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United States District Court

Eastern District of California

Keith M. Cassells,

Plaintiff, No. Civ. S 04-1798 FCD PAN P

vs. Findings and Recommendations

D. Mehta, et al.,

Defendants.

-oOoPlaintiff is a prisoner, without counsel, seeking redress

for violation of his civil rights and claims: (1) defendant Dr.

Mehta misdiagnosed plaintiff’s March 2002 complaint of numbness

and tingling in his leg and foot; (2) defendants Mehta, Donahue

and Bick delayed seven months before sending plaintiff for a

follow-up visit after surgery to correct herniated discs in his

neck; (3) in December 2003, defendants Dr. Mehta and Dr. Bick

failed to provide plaintiff with an eggcrate mattress to ease

discomfort in plaintiff’s arms, hands and neck; (4) Dr. Mehta was 

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deliberately indifferent to plaintiff’s neck injury by

substantially delaying “revision surgery” on plaintiff’s neck.

Defendants move to dismiss upon the ground plaintiff failed to

exhaust the available administrative remedies. 

On a motion to dismiss for failure to exhaust available

administrative remedies, the court may look beyond the pleadings

and decide disputed facts. Wyatt v. Terhune, 315 F.3d 1108 (9th

Cir. 2002). 42 U.S.C. § 1997e(a) provides that 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). Where a

litigant requests leave to proceed in forma pauperis, suit

commences when the request is granted. See 28 U.S.C. 

§ 1915(a)(1) (court may “authorize commencement” of suit without

prepayment of filing fee for person demonstrating inability to

pay). 

California prisoners may appeal “any departmental decision,

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

an adverse effect upon their welfare.” 15 Cal. Admin. Code 

§ 3084.1(a). The regulations require the use of specific forms

but contain no guidelines for grievance content. 15 Cal. Admin.

Code §§ 3084.2, 3085 (designating use of CDC Form 602

Inmate/Parolee Appeal Form for all grievances except those

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related to disabilities under the Americans with Disabilities

Act, which are filed on CDC Form 1824, Reasonable Modification or

Accommodation Request). Prisoners ordinarily must present their

allegations on one informal and three formal three formal levels

of review. 15 Cal. Admin. Code § 3084.5. While presentation on

the third level, the Director’s Level of Review, exhausts the

remedy for departmental purposes, 15 Cal. Admin. Code §

3084.1(a), when prisoners cannot present their allegations on any

subsequent level, they have exhausted available remedies for

purposes of 42 U.S.C. § 1997e(a). Ngo v. Woodford, 403 F.3d 620

(9th Cir. 2005). Defendant has the burden of identifying the

remedies that remain available. Ibid. 

March 22, 2004, plaintiff submitted a grievance alleging:

I was diagnosed with the herniated L5/S1 disc on Dec.

Of 2002, and have been awaiting surgery since June of

2003 to relief the pain and some of the neuropathy. I

was evaluated by Dr. Remington, Doctor’s Hospital in

Modesto as the surgeon, Dr. Capazoli, as the

neurologist here at California Medical Facility. 

Revision surgery on neck fusion that had not fused was

also pending the conclusion of surgery on L5/S1. Due

to staff negligence, I’ve been waiting over 9 1⁄2 months

for them to follow-up on Dr. Remington’s orders, and

for surgeries to be performed, causing further damage,

pain and decay. 

Plaintiff requested all recommended surgeries be performed and he

sought damages.

April 9, 2004, R. L. Andreasen partially granted the appeal. 

April 21, 2004, plaintiff appealed, alleging:

Time and again, I’ve had to track down medical staff

and request that a follow-up be done on my medicalcervical and spinal situation. Looking through my

medical records (2002-2004), doctors’ notes and orders,

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deliberate indifference to my serious medical needs is

noted and it is demonstrated that medical deprivation

was/is objectively serious and prison medical staff

subjectively know about this deprivation and refused to

remedy it by waiting for over two (2) years to get a

second opinion on the cervical fusion done in January

of 2002 by Dr. Remington in Modesto and after further

discussion with Dr. Remington about a need for lower

back (L5/S-1) surgery in Sept. Of 2003 * Note MIR of

12-02 . . . And 9 or 10-03 . . . It was 90 days after

the later MRI that a second opinion was suggested. It

has been obvious I’ve had no cervical fusion for over

two years and in great pain. This delay in treatment

has exacerbated my condition, inclusive of physical

damage, mobility impairment and neuropathy, along with

pain and suffering. Physicians are aware of the risk

that exist in my lack of treatment in a timely manner

and the damages and impairment done by delay. 

Deprivation of medical attention leads to serious

medical complications and irreversible damages, putting

my physical being, safety at risk due to this

inadequate medical attention to my spine. I cite for

medical indifference and negligence and request

monetary compensation for damages done, pain and

suffering.

April 26, 2004, defendant Khoury partially granted the

appeal.

May 19, 2004, plaintiff appealed to the Director’s Level of

Review alleging the second-level reviewer overlooked plaintiff’s

central complaint:

That is not the issue! The issue was and is the

fact that : A.) I have already had one (1) discectomy

(removal of 3 disks [sic] from my neck at C-5, 6, & 7

with alloy graft) surgery which hasn’t fused in 2 years

& 4 months; B.) With a contingency plan as of May 2003

to have first my lower back (L5-S-1) herniated disk

[sic] repaired, then go back into my neck for revision

surgery. The hope was my neck may still fuse on its

own and it has not and I’m basically walking around in

prison with a broken neck in regression with a

potential for further damage and possible paralyzation

- all because now in the case of my lower back you

defer to 2nd opinion - in clear violation of DDR3350(A)(B)(1,4,5,) delaying off-site health care as in

3350.2 (A&B). Further, this facility violates

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3352&3352.1 of DDR, in that they have had over a year

to meet, approve, disapprove or decide on a need for a

second opinion. My original surgery was done 01-10-02! 

Incomplete to date.

Please note, in area of 2nd level response: First

sentence under “Findings.” I have no cervical disk

[sic] in area being discussed in this appeal. They

were removed. There is no fusion. That is part of the

issue on appeal. This situation needs to be addressed,

dealt with. This further proves my claim of medical

negligence and deliberate indifference. The 2nd level

appeal response doesn’t even address the issues brought

up by this appeal and the findings are based on faulty

information, or misunderstanding thereof. And I’m

still seeking monetary compensation for damages done by

negligence, deliberate indifference.

June 21, 2004, the appeal was denied.

Defendants assert some claims are unexhausted because

plaintiff failed to include in his appeals all allegations made

in his civil rights complaint, including the names of all

defendants. The Ninth Circuit has explained that a California

prisoner who correctly completes an appeal form provided by

prison officials provides information adequate to exhaust the

administrative remedy for claims arising under the Americans with

Disabilities Act. See Butler v. Adams, 397 F.3d 1181 (9th Cir.

2005). Plaintiff described the problems arising from delay in

obtaining treatment for his neck and back and he requested

specific remedies. This was sufficient to exhaust these claims. 

It was not sufficient to exhaust his claim that in 2002 defendant

Mehta misdiagnosed him. 

For these reasons, I recommend the following:

1. Defendants’ December 3, 2004, motion be granted in part;

2. Plaintiff’s claim that in 2002 defendant Mehta was

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deliberately indifferent to his serious medical needs by

misdiagnosing plaintiff’s symptoms be dismissed without

prejudice;

3. That defendants’ December 3, 2004, motion to dismiss be

denied in all other respects and that defendants be directed to

file and serve an answer to the complaint within 30 days.

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. Within 20 days after being

served with these findings and recommendations, plaintiff may

file written objections. 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: July 12, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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