Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 08CECG03638, of Fresno County. Jeffrey Y. Hamilton, Judge.
Charles T. Davis, in propria persona, for Defendant and Appellant.
Beeson Terhorst, Jeffrey E. Beeson and Michael A. Terhorst, for Defendants and Respondents.
OPINION
Gomes, J.
Charles T. Davis, an inmate at Pleasant Valley State Prison (PVSP), appeals the trial court’s denial of his petition for writ of mandate in which he sought to compel respondents, PVSP appeals coordinators C. Huckabay, J. Herrera and H. Martinez (collectively respondents), to address the merits of his request for reasonable modification or accommodation. We will affirm.
FACTS AND PROCEDURAL HISTORY
In July 2008, Davis submitted a request for reasonable modification or accommodation on California Department of Corrections and Rehabilitation (CDC or Department) form 1824 to the office of PVSP’s appeals coordinator. On the form, Davis described his disability as “fecal incontinence, mobility impairment, [and] depression.” To verify his disability, he attached a May 23, 2008 medical order, which states that “due to fecal incontinence” Davis “may have housing accommodation per institution protocol/single cell,” with follow-up in 60 days. Davis wrote that he saw a doctor at PVSP on June 26, 2008 and “requested a chrono issue for my single cell status,” but a written memo had been sent stating the request was denied. Davis asserted the medical “order must be complied with because you would subject me to serious physical harm or death if I am housed with any inmate due to discrimination of my physical handicap of fecal incontinence within the meaning of CCR Title 15 3004(c).” When asked on the form what specific medication or accommodation he requested, Davis wrote, “I want the doctor to issue my chrono for single cell status since I am already on single cell status by ICC order from the sending institution. This would be in tandem with the May 23, 2008 order in my medical file. I also want the doctor who has me scheduled to see him again in two weeks to certify the medical chrono under Penal Code section 2653 to prevent oppression within the meaning of P.C. 147 and CCR Title 15 3004(c).”
The form 1824 was screened at the informal level and another Department form, “CDC Form 695,” completed. On that form was written: “[T]he enclosed documents are being returned to you for the following reasons: [¶] This is a non ADA [Americans with Disabilities Act] issue. Submit CDC 7362 to medical to address chrono regarding single cell status. In the future, when submitting any appeal, always sign and date form.”
On July 7, 2008, Davis returned the form 1824 to the office of the appeals coordinator, writing in response to the rejection that the appeal had been screened in error since he had “already seen the doctor by putting in a 7362 form on this issue,” and was now “exercising my right under the ADA and Rehabilitation Act to appeal the denial of my doctor’s orders to CDC that I’ll be accommodated with a single cell.” Davis stated that refusal to process the appeal would directly interfere with his due process rights and therefore, a log number should be assigned and the request processed. On July 9, 2008, respondents again returned the form 1824 unprocessed, writing on the form 695 this was the “2nd and final notice.”
On July 11, 2008, a PVSP doctor signed a form entitled “Comprehensive Accommodation Chrono,” which states that “[a] physician shall complete this form if an inmate requires an accommodation due to a medical condition.” The words “Single Cell” are circled on the form, beside which is written “6 mo.” At the bottom of the form the word “Denied” is circled, with the date July 22, 2008, written nearby.
On October 16, 2008, Davis filed a petition for writ of mandate with the trial court. The petition alleged that respondents “sought to prevent the processing of the appeal by using a legal process, the screening apparatus, for an illegal purpose: a de facto policy, used to frustrate, hinder, delay, or prevent subject matter content from reaching appellate review. This sub rosa policy was the catalyst they used to prevent them from performing their affirmative duty as set forth in CCR Title 15 sections 3084.1(a) and 3085, respectively.” Davis declared he had no adequate remedy at law and respondents were under an affirmative and ministerial duty to process his appeal. The trial court partially granted Davis’s application for waiver of his court fees and costs, ordered him to pay the $320 filing fee for the petition in monthly payments from his inmate account, but waived all other fees and costs.
The trial court held a hearing on the petition for writ of mandate on January 30, 2009, at which Davis appeared. Despite having been served with the petition, respondents did not file an answer or opposition, neither did they appear at the hearing. The trial court took the matter under advisement. On February 17, 2009, the trial court issued a judgment denying the petition for writ of mandate, which stated that Davis had failed to prove: (1) “that he has a ‘disability’ as defined by 42 U.S.C.S. § 12102(2)”; and (2) that respondents failed to proceed in the manner required by law.
On our own motion, we augment the record on appeal with the “Judgment Denying Preemptory Writ of Mandamus,” filed in the trial court on February 17, 2009, which was omitted from the clerk’s transcript, a copy of which Davis attached to his opening brief. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We note that respondents cited to the judgment in their brief without objection.
On February 19, 2009, Davis submitted a request for entry of default, which the trial court refused to enter because the writ of mandate was denied. Davis subsequently filed an ex parte motion to set aside the February 17, 2009 order, in which he asserted he had submitted proof of his disability, he did not have the burden of proof on that issue, and respondents were required by statute and regulation to process his appeal. Davis also sought to rescind the order directing him to pay the filing fee for the petition for writ of mandate. Respondents filed a demurrer to the petition for writ of mandate on the grounds that Davis had a plain, speedy and adequate alternative remedy, namely filing a complaint with the appeals coordinator, and failed to exhaust his administrative remedies, as he never appealed the denial of an inmate appeal he submitted on July 23, 2008 contesting his double cell assignment. In response, Davis filed a motion to strike the demurrer.
The trial court issued a written order denying Davis’s ex parte request to reconsider the judgment denying the petition for writ of mandate and the order for court costs. The trial court explained that after reviewing Davis’s moving papers and attachments, it found no legal basis to modify its previous order or judgment. The trial court vacated the hearings that had been set on the ex parte motion and the demurrer, as the issue was moot based on the February 17, 2009 judgment.
DISCUSSION
The trial court denied the petition on the merits because Davis failed to establish one of the conditions for relief, namely respondents’ failure to proceed in the manner required by law, and also failed to prove he was disabled within the meaning of 42 United States Code section 12102. In a handwritten opening brief, Davis contends both aspects of the trial court’s order were in error. We conclude the first ground is decisive of this appeal.
Pursuant to Code of Civil Procedure section 1085, “[a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an officer, trust, or station....” The substantive requirements for issuance of the writ are (1) a clear, present and usually ministerial duty of the defendant to do an act which the law specifically enjoins, and (2) a substantial beneficial interest of the plaintiff in the performance of that duty. (Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, 203; Thorning v. Hollister School Dist. (1992) 11 Cal.App.4th 1598, 1603 (Thorning).) In addition, “[m]andamus is an appropriate remedy to compel the exercise of discretion by a government officer, but does not lie to control the exercise of discretion unless under the facts, discretion can be exercised in only one way.” (Pacific Bell v. California State & Consumer Services Agency (1990) 225 Cal.App.3d 107, 118.)
As a threshold matter, we address Davis’s contention that he was entitled to have the petition granted because respondents failed to respond in writing or appear at the January 2009 hearing on the petition. This contention is incorrect because a petition for writ of mandate may not be granted by default; instead, the court must hear the case whether or not the adverse party appears. (Code Civ. Proc., § 1088.) The case Davis relies on, Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, is inapplicable here, as it involved a default judgment taken after the defendant failed to respond to the complaint, not after failing to respond to a petition for writ of mandate.
Thus, pursuant to Code of Civil Procedure section 1088, the trial court was required to decide the petition’s merits. As Davis sought to have his form 1824 processed, the issue here is whether respondents were required to do so. On this question, several provisions of the regulations applicable to prisons are relevant. Regulations promulgated by the Department provide inmates who wish to appeal any departmental decision, action, condition or policy adversely affecting the inmate’s welfare with an administrative appeal process which generally consists of four levels of review: an informal review followed successively by three formal reviews. (Wright v. State of California (2004) 122 Cal.App.4th 659, 666 (Wright); Pen. Code, § 5058; Cal. Code Regs., tit. 15, §§ 3084.1, subd. (a), 3084.5, subds. (a)-(e).)
Unless otherwise stated, all further statutory references are to the California Code of Regulations, title 15.
For most complaints, the inmate is required to use a Department form, form 602, to describe the problem and action requested. (§ 3084.2, subd. (a).) An exception to this requirement is for inmates whose requests or grievances are based on a disability as defined in 42 United States Code section 12102; those inmates are required to use another Department form, form 1824, to explain the problem and action requested. (§§ 3084.2, subd. (a), 3085.)
42 United States Code section 12102(1) defines “disability” as follows: “The term ‘disability’ means, with respect to an individual-- [¶] (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; [¶] (B) a record of such an impairment; or [¶] (C) being regarded as having such an impairment (as described in paragraph (3)).”
As explained in section 3085, subdivision (a), “[i]f otherwise qualified or eligible, inmates or parolees with disabilities as defined in Title 42, U.S.C. section 12102 may request reasonable modification or accommodation to achieve access to a program, service, or activity offered by the facility, or may grieve an issue of alleged discrimination based on disability, by completing a CDC Form 1824.” The inmate is required to complete the front side of the form and forward it to the appeals coordinator’s office. The form “shall be screened in accordance with section 3084.3 screening criteria and, if it meets the initial screening criteria,” is logged into an appeals log with the status of a first level review. (§ 3085, subd. (a).) Pursuant to section 3084.3, subdivision (a), an appeals coordinator screens and categorizes each appeal for compliance with the regulations prior to acceptance. An appeal may be rejected for any of eight reasons listed in section 3084.3, subdivision (c), including “[t]he appeal is incomplete or necessary supporting documents are not attached.” (§ 3084.3, subd. (c)(5).) When rejecting an appeal, the appeals coordinator is required to complete an appeals screening form, Department form 695, explaining why the appeal is unacceptable and, if based on improper documentation, clearly instructing what further action the inmate must take to qualify the appeal for processing. (§ 3084.3, subd. (d).)
Here, Davis submitted form 1824, claiming he had a disability, fecal incontinence, that required him to have a single cell. Form 1824 specifically states that in processing the request, “it will be verified that the inmate/parolee has a disability which is covered under the Americans With Disabilities Act.” The appeals coordinator screened the appeal, as authorized by sections 3084.3, subdivision (a) and 3085, and rejected it, stating it involved a non-ADA issue, and directed Davis to submit a form to medical to address “chrono regarding single cell status.” Apparently the appeals coordinator determined the May 23, 2008 physician’s order attached to the form was insufficient to establish either his disability or his need for single cell status, and additional documentation was required. Davis resubmitted the form 1824, claiming he had already seen the doctor, but did not attach a “chrono regarding single cell status” or further documentation regarding his disability. The resubmission was rejected.
Since the appeals coordinator may reject an inmate’s appeal if it is incomplete or necessary supporting documents are not attached (§ 3084.3, subd. (c)(5)), respondents had the discretion to accept or reject Davis’s appeal if they determined further information was required. They did just that when they advised Davis to obtain a “chrono.” Davis has not shown that a “chrono” was not a necessary supporting document to his appeal. Accordingly, mandamus cannot be used to direct respondents to accept Davis’s appeal because mandamus “‘does not lie to control the exercise of discretion unless under the facts, discretion can be exercised in only one way.’” (Thorning, supra, 11 Cal.App.4th at p. 1603.) Although Davis obtained a “chrono” after his form 1824 was rejected the second time, he did not allege in the petition that he presented the chrono to respondents with the form 1824. Moreover, it appears from the face of the “chrono” that the request for accommodation was denied. Therefore Davis apparently received what he has asked for by this petition, i.e. his request for a single cell was processed. Since there was no showing respondents abused their discretion in refusing to process the form 1824, the trial court could not properly direct respondents to accept Davis’s appeal.
Davis asserts the Department must follow its own rules for processing inmate appeals and a petition for writ of mandate is the appropriate method to compel respondents to process his appeal, citing Wright, supra, 122 Cal.App.4th 659, in which that court noted the remedy for an unreasonable delay in reviewing inmate complaints is a writ of mandate ordering the Department to perform its duty by completing the review. (Id. at p. 667.) While we don’t disagree with Davis on these points, he simply has failed to show that respondents failed to follow the rules for processing inmate appeals or that they had a clear, present and ministerial duty to process his form 1824. (See Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, abrogated by statute on other grounds as recognized in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employee Relations Bd. (2005) 35 Cal.4th 1072, 1077; Cotton Club v. State Bd. of Equalization (1934) 139 Cal.App. 655, 657 [petition must affirmatively demonstrate existence of mandatory duty].) Since he has not shown he was entitled to a writ of mandate compelling processing of his form, the trial court properly denied the writ petition.
It is unnecessary to reach Davis’s argument that the trial court erred in denying the petition on the ground that he failed to prove he was disabled.
As the trial court did not err in denying the petition, Davis’s request that respondents bear the costs of the writ proceeding and his contention that he is entitled to a declaratory judgment requiring processing of his inmate appeal also fail.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.
42 United States Code section 12102(2) defines “major life activities” as: “(A) In general [¶] For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. [¶] (B) Major bodily functions [¶] For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”