(PC) Ellis v. Baraceros et al, No. 2:2016cv01083 - Document 41 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/19/18 RECOMMENDING that defendants' motion for summary judgment 33 be granted as to plaintiff's medical deliberate indifference claims against defendant Barac eros, and such claims be dismissed without prejudice. Defendants' motion for summary judgment as to plaintiff's medical deliberate indifference claims against defendant Dr. Ko 33 be denied; and this action be remanded to the undersigned for further scheduling. Motion for Summary Judgment 33 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(PC) Ellis v. Baraceros et al Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN ELLIS, 12 13 14 No. 2:16-cv-1083 JAM KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS L. BARACEROS, et al., 15 Defendants. 16 17 18 I. Introduction Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 19 42 U.S.C. § 1983, and is proceeding in forma pauperis. Defendants’ motion for summary 20 judgment is before the court. As discussed below, defendants’ motion should be granted on the 21 grounds that plaintiff failed to exhaust administrative remedies as to his medical deliberate 22 indifference claims against defendants Dr. Ko and Baraceros, and this action should proceed 23 solely on plaintiff’s retaliation claims against defendant Baraceros. 24 II. Background 25 Plaintiff, a 56-year-old paraplegic, suffers from degenerative joint disease and other serious 26 ailments that cause him chronic pain, for which he has been prescribed morphine sulfate extended 27 release for many years in accordance with Pain Management Guidelines. (ECF No. 12 at 11.) 28 Plaintiff alleges that, in violation of the First Amendment, defendant Baraceros retaliated against 1 Dockets.Justia.com 1 plaintiff for filing a grievance against Baraceros, based on detailed allegations set forth in the second 2 amended complaint. (ECF No. 12.) Specifically, plaintiff alleges that defendant Baraceros allegedly 3 and improperly cancelled plaintiff’s morphine prescription in retaliation for plaintiff submitting 4 inmate appeals complaining about defendant Baraceros’ conduct at the California Medical Facility 5 (“CMF”). Further, plaintiff alleges that, in violation of the Eighth Amendment, defendants Baraceros 6 and Dr. Ko were deliberately indifferent to plaintiff’s serious medical needs by causing the 7 cancellation of plaintiff’s chronic pain medications. 8 9 On March 14, 2017, the undersigned found that plaintiff’s allegations state potentially cognizable First and Eighth Amendment claims for relief. (ECF No. 13.) 10 On January 25, 2018, defendants filed a motion for summary judgment on the grounds 11 that plaintiff failed to exhaust his administrative remedies as to (1) his medical deliberate 12 indifference and retaliation claims against defendant Ko; 1 and (2) his medical deliberate 13 indifference claim against defendant Baraceros.2 (ECF No. 33.) On February 22, 2018, plaintiff 14 filed an opposition, a separate statement of undisputed and disputed facts, and a request for 15 judicial notice. (ECF Nos. 36-38.) On March 2, 2018, respondent filed a reply to the opposition, 16 and a reply to the separate statement of facts. (ECF Nos. 39-40.) 17 III. Legal Standard for Summary Judgment 18 Summary judgment is appropriate when it is demonstrated that the standard set forth in 19 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 20 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 21 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 22 //// 23 24 25 26 27 28 1 In their motion, defendants construed plaintiff’s pleading as alleging a retaliation claim against Dr. Ko. The court did not identify such claim in its screening order. (ECF No. 13 at 1.) In his opposition, plaintiff confirmed that he did not allege that Dr. Ko retaliated against plaintiff. (ECF No. 36 at 14.) Therefore, the undersigned does not address defendants’ arguments addressing retaliation claims. 2 Defendants did not move for summary judgment on plaintiff’s retaliation claim against defendant Baraceros because it is undisputed that plaintiff exhausted his administrative remedies as to such claim. 2 1 2 3 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 4 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 6 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 7 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 8 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 9 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 10 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 11 burden of production may rely on a showing that a party who does have the trial burden cannot 12 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 13 should be entered, after adequate time for discovery and upon motion, against a party who fails to 14 make a showing sufficient to establish the existence of an element essential to that party’s case, 15 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 16 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 17 necessarily renders all other facts immaterial.” Id. at 323. 18 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 19 the opposing party to establish that a genuine issue as to any material fact actually exists. See 20 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 21 establish the existence of such a factual dispute, the opposing party may not rely upon the 22 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 23 form of affidavits, and/or admissible discovery material in support of its contention that such a 24 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 25 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 26 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 27 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 28 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 3 1 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 2 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 3 1564, 1575 (9th Cir. 1990). 4 In the endeavor to establish the existence of a factual dispute, the opposing party need not 5 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 6 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 7 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 8 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 9 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 10 amendments). 11 In resolving a summary judgment motion, the court examines the pleadings, depositions, 12 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 13 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 14 255. All reasonable inferences that may be drawn from the facts placed before the court must be 15 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa 16 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not 17 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 18 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 19 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 20 genuine issue, the opposing party “must do more than simply show that there is some 21 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 22 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 23 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 24 By contemporaneous notice provided on January 25, 2018 (ECF No. 33-6), plaintiff was 25 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 26 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 27 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 28 //// 4 1 IV. Undisputed Facts3 (“UDF”) 2 1. Between September 10, 2014, and May 20, 2016 (“the relevant period” in plaintiff’s 3 complaint), plaintiff Benjamin Ellis was a prisoner in the custody of the California Department of 4 Corrections and Rehabilitation (“CDCR”) at CMF in Vacaville, California. 5 6 2. During the relevant period, defendant Ko was employed by CDCR as a medical doctor at CMF before transferring to CSP-Solano. 7 8 3. During the relevant period, defendant Baraceros was employed by CDCR as a Licensed Vocational Nurse (“LVN”) at CMF. 9 4. During the relevant period, plaintiff submitted one health care appeal, log number 10 CMF-SC-15000675, that was accepted, adjudicated, and exhausted through all three levels of 11 review. (ECF No. 33-4 at 2-8; 10-21.) 12 5. In health care appeal, log number CMF-SC-15000675, plaintiff alleged that defendant 13 Baraceros retaliated against him after he threatened to submit a staff complaint against her for 14 falsely accusing plaintiff of hiding his medications which led to custody staff searching Plaintiff’s 15 cell. (ECF No. 33-4 at 14-16.) 16 6. Plaintiff did not name or reasonably identify defendant Ko, or any other medical doctor 17 at CMF as a party or witness. Plaintiff also did not raise any allegations that defendants 18 Baraceros, Ko, or any other member of the medical staff at CMF, cancelled plaintiff’s morphine 19 medication. (ECF No. 33-4 at 14-16.) 20 21 7. Plaintiff also did not raise any allegations that defendants Baraceros, Ko, or any other member of the medical staff at CMF, cancelled plaintiff’s morphine medication. (Id.) 22 8. Plaintiff also submitted seven health care appeals for First and/or Second Level review, 23 but not Third Level review, during the relevant period, including log numbers: (1) CMF-HC- 24 16041731 (ECF No. 33-4 at 25-33), (2) CMF-HC-15041522 (ECF No. 33-4 at 39-45), (3) CMF- 25 SC-15000693 (ECF No. 33-4 at 47-62), (4) CMF-HC-16041883 (ECF No. 33-5 at 2-4), (5) CMF- 26 27 3 For purposes of summary judgment, the undersigned finds these facts are undisputed, unless otherwise indicated. 28 5 1 HC-15040483 (ECF No. 33-5 at 10-15), (6) CMF-HC-15040798 (ECF No. 33-5 at 17-24), and 2 (7) CMF-HC-15040609 (ECF No. 33-5 at 31-35).4 (ECF Nos. 33-3 at 3-4, ¶ 9; 33-4; 33-5.) 3 9. Defendants contend that three of those seven appeals included allegations concerning 4 plaintiff’s morphine prescription. (ECF No. 40 at 4.) Plaintiff contends six of his appeals include 5 allegations of plaintiff’s morphine: (1) CMF-HC-15000675 (ECF No. 33-4 at 2-8; 10-21); (2) 6 CMF-HC-16041731 (ECF No. 33-4 at 25-33); (3) CMF-HC-15041522 (ECF No. 33-4 at 41-45); 7 (4) CMF-HC-15000693 (ECF No. 33-4 at 47-62); (5) CMF-HC-16041883 (ECF No. 33-5 at 2-4) 8 (but outside relevant period); and (6) CMF-HC-15040798 (ECF No. 33-5 at 17-24). (ECF No. 37 9 at 3.) 10 10. In the first health care appeal, log number CMF-HC-16041731, signed December 30, 11 2015, plaintiff confirmed that Dr. Ko prescribed plaintiff morphine as PRN (take as needed), but 12 that for unknown reasons, a non-defendant medical doctor, Dr. Saukhla, changed the prescription 13 from PRN to take every evening.5 (ECF No. 33-4 at 28-29.) Plaintiff requested to know what 14 reason Dr. Saukhla had for changing the prescription from PRN, why Dr. Saukhla or LVN 15 Baraceros did not inform plaintiff of such changes, and “why the discontinues.” (ECF No. 33-4 16 at 28.)6 17 4 18 19 20 21 22 23 24 25 26 27 28 Defendants claim this list also includes CMF-HC-15040434; plaintiff claims he never filed a Health Care appeal CMF-HC-15040434. (ECF No. 37 at 3.) Plaintiff concedes that appeals CMF-HC-16041883 and CMF-HC-15040609 fall outside the relevant period and should be disregarded. (ECF No. 36 at 19:4.) 5 In this appeal, plaintiff claims Dr. Saukhla changed the prescription from PRN to “MSER.” (ECF No. 33-4 at 25-33.) However, “MSER” is the medical acronym for Morphine Sulfate Extended-Release. The first level response confirms that the change was from PRN to “every evening.” (ECF No. 33-4 at 31.) 6 On February 19, 2016, the First Level Response identified two issues: (1) disagreement with treatment: why prescription changed from PRN to every night; and (2) why medication was discontinued. (ECF No. 33-4 at 31.) The reviewer noted that the prescription change from PRN to every evening on August 18, 2015, was “due to clerical error,” and that the morphine prescription was stopped on October 27, 2015, due to violation of plaintiff’s pain contract, refusal of “spot urine toxicology screening.” (ECF No. 33-4 at 31.) Plaintiff expressed his dissatisfaction with this response, stating that he did not challenge the 10/27/15 cancellation, but rather why Dr. Saukhla had plaintiff’s medical chart for two weeks, and why did Dr. Saukhla discontinue plaintiff’s medication on 8/19/15 and 8/27/15, when Dr. Ko was plaintiff’s primary care physician. (ECF No. 33-4 at 30.) 6 1 11. On April 4, 2016, health care appeal, log number CMF-HC-16041731, was partially 2 granted at the Second Level of review after prison officials reviewed plaintiff’s medications. 3 (ECF No. 36 at 37-38.) However, in that health care appeal, plaintiff did not allege that defendant 4 Ko, or any other medical doctor, at CMF retaliated against him and/or took inappropriate actions 5 to cancel plaintiff’s morphine prescription. (ECF Nos. 33-4 at 25-33; 36 at 37-38.) 6 12. In the second health care appeal, log number CMF-HC-15041522, plaintiff requested 7 a renewal of his morphine prescription. However, in that health care appeal, plaintiff did not 8 allege that defendants Ko, Baraceros, or any other member of the medical staff at CMF, took 9 inappropriate actions to cancel plaintiff’s morphine prescription. (ECF No. 33-4 at 38-40.) 10 13. On March 3, 2016, health care appeal, log number CMF-HC-15041522, was granted 11 at the Second Level of review after the Second Level Examiner found that plaintiff’s primary care 12 physician had already renewed plaintiff’s morphine prescription. (ECF No. 33-4 at 35-36.)7 13 14. In the third health care appeal, log number CMF-SC-15000693, plaintiff alleged 14 constant harassment from the nursing staff and submitted a staff complaint specifically against 15 defendant Baraceros for retaliation. (ECF No. 33-4 at 50-51.) 16 15. In health care appeal, log number CMF-SC-15000693, plaintiff alleged that Baraceros 17 emailed defendant Ko to report that plaintiff was not taking his morphine medication as 18 prescribed. However, in that health care appeal, plaintiff did not allege that defendant Ko, and/or 19 any other medical doctor at CMF, took inappropriate actions to cancel his morphine prescription. 20 (ECF No. 33-4 at 47-62.) 21 16. Other than the above-mentioned health care appeals, plaintiff did not submit any 22 additional health care appeals that were accepted and adjudicated at the First and/or Second- 23 Levels of Review at CMF. (ECF No. 33-3 at 5, ¶ 13.) 24 17. Other than the above-mentioned health care appeals, no other health care appeals 25 submitted by plaintiff were accepted and adjudicated at the Third-Level during the relevant 26 period. (ECF No. 33-3 at 5, ¶ 14.) 27 28 7 Plaintiff disputes this fact by citing to the denial of the first level appeal and arguing the merits of his claim, but his arguments do not change the outcome of the second level appeal. 7 1 18. Plaintiff did not submit a health care appeal alleging that any of his health care 2 appeals were improperly canceled by the CMF health care Appeals Office, or by any individual 3 Appeals Coordinator. (ECF No. 33-3 at 5, ¶ 15.)8 4 19. In health care appeal, log number CMF-SC-15000693, plaintiff alleged that Baraceros 5 interfered with plaintiff’s medication by emailing defendant Dr. Ko to report that plaintiff was not 6 taking his morphine medication for two weeks. (ECF No. 33-4 at 50-51.) However, in that 7 health care appeal, plaintiff did not allege that defendant Ko, and/or any other medical doctor at 8 CMF, took inappropriate actions to cancel his morphine prescription. (ECF Nos. 33-3 at 5, ¶ 14; 9 33-4 at 47-62.) 10 V. Exhaustion of Administrative Remedies 11 A. Exhaustion Standards 12 The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), requires a 13 prisoner challenging prison conditions to exhaust available administrative remedies before filing 14 suit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); 42 U.S.C. § 1997e(a) (“No action 15 shall be brought with respect to prison conditions under section 1983 of this title, or any other 16 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 17 administrative remedies as are available are exhausted.”). Exhaustion is a precondition to suit; 18 exhaustion during the pendency of the litigation is insufficient. McKinney, 311 F.3d at 1199- 19 1200. This requirement promotes the PLRA’s goal of efficiency by: “(1) ‘giv[ing] prisoners an 20 effective incentive to make full use of the prison grievance process’; (2) reducing prisoner suits as 21 some prisoners are ‘persuaded by the proceedings not to file an action in federal court’; and (3) 22 improving the quality of any remaining prisoner suits ‘because proper exhaustion often results in 23 the creation of an administrative record that is helpful to the court.’” Nunez v. Duncan, 591 F.3d 24 1217, 1226 (9th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)). 25 //// 26 27 28 8 Plaintiff disputes this fact by citing appeals that were rejected, and which he subsequently resubmitted. But plaintiff points to no appeal where he claimed a rejected health care appeal had been improperly cancelled. 8 1 “Proper exhaustion demands compliance with an agency’s deadlines and other critical 2 procedural rules.” Woodford, 548 U.S. at 90. These rules are defined by the prison grievance 3 process itself, not by the PLRA. Jones v. Bock, 549 U.S. 199, 218 (2007). “[A] prisoner must 4 ‘complete the administrative review process in accordance with the applicable procedural rules, 5 including deadlines, as a precondition to bringing suit in federal court.’” Harvey v. Jordan, 605 6 F.3d 681, 683 (9th Cir. 2010) (quoting Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)). 7 In California, a grievance must be timely appealed through the third level of review to complete 8 the administrative review process. Harvey, 605 F.3d at 683; Cal. Code Regs. tit. 15, § 3084.1(b). 9 The State of California provides its inmates and parolees the right to administratively appeal 10 ‘‘any policy, decision, action, condition, or omission by the department or its staff that the inmate 11 or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 12 welfare.’’ Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative 13 remedies, a prisoner must proceed through three formal levels of appeal and receive a decision 14 from the Secretary of the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). 15 The amount of detail in an administrative grievance necessary to properly exhaust a claim 16 is determined by the prison’s applicable grievance procedures. Jones, 549 U.S. at 218; see also 17 Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (‘‘To provide adequate notice, the prisoner 18 need only provide the level of detail required by the prison’s regulations’’). California prisoners 19 are required to lodge their administrative complaint on a CDCR-602 form (or a CDCR-602 HC 20 form for a health-care matter). The level of specificity required in the appeal is described in a 21 regulation: 22 23 24 25 26 27 28 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment. 9 1 Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).9 An inmate has thirty calendar days to submit his or her 2 appeal from the occurrence of the event or decision being appealed, or “upon first having 3 knowledge of the action or decision being appealed.” Cal. Code Regs. tit. 15, § 3084.8(b). 4 However, the Ninth Circuit has held that “a prisoner exhausts such administrative 5 remedies as are available . . . under the PLRA despite failing to comply with a procedural rule if 6 prison officials ignore the procedural problem and render a decision on the merits of the 7 grievance at each available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 8 658 (9th Cir. 2016); see also Franklin v. Foulk, 2017 WL 784894, at *4-5 (E.D. Cal. Mar. 1, 9 2017); Franklin v. Lewis, 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a prisoner’s 10 failure to list all staff members involved in an incident in his inmate grievance, or to fully 11 describe the involvement of staff members in the incident, will not necessarily preclude his 12 exhaustion of administrative remedies. Reyes, 810 F.3d at 958; Foulk, 2017 WL 784894, at *4 13 (“[T]he court in Reyes found that even though the plaintiff’s grievance failed to name two 14 physicians on the prison’s three-person pain committee, prison officials were put on notice of the 15 nature of the wrong alleged in the suit -- that the plaintiff was wrongfully denied pain 16 medication.”); Lewis, 2016 WL 4761081, at *6 (“[T]o the extent Defendants argue that Plaintiff 17 failed to comply with a procedural requirement by not naming Defendants in [his appeal], this 18 deficiency is not necessarily fatal to Plaintiff’s claim pursuant to Reyes”); Grigsby v. Munguia, 19 2016 WL 900197, at *11-12 (E.D. Cal. Mar. 9, 2016) (appeal pursued through all three levels of 20 review challenged the excessive force incident, and prison officials aware of defendant Baker’s 21 9 22 23 24 25 26 27 28 California prison regulations governing inmate grievances were revised on January 28, 2011,. Cal. Code Regs. tit. 15, § 3084.7. Several Ninth Circuit cases refer to California prisoners’ grievance procedures as not specifying the level of detail necessary and instead requiring only that the grievance ‘‘describe the problem and the action requested.’’ See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Cal. Code Regs. tit. 15, § 3084.2); Sapp, 623 F.3d at 824 (‘‘California regulations require only that an inmate ‘describe the problem and the action requested.’ Cal. Code Regs. tit. 15, § 3084.2(a)’’); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (when prison or jail’s procedures do not specify the requisite level of detail, ‘‘‘a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought’”). Such cases are distinguishable because they did not address the regulation as it existed at the time of the events complained of in plaintiff’s complaint. Whatever the former requirements may have been, in California since January 28, 2011, the operative regulation set forth above requires specificity in administrative appeals. 10 1 involvement); see also Bulkin v. Ochoa, 2016 WL 1267265, at *1-2 (E.D. Cal. Mar. 31, 2016) 2 (declined to dismiss reckless endangerment claims based on failure to name two defendants in 3 appeal because prison officials addressed the claim on the merits, were alerted to the problem, 4 knew the actors involved, and were given an opportunity to rectify the alleged wrong); see also 5 McClure v. Chen, 246 F.Supp.3d 1286, 1292-94 (E.D. Cal. Mar. 28, 2017) (claim that prison 6 officials failed to provide adequate medical attention for an eye injury suffered after falling from 7 his bunk, the same as raised in his federal complaint and pursued until the appeals were granted, 8 was sufficient to exhaust remedies). 9 Nonetheless, for administrative remedies to be exhausted by California prisoners as to 10 defendants who were not identified in the inmate grievance, there must be a “sufficient 11 connection” between the claim in the appeal and the unidentified defendants such that prison 12 officials can be said to have had “notice of the alleged deprivation” and an “opportunity to 13 resolve it.” Reyes, 810 F.3d at 959 (finding that plaintiff had satisfied PLRA exhaustion 14 requirements as to two prison doctors despite not having identified them in his inmate appeals 15 because there was a sufficient connection between plaintiff’s appeal based on inadequate pain 16 management, and the doctors, who served on the prison committee that had denied plaintiff 17 medication); McClure, 246 F.Supp 3d at 1293-94 (remedies exhausted even though doctors not 18 named in appeal; prison was placed on notice) ). 19 An inmate must exhaust available remedies, but is not required to exhaust unavailable 20 remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). “To be available, a 21 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Id. 22 (quoting Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)). “Accordingly, an inmate is 23 required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain 24 ‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (quoting 25 Booth v. Churner, 532 U.S. 731, 738 (2001)). 26 Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead 27 and prove.” Jones, 549 U.S. at 204. It is the defendant’s burden to prove that there was an 28 available administrative remedy, and that the prisoner failed to exhaust that remedy. Albino, 747 11 1 F.3d at 1172. “Once the defendant has carried that burden, the prisoner has the burden of 2 production. That is, the burden shifts to the prisoner to come forward with evidence showing that 3 there is something in his particular case that made the existing and generally available 4 administrative remedies effectively unavailable to him.” Id. If the court concludes that the 5 prisoner failed to exhaust available administrative remedies, the proper remedy is dismissal 6 without prejudice. See Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th 7 Cir. 2005). 8 B. Discussion 9 Plaintiff argues that he exhausted his medical deliberate indifference claims against 10 defendants Dr. Ko and Baraceros by filing health care appeals, log numbers CMF-HC-15041522 11 and CMF-SC-1500675, respectively.10 Plaintiff also argues that health care appeal, log numbers 12 CMF-SC-15000693 and CMF-HC-15040798 complained about defendant Baraceros’ deliberate 13 indifference to plaintiff’s medical needs when she took steps to interfere with his medication, and 14 appears to argue that such appeals, taken together with CMF-SC-1500675, put prison staff on 15 notice of plaintiff’s medical claims against Baraceros. (ECF No. 36 at 19.) 16 1. Did CMF-HC-15041522 Exhaust Medical Claims as to Dr. Ko? 17 Defendants argue that appeal, log number CMF-HC-15041522, cannot exhaust plaintiff’s 18 deliberate indifference claim because plaintiff simply requested a renewal of his morphine 19 prescription, plaintiff received the renewal of morphine, and plaintiff failed to allege that Dr. Ko 20 or any other medical doctor at CMF took inappropriate action to cancel his morphine prescription. 21 (ECF No. 39 at 3-4.) Defendants argue that because it is undisputed that plaintiff failed to raise 22 his deliberate indifference claims in the appeal, the Reyes exception cannot apply. (ECF No. 39 23 at 4.) 24 It is undisputed that in appeal, log number CMF-HC-15041522, signed November 2, 25 2015, plaintiff requested a renewal of his morphine prescription, and did not allege that defendant 26 //// 27 28 10 Plaintiff conceded that he did not raise any medical deliberate indifference allegations against Dr. Ko in health care appeal, log number CMF-SC-1500675. (ECF No. 36 at 12:16-18.) 12 1 Dr. Ko or any other member of the medical staff at CMF took inappropriate actions to cancel 2 plaintiff’s morphine prescription. (UDF 12.) Specifically, in his appeal, plaintiff wrote: 3 Discontinuation of medication, [without] proper notification. 4 For months I’ve been receiving morphine, PRN, one pill at night for pain. However, I was never notified said meds were no longer PRN which resulted in said medication being discontinued. Two days after being discontinued, said medication was renewed. Into the second day of the renewed meds, Ellis missed day two (2) which resulted in said meds, again, being discontinued. 5 6 7 8 (ECF No. 33-4 at 38, 40.) Plaintiff noted he takes 15 mg of morphine at night for pain. Because 9 plaintiff is a wheelchair-bound paraplegic, he gets up at 2:30 a.m. in order to report to work at 10 4:00 a.m., and the lack of morphine prevents him from getting rest due to the pain he sustains at 11 night. (ECF No. 33-4 at 40.) He also asked the following questions: “Isn’t it policy for a patient 12 to be notified by her/his nurse when changes are made to his/or her medication, such as, no longer 13 being PRN?” and “Isn’t it policy that a patient can’t miss 50q or more of medication in a seven 14 (7) day period (and not just this one (1) day after being prescribed the medication)? (ECF No. 33- 15 4 at 40.) 16 Prior to Reyes, this appeal would be insufficient as to Dr. Ko, because plaintiff did not 17 name Dr. Ko or “list all staff member(s) involved” as required by Cal. Code Regs., tit. 15, 18 § 3084.2. But with the decision in Reyes, the Ninth Circuit now no longer requires such strict 19 adherence to procedural rules under all circumstances. Rather, “a prisoner exhausts such 20 administrative remedies as are available under the PLRA despite failing to comply with a 21 procedural rule if prison officials ignore the procedural problem and render a decision on the 22 merits of the grievance at each available step of the administrative process.” Reyes, 810 F.3d at 23 658. 24 Despite his failure to name Dr. Ko, plaintiff did identify his issue as the “discontinuation 25 of medication,” and identified that his prescription for morphine had been changed from PRN 26 (“as needed”), without notice. In this appeal, plaintiff asks whether the nurse is responsible to 27 notify plaintiff of medication changes, but only a doctor can discontinue, stop, cancel, prescribe, 28 or make changes to a prescription to morphine. (ECF No. 33-4 at 40.) Plaintiff explained that 13 1 without the .15 mg of morphine at night, it was difficult for him to rest up for work the next day 2 due to the pain he suffers at night. (ECF No. 33-4 at 40.) Moreover, in the first level response, 3 the reviewer noted that plaintiff disputed the reasons why the prescription had been stopped, and 4 the reviewer discussed the reasons Dr. Ko stopped plaintiff’s prescription. (ECF No. 33-4 at 41.) 5 In the request for second level review, plaintiff denied telling Dr. Ko to stop all medications 6 rather than submit to a urine test, and reiterated that Dr. Ko’s nurse did not explain to plaintiff the 7 protocol for urine tests. (ECF No. 33-4 at 39.) Plaintiff wrote that although the medication was 8 renewed on October 28, 2015, it was discontinued again on October 29, 2015. (Id.) At the 9 second level of review, the appeal was granted because plaintiff’s prescription to morphine had 10 been renewed, which obviated plaintiff’s need to pursue an appeal to the third level of review, 11 because no further relief was available. 12 The undersigned concludes that Reyes applies because at each level of review, prison 13 officials addressed plaintiff’s claim on the merits, thereby voiding Dr. Ko’s ability to later pursue 14 a procedural bar against this claim. See Reyes, 810 F.3d at 657 (“[W]hen prison officials address 15 the merits of a prisoner’s grievance instead of enforcing a procedural bar, the state’s interests in 16 administrative exhaustion have been served.”). The appeal responses demonstrate that prison 17 officials were alerted to the problem, knew of the actor involved – Dr. Ko – and were given the 18 opportunity to rectify the alleged wrong through internal means, and it was rectified. See id. at 19 659 (“The grievance process is only required to ‘alert prison officials to a problem, not to provide 20 personal notice to a particular official that he may be sued.’”) (quoting Jones, 549 U.S. at 219). 21 The reviewing official did not reject plaintiff’s request for second level review based on adding 22 factual allegations; rather, the reviewer addressed and rectified the problem. Because the intent 23 of the PLRA was fulfilled, id. at 657, the undersigned finds that defendant Dr. Ko cannot now 24 seek dismissal of plaintiff’s claim based on his failure to name Dr. Ko, or plaintiff’s failure to 25 articulate his allegations in the appeal as “Dr. Ko inappropriately cancelled the morphine 26 prescription.” 27 //// 28 //// 14 1 2 2. Did CMF-SC-1500675 Exhaust Medical Claims as to Baraceros? Plaintiff argues that this appeal exhausts his medical claim as to defendant Baraceros 3 because plaintiff alleged that Baraceros falsely accused plaintiff of hiding his medications, 4 engaged in a campaign of harassment, and unprofessional conduct when handling plaintiff’s 5 medications. (ECF No. 36 at 13.) Plaintiff argues that he did not have to use the words 6 “deliberate indifference” in his appeal. 7 Defendants counter that plaintiff makes contradictory assertions in his opposition. (ECF 8 No. 39 at 2.) Plaintiff first states that health care appeal, log number CMF-SC-1500675, was 9 submitted on [A]pril 30, 2015, against Baraceros, only, for retaliation and harassment . . . Plaintiff 10 never stated nowhere in his complaint [alleging] Baraceros discontinued Ellis’ meds, but rather, 11 defendant Baraceros [kept] interfering with Ellis meds.” (ECF No. 36 at 12:15-21.) Defendants 12 argue that plaintiff submitted this appeal because he complained that Baraceros retaliated against 13 him for submitting previous inmate appeals, not because she took any inappropriate actions to 14 cancel his morphine prescription. (ECF No. 39 at 2.) Further, defendants contend that plaintiff’s 15 allegations in such appeal are consistent with his retaliation claim, not a medical deliberate 16 indifference claim, because plaintiff did not include an allegation that Baraceros took any action 17 to improperly cancel plaintiff’s morphine prescription. 18 In his appeal, log number CMF-SC-1500675, plaintiff identified the subject of his 19 complaint as “complaint against staff for retaliation/harassment (nurse).” (ECF No. 33-4 at 14.) 20 in his explanation of the issue, he stated, “I exercised my First Amendment right when I told 21 Baraceros (LVN) I will file a 602 appeal against her if she continues harassing me by falsely 22 accusing me of hiding my medication, although she observed me taking meds, drinking water, 23 etc.” (ECF No. 33-4 at 15-16.) Plaintiff then set forth various ways he alleged Baraceros 24 retaliated against and harassed plaintiff, including issuing him the wrong medication. (ECF No. 25 33-4 at 16.) The second and third level appeal responses addressed plaintiff’s appeal solely as a 26 retaliation claim. (ECF No. 33-4 at 10, 18.) In his request for second level review, plaintiff did 27 not object to the appeal being addressed solely in the context of retaliation (ECF No. 33-4 at 17), 28 and nowhere in his appeal did plaintiff allege that defendant Baraceros denied plaintiff his 15 1 morphine medication by deliberately passing his cell, or caused plaintiff’s morphine prescription 2 to be changed, discontinued, or cancelled inappropriately, as plaintiff alleges in the operative 3 pleading (ECF No. 12 at 13, 15-17). Although plaintiff was not required to use the legal terms 4 “deliberate indifference” in his appeal, he was required to put prison officials on notice of the 5 factual allegations underlying his claim. Because plaintiff included no specific allegations as to 6 defendant Baraceros’ alleged interference with plaintiff’s prescription to morphine, as alleged 7 herein, prison officials were not put on notice that defendant Baraceros was being deliberately 8 indifferent to plaintiff’s serious medical needs by her actions. Rather, prison officials treated the 9 appeal as a complaint that defendant Baraceros was retaliating against plaintiff based on his filing 10 of appeals against her in violation of the First Amendment, as he expressly invoked in his appeal. 11 Therefore, the undersigned finds that appeal, log number CMF-SC-1500675, did not exhaust 12 plaintiff’s medical deliberate indifference claims against defendant Baraceros. 3. Did CMF-SC-15000693 Exhaust Medical Claims as to Baraceros?11 13 14 Plaintiff argues that he did raise allegations concerning his morphine prescription in 15 appeal, log number CMF-SC-15000693. (ECF No. 36 at 18.) Defendants counter that it is 16 undisputed that plaintiff failed to submit such health care appeal to the third level of review. 17 (ECF No. 39 at 5.) Because plaintiff failed to properly exhaust such appeal, defendants argue that 18 plaintiff’s medical deliberate indifference claim against defendant Baraceros should be dismissed 19 as unexhausted. 20 It is undisputed that in this appeal, plaintiff alleged constant harassment by nursing staff, a 21 staff complaint specifically against Baraceros for retaliation, and also alleged that Baraceros 22 emailed Dr. Ko to report plaintiff was not taking his morphine as prescribed. (UDF 14, 15.) On 23 February 11, 2016, a second level appeal response issued, but plaintiff did not seek a third level 24 review. (ECF No. 33-4 at 47-49.) Although the second level response indicated that plaintiff’s 25 appeal was partially granted in that an appeal inquiry into the allegations was conducted, plaintiff 26 was also informed that staff personnel matters are confidential, but that allegations of staff 27 28 11 In this appeal, plaintiff did not allege that defendant Ko or any other medical doctor at CMF took inappropriate actions to cancel his morphine prescription. (ECF No. 33-4 at 47-62.) 16 1 misconduct do not restrict the availability of further relief through the appeals process. 2 Therefore, plaintiff was instructed to submit the staff complaint appeal through all three levels of 3 review if plaintiff wished to appeal the decision. He was also informed that a decision at the third 4 level of review would exhaust his administrative remedies. (ECF No. 33-4 at 48.) In plaintiff’s 5 opposition, plaintiff did not address why he failed to pursue this appeal to the third level, or 6 otherwise argue that he should be excused from exhausting appeal, log number CMF-SC- 7 15000693. 8 4. Did CMF-HC-15040798 Exhaust Medical Claims as to Baraceros? 9 Plaintiff argues that in appeal, log number CMF-HC-15040798, he complained about 10 defendant Baraceros’ deliberate indifference to plaintiff’s serious medical needs when she took 11 steps to interfere with his medication. (ECF No. 36 at 19.) Defendants counter that this appeal is 12 not relevant because plaintiff complained that Baraceros did not allow plaintiff to observe her 13 preparing his medications during her medication pass rotations. (ECF No. 39 at 5.) 14 In this appeal, plaintiff explained his issue as “Nurse Baraceros (LVN) continues to refuse 15 to come directly to my cell door . . . so I can observe her preparing my medication.” (ECF No. 36 16 at 74.) Plaintiff also complained that Baraceros held the medicine cup by the rim and not the 17 side. Review of the entire appeal confirms defendants’ position that plaintiff raised no claims 18 relevant to the instant allegations against defendant Baraceros. Moreover, plaintiff failed to 19 pursue this appeal to the third level of review. (ECF No. 36 at 73.) 20 Because appeal, log number CMF-HC-15040798, included none of the factual allegations 21 plaintiff raises in the instant action, it cannot serve to exhaust plaintiff’s medical deliberate 22 indifference claims against defendant Baraceros. 23 Finally, plaintiff appears to argue that prison officials were put on notice of his medical 24 deliberate indifference allegations against defendant Baraceros because of the factual allegations 25 set forth in appeals CMF-SC-15000693 and CMF-HC-15040798, when read together with his 26 appeal CMF-SC-1500675. (ECF No. 36 at 19.) However, plaintiff cites no legal authority for 27 such theory, and the court is unaware of one. Rather, as set forth above, each inmate appeal is 28 //// 17 1 reviewed individually to determine whether the prisoner exhausted his claims raised in the civil 2 rights pleading filed in federal court. 3 VI. Conclusion 4 The undersigned finds that plaintiff failed to exhaust his administrative remedies as to his 5 medical deliberate indifference claim against defendant Baraceros, but not as to defendant Dr. 6 Ko. Under the PLRA, plaintiff’s failure to pursue and exhaust his administrative remedies 7 requires dismissal of plaintiff’s medical deliberate indifference claim against defendant Baraceros 8 without prejudice. If these findings and recommendations are adopted, this action will proceed 9 on plaintiff’s retaliation claims against defendant Baraceros, and plaintiff’s medical deliberate 10 indifference claims against defendant Dr. Ko. 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. Defendants’ motion for summary judgment (ECF No. 33) be granted as to plaintiff’s 13 medical deliberate indifference claims against defendant Baraceros, and such claims be dismissed 14 without prejudice; 15 16 2. Defendants’ motion for summary judgment as to plaintiff’s medical deliberate indifference claims against defendant Dr. Ko (ECF No. 33) be denied; and 17 3. This action be remanded to the undersigned for further scheduling. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be filed and served within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: June 19, 2018 27 /cw/elli1083.msj.fte 28 18