IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 84895-0-I Restraint of DIVISION ONE
LONNIE L. BURTON,† UNPUBLISHED OPINION
Petitioner.
SMITH, C.J. — The petitioner challenges the disciplinary hearings
associated with two infractions: Failing to Comply with Sanctions (a violation of
WAC 137-25-030 (658)) and Fighting with Another Incarcerated Individual (a
violation of WAC 137-25-030 (505)). He filed this personal restraint petition
(PRP), asserting that both hearings violated his due process rights, that there
was insufficient evidence to support both infractions, and that the latter violated
his constitutional right to self-defense. Because both hearings met minimum due
process requirements, “some evidence” supports both infractions, and the
petitioner fails to establish a constitutional right to self-defense in prison, we deny
the petitioner’s personal restraint petition.
† On June 18, 2024, the petitioner filed a notice of name change and a Grays Harbor County District Court order changing name. The petitioner asks that the title of this case bear his new name. Under RAP 3.4, this court uses the same caption as the trial court but upon motion of a party, and notice to all parties, this court may change the title of a case by order. No. 84895-0-I/2
FACTS
Petitioner is an incarcerated person in the custody of the Washington
State Department of Corrections (DOC). In this petition, he does not challenge
his underlying conviction or sentence. Rather, the petitioner challenges the
disciplinary sanctions imposed based on two infractions: Failing to Comply with
Sanctions (a violation of WAC 137-25-030 (658)) and Fighting with Another
Incarcerated Individual (a violation of WAC 137-25-030 (505)).
658 Infraction
In August 2022, the petitioner was issued a minor sanction notification for
failing to pick up his legal mail. He failed to attend the disciplinary hearing and
was found guilty. The hearing officer sanctioned him with 10 days of cell
confinement. This limited the petitioner’s movements, confining him to his cell
except for visits, meals, religious activities, school, and work.
The day after the petitioner’s sanction took effect, Sergeant Kayla Palmer
noticed the petitioner outside of his cell, carrying dinner trays toward the dining
hall. Aware that the petitioner was confined to his cell, Sgt. Palmer called the
petitioner’s pod officer to verify whether the petitioner was a tray porter,1 that the
kitchen had requested tray porters to bring the trays down, and that the petitioner
had permission to leave the unit. The petitioner’s pod officer confirmed that the
kitchen had not called for the trays and that the petitioner did not have
1 Under COVID protocols, inmates were fed in unit by walking to the kitchen, picking up trays, and bringing them back to the unit to eat. Tray porters were specific individuals tasked with returning the trays to the kitchen when directed.
2 No. 84895-0-I/3
permission to leave. Sgt. Palmer also asked the petitioner directly if he had
permission to leave the unit. He responded, “[n]o, I didn’t ask.”
Given this information, Sgt. Palmer wrote an infraction charging the
petitioner with a failure to comply with his earlier sanction, a violation of WAC
137-25-030 (658). The petitioner was notified of the charge on August 9, 2022.
In response, he requested four witness statements: three from correctional
officers, Sgt. Palmer, Sergeant Richard Roberts, and Officer Paul Martin, and
one from a fellow incarcerated person, Cory Simms.
Prior to the hearing, the petitioner asserted that Sgt. Roberts informed him
that Officer Barry DeHaven, the hearing officer set for the petitioner’s case, had
directed Roberts what to say or not say in his witness statement. The petitioner
filed a staff misconduct grievance against Officer DeHaven, claiming witness
tampering. When the grievance was rejected based on hearsay, the petitioner
appealed to DOC headquarters and requested that Officer DeHaven recuse
himself from the hearing.2
The disciplinary hearing was held on August 30, 2022. Unit Supervisor
Kendra Wakefield acted as hearing officer. The petitioner attended and spoke in
his own defense. He acknowledged leaving his cell without permission but
asserted that he was working, which is an exception to cell confinement. He also
admitted, however, that he was not a tray porter. He noted that he helped with
trays to collect positive behavior log entries. Unit Supervisor Wakefield excluded
2 Although Officer DeHaven was not the hearing officer for this first disciplinary hearing, no evidence exists in the record that he recused himself.
3 No. 84895-0-I/4
Sgt. Palmer as a witness because Sgt. Palmer had written the sanction report,
but accepted the three other requested witness statements. Both Sgt. Roberts
and Officer Martin stated that they were not present for the encounter and
therefore had nothing to add. Simms left his witness statement blank.
Considering the incident report, the petitioner’s own testimony, and the witness
statements, Unit Supervisor Wakefield found the petitioner guilty. She
sanctioned him with the loss of dayroom privileges for three days. The petitioner
appealed the finding but the Superintendent for Operations denied his appeal,
stating that the written report supported a guilty finding.
505 Infraction
In October 2022, corrections officers monitoring the exercise yard saw the
petitioner fighting with another incarcerated person, John Mayr. While playing
pickleball, the petitioner had made a call that Mayr did not like. Mayr used a
homophobic slur, which the petitioner returned. Mayr yelled, “let’s do this,” and
hit the petitioner in the face. The petitioner retaliated, throwing punches back at
Mayr.
When asked by DOC staff, Mayr admitted that he struck the petitioner.
The petitioner initially denied the incident but eventually admitted to hitting Mayr.
He asserted, however, that his actions were purely self-defense and that he
stopped as soon as he felt Mayr could no longer harm him. The prison
documented both men’s injuries.
4 No. 84895-0-I/5
The petitioner was issued a serious infraction for fighting in violation of
WAC 137-25-030 (505). He was notified of the charge against him on
October 11, 2022. In response, the petitioner requested two witness statements
from fellow incarcerated persons Lee Starks and Brian Dublin.
The disciplinary hearing was held on October 24, 2022. Officer DeHaven
acted as hearing officer, despite the petitioner’s earlier accusations of bias. The
petitioner attended and spoke in his own defense. He asserted that Mayr had
attacked him with a pickleball paddle and argued his right to self-defense. Both
his requested witnesses provided statements, which were accepted and read into
the record. The hearing officer also considered post-fight photographs of both
men and the video of the altercation.
When Officer DeHaven stated that the video was not clear enough to
determine whether Mayr used the pickleball paddle to hit the petitioner, the
petitioner requested that Dublin, who had already submitted a witness statement,
be allowed to provide supplemental testimony at the hearing. Officer DeHaven
denied the request, stating that Dublin should have included all of the information
in his original statement.
Relying on written testimony and the photographs and video of the fight,
Officer DeHaven found the petitioner guilty of fighting. He sanctioned the
petitioner with 10 days lost good conduct time, 10 days of cell confinement, 10
days loss of general privileges, and a mandatory two-year loss of weightlifting
privileges. The petitioner appealed but the Associate Superintendent denied the
5 No. 84895-0-I/6
appeal on the basis that the documented injuries were consistent with mutual
combat.
Following the denial of both appeals, the petitioner filed this personal
restraint petition (PRP) in a timely manner.
ANALYSIS
We will reverse a prison disciplinary decision only upon a showing that the
decision was so arbitrary and capricious as to deny the petitioner a
fundamentally fair hearing. In re Pers. Restraint of Grantham, 168 Wn.2d 204,
215, 227 P.3d 285 (2010). A decision is arbitrary and capricious if it is willful and
unreasoning, done “ ‘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)). If a petitioner is awarded at least the minimum
due process protections and the hearing officer’s decision is supported by at
least some evidence, the disciplinary decision is neither arbitrary or capricious.
In re Pers. Restraint of Krier, 108 Wn. App. 31, 38, 29 P.3d 720 (2001).
Because prison disciplinary proceedings are not a part of a criminal
prosecution, incarcerated persons are not entitled to the full panoply of rights
awarded to criminal defendants. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.
Ct. 2963, 41 L. Ed. 2d 935 (1974). Rather, when faced with serious infractions
and the possible loss of good time credits, petitioners are entitled to minimum
due process protections. In re Pers. Restraint of McVay, 99 Wn. App. 502, 507,
993 P.2d 267 (1999). Minimum due process requires that an inmate facing a
6 No. 84895-0-I/7
disciplinary hearing receive only (1) notice of the alleged violation, (2) an
opportunity to present documentary evidence and call witnesses, and (3) a
written statement detailing the evidence relied upon and the reasons for any
disciplinary action. In re Per. Restraint of Gronquist, 138 Wn.2d 388, 396, 978
P.2d 1083 (1999).
To proceed with disciplinary action, the hearing officer’s conclusion must
be supported by “some” or “any” evidence. Superintendent v. Hill, 472 U.S. 445,
455-56, 105 S. Ct. 2768, 86 L. Ed 2d 356 (1985). This is a relaxed standard, not
requiring the court to examine the entire record, independently assess credibility,
or weigh evidence. Hill, 472 U.S. at 455-56. “Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Hill, 472 U.S. at 455-56. There need only be
a reasonable connection between the evidence and the inmate to support actions
taken by a prison disciplinary board. In re Pers. Restraint of Anderson, 112
Wn.2d 546, 549, 772 P.2d 510 (1989).
The petitioner asserts that both disciplinary proceedings were arbitrary
and capricious in violation of due process and that the 505 infraction also violated
his constitutional right to self-defense. We disagree.
The petitioner contends that the 658 infraction hearing violated due
process because DOC staff interfered with witness statements and therefore
violated his right to call witnesses. DOC argues that the petitioner received
adequate due process during the hearing and that as the finding of guilt was
7 No. 84895-0-I/8
supported by some evidence, no such violation exists. Given the lack of
evidence to support witness tampering and enough evidence to support the guilty
finding, the 658 infraction disciplinary hearing met all three minimum due process
requirements.
First, the petitioner received written notice of the charged infraction and
the facts supporting it in August 2022. He does not challenge receiving this
notice. Next, the hearing officer held a hearing, which the petitioner attended.
He spoke in his own defense and had the opportunity to request witness
statements. Although Sgt. Palmer’s witness statement was excluded because
she had written the infraction report, the petitioner’s other three witnesses all
submitted statements. Each were read into the record. And lastly, following the
finding of guilt, the petitioner received a written notice detailing the decision, the
evidence relied on, and the reasons for resulting disciplinary sanctions.
Accordingly, the petitioner received the required due process.
The petitioner claims that the hearing did not meet due process
requirements because Officer DeHaven told Sgt. Roberts, one of the petitioner’s
requested witnesses, what he could and could not say in his witness statement.
But the petitioner did not provide any evidence that Officer DeHaven actually
interfered with Sgt. Robert’s testimony. Instead, he relies only on his own
hearsay statements and the fact that he believes Officer DeHaven recused
himself following the petitioner’s complaint. No evidence exists that Officer
DeHaven recused himself. Even if Officer DeHaven had, the purely conclusory
claim that Officer DeHaven recused himself because he was guilty of interfering
8 No. 84895-0-I/9
with Sgt. Robert’s testimony is not enough to establish a violation of the
petitioner’s right to request witness statements. In the end, Sgt. Roberts did
provide a witness statement, under oath, which simply did not say what the
petitioner hoped it would.
In addition, there was some evidence to support the hearing officer’s guilty
finding. The petitioner argues that the hearing officer ignored the fact that he
was working when he was found outside of his cell, an exception to his cell
confinement. But the petitioner admitted both that he was out of his cell without
permission and that he is not a tray porter. He explained at the hearing that he
returned dinner trays to collect positive behavior logs, not because it was his job
to do so. And even had the petitioner been a tray porter, the pod officer
confirmed that there had been no calls to return trays to the kitchen. Together,
the staff reports and the petitioner’s own testimony provide some evidence to
support the hearing officer’s guilty finding.
The hearing officer’s decision was neither arbitrary nor capricious because
the petitioner received minimum due process and the guilty finding was
supported by some evidence.
The petitioner argues that the 505 infraction hearing violated his due
process rights, that the “some” evidence standard is unfair and should be
replaced by a “preponderance of the evidence” standard, and that the hearing
officer’s finding of guilt violates the petitioner’s constitutional right to self-defense.
DOC asserts that the petitioner again received adequate due process, that some
9 No. 84895-0-I/10
evidence, which is the appropriate standard, supported the guilty finding, and that
the petitioner does not have a right to self-defense. Even if he did have a right,
DOC contends, the DOC’s legitimate penological interests justify its blanket
prohibition on fighting. Because the petitioner cannot prove that bias against him
or inadequate documentation of the guilty finding undermined his minimum due
process rights, “some” evidence is the established standard for incarcerated
persons’ interests in good time credits, and the petitioner fails to show that WAC
137-25-030(505) is unconstitutional, the 505 infraction hearing was neither
arbitrary nor capricious.
1. Minimum Due Process
The petitioner contends that the 505 infraction hearing violated due
process because Officer DeHaven was biased against him, refused to recall
Dublin as a witness, and failed to adequately document his reasoning for the
guilty finding. Because the petitioner again fails to establish bias, Dublin already
provided testimony on the record, and Officer DeHaven sufficiently documented
his reasoning, there was no due process violation.
The petitioner received written notice of the charged infraction and the
facts supporting it in October 2022. Again, he does not challenge receiving this
notice. The petitioner attended the disciplinary hearing, spoke in his own
defense, and had the opportunity to request witness statements. Both of his
requested witnesses submitted statements and both statements were read into
the hearing record. The petitioner received written notice of Officer DeHaven’s
10 No. 84895-0-I/11
decision, the evidence he relied on, and the reasons for the resulting sanctions.
Accordingly, the petitioner received all requisite due process.
a. Appearance of Fairness Doctrine
The petitioner argues that as Officer DeHaven had already demonstrated
bias against him, allowing Officer DeHaven to conduct the 505 infraction hearing
was both a violation of the appearance of fairness doctrine and minimum due
process. We disagree.
The appearance of fairness doctrine serves to prevent “ ‘a biased or
potentially interested judge from ruling on a case.’ ” Olympic Healthcare Servs. II
LLC v. Dep't of Soc. & Health Servs., 175 Wn. App. 174, 184, 304 P.3d 491
(2013) (quoting In re Marriage of Meredith, 148 Wn. App. 887, 903, 201 P.3d
1056 (2009)). The doctrine extends to include quasi-judicial officers. City of
Lake Forest Park v. Shorelines Hearings Bd., 76 Wn. App. 212, 217, 884 P.2d
614 (1994). Proceedings under a judicial or quasi-judicial officer are only valid if
a “ ‘reasonably prudent and disinterested person would conclude that all parties
obtained a fair, impartial, and neutral hearing.’ ” Olympic Healthcare, 175 Wn.
App. at 184 (quoting Meredith, 148 Wn. App. at 903). But to show a violation of
the doctrine, the plaintiff must provide specific evidence, not mere speculation.
Lake Forest Park, 86 Wn. App. at 217. “Without evidence of actual or potential
bias, an appearance of fairness claim cannot succeed and is without merit.”
State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992).
The petitioner cannot provide any evidence of Officer DeHaven’s actual or
potential bias. He attempts to do so by reiterating his earlier allegation that
11 No. 84895-0-I/12
Officer DeHaven interfered with Sgt. Robert’s testimony in the 658 infraction
hearing. He fails, however, to provide any evidence beyond his own hearsay
statements to support that claim. The petitioner then asserts that Officer
DeHaven recused himself from that earlier proceeding, again suggesting that the
recusal indicates Officer DeHaven’s guilt. But no evidence in the record shows
that DeHaven recused himself. Even if he had, the petitioner’s argument is still
conclusory. His supposition regarding Officer DeHaven’s alleged recusal is not
evidence sufficient to establish actual or potential bias.
Without any evidence of actual or potential bias, Officer DeHaven did not
violate the appearance of fairness doctrine and there is no violation of due
process based on Officer DeHaven’s supposed bias.
b. Right to Call Witnesses
The petitioner next asserts that Officer DeHaven violated his due process
rights by failing to call Dublin as a witness. Because Officer DeHaven did
consider Dublin’s witness testimony provided in his declaration and simply chose
not to recall him to provide additional testimony, no violation of the petitioner’s
due process right to call witnesses occurred.
“Due process requires that an [incarcerated person] facing a prison
disciplinary hearing . . . be provided an opportunity to present documentary
evidence and call witnesses when not unduly hazardous to institutional safety
and correctional goals.” Krier, 108 Wn. App. at 38. Prison officials may be
required to explain why witnesses were not allowed to testify. Ponte v. Real, 471
U.S. 491, 497, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985).
12 No. 84895-0-I/13
The petitioner argues that Officer DeHaven both refused to allow Dublin to
testify and failed to document his refusal for doing so. However, Dublin did
testify. Dublin provided a witness statement, which Officer DeHaven accepted
and read into the record. His witness statement simply did not include all of the
evidence that the petitioner hoped it would. Witnesses do not have a right to
refine their testimony after the court has commented on it, and the petitioner
does not have an absolute right to recall a witness because he believes further
testimony may be helpful. And because Officer DeHaven did allow Dublin to
testify by witness statement, there was no need for him to document why he did
not allow him to testify further.
c. Written Notice of Guilty Finding
Lastly, the petitioner contends that Officer DeHaven failed to adequately
document his reasons for the guilty finding. Officer DeHaven provided evidence
sufficient to satisfy due process.
Due process requires an incarcerated person facing disciplinary action
receive a written statement detailing the evidence relied upon and the reasons
for the resulting disciplinary action. Krier, 108 Wn. App. at 38. The information
must be sufficient to allow the decision to be effectively reviewed,
administratively or judicially. Krier, 108 Wn. App. at 45.
Although the statement is rather brief, Officer DeHaven’s written statement
provided enough evidence to allow for effective review, and therefore did not
violate due process. In the final written order, Officer DeHaven noted that he
relied on the “staff’s written testimony” and “evidence presented” to reach the
13 No. 84895-0-I/14
finding of guilt. He documented that evidence, summarizing the petitioner’s
testimony and describing the video of the altercation and the photos of the
aftermath. Officer DeHaven’s determinations that the petitioner threw punches
back at Mayr and continued to fight once both men fell to the ground are the
reasons for disciplinary action. The petitioner was charged with fighting with
another incarcerated individual. Evidence of him doing so is reason to impose
disciplinary action. Officer DeHaven’s written statement satisfies Petitioner’s due
process rights.
Given that the petitioner fails to establish bias, that Dublin did testify, and
that DeHaven sufficiently documented his reasoning, the 505 infraction hearing
satisfied all of the petitioner’s due process rights.
2. “Some” Evidence Standard
The petitioner next contends that the “some” or “any” evidence standard
used to evaluate prison disciplinary proceedings is unfair and should be replaced
with the “preponderance of the evidence” standard. Because the “some” or “any”
evidence standard is well-established law in the prison disciplinary context, we
decline to do so. The petitioner then asserts that even using the “some”
evidence standard, there is insufficient evidence to support a finding of guilt for
the 505 infraction. We disagree.
The United States Supreme Court clearly states that “the requirements of
due process are satisfied if some evidence supports the decision by the prison
disciplinary board to revoke good time credits.” Hill, 472 U.S. at 455 (emphasis
added). The court specifically declined to apply a more stringent standard of
14 No. 84895-0-I/15
evidence, noting that “prison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must often act swiftly on the
basis of evidence that might be insufficient in less exigent circumstances.” Hill,
472 U.S. at 456. And because the revocation of good time credits is not
comparable to a criminal conviction, “the fundamental fairness guaranteed by the
Due Process Clause does not require courts to set aside decisions of prison
administrators that have some basis in fact.” Hill, 472 U.S. at 456 (emphasis
added). The Washington Supreme Court has repeatedly upheld this standard.
See Krier, 108 Wn. App. at 39; Grantham, 168 Wn.2d at 216; In re Pers.
Restraint of Gossett, 7 Wn. App. 2d 610, 629, 435 P.3d 314 (2019).
The petitioner fails to provide a compelling reason to overturn this settled
law. In fact, the petitioner’s only argument is that this standard is unfair. His
reliance on non-controlling case law from other state courts does little to
strengthen his argument. We decline to apply a new standard to prison
disciplinary decisions.
The petitioner also asserts that, using either his proposed preponderance
of the evidence standard or the established “some” evidence standard, the
hearing officer had insufficient evidence to find him guilty of fighting. We
disagree.
The petitioner notes that WAC 137-25-030(505) makes it a serious
violation to engage in “fighting with another incarcerated individual. ” He argues
that because Merriam-Webster defines “fighting” as “designed, intended, or
trained to fight in combat,” the plain meaning of the WAC suggests that a person
15 No. 84895-0-I/16
only engages in fighting if they intended to do so. And the petitioner asserts
since he was acting purely in self-defense, no such intent exists. But the
petitioner relies on a definition for the wrong part of speech. The definition that
the petitioner provides defines “fighting” used as an adjective. “Fighting,” as
used in the WAC, is the present participle of the verb. “To fight,” used as a verb,
is defined as “to contend physically” in battle or combat; especially to “strive to
overcome . . . a person . . . by blows or weapons.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 847 (2002). The petitioner’s actions satisfy this
definition.
As Officer DeHaven noted both during the hearing and in his written
statement, although Mayr threw the first punch, the petitioner continued the fight.
The video of the altercation shows the petitioner “on top throwing punches” and
the injuries to both the petitioner and Mayr were consistent with mutual combat.
This is sufficient to establish that the petitioner engaged in physical combat,
determined to overcome Mayr by blows. Because the “some” evidence standard
requires only a reasonable connection between the evidence and the petitioner’s
actions, some evidence supports the guilty finding.
3. Right to Self-Defense
Finally, the petitioner asserts that incarcerated individuals have a
fundamental right to defend themselves and WAC 137-25-030(505) is
unconstitutional to the extent that it does not recognize that right. DOC
disagrees, arguing that incarcerated individuals do not have a recognized right to
self-defense and that, even if they did, DOC properly curtailed that right based on
16 No. 84895-0-I/17
legitimate penological interests. Because DOC has a legitimate interest in
prohibiting fighting, the petitioner fails to establish a constitutional right to self-
defense that prevents any and all resulting sanctions, and hearing officers may
consider self-defense when imposing those sanctions, WAC 137-25-030(505) is
not unconstitutional. Accordingly, the 505 infraction hearing is not arbitrary and
capricious.
As an initial matter, we consider whether DOC has a legitimate
penological interest in prohibiting fighting among incarcerated individuals. We
conclude that it does.
DOC has a legitimate penological interest in both preserving internal order
and discipline and the health and safety of the prison population as a whole.
Procunier v. Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 40 L. Ed.2d 224 (1974)
(overruled in part by Thornburgh v. Abbot, 490 U.S. 401, 109 S. Ct. 1874, 104 L.
Ed.2d 459 (1989)); In re Pers. Restraint of Williams, 198 Wn.2d 342, 367, 496
P.3d 289 (2021).
Because fighting between incarcerated individuals has a strong likelihood
of upending the internal order of a prison and will almost certainly result in
damage to the health and safety of either the involved or other incarcerated
persons, DOC has a legitimate interest in prohibiting fighting.
The main issue arises, however, in determining whether the petitioner has
a constitutional right to self-defense that offset’s DOC’s interest in imposing
consequences for fighting, therefore rendering WAC 137-25-030(505)’s blanket
ban unconstitutional. We conclude that he does not.
17 No. 84895-0-I/18
The ability to act in self-defense is a constitutionally protected right under
the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 599, 628,
128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). However, incarcerated individuals do
not necessarily retain all of the same rights as ordinary citizens. In re Pers.
Restraint of Dowell, 100 Wn.2d 770, 772, 674 P.2d 666 (1984); Pell v. Procunier,
417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). And the inquiry into
whether a right extends broader protection must be context-specific. Ino Ino, Inc.
v. City of Bellevue, 132 Wn.2d 103, 115, 937 P.2d 154 (1997).
In addition, hearing officers have discretion in imposing sanctions for
serious infractions like WAC 137-25-303(505). WAC 137-28-240, WAC 137-28-
350. The hearing officer may consider prior documented behavior, infraction
history, mental status, and overall facility and program adjustment in addition to
the facts before them. WAC 137-28-350. The only limitations are that a hearing
examiner may not lower the quantity or nutritional value of food, impose corporal
punishment or physical restraint, impose confinement to an environment with
unhealthy temperatures, or deny adequate medical treatment. WAC 137-28-370.
The petitioner provides no case law to show that either the federal or state
constitutions establish the right to self-defense in prison. Because incarcerated
individuals do not retain all of the same rights as non-incarcerated people, the
petitioner cannot presume that the traditional right to self-defense continues to
apply. This is especially true given that incarcerated people often lose other
aspects of their Second Amendment rights, like the ability to bear arms, as the
result of a conviction. Without a context-specific inquiry into whether the right
18 No. 84895-0-I/19
extends broader protection, the petitioner cannot establish that WAC 137-25-
030(505) violates a constitutional right.
And even if the petitioner were to establish a constitutional right to self-
defense in prison, he fails to demonstrate that such a right completely protects
him from any and all forms of sanction. WAC 137-25-030(505) prohibits all
fighting. As noted above, DOC considers fighting to be mutual physical combat.
Actions taken in self-defense may still fall into that category. It is within the
hearing officer’s purview to determine whether an incarcerated person was
actually acting in self-defense and if that is enough to limit sanctions. The
assertion of self-defense alone cannot protect against all consequences.
In fact, the petitioner’s own infraction hearing demonstrates this process.
The petitioner repeatedly stated that he was acting in self-defense while engaged
with Mayr. Officer DeHaven clearly considered that statement but noted
specifically that Petitioner continued the fight and that, once the petitioner got
Mayr to the ground, “[was] on top throwing punches.” In finding the petitioner
guilty, Officer DeHaven did not disregard the petitioner’s assertion of self-
defense, it just was not the cure-all that the petitioner hoped for.
Because the petitioner fails to establish a right to self-defense that wholly
protects incarcerated individuals from those sanctions and the DOC has a
legitimate interest in prohibiting fighting protected by those sanctions, WAC 137-
25-030(505) is not unconstitutional.
19 No. 84895-0-I/20
Accordingly, the petitioner’s 505 infraction hearing was neither arbitrary
nor capricious in violation of minimum due process or a constitutional right to
self-defense.
We deny the petitioner’s personal restraint petition.
WE CONCUR: