Filed 4/16/18 Padilla v. Sherman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RAMON PADILLA,

Plaintiff and Appellant,

v.

STU SHERMAN,

Defendant and Respondent.

F074611

(Super. Ct. No. 16C0313)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Kings County. James LaPorte, Judge.
Ramon Padilla, in pro per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
Appellant, Ramon Padilla, an inmate at the California Substance Abuse Treatment Facility and State Prison at Corcoran (CSAT), filed a petition for writ of mandate seeking an order directing CSAT personnel to process his inmate appeal. The trial court summarily denied the petition. The court concluded it did not have jurisdiction to rule on the petition because appellant had not exhausted his administrative remedies.
The trial court did have jurisdiction over the claims stated in appellant’s petition. Accordingly, the order denying the petition is reversed.
BACKGROUND
Appellant was found guilty of a rules violation and filed an administrative appeal. After the appeal was rejected at the second level, appellant submitted it to the Office of Appeals for a third level review.
The Office of Appeals returned the appeal to the second level for further action. The Office of Appeals instructed the second level to examine all paperwork with correction tape or fluid to determine if it had been altered. If not altered, the second level was to stamp the paperwork “Treat as Original” and return it to appellant for resubmission to the third level.
In his petition, appellant alleged that the second level refused to follow the third level’s instructions and thus appellant cannot exhaust his administrative remedies.
The trial court summarily denied appellant’s petition sua sponte. The court noted that a prisoner must exhaust all available administrative remedies before seeking redress from the courts. The court concluded appellant had not demonstrated that he had exhausted his administrative remedies through the third level and thus the court did not have jurisdiction.
DISCUSSION
Personnel at correctional institutions have a ministerial duty to process inmate grievances. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 410.) The remedy for an alleged delay or refusal to complete the levels of review is a writ of mandate ordering the correctional institution to perform its duty by completing the review. (Id. at p. 411; Wright v. State of California (2004) 122 Cal.App.4th 659, 667 (Wright).)
Here, appellant alleges that the second level has refused to comply with the third level’s directions and thus the third level review cannot been completed. Appellant’s exhibits to the petition support this allegation. Thus, appellant alleged sufficient facts to state a claim for a writ of mandate to enforce a ministerial duty.
The trial court’s reliance on Wright to find it did not have jurisdiction is misplaced. In Wright, the lawsuit at issue was a medical malpractice complaint seeking damages for personal injuries that the prison inmate filed before exhausting his administrative remedies. (Wright, supra, 122 Cal.App.4th at p. 663.)
In contrast here, appellant is seeking to compel CSAT to complete the administrative review. As noted by the Wright court, the remedy in this situation is a writ of mandate ordering the institution to perform its duty. (Wright, supra, 122 Cal.App.4th at p. 667.)
DISPOSITION
The order denying appellant’s petition for writ of mandate is reversed. The matter is remanded for further proceedings. No costs on appeal are awarded.