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March 24, 2026 Get Citation Alerts Download PDF Add Note

Clifton Bell, V. Washington State Dept. Of Corrections

Court of Appeals of Washington

• Citations: None known
• Docket Number: 60660-7

• Precedential Status: Non-Precedential

• Opinion

• Authorities (74)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.4K)

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Lead Opinion

Filed
Washington State
Court of Appeals
Division Two

March 24, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
CLIFTON BELL, GREGORY HYDE, No. 60660-7-II
GARRISON SCHRUM, and MATTHEW
ROSS, on behalf of themselves and all others
similarly situated,

Appellants,

v.

WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
CORRECTIONS, a state agency,

Respondent.

GLASGOW, J.—Several incarcerated plaintiffs challenge the Department of Corrections’

use of “presumptive” colorimetric drug tests to punish them for alleged drug possession. The

Department performs these tests by swabbing incarcerated people’s possessions; for example, mail

or papers found in their cells. The plaintiffs allege that although these tests are widely known to

be highly inaccurate and susceptible to false positives, the Department imposes punishments based

on the test results without confirming them in a laboratory. In some cases, laboratory tests have

demonstrated that people were punished based on false positives. The plaintiffs allege that after

finding incarcerated people guilty of drug possession on the basis of unreliable colorimetric tests,

the Department has punished them with significant sanctions, including solitary confinement and

lost good time credits, sometimes causing delayed release from prison.
No. 60660-7-II

The plaintiffs brought this class action lawsuit against the Department seeking declaratory

and injunctive relief and damages for the use of colorimetric drug tests as a basis for prison

discipline without confirmation of the results with a reliable laboratory test. Plaintiffs allege

violations of the due process and cruel punishment clauses of the Washington State Constitution;

intentional infliction of emotional distress (outrage); violation of the Department’s duty to protect

incarcerated people’s health, safety, and welfare; negligence; and negligent infliction of emotional

distress. They seek declaratory and injunctive relief based on the constitutional claims and

damages based on both the constitutional claims and the tort claims.

The Department brought motions under CR 12(b)(6) and CR 12(c) seeking judgment on

the pleadings. The trial court dismissed all of the plaintiffs’ claims as a matter of law. It determined

that the plaintiffs could not bring their injunctive and declaratory relief claims in a class action

lawsuit but must instead proceed through individual personal restraint petitions (PRP); that the

plaintiffs failed to state a claim for any tort; and that constitutional damages claims are not viable

in Washington state. The plaintiffs appeal.

Applying the standard for evaluating motions to dismiss under CR 12(b)(6) and CR 12(c)

and assuming, as we must, that the plaintiffs’ allegations are all true, we conclude that the

plaintiffs’ allegations were sufficient, for CR 12(b)(6) and CR 12(c) purposes, to state claims for

injunctive and declaratory relief based on constitutional violations; outrage; and negligent

infliction of emotional distress. The Department has failed to establish that these claims must be

dismissed as a matter of law. We affirm the trial court’s dismissal of the plaintiffs’ remaining

claims and its decisions to defer the plaintiffs’ motion on class certification and to stay discovery.

We otherwise reverse and remand for further proceedings consistent with this opinion.

2
No. 60660-7-II

FACTS

I. THE DEPARTMENT’S USE OF COLORIMETRIC DRUG TESTS IN PRISON DISCIPLINE

Because this appeal arises from the dismissal of the plaintiffs’ complaint based on CR

12(b)(6) and CR 12(c), we must assume all allegations in the complaint are true and also consider

hypothetical facts conceivably raised by the complaint. FutureSelect Portfolio Mgmt., Inc. v.

Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014); P.E. Sys., LLC v. CPI

Corp., 176 Wn.2d 198, 210-11, 289 P.3d 638 (2012). We therefore recite the plaintiffs’ allegations

assuming they are true at this stage.

The Department of Corrections used colorimetric tests, sometimes called presumptive drug

tests, within its facilities as a tool to detect illegal drugs.1 These tests involve swabbing an object

“believed to contain . . . drug residue, inserting the swab into a test pouch containing . . . chemical

reagents, and waiting to see what color the test strip” turns. Clerk’s Papers (CP) at 15. The

Department screened incarcerated people’s mail and “conducted random or targeted cell searches

of incarcerated individuals’ possessions,” sometimes testing those items with colorimetric tests.

Id.

The Department explained that it has “experience[d] a substantial increase in dangerous

drugs being introduced” into its prisons. CP at 80. The Department alleged that illegal drugs are

being “liquefied and sprayed onto paper,” sent into its prisons through the mail, and then

1
In the briefs, the parties cite to facts and evidence in the record beyond the pleadings. But to
comport with the trial court’s decision not to convert the Department’s motion for judgment on
the pleadings to a summary judgment motion, which is not challenged on appeal, we recite the
facts based only on allegations in the pleadings, attachments to the pleadings, and public
documents. See Wash. State Hum. Rts. Comm’n v. Hous. Auth., 21 Wn. App. 2d 978, 983, 509
P.3d 319 (2022).

3
No. 60660-7-II

“subdivided into . . . doses and distributed.” Id. It identified colorimetric tests as “a tool to address

this significant problem[] and mitigate harm to the incarcerated population and staff.” Id.2

Plaintiffs Clifton Bell, Matthew Ross, and Garrison Schrum brought this lawsuit to

challenge the Department’s use of positive results from colorimetric testing as a basis for imposing

disciplinary sanctions on incarcerated people.3 The plaintiffs alleged that colorimetric tests “are

highly unreliable and intended to be used as an initial screening test only.” CP at 4 (emphasis

omitted). They alleged that the Department failed to “corroborate allegedly positive results with

confirmatory laboratory testing” as directed by the manufacturers’ instructions for the tests. Id.

Additionally, colorimetric tests are “only intended to be used on substances like liquids, pills, or

powders” and are “not designed to be swabbed on paper or mail.” CP at 7. The plaintiffs explained

that “the reagents in the tests can react to trace chemicals commonly found on paper products[] the

same way they would react to the chemicals used to create synthetic drugs,” resulting in false

positives. Id.

The Department regularly tested incarcerated individuals’ personal belongings, mail, and

papers for synthetic cannabinoids, commonly known as “spice.” Spice “can be derived from

combinations of hundreds of different chemicals,” and “because the synthetic composition of

2
This explanation was provided in a letter to plaintiffs’ counsel that the plaintiffs then included as
an attachment to their complaint.
3
Originally, there was a fourth named plaintiff in this case, Gregory Hyde, as reflected in our
case caption. In May 2024, Columbia Legal Services withdrew from representing Hyde citing
“ethical considerations.” 3 Verbatim Rep. of Proc. at 142. Hyde remained a plaintiff but was
unable to secure a new attorney by the time the trial court dismissed the case in August 2024.
Hyde is not a party to this appeal.

4
No. 60660-7-II

[s]pice is so varied and the compounds . . . can change so rapidly,” colorimetric tests are not

capable of serving as an accurate test to detect spice. CP at 5.

The plaintiffs also alleged the Department knew or should have known that the tests are

unreliable. A Massachusetts trial court enjoined the use of similar tests. That court concluded the

accuracy of the test results was “‘only marginally better than a coin[-]flip[.]’” CP at 7 (second

alteration in original) (quoting Green v. Mass. Dep't of Corr., No. 2184CV02283, slip op. at 8

(Suffolk Super. Ct., Mass. Nov. 30, 2021) (court order) [https://perma.cc/26CJ-MM4F]). And

Department staff “openly joke[d] about the inaccuracy of the tests and sometimes test[ed] common

items in their possession to see if they w[ould] test positive to amuse themselves.” CP at 8. The

plaintiffs alleged that Department staff sometimes tested incarcerated individuals’ belongings with

colorimetric tests “for retaliatory purposes.” CP at 10.

The Department admitted in its answer that it was aware that the manufacturers’ labels on

at least some of the colorimetric tests the Department used provided warnings “that false positive

and false negative results [could] occur and that results should be confirmed by laboratory testing.”

CP at 101. The Department admitted it was also aware that some items available from prison

commissaries “could provide a false positive result, including certain oils, glue on envelopes,

Visine, and an over-the-counter allergy medication.” Id.

The Department admitted that it has imposed a variety of disciplinary sanctions on

incarcerated people based on positive colorimetric test results, including revoking good time

credits; revoking privileges such as recreation and the right to receive packages; loss of work

opportunities; “cell confinement”; and added work duty. The Department admitted it has also used

drug possession violations as the basis for changing incarcerated people’s custody levels (for

5
No. 60660-7-II

instance, from “minimum to medium custody”), which resulted in people being transferred to other

facilities. CP at 109. And applying its administrative segregation policy, the Department admitted

it has placed individuals found in possession of drugs based on colorimetric tests in solitary

confinement, sometimes for months at a time, during the pendency of their investigations.

“Solitary confinement” is the practice of confining an individual “to a single-occupancy

cell for more than 20 hours a day without meaningful human contact, out-of-cell activities, or

opportunities to congregate.” CP at 1781.4 The plaintiffs allege that solitary confinement causes

significant physical and psychological harm, and that the United Nations “has recognized more

than 15 consecutive days in solitary confinement for 22 hours or more per day as torture.” CP at

8.

Significantly, the Department has acknowledged that solitary confinement can cause

“physical damage[,] . . . the development of health problems, and potential consequences for

mental health and general well-being,” including “increased risk for self-directed violence and

suicide,” as well as “slowed brain activity and neurological damage.” CP at 1778. Accordingly, in

2023 the Department released a plan to reduce usage of solitary confinement by 90 percent after

“more than a decade of work . . . to reduce reliance on” the practice. CP at 1764.5

4
This definition comes from the Department’s 2023 “Solitary Confinement Transformation
Project” report, which the plaintiffs attached to a declaration supporting their opposition to the
Department’s motion to dismiss. CP at 1762-1921. Because this is a publicly available document
created by a state agency it is appropriate for us to consider it without converting the Department’s
motion to a summary judgment motion. See Wash. State Hum. Rts. Comm’n, 21 Wn. App. 2d at
983.
5
The Department objects to the plaintiffs’ broad use of the term “solitary confinement” to describe
different types of segregation from the general population and states that it does not use that term
“in reference to discipline.” Resp’t’s Br. at 26. In particular, the Department distinguishes
“administrative segregation,” in which “[a] person . . . is moved or transferred to a secured higher-
level facility due to [an] increased safety or security risk, their movements are always escorted,

6
No. 60660-7-II

Until 2023, the Department typically did not permit incarcerated people who received

infractions based on colorimetric tests results to obtain confirmatory laboratory testing. Although

the Department has since changed its policy to allow incarcerated people the opportunity to request

lab testing, as discussed in more detail below, the plaintiffs allege in their briefing that the

Department continues to refuse “to submit [colorimetric] tests for lab testing” in at least some

cases. Appellants’ Reply Br. at 3.

II. FACTS RELATED TO NAMED PLAINTIFFS

A. Clifton Bell

In March 2022, correctional officers searched Clifton Bell’s cell and found a scrap of paper

on or near his shoe, which they tested for drugs using a colorimetric test. The test returned a

presumptive positive result for spice. Bell received an infraction and was immediately placed in

solitary confinement under the Department’s administrative segregation policy. At his April

infraction hearing, the Department found Bell guilty and sanctioned him with 75 days of lost good

time credits, among other things, without confirming the results of the colorimetric test with

laboratory testing. Bell appealed his infraction and requested a laboratory test to confirm the

positive result from the colorimetric test. The department denied Bell’s request for confirmatory

testing and upheld the infraction on appeal.

their programming and visitation is limited, and meals are served in the individual’s cells,” from
“cell confinement,” which is “an available punishment for serious violations” where “the
individual remains in their home facility and in their assigned room[,] . . . except to go to work,
school, religious services, visits, meals, and the law library.” Resp’t’s Br. at 26-27. In its 2023
Solitary Confinement Transformation Project report, the Department admits that administrative
segregation units are “presumed to operate under solitary confinement protocols.” CP at 1782. In
any event, at this stage we must presume that all allegations in the plaintiffs’ complaint are true,
including as they relate to being punished with placement in solitary confinement as the plaintiffs
understand the term.

7
No. 60660-7-II

On April 25, 2022, the same day that Bell appealed this first infraction, the same

correctional officers who had tested the paper on Bell’s shoe used colorimetric tests on three

greeting cards that a loved one, Lyndsay Gardiner, had sent to Bell. The Department alleges that

it had received reports from “confidential informants” that Bell was working with Gardiner to

bring drugs into the prison. CP 107. The cards tested presumptively positive for phenethylamine,

a prohibited drug. Neither Bell nor Gardiner had ever touched the cards, which were sent directly

from a large United Kingdom-based greeting card company and had not yet been delivered to Bell.

Bell received another infraction based on these test results.

Gardiner contacted the Department, explaining that the greeting cards were ordered and

sent directly from an online retailer. As a result, the Department suspended Bell’s infraction and

submitted the greeting cards for confirmatory testing. The laboratory tested the greeting cards and

found that they did not contain drugs. Bell’s infraction related to the greeting cards was expunged

from his record. The Department did not review Bell’s previous infraction related to the piece of

paper from his shoe or conduct confirmatory testing in that case. Bell estimates that he spent a

total of four months in solitary confinement because of these infractions.

B. Matthew Ross

In November 2022, corrections officers searched Matthew Ross’ cell and found a letter that

Ross had received from his friend, a college librarian. The officers tested the letter for drugs with

a colorimetric test, which returned a presumptive positive result for spice. Ross received an

infraction and was sanctioned with 30 days of cell confinement and 45 days of lost good time

credits, among other things. Ross’ loss of good time credits changed his release date from

September 2, 2023, to October 17, 2023. Ross appealed, and the Department upheld his infraction.

8
No. 60660-7-II

In August 2023, officers again searched Ross’ cell, this time seizing paperwork that

included legal mail from Columbia Legal Services. Department staff allegedly informed Ross that

some of the papers had tested positive for drugs and that it may have been his legal paperwork.

Ross received another infraction based on this result.

Ross’ attorney at Columbia Legal Services contacted the Department and learned that the

seized papers that had returned a presumptive positive drug test result, were copies of Ross’

immunization records and high school transcripts sent by Ross’ mother. Ross claims that the

Department had asked him to have those documents sent. On September 7, 2023—five days after

his original release date, which had been delayed due to his first infraction—the Department

abruptly released Ross from custody and returned the legal mail and paperwork it had seized from

him.

C. Garrison Schrum

In June 2022, corrections officers searched Garrison Schrum’s cell and tested scraps of

paper they found there with colorimetric tests. The tests returned a presumptive positive result for

spice. Schrum received an infraction and was placed in solitary confinement for two weeks leading

up to his hearing. Before his hearing, Schrum requested laboratory confirmation testing. The

Department denied the request.

The Department found Schrum guilty at his hearing and sanctioned him with 30 days of

lost good time credits and 30 days of “solitary confinement to his cell,” among other things. CP at

1. Schrum immediately appealed, and the Department upheld his infraction. The plaintiffs allege

9
No. 60660-7-II

that Schrum’s good time credits were eventually restored after he remained infraction-free for the

ensuing year.6

III. PROCEDURAL HISTORY

A. Threat of Litigation

Bell, Ross, Schrum, and a fourth incarcerated person, Gregory Hyde, retained Columbia

Legal Services to challenge the Department’s use of colorimetric tests to punish them. In August

2023, Columbia Legal Services sent a letter informing the Department that Columbia Legal

Services intended to file a class action lawsuit on behalf of its clients and sought to discuss an out-

of-court resolution.

In response to the threatened litigation, the Department sent a letter to its staff in September

2023 announcing that “[e]ffective[] immediately, the use of Presumptive Drug Testing . . . will

NOT be the sole determining factor of guilt in WAC violations . . . for drug possession.” CP at 82

(boldface omitted). The Department clarified that its “Presumptive Drug Testing Policy” would

“be revised . . . to . . . allow an incarcerated individual the opportunity to request laboratory

confirmation, if possible, for presumptive positive tests prior to an infraction hearing for drug

possession.” Id. The announcement also stated that the Department would “review drug possession

infractions issued over the last two years to determine whether any infractions” were unsupported

6
Included in the appellate record is a declaration from Dr. Terry Kupers, a psychiatrist. The
declaration was originally attached not to the complaint but to the plaintiffs’ response to the
Department’s CR 12(c) motion. The declaration describes in detail the mental and physical health
effects that each plaintiff suffered as a result of their time in solitary confinement. Because we are
reviewing a motion for judgment on the pleadings, we do not consider the contents of this report
in our analysis. But again, we assume all of the facts alleged in the complaint are true.

10
No. 60660-7-II

by corroborating evidence and should therefore “be expunged along with restoration of any

resulting loss of good conduct[] . . . time.” Id.

Columbia Legal Services told the Department that its “newly announced policy [was]

insufficient to protect the rights of those in custody” and failed to “compensate those . . . who were

punished” based on colorimetric test results. CP at 84. Thus, the Department’s change of policy

did not resolve the plaintiffs’ claims.

B. Initial Pleadings

Bell, Hyde, Schrum, and Ross filed a class action lawsuit in September 2023. The plaintiffs

alleged facts consistent with those described above. They asserted that the Department’s

uncorroborated use of colorimetric tests to support prison discipline sanctions violated their state

constitutional rights to due process and to be free from cruel punishment. The plaintiffs also

brought several common-law tort claims. They alleged that the Department violated its “duty to

protect and maintain the health, safety, and welfare of the Plaintiffs.” CP at 32. They brought

general negligence and negligent infliction of emotional distress claims. In addition, the plaintiffs

brought a claim for intentional infliction of emotional distress, alleging that the Department’s

“intentional[] or reckless[]” conduct was “extreme and outrageous” and “caused . . . severe

emotional distress.” CP at 32.

The plaintiffs requested declaratory and injunctive relief ordering the Department to stop

the allegedly unconstitutional “actions, customs, conditions, policies, and practices described in”

the complaint; monetary damages for their common-law tort claims and their constitutional claims;

an order requiring the Department to expunge all records of colorimetric test results and restore

good time credits that it revoked based on unconfirmed results; attorney fees and costs; and any

11
No. 60660-7-II

other relief that “justice may require.” CP at 32-33. Although the plaintiffs sought restoration of

improperly revoked good time credits, the complaint does not include a request for release from

confinement as a remedy.

In its answer to the complaint, the Department made the admissions described above. The

Department also raised several affirmative defenses: that the “[p]laintiffs [] failed to state a claim

upon which relief may be granted,” that the “[p]laintiffs’ claims are moot,” that the “[p]laintiffs’

claims seeking restoration of good conduct time are cognizable only in a personal restraint

petition,” that the Department’s actions could not be negligent because they were “a reasonable

exercise of judgment and discretion by authorized public officials,” and that the Department “is

immune from suit.” CP at 114.

C. Dismissal of Constitutional Damages Claims and Deferral of Class Certification

The Department moved under CR 12(b)(6) to dismiss the plaintiffs’ claims for damages

based on state constitutional violations. It argued that in the absence of legislation directing courts

to allow state constitutional damages claims, no such cause of action exists. It also argued that

sovereign immunity protects Washington State agencies from such claims. Around the same time,

the plaintiffs moved for class certification. They requested that the court certify a class under both

CR 23(b)(2)—which sets out the requirements for an injunctive class action—and CR 23(b)(3)—

which sets out the requirements for a class action for damages. In January 2024,7 the trial court

heard argument on both motions.

7
The caption to the verbatim report of proceedings incorrectly lists the date of this hearing as
2023.

12
No. 60660-7-II

The trial court dismissed the constitutional damages claims. It relied on article II, section

26 of the Washington State Constitution, which states, “The legislature shall direct by law, in what

manner, and in what courts, suits may be brought against the state.” After considering the statutory

waiver of sovereign immunity in RCW 4.92.090, the trial court concluded “that there is not an

express or an implied cause of action” for damages for violations of the state constitution. 2

Verbatim Rep. of Proc. (VRP) at 109. The plaintiffs’ tort claims and requests for injunctive and

declaratory relief remained.

Arguing against the motion for class certification, The Department claimed the plaintiffs

lacked standing to bring a class action. It noted that the plaintiffs were challenging prison discipline

decisions that revoked good time credits and thus “affect[ed] the duration of . . . confinement.” 2

VRP at 85. In the Department’s view, incarcerated people can challenge the duration of their

confinement only through individual habeas corpus petitions or personal restraint petitions (PRPs).

The plaintiffs characterized the Department’s argument as a “de facto motion to dismiss”

that failed to “address any of the [class certification] requirements of CR 23.” 2 VRP at 76. The

plaintiffs told the trial court that they lacked adequate space in their reply brief to address both the

requirements of CR 23 and the Department’s arguments. The plaintiffs explained they were only

prepared to argue the CR 23 requirements.

The trial court deferred ruling on class certification for four months and invited the

Department to bring a motion to dismiss so that both parties could brief the issue of whether the

plaintiffs’ claims could only be brought as habeas petitions or PRPs.

13
No. 60660-7-II

D. Formal Adoption of New Drug Testing Policy

It is uncontested that the Department eventually codified its policy change with regard to

colorimetric drug tests in February 2024, a few months after the plaintiffs filed their complaint.

Under the updated “Presumptive Drug Testing” policy, “[a]n individual in total/partial

confinement may request laboratory confirmation” of a positive or abnormal colorimetric test. CP

at 1633 (emphasis added). The policy also maintains that “[i]f the test results are confirmed

positive by the laboratory, the individual will reimburse the Department for testing costs” and that

“[t]he individual will be notified if a contracted laboratory is not available.” Id. Under the policy,

“[r]esults of presumptive testing kits may be the sole factor when determining guilt for possessing

or introducing drugs/alcohol by individuals in total/partial confinement only when the results have

been confirmed by a contracted laboratory.” Id. The policy also provides that if the results are not

confirmed, additional evidence is required to support the violation; for example, “refusal of

confirmation laboratory testing, statement by individual or witness, confidential information,

positive urinalysis test, use of a canine, medical response, [or] paraphernalia.” Id.

The updated policy does not say that presumptive tests could not be relied upon at all absent

a confirmatory laboratory test or refusal of a confirmatory laboratory test. The plaintiffs allege in

their briefing that the Department “has not followed its new policy” and continues to impose

punishments without submitting colorimetric tests for laboratory confirmation. Appellants’ Reply

Br. at 3.

E. CR 12(c) Motion for Judgment on the Pleadings

In April 2024, the Department filed a motion for judgment on the pleadings under CR

12(c). The Department renewed its argument from the class certification hearing that the plaintiffs’

14
No. 60660-7-II

challenges to “prison disciplinary decisions that affect the duration and conditions of their

confinement” could only be brought in individual habeas corpus actions or PRPs. CP at 696. The

Department further claimed that as a matter of law, the plaintiffs failed to state any tort claims that

could be granted. And it argued that the plaintiffs’ claims for injunctive and declaratory relief were

moot because of the Department’s announced policy change that would allow people who received

drug infractions to request laboratory confirmation.

In response, the plaintiffs pointed out that PRPs could not provide relief in the form of

damages, and those who had already been released from custody may not be eligible to file a PRP.

The plaintiffs also opposed dismissal of their tort claims, arguing that the Department’s concerns

were better characterized as factual disputes that could not be disposed of on a motion for judgment

on the pleadings.

F. Stay of Discovery

In May 2024, the trial court heard a motion from the Department to stay additional

discovery pending the trial court’s ruling on the motion to dismiss. The Department argued that a

stay was appropriate because the motion to dismiss was dispositive and that a stay would not

prejudice the plaintiffs because the motion to dismiss addressed “only legal issues that don’t

require discovery.” 3 VRP at 126.

The plaintiffs responded that the Department had not shown that the additional requested

discovery would be “burdensome or prejudicial.” 3 VRP at 131. The plaintiffs further explained

that the discovery they sought was “intended to understand [the Department]’s past practice with

[colorimetric] tests to understand the potential scope of future harm” and to determine whether the

Department was adhering to its announced policy change. 3 VRP at 133.

15
No. 60660-7-II

The trial court stated that it had taken a “threshold look” at the pending motion for judgment

on the pleadings and agreed with the Department that the motion presented a “narrow question of

law” that would not “require consideration of . . . things outside the record.” 3 VRP at 142-43. The

trial court stayed discovery until it ruled on the CR 12(c) motion.

G. Trial Court Ruling on CR 12(c) Motion for Judgment on the Pleadings

The trial court heard the Department’s motion for judgment on the pleadings in August

1. The trial court explicitly declined to consider evidence outside of the pleadings or convert

the CR 12(c) motion into a motion for summary judgment. The trial court explained that it intended

to “keep[] [its] examination of the legal issue narrow” and that “the utility of the materials

submitted by the plaintiffs are for the court to have more imagination about what are conceivable

facts without accepting them as true but accepting them as provable at this juncture.” 1 VRP at 18.

The trial court did not say specifically what additional facts it was referring to.

The trial court granted the Department’s motion for judgment on the pleadings as to all of

the plaintiffs’ claims. In dismissing the plaintiffs’ outrage claim, the trial court relied entirely on

the reasoning from Khalif v. McKenzie, 8 a Division Three opinion.9 It stated that “for similar

reasons [to Khalif] there is no claim here given the challenge to prison discipline and the drug

testing being connected to individual punishment decisions.” 1 VRP at 42-43. The trial court next

dismissed the negligence and negligent infliction of emotional distress claims on the basis that a

8
No. 38045-9-III, slip op. (Wash. Ct. App. Feb. 1, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/380459_unp.pdf
9
The transcript for this hearing refers to the case as “KAY LISS.” 1 VRP at 43. The plaintiffs
state, and the Department does not dispute, that this is a clerical error and the trial court was
actually referring to Khalif.

16
No. 60660-7-II

prison’s duty to incarcerated people is a “special relationship . . . to protect from physical harm”

only. 1 VRP at 43.

The trial court also ruled that the plaintiffs’ remaining constitutional injunctive relief

claims “need[ed] to be exclusively the subject of [PRPs] or habeas corpus relief requests” and

therefore the court dismissed them as a matter of law. 1 VRP at 45 (emphasis omitted). The trial

court reached its conclusion based on the Washington Supreme Court’s decisions in Kozol v. Wash.

State Dep’t of Corr.,10 Colvin v. Inslee,11 and In re Pers. Restraint of Williams12:

[T]he discussion back and forth between the majority and the dissent [in Colvin]
seemed to suggest that the dicta from the state Supreme Court justices is that they
contemplate this type of cause of action being the subject of a PRP and habeas
corpus, that it would be adequate. That doesn’t directly address whether it’s
exclusive, but the court believes in reading together Kozol, Colvin [v.] Inslee and
In re Williams that they all direct the court to the likely outcome that the appellate
courts would say a challenge like what is brought here is a challenge to an
individual discipline decision and it needs to be advanced by a personal restraint
petition or a habeas corpus petition.

1 VRP at 44 (emphasis omitted). The court explicitly did not address whether any of the plaintiffs’

claims were moot.

In sum, the trial court ultimately dismissed all of the plaintiffs’ claims and therefore

dismissed the lawsuit.

The plaintiffs appeal the dismissal of their constitutional damages claims under CR

12(b)(6) and their remaining claims under CR 12(c). They also assert that the trial court abused its

discretion by deferring determination of their motion for class certification and by staying

discovery.

10
185 Wn.2d 405, 379 P.3d 72 (2016).
11
195 Wn.2d 879, 467 P.3d 953 (2020) (plurality opinion).
12
198 Wn.2d 342, 496 P.3d 289 (2021).

17
No. 60660-7-II

ANALYSIS

I. TYPE OF MOTION AND STANDARD OF REVIEW

We review a trial court’s dismissal of a claim under CR 12(b)(6) or CR 12(c) de novo.

Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007); P.E. Sys., 176 Wn.2d at 203. “We treat

a CR 12(c) motion for judgment on the pleadings identically to a CR 12(b)(6) motion to dismiss

for failure to state a claim.” P.E. Sys., 176 Wn.2d at 203. Washington has “‘liberal rules of pleading

[that] require a complaint to contain direct allegations sufficient to give notice to the court and the

opponent of the nature of the plaintiff’s claim.’” Champagne v. Thurston County, 163 Wn.2d 69,

85, 178 P.3d 936 (2008) (quoting Berge v. Gorton, 88 Wn.2d 756, 762, 567 P.2d 187 (1977)). We

will not dismiss an action “simply because a complaint fails to artfully state each element of a

particular cause of action.” Grothe v. Kushnivich, 24 Wn. App. 2d 755, 763, 521 P.3d 228 (2022).

CR 12(b)(6) and CR 12(c) motions should be granted “‘sparingly and with care and only

in the unusual case in which [the] plaintiff includes allegations that show on the face of the

complaint that there is some insuperable bar to relief.’” Scott v. Amazon, No. 103730-9, slip op. at

8-9 (Wash. Feb. 19, 2026)13 (internal quotation marks omitted) (quoting Paradise, Inc. v. Pierce

County, 124 Wn. App. 759, 767, 102 P.3d 173 (2004)). “‘The court presumes all facts alleged in

the plaintiff’s complaint are true and may consider hypothetical facts supporting the plaintiff’s

claims.’” Id. at 8 (quoting Kinney, 159 Wn.2d at 842). Dismissal based on failure to state a claim

should be granted only if “the plaintiff cannot prove any set of facts consistent with the complaint

which would justify recovery.” Wash. State Hum. Rts. Comm’n v. Hous. Auth., 21 Wn. App. 2d

978, 983, 509 P.3d 319 (2022). “‘[A]ny hypothetical situation conceivably raised by the complaint

13
https://www.courts.wa.gov/opinions/pdf/1037309.pdf

18
No. 60660-7-II

defeats a . . . motion [to dismiss] if it is legally sufficient to support [the] plaintiff’s claim.’” Bravo

v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (first alteration in original) (quoting

Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)). But dismissal is appropriate if

claims are not cognizable as a matter of law. Gorman v. Garlock, Inc., 155 Wn.2d 198, 215, 118

P.3d 311 (2005).

“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented

to and not excluded by the court, the motion shall be treated as one for summary judgment.” CR

12(c). However, “‘where the basic operative facts are undisputed and the core issue is one of law,

the motion to dismiss need not be treated as a motion for summary judgment.’” Wash. State Hum.

Rts. Comm’n, 21 Wn. App. 2d at 983 (internal quotation marks omitted) (quoting Trujillo v. Nw.

Tr. Servs., Inc., 183 Wn.2d 820, 827 n.2, 355 P.3d 1100 (2015)). Additionally, “the court ‘may

take judicial notice of public documents if their authenticity cannot be reasonably disputed’

without converting the motion to a motion for summary judgment.” Id. (quoting Rodriguez v.

Loudeye Corp., 144 Wn. App. 709, 725-26, 189 P.3d 168 (2008)). And we may consider

“‘[d]ocuments whose contents are alleged in a complaint but which are not physically attached to

the pleading.’” Id. (alteration in original) (internal quotation marks omitted) (quoting Trujillo, 183

Wn.2d at 827 n.2).

The parties below introduced some additional evidence outside the pleadings, mostly in

support of their arguments regarding class certification. But the trial court was correct not to

convert the motion for judgment on the pleadings to a motion for summary judgment. The trial

court explicitly stated that it was not converting the motion, that it was considering only legal

issues, and that to the extent the additional evidence had any “utility,” it was only to help the court

19
No. 60660-7-II

consider the universe of conceivable facts that could support the plaintiffs’ claims. 1 VRP at 18.

Additionally, the trial court did not expressly rely on any evidence outside the pleadings to make

its ruling. Therefore, under Washington State Human Rights Commission, it was appropriate for

the trial court to address the Department’s motions as motions to dismiss under CR 12(b)(6) and

CR 12(c).

Thus, we review de novo whether the standard for CR 12(b)(6) and CR 12(c) dismissal on

the pleadings is met. We must determine whether there is any set of hypothetical facts supported

by the pleadings that would justify recovery. A claim must be dismissed if it is not legally

cognizable.

Although the parties cite evidence in the record that goes beyond the limitations described

above, given the procedural posture of the case, we limit our consideration to the pleadings,

documents referenced by or attached to the pleadings, and public documents whose authenticity

the parties do not dispute. See Wash. State Hum. Rts. Comm’n, 21 Wn. App. 2d at 983. We do not

rely on evidence outside the pleadings except to the extent permitted by law; for instance, we refer

in some cases to the Department’s “Solitary Confinement Transformation Project” report because

it is a document publicly released by a state agency. For similar reasons, we also refer to the

Department’s 2024 Presumptive Drug Testing Policy.

II. PRP AS SOLE AVENUE FOR RELIEF FROM PRISON DISCIPLINE DECISIONS

The Department contends that because all of the plaintiffs’ claims challenge the

Department’s “use of [colorimetric tests] in prison discipline,” they are all “impermissible

collateral attack[s] on” the Department’s findings that the plaintiffs were guilty of infractions.

Resp’t’s Br. at 40. It argues that incarcerated people can only challenge prison discipline decisions

20
No. 60660-7-II

through habeas corpus petitions or PRPs. To support this claim, the Department analogizes to

federal cases—Preiser v. Rodriguez,14 Heck v. Humphrey,15 and Edwards v. Balisok16—holding

incarcerated people must pursue habeas corpus remedies before “attacking the fact or duration of

confinement through a 42 U.S.C. § 1983 action.” Resp’t’s Br. at 42-43. We disagree.

Under RAP 16.4(d), “[t]he appellate court will only grant relief by a personal restraint

petition if other remedies which may be available to petitioner are inadequate under the

circumstances.” Moreover, “a demand for monetary damages is not actionable by personal

restraint petition.” In re Pers. Restraint of Williams, 171 Wn.2d 253, 256, 250 P.3d 112 (2011).

A. Cases the Trial Court Relied on

The trial court determined based on a combined reading of three Washington Supreme

Court cases—Kozol, Colvin, and Williams, 198 Wn.2d—that an individual PRP is the only avenue

for each of the plaintiffs to seek relief. But these cases do not support the trial court’s conclusion.

In Kozol, an incarcerated person sought to file a statutory writ of review under RCW

7.16.040 to challenge a prison discipline sanction of 10 days of cell confinement. 185 Wn.2d at

406, 408. The statute permits a writ of review only if there is no “adequate remedy at law” for “an

inferior tribunal[’s]” illegal exercise of “judicial functions.” RCW 7.16.040. The Washington

Supreme Court held that Kozol could not obtain a writ because he had an adequate remedy at law

in the form of a PRP, which is “[o]rdinarily” the method by which a person challenges prison

discipline sanctions. Kozol, 185 Wn.2d at 407.

14
411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).
15
512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).
16
520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997).

21
No. 60660-7-II

A few years later in Colvin, five incarcerated people sought a writ of mandamus in early

2020 asking the court to direct the Governor and the Department to release incarcerated people

falling into certain categories immediately due to the onset of the COVID-19 pandemic. 195

Wn.2d at 884. In the alternative, the petitioners sought “to amend their petition by filing a personal

restraint petition.” Id. The Washington Supreme Court denied the writ, noting that “mandamus is

a rare and extraordinary remedy” which requires a showing that the law prescribes “a clear duty

to act.” Id. at 890, 894. The petitioners failed to meet their “‘demanding burden’” to identify a

specific duty requiring the Governor and the Department to release incarcerated people under these

circumstances. Id. at 894 (internal quotation marks omitted) (quoting Eugster v. City of Spokane,

118 Wn. App. 383, 403, 76 P.3d 741 (2003)).

The Colvin court also denied the petitioners’ request to add a PRP by amendment because

they could not show that their restraint was unlawful. Id. at 899-901. It added that the petitioners

had a “pending action for declaratory and injunctive relief making similar prison conditions

arguments,” and that even if a PRP was otherwise appropriate, that civil suit might be an adequate

remedy such that a PRP would be unavailable under RAP 16.4(d). Id. at 900 n.9 (citation omitted).

Significantly, the Court stated that “[l]awsuits challenging prison conditions are generally litigated

in civil rights or declaratory judgment actions.” Id.

Soon after, in Williams, an incarcerated person brought a PRP arguing that because of his

poor health and the danger of the COVID-19 pandemic, his continued incarceration constituted

cruel punishment under the state and federal constitutions. 198 Wn.2d at 346-47. The Washington

Supreme Court granting Williams’ petition in part, held that some aspects of his confinement

“constituted cruel punishment,” and directed the Department to either release him or to remedy the

22
No. 60660-7-II

cruel conditions. Id. at 352. Because the Department ultimately remedied the conditions, the court

did not require Williams’ release. Id. at 347.

The primary holding in Williams was that the “deliberate indifference” standard for federal

Eighth Amendment claims should not apply to Washington’s own cruel punishment clause, which

is more protective than its federal counterpart. Id. at 364. As part of its analysis, the Williams court

discussed PRPs:

[C]hallenges to conditions of confinement under article I, section 14 of
Washington's constitution generally arise as PRPs, seeking injunctive relief
ordering prisons to remedy any unconstitutional conditions. PRPs do not attach
personal liability for monetary damages for deprivations of constitutional rights;
rather, they seek an institutional change to remedy an unconstitutional action or
condition.

198 Wn.2d at 366 (emphasis added) (citations omitted).

In sum, litigants seeking avenues for relief such as statutory writs or writs of mandamus

must meet certain specific requirements to advance their claims. See Kozol, 185 Wn.2d at 411; see

also Colvin, 195 Wn.2d at 894. Where those requirements include no other adequate remedy at

law being available, the fact that the litigant could bring a PRP will foreclose that avenue for relief.

See Kozol, 185 Wn.2d at 411. And Washington courts recognize that PRPs are the typical vehicle

incarcerated litigants use when they seek to change conditions of their confinement that they

maintain are unconstitutional. See id. at 407; Williams, 198 Wn.2d at 366.

However, these cases do not conclude that all claims challenging prison discipline must be

brought as a habeas corpus petition or a PRP, nor do they establish that such claims cannot be

raised in a class action suit. To start, the PRP rule states plainly that PRPs will proceed only when

other remedies are inadequate, expressly contemplating that other available remedies exist. RAP

16.4(d). Moreover, neither Colvin nor Williams specifically addressed prison discipline. And while

23
No. 60660-7-II

these cases contain language suggesting that incarcerated people “ordinarily,” Kozol, 185 Wn.2d

at 407, or “generally,” Williams, 198 Wn.2d at 366, file PRPs when challenging conditions of

confinement, they do not demand a conclusion that no other avenues for relief are available when

a PRP is viable. Even if PRPs have historically been the typical way that people challenge prison

discipline decisions, that does not mean that they are the exclusive method of doing so under

Washington law.

The Kozol and Colvin courts held that the relief their respective petitioners sought was

unavailable because of specific requirements for the narrowly available writs they sought. In

Kozol, the statute authorizing writs of review required that there be no other adequate remedy

available, which is why the availability of a PRP barred the petitioner from bringing a writ. 185

Wn.2d at 411. In Colvin, the petitioners’ claim failed because they could not show that the

Governor or the Department was violating any duty at law that would support a writ of mandamus,

a “rare and extraordinary remedy.” 195 Wn.2d at 890. Here, none of the claims the plaintiffs raised

in their complaint contain similarly strict requirements.

Additionally, the Colvin court stated in dicta that it could have considered the petitioners’

separate “pending action for declaratory and injunctive relief” to determine whether that action

provided recourse for the petitioners that would make a PRP unavailable. Id. at 900 n.9. The Colvin

court’s express recognition of claims for declaratory and injunctive relief outside of the PRP

avenue is inconsistent with the holding the Department urges us to adopt in this case. And the

Washington Supreme Court has stated in other instances that civil claims for injunctive relief or

damages are appropriate when an incarcerated person challenges the conditions of their

confinement. See In re Det. of Turay, 139 Wn.2d 379, 420, 986 P.2d 790 (1999). This reasoning

24
No. 60660-7-II

further supports a conclusion that a PRP is not the exclusive avenue for bringing the plaintiffs’

claims.

B. Federal Cases Barring 42 U.S.C. § 1983 Claims

The Department next argues that federal cases should persuade us to depart from the

reasoning above and conclude that the plaintiffs’ claims can only be brought in PRPs. We disagree.

1. Preiser v. Rodriguez

In Preiser, state prisoners deprived of good time credits due to disciplinary sanctions

brought a claim under 42 U.S.C. § 1983, alleging violations of the 14th Amendment to the United

States Constitution and seeking injunctive relief to restore their credits. 411 U.S. at 476, 478. The

United States Supreme Court evaluated whether the petitioners could validly bring such a claim,

or if they were limited to pursuing “the specific remedy of habeas corpus.” Id. at 482. The Court

noted that the petitioners’ claims “fell squarely within [the] traditional scope of habeas corpus”

and that it was “beyond doubt . . . that the respondents could have sought and obtained fully

effective relief through federal habeas corpus proceedings.” Id. at 487-88.

The Court held that habeas corpus was not only an appropriate remedy but an exclusive

one when “a state prisoner is challenging the very fact or duration of his physical imprisonment,

and the relief he seeks is a determination that he is entitled to . . . release.” Id. at 500. Significantly,

the Court emphasized federalism concerns in its reasoning, highlighting the federal habeas corpus

statute’s state exhaustion requirement:

In amending the habeas corpus laws in 1948, Congress clearly required
exhaustion of adequate state remedies as a condition precedent to the invocation of
federal judicial relief under those laws. It would wholly frustrate explicit
congressional intent to hold that the respondents in the present case could evade
this requirement by the simple expedient of putting a different label on their
pleadings. . . . [T]he reason why only habeas corpus can be used to challenge a state

25
No. 60660-7-II

prisoner’s underlying conviction is the strong policy requiring exhaustion of state
remedies in that situation—to avoid the unnecessary friction between the federal
and state court systems that would result if a lower federal court upset a state court
conviction without first giving the state court system an opportunity to correct its
own constitutional errors.

Id. at 489-90 (emphasis added).

The Preiser Court also noted, in dicta, that had the petitioners sought damages instead of

good time credits, they would be “attacking something other than the fact or length of [their]

confinement, and . . . seeking something other than immediate or more speedy release.” Id. at 494.

In that case, habeas corpus would not be “an appropriate or available federal remedy.” Id.

1. Heck v. Humphrey

Twenty years later, the Court held in Heck that people incarcerated by a state cannot bring

a federal constitutional damages suit under 42 U.S.C. § 1983 and must instead bring a habeas

corpus petition if proving the section 1983 claim would necessarily prove that their confinement

was unlawful. 512 U.S. at 486. This holding both built on Preiser and disavowed the Preiser

Court’s dicta about damages claims. The Heck Court reasoned that “when establishing the basis

for the damages claim necessarily demonstrates the invalidity of the conviction[,] . . . the claimant

can be said to be ‘attacking . . . the fact or length of . . . confinement,’ bringing the suit within the”

realm of habeas corpus. Id. at 481-82 (second and third alteration in original) (quoting Preiser,

411 U.S. at 490).

Justice Scalia, writing for the majority, acknowledged the federal habeas corpus statute’s

state exhaustion requirement (and section 1983’s lack of such a requirement) but did not emphasize

it in his reasoning. Id. at 483. Instead, he analogized a section 1983 damages claim to a tort claim

for malicious prosecution, noting that the latter claim required a plaintiff to prove that the

26
No. 60660-7-II

underlying conviction had already been invalidated to “‘avoid[] parallel litigation over the issues

of probable cause and guilt.’” Id. at 484 (quoting 8 STUART M. SPEISER, CHARLES F. KRAUSE &

ALFRED W. GANS, AMERICAN LAW OF TORTS § 28:5 at 24 (1991)). Making habeas corpus petitions

exclusive would similarly avoid parallel litigation.

Justice Souter, concurring in the judgment and joined by three other justices, wrote that he

“d[id] not think that the existence of the tort of malicious prosecution alone provides the answer.”

512 U.S. at 492 (Souter, J., concurring in judgment). Souter would have hewed more closely to

“the interpretive methodology employed in Preiser,” which focused on the federal habeas corpus

statute and its state exhaustion requirement. Id. at 497 (Souter, J., concurring in judgment). He

encouraged a reading of the majority opinion in which the requirement pulled from the malicious

prosecution tort—that a plaintiff must show their underlying conviction was invalidated—applies

to a section 1983 damages action that implicates a plaintiff’s confinement in state prison because

it “has the effect of requiring a state prisoner challenging the lawfulness of his confinement to

follow habeas’s rules,” including, most notably, the exhaustion requirement. Id. at 498 (Souter, J.,

concurring in judgment).

1. Edwards v. Balisok

A few years later, the Supreme Court reaffirmed its holding from Heck in Edwards.

Edwards, 520 U.S. at 643. In Edwards, an incarcerated person brought a 42 U.S.C. § 1983 damages

action that was not tied to an underlying challenge to a conviction or sentence. Id. Instead, Balisok,

an incarcerated person, was “challenging the validity of the procedures used to deprive him of

good-time credits.” Id. Among other things, the plaintiff claimed that the officer presiding over his

disciplinary hearing was biased. Id. at 647. The Court held that where proving a procedural defect

27
No. 60660-7-II

necessarily proves that the extension of the plaintiff’s sentence was invalid, the claim must be

brought under habeas corpus. Id. at 646. This is true even if the plaintiff is claiming only that the

procedures used to discipline them were invalid, and not that the result of the disciplinary

proceedings was wrong. Id. at 645.

1. Applicability to state law claims

The progression of Preiser, Heck, and Edwards ended with the holding that where a claim

challenges a prison discipline decision involving a reduction in good time credits, recovery under

section 1983 is not available. But these cases do not compel us to adopt a similar holding limiting

incarcerated people to PRPs. The federal cases address federal statutes and are not binding on this

court’s analysis of state law. They are applicable only to the extent that we find their reasoning

persuasive.

There is some appeal in the Supreme Court’s approach, which channels all challenges to

prison infractions neatly into a single system. But we decline to adopt a comparable limitation for

several reasons.

First, the federalism concerns underlying the Supreme Court’s reasoning are inapplicable

here. The court’s original holding in Preiser was firmly rooted in federalism principles. The federal

habeas corpus statute has a state exhaustion requirement, so requiring litigants to file habeas corpus

petitions in these circumstances ensures that the federal courts do not bypass the state, which has

an “important interest” and is “in a better physical and practical position to deal with those

grievances.” Preiser, 411 U.S. at 492. No such concerns arise here, where people incarcerated by

the state bring state tort and constitutional claims.

28
No. 60660-7-II

Second, the concerns expressed in Heck about avoiding parallel litigation are legitimate

but do not convince us that the plaintiffs in this case must bring individual PRPs. As the plaintiffs

point out, several of them are not able to bring PRPs in the first place; Ross has already been

released from custody, and the Department has expunged Ross’ and Schrum’s infractions. Ross

and Schrum would be denied relief altogether if a PRP were their only avenue for litigation. And

damages are not available in a PRP.

Additionally, to the extent that courts may wish to avoid parallel litigation as to those class

members who can bring PRPs, a class action case may actually be more desirable. If a class is

certified, a class action could broadly resolve the underlying issue—the permissibility of using

colorimetric tests without confirmatory testing to support prison discipline—rather than risking

different outcomes in each PRP.

Most importantly, as discussed above, RAP 16.4 and Washington courts’ language

surrounding PRPs do not signal an intent to make them the exclusive remedy in all prison discipline

cases. The plain language of RAP 16.4 contemplates other available remedies. And Washington

cases that suggest PRPs are the typical avenue for challenging prison discipline do not reflect a

willingness to draw a hard line like the Supreme Court has done at the federal level. In fact, the

Washington Supreme Court has stated that ordinary civil lawsuits may be an appropriate vehicle

for challenges to prison discipline. For example, the Colvin court acknowledged there was “a

pending action for declaratory and injunctive relief, making similar prison conditions arguments”

to the ones the plaintiffs sought to bring in PRPs. 195 Wn.2d at 900 n.9 (citation omitted) The

Colvin court noted that “[l]awsuits challenging prison conditions are generally litigated in civil

rights or declaratory judgment actions.” Id. It suggested that the availability of that civil rights

29
No. 60660-7-II

lawsuit might weigh against permitting a PRP since the rule language contemplates petitions being

brought “if other remedies which may be available to petitioner are inadequate under the

circumstances.” RAP 16.4(d); see also Colvin, 195 Wn.2d at 900 n.9.

For all these reasons, we hold that PRPs and habeas petitions are not the exclusive avenue

for challenging the prison discipline practices in this case, and that under these circumstances,

where the petitioners are challenging a widespread discipline practice, a class action may be

appropriate if the plaintiffs can meet the requirements for class certification.

III. INJUNCTIVE AND DECLARATORY RELIEF FOR CONSTITUTIONAL VIOLATIONS

The plaintiffs seek to broadly enjoin the Department’s practice of using colorimetric tests

without laboratory confirmation to punish incarcerated people, which included placing them in

solitary confinement and revoking good time credits. They argue that an injunction is proper

because the Department’s conduct violates the Washington State Constitution’s cruel punishment

and due process clauses. They also seek declaratory relief to this effect.

The Department argues that its conduct does not violate either clause of the Washington

State Constitution, and that the plaintiffs’ claims for injunctive and declaratory relief are moot

because the Department has implemented the new policy that allows incarcerated people to request

confirmatory lab testing of a presumptive positive colorimetric test result.17 The Department

contends this policy satisfies any constitutional concerns.

17
The Department also claims that the plaintiffs have never provided any authority to support their
injunctive and declaratory relief claims, and that those claims are therefore waived. The
Department argues that the plaintiffs did not explain how their claims meet the standards for a due
process or cruel punishment violation or brief the requirements of the Uniform Declaratory
Judgments Act, ch. 7.24 RCW.
We reject the Department’s argument. The plaintiffs made it clear in their complaint that
they bring injunctive and declaratory relief claims based on the Department’s use of colorimetric

30
No. 60660-7-II

We conclude that the plaintiffs’ claims for injunctive and declaratory relief are not moot

and the plaintiffs’ allegations, when accepted as true as required by CR 12(c), sufficiently stated

claims for injunctive and declaratory relief based on the prohibition against cruel punishment and

their right to due process.

A. Cruel Punishment

Article I, section 14 of the Washington State Constitution prohibits the infliction of cruel

punishment. Washington’s ban on cruel punishment is more protective than its federal counterpart

in the Eighth Amendment. Williams, 198 Wn.2d at 354. This greater protection extends to

conditions of confinement. Id. at 354-55. An incarcerated person can show that the conditions of

their confinement are unconstitutionally cruel if “(1) those conditions create an objectively

significant risk of serious harm or otherwise deprive the petitioner of the basic necessities of human

dignity and (2) those conditions are not reasonably necessary to accomplish any legitimate

penological goal.” Id. at 363. “The four recognized ‘legitimate penological goals’ are retribution,

deterrence, incapacitation, and rehabilitation.” State v. Reynolds, 2 Wn.3d 195, 208, 535 P.3d 427

(2023) (quoting State v. Bassett, 192 Wn.2d 67, 87, 428 P.3d 343 (2018)).

With regard to the first prong, the plaintiffs allege in their complaint that the Department

has admitted “‘solitary confinement . . . causes long-lasting harm’” and that “‘spending prolonged

periods of time in isolation has devastating effects on an individual’s mental and physical health

tests as a basis to punish incarcerated people for drug possession, allegedly violating the due
process and cruel punishment clauses of the Washington State Constitution. It is not necessary for
the plaintiffs to recite every element of an injunctive or declaratory claim in their complaint so
long as they have pled sufficient facts to satisfy the claims if those facts are proven at trial. See
Grothe, 24 Wn. App. 2d at 763. The plaintiffs pleaded those claims sufficiently to give fair notice
to the Department. See Champagne, 163 Wn.2d at 84.

31
No. 60660-7-II

long after they leave [Department] facilities.’” CP at 9. (quoting Press Release Wash. Dep’t of

Corr., Department of Corrections Pledges to Drastically Reduce Use of Solitary Confinement and

Announces Closure of Minimum Security Prison (June 26, 2023)). The Department’s 2023

Solitary Confinement Transformation Project report acknowledges that solitary confinement can

cause “physical damage[,] . . . the development of health problems, and potential consequences

for mental health and general well-being,” including “increased risk for self-directed violence and

suicide” as well as “slowed brain activity and neurological damage.” CP at 1778. The plaintiffs

further allege that “[t]he international community has recognized more than 15 consecutive days

in solitary confinement . . . as torture.” CP at 8. In light of the plaintiffs’ allegations, as well as the

Department’s acknowledgement of the psychological and physiological harms solitary

confinement can cause, it is conceivable that placing people in solitary confinement, as plaintiffs

allege the Department did to them, “create[s] an objectively significant risk of serious harm.”

Williams, 198 Wn.2d at 363.

Because we are reviewing a dismissal of constitutional claims under CR 12(c), we must

accept the plaintiffs’ allegations as true. They claim that the Department placed them, as well as

others who are incarcerated, in solitary confinement based only or primarily on unconfirmed

colorimetric drug tests, sometimes “for retaliatory purposes.” CP at 10. They also allege that the

Department knew or should have known the tests were highly unreliable and were often performed

without following the manufacturer’s instructions for proper use. The plaintiffs allege, and the

Department acknowledges in its report, serious physical and psychological harms associated with

solitary confinement.

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No. 60660-7-II

The plaintiffs also allege that in light of these serious harms, there would be no legitimate

penological goal behind placing a person in solitary confinement based solely or primarily on tests

that the Department is not using properly and has reason to know are not accurate, unless the

incarcerated person declines laboratory confirmation. To the extent that decisions to use these

unreliable tests on incarcerated people’s belongings were for retaliatory purposes as alleged in the

complaint, it is even clearer that doing so would be unsupported by any legitimate penological

goal. Assuming the facts alleged in the complaint are true, as we must at this stage, we hold that

the plaintiffs have made sufficient allegations to support a claim for injunctive and declaratory

relief based on a violation of their right to be free from cruel punishment. Specifically, the plaintiffs

have made sufficient factual allegations that, if true, would entitle them to a declaration that their

constitutional rights are violated when the Department uses unconfirmed colorimetric tests as a

basis for discipline unless the incarcerated person refuses lab testing, as well as an injunction

ordering the Department to stop doing so. Depending on how the facts develop, they may also be

able to show they are entitled to an order requiring some good time credits to be restored.

B. Due Process

The Department argues that the use of colorimetric tests as the only evidence to support

sanctions does not violate an individual’s due process rights as a matter of law because a positive

result from even an unreliable test constitutes “some evidence,” which is the standard required to

impose discipline in prison. The plaintiffs respond that the colorimetric tests alone do not constitute

“some evidence” because of their unreliability. Assuming the truth of the plaintiffs’ allegations as

we must at this stage of the proceedings, we hold that the plaintiffs have alleged sufficient facts to

support their due process claim.

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No. 60660-7-II

Article I, section 3 of the Washington State Constitution maintains, “No person shall be

deprived of life, liberty, or property, without due process of law.” It is well established that there

is “a constitutionally protected liberty interest in [good time] credits.” In re Pers. Restraint of

Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987).

Due process requires there must be “some evidence” to support a prison disciplinary

decision that results in a “loss of liberty.” In re Pers. Restraint of Grantham, 168 Wn.2d 204, 215-

16, 227 P.3d 285 (2010). There is “some evidence” to support a prison discipline decision if “‘there

is any evidence in the record that could support the conclusion reached by the disciplinary board.’”

Johnston, 109 Wn.2d at 497 (emphasis omitted) (quoting Superintendent, Mass. Corr. Inst. v. Hill,

472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985)). Courts are not required to

“examin[e] . . . the entire record, independent[ly] assess[] . . . the credibility of witnesses, or

weigh[] . . . the evidence.” Id. (quoting Hill, 472 U.S. at 455).

In Johnston, several incarcerated people alleged that the Department violated their due

process rights when it revoked good time credits and imposed solitary confinement after finding

them guilty of drug use based on positive urinalysis test results. 109 Wn.2d at 494. They argued

that “a single positive result” from such a test was insufficient evidence to support their infractions.

Id. at 496.

The Johnston court explained:

“The question, ‘How reliable is the test?’ is one for scientists to resolve; the
question, ‘Is the test sufficiently reliable such that its use as the basis for imposing
disciplinary sanctions against prisoners does not offend constitutional standards?’
is a legal matter to which different standards apply.”

Id. at 499 (quoting Peranzo v. Coughlin, 608 F. Supp. 1504, 1507 (S.D.N.Y. 1985)). The court

then determined that the urinalysis tests constituted some evidence, reasoning that many courts

34
No. 60660-7-II

and scientific sources had found the tests in question to be upwards of 95 percent accurate. Id. It

acknowledged one study that found the test to be only 75 percent accurate, as well as two expert

affidavits that “challenge[d] the reliability of a single” test. Id. at 500. But the court found that

discrepancy “immaterial” based on “the lesser evidentiary standards applicable in prison

disciplinary hearings.” Id.

The plaintiffs here make several broad allegations in their complaint that colorimetric tests

are not, as Johnston requires, “‘sufficiently reliable’” to “‘use as the basis for imposing disciplinary

sanctions against prisoners.’” Id. at 499 (quoting Peranzo, 608 F. Supp. at 1507). The plaintiffs

allege generally that colorimetric tests are “highly unreliable,” CP at 4, “‘only marginally better

than a coin[-]flip,’” CP at 7 (quoting Green, No. 2184CV02283, slip op. at 8 ), and not appropriate

for use “as evidence of the presence or absence of drugs” without confirmatory lab testing, CP at

1. They also make more specific allegations: that the Department is not following manufacturer’s

instructions on how to conduct the tests; that the tests cannot accurately detect spice due to its

varying chemical composition; that the tests are “not designed to be swabbed on paper or mail in

the way that [the Department] is using them” because “the tests can react to trace chemicals

commonly found on paper products[] the same way they would react to the chemicals used to

create synthetic drugs,” CP at 7; and that Department staff members are aware that the tests are

inaccurate and will return false positives on common items, including items sold in the

Department’s own commissary.

Based on the pleadings, it is conceivable that the colorimetric tests at issue in this case are

significantly less reliable than the urinalysis tests in Johnston that most authorities agreed were at

least 95 percent accurate. We do not, at this stage, weigh the evidence to determine whether

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colorimetric tests constitute “some evidence.”18 The plaintiffs alleged sufficient facts in their

complaint that, if true, would support a conclusion that they do not. On a motion for judgment on

the pleadings, we accept the plaintiffs’ allegations as true. P.E. Sys., 176 Wn.2d at 210-11. We

hold that to the extent the plaintiffs had good time credits revoked due to unconfirmed colorimetric

tests, they have stated an adequate claim for injunctive and declaratory relief based on alleged due

process violations.19

C. Mootness

The Department argues that the plaintiffs’ request for injunctive and declaratory relief is

now moot because the Department has changed its policy to allow incarcerated people the right to

request laboratory confirmation.20 The new policy only allows incarcerated people to request

18
We acknowledge the plaintiffs’ invitation to revisit the “some evidence” standard, which Justice
González has argued “does not offer meaningful due process protection to incarcerated people.”
Appellants’ Reply Br. at 18 n.12 (González, J., concurring) (quoting In re Pers. Restraint of Schley,
191 Wn.2d 278, 294, 421 P.3d 951 (2018). Because the “some evidence” standard has been
established by the Washington Supreme Court, we may not impose a different standard.
19
The Department also argues there can be no due process violation as to the Department’s
decision to place the plaintiffs in solitary confinement (or it contends, any disciplinary sanction
other than the revocation of good time credits) because placement in solitary confinement does not
implicate a protected liberty interest. Washington courts have never squarely considered whether
incarcerated people have a liberty interest in avoiding solitary confinement under the state
constitution. We are already reversing and allowing the plaintiffs’ claims for injunctive relief based
on cruel punishment (and due process as to the revocation of good time credits) to proceed.
Because the law is still unsettled as to whether solitary confinement or other punishments can
result in the loss of liberty under the state constitution, we leave this argument for further
development on remand.
20
The Department also complains that the plaintiffs’ request for an injunction to stop “‘the actions,
customs, conditions, policies, and practices described in’ their Complaint” is insufficiently
specific. Resp’t’s Br. at 50 (quoting record). The Department questions whether the plaintiffs are
requesting “an injunction against the use of [colorimetric tests] entirely.” Id. But a holistic reading
of the plaintiffs’ complaint, which repeatedly emphasizes the necessity of confirmatory testing to
verify colorimetric test results, demonstrates that the plaintiffs instead seek an injunction requiring

36
No. 60660-7-II

confirmatory lab testing. In addition, the Department continues to assert it could rely on

colorimetric test results alone to support prison discipline. Thus, the new policy does not render

the plaintiffs’ claims for declaratory and injunctive relief moot.

“An issue is moot if ‘a court can no longer provide effective relief.’” Doe v. Thurston

County, 4 Wn.3d 906, 916, 569 P.3d 1101 (2025) (quoting AURC III, LLC v. Point Ruston Phase

II, LLC, 3 Wn.3d 80, 86, 546 P.3d 385 (2024)). A claim for an injunction is moot only if it is

“absolutely clear [that] the allegedly wrongful behavior could not reasonably be expected to

recur.” State v. Ralph Williams’ N. W. Chrysler Plymouth, Inc., 82 Wn.2d 265, 272, 510 P.2d 233

(1973). Generally, “[v]oluntary cessation of allegedly illegal conduct does not moot a case because

there is still a likelihood of the illegal conduct recurring.” Id. A party arguing that a new policy

moots a case has a “‘heavy burden’” to show that there is no evidence of “gamesmanship” or risk

that it will revert to engaging in the challenged behavior once the threat of litigation has subsided.

Family of Butts v. Constantine, 198 Wn.2d 27, 41, 491 P.3d 132 (2021) (quoting Parents Involved

in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S. Ct. 2738, 168 L. Ed. 2d 508

(2007)).

The Washington Supreme Court has evaluated mootness based on a claim that a voluntary

change to a government policy or practice has eliminated the basis for the plaintiff’s claim. See id.

at 41-42. Mootness depends on whether the government has disavowed the abandoned policy or

continues to assert that the policy was valid. See id. at 41(county executive’s order changing the

challenged policy mooted the plaintiffs’ claim because the executive “made no effort to defend

lab testing in every case where the Department intends to rely on colorimetric tests for disciplinary
action and the incarcerated person does not refuse lab testing. See Champagne, 163 Wn.2d at 84 -
85 (outlining Washington’s liberal pleading standards).

37
No. 60660-7-II

[the old policy’s] legitimacy before [the] court . . . and expressly stated he ‘ha[d] no plans to re-

adopt th[e] provision’”) (quoting record); see also Parents Involved, 551 U.S. at 719 (holding

that the school district’s change of policy did not moot the plaintiffs’ case against it because “the

district vigorously defend[ed] the constitutionality of its race-based program, and nowhere

suggest[ed] that if this litigation [was] resolved in its favor it w[ould] not resume using race to

assign students”) (cited in Butts, 198 Wn.2d at 41).

Here, the plaintiffs’ claims are not moot because the plain language of the Department’s

new policy does not guarantee that people will be entitled to a confirmatory lab test before being

punished based on a positive colorimetric test result. Instead, it states that incarcerated people

“may request laboratory confirmation” for a positive colorimetric test. CP at 1633 (emphasis

added). The policy ensures that people will receive a form to request confirmation with their

infraction report, but it does not promise that the request will be fulfilled or that the positive

colorimetric test will be disregarded if it is not. Additionally, there is no indication in the new

policy that the Department will refrain from placing people in solitary confinement while

confirmation of a positive colorimetric test is pending. And we must accept as true the plaintiffs’

allegation that the Department puts people in solitary confinement while disciplinary proceedings

and appeals are pending.

Even if the Department’s new policy did guarantee access to confirmatory testing, the

Department continues to argue that presumptive drug tests alone are sufficient evidence to support

infractions and has not confirmed that it will not return to its old policy in the future. See, e.g.,

Resp’t’s Br. at 49 (“Plaintiffs cannot show that [colorimetric tests] are so unreliable that their use

as the sole evidence to support disciplinary sanctions violates their due process rights[.]”). Indeed,

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the plaintiffs allege that the Department has continued to punish incarcerated people based on

colorimetric test results without providing laboratory confirmation. Thus, the circumstances in

Butts that persuaded the court that there was no risk of the old policy resurfacing are not present

here. Although the Department could take steps to make more concrete assurances that might

change this analysis, assuming the facts alleged in the complaint are true, we hold that the

plaintiffs’ claims are not moot at this time.21

IV. TORT CLAIMS

The plaintiffs argue that the trial court erred when it dismissed their tort claims for

intentional and negligent infliction of emotional distress.22 The Department responds that the

plaintiffs’ tort claims are barred by sovereign and discretionary immunity and that even if they are

not, the plaintiffs failed to state a claim for either tort.

We conclude that the Department has not shown that either form of immunity bars the

plaintiffs’ claims at this stage of the proceedings. We also conclude that the plaintiffs have stated

a claim for both intentional and negligent infliction of emotional distress.

21
Because the plaintiffs’ requests for injunctive and declaratory relief are not moot, for the same
reasons they have pleaded enough to maintain an injunctive relief claim based on underlying
constitutional violations, the plaintiffs’ declaratory relief claim also survives at this stage in the
litigation.
22
In their complaint, the plaintiffs also brought a general negligence claim. However, they do not
mention this claim in their assignments of error or their opening brief, and we therefore treat it as
abandoned. Although the plaintiffs resurrect the general negligence claim in their reply brief, “[a]n
issue raised and argued for the first time in a reply brief is too late to warrant consideration.”
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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No. 60660-7-II

A. Immunity

1. Sovereign immunity

“Article II, section 26 of the Washington Constitution authorizes the legislature to ‘direct

by law, in what manner, and in what courts, suits may be brought against the state.’” H.B.H. v.

State, 192 Wn.2d 154, 178, 429 P.3d 484 (2018) (quoting WASH. CONST. art. II, § 26). The

legislature has waived the state’s sovereign immunity for most tort suits: “The state of Washington,

whether acting in its governmental or proprietary capacity, shall be liable for damages arising out

of its tortious conduct to the same extent as if it were a private person or corporation.” RCW

4.92.090 (emphasis added).

The Department first claims that it is entitled to sovereign immunity because “internal

management decisions of [the Department] . . . are not comparable to any private activity.”

Resp’t’s Br. at 28. We disagree.

Washington’s waiver of state sovereign immunity is among “‘the broadest . . . in the

country’ and makes the State presumptively liable for all its alleged tortious conduct ‘in all

instances in which the Legislature has not indicated otherwise.’” H.B.H., 192 Wn.2d at 179

(emphasis omitted) (quoting Savage v. State, 127 Wn.2d 434, 444-45, 899 P.2d 1270 (1995)).

Limitations on this broad waiver “have typically been procedural in nature, such as requiring notice

of claims [or] restricting executions on judgments.” Hanson v. Carmona, 1 Wn.3d 362, 379, 525

P.3d 940 (2023). The legislature has also “partially restored immunity for certain limited types of

conduct, such as . . . a statute granting qualified immunity to municipal employees with

responsibilities for electrical utilities.” Id.

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No. 60660-7-II

In H.B.H., former foster children brought a negligence suit against the Department of

Social and Health Services (DSHS). 192 Wn.2d at 158. They alleged that DSHS breached its duty

to protect foster children in its care from foreseeable harm when they placed children with foster

parents and failed to discover abuse by those parents despite receiving several concerning reports.

Id. at 160-61. The Washington Supreme Court rejected DSHS’s argument that it was entitled to

sovereign immunity because its role of placing children in foster care is “a government function

that cannot be undertaken by private persons or corporations.” Id. at 179. The court explained that

although “it is appropriate to draw analogies between the State’s conduct and comparable conduct

performed in the private sector[,] . . . [f]or tort liability to attach, the State does not necessarily

have to be doing something that a private party does.” Id. at 179-80. Instead, “the focus of the

waiver statute is on the presence of tortious conduct, rather than comparable private conduct.” Id.

at 180.

H.B.H. requires only that the government conduct be “analogous, in some degree at least,

to the chargeable misconduct and liability of a private person or corporation.” Id. (quoting

Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 253, 407 P.2d 440 (1965)).

“Under our waiver statute, there is no ‘private analog’ requirement.” Id. The H.B.H. court also

pointed out that in any case, there was analogous private conduct because “private persons entrust

the care of children in their custody to schools, camps, and day care centers on a daily basis” and

that these “are comparable private relationships that give rise to a duty in tort.” Id.

Because the H.B.H. court was clear that there is no private analog requirement, sovereign

immunity does not apply here. The statutory waiver presumptively permits lawsuits for tortious

conduct, and as we explain below, given the procedural posture of this case, the plaintiffs have

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No. 60660-7-II

stated claims for torts. Additionally, the legislature has not explicitly carved out immunity for the

Department. Under H.B.H., it is not fatal to the plaintiffs’ claims if the Department’s conduct is

something that only the government, and not a private party, can do, so long as the Department’s

official conduct is “‘analogous[] in some degree” to “liability of a private person or corporation.’”

Id. at 180 (quoting Evangelical, 67 Wn.2d at 253).

Here, the Department’s general supervision over incarcerated people and its alleged

specific use of unreliable drug testing to impose punishment is analogous to some degree to

conduct that occurs in the private sector. For instance, similar conduct could occur at privately run

detention facilities for youth or immigrants, such as Martin Hall Juvenile Detention Facility or the

Northwest ICE Processing Center. Similar conduct could also occur in private mental health

commitment facilities or private drug treatment centers where residents may not be free to leave

and would depend on the facility for their care and safety. In all of these places, there could be

lawsuits aimed at conditions of confinement that implicate the basis for imposing negative

consequences on residents. And in recent history there has been a direct analog—the Department

has contracted with private prisons, where identical lawsuits could have arisen. See RCW

70.395.030 (making it illegal, with some exceptions, to operate a private detention facility in

Washington but permitting existing contracts for such prisons to continue until their set expiration

dates). Given the minimal analogy that H.B.H. demands and the procedural posture of this case

where the parties have not fully developed the facts, leaving us to consider hypotheticals, we hold

that the State has not established that sovereign immunity applies at this stage.

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No. 60660-7-II

1. Discretionary immunity

The Department next argues that the conduct plaintiffs challenge is the product of “high-

level policy[making] decisions” and is therefore protected by discretionary immunity. Resp’t’s Br.

at 30. The plaintiffs maintain that the Department is not entitled to discretionary immunity because

“[n]othing in the record shows a high-level [Department] executive consciously balanced the risks

and advantages of punishing inmates based on [colorimetric] tests.” Appellants’ Reply Br. at 10.

We conclude that the Department has not shown that discretionary immunity bars the plaintiffs’

claims at this stage of the proceedings.

Even where sovereign immunity is waived, traditional common-law immunities such as

discretionary immunity may still protect certain state actors’ conduct from liability. Evangelical,

67 Wn.2d at 253. This is because a state act that can “be classified as a discretionary governmental

process” is inherently “nontortious.” Id. at 255. State conduct is protected by discretionary

immunity when it involves “‘basic policy decision[making] [that] has been committed to

coordinate branches of government,’” implicating separation of powers concerns. King v. City of

Seattle, 84 Wn.2d 239, 246, 525 P.2d 228 (1974) (quoting Johnson v. State, 69 Cal.2d 782, 793,

73 Cal. Rptr. 240, 447 P.2d 352 (1968)). Whether discretionary immunity applies is generally a

question of law, “although in some instances it may well give rise to a mixed question of law and

fact.” Evangelical, 67 Wn.2d at 253.

Discretionary immunity has five elements: (1) challenged conduct must “necessarily

involve a basic governmental policy, program, or objective”; (2) the conduct must be “essential to

the realization or accomplishment of that policy, program, or objective” or “would not change the

course or direction of the policy, program, or objective”; (3) the conduct must “require the exercise

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No. 60660-7-II

of basic policy evaluation, judgment, and expertise on the part of the governmental agency

involved”; (4) “the governmental agency involved [must] possess the requisite constitutional,

statutory, or lawful authority and duty to do or make the challenged act,” id. at 255; and (5) State

must be able to show that the conduct resulted from a “basic policy decision” made “by a high-

level executive” after “a conscious balancing of risks and advantages.” Avellaneda v. State, 167

Wn. App. 474, 481, 273 P.3d 477 (2012); see also Est. of McCartney v. Pierce County, 22 Wn.

App. 2d 665, 680, 513 P.3d 119 (2022) (characterizing the conscious balancing requirement as “a

fifth factor to the Evangelical test”). Discretionary immunity does not apply unless each element

is “‘clearly and unequivocally’” met. Avellaneda, 167 Wn. App. at 480 (quoting Evangelical, 67

Wn.2d at 255).

Although the Department may be correct that the conduct plaintiffs complain of is rooted

in high-level policy decisions, that alone does not guarantee it will be protected by discretionary

immunity. The Department has not yet shown that its policy of using colorimetric tests to put

people in solitary confinement or revoke their good time credits was “made after consciously

balancing risks and advantages.” McCartney, 22 Wn. App. 2d at 680. While the Department may

be able to make that showing after further factual development, at this stage where we consider

only the pleadings, their attachments, and public documents, the lack of evidence that its conduct

was the result of careful balancing is a bar to finding discretionary immunity at this time.

And even if the Department could show its conduct was the product of conscious risk

balancing, the fourth prong of the Evangelical analysis requires the conduct in question to be

legally authorized. Here, the plaintiffs claim that the Department’s use of unconfirmed

colorimetric tests to punish incarcerated people with solitary confinement or loss of good time

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No. 60660-7-II

violates the Washington Constitution. They allege that the Department knows these tests are

unreliable and that the Department nevertheless uses the tests to impose solitary confinement or

revoke good time credits, sometimes for retaliatory purposes. If true, those facts could establish

statutory or constitutional violations. At this stage of the litigation we must accept the plaintiffs’

allegations as true, and we therefore cannot say at this time that the Department “possess[ed] the

requisite constitutional . . . authority . . . to do . . . the challenged act.” Evangelical, 67 Wn.2d at

255. Thus, we cannot conclude that all of the elements of discretionary immunity are certainly met

at this stage.

B. Outrage or Intentional Infliction of Emotional Distress

The plaintiffs argue that the trial court improperly failed to recognize “‘reasonable minds’

could differ on the question of whether [the Department’s] imposition of punishment based on its

use of [colorimetric] tests was outrageous.” Appellants’ Opening Br. at 41. They note that the trial

court based its decision to dismiss the claim entirely on the persuasive value in Khalif v. McKenzie,

an unpublished Division Three opinion.

The Department responds that its conduct cannot be outrageous as a matter of law because

the Department is legally authorized—and therefore privileged—to use colorimetric tests to make

disciplinary decisions and to make decisions about placing people into solitary confinement for

administrative purposes. The Department further argues that it “has a duty to protect inmate health

and safety” and it uses colorimetric tests “as one tool to combat the introduction of dangerous,

illicit substances” into its prisons. Resp’t’s Br. at 35-36. Because “combat[ting] the introduction

of dangerous, illicit substances . . . is what is expected in a civilized society,” it argues its conduct

is not outrageous. Resp’t’s Br. at 36. The Department also argues that “[f]or an outrage claim to

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No. 60660-7-II

be viable, an individual actor must act outrageously with the intent to cause harm” and that because

the plaintiffs are suing the Department itself rather than any individuals or particular employees,

their claim necessarily fails. Resp’t’s Br. at 35.

We agree with the plaintiffs that their outrage claim should not have been dismissed

because they alleged sufficient facts that, if true, could satisfy the elements of intentional infliction

of emotional distress.

1. Requirements for an Outrage Claim

“The tort of outrage requires the proof of three elements: (1) extreme and outrageous

conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff

of severe emotional distress.” Kloepfel v. Bokor, 149 Wn.2d 192, 195, 66 P.3d 630 (2003). “[T]he

tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions,

or other trivialities.’” Id. at 196 (internal quotation marks omitted) (quoting Grimsby v. Samson,

85 Wn.2d 52, 59, 530 P.2d 291 (1975)). An outrage claim must instead “be predicated on behavior

‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id.

(emphasis omitted) (internal quotation marks omitted) (quoting Grimsby, 85 Wn.2d at 59).

“Although a jury ultimately determines if conduct is sufficiently outrageous, the court

makes the initial determination of whether reasonable minds could differ about ‘whether the

conduct was sufficiently extreme to result in liability.’” Trujillo, 183 Wn.2d at 840 (internal

quotation marks omitted) (quoting Lyons v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 792, 336 P.3d

1142 (2014)). In Trujillo, the plaintiff sued a mortgage corporation for outrage for initiating a

foreclosure even though the corporation had sold its interest in the plaintiff’s loan. Id. at 828-29.

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Although the corporation’s behavior violated the “Deeds of Trust Act,” the Washington Supreme

Court upheld the trial court’s dismissal of the outrage claim on a CR 12(b)(6) motion. Trujillo, 183

Wn.2d at 841. The court concluded, as it had recently done in another case, that this was not the

kind of “extreme” conduct that a reasonable person might find outrageous. Id. at 840 (citing Lyons,

181 Wn.2d at 792).

In addition, conduct that “‘would otherwise be extreme and outrageous, may be

privileged’” when the actor has “a legal privilege to do it.” Reyes v. Yakima Health Dist., 191

Wn.2d 79, 91, 419 P.3d 819 (2018) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. g (AM.

L. INST. 1965)). This is a slightly different issue than whether a government actor’s conduct is

entitled to sovereign or discretionary immunity. Id. (“The invocation of a legal privilege does not

per se immunize one’s conduct from a claim for intentional infliction of emotional distress.”). An

actor is not liable “where [they] ha[ve] done no more than to insist upon [their] legal rights in a

permissible way, even though [they] [are] well aware that such insistence is certain to cause

emotional distress.” Id. (quoting RESTATEMENT § 46 cmt. g). But “[a] suit may arise when the

manner of invoking a legal power intentionally inflicts emotional distress.” Id. at 92.

In Reyes, a patient’s family claimed a health clinic told the patient they would quarantine

him if he did not submit to a tuberculosis treatment regimen. Id. at 91. The patient’s family sued,

alleging that this conduct was outrageous. Id. at 84-85. The Washington Supreme Court affirmed

this court’s grant of summary judgment in the clinic’s favor. Id. at 92. The Supreme Court reasoned

that the clinic’s actions were privileged because it was acting under a “statutory scheme for

diagnosing and treating tuberculosis.” Id. The court noted that “[w]ere an official to use the threat

of quarantine improperly, either to induce action other than compliance with a treatment regimen

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No. 60660-7-II

or where there is no reasonable basis to believe that a quarantine is warranted, a claim [of outrage]

may be warranted.” Id. at 91. Thus, a claim of outrage can survive even if there is general legal

authority supporting an action if the specific manner that the defendant chooses to carry out the

action is outrageous.

1. Khalif v. McKenzie

The trial court relied entirely on the reasoning in Khalif to dismiss the plaintiffs’ outrage

claim. In Khalif, an incarcerated person filed an outrage claim against three Department of

Corrections employees. Khalif, No. 38045-9-III, slip op. at 1. One employee found Khalif in a

different tier from his assigned cell, generally a violation of Department policy, and ordered him

to return to his tier. Id. at 2. Khalif refused because he was in the different tier to complete a work

assignment. Id. The Department employee gave Khalif an infraction for disobeying an order. Id.

As punishment for the infraction, the Department placed Khalif in solitary confinement based on

its administrative segregation policy. Id. Khalif brought outrage claims against this officer and two

other Department employees who mistakenly disciplined him on separate occasions. Id. at 3. The

trial court granted summary judgment for the Department employees. Id.

Division Three of this court affirmed, reasoning that “limited confinement to

administrative segregation . . . is sometimes part of the prison experience, [so] the isolation of

[Khalif] does not amount to extreme or outrageous behavior.” Id. at 7. It noted that it “might rule

that a question of fact existed as to outrageous conduct[] if Khalif presented evidence that one or

more of the [Department] employees intentionally falsified records with the purpose of harming

Khalif.” Id. But Khalif had presented evidence only that he was mistakenly disciplined, and “no

evidence that any officer did so knowingly.” Id.

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1. Plaintiffs’ Outrage Claim

First, the plaintiffs have alleged sufficient facts that, if true, would show that the

Department’s conduct is not legally privileged. Conduct that violates the constitution is not legally

authorized. Although the Department is generally authorized to manage discipline within its

facilities, the plaintiffs have alleged that the Department’s use of unconfirmed colorimetric tests

to punish incarcerated people with solitary confinement or loss of good time credits violates the

Washington State Constitution. At this stage of the proceedings, because the plaintiffs have alleged

a viable claim for constitutional violations based on the same conduct that supports their outrage

claim, they have also sufficiently alleged that the Department’s conduct was not legally privileged.

Additionally, the plaintiffs have alleged a viable claim for outrage based on the specific

manner in which the plaintiffs allege the Department relied on colorimetric tests to punish them.

See Reyes, 191 Wn.2d at 92. Plaintiffs have alleged that the Department knew the colorimetric

tests were unreliable, that it was using the tests contrary to manufacturer instructions, that it knew

items in its own commissary tested positive, and that Department employees regularly joked about

the inaccuracy of the tests. Importantly, the plaintiffs also allege that with this knowledge, the

Department sometimes used colorimetric tests on people’s possessions “for retaliatory purposes.”

CP at 10. Again, we assume for the purposes of a CR 12(b)(6) and CR 12(c) motion that all of the

allegations in the complaint are true.

The plaintiffs have also alleged that some of the punishments imposed based on these

inaccurate tests—particularly solitary confinement and loss of good time credits resulting in longer

sentences—were severe. We have already discussed the alleged harms associated with solitary

confinement above. Additionally, it is conceivable that being forced to remain in prison past one’s

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release date based on intentional retaliatory use of inaccurate tests could cause serious harm. A

reasonable person could conclude that imposing such punishments based on drug tests that the

Department knows are inaccurate and using such tests for purposes of retaliation, as the plaintiffs

allege the Department has done, is extreme and outrageous, which is all that is necessary at this

stage of the litigation.

The Department’s claim that the plaintiffs must identify specific actors does not change

this result. It may be true that, as a practical matter, the plaintiffs will ultimately have to identify

specific Department employees who, for example, used colorimetric tests in a retaliatory manner

in order to prove that the conduct was reckless or intentional. But at this stage, alleging that some

Department employees conducted colorimetric tests with the expectation that they would produce

a false positive or to retaliate against the plaintiffs is enough to survive a motion to dismiss.

Khalif also does not change this result because that case is distinguishable. The court in

Khalif was evaluating a grant of summary judgment, not a grant of judgment on the pleadings. The

Khalif court held that there was no material dispute of fact because Khalif failed to establish

evidence that the officers knew he was innocent when they punished him. Khalif, No. 38045-9-III,

slip op. at 7-8. And the Khalif court acknowledged that an outrage claim might have been

appropriate if Khalif had proved that staff members had disciplined him knowing that he had not

broken any rules. Id. at 7. Here, the plaintiffs needed only to plead facts, which we assume are

true, that would entitle them to relief.

The plaintiffs in this case allege that the Department knew the tests were unreliable, and

corrections officers sometimes knowingly used the tests, which were prone to false positives, to

retaliate against incarcerated people. It may be appropriate to dismiss an outrage claim on the

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No. 60660-7-II

pleadings when existing case law has already established that identical alleged conduct could not

possibly be sufficiently extreme. See Trujillo, 183 Wn.2d at 840. But Khalif is not so similar to the

present case to compel dismissal. Here, taking the plaintiffs’ allegations as true, we must assume

at this stage that the colorimetric tests were knowingly used to retaliate. Therefore, we hold that

judgment on the pleadings was inappropriate as to the outrage claim.

C. Negligent Infliction of Emotional Distress

The plaintiffs next claim that it was error for the trial court to dismiss their negligent

infliction of emotional distress claim based on their failure to allege that the Department’s conduct

caused them physical injury. They argue that “physical injury is not required” to state a claim for

negligent infliction of emotional distress, that the trial court mischaracterized the Department’s

duty by framing it as a narrow duty “‘to protect from physical harm,’” and that in any case, several

of the plaintiffs can show physical harm. Appellants’ Opening Br. at 52-53 (quoting record). The

Department responds that it owes incarcerated people a duty to protect them from physical injury

only. Imposing a duty to protect against emotional distress would “override [its] ability to safely

manage its prisons” to the extent that “emotional distress [is] occasioned by [prison] discipline.”

Resp’t’s Br. at 38. We conclude that in these unique circumstances, the plaintiffs have sufficiently

alleged a claim of negligent infliction of emotional distress to survive a motion to dismiss under

CR 12(c).

1. Negligent infliction of emotional distress requirements

“A plaintiff may recover for negligent infliction of emotional distress if [they] prove[]

negligence, that is, duty, breach of the standard of care, proximate cause, and damage, and prove[]

the additional requirement of objective symptomatology.” Strong v. Terrell, 147 Wn. App. 376,

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387, 195 P.3d 977 (2008). “Each of these issues is a question of fact for the jury to resolve.” Id.

Physical symptoms are not required to fulfill the objective symptomatology requirement. Hegel v.

McMahon, 136 Wn.2d 122, 134, 960 P.2d 424 (1998). Instead, it is enough for a plaintiff to show

“emotional distress . . . susceptible to medical diagnosis and proved through medical evidence.”

Id. at 135.

The Department acknowledged at oral argument that the plaintiffs’ complaint alleged some

physical harm. It is conceivable that some or all of the plaintiffs will be able to prove both physical

and mental health symptoms in light of the plaintiffs’ allegation that solitary confinement causes

devastating effects on mental and physical health. In addition, the Department admits that solitary

confinement can cause “physical damage and the development of health problems” as well as

“consequences for mental health[,] . . . slowed brain activity[,] and neurological damage.” CP at

1. Thus, even if the plaintiffs were required to allege physical harm to overcome a CR 12(c)

motion to dismiss a claim of negligent infliction of emotional distress, they have done so here.

Furthermore, our case law is explicit that plaintiffs can satisfy the objective

symptomatology requirement of a negligent infliction of emotional distress claim with non-

physical, psychological symptoms so long as the symptoms can be medically diagnosed and

proven.

1. Relevance of the Department’s special duty

The Department’s argument that its special duty to incarcerated people extends only to

instances of physical harm essentially invites us to convert the objective symptomatology standard

to a physical harm standard in all negligent infliction of emotional distress cases where the

Department is a defendant. We decline to do so because the special duty is not implicated here.

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“As a matter of tort law, jailers and incarcerated people have a special relationship, which

imposes on the jailer ‘the duty to ensure health, welfare, and safety,’” Anderson v. Grant County,

No. 103111-4, slip op. at 6 (Wash. Mar. 5, 2026)23 (quoting Gregoire v. City of Oak Harbor, 170

Wn.2d 628, 635, 244 P.3d 924 (2010)), and “to keep incarcerated people . . . ‘free from harm,’”

id. (quoting Kusah v. McCorkle, 100 Wash. 318, 325, 170 P. 1023 (1918)). “This duty is

affirmative and nondelegable” and “arises from the custodial nature of incarceration.” Id. At

minimum, the Department’s special duty is a positive one that requires it, in certain circumstances,

to take responsibility for the protection of its charges even where the threat to their safety does not

come from the Department itself. See, e.g., Kusah, 100 Wash. at 325 (special duty rendered sheriff

liable for one jailed person’s attack on another); Shea v. City of Spokane, 17 Wn. App. 236, 242,

562 P.2d 264 (1977) (special duty rendered the City liable for the negligence of an independent

contractor physician).

The only precedential case the Department cites to support its position that it has no duty

to protect incarcerated people’s emotional welfare is Melville v. State,24 where the court held that

the Department had no duty to provide rehabilitative mental health treatment to an incarcerated

person who later shot his ex-wife and daughter after his release. Resp’t’s Br. at 37 (citing Melville,

115 Wn.2d at 38-39). There, the Department was not liable to third parties for a harm inflicted by

a formerly incarcerated person. Melville, 115 Wn.2d at 39.

Here, by contrast, the plaintiffs accuse the Department of negligently inflicting emotional

distress on them directly through the Department’s own acts. The existence of a heightened duty

23
https://www.courts.wa.gov/opinions/pdf/1031114.pdf
24
115 Wn.2d 34, 793 P.2d 952 (1990).

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does not somehow obviate or reduce the ordinary duty of reasonable care to ensure one’s own

conduct does not harm another. For this reason, we decline to apply Melville to add a physical

harm requirement to the objective symptomatology element of negligent infliction of emotional

distress in all cases involving the Department.

The Department’s argument that permitting the plaintiffs to bring a claim for emotional

distress damages will “override [its] ability to safely manage its prisons” does not persuade us

otherwise. Resp’t’s Br. at 38. The Department is correct that it has broad authority to discipline

incarcerated people and a duty to keep its prisons safe by making efforts to prevent the introduction

of controlled substances. And a certain amount of emotional distress is an unavoidable byproduct

of life in prison. We agree that permitting negligence claims every time an incarcerated person has

experienced severe emotional distress as a result of prison discipline would unreasonably restrict

the Department’s ability to safely manage its prisons.

But the specific circumstances the plaintiffs describe here go beyond the sort of ordinary

“incidents of prison life” that the Department contends can never support a claim for emotional

damages. Resp’t’s Br. at 38. The plaintiffs allege that the Department was aware that colorimetric

tests are highly unreliable and regularly produced false positives, was misusing the tests by

swabbing them on paper and other belongings rather than the powdered substances they were

designed for, was allowing corrections officers to use highly unreliable colorimetric tests to

retaliate against inmates, and refused requests for confirmatory testing before imposing

punishments such as solitary confinement and reduction in good time credits, resulting in the

delayed release dates. It is conceivable that the Department knew these actions were likely to cause

severe emotional distress in some cases.

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Placement in solitary confinement for disciplinary reasons is not automatically tortious just

because it is likely to cause emotional distress, objectively diagnosable mental health problems,

and even physical symptoms. But the specific manner in which the Department allegedly imposed

discipline here could support a claim for negligent infliction of emotional distress if the plaintiffs

can prove the allegations asserted in the complaint. Such allegations are all that is necessary to

survive a CR 12(c) motion to dismiss. And in any case, as explained above, the plaintiffs have also

alleged the physical harm that the Department incorrectly believes is required. We hold that it was

error to dismiss the plaintiffs’ claim for negligent infliction of emotional distress in these unique

circumstances.

V. AVAILABILITY OF CONSTITUTIONAL DAMAGES

The plaintiffs ask us to recognize an implied cause of action for damages against the

Department for violations of the state constitution. They claim that at least seven other states have

done so, at least for certain constitutional violations, especially when “other avenues to damages .

. . remain unavailable.” Appellants’ Opening Br. at 53.25 The plaintiffs note that Washington courts

have previously deferred ruling on the issue of whether there can be a cause of action for state

constitutional damages. They argue that if we reach this issue, we should hold that such an action

exists because the plaintiffs have “provided a reasoned and principled basis” for it. Appellants’

Opening Br. at 63.

25
The plaintiffs contend that those states are Connecticut, Maryland, New Jersey, New York,
North Carolina, Michigan, and Nevada.

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The Department responds that neither the state constitution nor the legislature has

“provided any method by which individuals may seek damages against the State for state

constitutional violations.” Resp’t’s Br. at 19.

We decline to recognize a cause of action for damages based on the alleged constitutional

violations at this time.

A. Due Process

This court has already held that the due process clause of the Washington State

Constitution, absent “augmenting legislation,” does not “establish a cause of action for money

damages against the state.” Spurrell v. Bloch, 40 Wn. App. 854, 862, 701 P.2d 529 (1985).

Therefore, the plaintiffs cannot bring a claim for damages based on their allegation that the

Department violated their right to due process under current law.

B. Cruel Punishment

Washington courts have never directly ruled on whether the cruel punishment clause of the

Washington State Constitution supports a damages claim, but the Washington Supreme Court has

addressed other provisions of the state constitution.

In Reid v. Pierce County, the Washington Supreme Court evaluated whether plaintiffs

should be permitted to bring an action for damages based on a violation of article I, section 7 of

the Washington State Constitution, which protects the right to privacy. 136 Wn.2d 195, 213, 961

P.2d 333 (1998). Having already held that the plaintiffs’ alleged facts were sufficient to make out

common-law invasion of privacy tort claim based on the same conduct, the court explicitly

reserved the issue:

We feel, at this time, that Plaintiffs may obtain adequate relief under the common
law and that such actions are better addressed under the common law invasion of

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privacy action. Plaintiffs have not presented a reasoned or principled basis upon
which to construct a constitutional cause of action, nor have they established why
a constitutional cause of action is more appropriate than the common law cause of
action which already exists. Because we hold Plaintiffs are entitled to maintain an
action for invasion of privacy under the common law, we decline to reach this issue
in this case.

Id. at 213-14.

Similarly, in Blinka v. Wash. State Bar Ass’n, Division One of this court declined to

recognize a cause of action for damages for violations of article I, section 5 of the Washington

State Constitution, which protects freedom of speech. 109 Wn. App. 575, 591, 36 P.3d 1094

(2001). The court reasoned that without legislative guidance, the court is in a “‘poor position’” to

determine “‘what limitations on liability should be imposed’” for constitutional violations. Id.

(quoting Hunter v. City of Eugene, 309 Or. 298, 303-04, 787 P.2d 881 (1990)).

We lack legislative guidance as to the contours of the plaintiffs’ proposed constitutional

action for damages. And the plaintiffs have acknowledged that the tort claims through which they

seek damages would be an adequate remedy.

Following the Reid court’s lead, we decline to rule on the question of whether there is a

constitutional cause of action for damages for violations of the cruel punishment clause because

the plaintiffs currently have an adequate remedy at law in the form of their common-law tort claims

and we lack legislative guidance on the limitations of such a claim.26

26
Because we need not decide whether constitutional damages are available due to the continuing
viability of the plaintiffs’ common-law tort claims, we do not address the Department’s argument
that any potential claim for constitutional damages would be barred by sovereign immunity
because constitutional violations require a state actor.

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No. 60660-7-II

VI. TRIAL COURT’S DECISIONS TO DEFER CLASS CERTIFICATION AND STAY DISCOVERY

Finally, the plaintiffs contend that the trial court abused its discretion in two ways: by

deferring class certification and inviting the Department to bring a dispositive motion for judgment

on the pleadings, and by staying discovery until it ruled on the dispositive motion. They argue that

while the trial court may have discretion to defer ruling on class certification until it hears

dispositive motions, it cannot defer ruling in order to invite a dispositive motion.

We review a decision to stay proceedings for abuse of discretion. King v. Olympic Pipeline

Co., 104 Wn. App. 338, 348, 16 P.3d 45 (2000). “A trial court abuses its discretion when its

decision ‘is manifestly unreasonable or based upon untenable grounds or reasons.’” Salas v. Hi-

Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d

668, 701, 940 P.2d 1239 (1997)). “[A] trial court retains discretion, for purposes of judicial

economy, to delay ruling on a motion for class certification until after hearing dispositive

motions.” Sheehan v. Cent. Puget Sound Reg’l Transit Auth., 155 Wn.2d 790, 807, 123 P.3d 88

(2005). “Whether a court abuses its discretion in controlling discovery depends on the interests

affected and the reasons for and against the decision.” King, 104 Wn. App. at 348.

Here, in the Department’s opposition to the plaintiffs’ motion to certify the class, the

Department argued that only a PRP, and not a class action lawsuit, was an acceptable avenue for

the plaintiffs’ claims. The plaintiffs responded by referring to this argument as a “de facto motion

to dismiss” and explained to the court that it did not respond to the issue in its reply because it

lacked space to do so after addressing the class action requirements of CR 23. 2 VRP at 76. The

trial court invited the Department to bring a proper motion to dismiss so that the plaintiffs would

have a full opportunity to respond. The plaintiffs acknowledge that trial courts are generally

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permitted to defer ruling on class certification to hear dispositive motions, and the trial court’s

invitation provided the plaintiffs with an opportunity to fully respond to the Department’s

argument. The trial court did not abuse its discretion.

Similarly, we hold that the trial court did not abuse its discretion when it stayed discovery.

Significant discovery had already been completed at the time of the stay. The trial court issued the

stay because the plaintiffs would not need additional discovery to adequately respond. It is

reasonable for a trial court to stay discovery in advance of a CR 12(c) motion, which is a legal

motion determined on the pleadings. See Long v. Snoqualmie Gaming Comm’n, 7 Wn. App. 2d

672, 690, 435 P.3d 339 (2019) (trial court did not abuse its discretion when it “stay[ed] discovery

pending a determination about immunity from suit,” which in that case could “be determined on

the basis of the law”). Therefore, the stay was not an abuse of discretion.

CONCLUSION

We affirm the trial court’s order dismissing the plaintiffs’ constitutional damages claims

under CR 12(b)(6) and the trial court’s decisions to defer class certification and stay discovery.

We otherwise reverse and remand to the trial court for further proceedings consistent with this

opinion.

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A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

GLASGOW, J.
We concur:

LEE, J.

VELJACIC, A.C.J.

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