IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


IN THE MATTER OF THE                             No. 70486-9-1                      S   «S
PERSONAL RESTRAINT OF:
WILLIAM F. JENSEN,                               DIVISION ONE                   rn ^
                                                 UNPUBLISHED OPINION            co      °~%
                     Petitioner.                                                        :g-or-
                                                 FILED: December 30, 2013$ §?gg
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       Per Curiam. William Jensen files this personal restraint petition       w

challenging the failure of the Department of Corrections (DOC) to award him

earned time while in administrative segregation as well as its refusal to expunge

records of an investigation of misconduct. We grant the petition in part and

remand to DOC for an adjustment of Jensen's earned time. Jensen's motion for

oral argument is denied.

       Jensen is a former King County Sheriff's deputy who was convicted of

two counts of solicitation to commit first-degree murder. Because of his status

as a former law enforcement officer, Jensen is housed outside of the general

population. At the time of the challenged incident, Jensen resided in the BAR

unit at the Washington State Penitentiary, where offenders who are considered

vulnerable are housed.

       In January 2011, Jensen was accused of soliciting sex by a fellow inmate

in the BAR unit. In order to separate the two men while the allegation was

investigated, and because neither Jensen nor the other inmate could be placed
No. 70486-9-1/2



in the general population, Jensen was placed in administrative segregation. An

investigator ultimately determined that the allegation was unfounded. During

the period he was in administrative segregation, Jensen was denied the

opportunity to receive 13.53 days of earned time.1

       To obtain relief from a DOC decision from which he has had "no previous

or alternative avenue for obtaining state judicial review," Jensen must show that

he is under a restraint and the restraint is unlawful. In re Pers. Restraint of

Cashaw. 123 Wn.2d 138, 149, 866 P.2d 8 (1994); RAP 16.4. Jensen is under

restraint by virtue of his incarceration. In re Pers. Restraint of Pullman. 167

Wn.2d 205, 211,218 P.3d 913 (2009). A showing that a decision by a

government agency failed to comply with the agency's own rules or regulations

is sufficient to show the unlawfulness of the restraint. Cashaw, 123 Wn.2d at

149.


       At the time of the challenged incident, DOC Policy 350.100, governing

earned release time, specified that an offender is not eligible for earned time if

he or she "serves 20 days or more in one calendar month in Administrative

Segregation/Intensive Management status or disciplinary segregation!.]"

However, the policy further stated, "For other than negative behavior, offenders




       1A sentence may be reduced by "earned release time"; a combination of "good
conduct time," which are credits awarded to an inmate that can be lost if inmate
commits disciplinary infractions; and "earned time," which are credits an inmate can
earn by participating in various prison programs and engaging in other positive
behavior. RCW 72.09.130, RCW 9.94A.729, WAC 137-30-020. Offenders convicted
of a serious violent offense committed after July 1, 1990 and before July 1, 2003, such
as Jensen, can receive earned release time up to 15 percent of their sentence.
No. 70486-9-1/3



on Administrative Segregation/Intensive Management Status will continue to

earn earned time at the rate allowed by crime category."2
       Here, DOC did not follow its own policy when it denied Jensen the

opportunity to accumulate earned time while placed in administrative

segregation. Because the investigation concluded that Jensen committed no
wrongdoing, he was not placed in administrative segregation for "negative

behavior."3 Moreover, DOC concedes that the reason Jensen was placed in

administrative segregation instead of the general population during the

investigation was for his own protection and safety.4
       Jensen also argues that he is entitled to have DOC expunge the records

ofthe January 2011 incident from his file because it was investigated and the
allegations were determined to be unfounded. But DOC Policy 460.000, which
Jensen cites, involves expungement of records following disciplinary hearings.

Jensen was never infracted nor underwent a disciplinary hearing for the

January 2011 incident because an investigation revealed the allegations were
unfounded. Jensen claims that the retention of the records violates his right to


       2This is identical to the language of WAC 137-30-030(c)(iv).
       3According to DOC Policy 320.200, there are five reasons an inmate may be
placed in administrative segregation: (1) he poses a threat to self, others or the facility;
(2) he is in need of protection; (2) he is pending transfer to a more secure facility; (4)
he poses an escape risk; or (5) he is pending investigation. Because DOC Policy
350.100 differentiates between placement in administrative segregation for "negative
behavior" and placementfor other reasons, it is clear that not all of these reasons
constitute "negative behavior."
       4DOC's explanation is borne out by the fact that Jensen had previously been
placed in administrative segregation during the investigation of an allegation that he
solicited another inmate to assault a staff member, but that he was found not guilty of
the infraction at a disciplinary hearing and therefore accumulated earned time during
his placement in administrative segregation.
No. 70486-9-1/4



due process, citing Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999).

But Burnsworth involves only the expungement of an infraction that was not

supported by sufficient evidence, not the expungement of any records

pertaining thereto. Because Jensen does not establish that he has a protected

liberty interest in the expungement of his records, nor that DOC violated its

policy regarding investigation records, he does not establish a claim for relief.

       Accordingly, we grant the petition in part and remand to DOC for Jensen

to be credited with the earned time he accumulated while placed in

administrative segregation during investigation of the January 2011 incident.

                         For the court:
