Opinion
No. 108,180.
2013-06-14
Marcus B. WASHINGTON, Appellant, v. STATE of Kansas, et al., Appellees.
Appeal from Butler District Court; Charles M. Hart, Judge. Marcus B. Washington, appellant pro se. Michael J. Smith, legal counsel, of Kansas Department of Corrections of El Dorado, for appellees.
Appeal from Butler District Court; Charles M. Hart, Judge.
Marcus B. Washington, appellant pro se. Michael J. Smith, legal counsel, of Kansas Department of Corrections of El Dorado, for appellees.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Marcus B. Washington appeals from a judgment of the trial court dismissing his petition for declaratory judgment based on the doctrines of res judicata and collateral estoppel. On appeal, Washington contends that the trial court erred in dismissing his current cause of action under either res judicata or collateral estoppel. We disagree; accordingly, we affirm.
Washington, an inmate at the El Dorado Correctional Facility, filed a petition for declaratory judgment under K.S.A. 60–1701. In his petition, Washington challenged the adoption and application of K.A.R. 44–12–313, which prohibits inmates from possessing sexually explicit materials. The State moved to dismiss the petition based on res judicata. The State argued that Washington had previously challenged K.A.R. 44–12–313 in the Leavenworth County District Court, which resulted in an opinion adverse to his position from this court. See Washington v. Werholtz, 40 Kan.App.2d 860, 197 P.3d 843 (2008), rev. denied 289 Kan. 1286 (2009).
After a hearing on the State's motion to dismiss, the trial court granted the State's motion. Washington moved to reconsider, which the trial court denied.
Did the trial court err in finding that Washington's petition was barred by res judicata ?
Washington maintains that the trial court erred in finding that his petition was barred by res judicata. Washington argues that the only issue decided in his previous case was whether the regulation passed the Turner test set out in Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ( Turner test is a four-factor test to determine the reasonableness of prison regulations which infringe on constitutional rights of prisoners). Washington further argues that the Turner test does not apply to the issues raised in his current petition and, therefore, his petition should not have been dismissed. Washington also argues that the issues raised in this petition could not have been raised in his previous case because they occurred after the previous case.
In response, the State contends that the trial court was correct in dismissing Washington's petition based on res judicata. The State maintains that Washington is not entitled to a second “bite at the apple” because he previously challenged the same regulation and lost. The State notes that the regulation has been reviewed and approved by the court and that the regulation has not been altered since Washington challenged it the first time.
Washington's previous case challenging the regulation
In the trial court's journal entry of dismissal, it discussed Washington's previous case challenging the regulation:
“On September 15, 2006, Plaintiff [Washington] filed a Petition for Writ of Habeas Corpus pursuant to K.S.A. 60–1501 in Leavenworth County Case No.2006CV498. In that case, Plaintiff claimed that his 1st Amendment right to freedom of speech and his 14th Amendment right to due process were violated because K.A.R. 44–12–313 is unconstitutional as written and as applied, and KDOC's ‘contradictory definitions of what constitutes “nudity” ’ led to arbitrary actions by prison officials. He [Washington] claimed that he was entitled to habeas relief, ‘based upon the constitutional promulgation and application of KAR [ sic ] 44–12–313.’ “Specifically, Plaintiff claimed that:
• the ‘purpose’ prong of K.A.R. 44–12–313 was often not followed;
• constitutionally protected material like autobiographies and documentaries are censored;
• low level security staff determine what is sexually explicit;
• KAR [ sic ] 44–12–313 and IMPP 11–115 contain contradictory definitions of nudity, allowing prison officials to act arbitrarily; and
• the regulation punishes prisoners for expressing themselves, including prohibiting ‘express[ing] themselves intimately with their significant other.” ’
Plaintiff sought a revision of K.A.R. 44–12–313, a single definition of ‘nudity’ within KDOC, and due process in censorship proceedings.
“Plaintiff was represented by counsel in 06CV498. Both parties briefed the issues, a bench trial was held where both parties were permitted to question witnesses and present evidence, both parties subsequently filed proposed findings of fact and conclusions of law, and the court denied the petition for writ. Plaintiff appealed from the denial, the issues were briefed, and the Court of Appeals upheld the district court's decision in a published opinion on November 26, 2008. See Washington v. Werholtz, et al., 40 Kan.App.2d 860, 197 P.3d 843 (2008). Plaintiffs Motion for Rehearing/Modification in the Court of Appeals and his petition for review by the Kansas Supreme Court were both denied.”
Whether the doctrine of res judicata applies in a certain situation is an issue of law over which appellate courts exercise unlimited review. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012). Res judicata, or claim preclusion, prevents relitigation of a final judgment when the following conditions are met: (1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits. In re Tax Appeal of Fleet, 293 Kan. at 777–78.
Here, the second and fourth elements are clearly satisfied. Washington's first case was against Roger Werholtz, the Secretary of Corrections. In this case, Werholtz is listed as one of the defendants in addition to the Department of Corrections and three other individuals in their official capacity. Thus, the same parties are clearly involved. Additionally, there was clearly a final judgment reached on the merits of the first case. Thus, the issue turns on whether, as a matter of law, the State has shown that (1) this case involves the same claim or cause of action as the previous case; and (2) that Washington asserted or could have asserted his claims in the previous case.
Same Claim or Cause of Action
Washington's second effort at challenging the regulation involves the same claim, which is whether the regulation is unconstitutional as written and as applied. We note that Washington's claims in the present action are directly connected to his claims made in his first case. Here, as in his first case, Washington complains about the contradictory definition of “nudity,” the due process in the censorship proceedings, and the fact that constitutionally protected materials such as autobiographies and documentaries are being censored. All of these claims were addressed in Washington's previous cause of action. Thus, the first element is met.
Whether Washington asserted or could have asserted his current claims in his previous case
To show that res judicata precludes Washington's claims, the State must show that Washington asserted or could have asserted his claims in his previous cause of action. In the current case, Washington raised two new claims: (1) that the Secretary of Corrections does not have the authority to adopt K.A.R. 44–12–313; and (2) that K.A.R. 44–12–313 is applied to publications aimed at African–American prisoners in a racially discriminatory manner. Here, although Washington did not assert the claim that the Secretary of Corrections did not have the authority to adopt K.A.R. 44–12–313 in his first case, this issue could have been raised and decided in the previous case. In Washington's first case, this court noted that Washington had not challenged the Secretary's statutory authority to adopt this regulation. See Washington, 40 Kan.App.2d at 861. Therefore, this issue clearly could have been asserted in Washington's first case. Washington could have also asserted his racial discrimination claim in his first case where he challenged how the regulation was applied. Thus, the new claims raised by Washington could have been asserted in his previous case.
As a result, we determine that the trial court properly held that Washington's current action was barred by res judicata. Nevertheless, because Washington contends that his current suit involves a different cause of action, which if true, res judicata principles would not operate to bar his current action, we will briefly address the collateral estoppel issue.
Issue Preclusion
In the trial court's journal entry of dismissal, the trial judge dismissed Washington's case based on res judicata. Alternatively, the trial court dismissed Washington's cause of action based on collateral estoppel, i.e., issue preclusion. Although collateral estoppel is sometimes considered as a part of res judicata, the two doctrines are different. Both involve the conclusive result of judgments in later suits. The difference is that in res judicata the later action involves the same cause of action. On the other hand, in collateral estoppel the later suit involves a different cause of action. As stated earlier, in res judicata the first judgment is conclusive, not only on all matters which were actually litigated, but also on all matters which could have been litigated. Yet, when the later action is on a different cause of action, these res judicata principles cannot work.
Washington argues that his claims are not barred by res judicata because some of his claims had not accrued when his previous action was brought. Washington maintains that each application of the regulation to materials after his previous case was filed constituted a new cause of action.
Issue preclusion prevents a second litigation of the same issue between the same parties, even when raised in a different claim or cause of action. In Kansas, three elements must be met to invoke the doctrine of issue preclusion: “(1) a prior judgment on the merits that determined the parties' rights and liabilities on the issue based on ultimate facts as disclosed by the pleadings and judgment; (2) the same parties or parties in privity; and (3) the issue litigated must have been determined and necessary to support the judgment.” In re Tax Appeal of Fleet, 293 Kan. at 778.
We determine that all three elements are satisfied. The same parties are involved and there was a previous judgment on the merits. Moreover, the constitutionality of the regulation in question was litigated in the previous case and was necessary to the decision or judgment. As a result, we determine that the trial court properly concluded that the judgment in Washington's previous action operated as a bar to his current suit.
We have considered the other issues presented by Washington and conclude that they lack merit.
Affirmed.