IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 83667-6-I
DAVID HALL, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
COBURN, J. — Petitioner David Hall seeks review of a disciplinary order finding
statements he made to a Department of Corrections (DOC) officer threatening and
intimidating. He contends that no evidence supports the findings because he did not
make true threats and was merely expressing his frustration having his work as a porter
criticized. However, it is relevant only that the speaker intentionally and knowingly
communicated the threat, not that he intended or was able to carry out the threat. We
deny his personal restraint petition.
FACTS
In October 2021, prison inmate Hall had a job as a porter in the medical unit.
While Hall was working, corrections officer Rojo-Dominguez spoke to Hall regarding
some concerns about Hall completing his daily porter duties. During the exchange,
Citations and pincites are based on the Westlaw online version of the cited material. 83667-6-I/2
according to Hall, the officer said “things like, ‘Well, I’ll just put you in handcuffs,’ ‘Well,
I’ll just throw you in the hole.’” Hall told the officer, “I’ve been down for a long-time man,
I’m tired of being judged when there’s nothing to judge.” He continued, “I’m a high-
ranking gang member man, well was a high-ranking gang member like I demand and
get the respect that’s why when I come in the unit they say was up. People think that
little orange button is going to protect them trust and believe I’ll be faster than that
button if needed to.” 1
The officer informed Hall that he understood Hall’s frustration, but how Hall
responded was “no manner of dealing with his anger.” The officer reported that Hall
understood and replied, “I just don’t like being accused of something that’s not
happening, but I’m cool.”
The officer alleged Hall committed two serious infractions: (1) “Threatening
another with bodily harm or with any offense against any person or property” under
WAC 137-25-030(1) (Category B, Level 3, 506) (Violation 506); and (2) “Using physical
force, intimidation, or coercion against any person” under WAC 137-25-030 (Category
C, Level 1, 663) (Violation 663).
At Hall’s disciplinary hearing, he explained the officer understood Hall spoke out
of frustration. The hearing officer asked Hall, “So are you saying that you did make
those statements [that Rojo-Dominguez reported]?” Hall responded,
Well, I did make those statements. But that people think that the little orange button is going – I didn’t say that. But the gist of bringing the orange button up, it was made in to [Rojo-Dominguez’s] response, but it was just empty frustration, not directed towards or not directed against any person.
1 Because the hearing officer relied on the officer’s infraction report and not the officer’s live testimony, we rely on the direct quotes from the officer’s report rather than the transcription of the hearing officer reading Hall’s report. 2 83667-6-I/3
Hall said he used a poor choice of words, but that it was never his motive or intention to
threaten or use intimidation toward anyone. Hall said he was explaining to the officer
how Hall gives respect and how “being falsely accused is like provoking.” The officer
did not testify at the hearing.
The hearing officer found Hall guilty of both infractions and sanctioned Hall with
30 days cell confinement, two months’ loss of monthly packages, and 40 hours of extra
duty. Hall appealed the decision to the superintendent, who affirmed the decision. Hall
then filed this personal restraint petition.
DISCUSSION
We will only reverse prison discipline decisions when petitioners show that they
are being unlawfully restrained. RAP 16.4(a)-(c); In re Pers. Restraint of Grantham, 168
Wn.2d 204, 212-13, 227 P.3d 285 (2010). Under RAP 16.4, a prisoner is under
“restraint” if the petitioner is confined, and the “restraint” is unlawful only if the conditions
or manner of the “restraint” violated the Constitution or the laws of Washington, or other
grounds exist to challenge the legality of the restraint. RAP 16.4(b); RAP 16.4(c)(6)-(7).
Hall is under restraint because he was given 30 days confinement.
Petitioners seeking relief from prison discipline where no prior judicial review has
been afforded are not required to show actual and substantial prejudice or a miscarriage
of justice. Grantham, 168 Wn.2d at 214. We will reverse a prison disciplinary decision
only upon a showing that it was so arbitrary and capricious as to deny the petitioner a
fundamentally fair proceeding. Grantham, 168 Wn.2d at 215 (citing In re Pers. Restraint
of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984)). This is a heightened
standard based on the particular type of executive action we are asked to review.
3 83667-6-I/4
Prison discipline cases are significantly different from other administrative proceedings
that can result in the loss of liberty. Id. Arbitrary and capricious actions have been
defined as willful and unreasoning actions, without consideration and in disregard of
facts and circumstances. “Where there is room for two opinions, action is not arbitrary
and capricious even though one may believe an erroneous conclusion has been
reached.” Reismiller, 101 Wn.2d at 296. Prisoners are entitled to minimum due
process protections. Grantham, 168 Wn.2d at 215. There has to be at least “some
evidence” to affirm the discipline. Id. at 216 (citing Reismiller, 101 Wn.2d at 295).
Hall asserts that both infractions implicate his First Amendment right to free
speech. U.S. CONST. amend. I. A prisoner retains those First Amendment rights that
are consistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system. In re Pers. Restraint of Parmelee, 115 Wn. App. 273, 281, 63
P.3d 800 (2003) (citing Jones v. North Carolina Prisoners’ Lab. Union Inc., 433 U.S.
119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977)). Hall does not claim that Violations
506 and 663 themselves violate the First Amendment. Instead, he argues his
statements were not true threats.
True threats are not protected by the First Amendment. Parmelee, 115 Wn. App.
at 288. True threats are “statement[s] made in a context or under such circumstances
in which a reasonable person would foresee that the statement would be interpreted as
a serious expression of intention to inflict bodily harm upon, or to take the life of
another.” 2 Id. (citing State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998)). “It
2 Hall also cites DOC’s definition of the term “threatening behavior” in its policy
handbook: “[i]ncludes, but is not limited to, direct or implied behavior which a reasonable person under the circumstances would perceive as a possible threat to bodily harm or was threatening in fact to that person.” Policy Glossary: Terms Starting with T, DOC, 4 83667-6-I/5
is relevant only that the speaker intentionally and knowingly communicated the threat,
not that he intended or was able to carry out the threat.” Id. Thus, Hall’s argument that
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 83667-6-I
DAVID HALL, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
COBURN, J. — Petitioner David Hall seeks review of a disciplinary order finding
statements he made to a Department of Corrections (DOC) officer threatening and
intimidating. He contends that no evidence supports the findings because he did not
make true threats and was merely expressing his frustration having his work as a porter
criticized. However, it is relevant only that the speaker intentionally and knowingly
communicated the threat, not that he intended or was able to carry out the threat. We
deny his personal restraint petition.
FACTS
In October 2021, prison inmate Hall had a job as a porter in the medical unit.
While Hall was working, corrections officer Rojo-Dominguez spoke to Hall regarding
some concerns about Hall completing his daily porter duties. During the exchange,
Citations and pincites are based on the Westlaw online version of the cited material. 83667-6-I/2
according to Hall, the officer said “things like, ‘Well, I’ll just put you in handcuffs,’ ‘Well,
I’ll just throw you in the hole.’” Hall told the officer, “I’ve been down for a long-time man,
I’m tired of being judged when there’s nothing to judge.” He continued, “I’m a high-
ranking gang member man, well was a high-ranking gang member like I demand and
get the respect that’s why when I come in the unit they say was up. People think that
little orange button is going to protect them trust and believe I’ll be faster than that
button if needed to.” 1
The officer informed Hall that he understood Hall’s frustration, but how Hall
responded was “no manner of dealing with his anger.” The officer reported that Hall
understood and replied, “I just don’t like being accused of something that’s not
happening, but I’m cool.”
The officer alleged Hall committed two serious infractions: (1) “Threatening
another with bodily harm or with any offense against any person or property” under
WAC 137-25-030(1) (Category B, Level 3, 506) (Violation 506); and (2) “Using physical
force, intimidation, or coercion against any person” under WAC 137-25-030 (Category
C, Level 1, 663) (Violation 663).
At Hall’s disciplinary hearing, he explained the officer understood Hall spoke out
of frustration. The hearing officer asked Hall, “So are you saying that you did make
those statements [that Rojo-Dominguez reported]?” Hall responded,
Well, I did make those statements. But that people think that the little orange button is going – I didn’t say that. But the gist of bringing the orange button up, it was made in to [Rojo-Dominguez’s] response, but it was just empty frustration, not directed towards or not directed against any person.
1 Because the hearing officer relied on the officer’s infraction report and not the officer’s live testimony, we rely on the direct quotes from the officer’s report rather than the transcription of the hearing officer reading Hall’s report. 2 83667-6-I/3
Hall said he used a poor choice of words, but that it was never his motive or intention to
threaten or use intimidation toward anyone. Hall said he was explaining to the officer
how Hall gives respect and how “being falsely accused is like provoking.” The officer
did not testify at the hearing.
The hearing officer found Hall guilty of both infractions and sanctioned Hall with
30 days cell confinement, two months’ loss of monthly packages, and 40 hours of extra
duty. Hall appealed the decision to the superintendent, who affirmed the decision. Hall
then filed this personal restraint petition.
DISCUSSION
We will only reverse prison discipline decisions when petitioners show that they
are being unlawfully restrained. RAP 16.4(a)-(c); In re Pers. Restraint of Grantham, 168
Wn.2d 204, 212-13, 227 P.3d 285 (2010). Under RAP 16.4, a prisoner is under
“restraint” if the petitioner is confined, and the “restraint” is unlawful only if the conditions
or manner of the “restraint” violated the Constitution or the laws of Washington, or other
grounds exist to challenge the legality of the restraint. RAP 16.4(b); RAP 16.4(c)(6)-(7).
Hall is under restraint because he was given 30 days confinement.
Petitioners seeking relief from prison discipline where no prior judicial review has
been afforded are not required to show actual and substantial prejudice or a miscarriage
of justice. Grantham, 168 Wn.2d at 214. We will reverse a prison disciplinary decision
only upon a showing that it was so arbitrary and capricious as to deny the petitioner a
fundamentally fair proceeding. Grantham, 168 Wn.2d at 215 (citing In re Pers. Restraint
of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984)). This is a heightened
standard based on the particular type of executive action we are asked to review.
3 83667-6-I/4
Prison discipline cases are significantly different from other administrative proceedings
that can result in the loss of liberty. Id. Arbitrary and capricious actions have been
defined as willful and unreasoning actions, without consideration and in disregard of
facts and circumstances. “Where there is room for two opinions, action is not arbitrary
and capricious even though one may believe an erroneous conclusion has been
reached.” Reismiller, 101 Wn.2d at 296. Prisoners are entitled to minimum due
process protections. Grantham, 168 Wn.2d at 215. There has to be at least “some
evidence” to affirm the discipline. Id. at 216 (citing Reismiller, 101 Wn.2d at 295).
Hall asserts that both infractions implicate his First Amendment right to free
speech. U.S. CONST. amend. I. A prisoner retains those First Amendment rights that
are consistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system. In re Pers. Restraint of Parmelee, 115 Wn. App. 273, 281, 63
P.3d 800 (2003) (citing Jones v. North Carolina Prisoners’ Lab. Union Inc., 433 U.S.
119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977)). Hall does not claim that Violations
506 and 663 themselves violate the First Amendment. Instead, he argues his
statements were not true threats.
True threats are not protected by the First Amendment. Parmelee, 115 Wn. App.
at 288. True threats are “statement[s] made in a context or under such circumstances
in which a reasonable person would foresee that the statement would be interpreted as
a serious expression of intention to inflict bodily harm upon, or to take the life of
another.” 2 Id. (citing State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998)). “It
2 Hall also cites DOC’s definition of the term “threatening behavior” in its policy
handbook: “[i]ncludes, but is not limited to, direct or implied behavior which a reasonable person under the circumstances would perceive as a possible threat to bodily harm or was threatening in fact to that person.” Policy Glossary: Terms Starting with T, DOC, 4 83667-6-I/5
is relevant only that the speaker intentionally and knowingly communicated the threat,
not that he intended or was able to carry out the threat.” Id. Thus, Hall’s argument that
he was not motivated or intended to threaten anyone is of no matter. He did not dispute
that he said the words reported by the officer constituting the threatening and
intimidating statements.
Hall also contends that because the officer understood that Hall spoke out of
frustration, the circumstances were such that a reasonable person could not foresee
that Hall’s statements would be understood as serious expression of intention to inflict
bodily harm. However, understanding why Hall made the statements after the
statements were made does not change the lens with which the statements were
viewed. Hall makes multiple arguments: (1) he did not direct his statements at anyone;
(2) nothing in the record explains what the orange button is; and (3) he is being
punished for simply identifying himself as a high-ranking gang member.
The hearing officer found Hall’s statements were intimidating and threatened
bodily harm. “It is not our role to substitute our judgment for that of the hearing officer.
Indeed, ‘a detention facility is a unique place fraught with serious security dangers.’”
Parmelee, 115 Wn. App. at 288-89 (quoting State v. Baker, 28 Wn. App. 423, 425, 623
P.2d 1172 (1981)). Hall did not simply speak about his history of being a high-ranking
gang member. 3 He did so while explaining he still commands much respect in prison
https://www.doc.wa.gov/information/policies/glossary.aspx?show=T [https://perma.cc/9FKB- 9LNQ].
3 Hall also suggests that the officer, the hearing examiner, and the assistant
superintendent who rejected Hall’s appeal may have unconsciously judged his statements because of stereotypes about gang members and Black people. Hall cites to a news article reporting that 20 percent of people imprisoned in Washington are gang members. John McCoy, Washington State’s Prison Policies Serve No One, CROSSCUT (Apr. 15, 2019), 5 83667-6-I/6
and the officer should know that “[p]eople think that little orange button is going to
protect them trust and believe [he will] be faster than that button if [he] needed to.” This
statement was in the context of the officer threatening to handcuff or put Hall in “the
hole.” Though the record does not include an explicit explanation of the “orange
button,” neither the officer, Hall, or the hearing officer expressed any confusion as to
Hall’s reference to the orange button. Moreover, Hall’s reference to the orange button
as something people rely on “to protect them” suggests it is a method to call for help.
Viewed in the prison context, a reasonable person would foresee that the statements
would be taken as a serious expression of an implied threat. In fact, it is evident Rojo-
Dominguez construed them as such because he charged Hall with making a threat and
intimidation. See Parmelee, 115 Wn. App. at 288-89 (observing that by charging an
inmate, the corrections officer construed an inmate’s statement as an implied threat
despite the inmate’s later alternative explanation). Hall explaining that he made the
statements out of frustration or that he was “cool” after he made the statements does
not explain away the objectively perceived threat at the time the relevant statements
were made.
Hall additionally argues that both infractions required him to direct his statements
“against any person,” which he did not do. But Hall himself explained that the
statements were made in the context of a conversation between himself and the officer.
Hall’s statements were not protected by the First Amendment. DOC did present
https://crosscut.com/2019/04/washington-states-prison-policies-serve-no-one [https://perma.cc/K5JP-M3W2]. He argues that “[i]f mentioning gang membership is a threat all by itself, a large number of people can hardly talk about their lives without making threatening statements.” We need not consider a circumstance where someone was disciplined for only mentioning gang membership because that is not what happened here. 6 83667-6-I/7
some evidence supporting the infractions. Thus, Hall has failed to demonstrate that his
discipline was so arbitrary and capricious as to deny a fundamentally fair proceeding.
Accordingly, we deny his personal restraint petition.
WE CONCUR: