Filed 11/12/14 Unmodified version attached




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIFTH APPELLATE DISTRICT

                                                                      F068484
JAMES FREDRICK MENEFIELD,
                                                          (Super. Ct. No. 12CECG03127)
   Plaintiff and Appellant,

   v.                                                    ORDER MODIFYING OPINION AND
                                                             DENYING REHEARING
D.R. FOREMAN et al.,                                       [NO CHANGE IN JUDGMENT]

   Defendants and Respondents.


THE COURT:
        It is ordered that the published opinion filed herein on October 15, 2014, be
modified as follows:
        On page 8, the last sentence of the second full paragraph beginning with the word
“[f]urthermore” is deleted.
        On page 8, the following paragraphs are inserted after the second full paragraph:

               Menefield disagrees, arguing that the ambiguity must be resolved by
        construing the word “duplicates” in the context of the entire regulatory
        scheme. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [each
        statutory provision must be read not in isolation but in light of the statutory
        scheme].) In particular, Menefield argues the regulatory provision that
        delineates the right to appeal and exhaustion clearly demonstrates that
        inmate appeals are not duplicative if they contain any new issue or
        information. Section 3084.1, subdivision (b) states:

                        “Unless otherwise stated in these regulations, all appeals are
                 subject to a third level of review, as described in section 3084.7,
                 before administrative remedies are deemed exhausted. All lower
            level reviews are subject to modification at the third level of review.
            Administrative remedies shall not be considered exhausted relative
            to any new issue, information, or person later named by the appellant
            that was not included in the originally submitted CDCR Form 602
            (Rev. 08/09), Inmate/Parolee Appeal, which is incorporated by
            reference, and addressed through all required levels of administrative
            review up to and including the third level. In addition, a cancellation
            or rejection decision does not exhaust administrative remedies.”

             We recognize the appeals coordinators would have acted reasonably
     if they had referred to this provision and used its contents to help define
     when an appeal “duplicates” an earlier appeal. For example, the appeals
     coordinators could have construed the term to mean a second appeal does
     not duplicate an earlier appeal if it presents “any new issue, information, or
     person.” (§ 3084.1, subd. (b).) However, the fact this particular
     interpretation provides a reasonable way to resolve the ambiguity in the
     term “duplicates” does not establish the appeals coordinators committed
     error when they adopted a different reasonable construction. (In re
     Cabrera, supra, 55 Cal.4th at p. 690 [only a clearly unreasonable
     interpretation of an agency’s regulations may be overturned].)

             Fourth, the application of the appeals coordinators’ interpretation of
     “duplicates” to a particular set of facts requires the appeals coordinators to
     exercise their personal judgment on whether the degree of overlap among
     the issues presented was sufficient to deem the subsequent appeal
     duplicative of the first.


     There is no change in the judgment.

     Appellant’s petition for rehearing is denied.

                                                               _____________________
                                                                            Franson, J.
WE CONCUR:


 _____________________
Kane, Acting P.J.


______________________
Poochigian, J.


                                           2.
Filed 10/15/14 Unmodified version




                            CERTIFIED FOR PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

JAMES FREDRICK MENEFIELD,
                                                                    F068484
   Plaintiff and Appellant,
                                                        (Super. Ct. No. 12CECG03127)
   v.

D.R. FOREMAN et al.,                                              OPINION
   Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez,
Judge. (Retired judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.).
        James Fredrick Menefield, in pro. per., for Plaintiff and Appellant.
        Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Jessica N. Blonien and Yun Hwa Harper, Deputy Attorneys General, for
Defendants and Respondents.


        Inmate James Frederick Menefield appeals the denial of his writ of mandate,
which sought to compel appeals coordinators at Pleasant Valley State Prison to complete
the processing of an inmate appeal submitted by Menefield. His appeal had been
cancelled during the screening process on the ground it was duplicative of an earlier
appeal.
       Menefield contends the appeals coordinators’ duty to process the appeal was
ministerial and, because his August 2, 2012, appeal was not duplicative of his June 6,
2012, appeal, they had no discretion to cancel it.
       We conclude that appeals coordinators have a ministerial duty to complete the
screening of inmate appeals, but exercise discretion when determining if an appeal is
duplicative of an earlier appeal. Here, the appeals in question concerned access to the A-
Facility chapel by Muslim inmates, but were different in other particulars. Because there
was a significant overlap in the issues presented, we conclude the appeals coordinators
did not abuse their discretion when they determined the August 2, 2012, appeal was
duplicative of Menefield’s June 6, 2012, appeal.
       We therefore affirm the judgment denying the petition.
                                          FACTS
       In 2002, a jury convicted Menefield of first degree murder with a firearm
enhancement, and the Los Angeles County Superior Court sentenced him to a prison term
of 50 years to life.
       In 2008, Menefield filed a federal civil rights action against prison officials
alleging they violated the religious rights of Muslim prisoners. He sought an injunction
compelling the prison officials to provide him access to halal meals1 that included a halal
meat option whenever kosher meat was served or, alternatively, allow him to participate

1       One court described the dietary laws of the Islamic faith as specifying all food as
either halal (lawful) or haram (unlawful) and stated that pork and pork byproducts, meats
not slaughtered according to the Quran, and food prepared with ingredients that are not
halal, are considered haram. (Ahmad v. Department of Correction (Mass. 2006) 845
N.E.2d 289, 293.)



                                             2.
in the kosher meal program. In 2009, a federal district court issued a preliminary
injunction. (Menefield v. Cate (E.D.Cal. Oct. 5, 2009, No. C 08-00751 CRB) 2009 U.S.
Dist. LEXIS 96447, 2009 WL 3234202.)
         In 2010, Menefield filed another civil rights action against prison officials.
(Menefield v. Yates (E.D.Cal. 2010, No. 1:10-CV-02406 MJS).) Menefield alleged his
constitutional rights were violated when officials denied him access to the chapel, banned
the use of outside foods at ‘Id festivals, and failed to provide equal treatment to Muslim
inmates. (Menefield v. Yates (E.D.Cal. Oct. 24, 2012, No. 1:10-CV-02406 MJS) 2012
U.S. Dist. LEXIS 153001, p. 1, 2012 WL 5288796, pp. 1-2.)
         That civil rights action was settled in May 2012 when Menefield entered into a
written settlement agreement with prison officials. Menefield agreed to deliver a signed
stipulation for voluntary dismissal with prejudice under Federal Rules of Civil Procedure,
rule 41(a)(1)(A)(ii). In exchange for the dismissal, paragraph 2 of the agreement
provided:

         “Prison official shall provide Muslim inmates reasonable opportunities to
         participate in Muslim indoor group religious services, called Ta’leem,
         Jumu’ah Prayer and the two annual ‘Id festivals, taking into account factors
         such as the number of inmates, available space, safety and security,
         resources, and administrative considerations, so long as those factors are
         also considered in determining the access of other religious groups to
         regularly scheduled group religious activities.”
         Under the settlement agreement, if Menefield believed prison officials had not
complied with the agreement, he was required to submit an inmate appeal (CDCR 602)2
and exhaust his remedies at the director’s level before seeking relief from the district
court.



2     Inmates are required to use “CDCR Form 602 (Rev. 08/09)” when pursuing an
administrative appeal. (Cal. Code Regs., tit. 15, § 3084.2, subd. (a).)



                                               3.
       Less than a month after the settlement agreement was signed, Menefield asserted
that prison officials were not abiding by its terms. On June 6, 2012, he submitted an
appeal that was given log number PVSP-A-12-01726 (June Appeal). The June Appeal
asserted (1) prison staff had denied Muslim inmates access to the chapel or an alternate
indoor area for weekly Islamic religious services and (2) this failure to accommodate
Muslim inmates violated the terms of the settlement agreement.
       On August 2, 2012, Menefield submitted a group appeal that was given log
number PVSP-A-12-02059 (August Appeal). The August Appeal asserted that Captain
A. Walker of A-Facility refused to provide security coverage and access to the prison
chapel for Jumu’ah prayer services on Friday, July 27, 2012, when a chaplain was not
present. The August Appeal asserted (1) Walker’s refusal was contrary to the directions
issued by Warden Brazelton in a July 2, 2012, memorandum that addressed the
procedures for Ramadan3 and (2) Walker’s refusal was in retaliation for Menefield’s
filing a lawsuit against him.
       On August 9, 2012, Warden Brazelton issued a second level appeal response for
the June Appeal. The warden found the appeal lacked merit and there was “no evidence
to suggest PVSP is violating the terms of the Settlement Agreement.” The response
advised Menefield that the issue could “be submitted for a Directors Level of Review, if
desired.” The warden set forth the factual basis for his response as follows:

       “PVSP has hired a Muslim Chaplain. This Chaplain provides weekly
       services for the five facilities at PVSP. Specifically he is assigned to
       Facility A on two Fridays each month. On one of the Fridays that the

3      The memorandum stated that the Jumu’ah prayer service for Friday, July 27, 2012,
for A-Yard would be conducted in Facility-A Chapel from 1230 to 1400 hours. The
memorandum also stated: “Chaplain A. Johnson will conduct Jumu’ah Prayer Services at
1230 hours on a weekly rotation schedule during the Ramadan Program. Custody Staff
shall provide supervision in Facility Chapels for the Jumu’ah Prayer Services that are not
conducted by Chaplain A. Johnson.”



                                             4.
       Chaplain is not present, another Chaplain is present. When neither
       Chaplain is present, Facility A Supervisory staff has afforded the Muslim
       inmates the opportunities to conduct religious services in their assigned
       Housing Units. Based on the above information, Muslim inmates are being
       afforded reasonable opportunities to participate in Muslim indoor group
       religious services on Facility A.”
       On August 13, 2012, defendant Foreman screened the August Appeal and
cancelled it on the ground it duplicated a previous appeal. The one-page document
provided to Menefield to notify him of the decision did not identify the previous appeal
that had been duplicated by the August Appeal.
                                        PROCEEDINGS
       In September 2012, Menefield filed a petition for writ of mandate against Dino R.
Foreman, Juliana Jimenez and Jane Morgan, appeals coordinators at the Pleasant Valley
State Prison (collectively, defendants). Menefield’s petition requested a writ directing
defendants to process the August Appeal at the formal level.
       In September 2013, the trial court held an unreported hearing on the petition.
Menefield, acting as his own attorney, appeared via CourtCall. After the hearing, the
court issued a written order stating:

       “The petition for writ of mandate is denied. The Court finds that all
       appeals submitted by [Menefield] have been properly processed. The
       request to order the [defendants] to perform their ministerial duty and
       process the appeals for review and exhaustion is moot.”
       In October 2013, Menefield filed a notice of appeal. In November, the court filed
a judgment in favor of defendants.4




4     Pursuant to California Rules of Court, rule 8.104(d)(2), we construe Menefield’s
premature notice of appeal as perfecting a timely appeal from the November 6, 2013,
judgment.



                                            5.
                                       DISCUSSION
I.     STANDARD OF REVIEW
       Generally, a writ of ordinary mandate will lie when (1) there is no plain, speedy
and adequate alternative remedy, (2) the public official has a legal and usually ministerial
duty to perform and (3) the petitioner has a clear and beneficial right to performance.
(Munroe v. Los Angeles County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1301.)
When reviewing a trial court’s judgment on a petition for ordinary mandate, we apply the
substantial evidence test to the trial court’s findings of fact and exercise our independent
judgment on legal issues, such as the interpretation of statutory or regulatory
requirements. (Ibid.)
II.    MINISTERIAL DUTIES INVOLVING AN INMATE GREIVANCE
       A.     Duty to Screen
       Pursuant to California Code of Regulations, title 15, section 3084.5, subdivision
(b),5 an appeals coordinator at a correctional institution “shall screen all appeals prior to
acceptance and assignment for review.” In this context, the term “appeal” includes the
initial inmate grievance, which is submitted by the inmate using CDCR Form 602. (See
Cal. Dept. of Corrections & Rehabilitation, Operations Manual, art. 53 [inmate appeals].)
Thus, the appeals coordinators had a ministerial duty to screen Menefield’s August
Appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th
911, 916 [a ministerial duty is an obligation to perform a specific act without regard to
any personal judgment as to the propriety of the act].) In other words, the appeals
coordinators did not have the discretionary authority to ignore Menefield’s submission.




5      All further regulatory references are to title 15 of California Code of Regulations
unless otherwise stated.



                                              6.
       B.     Discretionary Decisions to Cancel Inmate Appeals
       The point of disagreement between the parties is whether Foreman had discretion
to cancel the August Appeal. Section 3084.6, subdivision (c) (section 3084.6(c))
provides that “[a]n appeal may be cancelled for any of the follow reasons, which include,
but are not limited to .…” The subdivision then enumerates eight grounds for cancelling
an appeal. The second ground states: “The appeal duplicates an inmate or parolee’s
previous appeal upon which a decision has been rendered or is pending.” The regulation
does not define the term “duplicate.”
       We conclude that the application of section 3084.6(c)(2) to a particular appeal
requires an appeals coordinator to exercise discretion (i.e., personal judgment) in
determining whether to cancel the appeal.
       First, section 3084.6(c) states an “appeal may be cancelled .…” As a rule of
statutory construction, the word “may” generally connotes discretionary action. (REA
Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596,
606; but see, People v. Ledesma (1997) 16 Cal.4th 90, 103 (dis. opn. of Mosk, J.) [“may”
sometimes refers to the mandatory]; Horsemen's Benevolent & Protective Assn. v. Valley
Racing Assn. (1992) 4 Cal.App.4th 1538, 1558 [the word “may” can be mandatory].)
This general rule of construction provides adequate grounds for the appeals coordinators
to interpret the regulation’s use of “may” to mean they were granted discretionary
authority.
       Second, section 3084.6(c) refers to “any of the following reasons, which include,
but are not limited to .…” This language unambiguously establishes that the eight
reasons enumerated in subdivision (c) are not exclusive, which necessarily implies that
appeals coordinators are authorized to cancel an appeal for unlisted reasons the appeals
coordinator deems are sufficient. This authority to go beyond the regulatory text means
that appeals coordinators are required to exercise their personal judgment when applying
section 3084.6(c) in certain situations.


                                             7.
       Third, the regulation uses the verb “duplicates.” This term creates an ambiguity
that provides appeals coordinators with flexibility in applying the regulation. The verb
“duplicate” is defined as “to do over or again often needlessly.” (Merriam-Webster’s
Collegiate Dictionary (10th ed. 1999) p. 359.) The adjective “duplicate” means
“consisting of or existing in two corresponding or identical parts or examples.” (Ibid.)
Because the words “corresponding” and “identical”6 mean different things, this
dictionary definition of “duplicate” presents two different meanings. When these
different meanings are applied in the context of inmate administrative appeals,
“duplicates” could refer to a subsequent appeal that presents issues that are identical to
those raised in a previous appeal. Alternatively, it could mean the issues in the second
appeal merely correspond to those raised in the first appeal.
       In this case, the appeals coordinators apparently interpreted the regulatory term
“duplicates” to mean a significant, but not complete, overlap in the issues presented by
the two appeals. This construction falls within the range of reasonable interpretations
and, therefore, is entitled to judicial deference. (In re Cabrera (2012) 55 Cal.4th 683,
690 [courts defer to prison official’s interpretation of their regulations unless the
interpretation is clearly unreasonable].) Furthermore, the application of this
interpretation to a particular set of facts requires the appeals coordinators to exercise their
personal judgment on whether the degree of overlap among the issues presented was
sufficient to deem the subsequent appeal duplicative of the first.
       In summary, we disagree with Menefield’s position that the appeals coordinators
had no regulatory discretion to cancel the August Appeal.




6      Black’s Law Dictionary (9th ed. 2009) page 577 defines the verb “duplicate” as
“[t]o copy exactly.” If this definition of “duplicate” were adopted, Menefield would
prevail in this appeal.



                                              8.
       C.     Abuse of Discretion
       Menefield presents the alternate argument that, if the appeals coordinators had
regulatory discretion to cancel an appeal, the defendants did not lawfully or reasonably
exercise that discretion in this case. In other words, Menefield claims the defendants
abused their discretion because his appeals did not duplicate one another. We disagree.
       Menefield contends the June Appeal (1) focused on a policy of denying chapel
access for routine, weekly religious services and (2) alleged a violation of the settlement
agreement. In contrast, he contends the August Appeal alleges misconduct by a specific
staff member, Captain Walker, for not obeying the written policy set forth in Warden
Brazelton’s July 2, 2012, memorandum. That memorandum addressed chapel access for
Muslim inmates, with or without a chaplain, during the holy month of Ramadan.
       In Menefield’s view, the fact that both appeals concerned chapel access for
Muslim inmates does not establish duplication because (1) the routine religious services
at issue in the June Appeal are not like the more important religious services during
Ramadan and (2) the interpretation and application of provisions of the settlement
agreement are different from the interpretation and application of the directives in the
warden’s memorandum.
       We agree with Menefield’s position that there are differences between the two
appeals. We do not agree that these differences are so compelling that the appeals
coordinators could not reasonably determine the August Appeal was duplicative of the
June Appeal. Instead, we conclude the issues presented in the appeals overlapped. Both
concerned access to the chapel by Muslim inmates and balancing that access against the
safety and security of the institution in the circumstance presented. Because there was a
significant overlap of issues presented, we conclude the appeals coordinators did not
abuse their discretion in determining the August Appeal duplicated the June Appeal.
       Therefore, the trial court properly denied the petition for a writ of mandate.




                                             9.
                                 DISPOSITION
     The judgment is affirmed.


                                               ______________________
                                                            Franson, J.

WE CONCUR:


_______________________
Kane, Acting P.J.


_______________________
Poochigian, J.




                                     10.
