IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint DIVISION ONE
Petition of:
No. 80083-3-I
ROBERT SPENCER ROSE,
UNPUBLISHED OPINION
Petitioner.
DWYER, J. — Robert Rose filed a personal restraint petition challenging
the sanctions imposed following a prison disciplinary hearing. To obtain relief in
this setting, Rose must demonstrate that he is being “‘restrained under RAP
16.4(b) and that the restraint is unlawful under RAP 16.4(c).’” In re Pers.
Restraint of Grantham, 168 Wn.2d 204, 213, 227 P.3d 285 (2010) (quoting In re
Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004)). Because
the Department of Corrections (DOC) expunged the challenged infraction from
Rose’s prison record, restored his good conduct time, and adjusted his early
release date, Rose is not under unlawful restraint on account of the challenged
infraction. We dismiss the petition as moot.
I
According to an October 2018 serious infraction report, a corrections
officer at Washington Corrections Center conducted a routine strip search of
Rose following a family visit. See DOC Policy 420.310(III)(3)(b) (requiring
No. 80083-3-I/2
mandatory strip search at Security Level 3, 4, and 5 facilities upon return from
contact visit). When Rose removed his sock, a small folded paper fell out. The
paper contained three small, colored tabs with an imprinted marker that identified
them as Suboxone. 1
The Department of Corrections charged Rose with violating WAC
137-25-030 (603) (introducing or transferring any unauthorized drug or drug
paraphernalia). Prior to the hearing, Rose requested witness statements from
two correctional staff members. And although the Department’s preprinted
discipline hearing notice form advised Rose that he did not have a right to access
video taken within the prison facility, he requested “all video” evidence.
Rose was present at the October 23, 2018 hearing and argued that the
video surveillance footage from the visitation room would refute the allegation
that his spouse transferred contraband to him during the visit. He claimed that
the folded paper was already on the floor when he entered the search area.
Rose also claimed that the Department did not follow its own policy during the
strip search because only one corrections officer was present during the
search. See DOC Policy 420.310 (III)(F) (requiring the presence of two
Department employees during strip searches).
The hearing officer reviewed video footage from the search area and
determined that Rose was not visible but only one Department employee was
present during the search. The hearing officer also viewed video evidence from
1Suboxone is a narcotic and analgesic combination used in the treatment of opiate
dependence.
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No. 80083-3-I/3
the visit room and observed Rose’s visitor make a “quick but deliberate” motion
to reach down and slip an item into Rose’s right shoe or sock. Based on the
photographs of the physical evidence, video evidence, the infraction report, and
witness statements, the hearing officer found Rose guilty of the infraction. The
penalty included the deduction of 75 days of good conduct time. Rose appealed
and the superintendent’s designee denied the appeal.
Rose filed this personal restraint petition.
II
Rose claims that he had a due process right to personally examine the
video surveillance evidence, that the hearing officer failed to consider all of the
relevant and available video evidence, and that the Department failed to comply
with its own policy requiring the presence of two correctional staff members
during a strip search. In response to Rose’s petition, the Department expunged
the infraction from his prison record, restored the good time credit previously
deducted, and adjusted his early release date.
Expungement effectively and adequately addresses Rose’s challenge to
this infraction. See In re Pers. Restraint of Higgins, 152 Wn.2d 155, 162-63, 95
P.3d 330 (2004) (while the court has exclusive jurisdiction over a personal
restraint petition, court rules do not prevent the Department from providing an
alternative remedy and the court may only grant collateral relief under RAP 16.4
if other available remedies are inadequate). Thus, Rose’s claims of error with
respect to this infraction are now moot and need not be considered. In re Det. of
Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983) (“A case is moot if a court
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can no longer provide effective relief.”); In re Pers. Restraint of White, 25 Wn.
App. 911, 912, 612 P.2d 10 (1980) (court need not consider moot issues).
Although Rose urges this court to address the merits of his petition despite its
mootness, we are unpersuaded that the circumstances warrant further review. In
re Pers. Restraint of Mines, 146 Wn.2d 279, 285, 45 P.3d 535 (2002) (court may
decide a technically moot petition that involves “matters of continuing and
substantial public interest.”).
Because Rose’s petition is moot, we dismiss the petition.
WE CONCUR:
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