Filed 12/1/21 Rhodes v. Anderson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
KAVIN MAURICE RHODES,
Petitioner and Appellant,
A162176
v.
JOSEPH ANDERSON et al., (Del Norte County
Super. Ct. No.
Defendants and Respondents.
CVPT20171242)
Petitioner Kavin Maurice Rhodes, a state prison inmate,
appeals from an order denying his petition for writ of mandate
against respondents Joseph Anderson, C.E. Ducart, Scott
Kernan, and the California Department of Corrections and
Rehabilitation (CDCR), by which he sought replacement or
compensation for property that was confiscated or damaged
during his transfer between prisons.1 The superior court
The superior court’s order is incorrectly captioned as an
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“ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS FOR ABUSIVE PETITIONS.” The content of the
order, which applies the legal standards relevant to mandate
petitions and directly addresses the arguments raised in Rhodes’s
petition for writ of mandate and the defenses to that petition,
make it clear that the title of the order is a clerical error.
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concluded that Rhodes had an adequate remedy at law and that
he did not prove respondents acted improperly. We affirm.
I. BACKGROUND
Rhodes is serving a sentence of life without the possibility
of parole. In 2016, he was transferred from Kern Valley State
Prison to Pelican Bay State Prison after he was found to have
committed a disciplinary offense.
In anticipation of his transfer, prison authorities
inventoried Rhodes’s belongings. The property listed on the
inventory included a Swintec typewriter, a Sony CD player, Sony
headphones, CDs, an A/C Delco battery charger, an RCA
television, an RCA signal booster, an antenna, Nike tennis shoes,
one sweatshirt, a Casio wristwatch, a U-Tab7 tablet, photo
albums, a West Bend fan, a West Bend hot pot, an electric
shaver, and legal books.
The prison authorities’ records reflect that the CD player,
battery charger, television, tennis shoes and one sweatshirt were
returned to Rhodes. The typewriter had been broken during
transit, but Rhodes refused to sign the form acknowledging he
had been offered a replacement. The remainder of the property
that appeared on the inventory, with the exception of the legal
materials, was confiscated because it was altered, broken, or not
allowed to be in the possession of inmates with Rhodes’s security
categorization. The legal materials were too voluminous for
Rhodes to keep in his cell, so they were stored by the prison and
Rhodes has access to them upon request.
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Rhodes filed administrative appeals alleging staff
misconduct regarding the confiscation of his property, and
requested that Pelican Bay hold his property pending this appeal.
He did not request that the property be mailed out to a third
party. The prison authorities disposed of the listed property on
the ground that Rhodes had not filed an administrative appeal
directly challenging the designation of the items as not allowed.
Rhodes’s appeals alleging staff misconduct were denied.
Rhodes filed a petition for writ of mandate in the superior
court seeking to recover the value of the listed items. He alleged
that the items listed were improperly confiscated upon his
transfer to Pelican Bay, and that the prison authorities
confiscated printwheels, typewriter ribbons, correctional tape,
three sweatshirts and sweatpants, although the inventory does
not reflect Rhodes was ever in possession of these items. After
the court overruled respondents’ demurrer, respondents filed an
answer arguing (1) mandate was improper because Rhodes could
file a small claims action or limited civil action and thus had an
adequate remedy at law; and (2) Rhodes had not demonstrated
respondents had violated any ministerial duty, as is required for
mandate.
The court denied the petition. It issued an order that
stated in relevant part, “The Court finds that the property
claimed by Petitioner is either not accounted for by the inventory
from the transferring prison, was provided to the Petitioner, or
was denied distribution based on established policy, after an
opportunity was provided to Petitioner to have items delivered to
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an alternative location. [¶] The Court finds Petitioner has an
adequate remedy at law of which he has not availed himself. The
Court finds there are no credible issues of fact.”
II. DISCUSSION
A. Standard of Review
To obtain a writ of mandate from the superior court under
Code of Civil Procedure section 1085, the petitioner has the
burden of proving a clear, present, and usually ministerial duty
on the part of the respondent, and a clear, present, and beneficial
right in the petitioner for the performance of that duty.
(Armando D. v. State Dept. of Health Services (2004) 124
Cal.App.4th 13, 21–22.) In reviewing a superior court’s judgment
on a writ of mandate, “we apply the substantial evidence
standard of review to the court’s factual findings, but
independently review its findings on legal issues.” (James v.
State of California (2014) 229 Cal.App.4th 130, 136 (James).)
B. Adequate Remedy at Law
Respondents argue that the superior court properly denied
the writ of mandate because it was not the proper remedy in this
case. We agree.
Code of Civil Procedure section 1086 provides that a writ of
mandate “must be issued in all cases where there is not a plain,
speedy, and adequate remedy, in the ordinary course of law.”
“Although the statute does not expressly forbid the issuance of
the writ if another adequate remedy exists, it has long been
established as a general rule that the writ will not be issued if
another such remedy was available to the petitioner.” (Flores v.
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Department of Corrections & Rehabilitation (2014) 224
Cal.App.4th 199, 205 (Flores).)
The petitioner in Flores was a prisoner who brought a
petition for writ of mandate seeking the return of a television set
that he alleged had been improperly confiscated by CDCR as a
“floater” that did not have a name, serial number, or CDCR
identification number contrary to CDCR regulations. (Flores,
supra, 224 Cal.App.4th at pp. 202–203.) The appellate court
affirmed the superior court order denying the writ, concluding,
among other things, that the prisoner had not established there
was no plain, speedy and adequate remedy because a civil action
for conversion was available to one who was wrongfully
dispossessed of property. (Id. pp. 205–206.) Applying Flores to
the present case, mandate was properly denied because Rhodes
could have brought a small claims action or a limited civil suit
against the prison authorities. He has not carried his burden of
establishing that this remedy was unavailable to him. (Ibid.)
A different result is not required by Escamilla v.
Department of Corrections and Rehabilitation (2006) 141
Cal.App.4th 498, 501–502 (Escamilla), in which property was
taken from a prisoner who had been placed in the administrative
segregated housing unit and was not returned to him. There, the
parties did not raise the issue of whether there was an adequate
remedy at law (see Flores, supra, 224 Cal.App.4th at p. 208), and
the court treated the prisoner’s petition for a writ of habeas
corpus as a petition for a writ of mandate. (Escamilla, at pp.
505–509.) The court found the action was not a “claim[] for
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money or damages” requiring presentation of a governmental tort
claim, and concluded that mandate was “the most appropriate
writ to direct the government to return personal property or its
value in a bailment or bailment-like situation.” (Id. at p. 509.)
The Flores court found Escamilla distinguishable because it
did not involve the confiscation of property that was deemed
prohibited, but concerned a claim to property that was not
contraband and was simply held for safekeeping in a bailment-
type situation while the prisoner was in segregated housing.
(Flores, supra, 224 Cal.App.4th at p. 208.) But in any event,
Escamilla did not consider the issue of an adequate remedy at
law. (Ibid.) As noted in Flores, “ ‘ “An opinion is not authority for
a point not raised, considered, or resolved therein.” ’ ” (Ibid.)
C. Ministerial Duty
A writ of mandate requires a showing that the respondent
had a “ministerial duty to act in a particular way.” (James,
supra, 229 Cal.App.4th at p. 136.) A ministerial duty “is one that
is required to be performed in a prescribed manner under the
mandate of legal authority without the exercise of discretion or
judgment.” (Ibid.) Respondents contend that even if we assume
there was not an adequate remedy at law, Rhodes is not entitled
to a writ of mandate because there was no showing respondents
had a ministerial duty to return the disputed property or
compensate Rhodes for the same. We agree.
There are five categories of property at issue here: (1)
property that was never included on the inventory prepared by
Kern Valley State Prison; (2) property that was on the inventory,
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but was not returned to Rhodes at Pelican Bay because he was
prohibited from possessing it; (3) property that was on the
inventory and was returned to Rhodes; (4) legal materials that
exceed the quantity Rhodes may have in his immediate
possession, which are stored and may be accessed by Rhodes
upon scheduling an appointment with prison staff; and (5) the
typewriter, which respondents acknowledge was broken in
transit. We consider each in turn.
As to the first category, property which did not appear on
the inventory (printwheels, typewriter ribbons, correctional tape,
three sweatshirts, and sweatpants), Rhodes did not present any
evidence that he in fact possessed the property at the time of his
transfer. CDCR is liable “for the loss or destruction of inmate
personal property when it is established that such loss or
destruction results from employee action.” (Cal. Code Regs., tit.
15, § 3193, subd. (b).) Rhodes’s bare allegations are insufficient
to warrant relief, and in noting that disputed items were not on
the inventory, the court implicitly found that Rhodes did not
carry his burden of showing that he possessed them in the first
place or that their loss or destruction was due to CDCR
employees. Rhodes did not demonstrate that CDCR had a
ministerial duty to return or provide compensation for these
items.
As to the second category of property, certain items of
property were deemed contraband because they were altered
from their original state (headphones, watch). CDCR regulations
confer to staff the discretion to determine whether an item has
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been altered (Cal. Code Regs., tit. 15, § 3191, subd. (c)(1)(5)),
meaning that an item’s designation as having been altered is not
“ministerial.” (See Flores, supra, 224 Cal.App.4th at p. 208
[mandate not available to address claim that authorities abused
their discretion in deciding not to return property because they
determined it violated the rules].) Certain other items were not
returned to Rhodes because they are either banned completely at
Pelican Bay or are not allowed for inmates in Rhodes’s privilege
group (beard trimmer, tablet, fan, hot pot, antenna, hardcover
photo albums, signal booster). Although Rhodes argues that he
was in fact entitled to possession of this property, CDCR
regulations presented by respondents supply substantial
evidence that prisoners in Rhode’s classification could not possess
the property. CDCR did not have a ministerial duty to return
property to Rhodes when its possession was forbidden by the
regulations.
Turning to the third category of property, CDCR presented
evidence that some of the property at issue was returned to
Rhodes. The prison authorities did not have a ministerial duty to
return this property when it had already been returned.
With respect to the fourth category, the evidence presented
by respondents showed that the legal materials owned by Rhodes
were not destroyed, but were too voluminous to be kept in his
cell. Substantial evidence shows that CDCR was keeping these
materials in storage and allowing access by Rhodes—it did not
have a ministerial duty to do more.
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Finally, respondents fulfilled their duty regarding the
typewriter because the record shows that prison authorities
offered a substitute typewriter to Rhodes.
III. DISPOSITION
The judgment (order denying writ of mandate) is affirmed.
Each party shall bear its own costs in the interest of justice.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
SIMONS, J.
Rhodes v. Anderson / A162176
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