Opinion
C096593
12-06-2023
IVAN KILGORE, Plaintiff and Appellant, v. R. COMPTON et al., Defendants and Respondents
NOT TO BE PUBLISHED
Super. Ct. No. 34-2017-00212783-CU-PO-GDS
Krause, J.
Pro se plaintiff and inmate Ivan Kilgore (plaintiff) alleged that various prison workers failed to timely provide him with reasonable access to over-the-counter pain medication after a knee injury. The trial court sustained defendants R. Compton, J. Macomber, J. Barretto, G. Wangombe, and R. Heredia's (together, defendants) demurrer to plaintiff's first amended complaint on multiple grounds without leave to amend. Plaintiff appeals the trial court's order sustaining the demurrer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Allegations
In September 2014, while plaintiff was incarcerated at a California state prison, the California Correctional Health Care System, in conjunction with the Department of Corrections and Rehabilitation (CDCR), launched a test program designed to distribute over-the-counter medications to inmates through designated canteen draws. Under the program, inmates could select up to three products per 30-day period during that inmate's designated draw.
In March 2015, plaintiff injured his knee while exercising. On March 19, 2015, plaintiff asked canteen employee Heredia for Naproxen for his knee pain. Heredia denied his request, advising plaintiff that he would have to wait for his canteen draw the following month to obtain the medication. The next day, plaintiff submitted a sick-call slip, informing the medical staff about his knee injury and pain. On March 23, 2015, Wangombe, a nurse, saw plaintiff at the medical clinic. During this visit, plaintiff advised Wangombe of his injury, pain, and swelling, and that his knee made "popping sounds" when he moved it a certain way. Plaintiff requested pain medication and explained his difficulties obtaining medication from the canteen. Wangombe denied his request and directed him to the canteen for over-the-counter pain medication.
On March 27, 2015, a physician named Dr. Bobbala saw plaintiff at the clinic. Dr. Bobbala prescribed Naproxen (Aleve) for plaintiff to acquire from the pharmacy after plaintiff described his complications with obtaining medication from the canteen. However, Dr. Bobbala did not write on the prescription that plaintiff had been unable to obtain the medication from the canteen because it was closed. Accordingly, the pharmacy staff member would not fill the prescription on the basis that the medication was available at the canteen.
Dr. Bobbala is represented by separate counsel and is not a party to this appeal.
On March 30, 2015, plaintiff again saw Wangombe at the clinic and informed her that he had been unable to obtain the medication because the canteen was closed. However, Wangombe did not notify the pharmacy of the issue. Plaintiff informed two other nurses of his inability to obtain the medication, to no avail. On April 8, plaintiff obtained Naproxen from the canteen. The next day, plaintiff was seen at the clinic due to his worsening knee injury and was referred to another doctor.
On April 14, 2015, plaintiff submitted a medical appeal, which Compton, the custody appeals coordinator, rejected because it was on the wrong form. On May 6, 2015, plaintiff submitted his appeal again, which Compton denied on May 18, 2015. The denial stated that plaintiff had "failed to demonstrate a material adverse effect upon his welfare," that "having medication available in the canteen did not present a material adverse effect," that plaintiff's form improperly used whiteout and was on the wrong form, and that if plaintiff disagreed, he was to file a healthcare appeal on a new form. Plaintiff alleges that Compton screened-out every appeal plaintiff submitted "for no valid reason" through "machination and misrepresentation" such that plaintiff was unable to navigate the appeals process.
Thereafter, plaintiff received an x-ray and MRI, which indicated he had torn cartilage on his knee. Plaintiff was referred to an orthopedic specialist to consider surgery.
On August 12, 2015, plaintiff filed a claim form with the California Victim Compensation and Government Claims Board (the board). On September 14, 2015, the board "directed [p]laintiff to resolve this matter through the court system."
Though not clearly stated, we interpret this allegation to mean that the board denied plaintiff's claim.
B. Procedural History
Plaintiff filed this action on May 19, 2017. The trial court sustained defendants' demurrer to the complaint with leave to amend, on the grounds that plaintiff failed to exhaust his administrative remedies, his claims against the medical providers were time-barred, and defendants were statutorily immune from liability. Plaintiff filed his operative first amended complaint, alleging causes of action for negligence and violation of Government Code section 845.6. Defendants again demurred, and the trial court sustained the demurrer without leave to amend on the same grounds. Defendant timely appealed.
DISCUSSION
Plaintiff argues that the trial court erred in sustaining the demurrer on each of the three separate grounds. We conclude otherwise.
I
Standard of Review
A demurrer tests the legal sufficiency of the factual allegations of the complaint. (Thornton v. California Unemployment Ins. Appeals Bd. (2012) 204 Cal.App.4th 1403, 1411.) On appeal from a dismissal after an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it contains sufficient facts to state a cause of action under any legal theory. (Silva v. Langford (2022) 79 Cal.App.5th 710, 715.) In evaluating the complaint, we must assume the truth of all material facts properly pleaded in the complaint. (Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 816, 819.) We also must accept as true facts that are reasonably implied or may be inferred from the complaint's express allegations. (Ibid.) However, we do not assume the truth of contentions, deductions, or conclusions of fact or law. (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189.)
II
Exhaustion of Administrative Remedies
The trial court properly sustained plaintiff's demurrer on the ground that plaintiff neither alleged that he exhausted his administrative remedies, nor adequately alleged that he was excused from doing so.
California prisoners may appeal "any policy, decision, action, condition, or omission by the [CDCR] or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." (Cal. Code Regs., former tit. 15, § 3084.1, subd. (a) [repealed eff. June 1, 2020 (Register 2020, No. 13 Mar. 25, 2020].) During the relevant period, the regulations required that prisoners pursue grievances through three levels of review to exhaust their administrative remedies. (Cal. Code Regs., tit. 15, §§ 3084.1, subd. (b), 3084.7, subd. (d)(3).) These levels include (1) a submission of CDCR Form 602 to the prison's appeals coordinator, describing the specific issue and relief requested (Cal. Code Regs., tit. 15, § 3084.2, subd. (c)), (2) a review "conducted by the hiring authority or designee at a level no lower than Chief Deputy Warden, Deputy Regional Parole Administrator, or the equivalent" (Cal. Code Regs., tit. 15, § 3084.7, subd. (d)(2)), and (3) a third-level review "conducted by a designated representative under the supervision of the third level Appeals Chief or equivalent." (Cal. Code Regs., tit. 15, § 3084.7, subd. (d)(3).) With exceptions not relevant here, "all appeals are subject to a third level of review, as described in section 3084.7, before administrative remedies are deemed exhausted." (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).) "In addition, a cancellation or rejection decision does not exhaust administrative remedies." (Ibid.)
Since plaintiff filed this action, the Legislature repealed and replaced the regulations governing the CDCR grievance process, effective June 1, 2020, and then put additional changes into the grievance and appeal system effective January 5, 2022. (Cal. Code Regs., tit. 15, §§ 3480-3486.) For purposes of this opinion, all further references to title 15 of "Regulations" or "Cal. Code Regs." are to the version of title 15 of the California Code of Regulations in effect in 2015, the time that plaintiff sought to file his appeal. Regardless, we note that even if we applied the current version of the regulations, plaintiff's allegations still do not meet the exhaustion requirement. (Current Cal. Code Regs., tit. 15, § 3084.1.) And in any event, as we discuss, plaintiff does not plead that he complied with the exhaustion requirement, but rather than he is excused from compliance.
The general rule is that "a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies." (In re Dexter (1979) 25 Cal.3d 921, 925.) "Where administrative remedies exist, California courts usually will not have subject matter jurisdiction over a dispute until the administrative tribunal has made a final determination. [Citation.]" (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1023.) The exhaustion requirement applies to prisoner grievances, even where the prisoner seeks money damages unavailable in the administrative process. (Wright v. State of California (2004) 122 Cal.App.4th 659, 668-669.)
The first amended complaint alleges only that plaintiff filed a first level appeal, which was rejected because he "failed to demonstrate a material adverse effect upon his welfare [and] that having medication available at the canteen did not present a material adverse effect," as well as for procedural deficiencies. Plaintiff does not plead that he then proceeded to the next levels of appeal before filing suit. Thus, plaintiff does not plead compliance with the exhaustion of administrative remedies requirement. Rather, plaintiff alleges that he tried multiple times to submit his appeals, but Compton repeatedly "screened [them] out" through "machination and misrepresentations." As Compton allegedly screened out every appeal plaintiff submitted "for no valid reason," plaintiff argues that he sufficiently alleged the appeals process was impossible to access and thus he was excused from exhausting his administrative remedies before bringing suit.
"[A]n inmate must allege specific facts showing the administrative procedure is effectively unavailable. [Citations.] Consequently, a statement in the pleading that the inmate is excused from exhausting administrative remedies because prison officials have thwarted the inmate's use of the grievance process through machination, misrepresentation, or intimidation is treated as a conclusion of law rather than an allegation of ultimate fact and, thus, does not properly allege unavailability. [Citation.] To properly plead the excuse of unavailability based on prison officials' machinations, misrepresentations, or intimidation, the pleading must state how, when, where, to whom, and by what means the machinations, misrepresentations or intimidation were accomplished." (Foster v. Sexton, supra, 61 Cal.App.5th at p. 1028.)
Here, plaintiff fails to allege specific facts supporting his conclusory allegations that Compton screened out his complaints through machination and misrepresentation. He does not plead facts explaining the mechanism by which Compton improperly screened out his appeals, how the purported screening was accomplished, or when he did so (beyond alleging it was "during the time frame that [Compton] was the appeals coordinator"). Plaintiff's vague allegations are thus insufficient to plead excusal from the grievance process.
While plaintiff argues his first level appeal was not denied on the merits, this assertion, even if true, does not affect the outcome. In any event, we note that plaintiff does plead that his appeal was denied on the merits, for failure to show a material adverse effect. Further, even if it was not denied on the merits, the second level of review "is for review of appeals denied or not otherwise resolved to the appellant's satisfaction at the first level." (Cal. Code Regs., tit. 15, § 3084.7, subd. (b).) Thus, regardless of whether plaintiff's appeal was denied on the merits at the first level, plaintiff was required to proceed through the appeals process or plead specific facts showing that he is excused from doing so. Here, plaintiff did neither. The demurrer was accordingly properly sustained as to all causes of action on this ground. (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379 [inmate's "complaint is vulnerable to demurrer on administrative exhaustion grounds when it fails to plead either that administrative remedies were exhausted or that a valid excuse exists for not exhausting"].)
III
Government Code Section 845.6While plaintiff's failure to allege compliance with (or excusal from) the administrative grievance process is a sufficient basis on which to affirm the trial court's order dismissing the first amended complaint, we observe that plaintiff's statutory cause of action also independently fails to state a claim.
Plaintiff alleges a cause of action under Government Code section 845.6, which states in relevant part: "Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." (Italics added.)
Liability under Government Code section 845.6 is limited to "serious and obvious medical conditions requiring immediate care"; the public entity or employee must know or have reason to know that the prisoner needs immediate medical care, and fail to summon such care. (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288; Watson v. State of California 288 (1993) 21 Cal.App.4th 836, 841-842.) "A narrow reading of [Government Code] section 845.6 is . . . compelled as a matter of statutory interpretation. First, the duty to summon is presented as the exception to the broad, general immunity for failing to furnish or provide medical care. Second, [Government Code] section 845.6 imposes the duty to summon on 'public employees' generally, not medical care providers in particular. Many such public employees are '[p]rison authorities [who] do not have the medical training to know whether a prisoner's medical condition has been properly diagnosed and treated.' [Citation.] The Legislature could not have contemplated imposing a duty to do more than to summon medical care as it imposed that duty on 'public employees,' such as prison authorities, generally." (Castaneda v. Dept. of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1071, fn. omitted.) Government Code section 845.6 does not authorize a cause of action for medical malpractice. (Castaneda, supra, at p. 1070.)
Plaintiff's first amended complaint does not allege facts showing that he had a serious and obvious medical condition requiring immediate care. He alleged only that he injured his knee while exercising, that it swelled, was painful, and made "popping sounds each time he moved a certain way." He did not allege that the injury was serious and thus required immediate access to over-the-counter pain medication. Nor did plaintiff allege that he communicated any such seriousness or urgency to any of the defendants. And even if plaintiff's injury had required immediate access to medication, "as a matter of statutory interpretation, that the act of a doctor or other such professional who, in the course of treatment of a prisoner, fails to prescribe and/or provide the correct medication is [not] the legal equivalent to a failure to summon medical care as set forth in section 845.6 of the Government Code." (Nelson v. State of California (1982) 139 Cal.App.3d 72, 80-81; see also Kinney v. Contra Costa County (1970) 8 Cal.App.3d 761, 770 [no liability for failure to provide medical care when a prisoner complained of a bad headache and requested medication].) Accordingly, plaintiff's cause of action under Government Code section 845.6 is insufficiently pled and the demurrer was properly sustained on this ground as well.
IV
Denial of Leave to Amend
When a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. It is the plaintiff's burden to demonstrate a reasonable possibility that the defects in the complaint can be cured by amendment. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 408.) Plaintiff has not done so. We therefore affirm the order sustaining the demurrer without leave to amend. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal in the interests of justice. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Robie, Acting P. J. Boulware Eurie, J.