* Personal Restraint Petition Of Timothy Robert Pauley

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
IN THE MATTER OF THE PERSONAL
RESTRAINT OF
TIMOTHY ROBERT PAULEY,
Petitioner.
No. 81370-6-I
PUBLISHED OPINION
PER CURIAM – Petitioner Timothy Robert Pauley, an inmate at the Monroe
Correctional Complex (MCC), filed a personal restraint petition in our Supreme
Court, claiming that his conditions of confinement violate article I, section 14 of the
Washington 	Constitution, 	and 	the 	Eighth 	Amendment 	to 	the 	United 	States
Constitution because of the risk of harm he faces from exposure to COVID-19.
Pauley 	also 	contends 	his 	restraint 	is 	unlawful 	because 	the 	Department 	of
Corrections (DOC) is violating a common law duty to protect inmates’ health and
safety. 	Pauley simultaneously filed a motion for the Supreme Court to retain
jurisdiction, to accelerate review of his petition on the merits, and to order his
immediate release pending review.
On April 21, 2020, the Supreme Court transferred the petition and the
pending motion for accelerated review and immediate release to this court for
resolution. 	On April 24, 2020, this court asked the State to respond to Pauley’s
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motion for immediate release. The Indeterminate Sentence Review Board (ISRB)
filed a response to Pauley’s motion and the underlying petition on May 4, 2020.1
Pauley submitted a reply on the merits of his petition on May 5, 2020. On May 7,
2020, the ISRB moved to supplement the record with the declaration of Phu Ngo,
the certified physician assistant responsible for Pauley’s medical care at MCC.
Pauley did not oppose this motion and, on May 11, 2020, submitted a timely
amended reply brief and a responsive declaration. 	On May 13, 2020, the ISRB
moved for a second time to supplement the record with an updated declaration of
Julie Martin, Deputy Secretary of DOC, dated May 8, 2020. Pauley did not oppose
this motion on the condition the court accepted his second amended reply. 	We
grant both motions to supplement the record and Pauleys’ request that we accept
his amended and second amended reply briefs.
For the reasons set out below, this court grants Pauley’s motion for
accelerated review, denies his personal restraint petition, and denies his motion
for immediate release.
FACTS
In 1981, Pauley pleaded guilty to three counts of first degree murder for his
role in a robbery and triple homicide.2 He was sentenced to three life terms which
the ISRB subsequently revised to be consistent with the Sentencing Reform Act of
1981 (SRA), chapter 9.94A RCW. 	In 1992, the ISRB revised Pauley’s sentence
1 In December 2019, Pauley filed a personal restraint petition challenging a 2019 decision of the
ISRB to increase the minimum term of his incarceration. In re Pers. Restraint of Pauley, No. 80895-
8-I. The ISRB’s response to that petition is now due June 11, 2020. The present petition does not
raise any issues relating to the ISRB’s decision regarding his sentence and focuses only on the
conditions of Pauley’s confinement due to the coronavirus pandemic.
2 In re Pers. Restraint of Pauley, No. 76489-6-1, slip op. at 1 (Aug. 13, 2018).
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by setting a minimum term of 400 months on count III, 320 months on count IV,
and 311 months on count V. In keeping with his original sentence, Pauley was to
serve the term for count IV first, to be followed by concurrent terms for counts III
and V.3 The ISRB paroled Pauley on count IV in April 1999 and he began serving
the concurrent sentences on counts III and V. 	In May 2015, the ISRB reduced
Pauley’s minimum term on count III to 340 months.
In March 2016, the ISRB conducted a hearing and decided Pauley was not
parolable and increased his minimum term on the two remaining counts by adding
240 months to count III and 269 months to count V, a decision this court reversed
in 2018.4 We remanded Pauley’s matter to the ISRB to conduct a new hearing in
order to properly consider his rehabilitation efforts in accordance with ISRB
procedures. 	According to the ISRB, on remand, the board added 84 months to
Pauley’s minimum term on count III and 113 months to count V. 	His earned
release date is now July 2, 2022.
Pauley is now 61 years old and has been incarcerated since 1980. 	He is
currently in detention in Unit C of the MCC, a prison operated by the Washington
Department of Corrections (DOC). He lives in a single-occupancy cell, with access
to his own sink and toilet, and he has unrestricted access to soap and warm water.
DOC operates 12 prisons, houses approximately 18,000 people, and
employs over 5,000 staff. Since January 2020, DOC has been working to mitigate
the risk of COVID-19 to incarcerated individuals who reside in, and its staff who
3 Id., slip op. at 2.
4 Id., slip op. at 6, fn. 7, and 10.
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work in, its facilities. The evidence submitted by the ISRB is largely uncontested
by Pauley.
Each major prison, including MCC where Pauley resides, has medical
facilities, 	with 	a 	physician 	director, 	doctors, 	physician 	assistants, 	nurse
practitioners, and other health care providers. DOC implemented a Communicable
Disease and Infection Prevention Program before the COVID-19 pandemic to
prevent, educate about, identify, and treat infectious diseases. 	A board-certified
infectious disease physician oversees this program and each prison facility has an
Infection Prevention Nurse on staff. 	DOC screens all individuals for infectious
diseases as they enter the system at one of two reception centers, the Washington
Corrections Center in Shelton, and the Washington Corrections Center for Women
in Purdy.
On January 24, 2020, DOC’s Health Service sent a message to all staff
explaining the novel coronavirus. 	On February 9, 2020, DOC opened an
Emergency Operations Center to support its response to this infectious disease.
It later activated Incident Command Posts (ICPs) at each prison. 	This ICP
designation places responsibility for incident management on a single person with
the authority to make decisions on a 24/7 basis.
On 	March 4, 	2020, 	DOC 	authorized 	the 	use 	of 	alcohol-based 	hand
sanitizers, usually a contraband item, in its facilities for staff and others working in
the prisons.
On March 5, 2020, DOC’s Chief Medical Officer created a team to develop
guidelines specific to the COVID-19 coronavirus. 	The guidelines detail protocols
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for screening, testing, and infection control, including isolation and quarantine of
confirmed and suspected COVID-19 patients.
On March 12, 2020, the DOC restricted access to MCC to DOC employees,
contract staff and legal professionals. A DOC staff member tested positive for the
coronavirus that same day. MCC then implemented an active screening process
for all staff before they are allowed to enter the premises.
On March 15, 2020, DOC implemented enhanced screening processes for
all staff, contract staff, contractors and volunteers. 	These enhanced screenings,
including taking temperatures, have been conducted every day since March 16,
2020. On March 18, 2020, DOC issued guidelines for risk mitigation practices at
units for special populations, including infirmaries at all facilities. 	And on March
20, 2020, DOC implemented social distancing protocols in the prisons. It has since
provided direction on how to follow social distancing practices for kitchen workers
and during meals. 	It subsequently provided additional guidance about cleaning
and sanitizing products approved for COVID-19 in order to comply with guidelines
issued by the Centers for Disease Control and Prevention (CDC).
On March 23, 2020, the CDC issued a guidance document specific to
corrections facilities. DOC has been working since that date to reach substantial
compliance with these guidelines.
On March 20, 2020, the MCC superintendent issued a memo to inmates
setting 	out 	risk 	mitigation 	practices, 	such 	as 	social 	distancing, 	hygiene,
environmental cleanliness, and the use of recreational facilities. 	After Governor
Inslee issued the Stay Home—Stay Healthy order on March 23, 2020, the
superintendent issued another memo on social distancing within the facility.
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The DOC has modified its COVID-19 guidelines over the course of the
pandemic but the current version, Washington State DOC COVID-19 Screening,
Testing, and Infection Control Guideline, Version 17 (updated May 6, 2020),5 sets
out detailed screening procedures for all new intakes, requirements for the use of
full 	personal 	protective 	equipment, 	and 	recommendations 	for 	any 	inmates
considered to be at “high risk” – defined by the DOC as anyone with an underlying
condition and those aged 50 years or older. Id. For any inmate identified as high
risk, the DOC recommends that he:
• 	Wear an issued face covering when out of his cell or when within 6
feet of others
• 	Perform frequent hand hygiene
• 	Clean his cell frequently throughout the day
• 	Avoid contact with high-touch surfaces
• 	Limit movement in the facility
• 	Stay at least 6 feet from others in the day room, the yard, the gym,
the dining hall, and the medication line, as well as any other areas
where the population congregates.
All incarcerated individuals must now wear DOC-provided face coverings. Id.
According to DOC’s Martin, it has now implemented a plan for a 14-day
quarantine 	of 	all 	incoming 	individuals 	to 	the 	male 	reception 	center 	at 	the
Washington Corrections Center in Shelton and the female reception center at the
Washington Corrections Center for Women in Purdy, as recommended by the
CDC. And a Health Services “strike team” has begun working at the Shelton facility
to perform intake physicals to avoid a backlog of individuals awaiting transfer to
their assigned facilities. 	To minimize the risk of transmission while transferring
5 https://www.doc.wa.gov/news/2020/docs/wa-state-doc-covid-19-screening-testing-infection-
control-guideline.pdf
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inmates, DOC has implemented protocols to disinfect transport vehicles before
and after each transport, as well as at the end of each day.
DOC 	is 	now 	in 	substantial 	compliance 	with 	the 	majority 	of 	CDC’s
recommendations on personnel practices, operations and supplies, prevention,
cleaning and disinfection practices, hygiene, screening, management of staff,
medical isolation of confirmed and suspected cases, the disinfecting of spaces
inhabited by positive COVID-19 inmates, the quarantining of those in contact with
a 	COVID-19 	positive 	inmate, 	and 	the 	management 	of 	asymptomatic 	and
symptomatic inmates. 	Pauley does not present evidence to create a question of
fact as to DOC’s substantial compliance with CDC guidance for prisons.
DOC acknowledges that as of now, it is unable to obtain sufficient test kits
to allow it to test all inmates and staff for COVID-19. 	As a result, it has
implemented a testing protocol under which a health care practitioner will test
those with COVID-19 symptoms or those who have had contact with a suspected
COVID-19 positive individual. 	But as of May 7, 2020, DOC has 983 test kits in
prison facilities, 200 test kits at its headquarters, 950 test kit vials at headquarters,
awaiting receipt of 10,000 swabs and 2,000 test kit vials, both of which have been
ordered. 	It now has sufficient test kits to administer tests in accordance to
Washington Department of Health guidelines. 	And DOC’s testing criteria appear
consistent with the recommendations of the CDC: priorities for COVID-19 testing
are those exhibiting symptoms and who are either hospitalized or working in
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healthcare facilities or congregate living settings, or living in long-term care
facilities or congregate living settings, such as prisons.6
There is no evidence that Pauley has any symptoms of COVID-19 or that
he has had contact with anyone who has tested positive for the coronavirus. His
concern is that, because of his personal circumstances, he is at substantial risk of
contracting the disease. Over the course of his 40-year incarceration, Pauley has
experienced different medical issues. 	In 2002, he contracted hepatitis C and
recovered from that condition after taking medication. In 2006, he tested positive
for tuberculosis and was on medication for that condition for 9 months. 	He has
had two hip replacements, one in 2006 and a second one in 2012. 	Between the
fall of 2018 and the summer of 2019, he experienced respiratory problems and
was prescribed an inhaler with albuterol that improved his condition.
Other than his age, Pauley has not identified any serious underlying medical
conditions that put him on the CDC’s list of people at higher risk for severe illness
from COVID-19.7 Physician Assistant, Certified (PAC) Phu Ngo has testified that
the CDC considers individuals over the age of 65 to be at a higher risk of
developing severe illness due to COVID-19, but not for contracting the disease in
the first place. But under DOC policy, inmates over 50 years of age are considered
to be at higher risk. 	For this reason, all inmates over the age of 50 have been
instructed to wear a face covering when leaving their cells. 	They are also
instructed 	to 	perform 	frequent 	hand 	hygiene, 	to 	clean 	their 	cell 	frequently
throughout the day, to avoid contact of high-touch surfaces, and to limit their
6 https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html.
7 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
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No. 81370-6-I/9
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movement in the facility. They are also instructed to stay at least 6 feet from others
in the day room, yard, gym, dining halls, religious services, the medication line,
and any other areas where the population congregates.
According to PAC Ngo, Pauley is not currently taking any medication for the
respiratory problems he experienced in mid-2019. Ngo stated Pauley has a mild
form of asthma which, based on CDC guidance, does not place him at an elevated
risk of developing severe illness due to COVID-19 or at a higher risk of contracting
the disease. PAC Ngo also testified that there is no evidence Pauley still has latent
TB or any advanced liver disease associated with his hepatitis C condition and
treatment in the early 2000s. PAC Ngo stated that “[t]he various intestinal and joint
problems referenced by Mr. Pauley have all been addressed medically years ago
and are not known to the CDC or the DOC to place him currently at an elevated
risk for developing severe illness due to COVID-19. 	They are currently also not
known to place him at a higher risk for contracting COVID-19.” Jason Neely, the
DOC Correctional Unit Supervisor for Unit C at MCC, testified that Pauley has not
requested any accommodations for any physical vulnerabilities.
In a declaration dated April 17, 2020, Pauley alleges that he has not been
provided hand sanitizer for use in his cell. The ISRB confirmed this fact. The DOC
does not provide alcohol-based hand sanitizer in inmate cells because it contains
alcohol and there have been abuses by inmates. The CDC guidelines for prisons
provide that hand sanitizer only be used if soap and warm water are not available.
The DOC does not provide Pauley with hand sanitizer in his cell because he has
unrestricted access to soap and warm water.
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No. 81370-6-I/10
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Pauley also alleges he is provided two different cleaning materials for use
in his cell, a red colored liquid which he has been told is a disinfectant and a green
colored liquid he has been told is a detergent. 	He questions the effectiveness of
these cleaning agents. Dianna Rule, a Legal Liaison Officer at MCC, and Neely,
Pauley’s unit supervisor, confirmed that DOC provides Pauley and all other
inmates a red disinfectant cleaner, known as Hepastat 256, to spray on hard
surfaces. She also confirmed that DOC provides a green-colored general cleaner
called “CorrectPact Germicidal Cleaner.” 	There is no evidence that inmates lack
adequate quantities of cleaning agents or that the chemicals provided to Pauley
do not in fact work.
Also in his April 17 declaration, Pauley testified that he has a mask from a
cleaning job he previously held and uses that mask. But he claims when he asked
for another mask to protect himself from COVID-19, he was told to “speak to
medical” and “[m]edical has not been forthcoming with masks.” 	He initially
contended that most inmates in his unit do not have masks. 	But DOC provided
evidence that on April 17, DOC instructed all inmates that face coverings were
mandatory and has, since Pauley submitted his declaration, provided all inmates
with face mask kits. 	The kits include two cloth bandanas, rubber bands, coffee
filters and a guide for how to make the masks. When one of the bandanas is being
laundered, the inmate has a second one to use. 	Pauley admitted in his May 4,
2020 declaration that “[w]ashable masks have now been distributed to inmates.”
While 	Pauley 	acknowledges 	DOC 	has 	implemented 	social 	distancing
policies, he alleges it is “impossible” to follow social distancing requirements in
showers and the yard, while working on computers in the law library, while eating
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in the dining hall, when visiting the communal gym or the day room, when using
the communal telephones or J-Pay kiosks, when submitting a kite to staff, or when
performing the cleaning duties as a shift porter. 	He also complains that many
inmates are not wearing their masks or are putting them on incorrectly.
The ISRB reports that “[s]taff are aware of the deficiencies in cleaning and
social distancing due to inmate non-compliance with mandatory rules.” 	But the
DOC staff are cleaning showers, gyms and dining areas “at an increased
frequency” and are constantly reminding inmates of the social distancing rules.
Neely testified that tier representatives, individuals selected through a voting
process in each unit, have posted “6 Feet” signs everywhere in the unit and carry
clipboards bearing the sign. 	They, like DOC staff, encourage the inmates to
distance 	themselves 	as 	much 	as 	possible. 	The 	ISRB 	describes 	inmate
cooperation as “generally good, with exceptions,” but DOC staff are trying to direct
and remind inmates as often as possible regarding their role in preventing the
spread of the virus. 	There is no evidence that the DOC is ignoring inmate
noncompliance with its risk mitigation policies or that it is encouraging its staff to
overlook such noncompliance.
To further reduce congestion, the DOC has placed limits on the number of
inmates who may gather in common areas at any one time. The DOC has allowed
inmates to use the gym, with a normal capacity of 150, but has instituted limits so
that no more than 50 individuals can be present at one time. The gym equipment
is disinfected regularly and there are disinfectant spray bottles and paper towels
at every exercise station. Monroe employs inmates as recreation porters to clean
the equipment. 	The day room, with a normal capacity of 57, has been limited to
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only 26 inmates at a time, with only 2 people to a table. The staff have limited the
number of chairs in the TV room to ensure distancing.
The yard, which has a capacity of 350, is now limited to 150 people at a
time. 	Individuals eating in the dining hall are encouraged to social distance as
well. 	The floors have been marked at 6-foot intervals. 	During the daytime and
evenings, the DOC disinfects dining tables, doorknobs, and other high-touch areas
through the facility. It deep cleans common areas regularly throughout the day.
To keep other areas clean, the DOC staff has asked shower porters to clean
the showers at least twice a day and more frequently as needed. 	And the staff
have asked unit porters to clean the phones and J-Pay kiosks regularly as well.
DOC has attempted to leave cleaning bottles in communal locations for inmates to
use as they see fit, but the bottles kept disappearing so DOC ceased leaving the
cleaning agents unattended by staff or porters.
In addition to these practices and protocols inside DOC facilities, Governor
Inslee has taken steps to reduce the overall prison population to facilitate social
distancing. 	On 	April 	15, 	2020, 	Governor 	Inslee 	issued 	two 	emergency
proclamations. 	The first proclamation included an emergency commutation for
offenders who meet certain criteria. The second allows the DOC to release certain
prisoners to community custody, partial confinement or home detention. As of April
30, 2020, the DOC had released over 550 individuals from prison and work release
as a result of these proclamations. 	According to the DOC “Significant Events
Timeline” from May 14, 2020, DOC has released 422 incarcerated individuals
through the commutation process and 450 incarcerated individuals though the
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rapid reentry process, and has granted furlough to 66 individuals from the work
release into the community.8
The first inmate housed at Monroe to test positive occurred on April 5, 2020.
He was placed in isolation and his housing unit was placed on quarantine. Contact
tracing led staff to identify two additional inmates already on the isolation unit who
tested positive for COVID-19. 	On April 8, 2020, DOC dispatched an Emergency
Response 	Team 	to 	MCC 	when 	approximately 	100 	inmates 	engaged 	in 	a
demonstration in the recreation yard.9 DOC believed the demonstration occurred
as a result of the positive COVID-19 tests.10
According to the DOC, as of April 30, 2020, there were 18 confirmed
COVID-19 cases in its inmate population across the state and no deaths.
According to the DOC website, as of May 12, 2020, DOC has completed 375 tests,
with 340 returning negative. 	There have been 26 positive results and another 9
pending lab results.11 It has 53 inmates housed in isolation and 422 individuals in
quarantine.12 Of the 26 positive cases, there are 16 confirmed cases at MCC, and
one confirmed case at the Washington Corrections Center, one at the Washington
State Penitentiary, and one receiving treatment at a community medical center.13
The remaining 7 positive cases are reported from the Reynolds Work Release
program.14 All of the incarcerated individuals who tested positive were placed in
8 https://www.doc.wa.gov/news/2020/docs/daily-situation-report.pdf
9 https://www.doc.wa.gov/news/2020/04082020p.htm
10 Id.
11 https://www.doc.wa.gov/news/covid-19.htm#status
12 Isolation separates a symptomatic patient from all other patients. Quarantine separates a patient
from individuals who are asymptomatic but have been exposed to a person confirmed to have
COVID-19.
13 https://www.doc.wa.gov/news/covid-19.htm#status
14 Id.
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isolation and inmates from their housing unit were placed into quarantine. 	The
death toll remains at zero.
In late March 2020, five Washington prisoners filed a petition for a writ of
mandamus in the Supreme Court, Colvin v. Inslee, No. 98317-8.15 	The lawsuit
alleged that Governor Inslee and the Secretary of the DOC were violating several
provisions of the Washington constitution, including the prohibition on cruel or
unusual punishment, in their response to the COVID-19 emergency. On April 23,
2020, the Supreme Court issued an order dismissing the petition, concluding that
“Petitioners have not shown that the Respondents are currently failing to perform
a mandatory, nondiscretionary duty in addressing the COVID-19 risk at the
Department of Corrections facilities, nor shown other constitutional or statutory
grounds for the relief they request.” 	The court also ruled that “on the record
presented, the Petitioners have not shown the Respondents’ actions constitute
deliberate indifference to the COVID-19 risk at the Department of Corrections
facilities, and thus cannot establish unlawful restraint.” Id. at 2.
ANALYSIS
Accelerated Review
RAP 18.12 allows this court to set any matter for accelerated disposition.
Generally, requests for accelerated disposition in our court are not granted unless
the issue presented on appeal would be mooted by the normal time periods for
appeals. Puget Sound Power & Light Co. v. Pub. Util. Dist. No. 1 of Chelan County,
17 Wn. App. 861, 862, fn. 1, 565 P.2d 1221 (1977).
15 Pauley was not a party to the Colvin lawsuit but provided a declaration in support of it. He filed
this petition two days before the Supreme Court dismissed the petition in Colvin.
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No. 81370-6-I/15
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Here, placing Pauley’s PRP on a normal calendar would possibly moot the
conditions of confinement arguments he is raising. 	The time period for resolving
a personal restraint petition normally entails a period of time for the court to conduct
a preliminary review of the petition’s merits under RAP 16.8.1, a 60-day period for
receiving a response from the State under RAP 16.9, and another 30-day period
for receiving a reply from the petitioner under RAP 16.10. 	Once the briefing is
completed, the Chief Judge or his designee then determines whether the issues
presented in the petition are frivolous or whether the matter should be referred to
a panel of judges for determination on the merits with or without oral argument.
RAP 16.11(b). 	This court typically resolves 75 percent of its pending case load
within 600 days of filing. If we were to refer this PRP to a panel of judges and not
accelerate our review of its merits, we might not be able to issue a decision until
the end of 2021. According to the ISRB, Pauley currently has an earned release
date of July 2, 2022. This factor weighs in favor of accelerating review.
In addition, Pauley argues his life is currently in jeopardy because of DOC’s
failure to adequately mitigate the risks he faces from COVID-19. There has been
high-profile litigation before our Supreme Court and in courts across the nation in
which parties have raised similar concerns about the risks of the pandemic
spreading throughout this country’s jails, prisons, and immigration detention
facilities. 	See Colvin et al. v. Inslee et al., No. 98317-8 (Washington Supreme
Court order denying inmates’ petition for writ of mandamus and denying motion to
amend petition because inmates failed to establish deliberate indifference to
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COVID-19 risk at DOC facilities);16 Basank et al. v. Decker et al., 2020 WL
1953847 (S.D.N.Y. 2020) (order preliminarily enjoining Immigration & Customs
Enforcement officials from detaining petitioners in county jails, finding risk of
serious illness or death); People ex rel. Stoughton v. Brann, 2020 WL 1679209
(N.Y. Supreme 2020) (ordering temporary release of some vulnerable pretrial
detainees from Rikers Island prison due to unprecedented risk presented by
COVID-19); Mays v. Dart, 2020 WL 1812381 (N.D. Ill. 2020) (granting limited relief
to persons detained in Cook County jail, prohibiting group housing of detained
persons except for those in quarantine or isolation, those in need of medical or
mental health treatment where single cells pose a risk of suicide or self-harm, or
those in units at less than 50 percent capacity where adequate social distancing
can occur).
Although we recognize that our understanding of this novel coronavirus is
deepening as time passes and that a race is on to discover treatments and a
vaccine for it, it appears unlikely to us that an effective treatment or vaccine will be
identified any time soon.17 	These factors similarly weigh in favor of accelerated
review.
Finally, the factual and legal issues Pauley presents in his motion for
immediate release are identical to the factual and legal issues he presents in his
underlying petition. The ISRB and Pauley have thoroughly briefed the issues. We
16http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/983178PublicOr
der042320.pdf
17 “There are no drugs or other therapeutics presently approved by the U.S. Food and Drug
Administration (FDA) to prevent or treat COVID-19.” 	https://www.cdc.gov/coronavirus/2019-
ncov/hcp/therapeutic-options.html. 	See also “The Race for Coronavirus Vaccines: A Graphical
Guide,” Nature, April 28, 2020 (“[r]esearchers . . . hope to have a vaccine ready in 18 months”).
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No. 81370-6-I/17
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conclude that further delay in resolving the merits of Pauley’s petition would not
benefit the parties or this court. We therefore grant Pauley’s motion for accelerated
review and will address the merits of his petition.
Standard of Review
To obtain judicial relief through a personal restraint petition, an inmate
raising a state law or constitutional challenge to the conditions of his confinement
must show he is being unlawfully restrained under RAP 16.4. In re Pers. Restraint
of Gentry, 170 Wn.2d 711, 714, 245 P.3d 766 (2010). 	There is no dispute that
Pauley is being restrained by DOC. 	The only issue is whether that restraint is
unlawful. 	RAP 16.4(c)(6) makes a restraint unlawful when the conditions or
manner of the restraint “are in violation of the Constitution of the United States or
the Constitution or laws of the State of Washington.”
The petitioner bears the burden of proving, by a preponderance of evidence,
that his restraint is unlawful. Matter of Cook, 114 Wn.2d 802, 813, 792 P.2d 506
(1990). 	The petition must be supported by factual evidence, rather than on
conclusory allegations. 	In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396,
978 P.2d 1083 (1999). 	Inadmissible hearsay, speculation and conjecture are
insufficient to support a challenge to an inmate’s conditions of confinement. Id. As
an evidentiary prerequisite, the petitioner must demonstrate he has competent,
admissible evidence to establish facts that entitle him to relief. In re Pers. Restraint
of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
Once the petitioner makes this threshold showing, the court will then
examine the State’s response, which must answer the allegations and identify any
material disputed questions of fact. Rice, 118 wn.2d at 886, citing RAP 16.9. To
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define disputed questions of fact, the State must meet the petitioner’s evidence
with its own competent evidence. 	Id. 	If the parties’ materials establish the
existence of material disputed issues of fact, then we may direct the superior court
to hold a reference hearing to resolve these factual disputes. Id. at 886-87.
With these principles in mind, we turn to the merits of Pauley’s petition.
Cruel Punishment Claim
Pauley 	first 	contends 	his 	conditions 	of 	confinement 	constitute 	cruel
punishment in violation of article I, section 14 of the Washington constitution and
the Eighth Amendment to the United States Constitution.
The 	Eighth 	Amendment 	protects 	individuals 	from 	cruel 	and 	unusual
punishment. 	U.S. Const. amend. VIII. 	Article I, section 14 of the Washington
Constitution bans cruel punishment. State v. Bassett, 192 Wn.2d 67, 77, 428 P.3d
343 (2018). Although article I, section 14 has been deemed more protective than
the Eighth Amendment in certain cases, Pauley does not argue that the duties
these two provisions impose on DOC differ in any material way here. Both Pauley
and the ISRB agree that DOC has a duty to protect inmates from inhumane or
unsafe prison conditions and the test set out in Farmer v. Brennan, 511 U.S. 825,
832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) applies.
Under Farmer, an Eighth Amendment challenge to the conditions of
confinement has two components, one objective and one subjective. 	Swain v.
Junior, __ F.3d __, 2020 WL 216317, *4 (11 Cir. May 5, 2020). First, to satisfy the
objective component, the prisoner must show “an objectively intolerable risk of
harm.” Id. He must show that the challenged conditions are extreme and present
an unreasonable risk of serious damage to his future health or safety. Id.
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No. 81370-6-I/19
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Second, 	to 	satisfy 	the 	subjective 	component, 	the 	prisoner 	must
demonstrate that prison officials acted with deliberate indifference to the inmate’s
health and safety. 	Swain, at *4. 	This component requires evidence that the
officials know of and disregard an excessive risk to inmate health and safety.
Farmer, at 837. The U.S. Supreme Court has equated deliberate indifference with
recklessness. 	Id at 836. 	But prison officials are not liable for known risks if they
have responded reasonably to the risk, “even if the harm ultimately was not
averted.” 511 U.S. at 844.
Risk of Contracting COVID-19
In the last several months, COVID-19 has swept across the world and been
declared a global health pandemic by the World Health Organization. Williams v.
Barr, 2020 WL 2193448 *1 (M.D. Penn. May 6, 2020). 	Because the disease is
caused by a novel type of coronavirus, humans have no immunity to the virus and,
currently, there is no cure, vaccine, or known anti-viral treatment for it. 	Id. 	The
virus is highly contagious and is spread through respiratory particles of moisture
and mucous that are transmitted through the air or which fall on surfaces that are
later touched by an individual. Id. The primary method used to combat the spread
of COVID-19, social distancing, seeks to maintain enough distance between
individuals to break the chain of transmission, generally at least six feet. Id.
Most 	individuals 	infected 	with 	COVID-19 	develop 	mild 	or 	moderate
respiratory symptoms and recover with no medical intervention. Approximately 20
percent of the cases, however, require hospitalization, with 2-3 percent of affected
individuals dying from the virus. 	Williams, at *1. 	Those with certain identified
underlying medical conditions, such as chronic lung disease, moderate to severe
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No. 81370-6-I/20
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asthma, serious heart conditions, compromised immune systems, severe obesity,
diabetes, or liver disease, are more susceptible to developing serious illness than
others. Id.
The ISRB does not argue the risk of contracting COVID-19 is insignificant.
Indeed, the risk is recognized as so significant that Governor Inslee has issued
orders requiring non-essential employees to stay at home rather than expose
themselves to the coronavirus and the disease it causes.18 In doing so, Governor
Inslee has recognized that COVID-19 “remains a significant health risk to all of our
people.”19 Public health experts appear to agree that incarcerated individuals are
at special risk of infection, given their living situations and may be less able to
participate in proactive measures to keep themselves safe.20 Prisoners are more
likely than the general population to report experiencing infectious diseases,
indicating that these individuals face a heightened risk during this pandemic.
United States v. Kennedy, 2020 WL 1493481, at *1-2 (E.D. Mich. March 27, 2020).
We will thus assume, for purposes of this analysis, that Pauley has satisfied
the first, objective prong of his Eighth Amendment claim.
Deliberate Indifference
The 	ISRB 	argues 	that 	Pauley 	has 	not 	demonstrated 	that 	DOC 	has
recklessly ignored the risk of inmates contracting COVID-19 or recklessly failed to
address any particular vulnerability Pauley faces. On this record, we agree.
18 https://www.governor.wa.gov/sites/default/files/20-25.3%20-%20COVID-
19%20Stay%20Home%20Stay%20Healthy%20-
%20Reopening%20%28tmp%29.pdf?utm_medium=email&utm_source=govdelivery
19 Id.
20 “Achieving A Fair And Effective COVID-19 Response: An Open Letter to Vice-President
Mike Pence, and Other Federal, State and Local Leaders from Public Health and Legal Experts
in the United States,” (Mar. 2, 2020), at https://bit.ly/2W9V6oS
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No. 81370-6-I/21
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Pauley has no evidence DOC has ignored the risk COVID-19 presents to
Washington prison inmates. 	In Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct.
2475, 125 L. Ed. 2d 22 (1993), the Supreme Court recognized that government
authorities may be deliberately indifferent to an inmate’s current health problems
where they “ignore a condition of confinement that is sure or very likely to cause
serious illness and needless suffering in the next week or month or year,” including
“exposure of inmates to a serious, communicable disease.” Id.
Pauley cannot challenge the fact that DOC has implemented a number of
policies, 	from 	reducing 	the 	overall 	prison 	population, 	to 	mandating 	social
distancing, implementing aggressive cleaning of common areas, establishing
protocols for screening and testing inmates, isolating those testing positive and
quarantining those with contact to positive cases, limiting the number of inmates
in any common area at any one time, to supplying face coverings—all to mitigate
the risk of COVID-19 in its facilities. Pauley is not required to share a cell, a toilet,
or a sink with any other individual. He has unrestricted access to warm water and
soap in his cell with which to wash his hands, he has access to cleaning supplies
with which to clean his cell, and he has a face covering to use in situations where
social distancing is not feasible.
Pauley also contends that DOC’s failure to provide any hand sanitizer to
inmates in common areas or in their cells demonstrates deliberate indifference.
We disagree. The CDC recommends the use of alcohol-based hand sanitizer only
if soap and water are not readily available. 	Williams, at *3.21 	The undisputed
21 See “How to Protect Yourself & Others,” available at https://www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/prevention.html.
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No. 81370-6-I/22
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evidence shows that Pauley has unrestricted access to soap and water with which
to wash his hands frequently before and after eating in the dining hall or touching
surfaces such as dining room tables, J-Pay kiosks, telephones, or doors.
Pauley, in his May 5, 2020 declaration, contends that his ability to practice
social distancing is impossible because of the number of inmates in the facility’s
halls and common areas. 	The CDC’s guidance for managing COVID-19 in
correctional 	facilities 	recommends 	the 	implementation 	of 	social 	distancing
strategies to increase the physical space between incarcerated persons, “ideally
6 feet between all individuals, regardless of the presence of symptoms.” The CDC
recognizes, however, that these strategies “will need to be tailored to the individual
space in the facility” and that “[n]ot all strategies will be feasible in all facilities.”
It is undisputed that inmates at MCC cannot maintain six feet of separation
from each other 100 percent of the time. In an April 17, 2020, Monitoring Report,
the Office of Correction Ombuds (OCO)22 determined, in investigating the protest
at MCC and DOC’s actions to prevent the spread of COVID-19, that the MCC “is
unable 	to 	effectively 	impose 	social 	distancing 	due 	to 	facility 	structure 	and
population 	size.”23 	DOC 	has 	therefore 	taken 	other 	risk 	mitigation 	steps
recommended by the CDC in such situations, including removing chairs in
common areas to increase the physical space between inmates, rearranging
seating in the dining hall to make sure there is more space between inmates,
providing meals inside cells, and limiting the size of groups occupying the exercise
22 Under RCW 43.06C.050, OCO has reasonable access to all state correctional facilities to monitor
compliance with the rights and safety of incarcerated individuals.
23https://oco.wa.gov/sites/default/files/public/OCO%20Monitoring%20Visit%20to%20Monroe%20
Correctional%20Complex.pdf
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No. 81370-6-I/23
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yard, the day room, and TV room. 	And as Pauley admits, DOC has distributed
washable masks to inmates. 	The CDC recommends wearing face coverings
“where other social distancing measures are difficult to maintain.”24 OCO reported
in its April 17 report that all units it observed appeared clean and containers of
appropriate disinfectants were available for use by inmates. The inability of Pauley
to social distance at all times he is outside his cell may be true, but he has not
demonstrated DOC has been deliberately indifferent to the risk he faces when he
must navigate through the facility in close proximity to other inmates or to staff.
Pauley argues that DOC is not consistently enforcing the social distancing.
But in Swain v. Junior, __ F.3d __, 2020 WL 216317, *4 (11 Cir. May 5, 2020), the
U.S. Court of Appeals for the Eleventh Circuit rejected the argument that a jail’s
inability to achieve meaningful social distancing evinced deliberate indifference to
the COVID-19 risk. 	Without evidence that the defendants were “ignoring or
approving the alleged lapses in enforcement of social-distancing policies,” the
inconsistency in enforcement did not establish the defendants were deliberately
indifferent. Id. at *5. Instead, jail officials had “adopted extensive safety measures
such as increasing screening, providing protective equipment, adopting social
distancing when possible, quarantining symptomatic inmates, and enhancing
cleaning procedures,” making it likely the detainees would be unable to show that
defendants’ actions amounted to deliberate indifference. Id.
We find this case analogous. While it will be difficult to achieve 100 percent
compliance with all of DOC’s COVID-19 policies, Pauley has presented no
24 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html
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No. 81370-6-I/24
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admissible evidence that any DOC officials are ignoring violations of its policies or
approving lapses in the enforcement of the policies. COVID-19 presents a serious
medical issue in any prison facility but they can nevertheless curb the introduction
or spread of COVID-19 and contain and treat those infected with the virus.
Williams, at *7. 	The record shows that DOC has taken the threat of COVID-19
seriously and taken reasonable and appropriate steps to mitigate the risk to
incarcerated individuals.
The effectiveness of these actions is reflected in the statistics. DOC is not
facing rising numbers of COVID-19 cases. It does not have infection rates greater
than the state as a whole. And as of yet, there have been no deaths in any DOC
facility caused by this disease.
Pauley contends that even with face coverings, he cannot protect himself
from staff who come near him to take his temperature and conduct mandatory
inmate counts on a daily basis. But on April 10, 2020, DOC mandated the use of
face coverings for all employees entering a DOC facility. 	On April 14, 2020, it
issued a personal protective equipment (PPE) matrix, setting out guidance to DOC
staff for the use of different types of PPE when interacting with inmates in different
settings. Under the current version of this matrix, all staff working in DOC locations
must wear an approved face covering while on duty.25 	If they have contact with
any quarantined inmates, they must wear gowns, gloves and surgical masks
unless they are merely passing items to the inmate through a cuff port without any
face-to-face contact, in which case they need only wear gloves and a face
25 https://www.doc.wa.gov/news/2020/docs/ppe-covid-19-matrix.pdf
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No. 81370-6-I/25
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covering.26 	If they have contact with anyone symptomatic and in isolation, they
must wear an N95 mask, in addition to eye protection, gloves and a gown, if they
have any close contact with the individual.27 	DOC has clearly taken steps to
protect Pauley from contracting COVID-19 from DOC staff members when they
take his temperature or conduct an inmate count on his unit.
Finally, Pauley argues that he faces greater risks “as a 61-year-old man
with respiratory ailments.” 	But Pauley has not demonstrated he actually suffers
from any respiratory ailments. As PAC Ngo testified, Pauley may suffer from mild
asthma, but that condition does not make him particularly vulnerable to contracting
COVID-19 or suffering a serious illness were he to do so. 	It is only his age that
places him in a different risk category. DOC has taken significant steps to mitigate
the 	risk 	to 	Pauley—including 	screening 	everyone 	entering 	the 	facility 	for
symptoms, mandating that staff wear a mask or face covering at all times,
providing face coverings for inmates to wear whenever they are unable to social
distance, providing unrestricted access to soap and water, implementing PPE
requirements for staff when working with symptomatic inmates, reducing the
number of inmates congregating in any one common area, isolating people who
have confirmed or suspected COVID-19, quarantining those who had contact with
confirmed or suspected COVID-19 cases, and increasing the frequency of cleaning
common areas. 	Pauley has not demonstrated why all these safety precautions
are inadequate steps to prevent, to the extent possible, the spread of infection in
the MCC.
26 Id.
27 Id.
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No. 81370-6-I/26
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We conclude Pauley has not presented sufficient evidence to create a
genuine issue of disputed fact that DOC has acted with deliberate indifference in
tackling COVID-19.28 We deny his Eighth Amendment claim.
In his reply, Pauley argues that even if DOC has not acted with deliberate
indifference, we should nevertheless hold that “conditions of confinement which
require Mr. Pauley to be in constant proximity to fellow inmates and staff and which
fail to adhere to effective hygiene requirements violate the prohibition against cruel
punishment” under our state constitution. It appears he is arguing that we abandon
the deliberate indifference standard altogether and instead apply something akin
to a negligence standard under article I, section 14. While there have been cases
in which our Supreme Court has interpreted article I, section 14’s cruel punishment
clause more broadly than the Eighth Amendment, see Bassett, 192 Wn.2d at 82
(in context of juvenile sentencing, state constitution’s cruel punishment clause
providers greater protection than Eighth Amendment), Pauley has not identified a
case in which any court in this state has adopted a negligence test, rather than the
deliberate indifference standard, in a challenge to prison conditions.
And Pauley has not demonstrated factually that he actually is in “constant
proximity to fellow inmates and staff.” He has his own cell and his own protective
face coverings, as do all other inmates at MCC. 	Staff also must wear face
coverings when interacting with Pauley. Nor has he demonstrated that DOC staff
28 Pauley’s reliance on Wilson v. Williams, __ F. Supp. 3d __, 2020 WL 1940882 (N.D. Ohio Apr.
22, 2020) is misplaced. In that case, prisoners housed in dormitory units at the Eklton Federal
Correctional Institution brought an Eighth Amendment challenge to the conditions of their
confinement. The federal district court judge found that the facility had continued to house inmates
in 	150-inmate 	dormitory-style 	units, 	completely 	failing 	to 	follow 	the 	social 	distancing
recommendations of the CDC. Id. at *1, 3. The record before this court does not reveal conditions
in any DOC facility akin to the Eklton federal facility.
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No. 81370-6-I/27
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are not adhering to effective hygiene requirements. We therefore reject his article
1, section 14 claim as well.
Substantive Due Process
Pauley next maintains that DOC has violated his substantive due process
right “to be free from unreasonable risk of harm.” 	Citing Braam ex rel. Braam v.
State, 150 Wn.2d 689, 81 P.3d 851 (2003), and DeShaney v. Winnebago County
Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), he
contends that when a state restrains an individual’s liberty, that person has a
substantive due process right to be provided with basic human needs, including
medical 	care 	and 	“reasonable 	safety.” 	He 	argues 	that 	DOC’s 	deliberate
indifference to his risk of harm to COVID-19 violates these due process rights.
But Braam involved a class action brought against the Department of Social
and Health Services seeking to force that agency to reduce the number of times it
moved foster children while in the agency’s care. 	150 Wn.2d at 693. 	Its holding
was limited to whether foster children have substantive due process rights:
We hold that foster children have a constitutional substantive due
process right to be free from unreasonable risks of harm and a right
to reasonable safety. To be reasonably safe, the State, as custodian
and caretaker of foster children must provide conditions free of
unreasonable 	risk 	of 	danger, 	harm 	or 	pain, 	and 	must 	include
adequate services to meet the basic needs of the child.
Id. at 700. 	The case did not address whether a prison inmate has a substantive
due process right, separate and apart from his right to be free from cruel
punishment, to be protected from the spread of an infectious disease. 	It is
therefore inapposite.
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No. 81370-6-I/28
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DeShaney is similarly inapplicable here. In that case, the mother of a child
abused by his father sued a county social agency for failing to remove the child
from his father’s custody. 489 U.S. at 191. The U.S. Supreme Court held that the
State had no due process obligation to protect any individual from private violence.
489 U.S. at 197.
Pauley has not cited any authority for the proposition that the Fourteenth
Amendment’s substantive due process protections apply to this case. 	In County
of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998), the Supreme Court stated that when “a particular Amendment provides an
explicit textual source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Because
the Eighth Amendment provides explicit protection to Pauley, no separate analysis
under substantive due process is appropriate. 	We therefore reject Pauley’s
substantive due process claim.
Common Law Duty to Protect Inmates
Finally, Pauley argues DOC is violating a common law duty it owes to
ensure his health, welfare and safety. 	In Gregoire v. City of Oak Harbor, 170
Wn.2d 628, 635, 244 P.3d 924 (2010), the Washington Supreme Court held that
jailers owe a special common law duty to protect the health and safety of inmates
because of the special relationship that results when a custodian has complete
control over someone deprived of their liberty. 	The standard of care is one of
ordinary, reasonable care, under the circumstances of each particular case.
Kusah v. McCorkle, 100 Wash. 318, 323, 170 Pac. 1023 (1918).
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No. 81370-6-I/29
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Pauley has not presented evidence to demonstrate that DOC has failed to
exercise reasonable care in formulating and implementing screening, prevention,
and treatment policies to mitigate COVID-19 risks. 	We therefore deny this claim
as well.
Pauley’s Motion for Immediate Release
Pauley sought an order from this court requiring the ISRB to release him
from DOC custody under RAP 16.15(b). That rule provides:
(b) 	Release by Appellate Court of Person in Custody. 	The
appellate 	court 	may 	release 	a 	petitioner 	on 	bail 	or 	personal
recognizance before deciding the petition, if release prevents further
unlawful confinement and it is unjust to delay the petitioner’s release
until the petition is determined. 	The appellate court or the superior
court in its decision on the merits, or by separate order after a
decision on the merits, may release a petitioner on bail or on
personal recognizance. 	The appellate court may direct the release
of petitioner with the conditions of release to be determined by a trial
court.
Because Pauley has not demonstrated he is being unlawfully confined,
there is no basis for this court to order his release. His motion is therefore denied.
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