Franklin v. Foulk

Filing 94

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/1/2017 RECOMMENDING defendants' 71 motion for summary judgment for failure to exhaust adminstrative remedies be granted in part and denied in part; defendants motio n for summary judgment concerning the claims against defendants Lee, Rohlfing, and Swingle be denied; defendants motion for summary judgment concerning the claims against defendants Kelsey and Ray be granted; and the claims against defendants Kelsey and Ray for deliberate indifference to serious medical needs be dismissed for failure to exhaust administrative remedies. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY L. FRANKLIN,

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No. 2:14-cv-00057 KJM DB

Plaintiff,

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v.

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F. FOULK, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983 alleging each defendant was deliberately indifferent to his serious

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medical needs while he was incarcerated at High Desert State Prison (HDSP). Pending before the

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court is defendants Kelsey, Ray, Rohlfing, Swingle, and Lee’s motion for summary judgment for

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plaintiff’s alleged failure to exhaust his available administrative remedies. (ECF No. 71.)

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Plaintiff filed an opposition to the motion (ECF No. 76) and defendant filed a reply (ECF No. 77).
For the reasons outlined below, the undersigned respectfully recommends that the district

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court grant in part and deny in part defendants’ motion for summary judgment for failure to

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exhaust administrative remedies.

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I.

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Factual Background
Plaintiff is proceeding on his first amended complaint (FAC) against defendants Kelsey,

Ray, Rohlfing, Swingle, and Lee. (ECF No. 14.) While housed at HDSP, plaintiff alleges that he
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has endured chronic skin and rectal conditions that the defendants have treated with deliberate

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indifference. (Id. at 6-7.) Defendant Kelsey is a correctional officer at HDSP, defendant Ray is

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a registered nurse at HDSP, and defendants Rohlfing, Swingle and Lee are physicians at HDSP.

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(Id. at 5-6.) Plaintiff alleges that from January 4, 2008 through the present, he has suffered

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through intense pain from numerous conditions including dermatological issues to rectal bleeding

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and hemorrhoid pain. (Id. at 8-10.) The FAC includes a two-page list of conditions and dates of

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treatment culled from plaintiff’s medical records. (Id.)

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Plaintiff alleges that defendant Rohlfing was his primary care physician on numerous
occasions. Plaintiff claims that defendant Rohlfing inadequately examined and treated him,

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constituting deliberate indifference. (Id. at 10-11.) Plaintiff contends that defendant Lee -- the

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chief physician and surgeon at HDSP -- performed procedures on plaintiff after inadequate

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medical examinations, resulting in ineffective treatment for plaintiff’s numerous conditions. (Id.

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at 11-12.) Plaintiff also alleges that defendant Lee participated in the denial of his inmate

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grievances. Defendant Swingle, as the Chief Medical Executive at HDSP, reviewed plaintiff’s

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inmate grievances and allegedly acted with deliberate indifference by not adequately addressing

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the deliberate indifference of the treating physicians. (Id. at 12.) Plaintiff alleges that on June 9,

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2013, defendants Kelsey and Ray interfered with the orders of physicians at HDSP, which

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resulted in plaintiff suffering from pain and rectal bleeding. (Id. at 16-17.)

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Plaintiff does not dispute any portion of defendants’ statement of undisputed facts (ECF

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No. 71-2) concerning plaintiff’s inmate grievances filed with HDSP. (ECF No. 76 at 2, 11-19.)

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Accordingly, the court adopts those facts as follows:

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The records of HDSP reflect a total of eleven health care appeals for plaintiff: HDSP-HC-

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11024841, HDSP-HC-11025059, HDSP-HC-11025175, HDSP-HC-12026681, HDSP-HC-

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13026983, HDSP-SC-13000291, HDSP-HC-13027578, HDSP-SC-13000309, HDSP-HC-

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13027756, HDSP-ADA-14001280, and HDSP-HC-14028007.
Appeal HDSP-HC-11024841 alleges that Physician’s Assistant Miranda engaged in

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various acts or omissions that amounted to deliberate indifference to plaintiff’s medical needs; it

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makes no mention of any of the defendants. In any event, the appeal was rejected because it was

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submitted on the wrong form.
Appeal HDSP-HC-11025059 alleges that Physician’s Assistant Miranda engaged in

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various acts or omissions that amounted to deliberate indifference to plaintiff’s medical needs. It

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makes no mention of any of the defendants.

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Appeal HDSP-HC-11025175 was found to be duplicative of previously-filed appeals and
screened-out.

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Appeal HDSP-HC-12026681 is a request by plaintiff to see a specialist in a timely
manner. And while plaintiff does state that “these physicians here are indifferent towards my

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serious medical needs,” he does not mention any of the defendants, nor describe any act or

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omission of any of the defendants.

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Appeal HDSP-HC-13026983 is a request to be transferred to a medical facility. Plaintiff

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does not mention any of the defendants in this action, nor allege that any of the defendants

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refused or otherwise failed to properly treat him.

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Appeal HDSP-SC-13000291 is a staff complaint against nurse Pearsall (not a defendant

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here), in which plaintiff alleges that she was retaliating against him and failing to properly

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implement the physician’s orders. The appeal does not mention any of the defendants in this

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action, nor allege that any of the defendants refused or otherwise failed to properly treat him.
Appeal HDSP-HC-13027578 is entitled “medical issues.” In it, plaintiff provides a

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summary of his ongoing medical issues and treatment. He also alleges that an unidentified staff

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member was threatening him with a rules violation if he continued to request medical

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appointments. The appeal does not mention any of the defendants in this action, nor allege that

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any of the defendants refused or otherwise failed to properly treat him.

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Appeal HDSP-SC-13000309 is essentially identical to that of HDSP-HC-13027578, and

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does not mention any of the defendants in this action, nor allege that any of the defendants

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refused or otherwise failed to properly treat him.

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Appeal HDSP-HC-13027756 is a request to be cell fed. It does not mention any of the

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defendants in this action, nor allege that any of the defendants refused or otherwise failed to

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properly treat him.

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Appeal HDSP-ADA-14001280 is identical to HDSP-HC-13027756, re-numbered as an

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ADA appeal. It is a request to be cell fed and does not mention any of the defendants in this

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action, nor allege that any of the Defendants refused or otherwise failed to properly treat him.

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Appeal HDSP-HC-14028007 is an appeal in which plaintiff requests pads that can be

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worn underneath his underwear, and also to see a skin specialist. The appeal does not mention

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any of the defendants in this action, nor allege that any of the defendants refused or otherwise

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failed to properly treat him.

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A decision at the third and final level of review was issued for four of these health care

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appeals: HDSP-HC-11025059, HDSP-HC-12026681, HDSP-HC-13026983, and HDSP-SC-

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13000309.
The Director’s Level Appeal Decision for Appeal HDSP-HC-11025059 was issued March

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28, 2012. The Director’s Level Appeal Decision for Appeal HDSP-HC-12026681 was issued

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August 23, 2013. The Director’s Level Appeal Decision for Appeal HDSP-HC-13026983 was

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issued August 23, 2013. The Director’s Level Appeal Decision for Appeal HDSP-SC-13000309

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was issued April 7, 2014.

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Plaintiff submitted two non-medical appeals that were accepted for review by HDSP:

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HDSP-12-00197 and HDSP-13-03479. Appeal HDSP-12-00197 does not name or identify any

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defendant, nor does it involve plaintiff’s medical issues or treatment. Appeal HDSP-13-03479

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does not name or identify any defendant, nor does it involve plaintiff’s medical issues or

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treatment. The Third Level Appeal Decision for Appeal HDSP-12-00197 was issued on or about

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August 2, 2012. No Third Level Appeal Decision for Appeal HDSP-13-03479 was ever issued.

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Plaintiff filed this action in federal court on January 9, 2014. (ECF No. 1.)
II.

Legal Standard
By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. §

1997e to provide that “[n]o action shall be brought with respect to prison conditions under section
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1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether

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they involve general circumstances or particular episodes, and whether they allege excessive

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force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison administrative

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procedures is mandated regardless of the relief offered through such procedures. See Booth v.

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Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading

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futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n. 6.

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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion

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requirement by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative

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remedies prisoners ‘must complete the administrative review process in accordance with the

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applicable procedural rules,’ [ ] - rules that are defined not by the PLRA, but by the prison

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grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.

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at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison

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system’s requirements ‘define the boundaries of proper exhaustion.’”).

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In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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Most appeals progress through three levels of review. See id. § 3084.7. The third level of review

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constitutes the decision of the Secretary of the California Department of Corrections and

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Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A

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California prisoner is required to submit an inmate appeal at the appropriate level and proceed to

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the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

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2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if
he establishes that the existing administrative remedies were effectively unavailable to him. See
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Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). For example, where prison officials

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improperly screen out inmate grievances, they can render administrative remedies effectively

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unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the

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inmate cannot pursue the necessary sequence of appeals[.]” Id. See also Nunez v. Duncan, 591

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F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was

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precluded from exhausting his administrative remedies by a warden’s mistaken instruction to him

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that a particular unavailable document was needed for him to pursue his inmate appeal); Marella,

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568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access to the

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necessary grievance forms to timely file his grievance).

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The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative

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defense that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not

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required to specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at

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1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n

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the rare event” that a prisoner’s failure to exhaust is clear on the face of the complaint. Albino,

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747 F.3d at 1168 & 1169. More typically, defendants are required to move for summary

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judgment under Federal Rule of Civil Procedure 56 and produce probative evidence that proves a

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prisoner’s failure to exhaust. See id. at 1166. If the undisputed evidence viewed in the light most

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favorable to the prisoner demonstrates a failure to exhaust, the court should grant defendant’s

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motion for summary judgment. On the other hand, if there are material facts in dispute, the court

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should deny defendant’s motion summary judgment. See id.

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III.

Legal Analysis

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A.

Claims against Defendants Lee and Swingle

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While plaintiff does not contest that his grievances fail to name any defendants, he relies

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upon Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016), arguing that he was not required to

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individually name defendants Lee and Swingle because they were aware of his medical issues

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given their positions as supervisors over medical staff who reviewed and denied his inmate

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grievances.

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Under the PLRA, a grievance “suffices if it alerts the prison to the nature of the wrong for

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which redress is sought.” Sapp, 623 F.3d at 824 (quoting Griffin v. Arpaio, 557 F.3d 1117, 1120

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(9th Cir. 2009)). The grievance “need not include legal terminology or legal theories,” because

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“[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its

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resolution, not to lay groundwork for litigation.” Griffin, 557 F.3d at 1120. The grievance

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process is only required to “alert prison officials to a problem, not to provide personal notice to a

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particular official that he may be sued.” Jones, 549 U.S. at 219 (citations omitted).

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In Reyes, the Ninth Circuit held “that a prisoner exhausts ‘such administrative remedies as
are available,’ 42 U.S.C. § 1997e(a), under the PLRA despite failing to comply with a procedural

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rule if prison officials ignore the procedural problem and render a decision on the merits of the

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grievance at each available step of the administrative process.” 810 F.3d at 658. Furthermore,

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the court in Reyes found that even though the plaintiff’s grievance failed to name two physicians

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on the prison’s three-person pain committee, prison officials were put on notice of the nature of

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the wrong alleged in the suit -- that the plaintiff was wrongfully denied pain medication. Id. at

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659. Specifically, the Ninth Circuit noted that prison officials cited to the decision of the pain

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committee multiple times in their decisions on the plaintiff’s administrative grievances and were

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plainly aware that the committee was composed of those two unnamed doctors. Id.

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Likewise, plaintiff contends that prison officials in this action were on notice that

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defendants Lee and Swingle were deliberately indifferent because they were medical supervisors

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who issued signed decisions on plaintiff’s grievances. (ECF No. 76 at 7-10.)

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Under certain circumstances an administrative appellate reviewer can be liable under the

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Eighth Amendment. See Peralta v. Dillard, 744 F.3d 1076, 1085-85 (9th Cir. 2014); Steinocher

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v. Smith, No. 2:12–cv–0467, 2015 WL 1238549, *4 (E.D. Cal. Mar. 17, 2015). Ninth Circuit

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case law holds that when a prisoner is grieving an on-going medical issue, a decision at the third

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level of appeal serves to exhaust claims regarding that medical issue, including claims against

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individuals who only acted as an administrative appellate reviewer. See Garbarini v. Ulit, No.:

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1:14-cv-1058-AWI-SAB, 2017 WL 531911, *2-3 (E.D. Cal. Feb. 9, 2017); Steinocher, 2015 WL

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1238549; Gonzalez v. Ahmed, 67 F. Supp. 3d 1145, 1153-54 (N.D. Cal. 2014); Lopez v. Florez,
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No. 1:08–cv–01975–LJO–JLT, 2012 WL 3778858, *4-5 (E.D. Cal. Aug. 31, 2012); Victory v.

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Barber, No. 1:05–cv–01578–LJO–DLB, 2009 WL 2986418, *9 (E.D. Cal. Sept. 16, 2009); Lewis

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v. Naku, No. CIV S-07-0090 RRB DAD, 2007 WL 3046013, *4-6 (E.D. Cal. Oct.

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18, 2007). This is consistent with Reyes in that Reyes challenged the continued denial of certain

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pain medications throughout the grievance appellate process. See Reyes, 810 F.3d at 657-59.

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Appeal HDSP-HC-11025059 concerns physician assistant Miranda’s alleged failure to

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properly treat plaintiff’s skin condition. (ECF No. 71-3 at 21-28.) Defendants Lee and Swingle

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were involved in reviewing this grievance: defendant Lee at the first level, and defendant Swingle

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at the second level. (Id.) Appeal HDSP-HC-12026681 alleges generally that physicians were

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deliberate to his serious medical needs and specifically refers to blood in plaintiff’s stool. (Id. at

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38-44.) Defendants Lee and Swingle participated in the review of this appeal at the first and

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second levels. (Id.) Both of these appeals were exhausted through the third level of review, and,

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together, they encompass the two chronic ailments that plaintiff’s FAC alleges were treated with

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deliberate indifference. (Id. at 21-28, 38-44.) Pursuant to Reyes, and consistent with the district

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court cases listed above, these grievances addressed ongoing medical issues and were exhausted

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as to defendants Lee and Swingle’s denials of plaintiff's appeals.

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The failure of plaintiff to file a separate grievance against defendants Lee and Swingle

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does not negate the effects of cases like Reyes, Garbarini, Steinocher, Gonzalez, and Victory on

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the grievances that plaintiff filed. Defendants arguments do not show that plaintiff actually failed

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to exhaust his administrative remedies. Accordingly, the motion for summary judgment should

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be denied as to defendants Lee and Swingle.

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B.

Claims against Defendant Rohlfing

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As noted above, appeal HDSP-HC-12026681 alleges generally that physicians were

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deliberate to plaintiff’s serious medical needs and specifically refers to blood in plaintiff’s stool.

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(ECF No. 71-3 at 38-44.) In this grievance, plaintiff requests to see a specialist because the

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physicians at HDSP were not adequately addressing his issues. (Id.) At the first level of review

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for this appeal, defendant Rohlfing interviewed plaintiff concerning his complaints, as well as

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reviewed plaintiff’s medical records. (Id. at 40.) Additionally, plaintiff’s medical records from
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2012 indicate that he was seen by defendant Rohlfing for the same problem that is the subject of

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HDSP-HC-12026681. (ECF No. 76 at 109.)

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Pursuant to Reyes, there must be a sufficient connection between the claim in the appeal

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and the unidentified defendant to provide prison officials with “notice of the alleged deprivation”

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and an “opportunity to resolve it.” 810 F.3d 659. Here, plaintiff’s treatment under defendant

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Rohlfing is for precisely the same issue that he complains unnamed physicians at HDSP are

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inadequately addressing in HDSP-HC-12026681. Furthermore, Dr. Rohlfing participated in the

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appeal process concerning this complaint, which was exhausted through the third level of review.

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Thus, under these circumstances, where prison officials were put on notice about a particular

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medical issue that their medical staff was indifferent too and a particular doctor is on the record

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for having treated the inmate for that specific issue, the undersigned finds that there was sufficient

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notice of an alleged deprivation.

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Accordingly, the motion for summary judgment should be denied as to defendant

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Rohlfing.

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C.

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Unlike the claims against defendants Lee, Rohlfing and Swingle, plaintiff did not just fail

Claims against Defendants Kelsey and Ray

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to identify defendants Kelsey and Ray by name in his inmate grievances. Instead, plaintiff’s

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specific claim concerning an incident on June 9, 2013 was never even mentioned in any of the

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eleven health care appeals that he filed during the relevant time period. Plaintiff does not contest

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this. (See ECF No. 76.)

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The only reference to this incident is in plaintiff’s reply to the second level response to

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appeal HDSP-HC-13026983. (ECF No. 71-3 at 55-56.) However, the initial grievance for this

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specific appeal was filed on February 18, 2013, well before the alleged wrongdoing by defendants

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Kelsey and Ray. Thus, both the first and second level of review concerning HDSP-HC-13026983

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do not address this specific incident.

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Administrative remedies that are not exhausted at all three levels of review may not be

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considered appropriate exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b) (“Administrative

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remedies shall not be considered exhausted relative to any new issue . . . later named by the
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appellant that was not included in the originally submitted CDCR Form 602 . . . and addressed

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through all required levels of administrative review up to an including the third level.”). See also

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Brazier v. Beard, 1:13-cv-00787-LJO-BMK, 2017 WL 202036, *3 (E.D. Cal. Jan. 17, 2017)

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(plaintiff did not raise claim until third level of review and therefore the court recommended

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dismissal). So, while “[a]n [administrative] appeal need not lay out the facts, articulate legal

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theories, or demand particular relief[,]” Schultz v. Cal. Dept. of Corr., No. 1:11–cv–00988–LJO–

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MJS, 2013 WL 5883677, *2 (E.D. Cal. Oct. 30, 2013), all issues still must be raised at all levels

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of review in order to be considered exhausted by the courts.

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Here, plaintiff admits that he never addressed the June 9, 2013 incident in a first or second

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level inmate appeal. This is insufficient to exhaust administrative remedies. Accordingly, the

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motion for summary judgment should be granted as to the claims against defendants Kelsey and

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Ray.

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IV.

Conclusion

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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remedies be granted in part and denied in part;

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Defendants’ motion for summary judgment concerning the claims against

defendants Kelsey and Ray should be granted; and

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Defendants’ motion for summary judgment concerning the claims against

defendants Lee, Rohlfing, and Swingle should be denied;

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Defendants’ motion for summary judgment for failure to exhaust administrative

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The claims against defendants’ Kelsey and Ray for deliberate indifference to

serious medical needs should be dismissed for failure to exhaust administrative remedies.

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These findings and recommendations are submitted to the United States District Judge

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

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

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

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

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Any reply to the objections shall be served and filed within fourteen days after service of

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the objections. Failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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Dated: March 1, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / fran.0057.msj.exh

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