Davis v. Lopez








Filed 6/13/11 Davis v. Lopez CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

KENNETH C. DAVIS, Plaintiff and Appellant, v. RAUL LOPEZ, as Warden, etc., et al., Defendants and Respondents.

F059600 (Super. Ct. No. 09C0036) OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Kenneth C. Davis, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
-ooOoo-


This is an appeal from an order denying appellant's application for issuance of an order to show cause in a proceeding for writ of mandate. We vacate the order of the trial court.
FACTS AND PROCEDURAL HISTORY
On June 9, 2009, appellant Kenneth C. Davis, a prisoner at California State Prison, Corcoran, filed a petition for writ of mandate in Kings County Superior Court. Appellant alleged the prison received a package addressed to appellant containing food, toiletries, and other permissible personal property. However, appellant alleged, he was only permitted to receive such a package once each calendar quarter and the prison authorities determined that he was not eligible to receive a package when this one arrived. Accordingly, the authorities notified appellant that the package was being held for disposition. Appellant did not have sufficient funds in his prisoner account to pay for postage to return the package so, according to appellant, the package was either discarded or appropriated by a prison employee. Appellant asserted the package could have been returned to the sender without further postage simply by marking the package â€