Personal Restraint Petition Of: Marlow Todd Eggum

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 79007-2-I
of )
)
MARLOW TODD EGGUM, ) UNPUBLISHED OPINION
)
Petitioner. )
BOWMAN, J. — Marlow Todd Eggum filed this personal restraint petition
(PRP) alleging that several policies of the Department of Corrections (DOC)
interfered with his access to the courts in violation of his rights under the First
and Fourteenth Amendments to the United States Constitution. DOC argues we
should dismiss Eggum’s PRP because he has other adequate remedies at law.
In the alternative, DOC contends that Eggum fails to show that DOC policies
violated his right of access to the courts. Because Eggum’s claims touch on
significant constitutional issues, we address the merits of his petition. However,
because Eggum fails to establish that DOC policies interfered with his access to
the courts, we deny his petition.
FACTS
In August 2016, Eggum filed a civil lawsuit naming Whatcom County, the
Whatcom County Sheriff’s Office, and five other individuals as defendants.
Eggum sought damages for destruction of videos that he claimed were his
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79007-2-I/2
personal property. In November 2016, the court dismissed all but one of the
defendants on summary judgment. Eggum appealed the dismissal.
Eggum continued to pursue his lawsuit against the remaining defendant.
He filed several motions, including motions to amend his complaint, motions to
strike ex parte rulings, a request for the identity of evidence, motions for
reference hearings, motions for reconsideration, objections to rulings, a motion to
set aside the summary judgment dismissal of most of the defendants, and
supplemental notices of appeal. The case proceeded to a bench trial on
December 8, 2017, after which the court entered an order of dismissal.
Eggum continued to file motions post-trial, including a motion “to
determine court rule violation” filed in July 2018. The court scheduled a hearing
for August 24, 2018 to address the motion. DOC denied a request by Eggum to
appear telephonically at the hearing pursuant to its policy that access to
unrestricted telephone lines are limited to court appearances related to an
inmate’s case involving their civil rights, sentence, and conditions of confinement.
The Skagit County Superior Court continued the hearing and issued an order
directing DOC to provide Eggum access to an unrestricted phone line at the next
hearing date. On October 12, 2018, Eggum attended the hearing by telephone.
In the interim, Eggum filed this PRP on September 24, 2018.
ANALYSIS
Other Adequate Remedies
Eggum alleges in his PRP that he is unlawfully restrained because DOC
policies governing use of telephones, access to the law library, and photocopying
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services impede his right to access the courts. DOC contends that Eggum’s
PRP should be dismissed because Eggum “only seeks injunctive relief” for which
there are other adequate remedies at law—a civil rights action.
To prevail on a PRP, a petitioner must show that he or she is under
restraint and that the restraint is unlawful. In re Pers. Restraint of Dyer, 143
Wash. 2d 384, 391, 20 P.3d 907 (2001). Restraint is unlawful when the “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). We will grant relief on a PRP only if other remedies at law are
“inadequate under the circumstances.” RAP 16.4(d).
There is no dispute that Eggum is currently being restrained by DOC.
Eggum alleges that his restraint is unlawful because DOC policies interfere with
his access to the courts, a condition or manner of restraint that violates his rights
under the First and Fourteenth Amendments. This court has reached the merits
of a PRP despite the availability of other remedies where the claims were of
significant constitutional importance. See In re Pers. Restraint Petition of
Arseneau, 98 Wash. App. 368, 371, 989 P.2d 1197 (1999). Because Eggum’s
claims touch on issues of significant constitutional importance—access to the
courts—we address the merits of his petition.
Access to the Courts
As the personal restraint petitioner, Eggum bears the burden of proving by
a preponderance of evidence that his restraint is unlawful. In re Pers. Restraint
Petition of Cook, 114 Wash. 2d 802, 814, 792 P.2d 506 (1990). The petitioner must
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specifically identify the evidence supporting his petition. In re Pers. Restraint
Petition of Wolf, 196 Wash. App. 496, 503, 384 P.3d 591 (2016) (citing RAP
16.7(a)(2)). The petition must be supported by factual evidence, rather than on
conclusory allegations. Wolf, 196 Wash. App. at 503; In re Pers. Restraint of
Gronquist, 138 Wash. 2d 388, 396, 978 P.2d 1083 (1999). Inadmissible hearsay,
speculation, and conjecture cannot support a challenge to an inmate’s conditions
of confinement. Gronquist, 138 Wash. 2d at 396.
Prisoners have a constitutional right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), abrogated on
other grounds by Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d
606 (1996). This right includes access to civil proceedings. Whitney v. Buckner,
107 Wash. 2d 861, 865, 734 P.2d 485 (1987) (citing Wolff v. McDonnell, 418 U.S.
539, 578-79, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). Law libraries are one way
that prisons may provide inmates access to the courts. See Bounds, 430 U.S.
817 at 828. Prisons must also provide basic supplies to the extent necessary to
ensure that a prisoner’s access to the court is meaningful. See Bounds, 430
U.S. 817 at 825-28. But the right of access to the courts is not absolute.
Whitney, 107 Wash. 2d at 866.
Prison authorities must take affirmative steps to provide “tools” for
prisoners to attack their sentences, challenge their conditions of confinement,
and pursue civil rights actions. Lewis, 518 U.S. at 355; Wolff, 418 U.S. 539 at
579. For all other legal matters, prison authorities have no affirmative duty to
assist with litigation. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011).
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For those matters, prisons are forbidden from “ ‘erect[ing] barriers that impede
the right of access of incarcerated persons.’ ” Silva, 658 F.3d at 1102-031
(quoting John L. v. Adams, 969 F.2d 228, 235 (6th Cir. 1992)).
There is no established minimum requirement that a state must meet in
order to provide inmates with adequate access to the courts. See King v. Atiyeh,
814 F.2d 565, 568 (9th Cir. 1987), overruled on other grounds by Lacey v.
Maricopa County, 693 F.3d 896 (9th Cir.2012). Instead, a reviewing court should
focus on whether the individual prisoner before it has been denied meaningful
access. King, 814 F.2d at 568. To establish a violation of the right of access to
the courts, Eggum must show that he has suffered an actual injury. Nev. Dep’t of
Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at
349).
I. Telephone Policy
Eggum argues that DOC interfered with his access to the courts when it
refused to give him access to an unrestricted telephone line to appear at his
August 24, 2018 motion to “determine court rule violation.”
Unrestricted telephone lines are located in prison counselor’s offices, and
a counselor must be present at all times during unrestricted calls. DOC policy
provides:
Any legal call will be limited to a Court hearing where an order has
been issued requiring the Counselor to facilitate the call and must
be related to the inmate’s cases involving their civil rights,
sentences and conditions of confinement.
1 Alteration in original.
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Inmates have access to payphones for telephonic appearances in all other legal
matters.
Eggum contends that DOC’s policy is “in effect a total denial” of a
prisoner’s right to participate by telephone in a civil hearing because inmates
have no other viable means of accessing the court by telephone. He claims that
prisoners cannot use payphones to call into court hearings because courtroom
telephones do not allow for toll-free calls. Eggum references court notices that
instruct litigants, “Do not use a payphone,” and argues that the prison phone
system is not compatible with automated court answering systems because
“[s]omebody [at the court] has to physically pick up the phone and accept the
[prison] call.”
Eggum claims that he was injured by DOC’s telephone policy because
when DOC denied him access to an unrestricted phone line to appear
telephonically at his motion hearing on August 24, 2018, “[h]is lawsuit was
dismissed by default.” The record does not support Eggum’s claim.
The court dismissed all but one of the named defendants in Eggum’s
lawsuit on summary judgment in November 2016. The court dismissed the
remainder of his lawsuit after a bench trial on December 8, 2017. The record
does not reflect the basis underlying the December 2017 dismissal, but it is
reasonable to assume the dismissal was not related to Eggum’s inability to
appear for a post-trial motion hearing eight months later. A hearing for which
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DOC ultimately facilitated Eggum’s telephonic appearance.2 Eggum has failed to
show actual injury from DOC telephone use policies.
II. Law Library Policy
Eggum contends that recent changes to DOC library policies
unreasonably interfered with his ability to access the courts because they are
“overly complicated” and it now takes “at least half a month” to get access to the
library. He asserts that access is too limited because the library is now open only
five and a half hours a day, five days a week. He argues that the library’s recent
change from providing legal books to offering only digital resources and the
removal of four writing desks makes it difficult to conduct legal research. In
addition, he claims that DOC library policy banning accordion-type folders and
more than 50 pages of research material as well as charging inmates for paper
impedes his ability to prepare his case effectively.
The record does not support Eggum’s allegations. Prison administrative
assistant Lori Wonders testified that access to the law library is available to all
inmates. However, because the library has only 31 legal research terminals,
DOC policy gives priority access to inmates who have verifiable 45-day court
deadlines for cases related to their sentences, conditions of confinement, or civil
rights. Here, records spanning the 11-month period of December 2017 through
November 2018 show that Eggum submitted 18 requests for priority law-library
access and received responses to all but 2 of those requests within 48 hours. Of
2Because prison administrators did comply with the superior court order to provide
Eggum with telephonic appearance, we do not address Eggum’s request for a directive that DOC
comply with superior court orders.
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No. 79007-2-I/8
the 18 requests, 4 were denied because Eggum did not have a court deadline
within 45 days. Eggum fails to show any specific instance in which DOC library
policies actually denied him access to the courts.
III. Photocopying Policy
Finally, Eggum contends that DOC photocopying policies unreasonably
interfered with his access to the courts. DOC policy 590.500 section VIII.A
states:
Offenders will be given the opportunity to obtain photocopies of
their own legal pleadings being submitted to the court, opposing
party, and/or counsel in cases regarding current conviction,
conditions of confinement (i.e., including county jail confinement),
and/or challenges to the offender’s sentence. Offenders may incur
a debt for the photocopies if they do not have sufficient funds to pay
the required fee at the time of the request.
Eggum argues that this policy unreasonably interferes with his ability to
access the courts because it takes three to four days to receive a response to
photocopying requests; requests are denied “at least” 80 percent of the time;
DOC restricts photocopying to pleadings related to current convictions,
conditions of confinement, and challenges to sentences; DOC will not provide
free photocopies for pleadings in civil cases; and DOC refuses to allow inmates
to make photocopies of attorney correspondence and PRPs.
DOC records show that during his time in DOC custody, Eggum
photocopied more than 13,000 pages of documents. Eggum provides no
evidence that DOC denied 80 percent of his requests for photocopies; that DOC
did not provide photocopies for cases related to his conviction, a condition of
confinement, or a civil rights claim; or that DOC refused to allow him access to
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photocopy documents related to a PRP or attorney correspondence. Instead,
Eggum contends that he has been injured by DOC’s policy “[b]ecause he was
unable to get copies of pleadings to opposing counsel in his civil case against
Whatcom County,” which caused “the appellate court” to “refuse[ ] to act upon his
pleadings.” He provides no evidence in support of his contention.
Eggum fails to establish that DOC policies regarding telephone use, library
access, and photocopying interfered with his access to the courts. Accordingly,
we deny his petition.
WE CONCUR:
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