Hurn v. Wash. State Dep't of Corr.

CHAD WAYNE HURN, Appellant, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS; KERRI MCTARSNEY; MARGARET GILBERT; TAMMY NIKULA; DANIEL DAVIS; ISRAEL "ROY" GONZALES; all in their individual and official capacities Respondent.

No. 56043-7-II

Court of Appeals of Washington, Division 2

May 10, 2022

UNPUBLISHED OPINION

Veljacic, J.

Chad Hurn appeals the trial court's order dismissing his complaint for negligence, trespass to chattels, and violation of his civil rights under 42 U.S.C. § 1983 against the Department of Corrections (DOC) and five DOC employees. He argues that the court erred in dismissing his § 1983 claim because genuine issues of material fact exist regrading whether he was denied his federal constitutional rights to communication with his attorney, access to the courts, and due process.

We hold that Hurn fails to establish a violation of his federal constitutional rights. Accordingly, we affirm the trial court's order granting summary judgment dismissal of Hurn's § 1983 claim.

FACTS

I. Factual Background

Hurn is an inmate in DOC custody after a jury found him guilty of 13 offenses, including assault in the second degree, unlawful possession of a firearm, possession of a stolen firearm possession of a stolen vehicle, making or having vehicle theft tools, identity theft, tampering with a witness, communication with a minor for immoral purposes, and intimidating a witness. State v. Hurn, No. 71813-4-I, slip op. at 3-4 (Wash.Ct.App. Dec. 7, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/718134.pdf, review denied, 185 Wn.2d 1036 (2016). Division One of this court affirmed. Id. at 1.

Hurn is serving his sentence at Stafford Creek Corrections Center. During the events relevant to this appeal, the superintendent of the corrections center was Margaret Gilbert and the grievance coordinator was Kerri McTarsney.

II. DOC Mail Policy

DOC Policy 450.100 sets forth DOC's policy regarding mail services for offenders and defines staff responsibility for maintaining safety and security. Mail between an inmate and counsel is considered legal mail. See Clerk's Papers (CP) at 48-49 (DOC Policy 450.100(VII)(A)(1)(a), (c), & (d)). Incoming legal mail is opened by a designated employee, who "inspect[s] the contents to ensure they meet the policy requirements for legal mail and do not contain contraband or any other material that would threaten facility order or security." CP at 49 (DOC Policy 450.100(VII)(D)(1)). One policy requirement is that incoming mail may not contain information about another inmate without specific approval from the facility superintendent. See CP at 59 (DOC Policy 450.100 26). This prohibition is to minimize the threat posed by an inmate who uses printed documents about another inmate to "coerce, intimidate, manipulate, or retaliate against that offender, threatening the safety, security, and order of the facility. CP at 95.

III. Mail Rejections

A. First Rejection-No. 52954

On October 7, 2015, DOC legal mail officer Tammy Nikula opened legal mail in Hurn's presence. The mail was from the King County Department of Public Defense Defender's Association Division. After inspecting the documents, Nikula determined that the mail contained documents with unapproved information about another inmate in violation of DOC policy. Nikula confirmed that the listed individual was an inmate through the Offender Management Network Information (OMNI) database. Based on this, Nikula rejected the mail and issued rejection notice 52954. Hurn appealed. He also complained to Gilbert about the time his appeal was taking. The rejection was ultimately upheld on appeal by the superintendent's designee, Daniel Davis, and by DOC's correctional program manager, Israel "Roy" Gonzalez.

B. Second Rejection-No. 52972

On October 8, 2015, Nikula again opened legal mail from the defender's association in Hurn's presence. She determined the mail contained documents with unapproved information about another inmate in violation of DOC policy. She confirmed that the listed individual was an inmate through OMNI. Nikula rejected the mail and issued rejection notice 52972. Davis and Gonzalez upheld the rejection.

C. Third Rejection-No. 10217

On October 14, 2015, Nikula opened legal mail addressed to Hurn from attorney Peter Connick in Hurn's presence. After inspecting the documents, she determined that the mail contained documents with unapproved information about another inmate in violation of DOC policy. She confirmed that the listed individual was an inmate through OMNI. Nikula rejected the mail and issued rejection notice 10217. Hurn appealed. He also filed a grievance with McTarsney. Davis and Gonzalez upheld the rejection.

D. Fourth Rejection-No.13203

On July 1, 2016, Nikula opened legal mail addressed to Hurn from the defender's association in Hurn's presence. After inspecting the documents, she determined that the mail contained documents with unapproved information about another inmate in violation of DOC policy. She confirmed that the listed individual was an inmate through OMNI. Based on this, she issued mail rejection 13203. Hurn appealed the mail rejection, and both a superintendent's designee and Gonzalez upheld the rejection.

III. DOC Staff Changes

Since the mail incidents in 2015 and 2016, Nikula transferred out of DOC's legal mail department. And Gilbert, McTarsney, Davis, and Gonzalez are no longer DOC employees.

IV. Procedural History

Hurn filed a complaint against DOC, Gilbert, McTarsney, Nikula, Davis, and Gonzalez. He alleged negligence, trespass to chattels, and civil rights violations under § 1983. The defendants filed a motion for summary judgment, which the trial court granted, dismissing all Hurn's claims. Hurn appeals the summary judgment order.^[1]

ANALYSIS

Hurn contends the trial court erred in dismissing his § 1983 claim in summary judgment. He argues that DOC and the DOC employees violated several of his constitutional rights. We disagree.

I. Standard of Review

We review a trial court's order on summary judgment de novo. Weaver v. City of Everett, 194 Wn.2d 464, 472, 450 P.3d 177 (2019). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Weaver, 194 Wn.2d at 472.

II. 42 U.S.C. § 1983

42 U.S.C. § 1983 seeks to protect citizens who have been deprived of their constitutional rights by someone acting under the color of state law. That statute states,

Every person who, under color of any statute, ordinance regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To prevail on a § 1983 claim, a party "'must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.'" Freedom Found. v. Teamsters Local 117 Segregated Fund, 197 Wn.2d 116, 145, 480 P.3d 1119 (2021) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)).

A plaintiff may not bring suit under § 1983 in state court against the State because a state is not a person subject to suit within the meaning of § 1983. Wash. State Republican Party v. Pub. Disclosure Comm'n, 141 Wn.2d 245, 285-86, 4 P.3d 808 (2000). Similarly, state agencies are not subject to § 1983 actions. ARUP Labs., Inc. v. State, 12 Wn.App. 2d 269, 276, 457 P.3d 492, review denied, 196 Wn.2d 1006 (2020). But a plaintiff may assert § 1983 claims against government officials in their individual capacities for actions taken under color of state law. Republican Party, 141 Wn.2d at 286.

When a defendant moves for summary judgment on a § 1983 claim, the trial court has two questions before it. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The first question is whether the facts asserted by the plaintiff make out a violation of a constitutional right. Id. The second question is whether the right was clearly established at the time of the violation. Id

If a government official has deprived a prisoner of his or her constitutional rights, the prisoner may seek damages from the individual government official and/or injunctive relief. See 42 USC § 1983; Parmelee v. O'Neel, 168 Wn.2d 515, 525, 229 P.3d 723 (2010)

A. DOC not Subject to § 1983 Action and Injunctive Relief not Available Against Former DOC employees

As an initial matter, we hold that because DOC is a state agency it is not subject to a § 1983 action. ARUP Labs., 12 Wn.App. 2d at 276. The trial court properly granted summary judgment dismissal in DOC's favor. Additionally, because Nikula no longer works in DOC's legal mail department and Gilbert, McTarsney, Davis, and Gonzalez are no longer DOC employees, there is no on-going action by these individuals that needs to be enjoined. Thus, there is no injunctive relief available to Hurn and claims for injunctive relief against these individual defendants are moot. See Client A v. Yoshinaka, 128 Wn.App. 833, 841, 116 P.3d 1081 (2005) (matter is moot when count cannot provide effective injunctive relief).

While claims for injunctive relief against the individuals listed above are moot, we still address whether genuine issues of material fact exist regarding Hurn's § 1983 action against the DOC staff^[2] based on constitutional violations and if so,...