Dickersonv.Clark

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTAug 29, 2011
F061048 (Cal. Ct. App. Aug. 29, 2011)

F061048

08-29-2011

GREGORY S. DICKERSON, Plaintiff and Appellant, v. KEN CLARK et al., Defendants and Respondents.

Gregory S. Dickerson, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Rochelle C. East, Assistant Attorney General, Thomas S. Patterson and Jay M. Goldman, Deputy Attorneys General for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 08C0381)

OPINION


THE COURT

Before Dawson, Acting P.J., Kane, J. and Poochigian, J.

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.

Gregory S. Dickerson, in pro. per., for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Rochelle C. East, Assistant Attorney General, Thomas S. Patterson and Jay M. Goldman, Deputy Attorneys General for Defendants and Respondents.

INTRODUCTION

Appellant/plaintiff Gregory Dickerson is an inmate incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran (CSATF/SP). He filed the instant civil complaint for damages in the Superior Court of Kings County against respondents/defendants Ken Clark, the Warden of CSATF/SP, and Dr. N. Bhatt, a physician employed by the California Department of Corrections and Rehabilitation (CDCR) who was assigned to CSATF/SP. Dickerson alleged Dr. Bhatt committed malpractice by prescribing an ointment for a skin rash. The ointment purportedly caused Dickerson to suffer from glaucoma, and Clark failed to adequately supervise and discipline Dr. Bhatt and other medical personnel for their malpractice. The superior court granted defendants' motion for judgment on the pleadings with prejudice, dismissed the action, and found Dickerson failed to exhaust his administrative remedies.

On appeal, Dickerson contends the court improperly granted defendants' motion for judgment on the pleadings. Dickerson argues he exhausted his administrative remedies because he received relief in the first formal level of review and further administrative appeals were unnecessary. Dickerson further argues exhaustion would be futile since his civil complaint sought monetary damages against defendants, whereas monetary damages are not available in administrative appeals. We will affirm.

FACTUAL AND PROCEDURAL HISTORY

We begin with a brief overview of the prison grievance system. "California has a grievance system for prisoners who seek to challenge their conditions of confinement. To initiate the process, an inmate must fill out a simple form, Dept. of Corrections, Inmate/Parolee Appeal Form, [CDCR] 602 ... (hereinafter Form 602), that is made 'readily available to all inmates.' [Citation.]" (Woodford v. Ngo (2006) 548 U.S. 81, 85 (Woodford); see Cal. Code Regs., tit. 15, § 3084.1, subds. (a) and (b).)

The administrative appeal process consists of four levels of appeal: the informal level, which the inmate initiates by filling out CDCR Form 602 (Form 602); the first formal level; the second formal level; and the third formal level, also known as the "Director's Level." (Cal. Code Regs., tit. 15, § 3084.5; Woodford, supra, 548 U.S. at pp. 85-86; Wright v. State of California (2004) 122 Cal.App.4th 659, 665-667 (Wright).) With this framework in mind, we turn to the factual and procedural history of this case. Dickerson's informal Form 602

On December 25, 2007, Dickerson filed a Form 602 and described the following problem.

"It has recently come to my attention that the medication that I have been taking for quite some time now is detrimental to my eyesight. I have some questions, like did the doctors know this when it was prescribed to me. And if so, why wasn't I notified? The cream I was taking is Betamethasone Valerate Ointment. Thus far, I've been using this medication for over 7 years now. I recently had eye surgery to [relieve] pressure in my eye socket. And now I have to wear glasses. Please explain the sudden situation that I'm undergoing. For the past 2 weeks I have not been allowed to take the cream like I used to, now it's causing me undue discomfort. Is this a side effect that no one informed me about?"


In the section entitled, "Action Requested," Dickerson requested "the medical department send me the insert that explains the proper usage of the aforementioned cream."

An identifying log number was not assigned to this informal Form 602. Informal response to Dickerson's Form 602

On or about January 15, 2008, Dickerson received a response to his Form 602 at the "informal level," which said that it was "granted" by providing him with certain attachments.

The attachments consisted of a clinical pharmacology report about Betamethasone Dipropionate topical cream. The pharmacology report stated the cream was a corticosteroid used on the skin to treat swelling, redness, itching, and allergic reactions.

The pharmacology report stated that a patient should tell his or her health care provider, before taking the medication, if the patient had acne or rosacea, any type of active infection, diabetes, glaucoma or cataracts, large areas of burned or damaged skin, skin wasting or thinning, and/or an unusual or allergic reaction to corticosteroids.

The pharmacology report further stated that a thin film of medication should be applied to the affected skin. "It is important not to use more medicine than prescribed. Do not use your medicine more often than directed. Do not use for more than 14 days." The pharmacology report stated the possible side effects from using the medication included allergic reactions, skin rashes, burning or itching of the skin, dark red spots on the skin, infection, lack of healing, blisters in hair follicles, thinning of the skin, dry skin, and/or mild burning of the skin. Dickerson's second Form 602

On January 24, 2008, Dickerson submitted another Form 602, which was assigned Log No. SATF-M-08-01099. In this form, Dickerson stated:

"I have just received documentation that the cream that I've been taking for quite some time is harmful to my eyes. The medication is called Bethamethasone Valerate Ointment. I was diagnosed with glaucoma on November 17, 2006. The warnings that come with this particular medication states that if I were to have this particular condition I must discontinue use. Yet I was still prescribed this medication. Furthermore, my right eye has severe damage to it. How could this type of negligence happen? I had no idea that the ointment that I've been taking all these years was harmful to my eyes. This type of negligence should not have been tolerated."


Dickerson requested to "receive answers as to why I was diagnosed with glaucoma and still being prescribed the aforementioned ointment. I also would like to know why I was prescribed that ointment for so long, when clearly long term usage is perilous to my eyes." First formal level of review

On March 3, 2008, Dickerson's second Form 602 was assigned to a reviewer.

On March 4 and 24, and April 10, 2008, Dickerson was interviewed and evaluated regarding his health care complaints at the first formal level of review by Dr. S. Leon, who also reviewed the Unit Health Records (UHR).

On April 30, 2008, Dickerson's appeal in log No. SATF-M-08-01099, was heard at the first formal level of and the following findings were made.

"The UHR was carefully reviewed and the physician provided [Dickerson] with education relative to the health care complaint described in this appeal. [Dickerson] was told the medication . . . was prescribed to treat chronic facial rash. This medication should be used only when the rash is present. Other indications read: 'When you use Diprolene, you inevitably absorb some of the medication through the skin and into the bloodstream. Too much absorption can lead to unwanted side effects elsewhere in the body. To keep the problem to a minimum, avoid using large amounts of Diprolene over large areas, and do not cover it with airtight dressings such as plastic wrap or adhesive bandages', (source: The PDR Pocket Guide to Prescription Drugs, copyright 2005). Betamethasone dipropionate is not contraindicated for patients suffering glaucoma. In fact, the use of this ointment has no relation to [Dickerson's] glaucoma condition...." (Italics in original.)


The hearing officer found that the ointment was not related to Dickerson's glaucoma and was not contraindicated for glaucoma patients in general.

The hearing officer further stated that "[Dickerson's] issues concerning access to care, medications and disagreement with treatment are granted at the First Level of Review . . . . "

On May 5, 2008, the response at the first formal level of review was returned to Dickerson.

In 2008, Dickerson did not file a second and/or third formal level of review in log No. SATF-M-08-01099. Dickerson's letter to the warden

On or about May 31, 2008, Dickerson sent a letter to Warden Clark which stated that Drs. Bhatt, Salmi, Kahng, Benyamin, Lane, and Zong, all of whom were employed by CDCR and assigned to CSATF/SP, had been negligent toward him in their duties as physicians at the prison. Dickerson stated the physicians repeatedly prescribed Betamethasone Valerate ointment to him from December 2002, when he arrived at the prison, until February 2008, even though the ointment was only supposed to be used for 14 days. Dickerson further stated he had been diagnosed with glaucoma "[d]ue to constant use" of the medication.

Dickerson stated he did not know "what the protocol is for making a formal complaint with your office about medical staff," and that he had informed the state medical board of "their negligence." Dickerson asked the warden to "look into this matter" and determine the doctors "should not be allowed" to practice medicine in the state. Dickerson's civil complaint

On September 30, 2008, Dickerson filed an unverified civil complaint for personal injury in superior court against the following defendants: Warden Clark; Drs. Bhatt, Zong, Lane, Benymin, Kahng, and Salmi; and Does 1 through 50.

The complaint alleged that Dickerson complied with the Tort Claims Act and gave the requisite notice to the defendant physicians.

The complaint further alleged Dickerson complied with the Prison Litigation Reform Act of 1992 (PLRA) and had exhausted his inmate grievances. The complaint alleged he filed a CDCR Form 602 on December 25, 2007, inquiring about the medication, and the Form 602 was granted because he was given a pharmaceutical report about the medication.

The first cause of action was against defendant Clark for failing to train and supervise employees and medical personnel and alleged that Dickerson had advised Clark that defendant physicians improperly prescribed the medication to him. Appellant further alleged that Clark failed to take disciplinary action against the defendant physicians, and he allowed the defendant physicians to continue to engage in their wrongful behavior against Dickerson. The complaint alleged Clark was guilty of malice and oppression because he was advised of the damages suffered by Dickerson as a result of the conduct of the defendant physicians.

The second, third, and fourth causes of action were against the defendant physicians for medical malpractice, negligence, and corporal punishment, and alleged that the physicians improperly prescribed the medication for seven years, Dickerson suffered glaucoma as a result, and he suffered severe pain in his eyes.

Dickerson sought general and special damages, future medical expenses, and punitive damages of over $2,000,000. Defendants' answer to the complaint

On January 12, 2009, defendants Clark and Bhatt filed an answer to Dickerson's complaint and denied the allegations. Defendants raised several affirmative defenses, including that Dickerson had failed to exhaust all of his administrative remedies prior to filing the complaint. Defendants' first motion for judgment on the pleadings

On February 25, 2009, defendants Clark and Bhatt filed a motion for judgment on the pleadings. The two defendants stated they had filed the motion only on behalf of themselves, because they were not sure whether the other named defendants had been properly served with the complaint. Defendants requested the court to take judicial notice of Dickerson's administrative records, attached as exhibits to the motion.

Defendants argued Dickerson failed to exhaust his administrative remedies. Defendants acknowledged that on April 30, 2008, the first formal level of review granted Dickerson's complaints as to access to care issues, but the hearing officer specifically rejected Dickerson's claims about the prescribed medication, and found it was not related to Dickerson's glaucoma and it was not contraindicated for glaucoma patients in general. Defendants argued the allegations in Dickerson's civil complaint demonstrated he was clearly dissatisfied with the results of the April 30, 2008, first formal level of review, but he had improperly bypassed the required second and third formal levels of review prior to filing the lawsuit.

Defendants argued Dickerson was required to resolve his grievances against the named medical personnel pursuant to the administrative review process. Defendants requested the court grant their motion for judgment on the pleadings because of Dickerson's failure to exhaust his administrative remedies. Dickerson's opposition to defendants' motion

On March 17, 2009, Dickerson filed opposition to defendants' motion for judgment on the pleadings, and simply argued that all the defendants had been served with his civil complaint. The court's order

On March 24, 2009, the court held a hearing on defendants' motion for judgment on the pleadings; Dickerson made a telephonic appearance. The court granted defendants' request for judicial notice of Dickerson's administrative file.

On March 26, 2009, the court granted defendants' motion for judgment on the pleadings without prejudice. It found Dickerson failed to exhaust his administrative remedies, and Dickerson's reasons for failing to exhaust were insufficient to overcome the jurisdictional requirements.

On April 14, 2009, Dickerson filed a motion for reconsideration.

On April 24, 2009, the court clarified its previous order, granted defendants' motion for judgment on the pleadings without prejudice, and granted Dickerson leave to amend his complaint within 20 days. Dickerson did not file an amended complaint within that time period. Dickerson's belated filing of the second formal level of review

On or about May 4, 2009, after the court had granted defendants' motion for judgment on the pleadings, Dickerson filed an inmate appeal of the April 30, 2008, first formal level of review in log No. SATF-M-08-01099, to the second formal level of review.

On or about May 4, 2009, Dickerson was advised that his appeal had been sent to the inmate appeals office for a second level response. Dickerson was further advised that if he was dissatisfied with the response, he had 15 days from the receipt of that response to forward his appeal to the third level of review.

On May 18, 2009, Dickerson was advised that his second level appeal had been screened out and rejected based on time constraints, because he had waited more than one year after receiving the results of the first level appeal of April 30, 2008, to file the second level appeal.

There is no evidence that Dickerson filed for review at the third formal level. Further court hearings

On June 2, 2009, the court entered the judgment in favor of defendants Clark and Bhatt, which granted the motion for judgment on the pleadings without prejudice.

Thereafter, Dickerson filed a motion for extension of time to file a first amended complaint, defendants filed opposition, and the court scheduled a hearing on an order to show cause why the action should not be dismissed with prejudice. Dickerson also attempted to serve the other defendants in the action.

On January 6, 2010, the court held a hearing on the order to show cause why sanctions should not be imposed against Dickerson, including dismissal of the action or striking a pleading. The court found the other named defendants had not been served by Dickerson and dismissed them from the action with prejudice.

The court vacated the judgment that was previously entered in favor of defendants Clark and Bhatt, and granted Dickerson leave to file an amended complaint within 15 days. Dickerson's first amended complaint

This court only has a minute order for the January 6, 2010, hearing, and it fails to explain why the court vacated its previous ruling.

On January 21, 2010, Dickerson filed a first amended complaint which alleged virtually the same allegations against the same defendants.

As the trial court subsequently noted, Dickerson erroneously identified this pleading as a second amended complaint whereas it was actually the first amended complaint.
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As to the exhaustion requirement, Dickerson alleged that he filed an informal Form 602 about the medication on December 25, 2007, he was "informed" by a member of the medical staff that the medication was "detrimental" to his eyesight, and his informal Form 602 was granted because he received the pharmacology insert for the medication. Dickerson further alleged that he learned the medication should not have been prescribed to him because he suffered from Hepatitis C, and glaucoma was one of the side effects of the medication.

Dickerson alleged causes of action for failure to train and supervise against defendant Clark; and medical malpractice, negligence, and corporal punishment against the defendant physicians. Dickerson sought general and special damages for emotional distress, pain and suffering, and medical expenses, and punitive damages. Defendants' answer to the second amended complaint

On February 16, 2010, defendants Clark and Bhatt filed their answer to Dickerson's first amended complaint, denied the allegations, raised several affirmative allegations, and alleged Dickerson failed to exhaust his administrative remedies. Defendants' motion for judgment on the pleadings

On April 30, 2010, defendants Clark and Bhatt filed a motion for judgment on the pleadings as to Dickerson's first amended complaint, requested the court to take judicial notice of Dickerson's administrative complaints, and again argued Dickerson failed to exhaust his administrative remedies.

Defendants set forth the administrative history of Dickerson's Form 602 complaints, that he was advised at the first formal level of review that the medication did not cause glaucoma, he did not timely seek review of that finding by seeking review at the second and third formal levels, and he belatedly tried to file a second level of review more than one year after his first appeal and after his initial complaint was dismissed without prejudice.

Defendants requested the court grant their motion for judgment on the pleadings because Dickerson failed to resolve his grievances against prison officials and medical personnel through second and third formal levels of review. Dickerson's opposition

On May 21, 2010, Dickerson filed opposition to defendants' motion for judgment on the pleadings. Dickerson noted the court had originally granted defendants' first motion for judgment on the pleadings. On January 6, 2010, however, the court decided to vacate that ruling and allowed Dickerson to file an amended complaint. Dickerson argued defendants' current motion for judgment on the pleadings was barred by the court's ruling on January 6, 2010.

Dickerson further argued that he had fully exhausted all of his administrative remedies because his informal Form 602 was granted on January 15, 2008, and his first level of review was granted on April 30, 2008. Dickerson argued that he was not required to seek second and third levels of review because his appeal was granted at the first level, and he " 'won' " at the lower level and he was granted all the relief he sought in his grievances.

Dickerson acknowledged that the first formal level of review found the medication was not contraindicated for glaucoma and had no relation to his glaucoma condition. Dickerson disputed that finding and asked the court to take judicial notice of additional documentation attached to his opposition, which allegedly showed that the medication caused glaucoma. The court's ruling

On July 1, 2010, the court held a hearing on defendants' motion for judgment on the pleadings. Dickerson appeared by telephone.

On July 14, 2010, the court granted defendants' motion for judgment on the pleadings with prejudice. The court found Dickerson failed to exhaust his administrative remedies prior to filing his first amended complaint, and Dickerson's stated reasons for failing to exhaust his remedies were insufficient to overcome the jurisdictional exhaustion requirement. The court denied Dickerson's request for judicial notice of the documentation about the medication.

On July 23, 2010, the notice of entry of judgment was filed. On August 3, 2010, the judgment was filed.

On September 9, 2010, Dickerson filed a timely notice of appeal.

DISCUSSION

I. Motion for judgment on the pleadings

Dickerson contends the superior court improperly granted defendants' motion for judgment on the pleadings as to his first amended complaint with prejudice, and argues he satisfied the exhaustion requirement. We thus turn to the standard of review on a grant of a motion for judgment on the pleadings.

"Judgment on the pleadings is similar to a demurrer and is properly granted when the 'complaint does not state facts sufficient to constitute a cause of action against [the] defendant.' [Citations.] The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. [Citation.] The trial court accepts as true all material facts properly pleaded but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts which are judicially noticed. [Citation.]" (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 702 (Coshow); see Code Civ. Proc., § 438, subds. (c)(1)(B), (d).)

"We independently review the trial court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff's factual allegations and construe them liberally. [Citation.] If a judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it regardless of the considerations used by the trial court to reach its conclusion. [Citation.]" (Coshow, supra, 132 Cal.App.4th at pp. 702-703.) "In determining whether the pleadings, together with matters that may be judicially noticed, entitle a party to judgment, a reviewing court can itself conduct the appropriate analysis and need not defer to the trial court. [Citation.]" (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216-1217; see Mack v. State Bar (2001) 92 Cal.App.4th 957, 961.)

"An order granting or denying a motion for judgment on the pleadings is not an appealable order because it is not final, but only a preliminary or interlocutory order. The proper appeal is from an actual judgment. [Citations.]" (Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4; see Code Civ. Proc., § 904.1.) A judgment was filed in this case and Dickerson has properly filed his notice of appeal from the judgment itself. II. Dickerson failed to exhaust his administrative remedies

Dickerson contends the court improperly granted defendants' motion for judgment on the pleadings based on the finding that he failed to exhaust his administrative remedies. Dickerson argues his appeal was granted at the first formal level of review, he was not required to file further administrative reviews, and he complied with the exhaustion requirements.

A. The PRLA and exhaustion

"Under both state and federal law, a prisoner must exhaust available administrative remedies before seeking judicial relief.... The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies. [Citations.]" (Wright, supra, 122 Cal.App.4th at pp. 664-665; see Booth v. Churner (2001) 532 U.S. 731, 733-734 (Booth); Woodford, supra, 548 U.S. at pp. 84-85; Jones v. Bock (2007) 549 U.S. 199, 204.)

Exhaustion of administrative remedies serves two main purposes. (Woodford, supra, 548 U.S. at p. 89.) First, exhaustion gives an agency " 'an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into ... court,' and it discourages 'disregard of [the agency's] procedures.' [Citation.]" (Ibid.) Second, "exhaustion promotes efficiency" because "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in ... court.... [Citations.] 'And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.' [Citation.]" (Ibid.)

The Prison Litigation Reform Act of 1995 (PLRA), codified at 42 United States Code section 1997e et seq., states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983 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).)

PLRA's exhaustion requirement applies to all inmate suits about prison life. (Porter v. Nussle (2002) 534 U.S. 516, 532 (Porter).) An inmate must complete the prison's administrative process, regardless of the relief sought by the inmate and offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. (Booth, supra, 532 U.S. at pp. 739-741.) "All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.' [Citations.] Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. [Citation.]" (Porter, supra, 534 U.S. at p. 524.)

The exhaustion requirement in the PLRA is an affirmative defense that the defendant has the burden of raising and proving, and inmates are not required to specifically plead or demonstrate exhaustion in their complaints. (Jones v. Bock, supra, 549 U.S. at pp. 216-217.)

"... The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction .... " (Woodford, supra, 548 U.S. at p. 95.)


"It is also true, however, that 'the doctrine of exhaustion of administrative remedies has not hardened into inflexible dogma. [Citation.] It contains its own exceptions, as when the subject matter of the controversy lies outside the administrative agency's jurisdiction [citation], when pursuit of an administrative remedy would result in irreparable harm [citations], when the administrative agency cannot grant an adequate remedy [citations], and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.' [Citation.]" (In re Hudson (2006) 143 Cal.App.4th 1, 7.)

B. California's grievance system

As explained ante, "California has a grievance system for prisoners who seek to challenge their conditions of confinement." (Woodford, supra, 548 U.S. at p. 85.) "[A] prison inmate may appeal any departmental decision, action, condition, or policy adversely affecting the inmate's welfare. [Citations.]" (Wright, supra, 122 Cal.App.4th at p. 666.) The administrative appeal process consists of four levels of appeal: the informal level, which the inmate initiates by filling out Form 602; the first formal level; the second formal level; and the third formal level, also known as the "Director's Level." (Cal. Code Regs., tit. 15, § 3084.5; Woodford, supra, 548 U.S. at p. 85; Wright, supra, 122 Cal.App.4th at pp. 665-667.)

"To initiate the process, an inmate must fill out a simple form ... [CDCR Form 602], that is made 'readily available to all inmates.' [Citation.] The inmate must fill out two parts of the form: part A, which is labeled 'Describe Problem,' and part B, which is labeled 'Action Requested.' Then, as explained on Form 602 itself, the prisoner 'must first informally seek relief through discussion with the appropriate staff member.' [Citation.] The staff member fills in part C of Form 602 under the heading 'Staff Response' and then returns the form to the inmate." (Woodford, supra, 548 U.S. at p. 85.)

"If the prisoner is dissatisfied with the result of the informal review, or if informal review is waived by the State, the inmate may pursue a three-step review process. [Citation.] Although California labels this 'formal' review (apparently to distinguish this process from the prior step), the three-step process is relatively simple. At the first level, the prisoner must fill in part D of Form 602, which states: 'If you are dissatisfied, explain below.' [Citation.] The inmate then must submit the form, together with a few other documents, to the appeals coordinator .... [Citation.] This level may be bypassed by the appeals coordinator in certain circumstances. [Citation.] [T]he reviewer must inform the inmate of the outcome by completing part E of Form 602 and returning the form to the inmate." (Woodford, supra, 548 U.S. at pp. 85-86.)

"If the prisoner receives an adverse determination at this first level, or if this level is bypassed, the inmate may proceed to the second level of review conducted by the warden. [Citations.] The inmate does this by filling in part F of Form 602 and submitting the form within 15 working days of the prior decision. Within 10 working days thereafter, the reviewer provides a decision on a letter that is attached to the form. If the prisoner's claim is again denied or the prisoner otherwise is dissatisfied with the result, the prisoner must explain the basis for his or her dissatisfaction on part H of the form and mail the form to the Director of the California Department of Corrections and Rehabilitation within 15 working days. [Citation.]" (Woodford, supra, 548 U.S. at p. 86.)

A decision at the third or director's level constitutes exhaustion of an inmate's administrative remedies for purposes of 42 United States Code section 1997e (a). (Cal. Code Regs., tit.15, § 3084.1, subd. (a); Wright, supra, 122 Cal.App.4th at p. 667.)

Accordingly, an inmate must proceed through the four levels of review before he has exhausted his available administrative remedies. An inmate who has not completed this review process has not exhausted the available administrative remedies. (Wright, supra, 122 Cal.App.4th at pp. 667-668.)

C. Analysis

Dickerson contends the court improperly granted defendants' motion for judgment on the pleadings based on the claim that he failed to exhaust his administrative remedies. Dickerson's arguments on this point are meritless based on the undisputed procedural history of this case.

First, Dickerson filed Form 602 for the informal level of review, asked about the possible side effects of Betamethasone Valerate ointment, and requested information about the proper usage of the medication. Dickerson's informal Form 602 was granted simply by providing Dickerson with pharmaceutical information about the medication.

Second, Dickerson was obviously not satisfied with the informal level response and filed another Form 602, seeking review at the first formal level as to why prison physicians prescribed the medication to him after he was diagnosed with glaucoma. Dickerson questioned how "this type of negligence" could have occurred and been tolerated. Dickerson requested answers as to why he was still being prescribed the medication after being diagnosed with glaucoma, and why he was prescribed the medication for so long "when clearly long term usage is perilous to my eyes."

Dickerson argues he fully exhausted his administrative remedies and he was not required to seek review at the second and/or third formal levels of review because the hearing officer ruled in his favor at the first formal level of review. The entirety of the record refutes this simplistic interpretation. At the first formal level of review, the hearing officer issued a two-part finding and found "[Dickerson's] issues concerning access to care, medications and disagreement with treatment are granted at the First Level of Review ...." More critically, however, the hearing officer expressly rejected the specific negligence claim raised by Dickerson's Form 602: "Betamethasone dipropionate is not contraindicated for patients suffering glaucoma. In fact, the use of this ointment has no relation to [Dickerson's] glaucoma condition." (Italics in original.) This finding was clearly an "adverse determination" at the first formal level and Dickerson was required to seek further review at the second formal level. (Woodford, supra, 548 U.S. at p. 86.)

"At each level of review not waived, the original appeal shall be returned to the [inmate] with a written response stating the appeal issue and reasons for the decision." (Cal. Code Regs., tit. 15, § 3084.5, subd. (g).) It is undisputed that the findings of the hearing officer from the first formal level of review were returned to Dickerson, and he was aware of the hearing officer's adverse finding that the medication was not related to his glaucoma.

Dickerson claims that he was not required to seek further review at the second and third formal levels because the first formal level response was favorable to him. However, the record shows that Dickerson was clearly not satisfied with the first formal level response because he sent a letter to the warden a few weeks after he received the hearing officer's findings and accused several physicians of malpractice, claimed their repeated prescription of the medication caused his glaucoma, and asked about the protocol for making a formal complaint about the medical staff. Dickerson thus demonstrated that he was not satisfied with the first formal level response, and he has never claimed that he was unaware of the exhaustion requirement or that he had to seek the second and third formal levels of review.

Dickerson's civil complaint was based on virtually the same issues as those raised in his informal appeal, the first formal level of review, and his letter to the warden: he asserted causes of action for failure to supervise and medical malpractice solely based on the allegations that he was improperly prescribed the ointment for a lengthy period of time and it caused him to suffer from glaucoma. Dickerson thus brought a civil complaint against a prison official and a prison physician, even though he received an adverse determination of his allegations at the first formal level, and without exhausting his administrative remedies on this allegation at the second formal level of review.

After the court granted defendants' initial motion for judgment on the pleadings, however, Dickerson belatedly attempted to file a second formal level of review over one year after his first level of review was heard, thus indicating his acknowledgment that he had failed to comply with the administrative review procedure. "An inmate's appeal may be rejected where '[t]ime limits for submitting the appeal are exceeded and the [inmate] had the opportunity to file within the prescribed time constraints.' [Citation.]" (Woodford, supra, 548 U.S. at p. 86.) It is undisputed that Dickerson failed to timely file second and third formal levels of review following the hearing officer's adverse finding on his malpractice claims at the first formal level of review.

As a separate issue, Dickerson contends that it would have been futile to further pursue administrative remedies through the second and third formal levels of review since his civil complaint sought monetary damages which are not available through the administrative process. This argument is also meritless. As explained relative to the PRLA, "[e]ven when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. [Citation.]" (Porter, supra, 534 U.S. at p. 524; Booth, supra, 532 U.S. at p. 733.)

Moreover, "[u]nder state law, inmates are required to exhaust administrative remedies, even when seeking money damages unavailable in the administrative process. [Citation.]" (Wright, supra, 122 Cal.App.4th at p. 668.) "Although money damages are unavailable in the administrative process, [an inmate] must exhaust his administrative remedies before seeking judicial relief. Even where money damages are unavailable, the exhaustion requirement furthers important interests: prison autonomy, mitigating damages, application of Department expertise, and order in the court system." (Id. at p. 663.) "Allowing prisoners deliberately to avoid the Department's administrative process by asking only for money damages, a remedy unavailable in the administrative process, would weaken the effectiveness of the Department by encouraging inmates to ignore its grievance resolution procedures. [Citation.]" (Id. at p. 669.)

We thus conclude that Dickerson failed to exhaust his administrative remedies because the hearing officer at the first formal level of review made an adverse finding as to the basis for his malpractice claims, and Dickerson failed to appeal that finding through the second and third formal levels of review. In addition, Dickerson's intent to pray for monetary damages in his civil lawsuit would not have rendered further administrative review futile.

DISPOSITION

The judgment is affirmed.


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