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Haney v. Bondoc

California Court of Appeals, Fifth District
Mar 14, 2008
No. F053284 (Cal. Ct. App. Mar. 14, 2008)

Opinion


MONTE HANEY, Plaintiff and Appellant, v. J. BONDOC, et al., Defendants and Respondents. F053284 California Court of Appeal, Fifth District March 14, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 07C0257 Peter M. Schultz, Judge.

Monte Haney, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

OPINION

Gomes, J.

Appellant Monte Haney, an inmate at Corcoran State Prison, filed a petition for writ of mandate to compel (1) family nurse practitioner J. Bondoc (Bondoc) to prescribe certain medication to him as treatment for persistent pain in his right hand, (2) the prison’s appeals coordinators L. Cano, J. Jones, J. Buckley, V.J. Castillo, L. Camero, K. Pacheco and B. Sleeter (appeals coordinators) to process inmate appeals he submitted on February 12, 2007 and February 20, 2007, which he alleges the appeals respondents destroyed in order to keep the issues addressed in them from being reviewed, and (3) processing of a grievance he sent to Bondoc on March 21, 2007, which he alleges she destroyed to impede his access to the courts. Haney alleged in the petition that he performed all conditions precedent to the filing of the petition by first having exhausted his administrative remedies, as he brought his appeals to the attention of prison officials, but they “arbitrarily destroyed” them “in an attempt to impede my access to the courts.”

Without an appearance by the appeals coordinators or Bondoc, the trial court summarily denied the petition without prejudice on two grounds: (1) Haney failed to state a prima facie case for relief regarding his lack of medical treatment because the courts will not second guess the adequacy of a particular course of treatment based upon allegations of mere negligence, mistake or difference of opinion, and (2) Haney was unable to demonstrate he exhausted all plain, adequate and speedy remedies with respect to the unprocessed appeals as he did not allege or demonstrate an attempt to submit the unanswered appeals for further formal level review before filing the petition. Haney filed a timely notice of appeal.

In a handwritten opening brief, Haney challenges only the denial of his petition with respect to the unprocessed appeals he submitted for first level review on February 12 and 20, 2007. Haney asserts he exhausted his administrative remedies with respect to these appeals when the appeals respondents refused to process, and ultimately destroyed, the appeals. As we shall explain, we will reverse the order with respect to the unprocessed appeals.

After submitting his opening brief, Haney submitted a letter requesting that we dismiss Bondoc and the appeal proceed with respect to the appeals coordinators to compel them to complete the administrative review of his February 12 and 20, 2007, appeals.

No respondents’ brief was filed in this matter. Accordingly, we decide the appeal based on the record, the opening brief and Haney’s oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)

DISCUSSION

An applicant for writ of mandate must show that his right to writ relief is clear and certain. The remedy of mandamus is not a matter of right but is awarded in the exercise of sound judicial discretion. (Berry v. Coronado Board of Education (1965) 238 Cal.App.2d 391, 397.) A court may deny a petition for writ of mandate “out of hand” when it appears from the petition’s face that a peremptory writ will not be issued. The court may do so even though the defendant has not appeared by answer or demurrer. (Kingston v. Department of Motor Vehicles (1969) 271 Cal.App.2d 549, 552 (Kingston); see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1269 (dis. opn. of Kennard, J.).) The court’s decision to summarily deny a petition is reviewed for abuse of discretion. (Kingston, supra, 271 Cal.App.2d at p. 552.)

Haney sought traditional mandamus under Code of Civil Procedure section 1085. There are two requirements for issuance of a writ of mandate under this section: (1) the petitioner has a clear, present, and beneficial right to performance of a duty; and (2) the respondent has a clear, present, and usually ministerial duty to act. (Monterey Mechanical Co. v. Sacramento Regional County Sanitation Dist. (1996) 44 Cal.App.4th 1391, 1414.) In addition, 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.) The party seeking a writ of mandate must plead facts that establish what relief is desired, the grounds for relief, and that the party meets the requirements for obtaining a writ. A memorandum of points and authorities and all exhibits necessary for the reviewing court to make its determination must be filed with the petition. (Cal. Civil Writ Practice (Cont.Ed.Bar 2004 Supp.) § 7.1, p. 236.)

Here, the trial court found that Haney did not plead facts establishing he exhausted his administrative remedies before filing the petition for writ of mandate. Haney asserts he exhausted his administrative remedies because the prison’s appeals coordinators refused to process, and ultimately destroyed, his appeals, leaving him with no further available remedies.

As a general rule, under both federal and state law a prisoner must exhaust available administrative remedies before seeking judicial relief. The United States Supreme Court has declared that exhaustion of administrative remedies is mandatory before a prisoner may seek judicial relief (Booth v. Churner (2001) 532 U.S. 731, 733-734), or bring any suit challenging prison conditions. (Woodford v. Ngo (2006) 548 U.S. 81, ___ [126 S.Ct. 2378, 2382-2383]; see Jones v. Bock (2007) ___ U.S. ___ [127 S.Ct. 910, 918-919].) In California, “‘“exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts[,]”’” including “‘“grievances lodged by prisoners.”’” (Wright v. State of California (2004) 122 Cal.App.4th 659, 665 (Wright), citing Rojo v. Kliger (1990) 52 Cal.3d 65, 84-85 and In re Dexter (1979) 25 Cal.3d 921, 925.) “The exhaustion of administrative remedies requirement furthers several important societal and governmental interests. These include bolstering administrative autonomy, mitigating damages, giving agencies opportunity to make factual findings, encouraging settlement, filtering out frivolous claims, fostering better prepared litigation, and promoting judicial economy. [Citations.] In addition, the requirement ensures ‘the use of administrative agency expertise and capability to order and monitor corrective measures.’” (Wright, supra, 122 Cal.App.4th at p. 666.)

“It is also true, however, that ‘the doctrine of exhaustion of administrative remedies has not hardened into inflexible dogma. [Citation.] It contains its own exceptions, as when the subject matter of the controversy lies outside the administrative agency’s jurisdiction [citation], when pursuit of an administrative remedy would result in irreparable harm [citations], when the administrative agency cannot grant an adequate remedy [citations], and when the aggrieved party can positively state what the administrative agency’s decision in his particular case would be.’” (In re Hudson (2006) 143 Cal.App.4th 1, 7 (Hudson).)

California state law, as stated in regulations promulgated by the Department of Corrections and Rehabilitation, provides prisoners who wish to appeal any departmental decision, action, condition or policy adversely affecting the prisoners’ welfare with an administrative appeal process which generally consists of four levels of review: an informal review followed successively by three formal reviews. (Wright, supra, 122 Cal.App.4th at p. 666; Pen.Code, § 5058; Cal.Code Regs., tit. 15, §§ 3084.1, subd. (a), 3084.5, subds. (a)-(e).) The prisoner must use a Department form, form 602, to describe the problem and action requested. (Cal.Code Regs., tit. 15, § 3084.2, subd. (a).) At the informal level of review, a prisoner must first attempt to informally resolve the problem with the “staff [member] involved in the action or decision” unless an exception applies that requires waiver of the informal level. (Cal.Code Regs., tit. 15, §§ 3084.2, subd. (b), 3084.5, subds. (a)(1), (3).) Exceptions to informal review include “[a]lleged misconduct by a departmental peace officer.” (Cal.Code Regs., tit. 15, § 3084.5, subd. (a)(3)(G).) Staff must respond to and return a response within 10 working days. (Id. § 3084.6, subd. (b)(1).)

If the prisoner is not satisfied or informal review is waived, the prisoner may pursue the three formal levels of review. (Cal.Code Regs., tit. 15, § 3084.5, subds. (a)-(d).) First, the prisoner submits the form 602 to the institution’s appeals coordinator, who has 30 working days to complete a response. (Id. §§ 3084.5, subd. (b), 3084.6, subd. (b)(2).) If the appeal is denied at the first level or first level review is waived by the regulations, the prisoner must submit to the appeals coordinator a formal appeal for a second level review conducted by the institution head or designee, which must be completed within 20 working days or, if first level review is waived, 30 working days. (Id. §§ 3084.2, subd. (c), 3084.5, subds. (c) & (e)(1), 3084.6, subd. (b)(3).) If an appeal is “not resolved” at the second level, the prisoner must obtain a third level review by the Department’s director or the director’s designee, which constitutes “the director’s decision on an appeal” and must be completed within 60 working days. (Id. § 3084.5, subds. (d), (e)(2), 3084.6, subd. (b)(4).) With the exception of the third formal level of review, if an exceptional delay prevents the Department from completing a level of review within the specified time limits, the Department must notify the inmate in writing of the reasons for the delay and the estimated completion date. (Id. § 3084.6, subd. (c).) “At each level of review not waived, the original appeal shall be returned to the appellant with a written response stating the appeal issue and reasons for the decision.” (Id. § 3084.5, subd. (g).) In order to utilize the procedure, a prisoner “must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision.” (Id. § 3084.6, subd. (c).)

While the regulations specify how the next level of review is to be reached if the prisoner receives an unacceptable lower level appeal decision, they do not specify what a prisoner is required to do in the event a level of review is never performed. This lack of specificity was noted in the recent decision of Hudson, supra, 143 Cal.App.4th 1. In that case, the trial court granted the prisoner’s habeas corpus petition and invalidated a special condition of the prisoner’s parole. On appeal, the Department argued the petition should not have been heard because the prisoner failed to exhaust his administrative remedies. (Id. at p. 4.) While the prisoner had filed an administrative appeal form complaining of his parole conditions, which according to the regulations governing such complaints goes directly to the second level of review, he received no response within the 30 day deadline for completion of the review and a little over two months after initially filing his appeal form, filed a petition for writ of habeas corpus in the superior court. (Id. at pp. 5-6, 7-8.)

After stating the review process for parole condition complaints and that pursuant to California Code of Regulations, title 15, § 3084.6, subdivision (c), an inmate or parolee is required to submit an appeal to the third level of review within 15 working days “‘of receiving an unacceptable lower level appeal decision,’” the appellate court noted “[t]he regulations do not specify how the third level of review is reached in the event that the second level of review is never undertaken.” (Hudson, supra, 143 Cal.App.4th at p. 8.) Since the regulations do not specify the procedures a parolee is to follow in the event of inaction on a second level review and the second level of review was never undertaken, the court concluded the prisoner had exhausted his administrative remedies. (Ibid.)

Here, accepting the truth of the allegations in Haney’s petition, Haney submitted two 602 forms to the appeals coordinators for first level review on February 12 and 20, 2007, complaining of two separate matters, but the forms were never processed and were destroyed. Haney further alleges he was not required to pursue the informal level of review because a specific exception applied, namely misconduct by a departmental peace officer. Haney filed the petition for writ of mandate with the superior court on May 31, 2007, well past the 30 day deadline for processing his appeals. Although Haney did not allege or show that he resubmitted the 602 forms to the appeals coordinators so they could forward them to the appropriate parties for second and third level reviews, as the court pointed out in Hudson,the regulations do not specify what procedures a prisoner is to follow in the event of Department inaction; they instead require the prisoner to submit the appeal within 15 working days “of receiving an unacceptable lower level appeal decision.” (Cal.Code Regs., tit. 15, § 3084.6, subd. (c).) Haney alleges he never received a lower level appeal decision.

Following Hudson, we conclude that, assuming the truth of Haney’s allegations, Haney exhausted his administrative remedies, as the regulations fail to specify the procedure a prisoner is to follow in the event of Department inaction on any level of review. We note that Haney is not seeking by his petition review of the merits of his complaints; instead, he seeks to compel the Department to perform its duty to process and review his complaints. A writ of mandate ordering the Department to perform such a duty is the precise remedy for an unreasonable delay in processing prisoner complaints. (See Wright, supra, 122 Cal.App.4th at p. 667 [“The remedy for unreasonable delay [in reviewing prisoner complaints] is not a suit for damages, but a writ of mandate ordering the Department to perform its duty by completing the review.”].)

Accordingly, we conclude the trial court abused its discretion in summarily rejecting Haney’s petition only with respect to the unprocessed appeals. We emphasize that we have evaluated this issue only in light of what was before the trial court, namely Haney’s petition for writ of mandate and the accompanying points and authorities and exhibits, and based on well-accepted liberal rules of pleading, conclude Haney has asserted sufficient facts which, if true, show he exhausted the administrative remedies available to him.

DISPOSITION

The order summarily denying the petition for writ of mandate is reversed only with respect to petitioner’s claims regarding the failure to process his February 12 and 20, 2007, complaints. The matter is remanded for further proceedings consistent with this opinion.

WE CONCUR: Vartabedian, Acting P.J., Kane, J.


Summaries of

Haney v. Bondoc

California Court of Appeals, Fifth District
Mar 14, 2008
No. F053284 (Cal. Ct. App. Mar. 14, 2008)
Case details for

Haney v. Bondoc

Case Details

Full title:MONTE HANEY, Plaintiff and Appellant, v. J. BONDOC, et al., Defendants and…

Court:California Court of Appeals, Fifth District

Date published: Mar 14, 2008

Citations

No. F053284 (Cal. Ct. App. Mar. 14, 2008)