Ward
Filed
7/20/12 Spencer v. Ward 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
EDWARD B. SPENCER,
Plaintiff and
Appellant,
v.
G.W. WARD, as Correctional
Officer, etc., et al.,
Defendants and
Respondents.
F063495
(Super.
Ct. No. 11C0162)
APPEAL from
an order of the Superior Court of
Edward B.
Spencer, in pro. per., for Plaintiff and Appellant.
No
appearance for Defendants and Respondents.
-ooOoo-
Edward B. Spencer is an inmate at
the California Substance Abuse Treatment Facility and State Prison. He filed a petition for writ of mandate in
the trial court seeking an order requiring prison staff to comply with various
regulations related to inmate complaints and appeals. The trial court denied the writ, concluding
that Spencer had failed to exhaust his administrative
remedies.
In his petition, Spencer alleged
that he was an inmate and that he submitted an appeal on January 9, 2011. He alleged that prison officials were
required to respond within 15 days. They
failed to do so. On January 27, 2011,
Spencer submitted a duplicate appeal.
On March 1, 2011, Spencer submitted
a request for interview to the appeals coordinator. Apparently, a correctional officer
interpreted this request as being related to a different appeal. Spencer then filed the writ of mandate in the
trial court. The trial court denied the
writ. Spencer appeals from the denial of
his writ of mandate.
DISCUSSION
Spencer does not allege his appeal
was improperly denied, but merely argues that prison officials failed to follow
proper procedures in responding to his complaint.
The procedures for handling inmate
appeals are set forth in California Code of Regulations, title 15, division 3,
chapter 1, article 8, commencing with section 3084.
process is intended to provide inmates with a remedy for grievances and to
provide an administrative process for reviewing departmental policies and
decisions. Subdivision (b) of section
3084.1 provides that all appeals are subject to a third level of review, and
the administrative process is not exhausted until that third level of review is
completed. Subdivision (f) of section
3084.1 limits inmates to one appeal every 14 days, unless the appeal is
accepted as an emergency appeal.
Appeals are required to be
submitted on California Department of
Corrections and Rehabilitation (the Department) form No. 602. (§ 3084.2.) First and second level appeals must be
submitted to the appeals coordinator at the institution. (Id.,
subd. (c).) If the inmate is
dissatisfied with the outcome of the second level appeal, he or she may submit
the appeal for a third level of review.
(Id., subd. (d).) The third level appeal must be mailed to the
third level appeals chief. (
Each institution is required to
designate a staff position as an appeals coordinator (§ 3084.5, subd.
(a)), and he or she is required to screen all appeals (Id., subd. (b)). An appeal
may be rejected or cancelled for specific reasons. (§ 3084.6.) With a few exceptions not pertinent here, appeals
are submitted and screened at the first level.
(§ 3084.7, subd. (a).) A
face-to-face interview is required. (
denied or not otherwise resolved to the inmate’s satisfaction at the first
level. (Id., subd. (b).) The
original appeal must be returned to the prisoner with a written response to the
issue and an explanation for the decision at both the first and second
levels. (Id., subd. (h).) Specific
time limits are established for filing and responding to inmate appeals. (§ 3084.8.)
The second level must be completed
before the inmate may proceed to the third level appeal. (§ 3084.7, subd. (b).) The third level of appeal is for appeals not
resolved to the inmate’s satisfaction at the second level. (Id.,
subd. (c).)
Prior to seeking a writ of mandate
from the trial court, the inmate is required to exhaust his administrative
remedies, i.e., he must pursue his appeal through the third level of
appeal. (Wright v. State of California (2004) 122 Cal.App.4th 659, 664-665 (
jurisdiction to hear a case where the administrative remedies have not been
exhausted. (Ibid.)
This was the rule applied by the
trial court here to deny Spencer’s petition.
This conclusion is supported by the record. Although difficult to discern, it appears
that Spencer filed his first level of review on January 9, 2011. He resubmitted it on January 27, 2011,
because he had not received a response.
According to the petition, Spencer had not received a response to the
first level of review when he filed his petition.
As explained in
excuse Wright’s failure to exhaust his available administrative remedies.… The remedy for an unreasonable delay is not a
suit for damages, but a writ of mandate ordering the Department to perform its
duty by completing the review.
[Citation.]” (
p. 667.)
Here, Spencer filed a petition for
a writ of mandate that would order the Department to comply with the
requirements of section 3048.8. However,
he has not alleged that he sought review at the second or third level or that
the time for completing these reviews had expired. Accordingly, he has not exhausted his
administrative remedy.
Spencer’s brief is as difficult to
understand as his petition. He
apparently has simply copied numerous portions of other briefs without
modification, making many of his arguments inapplicable.
He has alleged, however, that he
was not required to exhaust his administrative remedies. To support his argument, he cites four cases,
including Wright. We have reviewed Wright, and it provides no support for Spencer’s arguments. Spencer also cites Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, which also
fails to support his argument. The issue
in Brown was whether newly enacted
administrative appeal procedures complied with the petitioner’s right to due
process.
Spencer has not presented any
argument to explain why the procedure set forth in the regulations is
inadequate or violates his right to due
process. His not receiving a timely
response at the first level did not excuse him from proceeding to the second
level and, if no response was received, then to the third level. He simply chose to ignore these
requirements.
Spencer also cites
Triplett (1996) 48 Cal.App.4th 233.
This court concluded in Triplett
that in the circumstances presented in the case, which dealt with the
cancellation of a Williamson Act contract, no administrative remedies were
available to the plaintiff. Here,
unquestionably, Spencer had administrative remedies that he simply ignored.
Finally, Spencer cites
v. State Personnel Board (1995) 10 Cal.4th 1133, which addresses the issue
of remedies available to the plaintiff when the State Personnel Board (the
Board) fails to act within the time limits set by statute. The Supreme Court concluded the failure to
act in a timely manner did not deprive the Board of jurisdiction, but it did permit
the plaintiff to seek a writ of mandate compelling the Board to act by a
specific date or to seek a writ of mandate seeking to overturn the adverse
personnel decision.
This case does not aid Spencer
because the plaintiff did not have any other administrative remedy, while
Spencer retained the second and third levels of review before his
administrative remedy was exhausted.
DISPOSITION
The order is affirmed.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
KANE, J.
further references to sections are to California Code of Regulations, title 15,
unless otherwise indicated.
