Yocum v. Howard





















Filed 7/10/13
Yocum v. Howard 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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


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LESTER YOCUM, Plaintiff and Appellant, v. CORRECTIONAL OFFICER HOWARD et al., Defendants and Respondents.

F065716 (Super. Ct. No. 12C0139) >OPINION

THE COURThref="#_ftn1"
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APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County. Steven D. Barnes and Robert S. Burns, Judges.href="#_ftn2" name="_ftnref2" title="">^†

Lester
Yocum, in pro. per., for Plaintiff and Appellant.

No
appearance for Defendants and Respondents.

-ooOoo-





This is an
appeal by a state prisoner, in propria
persona, from orders denying his “Petition for Writ of Replevin (Claim and
Delivery)” and his motion for reconsideration of that denial. Plaintiff and appellant Lester Yocum contends
he adequately stated a claim for relief in his initial petition and that, in
any event, he cured any defects by submitting additional materials with the
petition for reconsideration. We
conclude the trial court properly evaluated the sufficiency of the
pleadings. Accordingly, we affirm the
judgment.

FACTS AND PROCEDURAL HISTORY

The
petition alleges appellant’s personal property was “illegally seized and
retained” by respondent Corrections Officer Howard. In supporting documents, it appears the
officer removed certain items from appellant’s locker in September 2011,
believing them to be contraband devices to recharge cell phones. (Appellant acknowledges in these documents
that the items were not unlawfully seized.)
After prison officials conducted an initial investigation, an officer told
appellant the items would be returned to him at the completion of the formal
investigative process, and they have not yet been returned. According to the supplemental documents,
appellant filed various administrative appeals, all of which eventually were
dismissed or “cancelled” as untimely.

Appellant
filed his petition on February 28, 2012.
By order of June 25, 2012, the court determined, pursuant to the
authority of Escamilla v. Department of
Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 509, that
appellant’s petition for writ relief was appropriately characterized as a
petition for writ of mandamus. Because
the petition did not allege defendant had fully exhausted his administrative
appeals seeking return of the property, the court determined the petition
failed to state grounds for mandamus relief.
Appellant timely submitted additional materials with his “Notice of
Motion in Opposition of Order – Summarily Denied Petition of Replevin.” Those materials sought to demonstrate that
appellant had exhausted his administrative remedies. The court treated the motion as one for
reconsideration arising under Code of Civil Procedure section 1008 (“section
1008”) and denied the motion for two alternate reasons. First, the materials seeking to establish
exhaustion of remedies were not submitted by affidavit, as required by section
1008, subdivision (a). Second, the
materials clearly showed that appellant had failed to timely exhaust his
administrative remedies, since each of his efforts had resulted in a
cancellation of the administrative appeal for untimeliness.href="#_ftn3" name="_ftnref3" title="">^[1]

DISCUSSION

There are
two separate issues involved in this appeal.
These issues are, first, the right to possess non-contraband property in
prison, and second, the right to a fair procedure to challenge the seizure of
such property. Appellant has failed to
distinguish between those issues and, as a result, views the proceedings as
depriving him of his constitutional right to due process. The first issue is the one that originally brought
appellant to court, namely, his contention that his belongings should be
returned to him. The second issue is
whether he has complied with the requirements for administrative review of the
prison’s seizure of his property. The
first issue was properly the subject of the original petition, which failed for
reasons we will briefly explain. The
second issue could have been, but was
not, the subject of a separate writ petition; however, that second issue was
not properly presented by the motion for
reconsideration, as we will also briefly explain.

If a
petitioner contends an administrative agency, in this case the prison
authorities, made a mistake in ruling against the person in an administrative
proceeding, the person can obtain court review of the administrative decision
by filing a petition for writ of administrative mandate under Code of Civil
Procedure section 1094.5 or by ordinary mandamus. (See Escamilla
v. Department of Corrections & Rehabilitation, supra, 141 Cal.App.4th
at p. 509 [mandamus].) The issue in such
a writ proceeding is whether the agency “has proceeded without, or in excess of
jurisdiction; whether there was a fair trial; and whether there was any prejudicial
abuse of discretion. Abuse of discretion
is established if the respondent has not proceeded in the manner required by
law, the order or decision is not supported by the findings, or the findings
are not supported by the evidence.”
(Code Civ. Proc., § 1094.5, subd. (b).)

In this case, appellant’s petition
contended, in effect, that prison officials had made a determination they would
not return to appellant the property seized from him. Accordingly, appellant was required to
establish that the prison officials actually made a formal determination not to
return the property. In order to
establish that there was an official decision not to return appellant’s
property, appellant was required to plead the legal requirement of “exhaustion of administrative remedies”: He was required to plead that there has been
an unfavorable administrative decision by the highest level of decisionmaker
available in the agency, in order to show that court intervention is now
necessary to order restoration of appellant’s property. Accordingly, the trial court here correctly
concluded that appellant had failed to allege this necessary condition for
court intervention, namely, that appellant had sought return of the property
through a completed administrative hearing process.

Entirely
separate, from a legal standpoint, is the situation of a person who contends
the administrative agency would not let him or her have a full administrative
resolution of a complaint, even though the complaining party has tried to use
the available appeal process and has done what was requested in that
process. A petition for writ of
administrative mandate in this situation would not seek, for example, actual
return of the property, but would seek enforcement of the right to ask for the
property back in administrative proceedings.
Thus, an appellant in this situation might seek to challenge the
agency’s determination that the appellant did not file a hearing request on
time or did not file sufficient supporting information to merit a full
administrative hearing. Those are the
kinds of procedural grounds at issue in Civil
Service Com. v. Velez (1993) 14 Cal.App.4th 115. There, a civil service employee received a
notice of termination for “committing dozens of incompetent, inefficient and
dishonest acts.” (Id. at p. 117.) She had 10
days to file an appeal. Because of
miscommunication with her union representative, she was a few days late in
filing the appeal. The commission
refused to accept the appeal. (>Ibid.)
On the employee’s petition for writ of mandate, the trial court directed
the commission to accept the untimely appeal; the court of appeal
affirmed. (Id. at pp. 122-123.) The
important point, for purposes of this appeal, is that the petition for writ of
mandamus separately challenged the procedural denial of a right to
administrative hearing, and did not challenge the underlying administrative
decision to terminate the appellant’s employment in Velez, or the deprivation of appellant’s property in the present
case. In other words, a petition can
seek review of an administrative decision that an appellant >failed to comply with appeal
requirements, but that must be the basis for the petition, which it was not in
this case.

In this
case, on the motion for reconsideration, the issue before the court was not
whether prison officials correctly or incorrectly determined that appellant had
filed timely administrative appeals, because the original petition for writ of
administrative mandate did not challenge that aspect of the prison decision –
it sought review of the decision not to return appellant’s property. The trial court correctly concluded that
appellant’s supplemental documentation, even if it had been presented through a
proper affidavit, conclusively showed that appellant had not filed >timely administrative appeals about the
seizure of his property. On appeal,
appellant tries to show that these timeliness decisions were wrong but, once
again, that is not the issue upon “reconsideration” of the summary denial of
the original petition for writ of mandate, because that is not what appellant
challenged in the original petition – which challenged only the refusal to
return the property.

Appellant
also contends the trial court abused its discretion in recharacterizing his
petition as one for administrative mandate instead of replevin. Appellant implies, although he does not
expressly argue, that the recharacterization prejudiced him because a writ of
replevin would not require exhaustion of administrative remedies. Exhaustion, however, is a requirement imposed
by the courts as a matter of judicial policy, as relevant here, to promote
“administrative autonomy,” clarify factual issues, and promote judicial
economy. (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917,
930-931.) In the context of this case, a
prison system with a detailed system for reviewing the issues involved in
appellant’s claims, exhaustion is required regardless of the form of the action
filed in court. Requiring a prisoner to
use the administrative system does not, in itself, deprive the prisoner of the
constitutional right of due process.
Instead, the administrative appeal system provides the process that is
due, and is intended to provide prisoners with expeditious and available
mechanisms to resolve this type of dispute much more quickly than it would be
resolved in a civil action or proceeding. In this particular case, appellant alleged in
the rehearing motion and in his brief that his access to the administrative
system was wrongfully or erroneously barred – that he had been deprived of that
expeditious remedy. Once again, however,
that was not the claim made in appellant’s original petition, and it is not a
claim that was properly before the trial court on the reconsideration motion.

Finally,
appellant contends his motion for reconsideration was in proper form. As we have discussed above, regardless of the
form of the motion, the substance of
the documentation attached to the motion showed that appellant had not
exhausted administrative remedies so as to be entitled to relief in court. Accordingly, the form of appellant’s showing
is not the determinative factor.

In summary,
the allegations of the original petition were insufficient insofar as the
petition failed to show exhaustion of remedies.
The supplemental allegations of the motion for reconsideration did not
correct this insufficiency because the supplemental allegations affirmatively
showed appellant did not exhaust his administrative remedies in a timely
manner. The trial court did not err.

DISPOSITION

The order
summarily dismissing the petition and the order denying reconsideration are
affirmed. Respondents are awarded their href="http://www.mcmillanlaw.com/">costs on appeal.