U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:17-cv-06002-RBL-DWC

Bango et al v Pierce County, Washington et al Assigned to: Judge Ronald B. Leighton Referred to: Judge David W. Christel Cause: 42:1983 Prisoner Civil Rights

Date Filed: 12/04/2017 Date Terminated: 10/29/2018 Jury Demand: Defendant Nature of Suit: 555 Prisoner Petitions (Prison Condition) Jurisdiction: Federal Question

Plaintiff Donald Bango

represented by Antoinette Marie Davis ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: tdavis@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eunice Cho AMERICAN CIVIL LIBERTIES UNION OF WA 901 5TH AVENUE STE 630 SEATTLE, WA 98164 206-624-2184 Email: echo@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janelle Ellen Chase Fazio GORDON THOMAS HONEYWELL LLP (TAC) 1201 PACIFIC AVENUE SUITE 2100 TACOMA, WA 98402 253-620-6424 Email: jchasefazio@gth-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Scott Bailey individually and on behalf of all others similarly situated

Sal Mungia GORDON THOMAS HONEYWELL LLP (TAC) 1201 PACIFIC AVENUE SUITE 2100 TACOMA, WA 98402 253-620-6500 Fax: 253-620-6565 Email: smungia@gth-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Wolfe ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: jwolfe@aclu-wa.org TERMINATED: 08/24/2018
represented by Antoinette Marie Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janelle Ellen Chase Fazio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sal Mungia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Wolfe (See above for address) TERMINATED: 08/24/2018

V. Defendant Pierce County, Washington
Defendant Bruce Dammeier in his official capacity as Pierce County Executive TERMINATED: 03/28/2018
Defendant Pierce County Sheriff's Department

represented by Frank Cornelius PIERCE COUNTY PROSECUTING ATTORNEY'S OFFICE (CIVIL) CIVIL DIVISION 955 TACOMA AVE S STE 301 TACOMA, WA 98402-2160 253-798-6514 Email: fcornel@co.pierce.wa.us ATTORNEY TO BE NOTICED
Michelle Luna-Green PIERCE COUNTY PROSECUTING ATTORNEY'S OFFICE (CIVIL) CIVIL DIVISION 955 TACOMA AVE S STE 301 TACOMA, WA 98402-2160 253-798-6732 Email: michelle.lunagreen@piercecountywa.gov ATTORNEY TO BE NOTICED
represented by Frank Cornelius (See above for address) ATTORNEY TO BE NOTICED
Michelle Luna-Green (See above for address) ATTORNEY TO BE NOTICED
represented by Frank Cornelius (See above for address) ATTORNEY TO BE NOTICED
Michelle Luna-Green

Defendant Paul A Pastor in his official capacity as Pierce County Sheriff TERMINATED: 03/28/2018
Defendant Patti Jackson-Kidder in her official capacity as the Pierce County Chief of Corrections TERMINATED: 03/28/2018
Defendant Janet Rhoton in her official capacity as the Pierce County Jail Mental Health Manager, and their officers, agents, employees, and successors TERMINATED: 03/28/2018

(See above for address) ATTORNEY TO BE NOTICED
represented by Frank Cornelius (See above for address) ATTORNEY TO BE NOTICED
Michelle Luna-Green (See above for address) ATTORNEY TO BE NOTICED
represented by Frank Cornelius (See above for address) ATTORNEY TO BE NOTICED
Michelle Luna-Green (See above for address) ATTORNEY TO BE NOTICED
represented by Frank Cornelius (See above for address) ATTORNEY TO BE NOTICED
Michelle Luna-Green (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/04/2017

# Docket Text
1 COMPLAINT Class Action for Declaratory Relief and Injunctive Relief against defendant(s) All Plaintiffs (Receipt # 0981-5114105), filed by Donald Bango. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Pierce County, WA, # 3 Summons Bruce Dammeier, PC Executive, # 4 Summons PC Sheriff's Dept, # 5 Summons Paul A. Pastor, PC Sheriff, # 6 Summons Patti Jackson-Kidder - PC Chief of Corrections, # 7 Summons Janet Rhoton, PC Jail Mental Health Mgr)(Mungia, Sal) (Entered: 12/04/2017)

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12/07/2017 12/13/2017

2 MOTION to Certify Class , filed by Plaintiffs Scott Bailey, Donald Bango. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 1/5/2018, (Mungia, Sal) (Entered: 12/04/2017)
3 DECLARATION of Salvador Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 2 MOTION to Certify Class (Mungia, Sal) (Entered: 12/04/2017)
4 DECLARATION of Emily Chiang filed by Plaintiffs Scott Bailey, Donald Bango re 2 MOTION to Certify Class (Mungia, Sal) (Entered: 12/04/2017)
5 NOTICE to Withdraw Pending Motion re 2 MOTION to Certify Class ; by Plaintiffs Scott Bailey, Donald Bango. (Mungia, Sal) (Entered: 12/06/2017)
6 MOTION to Certify Class , filed by Plaintiffs Scott Bailey, Donald Bango. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 1/5/2018, (Mungia, Sal) (Entered: 12/06/2017)
7 DECLARATION of Salvdora A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 6 MOTION to Certify Class (Mungia, Sal) (Entered: 12/06/2017)
8 DECLARATION of Emily Chiang filed by Plaintiffs Scott Bailey, Donald Bango re 6 MOTION to Certify Class (Mungia, Sal) (Entered: 12/06/2017)
Judge Ronald B. Leighton and Judge J Richard Creatura added. (SP) (Entered: 12/06/2017)
Case Referral Reassigned to Magistrate Judge David W. Christel. All future filings shall bear the following case number: 3:17-cv-06002RBL-DWC. (SP) (Entered: 12/06/2017)
9 Summons(es) Electronically Issued as to defendant(s) Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(SP) (Entered: 12/06/2017)
10 NOTICE of Appearance by attorney Michelle Luna-Green on behalf of Defendant Pierce County, Washington. (Luna-Green, Michelle) (Entered: 12/07/2017)
11 NOTICE of Appearance by attorney Michelle Luna-Green on behalf of Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor,

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12/21/2017 12/21/2017 01/04/2018

Pierce County Sheriff's Department, Janet Rhoton. (Luna-Green, Michelle) (Entered: 12/13/2017)
12 WAIVER OF SERVICE of summons upon defendant Bruce Dammeier mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
13 WAIVER OF SERVICE of summons upon defendant Janet Rhoton mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
14 WAIVER OF SERVICE of summons upon defendant Patti JacksonKidder mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
15 WAIVER OF SERVICE of summons upon defendant Pierce County, Washington mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
16 WAIVER OF SERVICE of summons upon defendant Pierce County Sheriff's Department mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
17 WAIVER OF SERVICE of summons upon defendant Paul A Pastor mailed on 12/4/2017 (Luna-Green, Michelle) (Entered: 12/13/2017)
18 NOTICE to Withdraw Pending Motion re 6 MOTION to Certify Class ; by Plaintiffs Scott Bailey, Donald Bango. (Mungia, Sal) (Entered: 12/21/2017)
19 STRICKEN PER 68 ORDER Motion to Certify Class , filed by Plaintiffs Scott Bailey, Donald Bango. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 1/26/2018, (Mungia, Sal) Modified on 8/3/2018 (GMR). (Main Document 19 replaced on 8/3/2018) (GMR). (Entered: 12/21/2017)
20 DECLARATION of Emily Chiang filed by Plaintiffs Scott Bailey, Donald Bango re 19 MOTION to Certify Class (Mungia, Sal) (Entered: 12/21/2017)
21 DECLARATION of Salvador A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 19 MOTION to Certify Class (Mungia, Sal) (Entered: 12/21/2017)
22 MOTION to Continue Plaintiffs' Motion for Class Certification, filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton. (Attachments: # 1 Proposed Order) Noting Date 1/12/2018, (Luna-Green, Michelle) (Entered: 01/04/2018)

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01/05/2018 01/10/2018 01/11/2018 02/02/2018 02/02/2018 02/02/2018 02/26/2018 02/26/2018

23 DECLARATION of Michelle Luna-Green filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton re 22 MOTION to Continue Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Luna-Green, Michelle) (Entered: 01/04/2018)
24 NOTICE of Appearance by attorney Frank Cornelius on behalf of Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton. (Cornelius, Frank) (Entered: 01/05/2018)
25 NOTICE to Withdraw Pending Motion re 22 MOTION to Continue Plaintiffs' Motion for Class Certification ; by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton. (LunaGreen, Michelle) (Entered: 01/10/2018)
26 NOTICE that the following is RE-NOTED: 19 MOTION to Certify Class . Filed by Plaintiffs Scott Bailey, Donald Bango. Noting Date 3/2/2018, (Mungia, Sal) (Entered: 01/11/2018)
27 MOTION to Dismiss , filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton. (Attachments: # 1 Proposed Order) Noting Date 3/2/2018, (Cornelius, Frank) (Entered: 02/02/2018)
28 DECLARATION of Frank Cornelius filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton re 27 MOTION to Dismiss (Cornelius, Frank) (Entered: 02/02/2018)
29 CERTIFICATE OF SERVICE by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton re 27 MOTION to Dismiss , 28 Declaration of Frank Cornelius (Cornelius, Frank) (Entered: 02/02/2018)
30 STIPULATION AND PROPOSED ORDER to Continue Plaintiffs Motion for Class Certification by parties re 19 MOTION to Certify Class (Luna-Green, Michelle) (Entered: 02/26/2018)
31 RESPONSE, by Plaintiffs Scott Bailey, Donald Bango, to 27 MOTION to Dismiss . (Attachments: # 1 Proposed Order on Defendant's 12(b)(1) Motion to Dismiss)(Davis, Antoinette) (Entered: 02/26/2018)

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03/28/2018

32 DECLARATION of Antoinette M. Davis filed by Plaintiffs Scott Bailey, Donald Bango re 27 MOTION to Dismiss (Attachments: # 1 Exhibit A-C)(Davis, Antoinette) (Entered: 02/26/2018)
33 STIPULATION AND ORDER re 30 Stipulation to continue: Plaintiffs' pending 19 MOTION to Certify Class shall be continued to Friday, 6/8/2018. Signed by Magistrate Judge David W. Christel. (CMG) Modified on 2/27/2018: corrected typo (CMG). (Entered: 02/27/2018)
34 REPLY, filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton, TO RESPONSE to 27 MOTION to Dismiss (Luna-Green, Michelle) (Entered: 03/02/2018)
35 DECLARATION of Frank Cornelius filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton re 27 MOTION to Dismiss (Luna-Green, Michelle) (Entered: 03/02/2018)
36 DECLARATION of Michelle Luna-Green filed by Defendants Bruce Dammeier, Patti Jackson-Kidder, Paul A Pastor, Pierce County Sheriff's Department, Pierce County, Washington, Janet Rhoton re 27 MOTION to Dismiss (Luna-Green, Michelle) (Entered: 03/02/2018)
37 NOTICE of Hearing on Motion re 27 MOTION to Dismiss : Oral Argument Hearing set for 3/29/2018 at 10:00 AM in C Courtroom before Judge David W. Christel.(KEB) (Entered: 03/15/2018)
38 STIPULATION (Agreed Motion) to Dismiss Defs Dammeier, Pastor, Jackson-Kidder, Rhoton ONLY by parties (Attachments: # 1 Proposed Order)(Mungia, Sal) (Entered: 03/27/2018)
39 ORDER on 38 STIPULATION (Agreed Motion) to Dismiss Specific Defendants granting 27 Motion to Dismiss; Paul A Pastor (in his official capacity as Pierce County Sheriff), Janet Rhoton (in her official capacity as the Pierce County Jail Mental Health Manager, and their officers, agents, employees, and successors), Bruce Dammeier (in his official capacity as Pierce County Executive), and Patti Jackson-Kidder (in her official capacity as the Pierce County Chief of Corrections) (ONLY) are DISMISSED without prejudice and without an award of attorneys' fees or costs to any party; this matter remains open for further proceedings; signed by Judge Ronald B. Leighton.(DN) Modified on 3/28/2018 to correctly identify Motion for which this Order actually relates/rules upon (GMR). (Entered: 03/28/2018)
NOTICE of Docket Text Modification re 39 Order on 38 STIPULATION (Agreed Motion) to Dismiss Specific

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04/17/2018
04/30/2018 05/07/2018 05/10/2018 05/11/2018 05/15/2018 05/21/2018

Defendants granting 27 Motion to Dismiss. Docket entry modified to correctly identify the Motion for which the Order rules. 27 Motion to Dismiss remains pending. (GMR) (Entered: 03/28/2018)
40 MINUTE ENTRY for proceedings held before Judge David W. Christel- Dep Clerk: Kim Brye; Pla Counsel: Sal Mungia, Jessica Wolfe, Janelle Ellen Chase; Def Counsel: Frank Cornelius, Michelle Luna-Green; CR: Barry Fanning; Time of Hearing: 10:00 AM; Courtroom: C;Motion Hearing held on 3/29/2018 re 27 MOTION to Dismiss filed by Pierce County Sheriff's Department, Pierce County, Washington, Bruce Dammeier, Patti Jackson-Kidder, Janet Rhoton, Paul A Pastor. Parties argue motion. Court to issue written order. (KEB) (Entered: 03/29/2018)
41 REPORT AND RECOMMENDATION as to the 27 MOTION to Dismiss filed by Pierce County Sheriff's Department, Pierce County, Washington, Bruce Dammeier, Patti Jackson-Kidder, Janet Rhoton, and Paul A Pastor; signed by Magistrate Judge David W. Christel. Noted for: 5/4/2018. (Attachments: # 1 Proposed Order)(SP) (Entered: 04/17/2018)
42 OBJECTIONS by Plaintiffs Scott Bailey, Donald Bango to 41 Report and Recommendations,. Noting Date 5/4/2018, (Mungia, Sal) (Entered: 04/30/2018)
43 ORDER ADOPTING REPORT AND RECOMMENDATION re 42 Objections to Report and Recommendation filed by Scott Bailey, Donald Bango; the Report and Recommendation re dismissal is ADOPTED, plaintiffs' complaint is DISMISSED Without Prejudice; signed by Judge Ronald B. Leighton. (DN) (Entered: 05/07/2018)
44 JUDGMENT BY COURT in favor of Pierce County, Washington and Pierce County Sheriff's Department against Donald Bango and Scott Bailey.(SP) (Main Document 44 replaced on 5/10/2018) (SP). (Entered: 05/10/2018)
45 MOTION for Reconsideration and Relief from Judgment, filed by Plaintiffs Scott Bailey, Donald Bango. (Attachments: # 1 Proposed Order for Clarification/Reconsideration and Relief from Judgment) Noting Date 5/11/2018, (Davis, Antoinette) (Entered: 05/11/2018)
46 ORDER granting 45 Motion for Reconsideration; signed by Judge Ronald B. Leighton.(DN) (Entered: 05/15/2018)
47 ANSWER to 1 Complaint, with JURY DEMAND by Pierce County Sheriff's Department, Pierce County, Washington.(Cornelius, Frank) (Entered: 05/21/2018)

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06/14/2018 06/14/2018

48 MINUTE ORDER: Due to administrative error this case was inadvertently closed on 5/10/18. The Court granted Plaintiffs' Motion for Clarification/Reconsideration 46 on 5/15/18, therefore this case is re-referred to Magistrate Judge David W. Christel. (DK) (Entered: 05/29/2018)
49 NOTICE that the following is RE-NOTED: 19 MOTION to Certify Class Filed by Plaintiffs Scott Bailey, Donald Bango. Noting Date 8/17/2018, (Wolfe, Jessica) Modified on 7/20/2018 to link to underlying motion (SP). (Entered: 05/30/2018)
50 Discovery Deadlines ORDER: FRCP 26f Conference Deadline is 6/22/2018, Initial Disclosure Deadline is 7/6/2018, Discovery Plan due by 7/13/2018; signed by Magistrate Judge David W. Christel. (SP) (Entered: 06/01/2018)
51 NOTICE of Unavailability of counsel Frank Cornelius for Defendants Pierce County Sheriff's Department, Pierce County, Washington from 06/20/2018-06/22/2018. (Cornelius, Frank) (Entered: 06/06/2018)
52 MOTION Strike Plaintiffs' Motion for Class Certification , filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington. (Attachments: # 1 Proposed Order) Noting Date 6/22/2018, (Cornelius, Frank) (Entered: 06/07/2018)
53 DECLARATION of Frank Cornelius filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 52 MOTION Strike Plaintiffs' Motion for Class Certification (Cornelius, Frank) (Entered: 06/07/2018)
54 MOTION to Compel and for Order of Protection, filed by Plaintiffs Scott Bailey, Donald Bango. (Attachments: # 1 Proposed Order Granting Plaintiffs Motion to Compel and for Order of Protection, # 2 Proposed Order Protective Order for the Confidential Treatment of Documents or Information) Noting Date 6/29/2018, (Davis, Antoinette) (Entered: 06/14/2018)
55 DECLARATION of Salvador A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 54 MOTION to Compel and for Order of Protection (Davis, Antoinette) (Entered: 06/14/2018)
56 DECLARATION of Jessica Wolfe filed by Plaintiffs Scott Bailey, Donald Bango re 54 MOTION to Compel and for Order of Protection (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Davis, Antoinette) (Entered: 06/14/2018)

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57 DECLARATION of Antoinette M. Davis filed by Plaintiffs Scott Bailey, Donald Bango re 54 MOTION to Compel and for Order of Protection (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Davis, Antoinette) (Entered: 06/14/2018)
58 RESPONSE, by Plaintiffs Scott Bailey, Donald Bango, to 52 MOTION Strike Plaintiffs' Motion for Class Certification . (Mungia, Sal) (Entered: 06/18/2018)
59 DECLARATION of Salvador A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 52 MOTION Strike Plaintiffs' Motion for Class Certification (Mungia, Sal) (Entered: 06/18/2018)
60 REPLY, filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington, TO RESPONSE to 52 MOTION Strike Plaintiffs' Motion for Class Certification (Cornelius, Frank) (Entered: 06/19/2018)
61 RESPONSE, by Defendants Pierce County Sheriff's Department, Pierce County, Washington, to 54 MOTION to Compel and for Order of Protection. (Cornelius, Frank) (Entered: 06/25/2018)
62 DECLARATION of Frank Cornelius filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 54 MOTION to Compel and for Order of Protection (Cornelius, Frank) (Entered: 06/25/2018)
63 DECLARATION of Michelle Luna-Green filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 54 MOTION to Compel and for Order of Protection (Cornelius, Frank) (Entered: 06/25/2018)
64 JOINT STATUS REPORT signed by all parties estimated Trial Days: 15 or 20. (Davis, Antoinette) (Entered: 06/28/2018)
65 REPLY, filed by Plaintiffs Scott Bailey, Donald Bango, TO RESPONSE to 54 MOTION to Compel and for Order of Protection (Attachments: # 1 Exhibit Declaration of Antoinette M. Davis in Support of Reply)(Davis, Antoinette) (Entered: 06/29/2018)
66 PRAECIPE to attach document Corrected Reply in Support of Plaintiffs' Motion to Compel Discovery and for Order of Protection re 65 Reply to Response to Motion by Plaintiffs Scott Bailey, Donald Bango (Attachments: # 1 Exhibit Corrected Reply in Support of Plaintiffs' Motion to Compel Discovery and for Order of Protection)(Davis, Antoinette) (Entered: 07/02/2018)

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67 NOTICE of Appearance by attorney Eunice Cho on behalf of Plaintiffs Scott Bailey, Donald Bango. (Cho, Eunice) (Entered: 07/09/2018)
68 ORDER signed by Magistrate Judge David W. Christel granting in part the 52 Motion Strike; striking the 19 Motion to Certify Class and denying the 54 Motion to Compel. The Clerk is directed to strike the 19 Motion to Certify. (GMR) (Entered: 08/03/2018)
69 NOTICE of Unavailability of counsel Frank Cornelius for Defendants Pierce County Sheriff's Department, Pierce County, Washington from 08/27/2018-08/30/2018. (Cornelius, Frank) (Entered: 08/13/2018)
70 MOTION Enlargement of Time to Move for Class Certification , filed by Plaintiffs Scott Bailey, Donald Bango. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Enlarge Time to Move for Class Certification) Re-noted Date 8/22/18 Noting Date 8/31/2018, (Davis, Antoinette) Modified on 8/17/2018 to re-note motion (SP). (Entered: 08/16/2018)
71 ORDER FOR EXPEDITED BRIEFING SCHEDULE re 70 MOTION Enlargement of Time to Move for Class Certification; signed by Magistrate Judge David W. Christel. Defendants' response to the Motion shall be filed on or before August 21, 2018; Plaintiffs' optional reply shall be filed on or before August 22, 2018. Motion to Enlarge Time to File Motion for Class Certification re-noted for 8/22/2018. (SP) (Entered: 08/17/2018)
72 RESPONSE, by Defendants Pierce County Sheriff's Department, Pierce County, Washington, to 70 MOTION Enlargement of Time to Move for Class Certification . (Attachments: # 1 Proposed Order)(LunaGreen, Michelle) (Entered: 08/21/2018)
73 DECLARATION of Michelle Luna-Green in Support of Defendants' Response to Motion to Enlarge Time to File Motion for Class Certification filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 70 MOTION Enlargement of Time to Move for Class Certification (Luna-Green, Michelle) (Entered: 08/21/2018)
74 ORDER granting 70 Motion for Enlargement of Time to Move for Class Certification; signed by Magistrate Judge David W. Christel. The Plaintiffs shall file their motion for class certification within seven days from the date of this Order and will note their motion for the fourth Friday following the filing of their class certification motion. (SP) (Entered: 08/22/2018)

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75 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jessica Wolfe for Plaintiffs Scott Bailey, Donald Bango. (Wolfe, Jessica) (Entered: 08/24/2018)
76 Stipulated MOTION to Seal Medical Records, filed by Plaintiffs Scott Bailey, Donald Bango. (Attachments: # 1 Proposed Order to File Medical Records Under Seal, # 2 Exhibit Declaration of Eunice Cho in Support of Stipulated Motion to File Medical Records Under Seal) Noting Date 8/27/2018, (Cho, Eunice) (Entered: 08/27/2018)
77 ORDER granting 76 Stipulated Motion to Seal Medical Records; signed by Magistrate Judge David W. Christel. All medical files related to the class certification briefing are to be filed under seal. (SP) (Entered: 08/27/2018)
78 Amended MOTION to Certify Class , filed by Plaintiffs Scott Bailey, Donald Bango. Oral Argument Requested. (Attachments: # 1 Proposed Order Granting Amended Motion for Class Certification) Noting Date 9/27/2018, (Davis, Antoinette) (Entered: 08/29/2018)
79 SEALED DOCUMENT Declaration of Donald Bango in Support of Plaintiffs' 78 Motion for Class Certification by Plaintiffs Scott Bailey, Donald Bango (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Davis, Antoinette) Modified on 8/29/2018: document relationship corrected per call from filer. (CMG). (Entered: 08/29/2018)
80 SEALED DOCUMENT Declaration of Scott Bailey in Support of Plaintiffs' 78 Motion for Class Certification by Plaintiffs Scott Bailey, Donald Bango(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Davis, Antoinette) Modified on 8/29/2018: corrected document relationship. (CMG). (Entered: 08/29/2018)
81 DECLARATION of Eunice Cho filed by Plaintiffs Scott Bailey, Donald Bango re 78 Amended MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P,

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# 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Davis, Antoinette) (Entered: 08/29/2018)
82 SEALED DOCUMENT Exhibits I and T to Eunice Cho Declaration in Support of Plaintiffs' Motion for Class Certification by Plaintiffs Scott Bailey, Donald Bango re 77 Order on Stipulated Motion to Seal, 76 Stipulated MOTION to Seal Medical Records, 81 Declaration,, 78 Amended MOTION to Certify Class (Davis, Antoinette) (Entered: 08/29/2018)
83 DECLARATION of Salvador A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 78 Amended MOTION to Certify Class (Davis, Antoinette) (Entered: 08/29/2018)
84 DECLARATION of Emily Chiang filed by Plaintiffs Scott Bailey, Donald Bango re 78 Amended MOTION to Certify Class (Davis, Antoinette) (Entered: 08/29/2018)
85 NOTICE of Hearing on Motion re 78 Amended MOTION to Certify Class : Motion Hearing set for 9/27/2018 at 10:00 AM in D Courtroom before Judge David W. Christel.(KEB) (Entered: 08/29/2018)
NOTICE OF NOTING DATE CORRECTION (see LCR 7(d)(3)) re 78 Amended MOTION to Certify Class TO: 9/21/2018. Parties are reminded that briefing related to any and all motions, shall follow the provisions detailed in LCR 7. Oral arguments remain set for 9/27/2018 at 10:00 AM in D Courtroom before Judge David W. Christel. (GMR) (Entered: 08/30/2018)
86 PRAECIPE re 80 Sealed Document,, 78 Amended MOTION to Certify Class by Plaintiffs Scott Bailey, Donald Bango (Attachments: # 1 Supplement Cover Sheet of Corrected Signature Page Filed Under Seal)(Cho, Eunice) (Entered: 09/06/2018)
87 SEALED DOCUMENT Corrected Signature Page of Declaration of Scott Bailey in Support of Plaintiffs' Motion for Class Certification by Plaintiffs Scott Bailey, Donald Bango re 77 Order on Stipulated Motion to Seal, 86 Praecipe-Other, 80 Sealed Document,, 78 Amended MOTION to Certify Class (Cho, Eunice) (Entered: 09/06/2018)
88 MOTION for Leave to File Over-length Motions and Briefs , filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington. (Attachments: # 1 Proposed Order) Noting Date 9/12/2018, (Luna-Green, Michelle) (Entered: 09/12/2018)
89 ORDER granting Defendants' 88 Motion for Leave to File Over-length Motions and Briefs; signed by Judge David W. Christel. Defendants are

09/17/2018 09/17/2018 09/17/2018 09/17/2018
09/17/2018 09/17/2018 09/17/2018

allowed to file a response to Plaintiffs Amended Motion for Class Certification of up to 35 pages in length; Plaintiffs are allowed to file a reply of up to one-half the pages of the response. See LCR 7(f)(4). (SP) (Entered: 09/13/2018)
90 SEALED DOCUMENT Defendants' Opposition to Plaintiff's 78 Amended MOTION to Certify Class by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 77 Order on Stipulated Motion to Seal (Cornelius, Frank) Modified on 9/18/2018 (SP). (Entered: 09/17/2018)
91 SEALED DOCUMENT Declaration of Kenneth M. Muscatel, PhD by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class; 77 Order on Stipulated Motion to Seal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Cornelius, Frank) Modified on 9/18/2018 (SP). (Entered: 09/17/2018)
92 SEALED DOCUMENT Declaration of Ian Harrel by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class; 77 Order on Stipulated Motion to Seal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Cornelius, Frank) Modified on 9/18/2018 (SP). (Entered: 09/17/2018)
93 DECLARATION of Frank Cornelius filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Attachments: # 1 Exhibit A FILED UNDER SEAL, # 2 Exhibit B, # 3 Exhibit C FILED UNDER SEAL, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F UNDER SEAL, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Cornelius, Frank) (Entered: 09/17/2018)
94 SEALED DOCUMENT Exhibit A by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 77 Order on Stipulated Motion to Seal, 93 Declaration, (Attachments: # 1 Exhibit C, # 2 Exhibit F)(Cornelius, Frank) (Entered: 09/17/2018)
95 DECLARATION of Patti Jackson-Kidder filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Cornelius, Frank) (Entered: 09/17/2018)
96 DECLARATION of Janet Rhoton filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Attachments: # 1 Exhibit A)(Cornelius, Frank) (Entered: 09/17/2018)

09/17/2018

97 DECLARATION of Dayna Hersey filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Attachments: # 1 Exhibit A)(Cornelius, Frank) (Entered: 09/17/2018)

09/17/2018

98 DECLARATION of Kent Wales filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Cornelius, Frank) (Entered: 09/17/2018)

09/17/2018

99 DECLARATION of Jonathan Slothower, RN filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Cornelius, Frank) (Entered: 09/17/2018)

09/17/2018

100 DECLARATION of Janis Vicente filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Cornelius, Frank) (Entered: 09/17/2018)

09/17/2018

101 DECLARATION of Certificate of Service (Lantz) filed by Defendants Pierce County Sheriff's Department, Pierce County, Washington re 78 Amended MOTION to Certify Class (Cornelius, Frank) (Entered: 09/17/2018)

09/21/2018

102 REPLY, filed by Plaintiffs Scott Bailey, Donald Bango, TO RESPONSE to 78 Amended MOTION to Certify Class (Mungia, Sal) (Entered: 09/21/2018)

09/21/2018

103 DECLARATION of Salvador A. Mungia filed by Plaintiffs Scott Bailey, Donald Bango re 78 Amended MOTION to Certify Class (Mungia, Sal) (Entered: 09/21/2018)

09/27/2018

104 MINUTE ENTRY for proceedings held before Judge David W. Christel- Dep Clerk: K. Brye; Pla Counsel: Sal Mungia, Eunice Cho; Def Counsel: Frank Cornelius, Michelle Luna-Green; CR: Angela Nicolavo; Time of Hearing: 10:00 AM; Courtroom: D;Motion Hearing held on 9/27/2018 re 78 Amended MOTION to Certify Class filed by Scott Bailey, Donald Bango. Parties argue motion. Court to issue written order. (KEB) (Entered: 09/27/2018)

10/15/2018

105 REPORT AND RECOMMENDATION by Magistrate Judge David W. Christel re Plaintiffs' 78 Amended MOTION to Certify Class. Noting Date: 11/2/2018. (Attachments: # 1 Proposed Order)(SP) (Entered: 10/15/2018)

10/25/2018

106 Stipulated MOTION for Voluntary Dismissal, filed by Plaintiffs Scott Bailey, Donald Bango. (Attachments: # 1 Proposed Order) Noting Date 10/25/2018, (Mungia, Sal) (Entered: 10/25/2018)

10/29/2018

107 ORDER granting 106 Stipulated Motion for Voluntary Dismissal with prejudice and with all parties bearing their own attorney fees and costs; signed by Judge Ronald B. Leighton.(DN) (Entered: 10/29/2018)

 
 Case 3:17-cv-06002-RBL Document 1 Filed 12/04/17 Page 1 of 38

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA 8

DONALD BANGO and SCOTT

9

BAILEY, individually and on behalf of

all others similarly situated,

No.

10

Plaintiffs,

COMPLAINT – CLASS ACTION

11

FOR DECLARATORY AND

v.

INJUNCTIVE RELIEF

12

PIERCE COUNTY, WASHINGTON;

13

BRUCE DAMMEIER, in his official

capacity as Pierce County Executive;

14

PIERCE COUNTY SHERIFF’S

DEPARTMENT; PAUL A. PASTOR, in

15

his official capacity as Pierce County

Sheriff; PATTI JACKSON-KIDDER, in

16

her official capacity as the Pierce County

Chief of Corrections; JANET RHOTON,

17

in her official capacity as the Pierce

County Jail Mental Health Manager, and

18

their officers, agents, employees, and

successors,

19 Defendants.

20

21

I.

INTRODUCTION

22

1. Plaintiffs, who are people with mental illness incarcerated in the Pierce County

23 Jail (“the Jail”), bring this class action seeking declaratory and injunctive relief on behalf of

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1 themselves and all others similarly situated to seek judicial relief from the suffering and

2 psychological harm they are experiencing at the hands of Defendants.

3

2. Defendants have long known about the applicable legal standards that govern the

4 treatment of individuals incarcerated with mental illness—in part because they were sued more

5 than 20 years ago by a similar class of plaintiffs with similar claims. Defendants nevertheless

6 continue to violate constitutional and statutory law, correctional facility guidelines, and basic

7 standards of human decency.

8

3. Defendants do not adequately screen for mental illness during the booking

9 process or during incarceration, ignore clear signs of mental illness and requests for care and, as

10 a result, routinely fail to document serious mental health symptoms, psychiatric medications, and

11 treatment history.

12

4. Having failed to appropriately identify those who are mentally ill, Defendants

13 then refuse to provide necessary treatment to Plaintiffs and others similarly situated for their

14 mental illnesses. Plaintiffs often go months without seeing a mental health provider, experience

15 significant delays in receiving prescription psychiatric medications, and are denied basic mental

16 health care, despite repeated requests for treatment.

17

5. As a direct result of Defendants’ practice of inappropriately delaying and refusing

18 to provide basic mental health treatment, Plaintiffs’ mental illnesses are allowed to progress

19 unchecked, leading to hallucinations, delusions, and an increased risk of self-harm.

20

6. Instead of promptly providing necessary treatment, Defendants punish Plaintiffs

21 and other similarly situated for non-violent behaviors directly related to their mental illnesses.

22 Defendants use eyebolt restraints to chain people’s arms and legs to the floor, deploy pepper

23 spray, and leave people in the throes of mental health crises in restraint chairs for hours on end.

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1

7. Despite the clinically proven negative impacts of isolation on people with mental

2 illness, Defendants routinely warehouse these individuals in solitary confinement for 21 to 24

3 hours a day, where they predictably deteriorate.

4

8. Defendants then compound these problems by refusing to provide people released

5 from their custody with a supply of their psychiatric medications, as required by law.

6 Defendants release people with florid mental illness directly into the community, where they

7 may present a safety risk to themselves or to others. Due to their untreated illnesses, many will

8 end up back at the Jail at taxpayer expense.

9

9. Defendants’ failure to exercise appropriate supervisory authority over the Jail and

10 to prevent the psychological deterioration of the most vulnerable in their care is plainly unlawful.

11 The Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth

12 Amendment’s guarantee of due process together protect individuals’ right to be free from a

13 substantial risk of serious harm while incarcerated. These protections include the right to

14 constitutionally adequate mental health treatment and the right to be free from the unnecessary

15 and wanton infliction of pain.

16

10. Moreover, Title II of the Americans with Disabilities Act (ADA) and Section 504

17 of the Rehabilitation Act prohibit the use of solitary confinement up to warehouse people

18 because of their mental illness, and requires that such individuals be provided with equal access

19 to the programs, services, and activities offered in the Pierce County Jail.

20

11. These federal laws prohibit the discriminatory use of force and restraints on

21 people in response to non-violent behavior directly related to their mental illnesses, and require

22 that Defendants make reasonable modifications to their policies, practices, and procedures to

23 avoid discrimination on the basis of disability.

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1

12. Defendants’ long-standing pattern and practice of neglect has directly caused

2 serious ongoing irreparable harm to Plaintiffs and similarly situated individuals and contributes

3 to a revolving door of incarceration that is both costly and detrimental to public safety.

4

13. Plaintiffs have no adequate remedy at law.

5

II.

JURISDICTION AND VENUE

6

14. This Court has jurisdiction over the claims brought under federal law pursuant to

7 28 U.S.C. §§1331 and 1343. Plaintiffs seek declaratory and injunctive relief under 28 U.S.C. §§

8 1343, 2201, and 2202, 29 U.S.C. § 794a, 42 U.S.C. §§ 1983 and 12117(a).

9

15. Venue is properly in this Court pursuant to 28 U.S.C. § 1391(b) because

10 Plaintiffs’ claims for relief arose in this District and one or all of the Defendants reside in this

11 District.

12

III.

PARTIES

13

A. Named Plaintiffs

14

16. Named Plaintiff Donald Bango is a 40-year old veteran who is incarcerated at the

15 Pierce County Jail. Mr. Bango served in the United States military for fifteen years, including

16 tours in Iraq and Afghanistan. He achieved the rank of a Staff Sergeant, and received multiple

17 awards for his service—including a Bronze Star, a Meritorious Service Medal, an Army

18 Commendation for Valor, and an Army Achievement Medal. Mr. Bango was medically retired

19 from the military in 2010 due to mental health issues stemming from the violence he witnessed

20 during his service in Iraq.

21

17. Mr. Bango has been diagnosed with bipolar disorder, posttraumatic stress disorder

22 (PTSD), major depressive disorder, and panic disorder, and is a qualified individual with a

23 disability as that term is defined in 42 U.S.C. §12102 and 29 U.S.C. §705(9)(B). He experiences

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1 visual and auditory hallucinations, including hearing voices, as well as delusions and flashbacks.

2 He also experiences frightening nightmares that cause him to scream in his sleep, extreme mood

3 swings, and panic attacks.

4

18. Defendants have denied Mr. Bango medically necessary psychiatric medications

5 and access to other basic mental health treatment during his incarceration. They improperly

6 placed him in solitary confinement and left him naked and alone in a cell with his arms

7 handcuffed behind his back after pepper spraying his face. The inappropriate use of isolation

8 and force as well as the denial of care has caused Mr. Bango to mentally decompensate.

9

19. Named Plaintiff Scott Bailey is a 45-year old man who is incarcerated in the

10 Pierce County Jail. Mr. Bailey has been diagnosed with major depression and experiences

11 anxiety, and is a qualified individual with a disability as that that term is defined in 42 U.S.C.

12 §12102 and 29 U.S.C. §705(9)(B). Mr. Bailey regularly experiences suicidal ideation and has

13 attempted to commit suicide many times.

14

20. Mr. Bailey has been incarcerated at the Pierce County Jail approximately eight

15 times since 1999. Because Defendants placed Mr. Bailey on suicide watch during his

16 incarceration in December 2014, including placing him in isolation with no clothing except a

17 “suicide smock,” they have knowledge and are on notice of Mr. Bailey’s mental health issues

18 and suicidal tendencies.

19

21. Defendants have routinely failed to adequately screen Mr. Bailey’s mental health

20 conditions, mental health history, and use of psychiatric medications. Defendants have failed to

21 provide Mr. Bailey with timely access to psychiatric medications or basic mental health

22 treatment, despite his repeated requests. Defendants have placed Mr. Bailey at an unreasonable

23 risk of self-harm and psychological decompensation.

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1

B. Defendants

2

22. Defendant Pierce County (the “County” or “Pierce County”) is a municipality

3 chartered under the laws of Washington, and is a public entity as that term is defined in 42

4 U.S.C. §12131(1). The County operates and manages the Pierce County Jail and by law retains

5 ultimate authority over and responsibility for ensuring the health, safety, and welfare of Plaintiffs

6 and the class they seek to represent in a manner that comports with all legal obligations.

7

23. Defendant Bruce Dammeier is the Pierce County Executive. As Pierce County’s

8 chief executive officer, he is responsible for the supervision, management, review, and

9 evaluation of all of Pierce County’s administrative offices and executive departments, including

10 the Pierce County Sheriff’s Department. He is sued in his official capacity.

11

24. Defendant Pierce County Sheriff’s Department (the “Sheriff’s Department”) is a

12 department of the Pierce County executive branch and is a public entity as that term is defined in

13 42 U.S.C. §12131(1). The Sheriff’s Department is responsible for the day-to-day operations of

14 the Pierce County Jail, including promulgating and enforcing Jail policies, procedures, and

15 customs, as well as ensuring that Sheriff’s Department deputies at the Jail comply with all legal

16 obligations.

17

25. Defendant Paul A. Pastor is the Sheriff of Pierce County. He is responsible for

18 the supervision of the Pierce County Sheriff’s Department deputies in Pierce County, including

19 the deputies that staff the Pierce County Jail. He is also responsible for the proper execution of

20 Sheriff’s Department policies and the training of Sheriff’s Department deputies. Sheriff Pastor is

21 sued in his official capacity.

22

26. Defendant Patti Jackson-Kidder is the Pierce County Chief of Corrections. She is

23 responsible for the supervision of Pierce County Jail employees, the proper execution of Jail

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1 policies, and the lawful treatment of individuals confined at the Jail. Chief Jackson-Kidder is

2 sued in her official capacity.

3

27. Defendant Janet Rhoton is the Mental Health Manager at the Pierce County Jail.

4 She is responsible for the leadership, oversight, and clinical direction of the Mental Health

5 Program staff to ensure their compliance with governing laws and regulations. She is also

6 responsible for ensuring that the Mental Health Program provides people incarcerated at the Jail

7 a community standard of care and that ethical and professional standards of practice are

8 maintained. Ms. Rhoton is sued in her official capacity.

9

IV.

CLASS ACTION ALLEGATIONS

10

Class Definition

11

28. All Plaintiffs bring this action on their own behalf and, pursuant to Rule 23(a) and

12 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of a class of all qualified individuals

13 who have mental illnesses that are disabilities as defined in 42 U.S.C. §12102 and 29 U.S.C.

14 §705(9)(B), and who are now, or will be in the future, incarcerated at the Pierce County Jail.

15

Numerosity: Fed. R. Civ. P. 23(a)(1)

16

29. The proposed class is sufficiently numerous that joinder of all members of the

17 class is impracticable. The exact size of the class is unknown, however it is estimated to number

18 in the hundreds. As of Friday, November 30, 2017, there were approximately 1,102 individuals

19 incarcerated in the Pierce County Jail. See Legal Information Network Exchange (LINX), Jail

20 population for November 2017, available at

21 https://linxonline.co.pierce.wa.us/linxweb/Reports/GetStaticReport.cfm?report_file=FormalCoun

22 tList/201711.htm (last accessed Dec. 4, 2017). According to the Federal Bureau of Justice

23 Statistics, approximately 64 percent of individuals incarcerated in jail have a mental health issue,

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1 see U.S. Dep’t of Justice, Bureau of Justice Statistics, Special Report: Mental Health Problems of

2 Prison and Jail Inmates, (revised Dec. 14, 2006),

3 https://www.bjs.gov/content/pub/pdf/mhppji.pdf, and one in four jailed individuals meet the

4 criteria for “serious psychological distress.” See U.S. Dep’t of Justice, Bureau of Justice

5 Statistics, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011–

6 12 (June 2017),

7 https://www.bjs.gov/content/pub/pdf/imhprpji1112.pdf?utm_source=newsfrombjs&utm_medium

8 =email&utm_content=imhprpji1112_report_pdf&utm_campaign=imhprpji1112&ed2f26df2d9c4

9 16fbddddd2330a778c6=xbawkckbsa-xearbiza. Further, approximately a quarter of individuals at

10 the Pierce County Jail are on psychiatric medications. See League of Women Voters of Tacoma-

11 Pierce County, Study of Mental Health in Pierce County 35 (Feb. 2016),

12 http://www.piercecountywa.org/DocumentCenter/View/42628.

13

Commonality: Fed. R. Civ. P. 23(a)(2)

14

30. There are questions of law and fact common to the class. All class members are

15 subject to Pierce County’s policies and practices that expose each one of them to a substantial

16 risk of harm with the resulting common question of law being the violation of the U.S

17 Constitution, the ADA, and the Rehabilitation Act (29 U.S.C. § 794).

18

Typicality: Fed. R. Civ. P. 23(a)(3)

19

31. The claims of the Plaintiffs are typical of the claims of the members of the

20 proposed class. Plaintiffs and all other members of the class have sustained similar injuries

21 arising out of and caused by Defendants’ policies, practices, procedures, and customs in violation

22 of the law as alleged.

23

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1

Adequacy: Fed. R. Civ. P. 23(a)(4)

2

32. Plaintiffs are members of the class and will fairly and adequately represent and

3 protect the interests of the putative class members. Plaintiffs’ counsel are experienced in class

4 action and prisoners’ rights litigation, and will fairly and adequately protect the interests of the

5 class.

6

Fed. R. Civ. P. 23(b)(2)

7

33. Because Defendants have acted and refused to act on grounds that apply generally

8 to the class, final injunctive relief and corresponding declaratory relief is appropriate respecting

9 the class as a whole.

10

V.

FACTUAL ALLEGATIONS

11

A. Defendants Fail to Provide Adequate Mental Health Screening

12

34. Defendants routinely fail to identify and assess the mental health issues of people

13 incarcerated at the Pierce County Jail.

14

35. During the booking process, medical providers are required to perform a receiving

15 mental health screening using a “Suicide Risk Assessment” form as well as a “General Mental

16 Health Assessment” form. These forms include various questions about current mental health

17 and mental health history, including suicidal ideation and psychiatric medications. Most

18 questions have a check box next to it to designate a positive finding. By design, these forms do

19 not allow for negative findings.

20

36. Medical providers often do not ask all of the questions on the mental health

21 screening forms. As a result, people are not screened for serious psychiatric conditions that

22 require medically necessary treatment.

23

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1

37. After the initial receiving screening, Defendants do not provide any additional

2 mental health screening to the general jail population.

3

38. Defendants’ failure to adequately screen for mental health conditions violates

4 well-established national standards, including those published by the National Commission on

5 Correctional Health Care (“NCCHC”), one of the foremost authorities on health care in jails.

6

39. NCCHC’s 2014 “Standards for Health Services in Jails” require jails to inquire

7 during the receiving screening into “[p]ast or current mental illness, including hospitalizations,”

8 as well as any “[h]istory of or current suicidal ideation.” See NCCHC Standard J-E-02

9 (Receiving Screening). These inquiries are designed “to ensure that patients with known

10 illnesses and those on medications are identified for further assessment and continued

11 treatment.” See id.

12

40. Additionally, NCCHC standards require jails to provide a more comprehensive

13 mental health screening for all inmates within 14 days of admission, including inquiries into

14 psychiatric hospitalization, suicidal behavior and ideation, and psychotropic medications, with

15 further referral for evaluation and treatment for individuals with positive mental illness screens.

16 See NCCHC Standard J-E-05 (Mental Health Screening and Evaluation). This process includes

17 compiling and reviewing medical records from community mental health providers to create a

18 complete mental health history, and is designed to identify people with mental illness “soon after

19 admission to prevent deterioration of their level of functioning and to [ensure that they] receive

20 necessary treatment in a timely fashion.” See NCCHC Standard J-E-04 (Initial Health

21 Assessment), J-E-05.

22

41. In contrast to national standards, Defendants often fail to ask for and document

23 information during the intake process that would identify people with mental illness for further

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1 assessment and treatment. Defendants do not have a general practice of providing comprehensive

2 mental health screenings for people booked into the Jail.

3

42. Defendants also fail to screen for mental illness despite clear signs of mental

4 decompensation and individuals’ repeated requests to be seen and evaluated.

5

43. Defendants’ policies, practices, and procedures put Plaintiffs at an unreasonable

6 risk of harm and psychological decompensation.

7

B. Defendants Fail to Provide Adequate Mental Health Treatment

8

44. The Pierce County Jail has a “Mental Health Program” that claims to deliver

9 “high quality, cost effective mental health services . . . for the at-risk mentally ill inmate.” Pierce

10 County, Mental Health Services, http://www.co.pierce.wa.us/2110/Mental-Health-Services (last

11 accessed Dec. 4, 2017).

12

45. This Program is managed by Defendant Janet Rhoton, and is budgeted for seven

13 “Mental Health Evaluators” (“MHE,” also referred to as Mental Health Providers, or

14 “MHP”). The qualifications to work as an MHE include a Master’s Degree in psychology, social

15 work, or a related field, as well as state licensing. No medical degree is required. MHE’s are

16 responsible for evaluating psychological conditions, developing treatment plans, screening

17 referrals for psychiatric medications, and determining housing needs. MHE’s cannot prescribe

18 psychiatric medications and do not provide ongoing counseling.

19

46. Pierce County Jail only has one doctor on staff, Dr. Miguel Balderrama, who also

20 serves as the Medical Director. He, along with one psychiatric nurse practitioner, prescribe the

21 majority of psychiatric medications to people incarcerated in the Jail.

22

47. No one on staff at the Jail is dedicated to providing mental health counseling.

23

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1

48. Referrals to the Mental Health Program are made through requests for evaluation

2 and triage made by deputies, the medical clinic, courts, friends, and family. An inmate can also

3 request a referral by filing a “kite” (a written request) at an electronic kiosk in their unit.

4

49. According to policy, the Mental Health Program must triage referrals “on severity

5 of need and acuity.” If someone is “at imminent risk,” they must be seen immediately; “high”

6 priority referrals must be seen within 48 to 72 hours. There is no required time frame for

7 responses to those judged to be “moderate” or “low” priority.

8

50. People with severe mental illness, including hallucinations and suicidal ideations,

9 often file multiple kites over a period of weeks or months without ever seeing a Mental Health

10 Evaluator in person.

11

51. Mental Health Evaluators correspond with people suffering from mental illness

12 primarily through written “kites.” Evaluators rarely assess mental acuity in person.

13

52. Instead, “kite” responses from Mental Health Evaluators often include “self-help”

14 worksheets on breathing and stress-reduction techniques.

15

53. When a Mental Health Evaluator does provides an in-person evaluation, these

16 interactions are typically brief and do not provide basic mental health services.

17

54. These practices and policies are counter to NCCHC standards, which require

18 mental health services “available for all inmates who require them.” According to NCCHC,

19 basic mental health services include identification and referral of individuals with mental health

20 needs, crisis intervention services, psychiatric medication management, individual counseling,

21 group counseling, and other mental health programming, and treatment documentation and

22 follow-up. See NCCHC Standard J-G-04 (Basic Mental Health Services).

23

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1

55. These basic mental health services are necessary to “alleviate symptoms of

2 serious mental disorders and prevent relapses to sustain patients’ ability to function safely in

3 their environment.” See id.

4

56. According to the Jail’s website, medical staff is responsible for verifying “with a

5 doctor’s office or pharmacy any prescriptions brought in by an incoming arrestee.” See Pierce

6 County, General Health Services, https://www.co.pierce.wa.us/2109/General-Health-Services

7 (last visited Dec. 4, 2017).

8

57. In practice, people incarcerated in the Jail with current prescriptions experience

9 delays of weeks or months in receiving their psychiatric medications, even though those

10 prescriptions are easily verifiable.

11

58. People incarcerated in the Jail without a current prescription are routinely denied

12 necessary psychiatric medications for the entire length of their stay at the Jail. They are often not

13 evaluated for or prescribed psychiatric medications, regardless of need or medical history.

14

59. The denial of necessary psychiatric medication significantly increases the risk of

15 psychological decompensation and self-harm.

16

60. Defendants’ denial of necessary psychiatric medications violates NCCHC

17 standards that require jails to provide “prescribed medication in a timely, continuous, and

18 clinically appropriate manner.” See NCCHC Standard J-D-02 (Medication Services).

19

61. People “entering the facility on prescription medication [must] continue to receive

20 the medication in a timely fashion as prescribed, or acceptable alternate medications are provided

21 as clinically indicated.” Id.

22

62. Failure to provide medications in a timely manner may have “grave consequences

23 to patient health. Therefore, inmates being admitted who report taking medications currently or

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1 who bring the medications with them are to continue their medication unless there is a clinical

2 reason to alter or discontinue the medication.” Id.

3

63. According to Pierce County Jail policy, individuals with prescription psychiatric

4 medication must receive a three-day supply upon release into the community, but only if their

5 medication is “indicated to prevent decompensation.”

6

64. However, in practice, Defendants refuse to provide individuals with mental illness

7 their medications upon release. Given the long wait times to see a provider in the community,

8 this delay significantly increases the risk of psychological decompensation and self-harm.

9

65. Defendants’ refusal to provide people released into the community with a

10 sufficient supply of psychiatric medication is also unlawful, places these individuals at risk of re-

11 arrest, and is a threat to the public safety

12

66. Defendants’ practices are counter to NCCHC standards, which require that health

13 staff “[a]rrange for a reasonably supply of current medications” for planned discharges. See

14 NCCHC Standards J-E-13 (Discharge Planning). Providing access to medication upon release is

15 essential to “ensure patients’ health needs are met during transition to a community health care

16 professional” and “may also help reduce recidivism.” Id.

17

67. Defendants’ failure to provide psychiatric medication is compounded by their

18 refusal to provide counseling or other mental health programming of any kind.

19

68. The failure to provide mental health treatment via counseling and

20 psychosocial/psychoeducational programs also violates NCCHC standards. These standards

21 recognize that “[m]ental health treatment is more than prescribing psychotropic medications.

22 Treatment goals include the development of self-understanding, self-improvement, and

23

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1 development of skills to cope with and overcome disabilities associated with various mental

2 disorders.” NCCHC Standard J-G-04 (Basic Mental Health Services).

3

C. Defendants Punish Plaintiffs for Their Mental Illnesses

4

69. Without basic mental health treatment, people with mental illness incarcerated in

5 the Jail experience mental decompensation, delusions, hallucinations, and severe mood swings.

6 They have difficulty understanding and conforming their behavior to social norms and the rules

7 of the Jail as well as communicating appropriately with Jail staff and other inmates.

8

70. Instead of providing these individuals with treatment, Defendants warehouse them

9 in solitary confinement and punish them with force and restraints, further exacerbating mental

10 illness.

11

a. Use of Isolation

12

71. Defendants have a formal written policy of placing people with “poor behavioral

13 control due to a mental disorder” in “crisis cells” for 23 hours a day. These cells are “one of the

14 most restrictive housing options” available at the Jail and constitute solitary confinement. The

15 Mental Health Program staff is responsible for recommending placement in the crisis cells “for

16 safety concerns.”

17

72. Defendants also isolate people with mental illness for 20 to 21 hours a day, albeit

18 not in “crisis cell” units. The Jail also operates a “Mental Health Unit,” which is a unit for

19 individuals with mental illness who are considered “more vulnerable if placed in the general

20 population.”

21

73. Individuals who inform staff of their suicidal ideations are placed on “suicide

22 watch,” which results in them being stripped of their clothing and draped in a “safety smock”

23

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1 (also known as a “suicide smock”) in solitary confinement. Suicide watch is profoundly

2 dehumanizing and humiliating, and can further destabilize the people in mental health crisis.

3

74. Even where there is no suicide danger, Defendants have a policy and practice of

4 using solitary confinement to warehouse people with mental illness and punish them for minor

5 behavioral issues, despite the known detrimental impact of isolation on this population.

6

75. For example, people have been placed in isolation for talking erratically during

7 the booking process, having a history of mental health issues, being loud, and failing to follow

8 directions.

9

76. A 2014 audit of the Jail found “a tendency to increase the custody level of any

10 offender who shows indications of mental health issues.” Bill Vetter, Evaluation of Pierce

11 County Corrections Bureau Jail Operations (Sept. 4, 2014),

12 https://www.co.pierce.wa.us/DocumentCenter/View/32482.

13

77. People with severe mental illness can remain in solitary at the Jail for weeks or

14 months at a time, which significantly increases the risk of psychological decompensation and

15 self-harm.

16

78. While there, they are also largely unable to access services, programs, and

17 activities provided in the Jail. These include telephone services, in-person visitation, hygiene

18 activities, outdoor exercise, administrative, disciplinary, and classification proceedings, the

19 “kite” and grievance systems, library services, access to reading materials, commissary services,

20 and educational, vocational, religious, recreational, and other programming.

21

79. Defendants’ isolation of the seriously mentally ill violates NCCHC policy, which

22 prohibits the use of solitary confinement “of any duration” for people with mental illness because

23 it is “harmful to an individual’s health.” National Commission on Correctional Health Care

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1 (“NCCHC”), Solitary Confinement (Isolation) Position Statement, adopted Apr. 10, 2016:

2 http://www.ncchc.org/solitary-confinement (last visited Dec. 4, 2017).

3

80. Defendants’ policies permitting mental health staff to recommend placement of a

4 person with a serious mental illness in solitary also violates ethical standards for the medical

5 profession. According to NCCHC, “Health staff must not be involved in determining whether

6 adults or juveniles are physically or psychologically able to be placed in isolation.” Id. Instead,

7 the proper role of health professionals is to review an individuals’ health record to determine

8 whether their “mental health needs contraindicate the placement or require accommodation.”

9 NCCHC Standard J-E-09 (Segregated Inmates).

10

b. Use of Force and Restraints

11

81. In 2016, Pierce County Jail deputies logged nearly 1100 “use of force” reports.

12 This included the use of “OC” (oleoresin capsicum spray, also known as “pepper spray,”

13 pepperball launchers, and expulsion grenades), restraint chairs (a wheelchair with restraint straps

14 for the arms, torso, and legs), “Lateral Vascular Neck Restraints” (a potentially lethal “blood

15 choke” that restricts blood flow to the brain), and “eyebolts,” which are metal bolts used to chain

16 a person’s hands and feet to the concrete floor.

17

82. Jail policy dictates that “[p]roper restraints will only be used as a precaution

18 against escape, to prevent self-injury, injury to others or property damage,” and that “[i]n no

19 event is physical force justifiable as a punishment.”

20

83. According to Jail policy, restraint chairs are “not a medical restraint.” They are

21 intended only to restrain “violent out-of-control” people and are not meant to be used as

22 punishment. The decision to place an individual in a restraint chair is solely at the discretion of

23 corrections deputies, not medical or mental health staff.

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1

84. Jail policy also states that the eyebolts may be used “when deemed necessary,”

2 but are intended for use on “violent out-of-control inmates.” According to policy, any use of the

3 eyebolts must be videotaped, and mental health staff may provide input as to whether people can

4 endure the restraints for longer than four hours, and for up to a maximum of eight hours. A

5 person can be restrained for longer than 8 hours if ordered by Jail administration.

6

85. In violation of the Jail’s written policy, deputies’ own use of force reports reveal

7 that force and restraints are deployed for minor behavioral issues directly attributable to mental

8 illness. Deputies often use force and restraints to punish non-violent behavior such as lack of

9 cooperation, kicking and punching cell doors, covering cell windows, and profanity.

10

86. For example, on January 3, 2017, a woman with mental illness was screaming in

11 her cell and punching her cell door. Deputies sprayed her with pepper spray, handcuffed her,

12 and placed her face down on a mattress before shackling her hands and feet to eyebolts, where

13 she was left restrained for three hours.

14

87. On February 9, 2017, a man with mental illness was kicking his cell door and

15 yelling. He was placed face down on a mattress and his legs and arms were shackled to the

16 eyebolts “to prevent him from causing further disturbances.” While the man was chained to the

17 floor, a deputy “delivered a short hammer strike to the right side of [his] jaw” because the deputy

18 believed the man was trying to bite him. The man remained restrained in the cell for

19 approximately eight hours.

20

88. On February 23, 2017, a man on suicide watch was placed in a restraint chair for

21 putting a mattress and toilet paper against his window and “yelling unintelligibly” after urinating

22 on himself. Deputies decided the restraint chair was necessary to help the man “cool off,”

23 despite the fact that the man complied with requests to remove the toilet paper from his window,

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1 complied with the restraint process, and “sat down in the chair on his own.” While restrained the

2 man informed deputies that he was not receiving his proper medication.

3

89. On March 14, 2017, a man with mental illness was placed in a restraint chair for

4 covering up his cell door with blankets and ripped pieces of his mattress. The man remained in

5 the restraint chair for several hours.

6

90. The use of force and restraints to punish behavior that is attributable to

7 individuals’ mental illness causes unnecessary physical and psychological harm.

8

D. Plaintiffs Suffer Ongoing Irreparable Injury as a Result of Defendant’s Actions

9

91. Defendants fail to provide basic mental health services to people incarcerated in

10 the Pierce County Jail, and subject people suffering from mental illness to isolation and uses of

11 force and restraints when they predictably decompensate. As a result of Defendants’ actions,

12 Plaintiffs and other similarly situated suffer irreversible psychological harm.

13

a. Plaintiff Donald Bango

14

92. Plaintiff Donald Bango is a 40-year old decorated veteran who served in the

15 United States military for fifteen years, including tours in Iraq and Afghanistan.

16

93. On October 6, 2015, approximately two months prior to Mr. Bango’s arrest, he

17 met with a doctor at Veteran’s Affairs for an annual physical. The provider noted his diagnoses

18 for bipolar disorder, PTSD, major depressive disorder, and panic disorder, and reviewed Mr.

19 Bango’s current medication list, including Venlafaxine (brand name Effexor), an anti-depressant,

20 and Prazosin, a drug used to treat PTSD and anxiety.

21

94. Mr. Bango was arrested on December 13, 2015. Mr. Bango informed the

22 Emergency Medical Technician (EMT) who evaluated him during the booking process that he

23 had been diagnosed with serious mental illnesses and received counseling and medication from

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1 Veteran’s Affairs. He also informed the EMT that he had considered committing suicide the

2 previous year by shooting himself.

3

95. Jail staff did not attempt to confirm Mr. Bango’s diagnoses or medications by

4 requesting his medical records from Veteran’s Affairs.

5

96. Mr. Bango was placed on “suicide watch” shortly after booking. He was stripped

6 of his clothing, placed in a “suicide smock,” and put in solitary confinement in the 3 South wing

7 of the Jail, also known as the “hole.”

8

97. While on suicide watch, Defendants did not provide Mr. Bango with basic mental

9 health care beyond assessing his suicidal ideations.

10

98. As a result, Mr. Bango began to mentally decompensate and “just wanted to die.”

11 He began to have delusions and hallucinations, and started to believe that the sprinkler light in

12 his cell was sending him signals, telling him to kill himself.

13

99. After several days in isolation, Mr. Bango decided he could not handle the signals

14 from the sprinkler light any longer, and wrapped his suicide smock around the sprinkler to

15 dislodge it. This caused the sprinkler to break and flood Mr. Bango’s cell with black, putrid

16 water.

17

100. In response, Jail deputies rushed into Mr. Bango’s cell and tackled him to the

18 ground. Deputies then handcuffed Mr. Bango behind his back. Deputies then sprayed Mr.

19 Bango in the face with pepper spray. Deputies put Mr. Bango in an adjacent cell, where they left

20 him for several hours without any clothing.

21

101. Mr. Bango sat naked on the cell floor with pepper spray on his face and his arms

22 handcuffed behind his back for several hours. Because he was restrained, Mr. Bango was not

23 able to clean the pepper spray from his face and it burned his eyes and nose. A deputy noted in

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1 his report that Mr. Bango “bang[ed] his head a few times to get our attention,” but refused to

2 uncuff him because Mr. Bango was “display[ing] uncooperative actions” and would not “sit

3 quietly.” When a nurse came to take Mr. Bango’s blood pressure, the deputies refused to uncuff

4 him.

5

102. During those hours that he was restrained in the cell, Mr. Bango felt he was in the

6 worst place he had ever been in his life and wanted to die.

7

103. After several days on suicide watch and in other isolation cells, Mr. Bango was

8 moved to another area of the Jail, where he was placed in the general population. Mr. Bango

9 continued to have periodic hallucinations and delusions, including hearing voices, which he

10 attributed to his cellmates.

11

104. On December 20, 2015, seven days after he was booked, Mr. Bango sent a kite

12 requesting his psychiatric medications and noting that he was concerned about “falling into

13 further mental health crisis or psychosis.” A mental health provider responded, “[c]ase reviewed

14 no MH [mental health] appointment at this time.”

15

105. On December 28, 2015, Mr. Bango kited again to request his medications. He

16 also noted that he “was given my meds through the VA hospital.” A mental health provider

17 responded, “It appears that your medication was not current when booked into PCJ [Pierce

18 County Jail]. Case reviewed no MH appointment at this time.”

19

106. Mr. Bango’s Veteran’s Affairs records indicate that he had active prescriptions for

20 the psychiatric medications Effexor and Prazosin when he was arrested and booked into the Jail.

21

107. On January 11, 2016, a mental health provider interviewed Mr. Bango. He

22 informed the provider that his cellmate “won’t stop talking.” The provider noted that Mr. Bango

23 had made similar statements about his previous cellmate talking too much. Instead of

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1 investigating further, the provider decided that Mr. Bango was “unable to get along with his

2 roommate.” Mr. Bango was in fact experiencing auditory hallucinations.

3

108. Mr. Bango kited again on January 15, 2016, stating that he had not “seen anyone

4 about my mental health meds.” A mental health provider responded “MH interviewed you on

5 01/11/16 they cleared you per class.”

6

109. On January 21, 2016, two representatives from Veteran’s Affairs, a chaplain and a

7 social service provider, came to the Jail and spoke to one of the mental health providers. They

8 asked whether Mr. Bango was receiving his psychiatric medications. The provider reviewed Mr.

9 Bango’s chart and determined that he had not followed up with treatment for four months prior

10 to his arrest. In fact, Mr. Bango had met with a provider at least two months prior to his arrest

11 and had current prescriptions when he was arrested.

12

110. Mr. Bango kited yet again on February 2, 2016, stating that he needed “to see a

13 mental health pro ASAP . . . I need my meds and to see a MHP [mental health provider]. I[’]m

14 trying to use the appropriate channels.” A mental health provider responded that “[t]his request

15 has been answered numerous times. Do not kite regarding this matter again.”

16

111. Mr. Bango kited the following day, on February 3, 2016, stating “I need to see a

17 mental health person…I am a veteran that served in the military…I suffer from several mental

18 disabilities from this and I am in dire need for my medication…Thank you for your time and

19 patience.” He was informed that his “medications have not started because you did not follow

20 up with the community mental health care provider for a while prior to booking.”

21

112. Mr. Bango’s Veteran’s Affairs records indicate that he had met with a provider on

22 October 6, 2015, approximately two months before his arrest.

23

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1

113. After receiving the response to his February 3 kite, Mr. Bango decided to stop

2 asking for mental health treatment because he feared he would be punished by being demoted a

3 classification “level,” which would restrict his access to visitation, the telephone, commissary

4 services, and possibly result in him being placed in the “hole” again.

5

114. For the next year, Mr. Bango spent most of his time in his cell, avoiding social

6 interaction as his mental illness worsened. His hallucinations intensified and he had trouble

7 sleeping. When he did come out of his cell, he had auditory hallucinations, imagining that others

8 in his unit were verbally threatening him. When sharing a cell with another person, Mr. Bango

9 would hallucinate that his cellmate was talking to him.

10

115. On March 8, 2017, approximately 15 months after Mr. Bango’s arrest, Pierce

11 County Jail requested his medical records from Veteran’s Affairs.

12

116. On March 10, 2017, Mr. Bango kited mental health staff again after his wife

13 urged him to seek treatment. Mr. Bango stated, “I need to see a MHP ASAP. I[’]m a veteran

14 who has been diagnosed with PTSD. I’m not getting any mental health care…I’m starting to

15 have a hard time thinking clear because I have not slept. I don[’]t know if [my cellmate] is

16 talking to me at night or if I[’]m hearing voices.” A mental health provider responded, “We

17 understand you are having a hard time, but we do not have control over housing in that unit.”

18

117. On March 11, 2017, Mr. Bango responded, “Ok. I understand that you may not

19 have control of housing but I would like to see and talk to MHP. Are you telling me to just suck

20 it up and continue to have a hard time or can I be evaluated to see if we can come to a solution.”

21 A mental health provider responded, “You do not meet requirements to be seen [b]y MHP. You

22 must focus on other coping skills to help you through this difficult time.”

23

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1

118. On July 28, 2017, Mr. Bango sent a kite stating, “I need to see mental health

2 ASAP for PTSD bipolar and related depression problems. I need to know why I can[’]t get my

3 meds. I requested my records. They are here at PCJ, I got the copies and I[’]m still not being

4 treated for mental health.” A mental health provider responded, “You have been at PCJ for a

5 year and a half now, [h]ow have you been coping without medications up to this point?” Mr.

6 Bango responded, “I[’]m not a professional and that isn[’]t a question I can answer other than to

7 say I have not been doing good without medication or treatment for my PTSD traumatic brain

8 injury bipolar disorder and panic disorder. I have made several attempts and requests from Dec

9 2015 until now and have continuously been refused mental health treatment. I am having

10 increased episodes of vivid nightmares flashbacks and anxiety. Why am I being denied basic

11 mental health services…I[’]m begging once again for someone to please address my issues.” A

12 mental health provider responded, “We understand you are having a hard time but we do not

13 start mental health medications that were not current in community and do not provide ongoing

14 counseling. We will send you some mental health worksheets to help teach you new coping

15 skills and a list of providers that you can follow up with when you get out of jail.”

16

119. On August 4, 2017, Mr. Bango filed a grievance concerning the lack of mental

17 health care. He noted that he had been requesting care since December 2015. A mental health

18 provider responded, “[Y]our requests for medications have been reviewed in the past. I have

19 now referred you to see the nurse practitioner to determine if medications will be prescribed for

20 you here at PCJ [Pierce County Jail].”

21

120. A psychiatric nurse practitioner and mental health provider came to see Mr.

22 Bango on August 16, 2017, but only spent a few minutes discussing his symptoms before

23

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1 prescribing Setraline (brand name Zoloft), an anti-depressant, and Prazosin, a drug used to treat

2 PTSD.

3

121. On August 24, 2017, the psychiatric nurse practitioner visited Mr. Bango again,

4 but this interaction was equally brief and the only treatment provided as an increase in dosage of

5 his Zoloft prescription and the addition of a new medication, Trazadone, “for racing thought[s] at

6 bedtime.”

7

122. On August 25, 2017, Mr. Bango filed an appeal of his grievance because he had

8 not received comprehensive mental health treatment, including ongoing mental health screening

9 and evaluation, crisis intervention, medication management, individual and group counseling,

10 and mental health programming. Mr. Bango requested mental health treatment consistent with

11 national standards.

12

123. On September 7, 2017, Mr. Bango sent a kite indicating that he was hearing

13 voices despite putting earplugs in his ears. Staff responded by asking him if he wanted

14 “handouts on coping.”

15

124. On September 9, 2017, Mr. Bango sent a kite stating that he had not slept in five

16 days.

17

125. Mr. Bango again saw the psychiatric nurse practitioner on September 12, 2017,

18 who noted that he was hearing voices. However, the only care provided was an increase in his

19 prescription medications.

20

126. On September 13, 2017, Mr. Bango requested information on the side effects for

21 his medications. On September 15, 2017, he made the same request, noting that mental health

22 staff had “fail[ed] to provide informations [sic] sheets about medications when requested and

23 never sit and counsel patients or provide the opportunity or access to the provider to do so.”

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1

127. On September 17, 2017, Mr. Bango sent a kite stating that he was “seeing thi[n]gs

2 that talk to me” and was afraid that people “can hear me through the radios and satalites [sic].”

3 A mental health provider responded, “[h]ave you ever been treated for mental health issues?

4 Have you taken meds before?” Mr. Bango responded, “I have been on meds for 10 years . . .

5 Don[’]t you people look at our file or meds or talk to each other, do you even care that I[’]m

6 under attack right now?”

7

128. On October 2, 2017, Mr. Bango sent a kite stating “I[’]m trying to get away from

8 them but they are using the satalites [sic] to track me and control my brains, I[’]m supposed to

9 have the surgery to take out the Army implant. The voices are com[]ing through the radios and

10 intercom. When I look for them I only see their shadows but they are there . . . . Are they here

11 intercepting my thinking, I just need to know the truth and what they are using them for.?” A

12 mental health provider responded, “You may speak with your attorney about this. You will have

13 to follow up with ARNP [nurse practitioner].”

14

129. On October 4, 2017, a nurse practitioner saw Mr. Bango and noted that he was

15 worried about being tracked by satellites. The nurse practitioner increased his Zoloft

16 prescription.

17

130. On October 12, 2017, Mr. Bango sent a kite stating, “Someone is trying to give

18 me poison in my medication and my trays. Why are the[y] saying it through the radio and

19 intercom, please send the codes to me and I will translate.” A mental health provider responded,

20 “Did you report these symptoms to the prescriber when you saw her last week?”

21

131. On October 18, 2017, a psychologist met with Mr. Bango and documented

22 reported hallucinations and delusions, including being injected with a monitoring device in his

23 arm and seeing soldiers in the Jail.

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1

132. Mr. Bango continues to have hallucinations, extreme nightmares, and severe

2 mood swings.

3

133. Mr. Bango believes that he may be taking the wrong combination of psychiatric

4 medications. He was prescribed Zoloft, an anti-depressant medication that is not typically used

5 to treat bipolar disorder, and can cause manic episodes if not paired with a mood stabilizing drug.

6 Symptoms of mania can include psychosis.

7

134. Mr. Bango’s mental health has decompensated significantly since his booking

8 into the Jail due to Defendants’ failure to provide timely adequate mental health care.

9

135. Defendants have denied Mr. Bango medically necessary psychiatric medications

10 and access to mental health providers during his incarceration. They have also improperly

11 placed him in solitary confinement and left him alone in a cell with his arms handcuffed behind

12 his back after pepper spraying him in the face. The inappropriate use of isolation and force as

13 well as the denial of care has caused Mr. Bango to decompensate.

14

b. Plaintiff Scott Bailey

15

136. Plaintiff Scott Bailey is a 45-year old man who is currently incarcerated in the

16 Pierce County Jail and who has been diagnosed with major depression and experiences anxiety.

17 Mr. Bailey regularly experiences suicidal ideation and has attempted to commit suicide many

18 times. Mr. Bailey has been incarcerated at the Pierce County Jail approximately eight times,

19 dating back to 1999. Defendants placed Mr. Bailey on suicide watch during his incarceration in

20 December 2014, including placing him in isolation with no clothing except a “suicide smock,”

21 and thus are aware of Mr. Bailey’s mental health issues and suicidal tendencies.

22

137. When Mr. Bailey was booked into the Jail on April 21, 2016, a nurse noted that

23 he was “[n]ot happy” about his arrest, but left all other mental health categories blank, including

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1 Mr. Bailey’s treatment history, previous suicide attempts, and depression levels, despite noting

2 that Mr. Bailey was “cooperative” with the assessment.

3

138. Similarly, when Mr. Bailey was booked into the Jail on July 31, 2016, the nurse

4 noted that S.B. was “[n]ot happy about” his arrest but cooperative, and left all other mental

5 health categories blank.

6

139. When Mr. Bailey was booked into the Jail on January 30, 2017, the receiving

7 nurse noted that he was currently feeling depressed, had a current feeling of depression of a “4-

8 6” on a scale of 10, and had tried to commit suicide in 2012 by cutting his wrist. The nurse

9 noted that Mr. Bailey “[a]ppears to be coping well” and left all other mental health categories

10 blank.

11

140. When Mr. Bailey was booked into the Jail on April 2, 2017, the nurse noted that

12 he was “not real pleased” about his arrest and cooperative with the intake assessment, but left all

13 other mental health categories blank. These included the categories for “currently feel[ing]

14 depressed,” “currently have thoughts of self harm or suicide,” “[c]urrent or [p]ast [t]reatment for

15 mental health issues,” “[p]ast suicide attempts, strong plans, or treatment for attempts,” and

16 “[h]ad any treatment for mental health issues or suicide risk during any previous incarceration[.]”

17

141. Mr. Bailey recalls that he informed the nurse on April 2, 2017, about medications

18 he had previously taken for his mental health. According to Mr. Bailey’s medical records, he

19 had previously taken Hydroxyzine, an anti-anxiety medication, Remeron, an anti-depressant,

20 Prazosin, a drug typically used to treat PTSD, and Clonidine, an anti-anxiety medication as

21 prescribed by a provider in September 2014. However, there are no notes on Mr. Bailey’s

22 booking form indicating previous treatment for mental illness.

23

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1

142. On April 20, 2017, approximately three weeks after his arrest, Mr. Bailey sent a

2 kite requesting to see a mental health provider, noting that he was “extremely depressed.” A

3 mental health provider responded, “We understand you are having a hard time but we do not

4 start mental health medications that were not current in the community and do not provide on

5 going counseling. We will send you some mental health worksheets to help teach you new

6 coping skills and a list of providers that you can follow up with when you get out of jail.” The

7 worksheets Mr. Bailey received included instructions on getting enough sleep and exercising.

8

143. On May 20th, 2017, Mr. Bailey requested a grievance form to grieve the lack of

9 mental health treatment. A mental health provider asked him, “[h]ave you req[ue]sted to be seen

10 by [a mental health provider]? What do you want to be seen for?...” Mr. Bailey responded that

11 he had previously asked to be seen, had a history of mental health issues, including depression

12 and anxiety, and “would appreciate being seen by someone ASAP if possible . . . . I was taking

13 meds in the past and need to get restarted with that as well. Thanks.” A mental health provider

14 responded, “[mental health] is not set up to do treatment. Would you like handouts on coping

15 skills?” Mr. Bailey declined the handouts, noting that he had received them already.

16

144. On May 26, 2017, a mental health provider noted that Mr. Bailey had filed a

17 grievance seeking counseling and medications, and “did not appear to tell the [booking] nurse of

18 any meds or services.”

19

145. The same day that Mr. Bailey filed his grievance, he was seen by two mental

20 health providers. One provider documented that Mr. Bailey was “depressed and crying” during

21 the interview. The provider also documented that Mr. Bailey had previously been hospitalized

22 for his mental illness and had tried to commit suicide in the past by “biting his wrist, trying to

23

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1 smother himself and OD on cocaine.” The provider noted that Mr. Bailey experienced ongoing

2 suicidal ideation and should be referred to the psychiatric nurse practitioner for treatment.

3

146. When Mr. Bailey asked the providers if he was only being seen because he had

4 filed a grievance, one of the providers made a statement that implied that the mental health

5 providers would delay evaluating people until they had filed a grievance. The providers’ notes

6 reflect that Mr. Bailey was seen “due to Grievance.”

7

147. On June 10, 2017, Mr. Bailey sent a kite asking when he would be seeing

8 “someone to get medications started,” i.e., the psychiatric nurse practitioner. A mental health

9 provider responded, “Our list is very long. It may be a little while longer before you can be

10 seen.”

11

148. The psychiatric nurse practitioner did not evaluate Mr. Bailey for treatment until

12 June 16, 2017, almost three weeks after Mr. Bailey’s depression and suicidal tendencies were

13 noted in the Jail’s medical record. The nurse practitioner assessed Mr. Bailey with major

14 depression, nearly two and a half months after he had been admitted to the Jail, and prescribed

15 medications, including Hydroxyzine, an anti-anxiety medication, and Setraline (brand name

16 Zoloft), an anti-depressant.

17

149. On July 11, 2017, Mr. Bailey filed a grievance appeal, stating that the Jail was not

18 providing treatment or counseling on a regular basis and that “I should not have to file a

19 grievance to receive help from M.H.P . . . . A schedule of regular treatment needs to be made

20 available to all who need it. Not to those select few who complaint the loudest.”

21

150. Mr. Bailey has not had any follow-up appointments with a mental health provider

22 since June 16, 2017.

23

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1

151. Defendants have routinely failed to adequately screen Mr. Bailey’s mental health

2 conditions, mental health history, or use of psychiatric medications. Further, Defendants have

3 refused to provide Mr. Bailey with timely access to psychiatric medications or other basic mental

4 health services, despite his repeated requests for treatment. This has placed Mr. Bailey at an

5 unreasonable risk of self-harm and psychological decompensation.

6

E. Defendants Are Deliberately Indifferent to Plaintiffs’ Constitutional Rights

7

152. Pierce County has long been the target of protracted litigation regarding its

8 substandard mental health care. Additionally, it has a history of contracting with private for-

9 profit health care providers that are known to provide constitutionally inadequate services to

10 correctional facilities. These facts, in addition to Defendants’ acknowledgement of the receipt of

11 Plaintiffs’ counsel’s recent letter demanding changes to policies and practices in the Jail,

12 demonstrate that Defendants are on actual notice––and thus intentionally and/or deliberately

13 indifferent––to their violations of Plaintiffs’ and similarly situated individuals’ constitutional

14 rights.

15

153. In 1995, the American Civil Liberties Union of Washington (ACLU-WA), in

16 cooperation with Evergreen Legal Services and the Puget Sound Assistance Foundation, sued

17 Pierce County in federal court regarding unconstitutional conditions in the Pierce County Jail.

18 The resulting class action, Herrera v. Pierce County, including causes of action challenging

19 Pierce County Jail’s inadequate mental health care. See Dkt. #12, First Amended Complaint for

20 Declaratory and Injunctive Relief, No. C95-5025-FDB at 27–28 (W. Wa. Mar. 17, 1995).

21

154. The Herrera litigation was resolved through a series of stipulated orders in 1995

22 and 1996. See Dkt. #89, Stipulated Order and Final Judgment, No. C95-50525-FDB (W. Wa.

23 Mar. 28, 1996). Pursuant to these orders, Pierce County was required to create a mental health

Complaint - 31

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1 unit, increase health care staffing, implement mental health training, and adopt constitutional

2 medical care standards, policies, and procedures using the National Commission on Correctional

3 Health Care (NCCHC) and the American Public Health Association (APHA) as guidelines. See

4 id. at 5–6; see also Dkt. #41, Stipulated Order, No. C95-5025-FDB (W. Wa. Oct. 31, 1995).

5 Pierce County was also specifically required to create and annually update policies and

6 procedures “regarding the use of and conditions in crisis cells and other cells (including booking

7 cells) used to isolate prisoners with suicide risks or mental health related behavioral problems.”

8 Dkt. # 89 at 7. The case was dismissed pursuant to settlement in 2011. See Dkt. # 372

9 Stipulation and Order of Dismissal with Prejudice, No. C95-5025-RBJ-JKA (W. Wa. Feb. 25,

10 2011).

11

155. Since the dissolution of the Herrera settlement agreement, Pierce County Jail has

12 made several concerning and questionable changes to its mental health care services, including

13 contracting with private corporations for the provision of medical and mental health services in

14 the Jail. Several of these private corporations have been the subject of repeated lawsuits

15 regarding substandard medical and mental health care.

16

156. Regardless of the existence of any contracts with private entities to provide

17 mental health care at the Pierce County Jail, Defendants are ultimately responsible for the mental

18 health care, treatment, and safekeeping of individuals incarcerated at the Pierce County Jail and

19 cannot contract away their constitutional and statutory obligations to provide minimally adequate

20 mental health care.

21

157. On August 28, 2017, Plaintiffs’ counsel sent a letter to Defendants. This letter

22 detailed Defendants’ unlawful policies, practices, procedures, and customs towards individuals

23 with mental illness confined at the Pierce County Jail.

Complaint - 32

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1

158. On September 11, 2017, Pierce County Sheriff’s Department spokesman, Ed

2 Troyer, referenced the letter from Plaintiffs’ counsel at an “Adults Civics Happy Hour” event at

3 the Pacific Brewing & Malting Company in Tacoma, Washington. He stated: “Actually we have

4 the ACLU coming after us now for – we do have too many people with mental health in the jail

5 and not enough services. And we were laughing [in response to the letter] and saying, ‘We’ve

6 been ringing that bell and beating that drum for ten years, where have you been? Come help 7 us.’”1

8

159. Because the Defendants were on actual notice of their violations, their acts and

9 omissions reflect that they were intentionally and/or deliberately indifferent to Plaintiffs’ and to

10 similarly situated individuals’ constitutional rights.

11

VI.

CAUSES OF ACTION

12

COUNT ONE

(Violation of the Eighth Amendment to the United States Constitution (42 U.S.C. §

13

1983))

By Plaintiffs DONALD BANGO, SCOTT BAILEY and the Proposed Class Against

14 Defendants, Pierce County, Bruce Dammeier, Pierce County Sheriff’s Department, Paul A. Pastor, Patti Jackson-Kidder, and Janet Rhoton

15 160. By their policies and customs as described above, Defendants subject Plaintiffs

16 and the class of similarly situated individuals who they seek to represent to a substantial risk of

17 harm from inadequate mental health care and use of isolation, force, and restraints. These

18 policies and customs have been, and continue to be, implemented by Defendants and their agents

19 or employees in their official capacities, and are the proximate cause of the violation of

20

21

22

1 A video of this event is available on the MovetoTacoma.com Facebook page (Mr. Troyer’s statement begins
23 around 1:19:22): https://www.facebook.com/movetotacoma/videos/1954453684811831/ (last accessed Dec. 4,

2017).

Complaint - 33

AMERICAN CIVIL LIBERTIES UNION OF

WASHINGTON FOUNDATION

901 FIFTH AVENUE #630

SEATTLE, WA 98164

(206) 624-2184

Case 3:17-cv-06002-RBL Document 1 Filed 12/04/17 Page 34 of 38

1 Plaintiffs’ and the proposed class’s rights under the Eighth Amendment to the United States

2 Constitution.

3

161. Defendants have been and are aware of all of the violations listed above, and have

4 been deliberately indifferent to these violations.

5

WHEREFORE, Plaintiffs and the class they seek to represent request relief as outlined

6 below.

7

COUNT TWO

(Violation of the Fourteenth Amendment to the United States Constitution (42

8

U.S.C. § 1983))

By Plaintiffs DONALD BANGO, SCOTT BAILEY and the Proposed Class Against

9 Defendants, Pierce County, Bruce Dammeier, Pierce County Sheriff’s Department, Paul A. Pastor, Patti Jackson-Kidder, and Janet Rhoton

10 162. By their policies and customs as described above, Defendants subject Plaintiffs

11 and the class of similarly situated individuals who they seek to represent to a substantial risk of

12 harm from inadequate mental health care and use of isolation, force, and restraints. These

13 policies and customs have been, and continue to be, implemented by Defendants and their agents

14 or employees in their official capacities, and are the proximate cause of the violation of

15 Plaintiffs’ and the proposed class’s rights under the Fourteenth Amendment to the United States

16 Constitution.

17 163. Defendants have been and are aware of all of the violations listed above, and have

18 been deliberately indifferent to these violations.

19 WHEREFORE, Plaintiffs and the class they seek to represent request relief as outlined

20 below.

21 COUNT THREE

22

(Violation of the Americans with Disabilities Act (42 U.S.C. § 12132 et seq.))

By Plaintiffs DONALD BANGO, SCOTT BAILEY and the Proposed Class Against

23

Defendants Pierce County and Pierce County Sheriff’s Department

Complaint - 34

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1 164. Under the Americans with Disabilities Act, “no qualified individual with a
2 disability shall, by reason of such disability, be excluded from participation in or be denied the
3 benefits of the services, programs, or activities of a public entity, or be subjected to
4 discrimination by any such entity.” 42 U.S.C. § 12132.
5 165. Defendants Pierce County and Pierce County Sheriff’s Department are public
6 entities as defined in 42 U.S.C. §12131(1)(A).
7 166. Plaintiffs are qualified individuals with a disability, as that term is defined in 42
8 U.S.C. §12102(2). They all suffer from a mental impairment that substantially limits one or
9 more “major life activities,” including, inter alia, caring for oneself, eating, sleeping, speaking,
10 learning, reading, concentrating, thinking, communicating, and working. See 42 U.S.C.
11 §12102(2)(A).
12 167. The programs, services, and activities that Defendants Pierce County and the
13 Sheriff’s Department provide to individuals incarcerated at the Pierce County Jail include, inter
14 alia, mail and telephone services, in-person visitation, hygiene activities, outdoor exercise,
15 administrative, disciplinary, and classification proceedings, the “kite” and grievance systems,
16 library services, access to reading materials, commissary services, and educational, vocational,
17 religious, recreational, and other programming.
18 168. Defendants Pierce County and the Sheriff’s Department discriminate against,
19 unjustly segregate, and fail to make reasonable modifications to policies, practices, and
20 procedures for Plaintiffs and the class they seek to represent. As a result, Plaintiffs and the
21 proposed class are excluded from participation in and denied the benefits of the Pierce County
22 Jail’s services, programs, and activities.
23

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1

WHEREFORE, Plaintiffs and the class they seek to represent request relief as outlined

2 below.

3

COUNT FOUR

(Violation of the Rehabilitation Act (29 U.S.C. § 794))

4

By Plaintiffs DONALD BANGO, SCOTT BAILEY, and the Proposed Class Against

Defendants Pierce County and Pierce County Sheriff’s Department

5

6

169. Under Section 504 of the Rehabilitation Act, “[n]o otherwise qualified individual

7 with a disability in the United States . . . shall, solely by reason of her or his disability, be

8 excluded from the participation in, be denied the benefits of, or be subjected to discrimination

9 under any program or activity receiving Federal financial assistance.” See 29 U.S.C. § 794(a).

10

170. At all relevant times, Defendants Pierce County and the Pierce County Sheriff’s

11 Department received Federal financial assistance as that term is used in 29 U.S.C. § 794,

12 including receiving funding under the U.S. Department of Justice’s State Criminal Alien

13 Assistance Program (SCRAAP).

14

171. All of the operations of Defendants Pierce County and the Pierce County Sheriff’s

15 Department qualify as “programs or activities,” as those terms are defined in 29 U.S.C. § 794(b).

16 This includes all operations of the Pierce County Jail.

17

172. Plaintiffs and the class they seek to represent are qualified individuals with

18 disabilities as that term is defined in 29 U.S.C. § 705(20) and 42 U.S.C. § 12102.

19

173. By their polices, practices, and procedures, Defendants Pierce County and Pierce

20 County Sheriff’s Department violate the rights of Plaintiffs and the class they seek to represent

21 under the Rehabilitation Act by discriminating against them and excluding them from, and

22 denying them the benefits of, the operations of the Pierce County Jail.

23

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1

WHEREFORE, Plaintiffs and the class they seek to represent request relief as outlined

2 below.

3

PRAYER FOR RELIEF

4

WHEREFORE, Plaintiffs prays that the Court:

5

1. Issue an order certifying this action as a class action pursuant to Fed. R. Civ. P.

6 23(a) and 23(b)(2);

7

2. Declare that Defendants’ acts, omissions, policies, practices, procedures, and

8 customs as described in this Complaint violate the Eighth and Fourteenth Amendments to the

9 Constitution, Title II of the Americans with Disabilities Act, and Section 504 of the

10 Rehabilitation Act.

11

3. The issuance of injunctive relief restraining Defendants from violating the Eighth

12 and Fourteenth Amendments to the United States Constitution, Title II of the Americans with

13 Disabilities Act, and Section 504 of the Rehabilitation Act;

14

4. For an award of Plaintiffs’ costs and attorneys’ fees;

15

5. For leave to amend these pleadings to conform to the evidence as presented at

16 trial; and

17

6. For such other and further relief as the Court may deem just and proper.

18

DATED this 4th day of December, 2017.

19

20 21 22 23
Complaint - 37

Respectfully submitted,
By:
/s/Antoinette M. Davis Antoinette M. Davis, WSBA No. 29821 tdavis@aclu-wa.org
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 FIFTH AVENUE #630 SEATTLE, WA 98164 (206) 624-2184

Case 3:17-cv-06002-RBL Document 1 Filed 12/04/17 Page 38 of 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Complaint - 38

/s/Jessica Wolfe Jessica Wolfe, WSBA No. 52068 jwolfe@aclu-wa.org AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 Telephone: (206) 624-2184 /s/Salvador Mungia Salvador Mungia, WSBA No. 14807 SMungia@gth-law.com /s/Janelle Chase Fazio Janelle Chase Fazio, WSBA No. 51254 jchasefazio@gth-law.com GORDON THOMAS HONEYWELL 1201 Pacific Ave, #2100 Tacoma, WA 98492 Telephone: (206) 620-6500 Attorneys for Plaintiffs
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 FIFTH AVENUE #630 SEATTLE, WA 98164 (206) 624-2184

 
 Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 1 of 10

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT TACOMA

8 DONALD BANGO, SCOTT BAILEY,

9

Plaintiffs,

CASE NO. 3:17-CV-06002-RBL-DWC

10

v.

11

PIERCE COUNTY, WASHINGTON,

12

PIERCE COUNTY SHERIFF’S DEPARTMENT,

REPORT AND RECOMMENDATION Noting Date: May 4, 2018

13

Defendants.

14
The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United 15
States Magistrate Judge David W. Christel. Presently pending before the Court is “Pierce County 16
Defendants’ Motion for 12(b)(1) Dismissal Regarding Administration of Psychiatric Medication 17
to Outgoing Inmates” (“Motion to Dismiss”). Dkt. 27.1 18
The Court concludes Plaintiffs have failed to demonstrate they have standing to seek 19
declaratory and injunctive relief related to the claim that Defendants are refusing to provide 20

21

22

1 The Motion to Dismiss was filed on behalf of all Defendants: Pierce County, Washington, Bruce

Dammeier, Pierce County Sheriff’s Department, Paul A. Pastor, Patti Jackson-Kidder, and Janet Rohton. Dkt. 27.

23

However, after filing the Motion to Dismiss, the parties stipulated to the dismissal of Defendants Bruce Dammeier, Paul A. Pastor, Patti Jackson-Kidder, and Janet Rohton. Dkt. 38. On March 28, 2018, the Honorable Ronald B.

Leighton entered an Order granting the stipulation to dismiss. Dkt. 39. The only remaining Defendants are Pierce

24 County, Washington and Pierce County Sheriff’s Department.

REPORT AND RECOMMENDATION - 1

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 2 of 10

1 needed psychiatric medications upon release from the Pierce County Jail. Therefore, the Court

2 recommends Defendants’ Motion to Dismiss (Dkt. 27) be granted and this claim be dismissed.

3

I. Background

4

Plaintiffs Donald Bango and Scott Bailey, individuals incarcerated at the Pierce County

5 Jail (“Jail”) at the time the Complaint was filed, allege Defendants are failing to provide

6 adequate mental health treatment in violation of the Eighth and Fourteenth Amendments, the

7 Americans with Disabilities Act (“ADA”), and the Rehabilitation Act. Dkt. 1. Specifically,

8 Plaintiffs allege Defendants are: (1) failing to provide adequate mental health screenings (“Claim

9 1”); (2) ignoring clear signs of mental illness and requests for treatment (“Claim 2”); (3) refusing

10 to provide necessary treatment for mental illnesses (“Claim 3”); (4) delaying and denying basic

11 mental health care, including medications (“Claim 4”); (5) punishing Plaintiffs for non-violent

12 behaviors caused by their mental illnesses (“Claim 5”); (6) housing Plaintiffs in solitary

13 confinement despite clinically proven negative impacts of isolation on individuals with mental

14 illness (“Claim 6”); and (7) refusing to provide needed psychiatric medications upon release

15 from the Jail (“Claim 7”). Id.; see also Dkt. 31.

16

The only claim at issue in the Motion to Dismiss is Claim 7. See Dkt. 27. On February 2,

17 2018, Defendants filed the Motion to Dismiss asserting Plaintiffs do not have standing to bring

18 Claim 7. Id. Plaintiffs filed a Response on February 26, 2018, and Defendants filed a Reply on

19 March 2, 2018. Dkt. 31, 34. The Court heard oral argument on March 29, 2018. 2

20

II. Motion to Strike

21

In support of the Motion to Dismiss, Defendants filed copies of portions of Plaintiffs’

22 state court criminal records. See Dkt. 28. In their Response, Plaintiffs included a single sentence

23
2 During the hearing, the Court heard argument from Attorney Frank Cornelius, on behalf of Defendants,
24 and Attorney Sal Mungia, on behalf of Plaintiffs.

REPORT AND RECOMMENDATION - 2

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1 requesting the Court strike the state court criminal records, stating, “[T]he court records do not

2 establish Defendants’ contention, which itself is inadmissible to the extent it is based on

3 speculation and conjecture, and thus should be stricken.” Dkt. 31, p. 9. Here, Plaintiffs provide

4 no argument explaining why the state court records submitted by Defendants or Defendants’

5 arguments are based on speculation and conjecture. See id. Further, Plaintiffs provide no legal

6 authority supporting their request to strike the records. The Court also notes that, during oral

7 argument, Plaintiffs cited to the state court records submitted by Defendants. As such, the Court

8 finds Plaintiffs have not shown it is appropriate to strike the state court records provided by

9 Defendants. Accordingly, Plaintiffs’ motion to strike is denied.

10

III. Standard of Review

11

Federal Rule of Civil Procedure 12(b)(1) authorizes the dismissal of a case for lack of

12 subject matter jurisdiction. See FED. R. CIV. P. 12. A complaint must be dismissed under Rule

13 12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the

14 action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not

15 fall within one of the other enumerated categories of Article III Section 2 of the Constitution; (2)

16 is not a case or controversy within the meaning of the Constitution; or (3) is not one described by

17 any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); see 28 U.S.C. § 1331 (federal

18 question jurisdiction). When determining subject matter jurisdiction, the Court it is not restricted

19 to the face of the pleadings and may review any evidence to resolve factual disputes concerning

20 the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

21

Federal courts are courts of limited jurisdiction, and are presumed to lack subject matter

22 jurisdiction until the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am.,

23 511 U.S. 375, 377 (1994); see also Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th

24

REPORT AND RECOMMENDATION - 3

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 4 of 10

1 Cir. 2002). Once subject matter jurisdiction has been challenged, the plaintiff bears the burden of

2 establishing it. Id. Furthermore, in a class action, a named plaintiff must show that he himself is

3 subject to a likelihood of future injury. See Matera v. Google Inc., 2016 WL 5339806, at *15

4 (N.D. Cal. Sept. 23, 2016).

5

IV. Discussion

6

Defendants assert Plaintiffs lack standing to bring Claim 7. Dkt. 27. The Court agrees.

7

A. Facial Attack

8

Defendants have raised a facial attack on subject matter jurisdiction. See Dkt. 27.

9 Defendants assert the Complaint fails to allege sufficient facts to show Plaintiffs have standing to

10 bring Claim 7. Id. As Defendants are challenging the sufficiency of the Complaint, this is

11 considered a facial attack and the Court presumes the factual allegations made in the Complaint

12 are true. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v.

13 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In a facial attack, the challenger asserts that the

14 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.

15 By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by

16 themselves, would otherwise invoke federal jurisdiction.”). The Motion to Dismiss should,

17 therefore, be granted only if Plaintiffs fail to set forth the elements necessary for subject matter

18 jurisdiction in the Complaint.

19

B. Legal Standard

20

Under Article III, Section 2 of the Constitution, this Court’s subject-matter jurisdiction is

21 limited to deciding “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1; see, e.g., Allen v.

22 Wright, 468 U.S. 737, 750 (1984), overruled on other grounds by Lexmark Int'l, Inc. v. Static

23 Control Components, Inc., 134 S. Ct. 1377, 1388 (2014). “A suit brought by a plaintiff without

24

REPORT AND RECOMMENDATION - 4

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 5 of 10

1 Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore lacks

2 subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.

3 2004). The “irreducible constitutional minimum” of Article III standing contains three elements:

4 (1) the plaintiff must have suffered an “injury in fact;” (2) the injury is fairly traceable to the

5 challenged action of the defendant; and (3) it is “likely,” as opposed to merely “speculative,” that

6 the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.

7 555, 560–61 (1992).

8

A plaintiff must demonstrate standing separately for each form of relief sought. Friends

9 of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000). In

10 the Complaint, Plaintiffs seek only injunctive and declaratory relief. See Dkt. 1. “The standing

11 formulation for a plaintiff seeking prospective injunctive relief is simply one implementation of

12 Lujan’s requirements. The plaintiff must demonstrate that he has suffered or is threatened with a

13 ‘concrete and particularized’ legal harm, coupled with ‘a sufficient likelihood that he will again

14 be wronged in a similar way.’” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.

15 2007) (internal citations omitted).

16

The issue in this case is whether Plaintiffs have alleged sufficient facts to demonstrate

17 they have suffered or are threatened with a concrete and particularized legal harm as to Claim 7.

18 See Dkt. 27, 31, 34; Oral Argument. A harm is “concrete” if it is “‘real,’ and not ‘abstract.’”

19 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). “For an injury to be ‘particularized,’ it

20 ‘must affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 540 U.S. at 560,

21 n. 1). The threat of repeated future injury may not be “conjectural or hypothetical.” O’Shea v.

22 Littleton, 414 U.S. 488, 494 (1974) (internal quotations omitted).

23

24

REPORT AND RECOMMENDATION - 5

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1

C. Analysis

2

At oral argument,3 Plaintiffs argued that, to establish standing as to Claim 7, the

3 Complaint must only allege: (1) the Jail’s policy and practice allows correctional officers to

4 discharge inmates from the Jail without medication; (2) Plaintiff Bailey4 will be released from

5 the Jail without medications; and (3) Plaintiff Bailey faces a risk of decompensation5 because he

6 will be released from the Jail without medications.

7

In the Complaint, Plaintiffs allege Plaintiff Bailey has been incarcerated at the Jail

8 approximately eight times since 1999. Dkt. 1, pp. 5, 27. The Complaint contains factual

9 allegations stemming from Plaintiff Bailey’s lack of mental health treatment during his most

10 recent incarceration at the Jail. There are no allegations showing his release from Jail is

11 imminent or that Plaintiff Bailey faces the possibility of being released from the Jail at all. See

12 Dkt. 1. Plaintiffs have also failed to allege facts showing Plaintiff Bailey faces a risk of

13 decompensation if he is released from the Jail without medication. Therefore, the Court finds 14 Plaintiffs have failed to allege facts sufficient to show any injury related to Claim 7.6

15

16

17
3 The Court notes that, in the Complaint and the Response to the Motion to Dismiss, Plaintiffs allege the

18

Claim 7 injury is that inmates are being released without medications, decompensating, and being reincarcerated at the Jail. See Dkt. 1; Dkt. 31, p. 16. The injury as pled in the Complaint and argued in the Response is even more

speculative than the injury argued at oral argument. Furthermore, the alleged injury requires Plaintiffs to violate the

19 law. Courts have consistently held “[a]n injury based on the threat of future arrests, prosecutions, or convictions is

too conjectural to constitute actual injury because ‘a plaintiff can avoid injury by avoiding illegal conduct.’” Updike

20 v. Clackamas Cty., 2015 WL 7722410, at *7 (D. Or. Nov. 30, 2015) (quoting Melendres v. Arpaio, 695 F.3d 990,
998 (9th Cir. 2012)).

4 At oral argument, Plaintiffs stated they would only be discussing standing as established by Plaintiff
21 Bailey. The Court finds Plaintiffs have conceded the factual allegations related to Plaintiff Bango do not establish

standing. Therefore, the Court will not discuss allegations related to Plaintiff Bango.

22

5 Decompensation is “[t]he appearance or exacerbation of a mental disorder due to failure of defense

mechanisms.” Stedmans Medical Dictionary (2014).

23

6 The Court acknowledges Plaintiffs have alleged there is a practice at the Jail which denies inmates access to mental health medications upon their release to the community. See Dkt. 1, ¶¶ 63-64. Plaintiffs, however, fail to

allege facts sufficient to show the named Plaintiffs have been injured as a result of an officially sanctioned practice

24 or face a concrete and particularized injury as a result of the alleged practice.

REPORT AND RECOMMENDATION - 6

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 7 of 10

1

Furthermore, even if Plaintiffs had alleged facts sufficient to show the three elements

2 asserted by Plaintiffs, the alleged injury is not real, imminent, or concrete. To reach Plaintiffs’

3 conclusion, Plaintiffs’ injury requires, at a minimum, that the Jail release Plaintiff Bailey to the

4 community. At the time of release, Plaintiff Bailey must be compensated (able to function

5 despite stressors). The Jail declines to provide Plaintiff Bailey with mental health medications on

6 release. Plaintiff Bailey attempts, but is unable, to be seen by a primary care physician. Plaintiff

7 Bailey attempts, but is unable, to obtain medications. And, Plaintiff Bailey faces the risk of

8 decompensating without his medication. In fact, Plaintiffs allege Defendants have failed to

9 provide Plaintiff Bailey with effective mediations while housed at the Jail. Thus, as Plaintiff

10 Bailey is not alleged to be compensated, he cannot show he would decompensate as a result of

11 the loss of medications upon release. Therefore, the Court finds the contingency of events

12 required by Plaintiffs is too speculative to find standing. See Lyons, 461 U.S. at 106, n. 7 (finding

13 the plaintiff needed to “credibly allege that he faced a realistic threat from the future application

14 of the City’s policy”); Nelsen v. King Cty., 895 F.2d 1248, 1252 (9th Cir. 1990) (“Both the

15 Supreme Court and our circuit have repeatedly found a lack of standing where the litigant’s

16 claim relies upon a chain of speculative contingencies[.]”); Grundstein v. Washington State,

17 2012 WL 2514915 (W.D. Wash. June 28, 2012) (“Plaintiff must show a ‘significant likelihood’

18 that the rule will be applied to him again in the future.”).

19

During oral argument, Plaintiffs’ counsel stressed that at the time the Complaint was filed

20 Plaintiff Bailey had been convicted of a crime and was awaiting sentencing. Therefore, at the

21 time the Complaint was filed, Plaintiff Bailey could have faced imminent release from the Jail.

22 These allegations were not pled in the Complaint. See Dkt. 1. Furthermore, while the Court can

23 review evidence when ruling on a 12(b)(1) motion to dismiss, the evidence submitted to the

24

REPORT AND RECOMMENDATION - 7

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 8 of 10

1 Court shows only that Plaintiff Bailey was booked into the Jail on April 2, 2017, convicted on

2 November 6, 2017 of unlawful possession of a controlled substance, and sentenced on January 5,

3 2018 to fifteen months in prison, 12 of which could be served in community custody, and

4 committed to the Washington State Department of Corrections. Dkt. 38, 32-1. There is no

5 evidence showing Plaintiff Bailey faced imminent release at the time the Complaint was filed, on

6 December 4, 2017. Rather, the evidence shows he had been convicted of a crime and was

7 awaiting sentencing when the Complaint was filed. There are no allegations or evidence showing

8 Plaintiff was going to receive a short sentence, such as time-served. Therefore, Plaintiffs

9 argument that, at the time the Complaint was filed, Plaintiff Bailey faced imminent release from

10 the Jail without medications is not supported by the allegations in the Complaint or the evidence

11 before the Court.

12

Plaintiffs contend this case is analogous to Helling v. McKinney, 509 U.S. 25 (1993). In

13 Helling, a prisoner plaintiff brought a claim against prison officials alleging his involuntary

14 exposure to environmental tobacco smoke (“ETS”) posed an unreasonable risk to his future

15 health. 509 U.S. at 28-29. The Supreme Court found, “[i]t would be odd to deny an injunction to

16 inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground

17 that nothing yet had happened to them.” Id. at 33. The Supreme Court found the plaintiff stated a

18 cause of action under the Eighth Amendment by alleging the prison officials exposed him to

19 levels of ETS that posed an unreasonable risk of serious damage to his future health. Id. at 35.

20

Initially, the Court notes Helling is not a case about standing. Rather, Helling focuses on

21 whether a plaintiff can state an Eighth Amendment claim alleging that exposure to a current

22 situation presents an unreasonable risk of serious injury to the plaintiff’s future heath. In this

23 case, Defendants are not asserting Plaintiffs cannot state a claim for injunctive relief because a

24

REPORT AND RECOMMENDATION - 8

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 9 of 10

1 lack of medications upon release presents an unreasonable risk of serious damage to Plaintiffs’

2 future health. Rather, Defendants assert Plaintiffs do not have standing to bring Claim 7 because

3 the threat of injury is conjectural and hypothetical. See Dkt. 27. Furthermore, as discussed above,

4 Plaintiffs have not pled facts sufficient to show Plaintiff Bailey faces a real and immediate threat

5 of being released from the Jail to the community without medication and faces a risk of

6 decompensation. Thus, the Court finds Plaintiffs’ assertion that the issue of standing in this case

7 is analogous to Helling is unfounded.

8

Plaintiffs also argue that if Plaintiff Bailey does not have standing to bring this claim, no

9 one will ever have standing to bring this claim. See Dkt. 31, p. 16. The Supreme Court has held,

10 “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not

11 a reason to find standing.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 420–21 (2013) (internal

12 quotations omitted). Therefore, the Court is not persuaded by this argument.

13

For the above stated reasons, the Court finds, taking the allegations in the Complaint as

14 true, Plaintiffs have failed to allege facts sufficient to show a concrete and particularized injury

15 as to Claim 7. Accordingly, the Court finds Plaintiffs have failed to establish standing as to

16 Claim 7.7

17

V. Conclusion

18

In conclusion, the Court finds Plaintiffs lack standing to seek declaratory and injunctive

19 relief related to Claim 7 -- Defendants are allegedly refusing to provide needed psychiatric

20 medications to Plaintiffs upon release from the Jail. Therefore, the Court finds Claim 7 should be

21

22
7 At oral argument, Plaintiffs’ counsel stated Plaintiff Bailey was released from the Jail into the Department

23

of Corrections’ custody on January 11, 2018. He was not discharged from the Jail into the community without medications and does not face a risk of decompensation from that hypothetical discharge. However, as standing is

established at the time the Complaint is filed and as Defendants do not argue mootness, this information is irrelevant

24 to the standing analysis.

REPORT AND RECOMMENDATION - 9

Case 3:17-cv-06002-RBL Document 41 Filed 04/17/18 Page 10 of 10

1 dismissed because the Court lacks subject matter jurisdiction. Accordingly, Court recommends

2 Defendants’ Motion to Dismiss (Dkt. 27) be granted and Claim 7 be dismissed from this action.

3

Plaintiffs request permission to file an amended complaint if the Motion to Dismiss is

4 granted. See Dkt. 31, pp. 16-17. The Court recommends Plaintiffs’ request be denied because

5 Plaintiffs have not shown leave to amend is warranted at this time. However, this

6 recommendation does not preclude Plaintiffs from filing a motion to amend consistent with local

7 and federal rules.

8

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties

9 shall have fourteen (14) days from service of this Report to file written objections. See also FED.

10 R. CIV. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

11 de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time

12 limit imposed by Federal Rule of Civil Procedure 72(b), the clerk is directed to set the matter for

13 consideration on May 4, 2018, as noted in the caption.

14

Dated this 17th day of April, 2018.

15

16

A

David W. Christel

17

United States Magistrate Judge

18

19

20

21

22

23

24

REPORT AND RECOMMENDATION - 10

 
 Case 3:17-cv-06002-RBL Document 45 Filed 05/11/18 Page 1 of 4

1

Judge Ronald B. Leighton

Magistrate Judge David W. Christel 2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA 10

11

DONALD BANGO and SCOTT BAILEY, individually and on behalf of all others

12 similarly situated,

No. 3:17-cv-06002-RBL-DWC

13

Plaintiffs,

14

vs.

15 PIERCE COUNTY, WASHINGTON; PIERCE COUNTY SHERIFF’S
16 DEPARTMENT,

PLAINTIFFS’ MOTION FOR CLARIFICATION/RECONSIDERATION AND RELIEF FROM JUDGMENT
NOTE ON MOTION CALENDAR: MAY 11TH, 2018

17

Defendants.

18

19

20

I. INTRODUCTION

21

COME NOW Plaintiffs Donald Bango (“Bango”) and Scott Bailey (“Bailey”)

22 (collectively “Plaintiffs”), by and through their below attorneys of records, and request the

23 Court clarify the Order on Magistrate Judge David W. Christel’s Report and Recommendation
24 [Dkt. #43]. Magistrate Judge Christel recommended granting Defendants Pierce County and
25 Pierce County Sheriff’s Department’s (collectively “Defendants”) Motion for 12(b)(1)
26 Dismissal Regarding Administration of Psychiatric Medication to Outgoing Inmates (“Motion

PLAINTIFFS’ MOTION FOR CLARIFICATION/RECONSIDERATION AND RELIEF – PAGE 1 NO. 3:17-CV-06002-RBL-DWC

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Case 3:17-cv-06002-RBL Document 45 Filed 05/11/18 Page 2 of 4

1 to Dismiss”) [Dkt. #41]. In its May 7, 2018 Order, the Court states, “[t]he Report and
2 Recommendation regarding dismissal is ADOPTED, and plaintiffs’ complaint is 3
DISMISSED without prejudice.” See Dkt. #43 at ¶1 (emphasis added). The May 7, 2018 4
Order triggered the issuance of a judgment on May 10, 2018. Dkt. #44. However, the scope 5 6 of Defendants’ Motion to Dismiss was limited to one issue: whether Plaintiffs have Article III
7 standing to bring their administration of psychiatric medication upon release claim. See Dkt.

8 #27; see also Magistrate Judge Christel’s Recommendation and Report at Dkt. #41. Because

9 Defendants sought no other relief and the Recommendation and Report is limited to one (1) of
10 seven (7) claims raised in the Complaint, Plaintiffs respectfully request that the Court clarify 11
and/or reconsider the Order of May 7, 2018, and provide relief from judgment. Further, 12
Plaintiffs request that the Court clarify that Pierce County Sheriff’s Department remains a 13
14 Defendant in this action, see Dkt. #39, although the only Defendant listed in the heading of

15 the Court’s May 7, 2018 Order is Pierce County. See Dkt. #43.

16 II. ARGUMENT
17

18

“The court may correct a clerical mistake or a mistake arising from oversight or omission

19 whenever one is found in a judgment, order, or other part of the record. The court may do so

20 on motion or on its own, with or without notice.” See Fed. R. Civ. P. 60(a). Further, the court

21 may relieve a party from judgment based on mistake or inadvertence. See Fed. R. Civ. P.
22 60(b). Here, Plaintiffs believe the Court intended to only dismiss the claim that was the 23
subject of Defendants’ Motion to Dismiss, and not the entire Complaint. To that extent, 24
Plaintiffs seek clarification and correction of the May 7, 2018 Order to reflect that only the 25
26 administration of psychiatric medication upon release claim has been dismissed, and that the

PLAINTIFFS’ MOTION FOR CLARIFICATION/RECONSIDERATION AND RELIEF – PAGE 2 NO. 3:17-CV-06002-RBL-DWC

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Case 3:17-cv-06002-RBL Document 45 Filed 05/11/18 Page 3 of 4

1 other claims remain before the Court. Further, Plaintiffs seek relief from the judgment

2 triggered by the May 7, 2018 Order. Finally, Plaintiffs seek clarification and correction of the

3 Order to reflect that Pierce County Sheriff’s Department remains a Defendant in this action.
4 III. CONCLUSION
5

6

For the foregoing reasons, Plaintiffs respectfully request the Court clarify and/or

7 reconsider the Order on Defendants’ Motion to Dismiss and provide relief from judgment.

8 Respectfully submitted this 11th day of May, 2018.
9

10

By

/s/ Antoinette M. Davis

Antoinette M. Davis, WSBA #29821

11

tdavis@aclu-wa.org

12

Jessica Wolfe, WSBA #52068 jwolfe@aclu-wa.org

13

American Civil Liberties Union of Washington

Foundation

14

901 Fifth Avenue, Suite 630

Seattle, Washington 98164

15

206-624-2184

16

17

By

/s/ Salvador A. Mungia

18

Salvador A. Mungia, WSBA #14807

smungia@gth-law.com

19

Janelle Chase-Fazio, WSBA #51254

20

jchasefazio@gth-law.co

Gordon Thomas Honeywell LLP

21

1201 Pacific Ave., Ste. 2100

Tacoma, WA 98402

22

23

24

25

26

PLAINTIFFS’ MOTION FOR CLARIFICATION/RECONSIDERATION AND RELIEF – PAGE 3 NO. 3:17-CV-06002-RBL-DWC

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 FIFTH AVENUE #630 SEATTLE, WA 98164 (206) 624-2184

Case 3:17-cv-06002-RBL Document 45 Filed 05/11/18 Page 4 of 4

1

I. CERTIFICATE OF SERVICE

2

I hereby certify that on May 11, 2018, I electronically filed the foregoing and the

3 attached Proposed Order with the Clerk of the Court using CM/ECF which will send

4 notification of such filing to the following:
5 Michelle Luna-Green, WSBA #27088
6 Deputy Prosecuting Attorney Pierce County Prosecuting Attorney’s Office
7 955 Tacoma Avenue South, Suite 301 Tacoma, WA 98402-2160
8 Phone: 253-798-6380 Fax: 253-798-6713
9 Email: mluna@co.pierce.wa.us

Frank Cornelius, WSBA #29590 Deputy Prosecuting Attorney Pierce County Prosecuting Attorney’s Office 955 Tacoma Avenue South, Suite 301 Tacoma, WA 98402-2160 Phone: 253-798-6514 Fax: 253-798-6713
E-mail: fcornel@co.pierce.wa.us

10

11

/s/ Kaya McRuer

12

Kaya McRuer, Legal Assistant

American Civil Liberties Union of Washington

13

Foundation

901 Fifth Avenue, Suite 630

14

Seattle, Washington 98164

15

16

17

18

19

20

21

22

23

24

25

26

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AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 FIFTH AVENUE #630 SEATTLE, WA 98164 (206) 624-2184

 
 Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 1 of 14

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 DONALD BANGO, SCOTT BAILEY,

11

Plaintiffs,

12

v.

13 PIERCE COUNTY, WASHINGTON, PIERCE COUNTY SHERIFF'S
14 DEPARTMENT,

CASE NO. 3:17-CV-06002-RBL-DWC
ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL

15

Defendants.

16 The District Court has referred this action filed under 42 U.S.C. § 1983 to United States
17 Magistrate Judge David W. Christel. Currently pending before the Court are Defendants’ Motion
18 to Strike Plaintiffs’ Motion for Class Certification and Strike Class Allegations (“Motion to
19 Strike”) and Plaintiffs’ Motion to Compel Discovery and for Order of Protection (“Motion to
20 Compel”). Dkt. 52, 54. After review of the Motions and the relevant record, the Motion to Strike
21 (Dkt. 52) is granted-in-part and the Motion to Compel (Dkt. 54) is denied.
22

23

24

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 1

Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 2 of 14

1

I. Motion to Strike (Dkt. 52)

2

Defendants filed the Motion to Strike on June 7, 2018, requesting the Court strike

3 Plaintiffs’ Motion for Class Certification (“Motion to Certify”) and strike Plaintiff’s class

4 allegations because Plaintiffs have failed to comply with Federal Rule of Civil Procedure

5 23(c)(1)(A) and Local Civil Rule (“LCR”) 23(i)(3). Dkt. 52. Defendants assert Plaintiffs’ failure

6 to comply with the intent of the Federal and Local Rules and the unilateral decision to re-note the

7 Motion to Certify resulted in a delay tactic that is prejudicial to Defendants. See id. Defendants

8 are essentially requesting the Court sanction Plaintiffs by striking both the Motion to Certify and

9 the class allegations. See id.; Dkt. 60. Plaintiffs filed a Response stating they complied with both

10 the Federal and Local Rules and Defendants are not prejudiced. Dkt. 58.

11

A. Compliance with Federal and Local Rules

12

Plaintiffs initiated this lawsuit on December 4, 2017. Dkt. 1. On December 21, 2017,

13 Plaintiffs filed the Motion to Certify. Dkt. 19. The Motion to Certify was noted for the Court’s

14 consideration on January 26, 2018. See id. After two stipulations by the parties, the Motion to

15 Certify was re-noted for the Court’s consideration on June 8, 2018. See Dkt. 26, 30. On May 30,

16 2018, Plaintiffs filed a Notice of Motion Renoted, re-noting the Motion to Certify to August 17,

17 2018. Dkt. 49. In the Notice, Plaintiffs state they intend to move to amend the Complaint “in the

18 near future,” and re-noted the Motion to Certify pursuant to LCR 7(l) so as to not prejudice

19 Defendants. Id. The Notice was not stipulated to or signed by defense counsel and the Court did

20 not grant leave to re-note the Motion to Certify.

21

LCR 23(i)(3) states:

22

Within one hundred eighty days after the filing of a complaint in a class action,

unless otherwise ordered by the court or provided by statute, the plaintiff shall

23

move for a determination under Fed. R. Civ. P. 23(c)(1), as to whether the case is

to be maintained as a class action. This period may be extended on motion for

24

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 2

Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 3 of 14

1

good cause. The court may certify the class, may disallow and strike the class

allegations, or may order postponement of the determination pending discovery or

2

such other preliminary procedures as appear appropriate and necessary in the

circumstances. Whenever possible, where the determination is postponed, a date

3

will be fixed by the court for renewal of the motion.

4

Here, Plaintiffs filed the Motion to Certify on December 21, 2017, seventeen days after

5 filing the Complaint. See Dkt. 1, 19. The parties agreed to extend the noting date twice and, on

6 May 30, 2018, Plaintiffs unilaterally re-noted the Motion to Certify to August 17, 2018. The

7 Motion to Certify has remained pending since December 21, 2017. Therefore, because Plaintiffs

8 moved for a determination of whether this case should be maintained as a class action within 180

9 days of filing the Complaint, Plaintiffs’ Motion to Certify is in technical compliance with LCR

10 23(i)(3).

11

However, the Court finds Plaintiffs’ conduct is inconsistent with the spirit and intent of

12 the Local Rules. Plaintiffs unilaterally re-noted the Motion to Certify two business days before

13 Defendants’ response to the Motion to Certify was due. See Dkt. 49. At that time, Defendants

14 had already spent a considerable amount of time and expense preparing their response to the

15 Motion to Certify. See Dkt. 53, Cornelius Dec. In light of Plaintiffs’ disclosure of their intent to

16 amend the Complaint so close to the date when Defendants’ response to the Motion to Certify

17 was due, Plaintiffs should have moved for the Court to postpone consideration of the Motion to

18 Certify. Thus, the Court finds Plaintiffs’ conduct warrants a determination of whether sanctions

19 should be imposed.

20

B. Imposition of Sanctions

21

“Before imposing a case dispositive sanction a trial judge must consider five factors: (1)

22 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

23 dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring

24

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 3

Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 4 of 14

1 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Johnson v.

2 Goldsmith, 542 F. App’x 607 (9th Cir. 2013) (internal quotations omitted); Ghazali v. Moran, 46

3 F.3d 52, 53 (9th Cir. 1995) (finding failure to follow a district court’s local rules is a proper

4 ground for dismissal and applying the five factors); Hester v. Vision Airlines, Inc., 687 F.3d

5 1162, 1169 (9th Cir. 2012) (“A court must consider the . . . five factors before striking a

6 pleading”).

7

In this case, the first and second factors, the public’s interest in expeditious resolution of

8 litigation and the court’s need to manage its dockets, weigh in favor of granting the Motion to

9 Strike. While Plaintiffs assert the case has been “moving,” this case has been pending for over

10 seven months without a determination on class certification, which should be determined as soon

11 practicable after the case is filed. See Fed. R. Civ. P. 23. Because of the delay in considering the

12 Motion to Certify, a scheduling order has not been entered and a trial date has not been set.

13 Additionally, Plaintiffs have stated they intend to file an amended complaint, which would likely

14 moot the current class allegations and the Motion to Certify, causing further delay of this case.

15 Both the public’s interest in expeditious resolution of litigation and the Court’s need to manage

16 its dockets weigh in favor of granting the Motion to Strike.

17

The third factor, the risk of prejudice to the party seeking sanctions, also weighs in favor

18 of granting the Motion to Strike. The record shows Defendants will suffer prejudice if the

19 Motion to Strike is denied. Evidence provided by Defendants, and undisputed by Plaintiffs,

20 shows Plaintiffs intend to move to amend the Complaint. See Dkt. 49, 52, 53. If Plaintiffs are

21 allowed to amend the Complaint, the Motion to Certify and the class allegations, which rely on

22 the current Complaint, would likely be moot. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)

23 overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (when

24

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Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 5 of 14

1 an amended complaint is filed, the original complaint is “treated thereafter as non-existent”). At

2 this time, more than two months after informing the Court they intend to move to amend the

3 Compliant, Plaintiffs have not moved to amend the Complaint. As a result of Plaintiffs’ litigation

4 approach, Defendants are now required to respond to the Motion to Certify prior to the Court

5 ruling on any motion to amend filed by Plaintiffs and, if a motion to amend is filed and granted

6 by the Court, the Motion to Certify and Defendants’ response will likely be mooted.

7

Based on Plaintiffs’ representations and the evidence, it’s reasonable that Defendants will

8 have to expend resources to respond to the Motion to Certify, a motion to amend, and a renewed

9 motion to certify. The Court finds Plaintiffs’ failure to move to amend the Complaint in a timely

10 manner, after notifying defense counsel and the Court they intended to do so, without

11 withdrawing or seeking postponement of the Motion to Certify prejudices Defendants.

12 Therefore, the Court finds the third factor weighs in favor of granting the Motion to Strike. See

13 Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law presumes injury from

14 unreasonable delay”); Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984) (prejudice

15 includes “irremediable burdens or costs imposed on the opposing party”).

16

The fourth factor, the public policy favoring disposition of cases on their merits, weighs

17 in favor of denying the Motion to Strike. Defendants request the Court strike the Motion to

18 Certify and Plaintiffs’ class allegations. If the Court were to strike Plaintiffs’ class allegations,

19 the Court would not decide a dispositive issue of this case on the merits. Therefore, the Court

20 finds the fourth factor weighs in favor of denying the Motion to Strike.

21

The fifth factor, whether less drastic sanctions are available, is the determinative factor in

22 this case. More than two months ago, Plaintiffs indicated to defense counsel and the Court they

23 are going to move to amend the Complaint. However, as this time, no motion to amend has been

24

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Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 6 of 14

1 filed. Thus, Plaintiffs’ actions have caused delay and created uncertainty as to status of this case.

2 As a motion to amend has not been filed two months after Plaintiffs indicated they would be

3 filing a motion to amend, the Court finds striking the Motion to Certify is an appropriate

4 sanction. The Court, however, declines to strike the class allegations in the Complaint and

5 Plaintiffs may file a motion requesting enlargement of time to file a renewed motion to certify

6 after determining if they will indeed move to proceed on an amended complaint. This resolution

7 avoids prejudice to Defendants and allows the Court to effectively manage its dockets, yet

8 preserves the interest of deciding a dispositive issue on the merits.

9

For the above stated reasons, the Motion to Strike (Dkt. 52) is granted-in-part as follows:

10

• The Motion to Certify (Dkt. 19) is stricken.

11

• Plaintiffs’ class allegations remain in the Complaint.

12

• After determining if they will move to proceed on an amended complaint,

13

Plaintiffs may file a motion requesting enlargement of time to file a renewed

14

motion to certify, which the Court will consider under LCR 23(i)(3) (the period

15

for moving for a determination Fed. R. Civ. P. 23(c)(1) may be extended on

16

motion for good cause).

17

II. Motion to Compel (Dkt. 54)

18

On June 14, 2018, Plaintiffs filed the Motion to Compel, requesting the Court compel

19 Defendants to respond to discovery requests, enter a protective order, and assess fees and costs.

20 Dkt. 54.

21

A. Compel Discovery Responses

22

A party may obtain discovery regarding any nonprivileged information that is relevant to

23 any claim or defense in his or her case. Fed. R. Civ. P. 26(b)(1). Once the party seeking discovery

24

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Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 7 of 14

1 has established the request meets this relevancy requirement, “the party opposing discovery has the

2 burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining

3 or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009).

4 When a party believes the responses to his discovery requests are incomplete, or contain

5 unfounded objections, he may move the court for an order compelling disclosure. Fed. R. Civ. P.

6 37. The movant must show he conferred, or made a good faith effort to confer, with the party

7 opposing disclosure before seeking court intervention. Id.

8

At this time, the parties have only met and conferred and failed to come to a resolution

9 regarding the scope of early discovery. See Dkt. 55, Mungia Dec., ¶ 15; Dkt. 56, Wolfe Dec., ¶¶

10 12, 14. The Motion to Compel appears to raise additional sub-issues related to discovery. See

11 Dkt. 54. It is not clear from the evidence whether the parties have met and conferred by

12 telephone or in-person and reached an impasse regarding the sub-issues. See Dkt. 54-56, 61-62.

13 The parties provided email exchanges regarding discovery, but emails are not telephonic or in-

14 person attempts to resolve discovery disputes, as required by LCR 37.

15

For example, Plaintiffs assert their discovery requests are related to class certification.

16 See Dkt. 66-1. As early as April 25, 2018, Defendants requested clarification regarding what

17 discovery requests Plaintiffs believe relate to class certification and have been waiting for a

18 response from Plaintiffs’ counsel regarding the clarifications. See Dkt. 62, Cornelius Dec., ¶¶ 4,

19 6-9, 11-12, 19-20. Evidence shows Plaintiffs’ counsel has failed to respond, over a period of

20 several months, to Defendants’ counsels’ requests for clarification and have denied telephone

21 calls regarding requests for clarification have even occurred. See id. at ¶¶ 11-12; see also Dkt.

22 63, Luna-Green Dec., ¶¶ 8, 11 (present during April 25, 2018 call, was informed Defendants

23 would receive a follow-up from Plaintiffs’ counsel and no follow-up has occurred); Dkt. 62, pp.

24

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 7

Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 8 of 14

1 9-10, 17 (emails exchanged between counsel regarding setting and denial of April 25, 2018

2 telephone conference). Thus, there is evidence showing Defendants have attempted to resolve

3 discovery disputes regarding whether Plaintiffs’ discovery requests are related to class

4 certification, but Plaintiffs have failed to respond to requests for clarification. The Court,

5 therefore, finds Plaintiffs have not shown they met and conferred, in good faith, regarding their

6 assertion that the discovery requests relate to class certification.

7

Plaintiffs also argue Defendants have not timely responded to the discovery requests,

8 which would have been due on June 23, 2018, if the requests were deemed served at the Rule

9 26(f) conference. See Dkt. 66-1, p. 5. Plaintiffs, however, assert the last meet and confer

10 conference occurred on June 5, 2018. See id. at p. 4. Therefore, the parties have not met and

11 conferred regarding the alleged lack of response to the discovery requests if the discovery

12 requests were deemed served at the Rule 26(f) conference.

13

As evidence shows the parties are still engaged in discussions regarding discovery

14 requests, the parties have not reached an impasse regarding whether the requested discovery

15 relates to class certification or whether Defendants timely responded to discovery. Therefore, the

16 Court finds any sub-issues raised in the Motion to Compel or Reply are not ripe for the Court’s

17 consideration because the good faith meet and confer requirement has not been satisfied. The

18 parties have only shown they conferred and are at an impasse regarding the scope of early

19 discovery; therefore, this is the only issue ripe for the Court’s consideration in the Motion to

20 Compel. See Fed. R. Civ. P. 37; LCR 37; Beasley v. State Farm Mut. Auto. Ins. Co., 2014 WL

21 1268709, at *3 (W.D. Wash. Mar. 25, 2014) (denying motion to compel when there is no

22 suggestion that the parties reached impasse before the plaintiff filed his motion).

23

24

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1

The relevant evidence shows Plaintiffs filed the Motion to Certify on December 21, 2017.

2 See Dkt. 19. “On January 10, 2018, after discussion with Plaintiffs’ attorney Sal Mungia,

3 Plaintiffs agreed that Defendants could obtain early discovery for the purpose of response to

4 Plaintiffs’ Motion for Class Certification.” Dkt. 63, Luna-Green Dec., ¶ 2. It was the

5 understanding of Defendants’ counsel, Michelle Luna-Green, that discovery was limited to class

6 certification issues only, “and that no other agreement was made regarding discovery beyond

7 class certification.” Id. at ¶ 3. Mr. Mungia stated Plaintiffs agreed, in December of 2017, “that

8 discovery would start and that the lay-down provision would apply even though no case schedule

9 had been entered as of that time.” Dkt. 55, Mungia Dec., ¶ 7. On February 20, 2018, Ms. Luna-

10 Green contacted Mr. Mungia by email stating the parties did not have a meeting of the minds

11 regarding the scope of discovery. Id. at ¶ 11. On April 23, 2018, Ms. Luna-Green and Mr.

12 Mungia had a conversation about the scope of discovery. Id. at ¶ 15. “Ms. Luna-Green explained

13 that it was Defendants’ position that the Plaintiffs are limited to discovery as it pertains to their

14 individual claims. [Mr. Mungia] explained it was the Plaintiffs’ position that discovery was not

15 limited.” Id. During a May 24, 2018 telephone call, Defendants’ counsel, Frank Cornelius,

16 “indicated that it was Defendants’ position that discovery was limited to class certification only,

17 and Plaintiffs’ counsel indicated it was their position the scope of discovery had not been

18 limited.” Dkt. 56, Wolfe Dec., ¶ 11. The disputed discovery requests were served on Defendants

19 prior to the parties’ Rule 26(f) conference. See Dkt. 56, Wolfe Dec., ¶¶ 7-11; Dkt. 62, Cornelius

20 Dec., ¶ 15.

21

Under Federal Rule of Civil Procedure 26(d)(1),

22

A party may not seek discovery from any source before the parties have conferred

as required by Rule 26(f), except in a proceeding exempted from initial disclosure

23

under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by

court order.

24

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 9

Case 3:17-cv-06002-RBL-DWC Document 68 Filed 08/03/18 Page 10 of 14
1 “Discovery is generally not permitted without a court order before the parties have conferred
2 pursuant to Federal Rule of Civil Procedure 26(f), unless a party obtains a stipulation or court
3 order to conduct the discovery.” Rose v. Seamless Fin. Corp., 2012 WL 6052006, at *2 (S.D.
4 Cal. Dec. 4, 2012).
5 Here, the parties did not obtain a Court order to begin discovery prior to the Rule 26(f)
6 conference. See Docket. Further, there is no evidence either party obtained a signed stipulation
7 from the other party on discovery prior to conferring pursuant to Rule 26(f). Rather, the evidence
8 shows the parties entered an informal agreement regarding discovery. The parties, however, did
9 not come to a meeting of the minds regarding the scope of the discovery. Defendants understood
10 discovery was opened for the limited purpose of both parties conducting discovery related only
11 to class certification. Plaintiffs understood there were no limits to discovery. The Court declines
12 to compel Defendants to produce discovery requested prior to the Rule 26(f) conference when
13 there was no signed stipulation regarding the scope of discovery or a Court order regarding early
14 discovery.
15 Plaintiffs contend discovery can only be limited by the Court. Dkt. 54. Plaintiffs have not
16 cited to any legal authority stating the parties cannot agree to limit discovery prior to the Rule
17 26(f) conference. The Court finds that, just as parties can enter a stipulation to conduct early
18 discovery without a Court order, parties can stipulate to limit the scope of early discovery.
19 Therefore, the Court is not persuaded by Plaintiffs argument. See Fed. R. Civ. P. 29(b)
20 (permitting parties to modify “procedures governing or limiting discovery” by stipulation, unless
21 the stipulation would “interfere with the time set for completing discovery, for hearing a motion,
22 or for trial,” or “[u]nless the court orders otherwise.”); see also LCR 26 (“Counsel are expected
23 to cooperate with each other to reasonably limit discovery requests”).
24
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1

For the above reasons, Plaintiffs’ request for an order compelling Defendants to provide

2 responses to the early discovery is denied.1

3

B. Protective Order

4

Pursuant to Federal Rule of Civil Procedure 26(c):

5

A party or any person from whom discovery is sought may move for a protective

order in the court where the action is pending . . . The motion must include a

6

certification that the movant has in good faith conferred or attempted to confer

with other affected parties in an effort to resolve the dispute without court action.

7

This Court’s Local Rules also require any motion for a protective order to “include a

8

certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good

9

faith meet and confer conference with the other affected parties in an effort to resolve the dispute

10

without court action.” LCR 26(c). Rule 26 states “[t]he certification must list the date, manner,

11

and participants to the conference.” If a certification is not included, the Court many deny the

12

motion without addressing the merits. LCR 26(c).

13

The evidence shows the parties began discussing a protective order in March of 2018. See

14

Dkt. 57-1; Dkt. 62, Cornelius Dec., ¶ 22. Plaintiffs’ counsel sent a proposed protective order to

15

Defendants’ counsel through email on March 20, 2018. See Dkt. 57-1. On the same date,

16

Defendants’ counsel proposed the Court’s model protective order in response. Dkt. 57-2; Dkt.

17

57-3; Dkt. 61; Dkt. 62, Cornelius Dec., ¶ 21. Following a telephone conversation on March 23,

18

2018 regarding Defendants’ proposed protective order, Plaintiffs took no additional action to

19

complete a proposed protective order until May 21, 2018 (2 months later) when one of Plaintiffs’

20

attorneys sent defense counsel an email. Dkt. 62, Cornelius Dec., ¶ 23. The parties discussed a

21

22
1 In challenging Defendants’ objection to Plaintiffs’ discovery requests because the requests call for private

23

inmate information, Plaintiffs assert the Court should enter an order pursuant to RCW 70.48.100 if the Court finds redaction of discovery responses that call for private inmate information insufficient. Dkt. 54, pp. 11-12. As the

Court declines to compel Defendants to produce the requested discovery, Plaintiffs’ request for an order pursuant to

24 RCW 70.48.100 is moot.

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1 proposed protective order at the Rule 26(f) conference held on May 24, 2018 and through email

2 on May 31, 2018. See Dkt. 57-5; Dkt. 62, Cornelius Dec., ¶¶ 24-26. “At the time Plaintiffs filed

3 their Motion to Compel, [Defendants] were seeking further clarification from Plaintiffs”

4 regarding topics in the proposed protective order. Dkt. 62, Cornelius Dec., ¶ 27; see Dkt. 62, p.

5 66 (email dated June 11, 2018 from Defendants’ attorney to Plaintiffs’ attorney seeking

6 clarification in the proposed protective order).

7

While Plaintiffs assert they met and conferred with Defendants regarding the disputed

8 discovery (see Dkt. 54, p. 7), the evidence before the Court shows the parties have only engaged

9 in discussions regarding a proposed protective order. The parties have not met and conferred and

10 failed to come to a resolution prior to involving the Court. Defendants’ counsel was seeking

11 further clarification of Plaintiffs’ proposed protective order three days prior to Plaintiffs’ filing

12 the Motion to Compel. There is no evidence Plaintiffs responded to Defendants’ request for

13 clarification prior to filing the Motion to Compel. As the evidence shows the parties are still

14 attempting to resolve any disagreement regarding a proposed protective order and have not

15 reached an impasse, the Court finds the parties have not completed the meet and confer

16 requirement.

17

Therefore, the request for a protective order is denied. The parties are directed to continue

18 engaging in discussions regarding a proposed protective order. The parties should only seek

19 Court intervention if the parties reach an impasse on a substantive issue. See Beasley, 2014 WL

20 1268709 at *3; Branch Banking & Tr. Co. v. Pebble Creek Plaza, LLC, 2013 WL 12176465, at

21 *1 (D. Nev. July 26, 2013) (judicial intervention is appropriate only when “informal negotiations

22 have reached an impasse on the substantive issue in dispute”).

23

C. Request for Fees and Costs

24

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1

Plaintiffs request the Court assess fees and costs for bringing the Motion to Compel. Dkt.

2 54. The Court finds Plaintiffs have not shown an order compelling discovery responses and a

3 protective order is appropriate at this time. As the Court is denying the Motion to Compel, the

4 Court declines to assess fees and costs.

5

D. Stay of Discovery

6

In light of the conduct described in this Order, particularly Plaintiff’s delay in filing a

7 motion to amend after notifying defense counsel and the Court of an intent to file a motion to

8 amend, the Court finds a stay of discovery is appropriate while Plaintiffs determine how their

9 case will proceed (i.e. on the Complaint or moving to file an amended complaint). Plaintiffs have

10 indicated they intend to file a motion to amend, but have not informed the Court or defense

11 counsel what amendments may be made. See Dkt. 49; Dkt. 62, Cornelius Dec. ¶ 17. As an

12 amended complaint will completely replace the original Complaint, staying discovery promotes

13 efficiency for the Court and litigants, will not impact any proposed amended complaint, and will

14 not require the parties to respond to potentially irrelevant or overly burdensome discovery. See

15 Lope v. Cate, 2014 WL 3587852, at *1 (E.D. Cal. July 21, 2014) (citing Little v. City of Seattle,

16 863 F.2d 681, 685 (9th Cir. 1988) (“a stay of discovery pending resolution of potentially

17 dispositive issues furthers the goal of efficiency for the courts and the litigants”); Tradebay, LLC

18 v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (in staying discovery, the court considered

19 “the goal of Rule 1 of the Federal Rules of Civil Procedure which directs that the Rules shall ‘be

20 construed and administered to secure the just, speedy, and inexpensive determination of every

21 action’”).

22

23

24

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1

The stay of discovery will be lifted upon the entry of a scheduling order, which the Court

2 anticipates will occur after a determination on class certification, or upon an order from this

3 Court, if the parties move to lift the stay of discovery prior to the scheduling order being entered.

4

E. Conclusion

5

The Court has reviewed the Motion to Compel and the relevant evidence. For the above

6 stated reasons, the Court declines to: (1) compel Defendants to respond to Plaintiffs’ early

7 discovery requests; (2) enter a protective order; and (3) assess fees and costs. Therefore, the

8 Motion to Compel (Dkt. 54) is denied.2

9

III. Conclusion

10

In conclusion, the Motion to Strike (Dkt. 52) is granted-in-part: the Motion to Certify

11 (Dkt. 19) is stricken. The Motion to Compel (Dkt. 54) is denied. Discovery in this matter is

12 stayed.

13

The Clerk is directed to strike the Motion to Certify (Dkt. 19).

14

Dated this 3rd day of August, 2018.

15

16

A

David W. Christel

17

United States Magistrate Judge

18

19

20

21

22

23

2 In their Response, Defendants state they are seeking to bifurcate discovery in this case. See Dkt. 61.

Because the Court has stayed discovery and there is currently no motion before the Court regarding bifurcation of

24 discovery, the Court declines to decide whether discovery should be bifurcated at this time.

ORDER ON MOTION TO STRIKE AND MOTION TO COMPEL - 14

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 DONALD BANGO, SCOTT BAILEY,

11

Plaintiffs,

12

v.

13 PIERCE COUNTY, WASHINGTON, et al.,
14 Defendants.
15

CASE NO. 3:17-CV-06002-RBL-DWC REPORT AND RECOMMENDATION Noting Date: November 2, 2018

16

The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United

17 States Magistrate Judge David W. Christel. Presently pending before the Court is Plaintiffs

18 Donald Bango and Scott Bailey’s Amended Motion for Class Certification (“Motion”). Dkt. 78.

19

The Court concludes Plaintiffs have failed to meet the numerosity and commonality

20 requirements for class certification under Federal Rule of Civil Procedure 23(a). Plaintiffs have

21 also failed to meet the requirements of Rule 23(b). Accordingly, the Court recommends

22 Plaintiffs’ Motion (Dkt. 78) be denied.

23

24

REPORT AND RECOMMENDATION - 1

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1

I. Background

2

Plaintiffs, individuals incarcerated at the Pierce County Jail (“Jail”) at the time the

3 Complaint was filed, allege Defendants Pierce County, Washington and Pierce County Sheriff’s

4 Department are failing to provide adequate mental health treatment in violation of the Eighth and

5 Fourteenth Amendments, Title II of the Americans with Disabilities Act (“ADA”), and the

6 Rehabilitation Act (“RA”). Dkt. 1. Specifically, Plaintiffs allege Defendants are: (1) failing to

7 provide adequate mental health screenings; (2) ignoring clear signs of mental illness and requests

8 for treatment; (3) refusing to provide necessary treatment for mental illnesses; (4) delaying and

9 denying basic mental health care, including medications; (5) punishing Plaintiffs for non-violent

10 behaviors caused by their mental illnesses; (6) and housing Plaintiffs in solitary confinement

11 despite clinically proven negative impacts of isolation on individuals with mental illness. Id.; see

12 also Dkt. 31.1

13

On August 29, 2018, Plaintiffs filed the Motion. Dkt. 78. Defendants filed a Response on

14 September 17, 2018, and Plaintiffs filed a Reply on September 21, 2018. Dkt. 90, 102. The Court

15 heard oral argument on September 27, 2018. 2

16

II. Discussion

17

A class action is “an exception to the usual rule that litigation is conducted by and on

18 behalf of the individual named parties only.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348

19 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). In order to justify a

20 departure from that rule, “a class representative must be part of the class and ‘possess the same

21

22

1 Plaintiffs also alleged Defendants refused to provide needed psychiatric medications upon release from

the Jail. This claim was dismissed on May 7, 2018. Dkt. 43; see also Dkt. 41.

23

2 During the hearing, the Court heard argument from Attorney Sal Mungia, on behalf of Plaintiffs, and

Attorney Michelle Luna-Green, on behalf of Defendants.

24

REPORT AND RECOMMENDATION - 2

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1 interest and suffer the same injury’ as the class members.” Id. (citing E. Tex. Motor Freight Sys.,

2 Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). “Class certification is proper only if the trial court

3 has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has been satisfied.” Wang v. Chinese

4 Daily News, Inc., 737 F.3d 538, 542–43 (9th Cir. 2013) (quoting Dukes, 564 U.S. at 350). As

5 part of this analysis, the court “must consider the merits [of the substantive claims] if they

6 overlap with [the class certification] requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d

7 970, 981 (9th Cir. 2011) (emphasis in original).

8

A plaintiff seeking class certification must show he meets the requirements of Federal

9 Rule of Civil Procedure 23(a), which states:

10

One or more members of a class may sue or be sued as representative parties on

behalf of all members only if:

11 (1) the class is so numerous that joinder of all members is impracticable

12

[(“numerosity”)];

(2) there are questions of law or fact common to the class [(“commonality”)];

13

(3) the claims or defenses of the representative parties are typical of the claims or

defenses of the class [(“typicality”)]; and

14

(4) the representative parties will fairly and adequately protect the interests of the

class [(“adequacy of representation”)].

15 Fed. R. Civ. P. 23(a).

16 The proposed class or subclass must also satisfy the requirements of one of the sub-

17 sections of Rule 23(b), “which defines three different types of classes.” Leyva v. Medline

18 Industries, Inc., 716 F.3d 510, 512 (9th Cir. 2013). In this case, Plaintiffs contend that their

19 proposed class meet the requirements of Rule 23(b)(2), which requires that “the party opposing

20 the class has acted or refused to act on grounds that apply generally to the class, so that final

21 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

22 whole.” Fed. R. Civ. P 23 (b)(2); see also Dkt. 78.

23

24

REPORT AND RECOMMENDATION - 3

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1

“As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party

2 seeking class certification must demonstrate that an identifiable and ascertainable class exists.”

3 Mazur v. eBay, Inc., 257 F.R.D. 563, 567 (N.D.Cal. 2009). “Certification is improper if there is

4 no definable class.” Guzman v. Bridgepoint Educ., Inc., 305 F.R.D. 594, 610 (S.D. Cal. 2015)

5 (internal quotation omitted). “‘A class definition should be precise, objective, and presently

6 ascertainable,’ though ‘the class need not be so ascertainable that every potential member can be

7 identified at the commencement of the action.’” Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D.

8 Cal. 2009) (quoting O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D.Cal. 1998)). “A

9 class definition is inadequate if a court must make a determination of the merits of the individual

10 claims to determine whether a person is a member of the class.” Hanni v. Am. Airlines, Inc.,

11 2010 WL 289297, at *9 (N.D.Cal. Jan. 15, 2010).

12

However, “many courts have determined that [ascertainability] is of less importance or

13 not applicable at all when considering certification under Rule 23(b)(2). Dunakin v. Quigley, 99

14 F.Supp.3d 1297, 1325 (W.D. Wash. 2015). “Although the Ninth Circuit has not ruled on this

15 issue, several other circuit courts have held that, due to the unique characteristics of a Rule

16 23(b)(2) class, it is improper to require ascertainability for a Rule 23(b)(2) class.” Id. at 1326; see

17 also Shelton v. Bledsoe, 775 F.3d 554, 559–63 (“[A]scertainability is not a requirement for

18 certification of a (b)(2) class seeking only injunctive and declaratory relief ....”); Shook v. El

19 Paso, 386 F.3d 963, 972 (10th Cir. 2004) (“[M]any courts have found Rule 23(b)(2) well suited

20 for cases where the composition of the class is not readily ascertainable.”).

21

Defendants assert the class is too broad and ambiguous. See Dkt. 90. Essentially,

22 Defendants are asserting the defined class does not meet the ascertainability doctrine. However,

23 Plaintiffs are moving for class certification under Rule 23(b)(2). See Dkt. 78. Therefore, the

24

REPORT AND RECOMMENDATION - 4

Case 3:17-cv-06002-RBL-DWC Document 105 Filed 10/15/18 Page 5 of 29

1 Court finds any failure to prove the ascertainability of the proposed class does not make class

2 certification improper in this case. See In re Yahoo Mail Litigation, 308 F.R.D. 577, 597 (N.D.

3 Cal. 2015) (“ascertainability requirement does not apply to Rule 23(b)(2) actions”).

4

As the Court has found failure to prove ascertainability does not make class certification

5 improper, the Court must now determine if Plaintiffs have sufficiently shown: (1) numerosity;

6 (2) commonality; (3) typicality; (4) adequate class representation; and (5) the Rule 23(b)(2)

7 requirements are met.

8

A. Numerosity

9

Plaintiffs satisfy the numerosity requirement if “the class is so large that joinder of all

10 members is impracticable.” Fed. R. Civ. P. 23(a)(1); see also Hanlon v. Chrysler Corp., 150 F.3d

11 1011, 1019 (9th Cir. 1998). The numerosity requirement demands “examination of the specific

12 facts of each case and imposes no absolute limitations. General Tel. Co. of the Northwest, Inc. v.

13 EEOC, 446 U.S. 318, 330 (1980). Nevertheless, “Plaintiffs must show some evidence of or

14 reasonably estimate the number of class members. Mere speculation as to satisfaction of this

15 numerosity requirement does not satisfy Rule 23(a)(1).” Schwartz v. Upper Deck Co., 183 F.R.D.

16 672, 681 (S.D.Cal. 1999).

17

Plaintiffs have defined the proposed class is “all qualified individuals who have mental

18 illnesses that are disabilities as defined in 42 U.S.C. §12102 [(ADA)] and 29 U.S.C. §705(9)(B)

19 [(RA)], and who are now, or will be in the future, incarcerated at [the Jail].” Dkt. 1, ¶ 28; see

20 also Dkt. 78, p. 2. Under the ADA,

21

(1) Disability

The term “disability” means, with respect to an individual--(A) a physical

22

or mental impairment that substantially limits one or more major life

activities of such individual; (B) a record of such an impairment; or (C)

23

being regarded as having such an impairment (as described in paragraph

(3)).

24

REPORT AND RECOMMENDATION - 5

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1

(2)Major life activities

(A) In general For purposes of paragraph (1), major life activities include,

2

but are not limited to, caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

3

breathing, learning, reading, concentrating, thinking, communicating, and

working. (B) Major bodily functions For purposes of paragraph (1), a

4

major life activity also includes the operation of a major bodily function,

including but not limited to, functions of the immune system, normal cell

5

growth, digestive, bowel, bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive functions.

6

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C): (A) An individual meets the

7

requirement of “being regarded as having such an impairment” if the

individual establishes that he or she has been subjected to an action

8

prohibited under this chapter because of an actual or perceived physical or

mental impairment whether or not the impairment limits or is perceived to

9

limit a major life activity. (B) Paragraph (1)(C) shall not apply to

impairments that are transitory and minor. A transitory impairment is an

10

impairment with an actual or expected duration of 6 months or less.

11 42 U.S.C. § 12102 (emphasis in original). 29 U.S.C. § 705(9)(B). The RA references the

12 definition of disability as found in the ADA.

13

To establish numerosity, Plaintiffs submitted evidence showing, in 2017, there was an

14 average of 85 mental health beds in use per day at the Jail. Dkt. 81-18, p. 2. Plaintiffs also cite,

15 but do not submit as evidence, a study completed by the League of Women Voters of Tacoma-

16 Pierce County that states, in 2015, 26% of the 1,100 inmates at the Jail were on psychiatric

17 medications. See Dkt. 78, pp. 14-15; League of Women Voters of Tacoma-Pierce County, Study

18 of Mental Health in Pierce County, 35 (Feb. 2016),

19 http://www.piercecountywa.org/DocumentCenter/View/42628. Plaintiffs extrapolate that this

20 study shows a quarter of inmates at the Jail, or 266 individuals, are on psychiatric medications

21 “at any given time.” Dkt. 78, p. 14.

22

Plaintiffs, however, do not cite to any evidence regarding the number of individuals

23 incarcerated or who will be incarcerated who have diagnosed mental illnesses that meet the

24

REPORT AND RECOMMENDATION - 6

Case 3:17-cv-06002-RBL-DWC Document 105 Filed 10/15/18 Page 7 of 29

1 definition of disability under the ADA or the RA. There is also no evidence showing individuals

2 who are housed in a mental health bed or who are prescribed psychiatric medications necessarily

3 have a mental illness resulting in a disability as defined by the ADA and the RA. Rather,

4 Plaintiffs only speculate as to the number of individuals who would be members of the proposed

5 class based on the average number of mental health beds being used at the Jail. Nat’l Fed’n of

6 Blind v. Target Corp., 582 F. Supp. 2d 1185, 1199 (N.D. Cal. 2007) (“[M]ere speculation as to

7 the number of parties involved is not sufficient to satisfy the numerosity requirement.”); Marcial

8 v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (plaintiffs need not specify exact number

9 in the class, but cannot rely on conclusory allegations and speculation as to the size of the class);

10 Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) (finding the plaintiffs’

11 census data and statistics were too ambiguous and speculative to establish numerosity where the

12 plaintiffs submitted only 21 declarations of potential class members).

13

As Plaintiffs have not provided evidence showing a reasonable estimate regarding the

14 number of individuals with mental illnesses that are disabilities under the ADA and the RA who

15 are incarcerated or will be incarcerated at the Jail, Plaintiffs have not shown they meet the

16 numerosity requirement.

17

B. Commonality

18

Rule 23(a)(2) requires “questions of law or fact common to the class.” In Dukes, the

19 Supreme Court held this provision requires plaintiffs to “demonstrate that the class members

20 ‘have suffered the same injury,’” not merely violations of “the same provision of law.” 564 U.S.

21 at 350 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Plaintiffs’ claims

22 “must depend upon a common contention” such that “determination of [their] truth or falsity will

23 resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. “What

24

REPORT AND RECOMMENDATION - 7

Case 3:17-cv-06002-RBL-DWC Document 105 Filed 10/15/18 Page 8 of 29

1 matters to class certification ... is not the raising of common ‘questions’—even in droves—but,

2 rather the capacity of a classwide proceeding to generate common answers apt to drive the

3 resolution of the litigation.” Id. (quoting Richard A. Nagareda, Class Certification in the Age of

4 Aggregate Proof, 84 N.Y.U. L.Rev. 97, 132 (2009)).

5

Plaintiffs, however, are not required to show “every question in the case, or even a

6 preponderance of questions, is capable of class wide resolution. So long as there is even a single

7 common question, a would-be class can satisfy the commonality requirement of Rule 23(a)(2).”

8 Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (quotation marks and

9 citation omitted); see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir.

10 2012) (finding “commonality only requires a single significant question of law or fact”). “Where

11 the circumstances of each particular class member vary but retain a common core of factual or

12 legal issues with the rest of the class, commonality exists.” Evon v. Law Offices of Sidney

13 Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (quotation marks and citation omitted).

14

In civil rights cases, commonality is satisfied where the lawsuit challenges a system-wide

15 policy or practice that affects all of the putative class members. Armstrong v. Davis, 275 F.3d

16 849, 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499

17 (2005). “Where such a policy exists, ‘individual factual differences among the individual

18 litigants or groups of litigants will not preclude a finding of commonality.’” Hernandez v.

19 County of Monterrey, 305 F.R.D. 132, 153 (N.D. Cal. 2015) (quoting Armstrong, 275 F.3d at

20 686). However, to determine commonality, the Court must have a precise understanding of the

21 nature of the underlying claims. Parsons v. Ryan, 754 F.3d 657, 676 (9th Cir. 2014); see also

22 Ellis, 657 F.3d at 981 (the court must consider the merits of the underlying claims if the clams

23 overlap with the class certification requirements).

24

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1

Plaintiffs allege the Jail’s systemic policies and practices3 are violating the Eighth and

2 Fourteenth Amendments of the Constitution, Title II of the ADA, and the RA. Dkt. 1, 78.

3 Specifically, Plaintiffs contend the Jail policies and practices that expose the proposed class

4 members to a substantial risk of serious harm are as follows:

5

1. Screenings: “Failing to adequately screen for mental illnesses during the

booking process or during incarceration.” Dkt. 78, p. 17.

6

2. Mental Health Treatment: “Refusing to provide necessary mental health

7

treatment, including ignoring requests for care, delaying or denying access to

psychiatric medications, and refusing to provide counseling, mental health

8

programming, and other basic mental health care.” Id.

9

3. Classification in Solitary Confinement: “Locking people with mental illness in

solitary confinement, despite the clinically proven negative impacts of

10

isolation on people with mental illness.” Id.

11

4. Use of Force: Punishing class members with mental illness for non-violent

behaviors directly related to their mental illness through uses of force and

12

restraints, including restraint chairs and “eyebolts.” Id.

13

To establish a constitutional violation, a plaintiff must prove he suffered a sufficiently

14 serious deprivation, such as his conditions of confinement pose a substantial risk of harm or he

15 has a serious medical need. See Mendiola–Martinez v. Arpaio, 836 F.3d 1239, 1248–49 (9th Cir.

16 2016). “The plaintiff then must prove that the defendant was deliberately indifferent to [his]

17 health and safety or serious medical needs.” Id.

18

1. Screenings

19

Plaintiffs first contend the Jail’s policies and practices of failing to adequately screen for

20 mental illnesses during the booking process or during incarceration violate constitutional rights.

21 See Dkt. 1, 78.

22
3 The parties use the terms “policies,” “practices,” “procedures,” and “customs” to refer to the allegations
23 and conduct at the Jail. See e.g. Dkt. 1, 78, 90. Throughout this Report and Recommendation, the Court will refer to
all policies, practices, procedures, and customs as “policies and practices.”
24

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1

The evidence shows when Plaintiff Bailey was booked into the Jail on April 2, 2017, the

2 incarceration period relevant to the Complaint, the booking nurse noted Plaintiff Bailey was “not

3 real pleased” about his arrest, but was cooperative with the intake assessment. Dkt. 80, Bailey

4 Dec., ¶ 6. The intake assessment form was blank on all mental health categories. Id.; see also

5 Dkt. 80-4. Plaintiff Bailey states he informed the nurse he had previously taken medications for

6 his mental health. Dkt. 80, Bailey Dec., ¶ 7. However, Plaintiff Bailey’s booking form does not

7 indicate previous treatment for mental illness. Id.

8

Plaintiff Bango was arrested on December 13, 2015 and, at the time of his arrest, he

9 informed the emergency medical technician (“EMT”) that he had been diagnosed with serious

10 mental illnesses and received counseling and medications from the Department of Veterans

11 Affairs (“VA”). Dkt. 79, Bango Dec., ¶ 4. Plaintiff Bango also told the EMT he had considered

12 attempting suicide in the past year. Id. Plaintiff Bango was placed on “suicide watch” shortly

13 after booking. Id. at ¶ 5.

14

Plaintiffs also submitted the National Commission on Correctional Health Care’s

15 (“NCCHC”) 2014 “Standards for Health Services in Jails.” Dkt. 81-5. Under NCCHC’s

16 Standards, inmates should receive screening on arrival at the intake facility to ensure emergent

17 and urgent health needs are met; this includes a screening form indicating past or current mental

18 illness and history or current suicidal ideations. Id. at p. 7. NCCHC Standards also state inmates

19 with positive mental health screenings should receive a screening with a mental health

20 professional within fourteen days of admission to the correctional system. Id. at p. 15. The Jail,

21 however, is not an NCCHC facility and does not follow NCCHC standards. Dkt. 81-1, Rhoton

22 Depo., p. 5.

23

24

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1

Evidence also shows that when an individual is arrested and booked into the Jail, “a

2 booking nurse will perform an initial health receiving screen[ing] of each inmate patient.” Dkt.

3 99, Slothower Dec., ¶ 7. Screenings are conducted with guidance through an electronic form and

4 several of the questions contain only a single checkbox. Id. at ¶¶ 8-9. The booking nurse is

5 “instructed that by leaving the checkbox unselected he or she is documenting a conclusion that

6 all parameters of the question are false.” Id. at ¶ 9. If the checkbox is selected, a positive

7 response is indicated and further documentation is provided in a text box. Id. The screening

8 forms are completed electronically, “which ensures a follow-up mental health assessment is

9 scheduled where appropriate.” Id. at ¶ 11. Inmates are asked to execute a release form at

10 booking, as needed, to obtain medical records prior to being incarcerated. Id. at ¶ 12. “If during

11 screening a person identifies that they have prescribed medications, healthcare staff attempt to

12 obtain and evaluate the prescription information to ensure medications continue when necessary

13 while the person is incarcerated.” Dkt. 92, Harrel Dec., ¶7. “For those inmate patients that do not

14 have an active verifiable prescription, medications are ordered for inmate patients by a

15 prescribing treatment provider when clinically appropriate under the circumstances.” Dkt. 99,

16 Slothower Dec., ¶ 13.

17

During an inmate’s incarceration, the mental health providers receive mental health

18 referrals from several sources, including correction deputies, nursing staff, and self-referrals

19 through the “kite” communication system.4 Dkt. 96, Rhoton Dec., ¶ 5. It is the policy for the

20 mental health providers to screen all referrals and respond according to the level of service

21 indicated. Id. at ¶ 6. Kites are usually responded to on the same day the kite is sent and the

22 longest it has taken to respond to a kite is “[m]aybe a couple of days.” Dkt. 81-3, Perez Depo., p.

23
4 A “kite” is a request slip used by an inmate to write a request for mental health services. Dkt. 96-1, p. 16.
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1 12. Assessments, which occur at the time of booking and upon referral, are used to determine if

2 there is a mental health issue. Dkt. 96, Rhoton Dec., ¶ 7.

3

Here, Plaintiff Bango reported he was suicidal to an EMT and was placed on suicide

4 watch at the Jail shortly after booking. Plaintiffs fail to show how the screening process Plaintiff

5 Bango received was inadequate. While Plaintiff Bailey’s reported mental health issues and

6 previous use of mental health medications were not included on his screening form, the evidence

7 fails to show Plaintiff Bailey required medications or treatment upon entering the Jail. Plaintiffs

8 also cite to the NCCHC Standards; yet, do not provide specific allegations or evidence showing

9 how the Jail’s policies and practices fail to meet these standards. Further, Plaintiffs fail to show

10 the decision to follow different standards indicates the proposed class members’ are being

11 exposed to a substantial risk of serious harm.

12

Evidence of the Jail’s policies and practices show inmates are screened when they enter

13 the Jail and are provided additional treatment as necessary. Further, after booking, assessments

14 are used to determine if an inmate has a mental health issue. Based on the allegations and

15 evidence, Plaintiffs have not shown a systemic application of policies and practices during the

16 screening process expose the proposed class members to a substantial risk of serious harm.

17 Accordingly, the Court finds Plaintiffs have not shown commonality as to their claim regarding

18 the screening processes at the Jail.

19

2. Mental Health Treatment

20

Plaintiffs next assert the Jail’s policies and practices of denying or delaying mental health

21 treatment are exposing the proposed class to a substantial risk of serious harm. Dkt. 1, 78.

22

Plaintiffs’ evidence shows Plaintiff Bailey experiences suicidal ideations and has

23 attempted to commit suicide. Dkt. 80, Bailey Dec., ¶ 1. After the booking process, Plaintiff

24

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1 Bailey was placed in general population. See Dkt. 80-4. Plaintiff Bailey requested mental health

2 treatment and jail providers responded to his requests. See Dkt. 80, Bailey Dec., ¶¶ 8-10. About a

3 month and a half after he was incarcerated, on May 19, 2017, Plaintiff Bailey was seen by two

4 mental health providers. Id. at ¶ 12. Plaintiff Bailey sent a kite on June 10, 2017, asking when

5 medications would be started. Id. at ¶ 14. A mental health provider responded that the list to be

6 seen is very long and it may be a little while longer before Plaintiff Bailey would be seen. Id. On

7 June 16, 2017, Plaintiff Bailey was evaluated by the psychiatric nurse practitioner; the nurse

8 practitioner “assessed [Plaintiff Bailey] with major depression” and prescribed Plaintiff Bailey

9 medications. Id. at ¶ 15.

10

At the time of his arrest on December 13, 2015, Plaintiff Bango informed the EMT that

11 he had been diagnosed with serious mental illnesses and received counseling and medications

12 from the VA. Id. at ¶ 4. Plaintiff Bango also told the EMT he had considered attempting suicide

13 in the past year. Id. Plaintiff Bango was placed on “suicide watch” shortly after booking. Id. at ¶

14 5. After several days on suicide watch and in isolation cells, Plaintiff Bango was placed in

15 general population. Id. at ¶ 12.

16

Plaintiff Bango sent kites regarding his mental health needs, which were responded to by

17 mental health providers. Dkt. 79, Bango Dec., ¶¶ 13, 15-16, 18, 20-21, 26-28. Plaintiff Bango

18 states his VA records indicated he had active prescriptions when he was arrested and booked into

19 the Jail and the VA faxed a list of Plaintiff Bango’s medications to the Jail. Id. at ¶¶ 15-16.

20

In January of 2016, a VA representative met with Plaintiff Bango and spoke with mental

21 health providers at the Jail. See Dkt. 79-10. The VA representative was notified that Plaintiff

22 Bango was being assessed by mental health providers, had presented with few symptoms, and a

23 decision was made that he would not receive psychotropic medications. Id.; see also Dkt. 79,

24

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1 Bango Dec., ¶ 19. On August 4, 2017, Plaintiff Bango filed a grievance concerning his lack of

2 mental health treatment. Dkt. 79, Bango Dec., ¶ 29. A mental health provider referred Plaintiff

3 Bango to the nurse practitioner to determine if medications would be prescribed. Id. On August

4 16, 2017, Plaintiff Bango was seen by a psychiatric nurse practitioner and mental health

5 provider. Id. at ¶ 30. At that time, the psychiatric nurse practitioner prescribed an anti-depressant

6 medication and post-traumatic stress disorder (“PTSD”) medication for Plaintiff Bango. Id. After

7 Plaintiff Bango filed additional kites regarding his mental health needs, the dosages for his anti-

8 depressant and PTSD medications were increased and he was prescribed an additional

9 medication for “racing thoughts at bedtime.” Id. at ¶¶ 31-32, 35, 37-41.

10

Defendants provided evidence showing Plaintiff Bango denied being a danger to himself

11 or others, was not exhibiting any signs of psychosis, and stated he was doing well in general

12 population. See Dkt. 92, Harrel Dec., ¶¶ 13-14. In August of 2017, Plaintiff Bango denied

13 psychotic symptoms, but reported a depressed mood with breakthrough PTSD related nightmares

14 and intrusive memories. Id. at ¶ 16. Medications were started. Id. After twenty months in the Jail

15 with no indication of psychosis, Plaintiff Bango kited that he was hearing voices and satellites

16 were trying to control him. Id. at ¶¶ 17-19. The Jail staff did not observe psychotic symptoms.

17 See id. at ¶¶ 19-21.

18

Janet Rhoton, the mental health manager at the Jail, stated, under the Jail’s policies and

19 practices, the goal of the Jail “Mental Health Program is to identify inmates with mental health

20 concerns, provide assessments, and intervene in a timely and in the least restrictive manner

21 consistent with the security needs of the [Jail] and the inmate.” Dkt. 96, Rhoton Dec., ¶ 4. The

22 mental health providers receive mental health referrals from several sources, including correction

23 deputies, nursing staff, and kites. Id. at ¶ 5. It is the policy for the mental health providers to

24

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1 screen all referrals and respond according to the level of service indicated. Id. at ¶ 6.

2 Assessments are used to determine if there is a mental health issue. Id. at ¶ 7. Ms. Rhoton stated

3 it is not uncommon “that an inmate may attempt to malinger or feign mental illness in order to

4 avoid or in some way impact their criminal matter.” Id. Under the Jail’s policies and practices,

5 “[t]he focus of the Mental Health Program is to serve those inmates who are at risk, as a result of

6 a mental disorder, of presenting a danger to themselves or others, or becoming gravely disabled.”

7 Id. at ¶ 10. It is also Jail policy to provide continuity of mental health care during incarceration.

8 Id. at ¶ 11.

9

As stated above, the Jail has a referral system and inmates can send “kites” regarding

10 medical needs. A kite is usually responded to on the same day it is sent and the longest it has

11 taken to respond to a kite is “[m]aybe a couple of days.” Dkt. 81-3, Perez Depo., p. 12. Follow-

12 up evaluations are conducted depending on the inmate’s needs. See id. at p. 13. The Jail does not

13 provide on-going counseling. Id. The Jail, however, does provide counseling to inmates,

14 depending on symptoms, that can consist of one session or last the duration of the inmate’s

15 incarceration and the Jail provides on-going medications. Dkt. 81-2, Anderson Depo., pp. 3-5.

16

Defendants also submitted evidence from Ian Harrel, a licensed independent clinical

17 social worker, stating the Jail’s “policies and procedures meet or exceed standards for healthcare,

18 including mental health care, and behavioral health screenings in the correctional setting.” Dkt.

19 92, Harrel Dec., ¶ 5. Mr. Harrel stated the Jail’s “goal is to provide basic medical attention for

20 patients to be safe during the incarceration period.” Id. If an inmate identifies prescribed

21 medications during the booking screening process, healthcare staff attempt to obtain and evaluate

22 prescription information to ensure medications continue when necessary during incarceration. Id.

23 at ¶ 7. “Each medical condition and situation is different, but the [J]ail’s policy is to verify active

24

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1 prescriptions and if necessary continue the prescription through the health services provided in

2 the [J]ail.” Id.

3

Because individuals spend, on average, 23 days in the Jail, “it is not therapeutically

4 appropriate to engage in deep level counseling and trauma counseling.” Dkt. 92, Harrel Dec., ¶ 8;

5 Dkt. 95, Jackson-Kidder Dec, ¶ 2 (average stay is 23 days). “One-on-one counseling may be

6 possible in limited circumstances, but outside of treatment for acute symptoms, little therapeutic

7 progress is likely due to the uncertain circumstances, expectations and disposition that the inmate

8 may face.” Dkt. 91, Muscatel Dec., ¶ 22. “The standard mental health modality to use in jail

9 settings is crisis stabilization.” Dkt. 92, Harrel Dec., ¶ 8.

10

In this case, Plaintiffs have provided allegations and evidence showing Jail employees

11 responded to two inmates’ – Plaintiffs Bango and Bailey – requests for treatment. Plaintiffs do

12 believe the Jail provided them with an adequate level of treatment. However, Plaintiffs have not

13 submitted any expert evidence to rebut the expert opinions from Mr. Harrel and Dr. Kenneth M.

14 Muscatel, Ph.D. Plaintiffs’ evidence merely shows a disagreement between the medical

15 treatment requested by Plaintiffs and the Jail staff’s opinion regarding necessary medical

16 treatment, which does not show the Jail’s policies and practices are being applied in a systemic

17 way that exposes the proposed class to a substantial risk of serious harm. See Toguchi v. Chung,

18 391 F.3d 1051, 1058 (9th Cir. 2004) (mere differences of opinion between a prisoner and prison

19 medical staff regarding the proper course of treatment does not give rise to a § 1983 claim).

20

Mr. Harrel declared that the Jail’s policies and practices meet or exceed standards for

21 mental health care. In contrast, Plaintiffs have not submitted any expert testimony and have, at

22 most, provided conclusory allegations that the Jail’s policies and practices violate constitutional

23 rights and two isolated allegations of constitutional violations related to mental health treatment

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1 at the Jail. Accordingly, the Court finds Plaintiffs have failed to show commonality as to their

2 claim regarding the denial and delay in providing mental health treatment.

3

3. Classification in Solitary Confinement

4

Plaintiffs contend the Jail’s policy and practice of locking inmates with mental illness in

5 solitary confinement, despite the clinically proven negative impacts of isolation on people with

6 mental illness, violates the proposed class members’ constitutional rights. See Dkt. 1, 78. To

7 support their position, Plaintiffs cite to Chapter 13 of the Mental Health Policy and Procedures

8 Manual (“MHPPM”) and Chapter 3.01 of the Policy and Procedures Manual (“PPM”). See Dkt.

9 78, p. 8. Plaintiffs, however, do not provide any explanation showing how these policies and

10 practices have a systemic application that exposes the proposed class members to a substantial

11 risk of serious harm.

12

The evidence shows classification and housing is dictated by policy. Dkt. 95, Jackson-

13 Kidder Dec., ¶ 7. Under Chapter 13 of the MHPPM, inmates with mental health symptoms can

14 be placed in general population, a mental health unit, or a crisis cell. See Dkt. 81-10, p. 3.

15 Chapter 3.01 of the PPM states the Jail staff will implement and maintain a classification plan

16 that ensures “inmates are classified in a fair and consistent manner according to their individual

17 custodial management and program needs.” Dkt. 81-11, p. 2.

18

Plaintiffs’ allegations and evidence show that, at the time of his booking, Plaintiff Bango

19 was placed on suicide watch. Dkt. 79, Bango Dec., ¶ 5. Plaintiff Bango was stripped of his

20 clothing, placed in a “suicide smock,” and put into solitary confinement. Id. Plaintiff Bango

21 states that, as a result of not receiving basic mental health care, he began to mentally

22 decompensate, have delusions and hallucinations, and wanted to die. Id. at ¶ 7. Additional

23 evidence shows Plaintiff Bango’s own statements regarding a suicide attempt were the basis for

24

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1 placing him on suicide watch at the time of his booking on December 13, 2015. Dkt. 92, Harrel

2 Dec., ¶ 11. He was monitored every fifteen minutes and then every thirty minutes, and, on

3 December 16, 2015, suicide precautions were discontinued. Id. Plaintiff Bango was then placed

4 in general population. Dkt. 79, Bango Dec., ¶ 12. There is no evidence Plaintiff Bango was

5 placed on suicide watch or in isolation any other time or that Plaintiff Bailey was placed in

6 solitary confinement.

7

Plaintiffs also submitted eight classification reports showing inmates with mental health

8 concerns were classified at the “maximum” level classification. See Dkt. 81-12. However,

9 several of the reports noted the inmate had prior assaultive felony convictions and/or known

10 institutional behavior problems. Id. Plaintiffs also cited to, but did not provide as evidence, a

11 2014 “Evaluation of Pierce County Detention Operations” (“Evaluation”), which stated “there

12 appears to be a tendency to increase the custody level of any offender who shows indications of

13 mental health issues.” See Dkt. 78, p. 9. The Evaluation recommended consolidating the mental

14 health population in an appropriate housing unit. Bill Vetter, Evaluation of Pierce County

15 Detention Operations, p. 56 (August 25, 2014),

16 https://www.co.pierce.wa.us/DocumentCenter/View/32482.

17

Defendants’ evidence shows it is Jail policy to ensure inmates are safe from self-harm,

18 which includes suicide precautions. Dkt. 95, Jackson-Kidder Dec., ¶ 12. “Suicide precautions

19 may include placing the inmate on suicide watch.” Id. at ¶ 14. Mental health providers may

20 recommend a level of observation an inmate may need, i.e. suicide observation; however, the

21 final determination regarding classification and housing rests with the Classification Supervisory

22 Team. Id. at ¶ 7. “The least restrictive housing is the goal/default.” Id. If an inmate is placed in

23 restrictive housing, the inmate may still receive visits by the chaplain, visits from professional

24

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1 staff, and, if no sanction prevents, an inmate may still have visitation, limited access to

2 commissary, and access to the library and educational materials. Id. If an inmate is placed on

3 suicide watch, he is able to access in-person visitation and legal visits, but is not able access

4 outdoor exercise, the library, the commissary, or attend church. Dkt. 81-3, Perez Depo., p. 16.

5

The policies and practices at the Jail show inmates may be placed in restrictive housing.

6 However, the least restrictive hosing is the goal/default and staff will implement and maintain a

7 classification plan that ensures inmates are classified in a fair and consistent manner according to

8 their individual custodial management and program needs. The evidence shows Plaintiff Bailey,

9 despite his complaints of serious mental health issues, was never subjected to restrictive housing.

10 After reporting suicidal thoughts, Plaintiff Bango was subjected to restrictive housing when he

11 initially entered the Jail. However, he was in restrictive housing and on suicide watch only for

12 the first three days of his incarceration. Once he was taken off suicide watch, he was placed in

13 general population. Despite complaints of serious mental health issues, Plaintiff Bango does not

14 assert he was placed in restrictive housing after he was initially placed on “suicide watch.”

15 Further, the Evaluation (which again is not evidence before the court) fails to show a policy or

16 practice of “locking” proposed class members in solitary confinement. The Evaluation shows, in

17 2014, inmates with mental illnesses tended to have increased classification levels, not that the

18 proposed class members are being “locked” in “solitary confinement” because of their mental

19 illnesses. As such, Plaintiffs have failed to show there is a systemic policy or practice of “locking

20 people with mental illness in solitary confinement” to which all members of the proposed class

21 are exposed. Accordingly, Plaintiffs have not shown commonality regarding the claim that

22 individuals with mental illnesses are being locked in solitary confinement.

23

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1

4. Use of Force

2

Plaintiffs also allege Defendants’ policies and practices are violating the proposed class

3 members’ constitutional rights because force and restraints are used to punish class members

4 with mental illnesses for non-violent behaviors related to their mental illnesses. Dkt. 1, 78. In

5 their Motion, Plaintiffs cite PPM Chapters 6.11 and 6.12 and MHPPM Chapter 9 to support this

6 claim. See Dkt. 78. Plaintiffs, however, have not made an adequate showing of how these

7 specific policies and practices are systemically applied in a way that exposes the proposed class

8 members to a substantial risk of serious harm.

9

Under PPM Chapter 6.11, corrections deputies may use the amount of force necessary to

10 affect the lawful purpose intended, provided no reasonably effective alternative appears to exist.

11 Dkt. 81-14. Further, “[p]roper restraints will be used only as a precaution against escape, to

12 prevent self-injury, injury to others or property damage.” Id. at p. 2. Physical force is not

13 justifiable as punishment. Id. PPM Chapter 6.12 addresses the use of eyebolt restraints, which is

14 “a metal bolt that is affixed to the cell floor that restraints can be fastened to.” Id. at pp. 2, 5.

15 “The purpose of cell eyebolts is to provide staff with an alternative, safe and humane means of

16 restraining violent out-of-control inmates.” Id. at p. 5.

17

Plaintiffs’ allegations and evidence shows, while on suicide watch, Plaintiff Bango

18 started to believe the sprinkler light in his cell was sending him signals, telling him to kill

19 himself. Dkt. 79, Bango Dec., ¶ 7. After several days, Plaintiff Bango wrapped his suicide smock

20 around the sprinkler, breaking the sprinkler and flooding his cell. Id. at ¶ 8. “Jail deputies rushed

21 into [his] cell and tackled [him] to the ground.” Id. at ¶ 9. Plaintiff Bango was handcuffed behind

22 his back and sprayed in the face with pepper spray. Id. Plaintiff Bango states he sat naked and

23 handcuffed on a cell floor for several hours, and, because he was restrained he could not clean

24

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1 the pepper spray from his face. Id. at ¶ 10.5 Plaintiffs also submitted four use of force incident

2 reports. Dkt. 81-17. These four use of force incident reports reference mental health concerns

3 regarding the inmate on whom force was used. See id. The reports, however, note isolated

4 instances when force was used against an inmate after, or while, the inmate was engaged in

5 disruptive and potentially harmful behaviors. Id. (inmate attempting to bite correctional officer,

6 inmate screaming and yelling, inmates covering cell windows with mattress and toilet paper).

7

Evidence also shows the Jail has a use of force policy that is in place to ensure

8 individuals do not hurt themselves or others. Dkt. 95, Jackson-Kidder Dec., ¶ 4. The Jail does not

9 use force to punish or discipline mental health inmates, nor is that Jail policy. Id. The Jail uses

10 only force necessary to gain compliance to ensure individuals do not hurt themselves or others,

11 or to prevent escape. Id. If force or restraints are used, a “use of force” report must be generated.

12 Id. The policy at the Jail for the use of restraint chairs does not permit restraints to be used as a

13 form of punishment or for the protection of property. Id. at ¶ 6. A restraint chair may only be

14 used for the safety of an inmate and others. Id.

15

The eyebolt policy was updated in a memo dated September 19, 2017. Dkt. 81-16. The

16 memo reiterated “that under no circumstances may force or restraints be used as a form of

17 punishment[.]” Id. at p. 2. The use of eyebolt restraints is limited to cases where there is a threat

18 of self-harm or harm to others and only after de-escalation techniques are considered. Id. Further,

19 the least restrictive means will be used to prevent harm. Id. The restraints “shall only remain in

20 place as long as [the] inmate is actively attempting, or making threats to, harm self.” Id. After the

21 September 19, 2017 memo, the Jail began the process of physically removing eyebolts. Dkt. 95,

22

23

5 Defendants submitted evidence that pepper spray was not used against Plaintiff Bango; however, at this

stage, the Court relies on Plaintiff Bango’s version of the event.

24

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1 Jackson-Kidder Dec., ¶ 5. Patti Jackson-Kidder, the Bureau Chief of the Jail, stated, as of

2 September 17, 2018, removal of all eyebolts would be finalized shortly. Id.

3

Plaintiffs have provided evidence that force has been used on inmates who may have

4 mental health issues. However, the evidence shows there is no policy or practice resulting in a

5 systemic application of unlawful force against the proposed class members. Rather, Plaintiffs

6 have provided isolated instances of force used against inmates who may have mental health

7 issues and were creating Jail disturbances. Accordingly, Plaintiffs have not shown commonality

8 as to their claim that force and restraints are being used to punish the proposed class members.

9

5. ADA and RA

10

Plaintiffs also assert the Jail’s systemic policies and practices violate the ADA and the

11 RA. Dkt. 1, 78, pp. 16, 18-19. “To state a claim of disability discrimination under Title II of the

12 ADA, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability,

13 (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public

14 entity’s services, programs, or activities, (3) the plaintiff was either excluded from participation

15 in or denied the benefits of the public entity’s services, programs, or activities, or was otherwise

16 discriminated against by the public entity, and (4) such exclusion, denial of benefits, or

17 discrimination was by reason of the plaintiff’s disability.” Thompson v. Davis, 295 F.3d 890, 895

18 (9th Cir.2002); Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on

19 denial of reh'g (Oct. 11, 2001); 42 U.S.C. § 12132.6

20

21

22

6 To make a claim under RA, a plaintiff must show that: (1) they are an individual with a disability; (2) they

are otherwise qualified to receive the benefit; (3) they were denied the benefits of the program solely by reason of

their disability; and (4) the program receives federal financial assistance. Id. The tests for both the RA and the ADA
23 are so similar, and differ in no material aspect here, they should be analyzed together. T.B. ex rel. Brenneise v. San

Diego Unified Sch. Dist., 795 F.3d 1067, 1083 (9th Cir. 2015).

24

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1

Plaintiffs allege they are being denied access to services, programs, and activities because

2 of their disabilities. Dkt. 1, ¶¶ 71-80, 167-68, 173; see also Dkt. 78, p. 19. Plaintiffs also allege

3 the use of force and restraint policies are discriminatory and Defendants have failed to make

4 reasonable modifications to these policies and practices. Dkt. 1, ¶¶ 81-90, 167-68, 173; see also

5 Dkt. 78, p. 19. During oral argument, Defendants asserted Plaintiffs’ ADA and RA claims are

6 conclusory and, therefore, insufficient to show commonality.

7

There is evidence showing “[t]he least restrictive housing is the goal/default” in the Jail.

8 Dkt. 95, Jackson-Kidder Dec., ¶ 5. If an inmate is placed in restrictive housing, the inmate may

9 still receive visits by the chaplain, visits from professional staff, and, if no sanction prevents, an

10 inmate may still have visitation, limited access to commissary, and access to the library and

11 educational materials. Id. at ¶ 7. If an inmate is placed on suicide watch, he is able to access in-

12 person visitation and legal visits, but is not able access outdoor exercise, the library, the

13 commissary, or attend church. Dkt. 81-3, Perez Depo., p. 16.

14

There is no evidence showing the Jail’s policies and practices are systemically applied in

15 a manner that exposes all proposed class members to ADA and RA violations. The conclusory

16 allegations and evidence show, at times, an inmate may be subjected to housing classifications

17 that result in restrictions. See Section II.C.3, supra. However, evidence shows the Jail’s policy is

18 to use the least restrictive housing classification, which is consistent with the ADA. See 28

19 C.F.R. § 35.152(b)(2) (under the ADA, “[jails] shall ensure that inmates or detainees with

20 disabilities are housed in the most integrated setting appropriate to the needs of the individual”).

21 Further, while there is some evidence and allegations that Jail staff has used force against

22 inmates with mental illnesses, there is no evidence showing force was used because of the

23 inmate’s mental illness or force has been used in more than isolated instances. See Section II.C.4,

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1 supra. As such, Plaintiffs have not shown housing restrictions or uses of force are a result of

2 discriminatory policies or practices. Accordingly, Plaintiffs have failed to show commonality

3 regarding the ADA and the RA claims.

4

6. Conclusion

5

For the above stated reasons, the Court finds there is a lack of allegations and evidence

6 showing the Jail’s policies and practices are systemically applied in a way that exposes all

7 members of the proposed class to a substantial risk of serious harm. Rather, Plaintiffs have

8 alleged, at most, isolated instances of constitutional violations. See Parsons, 754 F.3d at 678

9 (stating individual claims for injunctive relief related to medical treatment are discrete claims for

10 systemic reform); Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013) (“the crucial question is

11 whether there is sufficient evidence of systemic issues in the provision of health care or whether

12 Plaintiffs’ allegations are simply many examples of isolated instances of deliberate

13 indifference”); Gray v. Cty. of Riverside, 2014 WL 5304915, at *14 (C.D. Cal. Sept. 2, 2014)

14 (“Plaintiffs must provide more than conclusory or “threadbare” allegations that systemic policies

15 and practices exist.”). Accordingly, Plaintiffs have failed to show the alleged claims meet the

16 commonality requirements of Rule 23(a)(2).

17

C. Typicality and Adequacy of Representation

18

As the Court concludes Plaintiffs have failed to show numerosity and commonality, the

19 Court declines to consider whether the typicality and adequacy of representation requirements of

20 Rule 23(a) have been met. See Dukes, 564 U.S. at 349 n. 5 (“In light of our disposition of the

21 commonality question, however, it is unnecessary to resolve whether respondents have satisfied

22 the typicality and adequate-representation requirements of Rule 23(a).”); Waine-Golston v. Time

23 Warner Entm’t-Advance/New House P’ship, 2012 WL 6591610, at *8 (S.D. Cal. Dec. 18, 2012)

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1 (finding “it is not necessary to determine whether Plaintiffs have satisfied the typicality and

2 adequa[cy] requirements of Rule 23(a)” after finding the plaintiffs did not satisfy the

3 commonality requirement).

4

D. Rule 23(b)(2) Requirement

5

To satisfy the requirements of class certification under Rule 23, Plaintiffs must also meet

6 Rule 23(b). See Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (stating the

7 plaintiff bears the burden of demonstrating she has met each of the four requirements under Rule

8 23(a) and at least one requirement of Rule 23(b)). Plaintiffs assert class certification is

9 appropriate under Rule 23(b)(2). See Dkt. 78. After considering the record, the Court finds

10 Plaintiffs have not shown they meet the requirements of Rule 23(b)(2).

11

Rule 23(b)(2) permits class actions for declaratory or injunctive relief if “the party

12 opposing the class has acted or refused to act on grounds that apply generally to the class, so that

13 final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

14 whole[.]” Fed. R. Civ. P. 23(b)(2). “Based on this language, courts have held that class claims

15 under Rule 23(b)(2) must be ‘cohesive.’” Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625,

16 635 (W.D. Wash. 2011) (collecting cases). “The key to [a Rule 23(b)(2) ] class is ... the notion

17 that the conduct is such that it can be enjoined or declared unlawful only as to all of the class

18 members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotations omitted). To certify

19 a class under Rule 23(b)(2), it is generally sufficient “that class members complain of a pattern

20 or practice that is generally applicable to the class as a whole.” Rodriguez v. Hayes, 591 F.3d

21 1105, 1125 (9th Cir. 2010). However, Rule 23(b)(2) does not authorize class certification “when

22 each individual class member would be entitled to a different injunction or declaratory judgment

23 against the defendant.” Dukes, 564 U.S. at 360 (emphasis in original).

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1

Defendants contend Plaintiffs have failed to meet the cohesion requirement under Rule

2 23(b)(2) because there are “so many disparate questions regarding mental illness, treatment, and

3 incarceration.” Dkt. 90, p. 28. Defendants argue the relief for each proposed class member is

4 dependent on that person’s mental health concerns and not on any alleged systemic failure to

5 provide a certain level of mental health treatment. Id. at p. 29.

6

Evidence in the record illustrates that there is a wide range of mental health care issues at

7 the Jail. See Dkt. 91, Muscatel Dec. Dr. Kenneth M. Muscatel, Ph.D., stated “[t]he definition of

8 mental illness is so broad, non-specific, and based on multiple criteria[.]” Id. at ¶ 5. The

9 “diagnostic spectrum of symptoms, behaviors, emotions, neurological functioning,

10 developmental features, physical symptoms and issues, and an individual’s life experiences are

11 virtually as wide ranging as humanity itself.” Id. at ¶ 6. Further, mental health assessments in the

12 correctional setting include malingering, nonadherence to medical treatment, obesity, borderline

13 intellectual functioning, wandering behaviors, and anti-social behavior. Id. at ¶ 7. Dr. Muscatel

14 opined that treatment options are affected by whether a person has an acute, chronic, situational,

15 or inactive mental health condition. Id. at ¶ 8.

16

Here, Plaintiffs challenge the general policies and practices at the Jail. See Dkt. 1, 78.

17 Plaintiffs request equitable relief restraining Defendants from violating the proposed class

18 members’ constitutional rights. The general request for injunctive relief fails to indicate how

19 final injunctive relief may be crafted in a sufficiently objective and detailed way so that both

20 Defendants and the Court can determine if Defendants are complying with the injunction. See

21 Fed. R. Civ. P. 65(d) (every order granting an injunction must state its terms specifically and

22 describe in reasonable detail the act(s) restrained or required). For example, the amount of

23 medical treatment for one class member may meet constitutional standards, whereas the same

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1 treatment may be constitutional deficient for a second. The same premise applies to the use of

2 force, use of restraints, and classification levels.

3

Further, more specific relief would require the Court to distinguish, based on

4 circumstances and individual characteristics, how Jail officials may treat class members, rather

5 than prescribing a standard conduct applicable to all proposed class members. For example, if the

6 Court were to issue an injunction prohibiting the use of force against the proposed class members

7 because of their mental illnesses, the Court would be required to craft an injunction taking into

8 account specific circumstances of each inmate’s situation. The Court would be required to

9 consider such factors as what specific mental illnesses place an inmate at risk of the use of force,

10 the type of force to which the inmate may be exposed, the circumstances that exacerbate the risk

11 of use of force, and in what instances the use of force or restraints is acceptable. The

12 circumstances that pose a substantial risk of harm to each inmate presumably depends on the

13 nature and severity of the proposed class member’s mental illness. As such, class-wide relief

14 would be difficult to provide because a Jail officer’s conduct may only be enjoined by references

15 to circumstances that vary among class members.

16

Additionally, necessary and appropriate medical treatment would depend on the nature

17 and severity of each individual proposed class member’s mental illness, not simply because the

18 proposed class member has a mental health illness that qualifies as a disability under the ADA

19 and the RA. Some mentally ill individuals may require medication or may be suicidal; however,

20 not all individuals who are mentally ill would require the same level of care. Further, some

21 mental health matters may need immediate attention, while other requests for treatment may not

22 require the emergent attention. The variety of appropriate treatments for different types and

23

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1 severities of mental illnesses and the numerous types of mental health issues in the Jail illustrate

2 the Court’s inability to form a remedy for the entire proposed class.

3

In short, Plaintiffs have not shown the relief sought is more specific than a general

4 injunction seeking to enjoin Defendants from violating the constitution. Further, Plaintiffs have

5 not shown the class members are being harmed in a similar way and that one injunction would

6 correctly address the myriad of potential lawful or unlawful actions committed against the

7 proposed class members. As such, the individualized issues related to each proposed class

8 member’s needs and injuries overwhelm class cohesiveness. Therefore, Plaintiffs have not met

9 the requirements of Rule 23(b)(2). See Shook v. Bd. of Cty. Commissioners of Cty. of El Paso,

10 543 F.3d 597, 604 (10th Cir. 2008) (internal quotations omitted) (“if redressing the class

11 members’ injuries requires time-consuming inquiry into individual circumstances or

12 characteristics of class members or groups of class members, the suit could become

13 unmanageable and little value would be gained in proceeding as a class action”); Barraza v. C.R.

14 Bard Inc., 322 F.R.D. 369, 390 (D. Ariz. 2017) (finding the plaintiffs did not meet Rule 23(b)(2)

15 where “[t]rial of the class representative’s claims will not fairly adjudicate the claims of all class

16 members because most of the class members had different” issues and were subject to different

17 affirmative defenses); Thomas M. Byrne, Class Actions, 58 Mercer L.Rev. 1171, 1173 (2007)

18 (noting that where “differences in proof or individualized issues exist pertaining to each class

19 member, courts have rejected certification ... [for] failure to meet Rule 23(b)(2)’s requirement

20 that relief apply to the class as a whole.”).

21

III. Conclusion

22

The Court finds Plaintiffs have failed to meet the numerosity and commonality

23 requirements under Rule 23(a). The Court declines to consider whether Plaintiffs have shown

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1 typicality and adequacy of class representation. The Court further finds Plaintiffs failed to meet

2 the requirements of Rule 23(b)(2). Therefore, the Court concludes Plaintiffs have failed to show

3 class certification is appropriate in this case. Accordingly, the Court recommends Plaintiffs’

4 Amended Motion for Class Certification (Dkt. 78) be denied.

5

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties

6 shall have fourteen (14) days from service of this Report to file written objections. See also FED.

7 R. CIV. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

8 de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time

9 limit imposed by Federal Rule of Civil Procedure 72(b), the clerk is directed to set the matter for

10 consideration on November 2, 2018, as noted in the caption.

11

Dated this 15th day of October, 2018.

12

13

A

David W. Christel

14

United States Magistrate Judge

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