IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
) In the Matter of the Personal ) DIVISION ONE Restraint of: ) .7*
) No. 74711-8-1 DAVID JOSEPH PEDERSEN, ) _ ) UNPUBLISHED OPINION Petitioner. ) ••••••••• ) FILED: November 27, 2017 ) C.A)
DWYER,J. — David Pedersen filed this personal restraint petition (PRP)
claiming that the Department of Corrections(DOC)subjected him to
unconstitutional conditions of confinement. His claims stem from his
incarceration in high-security, intensive management units as well as from his
later incarceration in the general prison population. We conclude that several of
Pedersen's claims are moot and that his remaining claims either fail on the merits
or cannot be considered because alternative civil remedies may be available to
him that would be adequate under the circumstances.
Accordingly, we dismiss the petition.
Pedersen pleaded guilty in 2012 to committing multiple counts of
aggravated murder. He was sentenced in the Snohomish County Superior Court
to incarceration for life without the possibility of parole. No. 74711-8-1/2
Between 2012 and 2015, Pedersen was incarcerated in a high-security,
intensive management unit separated from the general prison population—first,
at the Monroe Correctional Complex and, later, at the Washington State
Penitentiary in Walla Walla. Pedersen was incarcerated in the intensive
management units because of his aggravated murder convictions and his
involvement with a known threat organization.
In March 2015, Pedersen was transferred to the general prison population
at the state penitentiary.
Pedersen submitted this PRP nearly one year later, in February 2016,
asserting that he suffers from unlawful restraint as a result of unconstitutional
conditions of confinement.
II
We first address DOC's contention that we cannot consider the
constitutional challenges to confinement set forth in Pedersen's PRP because
Pedersen has another available remedy at law against DOG in the form of a civil
rights action pursuant to 42 U.S.C.§ 1983. DOG is incorrect.
RAP 16.4(d) restricts the relief that we may grant through a PRP. It
provides, in pertinent part,"The appellate court will only grant relief by a personal
restraint petition if other remedies which may be available to petitioner are
inadequate under the circumstances."
We have previously rejected DOC's contention that a § 1983 action is an
adequate alternative remedy to a PRP. In re Pers. Restraint of Arseneau, 98
2 No. 74711-8-1/3
Wn. App. 368, 989 P.2d 1197(1999). We again emphasize that a § 1983 action
is not an adequate alternative remedy against DOC.
Section 1983 provides a civil cause of action against any "person" who
deprives another of "any rights, privileges, or immunities secured by" the United
States Constitution. Significantly, however, a state—including agencies of a
state—is not a "person" within the meaning of § 1983. Lapides v. Bd. of Regents
of Univ. Sys. of Ga., 535 U.S. 613, 617, 122 S. Ct. 1640, 152 L. Ed. 2d 806
(2002); Will v. Mich. Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105
L. Ed. 2d 45(1989); Wash. State Republican Party v. Pub. Disclosure Comm'n,
141 Wn.2d 245, 285-86, 4 P.3d 808(2000); Smith v. State, 135 Wn. App. 259,
270, 144 P.3d 331 (2006).
In this light, if Pedersen were to file a § 1983 action against DOC, his
claim would be dismissed. Plainly, obtaining relief through a § 1983 action
against DOC is not a remedy available to Pedersen that is adequate under the
circumstances.
A § 1983 action is an inadequate alternative remedy for yet another
reason. If Pedersen were compelled to bring his constitutional claims in federal
court in a § 1983 action, he would be precluded from vindicating his state
constitutional rights:
Section 1983 codified the Civil Rights Act of 1871, the purpose of which was "to enforce the provisions of the fourteenth amendment to the Constitution of the United States." Monell [v. Dep't of Soc. Servs.], 436 U.S.[658,]665,[98 S. Ct. 2018,56 L. Ed. 2d 611 (1978)](quoting H.R. 320). The Civil Rights Act and the Fourteenth Amendment, were passed following the end of the Civil War to ensure that the rights of citizens secured by the federal Constitution were upheld by all the states. Neither the Act nor the Amendment
3 No. 74711-8-1/4
addresses the rights secured to citizens by the individual state constitutions. Accordingly, a claimed violation of a state constitutional right is not cognizable under§ 1983. Benn v. Universal Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004) ("Section 1983 does not provide a cause of action for violations of state statutes."); Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994)(holding that a violation of a state constitutional right does not give rise to a federal cause of action under § 1983); Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir. 1980)(concluding that violation of a state procedural rule is not actionable in a § 1983 suit)
Radvanskv v. City of Olmsted Falls, 395 F.3d 291, 313-14 (6th Cir. 2005)
(emphasis added). Thus, if we were to adopt DOC's argument, Pedersen would
not have a forum in which to vindicate his state constitutional rights.
Accordingly, a § 1983 action against DOG is not an adequate alternative
remedy available to Pedersen. DOC's claim fails.
Ill
Pedersen contends that he was subjected to unconstitutional conditions of
confinement during his incarceration in intensive management units and in the
general prison population. We address his claims as to each category of
incarceration in turn.
A
Pedersen alleges that, while incarcerated in the intensive management
unit at the Monroe Correctional Complex and at the Washington State
Penitentiary, DOG subjected him to unconstitutional conditions of confinement.
"Bringing a successful claim in a PRP requires 'a showing of restraint and
an unlawful aspect of the restraint." Arseneau, 98 Wn. App. at 371 (quoting In re
Pers. Restraint of Metcalf, 92 Wn. App. 165, 172, 963 P.2d 911 (1998)). "A
4 No. 74711-8-1/5
petitioner is under a 'restraint' if the petitioner has limited freedom because. . .
the petitioner is confined." RAP 16.4(b). A restraint is unlawful when "[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." RAP 16.4(c)(6).
The relief available in a PRP is limited to "the removal of the illegal
restraint." In re Pers. Restraint of Sappenfield, 138 Wn.2d 588, 595, 980 P.2d
1271 (1999). As indicated, the circumstances under which we may grant relief
through a PRP are limited by RAP 16.4(d), which provides that "[t]he appellate
court will only grant relief by a personal restraint petition if other remedies which
may be available to petitioner are inadequate under the circumstances."
In addition, we do not consider moot claims raised in a PRP. In re Pers.
Restraint of White, 25 Wn. App. 911, 912, 612 P.2d 10 (1980). A claim "is moot if
a court can no longer provide effective relief." In re Cross, 99 Wn.2d 373, 376-77,
662 P.2d 828(1983)(citing State v. Turner, 98 Wn.2d 731, 733,658 P.2d 658
(1983)).
Pedersen first contends that he was subjected to unconstitutional
conditions of confinement because DOC denied him adequate outdoor exercise
facilities while he was housed in the intensive management unit. However, in his
petition, Pedersen acknowledges that, as of March 2015, he was housed with the
5 No. 74711-8-1/6
state penitentiary's general prison population, rather than in the intensive
management unit.1
Because Pedersen is no longer incarcerated in the intensive management
unit, he is no longer subject to the allegedly unconstitutional conditions of
confinement from which he sought relief through his petition. We thus cannot
provide effective relief to Pedersen. His claim is moot.2
Pedersen next contends that he was subjected to unconstitutional
conditions of confinement because, while incarcerated in the intensive
management unit, DOG correctional officers confiscated incoming mail
containing legal correspondence, newspaper clippings, paper copies of
photographs, and correspondence study books, confiscated incoming mail that
was sent to him in a padded envelope, and unlawfully opened his legal
correspondence outside of his presence. He also contends that, while he was
incarcerated in the intensive management unit, DOC violated his right to court
access by not providing him with adequate writing materials.
Pedersen's claims are moot. As indicated above, Pedersen is no longer
incarcerated in the intensive management unit. In this way, Pedersen is no
longer subject to DOG policies regarding incoming mail and personal property for
inmates housed in intensive management units. In addition, Pedersen does not
Pedersen's petition does not contend that the outdoor recreational facilities provided to him while housed with the general prison population are inadequate. 2 In addition, Pedersen has not shown that this issue is likely to recur. DOC's appellate briefing indicates that it has submitted a budget request with the legislature seeking to obtain funds to build additional outside recreational spaces for inmates housed in its intensive management units.
6 No. 74711-8-1/7
show that, while incarcerated in the general prison population, he is beholden to
DOC correctional officers in the intensive management units who allegedly did
not follow DOC policies.
Furthermore, insofar as Pedersen requests that we order that DOC return
the items that were allegedly confiscated from him, Pedersen's petition does not
set forth that DOC has retained those items in its possession.3 Plainly, we
cannot grant effective relief to Pedersen when he has not set forth that DOC has
retained in its possession the items that he seeks.
Moreover, insofar as Pedersen believes that DOC correctional officers'
alleged acts have injured him, he may wish to seek damages, but "it is well
settled that a demand for monetary damages is not actionable by personal
restraint petition." In re Pers. Restraint of Williams, 171 Wn.2d 253, 256, 250
P.3d 112(2011)(citing Sappenfield, 138 Wn.2d at 595). Thus, we cannot grant
effective relief to Pedersen as to these claims because he has not shown that he
is still subject to the allegedly unlawful restraint of which his petition complained.
Additionally, even if we could grant Pedersen effective relief as to his
claims, we are barred from doing so because Pedersen has adequate alternative
remedies against DOC in a civil action. RAP 16.4(d). Indeed, if Pedersen seeks
return of his incoming mail that he alleges that DOC wrongfully confiscated, he
has an adequate alternative remedy in a state court civil action against DOC.
Insofar as Pedersen believes that certain DOC policies are unconstitutional or
3 Indeed, at least with regard to Pedersen's correspondence study books, DOC has indicated the books were destroyed.
7 No. 74711-8-1/8
that DOC correctional officers require additional training in its policies, he has an
adequate alternative remedy in a state court civil action against DOC.
Thus, we cannot grant relief as to Pedersen's claims.
B
Pedersen next contends that, while incarcerated in the general prison
population, DOC correctional officers, pursuant to DOC policies, rejected legal
mail that was sent to him but did not include his prisoner identification number as
part of the mailing address and confiscated a copy of a judicial opinion that was
mailed to him by his attorney, rather than by an authorized publisher or vendor.
Pedersen further contends that DOC, in violation of its policies, did not notify him
that his incoming mail containing the copy of the judicial opinion in question was
rejected.
Pedersen contends that he is subject to an unconstitutional condition of
confinement in violation of his right to free speech because DOC rejected legal
correspondence sent to him because the mailing address did not include his
prisoner identification number.
"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. N. C. Prisoners' Labor Union Inc., 433 U.S.
119, 129, 97S. Ct. 2532, 53 L. Ed. 2d 629 (1977)). "As a condition of
confinement, an inmate's First Amendment right to send and receive mail lawfully
8 No. 74711-8-1/9
may be restricted by prison regulations reasonably related to legitimate
penological interests." Livingston v. Cedeno, 164 Wn.2d 46, 56, 186 P.3d 1055
(2008)(citing Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S. Ct. 1874, 104 L.
Ed. 2d 459(1989); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed.
2d 64(1987)).
When determining whether a prison regulation restricting an inmate's mail
is reasonably related to legitimate penological goals, we consider the four factors
set forth in Turner:
"First, there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Second, courts consider whether there are "alternative means of exercising the [constitutional] right that remain open to prison inmates." Third, courts consider "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." And fourth, "the absence of ready alternatives is evidence of the reasonableness of a prison regulation."
Parmelee, 115 Wn. App. at 282(alteration in original)(citations and internal
quotation marks omitted)(quoting Turner, 482 U.S. at 89-90).
Pedersen challenges DOC Policy 450.100. It reads, "All incoming mail
must include the offender's full committed name and DOC number."
Addressing the first Turner factor, there is a valid, rational connection
between DOC's identification number policy and DOC's interest in prison
security. DOC has 16,000 inmates in its custody and many inmates have the
same or a similar name. Given that, DOC states that its identification number
mailing policy arises from its interest in avoiding security concerns that would
arise if an inmate's mail were accidentally delivered to a different inmate.
9 No. 74711-8-1/10
Indeed, DOC acknowledges that a security concern arose in the past where an
inmate's mail, identifying the inmate as a sex offender, had been mistakenly
delivered to another inmate. As a result, the inmate for whom the mail was
intended had to be placed in protective segregation. In this way, a valid, rational
connection exists between DOC's prisoner identification incoming mail policy and
DOC's stated security interest. The first Turner factor is satisfied.
The second Turner factor concerns whether Pedersen has alternative
means for exercising his constitutional right. There is no dispute that, after his
prisoner identification number was included in the mailing, Pedersen later
received the mail in question from his attorney. Therefore, Pedersen clearly has
alternative means of exercising his constitutional right to receive mail. The
second Turner factor is satisfied.
The third and fourth Turner factors also weigh in DOC's favor. If DOC
were to accommodate Pedersen by removing its requirement that incoming mail
set forth a prisoner identification number, the risk of delivering mail to the wrong
inmate would remain and the burden on DOC to sort through the mail of similarly
named inmates would be significant. Moreover, there is an absence of readily
available alternatives that would be as effective as DOC's current policy at
balancing the inmate's constitutional right to receive mail and DOC's stated
security interest.4
4 Pedersen suggests that a readily available alternative to DOC's policy exists in the form of requiring that an inmate's incoming mail set forth a mailing address with the inmate's name and number associated with the inmate's prison cell. However, Pedersen's suggestion ignores the possibility that the inmate for whom the mail was intended could change prison cells based on the inmate's behavior or other security concerns. Pedersen's suggestion appears less effective than does DOC's challenged policy.
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Thus, DOC's incoming mail policy is reasonably related to a legitimate
penological interest and does not deprive Pedersen of his right to free speech.5
Pedersen's claim fails.6
Pedersen next contends that, while he was incarcerated in the general
prison population, DOC subjected him to an unconstitutional condition of
confinement by confiscating a copy of a judicial opinion that was mailed to him by
his attorney.
As a preliminary matter, Pedersen requests that we order DOC to return
the confiscated copy of the judicial opinion to him. But Pedersen does not
provide us with a basis to determine that DOC still possesses the copy of the
judicial opinion. Because he has not made such a showing, we cannot provide
him effective relief as to this claim. Moreover, even if we could provide effective
relief as to Pedersen's claim, RAP 16.4(d) bars us from considering his claim
5 Pedersen relies on two federal circuit court decisions to support his claim that DOC's incoming mail policy is unconstitutional. Neither are availing. Pedersen first relies on Am. Civil Liberties Union Fund of Michigan v. Livingston County, 796 F.3d 636,643(6th Cir. 2015), for the claimed proposition that any correctional official action regarding incoming legal mail is subject to heightened scrutiny. To the contrary, the Am. Civil Liberties Union Fund of Michigan decision instead regarded the "'heightened concern with allowing prison officials unfettered discretion to open and read an inmate's(legal] mail." 796 F.3d at 643(emphasis added)(quoting Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003)). Thus, Pedersen's reliance is inapposite. Pedersen next relies on Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), for the claimed proposition that an inmate is deprived of the right to free speech when the inmate for whom incoming mail is intended is clearly identifiable by the mailing and the inmate's mail is nevertheless rejected. However, the Morrison court plainly elected not to decide that precise issue. 261 F.3d at 906. Thus, Pedersen's reliance on Morrison is unavailing. 6 Pedersen also contends that DOC violated his due process right when one of its correctional officers did not notify him that the legal mail sent without his prisoner identification number as part of its mailing address had been rejected. Pedersen's claim fails. The same rationale that supports DOC's prisoner identification number policy also supports a DOC policy to not notify an inmate that it had rejected improperly addressed incoming mail. No. 74711-8-1/12
because he has an adequate alternative remedy available to him in the form of a
state court civil action against DOC.
Pedersen next contends that DOC's policy to confiscate copies of judicial
opinions sent by third parties is an unconstitutional condition of confinement
because he is unable to access the judicial opinion in question through the state
penitentiary's legal resources. In this way, Pedersen's claim is less in regard to
DOC's mail rejection notification policy and more in regard to the adequacy of the
legal resources available to him in the state penitentiary. But Pedersen has not
provided us with any basis to determine that DOC's contract with its legal
resource providers in the state penitentiary is inadequate or showing other such
grounds that would allow us to grant effective relief. Thus, Pedersen's claim
fails.
Pedersen next contends that he was subjected to an unconstitutional
condition of confinement because, while housed in the general prison population,
DOC did not provide him with a rejection notice regarding his incoming mail
containing the copy of the judicial opinion that had been mailed to him by his
attorney. To be clear, with regard to this claim, Pedersen does not challenge the
constitutionality of the DOC policy to notify inmates when properly addressed
incoming mail is rejected. Rather, Pedersen challenges the single alleged
instance in which a DOC correctional officer did not notify him that the incoming
mail in question was rejected.
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"[A]n inmate 'has a Fourteenth Amendment due process liberty interest in
receiving notice that his incoming mail is being withheld by prison authorities."
Sorrels v. McKee, 290 F.3d 965, 972(9th Cir. 2002)(quoting Frost v. Symington,
197 F.3d 348, 353(9th Cir. 1999)). However, "the existence of... constitutional
issues alone does not excuse... potential mootness problems." State v. Cruz,
No. 93732-0, slip op. at 13(Wash. Nov. 2, 2017) http://www.courts.wa.gov/
opinions/pdf/937320.pdf.
Pedersen's claim relies on a single incident that occurred to him in the
past. His petition does not show that this incident has a likelihood of recurring.
We thus cannot provide effective relief as to Pedersen's claim.
Accordingly, Pedersen's petition is dismissed.
We concur:
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