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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BRADY ARMSTRONG,

Plaintiff, No. CIV S-04-2136 GEB PAN P

vs.

D. L. RUNNELS, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner without counsel seeking relief pursuant to 42 U.S.C.

§ 1983. D. L. Runnels, Gellette, Callison, Phinney, Chandler, Young and Gomez move to

dismiss upon the ground plaintiff failed to exhaust available administrative remedies before

bringing this action. Plaintiff opposes.

Plaintiff submitted his initial complaint on October 12, 2004. This action

proceeds on the June 14, 2005, amended complaint in which plaintiff claims: (1) on April 26,

2004, Gellette denied plaintiff medical treatment for stroke-like symptoms; (2) on April 27,

2004, defendant Callison confiscated plaintiff’s blood pressure and diabetes medications; (3) on

April 29, 2004, Rumble and Phinney refused to permit plaintiff to go to Banner Hospital for an

MRI; (4) on June 26, 2004, defendant Chandler retaliated against plaintiff for using the inmate

appeal system by giving plaintiff contaminated food and became violent when plaintiff requested

different food; (5) on October 13, 2004, defendant Young intentionally dumped plaintiff from his

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wheelchair; (6) on January 18, 2005, Turner spit on plaintiff; and (7) defendants Gomez and

Runnels knew these individuals were likely to harm plaintiff but failed to take reasonable

measures to prevent these acts.

LEGAL STANDARDS

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

administrative remedies as are available. 42 U.S.C. § 1997e(a). 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). An action is “brought” when a

prisoner submits a complaint to the court. Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006).

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 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. 

Presentation on the third formal level, the Director’s Level of Review, exhausts the remedy for

departmental purposes. 15 Cal. Admin. Code § 3084.1(a). A California prisoner who correctly

completes an appeal form provided by prison officials provides information adequate to exhaust

the administrative remedy. See Butler v. Adams, 397 F.3d 1181 (9th Cir. 2005) (error to dismiss

complaint for failure to identify defendants on form provided by the prison since the form did not

require such identification).

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An untimely appeal does not exhaust available administrative remedies. 

Woodford v. Ngo, 126 S.Ct. 2378 (2006). But when “an administrative procedure lacks

authority to provide any relief or to take any action whatsoever in response to a complaint,” the

remedy is exhausted. Booth, at 736. The procedure lacks such authority when a prisoner “has

either received all “available” remedies at an intermediate level of review or been reliably

informed by an administrator that no remedies are available. Brown v. Valoff, 422 F.3d 926,

935 (9th Cir. 2005). In determining whether either of these criteria has been met, the court

examines the appeals, the responses and the procedure itself in light of the purposes of the

exhaustion requirement. Brown, 422 F.3d at 936-37.

FACTS

Appeal Number 04-2263

On September 8, 2004, plaintiff filed an appeal alleging that on September 2,

2004, an officer “ran (plaintiff’s) wheelchair into a hole,” causing injury and that on September

8, a different officer “also ran this writer into a hole.” Plaintiff requested a back brace, an MRI,

off-site treatment and a wheelchair with a foot rest. Defendants’ Motion to Dismiss, Exhibit D. 

In response, physicians examined plaintiff, determined he did not need a back brace or

wheelchair but ordered an MRI, thereby partially granting the appeal. Defendants’ Motion to

Dismiss, Exhibit C. 

Plaintiff appealed to the second level of review. On October 19, 2004, the

reviewer found that a spinal MRI had been done and stated that treatment decisions would be

based on the radiology report, thereby partially granting the appeal. Defendants’ Motion to

Dismiss, Exhibit C.

Plaintiff appealed to the third level of review. On December 1, 2004, the reviewer

found plaintiff had been “treated in accordance with the professional judgments of the

physicians,” and denied the appeal. Defendants’ Motion to Dismiss, Exhibit C.

Appeal Number 04-2606

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On October 14, 2004, plaintiff filed a grievance asserting defendant Young

“dumped” plaintiff from his wheelchair and that plaintiff suffered injuries to his knees,

shoulders, neck, back and side and that he was not examined at the clinic. Plaintiff pursued the

appeal to the Director’s Level of Review and on January 12, 2005, relief was denied. Plaintiff’s

Opposition, Attachment D.

Appeal Number 04-1093

On April 29, 2004, plaintiff filed an appeal asserting that (1) on April 26, 2004, he

had suffered symptoms of a “stroke attack,” such that he could not use his left arm and suffered

severe pain for three days; (2) on April 27, 2004, defendant Callison confiscated all plaintiff’s

medications; and (3) on April 29, 2004, plaintiff was “denied CTC off-site medical care and

treatment(s).” Plaintiff’s Opposition, Attachment H. In the space provided for a request for

relief, plaintiff wrote, 

(1) off-site medical care and treatment(s) posthaste. (2) that

“HDSP” c/os staff, CTC-transportation escort’s, M.T.A.’s, “stop

demonstrating” and subjecting anti-black hatred, bias, prejudice

upon the Black-African Inmates, which is fostered and tolerated by

“HDSP”; and (3) that interview is required and requested, fact is

this inmate lives in fear and terror of having another attack.

On June 16, 2004, the first-level reviewer partially granted the appeal, finding that

on April 27, 2004, a medical technical assistant examined plaintiff and referred him to a

registered nurse, and that plaintiff would be seen on the “doctor’s line” the morning of April 28,

2004, that a physician in fact saw plaintiff April 28 and recommended all plaintiff’s medications

be “nurse administered,” and on May 28, 2004, a physician prescribed medications for cough,

heartburn and pain, and on June 16, 2004, a physician adjusted the dosage of plaintiff’s diabetes

medication. The reviewer also found plaintiff discussed his medical concerns with a physician

and that unspecified tests had been ordered. The reviewer granted the appeal insofar as plaintiff

complained of racial bias upon the ground plaintiff had “not given sufficient specific evidence to

show this type of behavior has occurred.” But plaintiff’s request for off-site treatment was

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denied because “it [was] felt that HDSP is able to care for your medical needs at this time.” The

reviewer informed plaintiff he could appeal the decision if he was not satisfied. 

On June 20, 2004, plaintiff appealed to the second level of review, asserting he

was receiving inadequate medical treatment and requested an MRI. On June 13, 2004, the

second-level reviewer partially granted the appeal, finding no error in the first-level

determination but denying plaintiff’s request for an MRI. The reviewer informed plaintiff he

could appeal if he was not satisfied.

On September 12, 2004, plaintiff appealed to the Director’s Level of Review,

asserting he could not appeal earlier because he had been “out to court,” and so was not at High

Desert State Prison. On November 28, 2004, the appeal was rejected as untimely.

Appeal Number 05-155

On January 18, 2005, plaintiff filed an appeal asserting defendant Turner spit on

plaintiff. Plaintiff pursued the appeal to the Director’s Level of Review where he was denied

relief on July 5, 2005. Plaintiff’s Opposition, Attachment F.

Unnumbered Appeal

On July 3, 2004, plaintiff drafted an appeal alleging that on June 26, 2004,

defendant Chandler engaged in “selective food issue” in retaliation for plaintiff’s using the

inmate appeals system. Plaintiff’s Opposition, Attachment L. 

ANALYSIS

Claims 1, 2, and 3.

Appeal number 04-1093 addressed these claims. Prison officials granted plaintiff

all the relief he sought except to be examined by physicians outside the prison and they advised

him he could appeal if he was dissatisfied. On the second level of review, plaintiff omitted his

request for off-site medical care and requested an MRI. Officials granted the appeal, denying

only his new request and informing plaintiff that he could appeal to the next level if dissatisfied.

While they could have authorized medical examination and treatment for plaintiff outside the

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prison and could have ordered an MRI, prison officials made a medical judgment it was

unnecessary. 

Plaintiff did not receive all “available” remedies at an intermediate level and no

administrator reliably informed him that no further remedy was available. Plaintiff did not

receive a ruling on the Director’s Level of Review until after this action was filed.

Plaintiff failed to exhaust available administrative remedies with respect to these

claims and the court will recommend they be dismissed without prejudice. 

Claim 4

Plaintiff made his claim that Chandler gave him contaminated food on the

unnumbered appeal form but there is no evidence he submitted it to prison officials for review.

This court finds plaintiff failed to exhaust available administrative remedies with

respect to this claim. Accordingly, this claim should be dismissed without prejudice. 

Claim 5

In appeal number 04-2606, plaintiff alleged defendant Young intentionally

dumped plaintiff from a wheelchair on October 13, 2004. Review on the Director’s Level was

not complete until January 12, 2005, three months after plaintiff brought this action. 

Plaintiff failed to exhaust available administrative remedies with respect to this

claim, and this claim should be dismissed without prejudice.

Claim 6

In appeal number 05-155, plaintiff alleged that defendant Turner spit on him. 

Review on the Director’s Level was not complete until July 5, 2005, nearly nine months after he

brought this action.

Plaintiff failed to exhaust available administrative remedies before bringing this

claim, and this claim should be dismissed without prejudice.

/////

/////

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Claim 7

Plaintiff claims defendants Gomez, an appeals coordinator, and Runnels, the

warden, knew the other defendants were likely to harm him but failed to take any action. 

Defendants Gomez and Runnels would have learned of any danger to plaintiff through the

appeals process. Plaintiff failed to exhaust available administrative remedies with respect to his

claims against the other defendants and adduces no evidence he filed an appeal against

defendants Gomez or Runnels.

Accordingly, IT IS HEREBY RECOMMENDED that defendants’ January 19,

2006, and May 1, 2006, motions to dismiss be granted and that this action be dismissed without

prejudice with respect to defendants D. L. Runnels, Gellette, Callison, Phinney, Chandler, Young

and Gomez.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Written

objections may be filed within 14 days after being served with these findings and

recommendations. The document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” Failure to file objections within the specified time may waive

the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: August 21, 2006.

\004

\arms2136.57

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