Crane v. DolihiteCrane v. Dolihite
CERTIFIED FOR PUBLICATION
Richard J. Crane, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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Plaintiff Richard J. Crane, a self-represented prison inmate, appeals from the dismissal of his personal injury action against an inmate who stabbed him in the neck with a pencil. The dismissal was based on Crane’s failure to serve the summons and complaint on the defendant inmate within the time prescribed by statute. (See
Crane encountered difficulties in serving the summons and complaint on the defendant inmate because (1) the defendant was transferred to Salinas Valley State Prison in Monterey County; (2) for a time, Crane was unable to identify the defendant’s location; (3) the superior court advised Crane to use the sheriff’s office to effect service and, subsequently, the Monterey County Sheriff’s Office refused to serve the summons and complaint; and (4) the litigation coordinator at Salinas Valley State Prison refused to accept service on behalf of the defendant inmate. The litigation coordinator’s refusal
On appeal, Crane contends the acts and omissions of prison officials and others denied his right to meaningful access to the courts. We agree. The record on appeal demonstrates Crane’s statutory right to initiate and prosecute a civil action (
We therefore reverse the judgment and remand for further proceedings.
FACTS
On January 16, 2013, Crane was studying at a computer in a general educational development (GED) class at the High Desert State Prison in Lassen County. Crane was attempting to obtain a GED certificate for a parole board hearing. Defendant Joseph Clay Dolihite approached Crane from behind and stabbed him in the neck with a pencil. The pencil broke off in Crane’s neck on the second thrust. Dolihite then began punching Crane in the head and back. The instructor sounded an alarm and correctional officers responded.
When interviewed by correctional officers, Dolihite stated he and Crane had been arguing over the use of a computer and he waited for Crane to get busy, grabbed a pencil out of his pocket, and tried to put it through Crane’s neck. Dolihite also told the officers that Crane likes to run his mouth and Dolihite wanted to see how good a pencil would look going through his throat, so he gave it a try. When asked if he was trying to kill Crane, Dolihite stated that he did not expect the pencil to break.
Crane was taken to the prison’s emergency clinic, examined by medical staff, and treated for the stab wounds, one of which was close to his jugular vein. Crane was placed in administrative segregation and, after about a month, was released to Facility B at the prison.
Crane alleges he was assaulted by two other prisoners and prison guards on March 1, 2013, which caused serious bodily injury. He sued the correctional
In June 2013, the Lassen County District Attorney filed a criminal complaint against Dolihite charging him with attempted murder and alleging he had been convicted of serious or violent felonies in 1983, 1994 and 2000. In October 2013, Dolihite plead guilty to assault with a deadly weapon by a state prisoner in violation of
PROCEEDINGS
In June 2014, Crane filed a personal injury complaint against Dolihite in Kings County Superior Court. In December 2014, the superior court filed an order stating it had received a form for proof of service of the complaint and summons that had not been completed to indicate when and how the defendant was served. The order also stated: “The court does not serve civil complaints for litigants. Plaintiff will have to make arrangements with the Sheriff Department at the county where defendant is located for service of plaintiff‘s complaint and summons.”
In January 2015, Crane prepared and signed a first amended complaint. It was filed by the superior court on February 23, 2015, along with Crane‘s motion for service of the first amended complaint and summons pursuant to
“The plaintiff should consider that if service is achieved, defendant appears and there is a need to serve additional pleadings on defendant, the plaintiff will be required to comply with the requirements of
On May 4, 2015, Crane filed a motion for a 30-day extension of time to effect service of the summons and complaint. Crane asserted he had been in touch with an attorney who might take his case and, with the assistance of counsel, he should be able to affect service of process without any further problems. Crane attached an April 9, 2015, letter from the attorney, which stated he was trying to schedule a meeting with Crane for the end of April. The attorney also raised concerns about proving up damages if Dolihite defaulted and collecting the damages.
On May 8, 2015, Crane filed a motion to dismiss without prejudice or, alternatively, to stay proceedings pending his release from prison. The motion referred to an order to show cause regarding his failure to appear at a case management conference and the possible dismissal of the case. Crane stated he had not received notice of any scheduled conference. Crane asserted he had become aware that he would be unable to pursue the case without counsel because he was incarcerated and could not serve Dolihite or prosecute the case properly. Crane requested that the court not order his appearance in court because that would disrupt his job and placement, which were necessary for him to become eligible for release. The superior court granted Crane‘s request to stay the lawsuit, setting a case management conference for
A year later, the May 2016 case management conference was held. The results of that conference are not shown in the clerk’s transcript or the register of actions. Five days before the conference, Crane had filed a motion to extend the stay of proceedings for another year based on his belief that he was going to be released from prison and then would be able to effectively prosecute his case. He also notified the court his address had changed to the California State Prison, Los Angeles County, in Lancaster. It appears Crane‘s motion was granted because the next case management conference was scheduled for a year later, in May 2017.
Crane failed to appear at the May 2017 conference, and the superior court issued an order to show cause. In response, Crane filed a motion stating that, six days in advance, he was advised the CourtCall hearing was scheduled, he was in lockdown conditions at the time, he relied on prison officials to call him, and the CourtCall never took place. Crane asked for relief from any default and requested a 90-day extension to file a motion for a continuance of the stay.
The ruling on Crane’s motion is not contained in the clerk’s transcript. However, six months later, in November 2017, Crane filed another motion to extend the stay of proceedings for 90 more days pending resolution of a pending federal case, Richard J. Crane v. Rodriguez, et al. (E.D.Cal. No. 2:15-CV-00208-TLN-KJN). The superior court granted Crane 90 days to obtain approval from the warden to communicate by mail with Dolihite for the purpose of serving the summons and complaint.
In February 2018, Crane filed a motion for a further extension of time that described the difficulties he was having in communicating with the warden about his request to correspond with Dolihite. The motion stated that on January 22, 2018, Crane had submitted a CDCR form 22, request for interview. A copy of the form was attached to the motion. In the form‘s topic box, Crane typed “WARDEN‘S PERMISSION TO SUE.” In section A of the CDCR form 22, Crane stated that, pursuant to a court order, he needed to obtain permission from the warden to serve inmate Dolihite with the complaint. Crane requested permission as soon as possible, stating he had to file a case management statement by February 14, 2018.
Section B of the CDCR form 22, staff response, was completed by Sergeant Torres on January 30, 2018, and stated the request would be forwarded to the litigation coordinator. On February 5, 2018, Crane completed section C, request for supervisor review. Crane referred to his court
Besides submitting a CDCR form 22, Crane mailed the warden a letter stating the superior court had ordered him “to obtain the Warden‘s permission to sue Joseph Clay Dolihite by mail because he is an inmate in CDCR.” Crane included a self-addressed, stamped envelope for the warden‘s response.
Crane‘s February 2018 motion for a further extension of time stated he had not received a response to his letter to the warden and also asserted his legal mail was being obstructed or lost. His motion asked the superior court for more time to obtain the warden‘s approval.
Later that February, the superior court filed an order extending the time for Crane to receive permission from the warden to correspond with Dolihite so that Dolihite could be served. The order noted the June 2014 filing date of the complaint and the one-year stay issued in May 2015. It then stated, “this case is fast approaching the three year bar on service of a summons set forth in
In March 2019, the superior court filed another order to show cause relating to Crane’s failure to appear at a case management conference and failure to serve the complaint. Before the April 2019 hearing on the order to show cause, Crane filed an application for extension of time to serve pleading and an order continuing the case management conference using optional Judicial Council form CM-020. The application stated Crane had “received endorsed summons to serve with the complaint and waiver of service forms notice of return receipt with a Self-Addressed postage paid envelope to the Monterey County Sheriff requesting service by the Sheriff process server on February 14, 2019. No response was received.” At the end of the form
On April 29, 2019, Crane filed another application on Judicial Council form CM-020 for extension of time to serve pleading that explained what had happened with his attempt to complete service through the sheriff‘s office. Crane stated he had mailed the first amended complaint to the Monterey County Sheriff‘s Office requesting service on Dolihite and he received back from the Civil Division of the Monterey County Sheriff‘s Office a “Notice of Action Taken.” The notice stated the sheriff‘s office was unable to process Crane‘s request and gave its reason by stating: “Please contact Soledad State Prison to serve inmates at their facilities.” The notice listed the return date as March 4, 2019. Crane‘s application described his response to the notice from the sheriff‘s office. Crane stated he promptly mailed all documents to the Salinas Valley State Prison, which is near Soledad. The reaction of prison officials is set forth in an April 23, 2019 letter from G. Lopez, a litigation coordinator at Salinas Valley State Prison. The letter informed Crane that his legal correspondence was being returned “for the following reasons: [¶] *Improper Service and the Litigation office does not serve or accept service for other inmates.”
Crane‘s April 2019 application for an extension of time to serve the pleading was denied by the superior court. The court‘s order stated the summons and complaint must be served by June 14, 2019, and confirmed the June 26, 2019, hearing date for the case management conference. The order also stated: “There is no evidence in the record that prison officials are thwarting Plaintiffs efforts to serve defendant. There is no good cause shown to issue the order. Plaintiff has had numerous opportunities to serve Defendant over the past four years.” The order made no reference to a sheriff‘s statutory duty to serve process in a civil action and no reference to a litigation coordinator‘s duty to accept service on behalf of inmates. Those duties are discussed in part I.B. of this opinion.
On June 26, 2019, the superior court held a hearing and Crane appeared through CourtCall. The minute order from the hearing stated Crane had not accomplished proof of service on the defendant. The court dismissed the case with prejudice. Crane filed this appeal.
I. APPLICABLE LEGAL PRINCIPLES
A. Right of Access to the Courts
Crane‘s theory of superior court error is based on a denial of his right of access to the courts—a right with both statutory and constitutional dimensions. The federal and state Constitutions guarantee the right of access to the courts to all persons, including prisoners. (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 465 (Smith).) In addition, a California statute grants state prisoners the right “[t]o initiate civil actions” as plaintiffs. (
The reference to a bona fide civil action threatening the prisoner‘s interest is derived from a Supreme Court decision in which the prisoner was a defendant in a civil action. (See Payne v. Superior Court, supra, 17 Cal.3d at pp. 912, 927 [writ of mandate directed trial court to vacate order denying defendant prisoner‘s motion for relief from default judgment of $24,722].) In Payne, the court stated the right of access to the courts “comes into existence only when a prisoner is confronted with a bona fide legal action threatening his interests.” (Id. at p. 924.) This statement was tailored to a prisoner who was a defendant. When a prisoner is a plaintiff in a civil action, we interpret the clause ” ‘a party to a bona fide civil action threatening his or her personal or property interests’ ” (Smith, supra, 38 Cal.App.5th at p. 465) to mean a bona fide civil action seeking relief for a nontrivial injury to the prisoner‘s personal or property interests.
In Smith, we followed earlier decisions and adopted a three-step inquiry for trial courts to use in determining whether to take measures to protect an indigent prisoner‘s right of meaningful access to the courts. (Smith, supra, 38 Cal.App.5th at pp. 466–467.) First, the court determines whether the prisoner is indigent. (Id. at p. 466.) Second, the court determines whether the lawsuit involves a bona fide threat (or seeks relief for a bona fide injury) to the prisoner‘s personal or property interests. (Ibid.) Third, if the first two conditions are met, the court considers what measures are available to protect the prisoner‘s right of meaningful access to the courts. (Id. at pp. 466–467.) A nonexclusive list of measures to ensure indigent prisoners are afforded meaningful access to the courts include “(1) deferral of the action until the
B. Service of Process
Service of process on a defendant is an important step in obtaining access to the remedies available through the court system. The “formal service of process performs two important functions.” (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 139.) First, from the court‘s perspective, service of process asserts jurisdiction over the person. (Ibid.) Obtaining personal jurisdiction is important because a trial court can enter a valid judgment only if it has both jurisdiction of the person and jurisdiction of the subject matter. (Id. at p. 138.) Second, from a defendant‘s perspective, service of process provides notice of the pending action and gives the defendant an opportunity to present a defense. (Id. at p. 139.) Thus, service of process protects a defendant’s due process right to defend against an action by providing constitutionally adequate notice of the court proceeding. (Ibid.)
” ‘Process’ signifies a writ or summons issued in the course of a judicial proceeding.” (
“[A]ny person who is at least 18 years of age, and not a party to the action” may serve a summons. (
2. Who May be Served
Generally, “[i]ndividual defendants are served by delivering copies of the summons and complaint to them personally or to someone else authorized by law to accept service on their behalf.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (2021) ¶ 4:122, p. 4-17.) The option of serving someone other than the individual defendant is addressed in
Based on
Sakaguchi provides another example of proper service. The plaintiff‘s attorney mailed a statement of damages to the defendant, care of the litigation coordinator, along with a notice and acknowledgement of receipt form. (Sakaguchi, supra, 173 Cal.App.4th at p. 859.) The litigation coordinator signed and returned the notice and acknowledgement of receipt. (Id. at pp. 860–861.) The court concluded that “[t]his procedure complies with the statutory scheme for effective service on an inmate in a state prison.” (Id. at p. 861.)
3. Methods of Service
Sakaguchi illustrates one of the four usual methods for serving process—that is, service by mail coupled with an acknowledgement of receipt in accordance with
Section 14010.7 of the Department Operations Manual (2021) of CDCR (DOM) states: “Service of any documents used in civil proceedings (except subpoenas) is referred to as service of legal process in this section. The documents shall be handled in accordance with the provisions of this section anytime an employee receives such service.” Service of legal process upon inmates is addressed in section 14010.7.4 of the DOM, which states that it does “not preclude the proper service of papers by a sworn peace officer escorted into a security area.” (Ibid.) Section 14010.7.4 of the DOM also sets forth ways service on the inmate may be completed. First, “[s]taff may accept the papers from the process server and then complete the service on the inmate.” (Ibid.) Second, “[a] sworn peace officer may be escorted into the security area to complete service of the papers.” (Ibid.) In addition, “[i]f a request for service is received by mail, institution staff shall serve the papers and complete the verification of service. If a fee accompanied the request for service, the fee shall be returned with the verification of service.” (Ibid.) Regardless of whether a litigation coordinator is physically handed process as a someone authorized by law to accept service on behalf of an inmate or is served by mail pursuant to
II. DENIAL OF CRANE’S RIGHT OF ACCESS TO THE COURTS
Crane contends he was denied his right of access to the courts and, therefore, the dismissal of his lawsuit should be reversed. Our first step in analyzing this contention is deciding a legal issue about what test should be used to determine whether a denial of the right of access occurred.
A. Test for Denial of Access
In Lewis v. Casey (1996) 518 U.S. 343 (Lewis), the United States Supreme Court considered what a prisoner must allege to state a civil rights claim based on a denial of the constitutional right of access to the courts. (Id. at p. 346.) The court concluded that a prisoner must allege actual injury to state such a claim. (Id. at p. 349.) In describing the actual injury requirement, the court stated a prisoner must “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” (Id. at p. 353, fns. omitted.)
B. Application of Test
1. Actual Injury
Here, the record establishes the actual injury element of the test for a denial of a prisoner‘s right of access to the courts. Crane lost his personal injury cause of action when the lawsuit was dismissed with prejudice. That cause of action easily qualifies as nonfrivolous because Dolihite plead guilty to assault with a deadly weapon. (See Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 205 [collateral estoppel effect
2. Official Acts Frustrating the Litigation
The next element we address whether official acts frustrated Crane’s pursuit of the lawsuit against Dolihite—specifically, his attempts at service—and caused the dismissal. In conducting this inquiry, we conclude the term “official acts” includes the acts and omissions of prison officials, the superior court, and the Monterey County Sheriff’s Office. In other words, this element of a denial of access contention is determined from the perspective of the inmate and the acts of various officials are not viewed in isolation.
First, we consider the combined impact of the superior court‘s statement that Crane “will have to make arrangements with the Sheriff Department at the county where defendant is located for service of plaintiff‘s complaint and summons” and the reaction of the Monterey County Sheriff‘s Office to Crane‘s attempt to have that office serve the summons and complaint on Dolihite. The superior court‘s statement was undoubtedly based on its understanding of a sheriff‘s statutory duty to serve process in civil actions (
Consequently, the sheriff‘s office refused to complete service by delivering the summons and complaint to the litigation coordinator at Salinas Valley State Prison as a person authorized by law to accept service on behalf of a prisoner (see
Second, we consider the manner in which prison officials at the California State Prison, Los Angeles County handled Crane‘s request for permission to correspond with Dolihite. Other than informing Crane that his request was being forwarded to the litigation coordinator, Crane received no response. This lack of a response further frustrated Crane‘s attempt to serve Dolihite because the superior court informed Crane that he needed to obtain such permission to serve Dolihite by mail.6 By requiring Crane to obtain permission, the superior court required him to do something that was beyond his control. The combined effect of the superior court‘s stating permission was necessary (regardless of whether it was true) and the failure of prison officials to respond to Crane had the actual effect of frustrating Crane‘s service of the summons and complaint.
Third, we consider the April 23, 2019 response of G. Lopez, a litigation coordinator at Salinas Valley State Prison, to Crane‘s mailing of the
The foregoing circumstances adequately demonstrate that official acts and omissions have frustrated Crane’s pursuit of the lawsuit against Dolihite. Specifically, those acts and omissions have impeded his attempts to serve Dolihite with the summons and complaint. Therefore, we conclude Crane has established the dismissal of his lawsuit for failure to effect service of process violated his statutory right of access to the court to prosecute a civil action. (
D. Harmonizing the Statutes
Next, we consider how the violation of an indigent prisoner‘s statutory right of access pursuant to
The calculation of the three-year period is subject to
Applying the foregoing statutory interpretation to the facts of this case raises several issues. Some of those issues need not be resolved because time excluded on other grounds supports the determination that the three-year period has not expired.
The complaint was filed on June 19, 2014, and the superior court dismissed the action five years and one week later, on June 26, 2019. A stay was in effect for one year, from May 2015 until May 2016. Therefore, that year is excluded pursuant to subdivision (b) of
C. Judicial Relief
The last subject we address is the appropriate relief on appeal. A reversal and remand are necessary and, therefore, the question presented is what directions should be given to the superior court for conducting those
In exercising the discretionary authority granted by
We conclude Crane has established both elements. First, in September 2019, Crane submitted a request to waive court fees on mandatory Judicial Council form FW-001, which this court granted. The information in Crane‘s request is sufficient to show he qualifies as indigent for purposes of obtaining a discretionary measure to protect his right of access to the courts. Second, Crane has established that his civil action is bona fide based on Dolihite‘s guilty plea and that it seeks relief for nontrivial injuries resulting from being stabbed in the neck. Accordingly, we conclude Crane is eligible for measures that protect the right of access to the courts.
One of the specific discretionary measures that might be implemented to resolve the problem of serving process on another inmate is the appointment of counsel for Crane. (See Smith, supra, 38 Cal.App.5th at p. 467 [list of eight discretionary measures available to trial courts]; see Yarbrough v. Superior Court, supra, 39 Cal.3d at p. 207 [power of trial court to appoint attorney to represent an incarcerated civil defendant].) The other specific measures do not apply to the problem of service; however, the general statement that a court may implement “other innovative, imaginative procedures” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 793; Smith, supra, at p. 467) allows the consideration of ways to complete the service of process other than appointing an attorney.
1. Appointment of Counsel
Other ways of completing service of process are significant because, as a practical matter, it may be difficult to appoint an attorney to represent Crane. In particular, the superior court might be unable to find an attorney willing to accept an appointment—either on a pro bono basis or on a contingency fee or
2. Service by Mail by the Clerk‘s Office
Another, simpler procedure available to the trial court is to direct the clerk of court to effect service by mailing a summons and the complaint to the litigation coordinator at the prison where Dolihite is being held in accordance with the requirements of
3. Other Methods of Service
Another possibility is for the superior court to invoke its authority under
There are multiple ways the superior court could ensure that service of process is completed, and this personal injury lawsuit moves forward. We will not direct the court to implement a particular measure. Instead, we will direct the court to adopt a measure that accomplishes service of the summons and complaint. That measure may be the appointment of counsel, service by the clerk of court pursuant to
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings that accomplish service of the summons and complaint and are not inconsistent with this opinion. As no respondent appeared in this case, no costs on appeal are awarded.
FRANSON, J.
WE CONCUR:
DETJEN, ACTING P. J.
SMITH, J.