Foster v. Sexton

• Decision Date: 16 March 2021
• Docket Number: F078387
• Citation: 61 Cal.App.5th 998,276 Cal.Rptr.3d 172
• Court: California Court of Appeals Court of Appeals
• Parties: Ricky Tyrone FOSTER, Plaintiff and Appellant, v. Michael SEXTON, as Warden, etc., Defendant and Respondent.

61 Cal.App.5th 998

276 Cal.Rptr.3d 172

Ricky Tyrone FOSTER, Plaintiff and Appellant,

v.Michael SEXTON, as Warden, etc., Defendant and Respondent.

F078387

Court of Appeal, Fifth District, California.

Filed March 16, 2021

Certified for Partial Publication.^*

Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

FRANSON, Acting P.J. Plaintiff Ricky Tyrone Foster is a self-represented black inmate who alleges prison officials retaliated against him because (1) he disclosed information to the Office of Internal Affairs of the California Department of Corrections and Rehabilitation (CDCR) about prison officials covering up a murder and (2) he filed administrative grievances addressing misconduct by officials at Corcoran State Prison. The retaliation includes correctional officers restraining Foster on a gurney after he was injured in a racial incident at the prison and then allowing another prisoner to attack him. Seven of Foster's ribs were broken in the attack. While Foster was at a Visalia hospital for treatment of his injuries, Corcoran State Prison officials took custody of his personal property and, when he returned, some of that property (including legal papers) was not returned to him. The retaliation also includes, in Foster's estimation, the misconduct of prison officials that thwarted his inmate grievances seeking the return of his missing property.

Foster initiated this lawsuit by filing a petition for a writ of replevin directing prison officials to return his personal property or pay its value, which Foster estimates at $500. (See Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 513, 46 Cal.Rptr.3d 408 [inmate could pursue a petition for writ of mandate seeking the return of specific personal property or the value thereof] ( Escamilla ).)

The trial court, on its own motion for judgment on the pleadings, dismissed the lawsuit on the ground that Foster failed to allege he exhausted, or was excused from exhausting, the inmate grievance process through the third level. Foster appealed, contending he should be excused from exhausting that process because it was rendered unavailable by the misconduct of prison officials.

Foster's original petition omitted allegations about the unavailability of the inmate grievance process or any other excuse. Consequently, we consider whether he has demonstrated he could amend his petition to include allegations of unavailability sufficient to excuse him from exhausting that process. We reach this question despite Foster's failure to file a first amended petition in the trial court because the "issue of leave to amend is always open on appeal." ( City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746, 68 Cal.Rptr.3d 295, 171 P.3d 20 ; see Code Civ. Proc., § 472c.)

Under California law, the exhaustion of administrative remedies is excused when " ‘the administrative remedy is inadequate or unavailable.’ " ( Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 101, 26 Cal.Rptr.3d 744.) We conclude the prisoner grievance procedure is "unavailable" for purposes of California law "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." ( Ross v. Blake (2016) 578 U.S. ––––, ––––, 195 L.Ed.2d 117 ( Ross ).) On a question of properly pleading the excuse of unavailability, we conclude Foster must allege specific facts showing how, when, where, to whom, and by what means the machinations, misrepresentations or intimidations were accomplished. As explained below, we conclude the papers Foster filed in the trial court and in this appeal demonstrate he could amend his petition to allege specific facts showing the administrative process is unavailable to him because prison officials have thwarted his use of the inmate grievance procedure through misrepresentations and machinations.

We therefore reverse the judgment of dismissal and remand for further proceedings.

FACTS

In 1993, Foster was convicted of various serious offenses relating to a carjacking. ( People v. Foster (1995) 34 Cal.App.4th 766, 768, 40 Cal.Rptr.2d 633.) The jury found Foster used a firearm during the commission of the offenses. Foster "was sentenced to a total unstayed prison term of life with the possibility of parole plus 12 years." ( Id. at p. 769, 40 Cal.Rptr.2d 633.)

On August 6, 2017, CDCR was housing Foster in facility C of the Corcoran State Prison as a member of the general population. That day, Foster and approximately 150 other prisoners were involved in what he describes as a racial incident in the facility C recreational yard. During the incident, Foster was injured. He was placed on a gurney, handcuffed, and secured by straps. Foster states that while he was strapped to the gurney, correctional officers allowed another prisoner to attack him, which resulted in severe injuries later diagnosed as including seven broken ribs. Foster contends he was restrained on the gurney and allowed to be attacked in retaliation for filing grievances addressing prison officials' misconduct and for disclosing information to the Office of Internal Affairs about a cover up of a murder.

Foster was transported from the Corcoran State Prison to Kaweah Delta Medical Center in Visalia for treatment of his injuries. While Foster was in the hospital, prison officials took possession of his personal property, which included legal papers from two earlier civil lawsuits. Foster contends the officials did not properly store his belongings. Instead of placing the items in "Receiving & Release" property holding, the items were held in a supply room in housing unit 2 of yard 3C. Other inmates could access this room without supervision by prison officials.

On August 9, 2017, Foster was returned to Corcoran State Prison. He was placed in unit 4A of administrative segregation because of his continued demands "for [the] Excessive use of Force procedural Video." He also requested his personal property. Foster alleges prison officials sought the property with negative results and he was never given a property receipt or the opportunity to inventory his belongings. Foster was transferred from Corcoran State Prison to Calipatria State Prison sometime in late August 2017.

Foster's Form 22

On August 31, 2017, after his transfer to Calipatria and further unsuccessful attempts to get his property, Foster completed a "CDCR 22" (Form 22), which is an informal method to resolve inmate issues. A member of the Calipatria prison staff, O. Bello, received and signed Foster's Form 22. Entries on the form showed it was forwarded to "SHU/Ad-Seg Property Officer S. Diaz" at Corcoran State Prison by U.S. Mail. In the form, Foster asserted two pending civil lawsuits had been dismissed because of Diaz's ongoing denial of his requests for access to his legal property. Foster also asserted he submitted two requests for his legal property and each was ignored.¹

On September 11, 2017, Foster's first Form 22 was returned to him with "SECTION B:, STAFF RESPONSE," stating: "Your property was never sent to [administrative segregation] 4A from 3C yard [at Corcoran]. Upon your transfer [to Calpatria], your property was retrieved from 3C to be transferred with you." (Some capitalization omitted.) B. Resa was the responding staff member. Foster requested a supervisor review of this response by completing the Form 22's section C on October 11, 2017. Foster stated he disagreed with the staff response, and asserted his property should not have been held at Corcoran State Prison's 3C yard beyond August 9, 2017, when he was placed in administrative segregation. He stated he was not given a receipt or allowed to inventory his property until September 6, 2017, when he was at Calipatria State Prison. He asserted items of property were missing, and the issue of missing property could have been cured while he was at Corcoran State Prison. Form 22's "SECTION D:, SUPERVISOR'S REVIEW," is blank in both the copy in the clerk's transcript and the copy attached to his second supplemental appellant's brief. We assume no supervisor review was conducted.

Foster's First Form 602 Appeal

On or about September 3, 2017, while his first Form 22 was being processed, Foster submitted a formal grievance using "CDCR 602" (Form 602),² which was mailed to the appeals coordinator at the Corcoran State Prison. Foster requested that his personal and legal property be located and he receive a personal inventory of his property (Form 1083). The Form 602 was assigned log number CSPC-5-17-04611 (Form 602–‘611).

Foster was interviewed by telephone on September 17, 2017, by Corcoran Facility 3C Correctional Officer C. Rodriguez in response to his request for a personal interview. That interview is described below.

The "FIRST LEVEL APPEAL RESPONSE" to Form 602–‘611 was dated September 17, 2017, and was signed by Rodriguez and Associate Warden B. Odle of Corcoran State Prison. Their response described the issue presented by referring to the August 6, 2017, racial incident and Foster's subsequent placement in administrative segregation and stating: "You were never issued a Property Inventory Form (1083) and your property can not be located." The response also described events that occurred after Foster submitted appeal Form 602-‘611 by stating (1) Foster was interviewed by telephone on September 17, 2017, in response to his request for a personal interview; (2) a property transfer receipt "lists 6 boxes of your property as being located and forwarded with you to Calipatria State Prison via North Kern State ... Prison from CSP-Corcoran on September 5, 2017 via bus schedule M"; and (3) "[a]s for your request to personally inventory your property you are advised to request Calipatria State Prison to issue your personal property to accomplish that matter." The final paragraph of the first level appeal response was labeled "DEC...