Personal Restraint Petition Of William F Jensen ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE No. 70486-9-1 S «S
PERSONAL RESTRAINT OF:
WILLIAM F. JENSEN, DIVISION ONE rn ^
UNPUBLISHED OPINION co °~%
Petitioner. :g-or-
FILED: December 30, 2013$ §?gg
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Per Curiam. William Jensen files this personal restraint petition w
challenging the failure of the Department of Corrections (DOC) to award him
earned time while in administrative segregation as well as its refusal to expunge
records of an investigation of misconduct. We grant the petition in part and
remand to DOC for an adjustment of Jensen's earned time. Jensen's motion for
oral argument is denied.
Jensen is a former King County Sheriff's deputy who was convicted of
two counts of solicitation to commit first-degree murder. Because of his status
as a former law enforcement officer, Jensen is housed outside of the general
population. At the time of the challenged incident, Jensen resided in the BAR
unit at the Washington State Penitentiary, where offenders who are considered
vulnerable are housed.
In January 2011, Jensen was accused of soliciting sex by a fellow inmate
in the BAR unit. In order to separate the two men while the allegation was
investigated, and because neither Jensen nor the other inmate could be placed
No. 70486-9-1/2
in the general population, Jensen was placed in administrative segregation. An
investigator ultimately determined that the allegation was unfounded. During
the period he was in administrative segregation, Jensen was denied the
opportunity to receive 13.53 days of earned time.1
To obtain relief from a DOC decision from which he has had "no previous
or alternative avenue for obtaining state judicial review," Jensen must show that
he is under a restraint and the restraint is unlawful. In re Pers. Restraint of
Cashaw. 123 Wash. 2d 138, 149, 866 P.2d 8 (1994); RAP 16.4. Jensen is under
restraint by virtue of his incarceration. In re Pers. Restraint of Pullman. 167
Wash. 2d 205, 211,218 P.3d 913 (2009). A showing that a decision by a
government agency failed to comply with the agency's own rules or regulations
is sufficient to show the unlawfulness of the restraint. Cashaw, 123 Wash. 2d at
149.
At the time of the challenged incident, DOC Policy 350.100, governing
earned release time, specified that an offender is not eligible for earned time if
he or she "serves 20 days or more in one calendar month in Administrative
Segregation/Intensive Management status or disciplinary segregation!.]"
However, the policy further stated, "For other than negative behavior, offenders
1A sentence may be reduced by "earned release time"; a combination of "good
conduct time," which are credits awarded to an inmate that can be lost if inmate
commits disciplinary infractions; and "earned time," which are credits an inmate can
earn by participating in various prison programs and engaging in other positive
behavior. RCW 72.09.130, RCW 9.94A.729, WAC 137-30-020. Offenders convicted
of a serious violent offense committed after July 1, 1990 and before July 1, 2003, such
as Jensen, can receive earned release time up to 15 percent of their sentence.
No. 70486-9-1/3
on Administrative Segregation/Intensive Management Status will continue to
earn earned time at the rate allowed by crime category."2
Here, DOC did not follow its own policy when it denied Jensen the
opportunity to accumulate earned time while placed in administrative
segregation. Because the investigation concluded that Jensen committed no
wrongdoing, he was not placed in administrative segregation for "negative
behavior."3 Moreover, DOC concedes that the reason Jensen was placed in
administrative segregation instead of the general population during the
investigation was for his own protection and safety.4
Jensen also argues that he is entitled to have DOC expunge the records
ofthe January 2011 incident from his file because it was investigated and the
allegations were determined to be unfounded. But DOC Policy 460.000, which
Jensen cites, involves expungement of records following disciplinary hearings.
Jensen was never infracted nor underwent a disciplinary hearing for the
January 2011 incident because an investigation revealed the allegations were
unfounded. Jensen claims that the retention of the records violates his right to
2This is identical to the language of WAC 137-30-030(c)(iv).
3According to DOC Policy 320.200, there are five reasons an inmate may be
placed in administrative segregation: (1) he poses a threat to self, others or the facility;
(2) he is in need of protection; (2) he is pending transfer to a more secure facility; (4)
he poses an escape risk; or (5) he is pending investigation. Because DOC Policy
350.100 differentiates between placement in administrative segregation for "negative
behavior" and placementfor other reasons, it is clear that not all of these reasons
constitute "negative behavior."
4DOC's explanation is borne out by the fact that Jensen had previously been
placed in administrative segregation during the investigation of an allegation that he
solicited another inmate to assault a staff member, but that he was found not guilty of
the infraction at a disciplinary hearing and therefore accumulated earned time during
his placement in administrative segregation.
No. 70486-9-1/4
due process, citing Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999).
But Burnsworth involves only the expungement of an infraction that was not
supported by sufficient evidence, not the expungement of any records
pertaining thereto. Because Jensen does not establish that he has a protected
liberty interest in the expungement of his records, nor that DOC violated its
policy regarding investigation records, he does not establish a claim for relief.
Accordingly, we grant the petition in part and remand to DOC for Jensen
to be credited with the earned time he accumulated while placed in
administrative segregation during investigation of the January 2011 incident.
For the court: