In the Matter of the Personal Restraint of: Perry T. Ashelman

• Court: Court of Appeals of Washington
• Decided: January 27, 2022
• Docket: 37438-6
• Status: Unpublished

Opinion

FILED JANUARY 27, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Personal Restraint of ) No. 37438-6-III ) ) PERRY T. ASHELMAN, ) UNPUBLISHED OPINION ) Petitioner. )

LAWRENCE-BERREY, J. — Perry Ashelman, an inmate in the custody of the

Washington State Department of Corrections (DOC), seeks relief from personal restraint

with respect to two infractions. DOC expunged one infraction in response to this

personal restraint petition (PRP) so the challenge to that infraction is now moot.

As to the other infraction, Ashelman argues DOC violated his right to due process

by refusing to provide information that would allow him to exercise his right to call

witnesses and to present video evidence at his infraction hearing. Because due process

does not require DOC to disclose information that does not exist nor does it require DOC

to always identify potential witnesses, we dismiss Ashelman’s petition. No. 37438-6-III PRP of Ashelman

FACTS

Perry Ashelman is an inmate serving a sentence for residential burglary in the

custody of the DOC. He challenges findings of guilt from two infractions received while

in prison.

Infraction Group Number 48

While Ashelman was in custody at Stafford Creek Corrections Center, mailroom

staff intercepted threatening letters from Ashelman to his estranged wife. After initiating

an investigation, corrections staff overheard Ashelman make additional threats in

telephone calls to his wife. On August 1, 2019, Ashelman was found guilty of three

infractions under WAC 137-25-030:

 (503), extorting or blackmailing, or demanding or receiving anything of value in return for protection against others or under threat of informing;  (506), threating another with bodily harm or with any offense against any person or property; and  (507), committing an act that would constitute a felony that is not otherwise included in these rules, namely, extortion in the first degree in violation of RCW 9A.56.120.

Suppl. Resp. of DOC, (Dec. 17, 2020), Ex. 1, Attach. F. His sanctions included the loss

of 150 days of good conduct time. He appealed the infraction through the DOC and did

not receive relief.

2 No. 37438-6-III PRP of Ashelman

Infraction Group Number 49

On August 28, 2019, Ashelman was transferred to Airway Heights Corrections

Center. Ashelman was transported to the medical unit for an urgent medical complaint.

Ashelman insisted he needed narcotics for his medical complaint. On the orders of the

on-call medical provider, the attending registered nurse (RN), C. Wallace, was unable to

give him anything stronger than Tylenol. After being informed he would not receive

narcotic medication, Ashelman became angry, made closed fist gestures at RN Wallace,

and began shouting and cursing at her with abusive language. RN Wallace feared for her

personal safety and that of other staff members who would need to care for him in the

medical unit and requested custody staff assistance. Sergeant Devin Cornell responded

and made the decision to move Ashelman to a medical segregation cell so the medical

assessment could continue in a more secure location. Once transferred to the medical

cell, Ashelman refused further medical attention.

RN Wallace filed a serious infraction report detailing the event, listing the

infraction as using physical force, intimidation, or coercion against any person in

violation of WAC 137-25-030(663). Corrections Officer Patrick Haire, who had escorted

Ashelman to the medical unit, and Sergeant Cornell also filed incident reports as

witnesses to the incident. A disciplinary hearing was scheduled for September 4, 2019.

3 No. 37438-6-III PRP of Ashelman

On August 30, 2019, Hearing Escort Officer Hall served Ashelman a notice of the

hearing. Included with the notice were the three reports from witnesses to the incident.

Ashelman demanded Officer Hall provide names of all the staff present at the time of the

incident so he could request witness statements from each of them. Officer Hall did not

have that information and could not obtain the information for Ashelman, but could

request witness statements from anyone for whom Ashelman supplied names. Ashelman

was told this, but insisted his rights were being violated and refused to sign any

paperwork for the hearing.

At the hearing, Hearing Officer Don DeShazer noted that Ashelman had not

requested witness statements and asked if Ashelman had determined the names of the

people from whom he wanted witness statements. Ashelman told the hearing officer he

had asked Officer Hall to review the camera footage to see what officers were available

and identify four nurses, asserting that “[p]er policy, [the hearing escort officer’s] job

duties [are] to go out and gather information.” Report of Proceedings (RP) at 5. The

hearing officer informed Ashelman that, contrary to Ashelman’s assertion, it was not the

job of either the hearing escort officer or the hearing officer to investigate the incident.

Ashelman then requested to review the video footage. The hearing officer asked

where the incident occurred, and Ashelman answered that the “incident was all the way

4 No. 37438-6-III PRP of Ashelman

from the unit all the way to here,” and asked to know what officers were on duty at the

time if the video was not available. RP at 6. After consulting the infraction report, which

indicated that Ashelman was not infracted for anything in the living unit or the walkway

to the medical unit, the hearing officer concluded it would not be appropriate to get

witness statements from all officers on duty. Additionally, there was no camera in the

medical area where the infraction occurred, so there was no footage to review. The

hearing officer told Ashelman he would not be able to get witness statements from the

entire shift, but reiterated that “[i]f you have names I can get you witness statements.

Without names I can’t get you witness statements.” RP at 6.

Ashelman insisted he had a right to the witness statements and told the hearing

officer he would file a PRP and overturn the proceeding. When the hearing officer tried

to proceed, Ashelman declined to participate further and walked away.

The hearing reconvened in the afternoon without Ashelman present. The hearing

officer found Ashelman guilty under WAC 137-25-030(663) of using physical force,

intimidation, or coercion against any person. He based his decision on the written

testimony in the incident reports, specifically the three staff witnesses’ account of

Ashelman “displaying behavior that was intimidating in nature in an effort to coerce

medical staff into giving into his demands for narcotics.” Resp. of DOC, Ex. 1, Attach. F.

5 No. 37438-6-III PRP of Ashelman

Ashelman was sanctioned with 7 days’ segregation with credit for time served and

10 days of cell confinement upon return to the general population. He appealed and was

denied relief on September 1, 2019.

Later Proceedings

Ashelman filed this PRP on April 20, 2020, challenging his guilty findings on

violations of WAC 137-25-030(507) and (663) in infraction group number (IGN) 48 and

49, respectively. After filing the petition, the Department reviewed the challenged

infraction in IGN 48 and expunged it on March 19, 2021. The loss of good conduct time

was reduced from a loss of 150 days to a loss of 45 days based on the remaining two

infractions.

ANALYSIS

CHALLENGE TO THE WAC 137-25-030(507) GUILTY FINDING

DOC contends the expungement of Ashelman’s WAC 137-25-030(507) infraction

in IGN 48 renders the challenge to that infraction moot. We agree.

DOC expunged this infraction on March 19, 2021. While the Court of Appeals

has exclusive jurisdiction of Ashelman’s PRP, court rules do not prevent DOC from

providing an alternative remedy. In re Pers. Restraint of Higgins, 152 Wn.2d 155, 162-

63, 95 P.3d 330 (2004). Expungement effectively and adequately addresses Ashelman’s

6 No. 37438-6-III PRP of Ashelman

challenge to this infraction. Id. This court can no longer provide effective relief and any

issue with respect to this infraction is now moot. In re Cross, 99 Wn.2d 373, 376-77,

662 P.2d 828 (1983). Accordingly, we dismiss Ashelman’s petition as to the

WAC 137-25-030(507) infraction in IGN 48.

CHALLENGE TO THE WAC 137-25-030(663) GUILTY FINDING

Ashelman contends he was denied his due process right to call witnesses and

present documentary evidence at the hearing for the WAC 137-25-030(663) infraction.

We disagree.

In a PRP, the petitioner must generally show he is restrained under RAP 16.4(b)

and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Grantham,

168 Wn.2d 204, 212-13, 227 P.3d 285 (2010). A petitioner is under a “restraint” if he is

confined because of a judgment or sentence in a criminal case. RAP 16.4(b). The

restraint is unlawful if “[t]he conditions or manner of the restraint of petitioner are in

violation of the Constitution of the United States or the Constitution or laws of the State

of Washington” or if “[o]ther grounds exist to challenge the legality of the restraint of

petitioner.” RAP 16.4(c)(6)-(7). The petitioner bears the burden of proving, by a

preponderance of the evidence, that his restraint is unlawful. In re Pers. Restraint of

Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990).

7 No. 37438-6-III PRP of Ashelman

Prison disciplinary hearings are governed by chapter 137-28 WAC. These

administrative regulations qualify as “laws of the State of Washington” under

RAP 16.4(c)(6). In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 149 n.6, 866 P.2d 8

(1994). Under WAC 137-28-285(1), an offender has rights including a “fair and

impartial hearing” and to “[c]all witnesses and present documentary evidence, though the

hearing officer may exclude witnesses/evidence deemed irrelevant, duplicative, or

unnecessary.” Under WAC 137-28-300(1), “[t]he hearing officer shall ensure that the

offender’s rights are protected throughout the hearing.” However, under WAC 137-28-

300(5), “[i]f an offender’s behavior disrupts the hearing, he/she may be removed and the

hearing will continue on the record in the offender’s absence.”

When a petitioner seeks relief from discipline imposed as a result of a prison

disciplinary hearing, a court “will reverse a prison discipline decision only upon a

showing that it was so arbitrary and capricious as to deny the petitioner a fundamentally

fair proceeding so as to work to the offender’s prejudice.” Grantham, 168 Wn.2d at 215.

An arbitrary and capricious action is a “‘willful and unreasoning action, without

consideration and in disregard of facts and circumstances.’” In re Pers. Restraint of

Reismiller, 101 Wn.2d 291, 296, 678 P.2d 323 (1984) (quoting Pierce County Sheriff v.

Civil Serv. Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)).

8 No. 37438-6-III PRP of Ashelman

A prison disciplinary proceeding is not arbitrary and capricious if the inmate was

afforded the applicable minimum due process protections and the decision was supported

by at least some evidence. In re Pers. Restraint of Anderson, 112 Wn.2d 546, 549, 772

P.2d 510 (1989); In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083

(1999). Minimum due process requires that the inmate: “(1) receive notice of the alleged

violation; (2) be provided an opportunity to present documentary evidence and call

witnesses when not unduly hazardous to institutional safety and correctional goals; and

(3) receive a written statement of the evidence relied upon and the reasons for the

disciplinary action.” Gronquist, 138 Wn.2d at 396-97.

Here, Ashelman focuses on the second of these three requirements. He argues he

was denied the opportunity to present witness statements because DOC refused to identify

possible witnesses to the incident.

We first note that Ashelman was not denied the right to present witness statements.

Rather, he had no witness statement to present because DOC refused to identify possible

witnesses.

We do not view the minimal due process requirements outlined in Gronquist as

requiring DOC to always identify possible witnesses. Appointed counsel provides no

authority to support such a requirement. When a party cites no authority, we may assume

9 No. 37438-6-III PRP of Ashelman

that counsel, after diligent search, has found none. In re Disciplinary Proceeding Against

Jensen, 192 Wn.2d 427, 440, 430 P.3d 262 (2018); State v. Young, 89 Wn.2d 613, 625,

574 P.2d 1171 (1978); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d

193 (1962).

Had Ashelman provided evidence that DOC’s witnesses had a motive to lie, could

not perceive the incident, or could not correctly recall the incident, our conclusion might

be different. Absent a plausible reason to believe that potential witnesses had exculpatory

evidence, Ashelman’s request for names of all nurses and officers working that shift was

a mere fishing expedition. See Lennear v. Wilson, 937 F.3d 257, 269-74 (4th Cir. 2019)

(discussing correctional facility’s responsibility to assist prisoner in obtaining evidence

“that is potentially exculpatory or otherwise likely to assist an inmate in mounting a

defense”).

Ashelman, acknowledging there to be no authority directly on point, argues that

requiring DOC to identify possible witnesses is a requirement that can be inferred from

In re Pers. Restraint of Malik, 152 Wn. App. 213, 215 P.3d 209 (2009). We disagree.

In Malik, an inmate received a serious infraction for introducing a controlled

substance into the facility through the mailroom. Id. at 215. The infraction report,

prepared by the investigating officer, described how the contraband was found in a

10 No. 37438-6-III PRP of Ashelman

package in the mailroom, and how she had heard Malik’s voice on the telephone asking

when his “‘get well package’” would arrive. Id. at 215-16. At the hearing, Malik

requested several items, including a copy of the recording of the telephone conversation

to review and witness statements he had requested the investigating officer to obtain.

The hearing officer, without explanation, denied Malik’s requests. The record indicated

that one inmate submitted an exculpatory statement to the investigating officer. We

concluded that Malik’s due process rights were violated, noting that minimum due

process required the hearing officer to state proper reasons for limiting the evidence,

“either at the time of the hearing or thereafter.” Id. at 220.

Malik is distinguishable. In Malik, there was identified evidence that Malik was

not permitted to review—the recording; and evidence that Malik was not permitted to

present—an inmate’s witness statement. The hearing officer presented no explanation for

its rulings. In contrast, here, the hearing officer did not deny Ashelman the right to

review evidence or to present a witness statement.

11 No. 37438-6-III PRP ofAshe/man

We conclude that Ashelman was afforded minimum due process in his prison

disciplinary hearing, and we dismiss his personal restraint petition.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Lawrence-Berrey, J. ·, j WE CONCUR:

Q. Pennell, C .J. Staab, J.