                                                               FILED
                                                           OCTOBER 31, 2019
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

FREDERICK L. COLVIN,                          )
                                              )         No. 36256-6-III
                     Appellant,               )
                                              )
       v.                                     )
                                              )
DEPARTMENT OF CORRECTIONS,                    )         UNPUBLISHED OPINION
STACY KULM, KASEY NOLAN,                      )
TANNER MINK, ERIK BURT, JANE                  )
DOE, JOHN DOE,                                )
                                              )
                     Respondents.             )

       FEARING, J. — Appellant Frederick Colvin appeals a summary judgment dismissal

of his complaint. He contends that, when dismissing his suit, the trial court failed to

notice that he pled a cause of action for negligence. Thus, dismissal of his civil rights

cause of action did not end the suit. We disagree because, in response to the defense’s

summary judgment motion and motion for reconsideration, Colvin never suggested he

sought recovery in negligence. To the contrary, he declared that he did not sue in

negligence.
No. 36256-6-III
Colvin v. Dep’t of Corr.


                                         FACTS

       This appeal brings new meaning to the phrase: “a case of mistaken identity.” On

July 16, 2013, the Washington State Department of Corrections (DOC) placed appellant

Frederick Colvin in the Washington State Penitentiary after he received an eighty-month

sentence for an assault. When an offender enters the custody of DOC, the department

assigns the offender a DOC number used for identification inside the correction system.

       In December 2013, while serving his prison sentence, Frederick Colvin discovered

that DOC inmate banking took $11 per month for a debt Colvin did not owe. After an

investigation, DOC learned that it assigned Colvin an identification number already

assigned to another offender. The mistake occurred because remarkably a previous

inmate shared the same name, ethnicity, height, weight, and date of birth as Colvin.

Appellant Frederick L. (Londale) Colvin, born January 13, 1968, and Frederick L.

(Lamont) Colvin, also born January 13, 1968, were two distinct individuals inside the

penal system. On April 24, 2014, DOC assigned a new DOC number for Frederick

Londale Colvin.

       For the safety and security of inmates and DOC employees, DOC punishes an

inmate for possessing property found in his or her possession that does not bear his or her

inmate number. For that reason, DOC removed Frederick Londale Colvin’s JPay4 tablet

player from Colvin’s possession and sent it to the manufacturer for reprogramming with

Colvin’s new correct DOC inmate number. As a result, Colvin temporarily lost access to

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Colvin v. Dep’t of Corr.


his tablet. His new DOC account was credited for the cost of the JPay4 player and all

music he previously purchased.

       For Luddites, a JPay4 player is a tablet that allows an inmate to download songs

and listen to the songs at his or her leisure. The inmate can also play games on the player

and listen to FM radio. The tablet connects to a limited e-mail account, an eBooks store,

a downloadable movie section, and the inmates’ prison commissary account. Each JPay4

tablet is programmed with the individual inmate’s DOC identification number so that one

prisoner does not steal another offender’s player.

       In this suit, Frederick Colvin alleges additional consequences resulting from his

assignment of the other Colvin’s DOC number. Colvin claims that DOC delayed his

dental care one week and delayed an early release hearing due to the identification

number mistake. Colvin contends that DOC delayed his mail and interfered in his work

classification and release date. DOC denies these allegations.

                                      PROCEDURE

       Frederick Colvin filed a complaint against DOC and four DOC employees.

Colvin captioned his complaint: “Complaint for Civil Rights Violations & Negligence.”

Clerk’s Papers (CP) at 3-13 (some capitalization omitted). The singular heading in

boldface “42 USC § 1983” lies under the “Claims and Causes of Action” section of the

complaint. CP at 10 (some capitalization omitted). The claims and causes of action

section of the complaint does not contain the word “negligence.” Paragraph 4.4 in the

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No. 36256-6-III
Colvin v. Dep’t of Corr.


causes of action section reads, however:

               4.4 Fro[m] 7/6/13 through present, Defendants acting as principals
       or, by and through their agents did knowingly and willfully violate
       Plaintiff’s civil rights under the Washington State Constitution Article 1
       § 3, [7,] 10[, 14] and United States [Fourth,] Fifth and Fourteenth
       Amendments by neglecting to timely and properly reassign Plaintiff a
       correct DOC inmate number.

CP at 11 (emphasis added); see also CP at 11, section 4.5. Other than in the complaint

caption and the footer of each page, Colvin inserted the word “negligence” one other time

in the “damages” section. In the first paragraph of the damages section, Colvin pled:

              Plaintiff has sustained damages proximately caused by Defendants’
       negligence in causing and failing to promptly correct the assignment of the
       wrong DOC number to Plaintiff, and/or its deliberate indifference to failing
       to timely correct the error in his DOC-assigned offender number . . . .

CP at 12 (emphasis added).

       All defendants moved for summary judgment requesting dismissal on the

following grounds: (1) Frederick Colvin’s 42 U.S.C. § 1983 claim of “violation of

constitutional civil rights” under state law is not a cognizable claim, (2) a 42 U.S.C.

§ 1983 claim based on alleged negligence of state employees cannot stand especially

when the claimant possesses a post-deprivation remedy, (3) the individual defendants are

entitled to qualified immunity, (4) individual defendants lacked personal involvement in

the conduct about which Colvin complained, and (5) Colvin’s claim is time-barred. The

defendants’ motion for summary judgment requested dismissal of Colvin’s “claims.”

CP at 66.

                                              4
No. 36256-6-III
Colvin v. Dep’t of Corr.


       In response to the defense’s summary judgment motion, Frederick Colvin argued

that he presented sufficient evidence, to defeat summary judgment, of a loss of liberty

interests resulting from DOC’s failure to timely correct the wrong assignment of a DOC

number to him. Those interests protected under the federal constitution included receipt

of mail, timely medical care, and privileges such as work classification and release dates.

More importantly, in response to the summary judgment motion, Colvin conceded that

evidence of negligence, without a showing of deliberate indifference by DOC staff,

would not sustain a suit under 42 U.S.C. § 1983.

       Following oral argument, the trial court granted the defense’s motion for summary

judgment in part and denied it in part. The court dismissed all claims against individual

defendants. The court dismissed the claims against DOC for alleged mail delay and

property deprivations. The court denied the motion as to delay in dental treatment and in

an early release hearing. The written ruling left the DOC as the only remaining

defendant.

       DOC moved for reconsideration of the two remaining claims for trial: alleged

delays in dental treatment and early release hearings. DOC argued that Frederick

Colvin’s remaining two claims should be dismissed because, under a 42 U.S.C. § 1983

claim, a state agency such as DOC is not a “person” subject to suit. CP at 135. In

response, Frederick Colvin asserted no argument that DOC had mischaracterized his

action or that he had pled a cause of action for negligence. Colvin instead emphasized

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No. 36256-6-III
Colvin v. Dep’t of Corr.


that state actors acted with deliberate indifference. In its reply supporting its motion for

reconsideration, DOC wrote:

              Plaintiff through counsel in the current matter before this Court has
       made abundantly clear that he is not bringing this action as one under a
       negligence theory, but explicitly as a civil rights suit under 42 U.S.C.
       § 1983. Thus, there is no need for this Court to consider analysis under
       RCW 4.92.090 [state waiver of immunity] as it is not applicable to this
       matter where no tortious theory has been pled, and where no analogy
       between the conduct complained of and any conduct of a private individual
       would be actionable.

CP at 146 (emphasis added) (footnote omitted). Colvin did not later dispute these

assertions by DOC.

       The trial court accepted Frederick Colvin’s assertion that constitutional torts

formed his two remaining claims. The court observed the rule that a state agency is not a

“person” for purposes of liability under 42 U.S.C. § 1983. On that basis, the trial court

dismissed, on summary judgment, Colvin’s two remaining claims. The summary

judgment order read: “the above action is hereby dismissed.” CP at 152.

                                  LAW AND ANALYSIS

       On appeal, Frederick Colvin contends that he pled a cause of action in negligence

and the trial court committed error by dismissing the cause of action on summary

judgment. Colvin does not appeal dismissal of his civil rights claim.

       Frederick Colvin highlights that Civil Rule 8 affords a liberal reading of pleadings.

He emphasizes that the caption of the complaint and the first paragraph under the


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No. 36256-6-III
Colvin v. Dep’t of Corr.


damages section of this complaint employed the word “negligence” and paragraph 4.4 of

his complaint inserted the word “neglect.” We question whether Colvin adequately pled

a state cause of action for negligence when the words of “negligence” and “neglect” fall

in the context of his civil rights cause of action. Nevertheless, we do not base our ruling

on any failure to plead negligence in the complaint.

       When DOC and its employees moved for summary judgment and asked for

dismissal of Colvin’s claims, Frederick Colvin never contended that he had asserted a

state law claim in negligence. In response to the summary judgment motion, Colvin

stated that he agreed that he needed to show deliberate indifference to recover. Assuming

he limited this concession to only a civil rights theory, he never expressly stated such.

More importantly, when the trial court entered a summary judgment order that dismissed

the action, Colvin never protested that his negligence claim remained pending. Colvin

filed his notice of appeal within thirty days of the summary judgment order of dismissal.

If Colvin had an unadjudicated claim pending in the trial court, he had no right to appeal.

RAP 2.2(1); CR 54(b).

       RAP 2.5(a) formalizes a fundamental principle of appellate review. The first

sentence of the rule reads:

               Errors Raised for First Time on Review. The appellate court
       may refuse to review any claim of error which was not raised in the trial
       court.



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No. 36256-6-III
Colvin v. Dep’t of Corr.


A familiar procedural principle declares that a right of any sort may be forfeited by the

failure to make timely assertion of the right before a tribunal having jurisdiction to

determine it. United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993).

       Good sense lies behind the requirement that arguments be first asserted before the

trial court. The prerequisite affords the trial court an opportunity to rule correctly on a

matter before it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293

P.3d 1177 (2013). The rule requiring a position to be asserted before the trial court

serves the goal of judicial economy by enabling trial courts to correct mistakes and

thereby obviate the needless expense of appellate review, facilitating appellate review by

ensuring that a complete record of the issues will be available, and preventing adversarial

unfairness by ensuring that the prevailing party is not deprived of victory by claimed

errors that he had no opportunity to address. State v. Strine, 176 Wn.2d 742, 749-50

(2013); State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).

       Because Frederick Colvin never argued before the trial court that he pled and

sought recovery in negligence, we decline to address whether facts support such a claim.

We even decline to decide whether he properly pled the cause of action.




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No. 36256-6-III
Colvin v. Dep 't of Corr.


                                       CONCLUSION

       Frederick Colvin either did not assert a cause of action in negligence before the

trial court or he failed to sufficiently inform the trial court that he pied the cause of

action. We affirm the trial court's summary dismissal of Colvin' s entire complaint.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                            Fearing, J.

WE CONCUR:




                                            Pennell, J.




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