In the Matter of the Personal Restraint of: Anthony Marcel Millspaugh

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of
ANTHONY MARCEL MILLSPAUGH,
Petitioner.
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No. 37283-9-III
UNPUBLISHED OPINION
LAWRENCE-BERREY, J. — In December 2019, Anthony Millspaugh filed this
personal restraint petition (PRP) seeking to nullify sanctions resulting from three prison
disciplinary hearings in 2004 and 2005. Our divisional chief judge referred the following
question to this panel: whether any limitations period or preclusion doctrine applies
to this petition. We agree with In re Personal Restraint of Heck, 14 Wn. App. 2d 335,
470 P.3d 539 (2020): Millspaugh’s petition is subject to the two-year period of
limitations of RCW 4.16.130.
FACTS
In 2003, Anthony Millspaugh pleaded guilty to one count of second degree murder
with a firearm enhancement. The trial court sentenced Millspaugh to a term of 240
months’ confinement.
FILED
JANUARY 7, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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PRP of Millspaugh
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In 2004, Millspaugh was transferred from Washington to Colorado. That summer,
a prison riot occurred resulting in serious property damage. Following a months-long
investigation, Millspaugh was issued a serious infraction report for behavior alleged to
have occurred during the riot. Millspaugh attended a disciplinary hearing on
November 23, 2004. The hearing officer found Millspaugh guilty of two infractions—
rioting and refusing an order to disperse. Millspaugh was sanctioned with 30 days’
putative segregation and the loss of 200 days’ good conduct time. The minutes of
proceedings were signed by Millspaugh and the hearing officer.
In February 2005, Millspaugh broke the sprinkler head in his cell. When
corrections officers attempted to handcuff him, he resisted. Officers used chemical
agents to subdue him, but he knocked them from an officer’s hand and sprayed the
officers. Millspaugh received infractions for assaulting a staff member and tampering
with fire equipment. On February 23, 2005, Millspaugh attended a disciplinary hearing.
The hearing officer found Millspaugh guilty of both infractions and sanctioned him 180
days of good conduct time.1 The hearing officer signed the minutes but did not include
his rank.
1 Below the signatures, the notation “Appeal requested” is handwritten. Neither
party addresses this, but the record shows no appeal following the February 23, 2005
disciplinary hearing.

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The next month, Millspaugh was transferred to Arizona. In August 2005,
corrections officers found a sharpened toothbrush in Millspaugh’s cell and issued him an
infraction for possessing a sharpened instrument. A hearing was held on August 23,
2005, where Millspaugh admitted to possession of the toothbrush and pleaded guilty. The
hearing officer sanctioned Millspaugh to loss of 168 days2 of good time. The officer
signed the minutes but did not include his or her rank.
In June 2010, Millspaugh was transferred back to Washington, where he remains
incarcerated. He has sought collateral relief on at least four occasions and this court has
dismissed his petitions.
In December 2019, Millspaugh filed this PRP raising due process challenges to the
three disciplinary hearings described above. The Department of Corrections
(Department) filed a motion to dismiss under RAP 16.4(d), arguing the petition is time
barred. Millspaugh responded that there is no period of limitations applicable to PRPs
challenging a prison disciplinary hearing and asks that his petition be determined on its
merits.
While this matter was pending, Division One of this court issued In re Personal
Restraint of Heck, 14 Wn. App. 2d 335. In Heck, Division One concluded that
2 The hearings form uses the term “hours,” but both parties agree this is a

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RCW 4.16.130, which provides a two-year period of limitations, applies to PRPs
challenging a prison disciplinary hearing. Id. at 341. The parties filed supplemental
briefing upon our request.
ANALYSIS
The Department argues that RCW 7.36.130(1), which has a one-year period of
limitations, applies to PRPs challenging a prison disciplinary hearing. In the alternative,
it argues that RCW 4.16.130—the catch-all statute of limitations for civil actions—
applies. We address each argument in turn.
RCW 7.36.130(1)
The Department, relying on RCW 7.36.130(1), argues the one-year time bar for
habeas corpus actions applies to Millspaugh’s petition. That statute provides:
No court or judge shall inquire into the legality of any judgment or process
whereby the party is in custody, or discharge the party when the term of
commitment has not expired, in either of the cases following:
(1) Upon any process issued on any final judgment of a court of
competent jurisdiction except where it is alleged in the petition that rights
guaranteed the petitioner by the Constitution of the state of Washington or
of the United States have been violated and the petition is filed within the
time allowed by RCW 10.73.090 and 10.73.100.
RCW 10.73.090(1) provides:
typographical error.

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No petition or motion for collateral attack on a judgment and sentence in a
criminal case may be filed more than one year after the judgment becomes
final if the judgment and sentence is valid on its face and was rendered by a
court of competent jurisdiction.
(Emphasis added.)
RCW 10.73.090(3) provides:
For the purpose of this section, a judgment becomes final on the last of the
following dates:
(a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate disposing of a
timely direct appeal from the conviction; or
(c) The date that the United States Supreme Court denies a timely
petition for certiorari to review a decision affirming the conviction on direct
appeal. . . .
A prison disciplinary hearing can occur more than one year after an incarcerated
person’s judgment has become final. Were we to adopt the Department’s argument, the
remedy of a PRP would be unavailable to those persons. Yet, it is undisputed that this
remedy is, and must be, available to all persons challenging a prison disciplinary hearing.
For this reason, we conclude that the one-year time bar of RCW 7.36.130(1) is
inapplicable.
RCW 4.16.130
RCW 4.16.130 provides: “An action for relief not hereinbefore provided for, shall
be commenced within two years after the cause of action shall have accrued.” This

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provision “serves as a limitation for any cases not fitting into the other limitation
provisions.” Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 721, 709 P.2d 793
(1985); accord In re Marriage of Goodyear-Blackburn, 12 Wn. App. 2d 798, 802, 460
P.3d 202 (concluding the two-year limitation in RCW 4.16.130 controls unless a party can
point to a specific statute of limitations), review denied, 196 Wn.2d 1003, 471 P.3d 180
(2020).
Millspaugh argues that RCW 4.16.130 is inapplicable because a PRP is not a
“cause of action.” We disagree.
A “cause of action” includes “‘a factual situation that entitles one person to obtain
a remedy in court from another person.’” Estate of Dormaier v. Columbia Basin
Anesthesia, PLLC, 177 Wn. App. 828, 854 n.9, 313 P.3d 431 (2013) (quoting BLACK’S
LAW DICTIONARY 251 (9th ed. 2009)). Persons bringing PRPs assert facts that entitle
them to obtain a remedy in court from the Department. A PRP therefore is a “cause of
action.”
We agree with our sister division’s decision of In re Personal Restraint of Heck,
14 Wn. App. 2d 335: a PRP challenging a prison disciplinary hearing must be brought
within two years of the challenged decision.

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PRP of Millspaugh
With the consent of our divisional chief judge, we dismiss this PRP.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Pennell, C.J. 	Siddoway, 1:
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