Filed 12/6/13
                               CERTIFIED FOR PUBLICATION



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                             (Amador)
                                               ----




IRA DON PARTHEMORE,                                                  C072611

                  Plaintiff and Appellant,                (Super. Ct. No. 11CVC07422)

        v.

PETER R. COL,

                  Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of Amador County, Harlan,
Judge. Affirmed.

        Susan E. Coleman, Kristina Doan Gruenberg for Plaintiff and Appellant.

        Ira Don Parthemore, in pro. per., for Defendant and Respondent.




        Plaintiff Ira Don Parthemore, an incarcerated person representing himself in pro
per, appeals from a judgment dismissing his action against defendant Peter R. Col, an
optometrist under contract with the Department of Corrections and Rehabilitation (DCR).
The trial court found plaintiff failed to exhaust his administrative remedies, and sustained




                                                1
defendant’s demurrer to plaintiff’s first amended complaint without leave to amend
(Wright v. State of California (2004) 122 Cal.App.4th 659).
       On appeal, plaintiff argues he was not required to exhaust the administrative
remedies available to prisoners before bringing this action because defendant was an
independent contractor. In this issue of first impression, plaintiff asserts that the rule
embodied in the Government Claims Act, which by definition excludes independent
contractors from the definition of public employees to which the Act applies (Gov. Code,
§§ 810.2, 820), applies equally to the administrative grievance system that prisoners must
exhaust as a prerequisite to trial court jurisdiction, and exempts from the administrative
process all claims arising from the acts or omissions of independent contractors. (Cal.
Code Regs., tit. 15, § 3084 et seq.)
       We disagree. Plaintiff’s obligation to exhaust the administrative remedies
available to prisoners concerning the medical treatment they receive is independent of the
obligation to comply with the Government Claims Act (see, e.g. Wright v. State of
California, supra, 122 Cal.App.4th at pp. 670-671; Lozada v. City and County of San
Francisco (2006) 145 Cal.App.4th 1139, 1155). And neither the language of the
applicable regulations nor the policies underlying them except the acts and omissions of
independent contractors from those as to which a prisoner must exhaust his remedies
before bringing this action (Wright v. State of California, supra, 122 Cal.App.4th at pp.
664-665). Accordingly, we conclude the trial court correctly ruled that plaintiff’s
complaint must be dismissed for failure to exhaust administrative remedies.

                                 FACTS AND PROCEEDINGS

       Because we are reviewing an order sustaining a demurrer, we accept as true the
allegations of fact set forth in plaintiff’s complaint(s). (City of Dinuba v. County of
Tulare (2007) 41 Cal.4th 859, 865.) Therefore, the facts set forth in this opinion are
taken from the allegations in plaintiff’s pleadings.


                                               2
       Plaintiff is a prison inmate. Defendant is an optometrist under contract with Mule
Creek State Prison.
       Defendant examined plaintiff and diagnosed him as having cataracts in both eyes.
Defendant advised plaintiff he would require surgery, but failed to schedule it.
       Plaintiff filed a health care appeal requesting he be provided with cataract surgery.
A further optometry appointment was scheduled for plaintiff with defendant, and the
health care appeal was suspended pending that appointment.
       At his next appointment with plaintiff, defendant determined that plaintiff’s
cataracts did not warrant surgery. Defendant also told plaintiff he had completed DCR
form 1845, a disability placement program verification, identifying plaintiff as having
“legal blindness,” a visual impairment that is not correctable to better than 20/200 visual
acuity. Plaintiff alleges defendant deliberately and falsely indicated plaintiff is legally
blind so DCR would be compelled to transfer plaintiff to a medical facility capable of
providing for the needs of the legally blind.
       Plaintiff sought and obtained a reevaluation appointment, at which he asked
defendant for a new vision test and new glasses prescription, and asked defendant to
reevaluate whether the legal blindness diagnosis could be changed. Defendant did a
quick eye test and agreed plaintiff’s corrected vision was 20/70, but he declined to
change his diagnosis or provide a new prescription.
       Plaintiff was subsequently examined by an ophthalmologist, who confirmed that
plaintiff’s “central” corrected vision was 20/70. Despite this finding, plaintiff was
transferred from Mule Creek Prison to the medical facility.
       An optometrist at the medical facility examined plaintiff and diagnosed plaintiff as
having corrected visual acuity of 20/100 in the right eye and 20/60 in the left. Based on
this diagnosis, plaintiff should never have been diagnosed as legally blind or transferred
to the medical facility. The optometrist prepared a new DCR 1845 form, noted that



                                                3
plaintiff’s vision is “better than 20/200 in both eyes” and indicated plaintiff should be
removed from the disability placement program.
       Shortly thereafter, however, because plaintiff could not “fully see the new and
unfamiliar physical layout” of the medical facility, he stumbled over a fixed bench and
broke his right kneecap and several bones in his left shoulder. After he recovered from
the fall, plaintiff was transferred back to Mule Creek State Prison.
       Plaintiff then sued defendant and asserted claims based on theories of negligence
and intentional tort. Defendant’s demurrer on the ground the complaint failed to state a
cause of action was sustained with leave to amend.
       Plaintiff then filed the first amended (operative) complaint. Plaintiff’s first cause
of action for negligence alleges his fall was the result of defendant’s refusal to issue a
new eyeglass prescription at plaintiff’s reevaluation appointment. Plaintiff’s second
cause of action for intentional tort alleges his transfer to the medical facility was the
consequence of defendant’s having deliberately falsified official DCR medical records.
       Defendant demurred to the complaint on the grounds plaintiff failed to allege he
had exhausted his administrative remedies; and failed to allege facts stating a cause of
action for either negligence or intentional tort. Defendant also demurred on the ground
plaintiff failed to allege compliance with the Government Claims Act, but he later
abandoned that argument, reasoning that the Act does not apply to independent
contractors (see Gov. Code, §§ 810.2, 811.4, 820).
       Opposing the demurrer, plaintiff argued he was not required to pursue an
administrative appeal directed at the actions, decisions or omissions of defendant, an
independent contractor. Alternatively, plaintiff asserted, he did exhaust his
administrative appeal and he attached to the opposition documents showing he filed an
administrative health care appeal form challenging defendant’s failure to order cataract
surgery, to which he later added a claim defendant falsified the 1845 form by defining
plaintiff as legally blind. This appeal was “partially granted” at the second level

                                               4
response, in that a new 1845 form reflected that plaintiff is not legally blind and cataract
surgery was scheduled. Finally, plaintiff argued his complaint properly states causes of
action for both negligence and intentional tort.
       Following a hearing, the trial court found plaintiff failed to demonstrate his
exhaustion of administrative remedies, sustained the demurrer without leave to amend,
and entered judgment in defendant’s favor.

                                        DISCUSSION
                                              I

                        Standard of Review Applicable to Demurrer

       Our standard of review of an order sustaining a demurrer is well settled. We
independently review the ruling on demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action. (McCall v. PacifiCare
of Cal., Inc. (2001) 25 Cal.4th 412, 415.) In doing so, we “give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]
Further, we treat the demurrer as admitting all material facts properly pleaded, but do not
assume the truth of contentions, deductions or conclusions of law. [Citations.]” (City of
Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.)
       When a demurrer is sustained without leave to amend, “we decide whether there is
a reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)




                                              5
                                             II

          Jurisdictional Requirement of Exhaustion of Administrative Remedies

       The “rule of exhaustion of administrative remedies is well established in
California jurisprudence.” (Campbell v. Regents of University of California (2005)
35 Cal.4th 311, 321 (Campbell).) Generally, it means a party must exhaust
administrative remedies before resorting to the courts. (Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1080.) More specifically, “ ‘[t]he doctrine of exhaustion of administrative
remedies requires that where a remedy before an administrative agency is provided by
statute, regulation, or ordinance, relief must be sought by exhausting this remedy before
the courts will act.’ [Citation.]” (Kaiser Foundation Hospitals v. Superior Court (2005)
128 Cal.App.4th 85, 99-100.)
       The “failure to exhaust administrative remedies is a proper basis for demurrer.”
(Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411; see also Campbell,
supra, 35 Cal.4th at p. 333 [upholding trial court’s sustaining of demurrer on
administrative exhaustion grounds].) A complaint is vulnerable to demurrer on
administrative exhaustion grounds when it fails to plead either that administrative
remedies were exhausted or that a valid excuse exists for not exhausting. (See Campbell,
supra, 35 Cal.4th at pp. 321-322, 333; Williams v. Housing Authority of Los Angeles
(2004) 121 Cal.App.4th 708, 736-737; Hood v. Hacienda La Puente Unified School Dist.
(1998) 65 Cal.App.4th 435, 439.) A complaint is also vulnerable to demurrer on
administrative exhaustion grounds where the complaint’s allegations, documents attached
thereto, or judicially noticeable facts indicate that exhaustion has not occurred and no
valid excuse is alleged in the pleading to avoid the exhaustion requirement. (See Doe
II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 566; Williams, supra, 121 Cal.App.4th at
p. 714, fn. 6 [matters of judicial notice may be considered on demurrer].)



                                             6
       A California state prisoner must exhaust available administrative remedies before
filing a lawsuit. (Wright v. State of California, supra, 122 Cal.App.4th 659.) California
prison regulations establish a multilevel administrative review process for the resolution
of prison grievances. (See Cal. Code Regs., tit. 15, §§ 3084.1-3084.7; Vaden v.
Summerhill (9th Cir. 2006) 449 F.3d 1047, 1049.) They provide that a prisoner may seek
review by appeal of “any policy, decision, action, condition, or omission by the
department or its staff” that has a material adverse effect upon his “health, safety, or
welfare.” (Cal. Code Regs., tit. 15, § 3084.1, subd. (a).)
       To commence the administrative appeal process, the prisoner must initiate an
informal appeal in which the prisoner and staff involved in the action or decision attempt
to resolve the grievance informally. (Cal. Code Regs., tit. 15, §§ 3084.2, subds. (a) & (b),
3084.5, subd. (a) & (a)(2), 3084.6, subd. (c).) The prisoner must utilize a DCR 602 to
describe the relief requested. (Cal. Code Regs., tit. 15, § 3084.2, subd. (a).) If an
informal appeal does not resolve the grievance, the prisoner may proceed through a series
of three formal levels of review. (Cal. Code Regs., tit. 15, §§ 3084.1, subd. (a), 3084.7,
subds. (a)-(c).) Administrative remedies are not deemed exhausted until the appeal
proceeds to a third level review, and administrative remedies are not deemed exhausted
as to any new issue, information or person not included in the originally submitted DCR
602. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b); see Woodford v. Ngo (2006) 548 U.S.
81, 85-86 [165 L.Ed.2d 375] [outlining requirements in a prior iteration of California’s
grievance regulations].)
       Requiring proper exhaustion of administrative remedies in accordance with these
procedures serves multiple goals: it may mitigate damages; promotes judicial economy;
encourages prisoners to make full use of the prison grievance processes; provides prisons
with a fair opportunity to correct their own errors; reduces the quantity of prisoner suits;
and provides a record for courts to review. (Wright v. State of California, supra,



                                              7
122 Cal.App.4th at pp. 668-670; see also Woodford v. Ngo, supra, 548 U.S. at pp. 88-91,
94-95 [165 L.Ed.2d at pp. 377-378, 380-381].)
        Partly because the purpose of a grievance procedure such as the one at issue here
is to alert the prison to a problem and facilitate its resolution, exhaustion of
administrative remedies is required even when money damages or other relief sought by
the prisoner is unavailable. (Wright v. State of California, supra, 122 Cal.App.4th at p.
669.)

                                              III

        Plaintiff’s Failure to Exhaust His Administrative Remedies is Not Excused

        On the first amended complaint form, plaintiff checked the boxes acknowledging
he “is required to comply with a claims statute” and indicating he had done so. In
opposition to the demurrer, plaintiff suggests this allegation constituted a pleading he
administratively exhausted his claims against defendant. (See Perez v. Golden Empire
Transit Dist. (2012) 209 Cal.App.4th 1228, 1236-1237.) A fair reading of the documents
appended to plaintiff’s demurrer opposition, however, indicates they represent a proposal
to amend the complaint to allege the facts contained therein, and they do not show
plaintiff exhausted his administrative remedies as to claims raised in the complaint. (See
Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
        Plaintiff’s appeal of defendant’s refusal to schedule him for cataract surgery, as
reflected in his DCR 602 form exhausted his administrative remedies as to a claim of
entitlement to cataract surgery. Plaintiff’s request for cataract surgery was raised in his
initial appeal form, and it was granted at the second level of review: the decision shows
plaintiff’s request for cataract surgery was successfully resolved in his favor, and surgery
was scheduled. The resolution of an appeal in a prisoner’s favor exhausts his
administrative remedies. (See Woodford v. Ngo, supra, 548 U.S. at p. 94 [165 L.Ed.2d at
p. 380].)


                                               8
        But the appeal and subsequent decision did not exhaust plaintiff’s administrative
remedies as to “each of the claims present in th[e] First Amended Complaint,” as plaintiff
argues. Plaintiff’s negligence cause of action rests on his allegations that, because
defendant “refus[ed] to issue a new prescription,” plaintiff was using glasses that did not
correct his vision well enough to see the “new and unfamiliar” surroundings at the
medical facility and, as a result, plaintiff stumbled, and was injured. Plaintiff’s
intentional tort claim alleges defendant intentionally misrepresented that plaintiff was
legally blind, and caused plaintiff to be in unfamiliar surroundings where he was injured.
Neither plaintiff’s claim defendant negligently refused to issue him a new glasses
prescription nor his claim defendant intentionally misrepresented the state of plaintiff’s
vision were raised by plaintiff’s original DCR 602 (cf. Cal. Code Regs., tit. 15, § 3084.1,
subd. (b)). Accordingly, plaintiff failed to exhaust his administrative remedies as to both
claims.
        To overcome this obstacle, plaintiff contends on appeal he is excused from
pursuing his administrative remedies against defendant, because defendant is an
independent contractor, rather than a DCR employee. In plaintiff’s view, defendant’s
status as an independent contractor removed him “from under the protections provided by
the Government Tort Claims Act,” one of which, plaintiff asserts, is the “requirement that
‘a prisoner must exhaust available administrative remedies before seeking judicial
review . . . .’ ”
        The parties agree that no published California cases address the availability of
administrative grievance procedures for challenges to the actions of independent
contractors. We are not persuaded, however, by plaintiff’s arguments he was excused
from exhausting his administrative grievance procedures before bringing this action.
        Plaintiff argues chiefly by analogy to the Government Claims Act, which
establishes a standardized procedure for bringing claims against public entities, and the
employees of public entities (e.g., “public employees”) if the injury on which suit was

                                              9
based arose out of an act or omission within the scope of the employee’s employment.
(McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 619; Briggs v. Lawrence
(1991) 230 Cal.App.3d 605, 610, 612-613.) The Act expressly exempts independent
contractors from its scope by excluding them from the definition of “public employee.”
(Gov. Code, §§ 810.2, 811.4.)
       But the cases make it plain that plaintiff’s obligation to exhaust the administrative
remedies available to prisoners concerning the medical treatment they receive is
independent of the obligation to comply with the Government Claims Act. (See, e.g.
Wright v. State of California, supra, 122 Cal.App.4th at pp. 670-671 [separately
describing impediments posed by failure to exhaust administrative remedies available to
prisoners and time limits imposed by the Act]; Lozada v. City and County of San
Francisco, supra, 145 Cal.App.4th at p. 1155 [elimination of requirement of exhaustion
of administrative remedies “does not eliminate . . . filing requirements under” the Act].)
       And, in contrast to the provisions of the Act, independent contractors are neither
specifically mentioned nor specifically exempted from the provisions of the regulations
that establish the administrative review process for the resolution of prison grievances.
(See Cal. Code Regs., tit. 15, §§ 3084.1-3084.7.) Rather, those regulations provide that a
prisoner may seek review by appeal of “any policy, decision, action, condition, or
omission by the department or its staff.” (Cal. Code Regs., tit. 15, § 3084.1, subd. (a),
italics added.) The word “staff” as it appears in the definition of decisions and omissions
from which a prisoner may appeal is not defined by the regulations (Cal. Code Regs.,
tit. 15, §§ 2000, 3084.1-3084.7), but the phrase “department or its staff” suggests the
regulations were intended to define as broadly as possible the range of individuals whose
decisions and omissions may form the basis of an appeal. Accordingly, and in view of
the fact that nothing in the language or policy of the applicable regulations excuses
prisoners from exhausting their administrative remedies as to the actions and omissions
of independent contractors, we construe the phrase “department or its staff” to include not

                                             10
only officers, directors, and employees of the department, but also independent
contractors, like defendant, who are retained by the department to provide services on its
behalf. We note that federal courts have held that the requirement a prisoner exhaust his
available administrative remedies under analogous federal law applies to claims against a
privately-run prison staffed with private employees contracting with the government to
provide this service. (See Roles v. Maddox (9th Cir. 2006) 439 F.3d 1016, 1017-1018
and the cases cited therein.)
       Applying the exhaustion requirement broadly to include the decisions and
omissions of individuals hired by the department but categorized as independent
contractors also furthers the goals of mitigating damages, promoting judicial economy,
encouraging prisoners to make full use of the prison grievance processes, providing
prisons with a fair opportunity to correct their own errors, reducing the quantity of
prisoner suits; and providing a record for courts to review. (See Wright v. State of
California, supra, 122 Cal.App.4th at pp. 668-670.)
       Plaintiff’s actions in pursuing his health care appeal from defendant’s decision not
to recommend cataract surgery is also consistent with our reading of the regulation.
Asked to “[d]escribe” the “[p]roblem” on his health care appeal form, plaintiff stated,
“[T]he eye doctor told me that I have cataracts in both eyes but he refuses to send me out
for their removal. My eyesight is dimming more and more due to these cataracts and I do
need the surgery immediately.” On the “action requested” line, plaintiff wrote: “send me
out for cataract surgery.” We agree with plaintiff’s apparent conclusion that defendant’s
“refusal” to recommend plaintiff for cataract surgery was a decision or omission within
the regulation allowing for an appeal. (Cal. Code Regs., tit. 15, § 3084.1, subd. (a).)
       Defendant’s decision to deny plaintiff a new glasses prescription, and his
intentionally incorrect diagnosis of plaintiff’s eyesight, are likewise decisions, actions or
omissions from which plaintiff was required to appeal, and thereafter to exhaust his
administrative remedies, before bringing the instant action. By failing to exhaust his

                                             11
administrative remedies as to these claims, plaintiff failed to alert DCR to the problem,
allow it to facilitate the resolution of those problems, or otherwise to serve the goals of
the prison grievance procedures. (See Wright v. State of California, supra,
122 Cal.App.4th at pp. 668-670.)
       The trial court did not err in concluding plaintiff should have, and failed to,
exhaust his administrative remedies as to the claims against defendant raised in the
complaint. Plaintiff has not suggested either below or on appeal how he might amend his
complaints so as to escape the exhaustion requirements, and we see none. The demurrer
was properly sustained without leave to amend on the ground.

                                        DISPOSITION

       The judgment of dismissal is affirmed. The parties shall bear their own costs on
appeal. (Cal. Rules of Court, rule 8.278 (a)(5).)



                                                         HULL                  , J.



We concur:



      RAYE                   , P. J.



      BLEASE                 , J.




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