In re Personal Restraint of Pedersen

1 Wn.App.2d 1031

In the Matter of the Personal Restraint of: DAVID JOSEPH PEDERSEN, Petitioner.

No. 74711-8-I

Court of Appeals of Washington, Division 1

November 27, 2017

UNPUBLISHED OPINION

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.

I

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.

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 DOC in the form of a civil rights action pursuant to 42 U.S.C. § 1983. DOC 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 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 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).

Radvansky 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 DOC is not an adequate alternative remedy available to Pedersen. DOC's claim fails.

III

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, DOC 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 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)).

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 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] Pedersen next contends that he was subjected to unconstitutional conditions of confinement because, while incarcerated in the intensive management unit, DOC 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 DOC policies regarding incoming mail and personal property for inmates housed in intensive management units. In addition, Pedersen does not 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...