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Before Filing Habeas, Exhaust Administrative Remedies
A state habeas corpus petitioner who wants to challenge prison or parole conditions, prison or parole policies, or actions taken by prison or parole staff usually must first “exhaust administrative remedies” by completing any available administrative appeal process. In re Strick (1983) 148 Cal. App. 3d 906, 911, 196 Cal. Rptr. 293; In re Dexter (1979) 25 Cal. 3d 921, 925, 160 Cal. Rptr. 118; In re Muszalski (1975) 52 Cal. App. 3d 500, 503-505, 508, 125 Cal. Rptr. 286.
This requirement does not apply to petitions challenging criminal convictions or sentences, civil commitments, parole or PRCS revocations, or other actions taken by a court.
A person who wants to exhaust administrative remedies must figure out what, if any administrative appeal process is available, and pursue the administrative appeal to the highest level. A person who wants to challenge a CDCR action, condition, or policy should pursue a CDCR Form 602 (most issues), Form 602-HC (health care) or Form 1824 (disability accommodation).
For challenges to most Board of Parole Hearings (BPH) policies or decisions, there is no administrative appeal process and thus no administrative remedies to exhaust. However, the BPH does have administrative appeal processed for requests for disability accommodations, challenges to factual errors in risk assessments (psychological evaluations), and challenges to denial of non-violent offender (Prop. 57) parole or youth offender parole.
There are circumstances in which courts can and should make exceptions to the exhaustion of administrative remedies requirement for state habeas (and mandate) petitions. Ogo Associates v. City of Torrance (1974) 37 Cal. App. 3d 830, 834, 112 Cal. Rptr. 761. In such situations, courts can allow a case to proceed even though the person has not completed the administrative appeal process. Commonly recognized exceptions include the following three situations:
- No administrative remedy is available or the administrative appeal process is inadequate to address the issue. Glendale City Employee’s Assn., Inc. v. City of Glendale (1975) 15 Cal. 3d 328, 342-343, 124 Cal. Rptr. 513 (issue fell outside scope of matters covered by city grievance procedure); In re Hudson (2006) 143 Cal. App. 4th 1, 7-8, 49 Cal. Rptr. 3d 74 (regional parole administrator did not respond at second level of review and regulations did not specify what if any further action the person on parole should take); In re Mitchell (2000) 81 Cal. App. 4th 653, 655-656, 97 Cal. Rptr. 2d 41 (interpretation of statute restricting prison credits was judicial function, particularly since CDCR had denied prior appeals by stating that concerns should be addressed to courts); Strick, supra, at 911 (similar holding as in Mitchell).
- Seeking an administrative remedy would be futile because the action is consistent with a clear agency policy or rule or officials have consistently defended the policy or rule against similar challenges. In re Trejo (2017) 10 Cal. App. 5th 972, 979, 216 Cal. Rptr. 3d 855; In re Mitchell (2000) 81 Cal. App. 4th 653, 655-656, 97 Cal. Rptr. 2d 41; In re Locks (2000) 79 Cal. App. 4th 890, 893-894, 94 Cal. Rptr. 2d 495, abrogated on other grounds by In re Qawi (2004) 32 Cal. 4th 1, 7 Cal. Rptr. 3d 780; In re Arias (1986) 42 Cal. 3d 667, 678-679, 230 Cal. Rptr. 505, superseded by statute on other grounds, see Thompson v. California Dept. of Corrections (2001) 25 Cal. 4th 117, 130, 105 Cal. Rptr. 2d 46; In re Thompson (1985) 172 Cal. App. 3d 256, 262-263, 218 Cal. Rptr. 192; In re Reina (1985) 171 Cal. App. 3d 638, 642, 217 Cal. Rptr. 535; Dexter, supra, at 925.
This exception does not apply if it is reasonably possible the agency will change or override its policy based on the facts of a particular case. Bockover v. Perko (1994) 28 Cal. App. 4th 479, 491, 34 Cal. Rptr. 2d 423; In re Serna (1978) 76 Cal.App.3d 1010, 1014, 143 Cal. Rptr. 350.
- Taking the time to exhaust administrative remedies would cause an unreasonable risk of irreparable harm to the person. Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 296-297; Ogo Associates, supra, at 834. The risk of irreparable harm might exist where medical or safety concerns are causing great pain or high risk of serious injury, or where a person is being held past their lawful release date. The fact that a constitutional right is being violated does not in itself necessarily amount to irreparable harm. See Serna, supra at 1014-1015.
- It is usually a good idea for a person in prison or on parole to at least start the administrative appeal process before filing a habeas petition, even if a court might allow an exception to the exhaustion requirement. Filing an administrative appeal will show that the petitioner at least is attempting to resolve the problem. Moreover, if the judge denies the petition due to failure to exhaust administrative remedies, a person with an administrative appeal already underway will be able to get back into court more quickly and will not risk having the appeal rejected as untimely.
A person who files a state habeas corpus petition before completing the administrative appeal process should explain in the petition why the court should make an exception to the exhaustion requirement. He or she should also describe any efforts that have been made to inform prison or parole officials about the problem. The petitioner should attach any documents that help support the claim that the judge should go ahead and hear the case.
This article would not have been possible without reference to information provided in the Prison Law Office’s wonderful treatise, California Prison and Parole Law Handbook. We thank the Prison Law Office for their valuable work.
