(PC) Dosio v. Odeluga ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELMER DOSIO, JR., 1:19-cv-00675-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT 13 vs. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON 14 N. ODELUGA, et al., FAILURE TO EXHAUST BE DENIED (ECF No. 35.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 19 I. BACKGROUND 20 Elmer Dosio, Jr. (“Plaintiff”) is a state prisoner proceeding in forma pauperis with 21 counsel in this civil rights action under 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 22 Second Amended Complaint against defendant Licensed Vocational Nurse (“LVN”) Elma 23 Fernandez1 (“Defendant”) for failure to provide adequate medical care in violation of the Eighth 24 Amendment. (ECF No. 18.)2 25 26 1 Sued as E. Frandez. 27 2 On April 29, 2021, the court issued an order dismissing all other claims and defendants 28 from this case based on Plaintiff’s failure to state a claim. (ECF No. 20.) 1 On December 14, 2021, Defendant filed a motion for summary judgment on the grounds 2 that Plaintiff failed to exhaust his administrative remedies for his allegations against her before 3 filing suit. (ECF No. 35.) On December 30, 2021, Plaintiff filed an opposition to the motion. 4 (ECF No. 38.) On January 2, 2022, Defendand filed a reply to the opposition. (ECF No. 42.) 5 Defendant’s motion for summary judgment was submitted upon the record on January 6 21, 2022, without oral argument pursuant to Local Rule 230(l), and for the reasons that follow 7 the court finds that Defendant’s motion for summary judgment should be denied. 8 II. PLAINTIFF’S ALLEGATIONS3 9 The events at issue in the Second Amended Complaint allegedly took place at North Kern 10 State Prison (NKSP) in Delano, California, when Plaintiff was incarcerated there in the custody 11 of the California Department of Corrections and Rehabilitation (CDCR). The sole Defendant in 12 this case is Elma Fernandez. 13 A summary of Plaintiff’s allegations follows: 14 The gravamen of Plaintiff’s Second Amended Complaint is that he was not provided with 15 adequate medical care resulting in blindness in his right eye. Plaintiff alleges that he experienced 16 pain in his right eye from June 2016 through October 2016, at which time he lost his sight in that 17 eye. 18 On June 22, 2016, Plaintiff submitted a CDCR form 7362 Healthcare Services Request 19 stating that he had been experiencing pain and blurriness in his eye. On June 22, 2016, Plaintiff’s 20 right eye was: sphere -125 cylinder -05, vision 20/20; and his left eye was: sphere -50 cylinder 21 0.75, vision 20/20. 22 Documentation shows that after a face-to-face triage on or about June 24, 2016, Plaintiff 23 was referred to an eye specialist. On June 30, 2016, Plaintiff was diagnosed with inflammation 24 25 3 Plaintiff’s Second Amended Complaint, (ECF No. 18), is verified and his allegations 26 constitute evidence where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff’s claim in this section 27 should not be viewed by the parties as a ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s evidence in the sections which follow. 28 1 in his right eye. Dr. O. Beregovskaya [not a defendant], Internal Medicine, made the diagnosis. 2 From June 30, 2016 through October 2016, Plaintiff received medication for pain and several 3 injections in his right eye to treat the blurriness. Dr. D. Gines [not a defendant] ordered the 4 medication. 5 On October 26, 2016, Plaintiff received his fourth injection in his right eye. Dr. Tawansey 6 [not a defendant] supervised all of the outside medical visits and examinations. On October 27, 7 2016, Plaintiff developed an infection in his right eye with pain, blurry vision, and pus oozing 8 out of his eye. Plaintiff went to the facility clinic seeking medical attention and relief from the 9 pain in his eye and advised defendant LVN Fernandez, who was on staff at that time, of his 10 symptoms and pain. Defendant Fernandez ignored Plaintiff’s obvious signs of distress and 11 urgent need of medical treatment, when it was medically obvious that immediate and adequate 12 care was needed to mitigate Plaintiff’s prolonged suffering. Defendant Fernandez advised 13 Plaintiff that there was nothing she could do and that it didn’t look like anything was wrong with 14 his eye. 15 On October 28, 2016, with symptoms having worsened, Plaintiff again returned to the 16 facility clinic where Defendant Fernandez was on staff and once more advised Defendant 17 Fernandez of pus leaking from his right eye, with a high level of pain. Defendant Fernandez 18 again told Plaintiff that there was nothing she could do as the doctors were aware of his situation 19 and would be back in a day or so. Defendant Fernandez refused to entertain the idea that she had 20 the ability to send Plaintiff to the Treatment Triage Annex (TTA) to be examined by a staff 21 physician or a concerned RN familiar with his current treatment. Defendant Fernandez did not 22 contact anyone, or make any effort to alleviate the signs of distress that Plaintiff was showing 23 that day and had been receiving treatment for since June 2016. 24 On October 29, 2016, Plaintiff submitted another 7362 Request for Healthcare Services 25 advising of a complete loss of sight and an increased level of pain since the October 26, 2016 26 injection in his eye. On October 29, 2016, Plaintiff again attempted to get help for the pain and 27 pus in his right eye, but Defendant Fernandez indifferently told Plaintiff again that there was 28 nothing she could do because the supervisors were all aware of his eye problem, and that Plaintiff 1 should leave. At none of the many interactions that Defendant Fernandez had with Plaintiff did 2 she attempt to actually give Plaintiff any constitutionally adequate medical attention other than 3 telling Plaintiff that his eye looked fine to her. Defendant Fernandez did not take triage notes or 4 notify Plaintiff’s treating physicians or supervisory staff familiar with the several outpatient visits 5 and eye treatments Plaintiff had been undergoing since June 2016. 6 On October 29, 2016, at about 1930 hours, Plaintiff walked into the facility clinic 7 complaining of pain level 10/10 and complete loss of vision in his right eye, which LVN Tomay 8 [not a defendant] observed and immediately called TTA RN Albano [not a defendant] about the 9 seriousness of the situation. RN Albano [arranged] for the Plaintiff to be sent to TTA. Plaintiff 10 was escorted by a prison guard at the request of Albano. At about 2100 hours, Plaintiff was 11 examined by Dr. Alphonso [not a defendant] who was on call that shift, who stated that Plaintiff 12 had a loss of vision in his right eye as a possible result of an Avastain injection that Plaintiff had 13 received on October 26, 2016. Dr. Alphonso further documented that Plaintiff’s right eye pupil 14 was small, had a sluggish reaction to light, and had a lens that was white. Dr. Alphonso ordered 15 an ambulance to take Plaintiff to San Joaquin Community Hospital ASAP. Plaintiff was admitted 16 to the receiving hospital overnight where he was seen by his treating physician Dr. K. Tawansey 17 [not a defendant] who gave Plaintiff at least four more injections in an attempt to save Plaintiff’s 18 right eye. 19 From October 27, 2016, through October 29, 2016, Plaintiff made several attempts to 20 seek medical attention and treatment that would have saved his eyesight in his right eye, including 21 Healthcare Services Requests and personally advising medical staff, Defendant LVN Fernandez, 22 that he had an urgent medical concern. Plaintiff has shown that his medical needs were 23 sufficiently serious to require more than a dismissive acknowledgement or telling him it looked 24 fine when it could not, by any objective observer, be shown to look fine with pus oozing out and 25 a white lens, which failure to treat has resulted in further significant injury and the wanton and 26 unnecessary infliction of pain. Plaintiff’s delay in adequate medical treatment by Defendant 27 LVN Fernandez directly resulted in the loss of vision in Plaintiff’s right eye, which may have 28 been avoided had the Defendant not shown deliberate indifference to Plaintiff’s obvious medical 1 need. 2 On November 1, 2016, Plaintiff had surgery on his right eye which proved unsuccessful. 3 Dr. Tawansey advised Plaintiff that he would never be able to see out of his right eye again or 4 focus. After the surgery on Plaintiff’s right eye, x-rays showed that Plaintiff’s eye was 5 completely black. 6 Plaintiff was under the impression that the treatment and therapy that he had been 7 receiving would restore his eye to some form of functionality, but for the deliberate indifference 8 of the Defendant Fernandez. Defendant’s failure to take any corrective action is a violation of 9 Plaintiff’s Eighth Amendment rights. Defendant’s actions did not advance any penological goal, 10 nor were the actions narrowly tailored to achieve such a goal. 11 III. SUMMARY JUDGMENT BASED ON EXHAUSTION 12 A. Legal Standards 13 1. Statutory Exhaustion Requirement 14 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 15 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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.” 42 U.S.C. § 1997e(a). Prisoners are 18 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 19 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 20 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and 21 regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 22 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, 23 Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002). 24 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 25 administrative review process in accordance with the applicable procedural rules,’ [ ]—rules that 26 are defined not by the PLRA, but by the prison grievance process itself.” Bock, 549 U.S. at 218 27 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). 28 See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison 1 system’s requirements ‘define the boundaries of proper exhaustion.’”). An untimely or otherwise 2 procedurally defective appeal will not satisfy the exhaustion requirement. Woodford, 548 U.S. 3 at 90. However, the Ninth Circuit has made clear: A grievance need not include legal 4 terminology or legal theories unless they are in some way needed to provide notice of the harm 5 being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also need 6 not contain every fact necessary to prove each element of an eventual legal claim. Id. 7 Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim 8 if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To 9 provide adequate notice, the prisoner need only provide the level of detail required by the prison’s 10 regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Bock, 549 U.S. at 218). 11 The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, 12 not to lay groundwork for litigation. Id; Arpaio, 557 F.3d at 1120; see also Bock, 549 U.S. at 13 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the 14 primary purpose of a grievance is to alert prison officials to a problem, not to provide personal 15 notice to a particular official that he may be sued; the grievance process is not a summons and 16 complaint that initiates adversarial litigation.”). Thus, in this case, the grievance process used at 17 North Kern State Prison where Plaintiff was incarcerated defines the boundaries of proper 18 exhaustion. 19 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 20 he establishes that the existing administrative remedies were effectively unavailable to him. See 21 Albino v. Baca (Albino II), 747 F.3d 1172-73 (9th Cir. 2014). When an inmate’s administrative 22 grievance is improperly rejected on procedural grounds, exhaustion may be excused as 23 “effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 1217, 24 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s administrative remedies 25 “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion 26 excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required 27 to proceed to third level where appeal granted at second level and no further relief was available); 28 Marella, 568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access 1 /// 2 to the necessary grievance forms to timely file his grievance). In such a case, “the inmate cannot 3 pursue the necessary sequence of appeals.” Sapp, 623 F.3d at 823. 4 2. California Department of Corrections and Rehabilitation (CDCR) 5 Administrative Grievance System 6 The Court takes judicial notice of the fact that the State of California provides its prisoners 7 and parolees the right to appeal administratively “any policy, decision, action, condition, or 8 omission by the department or its staff that the inmate or parolee can demonstrate as having a 9 material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 10 3999.226(a) (2018). See Munoz v. Cal. Dep’t of Corr., No. CV 18-12064-CJC (KS), 2020 WL 11 5199517, at 19-20 (C.D. Cal. July 24, 2020) (describing the two-step process). 12 First, the inmate must submit their grievance on the proper form and describe the specific 13 complaint that has had a material adverse effect on their health or welfare. See Cal. Code Regs. 14 tit. 15, § 3999.227(a). Munoz, 2020 WL 5199517, at 19. The grievant must submit the form to 15 the “HCGO [Health Care Grievance Office] where the grievant is housed within 30 calendar days 16 of: (1) the action or decision being grieved, or (2) initial knowledge of the action or decision 17 being grieved.” Cal. Code Regs. tit. 15, § 3999.227(b). Second, “[i]f dissatisfied with the 18 institutional level health care grievance disposition, the grievant may appeal the disposition . . . 19 to HCCAB [Health Care Correspondence and Appeals Branch] . . . within 30 calendar days[.]” 20 Id. § 3999.229(a); Munoz, 2020 WL 5199517, at 20. 21 The HCGO and the HCCAB have discretion to accept grievances filed outside the 30 day 22 time limit if it is determined that the grievance merits further review “for reasons including, but 23 not limited to: (1) Good cause exists for untimely submission of the health care grievance[,]” or 24 (2) “Issues stated in the health care grievance allege facts that warrant further inquiry.” Cal. Code 25 Regs. tit. 15, § 3999.228(d) (HCGO), § 3999.230(d) (HCCAB). If prison officials accept and 26 render a decision on the merits of a grievance, despite a potential procedural flaw, at each 27 available step of the administrative process, then the PLRA requirement of administrative 28 exhaustion is satisfied. See Reyes v. Smith, 810 F.3d 654, 657-58 (9th Cir. 2016) (“Where prison 1 officials address an inmate’s grievance on the merits without rejecting it on procedural grounds, 2 the grievance has served its function of alerting the state . . . and defendants cannot rely on the 3 failure to exhaust defense.” (quoting Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011)); Wilson 4 v. Zubiate, 718 Fed. Appx 479, 481-82 (9th Cir. 2017). A decision on the merits must discuss 5 the substance of the grievance. See Wilson, 718 Fed. Appx at 481-82; Semtek Int’l Inc. v. 6 Lockheed Martin Corp., 531 U.S. 497, 501-02 (2001) (“The original connotation of an ‘on the 7 merits’ adjudication is one that actually ‘pass[es] directly on the substance of [a particular] claim’ 8 before the court.” (quoting Restatement (Second) of Judgments § 19, comment a, at 161 (1980)). 9 3. Motion for Summary Judgment for Failure to Exhaust 10 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under 11 which defendants have the burden of raising and proving the absence of exhaustion. Bock, 549 12 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the Ninth 13 Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising 14 the affirmative defense of exhaustion under § 1997e(a). Albino II, 747 F.3d at 1168–69. 15 Following the decision in Albino II, defendants may raise exhaustion deficiencies as an 16 affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)4 17 or (2) a motion for summary judgment under Rule 56. Id. If the court concludes that Plaintiff 18 has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the 19 complaint barred by § 1997e(e). Bock, 549 U.S. at 223–24; Lira, 427 F.3d at 1175–76. 20 Summary judgment is appropriate when it is demonstrated that there “is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 22 R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, 23 summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must 24 support the assertion by “citing to particular parts of materials in the record, including 25 depositions, documents, electronically stored information, affidavits or declarations, stipulations 26 (including those made for purposes of the motion only), admissions, interrogatory answers, or 27 4 Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure 28 to exhaust is clear on the face of the complaint.” Albino II, 747 F.3d at 1162. 1 other materials, or showing that the materials cited do not establish the absence or presence of a 2 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 3 Fed. R. Civ. P. 56(c)(1). In judging the evidence at the summary judgment stage, the court “must 4 draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de 5 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The 6 court must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 7 611 F.3d 1144, 1150 (9th Cir. 2010). 8 In a summary judgment motion for failure to exhaust administrative remedies, the 9 defendants have the initial burden to prove “that there was an available administrative remedy, 10 and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the 11 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 12 showing that there is something in his particular case that made the existing and generally 13 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 14 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 15 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 16 1166. 17 In arriving at these findings and recommendations, the court carefully reviewed and 18 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 19 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 20 reference to an argument, document, paper, or objection is not to be construed to the effect that 21 this court did not consider the argument, document, paper, or objection. This court thoroughly 22 reviewed and considered the evidence it deemed admissible, material, and appropriate. 23 B. Parties’ Undisputed Facts 5 24 25 5 These facts are taken from Defendants’ Separate Statement of Undisputed Facts in Support of Defendant’s Motion for Summary Judgment filed on December 14, 2021. (ECF No. 35-3.) 26 On December 30, 2021, Plaintiff submitted a response to Defendants’ Statement of Undisputed Facts, (ECF No. 38-1), and a Statement of Disputed Facts, (ECF No. 38-2). The court has considered all 27 declarations and exhibits submitted in support of each statement. Unless otherwise indicated, disputed, duplicative, and immaterial facts are omitted from this statement and relevant objections are overruled. 28 1 In accordance with Local Rule 260(a), on December 14, 2021, Defendant submitted the 2 following Statement of Undisputed Facts with references to the supporting evidence. (ECF No. 3 35-3.) On December 30, 2021, Plaintiff submitted the following Responses to Defendants’ 4 Statement of Undisputed Material Facts. (ECF No. 38-1.) Unless otherwise noted, the following 5 facts are undisputed by the parties or as determined by the court based on a thorough review of 6 the record. 7 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 8 Admitted. 9 BACKGROUND 10 11 1. At all relevant times, Plaintiff Elmer Dosio 12 (V-75308) was a state prisoner in the lawful 13 custody of California Department of 14 Corrections and Rehabilitation (CDCR) and 15 was housed at North Kern State Prison 16 (NKSP) in Delano, California. (Second 17 Amended Complaint (SAC) at 1, ECF No. 18 18.) 19 2. At all relevant times, Defendant Fernandez Admitted. 20 worked as a Licensed Vocational Nurse at 21 NKSP. (SAC at 2.) 22 3. On May 16, 2019, Dosio filed a complaint Admitted. 23 under 42 U.S.C. § 1983 in the United States 24 District Court, Eastern District of California, 25 alleging that numerous medical staff at NKSP, 26 including Defendant Fernandez, violated his 27 Eighth Amendment rights by ignoring his 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 urgent need for medical treatment, resulting in 3 pain and suffering between “2016 until the 4 present.” (Complaint at 7, ECF No. 1.) 5 4. That complaint was dismissed with leave to Admitted. 6 amend. (ECF No. 10.) 7 5. After two additional attempts to amend the Admitted. 8 complaint, the Court screened the complaint 9 and permitted an Eighth Amendment 10 deliberate indifference claim to proceed 11 against Defendant Fernandez. (Screening 12 Order on SAC, ECF No. 20.) 13 6. In his Second Amended Complaint, Admitted. 14 Plaintiff alleges that Defendant Fernandez, 15 “arbitrarily, capriciously and with deliberate 16 indifference denied Plaintiff Constitutionally 17 mandated medical treatment by sending 18 Plaintiff to an outside hospital or contact a 19 doctor on staff to take corrective action at any 20 point from October 27, 2016, through October 21 29, 2016.” (SAC at 7.) 22 7. Specifically, his one and only cause of Admitted. 23 action is against Fernandez for “respond[ing] 24 to Plaintiff’s many complaints from October 25 27, 2016, through October 29, 2016, 26 concerning the pain and suffering he was 27 experiencing with deliberate indifference . . .” 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 (SAC at 10.) 3 Admitted. 4 HEALTH CARE ADMINISTRATIVE 5 APPEALS PROCESS 6 7 8. Since August 1, 2008, health care 8 appeals/grievances involving inmate medical, 9 dental, and mental health care issues have 10 been processed by California Correctional 11 Health Care Services (CCHCS), under the 12 Office of the Federal Receiver appointed in 13 the class action litigation regarding prison 14 health care, Plata v. Newsom, U.S. District 15 Court for the Northern District of California, 16 Case No. 3:01-cv-01351. The Health Care 17 Correspondence and Appeals Branch 18 (HCCAB) receives, reviews, and maintains all 19 health care appeals/grievances accepted for 20 the final (headquarters) level of review in the 21 inmate health care appeal/grievance process, 22 and renders decisions on such 23 appeals/grievances. (Declaration of R. Hart 24 (Hart Decl.) at ¶ 3.) 25 26 27 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 9. All CDCR institutions, including NKSP, Admitted. 3 have an administrative grievance process for 4 grieving healthcare issues that affect inmates. 5 The first level is at the institutional level and 6 the second and final level is at headquarters 7 level. (Id. at ¶ 4.) 8 10. All levels of health care Admitted. 9 appeals/grievances, including the institutional 10 and headquarters levels of review, are tracked 11 through a computer database known as the 12 Health Care Appeals and Risk Tracking 13 System (HCARTS). HCARTS also tracks 14 health care appeals/grievances that were 15 received and ultimately rejected and the 16 reason for the rejection. HCARTS is kept as a 17 regularly-conducted activity, and the 18 computer entries are made at or near the time 19 of the occurrence by the employee who is 20 processing the appeal/grievance. (Id. at ¶ 5.) 21 11. Title 15 of the California Code of Admitted. 22 Regulations governs the inmate 23 appeal/grievance process. Before September 24 1, 2017, health care appeals/grievances were 25 governed by sections 3084 - 3086 of Title 15 26 of the California Code of Regulations, which 27 govern the inmate appeal process. Under that 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 process, health care appeals were subject to 3 three levels of review before administrative 4 remedies were deemed exhausted. Cal. Code 5 Regs. tit. 15, § 3084.7(d)(3) (2016). 6 Exceptions to this process are set forth in 7 section 3084.9 of Title 15. (Id. at ¶ 7.) 8 12. New procedures were officially enacted as Admitted. 9 regulations under Cal. Code Regs. tit. 15, § 10 3087 on September 1, 2017; however, in 11 2019, the health care grievances section was 12 changed without regulatory effect and can 13 now be found at Title 15, §§ 3999.225 – 14 3999.237 of the California Code of 15 Regulations. Under these regulations, inmates 16 may grieve complaints regarding health care 17 policies, decisions, actions, conditions, or 18 omissions using a CDCR 602 HC form. Cal. 19 Code Regs. tit. 15, §§ 3999.226, 3999.227(a) 20 (2019). Such complaints are subject to two 21 levels of review, an institutional level of 22 review, and a headquarters level of review. 23 Cal. Code Regs. tit. 15, § 3999.226(a)(1) 24 (2019). Health care grievances are subject to 25 a headquarters’ disposition before 26 administrative remedies are deemed 27 exhausted. Cal. Code Regs. tit. 15, § 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 3999.226(g) (2019). (Id. at ¶ 8.) 3 13. Under California Code of Regulation § Admitted. 4 3999.227(b) the grievant must complete 5 Section A of the CDCR 602-HC and submit it 6 within 30 calendar days of: 1) the action or 7 decision being grieved, or; 2) initial 8 knowledge of the action or decision being 9 grieved. (Id. at ¶ 9.) 10 Admitted. 11 DOSIO’S ADMINISTRATIVE APPEALS 12 13 14. Since being housed at NKSP in 2015, 14 inmate Dosio only filed two healthcare 15 appeals: NKSP-HC-18001079 and NKSP- 16 HC-19000134. (Id. at ¶ 11; Ex. A.) 17 15. Log No. NKSP-HC-18001079 was Admitted. 18 received by the institutional level on August 19 20, 2018 and a decision was rendered on 20 October 19, 2018. On November 1, 2018, that 21 appeal was received by Headquarters and 22 Headquarters rendered a decision of “no 23 intervention” on January 14, 2019. In that 24 appeal, inmate Dosio raised three issues: 1) 25 wanting to get a referral back to 26 ophthalmology; 2) complaint that medical 27 staff intentionally allowed him to lose use of 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 his right eye; and 3) requested an undisclosed 3 amount of money from staff for failing to take 4 corrective action on his eye. (Id. at ¶ 12; Ex. 5 B.) 6 16. In Log No. NKSP-HC-18001079, Dosio Denied. Plaintiff denies that his allegations 7 makes vague allegations that medical staff are vague. Plaintiff also denies that this 8 was deliberately indifferent to his “serious recitation of the allegations in Log No. NKSP- 9 medical needs regarding the pain & suffering HC-18001079 is complete. However, Plaintiff 10 that I have been experiencing in my right eye admits the quoted sentence fragment is 11 & the lost [sic] of my eye ...” He states that he correctly stated. (Def. MSJ, Ex. B, ECF #35- 12 has been experiencing pain from 2016 to the 2 at p.11, 13)6 13 present. (Id. at ¶ 13; Ex. B.) 14 17. The only other healthcare appeal inmate Admitted. 15 Dosio has filed is Log No. NKSP- 16 HC19000134. This appeal was received by 17 the institutional level on March 6, 2019 and a 18 decision was rendered on April 26, 2019. It 19 was not appealed up to Headquarters level. In 20 this appeal, Dosio makes no mention on E. 21 Fernandez; he complains that he wanted a 22 second opinion regarding his eye issue, which 23 he was refused. (Id. at ¶ 14; Ex. C.) 24 18. Beyond Log Nos. NKSP-HC-18001079 Admitted. 25 and NKSP-HC-19000134, inmate Dosio did 26 27 6 Neither Plaintiff’s position that his allegations are not vague, nor his denial that Defendant has set forth a complete recitation of the allegations create a genuine issue of material fact 28 relevant to the outcome of the motion for summary judgment. 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 not submit any other healthcare appeals or 3 grievances to HCAABs, between 2016 and 4 May 16, 2019, the date he filed his initial 5 complaint, while he was housed at North Kern 6 State Prison. (Id. at ¶¶ 10-11; Ex. A.) 7 19. Neither of Dosio’s healthcare appeals Denied. Plaintiff’s healthcare appeal Log No. 8 involve allegations that LVN E. Fernandez NKSP-HC18001079 does involve allegations 9 specifically delayed in providing adequate that Defendant LVN E. Fernandez delayed in 10 medical treatment between the period of providing adequate medical treatment 11 October 26- November 1, 2016, the time between the period of October 26 – November 12 period at issue in Dosio’s operative complaint. 1, 2016, the time period at issue in Plaintiff’s 13 (Id. at ¶¶ 11-15; Exs. B-C; see also SAC operative complaint. Specifically, Plaintiff’s 14 passim.) grievance describes “NKSP Medical Staff… 15 being deliberate[ly] indifferent to [his] serious 16 medical needs regarding… the loss of [his] 17 eye… from 2016 to the present.” He then 18 describes with particularity Defendant 19 Fernandez’s deliberately indifferent responses 20 to Plaintiff’s multiple pleas for medical 21 attention to his pus-oozing eye, and concludes 22 that his grievance sought recourse from “E. 23 Franandez [sic] [and others]… for failing to 24 take corrective action to prevent me from 25 losing my eye & experiencing all the pain & 26 suffering I had to endure…” (Def. MSJ, Ex. 27 28 1 DEFENDANT’S UNDISPUTED FACT PLAINTIFF’S RESPONSE 2 B, ECF #35-2 at p.11, 13)7 3 C. Defendant’s Position 4 Defendant argues that there is no genuine dispute as to any material fact that Plaintiff 5 failed to exhaust his available administrative remedies regarding the allegations in this lawsuit. 6 Defendant’s evidence includes Plaintiff’s Complaint and Second Amended Complaint, (ECF 7 Nos. 1, 18), Declaration of R. Hart (Chief of the Health Care Correspondence and Appeals 8 Branch, CDCR) and its exhibits, (ECF No. 35-2), and the Court’s record. The evidence shows 9 the following: 10 CDCR had an available healthcare grievance process at NKSP and Plaintiff utilized the 11 process by filing only two inmate healthcare appeals while being housed at NKSP since 2015. 12 (Decl. of R. Hart, ECF No. 35-2 at ¶¶ 4, 11 & Exh. A.) Neither of Plaintiff’s grievances were 13 submitted timely or specifically addressed Defendant’s conduct from October 27, 2016 through 14 October 30, 2016, which is the subject of the complaint. (Id. at ¶¶ 10-15; Exhs. A, B, & C.) The 15 Second Amended Complaint raises only one cause of action, an Eighth Amendment claim against 16 Defendant Fernandez alleging that she “arbitrarily, capriciously and with deliberate indifference 17 denied Plaintiff Constitutionally mandated medical treatment by failing to send Plaintiff to an 18 outside hospital or contact a doctor on staff to take corrective action at any point from October 19 27, 2016, through October 30, 2016.” (SAC, ECF No. 18 at 7, 10.) 20 Under the applicable regulations, Plaintiff was required to submit an administrative 21 appeal within 30 days of the incident, or knowing of the incident. See Cal. Code Regs. tit. 15, § 22 3999.227(b). Based on Plaintiff’s own allegations in the SAC, he was aware of the injury 23 immediately, (Second Amended Complaint), yet Plaintiff did not file any appeals within 30 days 24 of the alleged incident, (Id. ECF No. 18 at ¶¶ 10-15; Exhs. A, B, & C). In fact, the only appeals 25 26 7 Plaintiff’s position that his appeal involves allegations that Defendant Fernandez 27 delayed in providing adequate medical treatment between the period of October 26- November 1, 2016 does not create a genuine issue of material fact relevant to the outcome of the motion for summary 28 judgment. 1 he filed regarding his eye generally were in 2018 and 2019, respectively—years after the alleged 2 constitutional violations occurred. (Id. at ¶¶ 7-9, 11-13; Exhs. A & B.) 3 Plaintiff’s Grievance No. NKSP-HC-18001079 was not submitted until August 19, 2018, 4 which was almost two years after the complained-of conduct occurred, and prison officials did 5 not reject this appeal as time-barred, (Id. at ¶ 12; Exh. B), which Defendant contends was because 6 the appeal does not concern the 2016 conduct at issue. Defendant contends that the procedural 7 defects – that the grievance was not timely submitted and does not concern the 2016 conduct at 8 issue -- were not evident when prison officials made a decision on the merits of the grievance. 9 Defendant compares Plaintiff’s Grievance No. NKSP-HC-18001079 to the inmate’s grievance 10 in Arpaio, 557 F.3d at 1121, where the grievance was insufficient to exhaust because it did not 11 provide enough information to prison officials to take appropriate responsive measures. 12 Defendant also argues that Plaintiff’s appeal is similar to the appeals in Kimbro v. Miranda, 735 13 F. App’x 275, 279 (9th Cir. 2018) which did not exhaust remedies for denial of medication on 14 September 9, 2008, because the September 9, 2008 date was not mentioned in the grievances. 15 Defendant’s evidence also shows that Plaintiff’s other Grievance No. NKSP-HC- 16 19000134 was submitted even later than his first grievance, on March 5, 2019, and it was only 17 submitted to the institutional level and never appealed to the headquarters level as required. See 18 Brown, 422 F.3d at 937 (inmate required to exhaust every level of appeal available to him). 19 (SAC, ECF No. 18 at ¶¶ 11, 14; Exhs. A & C.) Also, Grievance No. NKSP-HC-19000134 only 20 concerned Plaintiff’s request for a second opinion about his vision and made no mention of 21 Defendant Fernandez or the conduct addressed in the complaint. (Id. at ¶ 14; Exh. C.) 22 Defendant argues that both of the appeals 8are defective, and that the rule in Reyes9 should 23 not be upheld for either of Plaintiff’s appeals because the appeals did not put prison officials on 24 notice of the merits of the lawsuit. According to Defendant, Plaintiff’s appeals generally grieved 25 26 8 Plaintiff’s grievances are also referred to as appeals. 27 9 The Ninth Circuit held in Reyes, 810 F.3d. at 657, that when prison officials address the merits of a prisoner’s grievance instead of enforcing a procedural bar, the exhaustion requirement is 28 satisfied. 1 the pain Plaintiff suffered, but they were silent about the gravamen of the complaint, that 2 “Defendant E. Fernandez responded to Plaintiff’s many complaints from October 27, 2016, 3 through October 29, 2016, concerning the pain and suffering he was experiencing with deliberate 4 indifference which cause Plaintiff to [lose] sight in his right eye.” (Second Amended Complaint 5 (SAC), ECF No. 18 at 10.) 6 D. Defendant’s Burden 7 The Court finds that Defendant has carried her initial burden to prove that there was an 8 available administrative remedy and that Plaintiff failed to exhaust that remedy for his claims 9 against Defendant Fernandez. Therefore, the burden shifts to Plaintiff to come forward with 10 evidence showing that he did exhaust the available remedies for his claims against Defendant, or 11 that there is something in his particular case that made the existing and generally available 12 administrative remedies effectively unavailable to him. 13 E. Plaintiff’s Position 14 In opposition to Defendant’s motion, Plaintiff argues that he exhausted his administrative 15 remedies for his claims in this case with Grievance Number 18001079, because he submitted the 16 grievance for Headquarters Level Response and was provided a response on January 14, 2019, 17 which advised him that “[t]his decision exhausts your administrative remedies.” (Def. MSJ, Exh. 18 B, ECF No. 35-2 at 8-10.) Plaintiff’s evidence includes Defendant’s motion for summary 19 judgment and its exhibits, (ECF No. 35), the Second Amended Complaint, (ECF No. 18), and 20 the Court’s record. Plaintiff provides evidence of the following: 21 Grievance No. 18001079 was accepted at the Institutional Level on August 20, 2018, 22 where it addressed Plaintiff’s grievance on the merits and did not mention any procedural defects. 23 (Def. MSJ, Ex. B, ECF #35-2 at p.15, 16) On October 28, 2018, Plaintiff submitted Grievance 24 No. 18001079 for Headquarters’ Level review, and on January 14, 2019, Plaintiff was provided 25 with the Headquarters’ Level Response, which again addressed the issues in Plaintiff’s grievance 26 on the merits and did not mention any procedural defects. (Def. MSJ, Ex. B, ECF #35-2 at p.8- 27 10.) At the conclusion of the Headquarters’ Level Response to Grievance No. 18001079, NKSP 28 advised Plaintiff that “[t]his decision exhausts your administrative remedies.” (Id. at 10.) 1 F. Discussion 2 1. Plaintiff’s Claims. There is no dispute that this case now proceeds only 3 with Plaintiff’s claims in the Second Amended Complaint against defendant LVN Elma 4 Fernandez for failure to provide adequate medical care in violation of the Eighth Amendment. 5 (ECF No. 20.) 6 2. Plaintiff’s Grievances 7 The parties agree that Plaintiff filed only two grievances since his incarceration at North 8 Kern State Prison in 2015, NKSP-HC-18001079 and NKSP-HC-19000134, (Decl. of R. Hart, 9 ECF No. 35-2 at ¶¶ 10, 11; Pltf’s Responsive Pleading, ECF No. 38-1 at 4 ¶ 14, 18), and that 10 Grievance no. NKSP-HC-19000134 was not exhausted to the final level of review, (Id. at ¶ 14; 11 Ex. C). Therefore, Grievance no. NKSP-HC-18001079 is the only grievance at issue in 12 Defendant’s motion for summary judgment because it is the only grievance for which Plaintiff 13 completed all levels of review. 14 Grievance No. NKSP-HC-18001079 was filed on August 19, 2018 and involved 15 allegations that medical staff, including Defendant LVN E. Fernandez, delayed in providing 16 adequate medical treatment for Plaintiff’s “serious medical needs regarding the pain & suffering 17 that I have been experiencing in my right eye & the lost [sic] of my eye . . .” (Id., ECF No. 35- 18 2 at ¶ 13; Ex. B.) Plaintiff states in Grievance No. 18001079 that he has been experiencing pain 19 from 2016 to the present. (Id.) 20 Healthcare Grievance No. NKSP HC 18001079, filed on August 19, 2018 21 This Appeal will address the issue of NKSP Medical Staff & Sacramento being deliberate indifferent to my serious medical needs regarding the pain and 22 suffering that I have been experiencing in my right eye and the lost of my eye which causes me nausea, humiliation, mental and emotional pain & suffering, & 23 how NKSP medical staff & upper medical staff has interfered/delayed & denied me medical treatment to repair my eye & relieve pain & sufferin that I have been 24 experiencing from 2016 to the present. I put in several CDC-7362 stating I can’t see out of my right eye, I was in pain, & my vision was blurry I was sent to the 25 TTA, two days after the Dr. & CP&S A. Shitiu referred me to see the Optometry they stated I couldn’t see far away I had black spots in my vision & it was black 26 spots & blurry vision I was sent to Dr. Yaplee he took pictures & X-Rays of my eye which showed the full Retina thickness MAP, stating he couldn’t help me I 27 was then sent to see Dr. Tawansey who treated me with 100 mg of Docycline & stated to return in 2-Weeks I then returned for injections for 5 to 6 months. After 28 the fifth or sixth injection I caught an infection & this is when I became in extreme pain & my eye started to oozz pus I went to FAC-A Clinic & saw LVN E. 1 Franandez & she said there was nothing she could do & to put in a CDC7363 the next day I went back she said there was no Dr. on the weekend & I had to leave I 2 told her I wasn’t going anywhere & to call who she had to call the RN on call at the TTA told her to bring me over there immediately during this time my vision 3 was completely black after being in a holding cage for an hr, a Dr. came & examine my eye for 10-seconds & said it was dead He called an ambulance & I 4 was taking to a Hospital the doctor stated he wasn’t touching my eye they kept me there over night still in pain with pus oozing out my eye that morning I was 5 sent to see Dr. Twansey he gave me four injections in the eye I saw him two days later he said I was blind in my right eye & he needed to do surgery on my right 6 eye he took the infection out of my eye from that point I was still in pain I went to see the Dr. again & told him I wasn’t able to see or focus & had scar tissue in 7 my eye, after having surgery & all exchange on my eye the X-Rays showed my eye was black The doctor allow nature to take its place in pain 8 I request an undisclosed amount of money from defendants E. Franandez, 9 V. Dacherman, O. Beregovskaya, E. Flores, D. gines, A. Kalera, N. Igbincea, A. Shittu, T. Kubicki, Institution/Headquarters Utilization Management Committee 10 members, Treatment Team assigned to me & all defendant Does in Compensatory Damages for failing to take corrective action to prevent me from losing my eye & 11 experiencing all the pain & suffering that I had to endure, because someone was in charge of making sure that I receive proper medical treatment failed terribly & 12 allowed nature to take its place & allowed me to lose my eye, which was preventable (2) Undisclose amount of money from the above defendants in 13 punitive damages for the same thing & intentionally violating my Eighth Amendment Constitutional Rights under Farmer Vs. Brennan 511 U.S. 820-27, 14 CCR. Title 15, DOM, & Government Code. I am still in pain from my eye & would like to be referred back to Dr. Twansey regarding my eye issues. (3) I 15 would also like for the receiver to have this matter investigated, because I am not the only inmate that defendants allowed to intentionally lose their eye.10 16 (ECF No. 35-2 at 11, 13; ECF No. 38-2 at 1-3.) 17 18 In response to the grievance prison officials at California Correctional Health Care 19 Services (CCHCS) identified the issue of the grievance as “[m]edical staff intentionally allowed 20 you to lose the use of your right eye” with a request by Plaintiff for “[a]n undisclosed amount of 21 money from defendants and all listed staff and groups for failing to take corrective action to 22 prevent you from losing your eye and pain and suffering, [and f]or the Receiver to have this 23 matter investigated because you are not the only inmate that defendants allowed to intentionally 24 lose their eye.” The grievance was received at the Institutional Level on August 20, 2018 and 25 closed on October 19, 2018. (ECF No. 35-2 at 6.) Subsequently, the grievance was received at 26 the Headquarters’ Level on November 1, 2018 and closed on January 14, 2019. (Id.) 27 28 10 Spelling and grammatical errors in original. 1 At the Headquarters’ Level, officials responded: 2 Your health care grievance package and health record, and all pertinent departmental policies and procedures were reviewed. These records indicate: 3 • You are enrolled in the Chronic Care Program, where your medical 4 conditions and medication needs are closely monitored. Progress notes indicate there is a plan of care in place for retina disorder and retinal detachment, and the 5 primary care provider has discussed the plan of care with you. The primary care provider completed assessments, noted review of your history, current symptoms, 6 and laboratory/imaging results, and developed a plan of care, including optometry and ophthalmology evaluation, consultation with a retinal specialist, surgical 7 interventions, medication, and transitional bifocals. 8 o Ophthalmology consultation was scheduled for January 4, 2019; however, due to provider illness the consultation was rescheduled. If the 9 appointment does not take place within the time frames outlined in the Inmate Medical Services Policies and Procedures, Volume 4, Chapter 8, 10 Outpatient Specialty Services, you may utilize approved processes to access health care services to discuss your concern with health care staff. 11 • There is no indication your care has not been provided pursuant to the 12 rules and regulations governing the management and delivery of medically or clinically necessary health care services. Patients shall be accorded impartial 13 (equal, unbiased) access to treatment or accommodations that are determined to be medically or clinically indicated, based on the patient’s individual presentation, 14 history, and exam findings, in accordance with appropriate policies and procedures. Treatment determined to be medically or clinically indicated for 15 another patient may not be determined to be appropriate for you; this does not constitute a violation of your right to impartial access to medically or clinically 16 necessary health care. 17 • Your medical condition will continue to be monitored with care provided as determined medically or clinically indicated by the primary care provider. If 18 you have additional health care needs, you are advised to utilize approved processes to access health care services in accordance with California 19 Correctional Health Care Services policy. 20 • Monetary compensation is outside the jurisdiction of the health care grievance process. 21 …….. 22 This decision exhausts your administrative remedies. 23 (ECF No. 35-2 at 9-10.) 24 25 Plaintiff argues that his Grievance No. 18001079 is like the prisoner’s appeal in Reyes 26 and therefore exhausted his remedies. In Reyes, the court held that a prisoner exhausts “such 27 administrative remedies as are available,” 42 U.S.C. § 1997e(a), under the PLRA despite failing 28 to comply with a procedural rule if prison officials ignore the procedural problem and render a 1 decision on the merits of the grievance at each available step of the administrative process. 2 Reyes, 810 F.3d at 658. 3 When prison officials opt not to enforce a procedural rule but instead decide an inmate’s grievance on the merits, the purposes of the PLRA exhaustion 4 requirement have been fully served: prison officials have had a fair opportunity to correct any claimed deprivation and an administrative record supporting the 5 prison’s decision has been developed. See Nussle, 534 U.S. at 525, 122 S.Ct. 983. Dismissing the inmate’s claim for failure to exhaust under these circumstances 6 does not advance the statutory goal of avoiding unnecessary interference in prison administration. See Woodford, 548 U.S. at 93, 126 S.Ct. 2378. Rather, it prevents 7 the courts from considering a claim that has already been fully vetted within the prison system. 8 Declining to enforce procedural rules when prison officials fail to do so also 9 serves the state’s interests in “deciding when to waive or enforce its own rules.” Reed–Bey, 603 F.3d at 325. It “takes into account the likelihood that 10 prison officials will benefit if given discretion to decide, for reasons such as fairness or inmate morale or the need to resolve a recurring issue, that ruling on 11 the merits is better for the institution and an inmate who has attempted to exhaust available prison remedies.” Hammett, 681 F.3d at 948. 12 Accordingly, we hold that a prisoner exhausts “such administrative remedies as 13 are available,” 42 U.S.C. § 1997e(a), under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render 14 a decision on the merits of the grievance at each available step of the administrative process. 15 Reyes, 810 F.3d at 658. 16 17 The parties agree that Grievance No. 18001079 was not submitted timely pursuant to the 18 requirements of Cal. Code Regs. tit. 15, § 3999.227(b), which states, “The grievant must submit 19 the form to the HCGO [Health Care Grievance Office] where the grievant is housed within 30 20 calendar days of: (1) the action or decision being grieved, or (2) initial knowledge of the action 21 or decision being grieved.” Cal. Code Regs. tit. 15, § 3999.227(b) (emphasis added). Grievance 22 No. 18001079 was filed on August 19, 2018, which is more than 30 calendar days after Defendant 23 Fernandez’s conduct in 2016 being grieved. 24 Defendant’s contention that the procedural deficiencies in Grievance No. 18001079 were 25 not evident to prison officials reviewing the grievance is not supported by evidence. There is no 26 evidence that prison officials were not aware that Plaintiff was complaining in the grievance 27 about his medical care “from 2016 to the present,” as Plaintiff stated in the grievance, or that 28 officials failed to understand that they had not enforced the statutory 30-day deadline to file a 1 grievance concerning conduct dating back to 2016. In fact, the Institutional Level Response 2 advises Plaintiff that “[y]our health care grievance package and health record and all pertinent 3 departmental policies and procedures were reviewed.” (emphasis added.) (Decl. of R. Hart, ECF 4 No. 35-2 at 15.) At the bottom of the first page of the response, Note 1 indicates that ‘[t]he 5 institutional level review is based on records available as of the date the Institutional Level 6 Response is signed by the reviewing authority.” (Id.) (emphasis added.) This evidence shows 7 that prison officials were aware of the statutory requirements for filing grievances and reviewed 8 all records pertinent to Plaintiff’s eye care while he was at NKSP, back to the date Plaintiff first 9 reported issues with his right eye. 10 Defendant argues that Plaintiff’s Grievance No. 18001079 is like the grievance in Kimbro 11 v. Miranda which failed to exhaust Kimbro’s remedies for denial of medication on September 9, 12 2008, at issue in the complaint, because the September 9, 2008 date was not mentioned in the 13 grievance. Kimbro, 735 F. App’x at 279. In Kimbro, the court found that a grievance did not 14 exhaust remedies, although Kimbro advanced a “continuing violation” theory to argue that other 15 grievances alleging denials of medication were sufficient to exhaust Kimbro’s September 9, 2008 16 denial of medication. The Court found that Kimbro’s grievances did not discuss the September 17 9, 2008, denial and thus, they were insufficient to put prison officials on notice of the denial of 18 medication on September 9, 2008, and did not allow officials “to take appropriate responsive 19 measures” to correct the problem. 20 The decision in Kimbro is an unpublished disposition and is not precedent except under 21 limited circumstances not applicable here.11 Nevertheless, the Court notes that Kimbro’s facts 22 are distinguishable from those in the instant case. In Kimbro, the plaintiff filed more than one 23 grievance complaining about denial of medication. Based on a failure to exhaust, the district 24 court dismissed Kimbro’s claim against defendant Clark for denial of medication on September 25 26 11 This disposition is not appropriate for publication and is not precedent except as 27 provided by Ninth Circuit Rule 36-3. Kimbro, 735 F. App’x at 277. Unpublished dispositions and orders of the Ninth Circuit Court of Appeals are not precedent, except when relevant under the doctrine of law 28 of the case or rules of claim preclusion or issue preclusion. CTA9 Rule 36-3. 1 9, 2008. The Ninth Circuit affirmed the district court’s decision because Kimbro’s grievances 2 did not discuss the September 9, 2008 denial of medication and therefore were insufficient to put 3 prison officials on notice of the denial of medication on September 9, 2008, thus did not allow 4 officials “to take appropriate responsive measures” to correct the problem. 5 Conversly, Plaintiff’s Grievance No. 18001079 was sufficient to put prison officials on 6 notice. The grievance discussed at length the history of medical treatment that Plaintiff received 7 for his right eye from 2016 to the present, with factual allegations describing each defendant’s 8 personal conduct leading up to the diagnosis that Plaintiff’s right eye was blind and his vision 9 could not be restored. As to Defendant Fernandez’s conduct in the days leading up to Plaintiff 10 becoming blind, Plaintiff’s allegations in his grievance are specific, and the court finds them 11 sufficient to have placed prison officials on notice of Plaintiff’s encounters with Defendant 12 Fernandez which in turn allowed officials to take appropriate responsive measures. Those 13 measures requested by Plaintiff, at the time Plaintiff filed his grievance in 2018, were 14 compensation for Plaintiff’s pain and the damage to his eye because he was not provided 15 adequate medical care, referral back to Dr. Tawansey, and an investigation. (ECF No. 35-2 at 16 11, 13; ECF No. 38-2 at 1-3.) 17 Thus, unlike in Kimbro, the facts in Plaintiff’s grievance were sufficient to put officials 18 on notice of the alleged wrong done to him by Defendant Fernandez –a delay in medical treatment 19 -- and allowed officials to take appropriate responsive measures. 20 In Arpaio, the Court found that the plaintiff, Griffin, did not provide enough information 21 in his grievance to alert the prison of a problem and facilitate its resolution. Griffin’s problem 22 concerned his unsatisfactory bunking situation, specifically the prison staff’s alleged disregard 23 of his lower bunk assignments, which allegedly resulted in Griffin falling while trying to access 24 the upper bunk. However, in his grievance, Griffin did not address his bunk assignment, but 25 rather requested a ladder or “some sort of permanent step.” He continued to appeal the grievance 26 but his appeals did not mention the alleged disregard of his lower bunk assignment, instead 27 continuing to demand better means of access to the top bunk. The Court found that Griffin’s 28 grievances and appeals had not sufficiently informed prison officials of the nature of his 1 complain,t or facilitated its resolution. See Arpaio, 557 F.3d at 1121 (internal quotation marks 2 omitted). 3 In the case at hand, Defendant argues that Plaintiff’s Grievance No. 18001079 did not 4 exhaust Plaintiff’s remedies regarding Defendant Fernandez’s conduct from October 27, 2016, 5 through October 29, 2016, because the grievance did not refer to those dates and only generally 6 grieved his medical treatment, thus failing to put the prison on notice of the merits of the lawsuit. 7 Plaintiff disagrees and argues that his grievance did put the prison on notice of the merits of his 8 lawsuit. 9 Adequate notice of the problem for which a plaintiff seeks redress only needs the level of 10 detail required by the prison’s regulations, and if a grievance is incomplete as to factual specifics 11 in the regulations, it only needs to alert the prison to the wrong. Sapp, 623 F.3d at 824 (citing 12 Bock, 549 U.S. at 218. The applicable regulation in this case concerning the process required of 13 Plaintiff by the CDCR is Cal. Code Regs. tit. 15, § 3999.227, which requires: 14 (g) The grievant shall document clearly and coherently all information known and 15 available to him or her regarding the issue. 16 (1) The grievant shall include any involved staff member’s last name, first 17 initial, title or position, and the date(s) and description of their 18 involvement. 19 (2) If the grievant does not have information to identify involved staff 20 member(s), the grievant shall provide any other available information that 21 may assist in processing the health care grievance. 22 Cal. Code Regs. tit. 15, § 3999.227(g). See Munoz, 2020 WL 5199517, at 19-20 (describing the 23 two-step process). 24 Here, in Grievance no. NKSP HC 18001079, Plaintiff included the involved staff 25 member’s last name, first initial, title or position, and description of the staff member’s 26 involvement: 27 “I went to FAC-A Clinic & saw LVN E. Franandez [sic] & she said there was 28 nothing she could do & to put in a CDC7363 the next day I went back she said 1 there was no Dr. on the weekend & I had to leave I told her I wasn’t going 2 anywhere & to call who she had to call the RN on call at the TTA told her to bring 3 me over there immediately during this time my vision was completely black after 4 being in a holding cage for an hr, a Dr. came & examine my eye for 10-seconds 5 & said it was dead” 6 (Decl. of R. Hart, ECF No. 35-2 at 11, 13; Pltf’s Oppn, ECF No. 38-2 at 1-3.) (emphasis added.) 7 Plaintiff’s grievance does not specifically state that Defendant Fernandez’s conduct 8 occurred from October 27, 2016 through October 30, 2016, which is the subject of the complaint, 9 and instead states that the deliberate indifference to Plaintiff’s medical needs for his right eye 10 and the loss of vision in his eye occurred “from 2016 to the present.” (Decl. of R. Hart, ECF 11 No. 35-2 at 11, 13; Pltf’s Oppn, ECF No. 38-2 at 1-3.) 12 “This Appeal will address the issue of NKSP staff and Sacramento being 13 deliberate [sic] indifferent to my serious medical needs regarding the pain and 14 suffering that I have been experiencing in my right eye and the lost [sic] of my 15 eye which causes me nausea, humiliation, mental and emotional pain & suffering, 16 & how NKSP medical staff & upper medical staff has interfered/delayed & denied 17 me medical treatment to repair my eye & relieve pain & sufferin [sic] that I have 18 been experiencing from 2016 to the present” 19 (Grievance No. NKSP HC 18001079, ECF No. 35-2 at 11, 13; ECF No. 38-2 at 1-3.) (emphasis 20 added.) 21 California regulations require a CDCR inmate to include in a prison grievance “the 22 date(s)” of any involved staff member’s involvement. But the regulation at issue does not offer 23 clear guidance or any examples of the date(s) or range of dates that must be included. Cal. Code 24 Regs. tit. 15, § 3999.227(g). Under Sapp, if the regulation is incomplete as to factual specifics 25 required in the grievance, the grievance only needs to alert the prison to the wrong. Sapp, 623 26 F.3d at 824 (citing Bock, 549 U.S. at, 218). 27 In the case at bar, Dosio’s grievance discusses his problems occurring from 2016 to the 28 present. The Court agrees with Defendant that the dates “from October 27, 2016, through 1 October 29, 2016” are more specific and descriptive than “from 2016 to the present,” but because 2 the regulation at issue is incomplete as to factual specifics, Plaintiff’s grievance only needs to 3 alert the prison to the wrong. Here, Plaintiff’s wrong as described in the grievance was that 4 prison officials failed to provide adequate medical treatment to repair his eye and relieve his 5 resultant pain and suffering. Plaintiff’s description in the grievance of the events at issue begins 6 in 2016 when he put in several CDC-7362 stating that he was in pain and his vision was blurry. 7 He continues to describe his visits with Dr. Shitiu (who referred Plaintiff to Optometry), Dr. 8 Yaplee (who took x-rays), and Dr. Tawansey (who treated him with Docycline and injections in 9 his eye), after which he developed a painful infection and sought help from LVN Fernandez, who 10 allegedly denied him medical assistance and told him to come back later. 11 Based on the foregoing, the Court finds Plaintiff’s written account in his grievance to be 12 sufficient to put the prison on adequate notice of the problem for which Plaintiff seeks redress. 13 Here, as in Reyes, prison officials addressed the merits of Plaintiff’s grievance instead of 14 enforcing a procedural bar to submit a grievance within 30 days of the conduct at issue, and 15 therefore the state’s interests in exhaustion have been served. Prison officials had the opportunity 16 to address the grievance and correct their own errors and an administrative record has been 17 developed. Therefore, the Court finds that Plaintiff has exhausted his administrative remedies. 18 IV. CONCLUSION AND RECOMMENDATIONS 19 The Court finds, based on the record before it, that Plaintiff exhausted his available 20 administrative remedies required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) for 21 his claims in this case against Defendant Fernandez arising in 2016. Accordingly, Defendant’s 22 motion for summary judgment, filed on December 14, 2021, should be denied. 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Defendant’s motion for summary judgment, filed on December 14, 2021, be 25 denied; and 26 2. This case be referred back to the Magistrate Judge to conduct further proceedings. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 1 (14) days after being served with these findings and recommendations, any party may file written 2 objections with the court. Such a document should be captioned “Objections to Magistrate 3 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 4 within ten days after service of the objections. The parties are advised that failure to file 5 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 6 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 7 (9th Cir. 1991)). 8 IT IS SO ORDERED. 9 10 Dated: June 24, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28