Yocum v. Howard CA5

Filed 7/10/13 Yocum v. Howard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

LESTER YOCUM, F065716 Plaintiff and Appellant, (Super. Ct. No. 12C0139) v.

CORRECTIONAL OFFICER HOWARD et al., OPINION Defendants and Respondents.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes and Robert S. Burns, Judges.† Lester Yocum, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents. -ooOoo-

* Before Wiseman, Acting P.J., Cornell, J. and Kane, J. † Judge Barnes issued the denial order dated June 25, 2012; Judge Burns issued the denial order dated July 13, 2012.

This is an appeal by a state prisoner, in propria persona, from orders denying his “Petition for Writ of Replevin (Claim and Delivery)” and his motion for reconsideration of that denial. Plaintiff and appellant Lester Yocum contends he adequately stated a claim for relief in his initial petition and that, in any event, he cured any defects by submitting additional materials with the petition for reconsideration. We conclude the trial court properly evaluated the sufficiency of the pleadings. Accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY The petition alleges appellant’s personal property was “illegally seized and retained” by respondent Corrections Officer Howard. In supporting documents, it appears the officer removed certain items from appellant’s locker in September 2011, believing them to be contraband devices to recharge cell phones. (Appellant acknowledges in these documents that the items were not unlawfully seized.) After prison officials conducted an initial investigation, an officer told appellant the items would be returned to him at the completion of the formal investigative process, and they have not yet been returned. According to the supplemental documents, appellant filed various administrative appeals, all of which eventually were dismissed or “cancelled” as untimely. Appellant filed his petition on February 28, 2012. By order of June 25, 2012, the court determined, pursuant to the authority of Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 509, that appellant’s petition for writ relief was appropriately characterized as a petition for writ of mandamus. Because the petition did not allege defendant had fully exhausted his administrative appeals seeking return of the property, the court determined the petition failed to state grounds for mandamus relief. Appellant timely submitted additional materials with his “Notice of Motion in Opposition of Order – Summarily Denied Petition of Replevin.” Those materials sought to demonstrate that appellant had exhausted his administrative remedies. The court