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· supreme Court Clerk 

FILE 

IN CLERK'S OFFICE 

SUPREME COURT, STATE OF 

WASHINGTON 

APR 0 '? 2016 

DATE ____ _ 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STEVEN P. KOZOL, 

Respondent, 

V. 

WASHINGTON STATE 

DEPARTMENT OF CORRECTIONS, 

Petitioner. 

NO. 9 2 1 9 0- 3 

ENBANC 

Filed: APR 0 '? 2016 

PER CURIAM-Prison inmate Steven Kozol seeks to file a statutory 

petition for writ of review under chapter 7.16 RCW to challenge a prison disciplinary 

sanction imposed by the Department of CoiTections. On Kozol' s appeal from the 

superior court's denial of his request to present a writ petition, the Court of Appeals 

held that Kozol could petition for such a writ in challenging a prison disciplinary 

decision. But because a personal restraint petition is an "adequate remedy at law" for 

challenging such a decision in this case, Kozol cannot establish a basis for a statutory 

writ. Wy therefore grant the State's petition for review and reverse the Court of 

Appeals. 

FACTS 

The Department of ColTections alleged that Kozol committed a serious 

infraction as defined under WAC 137-25-030 (Category D, 740: committing fraud or 
No. 92190-3 PAGE2 

embezzlement, or obtaining goods, services, money, or anything else of value under 

false pretenses). A disciplinary hearing officer found Kozol guilty of the infraction 

and imposed a sanction of 10 days of cell confinement. There was no apparent loss of 

early release credit. 

Ordinarily, an inmate challenging a prison disciplinary sanction does so by 

personal restraint petition. See, e.g., In re Pers. Restraint of Grantham, 168 Wn.2d 

204, 205, 227 P.3d 285 (2010). But Kozol instead filed a prose action for declaratory 

relief in Thurston County Superior Court, alleging among other things that the 

department violated disciplinary hearing procedures set forth in chapter 137-28 WAC. 

He later amended his complaint to name individual defendants and assert additional 

causes of action, including a claim for damages. 

The superior court subsequently dismissed all of Kozol' s causes of actions 

apart from an apparent tort claim for damages, which the court reserved. Before the 

hearing for presentation of the dismissal order, Kozol moved for leave to file a second 

amended complaint, dropping his request for monetary damages and adding a petition 

for a constitutional writ for certiorari under article IV, section 6 of the Washington 

Constitution or a statutory writ of review under chapter 7.16 RCW. The superior court 

denied Kozol' s motion to amend, reasoning that the writ petition was outside the 

scope of the presentation hearing, and dismissed the entire action with prejudice. 1 

Kozol appealed to Division Two of the Court of Appeals. The court 

affirmed the dismissal of the declaratory judgment action but reversed denial of 

Kozol's motion to amend his complaint to seek a statutory writ of review, holding that 

Kozol could seek such a writ in challenging a prison disciplinary decision not 

involving loss of good conduct credits. The court declined to address whether Kozol 

1 Kozol was assisted by counsel when he moved to amend his complaint. Counsel 

withdrew after the superior court entered the dismissal order. Kozol has been acting pro se 

since then. 
No. 92190-3 PAGE3 

could seek a constitutional writ. See Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 

518, 533, 79P.3d 1154 (2003) (constitutional writ will not issue if other avenues for 

relief, such as direct appeal or statutory writ, are available). The State filed a petition 

for review. 

DISCUSSION 

Kozol is entitled to a statutory writ of review under RCW 7.16.040 if he 

establishes "(1) that an inferior tribunal (2) exercising judicial functions (3) exceeded 

its jurisdiction or acted illegally, and (4) there is no adequate remedy at law."2 

Haynes v. Leavenworth, 118 Wn.2d 237, 244, 821 P.2d 1204 (1992). The Court of 

Appeals held that Kozol satisfied all four elements. Without addressing all of the 

statutory elements and whether Kozol met them, dispositive here is whether Kozol has 

an "adequate remedy at law," making relief by statutory writ unavailable. 

One remedy at law for persons under restraint is the personal restraint 

petition. RAP 16.3. But the Court of Appeals held that a personal restraint petition is 

not an adequate. remedy in this case because Kozol was not under "restraint" as a 

result of his prison discipline, reasoning that his sanction of cell confinement did not 

constitute an "atypical and significant hardship ... in relation to the ordinary incidents 

of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 

418 (1995). But a personal restraint petitioner is under "restraint" if he is "confined." 

RAP 16.4(b). Kozol is an inmate "confined" within a state correctional facility. He is 

2 The statute states: 

A writ of review shall be granted by any court, except a municipal or district 

court, when an inferior tribunal, board or officer, exercising judicial 

functions, has exceeded the jurisdiction of such tribunal, board or officer, or 

one acting illegally, or to correct any erroneous or void proceeding, or a 

proceeding not according to the course of the common law, and there is no 

appeal, nor in the judgment of the court, any plain, speedy and adequate 

remedy at law. 

RCW 7.16.040. 
No. 92190-3 PAGE4 

thus under "restraint." See In re Pers. Restraint of Dyer, 143 Wn.2d 384, 391, 20 P .3d 

907 (200 1) (noting that incarcerated petitioner was "restrained" as defined under RAP 

16.4). 

Aside from the issue of restraint, the most relevant question in determining 

whether a personal restraint petition is an adequate remedy at law is whether Kozol's 

restraint is "unlawful" and thus addressable by such a petition. RAP 16.4(a). An 

inmate's restraint may be unlawful for a number of reasons, including that the 

"conditions or manner of the restraint of [the] 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 Court of Appeals is correct that a prison disciplinary sanction that does 

not implicate a protected liberty interest is not subject to minimum constitutional due 

process requirements. Sandin, 515 U.S. at 484; In re Pers. Restraint of Granquist, 138 

Wn.2d 388, 397-98, 978 P.2d 1083 (1999). And we are mindful that the Washington 

Administrative Code provision outlining the general purposes of the prison discipline 

procedural guidelines states that those rules "do not create any procedural or 

substantive rights in any person, including any liberty interests in time credits, levels 

of custody, classification status, or other privileges." WAC 137-28-140. But contrary 

to that sweeping agency statement, this court has held that a "serious" infraction that 

results in a loss of earned early release credit implicates a liberty interest subject to 

minimum due process protections. Granquist, 138 Wn.2d at 397-98. 

Though Kozol did not lose early release credits, he was found guilty of a 

serious infraction. See WAC 137-25-030 (Category D, 740). Imnates sanctioned for 

serious infractions are subject to specific disciplinary procedures and safeguards set 

forth in department regulations. See, e.g., WAC 137-28-285 (inmate's rights to fair 

and impartial hearing, to be present at hearing, to testify or remain silent, to call 
No. 92190-3 PAGES 

witnesses or present documentary evidence, and to appeal decision), -280(3) (inmate 

confined to cell pending disciplinary shall have reasonable opportunity to prepare 

defense), -290(2) (inmate to be given copy of serious infraction report and advised of 

rights), -300(1) ("The hearing officer shall ensure that the offender's rights are 

protected throughout the hearing."), -31 0( 4 ), ( 5) (inmate's right to written decision 

and to appeal to superintendent).3 These administrative rules constitute the laws of 

Washington for purposes of determining when an inmate is under "unlawful restraint" 

as defined under RAP 16.4(c)(6). See In re Pers. Restraint of Cashaw, 123 Wn.2d 

138, 149 n.6, 866 P.2d 8 (1994). Kozol alleges that the department committed 

multiple regulatory violations in relation to his disciplinary proceeding, and thus he 

effectively alleges that his restraint is unlawful, making the personal restraint petition 

an appropriate remedy. 

We further note that although the discipline imposed in this instance did not 

result in a loss of early release credit-and Kozol may have already served his tenn of 

cell confinement-the infraction is a factor a hearing officer may consider when 

determining the sanction imposed on any later infraction. WAC 137-28-350(3). Thus, 

a serious infraction that does not result in the loss of early release credit still casts a 

shadow over an imnate's institutional history. Kozol asserts, for instance, that the 

disciplinary action here adversely affected his eligibility for preferred housing status. 

If this factual assertion and the allegations of regulatory violations are true, Kozol 

could argue in a personal restraint petition that the manner of his restraint violates 

Washington law. RAP 16.4(c)(6).4 Thus, a personal restraint petition is an adequate 

remedy at law in this situation, precluding Kozol from seeking relief by statutory writ 

3 The relevant regulations were amended effective January 8, 2016. Though Kozol 

was sanctioned under the previous versions of these regulations, we cite the current 

codifications for purposes of this opinion since they generally encompass the same 

procedural safeguards. 4 We offer no opinion as to the merits ofKozol's claims. 
No. 92190-3 PAGE6 

of review. RCW 7.16.040. The Court of Appeals erred in holding that Kozol could 

seek relief by statutory writ of review. 

The State's petition for review is granted, and the Court of Appeals 1s 

reversed. 5 

5 Kozol filed a Motion for Appointment of Counsel that we deny, given the 

disposition by a per curiam opinion.