Jones v. State of Utah et al

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David Thayne Jones,
Petitioner and Appellant,

v.

State of Utah, Department of Corrections,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990056-CA

F I L E D
July 29, 1999
  1999 UT App 234 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
David Thayne Jones, Draper, Appellant Pro Se
Jan Graham and Chou Chou Collins, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Jackson.

PER CURIAM:

Appellant David Thayne Jones appeals the dismissal of his petition for extraordinary relief challenging the conditions of his confinement.

The motion for extraordinary relief filed pursuant to Utah R. Civ. P. 65B alleged the Department violated his constitutional rights in connection with the conditions of his confinement at the Utah State Prison. Jones sought an order directing the Department to provide medication, hygiene materials, and legal materials. He characterized the action as both an action under 42 U.S.C. § 1983 and a emergency petition for extraordinary relief under Rule 65B. Three months after the petition was filed, Jones filed a Notice of Claim stating he was making a claim for monetary damages and punitive damages in the amount of $300,000 based upon deliberate indifference to his mental illness.

On the Department's motion, the district court dismissed the petition because Jones had failed to exhaust "his administrative remedies on the issues of his medical or mental health treatment and legal access/mail." The court found that Jones had filed grievances concerning several issues pertinent to the petition, but had not pursued those grievances beyond Level I to the two higher levels.

Jones claims the trial court erred in dismissing his petition for failure to exhaust administrative remedies. He relies upon the cases of Burlett v. Holden, 835 P.2d 989 (Utah Ct. App. 1992) and Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997) for the proposition that an inmate cannot be required to exhaust administrative remedies where no administrative remedy is available to consider the claim. However, Jones' claim is wholly dependent upon the characterization of the petition as a civil action seeking monetary damages. Monetary relief is beyond the scope of a petition for extraordinary relief under Rule 65B. No complaint seeking damages was filed or served in this action, nor would one have been appropriate. The Notice of Claim did not substitute for a complaint or convert the proceedings under Rule 65B into a civil action for damages. The claims properly before the court were confined to a challenge to the conditions of confinement as raised in the petition for extraordinary relief. The court's ruling that Jones must exhaust his administrative remedies pertaining to the conditions of his confinement before seeking relief through a petition for extraordinary was correct.

Accordingly, we affirm the order of dismissal.
 
 
 

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Judith M. Billings, Judge
 
 
 

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James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge