Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, Ct. No. 09C0259 Steven D. Barnes, Judge.
Dale Wills, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
OPINION
Before Ardaiz, P.J., Cornell, J. and Gomes, J.
INTRODUCTION
Dale Wills appeals from an order denying his petition for a writ of mandamus against several defendants. He contends that the trial court erred in dismissing his petition for failure to exhaust administrative remedies. Wills also appeals from the denial of his motion for reconsideration of the prior order. For the following reasons, we affirm the order denying the petition.
In his opening brief, appellant requests that the disposition of his appeal be memorialized in a formal, published opinion. We conclude that this opinion does not meet the requirements for publication. (Cal. Rules of Court, rule 8.1105, subd. (c).)
FACTUAL AND PROCEDURAL HISTORY
On August 24, 2009, Wills filed a petition for writ of mandamus in Kings County Superior Court. In his petition, Wills alleged that he is a prisoner confined at the California State Prison at Corcoran (CSP-C) by the California Department of Corrections and Rehabilitation (CDCR); that James Tilton is the Secretary of the CDCR; that several named defendants are directors of the CDCR, and that other named defendants are wardens of CSP-C. Wills alleged that on three occasions, in 1998, 2004 and 2008, he was transferred to the Security Housing Unit (SHU) at CSP-C and, during those times, he was not allowed to possess numerous items of personal property. Instead, his personal property was confiscated and disposed of. He further alleged that on December 7, 2008, he submitted an “Inmate Request for Interview Form” to the CSP-C SHU Property Officer concerning the confiscation of numerous items of his personal property, but he had not heard from any one regarding that request as of August 24, 2009. Thus, he sought a writ of mandate to compel an accounting and return of his personal property. In his petition, he also contends that he has no other plain, speedy, and adequate remedy because an action for money damages is inadequate relief.
On September 3, 2009, the superior court issued an order on the petition. The court noted that it may summarily deny a petition for a writ of mandate when it appears from the face of the petition that a peremptory writ will not be issued, even if a defendant has not appeared by answer or demurrer. The court found that Wills failed to explain the substantial delay in filing his petition and to demonstrate that he satisfied the pre-filing exhaustion of administrative remedies. Thus, the petition was summarily denied.
On September 29, 2009, Wills moved for reconsideration of the September 3 order. He asserted that exhaustion of administrative remedies would be futile or inadequate in this case based upon how similar claims had been addressed by prison officials on two separate occasions. He contended that requiring exhaustion of administrative remedies in this case was improper because the administrative remedy provided by the CDCR is inadequate in that the remedy did not provide for the retention of personal property pending the complete exhaustion of the administrative process. He also contended that it would be futile to exhaust administrative remedies based upon the denials or non-responses that he received when he filed similar claims on two prior occasions. Wills attached documentation which showed that he exhausted administrative remedies with respect to his 1998 and 2001 requests for return of his personal property.
On October 5, 2009, Wills filed his Notice of Appeal from the September 3 order and the denial of his motion for reconsideration.
On October 13, 2009, the superior court denied the motion for reconsideration as untimely and not presenting any new facts, circumstances, or law.
Wills filed his opening brief on February 9, 2010. This court did not request briefing from respondents because Wills has not shown any right to relief.
DISCUSSION
As an initial matter, we cannot review the superior court’s denial of Wills’s motion for reconsideration because, based upon the record, that denial occurred after the Notice of Appeal was filed. Nevertheless, Wills is not adversely impacted because his motion for reconsideration is essentially an objection to the superior court’s September 3, 2010 order. An order of the superior court summarily denying a petition for writ of mandate is appealable and we review for abuse of discretion. (Kingston v. Dept. of Motor Vehicles (1969) 271 Cal.App.2d 549, 552.) In addressing this issue, we also will consider whether the trial court erred in not giving Wills an opportunity to amend his petition.
A writ of mandate will only issue when there is no plain, speedy and adequate remedy in the ordinary course of law. (Code Civ. Proc., § 1086.) CDCR has an administrative appeals process for lost property claims, but Wills did not allege that he had exhausted that administrative process. Thus, the superior court denied the petition on failure to exhaust grounds.
On appeal, Wills contends that exhaustion of administrative remedies is not a pleading requirement and does not implicate the subject matter jurisdiction of the court. In support, he cites O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568 (O.W.L. Foundation). However, O.W.L. Foundation involved civil litigation by a non-prisoner. It is well-settled that a prisoner must exhaust administrative remedies and that the exhaustion requirement is jurisdictional. (Wright v. State of California (2004) 122 Cal.App.4th 659, 664-665 (Wright).) Nevertheless, there are exceptions to the doctrine of exhaustion of administrative remedies, three of which (inadequacy, unavailability, and futility) are raised by Wills in this appeal.
First, Wills contends that there is no adequate administrative remedy because his personal property is destroyed before the appeals process is completed. Unfortunately, Wills has not provided any factual support for this assertion. Instead, he cites to two notices which state that Wills’s unauthorized personal property will be destroyed within 30 days unless shipped to off-site storage or donated. Wills does not cite to any provision or notice that his personal property would be destroyed while he is appealing. Rather, the property was allegedly already destroyed when Wills filed his request for an accounting and his subsequent administrative appeals. Wills does include a document that states that there is a prison regulation which provides that, in appeals involving lost or damaged property, “[a]n attempt shall be made by staff to use local resources to substitute for, or replace lost property at no cost to the state, or to repair the item at institution expense.” While not directly on point, this provision suggests that CDCR does not destroy the property during the pendency of an administrative appeal.
Next, Wills contends that there is no available administrative remedy because: (1) no relief can be granted since there is no adverse effect on his welfare and (2) the prison officials have intentionally mishandled his current appeal. However, Wills has not met his burden of producing sufficient evidence on these two points. First, the loss of personal property due to prison regulation does adversely impact Wills’s welfare; otherwise, Wills would have no cognizable claim. Second, the documents on the prison’s mishandling of his current appeal show that the officials rejected Wills’s documents as untimely and/or not in compliance with prison appellate regulations. Even assuming that the delays were created by the prison officials, this does not excuse Wills from not continuing the appeals process until the end. Further delays could be addressed by a writ of mandate to compel the timely processing of the appeal. (See Wright, supra, 122 Cal.App.4th at pp. 667-668.) Moreover, even if relief is unavailable because the appeal was not timely processed or the property was already destroyed, Wills should have exhausted his administrative remedies because “there are salutary reasons for requiring exhaustion of administrative remedies” such as allowing the CDCR to review its policies and mitigate damages. (Id. at p. 668.)
Finally, Wills contends that it was futile to continue the appeals process because he previously exhausted administrative remedies on similar claims in 1998 and 2001. However, Wills has not met his burden of producing facts sufficient to support his claim of futility. The fact that prison officials denied similar claims in 1998 and 2001 does not necessarily mean that prison officials would deny this claim in 2008 given that prison regulations may have changed or been reinterpreted differently since 2001 and given that new prison officials may decide the matter favorably in Wills’s current situation. This is not a case where the denials were recent or where Wills received informal notice from a prison official that his current appeal would be denied.
Because Wills does not meet an exception to the doctrine of exhaustion of administrative remedies, we conclude that the trial court did not err in summarily dismissing the petition for writ of mandate. In light of this conclusion, we also hold that the trial court did not abuse its discretion in denying Wills an opportunity to amend his petition to show that he satisfies an exception to the pre-filing requirement for exhaustion of administrative remedies.
DISPOSITION
The order summarily denying the petition for writ of mandate is affirmed.