Personal Restraint Petition Of David Joseph Pedersen ( 2017 )


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  •        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    )       UNPUBLISHED OPINION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)).
    1
    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
    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.
    1
    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.
    - 10-
    No. 74711-8-1/11
    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
    2
    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.
    3
    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.
    - 12-
    No. 74711-8-1/13
    "[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:
    -13-