Hill v. Washington State Dept. of Corrections
| Decision Date | 31 March 2009 |
| Docket Number | Case No. C08-5202BHS. |
| Citation | 628 F.Supp.2d 1250 |
| Parties | Karen HILL and David Hill, Plaintiffs, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS; et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
David Hill, Aberdeen, WA, pro se.
Karen Hill, Eatonville, WA, pro se.
Jason M. Howell, Attorney General's Office, Olympia, WA, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND RESERVING RULING ON PLAINTIFFS' CLAIM FOR INJUNCTIVE RELIEF
This matter comes before the Court on the Report and Recommendation of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 43), Plaintiffs' Objections to the Report and Recommendation (Dkt. 44) and the remainder of the record. The Court hereby adopts the Report and Recommendation in part as stated herein, and requests additional briefing.
Plaintiffs challenge the Washington State Department of Corrections ("DOC") policy which permits eligible inmates extended family visitation. The governing policy in place at the time of Plaintiffs' complaint was DOC Policy 590.100, Revision Date July 11, 2007. Dkt. 1-2, 41-55 (DOC Policy 590.100, Revision Date 7/11/07) (hereafter "pre-revision DOC Policy"). This policy was revised after Judge Strombom filed a Report and Recommendation. See DOC Policy Number 590.100, Revision Date 2/27/09, available at http:// www.doc.wa.gov/Policies/showFile.aspx? name=590100 (hereafter "current DOC Policy").
Under the pre-revision DOC Policy, a prisoner could qualify for an Extended Family Visit ("EFV") under certain conditions. The history of DOC 590.100 is explained as follows:
In February 13, 1995, [DOC] 590.100 was revised. The impetus for the new and more stringent revised directive was a serious incident at another correctional facility during an extended family visit. The incident occurred at the Clallam Bay Corrections Center during a family visit on January 7, 1995. The inmate involved held his spouse at knife point during an extended family visit, attacked and stabbed her, and held her hostage. The inmate was shot during the incident.
As a result of the Clallam Bay incident, members of the Washington Legislature during the 1995 session introduced a measure that would have completely precluded extended family visitation in Washington prisons. However, instead of passing such a law, the Washington Legislature passed, and the Governor signed, House Bill 2010, containing a provision that required the Department of Corrections to develop a uniform policy governing "the privilege of extended family visitation." See RCW 72.09.490.
As a result of House Bill 2010, the Division of Prisons revised the directive governing extended family visits, [DOC] 590.100. The revised directive became effective February 13, 1995. As revised, [DOC] Directive 590.100 provides that extended family visits for eligible offenders and their immediate families must be approved by the Superintendent, who has the authority to approve, deny, suspend, or terminate visits. [DOC] 590.100 ("If it is determined there is a reason to believe that an offender, although he/she meets all other eligibility requirements, is a danger to him/herself, the visitor(s), or to the orderly operation of the program, the Superintendent may exclude the offender from the program.").
The directive further eliminates "maximum, close custody, and death row offenders" from participating in the program, and restricts extended family visits in a number of other categories. The directive includes a restriction that "[o]ffenders may be excluded from participation if they have a documented history of domestic violence against any person." Additionally, the directive provides that only those spouses who were legally married to the offenders prior to incarceration for the current crime of conviction are eligible for extended family visitation. Id.
On February 24, 1995, Tom Rolfs, Director of the Division of Prisons, issued and circulated the new EFV directive as well as a policy statement governing the implementation of the new EFV directive. In the policy statement, Rolfs expressly recognized the extensiveness of the directive's significant revisions and encouraged the superintendents to take the necessary steps to ensure that the revised directive be implemented "with the sensitivity and necessity of its contents in mind." The policy statement provided two guidelines for implementing the newly revised directive.
The first guideline requires the Prison Superintendents to review each inmate currently approved for participation in the EFV program pursuant to the pre-revision directive to determine if he/she meets the new criteria. It also allows the Superintendent to disapprove any inmate currently participating who failed to meet the revised directive's provisions.
The second guideline allows the Superintendents to make one-time exceptions for inmates who do not meet the revised directive's requirements. Specifically, this "grandfathering" provision provides the Superintendents with the discretion to approve inmates who had (1) either already been participating in the program, or had made application to the program prior to January 10, 1995, and (2) were determined not to present safety or security concerns for the program or participants. The "grandfathering" clause does not grant the superintendents discretion to consider any other inmate for participation in the program.
Daniel v. Rolfs, 29 F.Supp.2d 1184, 1185-86 (E.D.Wash.1998). When the Daniel court addressed the constitutionality of this policy, the criteria of the grandfathering provision were that the inmate either had made application to the program or had already been participating in the program before January 10, 1995.
The pre-revision DOC Policy, which was in effect at the time of Plaintiff's complaint, contained the following "grandfathering provision":
Offenders who made application and were participating in the EFV Program prior to January 10, 1995, may be allowed to continue participation based on the Superintendent's review. Offenders who were grandfathered into the program and lose custody, must reapply and meet current application criteria. This also applies to parole revocations, CCI violators and re-incarcerated offenders. Grandfathering is not allowed for remarriages following a divorce unless authorized by the Prisons Deputy Secretary.
Pre-revision DOC Policy 590.100, Directive § V(E)(1) (emphasis added). The pre-revision provision specifically precluded extended visitation privileges to spouses who married inmates post-conviction. Id., § V(C)(1).
On February 27, 2009, DOC issued the current DOC Policy. The current DOC Policy made several changes to the pre-revision DOC Policy. In particular, the current DOC policy permits an eligible inmate, see DOC Policy 590.100 § (V)(A), extended family visitation with a spouse whom the inmate married after formal judgment and sentence if certain conditions are met, see id. § (V)(C)(2) and (3).
In addition, the current DOC Policy grandfathering provision provides:
Offenders who made application or were participating in the EFV Program prior to January 10, 1995, may be allowed to continue participation based on Superintendent review. Offenders who were grandfathered into the program and demoted in custody must reapply and meet current application criteria.
Plaintiffs are a married couple, Karen Hill a free person, and David Hill an inmate incarcerated in the Washington Department of Corrections ("DOC"). Plaintiffs were married on June 20, 2005, which was 40 days after Mr. Hill's conviction. Dkt. 1-2 at 29 (Plaintiffs' complaint). Plaintiffs were denied participation in the EFV program because they were married after Mr. Hill was convicted.
On February 22, 2008, Plaintiffs filed a civil rights complaint in the Superior Court of the State of Washington in and for the County of Thurston. Dkt. 1-2, 28-35. Plaintiffs claim that Defendants' denial of their EFV application is a violation of their right to equal protection of the law under the Fourteenth Amendment. Id. at 12-13. On April 2, 2008, Defendants removed the action to this Court. Dkt. 1. Plaintiffs seek damages as well as injunctive relief.
On April 9, 2008, Defendants filed a Motion to Dismiss, arguing that Plaintiffs have no constitutional right to participate in the EFV program under DOC Policy 590.100. Dkt. 5. This motion was later renoted as a motion for summary judgment. Defendants maintain that Plaintiffs fail to state an equal protection violation. Id. Defendants further maintain that (1) Plaintiffs fail to allege personal participation on the part of Defendants, (2) Plaintiffs' claims against the DOC are barred by the Eleventh Amendment, and (3) even if a constitutional violation occurred, the individual Defendants are entitled to qualified immunity.
On January 30, 2009, Judge Strombom issued a Report and Recommendation. Dkt. 43. Judge Strombom recommended that the Court grant Defendants' motion because (1) the "grandfathering provision" did not violate Plaintiffs' right to equal protection, (2) Plaintiffs were not eligible for the "grandfathering provision," and (3) Defendants Vail and Pacholke were entitled to summary judgment for lack of personal participation. Judge Strombom did not reach the issue of qualified immunity with regard to Defendant Roberts, who was involved in the denial of Mr. Hill's application, because she concluded that Plaintiffs failed to allege a constitutional violation. Judge Strombom did conclude that Plaintiffs' suit against DOC was barred under the Eleventh Amendment.
On February 13, 2009, Plaintiffs filed objections to the...
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