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California Law Allows Transfer to Jail in Another County, But Prisoner Must First Exhaust Administrative Remedies, Court of Appeal Holds

by Dale Chappell

In a case of first impression, the California Court of Appeal held that State law does allow a prisoner to request a transfer to a jail in another county for good cause, but the prisoner must first exhaust his or her administrative remedies.

Tikisha Upshaw has a "keep separate order" from another prisoner at the Santa Rita County Jail. This order has caused Upshaw numerous problems, including threats to her safety and obstacles to programs and attorney visits. When Upshaw moved the Alameda County Superior Court to transfer her to a county jail in a neighboring county, the State did not oppose her request and the Court granted her motion.

The Sheriff, however, did not agree and asked for reconsideration, which the Court granted — and then denied Upshaw's motion. Upshaw next filed a petition for mandate in the Court of Appeal for the First Appellate District, asking the Court to require the Superior Court to grant her request.

Section 4007 allows a transfer to a jail in a contiguous county "when the jail becomes unfit or unsafe for the confinement of prisoners," and allows a judge to designate a neighboring county jail to house "any prisoner" not able to remain in the problem jail.

Reasons include: (1) when a prisoner requires medical treatment, which cannot be provided at the jail or poses a problem with her behavior, or (2) when a prisoner is likely to be a threat to others in the jail. The second provision is at issue here.

The Sheriff claimed that the statute's use of the plural "prisoners" means that it applies only to several prisoners, not a single prisoner. The Court disagreed. Since the same paragraph also uses the singular "prisoner," it "defies common sense and would produce an absurd result," the Court said. "The words of a statute must be construed in context."

The problem for Upshaw, though, was her failure to exhaust administrative remedies with the jail. When an administrative remedy is available, relief must be sought through that method before a court may act. This exhaustion requirement is jurisdictional, the courts have held, meaning that a court does not have authority to hear the case. (Note that federal and other states are mixed on whether exhaustion of administrative remedies is a jurisdictional bar.)

Upshaw did not argue that the administrative remedy process was not available to her, or that jail staff prevented her from using the process. See Wright v. California, 122 Cal. App. 4th 659 (2004) (describing California's prison grievance process).

Further, Upshaw did not argue that filing administrative remedies would have been futile. See Jonathan Neil and Assoc. v. Jones, 22 Cal. 4th 917 (2004) ("failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile").

Indeed, Upshaw had filed administrative remedies in the past and was aware of the process, the Court found.

While section 4007 did allow the Superior Court to grant Upshaw's motion for a transfer, because she did not properly exhaust her administrative remedies before filing her motion the Court did not have jurisdiction to hear her motion. The Court of Appeal therefore denied Upshaw's petition for mandate. See: Upshaw v. Superior Court, Apr. 18, 2018.

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Related legal case

Upshaw v. Superior Court of Alameda County