Filed 10/22/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

RICHARD J. CRANE,

Plaintiff and Appellant,

v.

JOSEPH CLAY DOLIHITE,

Defendant and Respondent.

F079877

(Super. Ct. No. 14C0180)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Kathy 

Ciuffini, Judge.

Richard J. Crane, in pro. per., for Plaintiff and Appellant. 

No appearance for Defendant and Respondent.

-ooOooPlaintiff 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 Code Civ. 

Proc., §§ 583.210, subd. (a) [plaintiff must serve a defendant within three years], 

583.250.)1 

1 Subsequent unlabeled statutory references are to the Code of Civil Procedure.
2.

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 

contradicts Penal Code section 4013, subdivision (a) and Code of Civil Procedure section 

416.90, which have been interpreted as authorizing litigation coordinators at state prisons 

to accept service on behalf of inmates. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 

852, 858–859 (Sakaguchi).)

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 (Pen. Code, 

§ 2601, subd. (d)) has been infringed. Specifically, the record shows that official acts 

frustrated Crane’s attempts to serve his civil action on the defendant inmate and that the 

dismissal of the nonfrivolous action caused a miscarriage of justice. Based on this 

showing, we conclude Crane’s statutory right of access to the courts was denied and do 

not reach the constitutional aspects of Crane’s claim of error. 

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 
3.

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 officers in federal 

court, alleging a violation of his civil rights under section 1983 of title 42 of the United 

States Code. Crane contends the assaults are part of a conspiracy between prison guards 

and inmates to retaliate against him for suing the warden and two captains for denying 

outdoor exercise and staging assaults on inmates. (See Crane v. McDonald (E.D.Cal. 

May 8, 2012, No. CIV S-11-0663 KJM CKO P) 2012 U.S.Dist. Lexis 64622 [order 

concluding an Eighth Amendment denial of outdoor exercise claim was properly 

alleged].)2

2 Pursuant to Evidence Code sections 452, subdivision (c) and 459, we take judicial 

notice of the existence of the December 2015 report issued by the Office of the Inspector 

General entitled “2015 Special Review: High Desert State Prison, Susanville, 

California,” but not the facts stated in the report. (See Licudine v. Cedars-Sinai Medical 

Center (2016) 3 Cal.App.5th 881, 902 [court could take judicial notice of fact that Bureau 

of Labor Statistics published report but not truth of facts stated in report].) The report 

addressed practices at the prison with respect to excessive use of force against inmates, 
4.

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 Penal Code 

section 4501. He was sentenced to a total of eight years—four years for the assault and 

four years for the enhancement for prior convictions. 

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 sections 413.30, 414.10 and 

415.30. Crane asserted he was prevented from effecting service because of the 

concealment of Dolihite’s address. Crane stated Dolihite’s address was not listed in the 

information available through the online inmate locator maintained by the California 

Department of Corrections and Rehabilitation (CDCR). 

On March 2, 2015, the superior court filed an order rejecting Crane’s assertion that 

Dolihite’s address was being concealed. The court had used CDCR’s online inmate 

locator and found Dolihite’s location was available. The order also stated:

internal review of incidents involving the use of force against inmates, protecting inmates 

from assault and harm by others, and treatment of disabled inmates. 
5.

“This court has already informed plaintiff that the court does not serve civil 

complaints for litigants. They are served by the Sheriff Department at the 

county where defendant is located and plaintiff must make his own 

arrangements for service.

“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 California Code of 

Regulations, tit. l5 section 3139. This regulation requires written 

authorization from the warden before inmates may correspond with one 

another. Institutional safety and security supports a regulation that requires 

prior permission of the warden before an inmate may correspond with 

another inmate. (Turner v. Safley (1987) 482 U.S. 78.) Should the warden 

deny either inmate the right to correspond, this court would have no 

alternative but to stay this litigation until the parties have been released 

from their confinement (Payne v Superior Court (1976) 17 Cal.3d 908, 924, 

927; Wantuch v Davis (1995) 32 Cal.App.4th 786, 792.)” 

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 
6.

lawsuit, setting a case management conference for May 17, 2016, and vacating a June 

2015 hearing on the order to show cause. Effectively, the case was stayed for one year. 

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 
7.

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 deadline of February 14, 2018, and asserted the 

absence of a response was denying him access to the court in this lawsuit. 

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 Code of Civil Procedure sections 583.210 and 

583.250” and gave Crane “until March 3, 2018, to file the response from the warden to 

[his] request to correspond with defendant for the purposes of pursuing this lawsuit.” 

The order also stated the issue would be addressed further at a case management 

conference scheduled for March 8, 2018. Crane’s case management statement was filed 

a day before the conference and indicated permission from the warden was still pending.
8.

Over the course of the next year, several case management conferences and 

hearings on orders to show cause were scheduled. Often, Crane did not appear and 

subsequently asserted he had been denied access to CourtCall. During that year, Crane 

kept the superior court apprised of the fact he had not received any reply to his CDCR 

form 22 or his letter to the warden. Crane also repeated his earlier request that the court 

order service of the complaint on Dolihite. 

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 CM-020, the court signed an 

order stating (1) the case management conference would remain scheduled on April 26, 

2019, and (2) CourtCall was approved for Crane on that date. Subsequently, the court 

rescheduled the conference for June 26, 2019. 

On April 29, 2019, Crane filed another application on Judicial Council form CM020 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.
9.

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. 

DISCUSSION

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 
10.

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. 

(Pen. Code, § 2601, subd. (d).) This statute has been interpreted to afford state prisoners 

a right of meaningful access to the courts to both initiate and prosecute civil actions. 

(Smith, supra, at p. 465.) Under Penal Code section 2601, subdivision (d), “ ‘a prisoner 

may not be deprived, by his or her inmate status, of meaningful access to the civil courts 

if the prisoner is both indigent and a party to a bona fide civil action threatening his or her 

personal or property interests.’ ” (Smith, supra, at p. 465.)

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.)
11.

A nonexclusive list of measures to ensure indigent prisoners are afforded 

meaningful access to the courts include “(1) deferral of the action until the prisoner is 

released; (2) appointment of counsel for the prisoner; (3) transfer of the prisoner to court 

to attend hearings or the trial; (4) utilization of depositions in lieu of personal 

appearances; (5) holding of trial in prison; (6) conducting status and settlement 

conferences, hearings on motions and other pretrial proceedings by telephone; (7) 

propounding of written discovery; and (8) use of closed circuit television or other modern 

electronic media.” (Smith, supra, 38 Cal.App.5th at p. 467, italics omitted.) In addition, 

trial courts may implement other innovative, imaginative procedures. (Ibid.)3 When 

deciding the appropriate measure or measures to assure access, the relevant 

circumstances include the practicality and effectiveness of the various measures available 

to protect the prisoner’s right of access to the courts. (Smith, supra, at p. 467.)

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, 

3 Based on this list of specific measures and the broad description of other 

procedures, we conclude the superior court’s March 2015 order misstated the options 

available when it stated: “Should the warden deny either inmate the right to correspond, 

this court would have no alternative but to stay this litigation until the parties have been 

released from their confinement (Payne v. Superior Court[, supra,] 17 Cal.3d 908, 924, 

927; Wantuch v. Davis[, supra,] 32 Cal.App.4th 786, 792.)” 
12.

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.” (§ 17, subd. (b)(7).) Service of a summons is governed by a five-article 

chapter in California’s Code of Civil Procedure. (§§ 413.10–417.40.) “[C]ompliance 

with the statutory procedures for service of process is essential to establish personal 

jurisdiction.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444

[judgment against a defendant who was not served with a summons in the manner 

prescribed by statute is void].)

1. Who May Serve a Summons

“[A]ny person who is at least 18 years of age, and not a party to the action” may 

serve a summons. (§ 414.10.) A summons may be served by a private individual 

meeting these requirements, by a professional process servicer, or by certain peace 

officers. (See Bus. & Prof. Code, § 22350 [registration of professional process servers], 

Gov. Code, § 26665 [marshals and sheriffs authorized to serve process in civil actions].) 

Government Code section 26608 states that “[t]he sheriff shall serve all process 

and notices in the manner prescribed by law.” (Italics added; see 42A Cal.Jur.3d (2016) 

Law Enforcement, § 167, p. 269.) The predecessor of this provision, which also referred 

to “all process,” was interpreted to require a sheriff “to serve all process and notices 

directed to him, or placed in his hands for service, which the law commands him to serve 

when addressed or handed to him.” (Golden Gate Hydraulic Mining Co. v. Superior 

Court (1884) 65 Cal. 187, 190; see Ayres v. Burr (1901) 132 Cal. 125, 129 [“sheriff is 

required to serve all writs and other process coming to him which are regular on their 

face”].) The fee payable to a sheriff for serving process in a civil action is set by statute 

at $40. (Gov. Code, §§ 26720.9, 26721.)
13.

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 section 416.90, which states: “A summons may be 

served on a person not otherwise specified in this article by delivering a copy of the 

summons and of the complaint to such person or to a person authorized by him to receive 

service of process.” “The Judicial Council comment regarding this section explains, 

‘Service is made by delivering, in a manner specified in Section 413.10, a copy of the 

summons and of the complaint to such person personally or to his agent. [¶] If process is 

delivered to an agent of defendant, such agent must be one who is authorized by law or 

by appointment to receive service of process.’ ” (Sakaguchi, supra, 173 Cal.App.4th at p.

858, italics added.) 

Based on section 416.90 and the related comment, we consider whether California 

law authorizes anyone to accept service on behalf of a prisoner. Penal Code section 

4013, subdivision (a) states that a “jailer upon whom a paper in a judicial proceeding, 

directed to a prisoner in his or her custody, is served, shall forthwith deliver it to the 

prisoner, with a note thereon of the time of its service. For a neglect to do so, he or she is 

liable to the prisoner for all damages occasioned thereby.” This provision does not 

explicitly state a jailer or official at a state prison is authorized to accept service on behalf 

of a prisoner. Nonetheless, the mandatory duty to “forthwith deliver” the papers to the 

prisoner strongly implies that jailers are required to accept service in the first place. 

Accepting this implication, the court in Sakaguchi, supra, 173 Cal.App.4th 852, 

interpreted Penal Code section 4013, subdivision (a) to mean a “jailer is authorized by 

law to receive service of process on behalf of a prisoner in his or her custody.” 

(Sakaguchi, supra, at p. 858.) 
14.

In Sakaguchi, the plaintiff “served process on the litigation unit coordinator at 

Avenal State Prison in accordance with the procedures for service by mail set out in 

section 415.30.” (Sakaguchi, supra, 173 Cal.App.4th at p. 859.) The litigation 

coordinator signed and dated (1) the notice and acknowledgement of receipt included 

with the summons and complaint and (2) a proof of service of summons form, which 

declared she had personally delivered the summons and complaint to the defendant 

prisoner. (Ibid.) The court concluded the plaintiff “complied with the statutory 

requirements for service of process.” (Ibid.) 

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 

415.30. The other three usual methods for completing service within California are (1) 

personal delivery to the defendant or someone authorized by law to accept the summons 

on the defendant’s behalf (§ 415.10); (2) delivery to someone else at the defendant’s 

usual residence or place of business (§ 415.20); and (3) service by publication (§ 415.50). 

In addition, section 413.30 states: “Where no provision is made in this chapter or other 

law for the service of summons, the court in which the action is pending may direct that 

summons be served in a manner which is reasonably calculated to give actual notice to 

the party to be served and that proof of such service be made as prescribed by the court.” 
15.

Thus, when none of the four usual methods of service is available, the trial court has the 

discretion to authorize service by another means.

For purposes of this appeal, we consider how service of process might have been 

effected through the sheriff’s office, either on Dolihite personally or on the litigation 

coordinator as a person authorized by law to accept service on behalf of a prisoner. We 

also consider how service might have been completed by mail. 

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 section 415.30, the litigation coordinator has a duty to 

“forthwith deliver [the papers] to the prisoner, with a note thereon of the time of its 

service.” (Pen. Code, § 4013, subd. (a).)
16.

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.)

We recognize Lewis is distinguishable from the present case because it involved a 

lawsuit in which the cause of action alleged a denial of the right of access to the courts, 

not a lawsuit where a dismissal on procedural grounds (i.e., a failure to serve process 

within three years) arguably denied the plaintiff’s right of access to the courts. Lewis also 

is distinguishable because it addressed the constitutional right of access to the courts. 

Here, we do not reach the constitutional questions because our analysis is based on the 

statutory right set forth in Penal Code section 2601, subdivision (d). (See generally, 

California Chamber of Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604, 

631, fn. 19 [under the constitutional avoidance doctrine, it is prudent to address a 

statutory ground to avoid reaching a constitutional ground].) Despite these distinctions, 

we conclude the elements that must be alleged to state a federal civil rights claim provide 

guidance for defining the appropriate test for whether a denial of the statutory right of 

access occurred in this case. 
17.

The elements of a federal civil rights claim include (1) actual injury, (2) official 

acts frustrating the litigation, and (3) a remedy that may be awarded as recompense that is 

not otherwise available in a future suit. (Christopher v. Harbury (2002) 536 U.S. 403, 

413–414.) Adapting these elements to a denial of the statutory right to prosecute a civil 

action (Pen. Code, § 2601, subd. (d)), we conclude the prisoner must show (1) official 

acts frustrating the litigation and (2) an actual injury that satisfies the standard used in 

civil cases for a miscarriage of justice. To demonstrate actual injury, the prison must 

show the loss or impairment of a nonfrivolous cause of action. (Christopher v. Harbury, 

supra, at p. 416.) Such a showing entails describing the cause of action well enough to 

apply the nonfrivolous requirement and determine the cause of action is more than a 

hope. (Ibid.) In addition, to establish a miscarriage of justice, the prisoner must show it 

is reasonably probable that a result more favorable to him or her would have been 

reached in the absence of the denial of access. (See Soule v. General Motors Corp.

(1994) 8 Cal.4th 548, 574.)

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 of 

judgment of conviction in subsequent civil proceeding]; Evid. Code, § 1300.) 

Accordingly, Crane has shown it is reasonably probable that a result more favorable than 

the dismissal would have been reached if the lawsuit had not been dismissed. 
18.

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 

(Gov. Code, § 26608) and its experience with the Kings County Sheriff’s Office. Many 

prisoner lawsuits are filed in Kings County Superior Court and service on defendant 

prison officials often is completed by the sheriff’s office. Typically, a sheriff’s deputy 

personally delivers the summons and complaint (or writ) to the litigation coordinator at 

the prison and files a proof a service with the court,

4 a method that is consistent with the 

provisions in the DOM addressing service of process. Thus, the superior court’s 

statement about making arrangements with the sheriff’s office to serve process accurately 

4 As an example, in the nonpublished opinion Foster v. Sexton (Sept. 25, 2019, 

F078480) the sheriff’s deputy (1) served the warden at Corcoran State Prison by 

personally delivering the writ to the litigation coordinator at the prison and (2) filed a 

proof of service on Judicial Council form POS-010 on October 9, 2018. The proof of 

service stated the litigation coordinator was authorized to receive service on behalf of the 

warden. We take judicial notice of the proof of service, which appears at page 61 of the 

clerk’s transcript in that appeal. (Evid. Code, §§ 452, 459.) 
19.

identified a procedure for completing service.

5 The problem in this case arose because 

the court assumed the Monterey County Sheriff’s Office would handle service of process 

in the same or a similar manner as the Kings County Sheriff’s Office.

The Monterey County Sheriff’s Office responded to Crane’s request by returning 

his documents with a “Notice of Action Taken” informing Crane that “WE ARE 

UNABLE TO PROCESS YOUR REQUEST FOR THE REASON(S) INDICATED 

BELOW.” The only reason given stated: “Please contact Soledad State Prison to serve 

inmates at their facilities.” We note that a preprinted part of the notice form referred to 

errors in the documents, but no errors in Crane’s documents were identified in the notice 

sent to Crane. 

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 Code Civ. Proc., § 

416.90; Pen. Code, § 4013, subd. (a)) or, alternatively, serving Dolihite personally while 

being escorted by prison staff into a security area (DOM, § 14010.7.4). Thus, the 

combined effect of the superior court’s order stating Crane would have to make 

arrangements with the sheriff’s office to serve the summons and complaint and that 

office’s refusal to serve the documents had the combined effect of frustrating Crane’s 

attempt to serve process on Dolihite. 

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 

5 The court’s informing Crane that service could be completed using the sheriff’s 

office did not violate the duty of impartiality and was consistent with its responsibility of 

treating litigants fairly. It is ethically permissible for judges to accommodate selfrepresented litigants by explaining court procedures, such as service of process, so long 

as the court provides such guidance to all parties. (Rothman, et al., California Judicial 

Conduct Handbook (4th ed. 2017) § 2:28, pp. 99-100; see generally, Nuño v. California 

State University, Bakersfield (2020) 47 Cal.App.5th 799, 809–810 [judge’s 

responsibilities in communicating with self-represented litigants].)
20.

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 summons and 

complaint in an attempt to serve Dolihite. The litigation coordinator’s letter advised 

Crane that the materials were being returned because of (1) “Improper Service” and (2) 

“the Litigation office does not serve or accept service for other inmates.” The litigation 

coordinator’s statement that the litigation office does not accept service for inmates is 

contrary to a literal reading of section 14010.7.4 of the DOM and, moreover, is contrary 

to the responsibilities imposed by Penal Code section 4013, subdivision (a) as interpreted 

by the court in Sakaguchi, supra,173 Cal.App.4th 852. Under the statute, the litigation 

coordinator “upon whom a paper in a judicial proceeding, directed to a prisoner in his or 

her custody, is served, shall forthwith deliver it to the prisoner, with a note thereon of the 

time of its service.” (Pen. Code, § 4013, subd. (a).) Construing the word “shall” in 

6 For purposes of this appeal, we do not address whether section 3139 of title 15 of 

the California Code of Regulations, which requires inmates to obtain written 

authorization “to correspond” with any inmate held in a state or federal correctional 

facility, requires prior permission to serve a summons and complaint by mail. It may be 

that prison officials do not interpret “to correspond” to encompass the mailing of a 

summons and complaint to a litigation coordinator at the prison where the defendant 

inmate is incarcerated. We refrain from addressing this issue because no prison official 

has appeared in this lawsuit and taken a position about how the regulation is interpreted 

and provided a rationale for that interpretation.
21.

“according to the context and the approved usage of language” (Pen. Code, § 7, subd. 

16), we conclude “shall” denotes a mandatory obligation. (See People v. Perez (2021) 67 

Cal.App.5th 1008, 1014 [“shall” is ordinarily construed as mandatory and its use in Pen.

Code § 1473.7, subd. (b)(1) established a mandatory rule].) Accordingly, the litigation 

coordinator’s refusal to deliver the summons and complaint violated Penal Code section 

4013 and further frustrated Crane’s attempts to serve Dolihite.

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. (Pen. Code, § 2601, subd. (d).)

D. Harmonizing the Statutes

Next, we consider how the violation of an indigent prisoner’s statutory right of 

access pursuant to Penal Code section 2601, subdivision (d) affects the calculation of the 

three-year period for service of process. Section 583.210, subdivision (a) requires a 

plaintiff to serve “a defendant within three years after the action is commenced against 

the defendant.” A lawsuit “is commenced” when the complaint is filed. (Ibid.)

The calculation of the three-year period is subject to section 583.240, which lists 

four conditions that result in the exclusion of time from the three-year period. Two of 

those conditions are relevant to this litigation. First, time is excluded when “[t]he 

prosecution of the action or proceedings in the action was stayed and the stay affected 

service.” (§ 583.240, subd. (b).) Second, time is excluded if “[s]ervice ... was 

impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” 

(§ 583.240, subd. (d)). Ordinarily, these conditions “must be construed strictly against 

the plaintiff.” (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326.) However, when an 
22.

indigent prisoner establishes a denial of his statutory right of access to the courts, we 

conclude a strict construction is inappropriate. The statutory right of access to the courts, 

which has constitutional foundations, is more important that the procedural requirement 

established for the efficient operation of the courts. Accordingly, we conclude the 

statutory time limits for service should be construed to protect rather than deny the right 

of access. As a result, the time during which official acts frustrated the service of process 

and denied an indigent prisoner his statutory right of access to the courts qualifies as time 

during which service was “impracticable[] or futile due to causes beyond the plaintiff’s 

control.” (§ 583.240, subd. (d).)

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 section 583.240. The stay might have been continued for another year until May 

2017, but this is a question that need not be resolved. In January 2018, Crane submitted 

his CDCR form 22 and sent a letter to the warden seeking permission to correspond with 

Dolihite for purposes of pursuing this lawsuit. As discussed earlier, the lack of a 

response to Crane’s request, the sheriff’s office refusal to serve Dolihite, and the 

litigation coordinators refusal to accept service pursuant to Penal Code section 4013, 

subdivision (a) had the combined effect of frustrating Crane’s attempts to serve Dolihite. 

This period of frustration, from January 2018 through the dismissal in June 2019, lasted 

17 months. When the one-year stay and this 17-month period are excluded from the 

calculation of the time passed since the filing of the complaint, only two years and seven 

months count against the three-year period.
23.

Consequently, we conclude the three-year period for service of process has not 

expired and dismissal is not mandatory under section 583.250, subdivision (b). 

Accordingly, the dismissal of must be reversed.

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 further proceedings. The statutory 

authority for such directions includes section 43, which states that an appellate court 

“may affirm, reverse, or modify any judgment or order appealed from, and may direct the 

proper judgment or order to be entered, or direct ... further proceedings to be had.” 

(Italics added.) Section 906 defines the powers of a reviewing court in a similar way, 

stating the court “may, if necessary or proper, direct ... further proceedings to be had.” 

Under these provisions, our task is to determine what further proceedings on remand are 

“necessary or proper.” (§ 906.)

In exercising the discretionary authority granted by sections 43 and 906, we 

consider whether Crane is eligible for the measures that may be implemented to protect 

an indigent prisoner’s right of meaningful access to the courts. (Smith, supra, 38 

Cal.App.5th at p. 467.) To be eligible, Crane must establish (1) his indigency and (2) the 

bona fide nature of his personal injury lawsuit. (Id. at p. 466.)

We conclude Crane has established both elements. First, in September 2019, 

Crane submitted a request to waive court fees on mandatory Judicial Council form FW001, 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 
24.

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 other arrangement acceptable to 

both Crane and the attorney. We note the probability of locating an attorney willing to 

accept a pro bono appointment might increase if the appointment is not for the entire 

case. The self-help website maintained by the California’s judicial branch describes 

limited-scope representation, which sometimes is called “unbundling” or “discrete task 

representation,” and involves an attorney handling only one or a few aspects of a case. 

(<https://www.courts.ca.gov/1085.htm> [as of Oct. 18, 2021].) Thus, the discretionary 

measures available to the trial court include appointing a willing attorney for the limited 

purpose of effecting service of process. 
25.

In sum, because of the potential difficulties in appointing counsel for Crane, even 

for the limited purpose of completing service, our directions for further proceedings on 

remand will not require, but do not foreclose, appointing counsel to resolve the problem 

of service of process. In other words, the superior court’s discretionary authority 

includes other measures that can be used to complete service of process and effectuate 

Crane’s statutory right of access to the court. 

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 section 

415.30. Those requirements include sending two copies of a Notice and 

Acknowledgement of Receipt–Civil (mandatory Judicial Council form POS-015) and “a 

return envelope, postage prepaid, addressed to the sender.” (§ 415.30, subd. (a).) 

Because the litigation coordinator at Salinas Valley State Prison previously refused to 

accept service on behalf of Dolihite, an order or cover letter could be included (1)

referring to the mandatory obligation under Penal Code section 4013, subdivision (a); (2) 

stating that subdivision was interpreted in Sakaguchi, supra, 173 Cal.App.4th 852, as 

applying to litigation coordinators at a state prison; and (3) requesting the litigation 

coordinator to serve the papers on Dolihite and complete and return the related 

paperwork to the clerk of court.

3. Other Methods of Service

Another possibility is for the superior court to invoke its authority under section 

413.30 and “direct that summons be served in a manner which is reasonably calculated to 

give actual notice to the party to be served and that proof of such service be made as 

prescribed by the court.” The court might be able to identify an innovative method for 
26.

effecting service of the summons and complaint and section 413.30 provides the statutory 

authority for implementing that method. 

4. Summary

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 section 415.30, or some 

other measure, so long as the measure is effective in achieving service.

7 

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.

7 We recognize further difficulties may arise in both the prosecution and the defense 

of this action. Future difficulties, and how they should be resolved to protect each 

inmate’s right of access to the courts, are necessarily beyond the scope of this opinion.