1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 On December 20, 2004, the court dismissed the claims against defendants George,

Scotland, Bradbury and Wagner. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BYRON L. SCOTT,

Plaintiff, No. CIV S-04-2586 LKK GGH P

vs.

CALIFORNIA SUPREME COURT, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Pending before the court is defendant’s motion to dismiss filed June 30, 2005. 

Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b) for failure to exhaust

administrative remedies. After carefully reviewing the record, the court recommends that

defendant’s motion be denied.

This action is proceeding on the original complaint filed December 6, 2004. 

Plaintiff alleges that defendant Warden Runnels violated his First Amendment rights by denying

plaintiff’s request for a name change.1 

/////

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

42 U.S.C. § 1997e(a) provides that, “[n]o action shall be brought with respect to

prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.” In order for California prisoners to exhaust administrative remedies, they must

proceed through several levels of appeal: 1) informal resolution, 2) formal written appeal on a

CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 

4) third level appeal to the Director of the California Department of Corrections. Barry v.

Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A

final decision from the Director’s level of review satisfies the exhaustion requirement. Id. at

1237-38.

In Booth v. Churner, 121 S. Ct. 1819 (2001) the Supreme Court held that inmates

must exhaust administrative remedies, regardless of the relief offered through administrative

procedures. 121 S. Ct. at 1825. Therefore, inmates seeking money damages must completely

exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be

brought with respect to prison conditions until such administrative remedies as are available are

exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). 

The procedures by which inmates may obtain name changes are relevant to the

issue of whether plaintiff exhausted administrative remedies. These procedures are contained in

Cal. Code Regs. tit. 15, § 3294.5 which provides, in relevant part,

(a) All inmate or parolee requests for a legal name change shall initially be 

reviewed by the Warden or Regional Parole Administrator who shall either 

recommend approval for a legal name change or deny the request for a legal name 

change.

(b) If the request is denied, the Warden or Regional Parole Administrator shall 

respond to the inmate or parolee in writing with the reasons for denial. A copy of 

the denial shall be placed in the miscellaneous section of the inmate/parolee’s 

central file.

(c) If the Warden finds reasons that exist to warrant an inmate’s request for a 

name change, then the Warden shall forward the request to the Institutions 

Division Regional Administrator, along with a memorandum listing the reasons 

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

for recommending approval. A copy of the memorandum shall be placed in the 

miscellaneous section of the inmate’s central file.

*****

(e) If the Institutions Division Regional Administrator or the Assistant Deputy 

Director, P & CSD, agrees with the recommendation to approve the request for a 

name change of an inmate or parolee, a letter shall be forwarded to the court 

explaining why the Department is recommending approval for a name change, 

along with the inmate/parolee’s request. A copy of the letter shall be placed in the

miscellaneous section of the inmate/parolee’s central file.

*****

(l) If the court ordered name change is received without departmental approval, 

this clearly indicates that the inmate/parolee has not followed proper procedure to 

legally change his/her name. In this case, the Warden or Regional Parole 

Administrator shall notify the issuing court in writing that the name change cannot

legally be changed without the Director’s approval pursuant to the Code of Civil 

Procedure, Section 1279.5. A copy of the letter shall be placed in the 

miscellaneous section of the inmate/parolee’s central and a copy shall be provided

to the inmate/parolee.

On November 5, 2003, plaintiff submitted a form entitled “Inmate Request for

Interview” addressed to the Warden. Complaint, Exhibit C1. In this request, plaintiff sought

permission to change his name. Id. On November 18, 2003, Correctional Counselor Cain

prepared a response to this request stating, 

If you are changing your name legally through the court system as noted in CCR 

Title 15 3294.5(G) you may proceed. Please note that per CCR Title 15 3294.5(I) 

your name will remain the same on all departmental records. 

Id.

On January 6, 2004, plaintiff filed an informal level administrative appeal (602)

requesting a name change. Complaint, Exhibit A. In this appeal, plaintiff stated that he had

submitted a request for a name change to the Warden but it was forwarded to Correctional

Counselor Cain. Id. On January 8, 2004, the appeal was returned with the notation, “In order to

receive a legal name change, you need to go through the court. This is outside the jurisdiction of

the CDC.” Complaint, Exhibit 1A. 

\\\\\

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

On April 4, 2004, plaintiff submitted a petition for a name change to the Lassen

County Superior Court. Complaint, Exhibit B. On April 7, 2004, the petition was returned to

plaintiff with a form entitled “Notice of Return.” Complaint, Exhibit B1. This form stated that

the petition was being returned for the following reasons:

Civil case cover sheet not date, petition box # 4 not marked, decl. on page 2 not 

dated [sic] you have a proof of service filled out by you & you cannot serve [sic] 

you are a party to this action and secondly the judge must sign the order to show 

cause before it can be served, 3rdly a person incarcerated cannot have his name

change without the department of corrections approval. 

Complaint, Exhibit B1.

On April 12, 2004, plaintiff alleges that he resubmitted his petition for name

change to the Lassen County Superior Court with the documentation indicating that his request

for a name change had been approved. As evidence of this approval, plaintiff submitted his 

November 5, 2003, “Inmate Request for Interview” form and Correctional Counselor Cain’s

response. 

On April 22, 2004, plaintiff received a Notice of Return from the Lassen County

Superior Court regarding his resubmitted petition for name change. Complaint, Exhibit D. This

time, the notice stated that plaintiff’s petition was being returned for the following reason:

Pursuant to Section 1279.5(b) of the California Code of Civil Procedure, no 

person imprisoned in the state prison and under the jurisdiction of the Director of 

Corrections shall be allowed to file an application for change of name pursuant to 

Section 1267 of the California Code of Civil Procedure, except as permitted at the

discretion of the Director of Corrections.

In the complaint, plaintiff alleges that he then sent a letter to the Director of the

California Department of Corrections seeking assistance in obtaining a name change. On May

20, 2004, Frank Lopez, Facility Captain for the Institution Services Unit of the Department of

Corrections, sent plaintiff a letter advising that he must follow the procedures outlined in Cal.

Code of Regs. tit. 15, § 3294.5 for obtaining a name change. Complaint, Exhibit F. Mr. Lopez

told plaintiff to submit his request through the Warden at High Desert State Prison. Id.

\\\\\

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

On or around July 16, 2004, plaintiff filed a habeas corpus petition with the

California Court of Appeal, Third Appellate District. Complaint, Exhibit AB. In this petition,

plaintiff complained that prison officials had not properly processed his requests to obtain a name

change. Id. On July 29, 2004, the Attorney General’s Office filed an informal response to the

petition. Complaint, Exhibit AC. This informal response discussed plaintiff’s attempts to obtain

a name change, as described above. Id. This letter also discussed the procedures by which

inmates may obtain name changes as described by Cal. Code Regs. tit. 15, § 3294.5. The letter

concluded, 

If the Warden, Regional Administrator or Assistant Deputy Director denies the 

request, then the inmate is entitled to a written rejection explaining the reason for 

the denial. (Id., §§ 3294.5(b) and (f).)

Although this did not happen here, this oversight has now been corrected. 

Petitioner’s request for a name change has been forwarded to the warden and a 

copy of the warden’s response denying plaintiff’s request is attached to this 

informal response. Thus, petitioner has received all the relief that he is due 

pursuant to the statutes and regulations governing inmate name changes. 

Therefore, this petition is moot and the Court should deny petitioner his requested 

relief. 

Id.

Attached as exhibit A to the Attorney General’s informal response filed with the

California Court of Appeal is a memorandum dated July 26, 2004, to petitioner from defendant

Warden Runnels. In this letter, defendant Warden Runnels described his reasons for denying

plaintiff’s request for a name change. The defendant Warden Runnels advised plaintiff that if he

was dissatisfied with the decision, he could utilize the inmate appeals process to address any

further concerns he had regarding the issue. No party has informed this court how the California

Court of Appeal ruled on plaintiff’s habeas corpus petition. 

Plaintiff did not file an any administrative grievances in response to the Warden’s

July 26, 2004, memorandum.

In the pending motion to dismiss, defendant argues that plaintiff did not exhaust

administrative procedures because he failed to file any grievances following his receipt of

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

defendant Warden Runnel’s July 26, 2004, memorandum denying his request for a name change. 

Defendant argues that in this memorandum the Warden specifically informed plaintiff that he

could utilize the appeals process if he did not agree with his decision.

In order to evaluate the pending motion, the court must analyze the responses by

prison officials to the various requests filed by plaintiff. On November 5, 2003, plaintiff

correctly submitted a request for a name change to the Warden. The regulations required that

defendant Warden Runnels respond to this request with a statement of reasons for either granting

or denying the request. This did not happen. Instead, Correctional Counselor Cain advised

plaintiff that if he was changing his name legally through the court system, he could proceed. 

However, plaintiff could not proceed through the courts because he did not have a response from

defendant Warden Runnels, as required by the regulations. 

 Plaintiff then correctly filed an administrative appeal on January 6, 2004,

requesting the name change and also describing his attempt to obtain a name change from the

Warden, as required by § 3294.5. In this appeal, plaintiff described Correctional Counselor

Cain’s response to his request for a name change. Prison officials responded to this grievance by

improperly advising plaintiff that he would have to go through the court to obtain a name change

and that the CDC had no jurisdiction over this issue. See Brown v. Valoff, 422 F.3d 926, 935

(8th Cir. 2005) (no further exhaustion necessary when a prisoner is told that no remedies are

available). This response did not address plaintiff’s allegation that he had submitted a request for

a name change to the Warden that had been improperly responded to. 

Apparently based on the response to his administrative appeal, plaintiff then filed

a petition for a name change in the Lassen County Superior Court, which was properly denied

based on plaintiff’s failure to obtain approval for the change from the CDC. The court need not

discuss plaintiff’s further attempts to obtain a name change.

By filing his January 6, 2004, administrative appeal, plaintiff properly attempted

to exhaust the incorrect processing of his name change request addressed to defendant Warden

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

Runnels. Had prison officials followed the regulations, plaintiff’s appeal would have been

granted and his request forwarded to defendant Warden. Instead, prison officials improperly

responded that the CDC had no jurisdiction to consider plaintiff’s request. Plaintiff then did

what the appeal response advised, and filed his petition for a name change in Superior Court.

Because prison officials did not follow their own regulations when they denied

plaintiff’s administrative appeal, the court finds that plaintiff exhausted his administrative

remedies regarding this matter. See Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998),

cert. denied, 526 U.S. 1133, 119 S. Ct. 1809 (1999) (a prisoner’s administrative remedies are

deemed exhausted when a valid grievance has been filed and the state’s time for responding

thereto has expired). Prison officials cannot effectively thwart an inmate’s attempt to exhaust a

claim by failing to follow their own regulations and then later require him to begin the

exhaustion process again once they decide to follow the regulations. Brown, supra.

Accordingly, IT IS HEREBY RECOMMENDED that defendant’s June 30, 2005,

motion to dismiss be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: 10/31/05 

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

sc2586.dis

Case 2:04-cv-02586-LKK -GGH Document 39 Filed 10/31/05 Page 7 of 7