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OCT 2 6 2006 LK

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SEAnLE

AT SEATTLE CLERK U.S. DISTRICT COURT
WESTERN DISTRICT OF WASHIN5Q"tf'u~

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA

)

CO 6 - 5625FD6 RICKEY PERALEZ, on behalfof himself and )

others similarly situated,

) NO.

)

Plaintiff,

) CLASS ACTION COMPLAINT

)

v.

) (JURY DEMAND)

)

)

THE WASHINGTON DEPARTMENT OF )

CORRECTIONS, HAROLD CLARKE,

)

DOUGLAS WADDINGTON, BELINDA STEWART, KEVIN SHANAHAN, JEAN

)
)

11111111111111111 111111111111111 1111111111111

STEWART, and JOHN DOES 1-20, employees and officials of the Washington Department of Corrections and/or Stafford

) III1I1II 1111111111 111111 11111 II IIII
) 06-CV-05625-CMP )

Creek Corrections Center,

)

)

)

Defendants

)

-----------------------)

INTRODUCTION

1. This is a civil rights case against the Washington Department of Corrections ("DOC")

and state employees and officials of the DOC and the Stafford Creek Corrections Center ("SCCC")

28 COMPLAINT - I

BUDGE & HEIPT, P.L.L.c.
705 SECOND AVENUE. SUITE 910 SEATTLE. WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

1 arising from their intentional discrimination against Rickey Peralez and other disabled inmates and

2 fonner inmates.

3
PLAINTIFF
4

5

2, Rickey Peralez is a fonner inmate of the DOC and the SCCC, Mr. Peralez is a

6 disabled individual. He suffers from a degenerative bone disease known as Hereditary Rheumatoid

7 Arthritis. As a result of his physical impainnent, Mr. Peralez is limited in certain major life activities,
8 For example, he has substantial difficulty walking or standing, is sometimes confined to a wheelchair,
9 and often requires the use of a cane, His physical impainnents render him "disabled" under the
10
11 Americans with Disabilities Act and the Rehabilitation Act of 1973,

12

DEFENDANTS

13

3, The State of Washington, under the auspices of the DOC, operates a vast network of

14
prisons, other correctional facilities, and programs and institutions of various kinds throughout the
15

16 state, The DOC operates the SCCC, a major prison located in Aberdeen, Washington, The DOC is

17 charged not only with incarcerating offenders at its many facilities, but also with operating numerous

18 programs and services designed to benefit offenders and the community by assisting offenders (both
19 prior to and after their release) in their well-being and successful re-entry into society, Among other
20
things, the DOC offers, operates and administers educational programs, employment and vocational
21 22 programs, family support programs, recreational programs, and numerous other offender programs,

23 Among these programs are the "work release" program and "camp" programs, which are discussed in

24 more detail below,
25 4, The DOC receives federal financial assistance and, as such, IS subject to the
26
Rehabilitation Act of 1973. 27

28
COMPLAINT - 2

BUDGE & HEIPT, P.L.L.C.
70S SECOND AVENUE,SUITE910 SEATTLE. WASHINGTON 98104 (206) 624-3060 (206) 623-7323 (fax)

1

5. The individual defendants, Harold Clarke, Douglas Waddington, Belinda Stewart,

2 Kevin Shanahan, Jean Stewart, and John Does 1-20 are United States citizens residing in the State of
3 Washington. At all times relevant hereto, the individual defendants were employees and/or agents of
4
5 the State of Washington working in connection with the official activities of the DOC and/or the
6 seee. At all times relevant hereto, the individual defendants were acting within the course and

7 scope of their official duties as an employees and/or agents of the State of Washington. All acts
8 committed by the individual defendants were done under color of the laws ofthe State of Washington
9
and under the authority of their positions as employees and/or agents with the DOC and/or the seee.
10 11 Each of the individually-named defendants participated in the discrimination alleged in this

12 complaint.

13

6. At all relevant times, defendant Harold Clarke was the Secretary of the DOC. He is

14 named in his individual capacity.
15
7. Defendant Douglas Waddington is the former Superintendent of the seee and was
16

17 the Superintendent of the seee at certain times relevant to plaintiffs complaint. He is named in his

18 individual capacity.

19

8. Defendant Belinda Stewart is the current Superintendent of the seee and was the

20
Superintendent of the seee at certain times relevant to plaintiffs complaint. She is named in her
21

22 individual capacity.

23

9. Defendant Kevin Shanahan is the Correctional Program Manager for the Prisons

24 Division of the DOC and held this position at certain times relevant to plaintiff's complaint. He is
25 named in his individual capacity.
26

27

28
COMPLAINT - 3

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATTLE. WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

I

10. Defendant Jean Stewart is Chief of Classification for the Prisons Division of the DOC

2 and held this position at certain times relevant to plaintiff's complaint. She is named in her

3 individual capacity.

4

5

II. Plaintiff has identified some SCCC and/or DOC officials as "John Does 1-20" to

6 indicate that he does not yet know the precise identity of some likely individual defendants and

7 anticipates the possibility of naming additional individual defendants as discovery and investigation

8 progress, 9

10

11

12.

JURISDICTION AND VENUE This Court has original subject matter jurisdiction over the plaintiffs civil rights

12 claims and those of the class members pursuant 28 U.S.c. § 1331 (federal question) and 28 U,S.c. §

13 1343 (civil rights). 14
13. Venue is proper in this jurisdiction under 28 U.S.C. § 1391(b) because all of the 15
events that support the allegations occurred in this judicial district and because the defendants reside 16
17 in this judicial district.

18

GENERAL ALLEGATIONS REGARDING

19

WORK RELEASE AND WORK ETHIC CAMP

20

14. Among the programs and opportnnities operated by the DOC is a program known as

21 "work release." Work release is a highly-beneficial and desirable program offered to qualified
22 offenders who are within six months of their release date. Work release offenders are allowed to
23 transfer from the confines of the prison walls to one of at least sixteen community-based residential
24
25 facilities where they reside for the final 180 days of their sentences. There, they live in minimum

26 security conditions that are far more desirable than prison. They are permitted to search for and

27 obtain employment within the community and thereby earn wages comparable to those of free

28

COMPLAINT - 4

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624·3060 (206) 623·7323 (fax)

I citizens, even while they are still serving their sentences, They are given financial assistance and
2 numerous other forms of assistance, guidance and counseling in finding employment. They are 3
permitted to come and go from the facility during the day and to interact with free citizens. They are 4 5 permitted to search for and obtain the benefits of outside social programs. They are permitted to visit
6 with family members and others and are thereby afforded the opportunity to re-establish familial and

7 community ties. They are also entitled to obtain the advantages of educational programs, drug and
8 alcohol programs, and numerous other programs to aid in their well-being and re-integration into free 9
society. They are entitled to get a substantial "head start" on a new life by obtaining such things as 10 11 identification, lining up a place to live on their release, starting a bank account, purchasing clothing
12 and other necessities, and otherwise preparing for life as free citizens. In short, work release affords

13 qualified offenders numerous advantages, financial and otherwise, over offenders who are not

14 permitted to participate in the program. At anyone time, the DOC has more than 650 offenders
15
placed in various work release facilities around the state. 16

17

IS. Another program and opportunity offered by the DOC is a program known as work

18 ethic camp ("camp"). Camp is a highly-beneficial and desirable program offered to qualified
19 offenders who have been sentenced to a total term of confinement between twelve and thirty-six 20
months. It is a structured alternative to traditional prison that entitles qualified offenders to complete 21
22 a comprehensive array of real-world jobs and vocational experiences, character-building work ethics
23 training, life management skills development, substance abuse rehabilitation, counseling, literacy

24 training, and adult education.

25 FACTS
26 16. Rickey Peralez is a former inmate of the DOC who had an expected release date of
27

28 November 4, 2006. For the majority of his sentence, he was confined at the SCCc.

COMPLAINT - 5

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

1

17. As of at least May 8, 2006, Mr. Peralez was qualified for work release and met all the

2 criteria needed to participate in the work release program. Mr. Peralez very much desired to take part
3 in the work release program at the earliest possible opportunity. Therefore, he actively sought to be
4
5 transferred to work release as soon as he qualified. Despite the fact that he qualified for work release
6 180 days before his expected release date, defendants refused to allow Mr. Peralez to participate in

7 the work release program. The reason for defendants' refusal was Mr. Peralez's disability.

8

18. After being refused the right to participate in the work release program, Mr. Peralez

9
made numerous additional efforts to be transferred to work release. He submitted written kites 10

11 complaining that he was being denied work release because of his disability. Defendants failed and

12 refused, despite these kites, to transfer Mr. Peralez to work release. Mr. Peralez filed a grievance

13 complaining of the fact that he was being denied work release because of his disability. In response,
14 officials at the SCCC advised him that his complaint was not a grieveable issue. He appealed this
15 determination and was again refused. Mr. Peralez wrote respectful and appropriate correspondence
16
17 to defendant Waddington in which he complained of the discrimination and asked that appropriate

18 action be taken to transfer him to work release. However, he received no adequate response-in fact,
19 correspondence from defendant Waddington confirmed that the only reason he was being denied the 20
benefits of work release were because of his disability. Mr. Peralez wrote respectful and appropriate
21
22 correspondence to defendant Clarke, but received no adequate response. In fact, defendant Shanahan

23 responded on behalf of defendant Clarke by confirming that the only reason he was being denied the

24 benefits of work release was because of his disability. Mr. Peralez wrote respectful and appropriate

25 correspondence to defendant Belinda Stewart. Again, he failed to receive any adequate response. In
26 fact, later correspondence from defendant Belinda Stewart admitted that "Offender Peralez was
27

28 denied ... Work Release due to his overall health status...." Moreover, later correspondence from

COMPLAINT - 6

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEATILE. WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

I defendant Jean Stewart again confirmed that the only reason he was being denied the benefits of

2 work release were because of his disability.
3 19. But for his disability, Mr. Peralez would have been transferred to a work release
4 5 facility beginning in at least early May 2006. Instead, for the months of May through September
6 2006, he remained confined at the SCCC and was wholly denied the many benefits of work release

7 discussed above, including, but not limited to, the right to seek employment and earn an income.
8 20. Mr. Peralez was forced to retain legal assistance in order to seek his transfer to a work
9 release facility. Mr. Peralez obtained assistance from Columbia Legal Services. Columbia Legal
10
11 Services wrote to officials at the DOC on Mr. Peralez's behalf. After discussions with legal counsel

12 for the DOC, Mr. Peralez was finally transferred to a work release facility. However, as a result of

13 defendants' intentional discrimination over the course of at least five months, the transfer to work

14 release did not occur until October 2006-approximately three weeks before Mr. Peralez's release
15 date.
16

17

21. Mr. Peralez was transferred to a work release facility in downtown Seattle known as

18 Reynolds Work Release. Because of the intentional discrimination against him and the sustained
19 refusal by defendants to transfer him earlier, Mr. Peralez learned upon his arrival at Reynolds Work 20
Release that he would be unable to participate in and obtain many of the work release advantages that 21
22 he would have received had he been transferred earlier, when he was eligible. For example, Mr.

23 Peralez was advised that because he had only approximately three weeks of his sentence left to serve,

24 he would receive none of the financial benefits or job counseling afforded to inmates who were being

25
transferred with six months left to serve. As a result, Mr. Peralez was unable to establish a bank 26
account, obtain identification, engage in a meaningful job search, and take advantage of the many 27

28 other opportunities afforded to inmates who were transferred at the time they were eligible.

COMPLAINT - 7

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

I

22. Mr. Peralez was also denied the right to participate in camp. In his Intake Facility

2 Plan Report, completed at or near the time he was first confined at the SCCC, SCCC officials
3 "preclude[d] him from camp placement" due solely to his medical condition. Later correspondence,
4 particularly from defendant Belinda Stewart, confirmed that "Offender Peralez was denied Camp ...
5
6 due to his overall health status." The denial of Mr. Peralez's right to participate in camp was the

7 result ofiJltentionai discrimination against him on account of his disability.

8

23. There was no rational basis to treat Mr. Peralez differently from other similarly

9
situated offenders. The defendants' conduct was intentional and carried out with deliberate 10

11 indifference and reckless disregard to Mr. Peralez's federally protected right to equal protection

12 under the law.

13

24. Mr. Peralez has been damaged in an amount to be proven at trial. His damages

14 include, but are not limited to, punitive damages, economic damages (including lost current and
15 future income), emotional distress damages, and other damages attendant to defendants' decision to
16

17 exclude Mr. Peralez from participation in the programs, activities, and services described above.

18

CAUSES OF ACTION

19

As a result of the allegations contained in this complaint, defendants are liable as follows:

20
25. Violations of Title II of the Americans with Disabilities Act. The DOC, having 21

22 excluded Mr. Peralez from participation in or denial of the benefits of the DOC's services, programs

23 or activities, and/or otherwise discriminating against him because of his disability, is liable for

24 violations of Title II of the Americans with Disabilities Act, 42 V.S.C § 12132.
25 26. Violations of Section 504 of the Rehabilitation Act of 1973. The DOC, having
26 excluded Mr. Peralez from participation in or denial of the benefits of the DOC's services, programs
27

28
COMPLAINT - 8

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

1 or activities, and/or otherwise discriminating against him because of his disability, is liable for

2 violations of Section 504 ofthe Rehabilitation Act of 1973, 29 U.S.C. § 794(a).
3 27. Violations of 42 U.S.C. § 1983. The individual defendants, having denied Mr.
4
5 Peralez's rights to equal protection under the law in contravention of the Fourteenth Amendment to
6 the United States Constitution, are liable for violations of 42 U.S.C. § 1983.

7

CLASS ACTION ALLEGATIONS

8

28. Plaintiff seeks to maintain this action as a class action because, as discussed below,

9
plaintiff believes that many current and former disabled offenders have been discriminated against in 10

11 that they have been excluded from the benefits of work release and camp activities. Plaintiff asks this

12 Court to certify as a class at least two categories of class members: (1) all disabled inmates who, in

13 the three years prior to the filing of this complaint, have been excluded from or denied the benefits of
14 the work release program described herein, and (2) all disabled inmates who, in the three years prior
15 to the filing of this complaint, have been excluded from or denied the benefits of the camp program
16
17 as described herein.

18

29. There are questions of law and fact common to all members of the class or classes.

19 Defendants have acted on grounds generally applicable to the class or classes as a whole, such that
20 class-wide relief is appropriate. The prosecution of separate actions would create a risk of
21
22 inconsistent or varying adjudications with respect to individual members of the class which would

23 establish incompatible standards of conduct for defendants. Questions of law or fact common to the

24 members of the class predominate over any questions affecting only individual members, such that a

25 class action is superior to other available methods for the fair and efficient adjudication of this case.
26
30. The class is so numerous that joinder of all members is impracticable. There are 27

28 dozens or hundreds of potential class members. In the short time that plaintiff was confined at the

COMPLAINT - 9

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104 (206) 624·3060 (206) 623·7323 (fax)

, ,

I SCCC Gust one of many prisons operated by the DOC), he came to know many other disabled

2 inmates, The shear size of the disabled offender population at the DOC shows that joinder of
3 individual class members will be impractical or impossible, The DOC has, at anyone time, an
4 5 offender population of 16,000 or more, The number of offenders who have been in the custody of the
6 DOC in the past three years will greatly exceed this amount. It is anticipated that the number of

7 disabled inmates entering and leaving the DOC during the past three years will number at least in the
8 hundreds. Moreover, inmates are frequently released and/or transferred to other facilities, making
9 membership in the class or classes too fluid to permit individual joinder of all members. Because the
10 11 DOC has 650 work release inmates at anyone time (and because inmates are eligible for work release

12 for only six months before their release), it is estimated that nearly 4000 inmates have passed through

13 the work release program in the past three years. Even assuming that only a small percentage of the
14 qualified inmate population is disabled, there would be dozens or hundreds of potential class
15 members who may have been discriminated against in work release opportunities and at least the
16
17 same amount who may have been discriminated against in camp opportunities.

18

31. The claims of the representative plaintiff are typical of those of the class or classes.

19

32. Potential members of the class are easily identifiable and include all disabled inmates

20
otherwise qualified for work release or camp who have been denied those opportunities. 21

22

33. The class representative will adequately and fairly protect the interests of the class or

23 classes. The class or classes will be represented by counsel from the law firm of Budge & Heipt,

24 PLLC. Budge & Heipt, PLLC is familiar with and experienced in litigating civil rights violations,

25
class action and collective action litigation, and litigation against jail and law enforcement personnel 26
for violations of constitutional rights. Budge & Heipt, PLLC has successfully prosecuted such cases
27

28 to conclusion and has repeatedly obtained verdicts and settlements in other cases in excess of $1

COMPLAINT - 10

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEATILE. WASHINGTON 98104
(206) 624·3060 (206) 623·7323 (fax)

, .

I million for civil rights actions alleging unconstitutional conduct by jail and/or law enforcement

2 personneL

3 JURY DEMAND
4

5

A trial by jury is hereby demanded.

6

PRAYER FOR RELIEF

7

WHEREFORE, the plaintiff prays that the Court grant the following relief:

8 A. Certification of this action as a class action;
9 B. All damages available to Mr. Peralez and the class members under federal law,
10

11 including, but not limited to, general damages for violations of their rights under Title II of the ADA,

12 the Rehabilitation Act of 1973 and 42 U.S.c. § 1983, damages for emotional distress, economic

13 damages, and punitive damages.

14 C. Attorneys' fees and costs; and
15

16

D. Any such other relief that this Court deems just and equitable.

17

DATED thisA,.. day of 0 l\ u~r'

, 2006 ..

18

BUDGE & HEIPT, P.L.L.C.

19

20

(~

21

Edwin S. Budge, WSBA # 24182

22

Erik J. Heipt, WSBA # 28113

Attorneys for Plaintiffand the Class Members

23

24

25

26

27

28 COMPLAINT - II

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

 
 1

2

3

4

5

6

7

8

The Honorable Franklin Burgess

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 RICKEY PERALEZ, on behalf of
12 himself and others similarly situated,

13

Plaintiff,

14

v.

15 THE WASHINGTON STATE DEPARTMENT OF CORRECTIONS;
16 HAROLD CLARKE; DOUGLAS WADDINGTON; BELINDA
17 STEWART; KEVIN SHANAHAN; JEAN STEWART; and JOHN DOES 1-
18 20, employees and officials of the Washington Department of Corrections
19 and/or Stafford Creek Corrections Center,

NO. C06-5625 FDB
DEFENDANTS’ ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
AND JURY DEMAND

20

Defendants.

21

22

Defendants, Washington State Department of Corrections, Harold Clarke, Douglas

23 Waddington, Belinda Stewart, Kevin Shanahan, and Jean Stewart file the following answer to

24 plaintiff’s complaint.

25

26

DEFENDANTS’ ANSWER TO

1

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

INTRODUCTION

2

1. Paragraph 1 states the basis for plaintiff’s complaint. Defendants deny they

3 discriminated against anyone.

4

PLAINTIFF

5

2. Defendants admit that Rickey Peralez is a former inmate of the Department of

6 Corrections and the Stafford Creek Corrections Center. Defendants are without knowledge or

7 information sufficient to form a belief as to the truth of the remaining allegations contained in

8 paragraph 2 of plaintiff’s complaint and, therefore, deny the same.

9

DEFENDANTS

10

3. The State admits that the Department of Corrections is a State agency that operates

11 correctional facilities including prisons and work release facilities. Defendants deny the

12 remaining allegations contained in paragraph 3.

13

4. Paragraph 4 states a legal conclusion and requires no answer.

14

5. The defendants admit that Harold Clarke, Douglas Waddington, Belinda Stewart,

15 Kevin Shanahan and Jean Stewart reside in the State of Washington and are employed by the

16 Department of Corrections. Defendants deny that each of the individually named defendants

17 participated in the discrimination alleged in the complaint. Defendants admit they acted within

18 the course and scope of their duties as employees. As to whether the individually named

19 defendants are U.S. citizens, the defendants are without knowledge or information sufficient to

20 determine the truth of those allegations and, therefore, deny the same.

21

6. The defendants admit the allegations contained in paragraph 6 of plaintiff’s

22 complaint.

23

7. The defendants admit the allegations contained in paragraph 7 of plaintiff’s

24 complaint.

25

8. Defendants admit the allegations contained in paragraph 8 of plaintiff’s complaint.

26

9. Defendants admit the allegations contained in paragraph 9 of plaintiff’s complaint.

DEFENDANTS’ ANSWER TO

2

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

10. Defendants admit the allegations contained in paragraph 10.

2

11. Paragraph 11 requires no response from the defendants at this time.

3

JURISDICTION AND VENUE

4

12. Defendants admit that this court has subject matter jurisdiction over the allegations

5 in this matter.

6

13. Defendants admit that this is the proper venue to hear the allegations in this matter.

7

GENERAL ALLEGATIONS REGARDING

8

WORK RELEASE AND WORK ETHIC CAMP

14. Defendants admit that there is a program known as “work release” within the 9

Department of Corrections. The remainder of the statements made by plaintiff in paragraph 14 10

are argumentative and not a short and plain statement of the facts as required by FRCP 8(a), and 11

therefore require no response. 12

15. Defendants admit that there is a program known as “work ethic camp” within the 13

Department of Corrections. The remainder of the statements made by plaintiff in paragraph 14 14

are argumentative and not a short and plain statement of the facts as required by FRCP 8(a), and 15

therefore require no response. Plaintiff was not eligible for work ethic camp as per his Judgment 16

and Sentence. 17

FACTS 18

16. Defendants admit that Rickey Peralez is a former inmate of the DOC, confined to the 19

Stafford Creek Corrections Center, and had an expected earned early release date of November 4, 20

2006. 21

17. Defendants deny that they refused to allow Mr. Peralez to participate in work 22

release due to his disability. As to the remaining allegations contained in paragraph 17, 23

defendants do not have knowledge or information sufficient to determine the truth of those 24

allegations and, therefore, deny the same. 25

26

DEFENDANTS’ ANSWER TO

3

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

18. Defendants deny that work release is a “right.” Defendants further deny that

2 plaintiff was denied the “right” to participate in the work release program. The remainder of this

3 paragraph is argumentative and not a short and plain statement of the facts as required by FRCP

4 8(a), and therefore require no response. In addition, until further investigation is done, defendants

5 cannot verify what correspondence was received and/or sent by plaintiff and, therefore, deny these

6 allegations.

7

19. Defendants deny the allegations contained in paragraph 19.

8

20. Defendants admit that plaintiff was referred to work release in early October 2006.

9 Defendants deny that “intentional discrimination” occurred. As to all other allegations contained

10 in paragraph 20, the defendants are without knowledge or information sufficient to form a belief

11 as to the truth of those allegations and, therefore, deny the same.

12

21. Defendants admit that plaintiff was transferred to Reynolds Work Release. As to

13 the rest of the allegations contained in paragraph 21, defendants are without sufficient information

14 or knowledge to form a belief as to the truth of those allegations and, therefore, deny the same.

15

22. Defendants deny that “camp” is a “right.” Defendants also deny the allegation that

16 “intentional discrimination” occurred. As to the remaining allegations contained in paragraph 22,

17 defendants are without knowledge or information sufficient to form a belief as to the truth of those

18 allegations and, therefore, deny the same.

19

23. Defendants deny the allegations contained in paragraph 23.

20

24. Defendants are without knowledge or information sufficient to form a belief as to

21 the truth of the allegations contained in paragraph 24 and, therefore, deny the same.

22

CAUSES OF ACTION

23

25-27. Paragraphs 25 through 27 are plaintiff’s causes of action and state the basis for

24 plaintiff’s lawsuit. These paragraphs state legal conclusions that require no response.

25

26

DEFENDANTS’ ANSWER TO

4

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

CLASS ACTION ALLEGATIONS

2

28. Defendants deny the allegations contained in paragraph 28.

3

29. Defendants deny the allegations contained in paragraph 29.

4

30. Defendants deny the allegations contained in paragraph 30.

5

31. Defendants deny the allegations contained in paragraph 31.

6

32. Defendants deny the allegations contained in paragraph 32.

7

33. Defendants deny the allegations contained in paragraph 33.

8

PRAYER FOR RELIEF

9

The defendants deny that plaintiff is entitled to any of the relief requested in his Prayer

10 for Relief.

11

12

AFFIRMATIVE DEFENSES

13

By Way of FURTHER ANSWER and FIRST AFFIRMATIVE DEFENSE, the

14 defendants allege that the summons and complaint were never properly served upon the

15 individually named defendants or that the process served was insufficient.

16

By Way of FURTHER ANSWER and SECOND AFFIRMATIVE DEFENSE, the

17 defendants allege that all actions of the defendants herein alleged as negligence, manifest a

18 reasonable exercise of judgment and discretion by authorized public officials made in the exercise

19 of governmental authority entrusted to them by law and are neither tortious nor actionable.

20

By Way of FURTHER ANSWER and THIRD AFFIRMATIVE DEFENSE, the

21 defendants allege that the plaintiff has failed to state a claim upon which relief may be granted.

22

By Way of FURTHER ANSWER and FOURTH AFFIRMATIVE DEFENSE, the

23 defendants allege that the defendants at all times acted in good faith in the performance of their

24 duties and are therefore immune from suit for the matters charged in plaintiff's complaint.

25

26

DEFENDANTS’ ANSWER TO

5

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

By Way of FURTHER ANSWER and FIFTH AFFIRMATIVE DEFENSE, the

2 defendants allege that the defendants are immune from suit for the matters charged in plaintiff's

3 complaint.

4

By Way of FURTHER ANSWER and SIXTH AFFIRMATIVE DEFENSE, the

5 defendants allege that the defendant State of Washington, its agencies and agents, are not subject

6 to civil suit for damages under the Eleventh Amendment of the Constitution of the United States.

7

By Way of FURTHER ANSWER and SEVENTH AFFIRMATIVE DEFENSE, the

8 defendants allege that the court lacks jurisdiction over the persons named as defendants.

9

By Way of FURTHER ANSWER and EIGHTH AFFIRMATIVE DEFENSE, the

10 defendants allege that that the plaintiff has failed to file a claim against the State of Washington

11 as required by RCW 4.92.100 and RCW 4.92.110.

12

By Way of FURTHER ANSWER and NINTH AFFIRMATIVE DEFENSE, the

13 defendants allege that the plaintiff has failed to exhaust administrative remedies or plaintiff’s

14 remedies are administrative rather than judicial and therefore the action will not lie.

15

By Way of FURTHER ANSWER and TENTH AFFIRMATIVE DEFENSE, the

16 defendants allege that the plaintiff has not complied with the Prison Litigation Reform Act.

17

By Way of FURTHER ANSWER and ELEVENTH AFFIRMATIVE DEFENSE, the

18 defendants allege that the conduct of the defendants was privileged and nontortious absolute

19 privilege--qualified privilege.

20

By Way of FURTHER ANSWER and TWELFTH AFFIRMATIVE DEFENSE, the

21 defendants allege that defendant, State of Washington, is not subject to suit under 42 U.S.C. §

22 1983.

23 ///

24 ///

25 ///

26

DEFENDANTS’ ANSWER TO

6

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1

WHEREFORE, the defendants pray that plaintiff’s Complaint be dismissed with prejudice

2 as to the defendants, the Washington State Department of Corrections, Harold Clarke, Douglas

3 Waddington, Belinda Stewart, Kevin Shanahan, and Jean Stewart, and that plaintiff take nothing

4 by his Complaint and that defendants be allowed their costs and reasonable attorneys’ fees herein.

5

RESERVATION OF RIGHTS

6 The Defendants specifically reserve the right to amend their answer by adding affirmative

7 defenses, counterclaims, cross claims or by instituting third party actions as additional facts are

8 obtained through further investigation or discovery.

9

In the event this case proceeds to trial, defendants, Washington State Department of

10 Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, and Jean

11 Stewart demand that this case be tried to a jury.

12

13

DATED this 22nd day of November, 2006.

14

ROB MCKENNA

Attorney General 15

16

/s/Mark C. Jobson

MARK C. JOBSON, WSBA No. 22717

17

Assistant Attorney General

18

19

20

21

22

23

24

25

26

DEFENDANTS’ ANSWER TO

7

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

1 CERTIFICATE OF SERVICE
2

3

I hereby certify that on November 22, 2006, I caused to be electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send

4 notification of such filing to the following:

5 Attorney for Plaintiff:
6
7 Edwin S. Budge: ed@budgeandheipt.com Erik J. Heipt: Erick@budgeandheipt.com
8

9

/s/Mark C. Jobson

10

MARK C. JOBSON, WSBA #22171

Assistant Attorney General

11

Torts Division

P.O. Box 40126

12

Olympia, WA 98504-0126

(360) 586-6300 13

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANTS’ ANSWER TO

8

ATTORNEY GENERAL OF WASHINGTON

PLAINTIFF’S COMPLAINT & JURY

Torts Division 7141 Cleanwater Drive SW

DEMAND -- NO. C06-5625

PO Box 40126

Olympia, WA 98504-0126

(360) 586-6300

 
 I

The Honorable J. Kelly Arnold

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON AT TACOMA

10

II

)

RICKEY PERALEZ, on behalf of himself and )

12 others similarly situated,

) NO. C06-5625 JKA

13

Plaintiff,

) ) PLAINTIFF'S MOTION FOR PARTIAL

14
v.

) SUMMARY JUDGMENT )

15

) Note on Motion Calendar:

) December 21, 2007 16 THE WASHINGTON DEPARTMENT OF )

17 CORRECTIONS, HAROLD CLARKE,

)

DOUGLAS WADDINGTON, BELINDA )

18 STEWART, KEVIN SHANAHAN, JEAN )

19

STEWART, and JOHN DOES 1-20, employees and officials of the Washington

) )

20 Department of Corrections and/or Stafford )

Creek Corrections Center,

)

21

)

22

Defendants.

)

-------------------------)
23

I. INTRODUCTION 24

25

Plaintiff Rickey Peralez, as representative of the certified class, respectfully submits this

26 motion for partial summary judgment. This motion seeks a ruling that the Washington Department of

27 Corrections' practice of scoring offenders according to a numerical profiling system known as

28

MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEATILE, WASHINGTON 98104 (206) 624-3060 (206) 623-7323 (fax)

I PULHESDXT-and then using that score to exclude offenders from the DOC's work release
2 program-violates Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973.
3 The PULHESDXT system, as described in this motion, is one of several DOC practices that
4 5 unlawfully excludes disabled offenders from work release. Because the PULHESDXT system

6 presents a discreet issue that can be resolved as a matter of law, an order of partial summary

7 judgment should be entered at this stage, leaving other DOC practices for later resolution.
8 II. SUMMARY
9 This is a class action on behalf of current and former disabled offenders of the DOC who were
10
11 unlawfully denied participation in an important DOC program known as "work release." The class

12 representative, Rickey Peralez, is a former DOC offender. Mr. Peralez suffers from a painful,

13 degenerative bone condition.l As a result of this physical impairment and the pain it causes him, Mr.
14 Peralez has substantial difficulty standing for long periods of time, bending, squatting, and
15 performing other major life activities.2 He often uses a cane, a walker, or a wheelchair to get
16
17 around.3 After being repeatedly denied the right to participate in the DOC's work release program

18 because of his disability,4 Mr. Peralez filed this action under Title II of the Americans with

19 Disabilities Act, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983 (based on the violation

20
of his rights under the Equal Protection Clause). 21

22

This case was certified as a class action on August 10, 2007 after extensive briefing and oral

23 argument.5 The Court defined the class as "all disabled inmates of the Washington Department of

24 Corrections who, since October 30, 2003, have been partially or wholly denied participation in the

25

26 ,
, 27 3 4
28

See June 6, 2007 Declaration of Rickey Peralez (Ok!. 19) '\13. Id. Id. See generally Peralez Decl. 'l1'li3-28. See August 10, 2007 Order Granting Plaintiff's Motion for Class Certification (Ok!. 33).

MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUlTE9l0 SEATTLE. WASHINGTON 98104 (206) 624·3060 (206) 623-7323 (fax)

1 DOC work release program because of a disability, and whose claim is limited to no more than 180

2 days oflost wages."
3 In the months before and after the class was certified, class counsel conducted extensive
4
5 discovery. The discovery was aimed at learning more about the DOC's work release referral
6 methods, as well as finding out how the DOC classifies and treats offenders with special physical,

7 sensory, and/or mental health needs.6 Class counsel issued requests for production of documents,
8 interrogatories, and requests for admission.7 Key DOC personnel were deposed including the DOC's 9
Chief of Classification and the heads of several work release facilities.8 After an order compelling 10 11 the production of documents, the DOC produced "work release denial forms" and "legal face sheets"
12 for thousands offormer inmates, policies and directives, and other materials.9

13

The discovery has uncovered an institutionalized practice of illegal discrimination against

14
disabled offenders who are otherwise qualified for work release. One of several ways in which the
15

16 DOC has carried out this practice is its long use of an encoded profiling system known as

17 PULHESDXT. The PULHESDXT system, which has effectively swept up and screened out

18 numerous disabled offenders, is the subject of this motion. As set forth below, the manner in which

19 the DOC has used the system is plainly unlawful.

20
III. 21

22 A.

The DOC's Work Release Program

FACTS

23

The DOC is a state agency that operates a vast network of prisons and other programs and

24 services throughout Washington. At any given time, the DOC houses around 18,000 people in
25

26 6 7
27
28 9

Declaration of Edwin S. Budge 112 (submitted herewith) (hereinafter "Budge Decl."). Id. Id. Id.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

BUDGE & HEIPT, P.L.L.C.
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I prisons and other facilities.1O About 1500 offenders are admitted and discharged from the system

2 each month. 11 Over 70,000 people have served time in DOC institutions in the past four years.12 3
The DOC does not just incarcerate offenders. It also operates various programs and services 4 5 designed to benefit offenders and assist them with re-entry into society. Among these is a program
6 known as "work release." The DOC has published detailed descriptions of its work release program,

7 lauding work release as a "vital component" of transitioning from incarceration to freedom-a
8
"bridge between prison and life outside of prison.,,13 In a nutshell, the program allows offenders to 9
transfer from their prison cell to one of fifteen community-based residential facilities where they 10 11 serve out the final 180 days of their sentences working in the community.

12

As described by the DOC, work release offenders live in minimum security conditions that

13 are far more desirable than prison. They obtain employment within the community-and thereby 14
earn real money in real jobs-while finishing their sentences. They receive financial aid and other 15
assistance, guidance, and counseling. They come and go from the facility in order to report to and 16
17 return from work. Offenders can visit with family members, go on outings with loved ones, and even

18 visit their homes. They participate in educational programs, drug and alcohol programs, and other

19 outside social programs to facilitate their re-integration into society. They can also get a substantial
20
head start on a new life by obtaining important papers (like identification), lining up a place to live on 21
22 their release, visiting public service agencies and seeking social assistance, purchasing clothing and

23

10
24
II
25 12
26 13
27
28

June 14, 2007 Declaration of Erik J. Heipt (Dkt. 20) (hereinafter "June 14 Heipt Decl.), Ex. A (Defendants' Response to Interrogatory No.4). Id. Id. For a descriptive overview of the DOC's work release program (as summarized in the balance of this section), see June 14,2007 Heipt Decl., (Dkt. 20) Ex. B (DOC Work Release Overview, Peralez Prod. Nos. 0305000133). See also id., Ex. F (containing information from the DOC's website on the work release program); Phillips Dep., 17:18-28:25; 32:9-36:13 (attached as Exhibit I to accompanying Budge Decl.); Musselwhite Dep., 46:1660:5 (attached as Exhibit 2 to accompanying Budge Decl.).

MOTION FOR PARTIAL SUMMARY WDGMENT - 4

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910
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(206) 623-7323 (fax)

I other necessities, and otherwise preparing for living as free citizens. Unlike prison (where medical

2 access is tightly-controlled by prison officials), work release participants can visit doctors of their
3 choosing, other medical providers, physical therapists, dentists, mental health professionals, and
4
5 others whenever necessary. 14 Family members and others can assist residents with coordinating and

6 arranging transportation for any needed medical treatment. 15 Participants can visit pharmacies, freely

7 fill medical prescriptions, and arrange to take necessary medications while at work release.16

8

The primary benefit of the program (and the reason it is called "work" release) is the ability it

9 gives offenders to find employment and earn an income during the last months of their sentences.
10

11 Participating in work release does not just give offenders the hope of finding a job-it is a

12 requirementY Work release facilities have personnel and services dedicated to helping inmates find

13 J.ObS.18 Work release offenders have training opportunities at local colleges, universities and
14 vocational schools and can take full advantage of a wide range of job counseling and development
15 assistance. 19 Many employers actively seek to hire work release offenders, and the majority of work
16 17 release offenders find employment soon after coming to work release.2o Offenders' paychecks are

18 deposited into a DOC trust account.21 When they are released, work release offenders are provided

19 with a check for their accumulated eamings,z2 Over the past four years, offenders have collectively
20

21

22

23

14
24 15
25 I' 17
26 18 I'
27 20 21
28 22

See generally Phillips Dep., 9:20-17: 17; Musselwhite Dep., 55:25-58:6. Id. Id. June 14 Heipt Decl., Ex. A (Defendants' Response to Interrogatory No.3). Phillips Dep., 17:18-21 :13; Musselwhite Dep., 46:16-49: 12. June 14 Heipt Decl., Ex. B (Peralez Prod. Nos. 03050002-16). Id., Ex. B (Peralez Prod. No. 03050030). Phillips Dep., 23:12-24:4.; Musselwhite Dep., 49:11-16. Phillips Dep., 24:5-11.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 5

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1 earned millions of dollars in work release-in the year 2005 alone, work release participants earned
2 $4,7 million in free-market wages.23 3
The very reason the program is in place is to address the problem of recidivism_ Inmates who 4 5 participate in work release are more likely to successfully function outside of prison and not re-
6 offend_24 The program benefits not only inmates but also society as a whole_25 In short, work release

7 affords eligible offenders numerous advantages, financial and otherwise, over offenders who are not
8 permitted to participate in the program, In the three years before this case was filed, the DOC
9 transferred over 7,500 offenders to work release.26 Unfortunately, as discussed below, numerous 10 11 disabled offenders have been excluded from this beneficial program pursuant to an unlawfully-

12 applied profiling system known as PULHESDXT_

13 B.

The DOC's PULHESDXT System

14 1. General Nature of the System
15 When offenders are first admitted to prison, the intake process takes approximately four
16 17 weeks.27 During this time, every offender receives a full-scale series of physical and mental

18 assessments.28 DOC personnel conduct a battery of tests and examinations, assessing each inmate's

19 physical, mental, and sensory functioning.29 Based on these assessments, each offender receives a

20 numerical score.30 21

The score is given according to a system known by the acronym,

22 "PULHESDXT.,,31 According to the DOC's Chief of Classification, "PULHESDXT is a system used

23 23
24
24 25

25 26

26 27 28

27

29 3.

28 31

June 14 Heipt Decl., Ex. B (Peralez Prod. No. 03050032). [d. (Peralez Prod. No. 03050001). See generally June 14 Heipt Decl., Ex. B (DOC Work Release Overview, Peralez Prod. Nos. 03050001-33). See also id., Ex. F (containing information from the DOC's website on the work release program). Heipt Decl., Ex. A (Defendants' Response to Interrogatory No.3). June 25, 2007 Declaration of DOC Classification Chief Jean Stewart (Dk!. 24-11) 1)3. [d.
Id. Id. [d.; see also Defendants' Response to Request for Admission No. I (Exhibit 3 to Budge Decl.).

MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624-3060 (206) 623-7323 (fax)

1 by our health services staff to assign a functional level to various aspects of the offender's body
2 functioning.,,32 The individual's PULHESDXT score is recorded, entered into the DOC computer
3 system, and thereafter becomes an integral and primary part of every offender's DOC record that is
4 5 routinely viewed by the DOC's classification staff.33 The PULHESDXT system appears to be unique 6 to the Washington DOC; no other correctional institution in the nation is known to use the system.34

7

Under the system, the DOC assigns each offender a numerical rating on a scale of 1 through 4

8 according to their functional capacity in nine broad categories making up the PULHESDXT
9 acronym:35
10

11

P - Physical Capability

12

U - Upper Extremities

13

L - Lower Extremities

14 H-Hearing
15
E- Vision
16

17

S - Mental Functioning

18

D-Dental

19

x - Overall Functional Capacity

20
T - Transportation Demand
21

22 The DOC's Chief of Classification acknowledges that the "PULHES[DXT] codes scores profile the

23 inmate according to a very broad functional assessment.,,36 As discussed in more detail below, a

24 profile of" 1" or "2" in anyone of these categories indicates that the individual has no significant

25 32

26

33 l4

27 3S

36
28

Stewart Dec!. 'If 3,11.17-18. Defendants' Response to October 16 Request for Admissions Nos. 8, 9. Defendants' Response to October 16,2007 Interrogatory No. II (attached as Exhibit 5 to Budge Decl.). Id., Ex. I (Peralez Prod. Nos. 04010027-40). In some categories offenders can also be given a "5" to reflect unique conditions such as pregnancy. Stewart Dep., 159:22-25.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 7

BUDGE & HEIPT, P,L.L.C. 705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624·3060 (206) 623-7323 (fax)

I limitation in that area. In contrast, a profile containing a "3" or "4" means that the offender has a
2 significant functional limitation in that category. 3
An offender's PULHESDXT score becomes a prominent part ofhis or her computerized DOC
4 5 record, available for DOC staff members to see at any time.37 The PULHESDXT scores are written
6 in shorthand so that a number appears directly under each letter of the PULHESDXT acronym.38

7 Thus, an offender who has no limitations would have a score that looks like this:
8 PUL H ESD X T
9 IIIIIII II
10

11
In contrast, an offender with significant limitations to his or her upper extremities, eyesight, and 12
13 overall physical functioning might have a score that looks something like this:

14

PUL H E SDX T

15

33I I 3I I 3I

16

17 Rickey Peralez, the class representative, has a degenerative bone disease, is largely confined to a

18 wheelchair, generally cannot walk up or down stairs, and is clearly "disabled" under any legally-

19 recognized definition of the term. His actual PULHESDXT score at the DOC was as follows: 39
20 PU L H ESDX T
21

22

323 I I I 23 I

23

24

25

26
27 37 38
28 J9

Response to October 16 Request for Admission No.9 See. e.g.• Stewart Decl., Ex. 3 (PULHESDXT score for Rickey Peralez). [d.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 8

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 9 I0 SEATTLE. WASHINGTON 98104 (206) 624·3060 (206) 623·7323 (fax)

1 Mr. Peralez's score was intended to reflect the fact that he had significant limitations to the

2 functioning of his lower extremities, as well as significant limitations to his overall physical

3 functioning.
4

5

2. The PULHESDXT System is a Generalized "ProfIling" System

6

The DOC has published materials in which it repeatedly acknowledges that the PULHESDXT

7 system is, by definition and practice, a "profiling system.,,40 According to these written DOC

8 standards: "The basic purpose of the [PULHESDXTj profile is to provide an index to overall
9 functional capacity.,,41 Importantly, while the PULHESDXT score is purposely designed to profile
10
11 inmates according to their capacity in different areas of human functioning, the score by itself does
12 not provide any specific infonnation about an offender's condition.42 Although PULHESDXT scores

13 "are viewed routinely" by DOC staff, the staff "does not know the offenders specific medical
14 condition.''''3 The score is designed to covey a broad-brush picture of whether the inmate has
15 significant physical, sensory, and/or mental limitations.44 Yet it is not possible, by looking at an
16
17 offender's numbers alone, to know what particular physical, mental, and/or sensory condition he or

18 she has, what the true nature and practical effect of any limitation actually is, whether and how the

19 condition can be accommodated, whether the condition is temporary or pennanent, whether the
20
condition is the result of injury, disease or defect, whether the condition is correctable, or anything 21
22 else about why the offender has a certain PULHESDXT score.45 As discussed in more detail below,

23

40
24
25 41
26 42
27 4J 44
28 45

Stewart Decl., Ex. 1 (Peralez Prod. Nos. 04010027-40). See also Stewart Dep., 159:22-25 (attached as Exhibit 4 to Budge Decl.) (agreeing that "the PULHES[DXTj codes scores profile the inmate according to a very broad functional assessment. "). Stewart Decl., Ex. 1 (Peralez Prod. No. 04010027). See Stewart Decl. 'If 3, 11. 18-19; Ex. 1 (Peralez Prod. Nos. 04010027-40); Mussselwhite Dep., 96:18-25; Skipworth Dep., 51: 8-11. Stewart Decl. 'If 3,11. 18-20. [d., Ex. 1 (Peralez Prod. Nos. 04010027-40). [d, See also Musselwhite Dep., 96: 18-25; Skipworth Dep., 51 :8-11.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 9

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHlNGTON 98104
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I DOC staff, including classification staff, have free access to offenders' PULHESDXT scores but

2 have no access to medical files that would give specific information about an offender's condition.46
3 Thus, anyone reviewing the score will generally know nothing about an offender's condition except:
4
5 (I) whether he or she has a limitation; (2) whether the limitation is significant (on a scale of one

6 through four); and (3) whether the limitation is physical, mental or sensory and above the waist or

7 below the waist. (The only apparent exception is pregnancy, which is specifically indicated by a
8 score ofP_5).47
9 In definition and in practice, the PULHESDXT score is simply a profile-the roughest
10
11 silhouette of an offender's functional capability. The DOC's own written policies concede that the

12 method is a "profiling system" because it is just that-a shorthand sketch containing no particularized

13 information about the individual. For example, someone with the score of "3" on his or her "P"
14 factor could have anything from heart disease to a birth defect to chronic asthma to degenerative bone
15 16 condition to an amputated foot or any other significant physical limitation. Similarly, an individual
17 with a score of"3" on his or her "s" factor has a significantly limiting mental condition that could be

18 anything from any kind of mental illness to mental retardation to complications from a stroke to an

19 infinite number of other compromising mental conditions. The same is true for the other categories.
20
Offenders are so broadly profiled under the PULHESDXT system that their score reveals the 21
22 existence and general severity of limitations but otherwise tells nothing about offenders as

23 individuals.

24

25

26 46
27

Stewart Dec!. 11 6, n. 5-6 (Staff "does not have access to the medical files due to health confidentiality laws and
policies.")

28 47

Stewart Decl., Ex. I (Peralez Prod. No. 04010033).

MOTION FOR PARTIAL SUMMARY JUDGMENT - 10

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I

3. Disabled Offenders Will Receive a PULHESDXT Profile of"3" or More in at Least

2

One Category

3

Under the ADA and Rehabilitation Act, a person is legally "disabled" if he or she (a) has a

4 physical or mental impainnent that substantially limits one or more of the major life activities of such
5 individual; (b) has a record of such impainnent; or (c) is regarded as having such impainnent. 42
6 U.S.C. § 12102 (2) (A)-(C). Although the DOC claims that it does not track the number of disabled
7 8 offenders in its institutions, it is beyond dispute that many DOC offenders are disabled. According to

9 a nationwide study released in 2001 by the United States Department of Justice, Bureau of Justice

10 Statistics, nearly 12% of all inmates confined in state prisons have physical disabilities.48 Many more

11 have vision impainnents, hearing impainnents, and other compromising conditions.49 The State of 12
Washington is no different. 13

14

Under the DOC's PULHESDXT system, a score of "I" indicates that the offender is "nonnal"

15 and has no limitation.50 A score of "2" indicates that there is a limitation that is not considered

16 significant.51 However, when the DOC believes, based on its evaluations, that an offender has a
17 limitation that substantially limits his or her functioning in that area, it will assign a score of "3" or
18 "4.,,52 For example, Rickey Peralez, the class representative, whose debilitating bone disease
19
20 generally confined him to a wheelchair, received scores of"3" in three categories.53

21

The DOC's written materials provide examples about what is indicated by a score of"3." In

22 the category of "lower extremities," for instance, a score of "3" is given to anyone with "defects or
23

24

25 4'
26 49 '0
27 SI 52
28 53

June 14 Heipt Decl., Ex. L. Id. Stewart Dec\., Ex. 1 (Peralez Prod. Nos. 04010033-40). Id. Id. Stewart Decl., Ex. 3.

MOTION FOR PARTIAL SUMMARY JUDGMENT - II

BUDGE & HEIPT, P.L.L.C.
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I impairments which interfere with full function requiring significant restriction of use.,,54 Someone
2 with "moderate organic systemic disease" will receive a score of "3" in the "P" category.55 In the 3
area of "upper extremities," a person with "limited functional adjustment" and/or "defects causing 4
5 moderate interference with functioning" will receive a score of "3.,,56 Someone with "total loss of
6 hearing in one ear and moderate loss in the other" will receive a score of "3" in the "H" or hearing

7 category .57 A person with "unilateral blindness," "tunnel vision," or other significant vision
8 limitations will receive a score of "3" in the "E" or eyesight category.58 Someone with "moderate
9 mental retardation" or a mental health disorder causing "impairment in adaptive functioning" will
10
11 receive a score of "3" in the "S" category.59 Indeed, while scores of "3" indicate that a person has

12 significant restrictions in that functional category (as in the case of the class representative, Rickey

13 Peralez), scores of "4" are generally reserved for situations where a person is considered wholly

14 incapacitated in that area-for example, total paralysis, complete blindness or deafness, or a mental
IS
disorder requiring long-term confinement in a mental health unit.60 16

17

The PULHESDXT system is not designed for the express purpose of determining who is

18 legally disabled and who is not. A score of"3" or more does not automatically mean that an offender

19 is disabled. However, PULHESDXT is designed and carried out in such a way that any person who
20
is disabled under the ADA definition-e.g., any person who has a "physical or mental impairment 21
22 that substantially limits one or more major life activity"-will necessarily receive a score of "3" or

23 higher. In other words, so long as the offender is "disabled" under the ADA's definition, he or she

24

54
25
" 26 "
57
27 " 59
28 60

Stewart Decl., Ex. 1 (Peralez Prod. No. 04010034) (emphasis in original). Id. (Peralez Prod. No. 04010033). Id. (Peralez Prod. No. 04010034). Id. Id. (Peralez Prod. No. 04010035). /d. Id. (Peralez Prod. Nos 04010033·37).

MOTION FOR PARTIAL SUMMARY JUDGMENT - 12

BUDGE & HEIPT, P.L.L.C.
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I clearly meets the criteria necessary to receive at least a "3" under the PULHESDXT system. Only

2 non-disabled offenders will receive PULHESDXT scores of"1 " or "2. " 3
As stated, a PULHESDXT score of "3" or higher does not, in and of itself, mean that an 4 5 offender is disabled under the ADA. It is possible, for example, that an offender could have a broken
6 leg or a severe but temporary illness that does not qualify as a "disability" under the ADA. In that

7 event, an offender could theoretically be given a temporary score of "3" that would be adjusted to a
8 "I" when the offender recovers. However, while a person can have a "3" and not be disabled, the
9 converse is not true-any offender who is legally disabled will automatically receive a score of "3"
10
11 or more. This fact gets to the heart of why the DOC's system is unlawful, so it bears repeating:

12 Unless there is an individualized error in the DOC's evaluation process, every legally disabled

13 offender will receive a score of "3" or higher on his or her PULHESDXT score. The effect of the

14 PULHESDXT system is to sweep up and tag with a "3" or higher any offender who happens to be
15 disabled under the ADA.
16

17

The DOC, by assessing and scoring all offenders according to a numerical profiling system,

18 has cast a wide net with fine holes. As significant as the net itself, however, is what happens to

19 people caught in it. As discussed below, the DOC has had an institutionalized practice of
20
systematically denying work release to offenders with scores of "3" or more on the PULHESDXT 21
22 scale. The effect of this has been to screen out, wholesale, large numbers of otherwise qualified

23 disabled offenders from this highly desirable and beneficial program.

24

25

26

27

28
MOTION FOR PARTIAL SUMMARY JUDGMENT - 13

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I C. 2
3

The DOC's Has Had an Institutionalized Policy and Practice of Systematically Excluding Offenders from Work Release Because of Their PULHESDXT Profile
1. The DOC's Process of Considering Offenders for Transfer to Work Release

4

Each DOC offender is assigned to a classification counselor, who among many other

5 responsibilities, periodically meets with offenders and initiates transfer requests within the DOC
6 system.61 Work release is available to offenders who are within six months of their release date.62 7
8 As an offender's release date nears, the counselor initiates a meeting with the offender.63 The

9 offender and counselor discuss work release and, if the offender desires to transfer there, decide

10 which of the DOC's fifteen work release facilities the offender should apply to. Because one goal is
11 continued employment, offenders are expected to apply to a work release facility in the area where
12 they will eventually be released.64 Offenders can be rejected if they apply to a work release facility
13 14 outside their expected release area.65

15

If the offender desires to transfer to work release, as most do, the counselor submits

16 something called a work release "transfer order request.,,66 The request is filled out by the counselor
17 on his or her computer.67 The transfer request is then electronically forwarded to the desired work 18 19 release facility.68 At each work release facility, the DOC has assigned personnel who review transfer
20 requests and decide whether to grant or deny them.69 Before ruling on a transfer request, the

21 responsible work release staff member first reviews the offender's PULHESDXT score.70 The work 22

23 61
62
24 63 64
25 65
26 66 67
27 68 69 70
28

Response to October 16 Request for Admission No. 14. Stewart Dep., 72:15-74:20. Id. Stewart Dep., 77:2-78:6. Id., 78:2-6. Id.,78:7-15. Id.,79:3-80:8. Id., 80:11-17 Id., 80:18-23 Musselwhite Dep., 22: 13-23.

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I release staff member has access to the offender's PULHESDXT score and other electronic

2 information but has no access to the offender's actual medical files.71
3 If the offender's transfer request is accepted, the inmate is placed on a list and transferred to
4 5 that work release facility when a spot becomes available.72 In contrast, if the offender's transfer
6 request is denied, the work release facility fills out a special form called a work release denial form. 73

7 Whenever a work release facility denies an offender's transfer request, the facility is required to
8 completely and accurately record all reasons for the denial on the form. 74
9 When a work release facility denies a transfer request, the work release denial form
10 11 (containing the reason for the denial) is forwarded to the DOC's Classification Unit in Olympia.75

12 The DOC's Chief of Classification, by herself or with members of a committee known as the

13 Headquarters Community Screening Committee ("HCSC"), later reviews each denial form and either
14 upholds the denial or overrules the denial.76 The DOC's review is limited in scope-according to the IS
16 Chief of Classification, work release denials are not reviewed de novo; they are typically reviewed
17 simply to determine whether the stated reason for the denial comports with DOC policy.77 If a work

18 release denial is upheld, the offender serves out the balance of his or her sentence in prison and is not

19 permitted to go to work release.
20

21

22

23

24

25

71 72

26

73 7.

27 75 76

28 77

Stewart Dec!. -,r 6, n. 5·6.
Stewart Dep., 91 :3·22. Id., 91 :23·92:9. Id., 93:3·18; see also, Phillips Dep., 46:8-21. Stewart Dep., 92:6-93:2. Id., 92:4-93:2; 97:4-10. !d., 97:4-18.

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I

2. The DOC's Policy of Excludiug Offenders with PULHESDXT Scores of "3" or More

2

a. Work Release Denial Forms Show Offenders Were Consistently Denied Work

3

Release Because Their PULHESDXT Scores Were "3" or More

4

In order to understand the DOC's practices, class counsel sought copies of all work release

5 denial forms from October 30, 2003?8 After a motion to compel was granted, the DOC produced the
6 forms. 79 The DOC produced well over 2000 work release denial forms for the period of October 7 8 2003 to August 2007.80 In addition, the DOC was required to produce documents called "legal face

9 sheets," which are computer printouts showing the offenders' PULHESDXT scores and history with

10 the DOC.81 The legal face sheets summarize any rulings on work release transfer requests.82

11

Class counsel reviewed each work release denial form and categorized the materials.83 The

12

results were astounding. In situation after situation, the reason for the work release denial could not 13

14 have been clearer-offenders were denied work release simply because their PULHESDXT scores

15 met or exceeded "3." Here are a mere fifteen examples, with the actual denial language in quotes:

16

• C.W.'s request to transfer to Bellingham Work Release: "Offender is ineligible due to P-3

17

PULHES code.,,84

18

• F.H.'s request to transfer to Reynolds Work Release: "L/3 makes person ineligible.,,85

19 • K.C.'s request to transfer to Eleanor Chase Work Release: "Denied due to having a P-3

20

designation.,,86

21

• J.M.'s request to transfer to Bellingham Work Release: "PULHES codes P-3; offender is

22

ineligible for Work Release due to physical barriers indicated by codes.,,87

23 78

79
24 80

25

81 82

26 83 84

27 " 86

28 87

Budge Decl.1l9. Id. Id. Id. Id. Id. Id., Ex. 7. Id" Ex. 8. Id., Ex. 9. Id., Ex. 10.

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I

2

• B.H.'s request to transfer to Bellingham Work Release: "PULHES codes P-3, S-3, X-3; offender is ineligible per DT 250716.,,88

3

• R.B.'s request to transfer to Reynolds Work Release: "Person is not medically fit for work

4

release with a P-3, X-3 and D-3. Deny.,,89

5 • D.R.'s request to transfer to Bellingham Work Release: "PULHES codes P-3, L_3.,,90
6

7

• E.S.'s request to transfer to Seattle Area Work Release: "PULHES Code E-3 precludes WR.'.9l

8

• B.R.'s request to transfer to Bellingham Work Release: "Offender ineligible due to PULHES

9

code S_3.,,92

10 • J.G.'s request to transfer to Tri Cities Work Release: "Denied. [Offender] has a L-code of 3

11

on the PULHESDXT codes. TCWR accepts codes of 2 or less, unless negotiated otherwise.

[Offender's] code could not be negotiated.,,93 12

13

• M.B.'s request to transfer to Bellingham Work Release: "PULHES code S-3; offender is

ineligible for Work Release due to mental health.,,94

14

15

• lS.'s request to transfer to Bellingham Work Release: "PULHES code S-3; ineligible per DT 250716.,,95

16

• J.W.'s request to transfer to Bellingham Work Release: "PULHES code S-3, mental health.

17

Inappropriate for work release per DT 25. Presents significant barrier to success.,,96

18

• B.E.'s request to transfer to Bellingham Work Release: "PULHES codes P-3 and S-4;

19

offender is ineligible for Work Release.'.97

20 • D.R.'s request to transfer to Eleanor Chase Work Release: "PULHES scores poor,"

21

"PULHES not OK," "PULHES scores should never been referred.,,98

22
88
23 89
90
24 91
92
25 93 26 94
"
27 96 97
28 98

Id., Ex. 11. Id., Ex. 12. Id., Ex. 13.
Id., Ex. 14. Id" Ex. 15.
Id., Ex. 16. Id., Ex. 17. Id., Ex. 18. Id., Ex. 19. Id., Ex. 20. Id" Ex. 21.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 17

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1 Legal face sheets revealed that in the above cases, the work release denial was upheld by the DOC's
2 Classification Unit in Olympia and the offender did not go to work release.99 Indeed, counsel's
3 review of the work release denial fonns revealed numerous other occasions where work release was
4 denied because of the offender's PULHESDXT score. IOO It is not yet known which of these many
5
6 offenders are disabled under the ADA, and discovery is pending on this and other issues. However,

7 any offenders who were disabled and who were denied because oftheir PULHESDXT scores should,

8 as discussed below, be entitled to summary judgment.

9

b. Deposition Testimony Revealed a Centralized Policy of Denying Work

10

Release to Offenders Based on Their PULHESDXT Scores

11 Deposition testimony confinned that the DOC had a centralized practice of excluding
12 offenders based on their PULHESDXT scores. For example, class counsel deposed Sandra
13

14 Musselwhite, who is currently the head of two large DOC work release facilities and who has headed

15 other DOC work release facilities over the years. 101 Ms. Musselwhite, who has long been responsible

16 for ruling on work release transfer requests, testified that there had long been a "blanket prohibition" 17
on individuals coming to work release who had PULHESDXT scores of "3" or above. 102 Ms. 18
Musselwhite testified that the policy of denying work release to offenders with "3" or more was 19
20 centralized-"it was the way you do business all over the state. ,,103 According to Ms. Musselwhite,

21 the blanket prohibition on accepting offenders with 3 or higher has since changed (she did not know
22 when the change occurred), but offenders with a "4" on any aspect of their PULHESDXT scores are 23

24

25

26

99 100

27 101 102

28 103

Id.. Exs. 22-36. Budge Dec!. -,r 9. Musselwhite Dep., 5:12-8:3. Id., 88:13-17; 101:15-20. Id., 90:4-14.

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I still categorically prohibited from transferring to work release,I04 even though there is no legitimate

2 reason to prohibit the blind, deaf, or mobility-impaired from seeking employment.
3 Other deposition testimony confinued the DOC's centralized practice of denying work release
4
5 to offenders because of PULHESDXT scores. Class counsel had noticed that work release denial

6 fonus sometimes referenced a code called "DT-25" when denying offenders based on their 7 PULHESDXT score. 105 In some situations, denial fonus stated that PULHESDXT scores made
8 offenders "inappropriate" or "inelligible" for work release "per DT_25.,,106 Yet the code did not 9
appear to be part of any publicly-available DOC Policy Directive. 107 After reviewing the work 10
11 release denial fonus, class counsel scheduled the deposition of the DOC's Chief of Classification,

12 Jean Stewart, and questioned her about the "DT-25" code.

13

In her deposition, Ms. Stewart admitted that the DOC's system of screening out offenders

14 from work release based on their PULHESDXT score was much more than just the sum of individual
15
choices by particular work release facilities. Ms. Stewart explained that every work release facility 16
17 had been assigned a "DT-25 Profile" by Olympia officials. 108 The DT-25 profile set specific

18 PULHESDXT scores that would be accepted at each of the work release facilities. 109 Ms. Stewart

19 explained that when any classification counselor filled out a computerized work release transfer
20
request, the computer automatically compared the individual offender's PULHESDXT score to the 21 22 work release facility's DT-25 profile. llo If the offender's PULHESDXT score did not match the

23 facility's DT-25 profile, the computer was programmed to mechanically generate an "ERROR" or

24
10.
25 105
26 106 107
27 108 109
28 110

[d., 15:23-16:8. Budge Decl., '\Ill. [d.
Id. Stewart Dep., 155:11-25. Id., 155:22-25. Id.,155:13-156:2

MOTION FOR PARTIAL SUMMARY JUDGMENT - 19

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-------~ - - - - - - - - - -

1 "CONFLICT" message and would not send the transfer request to the work release facility without

2 being manually overridden. I II As a practical matter, this likely resulted in the indiscriminate
3 exclusion of numerous offenders based on their PULHESDXT scores alone-before any human
4 5 being even considered the transfer request. ll2 Ms. Stewart also testified that although the DT-25
6 system had been in place for years, it had been changed one month before her deposition date after a

7 meeting by top DOC officers. 113 She testified that in the month before her deposition, "I reset aU of

8 the PULHES[DXT] codes for the work release facilities to five, so no conflict messages will be

9
received by anyone entering a transfer order request [to] a work release facility.,,1l4 10

11

Regardless of the number of work release offenders who were rejected based on their

12 PULHESDXT scores, or the manner or method by which the rejection took place (i.e., human or

13 computer), the DOC's system of rejecting offenders based on their PULHESDXT scores is clearly

14 unlawful as described below. Disabled offenders who were excluded from work release because of
15 their PULHESDXT scores should be entitled to judgment as a matter oflaw.
16

17

IV. LEGAL ANALYSIS

18

The Court is familiar with the summary judgment standard. Under Fed. R. Civ. P. 56,

19 summary judgment should be granted where there is no genuine issue of material fact and the moving 20

21 111
112
22
23 113
114
24
25 26 27
28

Id.,156:14-158:4. Ms. Stewart acknowledged that some (if not all) of the DT-25 profiles were set up so as to generate a "conflict" for offenders who tried to transfer to work release if they had PULHESDXT scores of "3" or higher. Stewart Dep., 168:15-169:15. Stewart Dep., 164:13-166:22. Id., 164:23-165:1. Further discovery may have to be directed at determining which offenders were excluded from work release based on a computerized rejection of their PULHESDXT scores. Clearly, however, since the computer had been set to generate an automatic "ERROR" message where the offender's PULHESDXT score exceeded the maximum programmed threshold, the many work release denial forms (such as the fifteen cited above) may be only a fraction of the total offenders who were denied because of their PULHESDXT scores. These written work release denials appear to represent only those offenders whose classification counselors manually overrode the pre-programmed DT-25 profile and caused the work release transfer request to be forwarded for human consideration despite the offender's PULHESDXT score.

MOTION FOR PARTIAL SUMMARY JUDGMENT - 20

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I party is entitled to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The
2 legal analysis in this case is straightforward. The undisputed facts show that the DOC's use of
3 PULHESDXT scores as a basis for excluding offenders from work release screens out disabled
4
5 offenders from enjoying the same services, programs, or activities available to those without
6 disabilities, in violation of Title II of the ADA and § 504 of the Rehabilitation Act of 1973.

7 A. Title II of the Americans with Disabilities Act

8 Title II of the ADA provides as follows:

9

Subject to the provisions of this title, no qualified individual with a disability shall, by

10

reason of such disability, be excluded from participation in or be denied the benefits of

11

the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.

12

42 U.S.C. § 12132. This law "constitutes a general prohibition against discrimination by public 13

14 entities." Bay Area Addiction Research and Treatment, Inc. (BAART) v. City of Antioch, 179 F.3d

15 725, 730 (9th Cir. 1999). The statute "must be construed broadly in order to effectively implement

16 the ADA's fundamental purpose of providing a clear and comprehensive national mandate for the
17 elimination of discrimination against individuals with disabilities." Barden v. City of Sacramento,
18 19 292 F.3d 1073, 1077 (9th Cir. 2002) (internal quotation marks and alteration omitted).

20

As an operator of prisons and affiliated public programs and services, the DOC must comply

21 with Title II of the ADA. For nearly a decade, the Supreme Court has held that state prisons fall
22
squarely within the ADA's statutory definition of a "public entity" and that prison "services, 23
programs, or activities" are within the statute's ambit. See Pennsylvania Dep't of Carr. v. Yeskey, 24 25 524 U.S. 206, 210 (1998). Dozens of cases since Yeskey have similarly held.

26

This case involves a policy that is generally applied to all offenders-excluding them from

27 work release if their PULHESDXT codes meet or exceed a certain pre-determined threshold-but

28
MOTION FOR PARTIAL SUMMARY JUDGMENT - 21

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1 which has the obvious effect of disadvantaging disabled offenders. The Ninth Circuit has "repeatedly

2 recognized that facially neutral policies may violate the ADA when such policies unduly burden 3 disabled persons." McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). The Ninth 4
5 Circuit has further held that a disabled person need not prove that his or her disability was the "sole"
6 or "but for" cause of the discrimination, and that disabled individuals may recover under the ADA

7 even if another lawful reason partially-motivated the adverse action. Head v. Glacier Northwest.
8 Inc., 413 F.3d 1053, 1063-68 (9th Cir. 2005). 9
When reviewing cases similar to the present one, the Ninth Circuit has often turned to 10 11 Department of Justice regulations implementing Title II's prohibition against discrimination.

12 According to the Ninth Circuit, these "legislative regulations" are expressly authorized by Congress

13 and should generally be given "controlling weight." BAART, 179 F.3d at 733, n. II. The regulations
14 at issue here are contained at 28 C.F.R. Part 35. According to 28 C.F.R. § 35.130(b)(3)(i). public
15 entities "may not. directly or through contractual or other arrangements, utilize criteria or methods of
16
17 administration [tJhat have the effect of subjecting qualified individuals with disabilities to

18 discrimination on the basis of disability.,,115 The regulations further mandate:

19

A public entity shall not impose or apply eligibility criteria that screen out or tend to

20

screen out an individual with a disability or any class of individuals with disabilities

from fully and equally enjoying any service, program or activity, unless such criteria

21

can be shown to be necessary for the provision of the eservice, program, or activity

22

being offered.

23 28 C.F.R. § 35. 130(b)(8) (emphasis added). Clearly, the use ofPULHESDXT scores as a criterion

24 for determining eligibility for the DOC's work release program has the "effect" of discriminating

25

26 11'

(Emphasis added.) Under Title II of the ADA. a qualified person with a disability is simply "an individual with

a disability who. with our without reasonable modifications to rules. policies or practices. removal of architectural

27 barriers. or the provision of auxiliary aids and services. meets the essential eligibility requirements for the receipt of

services or the participation in programs or activities provided by the public entity." 42 U.S.C. § 12132(2). See also

28 Crowder v. Kitagawa. 81 F.3d 1480, 1483 (9th Cir. 1996).

MOTION FOR PARTIAL SUMMARY JUDGMENT - 22

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I against disabled offenders and "screens out or tends to screen out" disabled offenders thereby directly

2 violating the ADA's mandate against discrimination in services, programs, or activities of a public

3 entity,116

4

B.
5

Section 504 of the Rehabilitation Act of 1973

6

Section 504 of the Rehabilitation Act is codified at 29 U.S.C. § 794(a). The statute provides

7 in pertinent part as follows:

8 No otherwise qualified individual with a disability in the United States .... shall,

9

solely by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program or activity

10

receiving Federal financial assistance ....

11 For all intents and purposes, the legal analysis under § 504 of the Rehabilitation Act is identical to
12 that under Title II of the ADA. According to the Ninth Circuit, the two laws must be interpreted
13
14 consistently "because there is no significant difference in the analysis of rights and obligations

15 created by the two Acts." Vison v. Thomas, 288 F.3d 1145, 1152, n. 7 (9th Cir. 2002). See also

16 Bragdon v. Abbott, 524 U.S. 624 (1998) (holding that Title II of the ADA and § 504 of the
17 Rehabilitation Act must be interpreted consistently).
18 The Washington DOC has received more than $30 million in federal financial assistance since
19
20 2003.117 As a recipient of such funding, it is subject to § 504's prohibition against disability

21 discrimination. The same acts that violate Title II of the ADA violate the Rehabilitation Act as a

22
matter oflaw. 23

116
24

The regulations further prohibit public entities from denying "a qualified individual with a disability the

opportunity to participate in or benefit from" services offered to others (28 C.F.R § 35.l30(b)(9)) and generally mandate

25 "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability," 28 C.F.R. § 35.l30(b)(7). Moreover, the regulations require the DOC to "make

26 available to applicants, participants . . . and other interested persons information regarding the provisions of [the
regulations] ... and [their] applicability to the services, programs or activities of the public entity. , . to apprise such

27 persons of the protections against discrimination assured them by the [ADA] and [the regulations]," 28 C.F.R. § 35,106,
There is no evidence that the DOC complied with this legal requirement.

28 117

June 14 Heipt DecL, Ex, A (Response to Interrogatory No, 16),

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I

V. CONCLUSION

2

The Court should rule that the DOC's practice of scoring offenders according to the

3 PULHESDXT system-and then using that score as a basis for excluding offenders from the DOC's
4

5 work release program-violates Title II of the Americans with Disabilities Act and the Rehabilitation

6 Act of 1973 such that legally disabled offenders within the defined class who were subjected to this

7 practice should be entitled to judgment as a matter of law. For the foregoing reasons, an order of
8 partial summary judgment should be entered. A proposed order is submitted herewith.
9 DATED this 29th day of November, 2007.
10

11

12

Edwin S. Budge, WSBA # 24182

13

ErikJ.Heipt, WSBA#28113

14

Of Budge & Heipt, PLLC

Attorneys for Plaintiff and the Class

IS

16

17

18

19

20

21

22

23

24

25

26

27

28
MOTION FOR PARTIAL SUMMARY JUDGMENT - 24

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 •

I

2

--==.:.:::: FILED

LODGED

RECEIVED

The Honorable J. Kelly Arnold

3

MAY 12 2008

4

CLERK U.s. DIS1'RICT COJRl

WESTERN DISllUcr Of WASHINGTON AT TACOMA

5

dw'--.;......_'-------"O""EPUlY=

6

7

8

UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON AT TACOMA

10

)

11 RICKEY PERALEZ, on behalf of himself and )

others similarly situated,

) NO. C06-5625 JKA

12 Plaintiff,
13

) ) _ _ _ _ SETTLEMENT ) AGREEMENT

14

v.

) ) (Subject to Court Approval)

15 THE WASHINGTON DEPARTMENT OF )

CORRECTIONS, HAROLD CLARKE, 16 DOUGLAS WADDINGTON, BELINDA

) )

17 STEWART, KEVIN SHANAHAN, JEAN )

STEWART,andJOHNDOES 1-20,

)

18 employees and officials of the Washington )

19

Department ofCorrections and/or Stafford Creek Corrections Center,

) )

20

)

Defendants.

)

21 ----------------------)

22

I. INTRODUCTION

23

This proposed settlement agreement ("Settlement") is entered into as of the date stated below 24

25 by and between Plaintiff, Rickey Peralez, as representative of the certified class (hereinafter the

26 "Class Plaintiff,) and Defendants, the Washington Department of Corrections ("DOC"), Harold

27 Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, Jean Stewart, and any other 28

SETTLEMENT AGREEMENT - 1

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I individuals or entities of the State of Washington who are or might be claimed to be liable for the acts

2 alleged in the Complaint (hereinafter "Defendants").

3 II. RECITALS
4

5

1. This case was initiated by Class Plaintiff, Rickey Peralez, by filing a class action

6 complaint on or about October 30, 2006. The Defendants appeared and answered the complaint,

7 generally denying the substantive allegations. With regard to the Class Plaintiff's allegations
8 concerning discrimination against disabled individuals in connection with the DOC's work release 9
progrilIll, the Court granted class action certification on August 10, 2007. The Court later iIIllended 10
11 the class defmition to the following: "All otherwise eligible ADA disabled inmates of the

12 Washington Department of Corrections (DOC) who, from October 30, 2003 through January 2008
13 have been partially or wholly denied participation in the DOC Work Release Program by reason of a 14
disability." [Dkt. 58]. 15
2. Throughout the litigation, Class Plaintiff has been represented by the law firm of
16
17 Budge & Heipt, P.L.L.C. (hereinafter "Class Counsel"). Defendants have been represented by the

18 Attorney General of Washington (hereinafter "Defense Counsel").

19

3. The parties have engaged in substantial pre-trial litigation, including extensive written

20
discovery (resulting in the production of tens of thousands of pages of documents), depositions, and 21

22 motions practice. The Class Plaintiff, on his own behalf and on behalf of the Settlement Class

23 (defined below), and the Defendants have now agreed to settle the action to avoid the risk and

24 uncertainty inherent in continuing litigation. To that end, the parties have agreed on a Settlement
25 Class as. well as the other terms and conditions outlined herein. Determination of this Settlement
26 Class was the result of extensive cooperative efforts on the part of Class Counsel and Defense
27
28 Counsel, whereby the parties collaboratively reviewed hundreds of offender records in order to

SETTLEMENT AGREEMENT· 2

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910
SEATILE, WASHINGTON 98104 (206) 624-3060
(206) 621-7323 (fax)

1 detenuine which offenders appeared to fit the foregoing class definition. The parties have negotiated

2 the tenus of this proposed Settlement by way of anus-length negotiations. The parties wish to
3 memorialize the complete and full terms of the Settlement and to settle the claims related to disability
4 5 discrimination in connection with the DOC's work release program. The parties certifY that there are
6 no agreements made in connection with this proposed settlement except as explicitly provided herein.

7

Ill. TERMS

8 1. Resolution of Class Plaintiff's Claims. This settlement is intended to fully and
9 finally resolve all claims of Class Plaintiff that were or which might have been alleged in the current
10

11 action.

12

2. Resolution of Settlement Class's Claims. In addition, this settlement is intended to

13 resolve any potential claim by the individuals identified in Attachment 1 (the "Settlement Class"), 14
who are sent notice as described below, and who do not choose to opt out of the settlement, and 15
which relates to the allegation that they were wholly or partially denied the right to participate in the 16
17 DOC's work release program because of a disability. Except as specifically provided herein, no other

18 claims are released by way of this Settlement. Therefore, the following claims are not released: (1)

19 claims of any individual who is not sent court-approved notice of this action and Settlement; (2)
20 claims of any individual who timely opts out of this action and Settlement; and (3) claims of any
21
22 individual, other than the Class Plaintiff, Rickey Peralez, for wrongs or acts other than the act of

23 being wholly or partially denied participation in the DOC's work release program because of a

24 disability.
25 3. Denial of Liability. Defendants have denied, and continue to deny liability for the
26
allegations alleged in the Complaint. By entering into this Settlement, the parties agree that 27
28 Defendants are not admitting any liability to the Class Plaintiff, class members, or any other person

SETTLEMENT AGREEMENT - 3

BUDGE & HEIPT, P.L.L.c.
70S SECOND AVENUE, SUITE 910 SEATTLE, WASHIN01UN 98104
(206) 624·3060 (206) 621·7323 (fax)

1 or entity, and Defendants expressly deny an such liability. Defendants' choose to expeditiously

2 dispose of the claims that have been asserted against them in the action by settlement and
3 compromise rather than incur the expense and uncertainty of protracted litigation. No part of this
4
5 Settlement may be admitted into evidence in any action, except as required to enforce this Settlement.

6

4. Benefits Secured by Class Plaintiff. The parties agree that the Class Plaintiff,

7 Rickey Peralez, has incurred substantial risk, expense, and expenditure of time related to the claims
8 asserted in the complaint. In addition, the parties agree that by virtue of taking on such risk, expense 9
and expenditure of time, Mr. Peralez has secured substantial benefits to class members including, but 10
11 not limited to, the financial benefits outlined in this Settlement agreement. The parties further agree

12 that Mr. Peralez has, in addition to obtaining financial relief for himself and members of the class

13 secured various non-monetary benefits for current andlor future DOC offenders who may be
14 disabled, which benefits are not directly reflected in the terms of the financial settlement to class
15 16 members. Among other things, Mr. Peralez, through his counsel, filed a motion for partial summary
17 judgment, which was granted by the Court on January 8, 2008. The Court ruled as follows: ''To the

18 extent the Washington State Department of Corrections (DOC) utilizes a practice of scoring inmate
19 offenders according to a numerical profiling system known as PULHESDXT-and then uses that
20 score as a motivating factor to exclude otherwise eligible ADA disabled offenders from the DOC's
21
22 Work Release Program-such practice violates Title II of the Americans with Disabilities Act,

23 Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983." As a result of this ruling, and the

24 lawsuit generally, the DOC has gone to significant effort to voluntarily alter and revise various
25 policies and procedures and has educated its persounel and voluntarily taken other steps designed to
26
27 minimize the future potential for discriminating against disabled individuals in connection with the
28 DOC's work release program. In addition, the DOC has re-screened (andlor will re-screen) various

SETTLEMENT AGREEMENT - 4

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624-3060
(206)621-7323 (fax)

1 currently-incarcerated offenders who may have been improperly denied work release in order to

2 determine their future eligibility for work release.
3 6. PayDlent to Class Representative. For all of the foregoing reasons, and in
4 5 consideration for the full release of all claims which were, or which might have been asserted by the
6 Class Plaintiff against defendants, the DOC agrees to pay to plaintiff Rickey Peralez the amount of

7 thirty thousand dollars ($30,000.00) in consideration of this Settlement and the release ofms claims.

8 This sum includes an incentive award, but shall not in any way reduce, offset, or otherwise impact the

9 amounts to be paid to the Settlement Class members as described below.
10

11

7. Payment to Settlement Class. In addition to the foregoing, the DOC agrees to pay

12 the sum of one thousand eight hundred dollars ($1800.00) to each Settlement Class member

13 identified in Attachment 1 for a total collective class settlement of two hundred ninety eight thousand
14 eight hundred ($298,800.) The parties agree that the sum of $1800 per person is a reasonable
15 16 estimate of the average earnings for each individual who might have been eligible to participate in
17 work release for the maximum available period of 180 days. This sum shall be known as the Class

18 Settlement Amount.

19

8. Funding and Payment of Class Settlement Amonnt. Defendants will fund the total

20
collective Class Settlement Amount after final approval of this Settlement as described below. From
21

22 this fund, defendants shall use their best efforts to make payment directly to each of the Settlement

23 Class members identified in Attachment I (other than those who choose to opt out of the Settlement).

24 Any unclaimed funds from the Class Settlement Amount shall be used by the DOC exclusively for
25 existing or future programs, services or activities (which the DOC would not otherwise be legally
26
obligated to provide) which are specifically designed to benefit inmates with significant physical,
27
28 mental or sensory impairments. Such programs, services or activities may include, for example,

SETTLEMENT AGREEMENT - 5

BUDGE. & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060
(206)621·7323 (fax)

1 improving such inmates' access to work release facilities or for programs tailored to educate, train or
2 otherwise assist such inmates in transitioning from prison to a life outside of prison. The DOC will
3 use its best efforts to determine how it proposes to use such funds within 120 days from the end of
4 5 the claims period, and will report to Class Counsel about how it intends to use the funds. The DOC
6 will use the unclaimed funds for the aforementioned purposes no later than 18 months following the

7 close of the claims period and will provide an accounting of the use ofsuch funds to Class Counsel.

8

9. Attorneys' Fees and Costs. Defendants acknowledge that, in addition to the

9

settlement amounts described above, they are liable to pay Class Counsel's reasonable attorneys' fees 10

11 and statutory costs (which have been advanced by Class Counsel) under the causes of action asserted

12 in the complaint. Payment of attorneys' fees and statutory costs shall be paid over and above, and in

13 addition to, the settlement amounts to be paid to the Class Plaintiff and the Settlement Class members 14
identified in Attachment 1. Payment of attorneys' fees and statutory costs shall in no way reduce or 15
offset the amount to be paid to the Class Representative and Settlement Class members, and shall not 16
17 impact the funding of the Class Settlement Amount described above. Class Counsel will file a

18 separate motion for attorneys' fees and statutory costs to be noted on the regular motions calendar as

19 described below. Such motion shall set forth the hours and rates claimed by Class Counsel. 20
Defendants will not contest liability for Class Counsel's reasonable attorneys' fees and statutory 21
22 costs, but reserve the right to contest the amounts requested by Class Counsel.

23

IV.

TIMING, COURT APPROVAL, NOTICE TO CLASS MEMBERS, AND

PAYMENT OF SETTLEMENT AMOUNTS 24

25

1. Preliminary Approval of Settlement. The parties jointly request that the Court

26 preliminarily approve this proposed Settlement Agreement at its soonest opportunity. This proposed

27

28

SETILEMENT AGREEMENT - 6

BUDGE & HEIPT, P.L.L.C.
70S SECOND AVENUE. SUITE 910 SEATILE. WAS111NGTON 98104
(206) 624-3060
(206)621·7323 (fax)

1 Settlement Agreement will be presented to the Court by Counsel by the parties for preliminary

2 approval.
3 2. Timing of Motion for Attorneys' Fees and Costs. Within ten court days following
4 5 preliminary approval of this proposed Settlement Agreement, Class Counsel will file a motion for
6 attorneys' fees and statutory costs to be noted on the regular motions calendar. The court will

7 preliminarily rule on the motion for attorneys' fees and statutory costs and preliminari1y detemrine
8 the amount of attorneys' fees and statutory costs to be awarded to Class Counsel.
9
3. Submission of Proposed Notice to Class Members. Within ten court days following
10
11 the preliminary ruling on the motion for attorneys' fees and statutory costs, the parties will submit to

12 the Court a joint form of notice and claim/opt-out form to be issued to the Settlement Class members

13 identified in Attachment 1. (If the parties cannot agree on a joint form of notice and claim/opt-out 14
form, they will submit separate proposed notices). These notices shall inform the class members 15
identified in Attachment I of the nature of the case, the terms of this proposed Settlement, the 16
17 preliminary ruling on attorneys' fees and costs, the effect of the settlement and their right to object to

18 or opt-out of the settlement should they choose. The notice shall also inform the Settlement Class

19 members identified in Attachment 1 of a hearing date for the Court to rule on final approval of the
20
settlement and their right to appear at the hearing and object to the terms of the settlement should 21
22 they wish to do ~o.

23

4. Delivery of Notice to Class Members. Defendants agree to notify the Class

24 Members both by mail to the last known mailing address and by publication. Within twenty court
25 days following the Court's approval of the form of notice, defendants will mail the approved notice
26
and claim/opt-out form to the Settlement Class members identified in Attachment 1 at their last 27
28 known addresses. The approved notice and opt-out form shall be sent via first class mail or certified

SETTLEMENT AGREEMENT - 7

BUDGE & BEIPT, P.L.L.C.
70S SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060
(206)621·7323 (fax)

1 mail return receipt requested (at defendants' option). If a notice is returned as undeliverable or

2 addressee unknown, defendants agree to send a second notice by first class mail or certified mail
3 return receipt requested (at defendants ' option) to the last known address. Defendant also agrees to
4
5 publish a legal notice in each of two general circulation newspapers, one in Western Washington and

6 the other in Eastern Washington. Such notice shall describe the suit, the settlement, the name of class

7 members who have been identified and the method for filing a claim. Class members shall have 30

8 days from the date the notice is mailed and published to either return a verified, signed claim form, or
9 opt out. Class members who file a claim form shall be mailed a Settlement check.
10

11

5. Final Approval of Settlement. On a date specified in the foregoing notice, the Court

12 will conduct a hearing on the subject of fmal approval of the Settlement and there decide whether or

13 not to give final approval to the Settlement and the amount of attorneys' fees and statutory costs of

14 Class Counsel.
15
6. Timing of Payments.
16

17

A. Payment to Class Representative. Payment of the Settlement to the class

18 representative, Rickey Peralez, shall occnr within thirty calendar days following final court approval

19 of the Settlement.
20 B.
21

Payments to Settlement Class. Payments to the individual members of the

22 Settlement Class who deliver a verified, signed claim form shall be made not more than thirty

23 calendar days following return of a claim form. Payment shall be made directly by defendants to the

24 Settlement Class members. Defendants will use their best efforts make payment to the individual
25 class members identified in Attachment 1 who receive notice and do not choose to opt out of the
26 Settlement. After the passage of 180 days following final approval of this Settlement, any unclaimed
27
28 funds shall be used for the purposes described in paragraph III.8 above.

SETTLEMENT AGREEMENT - 8

BUDGE & HEIPT, P.L.L.C.
70S SECONDAVENUE,SUITE 910 SEATTLE, WASHINGTON 98104 (206) 624-3060 (206) 621-7323 (fax)

I

C. Payment of Attorneys' Fees and Statutory Costs: Payment of attorneys'

2 fees and statutory costs to Class Counsel shall occur within ten calendar days following final court

3 approval of the Settlement.
4

5

D. Notification to DSHS: DOC reserves the right to notifY the State Department

6 of Social and Health Services of the identity of any class member in order that DSHS may attempt to

7 collect outstanding debts subject to collection by that agency. Nothing in this settlement agreement

8 shall constitute an admission that any such amounts are owed nor a waiver of any defenses otherwise

9

available to the class representative or other class members. 10

11

v. SUSPENSION OF LITIGATION, DISMISSAL AND

MONITORING OF SETTLEMENT

12

13

1. Suspension of Trial Date and Pretrial Deadlines. Upon preliminary approval of the

14 settlement as described above, the trial date and pretrial deadlines shall be suspended.

15

2. Dismissal of Action. Upon final approval of the settlement, the complaint shall be

16 dismissed with prejudice.
17
3. MonitOring of Settlement. Even after dismissal of the complaint, the Court will
18
19 retain jurisdiction to monitor performance of the Settlement and resolve any disputes that may arise

20 concerning performance of the Settlement. Class Counsel shall have the opportunity to request

21 periodic updates from defense counsel concerning performance of the Settlement and Defendants

22
shall keep Class Counsel reasonably informed concerning performance of the settlement. Class 23
Counsel and Defense Counsel may request that the Court resolve any issues relating to the 24

25 performance of the Settlement.

26

2-- MA11 SETTLEMENT AGREEMENT DATED this

day of

2008.

27

28

SETILEMENT AGREEMENT - 9

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624-3060 (206)621·7323 (fax)

1
2
3 4 5 6 7 8 9 10
11
12 13 14 15 16 17 18 19 20 21
22
23 24 25 26 27 28
SETTLEMENT AGREEMENT - 10

BUDGE & HEIPT, P.L.L.C.
Erik J. Heipt, WSBA # 28113 Edwin S. Budge, WSBA # 24182 Class Counsel
. RfCkeY Peralez
Class Plaintiff
ROBERT M. MCKENNA Attorney General
~\C :s.\C?5-S~
Mark C. Jobson, WSBA # 22171 Assistant Attorney General Defense Counsel
BUDGE & IIEIPT, P.L.L.C.
70S SECOND AVENUE. SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624-3060 (206) 621-7323 (fax)

1

2

PRELIMINARY COURT APPROVAL

3

This matter came before the Court on the parties' request for preliminary approval of the

4 foregoing Settlement. The Court has reviewed the proposed Settlement and preliminarily approves it.

5 This Settlement is subject to final approval and shall not take final force or effect until the procedures

6
outlined in the Settlement relating to notice and final approval have been complied with. 7

8

The current case schedule is hereby suspended pending completion of the procedures outlined

9 in the Settlement relating to notice and final approval.

10

r1t/Pa- I Dated this lday of

,2008.

11 12

~ ~~~~~
<15h'&o&ifi@y Arnold

13

United States Magistrate Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SETTLEMENT AGREEMENT - 11

BUDGE & HEIYf. P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624·3060 (206) 621·7323 (fax)

DOC # Offender Name

1

755089 AJETO, ROMEO S.

2

706101 ALCANTARAJAMES, EVA M.

3

301616 ANDERSON, ROBIN J.

4

966278 ANDREAS, ROBERT D.

5

945687 ASKEW, KELLY E.

6

927928 AUSTIN, MICHAEL D.

7

824037 AYRES, GLEN K.

8

909932 BAKER, MICHAEL D.

9

812500 BANKS, CHRISTINA M.

10

817101 BERG, JUDY K.

11

773744 BERGMAN, MICHELLE M.

12

727177 BERRY, KIMBERLY A.

13

791265 BETHEL, CHRISTOPHER L.

14

984561 BLACKMAN, REGINALD K.

15

775801 BOOKER, MARCUS

16

962061 BROWN, JASON

17

893142 BROWN, RONALD D.

18

846240 BUSH, MARK A.

19

224440 CAHOON, RODNEY G.

20

824079 CALDWELL, KIM C.

21

821750 CANTIN, KATHY M.

22

944282 CARAWAY, JANET M.

23

851825 COFFIN, JEREMI C.

24

959183 COMENOTE, LAURA R.

25

922485 CONERLY, FREDRICK

26

820611 CONNER, MARK A. JR.

27

752105 COOK, HARRY D.

28

897887 CORTEZ, JONATHAN A.

29

713713 CUEVAS, MELISSA E.

30

955534 DANIELS, RONALD

31

247946 DETWILER, DENNIS F.

32

727371 DODD, KRISTINA K.

33

900845 DONALD, AARON C.

34

773272 DUNN, RORILEE L.

35

979053 ECRET, JAMES R.

36

830676 ELLIOTT, KIM M.

37

812627 ESTES, BONNI L.

38

736958 ESTRADA, JUAN T.

39

735749 EVERETT, JOHN D.

40

707139 FAULAAU, ROGER

41

308647 FAY, ROBIN L.

42

742512 FIJALKA, DAVID W.

43

721979 FLOOR, CORNELIS W.

44

996577 FORMAN, ROBERT E.

45

795515 FREZELL, PHILLIP M.

46

907647 GANT, SCOTT E.

47

925571 GAYLES, RONNIE L.

48

895498 GHEBRE, MICHAEL

49

275612 GILSTRAP, MARK L.

50

629835 GOSNEY, DONALD D.

51

998306 GRANT, ISAAC R.

Attachment 1

52

826949 GRIGSBY, JOHN V.

53

835348 GROSSMAN, WILLIAM C.

54

755524 HANLEY, BRIAN L.

55

797038 HARBIN, RANDALL S.

56

854358 HARRIS, CLARENCE W.

57

843688 HAWKINS, KERRI J.

58

237557 HAZELWOOD, EMIL L.

59

818392 HEDGLIN, JASON K.

60

966914 HILL, SAMUEL J.

61

836274 HOLMES, MATILDA

62

732143 HOLMES, REGINA

63

718253 HOPE, FRANCIS J.

64

731854 HORTON, TERRENCE D.

65

909026 HOUSE, LONNIE D.

66

836784 HOWERTON, JAMIE E.

67

885528 HUTSON, KENNETH J.

68

837262 JOHNSON, DANA M.

69

281293 JOHNSON, MICHAEL E.

70

808426 JOHNSON, MICHAEL R.

71

858207 JOHNSTON, PHILLIP R.

72

880939 JONES, JENNIFER M.

73

249715 JONES, REGINALD P.

74

235299 JORDAN, GREGORY L.

75

919999 JUSTICE, WYNONA D.

76

869307 KAUZLARICH, ALBERT G.

77

762025 KESSLER, NATHAN P.

78

786045 KIKTA, ANTHONY JR.

79

989047 KIMBROUGH, ANDREW B.

80

750135 KIPPES, DAVID M.

81

859800 KNOTT, DAVID G.

82

745719 LANDIS, CODY L.

83

719565 LANDSMAN, LISA J.

84

899976 LAW, JOANN E.

85

624475 LAY, DANIEL E.

86

957547 LEE, RICHARD M.

87

853421 LONG, HAROLD

88

812564 LONG, LUCAS C.

89

862710 LOPEZ, WENDY K.

90

629803 LORENTZEN, DANIEL

91

716944 MANUEL, LATRIA P.

92

782004 MARCUM, RICHARD A.

93

953150 MARSON, RANDY W.

94

807578 MARTIN, KATRINA M.

95

859997 MARTIN, VINCENT E.

96

958949 MARTINEZ, ANDREZ Q.

97

897374 MCCOSHUM, JONATHAN B.

98

922238 MCDONALD, TONY L.

99

735154 MCNARY, KENNETH E.

100

882162 MCQUEENEY, CYNTHIA J.

101

660267 MENEZES, LAWRENCE A.

102

896854 MESSENGER. SYLVIA R.

103

852317 MICHELSON, IDA L.

104

728039 MLECZEK, GILBERT W.

105

243940 MOITORET, PHILIP J.

106

797684 MONSON, DARLENE J.

107

776031 MONTEZ, DENISE R.

108

889392 MOROVIC, DARCEE E.

109

791729 MOULTRY, DARRICK L

110

272308 NAGY. JAMES M.

111

882202 NOLAND, ELAINE

112

986104 NORRIS, JOHN H.

113

953176 NUDER, TIMOTHY J.

114

302395 OPENIANO, GEORGE G.

115

247975 ORANGE, CARL

116

872379 PASSFIELD, MELISSA D.

117

243209 PAULEY, ROBERT G.

118

254483 PHAIR, SIDNEY C. JR.

119

239029 PLY,JIMMYD.

120

899449 POOL, MALCOLM E.

121

244393 POWELL, JAMES

122

727046 PRUID, LENNY R.

123

914604 QUARTIMON, AMOS

124

754697 RANKIN, LEIF F.

125

787039 RAYA, DONNA L

126

250294 REEVES, JOHN C.

127

976119 RICHARDSON, JAMES R.

128

982484 ROWAN. BRANDY D

129

832343 SAYERS. JENNIFER

130

926470 SCHULLER. ROGER A.

131

880226 SCOGGINSMCGOLDRICK, ROCHELLE

132

781787 SELF, NORRIS S.

133

267411 SIMPSON, BOBBY J.

134

714068 SMITH, TERRY S.

135

825792 SPARKMAN, SHERRY L

136

690436 SPEARMAN, THEODORE E.

137

979772 STENSON, ETIENNE P.

138

295415 STEPHENS, JAMES C.

139

831130 STRONG, ALBERT E.

140

997717 SUDON, ROBERT E.

141

972900 TAISACAN, ALFRED J.

142

764421 TANO, NICHOLAS F.

143

302223 TAYLOR, PAULINE

144

244174 TENNYHILL, RUSSELL J.

145

713124 THAYER, DEBBIE M.

146

821021 THOMPSON, LEEANN E.

147

863063 TIMMONS. JOY S.

148

873225 TURNER, KENYEDA T.

149

305088 TWEEDELL, TERRI A.

150

898666 VASQUEZ, CARLO F.

151

901009 VERNOR, MAURICE L.

152

975196 WADE, LYNETTE L.

153

843635 WAFER, ROBERT L.

154

947635 WARD, BENJAMIN A.

155

622403 WARD, JOHN P.

•

156

885074 WELCH, KENNETH D.

157

848629 WHETSELL, JACQUELYNE R.

158

877833 WHITE, MICHELLE L.

159

898300 WIDENER, GARY F.

160

890862 WILCOX, JASON A.

161

288531 WILLIAMS, MARK E.

162

866475 WOODFIN, LAURA O.

163

898948 WOODS, JOHRAN A.

164

830547 WRIGHT, CHARLENE A.

165

266192 WRIGHT, WILLIAM M.

166

805072 ZENTNER, MICHAEL J.

 
 Case 3:06-cv-05625-JKA Document 56 Filed 01/08/2008 Page 1 of 2

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

8

RICKY PERALEZ, on behalf of himself and others similarly situated,

9

Case No. C06-5625 JKA

10

Plaintiff, v.

11 THE WASHINGTON DEPARTMENT OF

12

CORRECTIONS, HAR0LD CLARKE, DOUGLAS WADDINGTON, BELINDA

13

STEWART, KEVIN SHANAHAN, JEAN STEWART, and JOHN DOES 1-20,

14

employees and officials of the Washington Department of Corrections and/or Stafford

15 Creek Corrections Center,

ORDER RE: (1) Plaintiff’s Motion for Partial
Summary Judgment; and (2) Clarifying/Amending Class
Description

16

Defendants.

17

18

This matter comes before the court on Plaintiff’s Motion for Partial Summary Judgment (Dkt# 42).

19 The court has considered all materials submitted in support of and in response to said motion. Additionally,

20 the court has considered the oral arguments of counsel offered this date.

21

Having considered the foregoing, and having engaged in dialogue with counsel on the record regarding

22 plaintiff’s motion for partial summary judgment and the interrelationship between counsels’ arguments and the

23 class definition as it currently stands (Dkts# 33 and 37), the parties have stipulated, with one exception, to the

24 court granting plaintiff’s motion for partial summary judgment and amending/clarifying the class definition as

25 follows:1

26

27 1The parties’ stipulation above referenced excludes the issue of whether plaintiff’s burden is a “substantial” or
28 “motivating” factor in excluding otherwise eligible ADA disabled individuals. Having considered the cited case law as well
as oral argument on this issue, the court concludes that “motivating factor” is the appropriate test. See Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063-68 (9th Cir. 2005).

ORDER Page - 1

Case 3:06-cv-05625-JKA Document 56 Filed 01/08/2008 Page 2 of 2

1 IT IS HEREBY ORDERED AS FOLLOWS:

2

1. Pla intiff’s Motion for Partial Summary Judgment. T o the extent the Washington State

3 Department of Corrections (DOC) utilizes a practice of scoring inmate offenders according to the numerical

4 profiling system known as PULHESDXT – and then uses that score as a motivating factor to exclude otherwise

5 eligible ADA disabled offenders from the DOC’s Work Release Program – such practice violates Title II of

6 the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and 42 U.S.C. 1983.

7

2. Clarification/Amendment of Class Definition. The class definition is hereby clarified/amended

8 to read as follows:

9

All otherwise eligible ADA d isabled inmates of the Washington Department of Corrections

10

(DOC) who, from October 30, 2003, through January 2008 have been partially or wholly denied

11

participation in the DOC Work Release program, provided that a PULHESDXT score of “3"

or “4" was a motivating factor in determining the work release denial.
12

13
Dated this 8th day of January, 2008.
14

15

/s/ J. Kelley Arnold

16

J. Kelley Arnold, U.S. Magistrate Judge

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ORDER Page - 2

 
 Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 1 of 7

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

9 RICKY PERALEZ,

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Plaintiff,

11

v.

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THE WASHINGTON STATE DEPARTMENT OF CORRECTIONS;

13

HAROLD CLARKE; DOUGLAS WADDINGTON; BELINDA STEWART;

14

KEVIN SHANAHAN; JEAN STEWART; and JOHN DOES 1-20, employees and

15

officials of the Washington Department of Corrections and/or Stafford Creek

16 Corrections Center,

Case No. C06-5625 JKA ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

17

Defendants.

18

19

This matter comes before the court on plaintiff’s Motion for Class Certification (Doc.#16). This court

20 has considered all materials submitted in support of and in response to said motion as well as the files and

21 records herein. Additionally, the court heard oral argument by counsel the 9th day of August 2007.

22

This civil rights action was commenced by plaintiff, Ricky Peralez, against the Washington State

23 Department of Corrections (DOC) and state officials and employees. Plaintiff was sentenced to 20 months at

24
DOC. Plaintiff seeks damages alleged to arise from defendants’ intentional discrimination in violation of Title
25
II of the Americans with Disabilities Act (ADA) (42 U.S.C. 12132), Section 5034 of the Rehabilitation Act
26
of 1973 (29 U.S.C.794(a), and his equal protection rights pursuant to the Fourteenth Amendment of the United
27

28 States Constitution and 42 U.S.C. 1983. Plaintiff asserts that while in the custody of DOC, he was

ORDER Page - 1

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 2 of 7

1 denied admission into the DOC work release program because he was physically disabled in violation of those

2 laws established to protect his rights above set forth. I t appears undisputed that plaintiff suffers from

3 rheumatoid arthritis and is generally wheelchair bound. In his complaint plaintiff gave notice of his intent to

4 maintain this action as a class action pursuant to FRCP 23.

5
Plaintiff, Ricky Peralez, now seeks class certification and permission to act as the designated class

6
representative under FRCP 23(a) and 23(b). Plaintiff seeks damages on behalf of the class which he asks to
7

be defined as:
8

9

All disabled inmates of the Washington Department of Corrections who, since October 30, 2003 have been partially or wholly denied participation

10

in the Department of Corrections’ work release program because of a disability.

11

Defendants resists the motion, alleging as follows:

12

1. The plaintiff has failed to demonstrate that the class is so numerous that joinder of all members is

13

impracticable per FRCP 23(a)(1);

14

2. The class representative does not meet the commonality requirement per FRCP 23(a)(2);

15

3. The class representative does not meet the typicality requirement per FRCP 23(a)(3); and

16
4. Questions of law or fact common to members of the class do not predominate over any questions

17

affecting only individual members, and a class action is not superior to other methods for the
18

19

fair and efficient adjudication of the controversy per FRCP 23(b)(3).

20

DISCUSSION

21

It is undisputed that DOC may permit a prisoner to participate in a work release program pursuant

22 to RCW 72.65 during the last 180 days of his/her sentence, WAC 137-56–040. DOC operates a work

23 release program with 670 beds housed in 15 facilities throughout the state. The transitional program

24 anticipates that participants will obtain counseling and employment within 10 days of entry. The
25 participants reside at and remain in the custody of DOC but are allowed to work away from the work
26 release site. It is contemplated that the participant will be employed for most of the 180 days remaining in
27
his sentence, acquire some funds to be available upon release, and continue his employment after release.
28

ORDER Page - 2

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 3 of 7

1 It is further contemplated that the participant will be placed at a work release facility reasonably close to

2 this anticipated post release residence in order to facilitate the benefit of the work release job placement.

3

At oral argument defense counsel agreed as follows: (1) DOC has the legal obligation to comply

4 with the ADA; (2) DOC uses numeric codes (1 through 5) to assess physical functionality of inmates

5
through a system referred to as PULHES or PULHESDXT to specifically classify each inmate with respect
6
to various aspects of their bodies functional capacity, including physical capability, upper extremities, lower
7
extremities, eyesight, hearing, and overall functional work capacity; (3) that every inmate who had an
8
9 overall rating of 3 was automatically denied work release; and (4) the DOC work release program is one to

10 which disabled inmates have a right. Defendants deny, however, that they have a policy to

11 categorically deny work release to disabled inmates.

12

Plaintiff was initially sentenced to 20 months at DOC with an earned early release date

13 approximating November 4, 2006. In March of 2006 plaintiff’s counselor advised him that he was eligible
14 to participate in the program. In May of 2006 plaintiff requested transfer to the work release facility at
15 Lincoln Park. Plaintiff also alleges that he sought placement elsewhere in the work release program.
16
Repeated requests through the chain of command all the way to the Secretary of DOC all resulted in the
17
same response. The ultimate denial from the Secretary of DOC advised the plaintiff that Lincoln Park was
18
19 the only facility he was eligible for admittance, and that he could not participate because of his inability to 20 climb the stairs. When plaintiff requested permission to grieve it was returned with a box checked “not a
21 grievable issue,” and a handwritten notation which stated that “transfers cannot be grieved.” Ultimately,

22 following correspondence to DOC from legal counsel, plaintiff was admitted into the work release

23 program approximately 25 days before his release date. DOC Policy Directive 300.500 precludes from

24 work release eligibility those who “do not meet the medical criteria for placement as determined by facility
25 health care staff.” There is, however, no evidence that such a determination was made by health care staff,
26 other than exclusion because it was determined plaintiff’s disability precluded
27
climbing stairs. Although defendants now allege that the purpose for the denial was an error, and should
28

ORDER Page - 3

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 4 of 7
1 have been on the basis that Lincoln Park was restricted to inmates with mental health and developmental 2 disability issues, there is no evidence that the denial was based on any consideration other than plaintiff’s 3 disability. P laintiff offers an opinion by Dr. Stern that if he had reviewed the plaintiff’s medical history 4 he would have recommended against work release placement, however there is no evidence that such an
5
opinion was rendered at the time of the denial.
6
1. Numerosity. Defendants allege that plaintiff offers no evidence that numerous other inmates
7
were denied work release privileges because of their disability. The court has separately considered
8
9 plaintiff’s motion to compel and has directed defendants to produce 2000 legal face sheets in addition to 10 700 names and contact information of persons who have a “no stairs” record notation. Defendants have 11 agreed to deliver this information to plaintiff no later than August 22, 2007. Plaintiff offers a 2001
12 Department of Justice Study confirming that 12% of state prison inmates suffer from physical disabilities. 13 Defendants acknowledge that 70,000 inmates have passed through the DOC in the past three and one-half 14 years. Because defendants choose not to classify inmates as “disabled” and because they have no data base 15 from which “disabled” inmates may be drawn, they seem to suggest that plaintiff cannot meet its
16
“numerosity” burden. This court disagrees. Defendants acknowledge that 7,656 offenders have been
17
transferred from prison to work release facilities in the past three years. The evidence submitted by plaintiff
18
19 is more than speculative. DOC houses inmates from the four corners of the State of Washington. It is 20 reasonable to assume that potential class members would reside throughout the state. It is also reasonable 21 to assume that, as a whole, they would not be sophisticated in the ways necessary to assert the claims 22 plaintiff Peralez seeks. Plaintiff has made it clear at oral argument that plaintiff is not seeking long term
23 damages, but that the focus of the claim (as well as the potential class) is for loss of income during the 180 24 day work release program. Should potential claimants wish to opt out of the class on the basis that the 25 failure to receive counseling, training and employment during work release led to a longer and larger 26 income loss they would of course be free to do so.
27
28
ORDER Page - 4

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 5 of 7

1

2. Commonality of questions of law and fact. As plaintiff asserts, the commonality requirement

2 is satisfied where the lawsuit challenges a systemwide practice or policy that affects all of the putative class

3 members. Armstrong v. Davis, 275, F.3d 849, 868 (9th Cir. 2001). Certainly in the case at bar common
4 questions of fact exist with regard to the putative class including, but not limited to: (1) was the member
5
disabled; (2) did the member seek work release; (3) could the disability have been accommodated; (4) was
6
the member denied; and (5) did defendants exclude disabled inmates from work release as a matter of
7
policy. R esolution of those factual issues could give rise to common questions of law, again including but
8
9 not limited to: (1) did defendants engage in a policy that violated Title II of the ADA; (2) did defendants
10 engage in a policy that violated the Rehabilitation Act, and (3) is the 1983 claim foreclosed by the ADA

11 claim, or is it a separate cause of action.

12

The court has given a great deal of consideration to defendants’ position that there are potential

13 factual distinctions such as: (1) the nature of the disability; (2) suitability for potential employment; (3)
14 work release compatibility with release plans; and (4) would work release pose a safety/health issue for the
15 inmate. This court is sensitive to the tension between protecting the inmates rights under the ADA and
16
protecting their rights under the Eighth Amendment. It is certainly within the realm of contemplation that a
17
disabled person might not be suitable for work release if the environment would clearly jeopardize this
18
19 health and safety or the health and safety of others, and that the issue could not be reasonably resolved by 20 way of accommodation. Not all inmates are considered for work release. The criteria are set forth in DOC
21 Policy Directive 300.500: (1) no felony detainers; (2) no Immigration and Customs Enforcement detainers;

22 (3) in state release plan; (4) no recommendation for civil commitment; (5) meet medical criteria for

23 placement as determined by facility health care staff; (6) no First Degree Murder conviction – unless

24 approved as part of a Mutual Agreement Program; (7) no high media profile; (8) no imminent threat to
25 others that cannot be mitigated; (9) no First Degree Rape conviction within three years; and (10) meet
26 DOC recognized local agreement criteria. These criterial are designed to protect both the public and the
27
inmate. Clearly criteria (5) “Do not meet the medical criteria for placement as determined by facility
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ORDER Page - 5

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 6 of 7

1 health care staff” may relate to Eighth Amendment issues. Defense counsel asserts “chrono notes”

2 (chronological entry of notes by staff in inmates files recording inmate contacts) are kept in each inmates

3 file. Those notes would reveal in each inmates case whether or not the facility health care staff engaged in

4 that kind of analysis and whether or not that was a consideration with regard to work release allowance or

5
placement. There is no such indication in the case of plaintiff Peralez. Should the court grant class action
6
status, a special Master could be appointed to review the “chrono notes” in each claimant’s file to
7
determine whether or not that analysis or review in fact occurred. Plaintiff has substantiated the
8
9 commonality requirement.

10

3. Typicality of the claim of plaintiff Peralez to those of the proposed class. Defendants assert

11 that plaintiff cannot meet the typicality requirement by conclusory allegations. Given the nature of the

12 claim and the record to date, there is nothing to suggest that the claim of Peralez would be atypical to those

13 of the proposed class, except to the extent the “chrono notes” discussed above would suggest that work

14 release privileges were not denied on the basis of the inmates disability. Plaintiff’s legal theory is plain and

15 simply that he was denied work release privileges because he was disabled. Although the nature of the

16
disability may differ, the typicality requirement is met if denial was based on disability and failure to
17
accommodate. As discussed above, the damage claims would be typical to the extent they would cover the
18
19 lost income during the 180 day work release period.

20

4. Predomination of questions of law and fact over questions affecting individual class

21 members./Adequacy of class protection For the reasons discussed above the court is satisfied that

22 questions of law and fact (discussed above) regarding the class would predominate over whatever

23 questions might be applicable to an individual class member. Because the court has found sufficient

24 evidence of “typicality” and because there has been no evidence submitted in contravention of plaintiff’s

25 counsels assertions regarding their fitness to prosecute the claim of plaintiff and the proposed class.

26

5. Suitability of Class Action. This court finds that the number of potential class members, the

27
commonality of the issues, the likely value of the claims, and the difficulty in pursuing the claims
28

ORDER Page - 6

Case 3:06-cv-05625-JKA Document 33 Filed 08/10/07 Page 7 of 7

1 individually, suggest that the matter is suitable for class action certification. Certainly the need to avoid

2 inconsistent or varying adjudications of individual claims would be supported by class action status.

3

ORDER

4

Accordingly, the court hereby certifies as a class:

5
All disabled inmates of the Washington Department of Corrections who, since

6
October 30, 2003, have been partially or wholly denied participation in the
7

DOC work release program because of a disability, and whose claim is limited
8

9

to no more than 180 days of lost wages.

10

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Dated this 10th day of August, 2007.

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/s/ J. Kelley Arnold

J. Kelley Arnold, U.S. Magistrate Judge
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ORDER Page - 7

 
 Case 3:06-cv-05625-JKA Document 77 Filed 08/05/08 Page 1 of 4

1_ _ _ FILED

LODGED

_ _ _ _ RECEIVED

1
AUG 05 2008
2

u.s. Q.ERK DISTRICT COURT

3

WESlERIl DISIllItr a' WASHINGTON AT _

DEPIIIY

4

The Honorable J. Kelley Arnold

5

6

7

8

UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON AT TACOMA

10

11

)

RICKEY PERALEZ, on behalf of himself and )

12 others similarly situated,

) NO. C06-5625 JKA

13

Plaintiff,

) ) STIPULATION AND ORDER GRANTING

14 v.

) FINAL APPROVAL TO CLASS ACTION ) SETTLEMENT

15

)

16 THE WASHINGTON DEPARTMENT OF

) )

17 CORRECTIONS, HAROLD CLARKE,

)

DOUGLAS WADDINGTON, BELINDA )

18 STEWART, KEVIN SHANAHAN, JEAN )

19

STEWART, and JOHN DOES 1-20, employees and officials of the Washington

) )

20 Department ofCorrections and/or Stafford )

Creek Corrections Center,

)

21

)

22

)

Defendants.

)

23 -----------------------)

24

STIPULATION

25 The parties, by and through their counsel of record, hereby stipulate as follows:
26 1. On May 12, 2008, the parties appeared before the Court to request preliminary
27

28

approval of a proposed settlement agreement in this matter (hereinafter the

STIPULATION AND ORDER - 1

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SillTE 910 SEATTLE, WASHINGTON 98104
(206) 624-3060
(206) 623-7323 (fax)

Case 3:06-cv-05625-JKA Document 77 Filed 08/05/08 Page 2 of 4

1

"Settlement"). Following the hearing, the Court preliminarily approved the Settlement

2

as requested, and the preliminarily-approved settlement was entered as Docket No. 59.

3 2. According to the Settlement, the parties were required to comply with various
4

5

procedures relating to notification of class members and determination of attorneys'

6

fees and costs to class counsel and then return to the Court to request fmal approval of

7

the Settlement.

8

3. Pursuant to the terms of the Settlement, class counsel du1y filed a motion for

9

attorneys' fees and costs. On or about May 21, 2008, the Court entered an order and 10

11

judgment granting attorneys' fees and costs to class counsel [Dkts. 66, 67].

12

4. Thereafter, the parties sought and obtained court approval for the form of notice to be

13

sent to class members, pursuant to the terms of the Settlement [Dkt. 69].

14 5. Following court approval of the form of notice, counsel for defendants mailed and
15

16

published the notice forms in the manner required by the terms of the Settlement. The

17

notice forms duly advised class members of their right to file objections to the terms of

18

the Settlement and further advised class members that the Court would hold a Final

19

Approval Hearing on August 5, 2008 at 9:30 a.m. at the United States Courthouse,

20 1717 Pacific Avenue, Tacoma, Washington in Courtroom D at which it wou1d
21

22

consider any objections and determine whether to give final approval to the

23

Settlement.

24

6. Pursuant to the terms of the Settlement and the court-approved form of notice, the time

25 for filing objections has now expired, and no class member has filed an objection or
26 otherwise indicated an objection to the Settlement.
27

28 STIPULATION AND ORDER - 2

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE. SUITE 910 SEAITLE. WASHINGTON 98104
(206) 624-3060
(206) 623-7323 (fax)

Case 3:06-cv-05625-JKA Document 77 Filed 08/05/08 Page 3 of 4

I

7. The parties believe that the Settlement entered at Dkt. 59 should be fmally approved

2

and request that, at the hearing on August 5, 2008 at 9:30 a.m., the Court enter the

3 subjoined order granting fmal approval to the Settlement. The parties further stipulate
4

5

that this action may be dismissed with prejudice, but that the Court should retain

6

jurisdiction to monitor and, if necessary, enforce the Settlement in a manner consistent

7

with its terms.

8 Dated this 30th day of July, 2008.
9

10

11

~~ /sLv\ --~--------------

12

13

14

15

16

_ _~~~~ffi/_~~~~_ _ _ __ _
Mark C. Jobson, WSBA # 22171

17

Assistant Attorney General

Defense Counsel 18

19 ORDER
20 This matter came before the Court at a duly scheduled hearing in open court on August 5,
21
22 2008 at 9:30 a.m. The purpose of the hearing was to determine whether to grant fmal approval to the

23 Settlement Agreement that was preliminarily approved by this Court on May 12, 2008 [Dkt. 59].

24 Class Counsel and defense counsel appeared at the hearing and presented the foregoing stipulation.
25 Having considered the foregoing stipulation, and deeming itself duly advised, the Court
26
hereby finds that the procedures relating to notice, as approved by the Court, appear to have been 27

28 STIPULATION AND ORDER - 3

BUDGE & HEIPT, p.L.L.e.
705 SECOND AVENUE, SUITE 910 SEATTLE, WASHINGTON 98104
(206) 624·3060
(206) 623·7323 (fax)

Case 3:06-cv-05625-JKA Document 77 Filed 08/05/08 Page 4 of 4

I followed, that no objections have been received to the Settlement and that the· Settlement appears to

2 be fair, reasonable and adequate. Accordingly, the Court hereby orders as follows:

3 1. The May 12, 2008 Settlement Agreement [Dkt. 59] is hereby finally approved;
4

5

2. This action is hereby dismissed with prejudice; and

6

3. The Court shall retain jurisdiction to monitor and, if necessary, enforce the Settlement in a

7

manner consistent with its terms.

8

DATED this 5th day of August, 2008.

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28 STIPULATION AND ORDER - 4

BUDGE & HEIPT, P.L.L.C.
705 SECOND AVENUE, SUITE 910 SEATILE, WASHINGTON 98104
(206) 624·3060 (206) 623·7323 (fax)

 
 Case 3:06-cv-05625-JKA Document 83 Filed 10/29/08 Page 1 of 3

1

2

3

4

5

6

7 The Honorable 1. Kelley Arnold
8

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11
RICKEY PERALEZ, on behalf of 12 himself and others similarly situated,

NO. C06-5625 JKA

13

Plaintiff,

14

v.

15 THE WASHINGTON STATE DEPARTMENT OF CORRECTIONS;
16 HAROLD CLARKE; DOUGLAS WADDINGTON; BELINDA
17 STEWART; KEVIN SHANAHAN; JEAN STEWART; and JOHN DOES 1-
18 20, employees and officials of the Washington Department of Corrections
19 and/or Stafford Creek Corrections Center,

STIPULATION AND ORDER OF DISMISSAL AS TO DEFENDANTS STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS

20

Defendants.

21

22

IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff(s), Roger

23 Hotrum, and the Defendant State of Washington, Department of Corrections, acting by and

24 through Robert M. McKenna, Attorney General, and Mark C. Jobson, Assistant Attorney

25 General, that the above-entitled action as to all Defendants may be dismissed with prejudice

26 and without costs, this matter having been fully settled and compromised between the Plaintiff

Case 3:06-cv-05625-JKA Document 83 Filed 10/29/08 Page 2 of 3

1 and Defendant State of Washington, according to the terms set forth in a Release executed by

2
the parties. A copy of the Release is filed along with this Stipulation.

3

DATED this -z"1- day of October, 2008.

4

5

ROBERT M. MCKENNA

Attorney General 6

7

8

Mark C. Jobson, WSBA #22171

9

Assistant Attorney General

Attorneys for Defendant State of Washington 10

11 Plaintiff
12

13

14

Roger Hotrum, Pro Se

15

16

17

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20

21

22

23

24

25

26

Case 3:06-cv-05625-JKA Document 83 Filed 10/29/08 Page 3 of 3

1 ORDER
2 THIS MATTER having come before the undersigned judge of the above-entitled Court,
3 based on the foregoing stipulation, now, therefore,
4 IT IS HEREBY ORDERED That by agreement of the parties, Plaintiff Roger Hotrum's
5 claim for damages shall be dismissed with prejudice and without costs or interest to any party.
6 DONE IN OPEN COURT this _ _ day of October, 2008.
7

8

9
10 Presented by:
11 ROBERT M. MCKENNA
12 Attorney General
11 3 . ~4M~
15 Mark C. Jobson \N",) 1}p..-:d!:'"2"Z.\-T\
Assistant Attorney General 16 Attorneys for Defendant
17

THE HONORABLE J. KELLY ARNOLD Approved as to Form and Notice of Presentation Waived: Plaintiff
Roger Hotrum, P~ c.. :t=-12~~ \

18

19

20

21

22

23

24

25

26

 
 Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 1 of 8
CASREF,CLOSED,CONSENT,JURYDEMAND
U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:06−cv−05625−JKA

Peralez v. Washington Department of Corrections et al Assigned to: Judge J. Kelley Arnold Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 10/26/2006 Date Terminated: 08/05/2008 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Rickey Peralez on behalf of himself and others similarly situated

represented by Edwin S Budge BUDGE &HEIPT 705 2ND AVE STE 910 SEATTLE, WA 98104 206−624−3060 Email: ed@budgeandheipt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik J Heipt BUDGE &HEIPT 705 2ND AVE STE 910 SEATTLE, WA 98104 206−624−3060 Fax: FAX 621−7323 Email: erik@budgeandheipt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Washington Department of Corrections employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center
Defendant Harold Clarke employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center
Defendant Douglas Waddington employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center

represented by Mark Conlin Jobson ATTORNEY GENERAL'S OFFICE (40126−OLY) 7141 CLEANWATER DRIVE SW PO BOX 40126 OLYMPIA, WA 98504−0126 360−586−6300 Fax: FAX 1−360−586−6655 Email: MarkJ@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 2 of 8

Defendant
Belinda Stewart employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center
Defendant
Kevin Shanahan employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center
Defendant
Jean Stewart employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center
Defendant
John 1−20 Does employees and officials of the Washington Department of Corrections and/or Stafford Creek Corrections Center

represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Conlin Jobson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/26/2006 11/01/2006 11/13/2006
11/14/2006 11/16/2006 11/16/2006
11/22/2006 11/30/2006
12/14/2006

# Docket Text
1 COMPLAINT against defendant(s) all defendants (Summons(es) issued) (Receipt # S4926) , filed by Rickey Peralez. (Attachments: # 1 Civil Cover Sheet)(RM, ) (Entered: 10/31/2006)
2 MINUTE ORDER REFERRING CASE to Judge Karen L Strombom (RM, ) (Entered: 11/01/2006)
3 NOTICE of Appearance by attorney Mark Conlin Jobson on behalf of Defendants Jean Stewart, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan (Jobson, Mark) (Entered: 11/13/2006)
Referral of case to United States Magistrate Judge Karen L Strombom docketed in error. Case correctly assigned to United States District Judge Franklin D Burgess for all further proceedings.(RM, ) (Entered: 11/14/2006)
4 MINUTE ORDER REGARDING DISCOVERY AND DEPOSITIONS (RM, ) (Entered: 11/16/2006)
5 MINUTE ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT FRCP 26f Conference Deadline is 2/23/2007.Initial Disclosure Deadline is 3/9/2007. Joint Status Report due by 3/16/2007; (RM, ) (Entered: 11/16/2006)
6 ANSWER to Complaint with JURY DEMAND by Jean Stewart, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan.(Jobson, Mark) (Entered: 11/22/2006)
7 ACCEPTANCE OF SERVICE of summons and complaint by counsel on behalf of Defendants Jean Stewart, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan on 11−27−2006. (Budge, Edwin) (Entered: 11/30/2006)
8 NOTICE of Unavailability of counsel Mark Conlin Jobson for Defendants Jean Stewart, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan from 12/22/06 − 1/2/07 to 2/3/07 − 2/13/07 (Jobson, Mark) (Entered: 12/14/2006)

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 3 of 8

03/09/2007 03/15/2007 03/19/2007 03/22/2007 03/23/2007 03/23/2007 05/14/2007 05/16/2007 05/16/2007 06/14/2007 06/14/2007 06/14/2007 06/14/2007
06/14/2007
06/15/2007
06/21/2007 07/02/2007

9 INITIAL DISCLOSURES Filed by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan.(Jobson, Mark) (Entered: 03/09/2007)
10 JOINT STATUS REPORT signed by all parties; estimated Trial Days: 10.. (Heipt, Erik) (Entered: 03/15/2007)
11 ORDER ON CONSENT to proceed before a Magistrate Judge; Case reassigned to Judge J. Kelley Arnold for all further proceedings; by Judge Franklin D. Burgess. (RM, ) (Entered: 03/19/2007)
12 Stipulated MOTION and Proposed Order to Extend Class Certification Motion Deadline by Plaintiff Rickey Peralez. Noting Date 3/22/2007.(Heipt, Erik) (Entered: 03/22/2007)
13 STIPULATED MOTION &ORDER to extend class certification motion deadline from 4/24/07 to 5/24/07 by Judge J. Kelley Arnold. (TW, ) (Entered: 03/24/2007)
Class certification motion deadline NOTED on motion calendar;Noting Date 5/24/2007. (TW, ) (Entered: 03/24/2007)
14 Stipulated MOTION and Order to Extend Class Certification Motion Deadline by Plaintiff Rickey Peralez. Noting Date 5/14/2007.(Heipt, Erik) (Entered: 05/14/2007)
15 ORDER granting 14 Stipulated Motion to Extend Class Certification Motion Deadline by Judge J. Kelley Arnold. Deadline extended from 5/24/07 to 6/15/07.(KAM, ) (Entered: 05/16/2007)
Noting Date reset re Class certification motion deadline: New Noting Date 6/15/2007 (per Doc #15). (KAM, ) (Entered: 05/16/2007)
16 MOTION to Certify Class by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order)Noting Date 6/29/2007.(Heipt, Erik) (Entered: 06/14/2007)
17 MOTION to Compel Responses to Written Discovery by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order)Noting Date 6/29/2007.(Heipt, Erik) (Entered: 06/14/2007)
18 DECLARATION of Edwin S. Budge filed by Plaintiff Rickey Peralez re 16 MOTION to Certify Class, 17 MOTION to Compel Responses to Written Discovery (Heipt, Erik) (Entered: 06/14/2007)
19 DECLARATION of Rickey Peralez filed by Plaintiff Rickey Peralez re 16 MOTION to Certify Class, 17 MOTION to Compel Responses to Written Discovery (Attachments: # 1 Pages 32−61 of Declaration of Rickey Peralez)(Heipt, Erik) (Entered: 06/14/2007)
20 DECLARATION of Erik J. Heipt in Support of Motion for Class Certification and Motion to Compel Responses to Written Discovery filed by Plaintiff Rickey Peralez re 16 MOTION to Certify Class, 17 MOTION to Compel Responses to Written Discovery (Attachments: # 1 Pages 103−153 from Declaration of Erik J. Heipt)(Heipt, Erik) (Entered: 06/14/2007)
21 STIPULATION AND PROPOSED ORDER Re−Noting Plaintiff's Motions Re: Class Certification and Motion to Compel Discovery by parties re 16 MOTION to Certify Class, 17 MOTION to Compel Responses to Written Discovery. (Jobson, Mark) (Entered: 06/15/2007)
22 STIPULAITON and ORDER Re−Noting Plaintiff's 17 MOTION to Compel Discovery and 16 MOTION to Certify Class : New Noting Date is 7/6/2007. Signed by Judge J. Kelley Arnold.(PL, ) (Entered: 06/21/2007)
23 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 17 MOTION to Compel Responses to Written Discovery. (Attachments: # 1 # 2 # 3 # 4 # 5)(Jobson, Mark) (Entered: 07/02/2007)

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 4 of 8

07/02/2007
07/06/2007 07/06/2007 07/06/2007 07/06/2007 07/11/2007 08/03/2007 08/09/2007
08/09/2007 08/10/2007 08/14/2007
08/20/2007 08/27/2007 08/30/2007 09/13/2007

24 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 16 MOTION to Certify Class. (Attachments: # 1 Declaration of Mark Jobson# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Delcambre Declaration# 6 May Declaration# 7 Exhibit 1# 8 Exhibit 2# 9 Stern Declaration# 10 Stewart Declaration# 11 Exhibit 1# 12 Exhibit 2# 13 Exhibit 3# 14 Trogdon−Oster Declaration# 15 Exhibit 1)(Jobson, Mark) (Entered: 07/02/2007)
25 PROPOSED ORDER (Unsigned) re 17 MOTION to Compel Responses to Written Discovery (Revised Proposed Order) (Heipt, Erik) (Entered: 07/06/2007)
26 PROPOSED ORDER (Unsigned) re 16 MOTION to Certify Class (Proposed Order) (Heipt, Erik) (Entered: 07/06/2007)
27 REPLY, filed by Plaintiff Rickey Peralez, TO RESPONSE to 17 MOTION to Compel Responses to Written Discovery (Heipt, Erik) (Entered: 07/06/2007)
28 REPLY, filed by Plaintiff Rickey Peralez, TO RESPONSE to 16 MOTION to Certify Class (Heipt, Erik) (Entered: 07/06/2007)
29 ORDER Setting Oral Argument on Motions 16 MOTION to Certify Class, and 17 MOTION to Compel Responses to Written Discovery: Motion Hearing set for 8/9/2007 at 09:30 AM in D Courtroom before Hon. J. Kelley Arnold. by Judge J. Kelley Arnold. (AS, ) (Entered: 07/11/2007)
30 STIPULATION AND PROPOSED ORDER Allowing Production of Confidential Documents by parties. (Jobson, Mark) (Entered: 08/03/2007)
31 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold − Dep Clerk: K Miller; Pla Counsel: Erik J Heipt; Def Counsel: Mark C Jobson; Time of Hearing: 9:30 A.M.; Courtroom: D; Session #: TAC070809; Motion Hearing held on 8/9/2007 re 16 MOTION to Certify Class filed by Rickey Peralez − (Court will issue a written Order promptly), 17 MOTION to Compel Responses to Written Discovery − (GRANTED) filed by Rickey Peralez. Re: Motion to Compel (Doc # 17) − Court directs that 2000 legal face sheets, 2000 work release screening denials and 700 contact information on "no stairs" persons be provided to plaintiff by 8/22/07. Parties to draft an Order outlining the court's directive for presentation. All provided information is subject to the Stipulated Protective Order. (KAM, ) (Entered: 08/10/2007)
32 STIPULATION AND ORDER Allowing Production of Confidential Documents by Judge J. Kelley Arnold. (KAM, ) (Entered: 08/10/2007)
33 ORDER granting 16 Plaintiff's Motion to Certify Class by Judge J. Kelley Arnold.(KAM, ) (Entered: 08/13/2007)
34 MOTION to Modify Order re Plaintiff's Motion for Class Certification by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Attachments: # 1 Proposed Order)Noting Date 8/31/2007.(Jobson, Mark) Modified on 8/15/2007 (ECS, ). (Entered: 08/14/2007)
35 ORDER GRANTING re 17 PLAINTIFF'S MOTION to Compel Responses to Written Discovery by Judge J. Kelley Arnold. (KAM, ) (Entered: 08/20/2007)
36 RESPONSE, by Plaintiff Rickey Peralez, to 34 MOTION to Certify Class State Defendants' Motion To Modify Order Granting Plaintiff's Motion for Class Certification. (Heipt, Erik) (Entered: 08/27/2007)
37 ORDER granting defendants' 34 Motion to Modify Order granting Plaintiff's Motion for Class Certification, to the extent that the modification does not reflect substantive change in the court's original order by Judge J. Kelley Arnold.(CMG, ) (Entered: 08/31/2007)
38 SCHEDULING ORDER:Jury Trial is set for 6/16/2008 at 09:00 AM in D Courtroom before Hon. J. Kelley Arnold.,Joinder of Parties due by 10/28/2007,Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 1/18/2008,Motions due by 1/18/2008,Discovery completed by 2/17/2008,Dispositive motions due by 3/18/2008,Amended Pleadings due by

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 5 of 8

11/16/2007 11/16/2007
11/29/2007 11/29/2007 11/29/2007 12/10/2007
12/14/2007 12/14/2007 12/14/2007
12/14/2007 12/17/2007 12/17/2007 12/17/2007

3/3/2008,39.1 Settlement Report due by 3/18/2007,Motions in Limine due by 5/17/2008,Pretrial Order due by 5/17/2008,Trial briefs to be submitted by 6/2/2008,Proposed voir dire/jury instructions due by 6/2/2008,Proposed Findings of Fact and Conclusions of Law to be submitted by 6/2/2008,Plaintiffs Pretrial Statement due by 4/17/2008.,Defendants Pretrial Statement due by 4/27/2008.,Conference of Attorneys completed by 5/7/2008.by Judge J. Kelley Arnold. (CMG, ) (Entered: 09/14/2007)
39 STIPULATION Re: Extension of Time for Defendant's Response To Plaintiff's Requests for Admission Dated October 17, 2007 by parties. (Jobson, Mark) Modified on 11/19/2007 (ECS, ). (Entered: 11/16/2007)
40 ERRATA re 39 Stipulation Re: Extension of Time for Defendant's Response To Plaintiff's Requests for Admission Dated October 17, 2007 by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Jobson, Mark) (Entered: 11/16/2007)
41 MOTION To Determine Sufficiency of Defendants' Responses to Requests for Admission by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order)Noting Date 12/14/2007.(Budge, Edwin) (Entered: 11/29/2007)
42 MOTION for Partial Summary Judgment by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order)Noting Date 12/21/2007.(Budge, Edwin) (Entered: 11/29/2007)
43 DECLARATION of Edwin S. Budge filed by Plaintiff Rickey Peralez re 42 MOTION for Partial Summary Judgment, 41 MOTION To Determine Sufficiency of Defendants' Responses to Requests for Admission (Attachments: # 1 # 2 Exhibit # 3 Exhibit)(Budge, Edwin) (Entered: 11/29/2007)
44 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 41 MOTION To Determine Sufficiency of Defendants' Responses to Requests for Admission. (Attachments: # 1 Declaration of Kathryn Lake)(Jobson, Mark) (Entered: 12/10/2007)
45 REPLY, filed by Plaintiff Rickey Peralez, TO RESPONSE to 41 MOTION To Determine Sufficiency of Defendants' Responses to Requests for Admission (Budge, Edwin) (Entered: 12/14/2007)
46 DECLARATION of Edwin S. Buddge filed by Plaintiff Rickey Peralez re 41 MOTION To Determine Sufficiency of Defendants' Responses to Requests for Admission (Budge, Edwin) (Entered: 12/14/2007)
47 ORDER finding as moot 41 Motion to determine sufficiency of Defendants' responses to requests for admission; and requesting a response by the parties regarding oral argument for for the 42 motion for partial summary judgment by Judge J. Kelley Arnold.(CMG, ) Modified on 12/17/2007: adding link for the motion for partial summary judgment (CMG, ). (Entered: 12/17/2007)
parties response re Oral argument agreement due 12/20/07, per 47 Order on Motion for Miscellaneous Relief(CMG, ) (Entered: 12/17/2007)
NOTICE of Docket Text Modification re 47 Order on Motion for Miscellaneous Relief, : added link for the motion for spartial summary judgment (CMG, ) (Entered: 12/17/2007)
Set Oral Argument on 42 MOTION for Partial Summary Judgment : Motion Hearing set for 1/8/2008 at 09:30 AM in D Courtroom before Hon. J. Kelley Arnold. (AS, ) (Entered: 12/17/2007)
48 NOTICE of Unavailability of counsel Mark Conlin Jobson for Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan from January 9−14, 2008; February 1−9, 2008 to April 12−19, 2008. (Jobson, Mark) (Entered: 12/17/2007)

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 6 of 8

12/19/2007
12/21/2007 12/21/2007 12/21/2007 12/26/2007 12/26/2007 01/08/2008
01/08/2008 01/17/2008 01/22/2008
04/30/2008 05/12/2008 05/12/2008
05/15/2008 05/15/2008

49 DISCLOSURE OF EXPERT WITNESSES Filed by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Attachments: # 1 Exhibit 1−Defendants' Rule 26(a)(2) Disclosure Statement# 2 Exhibit 2−Defendants' Rule 26(a)(2) Disclosure Statement)(Jobson, Mark) (Entered: 12/19/2007)
50 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 42 MOTION for Partial Summary Judgment. Oral Argument Requested. (Jobson, Mark) (Entered: 12/21/2007)
51 DECLARATION of Jean Stewart DOC Chief of Classification filed by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan re 42 MOTION for Partial Summary Judgment (Jobson, Mark) (Entered: 12/21/2007)
52 DECLARATION of Devon Schrum DOC Grievance Program Manager filed by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan re 42 MOTION for Partial Summary Judgment (Jobson, Mark) (Entered: 12/21/2007)
53 REPLY, filed by Plaintiff Rickey Peralez, TO RESPONSE to 42 MOTION for Partial Summary Judgment (Budge, Edwin) (Entered: 12/26/2007)
54 DECLARATION of Edwin S. Budge filed by Plaintiff Rickey Peralez re 42 MOTION for Partial Summary Judgment (Budge, Edwin) (Entered: 12/26/2007)
55 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold − Dep Clerk: Allyson Swan; Pla Counsel: Edwin Budge; Erik Heipt; Def Counsel: Mark Jobson; Session #: TAC080108−091032; Motion Hearing held on 1/8/2008 re 42 MOTION for Partial Summary Judgment filed by Rickey Peralez − Oral argument held. The Court will issue a written order. (AS, ) (Entered: 01/08/2008)
56 ORDER re Plaintiff's 42 Motion for Partial Summary Judgment; and clarifying/amending class descriptions by Judge J. Kelley Arnold.(CMG, ) (Entered: 01/08/2008)
57 STIPULATION AND PROPOSED ORDER REGARDING CLASS DEFINITION by parties. (Budge, Edwin) (Entered: 01/17/2008)
58 STIPULATION AND ORDER 57 amending the class definition as follows: ALl otherwise eligible ADA disabled inmates of the Washington Department of Corrections (DOC) who, from October 30, 2003 through January 2008 have been partially or wholly denied participation in the DOC Work Release Program by reason of a disability by Judge J. Kelley Arnold. (CMG, ) (Entered: 01/24/2008)
Set Hearings: In−court Hearing for presentation of proposed settlement agreement set for 5/12/2008 at 10:30 AM in D Courtroom before Judge J. Kelley Arnold. (AS, ) (Entered: 04/30/2008)
59 SETTLEMENT AGREEMENT approved by Judge J. Kelley Arnold. (KAM, ) (Entered: 05/12/2008)
60 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold− Dep Clerk: Allyson Swan; Pla Counsel: Edwin Budge; Def Counsel: Mark Jobson; Session #: TAC080512; In Court Hearing held on 5/12/2008 re: preliminary approval of settlement agreement. Mr. Jobson states for the record the Federal and State claims addressed, which will be cited in the notice to class members. Colloquy re: time line. The Court preliminarily approves the proposed settlement agreement. (AS, ) (Entered: 05/12/2008)
61 MOTION for Attorney Fees and Costs by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order Granting Plaintiff's Motion for Attorneys' Fees and Costs) Noting Date 5/30/2008; (Budge, Edwin) (Entered: 05/15/2008)
62 DECLARATION of Edwin S. Budge in Support of Plaintiffs' Motion for Attorneys' Fees and Costs filed by Plaintiff Rickey Peralez re 61 MOTION for Attorney Fees and Costs (Budge, Edwin) (Entered: 05/15/2008)

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 7 of 8

05/15/2008 05/20/2008 05/21/2008
05/21/2008 05/21/2008 06/06/2008 06/11/2008 06/13/2008 06/18/2008 06/23/2008 06/27/2008
07/30/2008 08/01/2008
08/01/2008
08/05/2008
08/05/2008 09/15/2008

63 DECLARATION of Erik J. Heipt in Support of Plaintiffs' Motion for Attorneys' Fees and Costs filed by Plaintiff Rickey Peralez re 61 MOTION for Attorney Fees and Costs (Budge, Edwin) (Entered: 05/15/2008)
64 ERRATA re 61 MOTION for Attorney Fees and Costs by Plaintiff Rickey Peralez. (Attachments: # 1 Proposed Order)(Budge, Edwin) (Entered: 05/20/2008)
65 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 61 MOTION for Attorney Fees and Costs. (Jobson, Mark) (Entered: 05/21/2008)
66 ORDER granting 61 Motion for Attorney Fees, by Judge J. Kelley Arnold.(DF, ) (Entered: 05/21/2008)
67 JUDGMENT BY COURT per 66 ORDER granting Dkt #61 Motion for Attorney Fees. (DF, ) (Entered: 05/21/2008)
68 STIPULATION AND PROPOSED ORDER Regarding Approval of Class Action Notice and Claim Form by parties. (Attachments: # 1 Exhibit A)(Jobson, Mark) (Entered: 06/06/2008)
69 STIPULATION and ORDER approving the 68 Class Action Notice and Claim Form by Judge J. Kelley Arnold. (CMG) (Entered: 06/12/2008)
Set Hearings: In−court Hearing for final approval of settlement set for 8/5/2008 at 9:30 AM in D Courtroom before Judge J. Kelley Arnold. (AS) (Entered: 06/13/2008)
70 STIPULATION AND PROPOSED ORDER Regarding Amendment of Settlement: Timing of Payment To Class Members by parties. (Jobson, Mark) (Entered: 06/18/2008)
71 STIPULATION AND ORDER granting 70 PROPOSED ORDER regarding amendment of Settlement; Timing of Payment To Class Members, by Judge J. Kelley Arnold. (DF) (Entered: 06/23/2008)
72 DECLARATION of Kathryn Lake Re: Defendant's First Settlement Progress Report by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Attachments: # 1 Exhibit 1 thru 4)(Jobson, Mark) (Entered: 06/27/2008)
73 DECLARATION of Roger M. Hotrum re Settlement. (CMG) (Entered: 07/31/2008)
74 DECLARATION of of Paralegal Kathryn Lake Re: Defendant's Second Settlement Progress Report by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Jobson, Mark) (Entered: 08/01/2008)
75 REPORT Defendants' Second Settlement Progress Report by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Jobson, Mark) (Entered: 08/01/2008)
76 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold− Dep Clerk: K Miller; Pla Counsel: Edwin S Budge; Def Counsel: Mark Conlin Jobson; Time of Hearing: 9:30 AM; Courtroom: D; Session #: TAC080804; In Court Hearing re: Final Approval of Settlement held on 8/5/2008. Parties submit a Proposed Stipulated Order Granting Final Approval to Class Action Settlement. Court GRANTS the Stipulated Order as there was no objection indicated by anyone present for the hearing. (KAM) (Entered: 08/05/2008)
77 STIPULATION AND ORDER Granting Final Approval to Class Action Settlement by Judge J. Kelley Arnold. (KAM) (Entered: 08/05/2008)
78 MOTION to Enforce Settlement Agreement by Roger Hotrum, propria persona. (Attachments: # 1 Notice of Motion Docket, # 2 Certificate of Service) Noted

Case: 3:06­cv­5625 As of: 09/13/2012 03:16 PM PDT 8 of 8

09/24/2008 09/30/2008
10/02/2008
10/07/2008
10/09/2008 10/29/2008 11/06/2008 11/10/2008 11/28/2008 03/11/2010

Correctly by Clerk for 10/3/2008 (CMG) Modified on 9/24/2008: to correct filer (CMG). (Entered: 09/24/2008)
NOTICE of Docket Text Modification re 78 MOTION to Enforce : corrected the filer of this document (CMG) (Entered: 09/24/2008)
79 RESPONSE, by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan, to 78 MOTION to Enforce. (Jobson, Mark) (Entered: 09/30/2008)
80 ORDER re 78 MOTION to Enforce Settlement: the Court requests the following no later than 10/13/08: (1) a further response from the Attorney General detailing to what extent, if any, the court was advised of Mr. Hotrum's declaration at the August 5 hearing; and (2) response from counsel for the class. Specifically, the court is interested in knowing what class counsel communicated to the moving party. The Motion to Enforce Settlement Agreement is RENOTED for 10/17/2008. Signed by Judge J. Kelley Arnold. (CMG) (Entered: 10/03/2008)
81 NOTICE of Settlement and Compromise Re: Roger Hotrum Motion to Enforce Settlement by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan (Jobson, Mark) (Entered: 10/07/2008)
82 Letter from Roger Hotrum re Defendants' 79 Response to Motion to Enforce. (CMG) (Entered: 10/16/2008)
83 STIPULATION and Order of Dismissal As To Defendants State of Washington Department of Corrections by parties. (Jobson, Mark) (Entered: 10/29/2008)
84 EXHIBIT Release re 83 Stipulation by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Jobson, Mark) (Entered: 11/06/2008)
85 STIPULATED ORDER OF DISMISSAL as to Defendants State of Washington Department of Corrections by Judge J. Kelley Arnold. (KAM) (Entered: 11/10/2008)
86 NOTICE of Correspondence to the Attorney General's Office Re: settlement check filed by Roger Hotrum. (KAM) (Entered: 12/05/2008)
87 NOTICE of Defendants' Final Report to the Court ; filed by Defendants Jean Stewart, John 1−20 Does, Washington Department of Corrections, Harold Clarke, Douglas Waddington, Belinda Stewart, Kevin Shanahan. (Jobson, Mark) (Entered: 03/11/2010)