       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
In the Matter of the Personal               )       DIVISION ONE
Restraint of:                               )
                                                                                    .7*


                                            )       No. 74711-8-1
DAVID JOSEPH PEDERSEN,                      )                                                    _
                                            )       UNPUBLISHED OPINION
                      Petitioner.           )                                        •••••••••
                                            )       FILED: November 27, 2017
                                            )                                             C.A)


       DWYER,J. — David Pedersen filed this personal restraint petition (PRP)

claiming that the Department of Corrections(DOC)subjected him to

unconstitutional conditions of confinement. His claims stem from his

incarceration in high-security, intensive management units as well as from his

later incarceration in the general prison population. We conclude that several of

Pedersen's claims are moot and that his remaining claims either fail on the merits

or cannot be considered because alternative civil remedies may be available to

him that would be adequate under the circumstances.

       Accordingly, we dismiss the petition.



       Pedersen pleaded guilty in 2012 to committing multiple counts of

aggravated murder. He was sentenced in the Snohomish County Superior Court

to incarceration for life without the possibility of parole.
No. 74711-8-1/2


       Between 2012 and 2015, Pedersen was incarcerated in a high-security,

intensive management unit separated from the general prison population—first,

at the Monroe Correctional Complex and, later, at the Washington State

Penitentiary in Walla Walla. Pedersen was incarcerated in the intensive

management units because of his aggravated murder convictions and his

involvement with a known threat organization.

       In March 2015, Pedersen was transferred to the general prison population

at the state penitentiary.

       Pedersen submitted this PRP nearly one year later, in February 2016,

asserting that he suffers from unlawful restraint as a result of unconstitutional

conditions of confinement.

                                          II

       We first address DOC's contention that we cannot consider the

constitutional challenges to confinement set forth in Pedersen's PRP because

Pedersen has another available remedy at law against DOG in the form of a civil

rights action pursuant to 42 U.S.C.§ 1983. DOG is incorrect.

       RAP 16.4(d) restricts the relief that we may grant through a PRP. It

provides, in pertinent part,"The appellate court will only grant relief by a personal

restraint petition if other remedies which may be available to petitioner are

inadequate under the circumstances."

       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




                                          2
No. 74711-8-1/3


Wn. App. 368, 989 P.2d 1197(1999). We again emphasize that a § 1983 action

is not an adequate alternative remedy against DOC.

       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. Significantly, however, a state—including agencies of a

state—is not a "person" within the meaning of § 1983. Lapides v. Bd. of Regents

of Univ. Sys. of Ga., 535 U.S. 613, 617, 122 S. Ct. 1640, 152 L. Ed. 2d 806

(2002); Will v. Mich. Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105

L. Ed. 2d 45(1989); Wash. State Republican Party v. Pub. Disclosure Comm'n,

141 Wn.2d 245, 285-86, 4 P.3d 808(2000); Smith v. State, 135 Wn. App. 259,

270, 144 P.3d 331 (2006).

       In this light, if Pedersen were to file a § 1983 action against DOC, his

claim would be dismissed. Plainly, obtaining relief through a § 1983 action

against DOC is not a remedy available to Pedersen that is adequate under the

circumstances.

       A § 1983 action is an inadequate alternative remedy for yet another

reason. If Pedersen were compelled to bring his constitutional claims in federal

court in a § 1983 action, he would be precluded from vindicating his state

constitutional rights:

       Section 1983 codified the Civil Rights Act of 1871, the purpose of
       which was "to enforce the provisions of the fourteenth amendment
       to the Constitution of the United States." Monell [v. Dep't of Soc.
       Servs.], 436 U.S.[658,]665,[98 S. Ct. 2018,56 L. Ed. 2d 611
       (1978)](quoting H.R. 320). The Civil Rights Act and the Fourteenth
       Amendment, were passed following the end of the Civil War to
       ensure that the rights of citizens secured by the federal Constitution
       were upheld by all the states. Neither the Act nor the Amendment


                                         3
No. 74711-8-1/4


      addresses the rights secured to citizens by the individual state
      constitutions. Accordingly, a claimed violation of a state
      constitutional right is not cognizable under§ 1983. Benn v.
       Universal Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004)
      ("Section 1983 does not provide a cause of action for violations of
      state statutes."); Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir.
      1994)(holding that a violation of a state constitutional right does not
      give rise to a federal cause of action under § 1983); Bills v.
      Henderson, 631 F.2d 1287, 1298-99 (6th Cir. 1980)(concluding
      that violation of a state procedural rule is not actionable in a § 1983
      suit)

Radvanskv v. City of Olmsted Falls, 395 F.3d 291, 313-14 (6th Cir. 2005)

(emphasis added). Thus, if we were to adopt DOC's argument, Pedersen would

not have a forum in which to vindicate his state constitutional rights.

       Accordingly, a § 1983 action against DOG is not an adequate alternative

remedy available to Pedersen. DOC's claim fails.

                                         Ill

       Pedersen contends that he was subjected to unconstitutional conditions of

confinement during his incarceration in intensive management units and in the

general prison population. We address his claims as to each category of

incarceration in turn.

                                         A

       Pedersen alleges that, while incarcerated in the intensive management

unit at the Monroe Correctional Complex and at the Washington State

Penitentiary, DOG subjected him to unconstitutional conditions of confinement.

       "Bringing a successful claim in a PRP requires 'a showing of restraint and

an unlawful aspect of the restraint." Arseneau, 98 Wn. App. at 371 (quoting In re

Pers. Restraint of Metcalf, 92 Wn. App. 165, 172, 963 P.2d 911 (1998)). "A



                                         4
No. 74711-8-1/5


petitioner is under a 'restraint' if the petitioner has limited freedom because. . .

the petitioner is confined." RAP 16.4(b). A restraint is unlawful when "[t]he

conditions or manner of the restraint of petitioner are in violation of the

Constitution of the United States or the Constitution or laws of the State of

Washington." RAP 16.4(c)(6).

       The relief available in a PRP is limited to "the removal of the illegal

restraint." In re Pers. Restraint of Sappenfield, 138 Wn.2d 588, 595, 980 P.2d

1271 (1999). As indicated, the circumstances under which we may grant relief

through a PRP are limited by RAP 16.4(d), which provides that "[t]he appellate

court will only grant relief by a personal restraint petition if other remedies which

may be available to petitioner are inadequate under the circumstances."

       In addition, we do not consider moot claims raised in a PRP. In re Pers.

Restraint of White, 25 Wn. App. 911, 912, 612 P.2d 10 (1980). A claim "is moot if

a court can no longer provide effective relief." In re Cross, 99 Wn.2d 373, 376-77,

662 P.2d 828(1983)(citing State v. Turner, 98 Wn.2d 731, 733,658 P.2d 658

(1983)).

                                          1

       Pedersen first contends that he was subjected to unconstitutional

conditions of confinement because DOC denied him adequate outdoor exercise

facilities while he was housed in the intensive management unit. However, in his

petition, Pedersen acknowledges that, as of March 2015, he was housed with the




                                          5
No. 74711-8-1/6


state penitentiary's general prison population, rather than in the intensive

management unit.1

        Because Pedersen is no longer incarcerated in the intensive management

unit, he is no longer subject to the allegedly unconstitutional conditions of

confinement from which he sought relief through his petition. We thus cannot

provide effective relief to Pedersen. His claim is moot.2

                                                 2

        Pedersen next contends that he was subjected to unconstitutional

conditions of confinement because, while incarcerated in the intensive

management unit, DOG correctional officers confiscated incoming mail

containing legal correspondence, newspaper clippings, paper copies of

photographs, and correspondence study books, confiscated incoming mail that

was sent to him in a padded envelope, and unlawfully opened his legal

correspondence outside of his presence. He also contends that, while he was

incarcerated in the intensive management unit, DOC violated his right to court

access by not providing him with adequate writing materials.

        Pedersen's claims are moot. As indicated above, Pedersen is no longer

incarcerated in the intensive management unit. In this way, Pedersen is no

longer subject to DOG policies regarding incoming mail and personal property for

inmates housed in intensive management units. In addition, Pedersen does not


           Pedersen's petition does not contend that the outdoor recreational facilities provided to
him while housed with the general prison population are inadequate.
         2 In addition, Pedersen has not shown that this issue is likely to recur. DOC's appellate
briefing indicates that it has submitted a budget request with the legislature seeking to obtain
funds to build additional outside recreational spaces for inmates housed in its intensive
management units.


                                                 6
No. 74711-8-1/7


show that, while incarcerated in the general prison population, he is beholden to

DOC correctional officers in the intensive management units who allegedly did

not follow DOC policies.

       Furthermore, insofar as Pedersen requests that we order that DOC return

the items that were allegedly confiscated from him, Pedersen's petition does not

set forth that DOC has retained those items in its possession.3 Plainly, we

cannot grant effective relief to Pedersen when he has not set forth that DOC has

retained in its possession the items that he seeks.

       Moreover, insofar as Pedersen believes that DOC correctional officers'

alleged acts have injured him, he may wish to seek damages, but "it is well

settled that a demand for monetary damages is not actionable by personal

restraint petition." In re Pers. Restraint of Williams, 171 Wn.2d 253, 256, 250

P.3d 112(2011)(citing Sappenfield, 138 Wn.2d at 595). Thus, we cannot grant

effective relief to Pedersen as to these claims because he has not shown that he

is still subject to the allegedly unlawful restraint of which his petition complained.

       Additionally, even if we could grant Pedersen effective relief as to his

claims, we are barred from doing so because Pedersen has adequate alternative

remedies against DOC in a civil action. RAP 16.4(d). Indeed, if Pedersen seeks

return of his incoming mail that he alleges that DOC wrongfully confiscated, he

has an adequate alternative remedy in a state court civil action against DOC.

Insofar as Pedersen believes that certain DOC policies are unconstitutional or




        3 Indeed, at least with regard to Pedersen's correspondence study books, DOC has
indicated the books were destroyed.


                                              7
No. 74711-8-1/8


that DOC correctional officers require additional training in its policies, he has an

adequate alternative remedy in a state court civil action against DOC.

       Thus, we cannot grant relief as to Pedersen's claims.

                                          B

       Pedersen next contends that, while incarcerated in the general prison

population, DOC correctional officers, pursuant to DOC policies, rejected legal

mail that was sent to him but did not include his prisoner identification number as

part of the mailing address and confiscated a copy of a judicial opinion that was

mailed to him by his attorney, rather than by an authorized publisher or vendor.

Pedersen further contends that DOC, in violation of its policies, did not notify him

that his incoming mail containing the copy of the judicial opinion in question was

rejected.

                                          1

       Pedersen contends that he is subject to an unconstitutional condition of

confinement in violation of his right to free speech because DOC rejected legal

correspondence sent to him because the mailing address did not include his

prisoner identification number.

      "A prisoner retains those First Amendment rights that are consistent with

his status as a prisoner or with the legitimate penological objectives of the

corrections system." In re Pers. Restraint of Parmelee, 115 Wn. App. 273, 281,

63 P.3d 800(2003)(citing Jones v. N. C. Prisoners' Labor Union Inc., 433 U.S.

119, 129, 97S. Ct. 2532, 53 L. Ed. 2d 629 (1977)). "As a condition of

confinement, an inmate's First Amendment right to send and receive mail lawfully



                                          8
No. 74711-8-1/9


may be restricted by prison regulations reasonably related to legitimate

penological interests." Livingston v. Cedeno, 164 Wn.2d 46, 56, 186 P.3d 1055

(2008)(citing Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S. Ct. 1874, 104 L.

Ed. 2d 459(1989); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed.

2d 64(1987)).

       When determining whether a prison regulation restricting an inmate's mail

is reasonably related to legitimate penological goals, we consider the four factors

set forth in Turner:

       "First, there must be a 'valid, rational connection' between the
       prison regulation and the legitimate governmental interest put
       forward to justify it." Second, courts consider whether there are
       "alternative means of exercising the [constitutional] right that remain
       open to prison inmates." Third, courts consider "the impact
       accommodation of the asserted constitutional right will have on
       guards and other inmates, and on the allocation of prison resources
       generally." And fourth, "the absence of ready alternatives is
       evidence of the reasonableness of a prison regulation."

Parmelee, 115 Wn. App. at 282(alteration in original)(citations and internal

quotation marks omitted)(quoting Turner, 482 U.S. at 89-90).

       Pedersen challenges DOC Policy 450.100. It reads, "All incoming mail

must include the offender's full committed name and DOC number."

       Addressing the first Turner factor, there is a valid, rational connection

between DOC's identification number policy and DOC's interest in prison

security. DOC has 16,000 inmates in its custody and many inmates have the

same or a similar name. Given that, DOC states that its identification number

mailing policy arises from its interest in avoiding security concerns that would

arise if an inmate's mail were accidentally delivered to a different inmate.



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No. 74711-8-1/10


Indeed, DOC acknowledges that a security concern arose in the past where an

inmate's mail, identifying the inmate as a sex offender, had been mistakenly

delivered to another inmate. As a result, the inmate for whom the mail was

intended had to be placed in protective segregation. In this way, a valid, rational

connection exists between DOC's prisoner identification incoming mail policy and

DOC's stated security interest. The first Turner factor is satisfied.

        The second Turner factor concerns whether Pedersen has alternative

means for exercising his constitutional right. There is no dispute that, after his

prisoner identification number was included in the mailing, Pedersen later

received the mail in question from his attorney. Therefore, Pedersen clearly has

alternative means of exercising his constitutional right to receive mail. The

second Turner factor is satisfied.

        The third and fourth Turner factors also weigh in DOC's favor. If DOC

were to accommodate Pedersen by removing its requirement that incoming mail

set forth a prisoner identification number, the risk of delivering mail to the wrong

inmate would remain and the burden on DOC to sort through the mail of similarly

named inmates would be significant. Moreover, there is an absence of readily

available alternatives that would be as effective as DOC's current policy at

balancing the inmate's constitutional right to receive mail and DOC's stated

security interest.4


         4 Pedersen suggests that a readily available alternative to DOC's policy exists in the form
of requiring that an inmate's incoming mail set forth a mailing address with the inmate's name and
number associated with the inmate's prison cell. However, Pedersen's suggestion ignores the
possibility that the inmate for whom the mail was intended could change prison cells based on the
inmate's behavior or other security concerns. Pedersen's suggestion appears less effective than
does DOC's challenged policy.


                                              - 10-
No. 74711-8-1/11


        Thus, DOC's incoming mail policy is reasonably related to a legitimate

penological interest and does not deprive Pedersen of his right to free speech.5

        Pedersen's claim fails.6

                                                 2

        Pedersen next contends that, while he was incarcerated in the general

prison population, DOC subjected him to an unconstitutional condition of

confinement by confiscating a copy of a judicial opinion that was mailed to him by

his attorney.

        As a preliminary matter, Pedersen requests that we order DOC to return

the confiscated copy of the judicial opinion to him. But Pedersen does not

provide us with a basis to determine that DOC still possesses the copy of the

judicial opinion. Because he has not made such a showing, we cannot provide

him effective relief as to this claim. Moreover, even if we could provide effective

relief as to Pedersen's claim, RAP 16.4(d) bars us from considering his claim




         5 Pedersen relies on two federal circuit court decisions to support his claim that DOC's
incoming mail policy is unconstitutional. Neither are availing.
         Pedersen first relies on Am. Civil Liberties Union Fund of Michigan v. Livingston County,
796 F.3d 636,643(6th Cir. 2015), for the claimed proposition that any correctional official action
regarding incoming legal mail is subject to heightened scrutiny. To the contrary, the Am. Civil
Liberties Union Fund of Michigan decision instead regarded the "'heightened concern with
allowing prison officials unfettered discretion to open and read an inmate's(legal] mail." 796 F.3d
at 643(emphasis added)(quoting Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003)). Thus,
Pedersen's reliance is inapposite.
         Pedersen next relies on Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), for the claimed
proposition that an inmate is deprived of the right to free speech when the inmate for whom
incoming mail is intended is clearly identifiable by the mailing and the inmate's mail is
nevertheless rejected. However, the Morrison court plainly elected not to decide that precise
issue. 261 F.3d at 906. Thus, Pedersen's reliance on Morrison is unavailing.
         6 Pedersen also contends that DOC violated his due process right when one of its
correctional officers did not notify him that the legal mail sent without his prisoner identification
number as part of its mailing address had been rejected. Pedersen's claim fails. The same
rationale that supports DOC's prisoner identification number policy also supports a DOC policy to
not notify an inmate that it had rejected improperly addressed incoming mail.
No. 74711-8-1/12


because he has an adequate alternative remedy available to him in the form of a

state court civil action against DOC.

         Pedersen next contends that DOC's policy to confiscate copies of judicial

opinions sent by third parties is an unconstitutional condition of confinement

because he is unable to access the judicial opinion in question through the state

penitentiary's legal resources. In this way, Pedersen's claim is less in regard to

DOC's mail rejection notification policy and more in regard to the adequacy of the

legal resources available to him in the state penitentiary. But Pedersen has not

provided us with any basis to determine that DOC's contract with its legal

resource providers in the state penitentiary is inadequate or showing other such

grounds that would allow us to grant effective relief. Thus, Pedersen's claim

fails.

                                          3

         Pedersen next contends that he was subjected to an unconstitutional

condition of confinement because, while housed in the general prison population,

DOC did not provide him with a rejection notice regarding his incoming mail

containing the copy of the judicial opinion that had been mailed to him by his

attorney. To be clear, with regard to this claim, Pedersen does not challenge the

constitutionality of the DOC policy to notify inmates when properly addressed

incoming mail is rejected. Rather, Pedersen challenges the single alleged

instance in which a DOC correctional officer did not notify him that the incoming

mail in question was rejected.




                                        - 12-
No. 74711-8-1/13


      "[A]n inmate 'has a Fourteenth Amendment due process liberty interest in

receiving notice that his incoming mail is being withheld by prison authorities."

Sorrels v. McKee, 290 F.3d 965, 972(9th Cir. 2002)(quoting Frost v. Symington,

197 F.3d 348, 353(9th Cir. 1999)). However, "the existence of... constitutional

issues alone does not excuse... potential mootness problems." State v. Cruz,

No. 93732-0, slip op. at 13(Wash. Nov. 2, 2017) http://www.courts.wa.gov/

opinions/pdf/937320.pdf.

       Pedersen's claim relies on a single incident that occurred to him in the

past. His petition does not show that this incident has a likelihood of recurring.

We thus cannot provide effective relief as to Pedersen's claim.

       Accordingly, Pedersen's petition is dismissed.




We concur:




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