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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IAN ANTHONY BULANDR, Case No. 16-cv-2405-TEH Plaintiff, 8 v. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 9 10 PELICAN BAY STATE PRISON, Defendant. Dkt No. 17 United States District Court Northern District of California 11 12 13 Plaintiff Ian Bulandr, a state prisoner, filed this pro se 14 action under 42 U.S.C. § 1983. This case proceeds under the 15 first amended complaint (Docket No. 10) against Defendants Nurse 16 Risenhoover and Dr. Bal with allegations that they failed to 17 properly treat Plaintiff’s eczema like rashes in violation of the 18 Eighth Amendment. 19 stating that Plaintiff failed to exhaust his administrative 20 remedies, Defendants were not deliberately indifferent to his 21 serious medical needs and Defendants did not personally 22 participate in the alleged acts. 23 and Defendants filed a reply. 24 Defendants’ motion is GRANTED. Defendants filed a motion for summary judgment Plaintiff filed an opposition For the reasons that follow, 25 I 26 A 27 28 Summary judgment is properly granted when no genuine disputes of material fact remain and when, viewing the evidence 1 most favorably to the nonmoving party, the movant is clearly 2 entitled to prevail as a matter of law. 3 Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. 4 Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). 5 moving party bears the burden of showing there is no material 6 factual dispute. 7 must regard as true the opposing party's evidence, if supported 8 by affidavits or other evidentiary material. 9 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 11 United States District Court Northern District of California 10 sought. 12 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. 13 Co., 952 F.2d 1551, 1559 (9th Cir. 1991). 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 The moving party bears the initial burden of identifying 15 those portions of the pleadings, discovery and affidavits which 16 demonstrate the absence of a genuine issue of material fact. 17 Celotex, 477 U.S. at 323. 18 of production, the burden then shifts to the opposing party to 19 produce “specific evidence, through affidavits or admissible 20 discovery material, to show that the dispute exists.” 21 NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 22 502 U.S. 994 (1991); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 23 210 F.3d 1099, 1105 (9th Cir. 2000). If the moving party meets its burden Bhan v. 24 Material facts that would preclude entry of summary judgment 25 are those which, under applicable substantive law, may affect the 26 outcome of the case. The substantive law will identify which 27 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 28 242, 248 (1986). Questions of fact regarding immaterial issues 2 1 cannot defeat a motion for summary judgment. 2 of San Diego, 84 F.3d 1162, 1168-70 (9th Cir. 1996), rev'd on 3 other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th 4 Cir. 1997). 5 is sufficient evidence for a reasonable jury to return a verdict 6 for the nonmoving party. Reynolds v. County A dispute as to a material fact is genuine if there Anderson, 477 U.S. at 248. 7 B 8 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 9 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 11 United States District Court Northern District of California 10 other Federal law, by a prisoner confined in any jail, prison, or 12 other correctional facility until such administrative remedies as 13 are available are exhausted.” 14 is mandatory and no longer left to the discretion of the district 15 court. 16 Churner, 532 U.S. 731, 739 (2001)). 17 all ‘available’ remedies, not just those that meet federal 18 standards.” 19 granted by the administrative process, i.e., monetary damages, a 20 prisoner must still exhaust administrative remedies. 21 86 (citing Booth, 532 U.S. at 734). 22 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 23 exhaustion” of available administrative remedies. 24 This requirement cannot be satisfied “by filing an untimely or 25 otherwise procedurally defective administrative grievance or 26 appeal.” 27 strongly suggests that the PLRA uses the term ‘exhausted’ to mean 28 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) 3 1 proper exhaustion.” 2 requirement requires proper exhaustion. 3 demands compliance with an agency’s deadlines and other critical 4 procedural rules because no adjudicative system can function 5 effectively without imposing some orderly structure on the course 6 of its proceedings.” 7 administrative review process in accordance with the applicable 8 procedural rules, including deadlines, as a precondition to 9 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, 11 United States District Court Northern District of California 10 to exhaust remedies, a prisoner must file appeals in the place, 12 and at the time, the prison's administrative rules require). 13 The California Department of Corrections and Rehabilitation 14 (“CDCR”) provides that inmates and parolees “may appeal any 15 policy, decision, action, condition, or omission by the 16 department or its staff that the inmate or parolee can 17 demonstrate as having a material adverse effect upon his or her 18 health, safety, or welfare.” 19 3084.1(a). 20 prisoner exhausts the grievance process when he completes the 21 third level.” 22 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. 23 C 24 Deliberate indifference to serious medical needs violates 25 the Eighth Amendment's proscription against cruel and unusual 26 punishment. 27 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 28 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin 4 1 (9th Cir. 1997) (en banc). 2 indifference" involves an examination of two elements: the 3 seriousness of the prisoner's medical need and the nature of the 4 defendant's response to that need. 5 A determination of "deliberate Id. at 1059. A "serious" medical need exists if the failure to treat a 6 prisoner's condition could result in further significant injury 7 or the "unnecessary and wanton infliction of pain." 8 existence of an injury that a reasonable doctor or patient would 9 find important and worthy of comment or treatment; the presence Id. The of a medical condition that significantly affects an individual's 11 United States District Court Northern District of California 10 daily activities; or the existence of chronic and substantial 12 pain are examples of indications that a prisoner has a "serious" 13 need for medical treatment. 14 Id. at 1059-60. A prison official is deliberately indifferent if he or she 15 knows that a prisoner faces a substantial risk of serious harm 16 and disregards that risk by failing to take reasonable steps to 17 abate it. 18 prison official must not only “be aware of facts from which the 19 inference could be drawn that a substantial risk of serious harm 20 exists,” but he “must also draw the inference.” 21 official should have been aware of the risk, but was not, then 22 the official has not violated the Eighth Amendment, no matter how 23 severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 24 (9th Cir. 2002). “A difference of opinion between a prisoner- 25 patient and prison medical authorities regarding treatment does 26 not give rise to a § 1983 claim.” 27 1337, 1344 (9th Cir. 1981). Farmer v. Brennan, 511 U.S. 825, 837 (1994). 28 5 Id. The If a prison Franklin v. Oregon, 662 F.2d 1 II 2 A 3 On January 6, 2016, Plaintiff submitted an inmate appeal 4 regarding the medical condition that is the subject of this 5 action. 6 The inmate appeal was given the log number PBSP HC 16029491. 7 On January 28, 2016, a nondefendant nurse interviewed Plaintiff 8 regarding the appeal. 9 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 11 United States District Court Northern District of California 10 August 4, 2015 and January 25, 2016, and the doctor did not 12 recommend a referral to a specialist; (2) the doctor reviewed 13 Plaintiff’s June 8, 2015, skin pathology report which revealed 14 that the skin condition was eczema and that no medication 15 treatment was medically indicated; and (3) on November 25, 2015, 16 Plaintiff was examined by a nurse who provided him with 17 instructions to treat his skin condition, including using 18 Selenium Sulfide 1% shampoo, and referred Plaintiff for a follow- 19 up appointment in 30 days, but on December 23, 2015, Plaintiff 20 refused the follow-up appointment. 21 22 Plaintiff did not further appeal the denial to either the second or third level of review. 23 24 Id. Id. ¶ 11. B Defendant Risenhoover is a certified family nurse 25 practitioner and has been licensed to practice in California 26 since 1981. 27 the prison include providing primary health care services to 28 inmates. MSJ, Risenhoover Decl. ¶ 1. Id. ¶ 3. 6 Her responsibilities at 1 Plaintiff has been diagnosed with hypothyroidism (thyroid 2 hormone deficiency). 3 include skin rash, such as eczema. 4 Risenhoover has assisted in administering Plaintiff’s prescribed 5 hypothyroid medication, Levothyroxine Sodium 88 mcg. 6 February 25, 2014, Risenhoover examined Plaintiff who stated he 7 had noticed a dry rash on his shins. 8 that the rash did not itch, was not painful, did not bother him 9 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 11 United States District Court Northern District of California 10 (“TSH”) test, which was within normal range. 12 small, superficial, flaky patch of pinkish dry skin approximately 13 one cm in size with no swelling, pustule, erythema (redness) or 14 tenderness. 15 conservatively by avoiding excess soap and applying lotion, and 16 to return to the clinic if it did not resolve itself. 17 agreed with the treatment plan. Plaintiff had a She advised Plaintiff to manage the rash Plaintiff Id. 18 On April 6, 2014, Plaintiff submitted a medical request 19 stating, “I have a bad skin rash on my left leg, it itches & has 20 been present for more than a month.” 21 Ex. K1. 22 Opposition (Docket No. 23), Risenhoover saw Plaintiff again for the rash on his shins on 23 May 29, 2014. 24 provided him with hydrocortisone cream, (1%) which had helped 25 with the itching, but he had run out. 26 injured his shins or knees, had no fever or chills and had no 27 pain. 28 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 7 1 skin on his right shin. 2 told him to continue the conservative treatment, and she provided 3 an antibiotic ointment to apply to his left shin. 4 a biopsy if the symptoms did not improve. 5 There was no sign of infection, so she She suggested Id. Plaintiff submitted medical requests for the rash on July 6 31, 2014 and October 18, 2014, noting that the creams had not 7 been working. 8 other medical staff and provided different creams for the rash. 9 Id.; Risenhoover Decl. ¶¶ 10-11. 10 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 11 April 2, 2015. 12 steroid cream until the biopsy results were received. 13 instructed Plaintiff to keep his skin clean and dry. 14 result of the skin biopsy was benign (noncancerous) and stated, 15 “Right Inner Shin: 16 Lympho-hostiocytic perivascular dermatitis with focal overlying 17 parakeratic crust (see comment). 18 features favor chronic excematous deramtitis such as chronic 19 nummular or seborrheic dermatitis rather than psoriasis. 20 Correlation with clinical findings & appropriate follow-up are 21 recommended.” 22 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, 23 regarding the rash, which he noted as bleeding, scabbed and very 24 dry. 25 Opposition Ex. E1. On June 19, 2015, Risenhoover reviewed the biopsy results 26 with Plaintiff. 27 he thought the rash was part of his thyroid problem, and that it 28 did not hurt and just itched. Risenhoover Decl. ¶ 15. Plaintiff stated that Risenhoover continued Plaintiff on 8 1 levothyroxine, 88 mcg daily. 2 Risenhoover saw Plaintiff again on August 4, 2015, for his 3 hypothyroid follow up. 4 within normal range. 5 he had a superficial, flaky patch of pinkish dry skin 6 approximately 22 x 12 cm with superficial cracking and no 7 bleeding, erythema, redness, pustules, tenderness or increased 8 heat. 9 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. 11 United States District Court Northern District of California 10 2015, Risenhoover reviewed Plaintiff’s skin biopsy results with a 12 nondefendant doctor. 13 the rash was not psoriasis and was diagnosed as eczema, no 14 treatment cream was medically indicated nor was a referral to a 15 dermatologist needed. 16 Id. ¶ 17. Id. Later on August 4, The doctor stated that because Id. Risenhoover met with Plaintiff on January 25, 2016 and July 17 22, 2016, for hypothyroid follow-up appointments. 18 His lab work was normal, and Plaintiff stated that his rashes did 19 not bother him and he was not in pain. 20 more appointment with Plaintiff on July 26, 2016, where 21 Plaintiff’s TSH lab results were reviewed, and they were within 22 normal range. 23 Id. Id. ¶¶ 19-20. Risenhoover had one Id. ¶ 21. Defendant Dr. Bal is a physician and surgeon licensed to 24 practice in California. 25 2016, Dr. Bal reviewed the inmate appeal Plaintiff submitted on 26 January 6, 2016, which was discussed above. 27 sought to be seen by a specialist and to see if a different 28 medicine such as Otzela or Humira would be appropriate. MSJ, Bal Decl. ¶ 1. 9 On February 12, Id. ¶ 7. Plaintiff Per 1 procedure Plaintiff was interviewed by a nondefendant nurse. 2 ¶ 8. 3 reviewing the appeal, Dr. Bal had no other involvement with 4 Plaintiff’s medical care. Dr. Bal denied the appeal as discussed above. Id. Other than Id. ¶ 12. 5 III 6 A 7 It is undisputed that Plaintiff only submitted an inmate 8 appeal to the first level and that he failed to appeal to the 9 second or third level of review. Plaintiff argues that the denial of his first-level appeal denied all of his requests for 11 United States District Court Northern District of California 10 remedies and stated that granting the requests was beyond the 12 scope of the appeals. 13 he understood this to mean that his administrative remedies were 14 exhausted. 15 Docket No. 23 at 5. Plaintiff states that Id. A review of the entire first-level response demonstrates 16 that Plaintiff took the isolated portion of the response out of 17 context. 18 reasons why each of Plaintiff’s requests was denied. 19 Robinson Decl. Ex. A at PBSP-1. 20 specific points: 1) to be seen by a specialist; 2) to see if 21 certain medications such as Otezla or Humira would be helpful; 22 and 3) that if he does not receive appropriate treatment he will 23 seek monetary compensation in a civil lawsuit. 24 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 25 presented specific facts and arguments why Plaintiff’s appeal was 26 denied. 27 referenced Plaintiff’s requests to be seen by a specialist and 28 for specific medication. Id. at PBSP-1-2. The majority of the response Id. The response did include one 10 1 sentence that stated, “It is beyond the scope of the appeals 2 process to award monetary compensation. 3 your law library for the government code.” 4 response further stated, “A thorough review of your request 5 presented in this complaint has been completed at the first level 6 and is denied.” 7 completed also stated, “If you are dissatisfied with the First 8 Level Response, explain the reason below, attach supporting 9 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.” 11 United States District Court Northern District of California 10 at PBSP-5. 12 regarding what to do if the prisoner is dissatisfied with the 13 Second-Level Response. 14 this form which he attached to his original complaint. 15 No. 1 at 15. 16 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 17 beyond the scope of the inmate appeal system, Plaintiff was 18 required to fully exhaust the claim. 19 86. 20 particular form of relief requested by Plaintiff does not excuse 21 exhaustion because some sort of relief or responsive action may 22 result from the grievance. 23 Porter v. Nussle, 534 U.S. 516, 525 (2002) (purposes of 24 exhaustion requirement include allowing prison to take responsive 25 action, filtering out frivolous cases, and creating 26 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 27 However, the Ninth Circuit has held that an administrative 28 remedy is not available if prison officials inform the prisoner 11 1 that he cannot file a grievance. 2 F.3d 1182, 1191-92 (9th Cir. 2015) (prisoner’s statements that 3 she was thwarted from filing a grievance and appeal meet burden 4 of production in showing that administrative remedies were not 5 available to her). 6 further levels of review if he has either received all the 7 remedies that are “available” at an intermediate level of review, 8 or has been reliably informed by an administrator that no more 9 remedies are available. 10 United States District Court Northern District of California 11 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 12 Brown. 13 verbally told Plaintiff he did not need to further appeal his 14 medical claims. 15 dissatisfied with the first-level response he could appeal it by 16 explaining the reasons for his dissatisfaction and submitting it 17 to the Health Care Appeals Coordinator. 18 sentence in the first-level response that stated monetary 19 compensation was beyond the scope of the appeals process, the 20 majority of the response set forth reasons why Plaintiff’s 21 specific requests for medical care were denied. 22 denials related to his specific medical requests, Plaintiff chose 23 not to further appeal. 24 for summary judgment for failure to exhaust is granted. There are no allegations that any prison official 25 26 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 27 unexhausted claims, Defendants are entitled to summary judgment 28 on the merits. Assuming for purposes of this motion that 12 1 Plaintiff’s rash qualifies as a serious medical need, the 2 undisputed facts demonstrate that Defendants were not 3 deliberately indifferent in the treatment they provided. 4 Risenhoover provided a great deal of medical care over an 5 extended period of time and Plaintiff was also treated by other 6 medical staff. 7 provided different creams and ointments to treat it. 8 rash did not resolve itself, a biopsy was taken which indicated 9 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 11 United States District Court Northern District of California 10 routinely treated, and his lab results were within the normal 12 range. 13 requests to be seen by a specialist and for different medication. 14 Dr. Bal’s only involvement was denying Plaintiff’s Plaintiff disagreed with the treatment and the denial of a 15 referral to a specialist; however, this difference of opinion 16 does not demonstrate deliberate indifference. 17 at 1344. 18 medication and a specialist, he still received regular and 19 routine medical treatment. Plaintiff concedes that he was 20 provided a treatment plan. Opposition at 2. Franklin, 662 F.2d Even though Plaintiff was denied requests for different 21 Defendants have met their burden in showing that there is no 22 genuine dispute of material fact and they are entitled to summary 23 judgment. 24 demonstrating that Defendants were aware of a substantial risk of 25 serious harm and disregarded that risk by failing to take 26 reasonable steps. 27 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 28 13 1 entitled to summary judgment. 1 2 IV 3 4 For the foregoing reasons, the Court hereby orders as follows: 5 6 1. is GRANTED. 7 8 2. The Clerk shall close the file. IT IS SO ORDERED. Dated: 6/2/2017 United States District Court Northern District of California 11 ________________________ THELTON E. HENDERSON United States District Judge 12 13 This order terminates Docket No. 17. 9 10 Defendants’ motion for summary judgment (Docket No. 17) G:\PRO-SE\TEH\CR.16\Bulandr2405.sj.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 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. 14

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