Past issues of PLN have reported the ongoing efforts by the Washington attorney general's office to intimidate prisoners who file civil rights suits. Part of this strategy has included seeking costs against prisoners who lose such suits then taking every last penny from the prisoners account. We have reported on strategies to prevent the imposition of costs, [See: PLN , Vol. 4, No. 6], and a ruling which prevented the seizure of funds once the costs were imposed, [PLN , Vol. 5, No. 9].

Judge Quakenbush of the US district court in Spokane entered a Temporary Restraining Order (TRO) on September 14, 1995, which found Washington DOC Policy 200.000 to be unconstitutional as far as it allowed the seizure of funds from unsuccessful prisoner litigants. The case involves three consolidated suits by prisoners who lost civil rights suit, were assessed costs and had the money seized by the DOC. The DOC recognizes none of the statutory exemptions provided by state law, see RCW 6.15.010 and 6.27.150.

The court found that the DOC instituted DOC Policy 200.000 allowing for these seizures without any statutory authority and ahead of all other seizures that are allowed by law. The policy only covers cost bills arising from suits against the state of Washington, its employees and agents. Cost bills from other civil litigation is not referenced. The only notice given a prisoner before the funds are taken is a form stating the funds will be seized unless the prisoner can show he is not the prisoner referenced in the cost award, if the prisoner has a court order showing the collection is no longer valid; has already paid the costs or can show why he doesn't owe the debt. Any and all other objections, including poverty, will fail and the DOC will take the money.

After prisoners filed pro se motions for a TRO the court appointed Gonzaga University Legal Assistance to represent them. The court granted the plaintiff's motion for a TRO holding that the eleventh amendment did not prohibit this type of suit, i.e. against state officials in their individual capacities for violations of state law. See: Pena v. Gardner , 976 F.2d 469 (9th Cir. 1992), [ PLN , Vol. 4, No. 3]. The court held that the issues presented were federal constitutional issues over which it had jurisdiction.

The court noted that prisoners have a due process liberty interest in their prison trust account. See: Quick v. Jones , 754 F.2d 1521 (9th Cir 1985). Because the DOC lacks the authority to make law it cannot exceed its statutory authority. "Therefore, absent the statutory authority to unilaterally freeze and/or withdraw funds from prisoner trust accounts in order to pay civil judgments for costs bills owing to the Department of Corrections, prison officials have denied plaintiffs' due process rights." The court rejected the DOC's contention that payment of cost bills was allowed as "personal or incidental needs" under RCW 72.02.045(3) as several other statutes allow for deductions for specific items and none allows for the seizures at issue here.

"Because DOC Policy 200.000 goes beyond the DOC's statutory authority, the withdrawal of funds from Plaintiffs' prison trust fund accounts for the payment of civil judgment cost bills owing to the Department of Corrections is a violation of Plaintiff's due process rights under the United States Constitution."

The court also held that the adoption of DOC Policy 200.000, at the recommendation of the AG's office, was meant to chill prisoners' right to petition the court for the redress of grievances. The court noted that retaliation for accessing the courts is actionable by prisoners even if the retaliatory action, if taken for legitimate reasons, would not be. The court held no legitimate penological purpose underlay the policy. The record was clear that the purpose of the policy was to cut down on the number of lawsuits against the DOC by prisoners and to deter "meritless lawsuits against DOC."

"The assumption that every losing prisoner suit is, therefore, frivolous is faulty. Before a prisoner suit is ever served on the defendants, it has survived a thorough screening by the court designed to eliminate the service of frivolous prisoner complaints." Prisoner suits that are meritless are never served. "The court finds that the motivating, primary factor for DOC Policy 200.000 is to deter the amount of prisoner litigation against DOC personnel. This is a violation of DOC Policy 590.500, which defendants concede is essentially a directive not to retaliate against inmates who exercise their right of access to the courts.... More importantly, such retaliation is a violation of the prisoner's First Amendment rights to have access to the courts, in order to redress grievances for alleged unconstitutional conduct on the part of prison officials."

In granting the TRO the court ordered the DOC to refund the money seized if it was taken to pay a cost bill without a court ordered writ of attachment or garnishment or statutorily authorized process and to lift any freeze on prisoner accounts as a result of DOC Policy 200.000. The DOC was enjoined from seizing or freezing prisoner trust accounts for payment of civil judgments for cost bills owing to it absent statutory authority to do so or a court order. This unpublished ruling affects only Washington state prisoners and is an unpublished order. Washington prisoners who have suffered this type of seizure should consider requesting a refund from the DOC and then pursuing a civil rights action for its return. See: Richey v. Nerup , Case No. CS-93-362-JLQ (ED WA).

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