                                                                                           FILED
                                                                                      COURT OF APPEALS
                                                                                            DI' ISIJM II

                                                                                     2015 JUN - 9     AM 8: 145

                                                                                      STA         W', S     ON

                                                                                      BY




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

 STEVEN P. KOZOL,                                                              No. 45601 -0 -II


                                       Appellant,


           v.



 WASHINGTON STATE DEPARTMENT OF                                      UNPUBLISHED OPINION
 CORRECTIONS, ERIC JACKSON, and
 GREG JONES,


                                       Respondents.


          JOHANSON, C. J. —         Steven P. Kozol appeals the superior court' s orders denying his motion

to file   a second amended complaint,           granting the Department   of   Corrections' ( DOC) motion to


dismiss his Uniform           Declaratory     Judgments Act' ( UDJA) complaint          challenging a prison


disciplinary    infraction,   and   dismissing his   claims with prejudice.    Because Kozol' s claims were


not within the scope of the UDJA, the superior court did not err in dismissing Kozol' s UDJA

claims and we affirm      that      order.   But because the superior court should have allowed Kozol to


amend his complaint to include his proposed statutory writ of certiorari, we reverse the order

denying the motion to amend in part and remand to allow Kozol to amend his complaint to include

the statutory writ and for further proceedings.


  Ch. 7. 24 RCW.
No. 45601 -0 -II


                                                        FACTS


                                     I. PRISON DISCIPLINARY INFRACTION


         Kozol is an inmate confined in a DOC facility. On April 6, 2011, following a disciplinary

hearing, DOC disciplinary hearings officer Greg Jones found Kozol guilty of a serious prison

disciplinary infraction committed on September 10, 2010. Jones sanctioned Kozol to 10 days cell

confinement and required him to send some of his personal property consisting of "music- related

items"   out of   the   prison system.    Clerk' s Papers ( CP)         at   68.    Kozol appealed the infraction, and


DOC Associate Superintendent of Programs Eric Jackson affirmed Jones' s decision.

                                         II. FIRST AMENDED COMPLAINT


         In January 2013, Kozol filed a complaint in the Thurston County Superior Court against

the DOC requesting          declaratory, judgment       and   injunctive           relief.   Kozol moved to amend his


complaint, this time including a claim for monetary damages; the DOC did not oppose this motion.

But the DOC       moved    to dismiss any 42 U.S. C. § 1983             claims under         CR 12( c).   The superior court


dismissed   with prejudice     any 42 U. S. C. § 1983         claims against          the DOC.      The court also granted


Kozol' s motion to amend.


         Kozol'   s amended complaint added         Jones         and   Jackson      as   defendants. Kozol asserted that


Jones, acting in his official capacity, had violated his ( Kozol' s) due process rights by failing to

timely provide Kozol with copies of all of the evidence used against him at the infraction hearing

as required under WAC 137- 28- 290(2)( f) and by failing to allow Kozol to present documentary

evidence    in his defense      as   required   under   WAC 137 -28- 300( 6).                 Kozol further asserted that




                                                              2
No. 45601 -0 -II


Jackson, acting in his official capacity, had filed a false public record in violation of RCW

40. 16. 0302 when he filed the decision affirming Jones' s decision.

        Kozol asked the superior court to enter a declaratory judgment under the UDJA finding

that ( 1) the DOC and the individually named defendants had violated WAC 137- 28- 290(2)( f) and

WAC 137 -28- 300( 6), (     2) Jackson' s act of filing the appeals decision amounted to a filing of a false

public record and " constitutes a      felony   violation of     RCW 40. 16. 030,"    and ( 3) the guilty finding

was " unlawful and void."        CP at 19. He also asked that the court prohibit the DOC from using this

infraction against him in any way. In addition, Kozol requested significant monetary damages for

the injuries caused by the alleged violations of the WACs and Jackson' s alleged act of filing a false

public record.



                                            III. MOTION TO DIsMIss


        The DOC    again moved       for dismissal      under   CR 12( c).   It argued that the superior court did


not have jurisdiction over a felony allegation filed in a civil action, that there was no private cause

of action for violations of ch. 137 -28 WAC, that Kozol' s challenges to his infraction were more


properly   presented   as    a   personal   restraint   petition (   PRP), and that Kozol could not obtain


declaratory relief under the UDJA on his prison disciplinary infraction claim.

        Relying on Bainbridge Citizens United v. Department ofNatural Resources, 147 Wn. App.

365, 198 P. 3d 1033 ( 2008),       the DOC argued that the UDJA could not be used to determine if an


agency had properly applied or administered an agency regulation or to enforce the criminal law.




2 RCW 40. 16. 030 states that it is a class C felony to knowingly procure or offer any false or forged
instrument to be filed, registered, or recorded in any public office.

                                                           3
No. 45601 -0 -II



Citing Kitsap County              v.   Smith, 143 Wn.      App.    893, 180 P. 3d 834 ( 2008), Kozol3 asserted that the


UDJA applied because they involved issues of public importance and the interpretation and

application of a criminal statute or rule and this was the only way he could obtain review within

the Washington court system. Kozol also argued that he could not file a PRP because he could not

establish that he was under restraint as defined by RAP 16.4.

            The superior court rejected Kozol' s argument that he could request declaratory judgment

on the issue of whether Jackson had violated a criminal law. It distinguished Kitsap County where

the court needed to determine if a criminal statute had been violated before it could resolve the

UDJA        action.    The superior court then stated that the UDJA " is intended for specific situations

where there is a need for a court to come in and define the rights and responsibilities of the parties"

and    that the issues           must   be   of " great public     importance," but neither was present in this case.


Report       of   Proceedings ( RP) ( Oct. 4, 2013)           at    15.   The court also stated that Kozol' s complaint


addressed a single disciplinary hearing and that application of the DOC' s rules in one instance was

not a matter of widespread                   importance.   Additionally, the court found that because Kozol could

file   a   42 U. S. C. §     1983 action, he had another available remedy.

             After announcing that it was granting the DOC' s motion to dismiss Kozol' s UDJA claims,

the    superior court commented on                Kozol'   s request      for damages. The superior court stated that it


was unclear whether Kozol was attempting to also proceed. under " some kind of tort theory" that

might      be   able   to   go   forward. RP ( Oct. 4, 2013)         at   16. The superior court advised the parties that




  Kozol was now represented by counsel.

                                                                     4
No. 45601 -0 -II



it would hear argument about whether Kozol was attempting to bring a tort claim when the parties

next appeared to present the orders on the DOC' s motion to dismiss the UDJA claims.

                                   IV. Kozoi,' s SECOND MOTION TO AMEND


          Shortly before the next hearing, Kozol moved to file a second amended complaint. Kozol' s

proposed second amended complaint (                1)   purported   to dismiss any damages          claims, ( 2)     attempted


to   recharacterize   his   previous   UDJA     claims as   seeking   a   declaration of   "all   inmate['   s]"   rights under




the WACs, ( 3)        alleged that the DOC had violated its own regulations, and ( 4) requested a


constitutional and /or       statutory   writ of certiorari.   CP    at   108. The DOC argued that this motion to


amend was untimely because the superior court had already dismissed all claims except for a
possible tort claim.


                                       the                                  Kozol'                           to    amend.   The
          At the   next     hearing,         superior court addressed                s second motion




court stated that the newly proposed amended UDJA claims were essentially new claims because

they would require examination of the prison disciplinary system as a whole rather than just the
procedure that was applied to Kozol. The court also stated that although it was possible that Kozol

could pursue a writ of certiorari, that legal theory was also broader than the claims Kozol originally

alleged. Accordingly, the superior court denied Kozol' s second motion to amend; it also signed

the order granting the DOC' s motion to dismiss and dismissing Kozol' s claims with prejudice.

          Kozol appeals the order granting the DOC' s motion to dismiss and dismissing his claims

with prejudice and the order denying his second motion to amend.




                                                               5
No. 45601 -0 -II


                                                        ANALYSIS


                                                   I. MOTION TO DIsMIsS


           Kozol    argues   that the   superior court erred        in   dismissing his   UDJA   claims.   We hold that


the superior court properly dismissed these claims because they were not within the scope of the

UDJA.


                                                  A. STANDARD OF REVIEW


           We review de novo a trial court' s ruling dismissing a case under CR 12( c). 4 P.E. Sys., LLC
v.   CPI   Corp.,   176 Wn.2d 198, 203, 289 P. 3d 638 ( 2012). We examine the pleadings " to determine


whether the claimant can prove any set of facts, consistent with the complaint, that would entitle

the   claimant   to   relief."   Parrilla   v.   King County,   138 Wn.     App. 427,     431, 157 P. 3d 879 ( 2007). On


a CR 12( c) motion, we presume that the allegations asserted in the complaint are true. Parrilla,


138 Wn. App. at 431 -32.

                                      B. CLAIMS NOT WITHIN SCOPE OF UDJA


           One of the grounds the superior court cited for the dismissal was that Kozol' s claims were

outside the scope of the UDJA. The superior court was correct.


           The UDJA allows courts to " declare rights, duties, status and other legal relations" between

parties. RCW 7. 24.010. Kozol sought a declaration that the DOC had failed to follow the hearing




4 Kozol has filed a statement of additional authorities citing Folsom v. Burger King, 135 Wn.2d
658, 663, 958 P. 2d 301 ( 1998), for the premise that this was actually a dismissal on a summary
judgment      motion under        CR 56( c).      It does not appear that the superior court considered anything
 outside of the pleadings. Accordingly, we review this as a CR 12( c) motion. We note, however,
that our decision would be the same even if this were a motion for summary judgment because we
 review CR 12( c) motions and CR 12( b)( 6) motions under the same standards. P.E. Sys., LLC v.
 CPI   Corp., 176 Wn.2d 198, 203, 289 P. 3d 638 ( 2012).

                                                                6
No. 45601 -0 -II



procedures required under ch. 137 -28 WAC and related injunctive relief, such as prohibiting the

DOC from using the infraction                 against   him in any way.      He was not seeking to establish what

requirements the regulations imposed and the DOC was not asserting that Kozol misinterpreted

those     regulations.   Furthermore, Kozol was not seeking a declaration of status or any other legal

relationship between the             parties.    And as we noted in Bainbridge Citizens United, declaratory

judgment is proper to determine the facial validity of an enactment, not its application or

administration.       147 Wn. App. at 374 ( refusing to reach the issue of whether the Department of

Natural Resources properly              applied or administered certain regulations under       the UDJA). Thus,


this was not a proper action under the UDJA.


           Kozol argues this approach unnecessarily limits the UDJA and that the UDJA allows courts

to determine       whether a        party'   s actions violated   the law.   He cites several cases that he asserts


provide examples of courts determining if a party violated the law. But these cases either involve

declaratory judgments under statutes other than the UDJA;5 do not involve any UDJA or




5
    See    City   of Seattle   v.   Egan, 179 Wn.         App.    333, 335 -36, 317 P. 3d 568 ( 2014) (   declaratory
judgment      under    the privacy       act);   Wash. State Commc' n Access Project v. Regal Cinemas, Inc.,
 173 Wn. App. 174, 182, 293 P. 3d 413 ( declaratory judgment under the Washington Laws Against
Discrimination, ch. 49. 60 RCW), review denied, 178 Wn.2d 1010 ( 2013).


                                                                  7
No. 45601 -0 -II


                                             6
declaratory      judgment     whatsoever;        or required   the interpretation     of statutes,   which is clearly

within the UDJA' s scope. Thus, none of these cases are helpful to Kozol.8

             Kozol also attempts to distinguish Bainbridge Citizens United, arguing that unlike in that

case,   he    was not    attempting to force      an   agency to   act.   Kozol is correct that the petitioners in


Bainbridge Citizens United             sought an order   requiring   an   agency to   act under   its   rules.   147 Wn.


App. at 369. Although Kozol was not attempting to force the DOC to act and was, instead, seeking

declaratory judgment that the DOC had failed to follow its own rules, that distinction is not

dispositive. Bainbridge Citizens United clearly describes the                 scope of   the UDJA.        147 Wn. App.

at 374. Because Bainbridge Citizens United is factually distinct from the facts here does not mean

that we cannot apply the law as stated in that case.

             Kozol also argues that he was entitled to declaratory judgment as to whether Jackson filed

a   false    public record   in   violation of    RCW 40. 16. 030.        He argues that Washington courts have


reviewed whether a party' s actions have violated the law. Although courts have examined whether

a party' s actions have violated the law in UDJA cases, they have done so when such determinations


6
    See Walker     v.   Quality Loan Serv. Corp., 176 Wn. App. 294, 308 P. 3d 716 ( 2013).

7
    See Yakima     v.   Yakima Herald Republic,
                                      -         170 Wn.2d 775, 788, 246 P. 3d 768 ( 2011); Wash. State
Coal. for the Homeless          Dep' t of Soc. & Health Services, 133 Wn.2d 894, 900, 949 P. 2d 1291
                                  v.

    1997);    City of Lakewood v. Koenig, 176 Wn. App. 397, 400, 309 P. 3d 610 ( 2013), remanded, 182
Wn.2d 87, 343 P. 3d 335 ( 2014);            Kitsap County Prosecuting Attorney' s Guild v. Kitsap County,
 156 Wn.        App.    110, 115, 231 P. 3d 219 ( 2010);  Kitsap County, 143 Wn. App. at 916; City of
Raymond v. Runyon, 93 Wn. App. 127, 134 -37, 967 P.2d 19 ( 1998); Protect the Peninsula' s Future
v. Clallam County, 66 Wn. App. 671, 675 -76, 833 P. 2d 406 ( 1992).

 8 We note that although the UDJA allows courts to determine questions of fact (such as whether a
 hearing complied with ch 137 -28 WAC) when necessary or incidental to declaration of legal
 relations, Trinity Universal Insurance Co. v. Willrich, 13 Wn.2d 263, 268, 124 P. 2d 950 ( 1942),
 that is not what Kozol was attempting to do here. Kozol was alleging solely a factual issue.

                                                               8
No. 45601 -0 -II



are related to the declaration of the parties' legal relations. See, e. g., Kitsap County, 143 Wn. App.

at 916 ( determination of whether former employee removed public records in violation of RCW

40. 14. 010 or RCW 40. 14. 020 and various county .codes necessary to determine if county was

entitled   to   declaratory   relief).   Whether Jackson violated RCW 40. 16. 030 by filing a false public

record is not relevant to Kozol' s disciplinary infraction, so the superior court properly dismissed

this claim.


           We hold that the superior court did not err when it dismissed Kozol' s UDJA claims because


they were not within the scope of the UDJA.9
                                   II. DENIAL OF SECOND MOTION TO AMEND


           Kozol next argues that the superior court erred when it denied his second motion to amend


the complaint. He argues that the allegations in the proposed second amended complaint merely

clarified his legal claims, that the amended complaint was based entirely on the same set of facts,

and that there was no prejudice to the respondents. The superior court did not err when it denied

his   motion     to   amend   his UDJA     claims.   But we agree that the superior court erred in denying

Kozol' s motion to amend his complaint to include his proposed statutory writ of certiorari. 10




9 Because of this holding, we do not address Kozol' s other arguments related to the dismissal of
his UDJA claims.


10 Because we hold that Kozol may bring a statutory writ, we do not address whether he can also
bring a constitutional writ. Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 533, 79 P.3d 1154
 2003) (    constitutional writ is only available when both direct appeal and statutory writ of review
are unavailable).



                                                           9
No. 45601 -0 -II



                                                 A. STANDARD OF REVIEW


         We review for abuse of discretion a trial court' s ruling on a motion to amend the complaint.

Wilson   v.   Horsley,    137 Wn.2d 500, 505, 974 P. 2d 316 ( 1999).                  A trial court abuses its discretion


if its decision is manifestly         unreasonable or         based    on untenable grounds or reasons.          Wilson, 137


Wn.2d    at   505.    To amend a pleading after the opposing party has responded, the party seeking to

amend must obtain         the trial   court' s   leave   or   the opposing party' s consent. CR 15(        a).   A trial court


must grant     leave    freely " when justice       so requires."        CR 15( a).    A motion to amend raising new

claims is usually allowed, even if made shortly before trial, if the new claims " required essentially

the same proof' as the previously alleged claims. Karlberg v. Otten, 167 Wn. App. 522, 529 -30,

280 P. 3d 1123 ( 2012);        see also    Herron        v.   Tribune Pub. Co., 108 Wn.2d 162, 166 -67, 736 P. 2d


249 ( 1987).


          The touchstone for the denial of a motion to amend is the prejudice such an amendment

would cause          to the nonmoving party."             Wilson, 137 Wn.2d           at   505. "   In determining whether

prejudice would result, a court can consider potential delay, unfair surprise, or the introduction of

remote   issues."      Kirkham   v.   Smith, 106 Wn.          App.    177, 181, 23 P. 3d 10 ( 2001) (    citing Herron, 108

Wn.2d at 165 -66).

                                                     B. 'UDJA CLAIMS


         To the extent Kozol was merely revising his previous UDJA claims, as we discussed above,

these claims were outside the scope of the UDJA. Accordingly, the superior court did not abuse

its discretion when it refused to allow Kozol to amend these claims.

         To the extent his proposed second amended complaint attempted to recast his UDJA claims


as requests for the superior court to provide declaratory judgment establishing the rights of all


                                                                  10
No. 45601 -0 -II



prisoners under the DOC' s regulations, the superior court also properly refused to allow Kozol to

add   those   claims.   Kozol' s newly alleged UDJA claims were broader and went beyond the facts

alleged in the first amended complaint. The new UDJA claims would have required the DOC to

address the rights prisoners had under the prison disciplinary rules rather than whether those rules

were properly applied in a particular instance, namely Kozol' s disciplinary hearing. The revised

UDJA claims were not just presenting a new legal theory based on the same set of circumstances

or facts that Kozol set forth in his earlier pleadings. And we agree that it was unfairly prejudicial

to require the DOC to respond to issues related to the disciplinary system as a whole rather than to

issues related to a single disciplinary hearing, especially in light of the fact the court had already

orally dismissed Kozol'      s original claims.   Accordingly, we hold that the superior court did not

abuse its discretion in denying Kozol' s motion to amend his complaint to include these new UDJA

claims.



                                          C. WRIT OF CERTIORARI


          In his proposed second amended complaint, Kozol attempted to bring a writ of certiorari,

asserting that his disciplinary hearing was invalid because the DOC' s officers, acting in a quasi -

judicial capacity, failed to provide him with the procedures he was entitled to under. the DOC' s

rules.    The DOC argues that the motion to amend was futile, and because it was untimely, it was

prejudicial. We disagree with the DOC.


                                   1.   FUTILITY: WRIT' S AVAILABILITY


          We first address whether the amendment was futile because Kozol did not allege facts


establishing that a statutory writ was available to him. We hold that a statutory writ of certiorari

was available to him so the amendment was not futile.



                                                      11
No. 45601 -0 -II



           RCW 7. 16. 040 sets out four factors that a court must find in order to issue a statutory writ:

     1) that   an     inferior tribunal ( 2) exercising judicial functions" (                  3) exceeded its jurisdiction or


acted     illegally,    and ( 4)   there is   no adequate      remedy       at   law.'"   Raynes v. City ofLeavenworth, 118

Wn.2d 237, 244, 821 P. 2d 1204 ( 1992) ( quoting RCW 7. 16. 040).                                We hold that Kozol alleged


sufficient facts to establish he was entitled to pursue a statutory writ.

                             a. INFERIOR TRIBUNAL EXERCISING JUDICIAL FUNCTIONS


            The fact courts are able to review prison disciplinary hearings (usually by means of PRPs)

demonstrates that           disciplinary hearings            are    held    by   inferior tribunals.    See,   e. g.,   In re Pers.


Restraint of Grantham, 168 Wn.2d 204, 205, 227 P. 3d 285 ( 2010).                                Further, prison disciplinary

hearings involve the exercise of a judicial or quasi-judicial function.


            We consider four factors when determining whether an action is quasi-judicial:

                  W]hether a court could have been charged with making the agency' s decision;
               1) [
             2)         the action is one which historically has been performed by courts; ( 3)
                  whether

            whether the action involves the application of existing law to past or present facts
            for the purpose of declaring or enforcing liability; and ( 4) whether the action
            resembles the ordinary business of courts as opposed to that of legislators or
            administrators."




Dorsten      v.   Port of Skagit Co., 32 Wn.            App.   785, 788, 650 P. 2d 220 ( 1982) (         quoting Wash. Fed' n

of State Employees           v.    State   Pers. Bd., 23     Wn.    App.    142, 145 -46, 594 P. 2d 1375 ( 1979));         see also



In   re   Det. of Enright, 131 Wn. App. 706, 716, 128 P. 3d 1266 ( 2006). We find all four factors here.


            First, although courts do not regularly determine whether an inmate has committed a prison

disciplinary infraction, they do make such determinations when an inmate is charged with



11
     Judicial functions include              all   actions   that   are '   judicial' in    nature,"   including quasi-judicial
administrative 'actions.              Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 218, 643 P. 2d 426
 1982).


                                                                      12
No. 45601 -0 -II



persistent prison misbehavior.            RCW 9. 94. 070.     Thus, it is clear that prison disciplinary hearings

involve   matters     that   a court could   have been    charged   with making. Second, similar to a criminal


charge, a disciplinary infraction requires a tribunal to determine whether the defendant or inmate

is guilty or not guilty of the alleged act and this is clearly an action that courts have historically

performed. Third, in determining whether an inmate had violated a prison regulation, the hearing

officer applies existing law to past or present facts for the purpose of declaring guilt or innocence.

And, finally, determining guilt or innocence also clearly resembles the business of the courts as

opposed     to that   of   legislators   or administrators.   Thus, all four factors are met here and it is clear


that the disciplinary hearing at issue involved an inferior tribunal exercising a quasi-judicial

function.


                                b. EXCEEDED JURISDICTION OR ACTED ILLEGALLY


          Having met the first two factors necessary to support a statutory writ, we must next examine

whether Kozol alleged facts establishing that the tribunal exceeded its jurisdiction or acted

illegally. The DOC argues that Kozol did not allege an " illegal" act as defined in City ofSeattle

v. Holifield, 170 Wn.2d 230, 244 -45, 240 P. 3d 1162 ( 2010). 12 We disagree.

          Holifield held,


           F] or purposes of RCW 7. 16. 040, an inferior tribunal, board or officer, exercising
          judicial functions, acts illegally when that tribunal, board, or officer ( 1)     has
          committed an obvious error           that   would render   further   proceedings useless; (   2) has
          committed probable error and the decision substantially alters the status quo or
          substantially limits the freedom of a party to act; or ( 3) has so far departed from
          the accepted and usual course ofjudicial proceedings as to callfor the exercise of
          revisory jurisdiction by an appellate court.



12 The DOC does not challenge Kozol' s motion to amend to add a writ on the grounds that the
DOC was not acting as a quasi-judicial tribunal.

                                                              13
No. 45601 -0 -II



170 Wn.2d          at   244 (   emphasis        added).   Although prisoners have limited rights in disciplinary

proceedings, the DOC' s own rules require that prisoners be allowed to review the DOC' s evidence

and   to   present evidence           in their defense. See WAC 137- 28- 290( 2)( f), 300(
                                                                                      -    6).             Kozol alleges that


the DOC failed to follow these rules and these allegations, if true, would demonstrate that the

hearing officer departed so far from the accepted and usual course of the proceedings as to call for

review. Thus, Kozol has alleged facts capable of establishing this factor.

                                            c. NO OTHER ADEQUATE REMEDY AT LAW


           Finally, we must address whether Kozol had other remedies at law. Kozol had four other

possible remedies: (            1)   a   UDJA   action, ( 2) a   42 U. S. C. § 1983 claim, (3) a PRP, or (4) a tort claim.


None of these was a viable alternative.


           As to a possible UDJA claim, as discussed above, Kozol' s claims fell outside the scope of

the UDJA. Thus, a UDJA claim was not an available remedy.

            As to   a possible        42 U.S. C. § 1983 action, although the superior court determined that Kozol


could      bring    a 42 U. S.       C. § 1983    action, we     disagree.     To    obtain relief under   42 U.S. C. § 1983,


Kozol must show that he had been deprived of a right secured under the constitution or federal

law. Sintra, Inc.        v.   City       of Seattle, 119 Wn.2d 1, 11 - 12, 829 P. 2d 765 ( 1992). Kozol' s allegations


did not establish that the sanctions imposed deprived him of any constitutional or federal right.

            The sanctions imposed, 10 days of cell confinement and being unable to keep certain

personal property, touched on Kozol' s liberty and property interests. But a prisoner' s interests are

limited to those deprivations that                 subject a prisoner        to "   atypical and significant   hardship ...   in


relation    to the ordinary incidents             of prison   life." Sandin v. Connor, 515 U.S. 472, 484, 115 S. Ct.


2293, 132 L. Ed. 2d 418 ( 1995).                    A 10 -day cell confinement is not an atypical and significant


                                                                     14
No. 45601 -0 -II



hardship,. In re Pers. Restraint of Gronquist, 89 Wn. App. 596, 601 -02, 950 P.2d 492 ( 1997)

 stating that cell or room confinement not to exceed 10 days for a general infraction does not

impose    atypical and significant          hardship     on an   inmate), rev 'd on other grounds, 138 Wn.2d 388,


978 P. 2d 1083 ( 1999).            Furthermore, prisoners also have limited rights to retain their personal


property. See WAC 137 -36- 030. 13 And Kozol has not shown that his being unable to keep specific

personal property in prison created an atypical and significant hardship in light of his already

restricted   ability to     retain   his   personal    property.   Because Kozol cannot show that the sanctions


imposed deprived him of any constitutional or federal right, Kozol did not have another available

remedy     under    42 U. S. C. § 1983.


          Nor does Kozol have the option of filing a PRP. To obtain relief by means of a PRP, Kozol

would     have to     establish    that he is     under " restraint"   as   defined in RAP 16. 4( b).   RAP 16. 4( b)


provides,




          A petitioner is under a " restraint" if the petitioner has limited freedom because of a
          court decision in a civil or criminal proceeding, the petitioner is confined, the
          petitioner is subject to imminent confinement, or the petitioner is under some other
          disability resulting from a judgment or sentence in a criminal case.

But    as we      discuss   above, a      lawfully    incarcerated individual   such as   Kozol has only the "`   most




basic'"    liberty    interests.     In re Pers. Restraint of Lain, 179 Wn.2d 1, 14, 315 P. 3d 455 ( 2013)

 quoting Hewitt        v.   Helms, 459 U. S. 460, 467, 103 S. Ct. 864, 74 L. Ed. 2d 675 ( 1983),           overruled




in part   on other grounds           by   Sandin, 515 U.S. 472)).      And those limited interests are not violated




 13
      WAC 137 -36- 030( 1)         states   that "[   o] nly authorized items may be retained by an inmate in the
custody      of            The rule then states that the DOC can limit the quantity and value of
                  the [ DOC]."

personal items for a variety of penological purposes and that the superintendents were required to
 establish regulations regarding personal property.

                                                                 15
No. 45601 -0 -II



unless the restraint imposed amounts to " an atypical and significant deprivation from the normal

incidents     of prison   life."     In re Pers. Restraint ofDyer, 143 Wn.2d 384, 393, 20 P. 3d 907 ( 2001)

 citing Sandin, 515 U.S.             at   484).     Because Kozol' s 10 -day cell confinement and deprivation of

personal property do not amount to atypical or significant deprivations from the normal incidents

of prison life, he does not establish that he is currently under restraint as defined by RAP 16. 4( b),

and he cannot obtain relief by means of a PRP. And finally, although a tort claim could potentially

address Kozol' s loss of his property, it is not an adequate remedy because it would not address the

disciplinary infraction itself.14 Because Kozol cannot bring this action under the UDJA or as a 42
U.S. C. §     1983 claim, a PRP, or a tort claim, he does not have any other adequate remedy at law.

             Accordingly, Kozol shows that the statutory writ was available to him. Because the writ

was an available remedy, the DOC has failed to show that amendment was futile. We next turn to

whether the amendment was prejudicial.




14
      In his brief, Kozol          asserts   that because      a prior    42 U.S. C. §   1983 claim was dismissed with
prejudice, the DOC cannot assert that he has other alternative .relief by means of a 42 U.S. C. §
 1983 or tort claim because res judicata precludes such claims. The DOC argues that in so arguing,
Kozol has       admitted      that he had      other alternative relief available.       The record before us, however,
shows that Kozol filed a claim in the federal district court only alleging conversion of his property
in 2010       and   that he   amended        this   claim   to assert a   retaliation claim on   March 17, 2011.   But the
DOC'     s    own    documentation           shows    that Kozol voluntarily dismissed this           case.   Res judicata

requires, among other things, concurrence of subject matter and a final judgment on the merits of
the    prior suit.   Hisle    v.   Todd Pac. Shipyards         Corp.,   151 Wn.2d 853, 865, 93 P. 3d 108 ( 2004); Rains
 v.   State, 100 Wn.2d 660, 663, 674 P. 2d 165 ( 1983).                     Based on the record, it does not appear that
 the previous action related to the disciplinary infraction, so there is no concurrence of subject
 matter. Furthermore, because there was no final judgment on the merits, res judicata cannot apply.

                                                                   16
No. 45601 -0 -II



                                               2. No PREJUDICE


        The DOC argues that allowing Kozol to bring the writ was prejudicial because the

amendment was      untimely      and went   beyond the   scope of   the   presentment   hearing. 15 Although the

writ was a new claim, this claim relied on the same facts and the same allegation that the hearing

officer did not provide Kozol with the proper procedures. Even though the specific type of claim


changed, the DOC was aware of the underlying nature of the claim well before Kozol brought his

second motion to amend, and the DOC does not show how merely changing the claim to a writ

was prejudicial despite any delay. The DOC also fails to allege any specific prejudice, such as the

loss of evidence, which resulted from any potential delay.

        Furthermore, CR 15( a) states that " leave shall be freely given when justice so requires."

And a motion to amend raising new claims is usually allowed, even if made shortly before trial, if

the new claims " required essentially the same proof' as the previously alleged claims. Karlberg,

167 Wn. App. at 529 -30; see also Herron, 108 Wn.2d at 166 -67. Kozol' s right to proper process

outweighs any potential prejudice caused by the delay in Kozol' s bringing the writ given the

similarities of the claims and the lack of any evidence of any specific prejudice.

        Accordingly, we hold that because Kozol has shown that his claim falls within the scope

of a statutory writ of certiorari, his claim was not futile. We further hold that because the writ was

based on the facts alleged in the original and first amended complaint, the DOC is not prejudiced


by this new claim. Thus, the superior court should have allowed Kozol to amend his complaint to




15 The DOC also asserts that the amendment was prejudicial because it would require the DOC to
relitigate a claim   the trial   court   previously determined   was      inadequate.   Although this may have
been the case for the UDJA claim, the trial court had not previously addressed any possible writ
or otherwise address Kozol' s claim that the hearing officer did not follow proper procedure.
                                                         17
No. 45601 -0 -II


include the statutory     writ.   We reverse, in part, the superior court' s order denying Kozol' s motion

to amend.


                                  111. KOZOL' S REQUEST FOR FEES AND COSTS


        Finally, Kozol requests fees and costs under RCW 7. 16. 260 and RCW 7.24. 100 as the

prevailing party. RCW 7. 16. 260 allows for costs to be awarded if he or she files a successful writ

of mandamus. RCW 7. 24. 100 allows for the award of costs under the UDJA. Kozol has not filed

a writ of mandamus and the superior court properly dismissed his UDJA claims, so Kozol is not

entitled   to fees   or costs under either of   these   statutes.   Accordingly, we deny his request for fees

and costs.




           We affirm the superior court' s order dismissing Kozol' s UDJA claims. But we reverse the

order denying the motion to amend in part and remand to allow Kozol to amend his complaint to

include the statutory writ and for further proceedings.

           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




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