IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 83313-8-I
SAY SULIN KEODARA, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
COBURN, J. — Say Sulin Keodara brings this personal restraint petition
challenging the Department of Corrections’ (DOC) decision to terminate the
communication and visitation privileges of his fiancée, Melissa Mesa, after DOC
uncovered evidence that Keodara, Mesa, and others were working together to smuggle
drugs into a DOC prison facility. DOC contends res judicata bars Keodara’s claims
because he raised the same claims and they were adjudicated to final judgment in
federal court. We agree and deny the petition.
FACTS
Keodara is currently serving a 480-month sentence and is incarcerated at the
Clallam Bay Correctional Center (CBCC).
In April 2020, the Intelligence and Investigations Unit (IIU) at CBCC received
information that incarcerated individuals, people in the community, and a CBCC
employee were working together to “buy, sell, and smuggle drugs into the prison.” The No. 83313-8-I/2
IIU began reviewing recorded communications and identified Keodara and Melissa
Mesa as participants in the scheme to introduce drugs into the prison. Mesa, then a
United States Customs and Border Patrol Agent, was in a relationship with Keodara,
who maintains that Mesa was his fiancée.
In August 2020, a CBCC corrections officer was arrested and admitted
involvement in the drug trafficking scheme. Keodara and the other inmates involved in
the scheme received infractions for violating rule 603 under WAC 137-25-030(1),
conspiring to introduce unauthorized drugs into CBCC. At Keodara’s disciplinary
hearing in September, DOC alleged that Keodara conspired with other offenders at
CBCC, a CBCC employee, and “people in the community” to have illicit drugs
introduced into CBCC. The employee report supporting the infraction summarized the
evidence and confidential information received by DOC. The employee report identified
three individuals in the community but did not specifically identify Mesa. The hearing
officer found Keodara guilty of the infraction on October 28. The sanctions imposed
included 180 days of suspended visitation and restricted communication privileges with
a recommendation, pending superintendent’s approval, of the permanent loss of any
and all communication with the three named individuals in the community. Keodara did
not appeal the disciplinary action.
Because Mesa was a federal agent, IIU reached out to the FBI for assistance
with the investigation. The coordination between IIU and outside agencies meant DOC
actions were timed so as to not jeopardize the other agencies’ investigations.
In a letter dated November 4, the Superintendent of CBCC, Jeri Boe, notified
Mesa that her visitation and communication privileges with CBCC were “immediately
2 No. 83313-8-I/3
and permanently terminated.” The letter explained that DOC believed “you, in concert
with and at the direction of incarcerated individual, Keodara, assisted, aided, and/or
conspired to introduce contraband into CBCC.” The letter advised Mesa that she had
“the right to appeal the visitation decision to the Assistant Secretary for Prisons, who
has the final approval on visiting privilege appeals.” The letter also explained “that
policy does not provide an option for appeal of the restriction of all communication.”
Keodara was copied on this letter.
Both Mesa and Keodara sent separate letters of appeal to Assistant Secretary for
Prisons Robert Herzog.
In a December 14 letter to Mesa, a copy of which was also sent to Keodara,
Herzog explained that “Based on records reviewed, due to safety and security
concerns, the termination of visit privileges is appropriate and remains in place at this
time.”
On December 20, Keodara received a DOC rejection notice informing him that an
incoming letter from “M Sihaya Keodara” was rejected because the envelope contained
a letter and marriage license application that is signed “Melissa Keodara” and
“[c]orrespondence between these two individuals has been permanently restricted.”
Keodara did not appeal the rejection. In January 2021, Keodara submitted an “offender
kite” to Boe asking, “Can Melissa Mesa and I begin our marriage process[?] If not, can
you explain why? – She told my mother that her paperwork is ready again.” Boe
responded “Currently your communication and visits have been terminated with this
visitor.”
3 No. 83313-8-I/4
In March 2021, Keodara filed a pro se civil rights lawsuit under 42 U.S.C. § 1983
in the U.S. District Court for the Western District of Washington. Among his claims,
Keodara alleged that Boe and Herzog violated his constitutional rights under the First
and Fourteenth Amendments when Boe terminated Mesa’s visitation and
communication privileges in the November 4 letter. 1 Keodara claimed that the action
amounted to discipline, that he did not receive adequate due process and that it
effectively prevented him from corresponding with and marrying Mesa. 2
In August 2021, Keodara received notice of a serious infraction for violating rule
718 under WAC 137-25-030(1), “Using the mail, telephone, or electronic
communications in violation of any law, court order, or previous written warning,
direction, and/or documented disciplinary action.” Keodara was found guilty for violating
the November 4, 2020 “permanent suspension of all communication memo” given to
him and Mesa. Keodara and Mesa had sent each other numerous JPAY 3 messages
and photographs. Keodara was sanctioned to 20 days confinement to his cell. He did
In November 2021, Keodara filed this Personal Restraint Petition (PRP) in this
court that repeated the same due process, First Amendment, and Fourteenth
Amendment claims based on the November 4 letter that he made in his federal
complaint. In DOC’s initial response, it maintained that the PRP should be dismissed
1 Keodara also claimed violations of equal protection, the Eighth Amendment, and retaliation under the First Amendment. 2 To support an argument that the marriage claim was moot, DOC filed documentation that in June 2022, Hailey Harless submitted an application to DOC to marry Keodara, describing him as her fiancé, whom she has known for three years. In July, Keodara and Harless signed a DOC form affirming that they read and understood DOC’s applicable marriage policy. 3 JPAY is a system that allows inmates to send and receive electronic messages, photographs, and videos from individuals in the community. 4 No. 83313-8-I/5
because Keodara had already filed a civil rights lawsuit making the same claims and
seeking the same relief as his PRP. Keodara filed a reply arguing that the doctrines of
res judicata and collateral estoppel did not apply at that time because the federal district
court matter was still pending and no judgment had been entered. Keodara further
noted that if this court were to decide his due process issue on the merits, the federal
district court would be required to honor the state court’s judgment. The acting chief
judge of this court referred Keodara’s PRP to a panel of this court and appointed
counsel to represent Keodara.
The briefing in the instant case was completed in July 2023. In September 2023,
the federal court granted DOC’s motion for summary judgment dismissal of Keodara’s
claims. Keodara v. Boe, No. 3:21-CV-5129 TMC-TLF, 2023 WL 6377570, at *1 (W.D.
Wash. Sept. 29, 2023) (court order). DOC subsequently filed in this court a “Motion on
the Merits To Dismiss under RAP 17 and 16.15(A) Based on Res Judicata and
Collateral Estoppel.” Keodara filed a response to that motion arguing that this court
should not apply res judicata because it would create an injustice because he was not
represented by an attorney in his federal court suit and that the two actions did not
share the same subject matter or cause of action.
DISCUSSION
To prevail on a PRP, a petitioner must show that he or she is under restraint as
defined by RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers.
Restraint of Dove, 196 Wn. App. 148, 153-54, 381 P.3d 1280 (2016). A petitioner is
under restraint when he or she is confined. RAP 16.4(b). Such restraint can be
unlawful if the “conditions or manner of the restraint” violate the constitutions of the
5 No. 83313-8-I/6
United States or the State of Washington or violates Washington state law. RAP
16.4(c)(6). “[P]risoners challenging prison discipline need not make a prima facie case
of constitutional error and actual and substantial prejudice or nonconstitutional error and
total miscarriage of justice.” In re Pers. Restraint of Grantham, 168 Wn.2d 204, 218,
227 P.3d 285 (2010). Keodara must show only that he is under unlawful restraint as
defined by RAP 16.4. In re Pers. Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031
(2016). As an inmate confined in a state correctional facility, Keodara is under
“restraint.” Kozol v. Dep’t of Corr., 185 Wn.2d 405, 409, 379 P.3d 72 (2016), as
corrected (Aug. 1, 2016).
The parties dispute whether the November 4 termination letter to Mesa can be
considered a disciplinary action against Keodara. We need not answer that question
because we agree with DOC that res judicata bars Keodara’s claims.
Procedure
We first address a preliminary matter as to the way the issue of res judicata
came before this court. Res judicata is an affirmative defense. Jumamil v. Lakeside
Casino, LLC, 179 Wn. App. 665, 680, 319 P.3d 868 (2014). Thus, while DOC is correct
that its argument is “on the merits,” it filed its motion to dismiss under RAP 17 and RAP
16.15(a), which govern the filing of motions generally. 4 Because raising an affirmative
defense of res judicata is a consideration on the merits, DOC’s motion should have
been a request to supplement the record under RAP 9.10 5 and to file supplemental
4 RAP 16.15(a) states that the procedure for and form of a motion related to a PRP is provided in Title 17, which provides that a “person may seek relief, other than a decision of the case on the merits, by motion as provided in Title 17.” RAP 17.1(a). 5 RAP 9.10 allows the appellate court to direct the supplementation of the record on the motion of a party “if the record is not sufficiently complete to permit a decision on the merits of the issues presented for review.” 6 No. 83313-8-I/7
briefing under RAP 10.1(h). 6 Because all parties had the opportunity to brief the issues
raised without objection, we exercise our discretion to treat the additional filings as
supplemental record and briefing. RAP 18.8. 7
Res Judicata
DOC contends that res judicata and collateral estoppel bar this PRP because
Keodara raised the same claims and issues involving the same parties in his federal
civil rights action where a final judgment has been entered.
“Res judicata and collateral estoppel are kindred doctrines designed to prevent
repetitive litigation.” Eckstrom v. Hansen, 4 Wn. App. 2d 580, 584, 422 P.3d 926
(2018). The “‘doctrine of res judicata rests upon the ground that a matter which has
been litigated, or on which there has been an opportunity to litigate, in a former action in
a court of competent jurisdiction, should not be permitted to be litigated again. It puts
an end to strife, produces certainty as to individual rights, and gives dignity and respect
to judicial proceedings.’” Marino Prop. Co. v. Port Comm’rs, 97 Wn.2d 307, 312, 644
P.2d 1181 (1982) (quoting Walsh v. Wolff, 32 Wn.2d 285, 287, 201 P.2d 215 (1949)).
The burden of proof rests on the party asserting these defenses. In re Pers. Restraint
of Metcalf, 92 Wn. App. 165, 174, 963 P.2d 911 (1998). In this case, DOC asserts the
defense and bears the burden to prove that res judicata and collateral estoppel apply.
Res judicata, or claim preclusion, bars the re-litigation of claims that were or
should have been litigated in a prior action. Weaver v. City of Everett, 4 Wn. App. 2d
6 “The appellate court may in a particular case, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in this rule.” RAP 10.1(h). 7 RAP 18.8(a) allows us to waive the requirements of the rules of appellate procedure where we find it appropriate. 7 No. 83313-8-I/8
303, 320, 421 P.3d 1013 (2018). The threshold requirement of res judicata is a valid
and final judgment on the merits in a prior suit. Emeson v. Dep’t of Corr., 194 Wn. App.
617, 626, 376 P.3d 430 (2016). A grant of summary judgment in a prior proceeding is
considered a final judgment on the merits. DeYoung v. Cenex Ltd., 100 Wn. App. 885,
892, 1 P.3d 587 (2000). “Res judicata . . . applies where a prior final judgment is
identical to the challenged action in ‘(1) subject matter, (2) cause of action, (3) persons
and parties, and (4) the quality of the persons for or against whom the claim is made.’”
Lynn v. Dep’t of Labor & Indus., 130 Wn. App. 829, 836, 125 P.3d 202 (2005) (quoting
Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995)). Courts
should not apply res judicata when the doctrine would work an injustice. Metcalf, 92
Wn. App. at 174.
First, the subject matter of this PRP and the federal action are the same. In the
previous federal litigation, Keodara claimed that Superintendent Boe’s November 4
termination letter violated his procedural due process rights under the Fourteenth
Amendment, his First Amendment right of freedom of expression, and his substantive
right to marriage guaranteed under the Fourteenth Amendment. In his PRP, Keodara
again claimed his federal constitutional rights to procedural due process, right to marry,
and First Amendment rights were violated. 8
DOC asserts that, in Keodara’s cross motion for summary judgment in the
federal action, he “abandoned his standalone First Amendment free speech claim,
instead incorporating it into his Fourteenth Amendment procedural due process claim.”
8 Keodara makes a passing notation of Article I § 14 of the Washington State Constitution in his PRP but makes no substantive argument under the Washington State Constitution. “This court will not consider claims insufficiently argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990). 8 No. 83313-8-I/9
The motion filed by Keodara does not reflect such an abandonment. Keodara instead
argued that he had First Amendment rights as an incarcerated individual and that his
rights were impinged upon when DOC allegedly retaliated against him by terminating
his ability to communicate with Mesa. Keodara v. Boe, No. 3:21-CV-5129 TMC-TLF
(W.D. Wash. May 4, 2022), ECF No. 50 at 13. The district court noted that “Keodara
reasons that if Mesa was not involved in the drug ring, restricting his access to her could
not have furthered penological goals and was only done in retaliation for his grievances.
Keodara v. Boe, No. 3:21-CV-5129 TMC-TLF, 2023 WL 6377570, at *4 (W.D. Wash.
Sept. 29, 2023) (court order). However, the court found that defendants
offer ample evidence that termination of Mesa’s communication and visitation privileges advanced the legitimate correctional goals of keeping the facility safe and reducing the presence of illegal drugs. Defendants had significant evidence that Mesa (once a federal law enforcement officer) was a key player in a prison drug smuggling ring. Superintendent Boe’s decision to ban Mesa from access to CBCC was reasonably calculated to reduce the likelihood that more illegal drugs would enter the facility.
Id. at *5.
Whether the federal court addressed Keodara’s First Amendment free speech
claim as part of his retaliation claim or as a standalone claim is of no matter because
“[r]es judicata applies to matters that were actually litigated and those that ‘could have
been raised, and in the exercise of reasonable diligence should have been raised, in the
prior proceeding.’” Emeson, 194 Wn. App. at 626 (emphasis added) (internal quotation
marks omitted) (quoting DeYoung, 100 Wn. App. at 891-92; see, e.g., Kuhlman v.
Thomas, 78 Wn. App. 115, 124, 897 P.2d 365 (1995)) (finding the same subject matter
even where the claims were different, because the basis of the claims was the plaintiff's
alleged deprivation of a constitutional right and tortious harm resulting from false
9 No. 83313-8-I/10
allegations). The federal court, in analyzing Keodara’s Fourteenth Amendment due
process claim, rejected his assertion that he had a protected liberty interest in
communicating with a particular visitor. The ultimate basis underlying all of Keodara’s
claims is whether the decision reflected in the November 4 letter violated Keodara’s
federal constitutional rights.
Second, the cause of action in each is identical. While “there is no specific test
for determining identity of causes of action,” analytical tools include “(1) whether the
rights or interests established in the prior judgment would be destroyed or impaired by
the prosecution of the second action; (2) whether substantially the same evidence is
presented in the two actions; (3) whether the suits involved infringement of the same
right; and (4) whether the two suits arise out of the same transactional nucleus of facts.”
Ensley v. Pitcher, 152 Wn. App. 891, 903, 222 P.3d 99, 104 (2009) (quoting Kuhlman,
78 Wn. App. at 122). “[I]t is not necessary that all four factors be present to bar the
claim.” Id. Washington courts in some contexts have referred to a “cause of action” as
the act that occasioned the injury and the legal right of the plaintiff invaded by the
defendant. Eugster v. State Bar Ass’n, 198 Wn. App. 758, 788, 397 P.3d 131 (2017)
(citing McFarling v. Evaneski, 141 Wn. App. 400, 405, 171 P.3d 497 (2007)). The
claims in Keodara’s PRP involve the same set of facts supported by the same evidence
and legal theories as in his federal action. See Emeson, 194 Wn. App. at 636. Both
litigations completely revolved around the November 4 termination letter from Boe.
Keodara contends that the cause of action in both cases was not identical
because the federal suit was brought under 42 U.S.C. § 1983 while the instant case
addresses unlawful restraint. Thus, Keodara argues, the federal court only considered
10 No. 83313-8-I/11
federal law whereas this court considers Washington law addressing due process when
inmates are given serious infractions. It is true that “administrative rules constitute the
laws of Washington for purposes of determining when an inmate is under ‘unlawful
restraint’ as defined under RAP 16.4(c)(6).” Kozol, 185 Wn.2d at 410. But the claims
Keodara raises in both his PRP and his § 1983 action are that his federal constitutional
rights are violated. And while Keodara frames his case as a prison disciplinary matter,
the action, the November 4 letter, was not a disciplinary action against Keodara, despite
the fact the effect of the action implicated his ability to communicate with Mesa. 9 This
does not mean Keodara cannot claim that his constitutional rights were nonetheless
implicated. See In re Pers. Restraint of Arseneau, 98 Wn. App. 368, 989 P.2d 1197
(1999) (review of a PRP challenging DOC’s action prohibiting a prison inmate from
writing letters to his niece that did not involve a disciplinary action). The cause of action
in Keodara’s PRP is identical to his cause of action in his federal suit.
Under the third and fourth elements, the parties and quality of persons against
whom the constitutional claim is made are identical. “Under the principles of res
judicata, a judgment is binding upon parties to the litigation and persons in privity with
those parties.” Emeson, 194 Wn. App. at 635 (quoting Loveridge, 125 Wn.2d at 764).
Privity is established “where a person is in actual control of the litigation, or substantially
participates in it.” Id. at 635-36. Keodara named both Superintendent Boe and
Assistant Secretary Herzog in their official capacities with the DOC as defendants in his
federal suit. Here, Keodara challenges the constitutionality of the decisions made by
Boe and Herzog. Both Keodara and DOC were in actual control of their interests during
Notably, when Keodara was disciplined in August 2021 for violating the November 4 9
“permanent suspension memo,” he did not appeal. 11 No. 83313-8-I/12
the federal court litigation and this PRP. The federal court complaint was defended by
DOC and summary judgment was granted following a motion by DOC. Keodara
represented himself in the federal suit and initiated the petition in this PRP. DOC has
again defended against Keodara in this PRP.
Lastly, DOC maintains that applying res judicata to bar Keodara’s PRP claims
would not work an injustice because Keodara had a full and fair opportunity to litigate
his claims in federal district court. Keodara successfully filed a multi-count complaint in
federal court, cited case law on point, engaged in discovery, and successfully filed a
cross motion for summary judgment.
Keodara’s only argument that the application of res judicata would work an
injustice is that Keodara did not have assistance of counsel in his federal suit. Keodara
cites Penner v. Central Puget Sound Regional Transit Authority, 25 Wn. App. 2d 914,
928, 525 P.3d 1010, review denied, 1 Wn.3d 1026 (2023) (citing In re Coday, 156
Wn.2d 485, 502 n.4, 130 P.3d 809 (2006)), for the proposition that the “Washington
Supreme Court has ‘specifically cautioned that res judicata should not apply if the
previous litigants did not have adequate representation.’” That quotation does not stand
for the proposition that because one matter is a pro se litigation res judicata would
presumptively work an injustice. What the Supreme Court actually stated in the Coday
footnote was “we might well decline to apply res judicata to bar election contests where
the contestants in an earlier case do not adequately represent the interests of the
electorate generally.” Coday, 156 Wn. 2d at 502 n.4.
Keodara also cites as an example Christensen v. Grant County Hosp. Dist. 1,
152 Wn.2d 299, 316-17, 96 P.3d 957 (2004), in which the Supreme Court considered
12 No. 83313-8-I/13
the litigant’s argument that res judicata should not bar his suit because he was
represented by a union lawyer in the previous case and he did not actively participate in
the union’s complaint. The court concluded that undisputed evidence showed that the
litigant consented to his claim being advanced by the union even though he could have
declined. Id. at 316. Notably, the court stated, “We reiterate that whether the decision
in the earlier proceeding was substantively correct is generally not a relevant
consideration in determining whether application of collateral estoppel would work an
injustice.” Id. at 317. In determining whether there was a procedural unfairness
resulting in injustice the court looked to whether the litigant had a “full and fair
opportunity to litigate.” Id. at 317. Christensen does not help Keodara.
Keodara argues that, unlike federal law, Washington provides for the
appointment of counsel on collateral attacks. See generally CrR 3.1(b)(2)(A). But
Keodara, other than noting the fact that he proceeded pro se in his federal case, does
not rebut DOC’s argument that Keodara had a full and fair opportunity to litigate, and,
thus, application of res judicata does not work an injustice. Any general argument that
having an attorney represent Keodara would have resulted in a more favorable ruling is
not a relevant consideration. In fact, Keodara was aware that filing the same claims in
two different courts risked the application of res judicata. When DOC initially argued
that the PRP was not proper because Keodara had filed the same claims in district
court, it was Keodara who replied that if this court determined his due process claims in
his PRP before the federal court ruled, the federal court would be required to honor the
state court judgment. It just so happened that the federal court ruled on Keodara’s
claims first.
13 No. 83313-8-I/14
Res judicata bars Keodara’s claims raised in his PRP. Accordingly, we deny his
petition. 10
WE CONCUR:
10 Because res judicata bars Keodara’s claims, we need not consider the application of collateral estoppel or DOC’s argument that Keodara’s marriage claim is moot because of Keodara’s application to marry someone else. 14