Fear Not Law Articles: Lopez v. Calderon

Lopez v

Lopez v. Calderon

Filed 1/31/07 Lopez v. Calderon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ANDREW R. LOPEZ,

Plaintiff and Appellant,

A. CALDERON et al.,

Defendants and Respondents.

F049556

(Super. Ct. No. 02C0015)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Commissioner.

Andrew R. Lopez, in pro. per., for Plaintiff and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, James M. Schiavenza, Assistant Attorney General, Thomas D. McCrackin and Catherine A.J. Woodbridge, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

INTRODUCTION

Appellant Andrew R. Lopez is an inmate in the Security Housing Unit (SHU) at the California State Prison in Corcoran.^{^[1]} He was convicted of second degree murder in Stanislaus County in 1991, and sentenced to an indeterminate life term with the possibility of parole.

In January 2002, appellant filed a complaint for damages against the wardens and various members of the prison hospital staff, all employees of the California Department of Corrections (CDC), and alleged causes of action for negligence, intentional torts, and violation of his federal civil rights based on their alleged failure to administer eye medication to him on May 17 and 18, 2001. Appellant represented himself and respondents were represented by the Attorney General's office. The case was assigned to Commissioner James LaPorte.

Appellant repeatedly filed a â€

Description	Appellant is an inmate in the Security Housing Unit (SHU) at the California State Prison in Corcoran. Appellant was convicted of second degree murder in Stanislaus County in 1991, and sentenced to an indeterminate life term with the possibility of parole. Appellant's argument misconstrues the impact of the court's erroneous order on waiver of fees. It is undisputed that appellant filed his complaint on January 3, 2002. The court's erroneous order did not prevent the complaint from being filed or strike the complaint because he failed to make fee payments. Instead, the court's erroneous order permitted the complaint to be filed but prohibited appellant from filing additional motions or pleadings until he complied with the fee payment order. In the interim, appellant only tried to file a motion for appointment of counsel and for default against respondents based on their alleged failure to respond to the complaint. The court's erroneous fee waiver order did not toll the period for appellant to exhaust administrative remedies, and "proper" exhaustion was dependent upon the status of his administrative remedies at the time he filed or "brought" the complaint, on January 3, 2002. (Woodford, supra, 126 S.Ct. at pp. 2386-2388; Vaden v. Summerhill, supra, 449 F.3d at pp. 1049-1051.) The judgment is affirmed.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.