1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 NICHOLAS ESTRADA, ) Case No.: 1:18-cv-00599-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) REGARDING DEFENDANTS’ MOTION FOR ) SUMMARY JUDGMENT 14 CALIFORNIA CORRECTIONAL ) INSTITUTION, et al., (ECF No. 40) 15 ) ) 16 Defendants. ) ) 17 )
18 Plaintiff Nicholas Estrada is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Defendants’ motion for summary judgment for failure to exhaust 21 the administrative remedies, filed on April 9, 2021. 22 I. 23 RELEVANT BACKGROUND 24 This action is proceeding against Defendants Bounville and Sullivan for deliberate 25 indifference to a serious medical need in violation of the Eighth Amendment. 26 On September 6, 2019, Defendants filed a motion to dismiss the complaint for failure to state a 27 cognizable claim for relief. (ECF No. 16.) 28 On May 28, 2020, the undersigned issued Findings and Recommendations recommending that 1 Defendants’ motion to dismiss the complaint be denied. (ECF No. 22.) 2 On August 10, 2020, the Findings and Recommendations were adopted in full, and 3 Defendants’ motion to dismiss was denied. (ECF No. 23.) 4 Defendants then filed an answer to the complaint on August 19, 2020. (ECF 24.) 5 After an unsuccessful settlement conference, the Court issued the discovery and scheduling 6 order on February 3, 2021. (ECF No. 39.) 7 Defendants filed the instant motion for summary judgment on April 9, 2021. (ECF No. 40.) 8 Plaintiff did not file an opposition and the time to do so has passed. Local Rule 230(l). Accordingly, 9 Defendants’ motion for summary judgment is submitted for review without oral argument. (Id.) 10 II. 11 LEGAL STANDARD 12 A. Statutory Exhaustion Requirement 13 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o 14 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 15 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 16 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 17 mandatory unless unavailable. Exhaustion is required regardless of the relief sought by the prisoner 18 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 19 the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 20 U.S. 516, 532 (2002). 21 Section 1997e(a) also requires “proper exhaustion of administrative remedies, which ‘means 22 using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues 23 on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted). “Proper exhaustion 24 demands compliance with an agency’s deadlines and other critical procedural rules because no 25 adjudicative system can function effective without imposing some orderly structure on the course of 26 its proceedings.” Id. at 90-91. “[I]t is the prison’s requirements, and not the PLRA, that define the 27 boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The obligation to 28 exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 1 longer the case, then there are no ‘remedies … available,’ and the prisoner need not further pursue the 2 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth 3 v. Churner, 532 U.S. 731, 739 (2001)). 4 The failure to exhaust is an affirmative defense, and the defendant or defendants bear the 5 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. at 216; Albino v. 6 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear on the 7 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 8 1166. Otherwise, the defendant or defendants must produce evidence proving the failure to exhaust, 9 and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in 10 the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. Id. A.1 1 Summary Judgment Standard 12 Any party may move for summary judgment, and the Court shall grant summary judgment if 13 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 14 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 15 c1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 16 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 17 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 18 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 19 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 20 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 21 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified 22 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 23 1011, 1017 (9th Cir. 2010). “The evidence must be viewed in the light most favorable to the 24 nonmoving party.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2014). 25 Initially, “the defendant’s burden is to prove that there was an available administrative remedy, 26 and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the 27 defendant meets that burden, the burden of production then shifts to the plaintiff to “come forward 28 with evidence showing that there is something in his particular case that made the existing and 1 generally available administrative remedies effectively unavailable to him.” Id. However, the 2 ultimate burden of proof on the issue of administrative exhaustion remains with the defendant. Id. “If 3 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a 4 defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts 5 are disputed, summary judgment should be denied, and the district judge rather than a jury should 6 determine the facts.” Id. 7 III. 8 DISCUSSION 9 A. Summary of CDCR’s Administrative Appeal Process1 10 A prisoner in the custody of the California Department of Corrections and Rehabilitation 11 (“CDCR”) satisfies the administrative exhaustion requirement for a non-medical appeal or grievance 12 by following the procedures set forth in California Code of Regulations, title 15, §§ 3084-3084.9. 13 California Code of Regulations, title 15, § 3084.1(a) provides that “[a]ny inmate … under 14 [CDCR’s] jurisdiction may appeal any policy, decision, action, condition, or omission by the 15 department or its staff that the inmate … can demonstrate as having a material adverse effect upon his 16 or her health, safety, or welfare.” An inmate is required to use a CDCR Form 602 to “describe the 17 specific issue under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). An inmate 18 is limited to one issue, or related set of issues, per each CDCR Form 602 and the inmate “shall state all 19 facts known and available to [them] regarding the issue being appealed at the time of submitting” the 20 CDCR Form 602. Cal. Code Regs. tit. 15, § 3084.2(a)(1) & (a)(4). Further, the inmate “shall list all 21 staff member(s) involved and … describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 22 3084.2(a)(3). If known, the inmate must include the staff member’s last name, first initial, title or 23 position, and the dates of the staff member’s involvement in the issue being appealed. Id. If the 24 inmate does not know the staff member’s identifying information, the inmate is required to “provide 25 26
27 1 On March 25, 2020, the grievance procedure outlined in § 3084.1, et seq., was repealed effective June 1, 2020, as an emergency by the CDCR pursuant to Penal Code § 5058.3. See CCR, tit. 15, § 3084.1, ¶ 13 (June 26, 2020). However, 28 1 any other available information that would assist the appeals coordinator in making a reasonable 2 attempt to identify the staff member(s) in question.” Id. 3 Unless the inmate grievance falls within one of the exceptions stated in California Code of 4 Regulations, title 15, §§ 3084.7(b)(1)-(2) and 3084.9, all inmate grievances are subject to a three-step 5 administrative review process: (1) the first level of review; (2) the second level appeal to the Warden 6 of the prison or their designee; and (3) the third level appeal to the Secretary of CDCR, which is 7 conducted by the Secretary’s designated representative under the supervision of the third level 8 Appeals Chief. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(a)-(d). Unless the inmate grievance 9 deals with allegations of sexual violence or staff sexual misconduct, an inmate must submit the CDCR 10 Form 602 and all supporting documentation to each the three levels of review within 30 calendar days 11 of the occurrence of the event or decision being appealed, of the inmate first discovering the action or 12 decision being appealed, or of the inmate receiving an unsatisfactory departmental response to a 13 submitted administrative appeal. Cal. Code Regs. tit. 15, §§ 3084.2(b)-(e), 3084.3, 3084.6(a)(2), 14 3084.8(b). When an inmate submits an administrative appeal at any of the three levels of review, the 15 reviewer is required to reject the appeal, cancel the appeal, or issue a decision on the merits of the 16 appeal within the applicable time limits. Cal. Code Regs. tit. 15, §§ 3084.6(a)-(c), 3084.8(c)-(e). If an 17 inmate’s administrative appeal is rejected, the inmate is to be provided clear instructions about how to 18 cure the appeal’s defects. Cal. Code Regs. tit. 15, §§ 3084.5(b)(3), 3084.6(a)(1). If an inmate’s 19 administrative appeal is cancelled, the inmate can separately appeal the cancellation decision. Cal. 20 Code Regs. tit. 15, § 3084.6(a)(3) & (e). 21 B. Summary of Relevant Factual Allegations of Plaintiff’s Complaint 22 Plaintiff alleges that on August 28, 2016, he was transferred to CCI in Tehachapi, California, in 23 the mental health program. Plaintiff has severe mental disorders, including audio and visual 24 hallucinations, bipolar disorder, depression, schizophrenia and has suffered abuse under the CDCR 25 mental health program. 26 Plaintiff was seen, treated, and diagnosed by an unlicensed psychologist; a social worker named 27 R. Bounville, who referred to herself as a licensed psychologist. She had access to Plaintiff’s mental 28 health file without his permission. Defendant Bounville instructed and advised Plaintiff it would be best 1 for him to stop taking his mental health medication due to their long-term side effects which is beyond 2 her cope of experience and profession. Defendant Bounville does not have the authority to give patient 3 advice or consultation in regard to psychiatric medication nor its side effects. Plaintiff contends that 4 had he known that Defendant Bounville was not a psychologist he would not have disclosed his personal 5 information to her. 6 Several times between August 2016 to June 2017, Plaintiff requested to see the social worker, 7 displaying symptoms of mental disorders. These included hearing voices, audio and visual 8 hallucinations, anxiety, weight gain, depression, anger issues, mood swings, arguing and fighting, over 9 eating, lack of sleep, and crying with thoughts of suicide. Plaintiff alleges that his symptoms were 10 consistent with schizophrenic disorder, bipolar disorder, and depression. Plaintiff explained his 11 symptoms in his requests and his need for medication and a psychiatrist. The social worker told Plaintiff 12 that she would call him into her office every week to see how he was doing, but she never did. After 13 several months of no responses or follow-ups, Plaintiff’s symptoms became too overwhelming to 14 handle. He requested to see the social worker by filing a mental health medical request form, and she 15 referred him to a psychiatrist. 16 Plaintiff had a tele-medicine video conference with the psychiatrist and an assistance nurse was 17 present who took Plaintiff’s vitals and remained present during the session. During the session, Plaintiff 18 tried to express his symptoms to the doctor, but did not feel comfortable because the nurse kept laughing 19 and giggling at Plaintiff’s symptoms. Believing that he was entitled to confidentiality of his symptoms, 20 Plaintiff cut off the conversation and left the room. 21 Soon thereafter, the social work called Plaintiff for a meeting, and he was still under the 22 impression that she was a psychologist. Plaintiff told her about the conference and his concerns, and 23 requested to see a psychiatrist in person. She gave Plaintiff a copy of who is entitled to see his medical 24 file and that all communication was to be done through TelePsychic, including getting medication. She 25 told him that there was no other option as CCI did not have an onsite psychiatrist. 26 Plaintiff went on for months without mental health care, until CCI brought in a licensed 27 psychologist, Dr. Rosen. This was after Plaintiff filed an administrative complaint that went two levels 28 and up to Sacramento. The response to Plaintiff’s complaint made him aware that Defendant Bounville 1 was a social worker, not a licensed psychologist. 2 Plaintiff alleges that it was Warden Sullivan’s overall decision to employ social workers in place 3 of licensed psychologists due to cost efficiency, and he gave access to patent mental health files to the 4 social workers. It was Warden Sullivan’s responsibility to ensure and oversee that there would be a 5 licensed psychologist and psychiatrist on facility grounds available to inmates that participate in the 6 mental health program. Warden Sullivan also implemented and permitted the mental health department 7 to use TelePsychic without full knowledge of the psychiatrist’s ability to fully observe and diagnose the 8 patient in regards to their symptoms and medication side effects. 9 C. Statement of Undisputed Facts2 10 1. Between August 1, 2016, and May 2, 2018 (the relevant period), Plaintiff was a 11 prisoner within the custody of the California Department of Corrections and Rehabilitation (CDCR). 12 (First Am. Compl., ECF No. 8.) 13 2. During the relevant period, Plaintiff was incarcerated at California Correctional 14 Institution (CCI). (Id.) 15 3. On January 3, 2017, Plaintiff submitted one health care appeal that was accepted and 16 adjudicated at the third level of review: Log. No. CCI-HC-17038702. (Declaration of S. Gates 17 (“Gates Decl.”) ¶¶ 7-8, Exs. 1-2.) 18 4. In health care appeal, Log. No. CCI-HC-17038702, Plaintiff alleged that he was not 19 satisfied with the mental health services at CCI, wanted a face to face meeting with a psychiatrist and 20 his psychiatric medication. (Gates Decl. ¶ 9, Ex. 2.) 21 5. Plaintiff did not name, or reasonably identify Defendant Sullivan in Log 22 No. CCI-HC-17038702. (Id.) 23 6. On January 26, 2017, Defendant Bounville interviewed Plaintiff about his claims at the 24 first level of review. (Id.) 25 7. On February 6, 2017, Plaintiff submitted health care appeal Log No. CCI-HC- 26 27
28 2 1 17038702 to the second level because he disagreed with the first level decision and alleged for the first 2 time that he was led to believe that Bounville was a licensed psychiatrist or psychologist. (Id.) 3 8. In health care appeal. Log No. CCI-HC-17038702, Plaintiff did not allege that 4 Bounville held herself out to be a licensed psychiatrist or psychologist. (Id.) 5 9. Plaintiff also did not allege that Bounville, or any member of the mental health care 6 team at CCI, suggested that he stop taking his psychiatric medications. (Id.) 7 10. In log number CCI-HC-17038702, Plaintiff also did not allege that Defendant 8 Sullivan, or any other prison official at CCI, refused to hire on-site licensed psychiatrist or 9 psychologists to save money. (Id.) 10 11. Plaintiff did not submit any other health care appeal for review while he was housed 11 at CCI during the relevant period. (Gates Decl. ¶ 10, Ex. 2.) 12 D. Analysis of Defendants’ Motion 13 Defendants argue that it is undisputed that Plaintiff’s only relevant health care appeal failed to 14 name and/or reasonably identify them, failed to raise the allegations in his complaint, and failed to put 15 CDCR on notice of the allegations in his complaint against them. 16 It is uncontested that Plaintiff had an available administrative remedy, and that his grievance 17 CCI-HC-17038702 exhausted such administrative remedies. The only issue in the instant motion is 18 whether grievance CCI-HC-17038702—Plaintiff's sole administrative grievance exhausted the claims 19 in the first amended complaint against Defendants. (See generally Mot.) 20 1. Defendant Bounville 21 Pursuant to the Court’s February 12, 2019, screening order, Plaintiff is proceeding against 22 Defendant Bounville as the allegations that, as a social worker, she told him to stop taking his mental 23 health medication, which was beyond the scope of her profession. (ECF No. 9 at 9.) Plaintiff also 24 alleges that he requested to see Bounville several times between August 2016 and June 2017, 25 displaying symptoms of severe mental health disorders, but she failed to see him. (Id.) With these 26 factually allegations in him, the Court turns to whether Plaintiff put prison officials on notice of the 27 allegations against Defendant Bounville. 28 /// 1 As to the requisite level of specificity, inmates were required to state “all facts known and 2 available to him/her regarding the issue being appealed at the time of submitting the [Form 602].” Cal. 3 Code Regs., tit. 15, § 3084.2(a)(4) (2011). Inmates were also required to “list all staff member(s) 4 involved and ... describe their involvement in the issue,” by stating “the staff member's last name, first 5 initial, title or position.” Cal. Code Regs., tit. 15, § 3084.2(a)(3) (2011). If the inmate did not have this 6 information, he or she was required to provide “any other available information that would assist the 7 appeals coordinator in making a reasonable attempt to identify the staff member(s) in question.” Id.3 8 Administrative remedies would not be considered exhausted for any “new issue, information, or 9 person” later named by an inmate “not included in the originally submitted CDCR Form 602.” Cal. 10 Code Regs., tit. 15, § 3084.1(b) (2011). 11 However, the Ninth Circuit has recently held that “a prisoner exhausts such administrative 12 remedies as are available...under the PLRA despite failing to comply with a procedural rule if prison 13 officials ignore the procedural problem and render a decision on the merits of the grievance at each 14 available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); see 15 also Franklin v. Foulk, 2017 WL 784894, at *4–5 (E.D. Cal. Mar. 1, 2017); Franklin v. Lewis, 2016 16 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a prisoner's failure to list all staff members 17 involved in an incident in his inmate grievance, or to fully describe the involvement of staff members 18 in the incident, will not necessarily preclude his exhaustion of administrative remedies. Reyes, 810 19 F.3d at 958; Foulk, 2017 WL 784894, at *4 (“[T]he court in Reyes found that even though the 20 plaintiff's grievance failed to name two physicians on the prison's three-person pain committee, prison 21 officials were put on notice of the nature of the wrong alleged in the suit—that the plaintiff was 22 wrongfully denied pain medication.”); Lewis, 2016 WL 4761081, at *6 (“[T]o the extent Defendants 23 argue that Plaintiff failed to comply with a procedural requirement by not naming Defendants in [his 24 appeal], this deficiency is not necessarily fatal to Plaintiff's claim pursuant to Reyes”); Grigsby v. 25 Munguia, No. 2:14–cv–0789 GAB AC P, 2016 WL 900197, at *11–12 (E.D. Cal. Mar. 9, 2016); see 26 also Bulkin v. Ochoa, 2016 WL 1267265, at *1–2 (E.D. Cal. Mar. 31, 2016); see also McClure v. 27 Chen, 246 F.Supp.3d 1286, 1292–94 (E.D. Cal. Mar. 28, 2017). 28 1 Nonetheless, for administrative remedies to be exhausted by California prisoners as to 2 defendants who were not identified in the inmate grievance, there must be a “sufficient connection” 3 between the claim in the appeal and the unidentified defendants such that prison officials can be said 4 to have had “notice of the alleged deprivation” and an “opportunity to resolve it.” Reyes, 810 F.3d at 5 959 (finding that plaintiff had satisfied PLRA exhaustion requirements as to two prison doctors despite 6 not having identified them in his inmate appeals because there was a sufficient connection between 7 plaintiff's appeal based on inadequate pain management, and the doctors, who served on the prison 8 committee that had denied plaintiff medication); McClure, 246 F. Supp. 3d at 1293–94 (remedies 9 exhausted even though doctors not named in appeal; prison was placed on notice)). 10 In the original grievance CCI-HC-17038702, submitted to the first level of review, Plaintiff 11 stated, “Tehachapi State Prison fails to provide proper mental health services. Inmate has been 12 waiting for months for his medication and psychiatrist counseling.” (DUdF 4.) Plaintiff requested 13 “[t]o have a physical counseling face to face with a psychiatrist and get my medication ASAP.” (Id.) 14 It is undisputed that Defendant Bounville was not named as a wrongdoer in the original grievance 15 CCI-HC-17038702 submitted to the first level of review. Cal. Code Regs. tit. 15, § 3084.1 (2011). 16 Nor did Plaintiff “describe his involvement in the issue” in the originally filed administrative appeal. 17 Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2011). Plaintiff did not specifically name Bounville as a social 18 worker in grievance CCI-HC-17038702 until the second level of review. Thus, Defendant Bounville 19 was “later named by the appellant,” and Plaintiff did not exhaust as to this Defendant. Cal. Code Regs. 20 tit. 15, § 3084.1(b). Notwithstanding this fact, Plaintiff did not sufficiently describe the alleged 21 misconduct by Defendant Bounville to place the prison on notice of the claims upon which this action 22 proceeds. More specifically, there are no allegations that Defendant Bounville held herself out to be 23 psychiatrist or psychologist or that she told him to stop taking his mental health medication. Nor are 24 there sufficient allegations that Bounville failed to see Plaintiff as promised from August 2016 and 25 June 2017. 26 This case is distinguishable from Reyes. In Reyes v. Smith, the Ninth Circuit found that a 27 California inmate had exhausted a claim for deliberate indifference to a serious medical need, although 28 his original administrative appeal failed to name all staff members involved in his case, because that 1 claim was decided on its merits at all levels of review. 810 F.3d at 656-57. The defendants in that case 2 were members of a committee which the plaintiff blamed for his injury, and to which prison officials 3 repeatedly referred in denying the plaintiff's administrative appeals. Id. at 659. Thus, prison officials 4 could “easily identif[y]” the defendants’ “involvement in the issue,” even though the defendants were 5 not named in the original administrative appeals. In addition, the prison officials “ignore[d] the 6 procedural problem and render[ed] a decision on the merits of the grievance at each available step of 7 the administrative process.” Id. at 658-59. 8 In contrast, here, the involvement of Defendant Bounville is not “easily identified” in the 9 original grievance. Id. at 658. Instead, the original administrative appeal did not name a specific 10 individual and simply requested psychiatrist counseling and medication. There is no mention that 11 Defendant Bounville improperly held herself out to be a psychiatrist and instructed Plaintiff to stop of 12 medication. Indeed, at the first level of review, the appeals examiner noted that Plaintiff was 13 requesting face to face counseling with a psychiatrist and medication. (Gates Decl., Ex. 2.) This 14 demonstrates that prison officials interpreted grievance CCI-HC-17038702 as a general claim relating 15 to mental health treatment and medication, and not involving a specific individual’s alleged 16 misconduct. Because Defendant Bounville was not identified or alleged to have engaged in any 17 misconduct in the original appeal, she could not have been “easily identified” in the original CCI-HC- 18 17038702 grievance. Further, unlike in Reyes, prison officials did not “opt not to enforce a 19 procedural rule” as to Defendant Bounville. Reyes, 810 F.3d at 658. At both the second and third 20 levels of review, the response is confined to the allegations raised in the original CCI-HC-17038702 21 grievance. 22 At the second level of review, Plaintiff alleged as follows: 23 Tehachapi State Prison does not provide adequate mental health care as required by Title 15 Sec. 3300(a). Please see attached section. This institution does not provide a on the grounds 24 psychologist licensed to practice in this State or a supervision of a psychiatric to supervise mental health treatment or diagnostic services. Per Title 15 Sec. 3301(a). This facility only 25 provides social workers and or a supervisor of social work as note on the face of the 602 staff 26 response. The inmate Estrada was led to believe that social worker, R. Bounville, was a licensed psychologist licensed to practice in this State and who holds a Doctoral Degree per 27 this section. In believing this “Hoax,” the above inmate revealed deeply personal and private matters which now degraded and did not maintain the dignity of the inmate per Title 15 Sec. 28 1 3361(c). Inmates diagnoses in part include audio and visual allucinations [sic] which make it extremely difficult to communicate with an absent psychiatrist via televisual monitor. These 2 sessions happen with a non-license medical staff present to overhear doctor/patient privileged information. Supervisor Paul Thornburg has no authority to refuse inmate psychiatric care or 3 medication if inmate refused to work with or through the televisual monitor where a 4 psychiatrist cannot give a full visual of the inmates signs of mental illness. This institution allow this inadequate mental health treatment & diagnostic services via television monitor, 5 cause it does not have proper licensed psychiatrist or psychologist on grounds let alone a supervisor of psychiatry to oversee any and all social workers or counselors working with 6 inmate diagnoses. 7 (Citation.) 8 While Plaintiff references that he was led to believe Defendant Bounville was a licensed 9 psychologist at the second level of review, there are insufficient allegations that she engaged in any 10 wrongdoing by holding herself out as a licensed psychologist, advised Plaintiff to stop taking his 11 medication, and failed to evaluate him in August 2016 and June 2017. The factual allegations relating 12 to Defendant Bounville do not provide sufficient notice to prison officials of the alleged wrongdoing 13 at issue in this action. 14 As a result of Plaintiff’s failure to describe any misconduct by or at the behest of Bounville, 15 Plaintiff did not “provide the level of detail required by the prison's regulations,” Sapp v. Kimbrell, 16 623 F.3d 813, 824 (9th Cir. 2010), and therefore did not properly exhaust his administrative remedies 17 for a claim that Bounville was deliberately indifferent to his serious mental health needs. See 18 Woodford v. Ngo, 548 U.S. at 90. By failing to provide this information, Plaintiff failed to provide 19 sufficient information to allow prison officials to take appropriate responsive measures to the problem 20 of which he complains in his first amended complaint. Defendant Bounville has carried her burden to 21 show that Plaintiff did not properly exhaust his administrative remedies for his claim against 22 Bounville. 23 Once Defendant has met her burden, the burden shifted to Plaintiff to come forward with 24 evidence showing that something in his particular case made the existing administrative remedies 25 effectively unavailable to him. See Albino, 747 F.3d at 1172. Plaintiff did not file an opposition and 26 there is no evidence that something in his particular case made the administrative remedies process 27 unavailable or that he is excused from the exhaustion requirement. 28 1 In addition, it is well-settled that in order to bring a claim against an official who reviews an 2 administrative appeal, the inmate must separately grieve the official's actions. See Cortinas v. Portillo, 3 754 F. App'x 525, 527 (9th Cir. 2018) (concluding that a claim against an appeals coordinator for 4 cancellation was not exhausted because it was not raised in a separate administrative appeal); 5 McCurdy v. Rivero, No. 17-01043-BLF, 2018 WL 4300521, at *3, 6-7 (N.D. Cal. Sept. 10, 2018) 6 (plaintiff failed to exhaust a claim for improper screening where the plaintiff's original administrative 7 appeal mentioned neither the improper screening nor the screener); cf. Brodheim v. Cry, 584 F.3d 8 1262, 1266 (9th Cir. 2009) (noting that prisoner had properly exhausted administrative remedies 9 where he had filed a new administrative appeal regarding the appeals coordinator's actions on review). 10 Plaintiff never filed an original administrative appeal against Defendant Bounville, and he had thirty 11 days from the January 26, 2017, health care appeal interview to do so. Accordingly, Plaintiff has 12 failed to exhaust the administrative remedies as to Defendant Bounville. 13 2. Defendant Sullivan 14 Pursuant to the Court’s February 12, 2019, screening order, Plaintiff contends that “Defendant 15 Sullivan made the decision to employ social workers in place of licensed psychologists to save 16 money.” (ECF No. 9 at 10.) With these factually allegations in mind, the Court turns to whether 17 Plaintiff put prison officials on notice of the allegations against Defendant Sullivan. 18 As discussed above, in the only relevant grievance CCI-HC-17038702, Plaintiff alleged that 19 CCI failed to provide him adequate mental health treatment and he has been waiting months for a face 20 to face meeting with a psychiatrist or psychologist. (DUdF 4.) While Plaintiff expressed his 21 dissatisfaction with the delivery of CCI’s mental health services and asked to be seen by a licensed 22 psychiatrist or psychologist in person, he did not put CDCR on notice of the allegation in his 23 complaint that Defendant Sullivan, or any other prison official at CCI, refused to hire on-site 24 psychiatrists to save money for CDCR. (DUdF 4, 10.) Plaintiff failed to properly exhaust his 25 administrative remedies as to Defendant Sullivan because he did not name him in his inmate appeal or 26 specifically describe his alleged wrongdoing as required by CDCR’s regulations. See Woodford v. 27 Ngo, 548 U.S. at 90-91 (“Proper exhaustion demands compliance with an agency’s deadlines and 28 other critical procedural rules because no adjudicative system can function effectively without 1 imposing some orderly structure on the course of its proceedings.”); see, e.g., Parks v. Chappell, No. 2 C-13-4048 EMC (pr), 2015 WL 3466280 (N.D. Cal. 2015) (Chen, J.) (granting summary judgment in 3 warden’s favor because inmate appeal about injury-causing event did not mention warden by name or 4 title); Martinez v. Swift, No. C 13-3973 RS (pr), 2015 WL 1349525, at *2 (N.D. Cal. 2015) (Seeborg, 5 J.) (granting summary judgment for nonexhaustion because the grievance “does not mention 6 [defendant], or describe with any specificity his actions or words” and therefore did not comply with 7 section 3084.2(a)(3)); Panah v. State of Cal. Dep’t of Corr. and Rehab., No. 14-cv-00166-BLF, 2015 8 WL 1263494, at *9-10 (N.D. Cal. 2015) (Freeman, J.) (even if plaintiff’s failure to pursue inmate 9 appeal to highest level is excused, he failed to properly exhaust his claim against the warden because 10 his inmate appeal did not name the warden or describe the basis for his liability); Gray v. Smith, No. C 11 13-1229 WHA (pr), 2015 WL 875482, at *2-3 (N.D. Cal. 2015) (Alsup, J.) (granting summary 12 judgment for nonexhaustion where inmate appeal described an incident at the prison but did not name 13 the warden and did not describe a widespread practice or that the warden knew of the incident and 14 failed to stop it). Plaintiff’s simple reference that he was not satisfied with the delivery of CCI’s 15 mental health services, there is no mention of the claim that any individual was denying such services 16 to simply save money. No reasonable person reviewing Plaintiff’s contention in the context of the 17 appeal would have understood that Plaintiff intended to complain about the lack of mental health 18 services based on financial considerations. Although “ ‘[t]he primary purpose of a grievance is to alert 19 the prison to a problem and facilitate its resolution, not to lay groundwork for litigation,’ ” Reyes v. 20 Smith, 810 F.3d at 659, Plaintiff’s appeal relating to the mental health services did not alert the prison 21 to the claim that Defendant Sullivan was denying in person mental health treatment to save money and 22 it did not suffice to satisfy the standards of § 3084.2(a) to exhaust administrative remedies for this 23 event. 24 IV. 25 RECOMMENDATIONS 26 Based on the foregoing, it is HEREBY RECOMMENDED that: 27 1. Defendants’ motion for summary judgment be granted; and 28 1 2. The instant action be dismissed, without prejudice, for failure to exhaust the 2 administrative remedies. 3 These Findings and Recommendations will be submitted to the United States District Judge 4 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty (30) days aft 5 || being served with these Findings and Recommendations, the parties may file written objections with 6 || the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 || Recommendations.” The parties are advised that failure to file objections within the specified time 8 || may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 9 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 ||IT IS SO ORDERED. Al fe 2 || Dated: _ July 29, 2021 OF 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15