DAMOUS NETTLES v. THE SUPERIOR COURT OF KINGS COUNTY

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Court of Appeal, Fifth District, California.

DAMOUS D. NETTLES, Plaintiff and Appellant, v. THE SUPERIOR COURT OF KINGS COUNTY et al., Defendants and Respondents.

F059527

Decided: January 27, 2011

Damous D. Nettles, in pro. per., for Plaintiff and Appellant. No appearance by Defendants and Respondents. oo0oo Appellant, Damous D. Nettles, is a state prison inmate.   Based on his allegation that a correctional officer filed a false disciplinary report against him, appellant sought an injunction against that officer to prohibit harassment.   After a superior court commissioner struck this request on the ground that the court did not have jurisdiction to issue a restraining order against a correctional officer, appellant filed the underlying petition for writ of mandate requesting the superior court to direct the court commissioner to reconsider her decision.   Appellant further sought an order directing the prison appeals coordinator to immediately process his disciplinary action appeal.   The trial court denied appellant's petition on several grounds.   The court first noted that appellant's claim that the court erred in striking his request for a civil harassment restraining order must be pursued in an appellate court.   The court further found that appellant had not either demonstrated or alleged that he had exhausted all administrative remedies.   Regarding appellant's request that the prison appeals coordinator be directed to process his inmate appeal, the court determined that appellant had not complied with the notice requirements for issuance of an ex parte alternative writ.   Finally, the court concluded that appellant's petition was untimely.   Appellant challenges the denial of his writ petition.   According to appellant, the trial court did not understand its obligations in deciding the petition.   Appellant further argues that the trial court improperly struck his request for a restraining order based on the erroneous conclusion that appellant failed to exhaust his administrative remedies.   Finally, appellant contends that, because he substantially complied with the notice requirements, the trial court erred in refusing to direct the prison appeals coordinator to act on his appeal of the allegedly false disciplinary report.   As discussed below, the trial court did not err in denying appellant's petition for writ of mandate.   Accordingly, the order will be affirmed.   BACKGROUND Appellant, a Corcoran State Prison inmate, has a permanent medical condition that leaves him confined to a wheelchair and susceptible to bowel accidents.   Due to this medical condition, appellant was issued a medical “chrono” allowing him to take daily showers after dinner.   Appellant contends that he informed Correctional Officer M. Lopez of his daily after dinner shower “chrono” but that Lopez refused to honor it.   Appellant alleges that after he complained, Lopez retaliated by filing a false disciplinary report against him.   In this report, Lopez stated that on December 16, 2008, appellant had jammed his cell door thereby delaying Lopez in carrying out her duties.   Following a hearing, this disciplinary action was dismissed in the interest of justice.   The hearing officer concluded that the evidence was insufficient to show that appellant deliberately jammed his cell door.   A second cell door jamming incident was reported by Officer Lopez as having taken place on January 6, 2009.   Thereafter, Lopez filed a rules violation report against appellant (log No. C-09-01-004).   According to appellant, Lopez staged this incident.   Appellant immediately informed Lopez's superiors of this alleged misconduct and requested an investigation.   Appellant's staff complaint was identified as SATF-C-09-00387.   Following a hearing on the rules violation report, appellant was found guilty of willfully delaying a peace officer in the performance of duty.   Appellant then prepared and submitted a form 602 appeal of that finding on February 9, 2009.   This appeal focused on Lopez's alleged misconduct and requested an investigation.   Appellant further requested that the disposition be vacated and the charges dismissed.   The appeals coordinator returned this form 602 appeal to appellant because it duplicated his pending staff complaint.   Appellant was informed that he could file a separate appeal of the nonmisconduct issues.   Appellant submitted a second form 602 appeal on February 22, 2009.   Again, this appeal primarily addressed Lopez's alleged misconduct.   However, appellant additionally challenged the finding of guilt.   Nevertheless, the appeals coordinator also returned this appeal to appellant on the ground that it duplicated his pending staff complaint.   On February 13, 2009, appellant filed a request for orders to stop civil harassment in the superior court.   Appellant sought protection from Officer Lopez and requested the court to order Lopez not to harass, threaten, block or contact appellant and to stay at least 200 yards away from him.   Appellant further asked the court to order Lopez to stop staging incidents and denying appellant a daily shower.   On March 3, 2009, the superior court, through Commissioner Julienne L. Rynda, filed an order striking appellant's request for a civil harassment restraining order.   The court concluded that state law gives the California Department of Corrections and Rehabilitation (CDCR) jurisdiction to investigate and take action on complaints of misconduct against correctional officers and therefore issuance of a restraining order by the court would interfere with that jurisdiction.   The court further found that appellant had not exhausted his administrative remedies concerning his misconduct complaint and thus the court did not have jurisdiction over appellant's restraining order request.   On March 18, 2009, appellant's staff complaint was partially granted.   An inquiry into appellant's allegation was conducted and it was determined that staff did violate CDCR policy.   On October 22, 2009, appellant filed the underlying petition for writ of mandate in the superior court challenging the court's March 3, 2009, decision that it lacked jurisdiction over appellant's restraining order request.   Appellant took the position that he was not required to exhaust his administrative remedy because that administrative remedy was unavailable or inadequate.   Appellant requested the court to:  reconsider its March 3, 2009 order;  compel appeals coordinator S. Zirami to process appellant's form 602 appeals;  assume jurisdiction over his request for a civil harassment restraining order;  and determine the merits of that request.   The superior court denied appellant's petition.   The court first observed that appellant's request for relief based on a theory of court error must be pursued in the appellate division of the superior court.   Additionally, the court noted that appellant did not request that administrative exhaustion be waived or excused and that no documents or facts were offered that could have supported a ruling on administrative futility and/or lack of an effective remedy.   Finally, the court denied appellant's request that appeals coordinator S. Zirami be compelled to process his form 602 appeal of the rules violation report, log No. C-09-01-004, on the ground that there was no proof of service demonstrating that Zirami had been properly served with the alternative writ.1  DISCUSSION 1. The superior court correctly concluded that it could not compel reconsideration of the order striking appellant's request for a civil harassment restraining order.   Code of Civil Procedure section 1085 authorizes a court to issue a writ of mandate to an inferior tribunal.   Thus, a writ of mandate directed at the superior court must be issued by a higher appellate court.   The superior court cannot compel the superior court to take action.   Accordingly, the superior court did not have the power either to compel reconsideration of the superior court's March 3, 2009 order or to reverse that March 3, 2009 order and assume jurisdiction over appellant's request for a civil harassment restraining order.   Moreover, the superior court correctly concluded that appellant could not maintain his civil harassment action against Officer Lopez because at the time he filed that action, he had not exhausted his administrative remedies.   Exhaustion of the administrative remedies is a jurisdictional prerequisite to resort to the courts.  (Wright v. State of California (2004) 122 Cal.App.4th 659, 665.)   This requirement applies to grievances lodged by prisoners.  (In re Dexter (1979) 25 Cal.3d 921, 925.)   As noted by the superior court, appellant did not allege that he had exhausted his administrative remedies concerning his complaints against prison personnel in his request for a restraining order against Officer Lopez.   Such complaints are processed as form 602 appeals.   Accordingly, an inmate must proceed through the four levels of review before the administrative remedies are considered exhausted.  (Wright v. State of California, supra, 122 Cal.App.4th at pp. 666-667.)   When appellant requested a restraining order against Officer Lopez in February 2009, his staff complaint against Lopez based on her alleged misconduct was pending at the first level of review.   Thus, at the time appellant requested the restraining order, he had not exhausted his available administrative remedy.  (Wright v. State of California, supra, 122 Cal.App.4th at p. 667.)   Therefore, the superior court did not have jurisdiction to act and properly struck appellant's request for a civil harassment restraining order. 2. The superior court properly denied appellant's request for issuance of an alternative writ to compel appeals coordinator S. Zirami to process his form 602 appeal.   As discussed above, appellant's form 602 appeals of the rules violation report, log No. C-09-01-004, dated February 9 and 22, 2009, were returned to appellant as being duplicative of his staff complaint.   In the underlying writ petition, appellant requested the court to issue an alternative writ of mandate commanding appeals coordinator S. Zirami to process these appeals.   Appellant alleged that such action was necessary to permit him to exhaust his administrative remedies in order to pursue his civil harassment action against Officer Lopez.   The superior court denied appellant's request for issuance of an alternative writ on the ground that the proof of service did not demonstrate that the named respondent, S. Zirami, had been properly served.   The court noted that under Code of Civil Procedure section 1107, an application for a prerogative writ must be accompanied by proof of service of a copy thereof on the respondent and the real party in interest named in such application.   Here the proof of service reflected that a copy of the documents was served on “the ‘Appeals Coordinator’ via substituted service upon Jennifer Cota, UT Coordinator.”   The court found the service was insufficient because there was no confirmation that such “Appeals Coordinator” was in fact S. Zirami, the only individually named respondent.   Appellant contends that he substantially complied with the service requirements and therefore the court erred in denying the alternative writ.   Although substantial compliance with the applicable service requirements may be sufficient, the service will not be construed as valid unless the defendant/respondent received actual notice.  (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)   Here, there is no evidence that S. Zirami received actual notice of the writ application.   Thus, the court did not err in refusing to issue the alternative writ on that ground.   Moreover, the CDCR's refusal to process appellant's February 9 and 22, 2009, form 602 appeals on the ground that they duplicated appellant's staff complaint had no bearing on the court's March 3, 2009 order striking the request for a civil harassment restraining order.   The pertinent administrative remedy was appellant's staff complaint.   When appellant filed his request for a restraining order, that administrative remedy was pending and thus had not been exhausted.   Therefore, the court did not have jurisdiction to consider appellant's request.   Compelling S. Zirami to process the February 9 and 22, 2009, form 602 appeals at this juncture would not change that result.   DISPOSITION The order is affirmed.   Costs on appeal are not awarded.   LEVY, Acting P.J. WE CONCUR:  KANE, J. DETJEN, J.