Hysell v. Pleasant Valley State Prison



















Filed 4/8/13
Hysell v. Pleasant Valley State Prison 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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


>

DOUGLAS WILLIAM HYSELL, Plaintiff and Appellant, v. PLEASANT VALLEY STATE PRISON et al., Defendants and Respondents.

F064932 (Super. Ct. No. 11CECG01955) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Debra J. Kazanjian,
Judge.

Douglas
William Hysell, in pro. per., for Plaintiff and Appellant.

Kamala D.
Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General,
Jessica N. Blonien and Amy Daniel, Deputy Attorneys General, for Defendants and
Respondents.

-ooOoo-

Appellant, Douglas William Hysell, an inmate at Pleasant
Valley State Prison (Pleasant Valley), filed a petition for writ of mandate naming
the Pleasant Valley warden and various Pleasant Valley staff members as
respondents. Appellant alleged that
respondents had a mandatory duty to
deliver packages from approved vendors within 15 days of their arrival and that
he had not been receiving his packages within that time limit. In support of his position, appellant set
forth various examples of his having received a package late. Appellant further alleged that respondents
had improperly rejected the administrative appeals that he had filed regarding
his packages. Appellant requested the
trial court to order respondents to:
timely deliver vendor packages; not retaliate against inmates by
withholding packages; and properly file and process appeals.

Respondents
demurred to the petition. Respondents
argued that appellant had failed to exhaust his href="http://www.mcmillanlaw.com/">administrative remedies in that he did
not correct and resubmit the rejected appeals.
Respondents further asserted that appellant failed to state a claim for
relief because he had not presented an actual case or controversy for
resolution. Rather, appellant was
seeking an advance order for anticipatory claims.

The trial
court sustained the demurrer without leave to amend. The court found that appellant had failed to
allege sufficient facts to constitute a viable writ of mandate because he was
only seeking to compel respondents to perform future acts. Appellant had failed to show that respondents
were currently over the 15 day time limit to deliver a package to him. The court further found that appellant was
not seeking the court to order respondents to properly process any current
appeal but, rather, was seeking an order pertaining to appellant’s future administrative
appeals.

Appellant
contends the trial court erred because he demonstrated a practice and pattern
of withholding packages. According to
appellant, this pattern will continue unless the court intervenes. Appellant further argues that he has a right
to submit administrative appeals and that an appeal should not be rejected
because a particular form was not attached.


The trial
court correctly sustained the demurrer.
Appellant has not shown that the respondents have a present duty to act. Mandate
does not lie to compel the performance of future acts. Therefore the judgment will be affirmed.

DISCUSSION

A party may
seek a writ of mandate to “compel the performance of an act which the law
specially enjoins, as a duty” or to compel “the use and enjoyment of a right …
from which the party is unlawfully precluded.”
(Code Civ. Proc., § 1085, subd. (a).) However, the petitioner must show that the
respondent has a present duty to
perform the act the petitioner seeks to compel.
Mandate will not lie to compel the performance of future acts. (Treber
v. Superior Court (1968) 68 Cal.2d 128, 134.) Accordingly, disputes that the parties
anticipate may arise but that do not presently exist will not support a mandate
claim. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th
531, 542.) The duty of the court is to
decide actual controversies by a judgment that can be carried into effect. The court does not give opinions on moot
questions or abstract propositions. (>In re Miranda (2011) 191 Cal.App.4th
757, 762.)

Here,
appellant’s petition did not seek the delivery of a specific package or
processing of a particular administrative appeal. Rather, appellant sought an order regarding
future package deliveries and future administrative appeals. Mandate will not issue to compel future acts
or correct future wrongs. Therefore, the
trial court properly sustained the demurrer.

Further,
appellant has not shown that respondents violated a duty. California Code of Regulations, title 15,
section 3134, subdivision (c)(4), provides

“Delivery by staff of packages, special purchases, and
all publications, shall be completed as soon as possible but not later than 15
calendar days, except during holiday seasons such as Christmas, Easter, and
Thanksgiving, and during lockdowns or modified programs of affected inmates.”

While the rules of construction provide that “shall” is
mandatory, and thus delivery “as soon as possible” is mandatory (Cal. Code
Regs., tit. 15, § 3000.5, subd. (c)), the 15 day limit is directory
only. Under section 3000.5, subdivision
(f), time limits do not create a right to have the specified action taken
within the time limits. “The time limits
are directory, and the failure to meet them does not preclude taking the
specified action beyond the time limits.”
(§ 3000.5, subd. (f).)
Accordingly, the fact that a delivery occurs more than 15 days after the
package was received does not in itself violate a duty.

DISPOSITION

The
judgment is affirmed. In the interests
of justice, no costs are awarded. (Cal.
Rules of Court, rule 8.278(a)(5).)