        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal                     No. 78038-7-1
 Restraint of
                                                  DIVISION ONE

 JESS R. SMITH,                                    UNPUBLISHED OPINION


                                 Petitioner.      FILED: October 21, 2019


        CHUN, J. — Jess Smith sent a kite' 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.




         Kites are DOC forms given to inmates to communicate with prison staff, attorneys, and
others. State v. Puaouaga, 164 Wn.2d 515, 518 n.2, 192 P.3d 360(2008).
       2 See   WAC 137-25-030(503).
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                                      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



                                                                              /

         3 This court dismissed Smith's personal restraint petition regarding the 896 Harassment
Infraction (See Order of Dismissal, In re Pers. Restraint of Smith, No. 76889-1-1 (Wash. Ct. App.
Feb. 28, 2018).
       4 Smith v. Goodenough, No. 17-CV-05060, 2017 WL 8793473(E.D. Wash. July 26,
2017)(court order).
        5 28 U.S.C. § 1915A (court shall screen civil complaints filed by prisoners seeking
redress from a governmental entity or its employees and dismiss any complaint that is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief form
an entity that is immune from such relief).


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No. 78038-7-1/3


       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:




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No. 78038-7-1/4

       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




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No. 78038-7-1/5


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.




        6 In the Second Lawsuit, Smith originally filed the complaint against Goodenough and two
other defendants in April 2017. Order Dismissing First Am. Compl., Smith v. Goodenough,
No. 4:18-CV-05098-SMJ, 2018 WL 1790024 at 1,(E.D. Wash. Jan. 12, 2018)(Order Dismissing
Compl.). The federal district court dismissed the complaint without prejudice as to refiling against
Goodenough. Smith did refile. Order Dismissing Compl., Smith, supra, at 2.
        7 Order   Dismissing Compl., Smith, supra.


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No. 78038-7-1/6


                                      II ANALYSIS

       "[P]risoners challenging prison discipline need not make a prima fade

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




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No. 78038-7-1/7


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

petition at DOC and he directed his Second Lawsuit at Goodenough and

Knighton, the employer-employee relationship suffices to establish privity for

purposes of res judicata. See Emeson, 194 Wn. App. at 636.

       Collateral estoppel also bars Smith's First Amendment retaliation claim

against Goodenough and Knighton. Collateral estoppel, or issue preclusion,

prevents the same parties from relitigating issues actually raised and resolved by




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a former verdict and judgment. State v. Williams, 132 Wn.2d 248, 253-54, 937

P.2d 1052(1997). Collateral estoppel requires four elements:
       (1) the issue decided in the prior adjudication must be identical with
       the one presented in the second;(2)the prior adjudication must have
       ended in a final judgment on the merits;(3) the party against whom
       the plea of collateral estoppel is asserted must have been a party or
       in privity with a party to the prior litigation; and (4) application of the
       doctrine must not work an injustice.
Williams, 132 Wn.2d at 254 (quoting State v. Cleveland, 58 Wn. App. 634, 639,

794 P.2d 546 (1990)). Here, Smith asserted that the infraction violated his First

Amendment rights, and the Second Lawsuit resolved the identical issue on the

merits among parties in privity. And Smith does not show how application of the

doctrine to Smith's First Amendment claim would work an injustice.

        However, our analysis differs with respect to Smith's evidentiary

challenge. In the PRP, Smith asserted that there is no evidence, under the

"some evidence" test that he is guilty of extortion or blackmail. In contrast,

Smith's federal complaint did not raise this issue.8 To determine whether the

causes of action are the same for purposes of res judicata, we consider the

following criteria:(1) whether the second action would impair rights or interests

established in the prior judgment;(2) whether the two actions deal substantially

with the same evidence;(3) whether the two suits involve an alleged infringement

of the same right; and (4) whether the two suits arise out of the same



       8 We note that the federal court concluded that Smith failed to state a "First Amendment
due process claim against Defendant Knighton" because he was not entitled to procedural due
process protections. Order Dismissing Compl., Smith, supra, at 3-4. Given that Smith's federal
complaint did not expressly address his due process evidentiary claim, the federal court's cursory
due process analysis is not preclusive.


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No. 78038-7-1/9


transactional nucleus of facts. Kuhlman v. Thomas, 78 Wn. App. 115, 122, 897

P.2d 365 (1995).

       Here, the PRP and the Second Lawsuit concern the same evidence and

arose from the same nucleus of facts. But Smith's PRP alleged that DOC

infringed his due process right to have his claim supported by "some evidence,"

whereas the federal complaint did not. Moreover, res judicata does not bar state

constitutional claims raised in the PRP. We therefore conclude that res judicata

does not bar Smith from raising this issue in his PRP. Similarly, because the

federal lawsuit and the PRP are not identical regarding this issue, collateral

estoppel does not bar us from considering it.

   B. Adequate Remedy at Law

       DOC next contends that this court should exercise its discretion to dismiss

Smith's PRP under RAP 16.4(d) because the 42 U.S.C. § 1983 federal civil rights

claim provided him an adequate remedy at law. We disagree.

      "Ordinarily, an inmate challenging a prison disciplinary sanction does so

by personal restraint petition." Kozol, 185 Wn.2d at 407. However, RAP 16.4(d)

provides that this court will grant relief by means of a personal restraint petition

only "if other remedies which may be available to petitioner are inadequate under

the circumstances. . . ." Because a personal restraint petition is "not a substitute

for statutory avenues for review," RAP 16.4 places the burden on the petitioner to

show that other remedies available to the petitioner are inadequate. In re Pers.

Restraint of Meirhofer, 182 Wn.2d 632, 648, 343 P.3d 731 (2015).




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No. 78038-7-1/10


       We have previously rejected DOC's contention that a § 1983 action is an

adequate alternative remedy to a PRP. In re Pers. Restraint of Arseneau, 98

Wn. App. 368, 989 P.2d 1197 (1999). In Arseneau, an inmate filed a personal

restraint petition asserting that DOC violated his First Amendment free speech

rights by prohibiting him from contacting his niece. This court held that the

petitioner was not required to exhaust his civil remedies before challenging the

DOC prohibition via personal restraint petition, as it implicated a constitutional

right of significant importance. Arseneau, 98 Wn. App. at 374.

       We are not persuaded by DOC's contention that a § 1983 action would

provide an adequate remedy to Smith under the circumstances. Section 1983

provides a civil cause of action against any "person" who deprives another of

"any rights, privileges, or immunities secured by" the United States Constitution.

But a state agency is not a "person" within the meaning of § 1983. Lapides v.

Bd. of Repents of Univ. Sys. of Ga., 535 U.S. 613, 617, 122 S. Ct. 1640, 152 L.

Ed. 2d 806 (2002); Wash. State Republican Party v. Pub. Disclosure Comm'n,

141 Wn.2d 245, 285-86,4 P.3d 808 (2000). Accordingly, Smith could not file a

§ 1983 claim against DOC. Moreover, if Smith were compelled to bring his

constitutional claims in a § 1983 action, he would lack a forum to assert his state

constitutional rights. We conclude that RAP 16.4(d) does not bar us from

considering Smith's assertion that DOC lacked evidence to support his infraction.




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   C. Procedural Due Process

       We now consider whether DOC violated Smith's due process rights by

finding him guilty of the serious violation of "extortion or blackmail" pursuant to

WAC 137-25-030(1)(Category B— Level 3:503). The due process clause

prohibits deprivation of life, liberty, or property without due process of law. U.S.

CONST. amend. XIV,§ 1. Thus, the threshold question is whether the extortion

infraction implicated a protected liberty interest subject to minimum due process

protections.

      "Protected liberty interests 'may arise from two sources—the Due Process

Clause itself and the laws of the States." In re Pers. Restraint of Dyer, 143

Wn.2d 384, 392, 20 P.3d 907(2001)(quoting Ky. Dep't of Corrections v.

Thompson,490 U.S. 454,460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)). "[Ty)

create a liberty interest, the action taken must be an atypical and significant

deprivation from the normal incidents of prison life." Dyer, 143 Wn.2d at 393

(citing Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418

(1995)).

      "A prisoner's statutory right to earn good time credits is a 'protected liberty

interest in those credits which prevents their deprivation absent observation of

minimum due process requirements." In re Pers. Restraint of Gronquist, 138

Wn.2d 388, 397, 978 P.2d 1083(1999)(quoting In re Pers. Restraint of

Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987)). Prisoners found guilty of

serious infractions face the potential loss of good time credit as a sanction,




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whereas prisoners found guilty of general violations do not. See WAC 137-28-

240(sanctions for general violations) and WAC 137-28-350(3)(i)(sanctions for

serious violations). Thus, "[i]n serious infraction hearings where sanctions

include loss of good time credits, Washington prisoners are entitled to minimum

due process." Gronquist, 138 Wn.2d at 397. In contrast, prisoners charged with

general violations enjoy minimum due process protections only when facing a

sanction that imposes an atypical and significant hardship in relation to the

ordinary incidents of prison life. Gronquist, 138 Wn.2d at 397 (citing Sandin, 515

U.S. at 484).

      Smith contends that he is entitled to minimum due process because

extortion is a "serious violation." DOC argues that Smith has no protected liberty

interest because he did not lose good time credits and the sanctions imposed did

not impose an "atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life" as required by Sandin. 515 U.S. at 484. But

prisoners are entitled to minimum due process in serious infraction hearings,

regardless of whether they actually suffer loss of good time as a sanction. See In

re Pers. Restraint of McVay, 99 Wn. App. 502, 507, 993 P.2d 267 (1999)).

In McVay, prison officials charged McVay with a "serious" violation pursuant to

WAC 137-28-260. 99 Wn. App. at 507. After the hearing, McVay was

sanctioned with 10 days segregation and loss of 90 days of good time for 360

days. However, the prison superintendent eliminated the loss of good time on

administrative appeal. DOC argued that McVay was not entitled to minimum due




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process because he failed to demonstrate deprivation of a protected liberty

interest. McVay, 99 Wn. App. at 506-07. This court, following Gronquist,

disagreed and held that McVay was entitled to minimum due process because he

appeared in a "serious infraction" hearing, even though he did not actually suffer

loss of good time. McVay, 99 Wn. App. at 507. Here, similarly, Smith appeared

at a "serious violation" hearing where he faced possible loss of good time credits.

Following Gronquist and McVay, we conclude that Smith is entitled to minimum

due process, including application of the "some evidence" test to determine

whether DOC's actions were arbitrary and capricious. See also Kozol, 185

Wn.2d at 411 (stating that "a serious infraction that does not result in the loss of

early release credit still casts a shadow over an inmate's institutional history").

       Smith contends that there was no evidence to support a finding that his

actions in seeking to settle his lawsuit against Goodenough amounted to a

violation 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). WAC Chapter 137-25, which

governs serious violations at DOC confinement facilities, does not further define

"extortion." "Rules of statutory construction apply to administrative rules and

regulations." Citv of Seattle v. Allison, 148 Wn.2d 75, 81, 59 P.3d 85 (2002).

Undefined terms are given their plain and ordinary meaning. United States v.

Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999(2005). Webster's Third New

International Dictionary defines "extort" as "to obtain from an unwilling or




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reluctant person by physical force, intimidation, or the abuse of legal or official

authority." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 806 (2002). Black's

Law Dictionary similarly defines "extortion" as "[t]he practice or an instance of

obtaining something or compelling some action by illegal means, as by force or

coercion." BLACK'S LAW DICTIONARY 729 (11th Ed. 2019).

       We conclude that Smith's actions do not support the infraction of extortion.

Smith merely sent a settlement offer letter to Goodenough. Such conduct is not

unlawful. Smith did not employ force, coercion, or intimidation. There is no

evidence that Smith threatened to harm Goodenough if he failed to comply.

Goodenough could have simply chosen to ignore Smith's kite without

consequence. Because the evidence does not support a finding that Smith

violated the infraction of extortion, the infraction was arbitrary and capricious.

       DOC asserts that Smith's behavior was extortionate because he sent his

settlement offer directly to Goodenough via kite before the federal court screened

the case instead of waiting until the federal court authorized service so he could

send the offer to Goodenough's appointed counsel. DOC also asserts that the

offer was unlawful because DOC Policy 850.030 restricts DOC employees from

giving or accepting gifts or gratuities or having financial dealings with inmates.

But these alleged procedural improprieties did not add force or intimidation to

Smith's offer.

       DOC, relying on several out-of-jurisdiction cases, further argues that

settlement demands may form the basis for an extortion claim. But DOC




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concedes that such cases are in the minority. More fundamentally, cases

supporting this proposition are factually distinguishable. See, e.g., Flatlev v.

Mauro, 39 Cal. 4th 299, 329-330(2006)(settlement demand coupled with threats

to disclose and publicize criminal activity constituted criminal extortion as a

matter of law).

       DOC asserts that if Smith is able to show a basis for relief in his PRP, the

appropriate remedy is to remand for a new hearing at which the prison

disciplinary officer could consider whether Smith's actions — which are

undisputed — violated some lesser infraction. Because double jeopardy does not

apply to prison disciplinary proceedings, a rehearing is permissible. In re Pers.

Restraint of Higgins, 152 Wn.2d 155, 165, 95 P.3d 330 (2004). We therefore

grant Smith's petition, reverse DOC's finding that Smith violated WAC 137-25-

030(503), and remand to DOC for a rehearing.

       Granted and remanded.




WE CONCUR:




                                                    An,(Qh-t4,a 1


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