Cutler-Flinn v. Wash. State Dep't of Corr.

• Court: Washington Court of Appeals
• Writing for the Court: Che, J.
• Docket Number: 57159-5-II
• Decision Date: 19 March 2024
• Parties: TALON CUTLER-FLINN, Appellant, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent.

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TALON CUTLER-FLINN, Appellant, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Respondent.

No. 57159-5-II

Court of Appeals of Washington, Division 2

March 19, 2024

UNPUBLISHED OPINION

Che J.

Talon Cutler-Flinn appeals the trial court's determination that the Department of Corrections (DOC) did not violate the Public Records Act (PRA), ch. 42.56 RCW, and the dismissal of his claims. Flinn filed three PRA requests with DOC. The trial court granted partial judgment as to request P-24146 rejecting Flinn's argument that, under RCW 42.56.120 when DOC provides responsive records with copies-rather than through an agency computer-DOC cannot withhold records it routinely maintains on its website until the requestor pays the copy fees.

DOC moved for a show cause hearing regarding requests P-19154 and P-19587, which Flinn did not respond to. The trial court dismissed those claims. Throughout this proceeding, an attorney, Robert Thompson, assisted Flinn including by filing certain documents, some of which referenced himself as Flinn's attorney. Thompson and Flinn later denied an attorney-client relationship. The trial court declined to set aside the judgment relating to P-19154 and P-19587 on that basis.

We hold (1) there was nothing improper about DOC assessing copying charges as a prerequisite to Flinn receiving copies of the P-24146 records, (2) Flinn abandoned his arguments as to P-19154 and P-19587 by failing to respond to the show cause hearing, (3) there was no prejudice stemming from the trial court's deposition order, and (4) the trial court did not abuse its discretion by declining to recuse itself. We decline to review (1) the motion to order Thompson's appearance and related matters as those matters were insufficiently briefed, (2) Flinn's motion for relief from judgment under CR 59 and 60 on the same basis, and (3) the protective order because Flinn failed to show that he preserved his arguments on appeal and relatedly did not designate the relevant hearing for our record. We decline Flinn's request for costs and affirm.

FACTS

Flinn filed three PRA requests. In 2022, Flinn filed a complaint alleging that DOC violated the PRA in regard to those requests. As to P-24146, Flinn alleged DOC violated the PRA by withholding the requested records until Flinn paid for copying costs. During the relevant time frame, Flinn has been incarcerated in a DOC facility and did not appear to have access to the internet.

I. PRA Requests

A P-24146

Flinn requested two DOC policies, which DOC assigned P-24146 as the tracking number. The two DOC policies requested were available on DOC's website. DOC identified seven responsive documents and assessed Flinn $1.75 in copying costs for the records. Flinn maintained that the PRA did not authorize DOC to charge him for access to those records, citing RCW 42.56.120(2)(e).

DOC moved for partial judgment on the pleadings under CR 12(c) regarding this request, which the trial court granted as "[DOC] complied with the PRA by offering [Flinn] copies of the documents, upon payment of a copying charge, that he requested." Clerk's Papers (CP) at 26.

B. P-19154 & P-19587

DOC assigns individuals a certain custody level based on safety and programming considerations. DOC regularly reviews custody level designations. Flinn went through this process and made a PRA request for all records used in his 2021 custody classification review. DOC assigned P-19154 as the relevant tracking number.

Flinn requested to mail items as art curio items, but DOC rejected the request. Flinn filed a PRA request for a copy of the final rejection decision, photos of the items in question, other documents relating to the matter, and for the names of people involved in the process. DOC assigned P-19587 as the tracking number for this request.

At the May 27, 2022 hearing in this matter, it appears that the trial court discussed with Flinn and DOC the scheduling of the merits hearing and determined that the merits hearing would be set for September 23, 2022. In early August 2022, DOC moved for a show cause hearing regarding P-19154 and P-19587. This motion was served only on attorney Robert Thompson, whose involvement will be examined below.

On September 14, 2022, the trial court ordered the hearing to be held without oral argument on September 23 and stated, "The parties should file and serve all pleadings timely and submit proposed orders by the hearing date." CP at 532. The certificate of service reflects that the scheduling order was sent to Robert Thompson at his office and Flinn at the Washington State Penitentiary. But as addressed in greater detail below, Flinn contests that he received the scheduling order.

Neither Flinn nor Thompson responded to the show cause motion. And the trial court made the unchallenged finding that Flinn "had ample ability to litigate this case and file a response to the [DOC's] motion." CP at 535. On September 29, the trial court determined that DOC did not violate the PRA and dismissed Flinn's remaining PRA claims. Flinn moved the trial court to reconsider the aforementioned PRA order under CR 59 and 60.

C. Attorney Thompson

Before DOC moved for a show cause hearing regarding P-19154 and 19587, DOC had received the following information. DOC counsel received an email from rjt@robertjthompsonlawoffice.com, without a signature, that stated that "Bob is working with Mr. Cutler-Flinn." CP at 697. The subject of the email read, "Cutler-Flinn v. WSDOC -Thurston County Superior Court cause #21-2-02090-34." CP at 697. That is the same cause number as the present action. DOC counsel had previously received emails from the rjt@robertjthompsonlawoffice.com email address from the attorney Robert Thompson.

DOC responded, "I assume then that you will be filing a notice of appearance in the coming days in this case? Please let me know. Until then, [DOC] will cease communicating with [Flinn] based on the understanding that [Thompson] intend[s] to represent [Flinn] in this case." CP at 696. After not receiving a response for several days, DOC sought clarification whether Thompson was representing Flinn in this matter. DOC counsel also reached out to Flinn to clarify whether he was represented by Thompson.^[1]

Thompson's office sent DOC counsel an email with a notice of appeal and a designation of clerk's papers, citing the present superior court cause number. The attached notice of appeal referenced an appeal of a partial judgment, cited the present superior court cause number, and began, "Plaintiff . . . Flinn, through his attorney of record . . . Thompson" and was signed by "Robert J. Thompson . . . Attorney for the Plaintiff." CP at 703. But the attached order is from an unrelated matter and is not a partial judgment order. The attached designation of clerk's papers also cites the present cause number and was signed in two places by "Thompson . . . Attorney for the Plaintiff." CP at 711, 713. DOC counsel believed Thompson was representing Flinn, and so, DOC stopped communicating directly with Flinn.

Later, the Thurston County Clerk's Office sent DOC counsel and Thompson, referencing him as counsel for Flinn, a letter about a case index in this matter. Thompson's office sent an email to DOC counsel with another designation of clerk's papers for appeal in this matter; that designation was signed by "Robert J. Thompson . . . Attorney for the Plaintiff." CP at 720. That same day, this court let Thompson's office know that the filing fee had not been paid for Flinn's appeal in this matter. Thompson's office immediately responded by emailing a receipt of a filing fee for the partial judgment appeal in this matter and copied DOC counsel.

After the show cause motion was filed but before the PRA order was entered on September 29, the following occurred. DOC received two affidavits of counsel from Thompson requesting continuances to file Flinn's motion for discretionary review that both stated, "I am the attorney for . . . Flinn"^[2] and both were signed by Thompson as "Counsel for Petitioner." CP at 738-39, 748-749. Flinn, pro se, moved for different briefing timelines regarding the appeal of the partial judgment citing concerns about communicating with Thompson.^[3] As stated above, the trial court entered the PRA order on September 29.

On October 17, in the same motion as Flinn's request for reconsideration under CR 59 and 60, Flinn moved for the trial court to "order unidentified attorney to appear and provide authority to act in this matter and relieve Mr. Flinn from the [September 29] PRA order." (most capitalization omitted) CP at 549. Flinn attached a declaration stating that "I am not, nor have I ever been represented by council in this matter." CP at 552. And Flinn asserted that he did not receive notice of the motion to show cause or the related scheduling order.

Thompson moved to withdraw and submitted an affidavit explaining his limited involvement with Flinn. Thompson "assisted" Flinn "but ha[s] not acted as his attorney." CP at 839.

Thompson attached proposed filings prepared by Flinn in four docket numbers-only two proposed filings involved this matter. Essentially, the proposed filings prepared by Flinn would both (1) withdraw Thompson as appellate counsel and enter Thompson, in both the superior court case and appellate court case, with a limited notice of appearance under CR 70.1(b) and (2) have Thompson accept judgment and costs on behalf of Flinn under RCW 2.44.010(2) at Thompson's address. Subsequently, the trial court denied Flinn's request for reconsideration and his request for relief based on his relationship to Thompson.

II. Other Challenged Rulings

In March 2022, DOC moved for leave to depose Flinn and Jeffrey McKee, who was also incarcerated....