In re Personal Restraint of Smith

• Citation: 10 Wn.App.2d 1048
• Decision Date: 21 October 2019
• Docket Number: 78038-7-I
• Court: Washington Court of Appeals
• Parties: In the Matter of the Personal Restraint of JESS R. SMITH, Petitioner.

10 Wn.App.2d 1048

In the Matter of the Personal Restraint of JESS R. SMITH, Petitioner.

No. 78038-7-I

Court of Appeals of Washington

October 21, 2019

UNPUBLISHED OPINION

CHUN, J.

Jess Smith sent a kite^[1] to a prison staff member offering to settle his pending federal lawsuit. For this, the Department of Corrections (DOC) found him guilty of the serious violation of "extorting or blackmailing."^[2] Smith filed this personal restraint petition (PRP), seeking review of the decision.

Smith contends (1) the DOC lacked evidence to support the infraction of extortion and (2) it charged him in retaliation for exercising his constitutional right to petition the court. We conclude that res judicata and collateral estoppel bar Smith's retaliation claim but not his procedural due process evidentiary challenge. We further conclude that the evidence does not support a finding that Smith's actions amounted to extortion. We grant Smith's petition and remand to DOC for a rehearing.

I. BACKGROUND

Petitioner Jess Smith currently serves time at Coyote Ridge Correctional Center for convictions of first degree murder and first degree manslaughter. On March 17, 2017, after Smith allegedly made an offensive and derogatory statement about another offender, DOC mental health provider Keith Goodenough filed an infraction report against him for violating WAC 137-25-030(1) (Category C - Level 1:896 - harassing, using abusive language, or engaging in other offensive behavior directed to or in the presence of another person(s) or group(s) based upon race, creed, color, age, sex, national origin, religion, sexual orientation, marital status, or status as a state registered partnership) (896 Harassment Infraction). On March 27, 2017, a disciplinary hearing officer found Smith not guilty of the 896 Harassment Infraction.^[3]

On April 28, 2017, Smith filed a pro se civil rights lawsuit (the First Lawsuit) against Goodenough and two other DOC staff members, asserting that the 896 Harassment Infraction report violated his First and Fourteenth Amendment rights.^[4] On May 23, 2017, the federal district court clerk notified Smith that his case was "currently before the Court for review."^[5]

On July 17, 2017, before the district court reviewed the complaint, Smith sent a kite to Goodenough stating:

As you are aware a suit that is TRIABLE has been started in Smith v. Goodenough, No. 4:17-CV-05060-MKD (U.S.D.C IN SPOKANE). We can resolve this matter for a $750.00 store credit and $250.00 JPay CREDIT. Please contact me if you want to solve matter out of court. Thank you

In response, Goodenough charged Smith with violations of WAC 137-25-030(1) (Category B - Level 3:503 - extorting or blackmailing, or demanding or receiving anything of value in return for protection against others or under threat of informing) (503 Extortion Infraction) and WAC 137-25-030(1) (Category B -Level 3:558 - interfering with staff members, medical personnel, firefighters, or law enforcement personnel in the performance of their duties) (558 Interference Infraction). Both are "serious violations." WAC 137-25-030. On July 24, 2017, disciplinary hearing officer M. Knighton dismissed the 558 Interference Infraction but found Smith guilty of the 503 Extortion Infraction. In so ruling, Knighton reasoned:

After contacting WSP Legal Liaison Shari Hall, I was informed that a suit has been filed in Federal Court, but has not been served to the defendants as of today. The steps the offender has taken are premature and improper. I find that the offender is attempting to extort money from the defendants as the offender is attempting to have the defendants pay him to drop the suit. Even if the suit was at the point of offering a settlement, the process the offender took is not appropriate.

Knighton imposed a sanction of 20 days lost recreation time and 15 days of confinement to quarters. On July 27, 2017, DOC denied Smith's appeal of the 503 Extortion Infraction, explaining as follows:

The steps you took to try and "remedy" this were premature and inappropriate. As there was no suit filed at the time, you were trying to extort money from the defendants to drop the legal action you are seeking.

On July 25, 2017, after screening the First Lawsuit, the federal district court determined Smith's claim that Goodenough issued a retaliatory infraction sufficed to require a response but that his remaining constitutional claims did not. The court granted Smith the opportunity to amend or dismiss his claim within 60 days. Smith did not do either. On January 12, 2018, the court dismissed the First Lawsuit without prejudice as to Goodenough and with prejudice as to the remaining defendants. On April 25, 2018, Smith refiled the claim against Goodenough. DOC's response brief in this matter indicated that the First Lawsuit remained pending and that Goodenough was represented by the Attorney General's Office.

On February 12, 2018, Smith, representing himself, filed this PRP challenging the 503 Extortion Infraction. Smith's PRP asserts two distinct grounds for relief. First, he asserts the infraction violated his state and federal due process rights because the evidence does not support an infraction for extortion. Second, he contends DOC charged him for exercising his constitutional right to access the court. This court appointed counsel for Smith and referred his PRP to a panel for determination on the merits.

On August 29, 2018, while his PRP in this court was pending, Smith filed a federal complaint against Goodenough and Knighton regarding the 503 Extortion Infraction (the Second Lawsuit).^[6] Smith's complaint asserted two grounds for relief: (1) Goodenough issued the infractions in retaliation for Smith exercising his First Amendment right to access the court and (2) Knighton violated his First Amendment right by finding him guilty of the extortion infraction. On November 1, 2018, the federal district court dismissed the Second Lawsuit with prejudice.^[7] The court ruled that Smith failed to state a plausible First Amendment retaliation claim against Goodenough, because there is no constitutional right for prisoners to directly engage in settlement negotiations with prison staff, and preventing such conduct serves a legitimate correctional goal. The court further ruled that Smith failed to state a First Amendment due process claim against Knighton.

DOC and Smith's appointed counsel subsequently filed briefing in this court for Smith's PRP. Both parties' arguments focused solely on Smith's First Amendment retaliation claim and did not address his claim that the evidence does not support an infraction for extortion. Following oral argument, we requested supplemental briefing regarding the latter issue, which both parties provided.

II. ANALYSIS

"[P]risoners challenging prison discipline need not make a prima facie case of constitutional error and actual and substantial prejudice or nonconstitutional error and total miscarriage of justice." In re Pers. Restraint of Grantham, 168 Wn.2d 204, 218, 227 P.3d 285 (2010). Smith must show only that he is under unlawful restraint as defined by RAP 16.4. In re Pers. Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016). As an inmate confined in a state correctional facility, Smith is under "restraint." Kozol v. Dep't of Corr., 185 Wn.2d 405, 409, 379 P.3d 72 (2016). The question is whether his restraint is "unlawful" and thus redressable by a personal restraint petition.

A. Res Judicata and Collateral Estoppel

DOC contends that the doctrines of res judicata and collateral estoppel operate as a bar to Smith's PRP based on the federal district court's November 1, 2018 order dismissing with prejudice Smith's federal complaint regarding the extortion infraction.

"Res judicata and collateral estoppel are kindred doctrines designed to prevent repetitive litigation." Eckstrom v. Hansen, 4 Wn.App. 2d 580, 584, 422 P.3d 926 (2018). The party asserting these defenses bears the burden of proof. In re Pers. Restraint of Metcalf, 92 Wn.App. 165, 174, 963 P.2d 911 (1998).

Res judicata, or claim preclusion, bars the relitigation of claims that were, might, or should have been litigated in a prior action. Weaver v. City of Everett, 4 Wn.App. 2d 303, 320, 421 P.3d 1013 (2018). "Res judicata . .. applies where a prior final judgment is identical to the challenged action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made." Lynn v. Dep't of Labor & Indus., 130 Wn.App. 829, 836, 125 P.3d 202 (2005) (internal quotation marks omitted). A court should not apply the doctrine when it would work an injustice. Metcalf, 92 Wn.App. at 174.

We agree with DOC that res judicata operates to bar Smith's First Amendment retaliation claim against DOC. First, the Second Lawsuit and the PRP addressed the same subject matter: Smith's extortion infraction. Second, both involved the same cause of action: whether the infraction violated Smith's First Amendment right to access the courts. Both involved the same set of facts supported by the same evidence and the same legal theories. See Emeson v. Dep't of Corr., 194 Wn.App. 617, 628, 376 P.3d 430 (2016). Third and fourth, there exists identity in (a) persons and parties and (b) the quality of persons against whom the constitutional claim is made. Although Smith directs the...