In re Personal Restraint Petition of Pino

• Court: Washington Court of Appeals
• Writing for the Court: MAXA, C.J.
• Citation: In re Personal Restraint Petition of Pino, 6 Wn.App.2d 1039, 50876-1-II (Wash. App. Dec 18, 2018)
• Decision Date: 18 December 2018
• Docket Number: 50876-1-II
• Parties: In the Matter of the Personal Restraint Petition of JOHN MILTON PINO, Petitioner.

6 Wn.App.2d 1039

In the Matter of the Personal Restraint Petition of JOHN MILTON PINO, Petitioner.

No. 50876-1-II

Court of Appeals of Washington, Division 2

December 18, 2018

UNPUBLISHED OPINION

MAXA C.J.

In this personal restraint petition (PRP), John Pino seeks relief from the Department of Corrections' (DOC) denial of his daughters' applications for in-person visitation with him while he is incarcerated.

Pino pleaded guilty in 2009 to three counts of first degree child molestation, and he currently is incarcerated at Stafford Creek Corrections Center (SCCC). His three daughters (then minors) were the victims of his crimes. Pino's judgment and sentence prohibited him for life from contacting his three daughters. Pino's daughters also were covered by three Sexual Assault Protection Orders (SAPOs) against Pino which originally prohibited all contact for life. However the superior court amended the SAPOs in 2016 to allow for in-person contact with Pino while he is incarcerated. Two of Pino's three daughters applied to DOC for visitation privileges after the amended SAPOs were entered, and DOC denied these applications.

We hold that DOC's denial of the applications for visitation (1) did not violate Pino's due process rights because he has no liberty interest in visitation while incarcerated, and (2) was not arbitrary and capricious because the denial was supported by DOC's visitation policies. Accordingly, we deny Pino's PRP.

FACTS

In 2009, Pino pleaded guilty to three counts of first degree child molestation and received an indeterminate sentence of 150 months to life in prison.

His three minor daughters were the victims of his crimes. Pino's judgment and sentence states, "Defendant shall have no contact with: victims." Resp., Ex. 1 Attach. B at 7. In addition, a community custody condition incorporated in the judgment and sentence states, "No contact with the victims ... for life, unless by future Court order." Resp., Ex. 1, Attach. B, App. H at 2. The superior court also entered a separate SAPO for each of the daughters that prohibited Pino from having any contact with them after his conviction.

In March 2016, the superior court amended the SAPOs with respect to two of Pino's daughters such that Pino was permitted "to have in person contact while he is incarcerated with DOC." Resp., Ex. 1, Attach. D at 3, 5. In November 2016 the court amended the SAPO relating to Pino's third daughter to include substantially the same exception.

On March 10, 2016, one of Pino's daughters, SP, submitted an application to DOC requesting permission to visit Pino in prison. SP was over the age of 18 at that time. DOC denied SP's application in a letter dated March 11 because she was "one of [Pino's] victims and there is an active no contact order." Resp., Ex. 2, Attach. E at 1. The denial letter also quoted former DOC Policy 450.300(VI)(A) (2015), which prohibited visitation by (1) minor-aged victims of the offender without written approval from certain people, (2) domestic violence victims of the offender, and (3) other adult victims of the offender to be determined on a case-by-case basis.

On July 15, another of Pino's daughters, AP, submitted an application to DOC requesting permission to visit Pino in prison. AP was over the age of 18 at that time. DOC denied AP's application in a letter dated July 20 for the following reason: "There is an active 'no contact' order. Victims of the offender are not allowed to visit." Resp., Ex. 2, Attach. E at 2. The letter then quoted former DOC Policy 450.050(I)(A)(3) (2015), which provided that an offender's contact with certain individuals can be restricted or disallowed when "[t]here is an active court order of 'no-contact' with [that] individual." Resp., Ex. 2, Attach. E at 2. AP did not appeal the denial.

SP filed a second application on December 28. DOC denied this application in a letter dated January 6, 2017. The only basis of the denial was that SP was Pino's minor aged victim and that minor aged victims could not visit offenders without certain written approval. As noted above, SP was not a minor at that time.

On January 10, SP emailed DOC to ask why her applications were both denied even though the SAPOs had been modified to allow visitation. DOC treated the email as an appeal of the denial of her visitation privileges. In an email response, DOC stated that the March 2016 denial letter outlined the reasons for the denial. The email also stated, "Court records indicate that there is still an active no contact order in place. Further, while the courts may modify no contact or restraining orders, individuals identified as victims do not meet policy requirements to be authorized visit privileges." Resp., Ex. 2, Attach. J at 1. DOC referenced former DOC Policy 450.300.

Pino also "appealed" the denial of his daughters' applications by writing to DOC. SCCC's Superintendent responded that under former DOC Policy 450.300, which allows adult victims of the offender to visit on a case-by-case basis, DOC was denying his request "due to the seriousness of your offense against your children." Resp., Ex. 2, Attach. G.

Pino wrote a second time to ask "what verbage [sic] needs to be on the [a]mended order for you to consider possibly allowing visitation with all three of my daughters[?]" Resp., Ex. 2, Attach. H. SCCC's Associate Superintendent replied that "[t]he court would need to instruct that you are allowed UNRESTRICTED contact with all of [your daughters] and that all previous court-ordered restrictions are removed." Resp., Ex. 2, Attach. I.

Pino seeks relief from DOC's denial of the applications for in-person visitation with his daughters while he is incarcerated.

ANALYSIS

A. PRP Principles

To prevail on a PRP, a petitioner must show that he or she is under restraint as defined by RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers Restraint of Dove, 196 Wn.App. 148, 153-54, 381 P.3d 1280 (2016), review denied, 188 Wn.2d 1008 (2017). A petitioner is under "restraint" when he or she is confined. RAP 16.4(b). One of the ways that a petitioner's restraint can be unlawful is if the "conditions or manner of the restraint" violate the United States Constitution, Washington Constitution, or Washington law. RAP 16.4(c)(6).

Pino is under restraint because he currently is incarcerated. Family visitation privileges during incarceration are a condition or manner of the restraint under RAP 16.4(c)(6). See In re Pers. Restraint of Dyer, 143 Wn.2d 384, 391, 20 P.3d 907 (2001). Therefore, to obtain relief Pino must show that DOC's denial of visitation with his daughters violated the United States Constitution, Washington Constitution, or Washington law. RAP 16.4(c)(6).

Generally, a petitioner seeking collateral review of a claimed constitutional error must establish that the error resulted in actual and substantial prejudice. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). However, where the petitioner has not had the opportunity to seek direct judicial review of a claimed error, we do not apply the heightened threshold requirements that ordinarily apply to a PRP. Id. at 299. Instead, the petitioner must show only that he or she is under unlawful restraint under RAP 16.4(b) and RAP 16.4(c). Id.

B. State's Motion to Dismiss Based on Adequate Remedy

As a threshold matter, the State moves to dismiss Pino's PRP under RAP 16.4(d), arguing that a civil rights action under 42 U.S.C. § 1983 is an adequate remedy for Pino's claimed unlawful restraint. We disagree.

RAP 16.4(d) provides that we "will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances." The question here is whether a 42 U.S.C. § 1983 claim is an adequate remedy for DOC's refusal to allow Pino's daughters to visit him.

42 U.S.C. § 1983 provides a cause of action to citizens who have been deprived of their rights under the constitution and laws by a person acting under the color of state law. But a plaintiff may not file a § 1983 action against the state or against a state official acting in an official capacity 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. Hontz v. State, 105 Wn.2d 302, 309, 714 P.2d 1176 (1986). A plaintiff may assert § 1983 claims only against government officials in their individual capacities for actions taken under color of state law. Republican Party, 141 Wn.2d at 286.

We hold that a § 1983 claim is not an adequate remedy for DOC's refusal to allow Pino to visit his daughters. First, any § 1983 action Pino filed against DOC would be dismissed because DOC is not subject to § 1983 liability. Second, although Pino could file suit against individual DOC officials, government officials are entitled to qualified immunity against § 1983 claims unless the official's action violated a clearly established right. See, e.g., Robinson v. City of Seattle, 119 Wn.2d 34, 64-65, 830 P.2d 318 (1992). As discussed below, prison visitation is not a "clearly established right." See Dyer, 143 Wn.2d at 392. Third, a § 1983 action would not address any violation of Pino's rights under the Washington Constitution.

In In re Personal Restraint of Arseneau, Division One of this court held that the availability of a § 1983 claim did not preclude a PRP relating to DOC's restriction on an inmate's contact with his niece. 98 Wn.App. 368, 371-74, 989 P.2d 1197 (1999). We agree.

We hold that a civil action under 42 U.S.C. § 1983 is not an adequate remedy for Pino's claimed unlawful restraint.

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