Raymond Whitall v. Stephanie Phan ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND RICHARD WHITALL, No. 19-16397
Plaintiff-Appellant, D.C. No. 3:17-cv-05889-CRB
v.
MEMORANDUM*
STEPHANIE TRAN PHAN, M.D., Primary
Care Physician, CDCR; et al.,
Defendants-Appellees,
and
A. NEWTON; et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
California state prisoner Raymond Richard Whitall appeals pro se from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.
2014) (en banc). We reverse and remand.
The district court granted summary judgment for failure to exhaust
administrative remedies on Whitall’s morphine discontinuation claim. However,
defendants concede in their answering brief that summary judgment on this claim
was in error, because the record shows that Whitall’s grievance regarding his
morphine discontinuation claim was cancelled, and a prison administrator
informed him that this claim would be addressed in another grievance. See Brown
v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“[A] prisoner need not press on to
exhaust further levels of review once he has . . . been reliably informed by an
administrator that no remedies are available.”). We reverse the judgment and
remand for further proceedings on this claim only.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.
2 19-16397