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United States District Court

Eastern District of California 

Patrick Ronald Holley,

Plaintiff, No. Civ. S 04-1425 GEB PAN P

vs. Findings and Recommendations

California Department of 

Corrections, et al., 

Defendants.

-oOoPlaintiff is a state prisoner without counsel seeking

redress for alleged violation of his federal civil rights

pursuant to 42 U.S.C. § 1983.

In his July 20, 2004, complaint plaintiff alleges deliberate

indifference to his serious medical needs and retaliation for

exercise of rights protected by the First Amendment. The court

approved service of process on defendants Herrera, Providence,

O’Ran, Mirich, Jako, Veal, Allen and Grannis.

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January 14, 2005, these defendants moved to dismiss under

Fed. R. Civ. P. 12(b)(6) and on the ground plaintiff failed to

exhaust administrative remedies against any defendant except

Herrera. Plaintiff opposed January 25, 2005. Defendants replied

January 31, 2005. 

The court first will address whether plaintiff states a

claim under Fed. R. Civ. P. 12(b)(6). The court must accept

plaintiff’s allegations as true, read the complaint most

favorably to plaintiff, give plaintiff the benefit of every

reasonable inference that appears from the pleading and argument

of the case and dismiss the complaint only if it is clear that no

relief could be granted under any set of facts that could be

proved consistent with the allegations. Wheeldin v. Wheeler, 373

U.S. 647, 658 (1963); Retail Clerks International Association,

Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n.6

(1963); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The

court may consider documents attached to the complaint in

evaluating a motion to dismiss. Parks School of Business, Inc.

v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

Defendants correctly assert the pleading fails to state a

claim of deliberate indifference under the Eighth Amendment with

respect to the provision of medical care. “The unnecessary and

wanton infliction of pain upon incarcerated individuals under

color of law constitutes a violation of the Eighth Amendment . .

.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991). A

violation of the Eighth Amendment occurs when prison officials

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deliberately are indifferent to a prisoner’s medical needs. Id.

The threshold for a medical claim under the Eighth Amendment is

extremely high:

A prison official acts with “deliberate indifference .

. . only if [he] knows of and disregards an excessive

risk to inmate health and safety.” Gibson v. County of

Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002)

(citation and internal quotation marks omitted). Under

this standard, the prison official must not only “be

aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists,” but

that person “must also draw the inference.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994). “If a [prison

official] should have been aware of the risk, but was

not, then the [official] has not violated the Eighth

Amendment, no matter how severe the risk.” Gibson, 290

F.3d at 1188 (citation omitted) [footnote omitted]. 

This “subjective approach” focuses only “on what a

defendant’s mental attitude actually was.” Farmer, 511

U.S. at 839. “Mere negligence in diagnosing or

treating a medical condition, without more, does not

violate a prisoner’s Eighth Amendment rights. 

McGuckin, 974 F.2d at 1059 (alteration and citation

omitted).

Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004).

Delay in medical treatment can amount to deliberate

indifference if (1) the delay seriously affected the medical

condition for which plaintiff was seeking treatment, and (2)

defendants were aware the delay would cause serious harm. 

Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d

404, 408 (9th Cir. 1985). 

Here, assuming arguendo plaintiff has alleged a serious

medical need, he fails to state a claim because the complaint

states immediately after plaintiff left Herrera’s office, another

correctional officer escorted him to the medical clinic where he

received appropriate treatment. Any delay did not “seriously

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affect” plaintiff’s medical condition. Plaintiff’s Eighth

Amendment claim fails as a matter of law. 

Plaintiff’s allegations regarding verbal harassment also

fail to state a claim for relief. Oltarzewski v. Ruggiero, 830

F.2d 136, 139 (9th Cir. 1987). 

This brings us to plaintiff’s retaliation claims. “Within

the prison context, a viable claim of First Amendment retaliation

entails five basic elements: (1) An assertion that a state actor

took some adverse action against an inmate (2) because of (3)

that prisoner's protected conduct, and that such action (4)

chilled the inmate's exercise of his First Amendment rights, and

(5) the action did not reasonably advance a legitimate

correctional goal.” Rhodes v. Robinson, F.3d , 2005 WL

937814, *5 (9th Cir. 2005) (citations omitted). In assessing the

fourth requirement, the court at the pleading stage should ask

“‘whether an official’s acts would chill or silence a person of

ordinary firmness from future First Amendment activities.’” Id.

at *6, quoting Mendocino Environmental Center v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999). 

Here, plaintiff alleges he filed a previous civil rights

complaint and Herrera refused to obtain medical care on his

behalf, stating that if plaintiff fainted he would be disciplined

for “faking” and telling plaintiff “you damn litigators don’t

have nothing coming.” Complaint at 10:19-26. A person of

reasonable firmness would be chilled from future First Amendment

activities in the circumstances. Plaintiff states a claim

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Herrera retaliated against his exercise of First Amendment

rights. 

Plaintiff claims defendants Providence, O’Ran, Mirich, Jako,

Veal, Allen and Grannis ratified Herrera’s misconduct by the way

they handled plaintiff’s grievance. To state a claim against a

supervisor in his or her individual capacity plaintiff must

allege the supervisor set in motion a series of acts by others,

or knowingly refused to terminate a series of acts by others,

that the supervisor knew or reasonably should have known would

cause others to inflict constitutional injury. Larez v. City of

Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). A supervisory

official also may be liable in his individual capacity for his

own culpable action or inaction in training, supervising, or

controlling his subordinates, for his acquiescence in

constitutional deprivations or for conduct that reflects a

reckless or callous indifference to the rights of others. Larez,

946 F.2d at 646 (internal quotations omitted).

Plaintiff’s complaint alleges:

Lt. K. Providence intentionally looked over pertinent

documentation and evidence, to maliciously deny

plaintiff’s constitutional and statutory rights, and

recruited the powers of [A]ssociate Warden Sterling

O’Ran to tacitly authorize these acts, which show a

practice, policy and custom of corruption throughout

high-ranking officials of the CDC et. al.

Upon appeal to second level response, plaintiff had a

brief encounter with one Lt. Mirich. Plaintiff

informed this official of the blundered investigation

of Lt. K. Providence, and pointed out the violations

and demanded that this not be overlooked a second time,

and that the retaliation claims be addressed.

On second level response, Lt. Mirich recruited the

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corrupt officials within the CMF Medical Clinic. On

Feb. 17, 2004, Lt. Mirich states . . . that he

contacted registered nurse Jako . . . to locate any

entries in plaintiff’s medical file on Nov. 29, 2003,

to support his claims. . . Jako stated that there was

nothing in plaintiff[’s] file on Nov. 29, 2003, or

nothing near that date to support his claims. . . [A]s

his predecessor, Lt. K. Providence, Lt. P. Mirich

recruited the powers of Chief Deputy Warden Veal, to

intentionally deny plaintiff’s statutory and

constitutional rights.

So, plaintiff appealed to the director’s level of

review, and attached the medical records that CMF

officials intentionally co-conspired to conceal in

order to further the retaliation that officer Sgt.

Herrera started, for plaintiff’s action of filing a

civil claim on CMF high-ranking officials. 

The appeal examiner for director’s level of review, Ken

Allen, refused to look over plaintiff’s documents and

evidence, and showed the high-level of departmental

corruption that is prevalent through to the director’s

level, and systematically denied plaintiff’s grievance

without investigating the retaliation claims, or other

matters strongly supported throughout this appeal. . .

Then Ken Allen further enlisted the powers of chief of

inmate appeals, N. Grannis, to conceal the injustice

that is everyday practice for the California Department

of Corrections in violation of federal law. . . .

Complaint at 14-15.

In essence, plaintiff claims defendants who processed his

grievance intentionally and knowingly encouraged defendant Jako,

to hide records showing that, following plaintiff’s conversation

with Herrera, plaintiff obtained permission to visit the medical

clinic where he was examined and indeed proved ill. Plaintiff

further claims this occurred pursuant to a pattern and practice

wherein corrections officials cover up misdeeds of junior

officers by fabricating favorable administrative records. These

allegations state a claim for relief. 

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However, claims against supervisors and Jako under a theory

of ratification or conspiracy are not exhausted. Section

1997e(a) of Title 42 of the United States Code provides a

prisoner may bring no § 1983 action until he has exhausted such

administrative remedies as are available. The requirement is

mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). The

administrative remedy must be exhausted before suit is brought

and a prisoner is not entitled to a stay of judicial proceedings

in order to exhaust. McKinney v. Carey, 311 F.3d 1198 (9th Cir.

2002). A prisoner need not plead exhaustion. Wyatt v. Terhune,

315 F.3d 1108 (9th Cir. 2003). Ordinarily, defendants must raise

and prove absence of exhaustion as a defense raised by a motion

to dismiss. Id. “Courts considering ‘nonenumerated’ Rule 12(b)

motions on the issue of administrative exhaustion may not only

rely on matters outside the pleadings but also have broad

discretion to resolve any factual disputes.” Irvin v. Zamora,

161 F. Supp. 2d 1125, 1128 (S.D. Cal. 2001), citing Ritza v.

Internat’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365,

368 (9th Cir. 1988).

The California Department of Corrections’ administrative

grievance procedure is set forth in Title 15 of the California

Administrative Code at sections 3084.1, et seq. California

prisoners or parolees may appeal “any departmental decision,

action, condition, or policy which they can demonstrate as having

an adverse effect upon their welfare.” 15 CAC § 3084.1(a). The

regulatory system does not dictate the content of the grievance

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but it requires the use of specified forms. 15 CAC §§ 3084.2 and

3085 (designating use of CDC Form 602 Inmate/Parolee Appeal Form

for all grievances except those related to disabilities under the

Americans with Disabilities Act, which are filed on CDC Form

1824, Reasonable Modification or Accommodation Request). The

first level of formal appeal must be decided within 30 working

days by someone not involved in the dispute or grievance, who is

at least equal in rank to the highest ranking person that was

involved. 15 CAC § 3084.5(e). Ordinarily, a grievance must be

taken to a second- and third-level appeal before exhaustion is

complete. Id. 

Few courts have addressed the specificity required for

claims raised in the prison administrative grievance process to

satisfy section 1997e(a) exhaustion requirements. Irvin v.

Zamora, 161 F. Supp. 2d at 1129.

When the administrative rulebook is silent, a grievance

suffices if it alerts the prison to the nature of the

wrong for which redress is sought. As in a noticepleading system, the grievant need not lay out the

facts, articulate legal theories, or demand particular

relief. All the grievance need do is object

intelligibly to some asserted shortcoming.

Strong v. Davis, 297 F.3d 646, 650 (7th Cir. 2002); see also

Gomez v. Winslow, 177 S. Supp. 2d 977, 982 (N.D. Cal. 2001)

(purpose of exhaustion is to provide prison officials notice of

complaints so they can take proper action). In assessing

exhaustion, a court should consider whether a reasonable

investigation of the administrative claim would have uncovered

the allegations of the civil rights complaint. Gomez v. Winslow,

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177 F. Supp. 2d at 983; Irvin, 161 F. Supp. 2d at 1134-35; Sulton

v. Wright, 265 F. Supp. 2d 292, 298 (S.D. N.Y. 2003), abrogated

on other grounds as noted in Scott v. Gardner, 287 F. Supp. 2d

477 (S.D. N.Y. 2003); Torrence v. Pelkey, 164 F. Supp. 2d 264,

278-79 (D. Conn. 2001); see also Ngo v. Woodford, 403 F.3d 620,

630 (9th Cir. 2005) (PLRA exhaustion requirement resembles

administrative exhaustion). 

Here, defendants concede claims against Herrera were

exhausted by grievance CMF 03-2056. See Declaration of

Grannis in Support of Defendants’ Motion to Dismiss & Ex. A

thereto.

Plaintiff alleged in his third-level appeal “that all of the

officials involved in the investigation are corrupt and blatantly

lied.” Motion to Dismiss at 5. This sole allegation in

plaintiff’s third-level appeal of his grievance against Herrera

is not sufficient to place Grannis on notice plaintiff claimed

Providence, O’Ran, Mirich, Jako, Veal and Allen (and, by

implication, Grannis if the appeal were denied) acted under a

system-wide pattern and practice of encouraging misconduct by

junior officers by intentionally creating false grievance records

to protect such miscreants.

Of plaintiff’s retaliation claims, only that against Herrera

is exhausted. Herrera is not entitled to dismissal based on the

fact unexhausted claims were joined with exhausted claims. See

Wyatt, 315 F.3d at 1120 (“If the district court concludes that

the prisoner has not exhausted nonjudicial remedies, the proper

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remedy is dismissal of the claim without prejudice”) (emphasis

added). 

Accordingly, the court hereby orders that:

1. Defendants’ January 14, 2005, motion to dismiss be

granted in part.

2. All claims against defendant Herrera, except that of

retaliation against plaintiff for exercise of First Amendment

rights, be dismissed for failure to state a claim.

3. Claims against defendants Providence, O’Ran, Mirich,

Jako, Veal, Allen and Grannis be dismissed for failure to exhaust

administrative remedies. 

4. Defendant Herrera be required to answer the complaint

within 30 days of disposition of the motion to dismiss.

 Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: June 21, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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