Bulandr v. Pelican Bay State Prison

Filing 26

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT by Hon. Thelton E. Henderson granting 17 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 6/2/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IAN ANTHONY BULANDR,

Case No.

16-cv-2405-TEH

Plaintiff,
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v.

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

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PELICAN BAY STATE PRISON,
Defendant.
Dkt No. 17

United States District Court
Northern District of California

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Plaintiff Ian Bulandr, a state prisoner, filed this pro se

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action under 42 U.S.C. § 1983.

This case proceeds under the

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first amended complaint (Docket No. 10) against Defendants Nurse

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Risenhoover and Dr. Bal with allegations that they failed to

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properly treat Plaintiff’s eczema like rashes in violation of the

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Eighth Amendment.

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stating that Plaintiff failed to exhaust his administrative

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remedies, Defendants were not deliberately indifferent to his

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serious medical needs and Defendants did not personally

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participate in the alleged acts.

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and Defendants filed a reply.

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Defendants’ motion is GRANTED.

Defendants filed a motion for summary judgment

Plaintiff filed an opposition

For the reasons that follow,

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I

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A

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Summary judgment is properly granted when no genuine
disputes of material fact remain and when, viewing the evidence

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most favorably to the nonmoving party, the movant is clearly

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entitled to prevail as a matter of law.

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Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v.

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Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

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moving party bears the burden of showing there is no material

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factual dispute.

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must regard as true the opposing party's evidence, if supported

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by affidavits or other evidentiary material.

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Eisenberg, 815 F.2d at 1289.

Fed. R. Civ. P. 56(c);

Celotex, 477 U.S. at 331.

The

Therefore, the Court

Id. at 324;

The Court must draw all reasonable

inferences in favor of the party against whom summary judgment is

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United States District Court
Northern District of California

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sought.

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U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem.

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Co., 952 F.2d 1551, 1559 (9th Cir. 1991).

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

The moving party bears the initial burden of identifying

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those portions of the pleadings, discovery and affidavits which

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demonstrate the absence of a genuine issue of material fact.

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Celotex, 477 U.S. at 323.

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of production, the burden then shifts to the opposing party to

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produce “specific evidence, through affidavits or admissible

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discovery material, to show that the dispute exists.”

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NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied,

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502 U.S. 994 (1991); Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

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210 F.3d 1099, 1105 (9th Cir. 2000).

If the moving party meets its burden

Bhan v.

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Material facts that would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

Questions of fact regarding immaterial issues
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cannot defeat a motion for summary judgment.

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of San Diego, 84 F.3d 1162, 1168-70 (9th Cir. 1996), rev'd on

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other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th

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Cir. 1997).

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is sufficient evidence for a reasonable jury to return a verdict

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for the nonmoving party.

Reynolds v. County

A dispute as to a material fact is genuine if there

Anderson, 477 U.S. at 248.

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B

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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42

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U.S.C. § 1997e to provide that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983], or any

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United States District Court
Northern District of California

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

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other correctional facility until such administrative remedies as

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are available are exhausted.”

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is mandatory and no longer left to the discretion of the district

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court.

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Churner, 532 U.S. 731, 739 (2001)).

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all ‘available’ remedies, not just those that meet federal

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standards.”

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granted by the administrative process, i.e., monetary damages, a

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prisoner must still exhaust administrative remedies.

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86 (citing Booth, 532 U.S. at 734).

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42 U.S.C. § 1997e(a).

Exhaustion

Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v.

Id. at 85.

“Prisoners must now exhaust

Even when the relief sought cannot be

Id. at 85-

The PLRA’s exhaustion requirement requires “proper

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exhaustion” of available administrative remedies.

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This requirement cannot be satisfied “by filing an untimely or

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otherwise procedurally defective administrative grievance or

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appeal.”

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strongly suggests that the PLRA uses the term ‘exhausted’ to mean

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what the term means in administrative law, where exhaustion means

Id. at 83-84.

Id. at 93.

“The text of 42 U.S.C. § 1997e(a)

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proper exhaustion.”

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requirement requires proper exhaustion.

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demands compliance with an agency’s deadlines and other critical

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procedural rules because no adjudicative system can function

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effectively without imposing some orderly structure on the course

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of its proceedings.”

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administrative review process in accordance with the applicable

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procedural rules, including deadlines, as a precondition to

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bringing suit in federal court.

Id. at 93.

Therefore, the PLRA exhaustion

Id. at 90-91.

Id.

“Proper exhaustion

A prisoner must complete the

See id. at 87; see also Johnson

v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) (holding that,

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United States District Court
Northern District of California

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to exhaust remedies, a prisoner must file appeals in the place,

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and at the time, the prison's administrative rules require).

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The California Department of Corrections and Rehabilitation

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(“CDCR”) provides that inmates and parolees “may appeal any

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policy, decision, action, condition, or omission by the

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department or its staff that the inmate or parolee can

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demonstrate as having a material adverse effect upon his or her

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health, safety, or welfare.”

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3084.1(a).

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prisoner exhausts the grievance process when he completes the

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third level.”

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2010).

Cal. Code Regs. tit. 15, §

“Three levels of formal review are provided, and a

Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir.

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C

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Deliberate indifference to serious medical needs violates

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the Eighth Amendment's proscription against cruel and unusual

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punishment.

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

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(9th Cir. 1997) (en banc).

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indifference" involves an examination of two elements: the

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seriousness of the prisoner's medical need and the nature of the

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defendant's response to that need.

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A determination of "deliberate

Id. at 1059.

A "serious" medical need exists if the failure to treat a

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prisoner's condition could result in further significant injury

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or the "unnecessary and wanton infliction of pain."

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existence of an injury that a reasonable doctor or patient would

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find important and worthy of comment or treatment; the presence

Id.

The

of a medical condition that significantly affects an individual's

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United States District Court
Northern District of California

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daily activities; or the existence of chronic and substantial

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pain are examples of indications that a prisoner has a "serious"

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need for medical treatment.

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Id. at 1059-60.

A prison official is deliberately indifferent if he or she

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knows that a prisoner faces a substantial risk of serious harm

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and disregards that risk by failing to take reasonable steps to

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abate it.

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prison official must not only “be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm

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exists,” but he “must also draw the inference.”

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official should have been aware of the risk, but was not, then

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the official has not violated the Eighth Amendment, no matter how

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severe the risk.

Gibson v. County of Washoe, 290 F.3d 1175, 1188

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(9th Cir. 2002).

“A difference of opinion between a prisoner-

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patient and prison medical authorities regarding treatment does

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not give rise to a § 1983 claim.”

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1337, 1344 (9th Cir. 1981).

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Id.

The

If a prison

Franklin v. Oregon, 662 F.2d

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II

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A

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On January 6, 2016, Plaintiff submitted an inmate appeal

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regarding the medical condition that is the subject of this

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action.

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The inmate appeal was given the log number PBSP HC 16029491.

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On January 28, 2016, a nondefendant nurse interviewed Plaintiff

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regarding the appeal.

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appeal at the first level of review and denied it.

Motion for Summary Judgment (“MSJ”), Robinson Decl. ¶ 8.

Id. ¶ 9.

Id.

Defendant Dr. Bal reviewed the
Id. ¶ 10.

Dr. Bal noted that: (1) Plaintiff had been seen by his doctor on

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Northern District of California

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August 4, 2015 and January 25, 2016, and the doctor did not

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recommend a referral to a specialist; (2) the doctor reviewed

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Plaintiff’s June 8, 2015, skin pathology report which revealed

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that the skin condition was eczema and that no medication

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treatment was medically indicated; and (3) on November 25, 2015,

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Plaintiff was examined by a nurse who provided him with

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instructions to treat his skin condition, including using

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Selenium Sulfide 1% shampoo, and referred Plaintiff for a follow-

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up appointment in 30 days, but on December 23, 2015, Plaintiff

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refused the follow-up appointment.

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Plaintiff did not further appeal the denial to either the
second or third level of review.

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Id.

Id. ¶ 11.
B

Defendant Risenhoover is a certified family nurse

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practitioner and has been licensed to practice in California

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since 1981.

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the prison include providing primary health care services to

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inmates.

MSJ, Risenhoover Decl. ¶ 1.

Id. ¶ 3.
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Her responsibilities at

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Plaintiff has been diagnosed with hypothyroidism (thyroid

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hormone deficiency).

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include skin rash, such as eczema.

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Risenhoover has assisted in administering Plaintiff’s prescribed

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hypothyroid medication, Levothyroxine Sodium 88 mcg.

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February 25, 2014, Risenhoover examined Plaintiff who stated he

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had noticed a dry rash on his shins.

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that the rash did not itch, was not painful, did not bother him

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and he had been applying lotion on it.

Id. ¶ 7.

Symptoms of hypothyroidism can
Since August 2013,

Id. ¶ 8.

Id.

On

He further stated

Risenhoover reviewed

Plaintiff’s lab tests, including his Thyroid Stimulating Hormone

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United States District Court
Northern District of California

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(“TSH”) test, which was within normal range.

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small, superficial, flaky patch of pinkish dry skin approximately

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one cm in size with no swelling, pustule, erythema (redness) or

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tenderness.

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conservatively by avoiding excess soap and applying lotion, and

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to return to the clinic if it did not resolve itself.

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agreed with the treatment plan.

Plaintiff had a

She advised Plaintiff to manage the rash

Plaintiff

Id.

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On April 6, 2014, Plaintiff submitted a medical request

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stating, “I have a bad skin rash on my left leg, it itches & has

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been present for more than a month.”

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Ex. K1.

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Opposition (Docket No. 23),

Risenhoover saw Plaintiff again for the rash on his shins on

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May 29, 2014.

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provided him with hydrocortisone cream, (1%) which had helped

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with the itching, but he had run out.

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injured his shins or knees, had no fever or chills and had no

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pain.

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shins consisting of an abrasion on his left shin and healed dry

Id. ¶ 9.

Plaintiff stated that another nurse had

He stated he had not

Risenhoover observed superficial skin irritations on his

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skin on his right shin.

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told him to continue the conservative treatment, and she provided

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an antibiotic ointment to apply to his left shin.

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a biopsy if the symptoms did not improve.

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There was no sign of infection, so she

She suggested

Id.

Plaintiff submitted medical requests for the rash on July

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31, 2014 and October 18, 2014, noting that the creams had not

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been working.

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other medical staff and provided different creams for the rash.

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Id.; Risenhoover Decl. ¶¶ 10-11.

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Opposition, Exs. H1-H8, I1.

Plaintiff was seen by

Risenhoover reviewed a medical note regarding Plaintiff on

United States District Court
Northern District of California

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April 2, 2015.

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steroid cream until the biopsy results were received.

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instructed Plaintiff to keep his skin clean and dry.

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result of the skin biopsy was benign (noncancerous) and stated,

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“Right Inner Shin:

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Lympho-hostiocytic perivascular dermatitis with focal overlying

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parakeratic crust (see comment).

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features favor chronic excematous deramtitis such as chronic

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nummular or seborrheic dermatitis rather than psoriasis.

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Correlation with clinical findings & appropriate follow-up are

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recommended.”

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Id. ¶ 12.

She ordered a skin biopsy and denied a
She
Id.

The

Superficial Mildly Spongiotic Psoriasiform

Comment: the histologic

Id. ¶ 14.

Plaintiff submitted a medical request on April 16, 2015,

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regarding the rash, which he noted as bleeding, scabbed and very

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dry.

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Opposition Ex. E1.
On June 19, 2015, Risenhoover reviewed the biopsy results

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with Plaintiff.

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he thought the rash was part of his thyroid problem, and that it

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did not hurt and just itched.

Risenhoover Decl. ¶ 15.

Plaintiff stated that

Risenhoover continued Plaintiff on
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levothyroxine, 88 mcg daily.

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Risenhoover saw Plaintiff again on August 4, 2015, for his

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hypothyroid follow up.

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within normal range.

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he had a superficial, flaky patch of pinkish dry skin

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approximately 22 x 12 cm with superficial cracking and no

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bleeding, erythema, redness, pustules, tenderness or increased

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heat.

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x 5 cm and a few other similarly sized patches.

Id. ¶ 16.

Plaintiff’s TSH lab result was

Risenhoover observed that on his left shin

On his lower leg he had a small patch of dry skin about 5
Plaintiff also

stated he wanted to see a dermatologist.

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Northern District of California

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2015, Risenhoover reviewed Plaintiff’s skin biopsy results with a

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nondefendant doctor.

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the rash was not psoriasis and was diagnosed as eczema, no

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treatment cream was medically indicated nor was a referral to a

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dermatologist needed.

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Id. ¶ 17.

Id.

Later on August 4,

The doctor stated that because

Id.

Risenhoover met with Plaintiff on January 25, 2016 and July

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22, 2016, for hypothyroid follow-up appointments.

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His lab work was normal, and Plaintiff stated that his rashes did

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not bother him and he was not in pain.

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more appointment with Plaintiff on July 26, 2016, where

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Plaintiff’s TSH lab results were reviewed, and they were within

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normal range.

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Id.

Id. ¶¶ 19-20.

Risenhoover had one

Id. ¶ 21.

Defendant Dr. Bal is a physician and surgeon licensed to

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practice in California.

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2016, Dr. Bal reviewed the inmate appeal Plaintiff submitted on

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January 6, 2016, which was discussed above.

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sought to be seen by a specialist and to see if a different

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medicine such as Otzela or Humira would be appropriate.

MSJ, Bal Decl. ¶ 1.

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On February 12,

Id. ¶ 7.

Plaintiff

Per

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procedure Plaintiff was interviewed by a nondefendant nurse.

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¶ 8.

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reviewing the appeal, Dr. Bal had no other involvement with

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Plaintiff’s medical care.

Dr. Bal denied the appeal as discussed above.

Id.

Other than

Id. ¶ 12.

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III

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A

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It is undisputed that Plaintiff only submitted an inmate

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appeal to the first level and that he failed to appeal to the

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second or third level of review.

Plaintiff argues that the

denial of his first-level appeal denied all of his requests for

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Northern District of California

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remedies and stated that granting the requests was beyond the

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scope of the appeals.

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he understood this to mean that his administrative remedies were

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exhausted.

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Docket No. 23 at 5.

Plaintiff states that

Id.

A review of the entire first-level response demonstrates

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that Plaintiff took the isolated portion of the response out of

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context.

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reasons why each of Plaintiff’s requests was denied.

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Robinson Decl. Ex. A at PBSP-1.

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specific points: 1) to be seen by a specialist; 2) to see if

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certain medications such as Otezla or Humira would be helpful;

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and 3) that if he does not receive appropriate treatment he will

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seek monetary compensation in a civil lawsuit.

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The first-level response set forth in detail the
MSJ,

Plaintiff presented three

Id. at PBSP-6,8.

The first-level response addressed each request in turn and

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presented specific facts and arguments why Plaintiff’s appeal was

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denied.

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referenced Plaintiff’s requests to be seen by a specialist and

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for specific medication.

Id. at PBSP-1-2.

The majority of the response

Id.

The response did include one
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sentence that stated, “It is beyond the scope of the appeals

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process to award monetary compensation.

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your law library for the government code.”

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response further stated, “A thorough review of your request

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presented in this complaint has been completed at the first level

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and is denied.”

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completed also stated, “If you are dissatisfied with the First

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Level Response, explain the reason below, attach supporting

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documents and submit to the Health Care Appeals Coordinator for

Id.

However, you may search
Id. at PBSP-2.

The

The appeal form that Plaintiff originally

processing within 30 calendar days of receipt of response.”

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United States District Court
Northern District of California

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at PBSP-5.

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regarding what to do if the prisoner is dissatisfied with the

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Second-Level Response.

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this form which he attached to his original complaint.

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No. 1 at 15.

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Id.

The appeal form also presents the same instructions

Id.

Plaintiff had been in possession of
Docket

Even though Plaintiff sought monetary relief, which was

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beyond the scope of the inmate appeal system, Plaintiff was

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required to fully exhaust the claim.

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86.

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particular form of relief requested by Plaintiff does not excuse

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exhaustion because some sort of relief or responsive action may

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result from the grievance.

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Porter v. Nussle, 534 U.S. 516, 525 (2002) (purposes of

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exhaustion requirement include allowing prison to take responsive

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action, filtering out frivolous cases, and creating

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administrative records).

Woodford, 548 U.S. at 85-

That the administrative procedure cannot result in the

See Booth, 532 U.S. at 737; see also

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However, the Ninth Circuit has held that an administrative

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remedy is not available if prison officials inform the prisoner
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that he cannot file a grievance.

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F.3d 1182, 1191-92 (9th Cir. 2015) (prisoner’s statements that

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she was thwarted from filing a grievance and appeal meet burden

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of production in showing that administrative remedies were not

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available to her).

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further levels of review if he has either received all the

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remedies that are “available” at an intermediate level of review,

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or has been reliably informed by an administrator that no more

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remedies are available.

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United States District Court
Northern District of California

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See Williams v. Paramo, 775

Similarly, a prisoner need not exhaust

See also Brown v. Valoff, 422 F.3d 926,

935 (9th Cir. 2005).
The facts of this case are distinguishable from Williams and

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Brown.

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verbally told Plaintiff he did not need to further appeal his

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medical claims.

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dissatisfied with the first-level response he could appeal it by

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explaining the reasons for his dissatisfaction and submitting it

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to the Health Care Appeals Coordinator.

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sentence in the first-level response that stated monetary

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compensation was beyond the scope of the appeals process, the

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majority of the response set forth reasons why Plaintiff’s

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specific requests for medical care were denied.

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denials related to his specific medical requests, Plaintiff chose

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not to further appeal.

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for summary judgment for failure to exhaust is granted.

There are no allegations that any prison official

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The form itself noted that if Plaintiff was

While there was one

Despite these

For all these reasons, Defendants’ motion

B
Even assuming Plaintiff could continue with these

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unexhausted claims, Defendants are entitled to summary judgment

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on the merits.

Assuming for purposes of this motion that
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Plaintiff’s rash qualifies as a serious medical need, the

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undisputed facts demonstrate that Defendants were not

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deliberately indifferent in the treatment they provided.

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Risenhoover provided a great deal of medical care over an

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extended period of time and Plaintiff was also treated by other

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medical staff.

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provided different creams and ointments to treat it.

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rash did not resolve itself, a biopsy was taken which indicated

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it was noncancerous.

Plaintiff was repeatedly seen for his rash and
When the

Moreover, medical staff noted that rashes

can appear related to Plaintiff’s hypothyroidism, which was being

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Northern District of California

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routinely treated, and his lab results were within the normal

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range.

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requests to be seen by a specialist and for different medication.

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Dr. Bal’s only involvement was denying Plaintiff’s

Plaintiff disagreed with the treatment and the denial of a

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referral to a specialist; however, this difference of opinion

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does not demonstrate deliberate indifference.

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at 1344.

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medication and a specialist, he still received regular and

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routine medical treatment.

Plaintiff concedes that he was

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provided a treatment plan.

Opposition at 2.

Franklin, 662 F.2d

Even though Plaintiff was denied requests for different

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Defendants have met their burden in showing that there is no

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genuine dispute of material fact and they are entitled to summary

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judgment.

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demonstrating that Defendants were aware of a substantial risk of

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serious harm and disregarded that risk by failing to take

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reasonable steps.

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reasonable steps to treat Plaintiff’s medical needs and they are

Plaintiff has failed to meet his burden in

The undisputed facts show that Defendants took

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entitled to summary judgment. 1

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IV

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For the foregoing reasons, the Court hereby orders as
follows:

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1.

is GRANTED.

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8

2.

The Clerk shall close the file.

IT IS SO ORDERED.
Dated: 6/2/2017

United States District Court
Northern District of California

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________________________
THELTON E. HENDERSON
United States District Judge

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This order terminates

Docket No. 17.

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Defendants’ motion for summary judgment (Docket No. 17)

G:\PRO-SE\TEH\CR.16\Bulandr2405.sj.docx

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Because the Court has not found a constitutional violation and
Plaintiff failed to exhaust his administrative remedies, the
Court will not address the argument that Defendants did not
personally participate in the alleged acts.
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