In re Alve
Filed 5/17/06 In re Alve CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ALEJANDRO ALVE on Habeas Corpus. | D046858 (Super. Ct. No. EHC00572) |
APPEAL from an order of the Superior Court of Imperial County, Raymond A. Cota, Judge. Affirmed in part; reversed in part.
This is an appeal from an order granting a prisoner's petition for a writ of habeas corpus. It is related to the circumstances set forth in another appeal, In re Alve (D046857) (Alve I). In Alve I we affirmed the trial court's finding petitioner Alejandro Alve had been denied his procedural rights in a prison disciplinary hearing. However, we reversed in part because instead of permitting the warden where Alve is incarcerated to conduct a new hearing, the trial court ordered that any record of the discipline be expunged and that all of Alve's rights be restored.
Here we reach a somewhat similar result with respect to a second disciplinary finding made against Alve. Shortly after the first disciplinary finding, Alve was assigned to kitchen duty. Because Alve believed the reassignment was unlawful, he refused to perform the kitchen work and a further disciplinary charge was made against him and sustained at a disciplinary hearing. Alve then attempted to pursue an administrative appeal. The record supports the trial court's apparent finding that Alve's administrative appeal was not properly processed and its order that Alve be given an opportunity to appeal the work assignment. However, the defects in the appeal process do not warrant the court's further order directing that the disciplinary finding be set aside, that sanctions be set aside and that findings of guilt be deleted from Alve's file. Accordingly, we affirm the trial court's order insofar as it provides Alve with an administrative appeal, but reverse insofar as it determines the validity of the disciplinary findings.
SUMMARY
As set forth in Alve I, Alve was initially disciplined for his alleged refusal to submit to strip searches incident to his employment in a Prison Industries Authority (PIA) vocational eyewear work training program. Following that discipline, Alve was reassigned to a kitchen job which he refused to perform. Alve's refusal to perform kitchen work led to the disciplinary report which is the subject of this appeal. At the disciplinary hearing, Alve argued the work reassignment was unlawful and represented further retaliation for his challenge to the strip search procedure. The hearing officer found Alve failed to report to his work assignment and imposed sanctions on him.
Alve filed an administrative appeal of the disciplinary finding. He argued his reassignment to kitchen work was unlawful and retaliatory. The appeal was returned to Alve by the prison's appeals coordinator because Alve attached to his appeal a statement which exceeded one page, front and back, and because his appeal did not separate his challenge to the work reassignment from his challenge to the discipline imposed. Alve responded to the appeals coordinator's comments by refiling his appeal and attaching a statement in support of the appeal which was on one page, front and back, and which set forth the same arguments Alve made in his initial appeal. On the face of the second appeal, Alve also included a statement in which he argued in fairly harsh terms that the one-page limit did not apply to his appeal.
Alve's second appeal was returned to him by the appeals coordinator on the grounds that it constituted an abuse of the appeals process. Alve responded to the appeals coordinator by advising her that he had in fact complied with the one-page limit. Once again the appeals coordinator advised Alve that his attachment was too long. Once again Alve pointed out that he had reduced his appeal to one page. In response, the appeals coordinator advised Alve that his appeal was " screened out" because it failed to " meet time constraints." Alve filed a petition for writ of habeas corpus in the trial court in which he named the warden of the prison as respondent and alleged that the appeals coordinator violated his rights in failing to process his administrative appeal and that she did so in order " to cover-up staff's malfeasance." Alve alleged that in failing to process his administrative appeal, the appeals coordinator interfered with his constitutional right to seek redress in the court system. The trial court issued an order to show cause why the relief Alve requested should not be granted (OSC). The warden requested and was given an extension of time in which to file a response to the OSC. The warden filed a second request for an extension of time which the trial court denied. No timely return was filed.
The trial court then issued an order granting Alve's petition. The order stated:
" This Court orders Respondent's findings of guilt of having refused to report to work assignment be set aside . . . and delete the prior finding of guilt from Petitioner's central file.
" Any credits for time to be restored, and additional credits to the present time to be awarded, consistent with any time credits Petitioner would have likely received but for the [disciplinary findings]. All other privileges lost as a result of the [disciplinary findings] are ordered restored.
" Further, Respondent is ordered to provide Petitioner with an opportunity to appeal the issue of his reassignment from clerk/teacher's aide to kitchen clerk. Petitioner is to be noticed once again with the file normal time limitations to any appeal on this issue."
The warden filed a timely notice of appeal.
DISCUSSION
I
As Alve points out, the failure of the warden to file a timely return permitted the trial court to accept as true all undisputed facts alleged in the petition and decide the merits of the case accordingly. (In re Serrano (1995) 10 Cal. 4th 447, 455.) However, the trial court was not required to accept those allegations as true; it could, if it did not accept Alve's factual allegations, order further proceedings. (See In re Serrano, supra, 10 Cal.4th at pp. 447-448.)
II
Alve's right to appeal from the decision to assign him to kitchen duty as well as the disciplinary findings is set forth in California Code of Regulations, title 15, section 3084.1, subdivision (a): " Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare. The decisions of the Departmental Review Board which serve as the director's level decision, are not appealable and conclude the inmate's or parolee's departmental administrative remedy pursuant to section 3376.1." (See also § 2932, subd. (a).)
Our review of the record demonstrates that in fact Alve complied with the principal defect the appeals coordinator identified, the requirement that he attach no more than one page to his appeal. The appeals coordinator's repeated rejection of the appeal is difficult to understand, unless she was objecting to the fact that in resubmitting his appeal Alve attached it to a new appeals form. In any event, given the limited record presented in the trial court, the trial court could have reasonably concluded that the appeals coordinator did not properly process Alve's administrative appeal, either because Alve met the procedural requirements or because the appeals coordinator failed to properly advise Alve about the nature of the defects in his resubmittals.
Because Alve was required to prosecute the appeal before he could seek redress in the trial court (see Cal. Code Regs., tit. 15, § 3084.4, subd. (a)), the appeals coordinator's rejection of his administrative appeal was an unlawful barrier to his constitutionally protected right to such redress. (See Lewis v. Casey (1996) 518 U.S. 343, 349-351; Bounds v. Smith (1977) 430 U.S. 817, 821.) As the warden points out, the trial court could have treated this defect as a waiver of the exhaustion requirement and reached the merits of Alve's two related substantive contentions: (1) that his transfer to kitchen duty was retaliatory[1] and (2) the order to report to kitchen duty was therefore unlawful. However, it is clear from the record the trial court did not reach the merits of either one of Alve's substantive contentions.
Rather than reaching the merits of Alve's contention that his work transfer was retaliatory, the trial court instead directed that Alve be given the right to an administrative appeal from that order. Although the trial court could have reached the substantive merits of Alve's contentions by treating the appeal coordinator's conduct as a waiver of the exhaustion requirement, we have found no authority which prevents a trial court from instead remedying an interference with administrative rights by ordering that those rights be provided and once those rights have been exhausted, reaching the merits of a petitioner's claim. In this regard, we note the trial court could not reject Alve's underlying allegations of retaliation in the absence of a full evidentiary hearing. (See In re Serrano, supra, 10 Cal.4th at pp. 447-448.) Thus the trial court's decision to instead simply afford Alve his administrative appeal rights in no manner prejudiced the warden.
Because the record is clear the trial court did not reach the merits of Alve's contention that the work transfer was retaliatory, the trial court could not have reached Alve's closely related argument that he had the right to disobey the order that he perform kitchen work. Until Alve has established the relatiatory or unlawful nature of the transfer, he has no grounds upon which to attack the disciplinary finding.[2] Thus there are no valid grounds upon which the trial could have set aside the prison's disciplinary findings and sanctions.
In sum then the trial court could, in the exercise of its discretion, order that Alve be given his right to an administrative appeal. However, having done so, it could make no further final disposition of his rights.
The trial court's order granting a writ is affirmed insofar as it directs the warden to provide Alve with an administrative appeal from the work transfer; however, the trial court's order is reversed insofar as it directs that the disciplinary findings be set aside, petitioner's records be expunged and sanctions be vacated. On remand, and following the administrative appeal, the trial court may consider the validity of the administrative findings.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McINTYRE, J.
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[1] Alve also contends that the transfer violated California Code of Regulations, title 15, sections 3040, subdivision (e), and 3045.3, subdivision (b)(14), and (2) the order to report to kitchen duty was therefore unlawful.
[2] We do not necessarily accept the notion that any defect in the work transfer would provide justification for disobeying the order to work in the kitchen. The parties have not briefed this issue in this court and we need not reach it on this appeal
