Filed 3/19/20 Ordaz v. Fortune CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

RAFAEL ORDAZ,

Plaintiff and Appellant,

v.

JUNIOR FORTUNE et al.,

Defendants and Respondents.

F077626

(Super. Ct. No. 15CECG03205)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.

Rafael Ordaz, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra and Matthew Ross Wilson, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

This medical malpractice action was filed by a self-represented inmate against members of the medical staff at Pleasant Valley State Prison. The staff members demurred on the ground the inmate had failed to exhaust his administrative remedies. The trial court sustained the demurrer on exhaustion grounds. The inmate appealed.

As to the inmate’s first medical malpractice cause of action, we conclude the inmate failed to exhaust his administrative remedies because he did not pursue his inmate grievance through the second and third levels of administrative review. As to his second medical malpractice cause of action, the inmate obtained a denial of his grievance at the third level of review, but that grievance did not name one of the demurring staff members. The omission of that name from the grievance leads to the conclusion that the inmate did not exhaust his administrative remedies with respect to the unnamed staff member. Thus, the trial court properly sustained that defendant’s demurrer as to the second cause of action on exhaustion grounds.

The inmate contends nothing in the Prison Litigation Reform Act of 1995 (PLRA), as interpreted by the United States Supreme Court in Jones v. Bock (2007) 549 U.S. 199 (Jones), “imposes a ‘name all defendants’ requirement” to exhaust the available administrative remedies. (Id. at p. 217.) However, the level of detail an administrative grievance must contain to properly exhaust a claim is determined by the requirements of the prison’s grievance procedures. (Id. at p. 218; see Sapp v. Kimbrell (9th Cir. 2010) 623 F.3d 813, 824 [“To provide adequate notice, the prisoner need only provide the level of detail required by the prison’s regulations”].) The applicable California regulations provide that “the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal.” (Cal. Code Regs., tit. 15, §§ 3084.2, subd. (a)(3).) In accordance with this provision, the inmate was required to include each defendant’s name in his grievance. Consequently, we reject his argument that his second cause of action may include defendants not named in his grievance.

We therefore affirm the judgment.

BACKGROUND

In September 2015, appellant Rafael Ordaz filed a complaint in the Fresno Superior Court. The first page of the complaint listed Dr. Oganna Onyeje, Dr. John Chokatos, physician assistant Junior Fortune, and nurse Merix Pascual as defendants. The complaint contained two causes of action. The first cause of action related to the rash that developed on Ordaz’s back and shoulders and the treatment he received between January 15, 2015 and May 15, 2015. The second cause of action related to post-operative care of an infection that caused Ordaz pain for months. Ordaz alleged he was not provided with a dressing change for two weeks and a hematoma developed. He also alleged he was not provided any pain management.

In September 2016, defendants demurred to the complaint on the grounds Ordaz did not exhaust his administrative remedies with respect to his first cause of action or with respect to Dr. Onyeje in his second cause of action. The demurrer also asserted Ordaz had not properly presented a claim under the Government Claims Act (Gov. Code, § 810 et seq.) with respect to his causes of action against Drs. Onyeje and Chokatos and they were immune under Government Code sections 820.2 and 820.8.

Defendants supported their demurrer with a request for judicial notice of (1) Ordaz’s inmate grievance, Log No. PVSP-HC-15051244 (Grievance ‘244); (2) the first level decision to Grievance ‘244; (3) Ordaz’s inmate grievance, Log No. PVSP-SC-15000621 (Grievance ‘621); and (4) the second and third level decisions to Grievance ‘621. The third level decision to Grievance ‘621 stated the appeal was denied and “[t]his decision exhausts your administrative remedies.”

Ordaz’s opposition to the demurrer argued he had fully exhausted his administrative remedies with respect to the first cause of action because the grievance had been “granted” before reaching the third level. In addition, Ordaz argued his second grievance was not required to list the name of every defendant so long as he provided the available information known to him and, moreover, nothing in the PLRA “imposes a ‘name all defendants’ requirement” to exhaust the available administrative remedies. (Jones, supra, 549 U.S. at p. 217.)

Defendants’ reply to Ordaz’s opposition argued it was clear that Ordaz’s first grievance was not resolved in his favor because the grievance alleged the medical care provided constituted negligence, malpractice and deliberate indifference and those claims were expressly rejected. They also reiterated that Ordaz’s second grievance did not identify Dr. Onyeje and, therefore, did not properly exhaust Ordaz’s administrative remedies as to the claim against him.

In October 2016, the trial court issued a tentative ruling stating it intended to (1) sustain the demurrer to the first cause of action as to all defendants; (2) sustain the demurrer to the second cause of action only as to Dr. Onyeje; and (3) overrule the demurrer to the second cause of action as to physician assistant Fortune. Subsequently, the court adopted its tentative ruling as the order of the court.

In December 2017, physician assistant Fortune filed a motion for summary judgment. Ordaz opposed the motion. In April 2018, the trial court granted Fortune’s motion for summary judgment, concluding the declaration of defendant’s medical expert was sufficient to carry the burden of showing the medical services provided met the standard of care. The court noted Ordaz had not presented any expert testimony regarding the standard of care or otherwise met his burden of demonstrating the existence of a triable issue of material fact.

On April 12, 2018, the trial court entered a judgment. Ordaz filed a timely notice of appeal, marking the box for an appeal from a “[j]udgment of dismissal after an order sustaining a demurrer.”

On October 11, 2018, the appellant’s opening brief was received and filed by this court. The prison mail room stamped the envelope containing Ordaz’s opening brief as received on October 9, 2018. The same date appears in the postage affixed to the envelope. That brief raised a single issue about whether Ordaz’s inmate grievances needed to name a defendant to exhaust the administrative procedures with respect to that defendant.

In December 2018, defendants filed a motion to augment the appellate record, which this court granted. On February 22, 2019, defendants filed their respondents’ brief. The respondents’ brief addressed Ordaz’s argument about the exhaustion of administrative remedies and, as alternate grounds for affirming the judgment, asserted Ordaz (1) had not complied with the Government Claims Act, (2) had failed to state a claim for medical malpractice against Dr. Onyeje, and (3) had waived any challenge to the summary judgment granted to physician assistant Fortune.

At some point, Ordaz was transferred to the California State Prison in Lancaster. On October 18, 2019, the court mailed a letter to Ordaz to inquire if he had received the court’s order granting the motion to augment and the subsequent respondents’ brief. We also asked if he intended to request permission to file a late reply brief, intended to have the case decided based on his opening brief and the respondents’ brief, or intended to abandon the appeal. To place Ordaz in a position similar to self-representing litigants with Internet access, we included a three-page excerpt from the information about reply briefs provided by the California Appellate Courts Self-Help Resource Center (https://selfhelp.appellate.courts.ca.gov/). The website’s “Appeals Timeline” divides the appeals process into 12 steps. Filing a reply brief is the seventh step and oral argument is the eighth step. The excerpt also was intended to guide Ordaz’s preparation of any reply brief he chose to submit to this court in his other pending appeal, Ordaz v. Tate, case No. F078328.

On November 18, 2019, this court received Ordaz’s response, which stated he did not intend to abandon the appeal and expressed an interest in filing a late appellant’s reply brief. Two days later, we filed an order granting Ordaz permission to file a late appellant’s reply brief, setting a deadline of December 31, 2019, and stating no further extensions of time would be granted because of the age of the appeal and the amount of time since the respondent’s brief was filed. We did not receive an appellant’s reply brief from Ordaz in this appeal, although he filed one in Ordaz v. Tate, case No. F078328. Based on the absence of a reply brief, this opinion addresses only the argument presented by the appellant’s opening brief and addressed in the respondents’ brief.

DISCUSSION

I. FIRST CAUSE OF ACTION

A. Basic Principles Requiring Exhaustion

“Under both state and federal law, a prisoner must exhaust available administrative remedies before seeking judicial relief.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 664 (Wright).) In California, the administrative remedies available to prisoners are set forth in regulations establishing an inmate grievance process. (Cal. Code Regs., tit. 15, §§ 3084-3085; see Villery v. Dept. of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407; Menefield v. Foreman (2014) 231 Cal.App.4th 211.)

When submitting a grievance, the inmate “shall use a CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief requested.” (Cal. Code Regs., tit. 15, §§ 3084.2, subd. (a).) The administrative process initiated with a Form 602 “generally consists of four levels of review: an informal review followed by three formal reviews.” (Wright, supra, 122 Cal.App.4th at p. 666; see Cal. Code Regs., tit. 15, § 3084.7 [levels of appeal review and disposition].)

It is well established the administrative remedies provided by the inmate grievance process are not exhausted until the third level of formal review has been completed and a final administrative decision rendered. (Wright, supra, 122 Cal.App.4th at p. 667 [inmate failed to exhaust his administrative remedy because the third formal level review had not been completed when he filed his first amended complaint].)

B. Application of Principles

Here, the record establishes that Ordaz did not pursue the second and third levels of review of Grievance ‘244, which alleged improper treatment of his skin condition. The copy of the first level response to Grievance ‘244 listed two issues—staff complaints and disagreement with treatment. It also stated Ordaz had requested the nurse’s misdiagnosis and malpractice be addressed and proper medical treatment and diagnosis be provided. As to the disposition of each of these issues and the related request for relief, the response stated, “Granted.” The last line before the signature blocks on the response stated: “Appeal Decision: Granted.” Elsewhere, the response stated twice: “During the review of the appeal there is no evidence of misconduct by staff or a violation of policy or procedure.” It also stated twice: “The RN followed protocol.” The response explained what was meant by granting Ordaz’s request: “Your request for the RNs constant blunt misdiagnosing and malpractice to be addressed is granted in that your appeal was reviewed and evaluated by the Hiring Authority and the issue was deemed not to meet staff complaint criteria.” In addition, it stated: “Your request to receive proper medical treatment and diagnosis from your RN visit on January 28, 2015, is granted in that you were seen by the RN on January 28th and given hydrocortisone cream and referred to the doctor line as per protocol.” These explanations demonstrate no new relief would be forthcoming and, as a practical matter, Ordaz’s claim of improper medical care had been denied, despite the inclusion of the bolded word “Granted” three times in the first level response.

If “there exists a ‘possibility of some relief for the action complained of,’ an available administrative remedy still exists for the inmate to exhaust.” (Brady v. Attygala (C.D.Cal. 2002) 196 F.Supp.2d 1016, 1020, quoting Booth v. Churner (2001) 532 U.S. 731, 738.) Under this test, the second level of administrative review provided Ordaz the possibility of some relief—specifically, a determination (1) overturning the first level response stating that proper protocol was followed and there was no evidence of staff misconduct and (2) directing further treatment be provided.

Consequently, Ordaz’s failure to pursue an appeal to the second level of review leads to the conclusion that he did not exhaust his administrative remedies for his claim relating to the treatment of his skin condition. This failure to exhaust acts as a bar to his pursuit of that specific claim in court. (Wright, supra, 122 Cal.App.4th at pp. 664-665.) Accordingly, as to Ordaz’s first cause of action, the trial court properly sustained the demurrer without leave to amend. We note that the arguments presented in Ordaz’s opening brief do not address his failure to pursue the grievance through the second and third levels.

II. SECOND CAUSE OF ACTION

A. Trial Court’s Decision

Ordaz’s second cause of action named as defendants Dr. Onyeje, Dr. Thomas Monfore, physician assistant Fortune, and Doe defendants No. 1 and 2. The trial court sustained the demurrer as to Dr. Onyeje, stating:

“[Ordaz’s] second administrative grievance stated that [he] suffered complications immediately after surgery, that [his] wound dressing was not changed for two weeks, and that a hematoma developed at or near the surgery site. [Ordaz] stated also that Defendant Fortune and the surgeon who performed [the] surgery failed to properly treat [Ordaz’s] hematoma and post-operative pain.

“Any party not named in [Ordaz’s] grievance regarding his post-operative treatment cannot be named in the instant action, as [Ordaz] has not exhausted his administrative remedies against such parties and the claims are now time-barred. Thus, Defendant On[ye]je’s demurrer to [Ordaz’s] second cause of action is sustained, without leave to amend.”

B. Contentions

The “ARGUMENT” section of Ordaz’s opening brief asserts he is governed by the PLRA and it does not have a name-all-defendants requirement. He contends the trial court cannot override the rulings of the United States Supreme Court in Jones, supra, 549 U.S. 199 and Woodford v. Ngo (2006) 548 U.S. 81 (Woodford), a case that addressed California’s prisoner grievance process. Ordaz asserts the trial court intentionally ignored the Supreme Court precedent.

C. Analysis

Ordaz has correctly described Jones as stating the principle that “nothing in the [PLRA] imposes a ‘name all defendants’ requirement ….” (Jones, supra, 549 U.S. at p. 217.) Ordaz’s description, however, overlooks the further explanation provided by the Supreme Court later in its decision:

“In Woodford, we held that to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ [citation]—rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” (Jones, supra, 549 U.S. at p. 218, italics added.)

Accordingly, the level of detail required in the grievance submitted by Ordaz is determined by the California regulations that establish the inmate grievance process. Those regulations are set forth in article 8 of title 15 of the California Code of Regulations. (Cal. Code Regs, tit. 15, §§ 3084-3084.9.) The preparation and submittal of an inmate grievance on Form 602 is addressed in section 3084.2 of title 15 of the California Code of Regulations. Subdivision (a) of that section provides in part:

“(3) The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question.

“(4) The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment.” (Italics added.)

Thus, the current version of the regulations plainly requires an inmate’s grievance to name the staff members involved and describe their involvement. Accordingly, Ordaz’s argument that he was not required to name a defendant to exhaust his administrative remedies with respect to that defendant does not accurately state California law.

We note Ordaz is not the first inmate in a California prison to raise this argument. In Avery v. Paramo (S.D.Cal., Aug. 18, 2015, No. 13CV2261 BTM DHB), 2015 WL 4923820, the inmate cited section 3084.2 of title 15 of the California Code of Regulations to support his argument that the law did not require his grievance to name each person who retaliated against him. (Id. at p. *9, fn. 9.) The federal district court rejected this argument, stating:

“While this was formerly true, see Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010), section 3084.2(a) was amended effective January 28, 2011 to require that prisoners indeed ‘list all staff member(s) involved,’ and describe their involvement in the issue’ in their CDCR Form 602s. See Cal. Code Regs., tit. 15 § 3084.2(a) (2014).” (Ibid.)

To summarize, Ordaz’s argument had merit in the prior decade, but it is now obsolete because of amendments to the regulations requiring an inmate grievance to include the defendant’s last name and first initial. (Cal. Code Regs, tit. 15, § 3084.2, subd. (a)(3).) Thus, the trial court correctly sustained Dr. Onyeje’s demurrer to the second cause of action on the ground Grievance ‘621 did not name Dr. Onyeje and therefore, did not exhaust Ordaz’s administrative remedies with respect to him.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.