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Personal Restraint Petition Remanded to DOC in Washington State

On October 27, 2008, a Washington State Court of Appeals filed an unpublished opinion in the matter of a personal restraint petition filed by prisoner Toby Joseph Masse challenging punishment imposed pursuant to a prison disciplinary hearing.

Having received a disciplinary infraction for “failure to obey an order,” Masse contends the infraction was written in retaliation for his request to the courts seeking protective custody. Since Masse admitted guilt at the disciplinary hearing, the DOC hearing officer was primarily faced with the assessment of punishment. In assessing punishment, the hearing officer apparently invoked a sanction from a previously dismissed infraction, which the DOC admitted was improper. For that reason, the Court remanded Masse’s petition to the DOC for reassessment of the punishment. See: In re the Personal Restraint of Masse, Wn. App., Div. 1, No. 61270-1-I (Oct. 27, 2008).

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Related legal case

In re the Personal Restraint of Masse

In the Matter of the Personal Restraint of Toby Joseph Masse, Petitioner.

No. 61270-1-I


2008 Wash. App. LEXIS 2557

October 27, 2008, Filed


¶1 Per Curiam ? Toby Masse has filed a personal restraint petition challenging the procedure and result of a prison disciplinary hearing. To prevail here, Masse must show that he is unlawfully restrained. 1 To establish unlawful restraint, he must show either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a ?complete miscarriage of justice.? 2 However, where a petitioner had no prior or alternative means of obtaining state judicial review, he must show only that he is restrained and that the restraint is unlawful. 3 In order to prevail in a personal restraint petition, a petitioner must set out the facts underlying the challenge and the evidence available to support the factual allegations. 4 Bare assertions and conclusory allegations are insufficient to gain consideration of a personal restraint [*2] petition. 5


1 See In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994); RAP 16.4.

2 In re Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).

3 In re Pers. Restraint of Garcia, 106 Wn. App. 625, 629, 24 P.3d 1091, 33 P.3d 750 (2001).

4 In re Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992).

5 Rice, 118 Wn.2d at 886.

¶2 Masse received an infraction for failure to obey an order to return to his cell. He contends that the infraction was retaliation for his request to the courts for protective custody. The State may not retaliate against inmates to punish their exercise of constitutional rights. 6 But Masse concedes that he committed the infraction, and there is no evidence of a causal relation between his action in the courts seeking protective custody and this infraction.


6 In re Pers. Restraint of Addleman, 139 Wn.2d 751, 754, 991 P.2d 1123 (2000).

¶3 Masse contends that he was denied the right to present documentary evidence at his hearing. In prison disciplinary hearings, inmates are entitled to notice of the infraction, to present evidence, and to receive a written statement of the evidence relied on for the decision. [*3] 7 The evidence Masse refers to was entirely unrelated to the infraction at issue as it consisted of letters to various officials requesting protective custody. The only issue before the hearing officer was whether Masse had committed the charged infraction of refusing an order to return to his cell. Masse has not shown that the hearing officer's actions were so arbitrary and capricious as to deny him a fundamentally fair hearing. 8


7 Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

8 In re Krier, 108 Wn. App. 31, 37-38, 29 P.3d 720 (2001).

¶4 Masse also contends that the Department of Corrections (DOC) erred in invoking a sanction from a previous infraction that had already been dismissed at the time of the hearing on this infraction. The DOC agrees that a hearing officer cannot invoke a sanction from a previously dismissed infraction. Because there is no question that Masse was guilty of the current infraction, the DOC should reassess the sanction.

¶5 The personal restraint petition is remanded to the DOC for reassessment of the sanction.