In the Matter of the Personal Restraint of: Robert Rogers

• Court: Court of Appeals of Washington
• Decided: May 26, 2026
• Docket: 41044-7
• Status: Unpublished

Opinion

FILED MAY 26, 2026 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. 41044-7-III ) ROBERT ROGERS, ) ) Petitioner. ) UNPUBLISHED OPINION

HILL, J.—Robert Rogers is incarcerated under the supervision of the Washington

Department of Corrections (DOC). In September 2024, Rogers was found with a piece of

folded paper containing a powdered substance, which tested positive for

methylenedioxymethamphetamine (MDMA). The DOC accused him of possessing an

unauthorized substance in violation of policy. At his initial hearing, Rogers pleaded not

guilty, argued he did not know the paper contained drugs, and requested the substance be

tested again at a lab. The lab results confirmed the positive test for MDMA. Rogers was

not in attendance at the subsequent disciplinary hearing, where the hearing officer found

him guilty of possessing an unauthorized substance and imposed sanctions.

After the DOC denied Rogers’s appeal, he filed this personal restraint petition

(PRP) alleging the DOC violated his due process rights in multiple stages of the

disciplinary process. While many of Rogers’s assertions are meritless, the record is No. 41044-7-III In re Pers. Restraint of Rogers

insufficient to show Rogers waived his right to be present for his disciplinary hearing.

We grant in part the PRP and remand the matter for a new hearing.

BACKGROUND

On September 1, 2024, a DOC booth officer witnessed someone hand Rogers an

object. The booth officer informed a correctional officer of what he witnessed. The

correctional officer placed Rogers in a holding cell and conducted a strip search, where

he discovered a small piece of folded paper under Rogers’s foot. The folded paper

contained a powdered white substance. The substance tested positive for

MDMA/Ecstasy.

On September 6, the DOC notified Rogers of his disciplinary hearing for

possessing an unauthorized drug in violation of former WAC 137-25-030(603) (2023)

Rogers waived his right to receive 24-hours’ notice, and he authorized the Disciplinary

Hearing Officer to make a decision regarding his infraction. However, on the

Disciplinary Hearing Notice/Appearance Waiver Form, Rogers did not check the box

waiving his right to appear at the hearing.

The hearing began on September 23, 2024. Rogers pleaded not guilty and made a

statement. He told the hearing officer that, while he did receive the folded paper from

another individual, he was unaware that it contained drugs. He told the hearing officer

that he wanted the substance retested at a lab. The hearing officer granted Rogers’s

request and continued the hearing until the lab results returned.

The lab completed testing on October 29, and the substance tested positive for

2 No. 41044-7-III In re Pers. Restraint of Rogers

MDMA. The continued hearing was scheduled for November 21 at 8:00 a.m. According

to Rogers, at 8:20 a.m. on November 21 he was informed that his hearing was running

behind, but he would receive a call when it was his turn. Rogers alleges he returned to

his single man cell and waited to be called. Just after 11:00 a.m., Rogers asked one of the

correction officers about his hearing and was told it had already occurred. The DOC does

not contradict Roger’s statement.

The hearing officer relied on a brief notation from a Sergeant Hernandez stating

the officer called for Rogers in the unit yard on two separate occasions at approximately

10:00 a.m. when it was time for Roger’s hearing, and Rogers failed to report. The

hearing officer relied on this statement without further inquiry to determine if Rogers

waived his presence for the hearing.

Relying on written staff testimony, Rogers’s statement, and other evidence, the

hearing officer concluded Rogers was guilty of former WAC 137-25-030(603) by

possessing a controlled substance. The hearing officer imposed multiple sanctions,

including loss of good conduct time. Rogers appealed the hearing officer’s decision, and

the DOC Superintendent upheld the serious infraction. Rogers then filed this PRP.

ANALYSIS

A petitioner may seek relief if they are under unlawful restraint. RAP 16.4(a). A

petitioner who is confined is under restraint. RAP 16.4(b). Restraint may be unlawful

for several reasons, including if the conditions or manner of restraint are unconstitutional

or if other grounds exist to challenge the legality of the restraint. RAP 16.4(c)(6)-(7).

3 No. 41044-7-III In re Pers. Restraint of Rogers

This can include a loss of good time credits, which are a liberty interest protected by the

due process clause, if the prisoner does not receive minimal due process. See In re Pers.

Restraint of Anderson, 112 Wn.2d 546, 548, 772 P.2d 510 (1989).

We will not reverse a prison discipline decision unless the petitioner demonstrates

that the decision was arbitrary and capricious to the extent that it denies the petitioner a

fundamentally fair proceeding to the offender’s prejudice. 1 In re Pers. Restraint of

Grantham, 168 Wn.2d 204, 215, 227 P.3d 285(2010). While prisoners subject to serious

infraction hearings are not entitled to all the same constitutional protections afforded

defendants facing criminal charges, they are entitled to minimum due process protections,

which include notice, an opportunity to call witnesses and present evidence, and to

receive a written statement explaining the reasons for the discipline and the evidence

relied upon. Id. at 214-16. The ability to call witnesses and present evidence necessitates

a right to be present at the hearing or to waive that right. See, generally, In re Pers.

Restraint of Gronquist, 138 Wn.2d 388, 396-97, 978 P.2d 1083 (1999); WAC 137-28-

285(1)(c); WAC 137-28-300(2).

Rogers contends the DOC violated his due process rights when it failed to afford

him an opportunity to attend his hearing. In addition to ordinary due process rights,

Rogers claims the DOC violated WAC 137-28-285(1)(c), which provides that

1 Petitioners challenging a prison disciplinary decision where prior judicial review was not available need not make a showing of actual and substantial prejudice for constitutional errors. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010). 4 No. 41044-7-III In re Pers. Restraint of Rogers

incarcerated individuals charged with violating DOC policy have the right to be present

or waive their presence at the hearing. The State argues that Sergeant Hernandez’s

notation that he called out to Rogers two times while he was in the unit yard to attend the

hearing without response justified its conclusion that Rogers waived his right to be

present for the hearing.

On the record before us, we cannot conclude Rogers waived his right to be present

for the hearing. WAC 137-28-305 requires the hearing officer to “ensure that the

incarcerated individual’s rights are protected throughout the hearing process.”

WAC 137-28-300(1). This includes the right to be present at the hearing.

WAC 137-28-300(2). Before the first disciplinary hearing, Rogers did not check the box

waiving his right to attend his hearing or indicate he would waive his presence at the

continued hearing. On the date of the second hearing, the DOC does not dispute Rogers

contacted the booth officer before the hearing and was told his hearing was running

behind. The DOC also does not dispute that the officer advised Rogers that he would be

informed when his hearing was ready to begin. The DOC further does not dispute that

Rogers checked in again sometime shortly after 11:00 a.m., asking when his hearing

would begin, and was told it was conducted without him. Instead, the DOC relies

entirely on the short entry on a waiver form indicating Sergeant Hernandez called Rogers

from the unit yard twice at approximately 10:00 a.m. and Rogers failed to report. In light

of the uncontradicted record, we grant in part the PRP and remand for Rogers to receive a

new disciplinary hearing.

5 No. 41044-7-III In re Pers. Restraint of Rogers

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.

Hill, J.

WE CONCUR:

Lawrence-Berrey, J. Murphy, J.