Opinion
No. 26212-0-III.
April 22, 2008.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 06-2-00469-2, Maryann C. Moreno, J., entered May 18, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Thompson, J. Pro Tem.
Kurt Engle was convicted of child rape and child molestation of his two children. The judgment and sentence stated that he was to have no-contact with his victims or their families. The Department of Corrections (DOC) determined that having photographs of his children and their family violated the no-contact order. When Mr. Engle failed to pay to mail the photographs out of the prison, DOC destroyed the photographs. Mr. Engle brought suit, alleging DOC was negligent in confiscating and destroying his photographs. To bring a negligence claim, Mr. Engle must first establish the existence of a duty. Concluding that DOC did not owe any duty to Mr. Engle in either confiscating or destroying Mr. Engle's photographs, we affirm the trial court's grant of summary judgment.
FACTS
Kurt Engle was convicted of child molestation and child rape involving his daughter and his son. Mr. Engle was to have "absolutely no contact with any of the victims of this case or their families" or any minor children. Clerk's Papers (CP) at 77. At the time Mr. Engle was incarcerated, he had about 50 family photographs. Mr. Engle had these photographs for six years, without incident.
In 2001, Sergeant Jack Richardson took charge of Mr. Engle's unit. During a routine search of Mr. Engle's cell, Sergeant Richardson found photographs of Mr. Engle's children and their families. Sergeant Richardson interpreted the no-contact provision prohibiting Mr. Engle's possession of photographs of his children, their families, or other minor children. Sergeant Richardson confiscated the photographs. Mr. Engle was charged with an infraction for violating the no-contact order.
At the disciplinary hearing, it was determined that the photographs of the victims violated the no-contact order and should be destroyed. Mr. Engle stated that the sentencing court told him he could have family photographs as long as they did not come from any of the prohibited persons. Mr. Engle expected the photographs that were not of his children would be returned to him. However, the additional photographs of family members of the victims were confiscated as well. The total number of photographs confiscated was 279.
Pursuant to DOC's policy, Mr. Engle was given 30 days to ship his photographs to someone outside the prison at his own expense or they would be destroyed. Mr. Engle filed a form authorizing the transfer of funds from his inmate bank account to cover postage; however, he did not have enough money in his bank account. Mr. Engle was notified of nonsufficient funds on March 10, 2003, and given 30 days to come up with the money.
Mr. Engle sent a letter addressed to "Monty Prince" to Mr. Engle's home address where he hoped his mother would receive it and send him money. However, the letter was sent back, at which point Mr. Engle was charged with another infraction of violating the no-contact order.
CP at 62.
On March 17, Mr. Engle's account showed an $8 deposit. This amount was more than sufficient to pay the $4.08 in postage. Between March 17 and April 7, Mr. Engle made a number of commissary purchases. By April 10, Mr. Engle had a balance of $.06. On April 15, the photographs were destroyed. Mr. Engle filed suit alleging several torts including negligence, gross negligence, and reckless infliction of emotional distress. The court granted the State's motion for summary judgment. This appeal followed.
ANALYSIS
Summary judgment is reviewed de novo. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The party moving for summary judgment has the burden to show there is no genuine issue of material fact. Regan v. City of Seattle, 76 Wn.2d 501, 503, 458 P.2d 12 (1969). All inferences are drawn in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
Mr. Engle's judgment and sentence states: "The offender is to have absolutely no contact with any of the victims of this case or their families." CP at 77. At Mr. Engle's disciplinary hearing, it was determined that contact with photographs constituted indirect contact with the victims and their family members. The photographs were destroyed pursuant to DOC's policy.
Mr. Engle contends that DOC was negligent in not allowing him to possess photographs of his family and for failing to mail his photographs out of the prison when it was determined that they were contraband.
Mr. Engle points out that inmates are allowed to have photographs under DOC Policy 440.000(IV)(A), which reads as follows:
2. Unframed personal/family photographs, personal mail, journals or diaries, writing pads, pencils, pens, and personal papers in an amount not to exceed that which may be contained in a 432 cubic inch box (i.e., 6" x 6" x 12" or any other dimensions that do not exceed 432 cubic inches).
Mr. Engle argues that DOC was negligent in failing to follow DOC Policy 440.000(IV)(A)(2). To bring a negligence claim, the plaintiff must establish (1) the existence of a duty, (2) breach of that duty, (3) injury to the plaintiff, and (4) proximate cause. Keller v. City of Spokane, 104 Wn. App. 545, 551, 17 P.3d 661 (2001), aff'd, 146 Wn.2d 237, 44 P.3d 845 (2002).
Prison officials are accorded deference when they execute policies that, in their judgment, are necessary to preserve internal order and discipline. Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). "Unlike administrative rules and other formally promulgated agency regulations, internal policies and directives generally do not create law." Joyce v. Dep't of Corr., 155 Wn.2d 306, 323, 119 P.3d 825 (2005). At most, an internal policy "may provide evidence of the standard of care and therefore be evidence of negligence." Id. at 324.
DOC Policy 440.000(IV)(A)(2) does not create a duty for prison authorities to allow Mr. Engle to possess photographs of his victims or their families. After a hearing, DOC determined that Mr. Engle could not have photographs of his victims and their families because it violated the judgment and sentence. Even though this determination was inconsistent with DOC Policy 440.000(IV)(A)(2), DOC's decision does not establish the breach of a standard of care. Moreover, prison authorities followed DOC Policy 440.000(X)(A) and gave Mr. Engle the opportunity to ship his photographs outside the correction center.
DOC Policy 440.000 states:
X. Disposition Options
A. Offenders shall be allowed to dispose of their own excess or unauthorized personal property by shipping it to a non-incarcerated person designated by the offender on DOC 21-139 Property Disposition at the offender's expense. Offenders shall have 30 ays to accomplish this disposition.
1. If the offender is without funds, refuses to pay the required postage, or refuses to designate an individual to receive the property, such items shall be:
a. Donated to a charitable organization per WAC 137-36-040; or
b. Destroyed by staff per DOC 420.375 Contraband Management.
Here, it is undisputed that Mr. Engle was given at least 30 days to pay for the postage. The dispute arises because Mr. Engle did, at one point during the 30 days, have enough money in his account for postage. Mr. Engle had an $8 deposit on March 17, but his account statement shows activity in his account such that by April 10, he had only $.06 in his account.
Mr. Engle also argues that the State had a duty to allocate funds from his account to pay for postage. Duty is a question of law. Baynes v. Rustler's Gulch Syndicate, LLC, 142 Wn. App. 335, 338, 173 P.3d 1000 (2007). However, DOC Policy 440.000 requires the offender to ship the excess or unauthorized property, not DOC. Also, the policy states that "[o]ffenders shall have 30 days to accomplish this disposition." DOC Policy 440.000(X)(A).
Mr. Engle had to file a form that authorized DOC to transfer funds from his account to pay for postage. He received a notice of nonsufficient funds that stated: "If you have not provided the necessary funds [within 30 days] your property will be disposed of." CP at 137. The notice also stated: "Please write on payment `FOR PROPERTY SHIPMENT' so that funds are allocated separately." CP at 137. This form required Mr. Engle to provide the postage money to the mailroom. The form also provides that it is Mr. Engle's responsibility to allocate the funds and inform DOC.
Neither DOC's policy nor the directions on the nonsufficient funds form created a duty to check Mr. Engle's bank account before destroying his photographs. The language of the notice of nonsufficient funds required Mr. Engle to take the affirmative step of providing the funds and informing DOC.
Mr. Engle failed to identify any duty DOC owed to him. Therefore, we affirm the trial court's grant of summary judgment.
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.
WE CONCUR:
Schultheis, C.J.
Thompson, J. Pro Tem.