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Parthemore v. Col

California Court of Appeal, Third District

December 6, 2013

Ira Don PARTHEMORE, Plaintiff and Appellant,
v.
Peter R. COL, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Amador County, Harlan, Judge. Affirmed. (Super. Ct. No. 11CVC07422)

Page 1373

[Copyrighted Material Omitted]

Page 1374

COUNSEL

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

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

OPINION

HULL, J.

Page 1375

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 defendant's demurrer to plaintiff's first amended complaint without leave to amend ( Wright v. State of California (2004) 122 Cal.App.4th 659, 19 Cal.Rptr.3d 92).

Page 1376

On appeal, plaintiff argues he was not required to exhaust the administrative remedies available to prisoners before bringing this action because defendant was [165 Cal.Rptr.3d 369] 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, 19 Cal.Rptr.3d 92; Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1155, 52 Cal.Rptr.3d 209). 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, 19 Cal.Rptr.3d 92). 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, 62 Cal.Rptr.3d 614, 161 P.3d 1168.) Therefore, the facts set forth in this opinion are taken from the allegations in plaintiff's pleadings.

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.

Page 1377

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 ...


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