THOMAS v. LEHMAN, 34409-2-II (Wash.App. 3-4-2008)

No. 34409-2-IIThe Court of Appeals of Washington, Division Two.
Filed: March 4, 2008

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Order Recalling Mandate and Correcting Part Published Opinion, (Thurston County Cause No. 04-2-01882-7).

HUNT, J.

The court on its own initiative recalls the mandate issued in the above entitled matter for the sole purpose of filing this order. The Thurston County Clerk is directed to return said mandate to the clerk of this court.

The part published opinion filed on May 15, 2007, is hereby amended as follows:

(1) On p. 625, ¶ 15, line 7, we delete the text of footnote 6, and replace it with the following new text for footnote 6:

Title 137 of the Washington Administrative Code details the DOC’s adopted regulations, but none address what constitutes an “emergency” for these purposes. See Title 137 WAC. In order for offenders to access their mandatory savings account funds, the relevant DOC policy directive, DOC 200.000, requires an offender to “initiate DOC 19-057 Mandatory Savings Account Access and submit it to his/her Counselor/CCO.” The directive does not set the parameters for the exercise of discretion in determining whether or not the inmate has an “emergency.”

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(2) On p. 626, ¶ 18, line 5-8, we delete:
We first note that Thomas’s request to withdraw $2,000.00 of the $7,935.78 in his PISA complied with the procedure in DOC policy directive 200.710. (3) On p. 626, ¶ 18, line 8, we delete:
Footnote 7 (“See note 6.”).
(4) On p. 627, ¶ 20, line 6, we delete:
Footnote 10 (“See DOC directive 200.710; text in note 6.”).
IT IS SO ORDERED.

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Glen E. Thomas appeals the trial court’s summary judgment dismissal of his 42 U.S.C. § 1983 civil rights action against the Washington Department of Corrections (DOC). He argues that the trial court erred in granting summary judgment to the State because the DOC violated his constitutional rights when it (1) denied his request to withdraw funds from his inmate savings account, (2) failed to credit his inmate savings account with interest, (3) refused to grant his motion for assistance of counsel from a fellow inmate, and (4) failed to make sure that he could clearly hear the summary judgment arguments via his telephone connection. We affirm.

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FACTS
Glen E. Thomas is an inmate at the Monroe Corrections Complex, Twin Rivers Unit. On June 18, 2004, he requested permission to withdraw $2,000 from his personal inmate savings account (PISA) to pay his attorneys fees for an upcoming “.100 parole hearing.”[1] RCW 72.09.111
directs the DOC to maintain PISAs and to distribute funds to inmates upon their release or for “emergencies,” as determined by the DOC secretary. RCW 72.09.111(3). Superintendent Gary Fleming denied Thomas’s request because Thomas was not going to use the funds for community transition upon his release or for an “emergency.”

Thomas filed a 42 U.S.C. § 1983 civil rights complaint against the DOC, DOC Secretary Joseph Lehman, and Superintendent of the Monroe Corrections Complex Gary Fleming. Pro se, Thomas alleged that the DOC had (1) committed constitutional violations by refusing to release $2,000 he requested from his PISA, and (2) had converted his personal funds, namely interest on the full amount in his PISA.

Thomas and the DOC filed cross motions for summary judgment. The DOC argued that Superintendent Fleming had correctly determined that Thomas’s professed need to pay for counsel to represent him at the parole hearing was not an emergency because Thomas had

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sufficient funds outside the DOC institution to pay these attorney fees. At the summary judgment hearing, Thomas, acting pro se and appearing via telephone, asked the trial court to allow a fellow inmate to provide him legal assistance. The trial court denied this request because it was filed late under CR 6.[2] During the hearing, Thomas complained several times about his inability to hear the proceedings via his telephonic connection.

Finding no genuine issue of material fact, the trial court ruled that (1) the DOC had acted within its discretion under RCW 72.09.111(3) when it denied Thomas’s request to withdraw funds from his PISA, even though there is no statutory or administrative definition of “emergency”; and (2) the DOC is not required to place PISAs in individual interest-bearing accounts.

Thomas appeals.

ANALYSIS I. Mootness
We first address the DOC’s threshold argument that Thomas’s appeal from its denial of his request for PISA funds is moot because he used other financial sources to hire an attorney to represent him at his release-eligibility hearing. Although Thomas’s complaint for damages and an injunction is moot,[3] his request for declaratory relief would benefit other similarly situated

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inmates.

We may decide a moot issue if it involves matters of continuing and substantial public interest. In re Pers. Restraint of Mines, 146 Wn.2d 279, 285, 45 P.3d 535 (2002). To determine whether a case involves the requisite public interest, we consider (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination to provide future guidance to public officers, and (3) the likelihood that the question will recur. Id. at 285. The facts here weigh in favor of our review, especially in light of the probability that if another inmate makes a similar request, his appeal would also be moot before the issue would reach us on appeal.

Accordingly, we consider Thomas’s claim for declaratory relief.[4]
The parties characterize the issue of whether the DOC erroneously denied Thomas’s PISA fund request as involving governmental taking, due process, and statutory interpretation. Nonetheless, we first address the underlying statutory issue — whether the DOC properly exercised its discretion that the Legislature granted it under RCW 72.09.111(3).

II. Inmate Access to PISA Funds
Thomas argues that we should reverse the trial court’s summary judgment dismissal of his lawsuit against the DOC because the trial court erred in failing to recognize his right to use his property, i.e., his PISA funds, to hire counsel for an upcoming release-eligibility hearing. The DOC responds that the trial court properly applied the “reasonable definition” of “emergency”

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when it reviewed the DOC’s exercise of its statutory discretion (1) in determining that Thomas’s request for PISA funds was not an “emergency” under RCW 72.09.111(3); and (2) in denying his request for access to his PISA funds.

A. Standard of Review
Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030
(1982). When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Id.

B. Legislative Background
In 1995, the Washington Legislature enacted RCW 72.09.460, which requires all DOC inmates to participate in both education and work programs. RCW 72.09.460(1). The Legislature intended this act to meet several objectives: (1) to defer increasing incarceration costs; (2) to create incentive programs for inmates to gain privileges through their education and work progress; (3) to allow inmates to obtain transferable skills for use after release from incarceration; and (4) “to assure that the department fulfills its mission to reduce offender recidivism, to mirror the values of the community by clearly linking inmate behavior to receipt of privileges, and to prudently manage the resources it receives through tax dollars.” RCW 72.09.450, Findings — Purpose.

To advance these objectives, the Legislature provided that the DOC would deduct from

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each inmate’s wages any amounts he owed to the crime victims’ compensation fund, the inmate’s incarceration costs, and his legal financial obligations owing to Washington State superior courts.[5] RCW 72.09.111(1). The Legislature further planned that after these deductions, the DOC would generally hold an inmate’s PISA funds, with any accrued interest, to disperse to him at the time of his release from confinement. RCW 72.09.111(3). Clearly, the Legislature did not intend inmates to have unfettered, immediate access to their wages during their incarceration.

C. “Emergency” Exception
The Legislature did, however, carve out an exception to the general rule that the DOC was to hold inmate PISA funds for dispersal on release from confinement where “the [DOC] secretary determines that an emergency exists for the inmate, at which time the funds can be made available to the inmate in an amount determined by the secretary.” RCW 72.09.111(3) (emphasis added). But, as both parties note, the Legislature did not define “emergency” within the RCW 72.09.111(3) context. Thus, central to this appeal is the question of what constitutes such an “emergency” for purposes of inmate access to PISA funds before release under RCW 72.09.111(3).

But neither party has cited any applicable case law or any Washington Administrative Code regulation defining this type of “emergency” or the parameters of the DOC secretary’s discretion when determining whether an inmate’s pre-release request for access to his PISA constitutes an “emergency” falling within this statutory exception under 72.09.111
(3).[6] Nor has

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our research revealed any such case law or administrative code provision. Thus, we address an issue of first impression.

D. DOC Discretion
At the outset, we explore the obvious possibility that, by its silence in defining “emergency,” the Legislature implicitly delegated to the DOC the discretion to decide what constitutes an “emergency” and to determine whether there exists an “emergency” for a particular inmate seeking access to his PISA funds before his release from confinement.

The Legislature has the power to vest a public officer with discretion to grant or to deny applications in various situations. Nonetheless, public officers must exercise this discretion within legal bounds; they cannot exercise it arbitrarily, capriciously, fraudulently, or without a factual basis sufficient to justify denial of an application. McDonough v. Goodcell, 13 Cal. 2d 741, 747-48, 91 P.2d 1035 (1939). See also 2 Am.Jur. 2d Administrative Law § 59 (1998). In short, administrative discretion may be exercised only according to fair and legal considerations.

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Housing Auth. of Opelousas v. Pittman Constr. Co., 264 F.2d 695, 703
(5th Cir. 1959). See also Sec’y of Agric. v. Cent. Roig Ref. Co., 338 U.S. 604, 613-14, 70 S. Ct. 403, 94 L. Ed. 381 (1950).

Courts generally limit review of an agency’s independent decision to the agency’s decision-making process. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 407-09, 91 S. Ct. 814, 28 L. Ed. 2d 136
(1971), cert. denied, 421 U.S. 991 (1975). We first note that Thomas’s request to withdraw $2,000, of the $7,935.78 in his PISA, complied with the procedure in DOC policy directive 200.710.[7] Thomas’s community correctional officer forwarded Thomas’s PISA funds request to Superintendent Fleming, along with a second letter from Thomas explaining why he needed access to these funds.[8] The DOC does not contend that Fleming considered any information other than these two letters; nor does it contest that Thomas’s PISA contained $7,935.78 when Fleming denied Thomas’s request.[9] Fleming’s explanation for denying Thomas’s

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request was simply, “[N]ot spent on transition nor emergent (sic).” Clerk’s Papers at 29.

We know from Thomas’s request for funds — to pay for an attorney to represent him at a “parole board” hearing, at which he hoped to obtain his release — that these funds were not for “transition,” i.e., funds to use on his release from confinement. Thus, the record clearly supports Fleming’s first ground for denying Thomas’s request.

The record also supports Fleming’s second ground for denying Thomas’s request — no emergency — because Thomas had access to funds other than his PISA account, which funds he did, in fact, use to hire an attorney to represent him at his release-eligibility hearing. Thus, Thomas had no arguable “emergency” or “need”[10] to access his PISA funds, which might have been the case had he not had other funds available.[11]
Accordingly, we deny Thomas’s request for declaratory relief and affirm the trial court’s summary judgment dismissal of his action.

III. PISA “Interest”
Thomas next argues that the trial court erred in allowing the State to commit an unconstitutional taking of interest that had accrued on his PISA, the subject of his § 1983 action, when (1) it failed to recognize the doctrine that interest follows principal; and (2) it ruled, based

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on Dean v. Lehman, 143 Wn.2d 12, 34, 18 P.3d 523 (2001), that the DOC had no duty to place inmate funds in an interest bearing account, that the DOC did not in fact place funds in an interest-bearing account, and that, therefore, no interest accrued or was owing on Thomas’s PISA account.

We have already held that Thomas was not entitled to access his PISA funds under the facts here. Nor has he demonstrated that, contrary to the DOC’s explanation, that there is any accrued interest on his PISA funds due and owing to him. That Thomas wishes the DOC would place his PISA funds in an interest-bearing account does not establish a governmental “taking” of property that does not exist.

Accordingly, we affirm.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

IV. Due Process at the Telephonic Summary Judgment Hearing
Last, Thomas contends that the trial court denied him due process (1) by allowing the summary judgment hearing to proceed when he could not hear clearly over the telephonic connection, and (2) by denying him the assistance of another inmate.

The DOC responds that (1) Thomas did not timely move for inmate assistance and, therefore, the trial court properly denied his request; (2) under Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981), inmates are not entitled to litigation assistance from fellow inmates; and (3) contrary to Thomas’s assertion on appeal, the summary judgment hearing transcripts show that he

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could hear the court and counsel via his telephonic connection.

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A. Inmate Assistance
CR 6 requires that all motions “shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” CR 6(d). We review de novo the application of a court rule to the facts. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001).

Thomas filed his motion on November 15, 2005, but the summary judgment hearing was set for November 18, 2005. Thus, Thomas’s motion did not meet CR 6 filing requirements, and the trial court properly denied it. Accordingly, we affirm the trial court’s denial of Thomas’s request for inmate assistance.

B. Thomas’s Difficulty Hearing
Thomas raises an issue of procedural due process; we review claims of manifest constitutional error de novo. State v. Pirtle, 127 Wn.2d 628, 656-57, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004); State v. Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002); State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), rev. denied, 129 Wn.2d 1012
(1996). The record shows that Thomas repeatedly mentioned his difficulty hearing the court or counsel because the telephone connection was bad. 11/18/05 RP 6-10.

Washington follows the Mathews test, infra, for procedural due process. See, e.g., Ongom v. Dep’t of Health, 159 Wn.2d 132, 138, 148 P.3d 1029 (2006). Due process generally requires consideration of three distinct factors: (1) the private interest possibly affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures

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used; and (3) the probable value of any additional procedural safeguards versus the administrative burdens of implementing those safeguards Mathews v. Eldrige, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).

Thomas fails to meet this test. In spite of his argument on appeal that the poor telephone connection hindered his ability to hear the summary judgment proceedings, the record shows that (1) he appears to have comprehended what was taking place during those proceedings; (2) he consistently interacted with the trial court; (3) he presented his oral arguments to the trial court, which already had his written motions and memoranda; and (4) he was able to respond to the court’s questions. Thomas fails to show that the imperfect telephonic connection deprived him of an essential right or that a better connection would have significantly affected the outcome of the summary judgment hearing. Therefore, his due process claim fails.

Affirmed.

Armstrong, P.J., Penoyar, J., concur

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