Jamison v. Gummi et al

Filing 59

ORDER signed by Magistrate Judge Allison Claire on 11/04/14 ordering defendant's motion for summary judgment regarding exhaustion of administrative remedies 47 is granted to the extent it asserts that appeal 2095 is not exhausted and otherwise denied. Plaintiff's cross-motion for summary judgment regarding exhaustion of administrative remedies 53 is granted to the extent it asserts that exhaustion of appeal 1775 is excused, and otherwise denied. Accordingly, this lawsuit may proc eed on plaintiff's claim that the defendant violated plaintiff's Eighth Amendment rights by (a) rescinding plaintiff's ADA status, (b) refusing to order needed surgery, (c) refusing to recommend plaintiff for a medical facility capable of handling his medical needs, and (d) refusing him needed pain management; and plaintiff's motion for a mail delivery order 46 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY JAMISON,

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Plaintiff,

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No. 2:13-cv-1705 AC P

v.

ORDER

SAMBRAJYA PALAGUMMI,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed

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pursuant to 42 U.S.C. § 1983. The sole remaining defendant in this action is Sambrajya

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Palagummi, M.D.1 This action is proceeding on the Eighth Amendment claim contained in

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plaintiff’s original complaint, filed on August 19, 2004. Both parties have consented to the

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jurisdiction of the Magistrate Judge. ECF Nos. 6 & 21.
Plaintiff’s Eighth Amendment claim alleges that defendant was deliberately indifferent to

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plaintiff’s serious medical needs. Specifically, plaintiff alleges that defendant withheld needed

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treatment for plaintiff’s needs by (1) rescinding his ADA status, (2) refusing to order surgery for

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On October 18, 2013, the court dismissed all other defendants. Plaintiff was then given the
option of proceeding against Dr. Palagummi alone, or attempting to amend his complaint. ECF
No. 8. Plaintiff elected to proceed against Dr. Palagummi alone. See ECF No. 11 (Notice of
Submission of Documents for service of process on Dr. Palagummi).

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plaintiff, (3) refusing to provide plaintiff with “soft shoes insoles,” (4) refusing to have plaintiff

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transferred to a medical facility; and (5) refusing to provide plaintiff with proper pain

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management. Complaint (ECF No. 1) at 4-5. Plaintiff seeks relief in the form of monetary and

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punitive damages as well as injunctive relief. See id., at 4.
I. FACTUAL BACKGROUND2

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Plaintiff is a disabled prisoner living with a seizure disorder and chronic pain. Complaint

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at 4-5. Prior to June 6, 2013, plaintiff was granted “ADA status,” used a wheelchair, and took

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anti-seizure and pain medication. Id. On or about June 6, 2013, defendant Dr. Palagummi

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revoked plaintiff’s ADA status and took away his wheelchair. Id. She also refused to re-order

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necessary surgery and soft shoes, and refused to arrange for plaintiff to be transferred to a medical

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facility where he could get needed physical therapy. Id. As a result, plaintiff was left in

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continuous pain and without proper treatment of his medical needs. Id.

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On June 11, 2013, plaintiff wrote a letter to “Dr. Kim” complaining about his treatment by

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Dr. Palagummi, asking to have his ADA status restored, to be put back on his seizure and pain

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medication, to get his operation, to be assigned another primary care doctor, and to be assigned to

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the medical facility at Vacaville. Declaration of Debbie Luyster (“Luyster Decl.”) (ECF

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No. 47-4), Exhbit F (“Exh. F”) (ECF No. 47-6) at 2-5.3 The prison authorities treated this letter

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as an “appeal” under the prison’s regulations, but “cancelled” it – refused to accept the appeal –

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because it was not on the proper form, California Department of Corrections and Rehabilitation

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(“CDCR”) Form 602. Luyster Decl. ¶ 6. Over the course of the next several months, plaintiff

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submitted many internal appeals on Form 602, all complaining about Dr. Palagummi’s treatment

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of him or otherwise asking for treatment of his medical needs. Exhs. G-P. None of these appeals

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was “exhausted” by merits review at the last (third) level of review. See Luyster Decl. ¶ 5 (chart).

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On August 19, 2013, plaintiff filed this lawsuit, complaining about his treatment by

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The following background facts are undisputed for purposes of this summary judgment motion
only, and are based upon the allegations in, and reasonable inferences from, plaintiff’s verified
complaint (ECF No. 1), and the uncontested factual assertions in the Declaration of Debbie
Luyster (ECF No. 47-4).
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All references to “Exh. ___” are to exhibits of the Luyster Declaration.

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Dr. Palagummi (and others), and asking for injunctive relief and punitive damages. Defendant

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moves for summary judgment, and plaintiff cross-moves.4 Plaintiff also moves for an order

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directing CDCR to deliver his legal mail promptly. ECF No. 46.5

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II. DEFENDANT’S SUMMARY JUDGMENT MOTION

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Defendant moves for summary judgment solely on the ground that plaintiff failed to

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exhaust his administrative remedies within the prison system before filing suit, as required by the

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Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ECF No. 47. Plaintiff opposes the motion,

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and cross-moves for summary judgment, on the ground that his administrative appeal was not

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acted upon for eight (8) months. ECF No. 53. The court interprets this to be an argument that

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plaintiff was prevented from exhausting his administrative remedies by the prison’s failure to act

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timely on his appeal.

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For the reasons that follow, the court rejects both arguments. Based upon the undisputed

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facts submitted by defendant, and not contested by plaintiff, the court finds that, with one

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exception, plaintiff was excused from exhausting his administrative appeals. By failing to

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comply with the governing regulations, the prison’s appeals office made it effectively impossible

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for plaintiff to exhaust his administrative remedies. See Albino v. Paca, 747 F.3d 1162 (9th Cir.)

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(en banc), cert. denied, 574 U.S. ___ (October 20, 2014) (No. 14-82). The court will therefore

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grant plaintiff’s motion for summary judgment on the administrative exhaustion issue.

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A. Legal Standard for Rule 56 (Summary Judgment) Motions

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Defendant contemporaneously provided plaintiff with notice of the requirements for opposing a
motion pursuant to Fed. R. Civ. P. 56. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)
(movant may provide notice) (en banc), cert. denied, 527 U.S. 1035 (1999), Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988) (district court must provide notice), and Woods v.
Carey, 684 F.3d 934 (9th Cir. 2012) (notice must be served concurrently with the motion). See
Defendant’s Rand Notice to Plaintiff (ECF No. 47-2).
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CDCR is not a party to this suit, so the court will not issue an order to that entity in this lawsuit.
However, if plaintiff asserts that he has been prejudiced by delayed mail, he should so advise the
court so that the court can grant appropriate time extensions, consider motions for
reconsideration, or take whatever other action is necessary and appropriate to avoid any prejudice.

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Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of

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proving the absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144

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v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010)

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(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish

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this by “citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admission, interrogatory answers, or other materials” or by showing

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that such materials “do not establish the absence or presence of a genuine dispute, or that the

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adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ.

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P. 56(c)(1)(A), (B).
When the non-moving party bears the burden of proof at trial, “the moving party need

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only prove that there is an absence of evidence to support the nonmoving party's case.” Oracle

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Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party's case, and on which that party will bear the burden of proof at trial. See

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Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

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nonmoving party's case necessarily renders all other facts immaterial.” Id. In such a

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circumstance, summary judgment should be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment ... is satisfied.” Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

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admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

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Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. Moreover, “[a] Plaintiff's verified complaint

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may be considered as an affidavit in opposition to summary judgment if it is based on personal
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knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122,

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1132 n.14 (9th Cir. 2000) (en banc).6

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The opposing party must demonstrate that the fact in contention is material, i.e., a fact that

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might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809

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F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers,

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Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U .S. at 587 (citations omitted).

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In evaluating the evidence to determine whether there is a genuine issue of fact,” the court

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draws “all reasonable inferences supported by the evidence in favor of the non-moving party.”

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Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam).

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It is the opposing party's obligation to produce a factual predicate from which the inference may

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be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

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aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

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party “must do more than simply show that there is some metaphysical doubt as to the material

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facts. … Where the record taken as a whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

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omitted).

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In applying these rules, district courts must “construe liberally motion papers and
pleadings filed by pro se inmates and … avoid applying summary judgment rules strictly.”
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Plaintiff filed a verified First Amended Complaint in this case. See ECF No. 1.

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Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, “[if] a party fails to properly

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support an assertion of fact or fails to properly address another party's assertion of fact, as

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required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion

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….” Fed. R. Civ. P. 56(e)(2).

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B. Legal Standards for Exhaustion
1. Prison Litigation Reform Act
Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are

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subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Under the PLRA,

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“[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or

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any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v.

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Nussle, 534 U.S. 516, 520 (2002) (Ҥ 1997e(a)'s exhaustion requirement applies to all prisoners

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seeking redress for prison circumstances or occurrences”). “The PLRA mandates that inmates

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exhaust all available administrative remedies before filing ‘any suit challenging prison

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conditions,’ including, but not limited to, suits under § 1983.” Albino, 747 F.3d at 1171 (quoting

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Woodford v. Ngo, 548 U.S. 81, 85 (2006)).

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Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones

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v. Bock, 549 U.S. 199, 204 (2007). “[T]he defendant's burden is to prove that there was an

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available administrative remedy, and that the prisoner did not exhaust that available remedy.”

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Albino, 747 F.3d at 1172. “[T]here can be no ‘absence of exhaustion’ unless some relief remains

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available.” Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005). Therefore, the defendant must

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produce evidence showing that a remedy is available “as a practical matter,” that is, it must be

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“capable of use; at hand.” Albino, 747 F.3d at 1171.

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In reviewing the evidence, the court will consider, among other things, “information

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provided to the prisoner concerning the operation of the grievance procedure.” Brown, 422 F.3d

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at 937. Such evidence “informs our determination of whether relief was, as a practical matter,

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‘available.’” Id. Thus, misleading – or blatantly incorrect – instructions from prison officials on

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how to exhaust the appeal, especially when the instructions prevent exhaustion, can also excuse
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the prisoner’s exhaustion:

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We have considered in several PLRA cases whether an
administrative remedy was “available.” In Nunez v. Duncan, 591
F.3d 1217 (9th Cir. 2010), we held that where a prison warden
incorrectly implied that an inmate needed access to a nearly
unobtainable prison policy in order to bring a timely administrative
appeal, “the Warden's mistake rendered Nunez's administrative
remedies effectively unavailable.” In Sapp v. Kimbrell, 623 F.3d
813 (9th Cir. 2010), we held that where prison officials declined to
reach the merits of a particular grievance “for reasons inconsistent
with or unsupported by applicable regulations,” administrative
remedies were “effectively unavailable.” In Marella v. Terhune,
568 F.3d 1024 (9th Cir. 2009) (per curiam), we reversed a district
court's dismissal of a PLRA case for failure to exhaust because the
inmate did not have access to the necessary grievance forms within
the prison's time limits for filing a grievance. We also noted that
Marella was not required to exhaust a remedy that he had been
reliably informed was not available to him.

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Albino, 747 at 1173 (page citations omitted).

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2. California Regulations Governing “Exhaustion” of Administrative Remedies

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Exhaustion requires that the prisoner complete the administrative review process in

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accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006). This

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review process is set forth in California regulations. Those regulations allow a prisoner to

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“appeal” any action or inaction by prison staff that has “a material adverse effect upon his or her

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health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). An inmate must file the initial

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appeal within 30 working days of the action being appealed, and he must file each administrative

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appeal within 30 working days of receiving an adverse decision at a lower level. Id. § 3084.8(b).

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The appeal process is initiated by the inmate’s filing a “Form 602,” the “Inmate/Parolee

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Appeal Form,” “to describe the specific issue under appeal and the relief requested.” Id.

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§ 3084.2(a).7 Each prison is required to have an “appeals coordinator” whose job is to “screen all

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appeals prior to acceptance and assignment for review.” Id. § 3084.5(b); Menefield v. Foreman,

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___ Cal. Rptr. 3d ___, 2014 WL 5174561, at *3 (5th Dist. 2014).

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The appeals coordinator may refuse to accept an appeal, and she does so either by
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“In this context, the term ‘appeal’ includes the initial inmate grievance, which is submitted by
the inmate using CDCR Form 602.” Menefield v. Foreman, ___ Cal. Rptr. 3d ___, 2014 WL
5174561, at *3 (5th Dist. 2014).

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“rejecting” or “canceling” it. Cal. Code Regs. tit. 15, § 3084.6(a) (“Appeals may be rejected

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pursuant to subsection 3084.6(b), or cancelled pursuant to subsection 3084.6(c), as determined by

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the appeals coordinator”). According to the regulations, “a cancellation or rejection decision does

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not exhaust administrative remedies.” Id., 3084.1(b).

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An appeal may be “rejected” for several reasons, such as, “exceed[ing] the allowable

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number of appeals filed in a 14 calendar day period,” or failure to submit the appeal “on the

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departmentally approved appeal forms.” Id. § 3084.6(b). Whenever an appeal is “rejected,” the

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appeals coordinator is required to “provide clear and sufficient instructions regarding further

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actions the inmate . . . must take to qualify the appeal for processing.” Id., § 3084.6(a)(1).

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An appeal may be “cancelled” for several other reasons, such as, it “duplicates an

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[inmate’s] . . . previous appeal upon which a decision has been rendered or is pending.” Id.,

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§ 3084.6(c).

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reason(s) for the . . . cancellation.” Id., § 3084.5(b)(3).8

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Whenever an appeal is “cancelled,” the prisoner “shall be notified of the specific

If the appeals coordinator allows an appeal to go forward, the inmate must pursue it

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through the third level of review before it is deemed “exhausted.” Id. § 3084.1(b) (“all appeals

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are subject to a third level of review, as described in section 3084.7, before administrative

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remedies are deemed exhausted”).

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C. Arguments of the Parties

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1. Defendant

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Defendant has submitted evidence that, she argues, shows that plaintiff did not exhaust his

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administrative remedies prior to filing this lawsuit, even though exhaustion through four levels of

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administrative review is required by Cal. Code Regs., tit. 15, § 3084.5.9 According to defendant,

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There is no requirement to tell the prisoner how to correct the “cancelled” appeal because, as
discussed below, cancellations refer to defects that cannot be corrected. Therefore, the only way
for a prisoner to proceed with a cancelled appeal, is to show that the cancellation was made in
error (or that new information shows that the appeal may now be processed). Cal. Code Regs.
tit. 15, § 3084.6(a)(3) (“a cancelled appeal may later be accepted if a determination is made that
cancellation was made in error or new information is received which makes the appeal eligible for
further review”) (emphasis added).
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In fact, effective January 28, 2011, the regulations defendant cites were repealed, and replaced
(continued…)
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each of plaintiff’s appeals was “rejected” or “cancelled.” Instead of complying with the

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instructions he received on how to correct the problems so that he could administratively exhaust

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his remedies, plaintiff simply filed more appeals, and then filed this lawsuit. Defendant argues

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that Ninth Circuit law does not permit plaintiff to file this lawsuit prior to fully exhausting his

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administrative remedies.

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2. Plaintiff
Plaintiff has submitted a Memorandum in Opposition to defendant’s summary judgment

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motion. ECF No. 53. At the outset the court notes that plaintiff has failed to comply with Fed. R.

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Civ. P. 56(c)(1) (A), which requires that “a party asserting that a fact . . . is genuinely disputed

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must support the assertion by . . . citing to particular parts of materials in the record . . . .”

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Plaintiff has also failed to file a separate document disputing defendant’s statement of undisputed

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facts, as required by E.D. Cal. R. (“Local Rule”) 260(b).

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It is well-established that the pleadings of pro se litigants are held to “less stringent

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standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972)

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(per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of procedure that

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govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on another

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ground by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). However, the

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unrepresented prisoners' choice to proceed without counsel “is less than voluntary” and they are

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subject to the “handicaps . . . detention necessarily imposes upon a litigant,” such as “limited

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access to legal materials” as well as “sources of proof.” Jacobsen v. Filler, 790 F.2d 1362,

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1364-65 & n.4 (9th Cir. 1986). Inmate litigants, therefore, should not be held to a standard of

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“strict literalness” with respect to the requirements of the summary judgment rule. Id.

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The court is mindful of the Ninth Circuit's more overarching caution in this context, as

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noted above, that district courts are to “construe liberally motion papers and pleadings filed by

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with regulations that require only three levels of administrative review. See Cal. Code Regs., tit.
15, § 3084.7(a), (b) & (c), and Historical Note No. 17. Informal review still exists as an option,
but is no longer part of the exhaustion process. See id., § 3086 (“Request for Interview, Item or
Service”).

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pro se inmates and . . . avoid applying summary judgment rules strictly.” Ponder, 611 F.3d

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at 1150. Accordingly, the court considers the record before it in its entirety despite plaintiff's

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failure to be in strict compliance with the applicable rules. However, only those assertions in the

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opposition which have evidentiary support will be considered.

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Plaintiff asserts that “[t]he defendants did not respond to the 1st level of appeals for

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approx. 8 months, 7 months past the 30 day window and 4 months past the window, had the[y]

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complied with policy and answered within 30 days per level which they did not.” ECF No. 53 at

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1-2. However, plaintiff does not identify which of his several appeals were not timely responded

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to, and the court is able to identify from the record only one appeal that appears to have not been

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timely responded to. Plaintiff does not otherwise contest any of the specific factual assertions

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made by defendant.

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D. Analysis of Exhaustion Issue

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Defendant identifies several attempts plaintiff made to exhaust his administrative

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remedies, and asserts that plaintiff failed to exhaust each one.

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1. Exhaustion of Appeal 1775 Is Excused

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a. Undisputed Facts

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On June 11, 2013, plaintiff wrote a letter to “Dr. Kim” complaining about his treatment by

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Dr. Palagummi, asking to have his ADA status restored, to be put back on his seizure and pain

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medication, to have his operation, to be assigned another primary care doctor, and to be assigned

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to the medical facility at Vacaville because he is transgender. Exh. F. The appeals office labeled

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this letter DVI-HC-13041775 (“Appeal 1775”), and treated it as an appeal.10 Defendant S.

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The California regulations provide that “[i]nmates . . . may request . . . items and services via a
written request process.” Cal. Code Regs. tit. 15, § 3086. This is an informal process, separate
from the formal Form 602 process, and it does not exhaust administrative remedies. Id.,
§ 3086(i). For reasons defendant does not explain (but possibly because the appeals office
processed the letter under the former regulations), defendants treated this apparent attempt to
engage the separate informal process like a formal appeal, and then “cancelled” it because it was
not on the formal appeals form, Form 602. However, since the prison treated it as an appeal, and
neither side suggests that it should have been treated differently, the court will accept defendant’s
representation that it was an appeal, subject to exhaustion.

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Palagummi, M.D.’s Separate Statement of Undisputed Material Facts in Support of Motion for

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Summary Judgment (“Facts”) ¶¶ 4-5.

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Appeal 1775 contains sufficient notice of four of the five factual predicates of plaintiff’s

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Section 1983 claim: that his ADA status was rescinded; that he has not received needed surgery;

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that he has not been assigned to a medical facility where his medical needs can be treated; and

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that he has been denied needed pain management, including medication. Accordingly, if plaintiff

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properly exhausted this appeal, or is excused from doing so, he may proceed with the claim in this

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court.

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On June 27, 2013, the appeals office notified plaintiff that his appeal was “cancelled” at

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the first level of review, because it was not on the approved form. Luyster Decl. ¶ 6. The health

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care appeals coordinator asserts, under oath, that a cancellation letter was sent to plaintiff, even

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though it cannot be located and is not a part of the record here. Luyster Decl. ¶ 6. Plaintiff does

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not dispute the assertion that a cancellation letter was sent to him.

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b. Exhaustion

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The CDCR regulations provide two, separate ways the appeals coordinator can refuse to

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accept an appeal: she can “reject” the appeal, or she can “cancel” it. Cal. Code Regs. tit. 15,

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§ 3084.6(a) (“Appeals may be rejected pursuant to subsection 3084.6(b), or cancelled pursuant to

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subsection 3084.6(c), as determined by the appeals coordinator”).

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The appeal can be “rejected” if, as here, it is submitted on the wrong form. Id.,

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§§ 3084.2(a) (“The appellant shall use a CDCR Form 602 . . . to describe the specific issue under

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appeal and the relief requested”), and 3084.6(b)(14) (an appeal may be rejected if “[t]he inmate

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. . . has not submitted his/her appeal on the departmentally approved appeal forms”). Upon

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“rejection” of his appeal, the inmate can re-submit the appeal “if the reason noted for the rejection

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is corrected and the appeal is returned by the inmate . . . within 30 calendar days of rejection.”

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Id., § 3084.6(a)(2) (emphasis added). Re-submission is possible, because the grounds for

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“rejection” of an appeal are things that can be corrected by the inmate. For example, the inmate

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can submit the exact same appeal on the correct form, he can remove obscene language from the

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appeal, he can add supporting documentation to the appeal, and so on.11

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“Cancellation,” on the other hand, is reserved for those appeals which the inmate cannot

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simply correct. For example, an appeal can be cancelled if the action complained of “is not

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within the jurisdiction” of the CDCR, or the appeal is a duplicate of an appeal that is already

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pending. See id., § 3084.6(b)(1) & (2). Upon “cancellation” of the appeal, the inmate’s only

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recourse, if he still wishes to pursue it, is to show that the reason given for the cancellation was

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inaccurate or erroneous, or that “new information” now makes it eligible for review. See id.,

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3084.6(a)(3) (cancelled appeal may later be accepted “if a determination is made that cancellation

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was made in error or new information is received which makes the appeal eligible for further

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review”).

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As noted, the appeals coordinator notified plaintiff that Appeal 1775 was “cancelled”

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because it was submitted on the wrong form. See Luyster Decl. ¶ 6. Although the cancellation

13

letter for Appeal 1775 is not in the record, the cancellation letters for several other appeals are,

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and contain identical boilerplate language regarding how plaintiff can proceed to exhaust his

15

appeal. The appeals coordinator gives no indication that this boilerplate language differed from

16

letter to letter, and therefore the court infers that the letter she sent for Appeal 1775 contained the

17

same boilerplate. The cancellation letter states:

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This screening action may not be appealed unless you allege that
the above reasons(s) is inaccurate.

19
20

See Exh. I (ECF No. 47-7) at 2 (emphasis added); see also, Exh. K (ECF No. 47-9) at 2, Exh. M

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(Exh. 47-10) at 2, and Exh. P (ECF No. 47-12) at 2. This instruction was wrong, and it

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effectively blocked plaintiff from exhausting this appeal.

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First, it was wrong because submission of an appeal on the wrong form is the type of

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mistake that an inmate can correct simply by re-submitting the appeal on the correct form. That

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is why it is listed under the grounds for “rejecting” an appeal. Cal. Code Regs. tit. 15,

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11

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The appeal can be “rejected” if, among other reasons, it is on the wrong form, contains
obscene language, or fails to attach required documentation. Cal. Code Regs. tit. 15, § 3084.6(4),
(7) & (14).

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12

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§ 3084.6(b)(14). There is no provision in the regulation for “cancelling” an appeal on the

2

grounds that it is on the wrong form.

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Second, the cancellation effectively blocked exhaustion, because the only way for plaintiff

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to proceed, according to the letter, was to show that the reason for the screening action was

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“inaccurate.” § 3084.6(a)(3). If the appeals coordinator had instead followed the CDCR

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regulations, and given plaintiff the instruction appropriate for a “wrong form” screening, plaintiff

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would have been told that he could “correct” his error by simply re-submitting the exact same

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appeal, but this time on Form 602. See id., §§ 3084.6(a)(1) (if the appeal is rejected, “the appeals

9

coordinator shall provide clear and sufficient instructions regarding further actions the inmate or

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parolee must take to qualify the appeal for processing”) and (a)(2) (“rejected” appeal may be re-

11

submitted “if the reason noted for the rejection is corrected and the appeal is returned by the

12

inmate . . . within 30 calendar days of rejection”).

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Instead, plaintiff was told, incorrectly, that he could not appeal unless he showed that the

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reason for the screening – “wrong form” – was “inaccurate.” But the reason for the screening

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was accurate, in that plaintiff’s appeal was not on the required 602 form. In short, while it was

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appropriate to screen out plaintiff’s appeal, the appeals coordinator erred by giving plaintiff an

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impossible task – show that the appeal was on the correct form – as the only means of continuing

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with his appeal, rather than instructing him to simply re-submit his appeal on the correct form.

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Further, it is clear that plaintiff could have exhausted this appeal had he been properly instructed.

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All that was required was for him to re-submit the claim on the proper form, at which point it

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could have gone through all three levels of review. Moreover, the letter itself put the prison

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authorities on notice of what plaintiff is complaining about in this lawsuit. See Griffin v. Arpaio,

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557 F.3d 1117, 1120 (9th Cir. 2009) (“‘a grievance suffices if it alerts the prison to the nature of

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the wrong for which redress is sought’”) (quoting Strong v. David, 297 F.3d 646, 650 (7th

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Cir. 2002)).

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Because the misleading instruction plaintiff received effectively precluded him from

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exhausting his remedies, exhaustion of this appeal is excused. See Nunez v. Duncan, 591 F.3d

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1217, 1226 (9th Cir. 2010) (“the Warden's mistake” which plaintiff reasonably believed to be an
13

1

instruction – although erroneous – on how to exhaust his appeal, “rendered Nunez's

2

administrative remedies effectively unavailable”).

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2. Appeals 1717, 1718, 1772, 1781, 1782, 1932 and 2023

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Plaintiff submitted seven (7) appeals from approximately June 20, 2013 to July 26, 2013.

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They are Appeals 1717 (ECF No. 47-6 at 22-23), 1718 (ECF No. 47-6 at 11-19), 1772 (ECF

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No. 47-8 at 2-7), 1781 (ECF No. 47-7 at 3-7), 1782 (ECF No. 47-9 at 3-6), 1932 (ECF No. 47-9

7

at 9-10) and 2023 (ECF No. 47-10 at 4-9). None of these provided notice of any conduct at issue

8

in this lawsuit that had not previously been addressed in Appeal 1775. Accordingly, it is

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unnecessary to address whether or not these appeals were properly exhausted.

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3. Appeal 2095 was not exhausted nor was exhaustion excused

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a. Undisputed facts

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On August 7, 2013, plaintiff submitted a Patient/Inmate Health Care Appeal on Form 602.

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Luyster Decl., Exhibit P (“Exh. P”) (ECF No. 47-12 at 2-6). This appeal was labelled DVI-HC-

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13042095 (“Appeal 2095”). Plaintiff requested that this appeal be handled as an “emergency

15

appeal.” Exh. P. at 3.

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This appeal complained that Dr. Palagummi rescinded plaintiff’s ADA status “out of

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spite.” Plaintiff requested the restoration of his ADA status, and sought soft shoes, more suitable

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pain medication, and surgery. This appeal is the only one which contains the additional factual

19

predicate relating to plaintiff’s request for “soft shoes.”12 The appeal was received on August 8,

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2013. Id., at 3.

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22

Over four months later, on December 19, 2013, the appeal was “cancelled” at the First
Level of review, on the grounds that it was duplicative. Exh. P at 2.

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b. Exhaustion

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The Court need not examine whether the appeal was actually duplicative (nor address the

25
12

26
27

Plaintiff quite possibly complains of other things, and makes additional requests, but the court
is unable to read the rest of the form. The copy submitted by defendant has insufficient contrast
between the writing and the underlying paper to be deciphered. See Exh. P at 2 & 4. It does not
matter, however, because this appeal was not exhausted.

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14

1

failure to respond to the appeal within 30 days), because it is clear that plaintiff failed to exhaust

2

this claim. Plaintiff filed this lawsuit just 22 days after he submitted Appeal 2095, while the

3

appeal was still pending in the appeals office at the First Level of review.13 It is therefore plain

4

from the face of the complaint and the materials submitted in support of summary judgment, that

5

plaintiff did not exhaust this appeal prior to filing suit. See McKinney v. Carey, 311 F.3d 1198

6

(9th Cir. 2002) (per curiam) (the exhaustion requirement is “mandatory,” and “clearly

7

contemplates exhaustion prior to the commencement of the action as an indispensable

8

requirement”). Accordingly, the court finds that no exhausted or excused appeal put defendant

9

sufficiently on notice of the portion of his Section 1983 claim that relates to his request for “soft

10

shoes.”

11

III. CONCLUSION

12

Plaintiff is excused from exhausting Appeal 1775. This appeal put defendant on sufficient

13

notice that plaintiff claims an Eighth Amendment violation based upon defendant’s alleged

14

conduct in rescinding his ADA status, refusing to order surgery for plaintiff, refusing to

15

recommend plaintiff for a medical facility and refusing to provide plaintiff with proper pain

16

management.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1.

Defendant’s motion for summary judgment regarding exhaustion of administrative

19

remedies (ECF No. 47), is GRANTED to the extent it asserts that Appeal 2095 is not exhausted,

20

and otherwise DENIED;

21

2.

Plaintiff’s cross-motion for summary judgment regarding exhaustion of

22

administrative remedies (ECF No. 53), is GRANTED to the extent it asserts that exhaustion of

23

Appeal 1775 is excused, and otherwise DENIED;

24

3.

Accordingly, this lawsuit may proceed on plaintiff’s claim that the defendant

25

violated plaintiff’s Eighth Amendment rights by (a) rescinding plaintiff’s ADA status,

26

13

27

For reasons defendant does not explain, this appeal was not responded to for four months.
However, plaintiff filed this lawsuit within the 30 day period the prison was permitted to respond
to the appeal.

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15

1

(b) refusing to order needed surgery, (c) refusing to recommend plaintiff for a medical facility

2

capable of handling his medical needs, and (d) refusing him needed pain management; and

3
4

4.

Plaintiff’s motion for a Mail Delivery Order (ECF No. 46) is DENIED.

DATED: November 4, 2014

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