NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCOTT PEASLEY, 

Plaintiff-Appellant, 

 v. 

M. ELIOT SPEARMAN, Warden; et al., 

Defendants-Appellees, 

and 

P. MULLEN, Appeal Coordinator, 

Defendant.

No. 18-56648 

D.C. No. 5:15-cv-01769-LHK 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted January 13, 2022

Pasadena, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District 

Judge. Partial Dissent by Judge FRIEDLAND.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.

FILED

JUN 27 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Plaintiff-Appellant David Peasley, a California prisoner, brought an action 

against several prison officials under 42 U.S.C. § 1983, alleging that the officials 

were deliberately indifferent to his medical needs in violation of the Eighth 

Amendment. Peasley suffers from Type 1 diabetes and he alleges that various 

actions by the officials improperly denied him treatment for his medical needs. The 

district court granted the officials’ motion for summary judgment and dismissed all 

counts except for two counts (Counts 4 and 8), which subsequently proceeded to 

trial. 

Peasley appeals from the district court’s summary judgment dismissing 

Counts 6 and 9 of his amended complaint. We have jurisdiction under 28 U.S.C. § 

1291. We review a district court’s summary judgment de novo. See Mull for Mull 

v. Mot. Picture Indus. Health Plan, 865 F.3d 1207, 1209 (9th Cir. 2017) (citation 

omitted). We reverse and remand the district court’s dismissal of Count 6, and we 

affirm the district court’s dismissal of Count 9. 

A.

In Count 6, Peasley alleges that Defendants Officers Lopez, Gibson, and 

Orozco violated the Eighth Amendment by denying him access to medical care. The 

district court dismissed Count 6 on non-exhaustion grounds, holding that Peasley 

failed to file properly an appeal with the Inmate Appeals Office and failed to show 

that administrative remedies were unavailable. For the following reasons, we hold 
3 

that Peasley’s failure to exhaust administrative remedies does not bar his claim 

because the administrative scheme is so opaque that it is effectively unavailable. 

Accordingly, we reverse and remand. 

Under the Prisoner Litigation Reform Act (PLRA), “[n]o action shall be 

brought with respect to prison conditions under section 1983 of this title, or any other 

Federal law, by a prisoner confined in any jail, prison, or other correctional facility 

until such administrative remedies as are available are exhausted.” 42 U.S.C. 

§ 1997e(a). “Exhaustion requires complying with an agency’s ‘critical procedural 

rules,’” and the “level of detail necessary in a grievance to comply with the grievance 

procedures will vary from system to system and claim to claim,” as it is “the prison’s 

requirements, and not the PLRA, that define the boundaries of proper exhaustion.” 

Fuqua v. Ryan, 890 F.3d 838, 844–45 (9th Cir. 2018) (citations omitted). A failure 

to exhaust, however, does not bar a prisoner’s claim if “there is something in his 

particular case that made the existing and generally available administrative 

remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th 

Cir. 2014). For instance, an administrative procedure is effectively unavailable 

when “an administrative scheme might be so opaque that it becomes, practically 

speaking, incapable of use.” Ross v. Blake, 578 U.S. 632, 643 (2016). “In this 

situation, some mechanism exists to provide relief, but no ordinary prisoner can 

discern or navigate it.” Id. at 643–44. 
4 

In this case, it is undisputed that Peasley did not exhaust administrative 

remedies, but Count 6 should not have been dismissed for failure to exhaust because 

the process was so opaque as to be unavailable. See id. At the outset, it appears that 

Peasley received conflicting instructions from different appeals administrators that 

foreclosed any possible remedy. Peasley’s initial complaint, a CDCR Form 602 

complaint filed on September 30, 2013, alleges that he was denied access to 

medication by “security officers” Lopez, Orozco, Balli, and Gibson. Specifically, 

he alleges that officers were “very rude” about his “medical need” and “denied 

medical itself.” The complaint was only against security officers and did not raise 

any allegations against nurses or any healthcare staff. The complaint was initially 

filed with the inmate appeals office but was subsequently forwarded and refiled with 

the health care appeals office. Each appeals office rejected his complaint and 

referred him to the other office, appearing to foreclose any remedy. 

Moreover, it is unclear whether an appeals office’s jurisdiction turns on the 

issue involved or on the staff involved. The initial rejection letter from the inmate 

appeals office suggests that jurisdiction turns on the issue involved, as it advised 

Peasley that his “appeal issue should be submitted to the appropriate CDCR unit for 

review” and that his “appeal has been forwarded to health care staff for review and 

processing.” Appellant’s Excerpts of Record Vol. 3 at 32, Peasley v. Spearman, No.

18-56648 (9th Cir. Feb. 19, 2021), ECF No. 33-3. The subsequent rejection letter 
5 

by the health care appeals coordinator then indicated to Peasley that he cannot submit 

an appeal to the health care appeals office that contains both “custody and medical 

issues which cannot be addressed together,” and must “[s]eparate [his] issues and 

resubmit health care issues.” Id. at 34. However, after Peasley resubmitted the same 

complaint to the health care appeals office and specifically referred to his “medical”

need, the health care appeals office then proceeded to reject the appeal because his 

“appeal issue is not a health care services issue over which [it] has jurisdiction,” and 

instructed Peasley to “submit a green inmate/parolee appeal CDCR 602 form to the 

Inmate Appeals Office” if he “would like to proceed with a staff complaint against 

custody.” Id. at 29. This suggests that the health care appeals office does not handle 

complaints against custodial staff, even if about a medical issue. If the appeals 

offices themselves cannot agree on whether jurisdiction turns on the subject of the 

complaint or the personnel involved, we cannot expect an ordinary prisoner to 

discern the answer and navigate the process. See Ross, 578 U.S. at 643–44. 

The rejection letters could be read to suggest that generally medical issues 

should be referred to the health care appeals office while custody issues should be 

referred to the inmate appeals office. But the letters only focused on a requirement

that “multiple issues” be separated into separate appeals and did not provide any 

guidance on what is required in a situation like Peasley’s. For instance, it is unclear 

if a complaint like Peasley’s that alleges medical issues against custodial staff should 
6 

be filed with the health care office or the inmate office. Similarly, there is no 

guidance on where a complaint that alleges custodial issues against medical staff 

should be filed. Indeed, a detailed review of the record and briefs leaves us unable 

to determine where and how Peasley should have filed his complaint, or if such a

complaint is even possible. Thus, the administrative procedure here is “so confusing 

that . . . no reasonable prisoner can use them,” making it essentially “no longer 

available.” Ross, 578 U.S. at 644 (citation omitted). We reverse the district court’s 

dismissal of Count 6 on non-exhaustion grounds and remand for further proceedings. 

B.

In Count 9, Peasley alleges that Defendant Officer Lopez violated the Eighth 

Amendment by denying him, a “diabetic who uses insulin and has food 

requirements,” entry to his building at lunchtime. The district court granted 

summary judgment and dismissed Count 9, holding that Peasley failed to raise a 

genuine dispute of material fact as to whether Officer Lopez was aware of Peasley’s

serious medical need. We agree with the district court and affirm.1 

A prison official’s “deliberate indifference to serious medical needs of 

prisoners” violates the Eighth Amendment because it constitutes “unnecessary and 

1 Because we conclude that the district court is correct in holding that there 

is no genuine dispute of material fact as to whether Defendant Officer Lopez was 

aware of a serious medical need by Peasley, we need not address Officer Lopez’s 

qualified immunity arguments. 
7 

wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation 

omitted). “This is true whether the indifference is manifested by prison doctors in 

their response to the prisoner’s needs or by prison guards in intentionally denying or 

delaying access to medical care or intentionally interfering with the treatment once 

prescribed.” Id. at 104–05 (footnotes omitted). But not “every claim by a prisoner 

that he has not received adequate medical treatment states a violation of the Eighth 

Amendment.” Id. at 105. Rather, “a prisoner must allege acts or omissions 

sufficiently harmful to evidence deliberate indifference to serious medical needs. It 

is only such indifference that can offend ‘evolving standards of decency’ in violation 

of the Eighth Amendment.” Id. at 106. Thus, the standard sets a high bar. Indeed, 

a prison official cannot be found liable under the Eighth 

Amendment for denying an inmate humane conditions of 

confinement unless the official knows of and disregards an 

excessive risk to inmate health or safety; the official must 

both be aware of facts from which the inference could be 

drawn that a substantial risk of serious harm exists, and he

must also draw the inference. 

Farmer v. Brennan, 511 U.S. 825, 837 (1994). In essence, “deliberate indifference” 

requires “a showing that the official was subjectively aware of the risk.” Id. at 829.

Here, Peasley alleges that Officer Lopez purposefully denied him access to 

medical care when she denied him access to his building during lunch time. But 

Peasley failed to provide any direct evidence to show that Officer Lopez knew that 

he had a significant medical need. On September 16, 2013, after Peasley received 
8 

his insulin during an appointment, he arrived late to his building at lunchtime and 

Officer Lopez denied him entry until the next release time. Peasley informed Officer 

Lopez that he needed lunch, and Officer Lopez responded “that’s good enough” 

when she found crackers in Peasley’s pocket. Peasley’s mere assertion that he 

needed lunch on September 16, 2013, is insufficient to show that Officer Lopez knew 

he had a serious medical issue. By his own admission, Peasley never told Officer

Lopez that he had just received insulin and needed lunch for medical purposes. He 

also did not explain to Officer Lopez why he needed to be let into his building for 

lunch and why the small snack in his pocket was not enough. There is also no 

evidence in the record that shows Officer Lopez knew Peasley had received an 

insulin shot right before his request for lunch on that date. In short, Peasley did not 

mention his diabetes or his need for lunch due to a serious medical issue to Officer 

Lopez when he was denied entry to his building. 

Instead, Peasley relies only on various circumstantial evidence to show that 

Officer Lopez knew of his serious medical issue. To be sure, there is evidence that

Officer Lopez knew that Peasley had diabetes. For instance, Peasley alleges that on 

September 9, 2013, he informed Officer Lopez that he had an urgent need for 

medical attention because his morning and noon blood tests indicated high blood 

sugar levels. In addition, Officer Lopez’s deposition testimony suggests that she 

knew crackers are “something special to diabetics” and that diabetics “keep crackers 
9 

in their cell” so they “can eat if they need to.” Ultimately, however, none of the 

circumstantial evidence shows that Officer Lopez subjectively knew Peasley had a 

serious medical issue on September 16, 2013, when he asked to be let into his

building for lunch. Cf. Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) 

(holding that officers knew of plaintiff’s diabetic condition because he told the 

officers of his deteriorating condition and pleaded that he is “a diabetic, and all [he] 

needed was food”). Moreover, there is no evidence that Peasley was otherwise 

visibly ill or clearly experiencing health issues. Cf. id. (holding that a jury could 

infer that the officers knew of the plaintiff’s diabetic condition because they could 

infer from his testimony that he “exhibited noticeable shaking, disorientation, 

sweating and pallor”). Nor was there a pattern of Peasley requesting entry for lunch 

due to his medical condition. Cf. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 

2002) (concluding that custody officers were subjectively aware of plaintiffs’ serious 

medical needs in part due to plaintiffs’ “repeated requests for attention, complaining 

of breathing problems, pain, and asthma attacks”). Had Peasley told Officer Lopez 

he was diabetic and needed food for medical purposes or that he just received an 

insulin shot on September 16, 2013, it would have clearly created a genuine dispute 

of material fact as to whether Officer Lopez knew of his serious medical need and 

purposefully denied the necessary medical care. 
10 

Therefore, we agree with the district court that Peasley failed to show a 

genuine dispute of material fact as to whether Officer Lopez knew of his serious 

medical need at the time of the incident. Accordingly, we affirm the district court’s 

dismissal on Count 9. 

AFFIRMED in part, REVERSED in part, and REMANDED. 
1

Peasley v. Spearman, No. 18-56648

FRIEDLAND, Circuit Judge, dissenting in part:

I agree with the majority’s analysis of Count 6, but I would reverse the grant 

of summary judgment to Officer Lopez on Count 9. I believe there was a genuine 

dispute whether Officer Lopez knew of Peasley’s serious medical need when she 

denied Peasley access to his building at lunchtime on September 16, 2013. And 

because it was clearly established that “a constitutional violation may take place 

when the government does not respond to the legitimate medical needs of a 

detainee whom it has reason to believe is diabetic,” Lolli v. County of Orange, 351 

F.3d 410, 420 (9th Cir. 2003), I would hold that Officer Lopez is not entitled to 

qualified immunity. 

The majority concludes that because Peasley did not tell Officer Lopez in 

the moment that Peasley was diabetic, that he had just taken insulin, and that he 

needed lunch due to his medical condition, he failed to create a genuine issue of 

material fact regarding Lopez’s subjective knowledge of his diabetic condition and 

medical need. But there is evidence in the record that Lopez already knew Peasley 

was diabetic and could have inferred that his urgent request for lunch was related 

to a serious medical need. 

Peasley stated in a sworn declaration that on September 9, 2013—one week 

before Lopez denied him access to lunch—he awoke feeling sick, nauseous, 

FILED

JUN 27 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

sluggish, and drained. After his condition did not improve during the day, he 

requested an urgent medical pass from Lopez, who refused and instead locked him 

in a cell. Peasley declared that on that day, “Defendant Lopez was well aware of 

the diabetes. She was told of [the] illness and was asked for urgent medical care.” 

He also stated, more generally, that “each officer is aware of who the few are 

(diabetics).” 

Officer Lopez’s deposition testimony also supports the inference that she 

knew of Peasley’s diabetes and his medical need for food. When Lopez told 

Peasley that he did not need a meal because he had crackers in his pocket, she 

knew that such crackers were “something special to diabetics.” But Peasley 

arrived at the building shortly after noon, and Lopez told him that he could not go

back in until 2:30 p.m. Viewing these facts in the light most favorable to Peasley, 

a reasonable jury could conclude that Lopez knew of and consciously disregarded

the substantial risk of serious harm Peasley faced if deprived of a meal for over 

two hours. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). 

Because I believe there was a genuine issue of material fact that precluded 

summary judgment, I respectfully dissent.