1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN QUINONES, No. 2:22-CV-0833-DC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 RICHARD GRAY, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendant Gray’s motion for summary judgment. 19 ECF No. 37. Defendant argues that Plaintiff cannot prevail on the merits of his claims and that 20 Plaintiff failed to exhaust his claims by way of the prison grievance process prior to filing suit. 21 Plaintiff has not filed an opposition. 22 The Federal Rules of Civil Procedure provide for summary judgment or summary 23 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 24 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 25 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 26 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 27 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 28 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 1 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party
3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact.
6 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 8 If the moving party meets its initial responsibility, the burden then shifts to the 9 opposing party to establish that a genuine issue as to any material fact actually does exist. See 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 11 establish the existence of this factual dispute, the opposing party may not rely upon the 12 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 13 form of affidavits, and/or admissible discovery material, in support of its contention that the 14 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 15 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 16 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 18 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 19 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 20 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 21 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 22 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 23 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 24 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 25 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 26 / / / 27 / / / 28 / / / 1 In resolving the summary judgment motion, the court examines the pleadings, 2 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 3 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 4 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 5 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 6 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 7 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 8 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 9 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 10 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 11 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 12 imposed.” Anderson, 477 U.S. at 251. 13 14 I. BACKGROUND 15 A. Plaintiff’s Allegations 16 Plaintiff is a prisoner currently housed at High Desert State Prison (HDSP), 17 located in Susanville, California. See ECF No. 1. Plaintiff brings suit against the following 18 defendants: (1) Robert St. Andre, Warden at HDSP; (2) Dr. Richard Gray, a physician at HDSP; 19 (3) Dr. Robert C. Fox, a physician at HDSP; (4) John Doe I; (5) John Doe II; and (6) the 20 California Department of Corrections and Rehabilitations (CDCR). Id. at 2. Plaintiff alleges 21 violation of his Eighth Amendment rights against the named defendants for deliberate 22 indifference towards his medical care. Id. 23 Plaintiff alleges that, on May 30, 2019, upon Plaintiff’s arrival at HDSP, Plaintiff 24 was assigned the upper level of the bunk bed. Id. Plaintiff stated to Defendant Doe I that he 25 needed to be placed on the lower level of the bunk bed because he has gout. Id. Defendant Doe I 26 ordered Plaintiff to take the upper level of the bunk bed, or he would receive a Rule Violation 27 Report. Id. On the same night, Plaintiff fell off the upper level of the bunk bed, which led to 28 severe injuries. Id. The following morning, Plaintiff’s cell mate reported the fall to Defendant 1 Doe II. Id. at 5. Plaintiff was moved to the lower level of the bunk bed after the incident. Id. 2 According to Plaintiff, on June 2, 2019, Plaintiff stated that his head was still 3 hurting from the fall and his left eyeball began to secrete blood. Id. Plaintiff alleges that 4 Defendant Doe I should have listened to his plea for the lower level of the bunk bed, thus, his 5 injuries could have been avoided. Id. Plaintiff alleges that Defendant Doe I’s actions violated his 6 Fourteenth and Eight Amendment Rights because he was denied his right to medical care, due 7 process, and treated with deliberate indifference. Id. at 5. 8 The following day, Defendant Doe II took Plaintiff to the medical clinic. Id. 9 According to Plaintiff, at the medical clinic, Defendant Gray disregarded Plaintiff’s request to be 10 seen immediately. Id. Plaintiff alleges that Defendant Gray sent him away with no medical 11 treatment. Id. Plaintiff was seen by Defendant Fox the following day. Id. Plaintiff was 12 diagnosed with injuries to his left heel and abrasions to his lower extremities. Id. at 9. 13 Furthermore, Plaintiff was diagnosed with a ruptured globe full-thickness corneal laceration on 14 his left eye, essentially a ruptured eye. Id. Plaintiff was prescribed moxifloxacin eye drops, 15 oxycodone, and IV fentanyl. Id. Plaintiff was also ordered for an x-ray. Id. 16 It was later determined that Plaintiff’s left eye was infected and required surgery. 17 Id. at. 6. Plaintiff alleges that the untimely medical treatment resulted in vision loss of his left 18 eye. Id. Furthermore, Plaintiff alleges that he did not receive adequate medical care from 19 Defendant Fox because he was unable to be seen regularly as required. Id. Plaintiff states that 20 his medical appointments have continuously been rescheduled for nearly two years as a result of 21 the COVID-19 pandemic. Id. at 7. Plaintiff alleges that Defendant Fox knew the seriousness of 22 his injuries and deliberately chose to ignore it. Id. at 6. 23 On June 4, 2021, Plaintiff received a response regarding his health care grievance 24 dated January 22, 2021. Id. at 13. The response letter stated that Plaintiff has been prescribed 25 lisinopril, allopurinol, and etodolac to mitigate general aches and pain. Id. at 15. Also, Plaintiff’s 26 medical records confirm that he was placed on a care plan and his primary care provider has 27 discussed the care plan with him. Id. On August 19, Plaintiff received another response 28 regarding his health care grievance. Id. at 16. The response letter confirmed that Plaintiff’s 1 medical records reflect that his Disability Placement Program and his Verification and 2 Comprehensive Accommodation have been updated. Id. at 17. Records accurately reflect that 3 Plaintiff requires the bottom level of the bunk bed as of January 1, 2021. Id. Lastly, the response 4 letter states that Plaintiff’s vision has been gradually deteriorating and there is vision loss on his 5 left eye due to the ruptured globe. Id. A referral has been placed to optometry, but Plaintiff’s 6 condition did not require an urgent outside referral. Id. 7 B. Procedural History 8 On September 21, 2022, the Court issued a screening order finding Plaintiff had 9 stated a cognizable claim against unnamed Defendant Doe I and Defendant Gray. See ECF No. 10 11, pg. 4. In doing so, the Court required Plaintiff to amend his complaint to allege Doe I’s true 11 name before service could be ordered on that individual. Id. To date, Plaintiff has not done so.1 12 As to Defendant Gray, the Court found “Plaintiff states a cognizable claim against Defendant 13 Gray for refusal to provide medical treatment the day after Plaintiff’s fall and head injury.” Id. 14 The Court granted Plaintiff leave to amend in order to cure the identified deficiencies. Id. 15 Plaintiff filed four requests for an extension of time to file an amended complaint. 16 See ECF Nos. 12, 14, 16, and 18. The Court granted each, with the last order granting Plaintiff a 17 thirty-day extension having been issued on February 2, 2023. See ECF Nos. 13, 14, 17, and 19. 18 On April 3, 2023, after Plaintiff did not file an amended complaint within the thirty-day 19 extension, the Court issued findings and recommendations that the case proceed on Plaintiff’s 20 Eighth Amendment medical care claim against Defendants Gray and Doe I, to the extent Doe I is 21 properly identified, and dismissing all other defendants and claims. See ECF No. 21. The Court 22 issued an order determining service on Defendant Gray appropriate. Id. Defendant Gray filed his 23 answer on June 12, 2023. See ECF No. 22. 24 / / /
25 1 Because CDCR is immune from suit under the Eleventh Amendment, see Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991); Lucas v. Dep’t of 26 Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 27 1989); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc), the undersigned will recommend dismissal of CDCR as a 28 defendant to this action. 1 On July 25, 2023, the District Judge issued an order adopting the April 3, 2023, 2 findings and recommendations in full. See ECF No. 35. Defendant Gray timely filed the 3 currently pending motion for summary judgment on July 23, 2024. See ECF No. 37. Plaintiff 4 has not filed an opposition. 5 6 II. THE PARTIES’ EVIDENCE 7 Defendant’s motion is supported by a Memorandum of Points and Authorities, 8 ECF No. 37, a Statement of Undisputed Facts (SUF), ECF No. 37-1, and the declarations of 9 Defendant Gray, ECF No. 37-2, CDRC Correctional Counselor II and Grievance Coordinator B. 10 Alkire, ECF No. 37-3, California Correctional Health Care Services (CCHCS) Chief of Health 11 Care Correspondence and Appeals Branch S. Gates, ECF No. 37-4, and Deputy Attorney General 12 Audra C. Call, ECF No. 37-5. Defendant also relies on attached exhibits including Plaintiff’s two 13 grievances, the Inmate Tracking System report, Institutional and Headquarters Level responses to 14 Plaintiff’s grievances, and transcript of Plaintiff’s deposition. 15 In Defendant’s Statement of Undisputed Facts, Defendant first outlines general 16 facts related to Defendant Gray’s role at HDSP, as follows:
17 1. Defendant was the Chief Physician and Surgeon at High Desert State Prison (HDSP) at the time of the matters at issue in Plaintiff’s 18 Complaint. (Declaration of Defendant R. Gray in Support of Motion for Summary Judgment (Gray Dec.) at ¶ 2.) 19 2. Defendant Gray was not Plaintiff’s primary care physician 20 at HDSP. (Gray Dec. at ¶ 3.)
21 3. As Chief Physician and Surgeon, Defendant Gray did not regularly provide direct patient care to inmate patients. (Gray Dec. at ¶ 4.) 22 4. As Chief Physician and Surgeon, Defendant Gray did not 23 regularly provide direct patient care to inmate patients. (Gray Dec. at ¶ 5; Declaration of Audra C. Call (Call Dec.) at Exhibit A (Pltf. Depo.) at 24 80:4-7.)
25 ECF No. 37-1. 26 / / / 27 / / / 28 / / / 1 Defendant then outlines the following facts related to Plaintiff’s deliberate 2 indifference claim:
3 5. There was no policy in place during June 2019, or any time, that directed medical staff to turn a patient away from the 4 institutional medical clinic if they were experiencing a medical emergency and Defendant never implemented such a policy. (Gray Dec. at ¶ 11; Pltf. 5 Depo. at 76:23-78:23.)
6 6. There was no policy in place during June 2019, or any time, that directed medical staff to turn a patient away from the 7 institutional medical clinic if they were visibly injured and Defendant never implemented such a policy. (Gray Dec. at ¶ 11; Pltf. Depo. at 76:23- 8 78:23.)
9 7. Defendant was not present at the institutional clinic on June 3, 2019, when Plaintiff alleges that he was turned away from the medical 10 clinic. (Gray Dec. at ¶ 8; Pltf. Depo. at 80:4-7.)
11 8. Defendant was not aware that Plaintiff was at the institutional clinic attempting to be seen on June 3, 2019. (Gray Dec. at ¶ 12 7; Pltf. Depo. at 80:4-7.)
13 9. Plaintiff alleges that other, unidentified medical personnel turned Plaintiff away from the medical clinic on June 3, 2019, not 14 Defendant. (Pltf. Depo. at 51:21-52:20.)
15 10. Defendant did not instruct any medical staff or personnel to turn Plaintiff away from the institutional medical clinic on June 3, 2019. 16 (Gray Dec. at ¶¶ 9 & 12; Pltf. Depo. at 80:12-25.)
17 11. Defendant never approved anyone turning away Plaintiff from the medical clinic on or about June 3, 2019. (Gray Dec. at ¶ 12; Pltf. 18 Depo. at 80:12-25.)
19 12. Plaintiff has never met nor spoken to Defendant. (Pltf. Depo. at 80:4-7.) 20 * * * 21 19. As Chief Physician and Surgeon, part of Defendant’s job 22 duties was to review and respond to inmate healthcare grievances. (Gray Dec. at ¶ 13.) 23 20. In this role, Defendant reviewed, and responded to, 24 Plaintiff’s medical grievance HDSP HC 20000928. (Gray Dec. at ¶ 14; ECF No. 1 at 3, 13-15.) 25 21. As part of the investigation into HDSP HC 20000928, 26 Plaintiff’s medical records were reviewed. (Gray Dec. at ¶ 13; ECF No. 1 at 13-15; Ex. B to Gates Dec.) 27
28 / / / 1 22. With respect to Plaintiff’s eye condition, Plaintiff was seen several times by an ophthalmologist who had determined Plaintiff’s 2 condition to be stable. (Ex. B to Gates Dec. at 13; Gray Dec. at ¶ 22.)
3 23. Plaintiff was prescribed medication for his eye condition, had diagnostic tests, and had a pending order to see the ophthalmologist 4 again for a follow up at the time the grievance was reviewed by Defendant. (Ex. B to Gates Dec. at 13; Gray Dec. at ¶¶ 15 & 16.) 5 24. Plaintiff’s appointment with the ophthalmologist had to be 6 rescheduled on a few occasions because of the COVID-19 outbreak. (Gray Dec. at ¶ 20; Ex. B to Gates Dec. at 13.) 7 25. Particularly in 2020, at the height of the COVID-19 8 pandemic, in-person medical appointments were limited as much as possible to prevent the spread and to protect both inmates and staff. (Gray 9 Dec. at ¶¶ 17-19.)
10 26. Non-emergent medical appointments requiring in-person evaluation were postponed pending on the circumstances and the housing 11 conditions in relation to COVID-19 conditions. (Gray Dec. at ¶¶ 17-19.)
12 27. There was nothing in the medical records that Defendant reviewed which indicated that Plaintiff would be harmed by having his 13 appointments with the ophthalmologist postponed. (Gray Dec. at ¶ 21.)
14 28. Defendant had no knowledge or understanding that Plaintiff’s eye condition was urgent or that Plaintiff would suffer a 15 substantial risk of serious harm if there was a delay in having Plaintiff see an ophthalmologist. (Gray Dec. at ¶¶ 21-22.) 16 29. Prior to Defendant’s review of the appeal, the medical 17 records reflect that the ophthalmologist determined that Plaintiff’s eye condition was stable, and the ophthalmologist would set appointments out 18 for months at a time to monitor Plaintiff. (Ex. B. to Gates Dec. at ¶ 13; Gray Dec. at ¶ 21.) 19 30. With respect to Plaintiff’s heel injury, Plaintiff was seen by 20 multiple medical providers, including his primary care physician, specialists, and nurses. (Ex. B. to Gates Dec at ¶ 13; Gray Dec. at ¶ 23.) 21 31. Plaintiff was also provided diagnostic tests and was 22 prescribed medication to treat the condition. (Ex. B. to Gates Dec at ¶ 13; Gray Dec. at ¶ 23.) 23 32. An order for a computed tomography had also been entered 24 by Plaintiff’s primary care physician who had just recently seen Plaintiff for a medical visit. The appointment for the computed tomography was 25 pending and Plaintiff was to be notified of the appointment when it was scheduled. (Ex. B. to Gates Dec at ¶ 13; Gray Dec. at ¶ 23.) 26 33. Nothing in Defendant’s review of the medical records 27 suggested that Plaintiff was not provided adequate medical care for his heel injury. (Gray Dec. at ¶ 24.) 28 1 34. Defendant did not have any information that would lead him to determine that Plaintiff was at a substantial risk of serious harm 2 based upon any failure to provide care of his heel injury. (Gray Dec. at ¶ 24.) 3 35. Defendant did not see any information in the medical records that indicated that Plaintiff had sought urgent medical care for 4 either his eye or heel injury between June 4, 2019, and January 22, 2021 (when Defendant responded to Plaintiff’s medical grievance HDSP HC 5 20000928.) (Gray Dec. at ¶ 25.)
6 36. Based upon Defendant’s review of Plaintiff’s medical records, Defendant determined that Plaintiff’s care was adequate, and no 7 intervention was required. (Ex B. to Gates Dec. at 14; ECF No. 1 at 3, 13.)
8 ECF No. 37-1. 9 Defendant additionally asserts the following undisputed facts related to Plaintiff's 10 failure to exhaust administrative remedies:
11 13. There was an administrative process for medical grievances at HDSP at the time of the matters at issue in this case. Inmates were able 12 to appeal any departmental decision, action, condition, or policy which they could demonstrate as having an adverse effect upon their health, 13 safety, or welfare. (Declaration of S. Gates in Support of Motion for Summary Judgment (Gates Dec.) at ¶¶ 6-7.) 14 14. Plaintiff submitted 602 Grievance Log No. HDSP-B-19- 15 03429 on or about August 23, 2019, which related to issues regarding Plaintiff’s fall from his bunk, the injuries he sustained, his classification, 16 and medical treatment he received for his injuries. (Declaration of B. Alkire in Support of Motion for Summary Judgment (Alkire Dec.) at ¶ 10, 17 Exhibit E.)
18 15. On August 23, 2019, because the grievance involved medical issues, the grievance was rejected pursuant to Cal. Code. Regs., 19 tit. 15 § 3084.4 and Plaintiff was directed to submit his grievance on the proper 602HC Form and submit the grievance through the medical 20 grievance process. (Alkire Dec. at ¶ 10, Ex. E; ECF No. 1 at 11.)
21 16. Plaintiff submitted his grievance to CCHCS on a 602HC Form on or about November 16, 2020. (Gates Dec. at ¶ 10, Exhibit B; 22 ECF No. 1 at 11.)
23 17. The medical grievance was received by CCHCS on or about November 17, 2020, and was assigned as HDSP HC 20000928. 24 (Gates Dec. at ¶ 10, Ex B.)
25 18. Plaintiff did not mention Defendant in HDSP HC 20000928 and did not identify Defendant as having any involvement in Plaintiff 26 being turned away from the institution medical clinic on June 3, 2019 or otherwise being denied medical care. (Gates Dec. at ¶¶ 10 & 13, Ex B; 27 ECF No. 11 at 11-18.)
28 * * * 1 37. The institution level response to Plaintiff’s grievance HDSP HC 20000928 was issued on January 22, 2021. (Ex B. to Gates 2 Dec. at 12-14; ECF No. 1 at 3, 13.)
3 38. Plaintiff appealed the denial to Headquarters Level of Appeal, and it was also determined at that level that no intervention was 4 needed. (Ex. B to Gates Dec. at ¶ 10, Ex. B at 1-3, 5; ECF No. 1 at 16-18.)
5 39. Other than Grievance Log No. HDSP-B-19-03429 and HDSP HC 20000928, Plaintiff did not file any other grievances addressing 6 his injuries suffered in June 2019 or the medical care provided for those injuries. (Gates Dec. at ¶¶ 9 & 13; Alkire Dec. at ¶¶ 11-12; Pltf. Depo. at 7 95:8-22.)
8 ECF No. 37-1. 9 While Plaintiff has not filed an opposition or presented any evidence in response to 10 Defendant's motion for summary judgment, the Court will consider Plaintiff's verified complaint 11 as his declaration where appropriate. 12 13 III. DISUCSSION 14 In the pending unopposed motion for summary judgment, Defendant argues that 15 the undisputed facts show that Defendant was not deliberately indifferent to Plaintiff’s medical 16 needs. See ECF No. 37. Defendant also argues he is entitled to summary judgment because 17 Plaintiff failed to exhaust administrative remedies prior to filing suit. See id. For the reasons 18 discussed below, the Court finds both arguments persuasive and will recommend that Defendant's 19 motion for summary judgment be granted. 20 A. Exhaustion of Administrative Remedies 21 Prisoners seeking relief under § 1983 must exhaust all available administrative 22 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 23 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 24 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 25 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 26 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 27 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 28 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 1 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 2 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 3 grievance process for exhaustion to be considered adequate because the applicable procedural 4 rules that a prisoner must follow are defined by the particular grievance process, not by the Prison 5 Litigation Reform Act (PLRA); and (3) the PLRA does not require dismissal of the entire 6 complaint if only some, but not all, claims are unexhausted. The defendant bears burden of 7 showing non-exhaustion in the first instance. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 8 2014). If met, the plaintiff bears the burden of showing that the grievance process was not 9 available, for example because it was thwarted, prolonged, or inadequate. See id. 10 The Supreme Court held in Woodford v. Ngo that, in order to exhaust 11 administrative remedies, the prisoner must comply with all of the prison system’s procedural 12 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 13 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 14 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 15 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 16 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 17 quantity of prisoner suits “because some prisoners are successful in the administrative process, 18 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 19 When reviewing exhaustion under California prison regulations which have since been amended, 20 the Ninth Circuit observed that, substantively, a grievance is sufficient if it “puts the prison on 21 adequate notice of the problem for which the prisoner seeks redress. . . .” Griffin v. Arpaio, 557 22 F.3d 1117, 1120 (9th Cir. 2009); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) 23 (reviewing exhaustion under prior California regulations). 24 Until June 1, 2020, California allowed inmates to administratively appeal “any 25 policy, decision, action, condition, or omission by the department or its staff that the inmate or 26 parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 27 welfare.” Cal. Code Regs., tit. 15, § 3084.1(a); Munoz v. Cal. Dep’t of Corrs., No. CV 18-10264- 28 CJC (KS), 2020 WL 5199517, at *6 (C.D. Cal. July 24, 2020). CDCR used a three-step process 1 for grievances. Id. (describing the former three-step process). 2 CDCR also used the three-step process for health care grievances until September 3 1, 2017. Id. CDCR then adopted a new two-step procedure for health care grievances (which was 4 renumbered to its current section number in 2018). See Cal. Code Regs., tit. 15, § 3999.225–.230; 5 see also Singh v. Nicolas, No. 18-cv-1852, 2019 WL 2142105 at *3 & nn. 1–4 (E.D. Cal. May 6 16, 2019) (discussing the restructured grievance procedure); Garrett v. Finander, 2019 WL 7 7879659, at *2–3 (C.D. Cal. Dec. 5, 2019) (describing the new grievance procedures). The first 8 level of review is the institutional level of review. Cal. Code Regs., tit. 15, § 3999.228(a). The 9 second level of review is the headquarters level of review. Cal. Code Regs., tit. 15, § 3999.230(a). 10 The headquarters level is the final level of health care grievance review. Cal. Code Regs., tit. 15, 11 § 3999.230(h). The headquarters level decision also exhausts administrative remedies. Id. 12 Under the two-step procedure, inmates must submit a health care grievance on a 13 “CDCR 602 HC” form. Cal. Code Regs., tit. 15, § 3999.227(a). First, the inmate must submit the 14 form to the grievance office “where the grievant is housed within 30 calendar days of: (1) the 15 action or decision being grieved, or (2) initial knowledge of the action or decision being grieved.” 16 § 3999.227(b). Second, if an inmate is dissatisfied with the institutional level disposition of their 17 grievance, the inmate may appeal to headquarters, the Health Care Correspondence and Appeals 18 Branch. Cal. Code Regs., tit. 15, § 3999.229(a), .230. 19 Defendant argues that, while Plaintiff filed both inmate and healthcare grievances 20 concerning his injuries and medical care,
21 . . .Plaintiff did not name Defendant in either of these grievances and did not reference any policies, implemented by Defendant or 22 otherwise, that resulted in Plaintiff being turned away from the institutional clinic on or about June 3, 2019. (SUF Nos. 14 & 18.) Because 23 Plaintiff did not identify Defendant or the specific circumstances complained of in his Complaint with respect to Defendant, Plaintiff did 24 not comply with the institution’s regulations related to filing of grievances. Plaintiff did not, therefore, exhaust his administrative 25 remedies as to the complaints in his Complaint and Defendant is, thereby, entitled to summary judgment on that basis as well. 26 ECF No. 37 at 19. 27
28 / / / 1 The Court agrees. The undisputed evidence shows that Plaintiff submitted two 2 grievances while housed at HDSP, one related to his medical care and one related to property. See 3 ECF No. 37-3 at 3. Exhibit D to the Alkire declaration is Plaintiff’s grievance history reflecting 4 that Plaintiff in fact submitted two grievances, both submitted on August 20, 2019, while housed 5 at HDSP as follows: (1) 602 Grievance Log No. HDSP-B-19-03429 and (2) 602 Grievance Log 6 No. HDSP-B-19-03499. See ECF No. 37-3 at 6. The HDSP-B-19-03499 grievance, Exhibit F to 7 the Alkire declaration, relates to property, and thus could not have served to exhaust Plaintiff’s 8 medical deliberate indifference claim. The HDSP-B-19-03429 grievance, Exhibit E to the Alkire 9 declaration, was rejected pursuant to Cal. Code Regs., tit. 15, § 3084.4 as it involved medical 10 issues and Plaintiff was directed to resubmit his appeal on the appropriate 602HC Form through 11 the medical grievance process. See ECF No. 37-3 at 3. According to the Alkire declaration and 12 Plaintiff’s grievance history, Plaintiff did not file any further documents to the Appeals Office 13 related the HDSP-B-19-03429 grievance. See ECF No. 37-3 at 3. 14 The undisputed evidence shows that Plaintiff in turn submitted two health care 15 grievances while housed at HDSP. See ECF No. 37-4 at 3. Exhibit A to the Gates declaration is 16 Plaintiff’s Health Care Appeals and Risk Tracking System appeal/grievance history reflecting that 17 Plaintiff in fact submitted two health care grievances while housed at HDSP as follows: (1) HDSP 18 HC 20000928, received by CCHCS on November 17, 2020, and (2) HDSP HC 21000111, 19 received on January 21, 2021. See ECF No. 37-4 at 7. The HDSP HC 21000111 grievance, 20 Exhibit C to the Gates declaration, relates to how the COVID-19 outbreak was being handled, and 21 thus was not related to and could not have served to exhaust Plaintiff’s medical deliberate 22 indifference claim. The HDSP HC 20000928, Exhibit B to the Gates declaration, does in fact 23 relate to Plaintiff’s injuries; however, it does not allege that Defendant Gray or “any policy of 24 Defendant Gray was the cause of Plaintiff being turned away from the clinic on the date he 25 claimed to have been turned away.” See ECF No. 37-4 at 4. As such, because the Health Care 26 Correspondence and Appeals Branch was not aware of Defendant Gray’s involvement in the 27 matter in any way, the HDSP HC 20000928 grievance was not evaluated to include any 28 involvement of Defendant Gray and did not put the prison on notice of Plaintiff's medical 1 deliberate indifference claims, as required under the PLRA. See id. Additionally, the Gates 2 declaration confirms that Plaintiff never filed a healthcare grievance naming Defendant Gray. See 3 id. 4 The undisputed evidence also shows that Plaintiff filed an appeal of the 5 institutional level response which was submitted for headquarters’ level review See ECF No. 37-4 6 at 7. Exhibit B to the Gates Declaration consists of documents related to the appeal. See ECF No. 7 37-4 at 9-11. This appeal was received by CCHCS on June 9, 2021, and Plaintiff was provided a 8 response of no intervention on August 19, 2021. See ECF No. 37-4 at 7. As Defendant correctly 9 observes, Defendant Gray was not mentioned in this grievance. See id. Thus, as with the health 10 care grievances discussed above, this grievance does not describe how Defendant Gray acted or 11 failed to act to cause injury to Plaintiff. See id. That is, the grievance does not “put[] the prison on 12 adequate notice of the problem for which the prisoner seeks redress. . . ,” nor does it give the 13 prison opportunity to address said problem. Griffin v. Arpaio, 557 F.3d at 1120. On this evidence, 14 which is not in dispute, the Court finds that grievance HDSP HC 20000928 failed to exhaust 15 administrative remedies. 16 Because Plaintiff failed to exhaust available administrative remedies regarding his 17 medical deliberate indifference claims against Defendant Gray prior to filing suit, the Court will 18 recommend that Defendant Gray's motion for summary judgment be granted. 19 B. Deliberate Indifference to Plaintiff's Medical Needs 20 Though the Court finds that Defendant is entitled to summary judgment based on 21 Plaintiff’s failure to exhaust administrative remedies prior to filing suit, the Court nonetheless 22 addresses Defendant’s arguments related to the merits of Plaintiff’s Eighth Amendment medical 23 deliberate indifference claims. 24 The treatment a prisoner receives in prison and the conditions under which the 25 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 26 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 27 511 U.S. 825, 832 (1994). The Eighth Amendment “. . .embodies broad and idealistic concepts of 28 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 1 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 2 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 3 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 4 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 5 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 6 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 7 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 8 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 9 official must have a “sufficiently culpable mind.” See id. 10 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 11 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 12 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 13 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 14 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 15 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 16 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 17 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 18 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 19 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 20 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 21 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 22 1131-32 (9th Cir. 2000) (en banc). 23 The requirement of deliberate indifference is less stringent in medical needs cases 24 than in other Eighth Amendment contexts because the responsibility to provide inmates with 25 medical care does not generally conflict with competing penological concerns. See McGuckin, 26 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 27 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 28 1989). The complete denial of medical attention may constitute deliberate indifference. See 1 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 2 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 3 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 4 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 5 Negligence in diagnosing or treating a medical condition does not, however, give 6 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 7 difference of opinion between the prisoner and medical providers concerning the appropriate 8 course of treatment does not generally give rise to an Eighth Amendment claim. See Jackson v. 9 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). However, a claim involving alternate courses of 10 treatment may succeed where the plaintiff shows: (1) the chosen course of treatment was 11 medically unacceptable under the circumstances; and (2) the alternative treatment was chosen in 12 conscious disregard of an excessive risk to the prisoner’s health. See Toguchi v. Chung, 391 F.3d 13 1051, 1058 (9th Cir. 2004). 14 As to the merits of Plaintiff’s Eighth Amendment medical care claim for deliberate 15 indifference, Defendant contends he is not liable for the injuries Plaintiff sustained as a result of 16 being turned away from the medical clinic because Defendant did not personally deny Plaintiff 17 care, nor did Defendant institute any policy requiring Plaintiff to be turned away. See ECF No. 18 37, pgs. 12-14. 19 A review of the complaint reflects, as Defendant Gray notes, that Plaintiff alleges 20 that it was “under Dr. Grey’s policy” that he was seen with barely a glance over at the clinic on 21 June 3, 2019, and told to fill out a health care request form to be seen later. See ECF No. 1 at 5. 22 Furthermore, Plaintiff asserts that “they (medical staff)” sent Plaintiff away with no treatment 23 after he’d explained it was an emergency, and thus constitutes deliberate indifference. See id. 24 Defendant argues:
25 Because Plaintiff has not pleaded, and cannot show, that Defendant was directly involved in, or even had knowledge of, Plaintiff being turned 26 away from the clinic by unknown medical personnel, Defendant is entitled to summary judgment. 27 * * * 28 1 Because there is no genuine dispute that there was no unconstitutional policy put in place by Defendant at the time Plaintiff 2 claims he was turned away from the institutional medical clinic on or about June 3, 2019, Defendant is entitled to summary judgment. 3 ECF No. 37 at 13, 14. 4 5 Defendant’s arguments are persuasive. Plaintiff's allegation against Defendant 6 Gray is based on the notion that Defendant Gray supervised other prison staff who in turn denied 7 Plaintiff medical care. Supervisory personnel are generally not liable under § 1983 for the actions 8 of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is 9 no respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 10 violations of subordinates if the supervisor participated in or directed the violations. See id. 11 Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation 12 of constitutional rights and the moving force behind a constitutional violation may be liable even 13 where such personnel do not overtly participate in the offensive act. See Redman v. Cnty of San 14 Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). A supervisory defendant may also be 15 liable where he or she knew of constitutional violations but failed to act to prevent them. See 16 Taylor, 880 F.2d at 1045; see also Starr v. Baca, 633 F.3d 1191, 1209 (9th Cir. 2011). 17 When a defendant holds a supervisory position, the causal link between such 18 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 19 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 20 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 21 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 22 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 23 official’s own individual actions, has violated the constitution.” See Ashcroft v. Iqbal, 556 U.S. 24 662, 676 (2009). 25 Here, the undisputed evidence shows that Defendant Gray was not present at the 26 clinic on the date Plaintiff alleges he was turned away and Defendant Gray had no knowledge that 27 Plaintiff had visited the clinic or been turned away. See ECF No. 37-1 at 3. Furthermore, 28 Defendant Gray did not direct anyone to turn Plaintiff away from the clinic. See id. As such, these 1 facts show that Defendant Gray neither personally participated in nor directed the turning away of 2 Plaintiff from the clinic on June 3, 2019. The evidence also shows that Plaintiff cannot identify 3 any policy requiring medical staff to turn an inmate in Plaintiff’s circumstances away. See ECF 4 No. 37-5 at 9. To the contrary, the evidence shows that Defendant Gray did not promulgate any 5 policy at any time that required or directed medical staff to turn inmates away from the clinic 6 when the inmate was visibly injured or required emergent medical care. See ECF No. 37-1 at 2. 7 Because the undisputed evidence establishes that Plaintiff cannot prove Defendant 8 Gray's personal involvement, either directly or by way of policy promulgation or implementation, 9 Defendant Gray has met his burden of demonstrating that he is entitled to judgment in his favor as 10 a matter of law. Plaintiff has not presented any evidence which would tend to refute Defendant's 11 evidence, and a review of the allegations in the verified complaint does nothing to bolster his 12 claim or call Defendant's evidence into question. Thus, the Court finds that Defendant Gray is 13 entitled to judgment in his favor on the merits of Plaintiff's medical deliberate indifference claim. 14 To the extent Plaintiff is claiming that Defendant Gray is liable because an outside 15 ophthalmology appointment had not been scheduled as of the date the complaint was filed in 16 2022, the Court also agrees with Defendant that the undisputed evidence establishes the non- 17 existence of a genuine dispute of material fact. According to Defendant:
18 Plaintiff has no evidence to support a claim that Defendant was deliberately indifferent based upon Plaintiff’s claims in 2022 (when the 19 Complaint was filed) that he had yet to have his ophthalmology appointment and was still waiting for his heel to be repaired. Plaintiff has 20 no evidence that Defendant was even aware of Plaintiff’s medical circumstances at any time other than when Defendant reviewed, and 21 responded to, Plaintiff’s healthcare grievance in January 2021. In fact, although Plaintiff claims in these allegations that Defendant "keeps stating 22 I have appointments scheduled,” the only evidence that Plaintiff has of any communication he had with Defendant is the one letter from Defendant 23 dated January 22, 2021, denying Plaintiff’s healthcare grievance HDSP HC 20000928 at the institutional level. (SUF Nos. 12, 36 & 39.) In his 24 deposition, Plaintiff admitted that he had never met Defendant and had never personally spoken with Defendant. (SUF No. 12.) Thus, Plaintiff 25 cannot support his claim that Defendant “kept” telling Plaintiff he had medical appointments scheduled but nothing happened, or otherwise show 26 that Defendant had any knowledge regarding Plaintiff’s medical treatment at the time this Complaint was filed. And Plaintiff, further, has not offered 27
28 / / / 1 any facts to support that Defendant would have been aware of any serious medical risk to Plaintiff at the time or that Plaintiff was being denied any 2 sort of medical care.
3 ECF No. 37 at 17. 4 Defendant’s argument is persuasive. Plaintiff has not presented any evidence to 5 support his claim that: “Dr. Grey [sic] keeps stating I have appointments scheduled, yet 2 years 6 later, I am still waiting. This is cruel and unusual punishment, and a deliberate indifference to my 7 health care needs.” See ECF No. 1 at 7. To the contrary, the undisputed evidence shows Plaintiff 8 has never met or spoken to Defendant Gray. See ECF No. 37-1 at 3. The undisputed evidence 9 also shows that, other than Grievance Log Nos. HDSP-B-19-03429 and HDSP HC 20000928, 10 Plaintiff never filed any other grievances addressing his injuries suffered in June 2019 or the 11 medical care provided for those injuries. See ECF No. 37-1 at 8. These facts show that Defendant 12 Gray had no reason to continually review Plaintiff’s medical records or to continue 13 communicating with Plaintiff. As such, Plaintiff cannot prevail on any the theory that Defendant 14 Gray kept stating Plaintiff had appointments because Plaintiff cannot establish that Defendant 15 Gray acted any further than the denial of Plaintiff’s grievance, let alone acted unnecessarily and 16 wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends as follows: 3 1. California Department of Corrections and Rehabilitation be DISMISSED 4 | asa defendant to this action. 5 2. Defendant’s unopposed motion for summary judgment, ECF No. 37, be 6 | GRANTED. 7 These findings and recommendations are submitted to the United States District 8 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I1). Within 14 days 9 || after being served with these findings and recommendations, any party may file written objections 10 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 11 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 12 | Yist, 951 F.2d 1153 (9th Cir. 1991). 13 14 || Dated: January 30, 2025 Ss..c0_, 15 DENNIS M. COTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 20