. His June 11, 2010 physical therapy appointment was again cancelled due to a

19

transportation issue. On September 7, 2010, plaintiff saw defendant Dr. Ali, who allegedly told

20

plaintiff he would order physical therapy. On October 19, 2010, plaintiff was taken for physical

21

therapy, but the next three sessions were cancelled. On November 4, 2010, plaintiff saw

22

defendant Dr. Duc. Finally, plaintiff claimed that he was confined to his cell 24 hours a day

23

since March 30, 2010, the date his back went out, except for doctor visits, and was denied

24

medical assistance to be able to go outside or make it to physical therapy, a period of

25

approximately eight months. (Id. at 13.)

26

////
13

1

In the operative complaint, plaintiff alleges that Dr. Wedell told plaintiff he would

2

need physical therapy, and a waist chain chrono. (Dkt. No. 49 at 10.) Plaintiff alleges

3

defendants delayed giving plaintiff needed medical treatment. (Id. at 21.)

4

Defendants contend that in appeal SAC-10-10-12683, plaintiff sought

5

transportation to and from physical therapy, and failed to put prison officials on notice that

6

plaintiff was not receiving adequate treatment from Doctors Bobbala, Ali, Wedell, or

7

Nangalama, because the appeal noted that plaintiff was prescribed physical therapy.

8
9

However, defendants read this appeal too narrowly. Plaintiff alleges facts
demonstrating that he was prescribed physical therapy, but because he did not have the proper

10

medical chrono,5 it presented a transportation issue, which prevented plaintiff from receiving the

11

physical therapy he needed. Moreover, plaintiff alleges he met with Dr. Wedell, who allegedly

12

told plaintiff he would rectify the problem, yet the problem persisted. Plaintiff later saw Dr. Ali,

13

who told plaintiff he would prescribe physical therapy, yet plaintiff still did not receive timely

14

physical therapy. Arguably, this appeal put prison officials on notice that plaintiff was not

15

receiving physical therapy as ordered by plaintiff’s doctor. This appeal is sufficient to exhaust

16

remedies as to defendants Dr. Wedell and Dr. Ali solely as to plaintiff’s Eighth Amendment

17

claim related to the provision of a waist chain chrono, and physical therapy, as part of the

18

medical care required following plaintiff’s January 26, 2010 injury. However, because the

19

appeal was signed on November 5, 2010, the day after he saw Dr. Duc, and the grievance raises

20

no factual allegations as to whether Dr. Duc addressed the issue of physical therapy or the waist

21

chain chrono, this grievance cannot serve to exhaust plaintiff’s administrative remedies as to Dr.

22

Duc. Similarly, plaintiff did not raise any other claims concerning medical care following the

23
24
25
26

5

While not entirely clear, it appears plaintiff’s transportation issues stemmed from not
having a waist chain chrono to avoid the painful handcuffing from behind, and from not having a
wheelchair chrono, based on his alleged inability to walk to physical therapy. The court finds
appeal SAC-10-10-12683 sufficient to put prison officials on notice regarding both the
wheelchair and the waist chain.
14

1

January 26, 2010 incident, and therefore this appeal cannot serve to exhaust plaintiff’s medical

2

claims against the remaining doctor defendants.

3
4

iii. Conclusion Regarding Third Level Appeals
Thus, the record demonstrates that plaintiff exhausted his failure to protect claims

5

as to defendants Elston, Virga, and Dr. Chen, and his medical claims as to Dr. Wedell and Dr.

6

Ali, as to the provision of a wheelchair, waist chain chrono, and physical therapy only.

7

E. Appeals Not Resolved at the Third Level

8

1. Appeal SAC HC-11013531

9

On February 15, 2011/March 10, 2011, plaintiff filed an appeal claiming he had

10

been suffering from back pain for over a year, noting he had been unable to attend yard since

11

March 30, 2010. (Dkt. No. 80 at 96.) Plaintiff stated that he was seeing defendant Dr. Ali for

12

most of plaintiff’s medical appointments, and Dr. Ali was well informed about plaintiff’s back

13

pains, and prescribed plaintiff Methadone for pain relief, which plaintiff took from time to time

14

to break up the constant pain. However, plaintiff claimed that this medication would not fix

15

plaintiff’s back, and that Dr. Ali ordered physical therapy and a back brace, which plaintiff had

16

not received. Despite Dr. Ali’s February 1, 2011 order for an MRI, no appointment was set, and

17

plaintiff’s physical therapy was thwarted by the loss of the wheelchair chrono issued by Dr. Ali.

18

(Id. at 97.) Plaintiff alleged that when he informed Dr. Ali that plaintiff did not get the

19

wheelchair chrono, the back brace or the MRI, Dr. Ali “got upset” and told plaintiff it was not the

20

doctor’s problem, “it’s [plaintiff’s] problem,” and “stop talking to Dr. Ali about [plaintiff’s]

21

problems.” (Id.) When plaintiff asked Dr. Ali what he should do when he doesn’t receive what

22

Dr. Ali ordered, Dr. Ali allegedly told custody that plaintiff’s appointment was over. On the way

23

out, plaintiff asked Dr. Ali what his options were, and he responded, “Tony [plaintiff] you fix it,

24

it’s your problem not mine.” (Id.)

25
26

Plaintiff complained that medical personnel and custody staff were being
deliberately indifferent to plaintiff for exercising his right to file appeals, and that staff
15

1

misconduct and unprofessionalism constitutes cruel and unusual punishment. (Dkt. No. 80 at

2

98.) Plaintiff claimed that staff and medical personnel were dragging out medical assistance in

3

reprisal. Plaintiff asked to be seen by an outside independent professional medical doctor. (Id.)

4

On March 1, 2011, plaintiff’s appeal was returned based on plaintiff’s excessive

5

filings, citing California Code of Regulations, Title 15, § 3084.6(b)(3).6 (Dkt. No. 80 at 99.) On

6

March 3, 2011, plaintiff objected to the return of the appeal, challenging the appeals

7

coordinator’s interpretation of the regulation, and reiterating that he has been suffering back pain

8

for fourteen months, and alleging that CDCR played a role in plaintiff’s January 26, 2010 injury,

9

and again sought help to determine why his back has been hurting for 14 months. (Id.) On

10

March 9, 2011, plaintiff’s appeal was again returned based on plaintiff’s excessive filings. (Dkt.

11

No. 80 at 101.) On March 10, 2011, plaintiff again objected to the interpretation of the filing

12

regulation, and argued the appeal could be processed because he was still being affected in the

13

same manner. (Id.) On May 3, 2011, plaintiff’s appeal was returned again based on plaintiff’s

14

excessive filings. (Id. at 103.) Plaintiff was informed that this was the third screen-out of his

15

appeal, and warned that if he re-submitted this appeal, it would be retained by the health care

16

appeals office. (Id.)

17
18

6

19

(b) An appeal may be rejected for any of the following reasons, which include, but
are not limited to:

20
21
22
23
24
25
26

Section 3084.6(b)(3) provides:

(3) The inmate or parolee has exceeded the allowable number of
appeals filed in a 14 calendar day period pursuant to the provisions
of subsection 3084.1(f).
Cal. Code Regs. tit. 15 § 3084.6(b)(3). Section 3084.1(f) states:
(f) An inmate or parolee has the right to file one appeal every 14
calendar days unless the appeal is accepted as an emergency
appeal. The 14 calendar day period shall commence on the day
following the appellant's last accepted appeal.
Cal. Code Regs. tit. 15 § 3084.1(f).
16

1

On May 4, 2011, plaintiff wrote a letter to the health care appeals coordinator,

2

again raising his objection as to the time line involved with excessive filings, and noting that he

3

was trying to exhaust administrative remedies, so if the appeal is cancelled again, he had done all

4

he could. (Dkt. No. 80 at 105.)

5

The PLRA “does not require exhaustion when circumstances render

6

administrative remedies ‘effectively unavailable.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th

7

Cir. 2010). An administrative remedy becomes unavailable for purposes of exhaustion if prison

8

officials do not respond to properly filed grievances, or if they otherwise use affirmative

9

misconduct to thwart an inmate’s attempts to exhaust. See Nunez v. Duncan, 591 F.3d 1217,

10

1224, 1226 (9th Cir. 2010) (failure to exhaust excused where prisoner “took reasonable and

11

appropriate steps to exhaust his . . . claim and was precluded from exhaustion, not through his

12

own fault but by the Warden’s mistake.”).

13

In his opposition, plaintiff does not deny that he filed excessive appeals, but

14

claims that once an appeal is cancelled, he cannot appeal to the next level, apparently arguing

15

further remedies were unavailable. (Dkt. Nos. 80 at 24-25; 93 at 5.) Defendants contend this

16

appeal was screened out on three occasions because plaintiff failed to comply with regulations.

17

(Dkt. No. 83 at 4.)

18

The undersigned finds that plaintiff’s allegations fail to demonstrate that his

19

administrative remedies were effectively unavailable. First, the record reflects that plaintiff filed

20

numerous appeals, many of which challenged multiple perceived injustices. While some of the

21

facts relating to these grievances overlap, the grievances assert various allegations and requests

22

for relief. Responses were provided to many of these grievances, including several partial grants.

23

(Dkt. Nos. 1-1, 1-2 passim.)

24

Second, prison officials were entitled to disregard plaintiff’s grievances on the

25

basis that he filed excessive appeals. Pursuant to the provisions of Cal. Code Regs., tit. 15,

26

§ 3084.1 and 3084.6, an inmate may only submit one grievance every fourteen calendar days, and
17

1

the appeal may be rejected if an inmate files more than one non-emergency appeal within a

2

fourteen calendar day period. Id. Plaintiff’s response to the grievance reflects that he did not

3

challenge the alleged multiple filing of appeals; rather, he claimed that he had not violated the

4

seven day restriction.7 In the appeal, plaintiff complained of suffering back pain for fourteen

5

months, which did not constitute an emergency. Thus, prison officials were entitled to reject

6

plaintiff's grievances because his grievances exceeded the appeal maximum provided under Cal.

7

Code Regs., tit. 15, § 3084.6(b)(3). Plaintiff failed to demonstrate that defendants interfered with

8

his ability to exhaust his administrative remedies, or otherwise show that his administrative

9

remedies were effectively unavailable. Thus, plaintiff’s appeal SAC HC-11013531 cannot serve

10

to exhaust plaintiff’s claims as to defendant Dr. Ali.

11

2. Appeal Nos. SAC 10-10-10964 & SAC-10-10-11472

12

In both Appeal Nos. SAC 10-10-10964 and SAC-10-10-11472, plaintiff contends

13

that he did not refuse to attend the medical appointment for review of the appeals, but that

14

because he did not have a waist chain chrono, being cuffed in the back would have subjected him

15

to more pain. Thus, it appears plaintiff opted not to attend the medical appointment in order to

16

avoid such pain. The court will set forth the details and history of each appeal, and will then

17

analyze whether the appeals exhaust any of plaintiff’s claims against the medical defendants.

18

i. Appeal No. SAC 10-10-10964

19

On March 30, 2010, plaintiff submitted appeal, #10-10964, and sought a written

20

explanation for his unnecessary pain and suffering, and why it has taken over two months to get

21
22
23
24
25
26

7

The seven day time frame was changed to fourteen days by amendments to the
regulations on December 13, 2010, which became operative on January 28, 2011. The prior
regulation, to which plaintiff appeared to refer, stated that an inmate may only submit one
grievance within a seven-calendar-day period. Cal. Code Regs., tit. 15, § 3084.4(a). If an inmate
files more than one non-emergency appeal within a seven-calendar-day period, such submission
shall be considered excessive and those additional “excessive” grievances may be suspended.
Cal. Code Regs., tit. 15, § 3084.4(a)(1) (“When an appellant submits excessive appeals, the first
appeal received shall be processed normally and all subsequent non-emergency appeals filed
within the seven-calendar-day period by that individual shall be suspended.”)
18

1

some medical relief. (Dkt. No. 80 at 66; 1-1 at 22.) Plaintiff stated that on January 26, 2010,

2

plaintiff was ordered to cuff up in his cell, but once he cuffed up, his cellmate attacked him. (Id.)

3

Plaintiff stated he was unable to protect himself, and asked to be uncuffed or released, but was

4

denied. Plaintiff claimed he was being choked, and pressure was being placed on his back.

5

Eventually, the lieutenant came and ordered that plaintiff’s cell be opened. About two to three

6

days later, plaintiff began feeling severe back and neck pain. (Id. at 67; 24.) Plaintiff claimed he

7

had not gotten any medical treatment by March 30, 2010. Plaintiff stated that he was seen by

8

defendant Dr. Bobbala who did not offer plaintiff any help, but “punched” and “chopped”

9

plaintiff’s back, and then tried to bend plaintiff over, which was very painful. (Id.) Plaintiff

10

stated he was not provided adequate medical care for over two months, and was unable to sleep

11

most nights, or function without serious pain. (Id.)

12

The informal and formal levels of review were bypassed. The appeal was

13

cancelled at the first level based on plaintiff’s refusal to “come to the clinic on May 13, 2010, for

14

evaluation and for the 602-appeal interview.” (Dkt. No. 80 at 71.) A refusal of treatment form is

15

appended to the appeal, which states “refused MD line,” and indicates that plaintiff refused to

16

sign the form on May 13, 2010, and was witnessed by LVN Durago, and Correctional Officer R.

17

Culverson (Dkt. No. 80 at 69.)

18

On April 27, 2010/May 31, 2010, plaintiff filed an appeal to the second level,

19

stating he did not refuse to see the doctor, but was currently in administrative segregation and

20

could not just go to the doctor, but must be taken by staff. Plaintiff claimed that Correctional

21

Officer Culverson came to plaintiff’s cell to escort him to the doctor, but that Culverson knew

22

plaintiff suffered from severe back pain and could not cuff up from the back, and that plaintiff

23

did not have a medical chrono for cuffing up in the front or for waist chains, so Culverson

24

offered to escort plaintiff cuffed in the back, subjecting plaintiff to more pain, or refuse to see the

25

doctor. (Dkt. No. 80 at 74.) Plaintiff added that there could be no guarantee he would obtain

26

relief from the doctor if plaintiff went. (Id.) Plaintiff alleges that Culverson refused to allow
19

1

plaintiff to sign the refusal form, and “piled on a couple of his C/O worker’s signatures.” (Id.)

2

Plaintiff argued that it made no sense for plaintiff to refuse to see the doctor when he previously

3

put in fourteen different medical request slips, one medical appeal for not being seen, and several

4

SA-22 forms requesting the status of the medical appeal, to finally get a doctor’s appointment.

5

(Id.) Plaintiff alleged that Culverson and Dr. Wedell were attempting to undermine plaintiff’s

6

right to medical care, and his right to appeal. (Id.) Meanwhile, plaintiff alleged he had continued

7

pain and suffering. (Id.)

8
9
10

Plaintiff provided a copy of a May 31, 2010 letter he wrote to the Warden to
complain about the handling of the refusal of treatment form, that plaintiff had been in severe
pain for over four months, and had not been to the yard in two months. (Dkt. No. 80 at 76.)

11

On July 21, 2010, plaintiff was informed that his appeal was being returned for

12

“abuse of the appeal procedure: California Code of Regulations, Section 3084.4.” (Id. at 78.)

13

Plaintiff was informed that he could not appeal a screening issue. (Id.)

14

ii. Appeal No. SAC-10-10-11472

15

On May 25, 2010, plaintiff filed an appeal seeking to be seen by an outside doctor

16

at U.C. Davis Medical Center, and to have his neck and back pain addressed in a professional

17

manner. (Dkt. No. 80 at 80.) Plaintiff noted he was attacked on January 25, 2010, and during the

18

attack he felt a “snapping noise and a sharp pain” in his back, and that plaintiff’s neck and back

19

are stiff and sore. (Id.) Plaintiff added that at first he did not complain because he thought the

20

pain would go away, but it did not. (Id. at 80, 82.) Plaintiff alleged he had been seeking medical

21

care for the last four months. (Id. at 82.) Plaintiff claimed that he was seen by defendant Dr.

22

Bobbala in February, 2010, but that the doctor punched and chopped plaintiff’s back, while

23

asking, “does that hurt?,” and ended with the doctor’s attempt to bend plaintiff over, despite

24

plaintiff’s complaints of pain. (Id.) Plaintiff allegedly received no medication from Dr. Bobbala.

25

Plaintiff alleged that he continued putting in medical slips with no response. (Id.)

26

////
20

1

On March 30, 2010, plaintiff went down, and was unable to stand. Plaintiff was

2

carried by stretcher to B-medical to see Dr. Nangalama. Plaintiff stated that Dr. Nangalama gave

3

plaintiff 500 mg of salsalate which did nothing for plaintiff’s pain. On April 7 or 8, 2010,

4

plaintiff was seen by Dr. Wedell; plaintiff claimed the doctor was not listening, responded “no”

5

to every request plaintiff made, and informed plaintiff that he would not be receiving any pain

6

medications. (Id.) However, Dr. Wedell did order treatment for plaintiff’s back, but plaintiff had

7

not received any treatments for his back or neck. (Dkt. No. 80 at 83.) Plaintiff added that Dr.

8

Wedell told him the doctor would order staff to allow plaintiff to be handcuffed in the front, but

9

staff told plaintiff that was not true. (Id. at 83.) Dr. Wedell ordered plaintiff a seven day

10

prescription of 750 mg of methocarbamol. Plaintiff claimed he was suffering every day, and was

11

unable to go to yard since March 30, 2010, due to neck and back pains. (Id.) Plaintiff stated that

12

his back felt as though a knife was in it; it was stiff and sore all the time, and it hurt to bend, sit

13

and stand for too long. Also, with allergy season, it hurt plaintiff’s back and neck to sneeze.

14

Plaintiff claimed that medical staff would not prescribe plaintiff allergy medication. (Id.)

15
16
17

On June 9, 2010, plaintiff’s appeal was assigned to the Health Care Appeals
Office for a First Level response. (Dkt. No. 80 at 94.)
On June 16, 2010, plaintiff’s appeal was cancelled because plaintiff refused to

18

come down to the Medical Officer’s Line for his 602-appeal interview. Plaintiff was informed

19

that “all Administrative Remedies have been exhausted.” (Dkt. No. 80 at 84.) The refusal form,

20

dated June 24, 2010, stated that plaintiff refused MD line because plaintiff had no waist chain

21

chrono. (Id. at 86.) Plaintiff’s handwritten note on the form stated:

22
23
24
25
26

The handcuffs in the back causes me a lot of pain. In fact, it’s
difficult for me to stand or walk once the cuffs come off. I’ve tried
over and over again to explain this problem. I need the doctor to
find out why the cuffs inflame my back and neck the way it does.
It did not used to be this way. The only way I can see the doctor is
to cuff-up. Because I’m in ad-seg and the only way to get fixed is
to see the doctor but to see the doctor under these conditions is like
saying let me kick you in your back first and then you can see the
doctor.
21

1
2
3

(Dkt. No. 80 at 86.)
iii. Analysis
At bottom, plaintiff claims he needed a waist chain chrono in order to go to

4

medical without suffering undue pain from being cuffed from behind, and appears to contend this

5

should excuse him from having to exhaust his administrative remedies. However, the record

6

reflects that plaintiff was seen by defendant Dr. Bobbola in February of 2010. Plaintiff raised no

7

allegations as to whether he asked defendant Dr. Bobbola for a waist chain chrono at that time.

8

Plaintiff was seen by defendant Dr. Wedell on April 9, 2010, who told plaintiff he would need a

9

waist chain chrono. (Dkt. No. 49 at 10.) Plaintiff did not receive his medical chrono to wear a

10

waist chain until August 4, 2010. (Dkt. No. 1-2 at 28.) However, plaintiff points to no appeal

11

putting prison officials on notice, prior to April 9, 2010, that plaintiff suffered severe pain when

12

handcuffed from behind and needed a waist chain chrono. Plaintiff produced no appeal after the

13

April 9, 2010 appointment stating that despite defendant Dr. Wedell’s order, plaintiff had not yet

14

received such chrono. It wasn’t until November 5, 2010, in appeal SAC-10-10-12683, that

15

plaintiff also contended, in the initial grievance, that he was not provided a medical chrono to be

16

cuffed in the front or with waist chains, which appeared to interfere with his transport to physical

17

therapy. (Dkt. No. 63-5 at 12.)

18

Although plaintiff raised the issue of handcuffing behind his back in subsequent

19

objections to appeals SAC 10-10-10964 and SAC-10-10-11472, he did not raise the issue in the

20

initial grievance in appeal SAC 10-10-10964. In appeal SAC-10-10-11472, plaintiff recounted

21

the orders Dr. Wedell made at the April, 2010 appointment, stating that Dr. Wedell told him the

22

doctor would order staff to allow plaintiff to be handcuffed in the front, but staff told plaintiff

23

that was not true. (Dkt. No. 80 at 83.) Plaintiff did not include, in the action requested portion of

24

the appeal, a request that he be granted a waist chain chrono, or that staff comply with Dr.

25

Wedell’s order for a waist chain chrono. Moreover, it does not appear that plaintiff filed a

26

separate appeal raising the waist chain chrono issue after appeals SAC 10-10-10964 and
22

1

SAC-10-10-11472 were cancelled. The record reflects plaintiff was seen by defendant Dr.

2

Bobbola in February, and defendant Dr. Wedell in April, and presumably plaintiff was

3

transported to those appointments with his hands handcuffed from behind.8

4

The PLRA “does not require exhaustion when circumstances render

5

administrative remedies ‘effectively unavailable.’” Sapp, 623 F.3d at 822. An administrative

6

remedy becomes unavailable for purposes of exhaustion if prison officials do not respond to

7

properly filed grievances or if they otherwise use affirmative misconduct to thwart an inmate’s

8

attempts to exhaust. See Nunez, 591 F.3d at 1226; Brown, 422 F.3d at 943 n.18.

9

Defendants adduced evidence that appeals SAC 10-10-10964 and

10

SAC-10-10-11472 were cancelled because plaintiff would not be escorted to medical for the

11

appeal review. While plaintiff contends he had no choice but to refuse because he did not have a

12

waist chain chrono and would suffer pain if handcuffed from behind, plaintiff failed to

13

demonstrate he took steps to put prison officials on timely notice, prior to simply refusing to go

14

to medical, that he was in need of such a chrono, or that prison officials failed to provide one

15

after defendant Dr. Wedell ordered the chrono. While the court is sympathetic to plaintiff not

16

wanting to increase his pain by being handcuffed from behind, prison regulations require inmates

17

to have medical chronos when seeking to deviate from security procedure, and plaintiff failed to

18

demonstrate that he availed himself of the processes available to justify his refusal on two

19

occasions. While it was certainly plaintiff’s prerogative to opt not to be escorted to medical

20

under these conditions, by doing so he risked having his appeal cancelled. See Woodford, 548

21

U.S. at 88 (explaining that the PLRA requires proper exhaustion of administrative remedies,

22

which means that a prisoner must complete the administrative review process in accordance with

23

the applicable procedural rules as a precondition to bringing suit); see also Cal. Code Regs. tit.

24
25
26

8

In the June 24, 2010 refusal form, plaintiff claimed that being cuffed from behind did
not previously inflame his back and neck. (Dkt. No. 80 at 86.) However, plaintiff does not
indicate when this inflammation began.
23

1

15, § 3084.6(c)(8) (“An appeal may be cancelled” if “[t]he appellant refuses to be interviewed or

2

to cooperate with the reviewer.”)

3

Accordingly, the court finds that the circumstances surrounding appeals SAC

4

10-10-10964 and SAC-10-10-11472 did not render plaintiff’s administrative remedies effectively

5

unavailable.

6

F. Un-Numbered Appeals - Plaintiff’s Exhibit 9

7

Plaintiff argues that his August 18, 2010 and August 26, 2010 appeals, contained

8

in his exhibit 9 to his original complaint, demonstrate that plaintiff exhausted his administrative

9

remedies as to defendants Virga and McCarvel.9 (Dkt. No. 80 at 24.) Plaintiff contends he had a

10

difficult time obtaining a complete copy of the incident report, and once he finally obtained the

11

complete copy, his appeal was rejected as untimely.

12

a. August 26, 2010 Appeal

13

In the August 26, 2010 appeal, plaintiff filed an appeal stating that he had not

14

received the final copy of the CDC-115 or the 128-G classification chrono. (Dkt. No. 1-2 at 32.)

15

Plaintiff asked that he be given copies of those documents. Plaintiff does not discuss the January

16

26, 2010 incident, or allege facts pertinent to the instant claims against defendants Virga and

17

McCarvel. Thus, this appeal cannot serve to exhaust plaintiff’s claims as to defendants Virga

18

and McCarvel.

19

b. August 18, 2010 Appeal

20

In the August 18, 2010 appeal, plaintiff sought a rehearing of the RVR so he could

21

tell his side of the story. (Dkt. No. 1-2 at 27.) Plaintiff also sought a transfer, and “some medical

22

assistance for his back and nightmares, and an explanation why [he] could not be let out of the

23

cell before [his] injuries occurred.” (Id.) Plaintiff began describing the problem by stating he

24
25
26

9

Plaintiff also provided a copy of his August 18, 2010 appeal as Exhibit 5 to his
opposition, and a copy of his August 26, 2010 appeal as Exhibit 10 to his opposition. (Dkt. No.
80 at 38-41; 63-64.)
24

1

was issued a CDC 115, Log No. C-10-01-033 (“RVR”) on January 26, 2010. (Id.) Plaintiff

2

stated that he cannot wear handcuffs in the back, but did not receive his medical chrono to wear a

3

waist chain until August 4, 2010, so on July 3, 2010, the hearing lieutenant would not allow

4

plaintiff to use a waist chain. (Id. at 28.) Thus, plaintiff alleged he was not allowed to present a

5

defense. (Id.) On August 12, 2010, Officer A. Johnson gave plaintiff a 629-A SHU term

6

assessment worksheet, which plaintiff did not understand, and claimed that on July 7, 2010, a

7

classification hearing was held without his presence again because he did not have a medical

8

chrono for waist chains. Plaintiff claimed that because he was unable to attend the hearing, he

9

was not aware of the guilty finding until August 18, 2010. (Id.) Plaintiff alleged he still had not

10

received the final copy of the CDC 115 or the 128-G chrono for the July 7, 2010 classification

11

action.

12

Plaintiff then recounted the events of January 26, 2010, and alleged that defendant

13

McCarvel’s orders put plaintiff’s life in danger, and that his compliance with defendant

14

McCarvel’s order left plaintiff defenseless against inmate Wilson. (Dkt. No. 1-2 at 29.) Plaintiff

15

alleged that inmate Wilson suffers from a range of mental disorders, and had since been returned

16

to EOP housing and single cell status. Plaintiff stated that “classification knew or should have

17

known that Wilson could not be housed with [plaintiff].” (Dkt. No. 1-2 at 29.)

18

On August 31, 2010, plaintiff’s appeal was returned to plaintiff with a screening

19

form noting that plaintiff had not adequately completed the appeal form, and asking plaintiff to

20

attach the CDC 115 “After Completion of RVR.” (Dkt. No. 1-2 at 30.) The appeals coordinator

21

also noted that plaintiff’s “request for transfer and medical assistance require separate appeals;

22

please remove heading from appeal form or submit new appeal.” (Id.)

23

Plaintiff also provided the court with an inmate request for interview form in

24

which he sought the final copy of the CDC-115 dated January 26, 2010, Log No. C10-01-033,

25

and incident reported dated January 26, 2010, Log No. SAC-FAC-10-01-0059, as well as the

26

128-G for the 7-7-10 and 8-18-10 classifications. (Dkt. No. 1-2 at 31.) The form was initially
25

1

dated 8-19-10, but the “19" is crossed out, and “26" is written above. There are no marks

2

indicating the form was received by prison officials. (Id.)

3

On October 5, 2010, plaintiff sought transfer to a prison of his choice, and an

4

investigation into the contents of his appeal. Plaintiff alleged that in late February or early March

5

of 2010, Correctional Officer Scruggs issued plaintiff a CDCR incident report concerning the

6

January 26, 2010 incident, and after reading the report, plaintiff decided to mail the original copy

7

of the incident report out of the prison because he believed there would be “foul play” after he

8

filed an appeal. (Dkt. No. 1-2 at 40.) On July 1, 2010, plaintiff was issued a copy of the

9

Investigative Employee Report, related to the January 26, 2010 incident, and a copy of the

10

January 26, 2010 incident report. (Id. at 41.) However, upon closer inspection, plaintiff

11

determined the incident report was “fake,”10 and threw it onto the tier, but a correctional officer

12

returned it. The first two pages of the report had come loose, and plaintiff stored those pages in a

13

different location, but left the rest of the report on his desk. On August 25, 2010, plaintiff was

14

allegedly ordered out of his cell so the cable guy could fix the cable box, and had to leave his cell

15

for about an hour and a half. On September 30, 2010, a nondefendant correctional officer

16

delivered mail, handing plaintiff a large yellow envelope that was open. Plaintiff contended the

17

envelope contained a copy of the “fake” incident report that was sitting on plaintiff’s desk

18

because it was missing the first two pages. Plaintiff alleged this incident demonstrated an

19

attempted cover-up regarding the events of January 26, 2010. (Id. at 41-42.) Plaintiff named

20

numerous correctional officers in this appeal, but none of them are named defendants in this

21

action. Plaintiff did not name defendant McCarvel, or raise allegations concerning the specific

22

events of January 26, 2010, or regarding plaintiff’s failure to protect claim. (Dkt. No. 1-2 at 40-

23

42.)

24

////

25
26

10

Plaintiff did not explain in what way he believed the report to be “fake.”
26

1

On October 8, 2010, plaintiff’s October 5, 2010 appeal was screened out, stating

2

that plaintiff failed to adequately complete the appeal form, and that plaintiff was required to

3

attach a copy of his most recent CDC-128G regarding classification, and that requests for

4

transfers needed to be submitted on a different form. (Id. at 44.)

5

Plaintiff’s October 24, 2010 request for interview stated that plaintiff’s October 5,

6

2010 appeal was about staff taking legal documents out of his mail. (Dkt. No. 1-2 at 43.)

7

Subsequent requests and documents re-confirmed that plaintiff’s October 5, 2010 appeal was

8

about staff allegedly “stealing” legal documents out of plaintiff’s mail. (Id. at 47, 49, 50, 56, 58.)

9

An inmate who has “properly” availed himself of the state’s administrative

10

process through the highest available administrative level satisfies the exhaustion requirement.

11

Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005). That is, inmates must file their grievance

12

claims and appeals in the place, at the time, and in the manner the administrative rules require.

13

Woodford, 548 U.S. at 94; see, e.g., Cal. Code Regs., tit. 15, § 3084.2(c) (an initial grievance

14

must be submitted within fifteen working days of the event giving rise to the grievance). The

15

appeals coordinator may reject untimely grievances. Cal. Code Regs., tit. 15, § 3084.6(c). A

16

claim rejected as untimely or as otherwise procedurally defective remains unexhausted for PLRA

17

purposes. Woodford, 548 U.S. at 83-86, 90-91, 103 (defective claims or appeals rejected as

18

defective do not satisfy the exhaustion requirement, considering “the informality and relative

19

simplicity of prison grievance systems like California’s”). “The obligation to exhaust ‘available’

20

remedies persists as long as some remedy remains ‘available.’” Brown, 422 F.3d at 935, citing

21

Booth, 532 U.S. 731 (a prisoner must “press on to exhaust further levels of review” until he has

22

either received all “available” remedies at an intermediate level of review “or been reliably

23

informed by an administrator that no remedies are available”).

24

However, the Ninth Circuit has held California prison regulations “explicitly

25

create an exception to the timely filing requirement. If [a prisoner] was unable to file within the

26

fifteen-day filing period, his failure to file timely does not defeat his claim.” Marella v. Terhune,
27

1

568 F.3d 1024, 1027 (9th Cir. 2009). Nevertheless, [i]f a prisoner had full opportunity and

2

ability to file a grievance timely, but failed to do so, he has not properly exhausted his

3

administrative remedies.” Id. at 1028 (citing Woodford, 548 U.S. at 88).

4

Because the court previously found that appeal SAC-10-00226 exhausted

5

plaintiff’s claim as to defendant Virga, the court need not address whether plaintiff’s August 18,

6

2010 appeal exhausted plaintiff’s claim as to defendant Virga.

7

With regard to defendant McCarvel, it appears plaintiff was under the

8

misapprehension that he could not file an appeal concerning defendant McCarvel’s actions on

9

January 26, 2010, until the RVR was decided. Unfortunately, plaintiff was mistaken. Plaintiff’s

10

due process challenge to the RVR, as well as his challenge to the guilty finding, were issues

11

separate from plaintiff’s claim that defendant McCarvel failed to protect plaintiff from inmate

12

Wilson’s attack. The RVR alleged that plaintiff committed battery on his cellmate with a

13

weapon with serious bodily injury. (Dkt. No. 80 at 52.)

14

Here, defendant McCarvel responded to plaintiff’s cell on January 26, 2010, and

15

plaintiff alleges defendant McCarvel failed to protect plaintiff from inmate Wilson’s attack.

16

However, plaintiff did not file this appeal until August 18, 2010, claiming that defendant

17

McCarvel failed to protect plaintiff. Thus, plaintiff’s appeal was untimely under CDCR

18

regulations, as it was not presented fifteen working days after January 26, 2010. It appears that

19

after plaintiff was seen in the C Facility clinic for medical evaluation, he was re-housed into

20

administrative segregation pending investigation. (Dkt. No. 80 at 54.) Thus, it does not appear

21

plaintiff was prevented from filing an appeal alleging defendant McCarvel failed to protect

22

plaintiff.

23

However, prison officials did not screen out plaintiff’s August 18, 2010 appeal as

24

untimely. Rather, the appeals coordinator marked the box, noting plaintiff had not adequately

25

completed the appeal form or attached the property documents, and the box “CDC 115 After

26

Completion of RVR.” (Dkt. No. 1-2 at 30.) Although the RVR was completed on August 8,
28

1

2010 (dkt. no. 80 at 53), it was not entered into OBIS until August 18, 2010 (id. at 52), which

2

might explain the reference to “after completion of RVR.” However, the appeals coordinator

3

also noted that plaintiff’s “request for transfer and medical assistance require separate appeals;

4

please remove heading from appeal form or submit new appeal.” (Id.) It is a violation of

5

California Code of Regulations, Title 15, section 3084.2(a)(1) to file an appeal combining issues.

6

In the August 18, 2010 appeal, plaintiff raised multiple issues. Thus, plaintiff’s August 18, 2010

7

appeal was properly screened out, and cannot serve to exhaust plaintiff’s claim against defendant

8

McCarvel.

9

Plaintiff did not file a subsequent appeal challenging defendant McCarvel’s

10

actions on January 26, 2010. Thus, the court finds that plaintiff failed to exhaust his

11

administrative remedies as to defendant McCarvel.

12

G. State Law Claims

13

Defendants request that the court take judicial notice of the records and claims

14

contained in the files of the Victim Compensation and Government Claims Board (“VCGCB”).

15

(Dkt. No. 67.) Defendants provided a declaration from Eric Rivera, Custodian of Records for the

16

VCGCB, who reviewed, and appended copies of, plaintiff’s claim received on August 15, 2011.

17

(Dkt. No. 67-1 at 2-17.) Mr. Rivera determined that plaintiff’s claim was not accompanied by

18

the required filing fee, or an affidavit or request for waiver of the filing fee, and therefore the

19

claim was not accepted by the VCGCB as a government claim. (Id.) Defendants contend that

20

plaintiff’s state law claims should be dismissed on that basis.

21
22
23

Plaintiff believes that he did submit a fee waiver form, and states he will submit a
second fee waiver form as soon as possible. (Dkt. No. 80 at 21.)
Under the California Tort Claims Act (“CTCA”), set forth in California

24

Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages

25

against a public employee or entity unless the plaintiff first presented the claim to the California

26

Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board
29

1

acted on the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil

2

complaint for money or damages first be presented to and rejected by the pertinent public entity.”

3

Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995). The purpose of this requirement is “to

4

provide the public entity sufficient information to enable it to adequately investigate claims and

5

to settle them, if appropriate, without the expense of litigation.” City of San Jose v. Superior

6

Court, 12 Cal.3d 447, 455 (1974) (citations omitted). Compliance with this “claim presentation

7

requirement” constitutes an element of a cause of action for damages against a public entity or

8

official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244 (2004). Thus, in the state

9

courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation

10

requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

11

action.” Id. at 1239 (fn. omitted).

12

Consistently, federal courts require compliance with the CTCA for pendant state

13

law claims that seek damages against state public employees or entities. Willis v. Reddin, 418

14

F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470,

15

1477 (9th Cir. 1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C.

16

§ 1983, may proceed only if the claims were first presented to the state in compliance with the

17

claim presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621,

18

627 (9th Cir. 1988); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008).

19

To be timely, a claim must be presented to the VCGCB “not later than six months

20

after the accrual of the cause of action.” Cal. Govt. Code § 911.2. Should a claimant miss this

21

deadline, the claimant may file a written application for leave to file a late claim, within a year

22

after the accrual of the cause of action. Id., § 911.4. If the Board denies the application, the

23

notice of denial must include a warning to the claimant that no court action may be brought on

24

the claim unless the claimant first files a petition with the appropriate court requesting relief from

25

the claim presentation requirement, and obtains a court order granting such relief. Id., § 911.8.

26

Failure to obtain such relief bars any suit on the claim.
30

1

An individual who files a claim pursuant to the CTCA is charged with knowledge

2

of the applicable statute of limitations. See Hunter v. Los Angeles County, 262 Cal. App. 2d

3

820, 822 (1968) (“once a claimant has filed his claim, he demonstrates familiarity with the

4

statutory procedures governing his grievance, and can reasonably be charged with knowledge of

5

the time limitations that are part of that procedure”).

6

First, defendants’ request for judicial notice is granted. (Dkt. No 67.)

7

Second, it appears that plaintiff is correct. Review of the forms submitted by Mr.

8

Rivera reflect that plaintiff appended a completed affidavit for waiver of government claims

9

filing fee and financial information form, and was marked received on the same day as his first

10

claim, August 15, 2011, on form VCGCB-GC-0010 8/04, and bears the VCGCB claim number,

11

G599138, which was also written on the claim form. (Dkt. No. 67-1 at 6-7.)11 Thus, despite Mr.

12

Rivera’s declaration claiming that plaintiff failed to submit “an affidavit or request for waiver of

13

the filing fee,” it appears from the documents appended to Mr. Rivera’s declaration, that plaintiff

14

did submit such a form. Because the defendants’ motions to dismiss plaintiff’s state law claims

15

is based on plaintiff’s alleged failure to comply with the claim presentation requirements of the

16

California Government Claims Act, and the declaration upon which they rely appears internally

17

inconsistent with the exhibits appended thereto, the court recommends that the motions to

18

dismiss plaintiff’s state law claims be denied without prejudice should defendants be able to

19

clarify the inconsistency or address the timeliness or substance of plaintiff’s claim.12

20
21
22
23
24
25
26

11

Mr. Rivera similarly declares that plaintiff’s second, unrelated, claim G604262 was not
accompanied by the filing fee or an affidavit or request for waiver of the filing fee, but the
appended documents provide a copy of the completed affidavit/waiver form signed by plaintiff,
received by the VCGCB on the same day as the claim, and bearing the same claim number. (Dkt.
No. 67-1 at 8-13.)
12

In his opposition, plaintiff complains that defendants did not inform plaintiff that there
was a problem with his claim form, and that if there was a problem, the defendants should have
returned plaintiff’s application with an explanation for why plaintiff’s application could not be
processed. (Dkt. No. 80 at 14-15.) However, the VCGCB is not part of the CDCR, and
defendants are under no such obligation.
31

1

IV. Conclusion

2
3

In accordance with the above, IT IS HEREBY ORDERED that defendants’
request for judicial notice is granted (dkt. no 67); and

4

IT IS RECOMMENDED that:

5

1. Defendants’ motions to dismiss (dkt. nos. 63 & 84) be granted in part, and

6

denied in part, as follows:

7
8

a. Defendants’ motion to dismiss plaintiff’s failure to protect claims as to
defendants Elston, Virga, and Dr. Chen be denied;

9

b. Defendants’ motion to dismiss plaintiff’s Eighth Amendment claims as

10

to defendants Dr. Wedell and Dr. Ali be denied as to plaintiff’s claims that he was not timely

11

provided physical therapy or a waist chain chrono;

12
13

c. Defendants’ motion to dismiss plaintiff’s state law claims be denied
without prejudice; and

14

d. In all other respects, defendants’ motion to dismiss be granted based on

15

plaintiff’s failure to exhaust his claims as to defendants McCarvel, Dr. Bobbala, Dr. Nangalama,

16

Dr. Dhillon, and Dr. Duc.

17

2. Defendants Phelps, Elston, Virga, Dr. Chen, Dr. Wedell, and Dr. Ali be

18

directed to file an answer within fourteen days from any district court order adopting the instant

19

findings and recommendations.

20

These findings and recommendations are submitted to the United States District

21

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

22

days after being served with these findings and recommendations, any party may file written

23

objections with the court and serve a copy on all parties. Such a document should be captioned

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

25

objections shall be filed and served within fourteen days after service of the objections. The

26

////
32

1

parties are advised that failure to file objections within the specified time may waive the right to

2

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

DATED: March 6, 2013

4
5

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

6
7

asbe2462.mtd

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
33