In re Andres

Filed 2/23/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D067039
In re KEVIN ANDRES on Habeas Corpus.

(Super. Ct. No. HSC11347)

APPEAL from an order of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.

Randy Mize, Chief Deputy Public Defender, and Robert L. Ford, Deputy Public

Defender, for Petitioner Kevin Andres.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney

General, Phillip J. Lindsay and Linnea D. Piazza, Deputy Attorneys General, for

Respondent the People.

Respondent Daniel Paramo, Warden at Richard J. Donovan Correctional Facility

(collectively RJDCF), appeals the superior court's order granting petitioner Kevin

Andres's petition for writ of habeas corpus (petition). The court found that Andres

properly prepared and timely submitted via institutional mail an administrative appeal

involving an incident that occurred on January 20, 2013, despite the fact the RJDCF
appeals office never received the appeal. Without reaching the merits, the court merely

ordered RJDCF to process Andres's appeal as being timely received. Affirmed.

BACKGROUND

Andres alleged on January 20, 2013 he was the victim of excessive force by one or

more correctional officers at RJDCF when he was shot with a bean bag and struck

multiple times with a baton while prone on the floor (January 20 incident). Andres

further alleged that he timely submitted an administrative appeal on January 25 and again

on February 19, 2013 to redress his grievance. He filed his petition in early April 2013,

when he received no response from RJDCF to either administrative appeal. Finally, in

early June 2013, the RJDCF appeals coordinator notified Andres that his February 19

appeal was canceled as untimely. The appeals coordinator later claimed never to have

received Andres's January 25 appeal.

The court in its May 13, 2013 order found that Andres made a prima facie

showing that he was the victim of excessive force and that the administrative appeals

process was futile. The court thus ordered RJDCF to file an informal response to address

the "status" of Andres's appeals.

After reviewing the informal response of RJDCF and the reply to that response of

Andres, the court in its August 27, 2013 order found a material issue of fact existed

regarding whether Andres "filed his administrative appeal(s) in a timely fashion." The

court in its August 23 order thus issued an order to show cause directing RJDCF to

"specifically address why Petitioner [Andres] is not entitled to have his grievance

investigated . . . in accordance with the Department Operations Manual §§ 54100.10 and

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54100.25, and Cal. Code Regs. tit. 15 §§ 3268-3268.2." The August 23 order also

directed RJDCF to submit a "[r]eturn" and Andres to submit a "[d]enial."

The court in its July 30, 2014 order found there was a "reasonable likelihood" that

Andres may be entitled to relief under his petition. The court further found that whether

Andres was entitled to relief "depend[ed] on the resolution of facts surrounding

Petitioner's claim that he submitted an administrative appeal in a timely fashion and

whether the misconduct alleged by Petitioner should have been investigated as a Staff

Complaint." The court thus ordered an evidentiary hearing to be held to address the

factual issues raised by Andres's petition.1

The record shows an evidentiary hearing was held on August 22, 2014. Andres

testified on his own behalf, and Ronald Olson, an appeals coordinator, testified on behalf

of RJDCF.

Andres testified that he used the required form 602 in preparing his administrative

appeal stemming from the January 20 incident; that after he completed his administrative

appeal, he made a copy of that form; that he put the original appeal in a "U-Save, EM"

envelope; that he addressed the envelope to the appeals coordinator; and that he mailed it

via institutional mail between 4:30 and 8:30 p.m. on January 25. Andres never received a

response to his January 25 appeal.

1 The court in its July 30 order found that even if Andres's petition was one of
mandate, RJDCF received notice of the petition from the court and that, in any event,
RJDCF was not prejudiced by Andres's failure to personally serve the petition. As such,
the court concluded the procedural requirements for service of the petition had been
satisfied.

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 When Andres did not receive (what he considered to be) a timely response to his

January 25 appeal, he testified he spoke to his cellmate, who told Andres that he had

experienced similar problems when submitting an administrative appeal to RJDCF.

Concerned his January 25 appeal would be mishandled, Andres, with the help of his

cellmate, submitted another appeal dated February 17, 2013 concerning the January 20

incident. This time, however, Andres mailed his administrative appeal to the warden,

using legal mail. Andres testified he deposited his February 17 appeal in the inmate

mailbox after dinner on February 19. Andres was then unaware of the "602 lock box"

that was located adjacent to the inmate mailbox. At the hearing, he described the 602

lock box as a "small little box."

Andres testified he waited until February 19 to mail his February 17 appeal

because he then believed RJDCF had a policy that if an inmate filed more than one

appeal within 30 days they both would be rejected. Andres testified he was then in a

"dilemma" because the incident took place on January 20, 2013. As such, he was

required to file an appeal within 30 days, which he noted would have been on or before

February 19. However, he further noted that, because he filed his first administrative

appeal on January 25, RJDCF had 30 days to respond or until February 24, which was

after the February 19 deadline. Because he was concerned RJDCF would not respond to

his January 25 appeal, he therefore refiled his administrative appeal "before the 30-day

deadline was up."

The record includes a log of "legal mail" for Andres through March 15, 2013.

Page 2 of the log shows an entry dated "2/20/2013" to "D. Paramo, Warden@RJD." Next

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to this entry is the handwritten notation, "Legal Mail to Warden Containing 602/Civil

Complaint on excessive force."

When asked if he mailed the February 17 appeal on February 20, 2013, as noted in

the log, Andres testified, "I know I specifically -- that I filed [this complaint] on the 19th

because I made it a point to file within the 30 days from the 20th, strictly because they --

I knew that they were trying to out wait [sic] the deadline on the first 602. And I got

some resistance from the C.O. then. They said we don't want to send this mail to the

warden, and they argued with me." When asked what date they argued with him, Andres

said, "the 19th."

After waiting another 30 days and hearing no response by RJDCF to either the

January 25 or February 17 appeals, Andres testified he filed on March 23, 2013 a "rights

and responsibility statement" (March 23 statement) in which he noted a lack of response

to either of his form 602's. Andres sent the March 23 statement via United States mail to

the chief of appeals–inmates appeal branch, in Sacramento.

As noted, Andres filed his petition in early April 2013, after not receiving any

response to his January 25 and February 17 appeals. Finally, more than five months after

the January 20 incident, and after filing his petition and after the court in its May 13,

2013 order made a prima facie showing he may be entitled to relief, RJDCF on or about

June 5, 2013 informed Andres that his February 17 appeal was canceled as "untimely."

Olson testified as follows at the August 22 evidentiary hearing regarding the

process inmates follow to file an administrative appeal:

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 "Well, the official method is to place it [i.e., the form 602] in the appeal[s]

collection box. That ensures the security of the appeal, and it allows us to track and log it

in. But inmates do submit their appeals through the institutional mail at times, and

sometimes they even give it to staff to deliver to the appeal[s] office." (Italics added.)

Olson testified that inmates also were given a pamphlet, aptly titled "How to

Submit an Appeal" (appeal pamphlet), to help them with the appeal process. Under the

section "how to file an appeal," the appeal pamphlet instructs that after a form 602 is

completed, the inmate must "[t]hen mail [the] appeal to the local Appeals Coordinator

(AC)." (Italics added.)

Olson testified that appeal collection boxes were located in each housing unit

among other locations; that the number "602" appears on the boxes; that based on

operational policy, which became effective in April 2012, only the sergeant had access to

the collection boxes; and that the sergeant was supposed to log the appeals into a logbook

and then deliver them to the appeals office. Olson noted if an inmate's appeal was not

logged it meant that the inmate did not submit his appeal through a secure collection box.

Olson testified there was another box for institutional mail that was also located in

each of the housing units. Like the secured collection boxes, the institutional mailboxes

were also locked. Olson noted an inmate could send his appeal via institutional mail by

merely "plac[ing] it in that box." He noted some inmates used a certain kind of envelope,

known as "U-Save, Em," but other times inmates used a plain-white envelope or

sometimes just submitted their appeals "loose[ly]." Olson also noted institutional mail

did not require postage, as the mail was processed through the RJDCF mailroom and then

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routed to its destination. Olson further noted that only "confidential legal mail" was

tracked when deposited in the institutional mailbox.

Olson testified that once an appeal was received, it was reviewed for regulatory

compliance. If an appeal was accepted, it was then assigned out. If there was a problem

with an appeal that could be corrected, Olson stated the appeal would be "rejected" and

returned to the inmate with instructions on how to correct the appeal. Finally, if an

appeal could not be corrected, it would be "canceled" and returned to the inmate, who

then had 30 days from receipt of the notice of cancelation to appeal the cancelation

decision.

Olson testified the timeliness of an inmate's appeal was determined when it was

received by the appeals office. If an appeal was received more than 30 days after the

"action" or "decision" that was the subject of the appeal, it was deemed untimely. Olson

explained they used the date it was received because otherwise "inmates [could] backdate

their appeals." Before an appeal was canceled, Olson testified they determined whether

there were "any circumstances that would indicate that it wasn't the inmate's fault, that it

didn't get right to us, you know, that we would take that into consideration. And we can

actually have discretion to accept the appeal, even though we actually received it late."

When asked whether such "circumstances" might include institutional mail, Olson

testified as follows:

"Well, the institutional mail is not the approved way of sending it, but we do try

to, you know, look at the circumstances. If we knew our mailroom was behind -- there

w[ere] any delays. . . . But there are times when the mailroom -- we thought there might

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be a chance that the mailroom was delayed, then we will take that into consideration to

accept the appeal."

When asked whether any such exceptions would apply if an inmate sent an appeal

to another person, like a warden, Olson testified, "That's -- that's -- well, I would look at

the circumstances, but I would not consider that to be a valid reason why it was received

late." When asked what would happen if an appeal was sent to the warden, Olson stated

the warden would either return the appeal to the inmate with instructions to submit it

directly to the appeals coordinator or would just forward the appeal to the appeals office.

With regard to Andres's appeal(s), Olson testified that the appeals office received

only one appeal, dated February 17, 2013; that the February 17 appeal was received in

the appeals office on March 1, 2013; that based on the envelope, the warden had

forwarded the February 17 appeal to the appeals office; that the appeals office on March

4, 2013 canceled the appeal because it was untimely, inasmuch as it was "mailed" per the

log on February 20 or more than 30 days after the January 20 incident; and that although

the February 17 appeal was canceled, it nonetheless was sent for an "allegation review"

because the appeal alleged excessive force.

As noted, Andres was notified on or about June 5, 2013 that his appeal had been

canceled. When asked why it took the appeals office so long to notify Andres, Olson

testified the office "had an enormous amount of backlog." Although Andres had 30 days

to appeal the cancelation decision, Olson testified that Andres never filed such an appeal.

Olson also testified the appeals office never received Andres's January 25 appeal.

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 At the conclusion of the evidentiary hearing, the court found that Andres had

timely submitted his January 25 appeal via institutional mail. In so finding, the court

rejected RJDCF's contentions that Andres failed to exhaust his administrative remedies

when he failed to file an appeal to the notice of cancelation and that his appeal, in any

event, was untimely.

The court stated it was "astonished" that RJDCF would claim Andres failed to

exhaust his administrative remedies given that RJDCF did not notify Andres his appeal

had been canceled until after Andres had filed his petition, and given that RJDCF

aggressively argued Andres's February 17 appeal was untimely. Because RJDCF took

the position the appeal was untimely, the court found it would have been futile for Andres

to have appealed the cancelation notice.

The court also found Andres and his testimony credible with respect to the date he

prepared and filed his January 25 appeal. Specifically, the court found that from the

"very beginning after this [i.e., the January 20 incident], I [i.e., the court] ha[s] reams of

documentation that Mr. Andres was pursuing whatever remedy he could possibly think of

because, right or wrong . . . he felt that he was wronged on that date. [¶] And I find -- I

don't know when the January 25th appeal was filed. I believe it was filed. I don't find

any deliberate wrongdoing by anybody at [RJDCF], but I think the appeal just went

missing with the reams of paperwork that are filed in the appeal[s] office and otherwise at

[RJDCF]. You know, I imagine things do go missing. They go missing here in this

courthouse. So I don't find it unreasonable that after he got no response, that he went

okay. Watch this. I'm going to go file it with the warden.

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 "I understand better from Mr. Olson's testimony why it's a receipt date rather than

a filed date for the 30 days; however, I think that if you -- 30 days isn't very long. And I

think if you put it in the mailbox within 30 days, to me that's sufficient. But I'm finding –

I have to say I'm finding that there was an earlier appeal – an earlier timely appeal that

was filed and was somehow misplaced. [¶] . . . [¶]

"That it was not until after [Andres filed his petition and after the May 13, 2013

order for the informal response was sent] that that the cancellation was received . . . by

Mr. Andres – that not only received, but issued. To say at that point with able counsel

[RJDCF] was vociferously fighting the fact that Mr. Andres can pursue his appeal, I just

find it kind of incredible that you would argue that he had to go back and exhaust his

appeals at that point. There is no clear indication by [RJDCF] that [it was] going to do

anything – as indicated by this hearing here, anything but deny the timely filing of the

complaint. [¶] So . . . I'm also finding . . . a waiver because of [RJDCF's] untimely

response" to the February 17 appeal.

The record shows that the court next clarified that it was finding the January 25

appeal was timely filed and that, in granting Andres's petition, it was "sending this back

to [RJDCF] so that his appeal can be processed." The court thus found it resolved the

only issue before it—whether Andres timely filed his administrative appeal—and the

matter was "back to Mr. Olson's office to process as he would any 602 that was going to

be processed."

In mid-September 2014, RJDCF moved for reconsideration of the court's August

22 oral pronouncement of findings following the evidentiary hearing. RJDCF contended

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that even if Andres in fact submitted his January 25 appeal, as found by the court, he was

not entitled to have RJDCF process his appeal because he failed to follow the proper

procedure for submitting his appeal when he used institutional mail in lieu of the secure

collection box.

On October 10, 2014, the court issued a written order granting Andres's petition

nunc pro tunc to August 22, 2014. On October 21, 2014, the court issued another order

denying RJDCF's reconsideration motion. In so doing, the court noted that RJDCF's

motion included evidence that was available but not presented at the August 22

evidentiary hearing and, thus, found the attachment of such evidence to be "unauthorized

and untimely."

However, the court addressed the merits of the reconsideration motion, in which

RJDCF contended the exclusive means for inmates to submit form 602 administrative

appeals was through the secured collection boxes. The court found that RJDCF's position

in its reconsideration motion was "contradicted by evidence [RJDCF] presented at the

evidentiary hearing." The court cited Olson's testimony from the August 22 evidentiary

hearing that there were different, approved methods at RJDCF to submit a form 602

appeal, including submitting the appeal "through the institutional mail" as Andres had

done, "giv[ing] it to staff to deliver to the appeal[s] office," or the "official method,"

which was to place the appeal in the "appeal[s] collection box."

The court thus found in its October 21 order that Olson's testimony at the August

22 hearing "makes clear that [Andres] utilized an approved method for submitting [his]

administrative appeal[], namely the use of institutional mail through submission of a 'U-

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save, Em envelope,' that does not require postage. [Citation.] Mr. Olson's testimony at

the evidentiary hearing credibly confirms that the Appeals Coordinator at RJDCF accepts

administrative appeals submitted by inmates by way of institutional mail. To the extent

the court may be required to consider belated evidence that secured appeal collection

boxes are the only approved method to submit administrative appeals, such evidence is

simply not credible. Moreover, [RJDCF's] attempt to limit [Andres] to filing his appeal

by means of a secured appeal collection box in the present case is arbitrary, irrational,

and constitutes [an] abuse of discretion, inasmuch as the Appeals Coordinator accepts

administrative appeals through institutional mail and by personal delivery by other staff

members.

"The court also finds that the mailing of administrative appeals is authorized by

the applicable regulations. Mr. Olson testified that the proper submission of appeals is

governed by Cal. Code Regs. tit. 15, § 3084. [Citation.] Cal. Code Regs. tit. 15,

§ 3084.2(b)(2) . . . authorizes inmates to submit their administrative appeals via mail. It

provides, 'Inmates or parolees shall submit their appeal documents in a single mailing

and shall not divide their appeal documents into separate mailings.' (Emphasis added.)"

As a result, the court in its October 21 order found that to the extent RJDCF policy

regarding submitting an appeal conflicted with this regulation, such policy was void.2

2 In particular, the court referenced court exhibit 12 and "Exhibit 30." Court exhibit
12, which the parties relied on at the August 22 hearing, is a memorandum dated April
2012 regarding use of the secure collection boxes for appeals at RJDCF. Exhibit 30 is a
memorandum dated April 30, 2012 based on court exhibit 12 that RJDCF submitted in
response to Andres's opposition to the motion for reconsideration. Exhibit 30 in pertinent
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 Finally, in early March 2015, our court granted the supersedeas petition of RJDCF

to stay the August 22 and October 10, 2014 orders of the court.

DISCUSSION

RJDCF contends it was not required to process Andres's January 25 appeal

because he failed to follow RJDCF's approved administrative procedure for submitting

his appeal. Because it never received the January 25 appeal, RJDCF further contends that

Andres should not have been allowed to argue, or the court to find, that he in fact timely

submitted the January 25 appeal via institutional mail.

A. Standard of Review

"In an appeal from an order granting a petition for habeas corpus after an

evidentiary hearing, basic principles of appellate review apply, and thus, questions of fact

and questions of law are reviewed under different standards. [Citation.] . . . [F]indings

of fact will be accorded due deference under the substantial evidence standard.

[Citation.] However, '[t]his court . . . independently reviews questions of law, such as the

selection of the controlling rule.' [Citation.] Mixed questions of law and fact are

reviewed under the clearly erroneous standard if the inquiry is predominantly factual, but

are reviewed de novo if the application of law to fact is predominantly legal. [Citation.]"

(In re Douglas (2011) 200 Cal.App.4th 236, 242.)

part states going forward an inmate "will be required to place all outgoing [form] 602['s]
. . . in the 'secured appeal collection boxes' located within all housing areas of the
institution."
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 B. Guiding Principles

An Inmate "may appeal any policy, decision, action, condition, or omission by the

department or its staff that the inmate . . . can demonstrate as having a material adverse

effect upon his or her health, safety, or welfare." (Cal. Code Regs., tit. 15,3 § 3084.1,

subd. (a).) "The appeal process is intended to provide a remedy for inmates . . . with

identified grievances and to provide an administrative mechanism for review of

departmental policies, decisions, actions, conditions, or omissions . . . ." (Ibid.) "An

inmate . . . has the right to file one appeal every 14 calendar days unless the appeal is

accepted as an emergency appeal." (Id., subd. (f).) An inmate also must "adhere to

appeal filing time constraints as defined in section 3084.8." (Id., subd. (g).)

An inmate is required to use a CDCR Form 602 "to describe the specific issue

under appeal and the relief requested" (§ 3084.2, subd. (a)); to submit a signed original

appeal form and supporting documents (id., subd. (b)); and, as noted by the trial court, to

submit his or her "appeal documents in a single mailing" without "divid[ing] [his or her]

documents into separate mailings" (id., subd. (b)(2)).

The regulations require each institution to "designate an appeals coordinator."

(§ 3084.5, subd. (a).) "The appeals coordinator or a delegated staff member under the

direct oversight of the coordinator shall screen all appeals prior to acceptance and

assignment for review." (Id., subd. (b).) "When an appeal is not accepted, the inmate

3 All further statutory references are to the California Code of Regulations, title 15,
unless otherwise noted.
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. . . shall be notified of the specific reason(s) for the rejection or cancellation of the appeal

and of the correction(s) needed for the rejected appeal to be accepted." (Id., subd. (b)(3).)

An appeal may be "rejected pursuant to subsection 3084.6(b), or cancelled

pursuant to subsection 3084.6(c), as determined by the appeals coordinator." (§ 3084.6,

subd. (a).) There is no requirement in either subsection (b) or (c) of section 3084.6 that

an appeal must be submitted through a particular mail delivery system. However, an

appeal may be rejected (and thus resubmitted) if an inmate submits an "incomplete"

appeal, such as not providing a signature or date as required (id., subd. (b)(13)), or if the

inmate has not submitted an "appeal on the departmentally approved appeal forms" (id.,

subd. (b)(14)).

In addition, an appeal may be canceled—such as occurred in the instant case with

respect to Andres's February 17 appeal—if the "[t]ime limits for submitting the appeal are

exceeded even though the inmate . . . had the opportunity to submit within the prescribed

time constraints." (§ 3084.6, subd. (c)(4).) Once an appeal is canceled, it cannot be

accepted "except pursuant to subsection 3084.6(a)(3)" (id., subd. (e)), which provides:

"At the discretion of the appeals coordinator or third level Appeals Chief, a cancelled

appeal may later be accepted if a determination is made that cancellation was made in

error or new information is received which makes the appeal eligible for further review."

Finally, subsection 3084.8 sets forth the applicable times limits for an

administrative appeal. An inmate or parolee must submit an appeal "within 30 calendar

days of: [¶] (1) The occurrence of the event or decision being appealed, or; [¶] (2) Upon

first having knowledge of the action or decision being appealed, or; [¶] (3) Upon

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receiving an unsatisfactory departmental response to an appeal filed." (§ 3084.8, subd.

(b).) The time limits for reviewing an appeal commences "upon the date of receipt of the

appeal form by the appeals coordinator." (Id., subd. (a).) Once submitted, for a first

level response all appeals shall be responded to and returned to the inmate or parolee

"within 30 working days from date of receipt by the appeals coordinator," absent

circumstances inapplicable here. (Id., subd. (c)(1).)

C. Analysis

Focusing solely on Andres's January 25 appeal, we conclude substantial evidence

in the record supports the finding of the court that Andres, whom the court found

credible, submitted that appeal on or about January 25, as he testified and as reflected on

the 602 appeal form itself; and that, as such, his appeal was timely pursuant to section

3084.8, subsection (b)(1), inasmuch as the incident that was the subject of the appeal

occurred on January 20, 2013.

We further conclude there is substantial evidence in the record to support the

court's finding that Andres's use of institutional mail was an accepted method for an

inmate at RJDCF to file an administrative appeal. Indeed, Olson testified at the August

22 evidentiary hearing that the appeals office received and processed administrative

appeals not only via the secure collection boxes but also through institutional mail and

though personal delivery of appeals by staff.

In addition, we note the appeal pamphlet given to inmates to assist them in

preparing administrative appeals does not state an inmate was required to use the secure

collection boxes when submitting an administrative appeal, but rather merely provides

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that an inmate must "mail" his or her completed form 602 to the local appeals

coordinator.

Moreover, court exhibit 12, the "Operational Plan #3" prepared by the warden of

RJDCF in April 2012, also does not support RJDCF's contention that Andres was

required to submit his January 25 appeal through a secured collection box. Exhibit 12

instead appears to be merely an attempt by the warden to standardize the collection,

delivery and processing of inmate appeals. There is no language in exhibit 12 stating an

inmate was required to use the secured collection boxes in lieu of any other type of mail

or delivery system in submitting an administrative appeal. In any event, it does not

appear that inmates of RJDCF received a copy of exhibit 12.

With regard to exhibit 30 that was included by RJDCF in its response to Andres's

opposition to the motion for consideration, as noted the evidence clearly showed that the

RJDCF appeals office accepted administrative appeals submitted through institutional

mail and by personal delivery. Thus, to the extent there was a policy allegedly in place

requiring submission of appeals through a secured collection box, we note in practice

appeals were submitted and accepted by other means.

Finally, RJDCF's position that an inmate was required to use a secure collection

box to submit an administrative appeal is undermined by RJDCF's position that such an

appeal must be received in the appeals office before the expiration of 30 days from the

incident being appealed. Olson testified this policy prevented an inmate from

"backdating" an appeal. However, because appeals placed in the secured collection box

are logged in by the sergeant and then delivered to the appeals office, it would be

17
impossible for an inmate to backdate an appeal if an inmate was required to use a secured

collection box, as RJDCF contends. In our view, using the date an appeal is received to

determine timeliness shows an inmate can submit an administrative appeal through

means other than a secured collection box.

Further, we independently conclude there is no requirement in the applicable

regulations that an inmate must submit an administrative appeal through a secured

collection box or similar system, or frankly, through any specific type of mail or delivery

system, in order for the appeal to be deemed properly submitted. Rather, section 3084.8,

subsection (b) merely provides that an inmate "must submit the appeal within 30 calendar

days of . . . [t]he occurrence of the event or decision being appealed." Here, the record

shows Andres timely submitted his January 25 appeal when he mailed it that same day to

the appeals coordinator via institutional mail.

According to RJDCF, because Andres did not use the secure collection box to

submit his January 25 appeal he is essentially estopped from claiming he timely

submitted the appeal because there was no way for the appeals office to track his appeal

and because the appeals office never received it. We note, however, that according to

Olson, the appeals office on a typical day received anywhere from 20 to 40

administrative appeals. As the court thus noted, through no fault of RJDCF it was not

altogether surprising, particularly given the sheer number of appeals being filed, that an

appeal timely submitted through institutional mail went missing.

In any event, we decline under the circumstances of this case to adopt a rule

placing the risk of loss of Andres's January 25 administrative appeal on Andres when the

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court found him credible and found he timely submitted the appeal and mailed it through

proper means. Indeed, the record shows Andres was so concerned his January 25 appeal

would be mishandled that he submitted another appeal on February 19 regarding the

same January 20 incident. Andres testified he did so because he was aware other RJDCF

inmates in the past had experienced problems obtaining review of an administrative

appeal. When Andres received no response to either appeal, he complained to the chief

of appeals by way of his March 23 statement.

In light of the evidence in the record, the fact the applicable regulations do not

require an inmate to use any specific mail procedure to submit an administrative appeal

and the fact that RJDCF's own procedures allowed inmates to use means other than a

secure collection box to submit an appeal, we conclude that the court properly found

Andres's January 25 appeal was timely filed.4

In light of our decision, we deem it unnecessary to decide whether Andres's

separate appeal of the January 20 incident, which he submitted on February 19, was also

timely. (See, e.g., Houston v. Lack (1988) 487 U.S. 266, 271, 276 [noting the prison-

delivery or mailbox rule provides that a document is constructively filed when a prisoner

properly delivers the document to prison officials for forwarding to the court].) As such,

we also deem it unnecessary to decide whether the court erred when it found Andres was

excused from appealing the cancelation of his February 19 appeal because that appeal

would have been "futile."

4 Like the trial court, we offer no opinion regarding the merits, or lack thereof, of
Andres's January 25 appeal.
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 DISPOSTION

The order granting Andres's petition is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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