(PC) Davis v. Phui

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELLY B. DAVIS, Case No. 1:20-cv-00276-NODJ-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS CHANZA, CRYER, 13 v. AND SHERMAN’S EXHAUSTION BASED MOTION FOR SUMMARY JUDGMENT1 14 DR. UGWUEZE, KHUONG PHUI, C. CRYER, JR., STUART SHERMAN, and (Doc. No. 71) 15 L. CHANZA, 14-DAY DEADLINE 16 Defendants. 17 18 19 Pending before the Court is the exhaustion based Motion for Summary Judgment filed by 20 Defendants Dr. L. Chanza, C. Cryer, Jr., and Stuart Sherman on August 21, 2023. (Doc. No. 71, 21 “MSJ”).2 Plaintiff, who is represented by counsel, filed an Opposition, (Doc. No. 78), and 22 Defendants filed a Reply. (Doc. No. 79). The undersigned, finding no dispute of material fact, 23 recommends Defendants’ MSJ be granted. 24 I. BACKGROUND 25 A. Summary of Plaintiff’s Complaint 26 Plaintiff Kelly B. Davis (“Plaintiff” or “Davis”), a state prisoner, initiated this action by 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 filing a pro se civil rights complaint pursuant to 42 U.S.C § 1983. (Doc. No. 1). Plaintiff 2 proceeds on his Second Amended Complaint (“SAC”) as screened that alleges claims of 3 deliberate medical indifference as to Defendants: (1) Dr. Khuong Phui, (2) Dr. Ugwueze, (3) 4 Chief Executive Officer C. Cryer, Jr., (4) Warden Stuart Sherman and (5) Dentist Dr. L. Chanza. 5 (Doc. Nos. 55, 61). On December 28, 2022, counsel entered an appearance on behalf of Plaintiff. 6 (Doc. No. 56). 7 The SAC alleges that while Plaintiff was incarcerated at California Substance Abuse 8 Treatment Facility and State Prison (“CSATF”) he developed an abscessed tooth which was 9 ultimately extracted, leading to medical complications and cardiac surgery because of inadequate 10 medical and dental care. (Doc. No. 54 at 2, 6). Plaintiff was diagnosed with a heart murmur as a 11 child, which requires that he receive antibiotics in advance of any dental procedure. (Id. at 6 12 ¶14). In September 2011, upon being admitted to CDCR custody, reception noted Plaintiff’s 13 heart murmur and need for antibiotic therapy prior to any dental work. (Id.). Plaintiff regularly 14 received antibiotic therapy prior to having dental work performed between January 2008 and 15 August 2018. (Id.). 16 On September 10, 2018, Plaintiff complained to Dr. Phui and Nurse McCoy of an 17 “abscessed” tooth. (Id. ¶15). Plaintiff was referred to the dental clinic but received no medical 18 treatment for the condition. (Id.). On September 13, 2018, Dr. Edwards examined Plaintiff and 19 recommended extraction of tooth #15 after Plaintiff received “weeks of treatment for the 20 abscessed tooth.” (Id. ¶16). On September 24, 2018, Plaintiff’s wife began sending emails, 21 letters and making telephone calls to various SATF officials complaining that Plaintiff was not 22 receiving timely medical care. (Id. ¶17). On October 1, 2018, Plaintiff complained about 23 “multiple medical issues” to Nurse McCoy. (Id. ¶18). 24 On October 15, 2018, Plaintiff was summoned to the dental clinic and seen by Dr. 25 Chanza. (Id. ¶19). At this time, Plaintiff was experiencing “fever, chills, bone/body aches, 26 tiredness.” (Id.). Dr. Chanza noted that Plaintiff had a heart murmur and found an abscess in 27 tooth #15 and extracted it and tooth #16 without providing Plaintiff any antibiotic therapy. (Id.). 28 On October 28, 2018, Plaintiff requested follow-up treatment from Dr. Phui for his symptoms 1 which included fever, chills, fatigue, and weight loss. (Id. ¶ 20). Defendant Phui dismissed 2 Plaintiff’s concerns, calling him a “drug abuser,” and attempted to place him in a facility for 3 treatment for drug users. (Id.). For four more months, Plaintiff continued to have pain, fever, 4 chills and lost approximately 50 pounds. (Id. ¶ 21). On January 29, 2019, Defendant Phui 5 ordered Plaintiff sent to an outside hospital for “higher level treatment on an emergency basis.” 6 (Id.). Plaintiff received antibiotics upon admission and subsequently underwent his first heart 7 surgery on February 10, 2019. (Id. ¶ 22). Plaintiff required “multiple” surgeries due to the 8 failure to treat Plaintiff with antibiotics prior to extraction. (Id.). 9 After Plaintiff returned to SATF on February 12, 2019, non-party S. Robinson and 10 Defendant G. Ugwueze attempted to place Plaintiff in a “drug program even though no program 11 existed” “to cover up the denial of adequate medical care and switch [the] focus to drug abuser in 12 order to obtain further, additional federal funding.” (Id. ¶ 24). Plaintiff subsequently underwent a 13 second heart surgery and was transferred from CSATF to Centinela State Prison and then back to 14 CSATF. (Id. ¶¶ 25-29). 15 Plaintiff attaches to his SAC various exhibits, including: an email dated January 29, 2019, 16 from Plaintiff’s wife to Defendants Phui, Cryer and Sherman; the sworn declaration of Amy 17 Davis dated November 23, 2021; and the sworn declaration of Lacey McKenzie Douglas dated 18 October 10, 2021. (Id. at 16-23). 19 As relief, Plaintiff seeks general damages, special damages, attorneys’ fees, punitive 20 damages, costs, and future medical costs. (Id. at 14). 21 B. Defendant’s Exhaustion-Based Motion for Summary Judgment 22 Defendants filed the instant exhaustion based MSJ on August 21, 2023. (Doc. No. 71). In 23 support, Defendants submit a memorandum of points and authorities (Doc. No. 71), the 24 declaration of Howard E. Moseley (Doc. No. 71-1) and related exhibits (Doc. No. 71-2), and the 25 declaration of S. Gates (Doc. No. 71-3) and related exhibits (Doc. No. 71-4). Defendants contend 26 the uncontroverted evidence proves Plaintiff did not properly and fully exhaust his available 27 administrative remedies regarding his Eighth Amendment claims against Defendants Chanza, 28 Cryer, and Sherman. (See generally Doc. No. 71). More specifically, the only health care 1 grievance Plaintiff submitted regarding his medical complications from the dental procedure 2 (SATF HC No. 19000340) (“Grievance 340”) did not mention Dr. Chanza or describe any actions 3 or omissions on his part, (id. at 9-10), nor did it name or describe Cryer or Sherman’s 4 involvement in the alleged failure to provide Plaintiff with proper medical care. (Id. at 11). 5 Plaintiff’s Opposition to Exhaustion-Based MSJ 6 On November 6, 2023, Plaintiff filed an Opposition. (Doc. No. 78). In support, Plaintiff 7 submits a memorandum of points and authorities. (Id.). 8 Plaintiff contends that Grievance 340 put CDCR on notice as to his claims against 9 Defendant Chanza because “the lack of adequate dental care is . . . inextricably intertwined with, 10 the alleged inadequate medical care and is in fact part of it.” (Id. at 5). Specifically, Dr. 11 Chanza’s failure to treat Plaintiff’s abscessed tooth with a prior antibiotic regimen is alleged to be 12 the source of his later heart-related medical complications. (Id.). Thus, Plaintiff argues his 13 grievance regarding inadequate or delayed medical treatment necessarily encompassed the dental 14 care provided by Defendant Chanza. (Id. at 5-6). 15 As to Defendants Cryer and Sherman, Plaintiff seeks to distinguish Fordley v. Lizarraga, 16 18 F. 4th 344 (9th Cir. 2021), which held that a prisoner plaintiff’s failure to name or describe the 17 warden’s involvement in a constitutional claim constituted lack of exhaustion bars his claim in 18 federal court. Plaintiff contends that because this case involves allegations of Eighth Amendment 19 deliberate medical indifference, whereas Fordley involved allegations of Eighth Amendment 20 excessive use of force, Fordley does not apply. 21 However, for the reasons discussed below, Plaintiff’s arguments are unavailing and fail to 22 raise a genuine dispute of material fact as to whether he exhausted his administrative remedies as 23 to Defendants Chanza, Cryer, and Sherman. 24 II. APPLICABLE LAW 25 A. Summary Judgment Standard 26 Summary judgment is appropriate when there is “no genuine dispute as to any material 27 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 28 material where it is (1) relevant to an element of a claim or a defense under the substantive law 1 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 2 247 (1987). 3 The party moving for summary judgment bears the initial burden of proving the absence 4 of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When 5 the moving party has met this burden, the nonmoving party must go beyond the pleadings and set 6 forth specific facts by affidavits, deposition testimony, documents, or discovery responses, 7 showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1); 8 Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 9 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is 10 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the 11 evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party, 12 to return a verdict in that party’s favor. Id. 13 In an exhaustion-based summary judgment motion, the defendant bears the initial burden 14 of establishing “that there was an available administrative remedy, and that the prisoner did not 15 exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the 16 defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence 17 showing that there is something in his particular case that made the existing and generally 18 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 19 persuasion remains, however, with defendant. Id. 20 The Court has carefully reviewed and considered all arguments, points and authorities, 21 declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and 22 other papers filed by the parties. The omission to an argument, document, paper, or objection is 23 not to be construed that the Court did not consider the argument, document, paper, or objection. 24 Instead, the Court thoroughly reviewed and considered the evidence it deemed admissible, 25 material, and appropriate for purposes of this Order. 26 B. Exhaustion Under the PLRA 27 Under the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 28 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other 1 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 2 § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life,” including 3 Bivens claims. Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). Exhaustion is a condition 4 precedent to filing a civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006). 5 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 6 recognize a new exception, even in “special circumstances.” Ross v. Blake, 578 U.S. 632, 648 7 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 8 prisoner.” Id. at 639. A prison’s internal grievance process controls whether the grievance 9 satisfies the PLRA exhaustion requirement. Jones v. Bock, 549 U.S. 199, 218 (2007). 10 An inmate must exhaust available remedies but is not required to exhaust unavailable 11 remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). “To be available, a 12 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Id. 13 (quoting Brown v. Valoff, 422 F.3d 926, 936–37 (9th Cir. 2005)). “Accordingly, an inmate is 14 required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain 15 ‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) 16 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). 17 Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead 18 and prove.” Jones, 549 U.S. at 204. It is the defendant’s burden to prove that there was an 19 available administrative remedy, and that the prisoner failed to exhaust that remedy. Albino, 747 20 F.3d at 1172. “Once the defendant has carried that burden, the prisoner has the burden of 21 production. That is, the burden shifts to the prisoner to come forward with evidence showing that 22 there is something in his case that made the existing and generally available administrative 23 remedies effectively unavailable to him.” Id. If the court concludes that the prisoner failed to 24 exhaust available administrative remedies, the proper remedy is dismissal without 25 prejudice. See Jones, 549 U.S. at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 26 2005). 27 C. CDCR Health Care Grievance Procedures 28 During the applicable time, CDCR health grievance process involved a two-step 1 procedure for addressing an inmate’s health care concerns. See Cal. Code Regs. tit. 15, 2 § 3999.225, et seq.; (Doc. No. 71-3 at 2-3 ¶ 7). 3 First, “[t]he grievant shall complete Section A of the CDCR 602 HC and submit to the 4 HCGO [Health Care Grievance Office] where the grievant is housed within 30 calendar days of: 5 (1) The action or decision being grieved, or (2) Initial knowledge of the action or decision being 6 grieved.” Cal. Code Regs. tit. 15, § 3999.227(b); see also id., § 3999.225(n) (defining HCGO). 7 “The grievant shall document clearly and coherently all information known and available to him 8 or her regarding the issue . . . include[ing] any involved staff member’s last name, first initial, 9 title or position, and the date(s) and description of their involvement. If the grievant does not 10 have information to identify involved staff member(s), the grievant shall provide any other 11 available information that may assist in processing the health care grievance.” Id., § 3999.227(g); 12 see also, e.g., Robinson v. Cryer, 2023 WL 3007344, at *6–7 (E.D. Cal. Apr. 19, 2023), report 13 and recommendation adopted, 2023 WL 3625266 (E.D. Cal. May 24, 2023) (finding medical 14 grievance that did not identify certain defendants did not exhaust plaintiff’s administrative 15 remedies with respect to those defendants). 16 Second, “[i]f dissatisfied with the institutional level health care grievance disposition, the 17 grievant may appeal the disposition . . . to HCCAB [Health Care Correspondence and Appeals 18 Branch] . . . within 30 calendar days plus five calendar days for mailing . . . .” Cal. Code Regs. 19 tit. 15, § 3999.229(a); see also id., § 3999.225(l) (defining HCCAB). “The headquarters’ level 20 review constitutes the final disposition on a health care grievance and exhausts administrative 21 remedies . . . .” Id., § 3999.230(h), see also id. § 3999.226(g) (“Health care grievances are 22 subject to a headquarters’ level disposition before administrative remedies are deemed exhausted 23 pursuant to section 3999.230. A health care grievance or health care grievance appeal rejection 24 or withdrawal does not exhaust administrative remedies.”) (emphasis added). 25 //// 26 //// 27 //// 28 //// 1 ANALYSIS 2 A. Material Facts Regarding Exhaustion of Administrative Remedies 3 Following a thorough review of the evidence submitted3, the Court finds these material 4 facts are deemed undisputed, unless otherwise indicated: 5 • During the events giving rise to this action, Plaintiff Davis was incarcerated at 6 Substance Abuse Treatment Facility and State Prison (“SATF”). (Doc. No. 54 ¶ 3); 7 (Doc. No. 71 at 5). 8 • In September 2018, Plaintiff complained to SATF medical staff about an abscessed 9 tooth. (Doc. No. 54 ¶ 15); (Doc. No. 71 at 5). 10 • Plaintiff was then referred to the dental clinic, where he received “weeks of treatment” 11 and an eventual extraction performed by Defendant Chanza. (Doc. No. 54 ¶¶ 16-19); 12 (Doc. No. 71 at 5). 13 • Over the next few months, Plaintiff met with Dr. Phui requesting treatment of various 14 symptoms including fever, chills, tiredness, and weight loss. (Doc. No. 54 ¶ 20); 15 (Doc. No. 71 at 5). 16 • In January 2019, Dr. Phui ordered Plaintiff’s transfer to an outside hospital for 17 emergency care. (Doc. No. 54 ¶ 21); (Doc. No. 71 at 5). 18 • At the hospital, Plaintiff was diagnosed with a severe infection that had damaged his 19 heart. (Doc. No. 54 ¶ 22); (Doc. No. 71 at 5). 20 • Over the next two months, Plaintiff underwent “multiple surgeries” on his heart. 21 (Doc. No. 54 ¶¶ 22-29); (Doc. No. 71 at 5). 22 • On March 3, 2019, one month after Plaintiff’s second surgery, he submitted a health 23 24 3 The Court notes that Plaintiff did not file a response to Defendants’ Statement of Undisputed Facts (“Statement”) as required under the Local Rules. See E.D. Cal. L.R. 260(b) (directing “[a]ny party 25 opposing a motion for summary judgment or summary adjudication [to] reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, 26 including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.”). Thus, the 27 Court may properly take all facts set forth in Defendants’ Statement as undisputed. Nevertheless, the 28 Court has considered the evidence contained in Plaintiff’s verified Second Amended Complaint and his 1 care grievance, Log Number SATF-HC-19000340 (“Grievance 340”). The grievance 2 alleged “inadequate and improper medical care” by “medical staff on D yard” 3 “resulting in life threatening injury when there should have been knowledge of a 4 higher level of medical care based on my symptoms and labs and xray results . . .” 5 (Doc. No. 71-4 at 10). 6 • According to Plaintiff, his treating physicians failed to “follow protocol to check for 7 blood infection” after he displayed symptoms of heart enlargement, leading to his 8 heart damage. (Id. at 11). 9 • On May 2, 2019, Plaintiff was interviewed about his grievance by a nonparty nurse 10 before SATF’s healthcare grievance reviewer, Defendant Cryer, provided the first- 11 level response on May 8, 2019. (Id. at 12). 12 • In the response, Defendant Cryer identified multiple examinations by Plaintiff’s 13 primary care provider (Defendant Phui) between November 2018 and January 2019, 14 when Davis was transferred to an outside hospital. (Id. at 12). 15 • Cryer recounted Plaintiff’s medical history and the results of numerous diagnostic 16 tests. (Id. at 13). He concluded that Plaintiff’s medical providers provided 17 appropriate care, correctly followed departmental policies and procedures, and denied 18 the grievance. (Id. at 12-13). 19 • In July 2019, Plaintiff appealed the decision to the final, headquarters level of review. 20 (Id. at 6). In September 2019, the Headquarters Level response denied Plaintiff’s 21 grievance, finding that Plaintiff’s primary care providers were not negligent in their 22 care. (Id. at 8-9). 23 • There is no record of Davis submitting any other healthcare grievance in 2019. (See 24 Doc. No. 71-4 at 5-6). 25 • Davis submitted three additional healthcare grievances between 2020 and 2022. (Id. 26 at 5). Two of those grievances concerned medication distribution, and the third 27 concerned COVID-19 masking procedures. (Id.). None of the three grievances 28 involved any of the allegations in the Second Amended Complaint. (Id.). 1 • There is no record of Plaintiff submitting any non-healthcare-related grievances 2 between 2019 and 2022 relating to any of the allegations in the SAC. (Doc. No. 71-1 3 at 3 ¶¶ 8-9). Although Plaintiff submitted four non-healthcare-related grievances 4 during that period, none of the grievances were appealed or exhausted, and both 5 appeared to address complaints with Davis’s prison classification. (Doc. No. 71-2 at 6 2, 4); (Doc. No. 71-1 at 4 ¶ 10). 7 B. Failure to Exhaust SATF-HC-19000340 as to Defendant Chanza 8 It is uncontested that Plaintiff filed and exhausted only one healthcare grievance 9 concerning his claims in this lawsuit: Grievance Log No. SATF-HC-19000340. (Doc. No. 71-3 10 at 3 ¶ 10; see also Doc. No. 71-4 at 8-10). It is also uncontested that the grievance makes no 11 explicit mention of the dental care Plaintiff received, nor does it name Defendant Chanza. The 12 grievance complains about “inadequate and improper medical care” by “medical staff on D yard” 13 “resulting in life threatening injury when there should have been knowledge of a higher level of 14 medical care based on my symptoms and labs and xray results . . .” (Doc. No. 71-4 at 10). 15 Plaintiff asserts these allegations are sufficient to have put the institution on notice as to the 16 nature of his claims, which naturally encompassed not only his medical care but also his dental 17 care. (Doc. No. 78 at 5). 18 The level of detail in an administrative grievance necessary to properly exhaust a claim is 19 determined by the prison's applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 20 (2007). Pertinent here, two regulations required Plaintiff to “list all staff member(s) involved and 21 describe their involvement in the issue”: Cal. Code Regs. tit. 15, § 3084.2(a)(3) and Cal. Code 22 Regs. tit. 15, § 3482(c)(2) (same). Plaintiff failed to either list or describe any conduct by 23 Defendant Chanza. 24 In certain circumstances, a Plaintiff’s failure to name an individual in a grievance may not 25 be fatal. For example, in Reyes v. Smith, plaintiff filed a health care grievance regarding his 26 institution’s gradual termination of his access to morphine for pain management. 810 F.3d 654 27 (9th Cir. 2016). The institution denied Plaintiff’s grievance and appeals and noted in its 28 responses that the prison’s Pain Management Committee (“PMC”) had “recommended against 1 narcotics.” Id. at 656. After Plaintiff filed suit against two members of the prison’s PMC and 2 other prison officials, the district court granted an exhaustion-based motion for summary 3 judgment as to the two PMC members because they had never been named in Plaintiff’s health 4 care grievances, contrary to Cal. Code Regs. tit. 15 § 3084.2(a) (2015). Id. at 656-57. The Ninth 5 Circuit reversed, noting the explicit reference to the PMC in the institution’s responses in finding 6 that Plaintiff’s grievance “plainly put prison officials on notice of the nature of the wrong alleged 7 in his federal suit—denial of pain medication by the defendant doctors [because] [p]rison officials 8 . . . plainly knew that the Pain Management Committee, of which Drs. Smith and Heatley and 9 Smith were members, had decided Reyes should not receive the medication . . .” Reyes, 810 F.3d 10 at 659. Thus, even though Reyes had not named the specific defendants in his grievance and 11 appeals, the Court found that the prison and those defendants were on notice of the nature of 12 Reyes’ claims. The Ninth Circuit also held that where the prison did not enforce a procedural 13 rule, such as the requirement of naming all involved individuals, but instead addressed a 14 grievance on the merits, it could not later enforce that rule so long as it was on notice of the 15 claim. Id. at 658. 16 Here, Plaintiff cannot credibly argue that Grievance 340 put prison officials on notice of 17 his claims as to either his dental care or any actions undertaken by Defendant Chanza. The PLRA 18 requires “proper exhaustion,” which “demands compliance with a prison’s deadlines and other 19 critical procedural rules.” Merchant v. Corizon Health, Inc., 993 F.3d 733, 742 (9th Cir. 2021). 20 That means Plaintiff was required to identify Dr. Chanza as a party responsible for the alleged 21 wrongdoing or, at a minimum, notify prison officials that he took issue with his “dental care” as 22 opposed tohis the “medical care” he received. See, e.g., Cal. Code Regs. tit. 15, § 3084.2(a)(3) 23 (2019) (requiring inmates to “list all staff member(s) involved and describe their involvement in 24 the issue”); Cal. Code Regs. tit. 15, § 3482(c)(2) (same). Plaintiff did neither. 25 Indeed, to construe the wording in Grievance 340 as placing correctional officials on 26 notice that Plaintiff was grieving dental care performed by Defendant Chanza is belied by the 27 institution and headquarters’ responses. In the first-level response to Davis’s grievance, CEO 28 Cryer focused entirely on the medical care provided by Davis’s primary care providers. (Doc. 1 No. 71-4 at 12-14). Cryer summarized the various diagnostic exams provided by Dr. Phui and the 2 various dates Phui examined Davis. (Id.). There are no indications officials were aware that 3 Plaintiff was grieving his dental care or had reason to suspect that it was the source of his alleged 4 injury. 5 Likewise, the headquarters-level response focused on care by Davis’s primary care 6 providers. (Id. at 1–2). Because neither response mentioned Dr. Chanza nor dental care Davis 7 received, the Court cannot infer that prison officials had notice of those claims. Although 8 Plaintiff later learned that Defendant Chanza’s failure to administer antibiotics may have caused 9 his infection and later medical complications, he failed to include these allegations in any 10 grievance. Thus, Plaintiff failed to exhaust his claims as to Defendant Chanza. Accordingly, the 11 undersigned finds no genuine dispute of material fact that Plaintiff failed to exhaust his 12 administrative remedies as to Defendant Chanza and will thus recommend that Defendants’ MSJ 13 be granted as to Defendant Chanza. 14 C. Failure to Exhaust SATF-HC-19000340 as to Defendants Cryer and Sherman 15 Likewise, it is uncontested that Plaintiff’s health care grievance makes no reference to 16 Defendants Cryer or Sherman, nor does it make any reference to any conduct undertaken by 17 either Defendant. The parties’ argument regarding whether Plaintiff exhausted his claim as to 18 Defendants Cryer and Sherman centers around the applicability of Fordley v. Lizarraga, 18 F.4th 19 344 (9th Cir. 2021). In Fordley, a California inmate submitted an administrative grievance 20 alleging an assault by four correctional officers. 18 F.4th at 347. The inmate later filed suit 21 against not only the officers, but also the prison warden for deliberate indifference to the officers’ 22 violation of his constitutional rights. Id. at 349. The Ninth Circuit dismissed the claim against 23 the warden, holding that the inmate was required to exhaust his claim as to the warden, but failed 24 to do so. Although the claims all arose from the same incident, the Court noted that the 25 grievances “did not name [the] warden” or “describe the warden[’s]” involvement. Id. The mere 26 fact that the inmate’s claims against the warden related to the officers’ conduct was not enough to 27 “put the prison on notice that [the plaintiff] intended to assert a deliberate indifference claim 28 against the warden.” Id. Thus, the inmate’s failure to comply with prison grievance regulations 1 rendered the claim against the warden unexhausted. Id. 2 Defendants argue the same reasoning applies here because Plaintiff’s grievance did not 3 “name” or “describe” either CEO Cryer or Warden Sherman’s involvement in any alleged 4 wrongdoing. The Court agrees. The holding in Fordley is consistent with Supreme Court case 5 law referenced above, which requires compliance with the prison’s applicable grievance 6 procedures to exhaust administrative remedies under the PLRA. Jones, 549 U.S. at 218. Here, 7 Plaintiff failed to “list all staff member(s) involved and describe their involvement in the issue” as 8 required by Cal. Code Regs. tit. 15, §§ 3084.2(a)(3) and 3482(c)(2). Nor did Plaintiff’s grievance 9 otherwise put the prison on notice of his intent to sue Defendants Cryer and Sherman by 10 referencing their involvement in any alleged misconduct. The fact that Plaintiff’s allegations 11 against Cryer and Sherman are related to his exhausted claims against Dr. Phui and Dr. Ugwueze 12 is insufficient to exhaust them under the PLRA. 13 Plaintiff’s only argument to the contrary is that Fordley involved Eighth Amendment 14 excessive force claims and this case involves Eighth Amendment deliberate medical indifference; 15 Plaintiff also asserts that his claim is distinguishable from Fordley because it arose from a 16 “medical treatment facility” as opposed to a prison. (Doc. No. 78 at 6) (emphasis in original). 17 However, it is well-known that SATF—the Substance Abuse Treatment Facility and State Prison 18 is in fact a prison.4 And Plaintiff can point to no language in Fordley that limits the court’s 19 holding to the context of Eighth Amendment excessive use of force claims. 20 Thus, there is no genuine dispute of material fact as to whether Plaintiff’s Eighth 21 Amendment claims as to Defendants Cryer and Sherman were unexhausted. Thus, the 22 undersigned will recommend that Defendants’ MSJ be granted as to these Defendants Cryer and 23 Sherman. 24 CONCLUSION 25 The Court finds the undisputed record demonstrates Plaintiff did not fully exhaust his 26 4 See https://www.cdcr.ca.gov/facility-locator/satf/ (“The primary mission of the California Substance 27 Abuse Treatment Facility and State Prison at Corcoran (SATF/CSP) is to protect the public by ensuring 28 those inmates who are remanded to the California Department of Corrections and Rehabilitation (CDCR) 1 | available administrative remedies as to Defendants Dentist Dr. Chanza, Chief Executive Cryer, or 2 | Warden Sherman. Because Plaintiff failed to fully exhaust his administrative remedies as 3 | required by 42 U.S.C. § 1997e(a), these three Defendants are entitled to summary judgment as a 4 | matter of law. 5 Accordingly, it is hereby RECOMMENDED: 6 1. Defendants Chanza, Cryer, and Sherman’s Motion for Summary Judgment (Doc. 7 No.71) be GRANTED and Defendants Chanza, Cryer, and Sherman’s be 8 DISMISSED from this action. 9 2. This action be permitted to proceed against only Defendants. Defendants Drs. Phui 10 and Ugwueze and the Clerk to be directed to correct the docket to reflect the same. 11 NOTICE 12 These Findings and Recommendations will be submitted to the United States District 13 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 14 | of the date of service of these Findings and Recommendations, a party may file written objections 15 | with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 16 | and Recommendations.” A party’s failure to file objections within the specified time may result in 17 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 18 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 | Dated: _ February 9, 2024 Mile. Wh. foareh Zaskth 21 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1A