California Exhaustion Requirement Extends to Independent Contractors

by Mark Wilson

On December 6, 2013, the California Court of Appeal, Third Appellate District, held that prisoners must exhaust administrative remedies before suing independent contractors employed by the prison system.

California prisoner Ira Don Parthemore was examined by Dr. Peter R. Col, an optometrist under contract at the Mule Creek State Prison.

Col diagnosed Parthemore with cataracts in both eyes and advised him that he would need surgery. Col later re-examined him and concluded surgery was not necessary. Col prepared a transfer request, incorrectly identifying Parthemore as being “legally blind.” He was then transferred to a medical facility.

A different optometrist examined Parthemore and found that he “never should have been diagnosed as legally blind or transferred to the medical facility.”

Parthemore fell while at the medical facility, breaking his right kneecap and several bones in his left shoulder. After he recovered, he was sent back to Mule Creek.

Parthemore sued Dr. Col in state court for negligence, alleging that the injuries from his fall were caused by Col’s refusal to issue a new eyeglasses prescription. He also alleged that Col intentionally falsified official medical records, resulting in his unnecessary transfer to the medical facility.

Col moved to dismiss, arguing that Parthemore had not exhausted his administrative remedies concerning the claims alleged in his complaint; Parthemore, in turn, argued that exhaustion was not required under the Government Claims Act, Gov. Code § 810 et seq., because Col was an independent contractor and not a government employee. The trial court agreed with Col and dismissed the lawsuit.

The Court of Appeal affirmed, finding that Parthemore did not exhaust administrative remedies. It then observed that California prisoners must exhaust “any policy, decision, action, condition, or omission by the department or its staff.” The word “staff’ was intended to be defined “as broadly as possible,” the appellate court concluded. As such, it includes “independent contractors, like defendant, who are retained by the department to provide services on its behalf.”

The Court of Appeal concluded 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.”

Parthemore sought review by the California Supreme Court, which was denied on March 12, 2014. See: Parthemore v. Col, 221 Cal. App. 4th 1372 (Cal. App. 3d Dist. 2013), review denied.

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