NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCOTT PEASLEY, No. 18-56648
Plaintiff-Appellant, D.C. No. 5:15-cv-01769-LHK
v.
MEMORANDUM*
M. ELIOT SPEARMAN, Warden; et al.,
Defendants-Appellees,
and
P. MULLEN, Appeal Coordinator,
Defendant.
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.
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
2
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.
3
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
4
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
5
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.
6
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
7
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
8
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.
9
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.
10
Peasley v. Spearman, No. 18-56648 FILED
FRIEDLAND, Circuit Judge, dissenting in part: JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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,
1
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.
2