1

THE HONORABLE BARBARA J. ROTHSTEIN

2

Duffy v. Riveland

3

4

PC-WA-0003-0006

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10 SEANG. DUFFY, etal.,

11

Plaintiffs,

12 v.

13 CHASE RTVELAND, et al.,

14

Defendants.

15

No. C92-1596R
DECLARATION OF LEONARD J. FELDMAN IN SUPPORT OF MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION

16

17

I, Leonard J. Feldman, declare under penalty of perjury under the laws of the State of

18 Washington as follows:

19

1. I am counsel for plaintiff Sean Duffy in the above-captioned matter and make

20 this declaration based on my own personal knowledge.

21

2. This action arises out of the ongoing failure of officials of the Washington

22 Department of Corrections (DOC) to accommodate the special needs of deaf and hearing

23 impaired prisoners. Plaintiffs brought this action to redress DOC's failure under (i) the

24 Americans with Disabilities Act of 1990 (ADA), (ii) the Rehabilitation Act of 1973, (iii) 42 25 U.S.C. § 1983, and (iv) RCW 2.42.120.
3. After substantial discovery, dispositive motions, and a Ninth Circuit appeal 26
(involving plaintiff Duffy), the parties executed a proposed settlement agreement resolving all 27

28
DECLARATION OF LEONARD J.
FELDMAN - 1

HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1 of the plaintiffs' claims. The settlement agreement and related documents were submitted to

2 the Court in early June 1998. The parties requested that the Court provisionally approve the

3 proposed settlement and direct notice to all putative class members. The Court did so by

4 Order dated June 8, 1998.

5

4. I understand - based on communications with defendants' counsel and others -

that notice of the proposed settlement was ¢i) distributed to all known deaf and hearing6

impaired prisoners in DOC institutions, and (ii) posted in prominent locations in DOC 7

institutions throughout the state. Members of the proposed class were instructed that any 8
objections to the proposed settlement should be mailed to the Court on or before August 1, 9
1998. 10
5. Counsel for plaintiffs subsequently determined that members of the proposed 11
class should be given additional time to respond. The parties subsequently agreed, and the
12 Court ordered, that any objections to the proposed settlement agreement would be considered

13 timely if mailed before August 15, 1998. On August 20 — five days after the August 15

14 deadline — an employee of Heller Ehrman reviewed the Court file to determine whether any

15 such objections had been submitted.

16

6. As explained in plaintiffs' moving papers regarding class certification, plaintiffs'

17 counsel believe that there are over 100 deaf and hearing-impaired prisoners in Washington.

18 Nevertheless, the Court file in this matter contained objections (as of August 20, 1998) of only

19 eight prisoners, some of whom apparently are not deaf or hearing-impaired. One other

20 prisoner — Clayton Gerlach - filed a document supporting the proposed settlement agreement.

21 Copies of plaintiffs' Memorandum in Support of Motion for Order Approving Settlement of

22 Class Action ("Plaintiffs' Supporting Memorandum," filed herewith) and related pleadings

23 were served on each of these prisoners. However, in order to protect each prisoner's privacy,

24 we did not send any prisoner copies of another prisoner's objections.

25

7. Notwithstanding the few objections that were found in the Court file, plaintiffs'

26 counsel firmly believe that the settlement agreement in this matter is fair, adequate, and

27

28
DECLARATION OF LEONARD J.
FELDMAN - 2

HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1 reasonable. That agreement provides many important benefits to deaf and hearing-impaired

2 prisoners in Washington, as is illustrated by Plaintiffs' Supporting Memorandum.

3

8. The proposed settlement agreement is not, however, one-sided. Defendants in

4 this matter have repeatedly argued that federal law allows prison officials substantial flexibility

in managing prison facilities. In response to this argument, the DOC policy gives appropriate 5
weight to safety and security concerns that may arise in the prison environment. This lawsuit 6
could not have been settled without recognizing these concerns. After much discussion and 7
debate, appropriate language was drafted on this point. 8
9. Plaintiffs are entitled to reasonable attorney fees and costs under 29 U.S.C 9
§ 794a(b), 42 U.S.C. § 12205, and 42 U.S.C. § 1988. Although plaintiffs' fees and costs
10
totaled more than $400,000 at the time of settlement discussions, defendants agreed to pay and
11
plaintiffs' counsel agreed to accept $150,000 ~ less than 40 percent of the amount requested ~
12
for those services. Again, plaintiffs' counsel believe that the parties' agreement on this issue
13
is fair, adequate and reasonable.

14

10. As is also explained in Plaintiffs' Supporting Memorandum, the proposed

15 settlement agreement contains provisions that allow plaintiffs' counsel to monitor defendants'

16 compliance with DOC Policy 490.050, a copy of which is attached to the settlement 17 agreement. Plaintiffs' counsel are committed to ensuring that DOC complies with its new

18 policy and taking appropriate action if DOC fails to do so.

19

DATED this 2,\** day of August, 1998, at Seattle, Washington.

20

21
Leonard J. Feldman
22

23

24

25

26

27

28
DECLARATION OF LEONARD J. FELDMAN - 3

HELLER EHRMAN WHITE & MCAULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

 
 1

THE HONORABLE BARBARA J. ROTHSTEIN

2 Duffy v. R¡veland
i I I I I I I I I mi 111 I I I I I 1111111 IIÍ
3

4

P¯C:WÄ-ÖÕÖ3-Õ¯ÖÖ8¯

5

6

7

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10 SEAN G. DUFFY, etal.,

12

13

v.

Plaintiffs,

)

)

)

No. C92-1596R

)

)

1 4 CHASE RIVELAND, etal.,

)

15

)

Defendants.

)

16

)

17

)

18

19

20

MEMORANDUM IN SUPPORT OF MOTION FOR ORDER

APPROVING SETTLEMENT OF CLASS ACTION 21

22

(Note on motion calendar: September 11, 1998)

23
24
25
26
27
28 HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS 6100 COLUMBIA CENTER
701 FIFTH AVENUE SEATTLE, WASHINGTON 98104-7098
TELEPHONE (206) 447-0900

1

I. INTRODUCTION

2

Pursuant to Fed. R. Civ. P. 23(e), the named plaintiffs -– Sean Duffy and Charles

Atkins ~ move the Court for an Order approving the class action settlement agreement in this

matter. A proposed order approving the settlement, to which all parties have stipulated, is

filed herewith, along with a proposed order that addresses the issues set forth below.

6

H. BACKGROUND

7

This action arises out of the ongoing failure of officials of the Washington Department

of Corrections (DOC) to accommodate the special needs of deaf and hearing-impaired

prisoners. Plaintiffs brought this action to redress DOC's failure under (i) the Americans with

10 Disabilities Act of 1990 (ADA), (ii) the Rehabilitation Act of 1973, (iii) 42 U.S.C. § 1983,

11 and (iv) RCW 2.42.120. Feldman Decl. ¶ 2 (filed herewith).

12

After substantial discovery, dispositive motions, and a Ninth Circuit appeal (involving

13 plaintiff Duffy), the parties executed a proposed settlement agreement resolving all of the

14 plaintiffs' claims. The settlement agreement and related documents were submitted to the 15 Court in early June 1998. The parties requested that the Court provisionally approve the

¯lfil1l1 proposed settlement and direct notice to all putative class members. The Court did so by 17' Order dated June 8, 1998. Feldman Decl. ¶ 3.

¯!8l Pursuant to the Court's Order, notice of the proposed settlement was (i) distributed to
all known deaf and hearing-impaired prisoners in DOC institutions, and (ii) posted in

20
prominent locations in DOC institutions throughout the state. Members of the proposed class 211|

were instructed that any objections to the proposed settlement should be mailed to the Court on 22ll
or before August 1, 1998. Feldman Decl. ¶ 4. 23||
In order to give those persons additional time to respond, the parties subsequently 24¡|
agreed, and the Court ordered, that any objections to the proposed settlement agreement would 25|¦
be considered timely if mailed before August 15, 1998. On August 20 ~ five days after the 26|¦
August 15 deadline — counsel for plaintiffs reviewed the Court file to determine whether any
2278" MEMORANDUM IN SUPPORT OF

HELLER EHRMAN WHITE & M°AULIFFE

¯l

ATTORNEYS

6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098 TELEPHONE (206) 447-0900

1 such objections had been submitted. Feldman Decl. ¶ 5. We found that seven prisoners had 2 submitted such "objections" (Feldman Decl. ¶ 6), each of which is addressed in Section

III.B.2 beløw.

ffl. DISCUSSION

A. Uniter Fed. R. Civ. P. 23(e), The Proposed Settlement Should Be Approved If It Is Fundamentally Fair, Adequate, And Reasonable.
6
Rul· 23(e) provides in relevant part: "A class action shall not be dismissed or
7
compromised without approval of the court . . . ." Fed. R. Civ. P. 23(e).1 Although the
8
rule "is silent respecting the standard by which a proposed settlement is to be evaluated, the
9
universally applied standard is whether the settlement is fundamentally fair, adequate and 10
reasonable." Officers for Justice v. Civil Service Commission. 688 F.2d 615, 625 (9th Cir. 11
1982). 121

The Officers for Justice court also discussed the procedure for addressing objections to 13

14 a proposed settlement. After recognizing that class members must receive adequate notice (a

15 requirement that has clearly been satisfied here), the Officers for Justice court stated:

16

[E]ach objection must be made part of the record; those members raising substantial objections must be afforded an opportunity to be heard with the

17

assistance of privately retained counsel if so desired, and a reasoned response by the court on the record; and objections without substance and which are

18

frivolous require only a statement on the record of the reasons for so considering the objection.

19 Id. at 624. Again, we address the objections filed in this matter in Section III.B.2 below,
20 I
after first discussing the nature and scope of the proposed settlement agreement.

21

22 I

23

24

25

1 Rule 23(e) continues: "and notice of the proposed dismissal or compromise shall be

given to all members of the class in such manner as the court directs." Fed. R. Civ. P. 23(e).

26 This clause has clearly been satisfied, as the parties have given notice to the proposed class in

the manner set forth in the Court's June 8 order provisionally approving the proposed 27 I settlement and directing notice to all putative class members. Feldman Decl. ¶ 4.

28
MEMORANDUM IN SUPPORT OF MOTION FOR ORDER APPROVING SETTLEMENT*©F CLASS ACTION - 2

HELLER EHRMAN WHITE & M9\ULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098
TELEPHONE (206) 447-0900

1 B. The Proposed Settlement Is Fundamentally Fair, Adequate, And Reasonable.

2

1. The Proposed Settlement Agreement Provides Broad And Signifícant Relief

To Deaf And Hearing-Impaired Prisoners In Washington.

3

The settlement agreement in this matter (Exhibit 1, attached hereto) resolves plaintiffs'

4

claims for injunctive relief. By separate agreement, the parties also resolved Mr. Duffy's

5

claims for monetary damages. In all respects, the relief is fair, adequate, and reasonable.

6

Feldman Decl. ¶ 7 (incorporating by reference Sections III.B.l.a-c below).

7

a. Injunctive Relief.

8
The settlement agreement obligates defendants to implement a new policy — DOC 9

Policy 490.050 ~ a copy of which is attached to the settlement agreement. Defendants also
10

must provide certain documents to plaintiffs' counsel so that we may monitor their

compliance. If necessary, the Agreement "may be enforced by appropriate motion in this Court . . . ." Settlement Agreement at 4.
13
DOC Policy 490.050 is substantial. With regard to interpreters, the policy requires

that DOC provide "certified interpreters" to deaf prisoners at all major disciplinary hearings and "qualified interpreters" at many other prison programs and activities. DOC Policy at 3,
16
7. The policy also sets forth certain requirements that must be satisfied before a person may

be considered a "qualified interpreter." Id,, at 2. In particular, "qualified interpreter" is
18
defined as follows:

[A] sign language interpreter who: 1) is approved in writing by a certified interpreter as able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary; and 2) promises in writing to abide by the Registry of Interpreters for the Deaf (R.I.D.) code of ethics for sign language interpreters. A qualified interpreter may only be approved by a certified interpreter. A certified interpreter is also a qualified interpreter.

24 DOC Policy at 2 (emphasis added). The monitoring provisions in the settlement agreement
25 (discussed elsewhere) allow plaintiffs' counsel to ensure compliance with this important
26 provision.
27

28 MEMORANDUM IN SUPPORT OF

MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 3

H E L L E R E H R M A N W H I T E & M<ÄULIFFE ATTORNEYS

6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE. WASHINGTON 98104-7098

1

Although Mr. Duffy originally filed his lawsuit because defendants failed to provide

2 adequate interpreters at prison hearings, the DOC policy does much more than simply resolve

3 that dispute. It establishes a procedure for identification of both deaf and hearing-impaired

4 prisoners, requires that defendants provide a broad range of auxiliary aids and services to such

5 prisoners (such as hearing aids and tele-typewriters), and creates a grievance procedure if such

6 services are not properly made available. E.g.. id. at 2-6, 10.

7

The agreement is not, however, one-sided. Defendants in this matter have repeatedly

8 argued that federal law allows prison officials substantial flexibility in managing prison

9 facilities. In response to this argument, the DOC policy gives appropriate weight to safety and

10 security concerns that may arise in the prison environment. E.g.. içL at 5. This lawsuit could

11 not have been settled without recognizing these concerns. After much discussion and debate,

12 appropriate language was drafted on this point. Feldman Decl. ¶ 8.

13

b. Monetary Relief.

14

Claims for monetary relief were not pursued on behalf of putative class members and

15 are not resolved or compromised in any way by the settlement agreement. With regard to Mr.
16 Duffy, defendants agreed to pay and he agreed to accept $6,000. Because the class settlement
17 does not include damages, Rule 23(e) does not apply. In any event, the settlement agreement
18 (leaving claims for monetary relief by putative class members undisturbed and resolving Mr.
19 Duffy's claims for a total of $6,000) ~ easily satisfies the legal standard set out in Officers for
20 Justice.
21 c. Attorney Fees And Costs.
22 Applicable federal law allows plaintiffs to recover their reasonable attorney fees and
23 costs. See 29 U.S.C § 794a(b); 42 U.S.C. § 12205; 42 U.S.C. § 1988. Although plaintiffs'
24 fees and costs totaled more than $400,000 at the time of settlement discussions, defendants
25 agreed to pay and plaintiffs' counsel agreed to accept $150,000 - less than 40 percent of the
26 amount requested — for those services. The undersigned counsel submit that the parties'
27

28 MEMORANDUM IN SUPPORT OF
MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 4

HELLER EHRMAN WHITE & MCAUUFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098 T n » u n u t ítt\A\ AA·r„nann

1 agreement on this issue is "fair, adequate and reasonable," as required by Officers for Justice.

2 688 F.2d at 625. Feldman Decl. ¶ 9.

3

2. The Objections To the Proposed Settlement Agreement Lack Substance.

4

As explained in plaintiffs' supporting memoranda regarding class certification, we

5 believe that there are over 100 deaf and hearing-impaired prisoners in Washington.

6 Nevertheless, the Court file in this matter (as of August 20, 1998) contained objections of only 7 eight prisoners, some of whom are not deaf or hearing-impaired.2 Two other prisoners —

8 Clayton Gerlach and Walter Steele ~ filed documents supporting the proposed settlement

9 agreement (Exhibits 3-4, attached hereto). Feldman Decl. ¶ 6. We respond to the objections 10 briefly below.3

11

a. Efren Lopez Gamboa

12

Although Mr. Gamboa is apparently not a putative class member, he asserts that

13 "certified" (as opposed to "qualified") interpreters must be provided at disciplinary hearings.

14 Gamboa Objection at 1-2 (Exhibit 5, attached hereto). DOC Policy 490.050 similarly

15 provides: "During major disciplinary hearings, certified interpreters must provide assistance

16 to [deaf] offenders." DOC Policy at 7. Mr. Gamboa's point therefore has already been

17 addressed.

18

Mr. Gamboa also claims that the term "certified" is essential to ensure that DOC

19 employs competent interpreters. Gamboa Objection at 2. As explained above (on page 3), the

20 DOC policy addresses this competence issue in two ways: (1) by requiring "certified"

21 interpreters at disciplinary hearings, and (2) providing a clear definition of a "qualified

22

23

24

2 David Beauchamp, for example, specifically notes in his letter to the Court: "My

disability is that I'm in a wheelchair." Beauchamp Letter at 1 (Exhibit 2, attached hereto).

25

3 Copies of this memorandum and related pleadings were served on each prisoner who

26 filed an objection to the proposed settlement (in addition to counsel of record). However, in

order to protect each prisoner's privacy, we did not send any prisoner copies of another

27 prisoner's objections. Feldman Decl. ¶ 6.

28 MEMORANDUM IN SUPPORT OF
MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 5

HELLER EHRMAN WHITE & M°AUUFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

interpreter." Contrary to Mr. Gamboa's concern, DOC cannot in its sole discretion designate

a person as a "qualified interpreter."

3

b. George Rocky Manos

4

Mr. Manos claims that the proposed settlement agreement does not include prisoners

who become disabled during their incarceration. Manos Petition at 4 (Exhibit 6, attached

hereto). Mr. Manos is incorrect. A disabled offender is any. offender "who has a severe

disability," including a hearing impairment, regardless of when that disability may develop.

8 DOC Policy at 1.

9

Mr. Manos notes that the United States Supreme Court has held that the ADA applies

10 to state prisons and that DOC has not complied with that statute. Manos Petition at 3-4. The

11 proposed settlement agreement requires DOC to comply with the ADA (as well as other

12 federal and state statutes) by implementing DOC Policy 490.050.

Finally, Mr. Manos complains that DOC routinely ignores its own procedures. Manos

Petition at 4-5. As noted above, the proposed settlement agreement allows plaintiffs' counsel

to monitor and, if necessary, enforce DOC Policy 490.050. Settlement Agreement at 4. As
1 fì
noted in the declaration of counsel filed herewith, the undersigned counsel will seek
appropriate relief if DOC fails to comply with this policy. Feldman Decl. ¶ 10.
18
c. Dana H. Leger
19
Mr. Leger cannot hear without a hearing aid, which he does not have. Leger Motion 20
at 1-2 (Exhibit 7, attached hereto). DOC Policy 490.050 includes hearing aids in the list of
21
auxiliary aids and services that must be provided to hearing-impaired prisoners. E.g.. DOC 22
Policy at 1 (definition of "Assistive Device"). 23
Mr. Leger complains that "it seems only the attorneys make out by collecting 24
$150,000." Leger Motion at 3. As explained above (on pages 4-5) and in the declaration of 25
counsel filed herewith (at paragraph 9), (i) federal law authorizes recovery of attorney fees and
26

27 2 8 MEMORANDUM IN SUPPORT OF
MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 6

H E L L E R £HRMAN WHITE & M<ÄUUFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1 costs in this matter, and (ii) plaintiffs' counsel accepted far less attorney fees than they had

2 expended at the time of settlement discussions in this matter.

3

Finally, Mr. Leger suggests that "the problems are not fixed when they continue to go

4 on, and ths handicapped are so blatantly discriminated against by staff." Leger Motion at 4.

5 Again, the proposed settlement agreement attempts to resolve this issue by preventing such 6 discrimination in the future.4

7

d. William D. Smith

8

Mr. Smith asks that the Court "[r]ecognize that there are more older and aging

9 prisoners . . . and that the prison system must address our impaired hearing problems." Smith

10 Letter at 4 (Exhibit 8, attached hereto). Although the proposed settlement does not say 11 anything about "older and aging prisoners," it does apply to prisoners who are hearing-

12 impaired. DOC Policy at 2. Neither age discrimination nor access to veteran benefits (Smith

13 Letter at 5) are at issue here.

14

Mr. Smith also refers to difficulty hearing orders of prison staff and announcements to

15 the general prison population. Smith Letter at 3. DOC Policy 490.050 addresses this issue in

16 a section entitled "General Identification and Notification." DOC Policy at 5. That Section

17 includes (i) ID cards to help prison staff identify deaf and hearing-impaired prisoners, (ii)

18 procedures "to instruct staff to contact hearing-impaired offenders using effective means of

19 communication," and (iii) "[v]isual alerting devices . . . if feasible." Idj

20

e. Bennett Titus

21

Mr. Titus wrote three separate letters to the Court. In his July 16 and July 23 letters,

22 he complains that the proposed settlement does not included "closed caption movie videos."

23
Titus July 16 Letter at 1 and July 23 Letter at 1-2 (Exhibit 9, attached hereto). In fact, DOC

24

25

4 Mr. Leger also complains about a number of other problems, such as over-crowding.

We will not respond to those complaints, as they are not at issue in this litigation.

26

5 Mr. Smith also complains about plaintiffs' recovery of attorney fees. Smith Letter at 1.

27 That issue is addressed on pages 4-7 above.

28 MEMORANDUM IN SUPPORT OF MOTION FOR*)RDER APPROVING SETTLEMENT?©F CLASS ACTION - 7

HELLER EHRMAN WHITE & MCAUUFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1 Policy 490.050 obligates DOC to provide "[a]uxiliary aids which are reasonable, effective, and 2 appropriate," including "captioned television/video text displays." DOC Policy at 3. In 3 dealing with prisoner requests for such services, the policy adds: "The method, auxiliary aid,

4 or service requested by the disabled offender will be given substantial consideration . . . ."

5 Id, at 1.

6

Next, Mr. Titus complains about access to telephone services.6 Titus July 21 Letter at

7 1 (also part of Exhibit 9) and July 23 letter at 3-4. DOC Policy 490.050 includes tele-

8 typewriters (TTYs) in the list of auxiliary aids and services that must be provided to hearing-

9 impaired prisoners. E.g.. DOC Policy at 3 (addressing "Effective Communications"). In

10 fact, Section XIII of the policy is devoted entirely to "Telephone Use." DOC Policy at 7.

11 Once again, Mr. Titus' complaint ~ like those discussed above ~ has already been addressed.

12

g. Earl J. Sweeten

13

Mr. Sweeten asserts that DOC routinely transfers disabled prisoners to inappropriate

14 facilities, including Airway Heights Corrections Center. Sweeten Letter at 1 (Exhibit 11,

15 attached hereto). DOC Policy 490.050 addresses this issue by stating that prisoners "shall not

16 be precluded from assignment to a minimum facility, pre-release, or work release based solely

17 upon their disabilities." DOC Policy at 9; see also idL at 5 (prisoners "shall be placed in a

18 facility consistent with [their] safety and security needs").7

19

IV. CONCLUSION

20

For all of the above reasons, the Court should approve the proposed class action

21 settlement agreement in this matter and sign the orders filed herewith. The agreement is

22

23

24

6 Mr. Chapman ~ who appears to have submitted to the Court a series of summaries of

25 past grievances and grievance responses (Exhibit 10, attached hereto) ~ similarly complains about access to telephone services.

26
7 Mr. Sweeten also complains that DOC routinely ignores its own procedures. Sweeten 27 Letter at 1-3. This problem is addressed on page 6 above.

28 MEMORANDUM IN SUPPORT OF
MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 8

HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1 fundamentally fair, adequate, and reasonable and deals appropriately with each of the

2 objections that have been submitted in this matter.

3

DATED this 21 ^¯ day of August, 1998.

4

Respectfully submitted,

5

HELLER, EHRMAN, WHITE & McAUUFFE

6

7

U By:

8

Leonard J. Feldman, WSBA #20961

Felix Gavi Luna, WSBA #27087

9

Attorneys for Plaintiff Sean G. Duffy

10
COLUMBIA LEGAL SERVICES 11

12

By:

13

D)*åVviiícCîCrFrFaatthhii,. WSSJBA #24893 8y

Jeff Crollard, WSBA #15561 a

14

Attorneys for Plaintiff Charles Atkins

15

16

17

18

19

20

21

22

23

24

25

26

27

28 MEMORANDUM IN SUPPORT OF MOTION FOR ORDER APPROVING SETTLEMENT OF CLASS ACTION - 9

HELLER EHRMAN WHITE & M9\ULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

 
 THE HONORABLE BARBARA Z. ROTHSTEIN

ENTERED

FILED

RECEIVED R E c E ! V E D LODGED

--ZE W E D @~CEIVED

- AUG 2 1 19% KN s ~ pg lqgB SEp 0 3 1998

AT SEATTLE

CLERK U S DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

*LLER, EHRMA@ am, U4gTn;:il E

BY

DEPUTY

BY E S T C R N o- ~lIsIhcr,4~~scl ~o ,rI,V~~G ~~ TON

..

OEPUTI

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

\
3 lo SEAN G. DUFFY, et al.,

Q. l1

Plaintiffs,

12

v.

l 3 CHASE RIVELAND, et aI.,

$ 14 15

Defendants.

16

)

) No. C92-1596R

-w )
)

) ORDER GRANTING PLAINTIFFS'

) MOTION APPROVING SETTLEMENT OF CLASS

)

ACTION

)

)

)

17

THIS MATTER having come on duly and regularly before the undersigned Judge of

18 the above-captioned Court, plaintiff Sean G. Duffy being represented by Leonard J. Feldman

19 and Felix Gavi Luna of Heller Ehnnan White & McAuliffe, plaintiff Charles Atkins being

20 represented by David C. Fathi and Jeff Crollard of Columbia Legal Services, and defendants

21 being represented by Washington Assistant Attorneys General Daniel J. Judge and Thomas J.

22 Young.

231)
/24

The Court has considered the pleadings on file herein, including the objections filed by
putative class members and plaintiffs' response to those objections. The Court finds (i) that
those objections are without Substance and frivolous for the reasons stated in Plaintiffs'

125 Memorandum in Support of Motion for Order Approving Settlement of Class Action, &

28

(ii) that any substantial objections are addressed fully and fairly in that Memorandum, and
27

/

rC)

28 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION APPROVING SETTLEMENT OF
CLASS ACTION - 1

HELLER EHRMANWHITE &
ATTORNEYS

1 (iii) that the proposed settlement agreement is fair, adequate, and reasonable, as required by
21 federal law. Accordingly, it appearing that Plaintiff's Motion for Order Approving Settlement
3(( of Class Action should be granted, now, therefore,

IT IS HEREBY ORDERED that Plaintiff's Motion for Order Approving Settlement of
4~~
5 Class Action is granted.

6

DONE in open Court this *day of S P ~ ) ~ ~ Q, 1U998. .

9

Presented by:

10

HELLER, EHRMAN, WHITE & McAULIFFE

11
12 By

1 -

Leonard J. Feldman, WSBA #20961

13 Felii Gavi Luna, WSBA #27087 Attorneys for Plaintiff Sean G. Duffy

l6 l7

' - BY

Dai*athi,h

A #24893

Jeff Cmllard, WS%?#l556l

7U +c\.+~d &A,,t*&i$6

Attorneys for Plaintiff Charles Atkins

I8

O.\UR\DURFY\MOTIONS\AFWOERT,
20 21
22
23
24
25 26 27
28 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION APPROVING SETTLEMENT OF CLASS ACTION - 2

HELLER EHRMAN W H I T E & McAULlFFE
ATTORNEYS
6100 COLUMBICAenrm 701 FIFTHAVENUE
SEATTLE. WASHINGTO9N8101-7098 TELWHON(L206) 447-0900

 
 1 HONORABLE BARBARA J. ROTHSTEIN

2

HONORABLE PHILIP K. SWEIGERT

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 SEAN G. DUFFY, et al.,

)

12

Plaintiffs,

13 vs.
14
15 CHASE RIVELAND, et al.,

16

Defendants.

) No. C92-1596R
) ) NOTICE TO DEAF AND HEARING ) IMPAIRED PRISONERS REGARDING ) PROPOSED SETTLEMENT OF CLASS ) ACTION )

17
I. 18
19

THE LAWSUIT AND THIS NOTICE This lawsuit was originally filed in 1992. It challenges the Department of

20 Corrections' alleged failure to provide qualified sign language interpreters and other special

21 aids and services required by deaf and hearing impaired prisoners.

22

The Court has provisionally approved a settlement of this lawsuit. The lawsuit would

23 be settled as a class action. The class would include all inmates incarcerated in Washington
24
State Department of Corrections (DOC) facilities now or in the future who are deaf or whose
25
26 hearing impairment, without assistive aids or devices, substantially limits a major life

27 activity. Therefore, if you are deaf or have a substantial hearing impairment, you are a

28

NOTICE TO DEAF & HEARING IMPAIRED PRISONERS REGARDING PROPOSED SETTLEMENT (IF CLASS ACTION- Page 1

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104

1 member of the class, and the proposed settlement would affect your rights.
2
II. PROPOSED SETTLEMENT AND OPPORTUNITY TO OBJECT 3
A. Summary of the Proposed Settlement
4

5

The Court has provisionally approved a proposed settlement of this case which would

6 result in the lawsuit being dismissed. Under the proposed settlement, DOC would agree to

7 implement and enforce a policy on "Disabled Offenders." This policy would provide deaf
8
and substantially hearing impaired prisoners with the right to qualified sign language
9
interpreters, TTY telephones, and other assistive aids and services, when needed to gain
10
11 access to prison programs and services such as disciplinary hearings, medical care,
12 classification reviews, treatment programs, and education. In exchange for DOC's

13 agreement to implement and enforce this policy, the lawsuit would be dismissed.

14 B. Opportunity for Class Members to Object

15

Any class member (as defined above) may object to the proposed settlement by

16
mailing written objections to Clerk of the Court, United States District Court, 1010 Fifth
17
Avenue, Room 215, Seattle, WA 98104. Any objections must be mailed by August 1,
18

19 1998, and should include the heading "Duffy v. Riveland, No. C92-1596R." After

20 reviewing any objections filed, the Court will decide whether to accept the proposed

21 settlement.

22

You may see a complete copy of the settlement agreement, including the proposed

23 DOC policy on disabled offenders, as well as the plaintiffs' complaint and the defendants'

24

25 answer in this lawsuit by visiting the law library in your institution. If you are unable to

26 visit the law library, you can request copies of these materials through normal channels, and

27 they will be provided to you. If you request the materials but they are not provided to you,

28

NOTICE TO DEAF & HEARING IMPAIRED PRISONERS REGARDING PROPOSED SETTLEMENT OF CLASS ACTION- Page 2

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104

1 contact one of plaintiffs' counsel listed below.

2
C. Plaintiffs' counsel
3

David C. Fathi

4

Jeff B. Crollard

Leonard J. Feldman Felix Gavi Luna

5

Columbia Legal Services

Heller, Ehrman, White & McAuliffe

Institutions Project

701 5th Ave., #6100

6

101 Yesler Way, Suite 301

Seattle, WA 98104-7098

Seattle, WA 98104
7

You may direct any questions to plaintiffs' counsel listed above.
8

9

DATED this

day of

, 1998.

10

11

12

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOTICE TO DEAF & HEARING IMPAIRED PRISONERS REGARDING PROPOSED SETTLEMENT OF CLASS ACTION- Page 3

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

CHAMBERS OF
PHILIP K. SWEIGERT
UNITED STATES MAGISTRATE JUDGE

November 6, 1997

UNITED STATES COURTHOUSE

1010 FIFTH AVE.

. . SEATTLE, WA98104

- i

(206)553-1396

TO:

Sean G. Dufty

Leonard J. Feldman

David C. Fathi

Daniel J. Judge

Douglas Wayne Can-

Thomas J. Young

Penelope S. Nerup

FROM:

Philip K. Sweigert U.S. Magistrate Judge

RE:

Duffy v. Riveland, et al.

Case No. C92-1596R

Attached are copies of my Report and Recommendation, proposed order, and proposed judgment in the above-captioned case. The originals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case.

Objections to the recommendation should be filed and served within fifteen days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. Failure to file objections within the specified time waives the right to appeal any order by the District Court adopting this Report and Recommendation. In accordance with our local rules, you should note your objections for consideration on the Judge's motion calendar for the third Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on November 28, 1997.

Thank you for your cooperation.

Attachments PKS/vlr

cc: Hon.Barbara J. Rothstein C92-1596R

Duffy v. Riveland

™

» •

HV

••

••••

I •

PC-WA-0003-0001

1

2

3

n k

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SEAN G. DUFFY, et al.,

9

Plaintiff,

10

v.

11 CHASE RTVELAND, et al.,

12

Defendant.

13

CASE NO. C92-1596R REPORT AND RECOMMENDATION

14

INTRODUCTION AND SUMMARY CONCLUSION

15

Plaintiff Sean Duffy is a hearing-impaired inmate currently incarcerated at the Washington State

16 Reformatory (WSR) at Monroe, Washington. He originally filed this action pro. ss, to challenge the

17 institution's repeated denial of his request for a certified interpreter at disciplinary hearings. He invoked

18 the jurisdiction of this court under the Rehabilitation Act, 29 U.S. C. § 794, and the Americans with

19 Disabilities Act, 42 U.S.C. § 12132. This case and a parallel one were both dismissed for failure to state

20 a claim. On appeal, and subsequent to the reversal of both dismissals by the Ninth Circuit Court of

21 Appeals, plaintiff has been represented by counsel. The cases have now been consolidated, and plaintiff

22 has moved for partial summary judgment on the state law claims in his amended complaint. Defendants

23 have opposed the motion, and the matter has been fully briefed. After careful consideration of the

24 complete record, the opinion of the Ninth Circuit Court of Appeals, and the memoranda of the parties, I

25 conclude that plaintiffs motion should be denied, and the state law claims should be dismissed pursuant to

26 28 U.S.C. § l367(c)(l).

27

28

REPORT AND RECOMMENDATION - 1

1

DISCUSSION

2

For purposes of clarification, the two cases which have been consolidated shall be referred to as

Duffy! (C92-I596R), which originally concerned a specific 1992 disciplinary hearing; and Duffy II (C93-

63 7R), which concerned 1992 and 1993 classification hearings. Plaintiff has moved for partial summary

judgment on the state law claims brought under RCW 2.42.120, which requires that a qualified

interpreter be appointed for a hearing-impaired person in all judicial or quasi-judicial proceedings. The

Ninth Circuit Court of Appeals, addressing Duffy II. ruled that the classification hearings are neither

judicial nor quasi-judicial, and thus did not trigger the requirements set forth in the state statute. Duffy v.

Riveland. 98 F. 3d 447, 458 (9th Cir. 1996). As to the disciplinary hearing which was the subject of

10 Duffy IT however, the appeals court ruled that the hearing was a quasi-judicial proceedings, such that the 11 provisions of the state statute were applicable. M· It is plaintiff's position that the Ninth Circuit's ruling

12 has made it the law of the case that plaintiffs state law rights were violated.

13

Following remand, plaintiff filed an amended complaint adding allegations of additional violations

14 of his right to a qualified interpreter at more recent hearings. In response to the motion for partial

15 summary judgment, defendants argue that the amended complaint raises issues with respect to numerous

16 unspecified additional hearings, such that the factual bases cannot be addressed. Dkt. # 106, p. 2-3. In

17 reply, plaintiff has narrowed his motion to a single hearing, the 1992 disciplinary hearing originally

18 addressed in Duffy I. Dkt. #111. This limitation moots a second argument raised by defendants in

19 opposition to the motion, namely that it is premature because it was filed less than 20 days after filing of

20 the amended complaint. Rule 56 states that a motion for summary judgment on a claim may be made "at

21 any time after the expiration of 20 days from the commencement of the action. . . ." F.R,Civ.P. 56(a).

22 Since the original action regarding the 1992 disciplinary hearing was commenced five years ago,

23 defendants' Rule 56(a) argument is not viable.

24

Far more persuasive, however, is defendants' argument that the court should decline to take

25 supplemental jurisdiction over this state law claim, pursuant to 28 U.S.C. § l367(c)(l). That section

26 permits a district court to decline supplemental jurisdiction over a state law claim when it raises a novel

27 or complex issue of state law. The state law at issue here states, in relevant part,

28

REPORT AND RECOMMENDATION - 2

If a hearing impaired person is a party or witness at any stage of a judicial or quasijudicial proceeding in the state or in a political subdivision,... the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings.

3 RCW 2.42.120(1). Plaintiffs invocation of this statute raises a novel issue of state law because the

statute is silent as to a remedy, and no Washington state case has either created a private cause of action

from this statute, or fashioned a remedy for its violation. If such a right and remedy are to be implied, it

is for the state court, not this one, to do so.

Plaintiff contends that defendants have waived their right to challenge supplemental jurisdiction

over the state law claim by failing to assert their objections sooner. Moreover, plaintiff argues, the Ninth

Circuit's reversal of this court's dismissal of the state law claim has become the law of the case,

10 preventing reconsideration of the jurisdiction^ issue. However, a thorough review of the original 11 complaint filed by plaintiff in Duffy I. the parties' memoranda on the earlier summary judgment motion 12 which resulted in dismissal, the Report and Recommendation of the undersigned, and the court's Order of

13 dismissal, shows that neither the parties nor this court construed plaintiffs references to state law as

14 raising a separate claim; his citations to RCW 2.42.120 were treated as establishing a liberty interest to

15 support his due process claim. Dkt. # 2, 31, 41, 43, 49, 52.

16

The original complaint clearly invoked the jurisdiction of the court pursuant to 29 U.S.C. § 794

17 (the Rehabilitation Act) and 42 U.S.C § 12132 (the Americans with Disabilities Act). Dkt. # 2. Because

18 of plaintiff s repeated reference to constitutional and due process violations, the court construed the

19 complaint as also raising a claim under 42 U.S.C. § 1983; thus it was only in support of the due process

20 claim that plaintiffs state law references were considered. Dkt. # 4. For example, in his ninth cause of

21 action, plaintiff alleged that certain defendants denied him his constitutional rights of due process as a

22 qualified individual with a disability, and also that plaintiff "do [sic] have a liberty interest under the state

23 law for the services of'qualified interpreters' — R.C.W. 2.42.110." Dkt. # 2, p. 42. Similarly, he cited

24 the state law in his third, fourth, and tenth causes of action, all of which were constitutional due process

25 claims. Dkt. # 2, pp. 29, 44. Nowhere in the eleven stated causes of action is a separate one based on

26 state law. The statute is only mentioned in cursory fashion in plaintiffs memorandum opposing summary

27

28

REPORT AND RECOMMENDATION - 3

1 judgment. Dkt. # 43, p. 17. Defendants, in their motion for summary judgment, did not address any state

2 law claim or ask for dismissal thereof. Dkt. # 4 1 . Nor did the Report and Recommendation recognize or

3 reach the merits of a state law claim. Dkt. # 49.

4

Thus, notwithstanding the Ninth Circuit's language that the district court "erred in dismissing" the

5 state law claim, a review of the record shows that this court neither recognized nor took jurisdiction of

6 any independent state law claim. Accordingly, defendants' § l367(c)(l) challenge to supplemental

7 jurisdiction is not untimely.

8

As the state law claims now properly raised in the amended complaint raise novel issues of state

9 law which should be addressed first by the state court, this court should decline to exercise supplemental

10 jurisdiction over them. Accordingly, plaintiffs motion for partial summary judgment on the state law

11 claims should be denied, and the claims should be dismissed pursuant to § l367(c)(l). A proposed form

12 of Order is attached.

13

DATED

^ . day of.

., 1997.

14

15

PHILIP K. SWEIGËRT* L·

16

United States Magistrate Judge

17

18

19

20

21

22

23

24

25

26

27

28

REPORT AND RECOMMENDATION - 4

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SEAN G. DUFFY, et al.,

9

Plaintiff,

10

v.

11 CHASE RIVELAND, et al.,

12

Defendant.

13

CASE NO. C92-1596R
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

14

The Court, having reviewed the Plaintiffs motion for partial summary judgment on the state law

15 claims, the Report and Recommendation of Judge Philip K. Sweigert, United States Magistrate Judge,

16 and the remaining record, does hereby find and Order:

17

(1) The Court adopts the Report and Recommendation.

18

(2) Plaintiffs motion for partial summary judgment on the state law claims should be denied,

19 and the claims should be dismissed pursuant to § l367(c)(l).

20

(3) The Clerk is directed to send copies of this Order to petitioner, to counsel for respondent,

21 and to Judge Sweigert.

22

DATED

day of

, 1997.

23

24 BARBARA J. ROTHSTEIN

25

United States District Judge

26

27

28
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SEAN G. DUFFY, et al.,

9

Plaintiff,

10 v.

CASE NO. C92-1596R JUDGMENT IN A CIVIL CASE

CHASE RIVELAND, et al.,

12

Defendant.

13

14 ¤ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried

15

and the jury has rendered its verdict.

16 ¤ Decision by the Court. This action came under consideration before the Court. The issues have

17

been considered and a decision has been rendered.

18

IT IS ORDERED AND ADJUDGED Plaintiffs motion for partial summary judgment on the

19 state law claims should be denied, and the claims should be dismissed pursuant to § l367(c)(l).

20 Date:
21 22

Bruce Rifkin Clerk of Court

23

(by) Deputy Clerk

24

25

26

27

28

JUDGMENT IN A CIVIL CASE - 1

 
 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
•¾'·

RECEIVED JAN 20 1998
HELLER, EHRMAN

?

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

'¿o
•¾·9

SEAN G. DUFFY,

Plaintiff,

v.
CHASE RTVELAND, et al., Defendants.

NO. C92-1596R 93-637R
ORDER GRANTING PLAINTIFF·S MOTION FOR SUMMARY JUDGMENT

¾,s \19

THIS MATTER comes before the court on a Magistrate Judge's Report and Recommendation (R&R) and the plaintiffs objections to the R&R. The court has reviewed the R&R, the plaintiff's objections and the documents filed in support of and in opposition to the

¾2I
22 23 24 25 26
AO72

underlying summary judgment motion. Being fully advised, the court declines to adopt the R&R and grants the plaintiffs motion for summary judgment.

ORDER Page-1-

Duffý v. R¡veland PC-WA 0003-0002

I. BACKGROUND 1

2

Sean Duffy is an deaf inmate currently incarcerated at the Washington State Reformatory at

3 Monroe, Washington. In 1992, he filed two pro se suits against various prison officials contending

4 that their failure to provide him with a qualified interpreter at prison proceedings violated his rights
5
under state and federal law. In thefirstsuit, which wasfiledin this court, Duffy challenged the
6
defendants' failure to provide him with a qualified interpreter at a July 30, 1992, prison disciplinary
7
8 hearing. In the second suit, filed in another court in this district, Duffy challenged the defendants'
9 failure to provide him with a qualified interpreter at two separate classification hearings. Both suits

10 were dismissed on defense motions for summary judgment. Duffy appealed.

11

The Ninth Circuit Court of Appeals consolidated the two cases and reversed the summary

12
judgments in part and affirmed in part. Duffy v. Riveland. 98 F.3d 447 (1996). On remand, Duffy
13
seeks summary judgment of his state law claim. This court referred the summary judgment motion
14

15 and other pretrial matters to a Magistrate Judge, who recommends dismissal of Duffy's state law

16 claim under 28 U.S.C. § l367(c)(l).

17

18

H. DISCUSSION

19
In his original complaint, Duffy alleged that the defendants violated a Washington State
20
statute, RCW 2.42.120(1), that requires a qualified interpreter to be appointed for a hearing-
21

22 impaired person who is a party or a witness in a judicial or quasi-judicial proceeding:

23

If a hearing impaired person is a party or witness at any stage of a judicial or quasi-judicial

proceeding in the state or in a political subdivision, including but not limited to civil and

24

criminal court proceedings, grand jury proceedings, proceedings before a magistrate, juvenile

25

26
AO72

ORDER Page - 2 -

proceedings, adoption proceedings, mental health commitment proceedings, and any

proceeding in which a hearing impaired person may be subject to confinement or criminal

sanction, the appointing authority shall appoint and pay for a qualified interpreter to interpret

1

the proceedings.

2
The statute does not explicitly provide for a remedy to address a violation of its requirements. The
3
parties dispute whether, as a threshold matter, Duffy has a private right of action to pursue a
4

5 violation of this statute and whether this court has jurisdiction over his state law claim.

6 A. Supplemental Jurisdiction

7

In civil matters over which this court has original jurisdiction, it also has supplemental

8 jurisdiction "over all other claims that are so related to claims in the action within [the court's]
9
original jurisdiction that they form part of the same case or controversy under Article H P of the
10
Constitution. 28 U.S.C. § l367(a). The court may, however, decline to exercise its supplemental
11

12 jurisdiction if, among other things, "the claim raises a novel or complex issue of State law." I ¿

13 § l367(c)(l). The Magistrate recommends that this court exercise its discretion to decline

14 jurisdiction over Duffy's state law claim because it presents a novel issue of state law.
15
On appeal to the Ninth Circuit, the defendants argued that Duffy does not have a private
16
right of action to enforce RCW 2.42.120. Although no Washington court has decided this precise
17
issue, in Duflv the Ninth Circuit observed that the Supreme Court of Washington rejected a similar
18
19 argument in Bennett v. Hardv. 113 Wn.2d 912 (1990). Applying factors set forth in Bennett for

20 determining whether a statute that is otherwise silent on this issue provides a private right of action,

21 the Ninth Circuit concluded that RCW 2.42.120 does provide a private right of action. While
22
Duffy's claim may present a novel issue of state law, the Ninth Circuit has already resolved it on
23
appeal, and it is not this court's province to hold otherwise.
24

25

26
AO72

ORDER Page-3-

Furthermore, to dismiss this claim now on the ground that it presents a novel issue of state

law would be manifestly unfair. It has been over five years since Duffy filed his first complaint.

Until now, the defendants have not challenged the court's jurisdiction over the state law claim. If

3 Duffy is forced to refile this claim in state court, it is likely that any claim based on the July 1992

4 disciplinary hearing will be time-barred. The court declines to exercise its discretion to dismiss this

5 case under 28 U.S.C. § l367(c)(l) and will address the summary judgment motion on the merits.

6
B. Summary Judgment
7

8

On remand, Duffy seeks summary judgment on the issue of the defendants' liability under

9 RCW 2.42.120. He is also asking this court to order the defendants to provide him with the services

10 of a qualified interpreter at any future disciplinary hearings. The Ninth Circuit addressed two issues

11 relevant to the present summary judgment motion. First, it held that Duffy has a private right of
12
action to redress a violation of RCW 2.42.120. Second, it held that the 1992 disciplinary hearing
13
was a quasi-judicial proceeding for purposes of determining whether the statute requires the
14
15 appointment of a qualified interpreter.

16

Summary judgment is appropriate "ifthe pleadings, depositions, answers to interrogatories,

17 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

18
any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ.
19
P. S6(c). There are no facts in dispute regarding Duffy's state law claim. Thus, summary judgment
20
of this issue is appropriate.
21

22

The Ninth Circuit held that the defendants had a statutory duty to provide Duffy with a

23 qualified interpreter at his 1992 disciplinary hearing. It also held that Duffy has a private right of

24 action against the defendants to redress this statutory violation. Since there are no facts in dispute,
25

26
AO72

ORDER Page - 4 -

Duffy is entitled to judgment as a matter of law on the issue of the defendants' liability.

Notwithstanding the Ninth Circuit's opinion, the defendants make a number of arguments in
1
2 opposition to the summary judgment motion. First, they contend they are not liable to Duffy

3 because they are entitled to both quasi-judicial immunity and qualified immunity under state law.

4 Second, they argue that Duffy's claim for injunctive relief is barred by the Eleventh Amendment.

5
1. Immunity

6
a. Ouasi-iudicial immunity
7

8

"Quasi-judicial immunity attaches to persons or entities who perform functions that are so

9 comparable to those performed by judges that it is felt they should share the judge's absolute

10 immunity while carrying out those functions." Lutheran Dav Care v. Snohomish County. 119 Wn.2d
11
91,99 (1992). The court finds no merit in the defendants' argument that they are entitled to quasi-
12
judicial immunity. Duffy is not challenging the outcome of his hearing, i.e. the adjudication of the
13
14 charges against him. He is challenging the defendants' failure to provide him with a qualified

15 interpreter as required by state law. This is an administrative function to which quasi-judicial

16 immunity does not attach. See Taeeart v. State. 118 Wn,2d 195, 210 (1992).
17
b. Qualified immunity
18
A defendant can claim qualified immunity if he or she (1) carries out a statutory duty,
19
(2) according to procedures dictated by statute and superiors, and (3) acts reasonably. Babcock v.
20
State. 116 Wn.2d 596, 618 (1991). This defense is unavailable here. Duffy's claim is based on the
21
22 defendants' failure to carry out a statutory duty. He is not suing in negligence or otherwise arguing

23 that the defendants improperly carried out a statutory duty. A defendant "cannot claim even a

24 qualified immunity when [it] failFsi to follow a statutory procedure." I¿, (emphasis added).
25

26
AO72
io—.. aino\

ORDER Page - 5 -

2. In¶unctive relief

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
AO 72
/r-»_. . ft»Oo\

The defendants contend that Duffy's claim for injunctive relief is precluded by Pennhurst State School & Hospital v. Halderman. 498 U.S. 850 (1984). They argue that under Pennhurst this court cannot order state officials to comply with state law. Pennhurst. however, holds that a state or its agencies cannot be sued in federal court absent its consent, regardless of whether the plaintiff is seeking damages or injunctive relief. The defendants challenge the type of relief contemplated here. But they do no assert that they are immunefromsuit under the Eleventh Amendment. The court concludes, therefore, that the Pennhurst doctrine does not apply.
3. Scope of relief At the July 1992 hearing, Duffy was found guilty of a prison rule infraction that is also a misdemeanor offense under state law. The Ninth Circuit concluded that the hearing was a quasijudicial proceeding under RCW 2.42.120 on two bases: (1) Duffy was charged with conduct that constituted a state criminal offense and (2) the hearing officer's determination of his guilt, therefore, "was comparable to the ordinary business of courts." Duffy, 98 F.3d 447,458. Based on this language, the defendants argue that the Ninth Circuit intended to limit its holding to disciplinary hearings that adjudicate a prisoner's guilt for conduct that also violates a state criminal statute. They argue that the holding cannot be extended to disciplinary hearings on prison rule infractions are not also a violation of a criminal statute. They argue, therefore, that the court should not grant injunctive relief for all future disciplinary hearings, only those that involve a prison rule infraction that is also a violation of state law. The court is not persuaded that the Ninth Circuit intended to distinguish among disciplinary hearings based on the type of infraction alleged. RCW 2.42.120 requires the defendants to provide
ORDER Page - 6 -

hearing-impaired inmates with a qualified interpreter at quasi-judicial proceedings. The Ninth Circuit

determined that a prison disciplinary hearing is a quasi-judicial proceeding. It did not make the
1
2 distinction the defendants urge. On the contrary, in the case it cited in support of its holding that a

3 prison disciplinary hearing is a quasi-judicial proceeding, the inmates were charged with encouraging

4 a work stoppage, a prison rule infraction that does not also violate a state criminal statute. See

5 Cleavinper v. Saxner. 474 U.S. 193 (1985). The court concludes that injunctive relief should extend

6

to all future disciplinary hearings.

ì

7

8

9

HI. CONCLUSION

10

The court declines to adopt the Magistrate Judge's report and recommendation and hereby

11 GRANTS plaintiffs motion for summary judgment.
12
DATED at Seattle, Washington this 14th day of January, 1998.
13

14

15

16

BARBARA JACQ#S ROTHSTEIN

UNITED STATES DISTRICT JUDGE

17

18

19

20

21

22

23

24

25

26
AO72

ORDER Page - 7 ·

 
 ENTERED
1

2

JAN 0 3 1998 MR

3

AT SL/ ÍTLC

B y WESTERN DISTHICT OF°W. S H I N G T O N

4

DEPUTY

5

6

7

52·

6y

*â lo ^

íáTÄ&:

tiäsfr

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

SEAN G. DUFFY and CHARLES

)

11 ATKINS, on behalf of themselves and all )

others similarly situated,
12

) No. C92-1596R ) No. C93-637R

13

Plaintiffs,

) ) PLAINTIFFS' CONSOLIDATED

14

vs.

) COMPLAINT

15 CHASE RIVELAND, JOSEPH

) ) CLASS ACTION

16 LEHMAN, JAMES SPALDING, TOM ) ROLFS, DAVE SAVAGE, and CRAIG )

17 YOST, in their personal and official

)

capacities; WASHINGTON

)

18 DEPARTMENT OF CORRECTIONS, a )

19 public entity,

)

)

20

Defendants.

)

21

)

22

I. INTRODUCTION

23

1. This action arises out of the failure of officials of the Washington Department

24
of Corrections (DOC) to accommodate the special needs of plaintiffs Sean Duffy, Charles
25
Atkins, and other deaf and hearing impaired persons in DOC custody. Plaintiffs bring this
26

27 action to redress this failure under (i) the Americans with Disabilities Act of 1990 (ADA),

28 (ii) the Rehabilitation Act of 1973, (iii) 42 U.S.C. § 1983, (iv) the United States

PLAINTIFFS' CONSOLIDATED COMPLAINT Page 1

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101VESLEH WAY. SUITE 301 SEATTLE. WASHINGTON 981
(206) 464-0838

1 Constitution, and (v) Wash. Rev. Code 2.42.120. 2
II. JURISDICTION AND VENUE
3
2. This Court has jurisdiction over plaintiffs' federal law claims pursuant to 28
4
U.S.C. § l33l(a)(3) and (4) and 29 U.S.C. § 794a. The Court has supplemental jurisdiction

over plaintiffs' state law claim pursuant to 28 U.S.C. § l367(a).

7

3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1392.

8
III. PARTIES
9
4. Plaintiff Sean Duffy has been incarcerated by DOC since 1983. During this 10
time, he has been an inmate at (i) Washington Corrections Center at Shelton, Washington 11

12 (WCC), (ii) McNeil Island Corrections Center, including the McNeil Island Minimum

13 Custody Annex, (iii) Indian Ridge Corrections Center, and (iv) Twin Rivers Corrections

14 Center. He is currently incarcerated at the Washington State Reformatory in Monroe,

15 Washington (WSR). He has been fully deaf and mute since childhood. As a prisoner in the
16 custody of DOC, Mr. Duffy is subject to being transferred at any time to any DOC facility
17
18 that houses male prisoners.

19

5. Plaintiff Charles Atkins has been incarcerated by DOC since 1992. During

20 this time, he has been incarcerated at WCC and at the Washington State Penitentiary (WSP).

21 He is currently incarcerated at the Twin Rivers Corrections Center (TRCC). He has been

22 fully deaf and mute since early childhood. As a prisoner in the custody of DOC, Mr. Atkins
23 is subject to being transferred at any time to any DOC facility that houses male prisoners.
24

25

6. Defendant DOC manages and operates a number of correctional facilities in

26 Washington. DOC (i) receives federal financial assistance and therefore falls within the

purview of Section 504 of the Rehabilitation Act, and (ii) is a public entity within the 28

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purview of the ADA. 2
7. Defendant Chase Riveland was Secretary of DOC. In this capacity he was 3
required to exercise all powers and perform all duties prescribed by law with respect to the
4
5 administration of adult correctional programs by DOC. Mr. Riveland had authority to
6 appoint and remove subordinate officers and other employees of DOC. He also had control
7 over fiscal concerns of the DOC, including the power to procure federal financial assistance

and to direct and monitor the disbursement of such funding for all inmate programs to ensure 9
that they are accessible to persons with disabilities. Mr. Riveland is sued in his personal and 10
official capacities.

12

8. Defendant Joseph Lehman is Secretary of DOC. In this capacity he is

13 required to exercise all powers and perform all duties prescribed by law with respect to the

¯`* administration of adult correctional programs by DOC. Mr. Lehman has authority to appoint

and remove subordinate officers and other employees of DOC. He also has control over 16
fiscal concerns of the DOC, including the power to procure federal financial assistance and 17
to direct and monitor the disbursement of such funding for all inmate programs to ensure that 18
.jo they are accessible to persons with disabilities. Mr. Lehman is sued in his personal and

20 official capacities.

21

9. Defendant James Spalding was Director of the Division of Prisons of DOC.

00
In this capacity he was responsible for the operation of DOC facilities. Mr. Spalding is sued 23
in his personal and official capacities. 24
10. Defendant Tom Rolfs was Director of the Division of Prisons of DOC. In this 25 26 capacity he was responsible for the operation of DOC facilities. Mr. Rolfs is sued in his

27 personal and official capacities. 28

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1

11. Defendant Dave Savage is DOC Deputy Secretary for the Office of

2 Correctional Operations. In this capacity he is responsible for the operation of DOC
3

facilities. Mr. Savage is sued in his personal and official capacities. 4

5

12. Defendant Craig Yost is an employee of DOC and has been Mr. Duffy's

6 classification counselor at WSR for several years. Mr. Yost is sued in his personal and

7 official capacities.
8 IV. STATUTORY SCHEME
9 13. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides that
10 11 no qualified handicapped individual, solely by reason of his or her handicap, shall be
12 excluded from participation in, denied the benefits of, or subjected to discrimination under

13 any program or activity operated by a recipient of federal funding assistance.

14

14. The Department of Justice administrative regulations implementing Section

15 504, 28 C.F.R. § 42.503, provide in part:

16

A recipient that employs fifteen or more persons shall provide appropriate

17

auxiliary aids to qualified handicapped persons with impaired sensory, manual

18

or speaking skills where a refusal to make such provision would

discriminatorily impair or exclude the participation of such persons in a

19

program receiving Federal financial assistance. Such auxiliary aids may

include brailled and taped material, qualified interpreters, readers, and

20

telephonic devices . . . .

21 28 C.F.R. § 42.5O3(f)·
22 15. Title II, subtitle A, of the ADA, effective January 26, 1992, prohibits all state
23
or local governments or any department, agency or other instrumentality thereof from 24

25 discriminating against qualified individuals on the basis of a disability. 42 U.S.C.

26 §§ 12131-12133. Title II provides:

27

Subject to the provisions of this subchapter, no qualified individual with a

28

disability shall, by reason of such disability, be excluded from participation in or be

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1

denied the benefits of the services, programs, or activities of a public entity, or be

2

subjected to discrimination by any entity.

3 42 U.:S.C. § 12132.

4

16. The Department of Justice administrative regulations implementing the ADA

5 provk;-¿ in part:

6

(a) A public entity shall take appropriate steps to ensure that communication

7

with applicants, participants, and members of the public with disabilities are as

8

effective as communications with others.

9

(b)(l) A public entity shall furnish appropriate auxiliary aids and services

where necessary to afford an individual with a disability an equal opportunity

10

to participate in, and enjoy the benefits of, a service, program, or activity

11

conducted by a public entity.

12

(2) In determining what type of auxiliary aid and service is necessary, a public

entity shall give primary consideration to the requests of the individual with

13

disabilities.

14 28 C.Ì¯.R. § 35.160. The regulations define "auxiliary aids and services" as including:

15 Qualified interpreters, notetakers, transcription services, written materials,

16

telephone handset amplifiers, assistive listening devices, assistive listening

systems, telephones compatible with hearing aids, closed caption decoders,

17

open and closed captioning, telecommunications devices for deaf persons

18

(TDD's), videotext displays, or other effective methods of making aurally

delivered materials available to individuals with hearing impairments[.]

19
28 C.I .R. § 35.104. The regulations also define a "qualified interpreter" as "an interpreter 20

21 who L· able to interpret effectively, accurately, and impartially, both receptively and

22 exprcò;.ively, using any necessary specialized vocabulary." Id.

23

17. The Fourteenth Amendment to the United States Constitution provides: "nor

24 shall any State deprive any person of life, liberty, or property, without due process of law;

25 nor dc;iy to any person within its jurisdiction the equal protection of the laws. . . . " U.S.
26
Const, amend. XIV, § 1. 27

28

18. The Eighth Amendment to the United States Constitution states that "cruel and

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1 unusi ¦ punishments" shall not be inflicted. U.S. Const, amend. VIÍI.
2 19. The Ninth Amendment to the United States Constitution states: "The
3 enuiiK<aaon in the Constitution, of certain rights, shall not be construed to deny or disparage
4
5 others :¯i·!ained by the people." U.S. Const, amend. IX.

6

20. 42 U.S.C. § 1983 prohibits actions, under color of state law, which deprive

7 indivi u.¡ls of rights secured by federal statute or the United States Constitution.

8

21. Plaintiffs' right to an interpreter under state law is set forth in Wash. Rev.

9 Code .;.42.120(1), which provides as follows:

10

If a hearing impaired person is a party or witness at any stage of a judicial or

11

quasi-judicial proceeding in the state or in a political subdivision, including but

12

not limited to civil and criminal court proceedings, grand jury proceedings,

proceedings before a magistrate, juvenile proceedings, adoption proceedings,

13

¿ncntal health commitment proceedings, and any proceeding in which a hearing

impaired person may be subject to confinement or criminal sanction, the

14

appointing authority shall appoint and pay for a qualified interpreter to

inierpret the proceedings. 15

16 The st;;iu!c defines a "qualified interpreter" as "a visual language interpreter who is certified

17 by the state or is certified by the registry of interpreters for the deaf to hold the

18 comprehensive skills certificate or both certificates of interpretation and transliteration . . . ."

19 Wash. Rev. Code 2.42.110(2).
20 V. CLASS ACTION ALLEGATIONS
21

22

22. Plaintiffs seek to maintain this action as a class action pursuant to Fed. R. Civ.

23 P. 23(;•) and 23(b)(2). Plaintiffs ask the Court to certify a class consisting of all deaf and

24 hearing impaired persons who are now, or who will in the future be, committed to the

25 custo<J; of the DOC.
26 23. The class is so numerous and so fluid that joinder of all class members is
27 impracticable. Based on the incidence of deafness and hearing impairment in the general
28

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1 population, there are over 100 deaf and hearing impaired persons currently in the custody of
2 DOC.
3 24. There are questions of law and fact common to the class.
4
5 The common factual questions include:

6

Whether class members are denied access to qualified sign language

interpreters (as defined by federal law) and other auxiliary aids and assistive

7

devices in disciplinary hearings, classification proceedings, medical

8

encounters, educational programs, and other prison programs, activities, and services.

9

Whether the DOC staff members and prisoners defendants sometimes ask to provide

10

interpretation services to class members are qualified sign language interpreters.

11

Whether as a result of the denial of qualified sign language interpreters and

12

other auxiliary aids and assistive devices, class members are excluded from,

and deprived of the benefits of, prison programs, activities, and services.

13

Whether, as defendants contend, providing qualified sign language interpreters

14

to class members is "simply impractical, and would unduly interfere with the

15

orderly operation of the institution."

16 The common legal questions include:

17

Whether the denial of access to qualified sign language interpreters and other

auxiliary aids and assistive devices in disciplinary hearings, classification

18

proceedings, medical encounters, educational programs, and other prison

19

programs, activities, and services violates the rights of class members under

the ADA and the RA, the federal Constitution, or Washington state law.

20

Whether defendants' failure to inform class members of their rights under the

21

ADA violates the ADA.

22

Whether the denial of a qualified sign language interpreter for disciplinary

23

proceedings deprives class members of liberty without due process of law, in

violation of the Fourteenth Amendment.

24

Whether the denial of a certified sign language interpreter for disciplinary

25

proceedings violates the rights of class members under Rev. Wash. Code

26

2.42.120.

27

Whether the denial of a qualified sign language interpreter for medical, dental,

and mental health encounters deprives class members of confidential medical 28

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r·¯`1

communication and informed medical decision-making in violation of the Ninth and Fourteenth Amendments.

Whether the denial of a qualified sign language interpreter for medical, dental, and

mental health encounters constitutes deliberate indifference to class members' serious

4

medical needs in violation of the Eighth and Fourteenth Amendments.

5 Whether, as defendants contend, they are immune from suit under the

6

Eleventh Amendment.

7

Whether the Court should grant declaratory and injunctive relief with regard to

8

the class as a whole.

9

25. The claims of the named plaintiffs are typical of those of the class.

10

26. The named plaintiffs will fairly and adequately protect the interests of the class

11 because they are subject to the conditions challenged by the class as a whole. The named
12 plaintiffs seek injunctive and declaratory relief that would benefit the entire class. They are
13 represented by counsel who are competent and experienced in civil rights and prisoners'
14
15 rights litigation.

16

27. Defendants have acted and refused to act on grounds applicable to the class,

17 thereby making appropriate final injunctive and declaratory relief with respect to the class as

18 a whole.

19
20 A.
21
22

VI. FACTUAL ALLEGATIONS General Factual Allegations 28. The DOC operates a number of correctional facilities throughout the state of

23 Washington. There are currently approximately 13,000 prisoners committed to the custody

24 of DOC.

25

29. Defendants have no system in place to identify and accommodate the special

26 needs of deaf and hearing impaired prisoners.
27 30. Defendants have no system in place to advise deaf and hearing impaired
28

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1 prisoners of their rights and remedies under the ADA.
2
31. Defendants fail and refuse to provide qualified sign language interpreters for 3 4 deaf and hearing impaired prisoners in disciplinary proceedings, classification proceedings,
5 medical encounters, educational programs, and other prison services, programs and activities.

6

32. Defendants fail and refuse to provide certified sign language interpreters for

7 deaf and hearing impaired prisoners in disciplinary and parole proceedings.

8 33. Defendants fail and refuse to provide deaf and hearing impaired prisoners with

9
assistive devices and auxiliary aids that they require because of their disability. 10

11

34. Defendants fail and refuse to provide deaf and hearing impaired prisoners with

12 access to TTY telephones that is equal to the access hearing prisoners have to regular

13 telephones.

14

35. Defendants have not adequately educated and trained DOC employees to work

15 with and assist deaf and hearing impaired inmates in DOC custody. Nor have defendants
16 hired sufficient staff or procured services, equipment, and other resources to provide
17

18 qualified interpreter services to deaf and hearing impaired prisoners. Defendants have also

19 failed to supervise and monitor properly DOC staff and officers to ensure compliance with

20 the ADA, Rehabilitation Act, and other federal mandates.

21

36. Because of defendants' policies and practices set forth above, deaf and hearing

22 impaired prisoners are excluded from and deprived of the benefits of prison services,
23 programs and activities for which they are otherwise qualified, based solely on their
24

25 disability.

26 B. Specific Factual Allegations

27

1. Plaintiff Sean Duffy

28

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r

1
37. Mr. Duffy has been incarcerated by DOC since 1983.* He has been fully deaf 2
and mute since childhood. He is able to communicate using signed English. In order to 3
communicate effectively with others (receptively or expressively), Mr. Duffy requires the 4
S assistance of a qualified interpreter.

6

38. Mr. Duffy is a handicapped and disabled person within the meaning of the

7 ADA and Rehabilitation Act. He is otherwise qualified to participate in prison programs and
8 activities, including: orientation to facility rules, inmate rights and privileges; educational,
9 vocational, recreational, rehabilitative, therapeutic, employment, and exit programs; pre-
10 11 parole programs; medical, dental, and mental health treatment and diagnoses; classification,
12 disciplinary, grievance, loss of good time, and parole hearings; and visits by counsel and

13 other non-inmates.

14

39. Defendants have long been aware of Mr. Duffy's disability but nevertheless

15 have continually and intentionally refused to accommodate his special needs as a disabled
16 inmate. Mr. Duffy has repeatedly requested an interpreter at prison programs and activities.
17

18 In most cases, DOC has refused to provide an interpreter. In some cases, DOC has offered

19 the assistance of an inmate or prison official who knew some sign language, but who was not

20 certified or qualified as an interpreter and could not interpret effectively, accurately, and
21 impartially. 22
40. DOC officers and staff members have attempted to communicate with Mr. 23
Duffy in the above situations through written notes, through pantomime, or by assuming that 24
25 other inmates could communicate with him. Mr. Duffy was and is unable to communicate

26 effectively with prison officers and staff members through these methods.

27

41. By refusing to provide Mr. Duffy with qualified interpreter services,

28

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1 defendants have denied Mr. Duffy the benefits of services, programs, and activities offered
2 to other inmates, and have thereby subjected him to discrimination on the basis of his
3 disability. If Mr. Duffy had access to a qualified interpreter, he could have participated in
4
5 and benefitted from most or all of the programs, services, and activities available to other

6 DOC inmates. These programs, services, and activities are important to Mr. Duffy's

7 rehabilitation efforts, as alleged below.

8 42. Defendants' unlawful course of conduct has impeded Mr. Duffy's advancement
9 and status in prison and parole board classification systems and hearings and has jeopardized
10
his earned eligibility for an early parole release and other special entitlements. For example: 11

12

(a) a recent classification report provides: "It has previously been

13 recommended that [Mr. Duffy] participate in Crime-Related Counseling if possible.

14 However, due to his hearing problem, counseling is next to impossible unless he has access
15 to a sign interpreter . . . ."
16 (b) in February, 1997, Mr. Duffy requested a qualified interpreter to allow
17 18 him to participate in an upcoming classification hearing. WSR staff responded, in writing,
19 "a qualified interpreter will not be provided."

20

43. As an inmate at a DOC facility, Mr. Duffy periodically attempts to participate

21 in disciplinary proceedings. Defendants have refused to provide Mr. Duffy with a qualified
22 or certified interpreter for these proceedings. As a result, Mr. Duffy has been unable to
23 understand and participate meaningfully (including explaining his version of the events and
24
25 effectively defending himself) in these proceedings. Consequently, Mr. Duffy has suffered

26 disciplinary sanctions. For example:

27

(a) A disciplinary hearing was held on or about July 30, 1992. Mr. Duffy

28

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>fîF'

1 requested an interpreter for this hearing. Although DOC staff recognized the need for an
2
interpreter, they did not provide a certified or qualified interpreter. Mr. Duffy was found
3
guilty and sentenced in absentia to 15 days disciplinary segregation.
4

5

(b) A disciplinary hearing was held on or about October 3, 1996. A few

6 months earlier (in July 1996), the Ninth Circuit had ruled that Washington state law requires

7 that DOC provide a certified interpreter at disciplinary hearings. Despite Mr. Duffy's

8 request lor such an interpreter, and notwithstanding the Ninth Circuit's ruling, DOC did not
9
provide a certified or qualified interpreter at that hearing. Again, Mr. Duffy was found
101
guilty i·.;.d suffered disciplinary sanctions, including loss of good time. 11

12

-í I. The sanctions alleged in the previous paragraph created atypical and significant

131 hardshi; ío Mr. Duffy and caused a major disruption in his environment.

14

4:¯`. Mr. Duffy periodically requires and is eligible to receive health care services

15 from D, C. Defendants have refused to provide Mr. Duffy with a qualified interpreter for
16 his intc:vctions with health care personnel. As a result, Mr. Duffy has been unable to
17 commu>.;cate adequately with health care personnel about his medical needs, including
18
19 describi; g his symptoms, responding to probing questions, giving informed consent to

20 treatmc..; and medication, understanding a given diagnosis, and receiving and understanding

21 approp ite follow-up care. Defendants' ongoing failure to provide a qualified interpreter
22 during .. cdical evaluations and psychological counseling has deprived Mr. Duffy of adequate 23
medicai ..nd psychological care. 24
<·l¯>. Educational and vocational opportunities are provided to DOC inmates to 25 26 prepare iiem better for a complete and productive life upon discharge. Mr. Duffy is eligible
27 to participate in such programs. Defendants have refused to provide Mr. Duffy with a

281

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r

¯I TV

1 qualified interpreter for these programs. As a result, defendants have unlawfully denied
2 Mr. Duffy the right to meaningful educational and vocational training during his
3
incarceration solely because of his disability. 4

5

47. Defendants have failed to inform Mr. Duffy of his rights and remedies under

6 the ADA.

7

48. Defendants have intentionally and deliberately violated Mr. Duffy's federally

8 protected rights, including his rights under the ADA, the Rehabilitation Act, 42 U.S.C.
9 § 1983, and the United States Constitution. Defendants' unlawful course of conduct also
10
reflects a reckless and callous indifference to those rights. 11

12

49. Mr. Duffy has exhausted such administrative remedies as are available to him.

13

2. Plaintiff Charles Atkins

14

50. Plaintiff Charles Atkins was incarcerated at the Washington State Penitentiary

15 (WSP) from 1992 to 1997, and is currently incarcerated at TRCC. He has been fully deaf
16 and mute since the age of two. He is able to communicate using American Sign Language
17
18 (ASL), which linguistically is an entirely distinct language from English with its own visual,

19 lexical, grammatical, and syntactic structures. In order to communicate effectively with

20 others (receptively or expressively), Mr. Atkins requires the assistance of a qualified

21 interpreter.
22 51. Defendants have long been aware of Mr. Atkins' deafness but nevertheless
23 continually refuse to accommodate his needs. A Classification Referral form dated March
24
25 20, 1992, notes that Mr. Atkins is deaf and "he will need a Special Needs Unit."

26

52. On January 11, 1995, with the help of other prisoners, Mr. Atkins wrote a

27 letter to Tana Wood, Superintendent of WSP. In this letter, he requested access to a
28

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LÜ\

1 telecommunication device for the deaf; assistive devices to alert him to meals and other
2 activities; a teacher capable of communicating in sign language; a sign language interpreter
3 to assist him at disciplinary and classification hearings and health care encounters; and a
4
5 mental health counselor who can communicate in sign language.

6

53. On February 4, 1995, prison officials held a meeting with Mr. Atkins to

7 respond to his January 11, 1995 letter. The only interpreter services provided at the meeting
8 were those of Allen Renwick, a DOC employee who works in the accounting department of 9
WSP. Mr. Renwick is not a qualified interpreter; indeed, after evaluating Mr. Renwick's 10
interpretation skills, defendants represented to the Court that he will never again provide 11
12 interpreter services to deaf prisoners. Even after this meeting, defendants failed to

13 accommodate Mr. Atkins' needs as a deaf person.

14

54. The minutes of a March 21, 1995 Classification Committee meeting at WSP

15 state that "[t]he program at this institution doesn't meet [Mr. Atkins'] special hearing and
16 educational needs." A Classification Referral dated August 9, 1995 from WSP states that
17 "[h]e has special needs that cannot be met at this institution."
18

19

55. Mr. Atkins was transferred to TRCC in January 1997. At that institution he

20 continues to be denied access to qualified interpreters and other auxiliary aids and services

21 that he needs because of his deafness.

22

56. Mr. Atkins is a handicapped and disabled person within the meaning of the

23
Rehabilitation Act of 1973, 29 U.S.C. § 701, et sea., and the Americans with Disabilities
24

Act of 1990, 42 U.S.C. § 12101, et sefl.
25

26

57. Mr. Atkins is otherwise qualified to participate in health care, education,

27 classification proceedings, disciplinary proceedings, and other services, programs and

28

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•si*.

1 activities in DOC.
2 58. Defendants have refused to provide Mr. Atkins with qualified interpreter
3 services and other auxiliary aids and services he requires because of his disability. In so
4
5 doing, defendants have denied Mr. Atkins the benefits of services, programs and activities

6 offered in DOC, and have subjected him to discrimination on the basis of his deafness.

7

59. As a prisoner, Mr. Atkins is periodically required to participate in

8 classification and disciplinary proceedings in DOC. Defendants have refused to provide Mr.
9 Atkins with a qualified or certified interpreter for these proceedings. As a result, Mr. Atkins
10
has been unable to understand and meaningfully participate in these proceedings, and has 11

12 suffered disciplinary sanctions. For example:

13

(a) On or about October 19, 1993, Mr. Atkins was charged with a

14 disciplinary infraction and a disciplinary hearing was held. Although staff recognized the

15 need for a sign language interpreter, no interpreter was provided. Mr. Atkins was found
16 guilty of the infraction, and was sentenced to 10 days of confinement to quarters, and lost
17
120 days of good time. 18

19

(b) On or about November 30, 1993, Mr. Atkins was charged with

20 disciplinary infractions and a disciplinary hearing was held. No interpreter was provided.

21 Mr. Atkins was found guilty of the infractions, and was sentenced to 10 days of segregation,
22 and lost 90 days of good time.
23 (c) On or about July 7, 1997, Mr. Atkins was charged with a disciplinary
24 infraction and a disciplinary hearing was held. The only interpretation services provided
25
26 were those of Frances Linder, a correctional mental health counselor employed by
27 defendants. Ms. Linder is not a certified or qualified sign language interpreter. Mr. Atkins

28

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1 was found guilty of the infraction, and was sentenced to cell confinement and extra duty.
2 60. The sanctions alleged in the previous paragraph created atypical and significant
3
hardship to Mr. Atkins and caused a major disruption in his environment. 4

5

61. Mr. Atkins periodically requires, and is eligible to receive, health care

6 services in DOC. Defendants have refused to provide Mr. Atkins with a qualified interpreter

7 for his interactions with health care personnel. As a result, Mr. Atkins has been unable to
8 communicate adequately with health care personnel about his medical needs. For example:
9 (a) On or about February 28, 1994, Mr. Atkins was seen by Dan Delp,
10 11 Physician Assistant. No interpreter was provided. Mr. Delp wrote the following note in
12 Mr. Atkins' file: "Mr. Atkins is deaf. I know no sign language, and his penmanship is very

13 poor and very difficult to read. I did manage to understand that he is requesting to have a

14 sack lunch at night. I never did find out why."
15 (b) On or about October 23, 1995, Mr. Atkins was seen by Ronald W. Fleck,
16 M.D., because Mr. Atkins was complaining of weight loss. The only interpretation services
17
18 provided were those of Mr. Renwick.

19

(c) On or about January 27, 1997, Mr. Atkins was seen by a health care

20 provider at TRCC, because Mr. Atkins was complaining that he was not getting enough to
21 eat. Mr. Atkins was not provided with a qualified interpreter for this medical encounter. 22
(d) On or about October 24, 1997, Mr. Atkins was seen by a dentist at 23
TRCC. The only interpretation services provided were those of a prisoner. This prisoner is 24
25 not a qualified or certified interpreter and, unlike a certified interpreter, is under no

26 obligation to treat as confidential the private medical information he learns in the course of

27 interpreting for Mr. Atkins. 28

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1 62. Mr. Atkins is eligible to participate in educational programs in DOC.
2 Defendants have refused to provide Mr. Atkins with a qualified interpreter for these
3 programs. As a result, Mr. Atkins has been excluded from participation in and denied the
4
5 benefits of educational programs, including basic education, solely because of his disability.

6

63. Because of his deafness, Mr. Atkins is unable to hear announcements of

7 meals, recreation, and other prison activities, as well as emergency alarms and
8 announcements. Defendants have refused to provide Mr. Atkins with assistive devices, 9
auxiliary aids, or any other alternative means of notifying him of these activities. As a 10
result, Mr. Atkins has often been excluded from participation in these activities solely 11
12 because of his disability.

13

64. Because of his deafness, Mr. Atkins is unable to use a regular telephone.

14 Defendants have failed to provide Mr. Atkins with access to a TTY telephone that is equal to
15 the access hearing prisoners have to a regular telephone. Thus, Mr. Atkins has been denied 16
the benefit of these telephone services solely because of his disability. As a result, Mr. 17
Atkins has been unable to communicate adequately with family members and with his 18 19 attorneys.

20

65. Defendants have failed to inform Mr. Atkins of his rights and remedies under

21 the ADA.

22

66. Mr. Atkins has exhausted such administrative remedies as are available to him.

23 VII. CAUSES OF ACTION
24

67. By excluding deaf and hearing impaired prisoners from participation in and 25

26 denying them the benefits of prison services, programs, and activities because of their

27 disability (as alleged above and incorporated herein by reference), defendants have violated

28

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(.

` /

1
the Americans With Disabilities Act, 42 U.S.C. §§ 12131-33, and regulations promulgated

2

thereunder, 28 C.F.R. Part 35.
3

4

68. By excluding deaf and hearing impaired prisoners from participation in and

5 denying them the benefits of prison services, programs, and activities solely because of their

6 disability (as alleged above and incorporated herein by reference), defendants have violated

7 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and regulations promulgated 8
thereunder, 28 C.F.R. Part 42.
9
69. By denying deaf and hearing impaired prisoners a qualified interpreter for 10 11 disciplinary proceedings (as alleged above and incorporated herein by reference), defendants
12 have deprived them of liberty without due process of law, in violation of 42 U.S.C. § 1983

13 and the due process clause of the Fourteenth Amendment to the United States Constitution.

14

70. By denying deaf and hearing impaired prisoners a certified interpreter for

15 disciplinary and parole proceedings (as alleged above and incorporated herein by reference),
16 defendants have violated their statutory rights under Wash. Rev. Code 2.42.120, as
17

18 interpreted and applied to defendants' conduct by the Ninth Circuit in this case.

19

71. By denying deaf and hearing impaired prisoners a qualified interpreter when

20 necessary to communicate with medical and mental health staff (as alleged above and

21 incorporated herein by reference), defendants have violated their right to confidential and
22 informed medical and mental health communications and decision-making in violation of 42
23 U.S.C. § 1983 and the Ninth and Fourteenth Amendments to the United States Constitution.
24

25

72. Defendants' ongoing failure to provide a qualified interpreter during medical,

26 dental, and psychiatric examination, diagnosis, and treatment also constitutes deliberate

27 indifference to the serious medical and psychological needs of deaf and hearing impaired 28

PLAINTIFFS' CONSOLIDATED COMPLAINT Page 18

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101 YESL·6R WAY, SUITE 301 SEATTLE. WASHINGTON 98104
(206) 4644838

1 prisoners in violation of 42 U.S.C. § 1983 and the Eighth Amendment to the United States

2
Constitution. 3

4

73. Defendants' failure and refusal to provide deaf and hearing impaired prisoners

5 with access to TTY telephones that is equal to the access hearing prisoners have to regular

6 telephones (as alleged above and incorporated herein by reference) violates the Americans

7 with Disabilities Act, 42 U.S.C. §§ 12131-33, and § 504 of the Rehabilitation Act of 1973,
8 29 U.S.C. § 794. 9
74. Defendants' failure and refusal to provide deaf and hearing impaired prisoners 10
with assistive devices and auxiliary aids (as alleged above and incorporated herein by 11
12 reference) violates the Americans with Disabilities Act, 42 U.S.C. §§ 12131-33, and § 504

13 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

14

75. Defendants' failure and refusal to inform deaf and hearing impaired prisoners

15 of their rights under the ADA (as alleged above and incorporated herein by reference)
16 violates the Americans with Disabilities Act.
17
VIII. PRAYER FOR RELIEF 18

19

Plaintiffs ask that the Court grant the following relief:

20

1. Certify a plaintiff class consisting of all deaf and hearing impaired persons

21 who are now, or who will in the future be, committed to the custody of the DOC;

22

2. Pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil

23
Procedure, declare that defendants have violated the ADA, the Rehabilitation Act, 42 U.S.C.
24

§ 1983, the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution,
25

26 and Wash. Rev. Code 2.42.120;

27

28

PLAINTIFFS' CONSOLIDATED COMPLAINT Page 19

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104
(206) 4644838

1 2\ 3 4 5
el
7| I
8 9
101
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

t`
3. if Pursuant to 28 U.S.C. § 2202 and Rule 65 of the Federal Rules of Civil Procedure, order that defendants, their agents, employees, and other persons acting in concert with them:
(a) cease violating federal and state law, as alleged above; (b) assess the communication abilities and needs of all deaf and hearing
impaired prisoners in their custody; (c) provide qualified interpreter services to deaf and hearing impaired
prisoners at no cost to them at prison services, programs, and activities; (d) provide certified interpreter services to deaf and hearing impaired prisoners at no cost to them at disciplinary and parole hearings; (e) Provide assistive devices and auxiliary aids to deaf and hearing impaired prisoners; (f) Provide deaf and hearing impaired prisoners with access to TTY telephones that is equal to the access hearing prisoners have to regular telephones; (g) Inform deaf and hearing impaired prisoners of their rights and remedies under the ADA; (h) promulgate policies and procedures for provision of these services to deaf and hearing impaired prisoners; (i) purge from the records of deaf and hearing impaired prisoners reference to every disciplinary infraction unless appropriate interpreter services (a qualified interpreter under federal law, a certified interpreter

PLAINTIFFS' CONSOLIDATED COMPLAINT Page 20

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104
(206) 464-0838

1
under state law) were made available to them during each disciplinary

2
proceeding; and 3

4

(j) grant deaf and hearing impaired prisoners all credit in the prison

5

placement, classification, and parole system that they would have

6

received if they had not been denied access to qualified interpreters and

7

other auxiliary aids and services;

8 4. Pursuant to state and federal law (as set forth above), plaintiff Sean Duffy
9 seeks compensatory and punitive damages in an amount to be established at trial;
10
5. Pursuant to 29 U.S.C § 794a(b), 42 U.S.C. § 12205, and 42 U.S.C. § 1988,
11

12 plaintiffs seek costs and disbursements herein, including reasonable attorney's fees; and

13

6. Such other relief as the Court deems just and proper.

14

DATED this T*` day of January, 1998.

15

16

HELLER. EHRMAN, WHITE & McAULIFFE

17

By:.

18

Leonard J. Feldman, WSBA #20961

19

Felix Gavi Luna, WSBA #27087

Attorneys for Plaintiff Sean Duffy

20

21

COLUMBIA LEGAL SERVICES

InstiíutiÕfis, Pro>fEct
22

23

24

Patricia J. Arthur, WSBA #13769

Jeff B. Crollard, WSBA #15561

25

David C. Fathi, WSBA #24893

26

Attorneys for Plaintiff Charles Atkins

27

28

PLAINTIFFS' CONSOLIDATED COMPLAINT Page 21

COLUMBIA LEGAL SERVICES
INSTITUTIONS PROJECT 101YESLER WAY. SUITE 301 SEATTLE, WASHINGTON 98104
(ZO6) 464-0838

Duffy v. Riveland

**

HW

•• ••

•• ••

•••••••••

• V

PC-WA-0003-0003

 
 Duffy v. Riveland

PC-WÄ 0003-0004

1

HONORABLE BARBARA J. ROTHSTEIN

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

SEAN G. DUFFY, et al. , 10

No. C92-1596R

Plaintiff,

No. C93-637R

11

v.

12

SETTLEMENT AGREEMENT

CHASE RIVELAND, et al.,

13

Defendants.

14

15

16

I. INTRODUCTION

17

A. The parties, defendants Chase Riveland, Joseph Lehman,

18 James Spalding, Tom Rolfs, Dave Savage, and Craig Yost; Washington

19 Department of Corrections, through their attorneys, Christine 0.

20 Gregoire, Attorney General, and Daniel J. Judge, and Thomas J.

21 Young, Assistant Attorneys General, and plaintiffs Sean Duffy and

22 Charles Atkins, and the class they represent, through their

23 attorneys, David Fathi and Jeff Crollard; and Leonard Feldman,

24 Felix G. Luna, and Marc P. Charmatz hereby agree that the attached

25 Stipulation and Order shall be entered, subject to the approval of

26 the Court and notice to the class members.

SETTLEMENT AGREEMENT - 1

ATTORNEY GENERAL OF WASHINGTON Criminal Jiutiee Diviiioo PO Box 40116 OfyapU, WA 9SSOM>H6 r¾sn» « < " "

B. The parties agree that this settlement agreement,

together with the stipulation and order to which it is attached,

are entered to resolve and settle all claims for injunctive

relief, attorneys' fees, and costs stated in Plaintiffs'

Consolidated Complaint filed February 10, 1998 under this cause

number.

C. This settlement agreement is not an admission by either

party regarding liability or violation of any law by defendants,

and this agreement may not be used as evidence in any proceeding

10 other than for the sole and limited purpose of enforcing this

11 agreement. The parties enter into the settlement agreement for

12 purposes of settling the disputed contentions and controversies

13 arising from this action.

14

II. DEFINITIONS

15

A. Deaf and Hearing-Impaired Prisoners: All inmates

16 incarcerated in Washington State Department of Corrections (DOC)

17 facilities now or in the future who are deaf or whose hearing

18 impairment substantially limits a major life activity.

19

B. Defendants: Defendants include the named defendants in

20 this action and their supervisors, officers, agents, successors,

21 employees and the Washington State Department of Corrections

22 (DOC).

23

C. Plaintiffs: Plaintiffs are Sean Duffy and Charles

24 Atkins, and all deaf and hearing impaired prisoners as defined

25 above, who are now, or who will in the future be, in the custody

26 of the DOC.

SETTLEMENT AGREEMENT - 2

ATTORNEY GENERAL OF WASHINGTON Crimmil Juit>¢e DWiñaa PO Box 40116 Olympú, WA 98504-0116 (360) 586-1445

1

III.

2

A. Defendants and Plaintiffs and Plaintiffs' class agree

3 that the plan adopted under this settlement agreement provides a

4 fair and equitable settlement of all claims for injunctive relief,

5 attorneys' fees, and costs stated in Plaintiffs' Consolidated

6 Complaint filed February 10, 1998 under this cause number.

7

B. On or by September 1, 1998, the Defendants shall

8 implement DOC Policy 490.050, attached to this agreement as

9 Appendix A, incorporated herein by reference. Thereafter, 10 Defendants and their successors shall maintain and enforce the

11 provisions pertaining to deaf and hearing-impaired prisoners

12 contained in DOC Policy 490.050 in substantially the same terms as

13 indicated in Appendix A. Nothing in this agreement shall be

14 construed to give Plaintiffs any right to enforce under this 15 agreement language under DOC Policy 490.050 that does not pertain

16 to deaf and hearing impaired prisoners. Nothing in this agreement

17 shall be construed to give individuals who are not Plaintiffs as

18 defined above any right to enforce this agreement.

19

C. Plaintiffs agree to cooperate in good faith with all

20 services provided under this agreement subject to an individual

21 plaintiff's right to waive services provided under this agreement

22 and to object in good faith to the adequacy of the accommodation 23 provided.

24

D. Within 30 days after entry of the final order of

25 dismissal, Defendants agree to pay Plaintiffs' counsel

26 $150,000.00. Defendants' payment of this sum will resolve and

SETTLEMENT AGREEMENT - 3

ATTORNEY GENERAL OF WASHINGTON Crmmal Justice Diviiioa PO Box 40116 OJympi», WA 98504-0116 (360) 586-1445

settle all of Plaintiffs' claims for attorneys' fees and costs.

E. Upon acceptance of this agreement by the court in this

matter, the parties agree that Plaintiffs' consolidated

complaint/class action shall be dismissed with prejudice.

However, this settlement agreement may be enforced by appropriate

motion in this Court by Plaintiffs or Defendants after: (1)

reasonable notice and an opportunity to correct alleged

8 deficiencies; and (2) the parties have reasonably attempted to

confer and resolve their disputes under this agreement through

10 meetings and non-binding mediation.

11

F. This settlement agreement shall be a contract and shall

12 be enforceable in a court of competent jurisdiction according to

13 the law of contracts of the State of Washington.

14

G. For a three year period, Plaintiffs' counsel shall

15 receive copies of the following documents beginning six months

16 after the execution of this Settlement Agreement, and every six

17 months thereafter:

18

1. Copies of DOC Policy 490.050, all directives, field

instructions, and administrative bulletins implementing that

19

Policy, and any modifications to such Policy, directives,

field instruction, or administrative bulletins as pertains to

20

deaf and hearing impaired prisoners.

21

2. Copies of the notification of rights form given to deaf

and hearing impaired prisoners, and any modifications to that

22

form.

23

3. Copies of grievances filed by deaf and hearing impaired

prisoners, and DOC staff responses thereto.

24

4. Copies of written approvals of qualified interpreters

25

who are not certified interpreters and a written summary of

the qualifications of such qualified interpreters.

26

SETTLEMENT AGREEMENT ¯ 4

ATTORNEY GENERAL OF WASHINGTON Crimiul Ju»üce Dnrilioa PO Box 40116 Olm>ia, WA 98504-0116 (360) 586-1445

1

5. Defendants shall permit plaintiffs' counsel and

plaintiffs' experts reasonable access to the DOC records of

2

members of the plaintiff class. Plaintiffs' counsel may

request copies of additional documents relevant to monitoring

3

defendants' compliance with this Settlement Agreement.

4

H. Rejection by the court of this agreement shall render

this settlement agreement null and void.

I. This agreement may be modified at any time by a written

and signed document executed by mutual agreement of Defendants and

Plaintiffs' counsel.

J. The parties stipulate, based upon the entire record,

10 that the relief set forth in this Settlement Agreement is narrowly

11 drawn, extends no further than necessary to correct violations of

12 federal rights, and is the least intrusive means necessary to

13 correct violations of federal rights.

14

K. In order to give the provisions contained herein an

15 opportunity to be implemented and evaluated, both parties agree

16 not to challenge this agreement for a period of four years.

17

Executed this _3*""cìay of

r18

19
DANIEL J. JUDGE 20 Attorney for Defendants
WSBA # 17392 21

-J t4nQ^

1998.

22
3ÜÑGV
23 Attorney for Defendants

JOSEPH D. LEHMAN 26 Secretary, Department of Corrections
State of Washington
SETTLEMENT AGREEMENT - 5

ATTORNEY GENERAL OF WASHINGTON Criminal Justice Diviiioo FO Box 40116 Olympú, WA 985OM)ll6 (360) 586-1445

1

2

Executed this

day of <J(A

3

4 DAVTD
WS2A # 24893
5 JEFF CROL·LARD
WSBA # 15561
6 Attorneys for .Plaintiffs
7 íî s\/\
8 LEONARTT FEL·DMÄN
WSBA # 20961
9 FELIX LUNA
WSBA # 27087 10 Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

SETTLEMENT AGREEMENT - 6

, 1998.
ATTOKNEY GENERAL OF WASHINGTON Crimm*l Juróce Divinon POBox4OU6 Olympii, WA 98504-0116 (360) 586-1445

DEPARTMENT CORRECTIONS

^JS^K _ ^ ^ ^ - . ^ - l¾¾7 • v J I—1 ¾ ^ I

===== ^^^|

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 1 of 11

EFFECTIVE DATE: September 1,1998 SUPERSESSION:
None AUTHORITY:
General authority of the Secretary of the Department of Corrections to manage and direct the Department, RCW 72.09.050.

PURPOSE:
To provide guidelines to identify disabled offenders, to assist disabled offenders with appropriate housing and program opportunities; and to ensure that their constitutional rights are met in a manner consistent with legitimate penological interest.
APPLICABILITY:
Department-wide

DEFINITIONS:
Assjst¡ve Device - An implement prescribed to assist or provide accommodation for disabled offenders. These devices include, but are not limited to: canes, crutches, wheelchairs, hearing aids, corrective lens, etc. Authorized or prescribed assistive devices shall only be removed for "cause."
Certified interpreter - A visual language interpreter who is certified by the state or is certified by the Registry Of Interpreters For The Deaf to hold the comprehensive skills certificate or both certificates of interpretation and transliteration.

Cause - The necessary removal of an assistive device to ensure the safety of persons, the security of the facility, or to maintain the integrity of an investigation, including collecting the device as evidence in a criminal or disciplinary investigation.
Disability · A physical impairment that substantially limits one or more of the major life activities of an individual.
Disabled Offender - For the purpose of this policy, a disabled offender is an offender who has a severe disability (i.e., Permanent Mobility Impairment, Permanent Hearing Impairment, Permanent Vision Impairment, Permanent Speech Impairment) as defined in this policy.

Effective Access - Means of access that provides the offender an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity. To provide such access, the Department may utilize alternative methods which may be less costly or intrusive to existing programs. The method, auxiliary aid, or service requested by the disabled offender will be given substantial consideration in the decision.

APPENDIX A

DEPARTMENT OF
CORRECTIONS

^^

_

POLICY \?*Wi' I KJ I— 3 \ ^ I

^=^=^= ^^^^

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 2 of 11

To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove barriers to access; and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.

P-U-L-H-E-S-D-X-T · A coding system that assigns a functional grade to offenders by utilizing a physical profiling system to evaluate the function of various organs, systems, and integral parts of the body: P · Physical Capability, U - Upper Extremities, L - Lower Extremities, H - Hearing, E - Vision, S - Mental Functioning, D - Dental, X - Functional Capacity, T - Transportation Demand.

Recognized Severe Disabilities: 1. Permanent Mobility Impairments:

• Permanent Wheelchair-Medical - Offenders with permanent medical conditions (a condition expected to last longer than six months) who use a wheelchair due to a permanent disability and who are currently housed or who require placement in a medical facility because of a medical condrtion(s).

• Permanent Wheelchair-Mental Health - Offenders with a mental condition who use a wheelchair due to a permanent disability and need placement in a facility that provides mental health services.
• Permanent Wheelchair - Offenders who are in wheelchairs due to permanent disability, require little or no medical assistance, can manage their own activities of daily living, and are able to live in an accessible general population setting.

• Permanent Mobility Impaired (non-wheelchair) - Offenders who do not require a wheelchair but who have a permanent lower extremity mobility impairment that substantially limits walking (e.g., cannot walk 100 yards on a level surface or climb a flight of stairs without a pause). Such an impairment may require the use of a cane, prosthesis, walker, etc.
2. Permanent Hearing Impairments - Offenders who are deaf or whose hearing impairment substantially limits a major life activity.
3. Permanent Vision Impairments - Offenders who are blind or who have a vision impairment not correctable to central vision acuity of less than 20/200, even with corrective lenses.
4. Permanent Speech Impairments - Offenders who have a permanent speech impairment (e.g. indiscernible speech or mute) and who cannot communicate effectively in writing.
5. Qualified Interpreter - a sign language interpreter who: 1) is approved in writing by a certified interpreter as able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary; and 2) promises in writing to abide by the Registry of Interpreters for the Deaf (R.I.D.) code of ethics for sign language interpreters. A qualified interpreter may only be approved by a certified interpreter. A certified interpreter is also a qualified interpreter.

6. TTY - Tele-Typewriter

DEPARTMENT OF
CORRECTIONS

,t^

_

POLICY W f l l • ‰-/ I — 3 \ ^ I

====== Ë===

POLICY NUMBER 490.050

TITLE .

DISABLED OFFENDERS

Page 3 of 11

7. TDD - Telecommunication device for deaf persons.

8. Undue Burden - An undue burden is defined as: (1) causing fundamental alteration of a service, program, or activity; or (2) causing undue financial and administrative burdens. The decision that an undue burden would result must be made by the Secretary or his designee after considering factors (1) and (2) above. In considering factor (2), the Secretary or his designee shall consider all resources available for use in the funding and operation of the Department's service, program, or activity. If the action would create an undue burden, then the Department shall take other steps to provide effective access.

POLICY:

I. Standards:

A. The following standards are applicable to all DOC facilities that have custody of disabled offenders.
1. Effective Communications:
a. The Department shall take appropriate steps to ensure disabled offenders' communication with staff, other offenders, and where applicable, the public, are as effective as non-disabled offenders' communication with such persons.
b. The Department shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability the equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.
c. Auxiliary aids which are reasonable, effective, and appropriate to the needs of the offenders shall be provided when simple written or oral communication is not effective. Such aids may include, but are not limited to: certified interpreters, qualified interpreters, readers, sound amplification or tactile devices, captioned television/video text displays, TTYs, taped texts, Braille materials, and large print materials.

d. Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication. In determining what type of auxiliary aid and service is necessary, the Department shall give substantial consideration to the requests of the individual with disabilities.

e. Disabled Offenders shall be provided effective access to the courts, attorneys, and health care services. Communications for health care services shall maintain the need for confidentiality between the health care provider and the offender. Communications where the offender's life may be in danger, or where there is an expectation of privacy, shall also maintain the need for confidentiality to the offender.

DEPARTMENT OF
CORRECTIONS

^s^ m9S

POLICY _
• \*J I — 1 W I

^^^^= ^^^=

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 4 of 11

II. General Requirements:
A. Disabled offenders, to the extent they are able, are responsible for making their needs known to medical and/or classification staff.

B. To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove bamers to access; and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.

C. Facilities that house disabled offenders shall ensure that the offender receives effective access as outlined in this policy and through state or federal law.
D. Offenders with specified disabilities of a temporary nature or of lesser severity than defined in this policy can be provided effective access while in the general population. Facilities are responsible for providing housing and programming for these offenders on a case-by-case basis.

E. Regional Administrators shall assign a coordinator for each region, who shall be responsible for maintaining a resource directory for use in finding assistive devices, qualified and certified interpreters, and other resources that may be necessary to implement this policy.
F. When a certified or qualified interpreter, or other assistive device or service, is not otherwise required under this policy, nothing in this policy shall be construed to prevent or discourage Department staff from communicating with deaf or hearing impaired offenders through written notes, pantomime, gestures, sign language, or other forms of communication.

G. An offender may waive services provided for under this policy. If an inmate requests an interpreter other than a qualified interpreter, such an interpreter may be provided.

III. Identification:

A. Identification of disabled offenders shall normally occur during Reception Center Processing. The extent of the disability and what accommodations are necessary shall be assessed by persons qualified to evaluate the disabled offender's disability and accommodation needs.

B. An offender may be referred to health care staff when:

1. The offender voluntarily self-identifies or claims to have a disability; 2. During interaction with the offender, staff observe signs of a disability; or

3. Health care or central file record contains documentation regarding a disability.

C. Health care staff shall conduct a medical evaluation of the offender to verify or rule out the existence of a disability. The evaluation and findings shall be documented. The documentation shall be placed in the offender's health record, and on OBTS HS.

DEPARTMENT OF
CORRECTIONS

POLICY ×f¶t>^
V*W«ô' I

_ _ V ^ L_ I V ^ I

^^^^= ^^^^=

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 5 of 11

IV. Facility Placement

A. In those situations where a disabled offender does not have any additional health care problems, the offender shall be placed into a facility consistent with his/her safety and security needs.

B. Disabled offenders with additional health care concerns should be placed in a facility that has established health care program(s) suited to treat those specific health care concem(s).

V. Tracking
A. Disabled offenders shall be tracked in the Offender Based Tracking System (OBTS) by (P-U-L-HE-S-D-X-T) = The Physical Profiling System.
B. Offenders identified as disabled shall be flagged on the OBTS D 1-14 screen.
VI. Safety and Security Concerns
A. Legitimate safety and security concerns shall take precedence over any accommodation afforded disabled offenders and may result in the temporary or permanent suspension of any accommodation for cause. The Department is not required to provide accommodation for disabled offenders:

1. If the accommodation poses a threat to the safety and/or security of facility, staff, offenders, or the public;
2. When the accommodation adversely affects legitimate penological interests such as protection of the health and safety interests of offenders and staff, deterrence of crime, and maintenance of offender discipline;
3. If the accommodation poses a direct threat of substantial harm to the health or safety of the offender or others, including staff, other offenders or the public; or

4. If the accommodation would create an undue burden. VII. General Identification and Notification

A. Facilities shall develop processes to address and provide for the effective identification and notification of disabled offenders.
1. An ID card/picture of hearing and visually impaired offenders shall be maintained in an appropriate unit location to ensure that unit staff can easily identify and assist these offenders when needed.

2. The front of ID cards of deaf and blind offenders will be clearly marked with the words "DEAF or "BLIND¯.

3. Procedures shall be put into effect to instruct staff to contact hearing-impaired offenders, using effective means of communication, to provide access to public address announcements and/or reporting instructions. Visual alerting devices may also be used if feasible.

DEPARTMENT
OF CORRECTIONS

POLICY

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 6 of 11

4. Procedures shall be put into effect instructing staff on proper methods of providing visually impaired offenders with notices, announcements, and other printed materials that offenders need to know.

VIII. Emergencies

A. Facility evacuation procedures shall address and provide for the effective evacuation of disabled offenders.

B. When a disabled offender is assigned to a facility, s/he shall be instructed on local evacuation procedures which address and provide for his/her effective evacuation.

C. Staff are responsible for assisting disabled offenders in an emergency.

IX. Use of Restraints

A. Restraints shall be applied in such a manner as to maintain custody and control of offenders. . Offenders whose disability precludes prescribed application\method of restraint equipment shall be provided reasonable modification under the direction of the supervisor in charge to ensure effective application. Offenders who need a sign language interpreter for effective communication shall be allowed use of their hands for signing after staff has determined it is safe to not restrain their hands.

×. Searches

A. Clothed and unclothed body searches shall be conducted in a manner that maintains prudent security practices. The shift supervisor/designee shall provide directions for searching offenders whose disability precludes routine search methods.

XI. Disciplinary Process

A. Disabled offenders shall be provided the same disciplinary process as other offenders with the following exceptions:

1. Offenders shall be provided effective access to these proceedings.

2. Effective communication between staff and disabled offenders in the offender disciplinary process may require other assistive devices to communicate effectively. Such methods include, but are not limited to:
a. A qualified interpreter or reader
b. Aids such as:

1) Tactile alerting devices, 2) Sound amplification devices, 3) Captioned television/video displays, 4) TTY, 5) Taped texts, 6) Braille materials, and/or 7) Large print materials;

DEPARTMENT OF
CORRECTIONS

,<^

_ _

POLICY \?*W# I V ^ 1 — I V ^ I

^^^^ ^^^^

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 7 of 11

c Use of a staff advisor.
3. During major disciplinary hearings, certified interpreters must provide assistance to offenders who because of a hearing or speech impairment cannot readily understand or communicate in spoken language.
XII. Orientation
A. Upon arrival at a facility, including the Reception Centers, disabled offenders shall be provided an adequate orientation via an effective means of communication including, but not limited to, the attached notice of rights.

XIII. Telephone Use
A. Facilities shall provide procedures necessary for permanent hearing impaired offenders to have effective access to telephonic communications.

B. The following means of telephonic communication shall be provided to permanent hearing impaired offenders:
1. TTY: A TTY shall be made available for personal telephone calls between offenders and family/friends and for legal telephone calls with attorneys.
2. TTY/Voice Relay Services: The TTY/voice relay service allows communication between persons with hearing impairments even when one does not have a TTY. This process is very time consuming because all verbal communication from the hearing person must be teletyped to the deaf person, and the deaf person must teletype the message back to the operator.

3. TTY calls shall be allowed extended time increments due to the time delay caused by the TTY relay process.
XlV.VIsiting
A. Disabled offenders shall have effective access to visiting consistent with that of other offenders.
XV. Recreation
A. Disabled offenders shall be provided effective access to recreation. Staff shall be made aware of the identity of disabled offenders and the nature of the disability so they can provide assistance if needed.

XVI.Property

A. Approved health appliances and/or assistive devices shall not be included in the space limits established for offender personal property.

B. Consideration and approval for the procurement of health appliances and/or assistive devices shall be made by the facility health care manager. Health appliances and/or assistive devices shall be transferred with the offender in accordance with DOC 440.000 Offender Personal Property.

DEPARTMENT
OF CORRECTIONS

POLICY ^m^

_

* l r ø I \ J l__ ] V-T I

^^^^= ^^^^

POUCY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 8 of 11

XVII.Issuance of Wheeichairs\Assistive Device(s)

A. When an offender is received in the custody of DOC and has personal possession of h¡s\her wheelchair, the offender may request to retain the wheelchair. The Superintendent shall make the final decision based upon whether the device can meet safety and securityrequirementsor can be modified to meet safety and security requirements.

B. Any offender who requires the use of a wheelchair, prosthetic device(s), or other assistive device(s) shall bereferredto health care services for verification of specific equipment needs.

1. Health care shall prescribe a wheelchair and/or assistive device(s) for offender use and shall determine if the equipment needed is temporary or permanent. This requirement shall be documented in the offender's health care record and on OBTS HS.

2. The cost ofrepairsto wheelchair(s) and/or assistive device(s) owned by offenders shall be handled in accordance with the Health Care Plan.

C. The Superíntendent/designee may, on a case by case basis, permit offenders with customized wheelchairs and/or assistive devices to retain those items following release. In those cases where state owned wheelchairs and assistive devices return to state property upon the offender's release, a DOCrepresentativewill assist the offender with obtaining necessary devices from other sources.

XVIII.Offender Programs

A. Programs must be modified for disabled offenders. Exclusion shall be based on one of the following criteria:

1. The disability presents a valid safety and/or security concern;

2. In order to provide the modification for access, it would substantially alter the nature of the program;

3. In order to provide modification for access, it would present an undue burden to the facility/Department;

4. The offender is unable to perform basic or essential functions of the program; with or without reasonable accommodations, or

5. The offender is not qualified for the program.

B. Evaluation of an offender's eligibility for a facility program assignment shall be done on a case-bycase basis.

XlXProgram Access Determination

A. Disabled offenders shall be evaluated by Health Care Staff and Classification Committee staff for their ability to participate in work, education, or other program activity. Staff qualified to evaluate an offender's disability shall participate in the evaluation of an offender's ability to participate in the program activity.

DEPARTMENT OF
CORRECTIONS

POLICY ^ ^

_ _

__ ^^^^=

`¶m&Š • ‰J l _ 1 V ^ I

^^^^

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 9 of 11

B. The Department shall afford disabled offenders the opportunity to participate in a work program. If the offender has been provided effective access, the offender must be able to perform basic and/or essential functions of the work assignment.

C. Academic assignments should be adaptable to the needs of disabled offenders who can perform the essential functions necessary for achieving the goals of the class and who are otherwise qualified for the class.
XX. Minimum Facil¡ty/Pre-Release/Work Release Placements

A. Disabled offenders shall not be precluded from assignment to a minimum facility, pre-release, or work release based solely upon their disabilities. The Department shall evaluate the offender's disability, on a case-by-case basis, in considering assignment to a minimum, pre-release, or work release facility.

XXl.Transportation

A. Special or particular needs of disabled offenders shall be taken into consideration and accessible means of transportation provided. Disabled offenders normally will not be transferred without their special aids or assistive equipment.

XXII.Removal of Assistive Devices

A. Authorized or prescribed assistive devices shall be removed from disabled offenders only for "cause."

1. If an assistive device was used in a serious incident (i.e., assault, weapons manufacture, etc.) or presents a direct and immediate safety and security concern, it may be immediately removed by any custody employee present as soon as it is safe to do so.

2. Department officials may remove assistive devices to curtail use of such devices to violate prison rules, or as part of a sanction from a disciplinary proceeding resulting from such behavior, or both.

a. A pattern of behavior involving the inappropriate use of an assistive device over a reasonable period of time may result in removal of the device for an indeterminate period. When an assistive device is removed for an indeterminate period, the need to continue removal shall be reviewed initially within one month of removal and at least monthly thereafter. These reviews shall include a medical evaluation of the offender's progress without the device.

b. If the device is restricted for a determinate period, the offender shall be issued an infraction. The offender shall be referred to the Classification Committee for a hearing for confirmation of the restriction from the assistive device pending adjudication of the disciplinary charges. If the restriction is confirmed and the offender is found guilty, the restriction period shall be assessed according to the offense. The restriction period shall commence on the day the assistive device was first removed from the offender. The need to continue the restriction shall be reviewed every 90 days by the Classification Committee. This review shall include a medical evaluation of the offender's progress without the device.

DEPARTMENT OF
CORRECTIONS

POLICY J<tt¶^
\*lp«3' •

_ _ \*J l _ 9 V ^ I

^^^^ ^^^^=

POUCY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 10 of 11

3. The Shift Commander may temporarily authorize a continued disallowance of an ass«Stive device based on cause; however, the steps below must be followed as soon as possible or on the following work day. This process should in no way infringe upon standard procedures for crime scene preservation, evidence collection, emergency response, or any other measure necessary to ensure safety and security.

a. Consult the Health Care Manager/designee regarding the offender's ability to function in the cell without the device and explore alternative means of "in-celi" modification (i.e., scoot stools for wheelchairs, etc.)
b. Inform the Superíntendent/designee of the incident and the options for in-ceü modification, and request authorization to remove the device or make a modification.
c. If a decision is made to remove the device, the assistiye device will be removed and stored in a designated alternate location in the unit. The original assistive device will be made available to the offender when s/he is removed from the ceil for yard, escorts, visits, etc.

XXIII,Administrat¡ve Segregation/Intensive Management Units

A. Accessible housing shall be established at designated facilities. Where not currently available, alternative secured housing may be temporarily established in appropriate locations.

1. All assistive devices must be approved for retention by the Administrative Segregation/Intensive Management Unit Manager. Decisions to disallow assistive devices shall be made within three working days of placement in accordance with DOC 320.200.
2. Whenever it becomes necessary to remove an assistive device from a disabled offender housed in administrative segregation or the Intensive Management Unit to ensure the safety of persons or the security of the facility, the Unit Manager shall ensure the steps in XXII. A. 3. a - c of this policy are followed.

XXIV.Training

A. Department staff having direct contact with deaf or hearing-impaired offenders shall be trained regarding the special communication needs of deaf and hearing-impaired offenders and this policy.

×XV.Grievances
A. The inmate grievance system will receive complaints from disabled offenders. Disabled offenders may request through that process accommodations that were not previously provided. Denial of an accommodation based on undue burden shall be made in writing, pursuant to the definition of undue burden above, inresponseto a grievance. Disabled offenders shall be offered and provided effective access to the grievance system.

REVIEW:

The Policy Coordination Committee shall coordinate the review of Department policies at least every two years and update as needed.

DEPARTMENT OF
CORRECTIONS

POLICY ^ ^
`¢^VJJ I

_ _ __ V-/ l_1 V> I

^^^^ ^^^^

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 11 of 11

REFERENCES:

DOC Policy 300.380; DOC Policy 500.000; Americans With Disabilities Act 42 U.S.C. Section 12101 et seq.; Rehabilitation Action of 1973 Section 5O4(a), as amended, 29 U.S.CA Section 794(a)

ATTACHMENTS:

Notice Advising of Rights

7jpéephD. Lehman, Secretary

J 7 Date

DOC 490.050 Attachment 1
OFFENDERS WITH DISABILITIES NOTICE OF RIGHTS FOR OFFENDERS WITH DISABILITIES

THE RIGHT TO REASONABLE ACCOMMODATIONS
Disabled offenders have the right to receive "reasonable accommodations" to make programs and services more accessible.
To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove barriers to access; and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.

Deaf and Hearing Impaired Offenders may get an interpreter and other services at facilities where needed in:

- Disciplinary Hearings - Dental - Grievances

- Parole ¯ Medical - Programs - Mental Health - Education

HOW TO ASK FOR A REASONABLE ACCOMMODATION
Disabled offenders must ask for accommodations, interpreters, and other services in person or in writing. In this facility, ask your Classification Counselor or any other DOC staff.

HOW TO MAKE COMPLAINTS
Offenders who are denied a reasonable accommodation, or believe they were discriminated against by DOC staff because of their disabilities have the right to file a grievance under the "Offender Grievance Program."

DISTRIBUTION: This notice shall be posted in prominent places at each DOC facility.
September 1998

1

THE HONORABLE BARBARA J. ROTHSTEIN

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10

11 SEANG. DUFFY, etal.,
12
Plaintiffs, 13

14

v.

CHASE RIVELAND, et al., 15
Defendants. 16

No. C92-1596R DECLARATION OF SERVICE

17

I, Alice Van Oppen, do hereby declare under penalty of perjury under the laws of the

18 State of Washington as follows:

19

I am an employee in the law firm of Heller, Ehrman, White & McAuliffe, 6100

20 Columbia Center, 701 Fifth Avenue, Seattle, Washington 98104. On thecP-/ day of August,

21 1998, I served the following documents by the methods set forth below upon counsel of record

22 and others at the address and in the manner described below:

23

Documents served.

24

Plaintiffs' Motion to Approve Settlement of Class Action;

25

Memorandum in Support of Motion for Order Approving Settlement of Class Action;

26

27 DECLARATION OF SERVICE - 1
28

HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

1

Declaration of Leonard J. Feldman in Support of Motion for Order Approving

Settlement of Class Action;

2 [Proposed] Order Granting Plaintiffs' Motion Approving Settlement of Class Action;

3 Stipulation and Order;
4
Declaration of Service.
5
Parties served: 6
Thomas J. Young 7 Office of the Attorney General
Corrections Division 8 Post Office Box 40116
Olympia, Washington 98504-0116 9

By U.S. Express Mail

David C. Fathi 10 Staff Attorney
Columbia Legal Services 11 101 Yesler Way, Suite 301
Seattle, WA 98104 12

By mail

Marc P. Charmatz 13 National Association of the
Deaf Law Center 14 814 Thayer Avenue
Silver Spring, MD 20910 15

By mail

Daivd Beauchamp, #763736 16 Washington Correction Center
P. O. Box 900 Pine Hall 17 Shelton, WA 98584

By mail With selected exhibits

18 Clayton D. Gerlach, #758093

19

Washington State Penitentiary 1313 N. 13th Avenue

20 Walla Walla, WA 99362

21

Walter Thomas Steele Jr. #991146 Washington Correction Center

22

P. O. Box 900 Shelton, WA 98548

23 Efren Lopez Gamboa, #291006
24 Washington State Penitentiary 1313 N. 13th Avenue
25 Walla Walla, WA 99362

By mail With selected exhibits
By mail With selected exhibits
By mail With selected exhibits

26 George Rocky Manos, #291238 McNeil Island Correction Center
27 P. O. Box 881000, Unit B 135-1 Steilacoom, WA 98388-1000
28

By mail With selected exhibits

DECLARATION OF SERVICE - 2

HELLER EHRMAN WHITE & M9\ULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098

Dana H. LeGer, #921062 Twin Rivers Correction Center P. O. Box 888 D3-03-Floor 16774 170th Drive S.E. Monroe, WA 98272-0888

By mail With selected exhibits

William D. Smith, #997341 Washington State Penitentiary 1313 N. 13th Avenue Walla Walla, WA 99362

By mail With selected exhibits

Bennett Titus, #755953
A.H.C.C. P. O. Box 1809 LA-34 8 Airway Heights, WA 99001-1809

By mail With selected exhibits

9 DOC #722736 Chapman A.H.C.C.
10 P. O. Box 1809 Airway Heights, WA 99001-1809
11
Earl J. Sweeten #253515 12 A.H.C.C.
P. O. Box 1809 NA 01-L 13 Airway Heights, WA 99001-1839

By mail With selected exhibits
By mail With selected exhibits

14

DATED ûúsQ/_ day of August, 1998, at Seattle, Washington.

16

17

Alice Van Oppen

18

19
O :\UF\DUFFY\SERVE2.DEC
20

21

22

23

24

25

26

27

28

DECLARATION OF SERVICE - 3

HELLER EHRMAN WHITE & MCAULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-709g

 
 CL·BRK OP THE COURT TOTTED STATES DISTRICT COURT 1 0 1 0 FIFTH AVE ROOM 2 1 5 SEATTLE WASHlNU!l!UN 98104
DAIVD BEAUCBAMP 1763736 WASHINGTON CORRECTION CENTER P.O.BOX 9 0 0 PINE H¾LL SHEL·TON WASHINGTON 98584

C`c
*¾iÿ

TO CLERK GF THE COURT: I wish to be added to the settlement of SE¾N G. DOFFY V CHASE
RIVELAND HO; C92-1596R. I wish to receive a oopy of the settlement so that I can see what is being offered. My disability is that I'm in a wheelchair, and in all the Institution they are not made assessable to wheelchair people.
I also wish to understand what the State is offering for all people with disability.
I'm presently in the WASHINGTON CORRECTION CENTER IN SHELTON WASHINGTON. 98584. AND I HOPE TO HEAR BACK SOON ON THIS MATTER.

DATE 29, 1998

RESPECTFULLY SUBMITTED DAXVD BEADCBANP f763736

Duffy v. R¡veland

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HONOSABLE BARBARA J. ROTHSREIN HONORABLE PHILIP K. SWEIGERT

UNITED STATES DISTRICT COURT" WESTERN DISTRICT OP WASHINGTON
AT SEATTLE

RECEIVED MAIL
JUL 1 3 1998
Ar SEATTLE CLEW U.S. 0I3ÍÎÎ1CI COURT rewi Bsracr of «Ä¾¡¾STON
ÐfJ"JTí

SEAN 0. DUFFY, •t al., Plaintiffs,
CHASE RIVELAND, •t al Defendants.

)
NO. C92-1596R
)
OBJECTIONS TO THE PROPOSED
) SETTLEMENT OF CLASS ACTION
)

Efren Lopez Gamboa, a prisoner at the Washington State

Penitentiary, and a Member of the class of Plaintiffs in this lav

suit, respectfully moves this court to consider the following

objections to the proposed settlement of this case.

1. Efren Lopez Gamboa respectfully objects to the term

"qualified" sign language interpreters being employed to

interpret for deaf prisoners during Major Infraction Disciplinary

Hearings.

2.

A Major Infraction Disciplinary Hearing is a

"quasi-judicial" hearing in nature (see Duffy v. Riveland, 98

F.3d (199?)), and a CERTIFIED interpreter MUST be employed,

instead of the proposed term of MAT be employed. 3. Supplementing the term CERTIFIED for qualified Trill
require the department of corrections to employ competent interpreter for the quasi-judicial Major Infraction Disciplinary Hearings, and this will prevent abuses on the part of disciplinary hearing officers.
I Efren Lopez 6amboa certify under pain, penalty, and perjury pursuant to 18 ü.S.C. Sec. 1621 and 18 ü.S.C. Sec. 1746 that the foregoing is true and correct. Respectfully submitted this 8th day of July, 1998..
Efren Lopes QamBoa 1313 North 13th Avenue Walla Walla, WA 99362 Washington State Penitentiary DOC #291006 (8C16)

1

(p> HONORABLE BARBARA J. ROTHSTEIN HONORABLE PHILIP K. SWEIGERT

2

3

4

R£C£!'ÆO MAÍL

5

AUG - <, 1998

6

.*? »MTl£ j

K» ..._

7

OífUIY

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 SEAN G. DUFFY, et al.,

11

Plaintiff(s),

12

vs.

13 CHASE RIVELAND, et al.,

14

Defendant(s),

15

No. C92-1596R
PETITION FOR WRIT OF PROHIBITION

16 In re SEAN G. DUFFY,et al., vs. CHASE RIVELAND, et al.,C92-1596R

17 PETITION FOR WRIT OF PROHIBITION, is sought by PETITIONER,GEORGE

18 ROCKY MANOS, to the United States District Court for the Western

19 District of Washington, at Seattle Washington.

20

I. RELIEF SOUGHT

21 Petitioner, George Rocky Manos, A class member, as defined in

22 PROPOSED SETTLEMENT, prays and seeks relief that the PROPOSED

23 SETTLEMENT in this case NOT be accepted by THIS COURT, signed by

24 the HONORABLE BARBARA J. ROTHSTEIN, DATED the 8th day of June,

25 1998. And the proposed Department of Corrections, POLICY 450.050

26 be found in violation of the American's with Disabilities Act of

/

27

PETITION FOR WRIT OF PROHIBITION - 1
28

7

1 1990, and the Ruling of the United States Supreme Court, of ju.

2 1998. And this case be forwarded to the 9th Circuit Court of

3 Appeals, where this Court knows, or should have known that The

4 Department of Corrections, State of Washington has shown a con-

5 tinued pattern and practice of NOT following it's OWN written

6 POLICY and are BIAS in decisions concerning Disabled Offenders

7 and their concerns! And where Officials / Management / Staff

8 and Agents of The Department of Corrections, State of Washington,

9 have shown their inability of enforcing POLICY on it's OWN,

10 thus, failing to perform their lawful duty, and violating, not

11 limited to The Federal Health Care Standards (since Offenders

12 are now required to pay medical co-pay[s]), under 18 U.S.C.S.

13 § 24 et seq. and when brought to their attention, Disabled

14 Offenders are Ignored, THEN when brought to their attention

15 through their OWN Inmate Grievance Proceedure, a proceedure that

16 is already in violation of and not limited to 42 U.S.C. § 1997,

17 28 C.F.R. Chapter 1, Part 40, the Disabled Offender is Retaliated

18 against.

19

Petitioner, George Rocky Manos, prays that this Court invest-

20 igate the Discrimination, Intimidation (tampering with), Harrass-

21 ment and Retaliation, and prays that the same be immediately

22 stoped by order of this Court, these ACTS, perpitrated by ALL

23 officials / Management / Staff / Agents of The Department of

24 Corrections, State of Washington, per 18 U.S.C. § 1512, 1513,

25 Disabled (Victim[s] in a United States Court Proceeding).

26

Petitioner, George Rocky Manos, prays that this Court ORDERS

27
PETITION FOR WRIT OF PROHIBITION - 2 28

Department of Corrections, State of Washington, IMMEDIATELY,

follow and abide by ANY and ALL Rulings of The United States

Supreme Court, including and not limited to The American's with

Disabilities Act of 1990, it's Building Codes and Occupancy of

Disabled Persons / Offenders, and changing of practices, not

limited to discrimination of Disabled Offenders by Increasing

the Offenders Custody (EXAMPLE; .MI-2 Offender [MINIMUM CUSTODY]

8 to MI-3 Offender [MINIMUM / MEDIUM CUSTODY], due to Offenders

Disability), depriving Disabled Offenders of Earned Advancement

10 in CUSTODY, as they promote Offenders that are not Disabled, to

11 Higher, Earned Advancement CUSTODY LEVELS!

12

II. ISSUES PRESENTED

13

A) That the Proposed Settlement in it's entirerty, violates

including and not limited to the American's with Disabil-

15

ities Act of 1990, per the NEW UNITED STATES SUPREME

16

COURT RULING of JUNE 1998.

B) The DEpartment of Corrections, State of Washington has

and is continually showing a continued pattern and prac-

19

tice of NOT following it's OWN written POLICY and is BIAS

20 I

in decissions on interpitation of policy, relating to

Disabled Offenders.

C) This Proposed Settlement does not include Offenders whom

*°

become Disabled during their incarceration.

D) Building Permits /Certificates of Occupancy issued to

institutions, proposed institutions, and those being 26

PETITION FOR WRIT OF PROHIBITION - 3 28

1 remodeled are in violation of The American's with Disabilities

2 Act of 1990, thus fraudulant, or the issuing counties are in

3 collaboration / conspiracy with The Department of Corrections,

4 State of Washington by their issue,

5

III. STATEMENT OF FACTS

6

A) The Department of Corrections, State of Washington has

7

had ampel time to write .and impliment POLICY, to abide

8

by the American's with Disabilities Act of 1990, but

9

has knowingly continued to avoid through it's Officials,

10

Management / Staff / and/or Agents to do so. And now

11

that The United States Supreme Court has Rule that they

12

must conform, The Department of Corrections, State of

13

Washington is trying to Settle this Class Action Law

Suit, discriminating against Disabled Offenders whom do

15

not fit the discription of being DEAF OR HAVE A SUBSTAN-

16

TIALLY HEARING IMPAIRED, where all Disabled Offenders

1'

would be effected by this Courts Decision.

B) The Department of Corrections, State of Washington has

a CONTINUED PATTERN AND PRACTICE of NOT following it's

20

OWN written POLICY and is BIAS in decisions and the

21

interpitation of POLICY relating to DISABLED OFFENDERS,

22

insomuch and not limited to NOT giving or promoting

23

Disabled Offenders to MI-2 Custody Levels, when earned

through GOOD BEHAVIOR, as with other Offenders...instead

The Department of Corrections, State of Washington will
26

27 PETITION FOR WRIT OF PROHIBITION - 4
28

1 place a MI-3 Medical and/or Mental Health Override on Disabled

2 Offenders. In Petitioner's Case, The Department of Corrections,

3 State of Washington has denied MI-2 Custody Status, which has

4 been earned and deserved by Petitioner for over 2 years, with

5 Petitioner's MODEL INMATE RECORD... BUT The Department of Cor-

6 rections, State of Washington and it's Officials / Management /

7 Staff / Agents has discriminated against Petitioner through his

8 disability, by not promoting him to MI-2 Custody Status and

9 allowing earned liberty and property in a lighter custody

10 enviornment.

H

C) Petitioner's Disability occured during his incarceration,

where he was failed proper medical care, per and not

limited to 18 Ü.S.C.S. § 24 et seq., Re: United States

District Court, Western Washington at Seattle Washington,

Case No. C98-0860Z. And where The Department of Correct-

ly

ions, State of Washington have, and not limited to(

17

11

failed to perform their lawful duty under The Federal

18

Health Care Standards and the VIII Amendment of the

United States Constitution and The American's with Dis-

20

^

abilities Act of 1990.

21

D) Building Permits / Certification of Occupancy(s) issued 22
to The Department of Corrections, State of Washington's 23
institutions, proposed institutions, and/or those being
24
remodeled are in violation of and not limited to the
25
American's with Disabilities Act of 1990, thus not con9fi
forming to County True Requirements, thus fraudulant, or
27

PETITION FOR WRIT OF PROHIBITION - 5
28

the issuing Counties are in collaboration / conspiring with The

Department of Corrections, State of Washington in their issue;

EXAMPLE:

CERTIFICATE OF OCCUPANCY COUNTY OF PIERCE, WASHINGTON

BUILDING INSPECTION DIVISION

6 McNeil Island BLDG, B

PERMIT #100066

OCCUPANCY GROUP : 1-3

ZONING CLASS : G

TYPE CONSTUCTION : I-FR

. USE DESCRIPTION :

M.I.C.C. INMATE HOUSING UNIT
8 BUILDING OWNER : WA. STATE DEPT. OF ADMIN.

ADDRESS
9 7/12/93

: 218 G-A BLDG AX-22, OLYMPIA, WA. 98504 Sam Ball, for Gordan Aleshire, Building Official

10 This Building now, nor has been in compliance with the require-
ments of The American's with Disabilities Act of 1990... and ...
11 it is also so with Offender Areas and Living Areas throughout
this and OTHER institutions built since 1992, by and for The
12 Department of Corrections, State of Washington, where Disabled
Offenders are housed.
13

14

REASONS WHY EXTRAORDINARY RELIEF APPROPRIATE

15

The reasons why Petitioner, George Rocky Manos, is asking for

16 Extraordinary Relief in this Class Action Suit is due to what is

17 Outlined in this Petition, and the Petitioner, George Rocky

18 Manos, Prays that if this Petition is not excepted as is that

19 this Petition be considered an OBJECTION to the SETTLEMENT in the

20 suit due to and NOT limited to the issues outlined in this PETIT-

21 ION.

DATED THIS 29th day of July, 1998.

22

Reaf>éc¾fully Submitted,

23

24

GEORGE ROCKY MANOS,291238

PETITIONER PRO SE

McNeil Island Correction Center

26

P.O. Box 881000 Unit B-135-1

Steilacoom, WA 98388-1000

27 PETITION FOR WRIT OF PROHIBITION - 6

28

1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

2

AT SEATTLE

3 SEAN G. DUFFY, et al.,

4

PLAINTIFF(S),

5 GEORGE ROCKY MANOS,

No. C92-1596R

MAIL AUG - k 1998
Ç t | M 111 0ISTWC1 COURT WESTERN OISKICT Of WASHINGTON
0EW1Y

6

Petitioner,

7

vs.

8 CHASE RIVELAND, et al.,

AFFIDAVIT OF SERVICE BY MAILING THROUGH INSTITUTIONAL STAFF

9

DEFENDANT(S).

10 STATE OF WASHINGTON )

11 COUNTY OF PIERCE

) ss: )

12

I, GEORGE ROCKY MANOS, Petitioner in the above cited case,

13 being first duly sworn upon oath, depose and say:

14

That I am a citizen of the United States of America, over the age of 42 years, and competent to be a witness herein.

15

That on the 31st day of July, 1998, I Mailed the Writ / Objection named below, by handing the same to Institutional

16

staff to mail LEGAL MAIL, to be deposited in the United States Mail, together with an Inmate Indigent "POSTAGE TRANSFER" slip,

17

for U.S. Postage Service, Certified mail, Return Receipt requested, for CORRECT POSTAGE AFFIXED. And the envalope(s) addressed

18

to: COLUMBIA LEGAL SERVICES

Leonard J. Feldman

19

David Fathi Jeff B. Crollard

Felix Gavi Luna Heller, Ehrman, White & McAuliffte

20

Attorney(s) at Law Institutional Projects

Attorney(s) at Law

"'•

701 5th Avenue, Suite 6100

21

101 Yesler Way, Suite 301

Seattle, WA 98104

Seattle, WA 98104-7098

22
Attorney General's Office

23

State of Washington

P.O. Box 40116

24

Olympia, WA 98504-0116

25

UNITED STATES DISTRICT COURT Western District, Washington Division I, Seattle 308 U.S. Court House 1010 Fifth Avenue Seattle, WA. 98104

26

27 AFFIDAVIT OF SERVICE BY MAILING - 1

28

1

2

3

Said Envalopes contained a copy of the following Document:
4 PETITION FOR WRIT OF PROHIBITION / OBJECTION to the SETTLEMENT

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON AT
5 SEATTLE

No. C92-Ï596R
6 Plaintiff(s)t
Petitioner,
7 Defendant(s),

Sean G. Duffy, et al·, George Rocky Manos, et al., Chase Riveland, et al.,

8 HONORABLE BARBARA J. ROTHSTEIN, AND
HONORABLE PHILIP K. SWEIGERT
9

10

I, George Rocky Manos, Petitioner/Plaintiff, Certify under the penalty of Perjury, Pursuant to the Laws of TraUnited States of

11

America and the State of Washington, that ttìß½B3regoing is true and correct, and has been executed this 3IJtTçay of July, 1998,

12 at Pierce County, Washington, McNeil Island, Washington.

13

14

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UNITED STATES MAGISTRATE-PHILIP K. SWEIGERX.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

SEAN G. DUFFY, el al., Plaintiff,
vs. CHASE RIVELAND, et al.,
Defendants.

) CAUSE NO. 92-1596R

) ) ) MOTION TO JOIN ACTION
)

)

8¡ ill 98

)

)

I 5 1998
otsvn

I. IDENTITIY OF PETITIONER. I, Dana H. Lege$, am a deaf person incarcerated at the TRCC facility in Monroe, Washington. II. PROBLEMS. When I was recently at Shelton in R-5 Unit I wanted to see the couselor. He would nol see me. He said because uf his Spainish accent it would be a wasle of lime. 1 can read lips. But officials would not give me a counselor who could help me. I has two hearing aids. Someone reached into my cell and stole one while knocking Ihe other onto thefloorand breaking il. This was al Shelton.

MOTION TO JOIN — Page 1 My 22,1998

On July 21, 1998 C/O Lawson told me because I was deaf that I would have to return to my Unit He also told me to come back when T could hear. After returning to my unit I told the female officer on duty what happened and she told the counselor. The counselor made a phone call and then I was told to go back. But where officiers are not trained or educated on dealing with the handicap this type of problem continuously happens.
I am interested in joining this lawsuit to improve the conditions within DOC for the hearing impaired. I need a hearing enhancer. TRCC officials do not have one. I need this to use the telephone when I have a hearing aid. Officials say they will replace my hearing aid in about two weeks. Without the enhance this does not permit me to communicate over the telephone.
I am sending a copy of this motion to counsel or record and the District Court. Another matter I would like to address is the unsanitary condition of overcrowding the TRCC facility. T have been put on the floor. Being hearing impaired T can not tell when someone is using the toilet which is only inches from my blankets. Urine splatters onto my bedding. Dust and crumbs collect on the floor. There is no room to move about And even though I will only be subjected to these conditions for a few weeks they are not healthy. The person 1 am being housed with has an incurable disease. The only way he can be cured is to have a liver transplant Arseneau #624917 has Heptitis C, it is active, and prison officials have acted with deliberate indifference to my welfare and saftey.
MOTION TO JOIN — Page 2 My 22,1998

Also, due to the overcrowding at TRCC counts are late, guards are unable to feed us our meals on time, we are being herded in a rush-rush manner through the messhall, there are frequent fights breaking out in messhaH lines and in the unit, movements are seldom ran on time, idlesness is being increased despite the Legislative directive of RCW 72.09.010 which orders DOC to reduce idleness, there are not enough jobs, the yard is closed on mornings, the Law library is closed on weekends (to even condense things all the more) and being handicapped in this crowded conditions this causes undo discomfort, stress, and Üie potential for violence for which I am left totally without any protection. Where I cannot hear it would be very easy for me to find myself in the violence of a riot unable to protect myself because prison staff have abandoned their post or left me to fend for myself.
I would like an immediate injunction placed against prison officials at DOC for this overcrowding and subjecting me as a handicapped person to such conditions. On about Jury 20, 1998 Captain Glebe said mat conditions would only get worse because Otympia has ordered mem to overcrowd TRCC even more.
The SETTLEMENT is a fraud pertetrated to leave us in dire straights. It allows DOC officials to put us in overcrowded institutions, next to urine, where violence may erupt at any second, often does, and promotes idleness in violation of Legislative directives which are clearly spelled out in RCW 72.09.010. Here it seems only the attorneys make out by collecting $150,000.00. DOC Policy 49O.OSO lias no meaning if DOC officials may treat us with apathy, telling us to come back when we can hear, or when they are allowed
MOTION TO JOIN — Page 3
July 22,1998

to place us in potentially dangerous situations with intentional and deliberate callousness and disregard for the law. Easy remedies, such as opening the yard on mornings, such has having the Law library open on weekends for everyone, instead of for a select few (as is done at Airway Heights and other institutions). Unless you are going to fix the problems we are facing a decree does absolutely no good. Obviously the problems are not fixed when they continue to go on, and the handicapped are so blatantly discriminated against by staff.
With üierighthand DOC is telHng us the problems are fixed. With the leñ hand they are doing everything possible to maintain, increase, and create dangerous conditions for the handicapped.
Please check these things out before putting this settlement into action. Respectfully submitted this 22th day of July, 1998.
DANA H. LeGe£ Petitioner, Pro Se P.O. Box 888 16774 170* Drive S.E. TWIN RIVERS CORRECTION CENTER D3-03-Floor DOC #921062 MONROE, WASHINGTON 98272-0888
MOTION TO JOIN — Page 4 My 22,1998

BRUCE RIFKIN CLERK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
OFFICE OF THE CLERK

215 U.S. COURTHOUSE SEATTLE, WASHINGTON 98104

Dana H LeGer Twin Rivers Corrections Center PO Box 888, D3-03-F1 #921062 16774 170™ Drive SE Monroe, WA 98272-0888

July 29, 1998

RE: C92-1596R, Duffy, et al v. Riveland. et al
Pet's MotiontoJoin Action has been placed on the Court's motion calendar for 8/14/98 as the motion was either not noted or not assigned a proper calendar date. For future reference, see Local Rule CR 7(d) for the United States District Court, Western District of Washington.
Sincerely,
BRUCE RIFKIN, CLERK

by. Kerry Lane, •Deputy Clerk
cc: all counsel court file
CR7(d) Consideration of Motions When there has been an adverse appearance, and unless otherwise provided below
or by rule or court order, motions shall be noted for consideration for the third Friday after the motion is filed. Motions for preliminary injunction, to dismiss, for summary judgment, and other dispositive motions shall be noted for the fourth Friday after the motion is filed. The motion shall include in its caption (immediately below the title of the motion) a designation of the Friday upon which the motion is to be noted upon the court's motion calendar. A motion may be noted for a Friday which is a holiday. The form shall be as follows:
NOTE ON MOTION CALENDAR: [insert date noted for consideration] All motions will be decided as soon as practicable, and normally within thirty days following the noting date.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

PRESENT: THE HONORABLE BARBARA JACOBS ROTHSTEIN UNITED STATES DISTRICT JUDGE

DATE:

AUGUST 18, 1998

SEAN G. DUFFY, et al., Plaintiffs,
V.
CHASE RIVELAND, et al., Defendants.

NO. C92-1596R

IN CHAMBERS PROCEEDINGS:
The court has reviewed the motion by Dana H. Leger seeking to be joined as a party to this action. The court will deny Ms. Leger's motion and will, instead, consider her pleading as an objection to the proposed settlement.

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Earl J. Sveeten #253515 Airvay Heights Corrections Center P.O. Box 1839 NA 01-L Airvay Heights, WA 99001-1839

July 23, 1998

RE: Objection to Proposed Settlement in Duffy v Riveland, NO. C92-1596R

Clerk of Court united States District Court 1010 Fifth Avenue, Room 215 Seattle, WA 98104

Dear Honorable Clerk of Court:

This is my notice of objection to the proposed settlement

in Duffy v Riveland, No. C92-1596R. My objection(s) are

limited to: 1. Any proposed settlement in vhich one type of

disabled individual otherwise covered under the ADA of 1990 is

to be treated as a subcategory, and; 2. Proposed placement of

such subcategory of disabled persons in a specified state

prison facility.

Qualified individual vith a disability: I am a 54 year

old severely disabled individual under the jurisdiction of the

Washington State Department of Corrections. I suffer from CVA

stroke induced permanent left side paralysis vhich includes

substantial nerve damage in my left ear resulting in my being

hearing impaired.

As a substantially hearing impaired

individual I claim status as a member of the class in the above

cited case.

The Washington State Department of Corrections nov, and

for the past three years, has utilized an unvritten practice of

"dumping mobility impaired inmates" at Airvay Heights

Corrections Center under guise of "medical needs", vhich is

discriminatory action in violation of the ADA of 1990. Through

the DOC's use of the PÜLHESDXT code (see proposed DOC Policy

490.050, p. 2 of 11, ¶2) all categories of disabled inmates are

routinely denied transfer to other DOC facilities vhich are

more appropriate in consideration of their individual custody

and time-left-to-serve status1, when those individuals ha/ve

high PÜLHESDXT codes. Such is a discriminatory practice/policy of "dumping of disabled individuals (hearing impaired)" included in the proposed settlement in vhich most/ if not all, disabled individuals - of the hearing impaired subcategory would then be "dumped" at the Washington State Reformatory. Such a division of disabled individuals into subcategories/ and lending legal credence to such divisions through the proposed settlement/ would then give license to the Washington State Department of Corrections to further categorize individuals with disabilities into other subcategories and "dump" those at other specified facilities in violation of federal mandates of equality under 42 UCS 2000; 42 USC 12101/ and; 29 ÜSC 701/ et. seq. The ADA of 1990 affords equality to individuals with disabilities in all walks of life; including prison facilities/ see; 28 CFS 1; 36 CFP Part 1191. Categorizing the hearing impaired as a subcategory of the disabled/ and then dumping them in a single proposed prison facility violates the intent of federal mandate under the above cited statutes.
As included in the proposed settlement the defendants offer a new DOC Policy 490.050/ supposedly intended to set policy prohibiting discrimination against the disabled/ in which it is clearly specified that when the disabled are discriminated against they may utilize the certified offender grievance process to resolve those issues. DOC Policy 490.050 is but a restatement/ albeit more clearly defined and specified/ than the pre-existing DOC Policy 100.500 which has been in effect since 1992 when the Duffy v Riveland case originated. Had defendants followed their own pre-exiting policy prohibiting discrimination in 1992 Sean Duffy would not have been forced to file this present complaint/ which cost him untold hours of litigations and the time and expense of the federal courts during the past six (6) years. The question for the court then becomes; defendants failed to follow DOC policy 100.500 in 1992 and are we disabled to believe that the defendants will follow their newly proposed DOC policy 490.050(?).

For those hearing impaired individuals such as Sean Duffy who prefer to be housed at the Washington State Reformatory they should/ of course, be afforded that choice/ just as all individuals with disabilities must be afforded assignment and access to all prison facilities so long as they othervise meet or exceed the criteria in regards to custody designations and/or time-left-to-serve on sentence(s).
The State of Washington's Department of Corrections has a legally imposed Congressional mandate to make all of its various prison facilities equally accessible to all individuals vith disabilities/ regardless of the individual's particular type, or category, of disability. The proposed settlement in this case is but a piece-meal patch work quick-fix resolution that fails to adequately address a judicious long term solution/ vhich if approved/ vill allow defendants to seek other piece-meal patch work quick-fix settlements in other such actions by other categories of disabled individuals. I ask the honorable court to reject the defendant's proposed settlement in this case.
Respectfully Submitted:
Earl J. Sweeten,

 
 THE HONORABLE BARBARA J. ROTHSTEIN
Duffy v. R¡veland

4

• mm • • • • • • mm

™

PC-WA-0003-0007

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10
SEANG. DUFFY, etal.,
11
Plaintiffs,
12
v. 13 CHASE RIVELAND, et al.,

14

Defendants.

15

No. C92-1596R
[PROPOSED]
ORDER GRANTING PLAINTIFFS' MOTION APPROVING SETTLEMENT OF CLASS ACTION

16

17

THIS MATTER having come on duly and regularly before the undersigned Judge of

18 the above-captioned Court, plaintiff Sean G. Duffy being represented by Leonard J. Feldman

19 and Felix Gavi Luna of Heller Ehrman White & McAuliffe, plaintiff Charles Atkins being

20 represented by, David C. Fathi and Jeff Crollard of Columbia Legal Services, and defendants

21 being represented by Washington Assistant Attorneys General Daniel J. Judge and Thomas J.

22 Young.

23

The Court has considered the pleadings on file herein, including the objections filed by

24 putative class members and plaintiffs' response to those objections. The Court finds (i) that
those objections are without substance and frivolous for the reasons stated in Plaintiffs'
25
Memorandum in Support of Motion for Order Approving Settlement of Class Action, and/or
26
(ii) that any substantial objections are addressed fully and fairly in that Memorandum, and
27

28 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION APPROVING SETTLEMENT OF
CLASS ACTION - 1

HELLER EHRMAN WHITE & M<ÄULIFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098
TELEPHONE (206) 447-0900

(iii) that the proposed settlement agreement is fair, adequate, and reasonable, as required by

federal law. Accordingly, it appearing that Plaintiff's Motion for Order Approving Settlement

of Class Action should be granted, now, therefore,

IT IS HEREBY ORDERED that Plaintiff's Motion for Order Approving Settlement of

Class Action is granted.

DONE in open Court this

day of

, 1998.

JUDGE BARBARA J. RÖTH5TEIN
9
Presented by: 10
HELLER, EHRMAN, WHITE & McAULIFFE
11

12 By Leonard J. Feldman, WSBA #20961
13 Felix Gavi Luna, WSBA #27087 Attorneys for Plaintiff Sean G. Duffy

14 COLUMBIA LEGAL^SERVICES 15

16

Bv David C. Fathi, W5BA #24893 ¾w

Jeff Crollard, WSBA #15561 "

Attorneys for Plaintiff Charles Atkins¯

18

19 O:\LJF\DUFFY\MOTIONS\APPSET.ORD

20

21

22

23

24

25

26

27
28 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION APPROVING SETTLEMENT OF CLASS ACTION - 2

HELLER £ H R M A N W H , T E & McAuuFFE
ATTORNEYS
6100 COLUMBIA CENTER 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104-7098
TELEPHONE (206) 447-0900

 
 JM
X
O

RECEIVED

SEP "31998

1

HELLER, EHRMAM HONORABLE BARBARA J. ROTHSTEIN

2

FILED

TIERED

3

4

5

„ „ _ , . < U . S . DISTRICT CQUHÏ WESTERN DISTRICT OF '.\ASHINÙI , J t p u T Y

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

10 SEAN G. DUFFY, et al.,

11

Plaintiffs,

No. C92-1596R NO. C93-637R

12

v.

STIPULATION AND ORDER

13 CHASE RIVELAND, et al.,

14

Defendants.

15

16

I. STIPULATION

17

The parties, Defendants Chase Riveland, Joseph Lehman, James

18 Spalding, Tom Rolfs, Dave Savage, and Craig Yost; Washington

19 Department of Corrections, through their attorneys, Christine O.

20 Gregoire, Attorney General, and Daniel J. Judge, Assistant 21 Attorney General, and Plaintiffs Sean Duffy and Charles Atkins, 2 and the class they represent, through their attorneys, David C.

23 Fathi and Jeff Crollard; and Leonard J. Feldman, Felix Luna, and

2 Marc P. Charmatz hereby agree that the following Order shall be

25 entered, subject to the approval of the Court and notice to the

26 class members. This Stipulation and Order are entered to resolve

STIPULATION AND ORDER - 1

ATTORNEY GENERAL OF WASÇ

Comcticmi Division I •\

PO Box 40116

j

Olympia, WA 98SM-0U6/

(360) 586-1445

and settle Plaintiffs' claims set forth in Plaintiffs

Consolidated Complaint filed February 10, 1998 under this cause

number. This stipulation is not to be construed or deemed an

admission by either party regarding liability or violation by

Defendants. The parties enter into the Stipulation for purposes

of settling disputed contentions and controversies arising from

7 this action.

8

Respectfully submitted this

day of

9

I

1998.

10
COLUMBIA LEGAL SERVICES 11 DAVID C. FATHI
WSBA # 24893 12 JEFF CROLLARD
WSBA # 15561
13

ATTORNEY GENERAL'S OFFICE THOMAS J. YOUNG WSBA # 17366 DANIEL J. JUDGE WSBA # 17392 Attorneys for Defendants

14

15 HELLER, EHRMÄN, WHITE and MCAULIFFE
16 LEONARD J. FELDMAN WSBA # 20961
r, FELIX LUNA
WSBA #27087
18
Attorneys for Plaintiffs
19
II. ORDER
20
This matter having been heard by the Honorable Barbara J.
21
Rothstein, United States District Judge, the parties having
22
stipulated to the entry of this order, notice to class members
23
having been issued, and all comments from class members considered
24
by the Court, the Court approves and enters the following ORDER:
25
1. This matter was filed on behalf of the named plaintiffs,
26
and the members of the proposed class against defendants Chase

STIPULATION AND ORDER -2

ATTORNEY GENERAL OF WASHINOTON Conectiooi Division PO Box 40116
OlympU, WA 98504-0116 (360) 586-1445

Riveland, Joseph Lehman, James Spalding, Tom Rolfs, Dave Savage,

and Craig Yost; Washington Department of Corrections.

2. The Plaintiffs' Class consists of: "All inmates

incarcerated in Washington State Department of Corrections (DOC)

facilities now or in the future who are deaf or whose hearing

impairment substantially limits a major life activity." The Court

finds that the requirements of Fed. R. Civ. P. 23 (a) and (b) (2)

are satisfied, and certifies this plaintiff class.

3. This order is based upon a fair, reasonable, and adequate

10 settlement agreement, attached to this order as Attachment 1 and

11 incorporated by reference herein in its entirety. This settlement

12 agreement sufficiently protects the class in accordance with Fed.

13 R. Civ. P. 23(e). Therefore, this Court approves the settlement

14 agreement. The Court finds that the relief set forth in the

15 Settlement Agreement is narrowly drawn, extends no further than

16 necessary to correct violations of federal rights, and is the

17 least intrusive means necessary to correct violations of federal

18 rights.

19

4. In accordance with the terms and conditions of the

2 0 settlement agreement attached to this order as Attachment 1,

21 Plaintiffs' Consolidated Class Action Complaint is dismissed with

22 prejudice.

23

5. As set forth in Attachment 1, this settlement agreement

24 may be enforced by appropriate motion in this Court by Plaintiffs

25 or Defendants' counsel after: (1) reasonable notice and an

26 opportunity to correct alleged deficiencies; and (2) the parties

STIPULATION AND ORDER -3

ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116
Olympi», WA 98304-0116 (360) 586-1445

1 have reasonably attempted to confer and resolve their disputes

2 under this agreement through meetings and non-binding mediation.

3

6. This stipulation and order is not an admission by either

4 party regarding liability or violation of any law by defendants,

5 and this agreement may not be used as evidence in any proceeding

6 other than for the sole and limited purpose of enforcing this

7 agreement. The parties enter into the settlement agreement for

8 purposes of settling the disputed contentions and controversies

9 arising from this action.

10

7. The clerk is directed to send copies of this order and

11 Attachment l to counsel for plaintiffs and counsel for defendants.

12

DATED this 31 ^ day of jßo^A\í^À:,

1998.

13

14

15 Presented by:
16

17 THOMAS J. YOUNG WSBA # 17366
18 DANIEL J. JUDGE WSBA # 17392 Assistant Attorney General
19

20

21

22 DAVID FATHI WSBA # 24893
23 JEFF CROLLARD WSBA # 15561
Attorneys for Plaintiffs 24

25
LEÖNARLÎ FELDMAN WSBA # 20961 26 FELIX LUNA WSBA # 27087
Attorneys for Plaintiffs

S T I P U L A T I O N AND ORDER - 4

ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116
Olympia, WA 98504-0116
(360) 586-1445

1

HONORABLE BARBARA J. ROTHSTEIN

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

SEAN G. DUFFY, et al., 10

) No. C92-1596R

Plaintiff,

No. C93-637R

11

v.

12

SETTLEMENT AGREEMENT

CHASE RIVELAND, et al.,

13

Defendants.

14

15

16

I. IMTRODUCTION

17

A. The parties, defendants Chase Riveland, Joseph Lehman,

18 James Spalding, Tom Rolfs, Dave Savage, and Craig Yost; Washington

19 Department of Corrections, through their attorneys, Christine 0.

20 Gregoire, Attorney General, and Daniel J. Judge, and Thomas J.

21 Young, Assistant Attorneys General, and plaintiffs Sean Duffy and

22 Charles Atkins, and the class they represent, through their

23 attorneys, David Fathi and Jeff Crollard,· and Leonard Feldman,

24 Felix G. Luna, and Marc P. Charmatz hereby agree that the attached

25 Stipulation and Order shall be entered, subject to the approval of

26 the Court and notice to the class members.

SETTLEMENT AGREEMENT - 1

ATTORNEY GENERAL OF WASHINGTON Crimaui IMÓCO DMas· FOBoc4OIl6 O*Bvia. WA 9tSOM>H6

B. The parties agree that this settlement agreement,

together with the stipulation and order to which it is attached,

are entered to resolve and settle all claims for injunctive

relief, attorneys' fees, and costs stated in Plaintiffs'

Consolidated Complaint filed February 10, 1998 under this cause

number.

C. This settlement agreement is not an admission by either

8 party regarding liability or violation of any law by defendants,

and this agreement may not be used as evidence in any proceeding

10 other than for the sole and limited purpose of enforcing this

11 agreement. The parties enter into the settlement agreement for
• '••``-ifM¿
12 purposes of settling the disputed contentions and controversies
13 arising from this action.

14

I I . DEFINITIONS

15

A. Deaf and Hearing-Impaired Prisoners:

All inmates

16 incarcerated in Washington State Department of Corrections (DOC)

17 facilities now or in the future who are deaf or whose hearing

18 impairment substantially limits a major life activity.

19

B. Defendants: Defendants include the named defendants in

20 this action and their supervisors, officers, agents, successors,

21 employees and the Washington State Department of Corrections

22 (DOC).

23

C. Plaintiffs: Plaintiffs are Sean Duffy and Charles

24 Atkins, and all deaf and hearing impaired prisoners as defined

25 above, who are now, or who will in the future be, in the custody

26 of the DOC.

SETTLEMENT AGREEMENT - 2

ATTORNEY GENERAL OF WASHINGTON Crinaal Jwtìee Dmaám POB«4OU6 Oly·*M. WA 9tSO4-OUð

1

III.

2

A. Defendants and Plaintiffs and Plaintiffs' class agree

that the plan adopted under this settlement agreement provides a

fair and equitable settlement of all claims for injunctive relief,

attorneys' fees, and costs stated in Plaintiffs' Consolidated

Complaint filed February 10, 1998 under this cause number.

B. On or by September 1, 1998, the Defendants shall

8 implement DOC Policy 490.050, attached to this agreement as

Appendix A, incorporated herein by reference. Thereafter,

10 Defendants and their successors shall maintain and enforce the

11 provisions pertaining to deaf and hearing-impaired prisoners

12 contained in DOC Policy 490.050 in substantially the same terms as

13 indicated in Appendix A. Nothing in this agreement shall be

14 construed to give Plaintiffs any right to enforce under this

15 agreement language under DOC Policy 490.050 that does not pertain

16 to deaf and hearing impaired prisoners. Nothing in this agreement

17 shall be construed to give individuals who are not Plaintiffs as

18 defined above any right to enforce this agreement.

19

C. Plaintiffs agree to cooperate in good faith with all

20 services provided under this agreement subject to an individual

21 plaintiff's right to waive services provided under this agreement

22 and to object in good faith to the adequacy of the accommodation

23 provided.

24

D. Within 30 days after entry of the final order of

25 dismissal, Defendants agree to pay Plaintiffs' counsel

26 $150,000.00. Defendants' payment of this sum will resolve and

SETTLEMENT AGREEMENT - 3

ATTORNEY GENERAL OF WAS»NOTON Criaaai Jiutico Divãm FO Box 40116 atrmrm. WA WJOMIW

1 settle all of Plaintiffs' claims for attorneys' fees and costs.

2

E. Upon acceptance of this agreement by the court in this

3 matter, the parties agree that Plaintiffs' consolidated

4 complaint/class action shall be dismissed with prejudice.

5 However, this settlement agreement may be enforced by appropriate

6 motion in this Court by Plaintiffs or Defendants after: (l)

7 reasonable notice and an opportunity to correct alleged

8 deficiencies; and (2) the parties have reasonably attempted to

9 confer and resolve their disputes under this agreement through

10 meetings and non-binding mediation.

11

F. This settlement agreement shall be a contract and shall

.-,-·,·:Î«¾¼«Í..

12 be enforceable in a court of competent jurisdiction according to

13 the law of contracts of the State of Washington.

14

G. For a three year period, Plaintiffs' counsel shall

15 receive copies of the following documents beginning six months

16 after the execution of this Settlement Agreement, and every six

17 months thereafter:

18

1. Copies of DOC Policy 490.050, all directives, field

instructions, and administrative bulletins implementing that

19

Policy, and any modifications to such Policy, directives,

field instruction, or administrative bulletins as pertains to

20

deaf and hearing impaired prisoners.

21

2. Copies of the notification of rights form given to deaf

and hearing impaired prisoners, and any modifications to that

22

form.

23

3. Copies of grievances filed by deaf and hearing impaired

prisoners, and DOC staff responses thereto.

24

4. Copies of written approvals of qualified interpreters

25

who are not certified interpreters and a written summary of

the qualifications of such qualified interpreters.

26

SETTLEMENT AGREEMENT - 4

ATTORNEY OENESAL OF WASHINGTON
CtmmiU«m FO Bos 40116

1

5. Defendants shall permit plaintiffs' counsel and

plaintiffs' experts reasonable access to the DOC records of

2

members of the plaintiff class. Plaintiffs' counsel may-

request copies of additional documents relevant to monitoring

3

defendants' compliance with this Settlement Agreement.

4

H. Rejection by the court of this agreement shall render

this settlement agreement null and void.

I. This agreement may be modified at any time by a written

and signed document executed by mutual agreement of Defendants and

8 Plaintiffs' counsel.

J. The parties stipulate, based upon the entire record,

10 that the relief set forth in this Settlement Agreement is narrowly

11 drawn, extends no further than necessary to correct violations of

12 federal rights, and is the least intrusive means necessary to

13 correct violations of federal rights.

14

K. In order to give the provisions contained herein an

15 opportunity to be implemented and evaluated, both parties agree

16 not to challenge this agreement for a period of four years.

17

Executed this __3^"day of -^1 (AHQ^ , 1998.

18

19n

DANIEL J. JUDGE

20|| Attorney for Defendants

WSBA # 17392

2l¯ 22

i V

THOMAS J. YOUNG\

23 Attorney for Defendants

24

25
JOSEPH D.¯ LEHMAN 26 Secretary, Department of Corrections
State of Washington

SETTLEMENT AGREEMENT - 5

PO Box 40116
O*BVÌ·.WA9UOU>II6

1

2

of

3
4 DAVTD FA·?HI WSÄA # 24893
5 JEFF CROLLARD WSBA # 15561
6 Attorneys for^Plaintiffs

7

8

FELDMÄN

WSBA # 20961

9 FELIX LUNA

WSBA # 27087

10 Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

SETTLEMENT AGREEMENT - 6

, 1998.
ATTORNEY GENERAL OF WASHINGTON Cnnáui Ju·be· DMnon FOBo> 40116 fl<Cl5M-1445

DEPARTMENT OF
CORRECTIONS

^^
W9f

_ _

^^^^

POLICY • \ J L· I V-^ I

^^^^=

POUCY NUMBER
490.050

TITLE

DISABLED OFFENDERS

Page 1 of 11

EFFECTIVE DATE: September 1,1998 SUPERSESSION:

None
AUTHORITY:
General authority of the Secretary of the Department of Corrections to manage and direct the Oepartment, RCW 72.09.050.

PURPOSE:
To provide guidelines to identify disabled offenders, to assist disabled offenders with appropriate housing and program opportunities; and to ensure that their constitutional rights are met in a manner consistent with legitimate penological interest.

APPLICABILITY:
Department-wide
DEFINITIONS:
Assistive Device · An implement prescribed to assist or provide accommodation for disabled offenders. These devices include, but are not limited to: canes, crutches, wheelchairs, hearing aids, corrective lens, etc. Authorized or prescribed assistive devices shall only be removed for "cause."

Certified Interpreter - A visual language interpreter who is certified by the state or is certified by the Registry Of Interpreters For The Deaf to hold the comprehensive skills certificate or both certificates of interpretation and transliteration.

Cause - The necessary removal of an assistive device to ensure the safety of persons, the security of the facility, or to maintain the integrity of an investigation, including collecting the device as evidence in a criminal or disciplinary investigation.
Disability - A physical impairment that substantially limits one or more of the major life activities of an individual.

Disabled Offender - For the purpose of this policy, a disabled offender is an offender who has a severe disability (i.e., Permanent Mobility Impairment, Permanent Hearing Impairment, Permanent Vision Impairment, Permanent Speech Impairment) as defined in this policy.

Effective Access - Means of access that provides the offender an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity. To provide such access, the Department may utilize alternative methods which may be less costly or intrusive to existing programs. The method, auxiliary aid, or service requested by the disabled offender will be given substantial consideration in the decision.

APPENDIX A

POLICY DEPARTMENT OF
CORRECTIONS

^^
`%9ffiïï I¯~ \ J L·m 1 V ^ I

^^^=
^^^^

POLICY NUMBER
490.050

TITLE

DISABLED OFFENDERS

Page 2 of 11

To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove barriers to access: and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.

P-U-L-H-E-S-D-X-T - A coding system that assigns a functional grade to offenders by utilizing a physical profiling system to evaluate the function of various organs, systems, and integral parts of the body: P Physical Capability, U - Upper Extremities, L - Lower Extremities, H - Hearing, E - Vision, S - Mental Functioning, D - Dental, X - Functional Capacity, T - Transportation Demand.

Recognized Severe Disabilities:

1. Permanent Mobility Impairments:

• Permanent Wheelchair-Medical - Offenders with permanent medical conditions (a condition expected to last longer than six months) who use a wheelchair due to a permanent disability and who are currently housed or who require placement in a medical facility because of a medical condition(s).

• Permanent Wheelchair-Mental Health - Offenders with a mental condition who use a wheelchair due to a permanent disability and need placement in a facility that provides mental health services.

• Permanent Wheelchair - Offenders who are in wheelchairs due to permanent disability, require little or no medical assistance, can manage their own activities of daily living, and are able to live in an accessible general population setting.

• Permanent Mobility Impaired (non-wheelchair) - Offenders who do not require a wheelchair but who have a permanent lower extremity mobility impairment that substantially limits walking (e.g., cannot walk 100 yards on a level surface or climb a flight of stairs without a pause). Such an impairment may require the use of a cane, prosthesis, walker, etc.

2. Permanent Hearing Impairments - Offenders who are deaf or whose hearing impairment substantially limits a major life activity.

3. Permanent Vision Impairments - Offenders who are blind or who have a vision impairment not correctable to central vision acuity of less than 20/200, even with corrective lenses.

4. Permanent Speech Impairments - Offenders who have a permanent speech impairment (e.g. indiscernible speech or mute) and who cannot communicate effectively in writing.

5. Qualified Interpreter - a sign language interpreter who: 1) is approved in writing by a certified interpreter as able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary; and 2) promises in writing to abide by the Registry of Interpreters for the Deaf (R.I.D.) code of ethics for sign language interpreters. A qualified interpreter may only be approved by a certified interpreter. A certified interpreter is also a qualified interpreter.

6. TTY - Tele-Typewriter

DEPARTMENT OF
CORRECTIONS

,r^

_ _

POLICY »lfCtø • V-ƒ L_ 1V^ I

^^^^= ==^=

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 3 of 11

7. TDD - Telecommunication device for deaf persons.

8. Undue Burden - An undue burden is defined as: (1) causing fundamental alteration of a service, program, or activity; or (2) causing undue financial and administrative burdens. The decision that an undue burden would result must be made by the Secretary or his designee after considering factors (1) and (2) above. In considering factor (2), the Secretary or his designee shall consider all resources available for use in the funding and operation of the Department's service, program, or activity. If the action would create an undue burden, then the Department shall take other steps to provide effective access.

POUCY:
I. Standards:
A. The following standards are applicable to all DOC facilities that have custody of disabled offenders.

1. Effective Communications:
a. The Department shall take appropriate steps to ensure disabled offenders' communication with staff, other offenders, and where applicable, the public, are as effective as non-disabled offenders' communication with such persons.
b. The Department shall fumish appropriate auxiliary aids and services where necessary to afford an individual with a disability the equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.

c. Auxiliary aids which are reasonable, effective, and appropriate to the needs of the offenders shall be provided when simple written or oral communication is not effective. Such aids may include, but are not limited to: certified interpreters, qualified interpreters, readers, sound amplification or tactile devices, captioned television/video text displays, TTYs, taped texts. Braille materials, and large print materials.
d. Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication. In determining what type of auxiliary aid and service is necessary, the Department shall give substantial consideration to the requests of the individual with disabilities.

e. Disabled Offenders shall be provided effective access to the courts, attorneys, and hearth care services. Communications for hearth care services shall maintain the need for confidentiality between the health care provider and the offender. Communications where the offender's life may be in danger, or where there is an expectation of privacy, shall also maintain the need for confidentiality to the offender.

DEPARTMENT OF
CORRECTIONS

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POLICY • V - / L_ 9 V-# I

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POLICY NUMBER 490.050

TITLE _

DISABLED OFFENDERS

Page 4 of 11

II. General Requirements:
A. Disabled offenders, to the extent they are able, are responsible for making their needs known to medical and/or classification staff.
B. To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove barriers to access; and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.
C. Facilities that house disabled offenders shall ensure that the offender receives effective access as outlined in this policy and through state or federal law.
D. Offenders with specified disabilities of a temporary nature or of lesser severity than defined in this policy can be provided effective access while in the general population. Facilities are responsible for providing housing and programming for these offenders on a case-by-case basis.

E Regional Administrators shall assign a coordinator for each region, who shall be responsible for maintaining aresourcedirectory for use in finding assistive devices, qualified and certified interpreters, and otherresourcesthat may be necessary to implement this policy.
F. When a certified or qualified interpreter, or other assistive device or service, is not otherwise required under this policy, nothing in this policy shall be construed to prevent or discourage Department staff from communicating with deaf or hearing impaired offenders through written notes, pantomime, gestures, sign language, or other forms of communication.

G. An offender may waive services provided for under this policy. If an inmate requests an interpreter other than a qualified interpreter, such an interpreter may be provided.

III. Identification:

A. Identification of disabled offenders shall normally occur during Reception Center Processing. The extent of the disability and what accommodations are necessary shall be assessed by persons qualified to evaluate the disabled offender's disability and accommodation needs.

B. An offender may be referred to health care staff when:

1. The offender voluntarily self-identifies or claims to have a disability; 2. During interaction with the offender, staff observe signs of a disability; or

3. Health care or central file record contains documentation regarding a disability.

C. Health care staff shall conduct a medical evaluation of the offender to verify or rule out the existence of a disability. The evaluation and findings shall be documented. The documentation shall be placed in the offender's health record, and on OBTS HS.

POLICY DEPARTMENT

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TITLE

DISABLED OFFENDERS

Page 5 of 11

IV. Facility Placement

A. In those situations where a disabled offender does not have any additional health care problems, the offender shall be placed into a facility consistent with his/her safety and security needs.

B. Disabled offenders with additional health care concerns should be placed in a facility that has established health care program(s) suited to treat those specific health care concem(s).

V. Tracking

A. Disabled offenders shall be tracked in the Offender Based Tracking System (OBTS) by (P-U-L-H· E-S-D-×-T) = The Physical Profiling System.

B. Offenders identified as disabled shall be flagged on the OBTS D 1-14 screen.

VI. Safety and Security Concerns

A. Legitimate safety and security concerns shall take precedence over any accommodation affotded disabled offenders and may result in the temporary or permanent suspension of any accommodation for cause. The Department is not required to provide accommodation for disabled offenders:

1. If the accommodation poses a threat to the safety and/or security of facility, staff, offenders, or the public;

2. When the accommodation adversely affects legitimate penological interests such as protection of the health and safety interests of offenders and staff, deterrence of crime, and maintenance of offender discipline;

3. If the accommodation poses a direct threat of substantial harm to the health or safety of the offender or others, including staff, other offenders or the public; or

4. If the accommodation would create an undue burden.

VII. General Identification and Notification

A. Facilities shall develop processes to address and provide for the effective identification and notification of disabled offenders.

1. An ID card/picture of hearing and visually impaired offenders shall be maintained in an
appropriate unit location to ensure that unit staff can easily identify and assist these offenders
when needed.

2. The front of ID cards of deaf and blind offenders will be clearly marked with the words "DEAF or "BLIND".

3. Procedures shall be put into effect to instruct staff to contact hearing-impaired offenders, using effective means of communication, to provide access to public address announcements and/or reporting instructions. Visual alerting devices may also be used if feasible.

POLICY DEPARTMENT

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POLICY NUMBER
490.050

TITLE

DISABLED OFFENDERS

Page 6 of 11

4. Procedures shall be put into effect instructing staff on proper methods of providing visually impaired offenders with notices, announcements, and other printed materials that offenders need to know.
VIII. Emergencies

A. Faciiity evacuation procedures shall address and provide for the effective evacuation of disabled offenders.

B. When a disabled offender is assigned to a facility, s/he shall be instructed on local evacuation procedures which address and provide for his/her effective evacuation.

C. Staff are responsible for assisting disabled offenders in an emergency.

IX. Use of Restraints

A. Restraints shall be applied in such a manner as to maintain custody and control of offenders. Offenders whose disability precludes prescribed application\method of restraint equipment Shan be provided reasonable modification under the direction of the supervisor in charge to ensure effective application. Offenders who need a sign language interpreter for effective communication shall be allowed use of their hands for signing after staff has determined it is safe to not restrain their hands.

X. Searches

A. Clothed and unclothed body searches shall be conducted in a manner that maintains prudent security practices. The shift supervisor/designee shall provide directions for searching offenders whose disability precludes routine search methods.

XI. Disciplinary Process

A. Disabled offenders shall be provided the same disciplinary process as other offenders with the following exceptions:

1. Offenders shall be provided effective access to these proceedings.

2. Effective communication between staff and disabled offenders in the offender disciplinary process may require other assistive devices to communicate effectively. Such methods include, but are not limited to:

a. A qualified interpreter or reader

b. Aids such as:

1) Tactile alerting devices, 2) Sound amplification devices, 3) Captioned television/video displays, 4) TTY, 5) Taped texts, 6) Braille materials, and/or 7> Large print materials;

DEPARTMENT OF
CORRECTIONS

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POLICY NUMBER
490.050

TITLE

DISABLED OFFENDERS

Page 7 of 11

c. Use of a staff advisor.

3. During major disciplinary hearings, certified interpreters must provide assistance to offenders who because of a hearing or speech impairment cannot readily understand or communicate in spoken language.
XII. Orientation

A. Upon arrival at a facility, including the Reception Centers, disabled offenders shall be provided an adequate orientation via an effective means of communication including, but not limited to, the attached notice of rights.
XIII.Telephone Use

A. Facilities shall provide procedures necessary for permanent hearing impaired offenders to have effective access to telephonic communications.

B. The following means of telephonic communication shall be provided to permanent hearing impaired offenders:

1. TTY: A TTY shall be made available for personal telephone calls between offenders and family/friends and for legal telephone calls with attorneys.

2. TTY/Voice Relay Services: The TTY/voice relay service allows communication between persons with hearing impairments even when one does not have a TTY. This process is very time consuming because all verbal communication from the hearing person must be teletyped to the deaf person, and the deaf person must teletype the message back to the operator.

3. TTY calls shall be allowed extended time increments due to the time delay caused by the TTY relay process.

XlV.V¡siting

A. Disabled offenders shall have effective access to visiting consistent with that of other offenders.

XV. Recreation

A. Disabled offenders shall be provided effective access to recreation. Staff shall be made aware of the identity of disabled offenders and the nature of the disability so they can provide assistance if needed.

XVI.Property

A. Approved health appliances and/or assistive devices shall not be included in the space limits established for offender personal property.

B. Consideration and approval for the procurement of health appliances and/or assistive devices shall be made by the facility health care manager. Health appliances and/or assistive devices shall be transferred with the offender in accordance with DOC 440.000 Offender Personal Property.

DEPA°™ENT
CORRECTIONS
TITLE _____

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DISABLED OFFENDERS

Page 8 of 11

XVII.Issuance of Wheeichairs\Assistive Device(s)

A. When an offender is received in the custody of DOC and has personal possession of his\her wheelchair, the offender may request to retain the wheelchair. The Superintendent shall make the final decision based upon whether the device can meet safety and security requirements or can be modified to meet safety and security requirements.

B. Any offender who requires the use of a wheelchair, prosthetic device(s), or other assistive device(s) shall be referred to health care services for verification of specific equipment needs.

1. Health care shall prescribe a wheelchair and/or assistive device(s) for offender use and shall determine if the equipment needed is temporary or permanent. This requirement shall be documented in the offender's health care record and on OBTS HS.

2. The cost of repairs to wheelchair(s) and/or assistive device(s) owned by offenders shall be handled in accordance with the Health Care Plan.

C. The Superintendent/designee may, on a case by case basis, permit offenders with customized wheelchairs and/or assistive devices to retain those items following release. In those cases where state owned wheelchairs and assistive devices return to state property upon the offender's release, a DOC representative will assist the offender with obtaining necessary devices from other sources.

XV¶I.Offender Programs

A. Programs must be modified for disabled offenders. Exclusion shall be based on one of the following criteria:

1. The disability presents a valid safety and/or security concern;

2. In order to provide the modification for access, it would substantially alter the nature of the program;

3. In order to provide modification for access, it would present an undue burden to the facility/Department;

4. The offender is unable to perform basic or essential functions of the program; with or without reasonable accommodations, or

5. The offender is not qualified for the program.

B. Evaluation of an offender's eligibility for a facility program assignment shall be done on a case-bycase basis.

XIX.Program Access Determination

A. Disabled offenders shall be evaluated by Health Care Staff and Classification Committee staff for their ability to participate in work, education, or other program activity. Staff qualified to evaluate an offender's disability shall participate in the evaluation of an offender's ability to participate in the program activity.

DEPARTMENT OF
CORRECTIONS

POLICY ×r^^

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POLICY NUMBER
490.050

TITLE .

DISABLED OFFENDERS

Page 9 of 11

B. The Department shall afford disabled offenders the opportunity to participate in a work program. If the offender has been provided effective access, the offender must be able to perform basic and/or essential functions of the wort assignment.

C. Academic assignments should be adaptable to the needs of disabled offenders who can perform the essential functions necessary for achieving the goals of the class and who are otherwise qualified for the class.

XX. Minimum Facil¡ty/Pre-Release/Work Release Placements

A. Disabled offenders shall not be precluded from assignment to a minimum facility, pre-release, or work release based solely upon their disabilities. The Department shall evaluate the offender's disability, on a case-by-case basis, in considering assignment to a minimum, pre-release, or work release facility.

XXl.Transportation

A. Special or particular needs of disabled offenders shall be taken into consideration and accessible means of transportation provided. Disabled offenders normally will not be transferred without their special aids or assistive equipment.
XXII.Removal of Assistive Devices
A. Authorized or prescribed assistive devices shall be removed from disabled offenders only for "cause."
1. If an assistive device was used in a serious incident (i.e., assault, weapons manufacture, etc) or presents a direct and immediate safety and security concern, it may be immediately removed by any custody employee present as soon as it is safe to do so.
2. Department officials may remove assistive devices to curtail use of such devices to violate prison rules, or as part of a sanction from a disciplinary proceeding resulting from such behavior, or both.
a. A pattern of behavior involving the inappropriate use of an assistive device over a reasonable period of time may result in removal of the device for an indeterminate period. When an assistive device is removed for an indeterminate period, the need to continue removal shall be reviewed initially within one month of removal and at least monthly thereafter. These reviews shall include a medical evaluation of the offender's progress without the device.
b. If the device is restricted for a determinate period, the offender shall be issued an infraction. The offender shall be referred to the Classification Committee for a hearing for confirmation of the restriction from the assistive device pending adjudication of the disciplinary charges. If the restriction is confirmed and the offender is found guilty, the restriction period shall be assessed according to the offense. The restriction period shall commence on the day the assistive device was first removed from the offender. The need to continue the restriction shall be reviewed every 90 days by the Classification Committee. This review shall include a medical evaluation of the offender's progress without the device.

DEPARTMENT OF
CORRECTIONS

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3. The Shift Commander may temporarily authorize a continued disallowance of an assistive device based on cause; however, the steps below must be followed as soon as possible or on the following work day. This process should in no way infringe upon standard procedures for crime scene preservation, evidence collection, emergency response, or any other measure necessary to ensure safety and security.

a. Consult the Health Care Manager/designee regarding the offender's ability to function in the cell without the device and explore alternative means of "in-cell" modification (i.e., scoot stools for wheelchairs, etc.)
b. Inform the Superintendent/designee of the incident and the options for in·cell modification, and request authorization to remove the device or make a modification.

c. If a decision is made to remove the device, the assistive device will be removed and stored in a designated alternate location in the unit. The original assistive device will be made available to the offender when s/he is removed from the cell for yard, escorts, visits, etc.

XXIIIAdministrative Segregation/Intensive Management Units

A. Accessible housing shall be established at designated facilities. Where not currently available, alternative secured housing may be temporarily established in appropriate locations.

1. All assistive devices must be approved for retention by the Administrative Segregation/Intensive Management Unit Manager. Decisions to disallow assistive devices shall be made within three working days of placement in accordance with DOC 320.200.

2. Whenever it becomes necessary to remove an assistive device from a disabled offender housed in administrative segregation or the Intensive Management Unit to ensure the safety of persons or the security of the facility, the Unit Manager shall ensure the steps in XXII. A. 3. a - c of this policy are followed.
XXIV.Training

A. Department staff having direct contact with deaf or hearing-impaired offenders shall be trained regarding the special communication needs of deaf and hearing-impaired offenders and this policy.

XXV.Grievances

A. The inmate grievance system will receive complaints from disabled offenders. Disabled offenders may request through that process accommodations that were not previously provided. Denial of an accommodation based on undue burden shall be made in writing, pursuant to the definition of undue burden above, in response to a grievance. Disabled offenders shall be offered and provided effective access to the grievance system.
REVIEW:

The Policy Coordination Committee shall coordinate the review of Department policies at least every two years and update as needed.

DEPARTMENT OF
CORRECTIONS

POLICY

POLICY NUMBER 490.050

TITLE

DISABLED OFFENDERS

Page 11 of 11

REFERENCES:

DOC Policy 300.380; DOC Policy 500.000; Americans Wrth Disabilities Act 42 U.S.C. Section 12101 et seq.; Rehabilitation Action of 1973 Section 5O4(a), as amended, 29 U.S.C.A. Section 794(a)

ATTACHMENTS:

Notice Advising of Rights

(Joseph D. Lehman, Secretary

Date

DOC 490.050 Attachment 1
OFFENDERS WITH DISABILITIES NOTICE OF RIGHTS FOR OFFENDERS WITH DISABILITIES

THE RIGHT TO REASONABLE ACCOMMODATIONS
Disabled offenders have the right to receive "reasonable accommodations" to make programs and services more accessible.
To ensure effective access to programs, activities, and services, the Department of Corrections (Department) shall, as needed by disabled offenders: 1) make reasonable modifications in policies, practices or procedures; 2) remove barriers to access; and 3) provide auxiliary aids and services. If the action needed to provide effective access would create an undue burden, then the action shall not be required.

Deaf and Hearing Impaired Offenders may get an interpreter and other services at facilities where needed in:

- Disciplinary Hearings - Dental - Grievances

- Parole

- Medical

- Programs - Mental Health

- Education

HOW TO ASK FOR A REASONABLE ACCOMMODATION
Disabled offenders must ask for accommodations, interpreters, and other services in person or in writing. In this facility, ask your Classification Counselor or any other DOC staff.

HOW TO MAKE COMPLAINTS
Offenders who are denied a reasonable accommodation, or believe they were discriminated against by DOC staff because of their disabilities have the right to file a grievance under the "Offender Grievance Program."

DISTRIBUTION: This notice shall be posted in prominent places at each DOC facility.
September 1998

Duffy v. R¡veland

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CLOSED, JURYDEMAND
U.S. District Court WESTERN DISTRICT OF WASHINGTON (Seattle) CIVIL DOCKET FOR CASE #: 2:92-cv-01596-BJR

Duffy, et al v. Riveland, et al Assigned to: Hon. Barbara J. Rothstein Demand: $520000 Lead case: 2:92-cv-01596-BJR (View Member Cases) Cause: 29:0794 Job Discrimination (Handicap)

Date Filed: 10/13/1992 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Sean G Duffy

represented by Sean G Duffy #861819 WSR WASHINGTON STATE REFORMATORY PO BOX 777 MONROE, WA 98272-0777 PRO SE

Leonard J Feldman HELLER EHRMAN LLP 701 5TH AVE STE 6100 SEATTLE, WA 98104-7098 206-447-0900 Fax: FAX 447-0375 Email: leonard.feldman@hellerehrman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charles Atkins

Marc P Charmatz NATIONAL ASSC. OF THE DEAF LAW CENTER 814 THAYER AVE SILVER SPRING, MD 20910 301-587-7732 Fax: 301-587-7732 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David C Fathi ACLU NATIONAL PRISONER PROJECT

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V. Defendant Chase Riveland Secretary
Defendant James Spalding Director

915 15TH ST NW 7TH FLOOR WASHINGTON, DC 20005 202-393-4930 Email: dfathi@npp-aclu.org TERMINATED: 03/21/2000 LEAD ATTORNEY
Patricia J. Arthur COLUMBIA LEGAL SERVICES 101 YESLER WAY STE 300 SEATTLE, WA 98104-2552 206-464-5933 Fax: FAX 382-3386 Email: pat.arthur@columbialegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge ATTORNEY GENERAL'S OFFICE TORTS DIVISION PO BOX 40126 OLYMPIA, WA 98504-0126 360-459-6600 Fax: FAX 1-360-459-6967 Email: danielj@atg.wa.gov TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis ATTORNEY GENERAL'S OFFICE CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: FAX 1-360-664-8716 Email: shannoni@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY

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Defendant Kenneth DuCharme Superintendent
Defendant John Ahlsted Corr. Sergeant
Defendant Peggy Williams Clerk/Typist
Defendant Jerry Sorenson Corr. Officer
Defendant

Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Francis Linder Corr. Officer
Defendant Howard Anderson Corr. Unit Supervisor TERMINATED: 04/23/1993
Defendant Washington State Reformatory a public entity TERMINATED: 11/03/1992
Defendant WA State of State of Washington Department of Corrections agency, a public entity TERMINATED: 11/03/1992 Defendant Craig Yost Classification Counselor

represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J Judge (See above for address) TERMINATED: 04/23/1993 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 11/03/1992 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 11/03/1992 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Douglas Wayne Carr ATTORNEY GENERAL'S OFFICE (CRIM JUST-OLY) CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: FAX 1-360-664-8716 Email: dougc@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup ATTORNEY GENERAL'S OFFICE CRIMINAL JUSTICE DIVISION PO BOX 40116

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Defendant William Woodley Corr. Unit Supervisor
Defendant David Karton Corrections Sergeant

OLYMPIA, WA 98504-0116 360-586-1445 Fax: 586-1445 TERMINATED: 02/13/1998 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young PO BOX 40117 OLYMPIA, WA 98504-0117 360-586-4608 Fax: FAX 1-360-586-6760 Email: TomY@atg.wa.gov TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) TERMINATED: 02/13/1998 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000

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Defendant Linda Willenberg Corr. Prog. Manager
Defendant Tom Rolfs

LEAD ATTORNEY
Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) TERMINATED: 02/13/1998 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) TERMINATED: 02/13/1998 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge

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Director Division of Prisons in his official capacity
Defendant Tana Wood Superintendent WA State Penitentiary in her official capacity
Defendant Joseph Lehman Secretary, WA Dept of Corrections, in his official capacity
V. Interested Party

(See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
represented by Daniel J Judge (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY
Shannon Elizabeth Inglis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) TERMINATED: 05/06/2000 LEAD ATTORNEY

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George Rocky Manos
Interested Party Dana H LeGer

represented by George Rocky Manos 291238 Unit B-135-1 MICC MCNEIL ISLAND CORRECTIONS CENTER PO BOX 881000 STEILACOOM, WA 98388-1000 PRO SE
represented by Dana H LeGer 921062 D4-05-01 TRCC TWIN RIVERS CORRECTIONAL CENTER PO BOX 888 MONROE, WA 98272-0888 PRO SE

Date Filed 10/13/1992 10/26/1992 10/26/1992 10/28/1992 11/03/1992
11/04/1992
11/14/1992 11/14/1992 11/14/1992 11/14/1992

#

Docket Text

LODGED ORDER: application to proceed IFP; complaint, etc (RS) (Entered: 10/23/1992)

1 ORDER by Magistrate Judge Philip K. Sweigert granting application to proceed IFP (cc: all counsel) (RS) (Entered: 10/27/1992)

2 COMPLAINT (Summons(es) not issued) (RS) (Entered: 10/27/1992)

3 ORDER by Judge Barbara J. Rothstein of reference to Magistrate Judge Philip K. Sweigert (cc: all counsel) (RS) (Entered: 10/28/1992)

4 ORDER Dismissing Some Defendants and Ordering Service by Mail by Judge Barbara J. Rothstein terminating defendant State of Washington, defendant Washington State Ref, defendant Kenneth DuCharme, defendant James Spalding, defendant Chase Riveland (cc: all counsel,BJR,PKS) (dktclk) (Entered: 11/04/1992)

SUMMONS ISSUED as to defendant John Ahlsted, defendant Peggy Williams, defendant Jerry Sorenson, defendant Francis Linder, defendant Howard Anderson (dktclk) (Entered: 11/04/1992)

5 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant Peggy Williams on 11/5/92 (dktclk) (Entered: 11/17/1992)

6 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant Jerry Sorenson on 11/5/92 (dktclk) (Entered: 11/17/1992)

7 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant John Ahlsted on 11/6/92 (dktclk) (Entered: 11/17/1992)

8 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant

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11/18/1992 11/18/1992 11/19/1992 12/23/1992 12/23/1992 12/23/1992 01/13/1993 01/13/1993 01/20/1993 01/20/1993 02/03/1993
02/03/1993
02/26/1993
03/16/1993
03/16/1993 03/23/1993

Howard Anderson on 11/5/92 (dktclk) (Entered: 11/17/1992)
9 ATTORNEY APPEARANCE for defendants by Daniel J Judge (RS) (Entered: 11/19/1992)
10 PROOF OF SERVICE by defendants of: attorney appearance (RS) (Entered: 11/19/1992)
11 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE of summons by defendant Francis Linder on 11/9/92 (RS) (Entered: 11/24/1992)
12 MOTION by defendant to dismiss noted for 1/22/93 (dktclk) (Entered: 12/29/1992)
13 MEMORANDUM of Authorities by defendant in support of motion to dismiss for failure to state a claim [12-1] (dktclk) (Entered: 12/29/1992)
14 AFFIDAVIT OF SERVICE by mailing by defendants of Motion to Dismiss [12] served on petitioner (dktclk) (Entered: 12/29/1992)
15 RESPONSE BRIEF by plaintiff Sean G Duffy to motion to dismiss and memorandum of 12/22/92 [12-1] (dktclk) (Entered: 01/14/1993)
16 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of Response [15] served on dfts (dktclk) (Entered: 01/14/1993)
17 REPLY by defendants TO RESPONSE to motion to dismiss [12-1] (RS) (Entered: 01/25/1993)
18 PROOF OF SERVICE by defendant of: reply in support of motion to dismiss (RS) (Entered: 01/25/1993)
19 Report and Recommendation recommending dfts' motion to dismiss claim be denied [12-1] by Magistrate Judge Philip K. Sweigert noted for 2/26/93 (cc: all counsel) (RS) (Entered: 02/04/1993)
LODGED ORDER: re: report & recommendation motion Report and Recommendation recommending dfts' motion to dismiss claim be denied [12-1] (RS) (Entered: 02/04/1993)
20 ORDER by Judge Barbara J. Rothstein ADOPTING report & recommendation; dfts' motion to dismiss claim is DENIED [12-1] [19-1]; Clerk to serve complaint on dfts Riveland, Spalding & Ducharme as to the Rehabilitation Act claim. (cc: all counsel, BJR, PKS) (dktclk) (Entered: 03/01/1993)
21 MOTION by plaintiff Sean G Duffy for appointment of counsel noted for 4/2/93 (not noted - sent ntc of mtn ltr to parties) (dktclk) (Entered: 03/18/1993)
22 AFFIDAVIT OF SERVICE by mailing by plaintiff Sean G Duffy of Mtn [21] to parties (dktclk) (Entered: 03/18/1993)
23 MOTION by defendants to depose plaintiff noted for 4/9/93 (RS) (Entered: 03/24/1993)

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03/23/1993 03/23/1993 03/23/1993 03/23/1993 03/29/1993 03/30/1993
03/30/1993 03/30/1993 04/01/1993 04/01/1993
04/02/1993 04/21/1993 04/21/1993 04/23/1993
07/27/1993

24 MEMORANDUM by defendant in support of motion to depose plaintiff [23-1] (RS) (Entered: 03/24/1993)
25 MOTION by defendant to shorten time on motion to depose plaintiff [231] noted for 3/26/93 (RS) (Entered: 03/24/1993)
26 AFFIDAVIT of Daniel Judge regarding motion to depose plaintiff [23-1] (RS) (Entered: 03/24/1993)
LODGED ORDER: re: motion to shorten time on motion to depose plaintiff [23-1] (RS) (Entered: 03/24/1993)
30 AFFIDAVIT OF SERVICE by defendant of motion shortening time etc served on 3/23/93 (RS) (Entered: 04/05/1993)
27 MINUTE ORDER: by Magistrate Judge Philip K. Sweigert granting dfts' motion to shorten time on motion to depose plaintiff [23-1] [25-1]. The underlying motion to depose plaintiff [23-1] is NOTED for 4/1/93 (cc: all counsel) (RS) (Entered: 03/31/1993)
31 ANSWER to complaint [2-1] by defendants; jury demand (RS) (Entered: 04/05/1993)
32 AFFIDAVIT OF SERVICE by defendant of answer [31-1] served on 3/29/93 (RS) (Entered: 04/05/1993)
28 ORDER by Magistrate Judge Philip K. Sweigert granting dfts' motion to depose plaintiff [23-1] on 4/7/93 at 10am (cc: all counsel) (RS) (Entered: 04/01/1993)
29 ORDER by Magistrate Judge Philip K. Sweigert re pretrial preparations ; discovery ddl set for 7/2/93; dispositive motions ddl 7/30/93; plaintiff's pretrial statement due 10/1/93 (cc: all counsel) (RS) (Entered: 04/01/1993)
33 ORDER by Magistrate Judge Philip K. Sweigert denying plaintiff's motion for appointment of counsel [21-1] (cc: all counsel) (RS) (Entered: 04/05/1993)
LODGED ORDER: Agreed partial order of dismissal (RS) (Entered: 04/22/1993)
34 AFFIDAVIT OF SERVICE of agreed partial order of dismissal served on 4/20/93 (RS) (Entered: 04/22/1993)
35 AGREED PARTIAL ORDER OF DISMISSAL by Magistrate Judge Philip K. Sweigert: 1) pltf's cmp against defendant Howard Anderson is dismissed w/ prej; 2) Pltf's claims against dfts that involve viols of Mr. Duffy's civil rts re: TDD are dismissed w/ prej; 3) This order does not affect pltf's remaining claims. (cc: all counsel, BJR, PKS) (dktclk) (Entered: 04/23/1993)
36 MOTION by defendants to exceed page limitation for memorandum in support of dfts' mtn for summary judgment noted for 8/13/93 (RS) (Entered: 07/29/1993)

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07/27/1993
07/27/1993
07/27/1993 07/27/1993 07/27/1993 07/27/1993 09/22/1993
09/22/1993 10/22/1993
11/10/1993 11/10/1993 11/19/1993 11/19/1993 12/04/1993 12/04/1993 12/29/1993

37 AFFIDAVIT of Daniel Judge regarding motion to exceed page limitation for memorandum in support of dfts' mtn for summary judgment [36-1] (RS) (Entered: 07/29/1993)
LODGED ORDER: re: motion to exceed page limitation for memorandum in support of dfts' mtn for summary judgment (RS) (Entered: 07/29/1993)
38 AFFIDAVIT OF SERVICE by defendants of mtn for overlength brief, etc served on 7/23/93 (RS) (Entered: 07/29/1993)
39 MOTION by defendants for summary judgment and dismissal noted for 8/20/93 (RS) (Entered: 07/29/1993)
PROPOSED dfts' memorandum in support of dfts' motion for summ jgm (overlength) (RS) (Entered: 07/29/1993)
LODGED ORDER: re: motion for summary judgment and dismissal (RS) (Entered: 07/29/1993)
40 MINUTE ORDER: by Magistrate Judge Philip K. Sweigert GRANTING dfts' motion to exceed page limitation for memorandum in support of dfts' mtn for summary judgment [36-1] (cc: all counsel) (RS) (Entered: 09/23/1993)
41 MEMORANDUM by defendants in support of motion for summary judgment and dismissal [39-1] (overlength) (RS) (Entered: 09/23/1993)
42 ORDER by Magistrate Judge Philip K. Sweigert directing pltf to show cause by 11/8/93 why suit should not be dismissed w/prejudice for failure to prosecute and RENOTING dfts' motion for summary judgment and dismissal [39-1] to 11/12/93; (cc: all counsel) (RS) (Entered: 10/22/1993)
43 RESPONSE by plaintiff to court order dated 10/22/93 (RS) (Entered: 11/15/1993)
44 AFFIDAVIT OF SERVICE by plaintiff of response [43-1] served on 11/8/93 (RS) (Entered: 11/15/1993)
45 REPLY by defendants TO RESPONSE to motion for summary judgment and dismissal [39-1] (RS) (Entered: 11/29/1993)
46 AFFIDAVIT OF SERVICE by defendant of motion reply [45-1] served on 11/18/93 (RS) (Entered: 11/29/1993)
47 MEMORANDUM by plaintiff (RS) (Entered: 12/08/1993)
48 AFFIDAVIT OF SERVICE by plaintiff of memorandum [47-1] served on 12/1/93 (RS) (Entered: 12/08/1993)
49 Report and Recommendation recommending granting dfts' motion for summary judgment and dismissal [39-1] and dismissing complaint with prej by Magistrate Judge Philip K. Sweigert, noted for 1/21/94 (cc: all counsel, BJR) (dktclk) (Entered: 12/29/1993)

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12/29/1993
01/13/1994
01/13/1994 01/28/1994
01/28/1994
02/04/1994 02/04/1994 02/04/1994 02/18/1994 02/18/1994 02/18/1994 02/23/1994 02/23/1994 03/03/1994 03/03/1994

LODGED ORDER: granting Report and Recommendation recommending granting dfts' motion for summary judgment and dismissal [39-1] and dismissing complaint with prej [49-1] (dktclk) (Entered: 12/29/1993)
50 OBJECTIONS to Report and Recommendation by plaintiff Sean G Duffy re: R & R recommending granting dfts' motion for summary judgment and dismissal [39-1] and dismissing complaint with prej [49-1] noted for 1/28/94 (not noted - ltr sent) (dktclk) (Entered: 01/18/1994)
51 AFFIDAVIT OF SERVICE BY MAILING by plaintiff Sean G Duffy of OBJECTIONS to Report and Recommendation [50-1] (dktclk) (Entered: 01/18/1994)
52 ORDER by Judge Barbara J. Rothstein APPROVING PKS' report and recommendation; dfts' mtn for summary jgm and dismissal is GRANTED; pltf's complaint is DISMISSED W/PREJUDICE (cc: all counsel,BJR,PKS) (RS) (Entered: 01/28/1994)
53 JUDGMENT: by court APPROVING PKS' report and recommendation; dfts' mtn for summary jgm and dismissal is GRANTED; pltf's complaint is DISMISSED w/prejudice (cc: all counsel,BJR,PKS,Jgm) (RS) (Entered: 01/28/1994)
54 Bill of costs; taxation due by 2/25/94 at 9:30 ( assigned to Clerk Bruce Rifkin ) by defendants noted for 2/25/94 (RS) (Entered: 02/07/1994)
55 MEMORANDUM by defendant in support of bill of costs motion Bill of costs; taxation due by 2/25/94 at 9:30 ( assigned to Clerk Bruce Rifkin ) [54-1] (RS) (Entered: 02/07/1994)
56 AFFIDAVIT OF SERVICE by defendant of bill of costs motion Bill of costs; taxation due by 2/25/94 at 9:30 ( assigned to Clerk Bruce Rifkin ) [54-1] (RS) (Entered: 02/07/1994)
57 NOTICE OF APPEAL by plaintiff Sean G Duffy from Dist. Court decision [53-1] (cc: CCA, BJR, all counsel) (dktclk) (Entered: 02/23/1994)
NO APPEAL FEE RECEIVED: 10/26/92 order grants IFP status. (dktclk) (Entered: 02/23/1994)
58 AFFIDAVIT OF SERVICE by mailing re appeal [57-1] (dktclk) (Entered: 02/23/1994)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 02/23/1994)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 02/23/1994)
NOTIFICATION by Circuit Court of Appellate Docket Number 9435191 (dktclk) (Entered: 03/04/1994)
59 TIME SCHEDULE ORDER (CCA) 94-35191: open.br. and excerpts due

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04/08/1994 06/02/1994 06/27/1994 07/25/1994 11/08/1996 11/12/1996 11/12/1996 11/18/1996 01/18/1997
02/11/1997 02/11/1997 03/12/1997

4/11/94; resp.br. due 5/11/94; optional reply br. due within 14 days of svc. of resp.br. (dktclk) (Entered: 03/04/1994)
60 TAXATION OF COSTS by Clerk Bruce Rifkin: costs will not be taxed against indigent petitioners or pltfs absent a specific indication by the ct that the action was dismissed as frivolous (cc: all counsel,BJR,Jgm) (RS) (Entered: 04/11/1994)
CLERK'S RECORD ON APPEAL transmitted to Circuit (1 vol orig, 1 folder w/several copies of complaint) (dktclk) (Entered: 06/02/1994)
61 ORDER (CCA) 94-35191, 94-35444: Appeals CONSOLIDATED. Clerk shall enter order appointing pro bono counsel. Appeal STAYED pending further order. If appellant objects to appointment of counsel, he shall file written objection within 14 days. (dktclk) (Entered: 06/29/1994)
62 ORDER (CCA) 94-35191, 94-35444: Pursuant to 6/23/94 order, atty Leonard J. Feldman appointed pro bono for appellant, unless appellant objects in writing within 14 days. Open.br. due 10/21/94; resp.br. due 11/21/94; optional reply br. due 12/5/94. (dktclk) (Entered: 07/29/1994)
63 MANDATE #94-35191 from Circuit Court of Appeals AFFIRMING IN PART, REVERSING IN PART AND REMANDING THE DECISION of the District Court [Appeal [57-1]; Copy of opinion attached. (cc: BJR, all counsel) (NS) (Entered: 11/08/1996)
64 DESIGNATION OF DEPOSITION TRANSCRIPT by plaintiff Sean G Duffy (dktclk) (Entered: 11/14/1996)
65 AFFIDAVIT OF SERVICE by plaintiff of designationof deposition transcript [64-1] (dktclk) (Entered: 11/14/1996)
66 ORDER (CCA) #94-35191: The mandate issued in this matter is hereby RECALLED as having issued prematurely. (cc: BJR, cnsl) [copy docketed in C93-637C] (NS) (Entered: 11/19/1996)
67 MANDATE (94-35191) from Circuit Court of Appeals REVERSING AND REMANDING THE DECISION of the District Court [Appeal [571] ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. (cc: all counsel) Opinion attached. (Copy docketed in C93-637C) (dktclk) Modified on 01/21/1997 (Entered: 01/21/1997)
68 ATTORNEY APPEARANCE for plaintiff Sean G Duffy by Leonard J. Feldman (dktclk) (Entered: 02/13/1997)
69 AFFIDAVIT OF SERVICE by plaintiff of attorney appearance [68-1] (dktclk) (Entered: 02/13/1997)
70 ORDER by Judge Barbara J. Rothstein Case referred to Magistrate Judge Philip K. Sweigert for review (cc: BJR, PKS, counsel) (dktclk) (Entered: 03/13/1997)

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03/18/1997
03/26/1997 04/14/1997
04/15/1997
05/13/1997 05/13/1997 05/13/1997 05/13/1997 05/13/1997 05/24/1997 05/24/1997 05/29/1997 05/29/1997 06/03/1997
07/18/1997

71 ORDER by Judge Barbara J. Rothstein: Court CONSOLIDATES C93637R with C92-1596R. All future pleadings shall be filed under C921596R. (C93-637R statistically closed.) All further proceedings REFERRED to Magistrate Judge Philip K. Sweigert (cc: BJR, PKS, counsel) (dktclk) (Entered: 03/20/1997)
72 NOTICE: status conf before PKS set for 10:00 4/14/97 (cc: all counsel) (dktclk) (Entered: 03/27/1997)
73 MINUTES: PKS; Dep Clerk: PV; attys L. Feldman, C. Carter, T. Young, P. Nerup preent; status conf held 4/14/97 ; Court advised all pretrial discovery issues referred from BJR; Court hears from Mr. Fledman and Mr. Young on issues remanded from 9th Circuit and new issues; plaintiff to file motion to amend complaint by 5/15/97 to be noted for 5/30/97; discovery shcedule and issues discussed after mtn resolved; Court allows limited discovery to begin. (dktclk) (Entered: 04/16/1997)
74 MINUTE ORDER by Magistrate Judge Philip K. Sweigert: Plaintiff may file motion to amend complaint by 5/15/97 to be noted for 5/30/97; motion can be filed without proposed amended complaint; response due no later than 5/27/97. (cc: PKS, counsel) (dktclk) (Entered: 04/16/1997)
75 MOTION by plaintiff Sean G Duffy to amend complaint NOTED FOR 5/30/97 (dktclk) (Entered: 05/15/1997)
76 MEMORANDUM by plaintiff in support of motion to amend complaint [75-1] (dktclk) (Entered: 05/15/1997)
77 DECLARATION of Sean G. Duffy re motion to amend complaint [75-1] (dktclk) (Entered: 05/15/1997)
LODGED ORDER: re: motion to amend complaint [75-1] (dktclk) (Entered: 05/15/1997)
78 AFFIDAVIT OF SERVICE by plaintiff of motion to amend complaint [75-1] (dktclk) (Entered: 05/15/1997)
82 RESPONSE by defendants to plaintiff's motion for leave to file an amended complaint. (dktclk) (Entered: 07/09/1997)
83 AFFIDAVIT OF SERVICE by defendants of motion response [82-1] (dktclk) (Entered: 07/09/1997)
79 REPLY by plaintiff TO RESPONSE to motion to amend complaint [751] (RS) (Entered: 05/30/1997)
80 AFFIDAVIT OF SERVICE by plaintiff of motion reply [79-1] (RS) (Entered: 05/30/1997)
81 ORDER by Magistrate Judge Philip K. Sweigert GRANTING pltf Sean G. Duffy's motion for leave to file amended complaint [75-1]. Pltf to file amended cmp within 60 days of this order. (cc: counsel, Judge) (dktclk) (Entered: 06/04/1997)
84 AMENDED COMPLAINT [2-1] by plaintiff Sean G Duffy (dktclk)

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07/18/1997 07/25/1997 07/28/1997 07/28/1997 07/30/1997 07/30/1997 07/30/1997 07/31/1997
07/31/1997 07/31/1997 07/31/1997 07/31/1997 07/31/1997 07/31/1997 07/31/1997

(Entered: 07/21/1997)
85 PRAECIPE: by plaintiff Sean G Duffy to issue summonses re: amended complaint [84-1] (Issued) (dktclk) (Entered: 07/21/1997)
86 RETURN OF SERVICE of summons and complaint executed on Joseph Lehman, Dept of Corrections, 7/24/97 (dktclk) (Entered: 07/25/1997)
87 DEMAND for JURY TRIAL by plaintiff in 2:92-cv-01596 (KERR) (Entered: 07/29/1997)
88 AFFIDAVIT OF SERVICE by plaintiff in 2:92-cv-01596 of jury demand [87-1] (KERR) (Entered: 07/29/1997)
89 RETURN OF SERVICE of 1st amended complaint executed on Joseph Lehman on 7/29/97 (dktclk) (Entered: 07/30/1997)
90 RETURN OF SERVICE of 1st amended complaint executed on Tom Rolfs on 7/29/97 (dktclk) (Entered: 07/30/1997)
91 AMENDED RETURN OF SERVICE of summons and 1st amended complaint executed upon defendant WA State Attorney General on 7/30/97 (dktclk) (Entered: 07/30/1997)
92 JOINT MOTION by plaintiff Chas. Atkins (C96-1985WD) and Sean G Duffy (this case) for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case; NOTED FOR 8/15/97 (dktclk) (Entered: 08/01/1997)
93 MEMORANDUM by plaintiff in support of motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case; [92-1] (dktclk) (Entered: 08/01/1997)
94 DECLARATION of David C. Fathi re motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case; [92-1] (dktclk) (Entered: 08/01/1997)
LODGED ORDER: re: motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case; [92-1] (dktclk) (Entered: 08/01/1997)
95 AFFIDAVIT OF SERVICE by plaintiff of motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case [92-1] etc (dktclk) (Entered: 08/01/1997)
96 MOTION by plaintiff Sean G Duffy for partial summary judgment re: state law claims NOTED FOR 8/29/97 (dktclk) (Entered: 08/01/1997)
97 MEMORANDUM by plaintiff Sean G Duffy in support of motion for partial summary judgment re: state law claims [96-1] (dktclk) (Entered: 08/01/1997)
98 DECLARATION of Leonard J. Feldman re motion for partial summary judgment re: state law claims [96-1] (dktclk) (Entered: 08/01/1997)

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07/31/1997 07/31/1997
08/11/1997
08/13/1997 08/13/1997 08/13/1997 08/13/1997 08/14/1997
08/14/1997 08/22/1997
08/22/1997 08/22/1997 08/25/1997 08/25/1997 08/25/1997 08/28/1997
08/28/1997

LODGED ORDER: re: motion for partial summary judgment re: state law claims [96-1] (dktclk) (Entered: 08/01/1997)
99 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of motion for partial summary judgment re: state law claims [96-1] etc (dktclk) (Entered: 08/01/1997)
100 RESPONSE by defendants to motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C961985WD) with this case; [92-1] (KERR) (Entered: 08/12/1997)
101 MOTION by defendants for more definite statement NOTED FOR 8/29/97 (RS) (Entered: 08/14/1997)
102 MEMORANDUM by defendants in support of motion for more definite statement [101-1] (RS) (Entered: 08/14/1997)
LODGED ORDER: re: motion for more definite statement [101-1] (RS) (Entered: 08/14/1997)
103 AFFIDAVIT OF SERVICE by defendants of motion for more definite statement [101-1], etc (RS) (Entered: 08/14/1997)
104 REPLY BRIEF by plaintiff Sean G Duffy in 2:92-cv-01596 in support of joint motion for transfer and to consolidate pretrial proceedings & trial of common issues of Atkin case (C96-1985WD) with this case [92-1] (dktclk) (Entered: 08/18/1997)
105 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy in 2:92-cv-01596 of motion reply [104-1] (dktclk) (Entered: 08/18/1997)
106 MEMORANDUM by defendants in 2:92-cv-01596 in opposition to pltf's motion for partial summary judgment re: state law claims [96-1] (dktclk) (Entered: 08/22/1997)
107 AFFIDAVIT of Eliseo Garcia [106-1] (dktclk) (Entered: 08/22/1997)
108 AFFIDAVIT OF SERVICE by defendants in 2:92-cv-01596 of memorandum [106-1] (dktclk) (Entered: 08/22/1997)
109 RESPONSE by plaintiff to motion for more definite statement [101-1] (Attachment) (KERR) (Entered: 08/26/1997)
LODGED ORDER: re: motion response [109-1] re: denying dft's mtn for more definite statement (KERR) (Entered: 08/26/1997)
110 AFFIDAVIT OF SERVICE by plaintiff of motion response [109-1], etc. (KERR) (Entered: 08/26/1997)
111 REPLY MEMORANDUM by plaintiff TO RESPONSE to motion for partial summary judgment re: state law claims [96-1] (RS) (Entered: 08/29/1997)
112 REPLY DECLARATION of Charles Carter re motion for partial summary judgment re: state law claims [96-1] (RS) (Entered:

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08/28/1997 08/28/1997 08/28/1997 08/28/1997
09/30/1997
10/14/1997 10/16/1997 10/20/1997 10/20/1997 10/20/1997 10/20/1997 10/23/1997
10/23/1997 10/23/1997

08/29/1997)
113 AFFIDAVIT OF SERVICE by plaintiff of motion reply [111-1], etc (RS) (Entered: 08/29/1997)
114 REPLY by defendant TO RESPONSE to motion for more definite statement [101-1] (RS) (Entered: 08/29/1997)
115 AFFIDAVIT OF SERVICE by defendants of motion reply [114-1] (RS) (Entered: 08/29/1997)
116 MINUTE ORDER: by Judge Barbara J. Rothstein GRANTING pltfs' motion to consolidate C96-1985R with C92-1596R. All future pleadings shall bear cause number C92-1596R. (cc: counsel, Judge, ET) (RS) (Entered: 08/29/1997)
117 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 10/15/97 & REQUIRING NOTICE OF CONSENT TO PROCEED BEFORE MAG JUDGE (cc: counsel, Judge) (dktclk) (Entered: 10/01/1997)
118 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 10-20 (KERR) (Entered: 10/15/1997)
119 LETTER from Leonard Feldman with additional copy of exhibit B to be attached to declaration of Charles Carter [112-1] (RS) (Entered: 10/17/1997)
120 APPLICATION FOR ADMISSION by atty Marc P Charmatz to practice on behalf of Sean G Duffy. NOTE: On 10/21/97 the deputy clerk cld atty Mr Feldman & requested the $50.00 fee (dktclk) (Entered: 10/21/1997)
121 DECLARATION of Marc P Charmatz in support of application to participate [120-1] (dktclk) (Entered: 10/21/1997)
LODGED ORDER: re: application to participate [120-1] (dktclk) (Entered: 10/21/1997)
122 AFFIDAVIT OF SERVICE by atty for plaintiff Sean G Duffy of application to participate [120-1] etc (dktclk) (Entered: 10/21/1997)
123 PRE-TRIAL SCHEDULING ORDER/NOTICE by Judge Barbara J. Rothstein ; 20 day jury trial set for 9:30 10/5/98 Trial briefs and motions in limine to be submitted by 9/21/98 Voir dire/Jury Inst. to be submitted by 9/21/98 Pretrial order to be submitted by 9/7/98 Motion filing deadline 6/11/98 Discovery cutoff 6/1/98 Disclosure of rebuttal expert witnesses ddl 4/27/98 Disclosure of expert witnesses ddl 3/2/98 Add'l parties shall be joined by 12/1/97 (cc: counsel, Judge) (dktclk) (Entered: 10/23/1997)
124 ORDER RE DISCOVERY AND DEPOSITIONS by Judge Barbara J. Rothstein (cc: counsel, Judge) (dktclk) (Entered: 10/23/1997)
125 RECEIPT re: attorney admission application [120-1] Receipt #244626. (dktclk) (Entered: 10/26/1997)

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10/23/1997 10/23/1997 10/23/1997 10/23/1997 10/23/1997 10/23/1997
10/27/1997 10/27/1997
10/27/1997
10/27/1997 10/27/1997
10/29/1997 10/29/1997
10/29/1997
10/29/1997 10/29/1997

126 MOTION by plaintiff Sean G Duffy to compel discovery NOTED FOR 11/14/97 (dktclk) (Entered: 10/26/1997)
127 MEMORANDUM by plaintiff in support of motion to compel discovery [126-1] (dktclk) (Entered: 10/26/1997)
128 DECLARATION of Leonard J. Feldman in support of motion to compel discovery [126-1] (dktclk) (Entered: 10/26/1997)
LODGED ORDER: re: motion to compel discovery [126-1] (dktclk) (Entered: 10/26/1997)
129 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of motion to compel discovery [126-1] and related (dktclk) (Entered: 10/26/1997)
138 ORDER by Deputy Clerk GRANTING pro hac vice application allowing attorney Marc P. Charmatz to appear on behalf of plaintiff. (cc: atty adm, counsel, Judge) (dktclk) (Entered: 10/31/1997)
130 MOTION by plaintiffs to determine sufficiency of responses to requests for admissions NOTED FOR 11/14/97 (KERR) (Entered: 10/28/1997)
131 MEMORANDUM by plaintiffs in support of motion to determine sufficiency of responses to requests admissions [130-1] (KERR) (Entered: 10/28/1997)
132 DECLARATION of David C Fathi by plaintiffs in support of motion to determine sufficiency of responses to requests admissions [130-1] (Exhibits 1-4 Attached) (KERR) (Entered: 10/28/1997)
LODGED ORDER: re: motion to determine sufficiency of responses to requests for admissions [130-1] (KERR) (Entered: 10/28/1997)
133 AFFIDAVIT OF SERVICE by plaintiffs of motion to determine sufficiency of responses to requests for admissions [130-1], etc. (KERR) (Entered: 10/28/1997)
134 MOTION by plaintiffs to compel responses to pltf Aikin's interr and req for prod NOTED FOR 11/14/97 (KERR) (Entered: 10/30/1997)
135 MEMORANDUM by plaintiffs in support of motion to compel responses to pltf Aikin's interr and req for prod [134-1] (KERR) (Entered: 10/30/1997)
136 DECLARATION of David C Fathi by plaintiffs in support of motion to compel responses to pltf Aikin's interr and for prod [134-1] (Exhibits 114 Attached) (KERR) (Entered: 10/30/1997)
LODGED ORDER: re: motion to compel responses to pltf Aikin's interr and req for prod [134-1] (KERR) (Entered: 10/30/1997)
137 AFFIDAVIT OF SERVICE by plaintiffs of motion to compel responses to pltf Aikin's interr and req for prod [134-1], etc. (KERR) (Entered: 10/30/1997)

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11/06/1997 11/06/1997
11/06/1997 11/06/1997 11/08/1997
11/08/1997 11/08/1997 11/08/1997 11/08/1997 11/13/1997 11/13/1997 11/13/1997 11/13/1997 11/13/1997 11/13/1997

139 ORDER by Magistrate Judge Philip K. Sweigert RENOTING defendants' motion for more definite statement [101-1] FOR 12/5/97.(cc: counsel, Judge) (dktclk) (Entered: 11/07/1997)
140 REPORT AND RECOMMENDATION re denial of plaintiff's motion for partial summary judgment re: state law claims [96-1] by Magistrate Judge Philip K. Sweigert NOTED FOR 11/28/97 (cc: counsel, Judge) (dktclk) (Entered: 11/07/1997)
LODGED ORDER re: REPORT AND RECOMMENDATION re: denial of plaintiff's motion for partial summary judgment re: state law claims [96-1] [140-1] (dktclk) (Entered: 11/07/1997)
LODGED JUDGMENT re: REPORT AND RECOMMENDATION re denial of plaintiff's motion for partial summary judgment re: state law claims [96-1] [140-1] (dktclk) (Entered: 11/07/1997)
141 RESPONSE by defendants to motion to compel discovery [126-1], motion to determine sufficiency of responses to requests for admissions [130-1], motion to compel responses to pltf Aikin's interr and req for prod [134-1] (KERR) (Entered: 11/10/1997)
142 AFFIDAVIT of Milton Ruffins in support of motion response [141-1] (KERR) (Entered: 11/10/1997)
143 AFFIDAVIT of Steve Rawlins in support of motion response [141-1] (KERR) (Entered: 11/10/1997)
144 AFFIDAVIT of Thomas J Young in support of motion response [141-1] (Exhibits 1-12 Attached) (KERR) (Entered: 11/10/1997)
145 AFFIDAVIT OF SERVICE by defendants of motion response [141-1], etc. (KERR) (Entered: 11/10/1997)
146 REPLY MEMORANDUM by plaintiff Sean G Duffy in support of the motion to compel responses to pltf Aikin's interr and req for prod [134-1] (dktclk) (Entered: 11/14/1997)
147 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of motion reply [146-1] (dktclk) (Entered: 11/14/1997)
148 REPLY MEMORANDUM by plaintiffs in support of motion to compel responses to pltf Aikin's interr and req for prod [134-1], motion to compel discovery [126-1] (dktclk) (Entered: 11/14/1997)
149 REPLY MEMORANDUM by plaintiffs in support of motion to compel responses to pltf Aikin's interr and req for prod [134-1], motion to compel discovery [126-1] (dktclk) (Entered: 11/14/1997)
150 SUPPLEMENTAL DECLARATION OF DAVID C. FATHI re: declaration [136-1] (dktclk) (Entered: 11/14/1997)
151 AFFIDAVIT OF SERVICE by plaintiffs supplemental declaration [1501], of motion reply [149-1], of motion reply [148-1] (dktclk) (Entered: 11/14/1997)

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11/17/1997
11/17/1997
11/20/1997 11/20/1997 12/01/1997
12/01/1997
12/01/1997 12/01/1997 12/01/1997 12/01/1997 12/01/1997
12/04/1997 12/04/1997 12/04/1997 12/04/1997 12/04/1997
12/04/1997

152 Objections to Report and Recommendation re: denial of pltf's mtn for p sum jgmt re state law claims by plaintiff Sean G Duffy NOTED FOR 12/5/97 (KERR) (Entered: 11/18/1997)
153 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy Objections to Report and Recommendation re: denial of pltf's mtn for p sum jgmt re state law claims [152-1] (KERR) (Entered: 11/18/1997)
154 NOTICE OF WITHDRAWAL OF COUNSEL. Douglas W. Carr withdraws as counsel for defendants. (dktclk) (Entered: 11/21/1997)
155 AFFIDAVIT OF SERVICE by Atty General's Office of notice of withdrawal [154-1] (dktclk) (Entered: 11/21/1997)
156 MOTION by plaintiff Charles Atkins, plaintiff Sean G Duffy for leave to file consolidated complaint OA REQUESTED NOTED FOR 1/23/98 (dktclk) (Entered: 12/03/1997)
PROPOSED Consolidated Complaint re: motion for leave to file consolidated complaint OA REQUESTED [156-1] (dktclk) (Entered: 12/03/1997)
157 MEMORANDUM by plaintiffs in support of motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 12/03/1997)
158 DECLARATION of Leonard J. Fedlman re motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 12/03/1997)
159 DECLARATION of Jeff Crollard re motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 12/03/1997)
LODGED ORDER: re: motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 12/03/1997)
160 AFFIDAVIT OF SERVICE by plaintiff in 2:92-cv-01596 of motion for leave to file consolidated complaint [156-1] and related (dktclk) (Entered: 12/03/1997)
161 MOTION by plaintiff Sean G Duffy to compel depostion NOTED FOR 12/19/97 (dktclk) (Entered: 12/05/1997)
162 MEMORANDUM by plaintiff in support of motion to compel depostion [161-1] (dktclk) (Entered: 12/05/1997)
163 DECLARATION of Leonard J. Feldman in support of motion to compel depostion [161-1] (dktclk) (Entered: 12/05/1997)
LODGED ORDER: re: motion to compel depostion [161-1] (dktclk) (Entered: 12/05/1997)
164 RESPONSE (REPLY MEMORANDUM) by plaintiff Sean G Duffy in in support of Objections to Report and Recommendation [152-1] (dktclk) (Entered: 12/05/1997)
165 AFFIDAVIT OF SERVICE by plaintiff of response [164-1], motion to

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12/05/1997
12/13/1997 12/13/1997 12/18/1997 12/18/1997 12/18/1997 12/23/1997 12/23/1997 12/23/1997 12/23/1997 12/23/1997 12/23/1997 12/31/1997 12/31/1997 01/06/1998
01/07/1998 01/07/1998

compel depostion [161-1] (dktclk) (Entered: 12/05/1997)
166 PRAECIPE (LETTER) from Jeff B. Crollard encloses original declaration of Michael Strong re: motion for leave to file consolidated complaint [156-1]. (Deputy Clerk attached declaration to motion.) (dktclk) (Entered: 12/08/1997)
167 RESPONSE by defendants to motion to compel deposition [161-1] (KERR) (Entered: 12/15/1997)
168 AFFIDAVIT OF SERVICE by defendants of motion response [167-1] (KERR) (Entered: 12/15/1997)
169 REPLY MEMORANDUM by plaintiff TO RESPONSE to motion to compel depostion [161-1] (RS) (Entered: 12/19/1997)
170 REPLY DECLARATION of Leonard Feldman re: motion reply [169-1] (RS) (Entered: 12/19/1997)
171 AFFIDAVIT OF SERVICE by plaintiff of motion reply [169-1], etc (RS) (Entered: 12/19/1997)
172 MOTION by plaintiff Sean G Duffy to appoint settlement judge NOTED FOR 1/9/98 (dktclk) (Entered: 12/24/1997)
173 MEMORANDUM by plaintiff in support of motion to appoint settlement judge [172-1] (dktclk) (Entered: 12/24/1997)
174 DECLARATION of Leonard J. Feldman in support of motion to appoint settlement judge [172-1] (dktclk) (Entered: 12/24/1997)
175 DECLARATION of David C. Fathi in support of motion to appoint settlement judge [172-1] (dktclk) (Entered: 12/24/1997)
LODGED ORDER: re: motion to appoint settlement judge [172-1] (dktclk) (Entered: 12/24/1997)
176 AFFIDAVIT OF SERVICE by plaintiff of motion to appoint settlement judge [172-1] and related (dktclk) (Entered: 12/24/1997)
177 RESPONSE by defendants to motion to appoint settlement judge [172-1] (dktclk) (Entered: 12/31/1997)
178 AFFIDAVIT OF SERVICE by defendants of motion response [177-1] (dktclk) (Entered: 12/31/1997)
179 NOTICE of taking deposition of Derek Gabriel Wallace on 12/11/97 filed by court reporters, James Sanderson & Lowers (dktclk) (Entered: 01/07/1998)
180 REPLY by plaintiffs in support of the motion to appoint settlement judge [172-1] (dktclk) (Entered: 01/08/1998)
181 DECLARATION (REPLY DECLARATION) of Leionard J. Feldman re: motion reply [180-1] (dktclk) (Entered: 01/08/1998)

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01/07/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/08/1998 01/09/1998
01/13/1998 01/13/1998 01/13/1998 01/14/1998
01/15/1998 01/17/1998

182 AFFIDAVIT OF SERVICE by plaintiffs of motion reply [180-1], declaration (dktclk) (Entered: 01/08/1998)
183 MOTION by plaintiffs to certify class action OA REQUESTED NOTED FOR 1/23/98 (dktclk) (Entered: 01/09/1998)
184 MEMORANDUM by plaintiffs in support of motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
185 DECLARATION of Jeff B. Crollard in support of motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
186 DECLARATION of Leonard J. Feldman in support of motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
187 DECLARATION of David C. Fathi re motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
LODGED ORDER: re: motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
PROPOSED CONSOLIDATED (CLASS ACTION) COMPLAINT re: motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
188 AFFIDAVIT OF SERVICE by plaintiffs of motion to certify class action [183-1] (dktclk) (Entered: 01/09/1998)
190 DECLARATION of Ronald Lee Brown (dktclk) (Entered: 01/13/1998)
191 DECLARATION of Kenneth Stevens (dktclk) (Entered: 01/13/1998)
189 ORDER by Magistrate Judge Philip K. Sweigert RENOTING plaintiffs' motions to compel, to determine sufficiency of responses, to compel deposition of Linder, and defendants' motion for more definate statement, FOR 1/30/98. (cc: counsel, Judge) (dktclk) (Entered: 01/09/1998)
192 RESPONSE by plaintiffs to 1/9/98 order [189-1] (dktclk) (Entered: 01/14/1998)
193 DECLARATION of Leonard J. Feldman in support of response [192-1] (dktclk) (Entered: 01/14/1998)
194 AFFIDAVIT OF SERVICE by plaintiffs of response [192-1] (dktclk) (Entered: 01/14/1998)
195 ORDER by Judge Barbara J. Rothstein DECLINING TO ADOPT the REPORT AND RECOMMENDATION [140-1], and GRANTING plaintiff's motion for summary judgment. (cc: BJR, counsel, Mag Judge) (dktclk) (Entered: 01/15/1998)
201 LETTER to Court from Leonard J. Feldman seeks clarification of 1/9/98 Order. (dktclk) (Entered: 01/23/1998)
196 RESPONSE (OPPOSITION) by defendants to plaintiffs' motion to certify class action [183-1], and to plaintiffs' motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 01/20/1998)

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01/17/1998 01/17/1998 01/17/1998 01/20/1998 01/22/1998 01/22/1998 01/22/1998 01/22/1998 01/22/1998 01/22/1998 01/22/1998
01/22/1998 01/23/1998
01/23/1998

197 AFFIDAVIT of Peggy Weathermon re: motion response [196-1] (dktclk) (Entered: 01/20/1998)
198 AFFIDAVIT of Thomas J. Young re: motion response [196-1] (dktclk) (Entered: 01/20/1998)
199 AFFIDAVIT OF SERVICE by defendants of motion response [196-1] and related (dktclk) (Entered: 01/20/1998)
200 NOTICE OF HEARING: Oral argument on plaintiff's motion to file consolidated complaint set for 2/6/98 1:30pm before US Magistrate Sweigert. (cc: all counsel, PKS, BJR) (dktclk) (Entered: 01/20/1998)
202 MOTION (REQUEST) by plaintiffs to exceed page limit re: reply in support of mtn for lv to file class action complaint and for class certif (dktclk) (Entered: 01/23/1998)
PROPOSED Reply Brief in Support of Moti re: motion to exceed page limit re: reply in support of mtn for lv to file class action complaint and for class certif [202-1] (dktclk) (Entered: 01/23/1998)
203 DECLARATION of David C. Fathi in support of plaintiffs' mtn for lv to file class action complaint (dktclk) (Entered: 01/23/1998)
204 DECLARATION of Michael Strong Phd in support of plaintiff's mtn for leave to file class action complaint (dktclk) (Entered: 01/23/1998)
205 DECLARATION of Sean G. Duffy in response to dfts' oppotions to plaintiff's mtn for lv to file class action complaint (dktclk) (Entered: 01/23/1998)
206 DECLARATION of James G. Kelty re: plaintiff's reply brief (dktclk) (Entered: 01/23/1998)
207 AFFIDAVIT OF SERVICE by plaintiffs of declarations [206-1] [205-1] [204-1] [203-1], lodged reply brief [0-0], motion to exceed page limit re: reply in support of mtn for lv to file class action complaint and for class certif [202-1] (dktclk) (Entered: 01/23/1998)
209 LETTER to Court from plaintiffs regarding oral argument on 2/6/98. (dktclk) (Entered: 01/23/1998)
208 MINUTE ORDER by Magistrate Judge Philip K. Sweigert CONSTRUES plaintiffs' 1/15/98 letter [201-1] as motion for clarifiaction of 1/9.98 Order. The motin to compel was granted only as to videotaped depostions taken in part by sign language. There is no provision in the discovery rules or an independent expert examination of a non-party witness. (cc: PKS, counsel, Judge) (dktclk) (Entered: 01/23/1998)
210 STIPULATION and PROTECTIVE ORDER by Magistrate Judge Philip K. Sweigert : On parties' stipulation, ORDERED that no question shall be asked of any deponent regarding the sexual orientation or sexual preferences of any person. (cc: counsel, Judge) (dktclk) (Entered: 01/23/1998)

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01/26/1998
01/26/1998 01/28/1998 01/28/1998 01/28/1998 01/28/1998 01/28/1998 01/29/1998 01/29/1998 01/29/1998 01/29/1998 01/29/1998
01/29/1998 01/29/1998 02/03/1998 02/03/1998 02/04/1998
02/04/1998

211 MINUTE ORDER: by Magistrate Judge Philip K. Sweigert GRANTING plaintiffs' motion (request) to exceed page limit re: reply in support of mtn for lv to file class action complaint and for class certif [202-1] (cc: counsel, Judge) (dktclk) (Entered: 01/27/1998)
212 REPLY by plaintiffs in support of motion for leave to file consolidated complaint [156-1] (dktclk) (Entered: 01/27/1998)
213 LETTER to Court from atty David C. Fathi attaches signed declaration of Michael Strong re: declaration [204-1] (dktclk) (Entered: 01/28/1998)
214 MOTION by defendants for reconsideration of 1/14/98 order NOTED FOR 1/30/98 (dktclk) (Entered: 01/28/1998)
215 MEMORANDUM by defendants in support of motion for reconsideration of 1/14/98 order [214-1] (dktclk) (Entered: 01/28/1998)
LODGED ORDER: re: motion for reconsideration of 1/14/98 order [2141] (dktclk) (Entered: 01/28/1998)
216 AFFIDAVIT OF SERVICE by defendants of motion for reconsideration of 1/14/98 order [214-1] (dktclk) (Entered: 01/28/1998)
217 RESPONSE by defendants to Court's 1/9/98 Order regarding discovery motions re: order [189-1] (dktclk) (Entered: 01/30/1998)
218 AFFIDAVIT OF SERVICE by defendants of response to Order [217-1] (dktclk) (Entered: 01/30/1998)
219 MOTION by plaintiffs to compel production of documents NOTED FOR 2/13/98 (dktclk) (Entered: 01/30/1998)
220 MEMORANDUM by plaintiffs in support of motion to compel production of documents [219-1] (dktclk) (Entered: 01/30/1998)
221 DECLARATION of Leonard J. Feldman in support of plaintiffs' motion to compel production of documents [219-1] (dktclk) (Entered: 01/30/1998)
LODGED ORDER: re: motion to compel production of documents [2191] (dktclk) (Entered: 01/30/1998)
222 AFFIDAVIT OF SERVICE by plaintiffs of motion to compel production of documents [219-1] and related (dktclk) (Entered: 01/30/1998)
223 DECLARATION of Leonard J. Feldman in further response to Court's 1/9/98 order [189-1] (dktclk) (Entered: 02/04/1998)
224 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of declaration [223-1] (dktclk) (Entered: 02/04/1998)
225 DECLARATION of Sean G. Duffy in response to dfts' opposition to plas' mtn for lv to file consol complaint and mtn for class cert re: motion response [196-1] (dktclk) (Entered: 02/05/1998)
226 DECLARATION of Leonard J. Feldman in support of plas' mtn to

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02/04/1998 02/04/1998 02/04/1998 02/04/1998 02/04/1998 02/06/1998 02/06/1998 02/06/1998 02/06/1998
02/10/1998 02/10/1998 02/10/1998 02/10/1998 02/10/1998

compel production of documents, and CERTIFICATE OF COMPLIANCE WITH LR 37 (dktclk) (Entered: 02/05/1998)
227 MOTION by defendants to stay NOTED FOR 2/20/98 (dktclk) (Entered: 02/05/1998)
228 MEMORANDUM by defendants in support of motion to stay [227-1] (dktclk) (Entered: 02/05/1998)
229 AFFIDAVIT of Thomas J. Young in support of dfts' motion to stay [2271] (dktclk) (Entered: 02/05/1998)
LODGED ORDER: re: motion to stay [227-1] (dktclk) (Entered: 02/05/1998)
230 AFFIDAVIT OF SERVICE by defendants of motion to stay [227-1] and related (dktclk) (Entered: 02/05/1998)
231 RESPONSE by defendants to motion to compel production of documents [219-1] (dktclk) (Entered: 02/09/1998)
232 AFFIDAVIT of Cathy Downs re: motion response [231-1] (dktclk) (Entered: 02/09/1998)
233 AFFIDAVIT OF SERVICE by defendants of motion response [231-1] and affidavit (dktclk) (Entered: 02/09/1998)
234 MINUTES OF ORAL ARGUMENT ON PLAINTIFFS' MTOINS TO CONSOLIDATE AND TO FILE AN AMENDED COMPLAINT: PKS; Dep Clerk: DS; CR: J. Roth; Pla Counsel Leonard Feldman, David Fathi; Def Counsel Tom Young; Court GRANTS plaintiffs' motion for leave to file consolidated/amended complaint [156-1]; Court will fill Report and Recomnedation that class be certified to include only those who are profoundly or severely deaf to point they are unable to communicate without sign language, ASL or sign language interpretation. Parties DIRECTED to submit documents to Court by 3/13/98 descibing the class. (dktclk) (Entered: 02/09/1998)
235 ORDER by Magistrate Judge Philip K. Sweigert granting leave to file consolidated complaint with class action allegations (cc: counsel, PKS) (MD) (Entered: 02/10/1998)
236 MOTION by plaintiffs in 2:92-cv-01596 for sanctions NOTED FOR 2/27/98 (KERR) (Entered: 02/10/1998)
237 MEMORANDUM by plaintiffs in 2:92-cv-01596 in support of motion for sanctions [236-1] (KERR) (Entered: 02/10/1998)
238 DECLARATION of Leonard J Feldman by plaintiffs in 2:92-cv-01596 re motion for sanctions [236-1] (Exhibit A Attached) (KERR) (Entered: 02/10/1998)
LODGED ORDER: re: motion for sanctions [236-1] (KERR) (Entered: 02/10/1998)

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02/10/1998 02/10/1998 02/11/1998 02/11/1998 02/11/1998 02/11/1998 02/11/1998 02/11/1998 02/13/1998
02/13/1998
02/13/1998 02/13/1998 02/17/1998
02/19/1998 02/19/1998 02/19/1998 02/19/1998 02/19/1998

239 AFFIDAVIT OF SERVICE by plaintiffs in 2:92-cv-01596 of motion for sanctions [236-1], etc. (KERR) (Entered: 02/10/1998)
246 CONSOLIDATED COMPLAINT per 2/10/98 Order (dktclk) (Entered: 02/13/1998)
240 RESPONSE (MEMORANDUM IN OPPOSITION) by plaintiffs to motion to stay [227-1] (dktclk) (Entered: 02/12/1998)
241 DECLARATION of Leonard J. Fledman re: plaintiffs' motion response [240-1] (dktclk) (Entered: 02/12/1998)
242 AFFIDAVIT OF SERVICE by plaintiffs of motion response [240-1] and related (dktclk) (Entered: 02/12/1998)
243 REPLY by plaintiffs in support of the motion to compel production of documents [219-1] (dktclk) (Entered: 02/12/1998)
244 REPLY DECLARATION of David C. Fathi re: plaintiffs' motion reply [243-1] (dktclk) (Entered: 02/12/1998)
245 AFFIDAVIT OF SERVICE by plaintiffs of motion reply [243-1] and related (dktclk) (Entered: 02/12/1998)
247 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Linda Willenberg, David Karton, William Woodley, Craig Yost. Attorney Daniel J Judge terminating attorney Penelope S Nerup. (dktclk) (Entered: 02/13/1998)
248 AFFIDAVIT OF SERVICE by defendants Linda Willenberg, David Karton, William Woodley, Craig Yost of attorney substitution [247-1] (dktclk) (Entered: 02/13/1998)
249 PROPOSED LANGUAGE REGARDING PLAINTIFF CLASS filed by the plaintiffs (dktclk) (Entered: 02/17/1998)
250 AFFIDAVIT OF SERVICE by plaintiffs of proposed language regarding plaintiff class [249-1] (dktclk) (Entered: 02/17/1998)
251 NOTICE OF DEPOSITION FILED with Thomas J. Young by Court Reporter Laurene Kelly. Deposition of Lydia Lynn Durand on 12/11/97. (dktclk) (Entered: 02/18/1998)
252 SUBMISSION REGARDING DEFINITION OF CLASS filed by defendants (dktclk) (Entered: 02/20/1998)
253 AFFIDAVIT OF SERVICE by defendants of submission re: class definition [252-1] (dktclk) (Entered: 02/20/1998)
254 REPLY MEMORANDUM by defendants in support of the motion to stay [227-1] (dktclk) (Entered: 02/20/1998)
255 AFFIDAVIT OF SERVICE by defendants of motion reply [254-1] (dktclk) (Entered: 02/20/1998)
256 ORDER by Judge Barbara J. Rothstein DENYING defendants' motion

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02/20/1998 02/20/1998 02/20/1998 02/20/1998 02/20/1998 02/20/1998 02/20/1998 02/20/1998
02/20/1998 02/20/1998
02/23/1998
02/23/1998 02/23/1998 02/23/1998 02/24/1998 02/24/1998 02/24/1998

for reconsideration of 1/14/98 order [214-1] (cc: counsel, Judge) (dktclk) (Entered: 02/20/1998)
257 RESPONSE(MEMORANDUM IN OPPOSITION) by defendants to motion for sanctions [236-1] (dktclk) (Entered: 02/23/1998)
258 AFFIDAVIT of Thomas J. Young re: motion response [257-1] (dktclk) (Entered: 02/23/1998)
259 MOTION by defendants to extend trial preparation schedule NOTED FOR 3/13/98 (dktclk) (Entered: 02/23/1998)
260 MEMORANDUM by defendants in support of motion to extend trial preparation schedule [259-1] (dktclk) (Entered: 02/23/1998)
261 AFFIDAVIT of Thomas J. Young in support of motion to extend trial preparation schedule [259-1] (dktclk) (Entered: 02/23/1998)
LODGED ORDER: re: motion to extend trial preparation schedule [2591] (dktclk) (Entered: 02/23/1998)
262 MOTION by defendants to shorten time on motion to extend trial preparation schedule [259-1] (dktclk) (Entered: 02/23/1998)
263 AFFIDAVIT of Thomas J. Young in support of motion to shorten time on motion to extend trial preparation schedule [259-1] [262-1] (dktclk) (Entered: 02/23/1998)
LODGED ORDER: re: motion to shorten time on motion to extend trial preparation schedule [259-1] [262-1] (dktclk) (Entered: 02/23/1998)
264 AFFIDAVIT OF SERVICE by defendants of motion to shorten time on motion to extend trial preparation schedule [259-1] [262-1], of motion to extend trial preparation schedule [259-1], and related. (dktclk) (Entered: 02/23/1998)
265 RESPONSE by plaintiffs to motion to shorten time on motion to extend trial preparation schedule [259-1] [262-1], motion to extend trial preparation schedule (dktclk) (Entered: 02/25/1998)
266 AFFIDAVIT OF SERVICE by plaintiffs of motion response [265-1] (dktclk) (Entered: 02/25/1998)
267 DECLARATION of Leonard J. Feldman in response to dfts' motion reply [254-1] (dktclk) (Entered: 02/25/1998)
268 AFFIDAVIT OF SERVICE by plaintiff of declaration [267-1] (dktclk) (Entered: 02/25/1998)
270 REPLY by plaintiffs TO RESPONSE to motion for sanctions [236-1] (RS) (Entered: 02/26/1998)
271 DECLARATION of Leonard Feldman re: motion reply [270-1] (RS) (Entered: 02/26/1998)
272 AFFIDAVIT OF SERVICE by plaintiff of motion reply [270-1], etc (RS)

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02/25/1998 02/26/1998
02/27/1998 02/27/1998 03/03/1998 03/03/1998 03/04/1998
03/09/1998 03/09/1998 03/12/1998 03/12/1998 03/12/1998 03/13/1998 03/13/1998 03/13/1998

(Entered: 02/26/1998)
269 TRANSCRIPT of proceedings for the following date(s): 2/6/98 (Re: Transcript of Proceedings) CR initials: J. Roth (dktclk) (Entered: 02/25/1998)
273 ORDER by Magistrate Judge Philip K. Sweigert DENYING plaintiffs' motion for sanctions [236-1], DENYING defendants' motion to stay [227-1], DENYING plaintiffs' motion to appoint settlement judge [1721], STRIKING as moot defendants' motion for more definite statement [101-1] (cc: PKS, BJR, counsel) (dktclk) (Entered: 02/27/1998)
274 SELECTION OF Larry E. Levy as 39.1 mediator (dktclk) (Entered: 03/03/1998)
275 AFFIDAVIT OF SERVICE of notice of selection of mediator [274-1] (dktclk) (Entered: 03/03/1998)
276 REPORT AND RECOMMENDATION regarding class certification by Magistrate Judge Philip K. Sweigert NOTED FOR 3/20/98 (cc: counsel, Judge) (dktclk) (Entered: 03/04/1998)
LODGED ORDER re:REPORT AND RECOMMENDATION regarding class certification [276-1] (dktclk) (Entered: 03/04/1998)
277 ORDER by Judge Barbara J. Rothstein GRANTING defendants' motion to extend trial preparation schedule [259-1]; disclosure of expert witnesses due 5/2/98; disclosure of rebuttal expert witnesses due 6/27/98; discovery ddl extended to 8/1/98; motions in limine due 8/11/98 (cc: counsel, Judge) (dktclk) (Entered: 03/04/1998)
278 JOINT MEDIATION STATUS REPORT. SELECTION OF Larry Levy as 39.1 mediator (dktclk) (Entered: 03/10/1998)
279 AFFIDAVIT OF SERVICE by plaintiffs of joint mediation status report/selection of 39.1 mediator [278-1] (dktclk) (Entered: 03/10/1998)
280 AFFIDAVIT OF SERVICE OF SUBPOENA of Willie Daigle on 3/11/98 (dktclk) (Entered: 03/13/1998)
281 NOTICE OF SUBSTITUTIOEN OF MEDIATOR filed by the parties. New mediator: William J. Bender. (dktclk) (Entered: 03/13/1998)
282 AFFIDAVIT OF SERVICE of notice of change of mediator [281-1] (dktclk) (Entered: 03/13/1998)
283 AFFIDAVIT OF SERVICE OF SUBPOENAE of Earl Wright on 3/9/98 (dktclk) (Entered: 03/16/1998)
284 AFFIDAVIT OF SERVICE OF SUBPOENAE of P.J. Braun on 3/9/98 (dktclk) (Entered: 03/16/1998)
285 AFFIDAVIT OF SERVICE OF SUBPOENAE of Marjorie Owen on 3/9/98 (dktclk) (Entered: 03/16/1998)

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03/16/1998 03/17/1998 03/17/1998 03/17/1998 03/17/1998 03/17/1998 03/17/1998 03/17/1998 03/18/1998 03/18/1998 03/18/1998 03/18/1998 03/20/1998 03/20/1998 03/20/1998
03/20/1998

286 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA of Deborah Hunter on 3/12/98 (dktclk) (Entered: 03/16/1998)
287 AFFIDAVIT OF SERVICE by plaintiffs of consolidated complaint class action (dktclk) (Entered: 03/18/1998)
288 DECLARATION of Leonard J. Feldman in further response to Court's 1/9/98 Order re: order [189-1] (dktclk) (Entered: 03/18/1998)
289 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of declaration in response to 1/9/98 Order [288-1] (dktclk) (Entered: 03/18/1998)
290 ANSWER to plaintiffs' consolidted class action complaint by defendants; jury demand (dktclk) (Entered: 03/18/1998)
291 AFFIDAVIT OF SERVICE by defendants of answer to consolidated class action complaint [290-1] (dktclk) (Entered: 03/18/1998)
292 Objections to Report and Recommendation on class certification by defendants NOTED FOR 4/10/98 NOTED FOR 4/3/98 (dktclk) (Entered: 03/18/1998)
293 AFFIDAVIT OF SERVICE by defendants of Objections to Report and Recommendation on class certification [292-1] (dktclk) (Entered: 03/18/1998)
294 AMENDED DECLARATION OF LEONARD J. FELDMAN IN FURTHER RESPONSE TO COURT'S 1/9/98 ORDER re: declaration [288-1] (dktclk) (Entered: 03/19/1998)
295 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of amended declaration of Leonard J. Feldman [294-1] (dktclk) (Entered: 03/19/1998)
296 Objections to Report and Recommendation regarding class certification by plaintiffs NOTED FOR 4/3/98 (dktclk) (Entered: 03/19/1998)
297 AFFIDAVIT OF SERVICE by plaintiffs of Objections to Report and Recommendation regarding class certification [296-1] (dktclk) (Entered: 03/19/1998)
298 NOTICE OF APPEAL by defendant Chase Riveland in 2:92-cv-01596 from Dist. Court decision [195-1] (cc: CCA, BJR, counsel) (dktclk) (Entered: 03/23/1998)
APPEAL FEE RECEIVED: Appellants Chase Riveland et al paid fee in amount of $ 105.00 ( Receipt 248427) (dktclk) (Entered: 03/23/1998)
299 AFFIDAVIT of SERVICE by defendant Chase Riveland in 2:92-cv01596 of Notice of Appeal and Preliminary Injuction Appeal; Representation Statement; civil appeals docketing statement and affidavit of service. (dktclk) (Entered: 03/23/1998)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 04/21/1998)

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03/21/1998 03/23/1998 03/23/1998 03/25/1998
03/30/1998 04/06/1998 05/04/1998 05/04/1998 05/04/1998
06/02/1998

300 PRAECIPE/LETTER to Court from Leonard J. Feldman encloses original signature for amended declaration filed 3/18/98. (dktclk) (Entered: 03/25/1998)
ENT-Civil Appeals Docketing Statement forwarded to Mediator's Office in Seattle. (dktclk) (Entered: 03/23/1998)
ENT-Representation Statement forwarded to 9th CCA. (dktclk) (Entered: 03/23/1998)
301 ORDER by Magistrate Judge Philip K. Sweigert re: plaintiffs' discovery motions [126] [130] [134] (Please see Order for details). Motion to determine sufficiency of responses STRICKEN.ntiff Duffy's motion to compel GRANTED with respect to specific document(s). Plaintiff Atkins' motion to compel DENIED as to specific document(s). Plaintiffs' motion to compel production of documents in archives GRANTED IN PART and DENIED IN PART. Dfts shall produce documents response to plaintiffs' narrowed request. motion to compel responses to pltf Aikin's interr and req for prod [134-1], motion to determine sufficiency of responses to requests for admissions [130-1], GRANTING motion to compel discovery [126-1] (cc: counsel, Judge) (dktclk) (Entered: 03/25/1998)
302 JOINT MEDIATION STATUS REPORT (dktclk) (Entered: 03/30/1998)
303 MINUTE ENTRY by the Court; parties have represented to Court that matter is settled; Court GRANTS request that case be stayed pending preparation of final settlement documents; case STAYED for 30 days. (cc: cnsl, Judge) (dktclk) (Entered: 04/07/1998)
NOTIFICATION by Circuit Court of Appellate Docket Number 9835371 [Chase Riveland] (dktclk) (Entered: 05/04/1998)
304 TIME SCHEDULE ORDER (CCA 98-35371) Appellant's opening brf and excerpts of record shall be served and filed by 5/27/98; the brf of appellee shall be filed and served by 6/26/98. (dktclk) Modified on 05/04/1998 (Entered: 05/04/1998)
305 TIME SCHEDULE ORDER (CCA 98-35371) Appellant shall notify appellee of transcripts to be ordered by 3/30/98; appellee shall notify appellant of any additional transcripts needed by 4/9/98; appellant shall file transcript order form with the district court and make payment arrangements with court reporter by 4/20/98; Court reporter shall file transcript in the district court by 5/20/98; appellant's opening brf and excerpts of record shall be served and filed by 7/6/98; the brf of appellee shall be filed and served by 8/5/98. (dktclk) (Entered: 05/04/1998)
312 ORDER by Judge John C. Coughenour REFERRING to Magistrate Judge Ricardo S. Martinez the motion to compel production of documents [219-1], REFERRING to Magistrate Judge Ricardo S. Martinez the motion to compel depostion [161-1] (cc: counsel, Judge) (RS) (Entered: 06/24/1998)

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06/05/1998 06/05/1998 06/05/1998 06/05/1998 06/05/1998 06/08/1998
06/08/1998 06/08/1998
06/19/1998
07/13/1998 07/16/1998 07/20/1998 07/20/1998 07/23/1998 07/24/1998 07/24/1998

306 LETTER to the Court from Leonard J. Feldman re pleadings submitted to Court, including settlement agreement regarding Mr. Duffy's individual damage claims. (dktclk) (Entered: 06/09/1998)
307 SETTLEMENT AGREEMENT (SEAN DUFFY) filed by the parties (dktclk) (Entered: 06/09/1998)
NOTICE TO DEAF AND HEARING IMPAIRED PRISONERS REGARDING PROPOSED SETTLEMENT OF CLASS ACTION and LODGED ORDER (dktclk) (Entered: 06/09/1998)
STIPULATION AND LODGED ORDER PROVISIONALLY APROVING SETTLEMENT AGREEMENT AND DIRECTING NOTICE TO CLASS (dktclk) (Entered: 06/09/1998)
STIPULATION AND LODGED ORDER RE SETTLEMENT AGREEMENT (dktclk) (Entered: 06/09/1998)
308 STIPULATED ORDER PROVISIONALLY APPROVING SETTLEMENT AGREEMENT AND DIRECTING NOTICE TO CLASS by Judge Barbara J. Rothstein : (cc: counsel, Judge) (dktclk) (Entered: 06/09/1998)
309 STIPULATION and ORDER (with attached settlement agreement) by Judge Barbara J. Rothstein : (cc: counsel, Judge) (dktclk) (Entered: 06/09/1998)
310 ORDER/NOTICE TO DEAF AND HEARING IMPAIRED PRISONERS REGARDING PROPOSED SETTLEMENT OF CLASS ACTION by Judge Barbara J. Rothstein (cc: counsel, Judge) (dktclk) (Entered: 06/09/1998)
311 STIPULATION and ORDER by Judge Thomas S. Zilly (for BJR) : VACATING [309-1] stipulation and order pending ntc to class members. The parties will re-submit another document to replace docket #309 for entry at the appropriate time (cc: counsel, Judge) (KERR) (Entered: 06/22/1998)
313 OBJECTIONS to proposed settlement of class action by Efren Lopez Gamboa (Prisoner at WSP) (KERR) (Entered: 07/14/1998)
316 LETTER by Cesario Chapman (inmate at AHCC) (KERR) (Entered: 07/22/1998)
314 LETTER by plaintiff Sean G Duffy re: proposed settlement (KERR) (Entered: 07/20/1998)
315 LETTER by Bennett Titus, inmate at AHCC (KERR) (Entered: 07/20/1998)
317 LETTER by Clayton D Gerlach (WSP) (KERR) (Entered: 07/24/1998)
318 LETTER from Bennet Titus (AHCC) (KERR) (Entered: 07/27/1998)
319 STIPULATION and ORDER EXTENDING PERIOD FOR

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07/25/1998 07/27/1998
07/27/1998
07/30/1998 07/31/1998 08/04/1998 08/04/1998 08/18/1998
08/20/1998 08/21/1998 08/21/1998
08/21/1998 08/21/1998 08/21/1998 08/21/1998 08/22/1998

OBJECTIONS TO PROPOSED SETTLEMENT by Judge Barbara J. Rothstein : Date extended to 8/15/98 (cc: counsel, Judge) (KERR) (Entered: 07/27/1998)
320 MOTION to join action by Dana LeGer NOTED FOR 8/14/98 (Letter sent re: mtn not noted) (KERR) (Entered: 07/29/1998)
321 LETTER by Bennett Titus (AHCC) re: order/notice to deaf and hearing impaired prisoners re proposed settlement of class action [310-1] (KERR) Modified on 07/29/1998 (Entered: 07/29/1998)
322 OBJECTION by Earl Sweeten (AHHC) to order/notice to deaf and hearing impaired prisoners re proposed settlement of class action [310-1] (KERR) (Entered: 07/29/1998)
323 LETTER by Walter Steele (Shelton Corrections Ctr) re: proposed settlement (KERR) (Entered: 07/30/1998)
324 LETTER by David Beauchamp (WCC) re: request to be added to the settlement (KERR) (Entered: 08/03/1998)
325 PETITION FOR WRIT OF PROHIBITION by Interested Party George Rocky Manos (MCII) (KERR) (Entered: 08/04/1998)
326 AFFIDAVIT OF SERVICE by Interested Party George Rocky Manos of petition for writ of prohibition [325-1] (KERR) (Entered: 08/04/1998)
327 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING Dana LeGer's motion to join action [320-1]. The court will consider her pleading as an objection to the proposed settlement (cc: counsel, Judge) (KERR) (Entered: 08/19/1998)
328 NOTICE of change of address by Mr Chapman (KERR) (Entered: 08/20/1998)
329 MOTION by plaintiffs to approve settlement of class action NOTED FOR 9/11/98 (KERR) (Entered: 08/24/1998)
330 MEMORANDUM by plaintiffs in support of motion to approve settlement of class action [329-1] (Exhibits 1-11 Attached) (KERR) (Entered: 08/24/1998)
331 DECLARATION of Leonard J Feldman by plaintiffs re motion to approve settlement of class action [329-1] (KERR) (Entered: 08/24/1998)
LODGED ORDER: re: motion to approve settlement of class action [329-1] (KERR) (Entered: 08/24/1998)
LODGED ORDER: re: stipulation re: settlement agreement (KERR) (Entered: 08/24/1998)
332 AFFIDAVIT OF SERVICE by plaintiffs of motion to approve settlement of class action [329-1], etc. (KERR) (Entered: 08/24/1998)
333 MAIL RETURNED: re: Minute Order order [327-1] addressed to George

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08/28/1998 08/28/1998 08/31/1998 09/03/1998 09/08/1998 09/09/1998 09/09/1998 09/09/1998 09/09/1998 10/23/1998 10/27/1998 03/21/2000 05/06/2000 07/18/2005 08/01/2005

Rocky Manos in 2:92-cv-01596 (KERR) (Entered: 08/25/1998)
334 OBJECTIONS by Dana LeGer (WCC) to the settlement wherein abuses continue against the hearing impaired and handicap (KERR) (Entered: 08/28/1998)
335 AFFIDAVIT OF SERVICE by Dana LeGer of objection to settlement [334-1] (KERR) (Entered: 08/28/1998)
336 STIPULATION and ORDER by Judge Barbara J. Rothstein : Pltfs' consolidated class acton complaint is dismissed w/ prejudice. (Settlement Agreement Attached) (cc: counsel, Judge) (KERR) (Entered: 08/31/1998)
337 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion approving settlement of class action [329-1] (cc: counsel, Judge) (KERR) (Entered: 09/03/1998)
338 MAIL RETURNED: re: Scheduling order [336-1], re: stipulation [336-2] addressed to George Rocky Manos in 2:92-cv-01596 (KERR) (Entered: 09/08/1998)
339 MAIL RETURNED: re: order [337-1] addressed to George Rocky Manos in 2:92-cv-01596 (KERR) (Entered: 09/10/1998)
340 AFFIDAVIT of Dana H LeGer re: settlement agreement (KERR) (Entered: 09/10/1998)
341 MEMORANDUM OF LAW by Interested Party Dana H LeGer re: settlement agreement (KERR) (Entered: 09/10/1998)
342 AFFIDAVIT OF SERVICE by Interested Party Dana H LeGer of affidavit [340-1], etc. (KERR) (Entered: 09/10/1998)
343 MANDATE (98-35371) from Circuit Court of Appeals. Pursuant to the court's 9/28/98, order, this appeal is deemed dismissed voluntarily. (cc: all counsel, BJR) (dktclk) (Entered: 10/23/1998)
344 MAIL RETURNED: re: order appeal [343-1] addressed to George Rocky Manos in 2:92-cv-01596 (dktclk) (Entered: 10/29/1998)
345 SUBSTITUTION OF COUNSEL on behalf of Charles Atkins substituting Patricia J. Arthur and terminating attorney David C Fathi for Charles Atkins (KERR) (Entered: 03/22/2000)
346 SUBSTITUTION OF COUNSEL on behalf of dfts substituting atty Shannon Inglis for withdrawing attys Daniel Judge and Thomas Young (RS) (Entered: 05/09/2000)
347 Letter from B.D. Cochran requesting forms. (RS, ) (Entered: 08/02/2005)
348 NOTICE/RESPONSE from Clerk to B.D. Cochran's 347 Letter (RS, ) (Entered: 08/02/2005)

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PACER Service Center
Transaction Receipt

11/01/2005 15:18:58

PACER Login:

hs0328

Client Code:

++++++++++++++++++++++++++++++++

Description:

Docket Report

Search Criteria:

2:92-cv-01596-BJR

Billable Pages:

18

Cost: 1.44

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CLOSED, CONSOL, JURYDEMAND
U.S. District Court WESTERN DISTRICT OF WASHINGTON (Seattle) CIVIL DOCKET FOR CASE #: 2:93-cv-00637-BJR-DEW

Duffy v. Yost, et al Assigned to: Hon. Barbara J. Rothstein Referred to: Hon. David E Wilson Demand: $0 Lead case: 2:92-cv-01596-BJR (View Member Cases) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/04/1993 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Sean G Duffy

represented by Leonard J Feldman HELLER EHRMAN LLP 701 5TH AVE STE 6100 SEATTLE, WA 98104-7098 206-447-0900 Fax: FAX 447-0375 Email: leonard.feldman@hellerehrman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Craig Yost Classification Counselor

represented by Douglas Wayne Carr ATTORNEY GENERAL'S OFFICE (CRIM JUST-OLY) CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: FAX 1-360-664-8716 Email: dougc@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup ATTORNEY GENERAL'S OFFICE CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: 586-1445

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Defendant William Woodley Corr. Unit Supervisor
Defendant David Karton Corretions Sergeant
Defendant Linda Willenberg Corr. Prog. Manager

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young PO BOX 40117 OLYMPIA, WA 98504-0117 360-586-4608 Fax: FAX 1-360-586-6760 Email: TomY@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Kenneth DuCharme Superintendent
Defendant James Spalding Director
Defendant Chase Riveland Secretary

Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address)

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Defendant Washington State Reformatory a Public Entity
Defendant Corrections Department of the State of Washington a Public Entity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Wayne Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/04/1993 05/12/1993
05/12/1993

#

Docket Text

PROPOSED In Forma Pauperis Application; Discrimination Complaint; Affidavit of Service; Certificate of Proof (dktclk) (Entered: 05/10/1993)

1 ORDER by Magistrate Judge David E. Wilson GRANTING plaintiff's application to proceed IFP (cc: plaintiff, JCC, DEW) ent 5/12/93 (DS) (Entered: 05/12/1993)

2 Prisoner Civil Rights COMPLAINT (No Summons(es) issued) Receipt #

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05/12/1993 05/12/1993 05/16/1993 05/18/1993 05/25/1993
06/17/1993 06/17/1993 06/17/1993 06/17/1993 06/17/1993 06/19/1993 06/19/1993 06/19/1993 07/21/1993 07/21/1993 08/03/1993

IFP (DS) (Entered: 05/12/1993)
3 CERTIFICATE of Proof (DS) (Entered: 05/12/1993)
4 AFFIDAVIT OF SERVICE by plaintiff of documents served on Court (DS) (Entered: 05/12/1993)
5 STATUS MEMORANDUM by Dep Clerk: JPM; File Review Set 7/22/93 (DS) (Entered: 05/17/1993)
6 ORDER by Judge John C. Coughenour of reference to Magistrate Judge David E. Wilson ent mld (cc: all counsel) (dktclk) (Entered: 05/18/1993)
7 ORDER by Magistrate Judge David E. Wilson DIRECTING SERVICE AND PROCEDURES: Clerk directed to effect service of S/C, cc of supporting documents, this order, 2cc ntc of acknowledgment and return envelope upon defts and AG. Answer ddl: w/in 45 days of service. Procedures re filing of documents, etc. outlined. (cc: pltf w/ cc General Order, defts, AG, JCC, JPM, DEW) ent 5/26/93 (DS) (Entered: 05/26/1993)
8 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant Chase Riveland on 6/14/93 (dktclk) (Entered: 06/21/1993)
9 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant Linda Willenberg on 6/11/93 (dktclk) (Entered: 06/21/1993)
10 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE by defendant James Spalding on 6/14/93 (dktclk) (Entered: 06/21/1993)
11 NTC OF ATTORNEY APPEARANCE for defendants: Douglas Wayne Carr (dktclk) (Entered: 06/21/1993)
12 AFFIDAVIT OF SERVICE by defendants of attorney notice [11-1] mailed to pltf (dktclk) (Entered: 06/21/1993)
13 NOTICE & ACKNOWLEDGEMENT OF RECEIPT of S/C by defendant William Woodley on 6/8/93 (DS) (Entered: 06/21/1993)
14 NOTICE & ACKNOWLEDGEMENT OF RECEIPT of S/C by defendant David Karton on 6/8/93 (DS) (Entered: 06/21/1993)
15 NOTICE & ACKNOWLEDGEMENT OF RECEIPT of S/C by defendant Craig Yost on 6/8/93 (DS) (Entered: 06/21/1993)
16 ANSWER to complaint [2-1] by defendants and JURY DEMAND (DS) (Entered: 07/22/1993)
17 AFFIDAVIT OF SERVICE by defendant of answer [16-1] served on plaintiff (DS) (Entered: 07/22/1993)
18 ORDER by Magistrate Judge David E. Wilson REGARDING PRETRIAL PREPARATIONS: Procedures re filing of documents, etc. outlined and the following schedule set: Discovery completion date: 10/4/93; Mtn filing ddl: 11/3/93; Pretrial statements: Pltf's due: 1/3/94,

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08/05/1993 09/22/1993 09/22/1993 09/22/1993 09/22/1993 10/04/1993
10/14/1993 10/14/1993 10/25/1993 11/04/1993 11/04/1993 11/04/1993 11/23/1993 11/24/1993 11/24/1993

Defts' due: 2/2/94. (cc: plaintiff, all counsel, JCC, DEW, JPM) ent 8/4/93 (DS) (Entered: 08/04/1993)
19 STATUS MEMORANDUM by Dep Clerk: JPM; File Review set 3/17/94 (DS) (Entered: 08/11/1993)
20 MOTION by plaintiff for preliminary injunction noted for 10/15/93 (JK) (Entered: 09/27/1993)
21 NOTICE by plaintiff that the following is noted for motion for preliminary injunction. Ntd for 10/15/93 (JK) (Entered: 09/27/1993)
22 INTRODUCTION OF EXHIBITS re: motion for preliminary injunction [20-1] (JK) (Entered: 09/27/1993)
23 AFFIDAVIT OF SERVICE by plaintiff of exhibits [22-1], of motion notice [21-1], of motion for preliminary injunction [20-1] served on 9/20/93 (JK) (Entered: 09/27/1993)
24 MINUTE ORDER: by direction of Magistrate Judge David E. Wilson: Pltf's motion for preliminary injunction was not accompanied by an affidavit indicating it was served on defts. The Clerk shall send cc of motion and supporting documents to defts, however, pltf is advised if in the future, pltf fails to comply with these procedures, the Court will disregard the submitted documents. (cc: all counsel w/ cc of motion, plaintiff, JCC, DEW, JPM) ent 10/4/93 (DS) (Entered: 10/04/1993)
25 RESPONSE by defendant to motion for preliminary injunction [20-1] (DS) (Entered: 10/18/1993)
26 AFFIDAVIT OF SERVICE BY MAILING by defendant of motion response [25-1] served on plaintiff (DS) (Entered: 10/18/1993)
27 MINUTE ORDER: by direction of Judge John C. Coughenour: Pltf's motion for preliminary injunction [20-1] is DENIED (cc: all counsel, pltf, JCC, DEW, JPM) ent 10/25/93 (DS) (Entered: 10/25/1993)
28 MOTION by defendant for summary judgment noted for 12/3/93 (dktclk) (Entered: 11/08/1993)
29 MEMORANDUM by defendant in support of motion for summary judgment [28-1]. Exhibits attached (dktclk) (Entered: 11/08/1993)
30 AFFIDAVIT OF SERVICE of motion for summary judgment [28-1] etc served on Sean G Duffy on 11/3/93 (dktclk) (Entered: 11/08/1993)
31 RESPONSE by plaintiff to the memorandum in support of defendants' motion for summary judgment [28-1] (DS) (Entered: 11/29/1993)
32 AFFIDAVIT OF SERVICE BY MAILING by plaintiff of motion response [31-1] served on defendants (DS) (Entered: 11/29/1993)
33 RESPONSE by plaintiff Sean G Duffy - to memo in support of motion for summary judgment [28-1] (dktclk) (Entered: 12/02/1993)

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12/04/1993 12/04/1993 12/04/1993 12/23/1993 12/23/1993 12/29/1993 12/29/1993 02/22/1994
02/22/1994
03/10/1994 03/10/1994 03/21/1994 04/19/1994
04/19/1994

34 MOTION by plaintiff for preliminary injunction noted for 12/31/93 (DS) (Entered: 12/07/1993)
35 NOTICE by plaintiff that the following is noted for 12/31/93 motion for preliminary injunction (DS) (Entered: 12/07/1993)
36 AFFIDAVIT OF SERVICE BY MAILING by plaintiff of motion for preliminary injunction [34-1] served on defendants (DS) (Entered: 12/07/1993)
37 RESPONSE by defendants to motion for preliminary injunction [34-1] (DS) (Entered: 12/27/1993)
38 AFFIDAVIT OF SERVICE BY MAILING by defendants of motion response [37-1] served on plaintiff (DS) (Entered: 12/27/1993)
39 PRETRIAL STATEMENT by plaintiff (DS) (Entered: 01/03/1994)
40 AFFIDAVIT OF SERVICE BY MAILING by plaintiff of pretrial statement [39-1] served on defendants (DS) (Entered: 01/03/1994)
41 Report and Recommendation recommending: Pltf's motion for preliminary injunction [34-1] be DENIED. Defts' motion for summary judgment [28-1] be GRANTED. Pltf's complaint should be DISMISSED w/ prejudice. by Magistrate Judge David E. Wilson noted for 3/18/94 (cc: all counsel) (DS) (Entered: 02/23/1994)
LODGED ORDER: re: Report and Recommendation recommending: Pltf's motion for preliminary injunction [34-1] be DENIED. Defts' motion for summary judgment [28-1] be GRANTED. Pltf's complaint should be DISMISSED w/ prejudice. [41-1] (DS) (Entered: 02/23/1994)
42 Objections to Report and Recommendation (submitted as Motion in opposition to Magistrate Judge's R & R) by plaintiff noted for 3/25/94 (DS) (Entered: 03/11/1994)
43 AFFIDAVIT OF SERVICE BY MAILING by plaintiff of Objections to Report and Recommendation (submitted as Motion in opposition to Magistrate Judge's R & R) [42-1] (DS) (Entered: 03/11/1994)
44 STATUS MEMORANDUM by Dep Clerk: JPM; File Review set 3/17/94 (DS) (Entered: 03/22/1994)
45 ORDER by Judge John C. Coughenour ADOPTOMG Magistrate Judge David E. Wilson's Report and Recommendation: Pltf's motion for preliminary injunction [34-1] is DENIED. Defts' motion for summary judgment [28-1] is GRANTED. Pltf's complaint is DISMISSED w/ prejudice. [41-1] (cc: all counsel, JCC, DEW, JPM) ent 4/19/94 (DS) (Entered: 04/19/1994)
46 JUDGMENT ON DECISION BY THE COURT: Defts' mtn for summary jgmt is GRANTED. Pltf's complaint is DISMISSED w/ prejudice. (cc: all counsel, JCC, DEW, JPM, Jgm bk) ent 4/19/94 (DS) (Entered: 04/19/1994)

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04/22/1994 04/22/1994 04/22/1994 04/30/1994 04/30/1994 04/30/1994 05/04/1994 05/04/1994 05/13/1994 05/13/1994 05/25/1994 11/08/1996
11/18/1996 01/18/1997
02/11/1997 02/11/1997

Bill of costs; taxation due by 5/5/94 ( assigned to Clerk Bruce Rifkin ) by defendants noted for 5/5/94 (DS) (Entered: 04/25/1994)
47 MEMORANDUM by defendants in support of bill of costs [0-1] (DS) (Entered: 04/25/1994)
48 AFFIDAVIT OF SERVICE by Mailing by defendants of bill of costs motion [0-1] (DS) (Entered: 04/25/1994)
49 NOTICE OF APPEAL by plaintiff Sean G Duffy from Dist. Court decision [46-1] (cc: CCA, JCC, all counsel) (dktclk) (Entered: 05/04/1994)
NO APPEAL FEE RECEIVED: 5/12/93 order grants IFP status (dktclk) (Entered: 05/04/1994)
50 AFFIDAVIT OF SERVICE BY MAILING of appeal [49-1] (dktclk) (Entered: 05/04/1994)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 05/04/1994)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (dktclk) (Entered: 05/04/1994)
NOTIFICATION by Circuit Court of Appellate Docket Number 9435444 (dktclk) (Entered: 05/17/1994)
51 TIME SCHEDULE ORDER (CCA) 94-35444: Open.br. and excerpts due 6/20/94; resp.br. due 7/20/94; optional reply br. due within 14 days of svc. of resp.br. (dktclk) (Entered: 05/17/1994)
52 COSTS taxed for defendants in the amount of $ 36.00 against plaintiff (cc: all counsel, JCC, Jgm bk) ent 5/25/94 (DS) (Entered: 05/25/1994)
53 MANDATE #94-35444 from Circuit Court of Appeals AFFIRMING IN PART, REVERSING IN PART AND REMANDING THE DECISION of the District Court [Appeal [49-1] Original w/ opinion filed in C921586R (cc: JCC, JM, all counsel) (NS) (Entered: 11/08/1996)
54 ORDER (CCA) #94-35444: The mandate issued in this matter is hereby RECALLED as having issued prematurely (cc: JCC, cnsl) [original certified order filed/docketed in C92-1596R] (NS) (Entered: 11/19/1996)
55 MANDATE (94-35444) from Circuit Court of Appeals. ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. (cc: all counsel) Opinion attached. (Copy docketed in C92-1596BJR) (dktclk) (Entered: 01/21/1997)
56 ATTORNEY APPEARANCE for plaintiff Sean G Duffy by Leonard J Feldman (dktclk) (Entered: 02/13/1997)
57 AFFIDAVIT OF SERVICE by plaintiff Sean G Duffy of attorney [56-1]

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02/11/1997 02/21/1997
02/27/1997 02/27/1997 03/12/1997 03/18/1997
05/24/1997

(dktclk) (Entered: 02/13/1997)
58 LETTER by plaintiff Sean G Duffy re mandate (dktclk) (Entered: 02/19/1997)
59 MINUTES: JCC; Dep Clerk: J. Mahnke: This action is transferred to the Hon. Barbara Jacobs Rothstein as related to C92-1596R. All pledings filed in the future shall bear case number C93-637(C)R. Case reassigned to Judge Barbara J. Rothstein (cc: all counsel, JCC,BJR,ET,Intake) (dktclk) (Entered: 02/21/1997)
60 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL. Daniel J. Judge withdraws and Penelope S. Nerup and Thomas J. Young substitute in for defendants. (dktclk) (Entered: 02/28/1997)
61 AFFIDAVIT OF SERVICE by counsel for defendants of attorney substitution [60-1] (dktclk) (Entered: 02/28/1997)
62 ORDER by Judge Barbara J. Rothstein Case referred to Magistrate Judge David E. Wilson for review (cc: BJR, DEW, counsel ) (dktclk) (Entered: 03/13/1997)
63 ORDER by Judge Barbara J. Rothstein: Court CONSOLIDATES C93637R with C92-1596R. All future pleadings shall be filed under C921596R. All further proceedings REFERRED to U.S. Magistrate Judge Sweigert. Case C93-637R statistically closed. (Original order in C921596.)(cc: BJR, PKS, counsel) (dktclk) (Entered: 03/20/1997)
65 AFFIDAVIT OF SERVICE by defendants of motion response [64-1] (dktclk) (Entered: 05/28/1997)

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CLOSED, CONSOL, JURYDEMAND
U.S. District Court WESTERN DISTRICT OF WASHINGTON (Seattle) CIVIL DOCKET FOR CASE #: 2:96-cv-01985-BJR

Atkins, et al v. Lehman, et al Assigned to: Hon. Barbara J. Rothstein Demand: $0 Lead case: 2:92-cv-01596-BJR (View Member Cases) Cause: 42:1983 Civil Rights Act

Date Filed: 12/19/1996 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Charles Atkins

represented by David C Fathi ACLU NATIONAL PRISONER PROJECT 915 15TH ST NW 7TH FLOOR WASHINGTON, DC 20005 202-393-4930 Email: dfathi@npp-aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charles Atkins

represented by David C Fathi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Chase Riveland Secretary Washington Department of Corrections in his official capacity TERMINATED: 04/02/1997

represented by Penelope S Nerup ATTORNEY GENERAL'S OFFICE CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: 586-1445 TERMINATED: 04/02/1997 LEAD ATTORNEY
Thomas J Young PO BOX 40117 OLYMPIA, WA 98504-0117 360-586-4608 Fax: FAX 1-360-586-6760

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Defendant Tom Rolfs Director Division of Prisons in his official capacity
Defendant Tana Wood Superintendent Washington State Penitentiary in her official capacity
Defendant Joseph Lehman Secretary, Washington Department of Corrections, in his official capacity

Email: TomY@atg.wa.gov TERMINATED: 04/02/1997 LEAD ATTORNEY
represented by Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Penelope S Nerup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/19/1996 01/03/1997 01/06/1997 01/11/1997 01/13/1997 01/15/1997

#

Docket Text

1 COMPLAINT (Summons(es) issued) Receipt # 237648 (dktclk) (Entered: 12/20/1996)

2 RETURN OF SERVICE of summons and complaint executed upon defendant Chase Riveland on 12/20/96 (KERR) (Entered: 01/06/1997)

3 RETURN OF SERVICE of summons and complaint executed upon defendant Tom Rolfs on 12/30/96 (KERR) (Entered: 01/06/1997)

4 RETURN OF SERVICE of summons and complaint executed upon defendant Tana Wood on 1/6/97 (KERR) (Entered: 01/13/1997)

5 RETURN OF SERVICE of summons and complaint executed upon defendant Tana Wood on 1/3/97 (KERR) (Entered: 01/13/1997)

6 ATTORNEY APPEARANCE for defendants by Penelope S Nerup, Thomas J Young (KERR) (Entered: 01/16/1997)

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01/15/1997 01/27/1997 02/08/1997 02/08/1997 02/14/1997 04/02/1997 04/02/1997 04/02/1997 04/18/1997 04/18/1997 04/19/1997 04/19/1997 05/02/1997
08/01/1997 08/01/1997

7 AFFIDAVIT OF SERVICE by defendants of attorney appearance [6-1] (KERR) (Entered: 01/16/1997)
8 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 4/21/97 (cc: counsel, Judge) (KERR) (Entered: 01/27/1997)
9 ANSWER AND AFFIRMATIVE DEFENSES to complaint [1-1] by defendant; jury demand (KERR) (Entered: 02/11/1997)
10 AFFIDAVIT OF SERVICE by defendants of answer [9-1] (KERR) (Entered: 02/11/1997)
11 NOTICE by plaintiff's cnsl, David Fathi, of change of address (cc: Nealann) (KERR) (Entered: 02/18/1997)
12 STIPULATION and ORDER by Judge Carolyn R. Dimmick : permitting filing of first amended complaint (cc: counsel, Judge) (RS) (Entered: 04/03/1997)
13 FIRST AMENDED COMPLAINT [1-1] by plaintiff; terminating Chase Riveland; adding Joseph Lehman (RS) (Entered: 04/03/1997)
14 AFFIDAVIT OF SERVICE by plaintiff of amended complaint [13-1] (RS) (Entered: 04/03/1997)
15 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 5 days; Discovery completed 9/30/97 per pltf and 7/30/97 per dfts; 39.1 mediation after completion of discovery. (dktclk) (Entered: 04/21/1997)
16 AFFIDAVIT OF SERVICE by plaintiff of joint status report [15-1] (dktclk) (Entered: 04/21/1997)
17 ANSWER to first amended complaint [13-1] by defendants (dktclk) (Entered: 04/21/1997)
18 AFFIDAVIT OF SERVICE by defendants of answer [17-1] (dktclk) (Entered: 04/21/1997)
19 PRE-TRIAL SCHEDULING ORDER SETTING TRIAL DATE & RELATED DATES PURSUANT TO LR 16 by Judge Carolyn R. Dimmick ; Discovery cutoff 11/10/97, calendared by 10/31/97 Dispositive motion filing deadline 11/20/97, calendared by 12/12/97 Pretrial order to be submitted by 2/9/98 Trial set for 3/2/98 Trial briefs to be submitted by 39.1 designation cnsl to proceed to mediation pursuant to LR39.1 upon completion of discovery, i.e., 11/10/97 (cc: counsel, Judge) (KERR) (Entered: 05/05/1997)
20 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA of Francis Linder on 7/28/97 (KERR) (Entered: 08/01/1997)
21 MINUTE ORDER: by Judge Carolyn R. Dimmick Case reassigned to Judge Barbara J. Rothstein as a related action to C92-1596R. All future docs filed in this action must have the cause number changed to read C96-1985R (cc: counsel, CRD, BJR, LT, Intake) (KERR) (Entered: 08/01/1997)

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08/04/1997 08/05/1997 08/28/1997

22 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA of Karl Wickizer on 7/31/97 (KERR) (Entered: 08/04/1997)
23 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA of Steve Rawlings on 8/1/97 (KERR) (Entered: 08/05/1997)
24 MINUTE ORDER: by Judge Barbara J. Rothstein granting pltfs' motion to consolidate C96-1985R with C92-1596R. All future pleadings shall bear cause no C92-1596R (cc: counsel, Judge, ET) (RS) (Entered: 08/29/1997)

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 98 F.3d 447 (1996)
Sean G. DUFFY, Plaintiff-Appellant, v.
Chase RIVELAND, Secretary of Washington State Department of Corrections, James Spalding, Director, Kenneth Ducharme, Superintendent, John Ahlsted, Corrections Sergeant, Peggy Williams, Clerk/Typist, Jerry Sorenson, Corrections Officer, Frances
Linder, Corrections Officer, Defendants-Appellees. Sean G. DUFFY, Plaintiff-Appellant, v.
Craig YOST, Classification Counselor, William Woodly, Corrections Unit Supervisor, David Karton, Corrections Sergeant, Linda Willenberg, Corrections Program Manager, Kenneth
Ducharme, Superintendent, Defendants-Appellees.
Nos. 94-35191, 94-35444.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 10, 1995. Decided October 11, 1996.
4489 *448 *449 Leonard J. Feldman, Heller, Ehrman, White & McAuliffe, Seattle, WA, for plaintiff-appellant.
Marc P. Charmatz, National Association of the Deaf Law Center, Silver Spring, MD, of counsel for plaintiffappellant.
Daniel J. Judge and Douglas W. Carr, Assistant Attorneys General, Olympia, WA, for defendants-appellees.
Before WRIGHT, POOLE and WIGGINS, Circuit Judges.
POOLE, Circuit Judge:
I. OVERVIEW
Appellant Sean Duffy, a deaf Washington state prisoner, appeals two separate district court's grants of summary 450 judgment in favor of various state prison officials (collectively *450 "the Appellees") and the dismissal of his
actions brought under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("RA"); the Civil Rights Act, 42 U.S.C. § 1983 ("§ 1983"); and Revised Code of Washington Chapters 2.42.120(1), (2), and (4) ("RCW").
Duffy filed suits after the denial of his request for a certified interpreter for the deaf at a prison disciplinary proceeding and two separate classification hearings. His appeal regarding the claim arising out of the disciplinary hearing (94-35191) and his appeal regarding the claim arising out of the classification hearings (94-35444) have been consolidated in this action. We affirm in part, and reverse in part.
II. BACKGROUND
The facts of this case are relatively straightforward and undisputed. Sean Duffy is a hearing-impaired inmate at the Washington State Reformatory (WSR) in Monroe, Washington. He has been incarcerated since 1983. Although Duffy is hearing-impaired, he can read and write, and frequently communicates with others through an exchange of written notes. However, he communicates most effectively with the assistance of an interpreter.

A. The Disciplinary Hearing
On July 23, 1992, Duffy was charged by a corrections officer with indecent exposure under Washington Administrative Code § 137-28-030(507) and Revised Criminal Code of Washington Chapter 9A.88.010(1). WSR officials placed Duffy in the segregation unit following the incident. The next day, Officer Jerry Sorenson attempted to serve Duffy with a notice of the infraction and the upcoming disciplinary hearing, but he refused to accept it.
The disciplinary hearing was originally scheduled for July 24, 1992. However, because of the serious nature of the infraction, WSR officials continued the matter so that an interpreter could be secured for Duffy.
On July 28, 1992, Duffy again refused service of the infraction papers and notice of the hearing. That same day, WSR's Disciplinary Court Clerk Peggy Williams arranged for a meeting between Duffy and Frances Linder, a mental health counselor at a different state correctional facility, who apparently knows some sign language. Linder learned how to sign through experiences with her hearing-impaired parents. At all times relevant to these proceedings, Linder had no formal training in sign language, nor was she certified by the Registry of Interpreters for the Deaf (RID). However, Williams hoped that Linder would be able to assist them by serving Duffy with the notice of the hearing and the infraction.
Duffy was escorted from the segregation unit to meet with Williams and Linder. However, as soon as Duffy saw Linder, he refused to enter the office where she sat, went directly to Sorenson's office, and wrote, "I request an (sic) qualified interpreter for this hearing." Duffy testified in his deposition that he did not know the nature of the meeting on the 28th with Linder, and he apparently assumed that it was the actual hearing.
Linder had provided services as an interpreter in several previous hearings at WSR. She had even attended an earlier disciplinary hearing involving Duffy to serve as his interpreter. However, this hearing was related to a minor infraction and, according to Duffy, the charges were dismissed largely because of the documentary evidence that he was able to provide. Duffy also testified that based on his prior experience with Linder, however, his ability to communicate with her was "not one hundred percent."[1]
451 *451 After Duffy refused to meet with Linder on the 28th, Williams sought counsel from the State Attorney General's Office regarding Duffy's refusal to accept service. She was advised that under Washington law the hearing could be held in his absence if he refused to attend.
Williams then wrote Duffy a memorandum advising him that his hearing was scheduled for July 30, 1992, if he wished to attend. The memorandum also explicitly stated that the hearing would be conducted without an interpreter. Despite Duffy's earlier recalcitrance, Officer Christopher Gerstbrein finally completed service of all papers-including the disciplinary infraction report and Williams' memo-on the morning of July 29th. At that point, the following written exchange occurred between Gerstbrein and Duffy:
Gerstbrein: Do you want to attend your hearing?
Duffy: No. Without an (sic) qualified interpreter present, I refused (sic) to attend a hearing.
Gerstbrein: Is Francis (sic) Linder qualified?
Duffy: No. She's a correctional officer and she hasn't registered with the RID (Registry of Interpreter [sic] for the Deaf) so she's not an interpreter under the law.
* * * * * *
Gerstbrein: I'll talk to the hearing officer about this. Do you know anyone who is qualified?
Duffy shook his head no to Gerstbrein's final inquiry.[2]

On the morning of July 30th, Duffy attracted the attention of another corrections officer. He gestured for a pen and paper, then wrote, "What happened to the hearing at 9:00 a.m.?" Duffy also showed the officer the Hearing Notice/Appearance Waiver Form that Gerstbrein had served the previous day. After reading Duffy's note and the hearing notice, the officer responded in writing "Sometimes they run late. But I'll check on it." Sometime later, the officer returned and passed Duffy a note indicating that the WSR officials were still "looking for a signer."
The disciplinary hearing took place, however, in Duffy's absence on July 30, 1992, and he was found guilty of the infraction. Duffy was sentenced to 15 days in disciplinary segregation, with credit for the eight days already served.
Based on these events, Duffy filed a pro se civil action seeking declaratory and monetary relief under the ADA, RA, § 1983 and Washington State law. By order dated January 28, 1994, the district court granted summary judgment to the defendants on all Duffy's claims.[3] Duffy filed a timely notice of appeal on February 15, 1994.
B. The Classification Hearings
Classification hearings are held approximately every six months in Washington prisons by the Department of Corrections in order to discuss issues of programming with the inmates. Since his original incarceration, Duffy had attended these meetings and participated through written communications.
On September 25, 1992, Duffy was notified about an upcoming classification meeting, and again he requested a "qualified interpreter." Duffy's classification counselor offered the services of Frances Linder but, again, Duffy refused. The classification counselor did, however, offer to provide a certified interpreter at Duffy's eventual parole hearing.
Duffy subsequently refused to attend his classification hearing scheduled for October 28, 1992, as well as his next hearing, scheduled for March 3, 1993. Duffy was reviewed in absentia, and was denied "camp and prerelease placement."
452 *452 On May 4, 1994, Duffy filed his second pro se civil suit, again seeking declaratory and monetary relief, based on the denial of his request for an interpreter at his classification hearings. Again, the district court granted summary judgment to the defendants on all Duffy's claims by order dated April 19, 1994. Duffy filed his timely notice of appeal on April 28, 1994.
We have jurisdiction over both Duffy's timely appeals pursuant to 28 U.S.C. § 1291. On June 23, 1994, the two appeals were consolidated and pro bono counsel was appointed for Duffy.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994); Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir.1992). Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Jesinger, 24 F.3d at 1130.
Our task is to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.
IV. ANALYSIS

A. State Entity Defendants' Immunity From Suit on Duffy's ADA and RA Claims
In the action arising from the disciplinary hearing, the district court dismissed Duffy's ADA and RA claims against the WSR and the State of Washington Department of Corrections pursuant to 28 U.S.C. § 1915. The district court held that these "entities of the State are immune from suit .... under the Eleventh Amendment."
We conclude, however, that the district court erred as a matter of law. Congress may abrogate the states' constitutionally secured immunity from suit in federal court through unmistakably clear statutory language. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)(holding that action under earlier version of Rehabilitation Act was proscribed by Eleventh Amendment absent express Congressional intent to the contrary). In section 502 of the ADA, Congress expressly provided that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." See 42 U.S.C. § 12202 (1995). Similarly, Congress amended the RA in 1986 following Atascadero to abrogate the states' immunity under the Eleventh Amendment.[4]See 42 U.S.C. § 2000d-7(a)(1)(1986).
Thus, the district court erred in dismissing Duffy's ADA and RA claims against the Washington State entities that arose from the disciplinary hearing.
B. Duffy's Standing and Ripeness of His Claims for Review
Appellees argue that Duffy's ADA and RA claims are not ripe for judicial review because Duffy did not attend the disciplinary and classification hearings that are the subjects of his complaints. As such, they argue, Duffy's complaints require this Court to engage in a speculative inquiry of whether his rights under the ADA and RA would have been violated had he attended the hearings.
The Appellees' argument, however, reflects a rather strained interpretation of the ripeness doctrine, and a misconstruction of Duffy's claims. We have previously held that challenges to a governmental agency's actions 453 are ripe for review if the issues presented are purely legal, and the challenged *453 action is final. See Municipality of Anchorage v. United States, 980 F.2d 1320, 1323 (9th Cir.1992)(citing Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 789 (9th Cir.1986)).
Here, Duffy's claims present the purely legal issue of the meaning of "qualified interpreter" under the ADA and RA. Further, the finality of the WSR's decision not to provide an interpreter for the disciplinary hearing was unequivocally expressed in Williams' memo of July 28th. Duffy also asserts that the Appellees repeatedly and unlawfully refused to provide an interpreter for the classification hearings other than Linder, who he contends is not qualified within the meaning of the Acts. Thus, the "administrative decision has been formalized and its effects felt in a concrete way by the challenging part[y]." See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). As such, Duffy's claims are ripe for judicial review.
The district court reviewing the claims arising out of the classification hearings noted that Duffy's complaint alleged no damage or prejudice from the lack of an interpreter. Although not explicitly couched in terms of standing, the district court rejected Duffy's RA and ADA claims as meritless because he did not attend the meetings. As such, the court reasoned that Duffy was neither precluded from participation in the meetings, nor discriminated against at the meetings because of his handicap.
We have the independent obligation to consider Duffy's standing because it goes to this Court's jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Greater Los Angeles Council on Deafness v. Baldrige, 827 F.2d 1353, 1358 (9th Cir.1987). The Supreme Court has established a three-part test for Article III standing. First, "plaintiff must have suffered an `injury in fact' 0907 an invasion of a legally-protected interest which is (a) concrete and particularized .... and (b) `actual or imminent, not `conjectural' or `hypothetical.'" Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (citations omitted). The second and third

elements of the test are causation and redressability. Id.; see also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982) (Article III requires the party to show some actual or threatened injury by defendant's putatively illegal conduct that is traceable to that conduct, and is likely to be redressed by a favorable decision). "The actual or threatened injury required by Article III may exist solely by virtue of a statute that creates legal rights, the invasion of which creates standing." Greater Los Angeles Council on Deafness, 827 F.2d at 1358.
Here, the ADA and RA clearly create the legal rights that Duffy alleges were invaded by the WSR. The WSR's putatively illegal conduct occurred upon their refusal to provide Duffy with an interpreter who, he alleges, satisfied the ADA, RA and Washington State law. "When the suit is one challenging the legality of government action or inaction, .... standing depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Lujan, 504 U.S. at 561-62, 112 S.Ct. at 2137.
Because Duffy was the object of the WSR's actions, his attendance at the meetings is immaterial to our inquiry of whether the challenged governmental decisions invaded his statutorily created legal rights.[5] Duffy has alleged actual harm from a decision already executed as to him 0907 the WSR's decision not to provide a qualified interpreter. Thus, Duffy has standing to pursue his ADA and RA claims.
C. Duffy's Rehabilitation Act Claim

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides in pertinent part:

454

*454 No otherwise qualified individual with a disability in the United States ... shall, solely by

reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity receiving Federal financial

assistance.

29 U.S.C. § 794.

In order to prove an RA violation, Duffy must demonstrate that: (1) "he is a handicapped person under [the Act]; (2) that he is otherwise qualified; (3) that the relevant program receives [federal] financial assistance; and (4) that the defendants' refusal to provide qualified interpreter services impermissibly discriminates against him on the basis of his physical handicaps." See Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir.1988).[6]

Duffy is indeed hearing-impaired, and thus is a handicapped person for RA purposes. He is also "qualified" within the meaning of the RA. See Bonner, 857 F.2d at 563 (prison inmates are qualified to participate in disciplinary proceedings and other prison activities). Regarding the third element, neither district court conclusively resolved the factual question of whether the Appellees receive some level of federal funding. See id. ("Whether the prison or its programs receive federal financial assistance is a question of fact to be resolved in the district court."). However, Appellees apparently do not dispute on appeal that Duffy satisfies the first three threshold elements of his RA claim.

The primary issue is the fourth Bonner element. In Bonner, the prison officials claimed that their refusal to provide a "qualified interpreter" was not impermissible discrimination under the RA because adequate communication could be accomplished with the use of a telecommunication device and unskilled "inmate interpreters." See 857 F.2d at 563. Similarly, Appellees here contend that Duffy can easily and clearly read and write English. As such, they assert, Duffy's ability to communicate would be neither "extremely difficult" nor inadequate under Bonner. Duffy, however, claims that "the service of a qualified interpreter .... would be more benefits (sic) and less hostile environment for all of us."

Regarding Williams' memo unequivocally stating that the disciplinary hearing would be conducted without an
interpreter, the question remains under the RA and Bonner whether this decision constituted discrimination on the basis of Duffy's handicap.[7] Once Duffy made his handwritten request via Gerstbrein for an interpreter other than

Linder, the record is silent regarding what action, if any, was taken by the hearing officer prior to conducting the hearing the following day. Appellees now assert on appeal that they were prepared to conduct the hearing with Linder's services. However, Linder stated in her affidavit that after her attempt to serve Duffy on the 28th, she "had no further involvement with any of the incidents alleged in his complaint."
Appellees also contend that Duffy voluntarily chose not to attend the hearing. However, Duffy asserts that just prior to the meeting time, he inquired about its status and was told that a signer was still being sought. In addition, Duffy did not indicate on the Hearing Notice/Appearance Waiver form that he affirmatively waived his right to attend.
Further, as we discuss more fully in the next section, Duffy has raised a question of fact regarding Linder's qualifications as an interpreter, and his ability to communicate with her effectively and adequately. The existence 455 of these genuine issues of material facts preclude summary judgment in favor of *455 the Appellees on Duffy's RA claims. See Bonner, 857 F.2d at 564.
Appellees also argue that our recent decision Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994) constrains the claims that may be brought under the RA. Gates endorses the use of the standard outlined by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), when analyzing the RA's application in a prison setting. Gates, 39 F.3d at 1447; see also Turner, 482 U.S. at 89, 107 S.Ct. at 2261 ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."). Appellees argue that there were legitimate penological reasons, such as the expense of finding certified interpreters, that would justify their refusal to honor Duffy's request.
However, Appellees raise this argument for the first time on appeal; thus, the issue of whether Gates may potentially immunize the WSR officials' conduct based on their asserted legitimate penological reasons cannot be considered without a fuller development of the record.
D. Duffy's ADA Claims
The Americans with Disabilities Act states in pertinent part:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
This circuit has yet to set forth the elements of an ADA claim. However, as Duffy persuasively argues, the purpose and effect of the ADA is to extend the anti-discrimination policy of the RA to "all services, programs, and activities provided or made available by [public entities], regardless of the receipt of Federal financial assistance." See 28 C.F.R.App. A § 35.102 (1995). Thus, the close relationship between the RA and the ADA offers guidance for analyzing an ADA claim.
We therefore adopt the relevant factors established by this circuit in analyzing an RA claim to Duffy's ADA claim. As such, Duffy must demonstrate that he (1) is a handicapped person; (2) that he is otherwise qualified; and that the Appellees' actions either (3) excluded his participation in or denied him the benefits of a service, program, or activity; or (4) otherwise subjected him to discrimination on the basis of his physical handicap.
As discussed, Duffy satisfies the first two elements of his ADA claim. Regarding the third element, one district court questioned whether the hearings at issue were "services, programs, or activities" for purposes of the ADA. However, Bonner instructs that such hearings may be considered "programs" within the definition of the RA and hence the ADA. Bonner, 857 F.2d at 563.
Regarding the fourth element, Duffy's principal argument is that the Appellees were implicitly required under the ADA to honor his requests for a RID-certified interpreter at his hearings. Without such an interpreter, Duffy

argues, he was discriminated against due to his disability because he would be unable to communicate effectively.
Duffy's argument regarding the certification requirement of a "qualified interpreter" is based largely on 28 C.F.R. Part 35 App. A, Subpart E, § 35.160, which focuses on the complexity and importance of the proceedings, and 28 C.F.R. § 35.160(b)(2), which requires public entities to "give primary consideration to the requests of the individual with disabilities" in determining "what type of auxiliary aid and service is necessary."
Duffy alleges that the requirement that an interpreter be certified is implicit in the ADA's definition of a "qualified interpreter." See 28 C.F.R. § 35.104 ("Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary."). He cites several district court decisions from other circuits as support for this proposition. See, e.g., 456 Clarkson v. Coughlin, 145 F.R.D. 339, *456 341 (S.D.N.Y.1993)("A qualified sign language interpreter is one who has obtained certification from the National Registry of Interpreters for the Deaf...."); DeLong v. Brumbaugh, 703 F.Supp. 399, 403 (W.D.Pa.1989)("[q]ualified interpreters are available from the Registry of Interpreters for the Deaf, Inc.,...."); Pyles v. Kamka, 491 F.Supp. 204, 205 (D.Md.1980)(approving consent decree in which prison officials agreed that "an interpreter shall be deemed qualified if he/she is certified by the National Registry of Interpreters for the Deaf").
However, we cannot agree that, as a matter of law, the ADA regulations require an interpreter to be certified by the RID. The appendix of the DOJ's implementing regulations contains the extensive discussion of the definition of "qualified interpreter" that Duffy cites. The DOJ recognized the concerns of many commentators that, absent a clear definition of the phrase, "qualified interpreter" would be interpreted to mean any "available interpreter."
The definition promulgated by the DOJ "focuses on the actual ability of the interpreter in a particular interpreting context to facilitate effective communication between the public entity and the individual with disabilities." 28 C.F.R. Part 35, App. A. However, the DOJ did not go so far as to suggest that the definition of "qualified interpreter" requires formal certification. That restraint is evident in the statement that the definition "does not invalidate or limit standards ... of any State or local law that are equal to or more stringent ... [nor] supersede any requirement of State law for use of a certified interpreter in court proceedings." Id.
However, based on the definition of qualified interpreter under the ADA, we conclude that Duffy has raised a significant factual issue as to whether Linder is a qualified interpreter. In addition to his earlier complaint to Appellee Riveland, Duffy maintained in his deposition that Linder "signed in a different way and not related to my signs and some of her signs I did not understand." Duffy also stated that Linder also "interrupted" and "would removed (sic) herself from the role of interpreter."
It is undisputed that Linder had no formal training in sign language and is not a professional interpreter. Instead, she is a correctional mental health counselor, employed by the Washington State Department of Corrections, who learned how to sign through her relationship with her parents. These facts give rise to issues regarding the accuracy of her signing and her ability to be impartial-both of which are material to the definition of "qualified interpreter" as provided in the ADA regulations.
Appellees argue that the ADA regulations are "flexible" and permit the use of written communications between deaf inmates and prison officials in proceedings of this nature instead of a qualified interpreter. Appellees rely on the same discussion of the requirements for qualified interpreters contained in Appendix Part 35, specifically the comments that:
Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.
Appellees argue further that the disciplinary proceeding, in particular, was not a complicated matter. However, at the very least, this presents another factual issue that is more properly resolved in the district court.

We therefore reverse both district courts' grants of summary judgment for the Appellees on Duffy's ADA claims, so that these issues may be properly addressed by a fact-finder.
E. Duffy's Section 1983 Claim
In order to state a claim under section 1983, Duffy must show that the Appellees acted under color of law, and 457 that their conduct deprived him of a constitutional right. Constitutionally protected liberty interests *457 can arise
under either state law or the Due Process clause. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987).
There is no dispute that the WSR officials acted under color of law. However, in Duffy's action regarding the classification hearings, the district court rejected Duffy's § 1983 claim based on the Washington Supreme Court's holding that Washington prisoners do not have a liberty interest protected by the Fourteenth Amendment in their classification status. See In re Dowell, 100 Wash.2d 770, 674 P.2d 666, 668 (1984) (en banc); accord Hernandez, 833 F.2d at 1318. Thus, the district court properly granted summary judgment to the Appellees on Duffy's § 1983 claim regarding the classification hearings.
Duffy also maintains that the state's use of explicitly mandatory language in its regulations governing prison disciplinary hearings 0907 in connection with the substantive predicates that govern official decision making 0907 compels a conclusion that the State has created a liberty interest in remaining free from disciplinary segregation. See, e.g., Wash.Admin.Code 137-28-025 & -030 (listing the types of behaviors that shall constitute either a "general" or "serious" infraction).
However, the test for the existence of state-created liberty interests relied upon by Duffy has been abandoned by the Supreme Court. See Sandin v. Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Gotcher v. Wood, 66 F.3d 1097, 1100 (9th Cir.1995). In Sandin, the Supreme Court instructed that liberty interests protected by the Due Process clause
will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force [citations omitted], nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Id. at ___, 115 S.Ct. at 2300.
The Supreme Court concluded in Sandin that the conditions in Hawaii's disciplinary segregation facilities "with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody" and, thus, did not "work a major disruption in [Conner's] environment." Id. at ___, 115 S.Ct. at 2301. As such, the Court held that no constitutionally protected liberty interest had been created.
We cannot, however, make such a determination on the limited record before us. We therefore remand Duffy's section 1983 claim regarding his disciplinary proceeding for consideration in light of Sandin. See also Gotcher, 66 F.3d at 1101 (finding that the record on appeal was insufficient for a determination of whether the disciplinary segregation imposed an "atypical and significant hardship" on inmate). If the district court determines that Duffy possessed a liberty interest in remaining free from disciplinary segregation, it must then determine whether Duffy was given all process due under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).[8]See Sandin, ___ U.S. at ___, 115 S.Ct. at 2300 (noting that such due process principles were correctly established and applied in Wolff).
F. Duffy's Washington State Law Claim
Duffy's final claim in both civil actions was that the defendants failed to appoint a certified interpreter as required by RCW 2.42.120. The statute provides in relevant part:

If a hearing impaired person is a party or witness at any stage of a judicial or quasi-judicial

proceeding in the state or in a political subdivision, including but not limited to civil and criminal

458

court proceedings ... and any proceeding in which a hearing impaired person may be subject to

*458 confinement or criminal sanction, the appointing authority shall appoint and pay for a

qualified interpreter to interpret the proceedings.

Rev.Code Wash. 2.42.120(1) (emphasis added). The Washington Code also includes in its definition of a "qualified interpreter" someone "certified by the state." Id. at 2.42.110(2). Even a certified interpreter may be rejected if the hearing impaired individual is not satisfied that the interpreter is able to provide "accurate, impartial, and effective communication with the hearing impaired person." Id. at 2.42.130(2).

The district court that ruled on Duffy's classification hearing claims held that such hearings were not judicial or quasi-judicial proceedings, and therefore did not trigger the requirements set forth in the statute. Appellees rely on a number of state court decisions in support of their contention that neither the classification hearings nor the disciplinary hearing were "quasi-judicial" in nature. See Yaw v. Walla Walla Sch. Dist., 106 Wash.2d 408, 722 P.2d 803 (1986); Malgarini v. Washington Jockey Club, 60 Wash. App. 823, 807 P.2d 901 (1991).

The Washington Supreme Court listed four steps to determine if an agency's action is administrative or quasijudicial, requiring an inquiry of whether: (1) the court could have been charged in the first instance with the responsibility of making the decision; (2) the function of the agency is one that courts have historically performed; (3) the agency performs functions of inquiry [and] investigation ...; and (4) the agency's action is comparable to the ordinary business of courts. Yaw, 722 P.2d at 807 (citing Francisco v. Board of Directors, 85 Wash.2d 575, 537 P.2d 789, 793 (1975)).

Under this test, we conclude that the district court correctly found that the classification hearings were neither judicial nor quasi-judicial in nature. However, applying the Washington Supreme Court's test to the WSR's disciplinary hearing, we conclude that this proceeding was quasi-judicial in nature. Duffy was charged with violating a Washington state criminal statute prohibiting indecent exposure 0907 a misdemeanor offense. Thus, the hearing officer's determination of his liability under the statute was comparable to the ordinary business of courts, and certainly a function that courts have historically performed. Further, the disciplinary hearing officer performed the functions of inquiry and investigation required under the Yaw test. Accord Cleavinger v. Saxner, 474 U.S. 193, 203, 106 S.Ct. 496, 501-02, 88 L.Ed.2d 507 (1985)(finding that although no justification existed to provide absolute immunity for members' official acts, prison disciplinary committees "do perform an adjudicatory function in that they determine whether the accused inmate is guilty or innocent of the charge leveled against him").

Appellees rely on the Washington Supreme Court decision In re Reismiller, 101 Wash.2d 291, 678 P.2d 323 (1984), to support their contention that Duffy's charges arising from his disciplinary hearing are nonreviewable matters of internal prison discipline. Id. 678 P.2d at 325-26 (applying an arbitrary and capricious standard of review to inmate's "personal restraint" petition challenging the findings of his prison disciplinary proceeding). However, Reismiller is distinguishable because Duffy neither challenges nor seeks review of the ultimate outcome of his disciplinary hearing.

Rather, Duffy makes the distinct allegation that WSR officials violated Washington law by failing to provide a certified interpreter in a "quasi-judicial" proceeding. As such, we hold that the provisions of RCW 2.42.120 were applicable. Thus, the district court erred in dismissing Duffy's state law claim regarding the disciplinary hearing.

Appellees also argue that RCW 2.42 does not create a right of action because the statute is silent regarding a remedy for its violation. The Washington Supreme Court rejected a similar argument in Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990), and implied a cause of action for age discrimination under a state statute 459 defining "unfair employment practices."[9]Id. 784 *459 P.2d at 1261. Applying Bennett, Duffy clearly falls within the class of hearing impaired persons for whose benefit the statute was enacted. Secondly, like the Washington Supreme Court, we may assume that "the legislature would not enact a statute granting rights to an identifiable class without enabling members of that class to enforce those rights." Id. Lastly, because the statute contains a clear mandate that qualified interpreters be appointed that satisfy the hearing impaired individual's communication needs, implying a right of action is consistent with the legislative purpose.

V. CONCLUSIONS
We reverse the district court's dismissal of Duffy's ADA and RA claims against the WSR and Department of Corrections on the ground of Eleventh Amendment immunity. Because Duffy has raised genuine issues of material fact as to Linder's qualifications, and his ability to communicate effectively with her, we reverse both district courts' grants of summary judgment to Appellees on Duffy's ADA and RA claims, and remand for further proceedings.
We affirm the grant of summary judgment to the Appellees on Duffy's § 1983 claims stemming from his classification hearings. However, we reverse and remand for consideration of Duffy's § 1983 claim regarding his disciplinary proceeding in light of Sandin v. Conner. Finally, we reverse the dismissal of Duffy's Washington state law claims regarding his disciplinary hearing.
AFFIRMED IN PART, REVERSED IN PART and REMANDED. The parties shall bear their own costs on appeal.
[1] After one of Duffy's 1991 encounters with Linder, he wrote a letter to Appellee Riveland regarding his communication difficulties with her: "The problem is: there is no qualified interpreter present in this disciplinary proceeding at all! I did indicate that I want an (sic) qualified interpreter to be in this hearing, but I was disregard (sic).... The [Twin Rivers Correctional Center] officials did use a correctional officer as an interpreter, but she's not fluently (sic) in sign languages nor met the requirement to became (sic) an qualified interpreter. So there was a problem with the communication in the disciplinary proceeding and I became uncooperative with these officers."
[2] Officer Gerstbrein stated in his affidavit that he returned a copy of his written exchange with Duffy to Ms. Williams in the disciplinary hearing office. However, the record is silent regarding what, if any, inquiry was made by WSR officials to determine Duffy's ability to communicate effectively with Linder.
[3] The district court had previously dismissed defendants WSR and the Washington State Department of Corrections from Duffy's action based on their asserted immunity from suit under the Eleventh Amendment.
[4] We also note that "[t]he only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess. ...." Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985). Thus, Congress's abrogation of the states' Eleventh Amendment immunity from suit under the ADA and RA similarly precludes assertion of immunity by state officials sued in their official capacity. See Pena v. Gardner, 976 F.2d 469, 473 (9th Cir.1992)("An official sued in his official capacity has the same immunity as the state ...").
[5] Further, as to the July disciplinary hearing, it is not clear that Duffy affirmatively waived his right to attend. Just prior to the scheduled hearing time, Duffy inquired about its status and was told that an interpreter was still being sought. Thus, we cannot determine on the current record whether Duffy realized that the hearing was in fact proceeding in his absence.
[6] As we noted in Bonner, the implementing regulations promulgated by the Department of Justice ("DOJ") under section 504 of the RA require correctional facilities to ".... provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual or speaking skills where refusal to make such provision would discriminatorily impair or exclude the participation of such persons.... Such auxiliary aids may include brailled and taped materials, qualified interpreters, readers and telephonic devices." 28 C.F.R. § 42.503(f) (1995) (emphasis added).
[7] The WSR's decision in this regard is particularly curious in light of the fact that the hearing had previously been continued based on the "serious nature" of the infraction, and their belief that interpreter services should be secured.
[8] To the extent that Duffy asserts his § 1983 claims against the various prison officials as "personal capacity" suits, because it was not addressed below, we do not reach the Appellees' argument that they are entitled to qualified immunity. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991)("... officials

sued in their personal capacities ... may assert personal immunity defenses such as objectively reasonable reliance on existing law."); Gardner, 976 F.2d at 473. Rather, we also remand this issue to the district court for consideration, as appropriate, once it completes its analysis of Duffy's claims under Sandin.
[9] The Washington Supreme Court adopted a three-part test employed in the federal courts requiring an inquiry into whether: 1) plaintiff is within the class for whose benefit the statute was enacted; 2) legislative intent, explicitly or implicitly supports creating or denying a remedy; and 3) implying a remedy is consistent with the underlying purpose of the legislation. Bennett, 784 P.2d at 1261-62 (citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).
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 88 F.3d 1537 (1996)
Sean G. DUFFY, Plaintiff-Appellant, v.
Chase RIVELAND, Secretary of Washington State Department of Corrections, James Spalding, Director, Kenneth Ducharme, Superintendent, John Ahlsted, Corrections Sergeant, Peggy Williams, Clerk/Typist, Jerry Sorenson, Corrections Officer, Francis
Linder, Corrections Officer, Defendants-Appellees. Sean G. DUFFY, Plaintiff-Appellant, v.
Craig YOST, Classification Counselor, William Woodly, Corrections Unit Supervisor, David Karton, Corrections Sergeant, Linda Willenberg, Corrections Program Manager, Kenneth
Ducharme, Superintendent, Defendants-Appellees.
Nos. 94-35191, 94-35444.
United States Court of Appeals, Ninth Circuit.
Decided September 13, 1996.
Before: WRIGHT, POOLE and WIGGINS, Circuit Judges.
ORDER
The opinion filed on July 3, 1996, 88 F.3d 1525, is withdrawn.
SO ORDERED.
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 Duffy v. Riveland, 88 F.3d 1525 (1996)
88 F.3d 1525 Withdrawn for N.R.S. bound volume
United States Court of Appeals, Ninth Circuit.
Sean G. DUFFY, Plaintiff-Appellant, v.
Chase RIVELAND, Secretary of Washington State Department of Corrections, James Spalding, Director, Kenneth Ducharme, Superintendent, John Ahlsted, Corrections Sergeant, Peggy Williams, Clerk/Typist, Jerry
Sorenson, Corrections Officer, Francis Linder, Corrections Officer, Defendants-Appellees. Sean G. DUFFY, Plaintiff-Appellant, v.
Craig YOST, Classification Counselor, William Woodly, Corrections Unit Supervisor, David Karton, Corrections Sergeant, Linda Willenberg, Corrections Program Manager, Kenneth Ducharme, Superintendent, Defendants-Appellees.
Nos. 94-35191, 94-35444. | Argued and Submitted April 10, 1995. | Decided July 3, 1996.
Editor’s Note: The opinion of the United States Court of Appeals, Ninth Circuit, in Duffy v. Riveland, published in the advance sheet at this citation, 88 F.3d 1525, was withdrawn from the bound volume because it was ordered withdrawn by the Court September 13, 1996. For Superseding Opinion, see 1996 WL 583384
Attorneys and Law Firms
*1528 Leonard J. Feldman, Heller, Ehrman, White & McAuliffe, Seattle, Washington for the plaintiff-appellant.
Daniel J. Judge and Douglas W. Carr, Assistant Attorneys General, Office of the Attorney General-Corrections Division, Olympia, Washington for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; Barbara Rothstein, District Judge, Presiding, D.C. No. CV-92-01596-BJR. Appeal from the United States District Court for the Western District of Washington; John Coughenour, District Judge, Presiding, D.C. No. CV-93-00637-JCC.
Before: WRIGHT, POOLE and WIGGINS, Circuit Judges.
Opinion
POOLE, Circuit Judge:
I. OVERVIEW
Appellant Sean Duffy, a deaf Washington state prisoner, appeals two separate district courts’ grants of summary judgment in favor of various state prison officials (collectively “the Appellees”) and the dismissal of his actions brought under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (“ADA”); the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“RA”); the Civil Rights Act, 42 U.S.C. § 1983 (“ § 1983”); and Revised Code of Washington Chapters 2.42.120(1), (2), and (4) (“RCW”).
Duffy filed suits after the denial of his request for a certified interpreter for the deaf at a prison disciplinary proceeding and two separate classification hearings. His appeal regarding the claim arising out of the disciplinary hearing (94-35191) and his appeal regarding the claim arising out of the classification hearings (94-35444) have been consolidated in this action. We affirm in part, and reverse in part.
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II. BACKGROUND
The facts of this case are relatively straightforward and undisputed. Sean Duffy is a hearing-impaired inmate at the Washington State Reformatory (WSR) in Monroe, Washington. He has been incarcerated since 1983. Although Duffy is hearing impaired, he can read and write, and frequently communicates with others through an exchange of written notes. However, he communicates *1529 most effectively with the assistance of an interpreter.
A. The Disciplinary Hearing On July 23, 1992, Duffy was charged by a corrections officer with indecent exposure under Washington Administrative Code § 137-28-030(507) and Revised Criminal Code of Washington Chapter 9A.88.010(1). WSR officials placed Duffy in the segregation unit following the incident. The next day, Officer Jerry Sorenson attempted to serve Duffy with a notice of the infraction and the upcoming disciplinary hearing, but he refused to accept it.
The disciplinary hearing was originally scheduled for July 24, 1992. However, because of the serious nature of the infraction, WSR officials continued the matter so that an interpreter could be secured for Duffy.
On July 28, 1992, Duffy again refused service of the infraction papers and notice of the hearing. That same day, WSR’s Disciplinary Court Clerk Peggy Williams arranged for a meeting between Duffy and Frances Linder, a mental health counselor at a different state correctional facility, who apparently knows some sign language. Linder learned how to sign through experiences with her hearing impaired parents. At all times relevant to these proceedings, Linder had no formal training in sign language, nor was she certified by the Registry of Interpreters for the Deaf (RID). However, Williams hoped that Linder would be able to assist them by serving Duffy with the notice of the hearing and the infraction.
Duffy was escorted from the segregation unit to meet with Williams and Linder. However, as soon as Duffy saw Linder, he refused to enter the office where she sat, went directly to Sorenson’s office, and wrote, “I request an (sic) qualified interpreter for this hearing.” Duffy testified in his deposition that he did not know the nature of the meeting on the 28th with Linder, and he apparently assumed that it was the actual hearing.
Linder had provided services as an interpreter in several previous hearings at WSR. She had even attended an earlier disciplinary hearing involving Duffy to serve as his interpreter. However, this hearing was related to a minor infraction and, according to Duffy, the charges were dismissed largely because of the documentary evidence that he was able to provide. Duffy also testified that based on his prior experience with Linder, however, his ability to communicate with her was “not one hundred percent.”1
After Duffy refused to meet with Linder on the 28th, Williams sought counsel from the State Attorney General’s Office regarding Duffy’s refusal to accept service. She was advised that under Washington law the hearing could be held in his absence if he refused to attend.
Williams then wrote Duffy a memorandum advising him that his hearing was scheduled for July 30, 1992, if he wished to attend. The memorandum also explicitly stated that the hearing would be conducted without an interpreter. Despite Duffy’s earlier recalcitrance, Officer Christopher Gerstbrein finally completed service of all papers-including the disciplinary infraction report and Williams’ memo-on the morning of July 29th. At that point, the following written exchange occurred between Gerstbrein and Duffy: Gerstbrein: Do you want to attend your hearing?
Duffy: No. Without an (sic) qualified interpreter present, I refused (sic) to attend a hearing.
Gerstbrein: Is Francis (sic) Linder qualified?
Duffy: No. She’s a correctional officer and she hasn’t registered with the RID (Registry of Interpreter [sic] for the *1530 Deaf) so she’s not an interpreter under the law.
* * * * * * Gerstbrein: I’ll talk to the hearing officer about this. Do you know anyone who is qualified?
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Duffy shook his head no to Gerstbrein’s final inquiry.2
On the morning of July 30th, Duffy attracted the attention of another corrections officer. He gestured for a pen and paper, then wrote, “What happened to the hearing at 9:00 a.m.?” Duffy also showed the officer the Hearing Notice/Appearance Waiver Form that Gerstbrein had served the previous day. After reading Duffy’s note and the hearing notice, the officer responded in writing “Sometimes they run late. But I’ll check on it.” Sometime later, the officer returned and passed Duffy a note indicating that the WSR officials were still “looking for a signer.”
The disciplinary hearing took place, however, in Duffy’s absence on July 30, 1992, and he was found guilty of the infraction. Duffy was sentenced to 15 days in disciplinary segregation, with credit for the eight days already served.
Based on these events, Duffy filed a pro se civil action seeking declaratory and monetary relief under the ADA, RA, § 1983 and Washington state law. By order dated January 28, 1994, the district court granted summary judgment to the defendants on all Duffy’s claims.3 Duffy filed a timely notice of appeal on February 15, 1994.
B. The Classification Hearings Classification hearings are held approximately every six months in Washington prisons by the Department of Corrections in order to discuss issues of programming with the inmates. Since his original incarceration, Duffy had attended these meetings and participated through written communications.
On September 25, 1992, Duffy was notified about an upcoming classification meeting, and again he requested a “qualified interpreter.” Duffy’s classification counselor offered the services of Frances Linder but, again, Duffy refused. The classification counselor did, however, offer to provide a certified interpreter at Duffy’s eventual parole hearing.
Duffy subsequently refused to attend his classification hearing scheduled for October 28, 1992, as well as his next hearing, scheduled for March 3, 1993. Duffy was reviewed in absentia, and was denied “camp and pre-release placement.”
On May 4, 1994, Duffy filed his second pro se civil suit, again seeking declaratory and monetary relief, based on the denial of his request for an interpreter at his classification hearings. Again, the district court granted summary judgment to the defendants on all Duffy’s claims by order dated April 19, 1994. Duffy filed his timely notice of appeal on April 28, 1994.
We have jurisdiction over both Duffy’s timely appeals pursuant to 28 U.S.C. § 1291. On June 23, 1994, the two appeals were consolidated and pro bono counsel was appointed for Duffy.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994); Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir.1992). Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Jesinger, 24 F.3d at 1130.
Our task is to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the *1531 district court correctly applied the relevant substantive law. Id.
IV. ANALYSIS
A. State Entity Defendants’ Immunity From Suit on Duffy’s ADA and RA Claims In the action arising from the disciplinary hearing, the district court dismissed Duffy’s ADA and RA claims against the WSR and the State of Washington Department of Corrections pursuant to 28 U.S.C. § 1915. The district court held that these “entities of the State are immune from suit .... under the Eleventh Amendment.”
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We conclude, however, that the district court erred as a matter of law. Congress may abrogate the states’ constitutionally secured immunity from suit in federal court through unmistakably clear statutory language. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)(holding that action under earlier version of Rehabilitation Act was proscribed by Eleventh Amendment absent express Congressional intent to the contrary). In section 502 of the ADA, Congress expressly provided that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” See 42 U.S.C. § 12202 (1995). Similarly, Congress amended the RA in 1986 following Atascadero to abrogate the states’ immunity under the Eleventh Amendment. See 42 U.S.C. § 2000d-7(a)(1)(1986).
Thus, the district court erred in dismissing Duffy’s ADA and RA claims against the Washington state entities that arose from the disciplinary hearing.
B. Duffy’s Standing and Ripeness of His Claims for Review Appellees argue that Duffy’s ADA and RA claims are not ripe for judicial review because Duffy did not attend the disciplinary and classification hearings that are the subjects of his complaints. As such, they argue, Duffy’s complaints require this Court to engage in a speculative inquiry of whether his rights under the ADA and RA would have been violated had he attended the hearings.
The Appellees’ argument, however, reflects a rather strained interpretation of the ripeness doctrine, and a misconstruction of Duffy’s claims. We have previously held that challenges to a governmental agency’s actions are ripe for review if the issues presented are purely legal, and the challenged action is final. See Municipality of Anchorage v. United States, 980 F.2d 1320, 1323 (9th Cir.1992)(citing Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986)).
Here, Duffy’s claims present the purely legal issue of the meaning of “qualified interpreter” under the ADA and RA. Further, the finality of the WSR’s decision not to provide an interpreter for the disciplinary hearing was unequivocally expressed in Williams’ memo of July 28th. Duffy also asserts that the Appellees repeatedly and unlawfully refused to provide an interpreter for the classification hearings other than Linder, whom he contends is not qualified within the meaning of the Acts. Thus, the “administrative decision has been formalized and its effect felt in a concrete way by the challenging part[y].” See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). As such, Duffy’s claims are ripe for judicial review.
The district court reviewing the claims arising out of the classification hearings noted that Duffy’s complaint alleged no damage or prejudice from the lack of an interpreter. Although not explicitly couched in terms of standing, the district court rejected Duffy’s RA and ADA claims as meritless because he did not attend the meetings. As such, the court reasoned that Duffy was neither precluded from participation in the meetings, nor discriminated against at the meetings because of his handicap.
We have the independent obligation to consider Duffy’s standing because it goes to this Court’s jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); *1532 Greater Los Angeles Council on Deafness v. Baldrige, 827 F.2d 1353, 1358 (9th Cir.1987). The Supreme Court has established a three-part test for Article III standing. First, “plaintiff must have suffered an ‘injury in fact’-an invasion of a legally-protected interest which is (a) concrete and particularized .... and (b) ‘actual or imminent’, not ‘conjectural’ or ‘hypothetical.’ ” Lujan, 504 U.S. at 559-61, 112 S.Ct. at 2136 (citations omitted). The second and third elements of the test are causation and redressability. Id.; see also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982)(Article III requires the party to show some actual or threatened injury by defendant’s putatively illegal conduct that is traceable to that conduct, and is likely to be redressed by a favorable decision). “The actual or threatened injury required by Article III may exist solely by virtue of a statute that creates legal rights, the invasion of which creates standing.” Greater Los Angeles Council on Deafness, 827 F.2d at 1358.
Here, the ADA and RA clearly create the legal rights that Duffy alleges were invaded by the WSR. The WSR’s putatively illegal conduct occurred upon their refusal to provide Duffy with an interpreter that, he alleges, satisfied the ADA, RA and Washington state law. “When the suit is one challenging the legality of government action or inaction, .... standing depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan, 504 U.S. at 561-63, 112 S.Ct. at 2137.
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Because Duffy was the object of the WSR’s actions, his attendance at the meetings is immaterial to our inquiry of whether the challenged governmental decisions invaded his statutorily created legal rights.4 Duffy has alleged actual harm from a decision already executed as to him-the WSR’s decision not to provide a certified interpreter. Thus, Duffy has standing to pursue his ADA and RA claims.
C. Duffy’s Rehabilitation Act Claim Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides in pertinent part:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C. § 794.
In order to prove an RA violation, Duffy must demonstrate that: (1) “he is a handicapped person under [the Act]; (2) that he is otherwise qualified; (3) that the relevant program receives [federal] financial assistance; and (4) that the defendants’ refusal to provide qualified interpreter services impermissibly discriminates against him on the basis of his physical handicaps.” See Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir.1988).5
Duffy is indeed hearing impaired, and thus is a handicapped person for RA purposes. He is also “qualified” within the meaning of the RA. See Bonner, 857 F.2d at 563 (prison inmates are qualified to participate in disciplinary proceedings and other prison activities). Regarding the third element, neither district court conclusively resolved *1533 the factual question of whether the Appellees receive some level of federal funding. See id. (“Whether the prison or its programs receive federal financial assistance is a question of fact to be resolved in the district court.”). However, Appellees apparently do not dispute on appeal that Duffy satisfies the first three threshold elements of his RA claim.
The primary issue is the fourth Bonner element. In Bonner, the prison officials claimed that their refusal to provide a “qualified interpreter” was not impermissible discrimination under the RA because adequate communication could be accomplished with the use of a telecommunication device and unskilled “inmate interpreters.” See 857 F.2d at 563. Similarly, Appellees here contend that Duffy can easily and clearly read and write English. As such, they assert, Duffy’s ability to communicate would be neither “extremely difficult” nor inadequate under Bonner. Duffy, however, claims that “the service of a qualified interpreter .... would be more benefits (sic) and less hostile environment for all of us.”
Regarding Williams’ memo unequivocally stating that the disciplinary hearing would be conducted without an interpreter, the question remains under the RA and Bonner whether this decision constituted discrimination on the basis of Duffy’s handicap.6 Once Duffy made his handwritten request via Gerstbrein for an interpreter other than Linder, the record is silent regarding what action, if any, was taken by the hearing officer prior to conducting the hearing the following day. Appellees now assert on appeal that they were prepared to conduct the hearing with Linder’s services. However, Linder stated in her affidavit that after her attempt to serve Duffy on the 28th, she “had no further involvement with any of the incidents alleged in his complaint.”
Appellees also contend that Duffy voluntarily chose not to attend the hearing. However, Duffy asserts that just prior to the meeting time, he inquired about its status and was told that a signer was still being sought. In addition, Duffy did not indicate on the Hearing Notice/Appearance Waiver form that he affirmatively waived his right to attend.
Further, as we discuss more fully in the next section, Duffy has raised a question of fact regarding Linder’s qualifications as an interpreter, and his ability to communicate with her effectively and adequately. The existence of these genuine issues of material facts preclude summary judgment in favor of the Appellees on Duffy’s RA claims. See Bonner, 857 F.2d at 564.
Appellees also argue that our recent decision Gates v. Rowland, 39 F.3d 1439 (9th Cir.1994) constrains the claims that may be brought under the RA. Gates endorses the use of the standard outlined by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), when analyzing the RA’s application in a prison setting. Gates, 39 F.3d at 1447; see also Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62 (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). Appellees argue that there were
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legitimate penological reasons, such as the expense of finding certified interpreters, that would justify their refusal to honor Duffy’s request.
However, Appellees raise this argument for the first time on appeal; thus, the issue of whether Gates may potentially immunize the WSR officials’ conduct based on their asserted legitimate penological reasons cannot be considered without a fuller development of the record.
D. Duffy’s ADA Claims The Americans with Disabilities Act states in pertinent part:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or *1534 activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
This circuit has yet to set forth the elements of an ADA claim. However, as Duffy persuasively argues, the purpose and effect of the ADA is to extend the anti-discrimination policy of the RA to “all services, programs, and activities provided or made available by [public entities], regardless of the receipt of Federal financial assistance.” See 28 C.F.R.App. A § 35.102 (1995). Thus, the close relationship between the RA and the ADA offers guidance for analyzing an ADA claim.
We therefore adopt the relevant factors established by this circuit in analyzing an RA claim to Duffy’s ADA claim. As such, Duffy must demonstrate that he (1) is a handicapped person; (2) that he is otherwise qualified; and that the Appellees’ actions either (3) excluded his participation in or denied him the benefits of a service, program, or activity; or (4) otherwise subjected him to discrimination on the basis of his physical handicap.
As discussed, Duffy satisfies the first two elements of his ADA claim. Regarding the third element, one district court questioned whether the hearings at issue were “services, programs, or activities” for purposes of the ADA. However, Bonner instructs that such hearings may be considered “programs” within the definition of the RA and hence the ADA. Bonner, 857 F.2d at 563.
Regarding the fourth element, Duffy’s principal argument is that the Appellees were implicitly required under the ADA to honor his requests for a RID-certified interpreter at his hearings. Without such an interpreter, Duffy argues, he was discriminated against due to his disability because he would be unable to communicate effectively.
Duffy’s argument regarding the certification requirement of a “qualified interpreter” is based largely on 28 C.F.R. Part 35 App. A, Subpart E, § 35.160, which focuses on the complexity and importance of the proceedings, and 28 C.F.R. § 35.160(b)(2), which requires public entities to “give primary consideration to the requests of the individual with disabilities” in determining “what type of auxiliary aid and service is necessary.”
Duffy alleges that the requirement that an interpreter be certified is implicit in the ADA’s definition of a “qualified interpreter.” See 28 C.F.R. § 35.104 (“Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”). He cites several district court decisions from other circuits as support for this proposition. See, e.g., Clarkson v. Coughlin, 145 F.R.D. 339, 341 (S.D.N.Y.1993)(“A qualified sign language interpreter is one who has obtained certification from the National Registry of Interpreters for the Deaf....”); DeLong v. Brumbaugh, 703 F.Supp. 399, 403 (W.D.Pa.1989)(“[q]ualified interpreters are available from the Registry of Interpreters for the Deaf, Inc.,....”); Pyles v. Kamka, 491 F.Supp. 204, 205 (D.Md.1980)(approving consent decree in which prison officials agreed that “an interpreter shall be deemed qualified if he/she is certified by the National Registry of Interpreters for the Deaf”).
However, we cannot agree that, as a matter of law, the ADA regulations require an interpreter to be certified by the RID. The appendix of the DOJ’s implementing regulations contains the extensive discussion of the definition of “qualified interpreter” that Duffy cites. The DOJ recognized the concerns of many commentators that, absent a clear definition of the phrase, “qualified interpreter” would be interpreted to mean any “available interpreter.”
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The definition promulgated by the DOJ “focuses on the actual ability of the interpreter in a particular interpreting context to facilitate effective communication between the public entity and the individual with disabilities.” 28 C.F.R. Part 35, App. A. However, the DOJ did not go so far as to suggest that the definition of “qualified interpreter” requires formal certification. That restraint is evident in the statement that the definition “does not invalidate or limit standards .... of any State or local law that are equal to or more stringent .... [nor] supersede any requirement *1535 of State law for use of a certified interpreter in court proceedings.” Id.
However, based on the definition of qualified interpreter under the ADA, we conclude that Duffy has raised significant factual issues about his ability to communicate with Linder, and her overall ability to act as an interpreter within the meaning of the Act. In addition to his earlier complaint to Appellee Riveland, Duffy maintained in his deposition that Linder “signed in a different way and not related to my signs and some of her signs I did not understand.” Duffy also stated that Linder also “interrupted” and “would removed (sic) herself from the role of interpreter.”
It is undisputed that Linder had no formal training in sign language and is not a professional interpreter. Instead, she is a correctional mental health counselor, employed by the Washington State Department of Corrections, who learned how to sign through her relationship with her parents. These facts give rise to issues regarding the accuracy of her signing and her ability to be impartial-both of which are material to the definition of “qualified interpreter” as provided in the ADA regulations.
Appellees argue that the ADA regulations are “flexible” and permit the use of written communications between deaf inmates and prison officials in proceedings of this nature instead of a qualified interpreter. Appellees rely on the same discussion of the requirements for qualified interpreters contained in Appendix Part 35, specifically the comments that:
Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.
Appellees argue further that the disciplinary proceeding, in particular, was not a complicated matter. However, at the very least, this presents another factual issue that is more properly resolved in the district court.
We therefore reverse both district courts’ grants of summary judgment for the Appellees on Duffy’s ADA claims, so that these issues may be properly addressed by a fact-finder.
E. Duffy’s Section 1983 Claim In order to state a claim under section 1983, Duffy must show that the Appellees acted under color of law, and that their conduct deprived him of a constitutional right. Constitutionally protected liberty interests can arise under either state law or the Due Process clause. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987).
There is no dispute that the WSR officials acted under color of law. However, in Duffy’s action regarding the classification hearings, the district court rejected Duffy’s § 1983 claim based on the Washington Supreme Court’s holding that Washington prisoners do not have a liberty interest protected by the Fourteenth Amendment in their classification status. See In re Dowell, 100 Wash.2d 770, 674 P.2d 666, 668 (1984) (en banc); accord Hernandez, 833 F.2d at 1318.
Although this circuit has left open the possibility that a “different question might be presented if a prisoner’s classification adversely affected his eligibility for parole or good time credits,” Hernandez, 833 F.2d at 1318, Duffy has not demonstrated that his circumstances merit that alternative analysis. Neither Duffy’s potential for parole, nor his good time credits, were at stake during these proceedings.
Thus, the district court properly granted summary judgment to the Appellees on Duffy’s § 1983 claim regarding the classification hearings.
However, “[s]tate regulatory measures that impose ‘substantive limitations on the exercise of official discretion’ may create a liberty interest.” Hernandez, 833 F.2d at 1318 (quoting *1536 Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844
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(9th Cir.1985)). Thus, we must determine whether Washington state regulations create a liberty interest for inmates to remain free from arbitrary placement into disciplinary segregation. See, e.g., Walker v. Sumner, 14 F.3d 1415, 1419 (9th Cir.1994)(concluding that prison disciplinary regulations in Nevada create such a liberty interest).
Duffy maintains that the state’s use of explicitly mandatory language in its regulations governing prison disciplinary hearings-in connection with the substantive predicates that govern official decisionmaking-compels a conclusion that the State has created a protected liberty interest. We agree. See, e.g., Wash. Admin. Code 137-28-025 & -030 (listing the types of behaviors that shall constitute either a “general” or “serious” infraction); Id. at 137-028-085 (mandating at least 24-hour notice and a hearing to inmates accused of infractions); Id. at 137-28-090 (providing detailed, mandatory guidelines for the conduct of hearings including testimony and examination of witnesses); Id. at 137-28-105 (listing sanctions available for “general” and “serious” infractions). Such detailed regulations are “the type of substantive limitations on the exercise of official discretion that create liberty interests.” Hernandez, 833 F.2d at 1318.
However, our inquiry does not end here. We must next determine whether Duffy’s liberty interest was denied in violation of his due process rights. Regarding the disciplinary hearing, the district court rejected Duffy’s § 1983 claim on the ground that all due process protections were duly observed. The district court noted that ample notice of the hearing was given, and that Duffy was afforded the opportunity to attend.
In Walker, we held that a prisoner must be given a written notice of charges, a brief period of time in which to prepare for the hearing, a written decision, an opportunity to be heard and produce witnesses and evidence, and adequate assistance if necessary to comprehend the case. Walker, 14 F.3d at 1420. All of these provisions were granted to Duffy.
Further, it is well-established that due process protects against arbitrary action in prison disciplinary proceedings but provides less protection than in criminal prosecutions. Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). Due process also requires only that “some evidence” in the record support the prison disciplinary board’s findings. Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1985). The information that forms the basis for the prison disciplinary action must possess some indicia of reliability to satisfy due process. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987).
All these safeguards were met in Duffy’s case. The evidence presented at his disciplinary hearing, including the testimony of the officer to whom Duffy exposed himself, satisfied all potential due process concerns. Thus, the district courts correctly entered summary judgment for the defendants on Duffy’s § 1983 claims.
F. Duffy’s Washington State Law Claim Duffy’s final claim in both civil actions was that the defendants failed to appoint a certified interpreter as required by RCW 2.42.120. The statute provides in relevant part:
If a hearing impaired person is a party or witness at any stage of a judicial or quasi-judicial proceeding in the state or in a political subdivision, including but not limited to civil and criminal court proceedings ... and any proceeding in which a hearing impaired person may be subject to confinement or criminal sanction, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings.
Rev.Code Wash. 2.42.120(1) (emphasis added). The Washington Code also includes in its definition of a “qualified interpreter” someone “certified by the state.” Id. at 2.42.110(2). Even a certified interpreter may be rejected if the hearing impaired individual is not satisfied that the interpreter is able to provide “accurate, impartial, and effective communication with the hearing impaired person.” Id. at 2.42.130(2).
*1537 The district court that ruled on Duffy’s classification hearings claim held that such hearings were not judicial or quasi-judicial proceedings, and therefore did not trigger the requirements set forth in the statute. Appellees rely on a number of state court decisions in support of their contention that neither the classification hearings nor the disciplinary hearing were “quasi-judicial” in nature. See Yaw v. Walla Walla Sch. Dist., 106 Wash.2d 408, 722 P.2d 803 (1986); Malgarini v. Washington Jockey Club, 60 Wash.App. 823, 807 P.2d 901 (1991).
The Washington Supreme Court listed four steps to determine if an agency’s action is administrative or quasi-judicial,
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requiring an inquiry of whether: (1) the court could have been charged in the first instance with the responsibility of making the decision; (2) the function of the agency is one that courts have historically performed; (3) the agency performs functions of inquiry [and] investigation; and (4) the agency’s action is comparable to the ordinary business of courts. Yaw, 722 P.2d at 807 (citing Francisco v. Board of Directors, 85 Wash.2d 575, 537 P.2d 789, 793 (1975)).
Under this test, we conclude that the district court correctly found that the classification hearings were neither judicial nor quasi-judicial in nature. However, as Duffy notes, the Washington statute states that the definition of a quasi-judicial proceeding is not limited to the examples it sets forth.
Applying the Washington Supreme Court’s test to the WSR’s disciplinary hearing, we conclude that this proceeding was quasi-judicial in nature. Duffy was charged with violating a Washington state criminal statute prohibiting indecent exposure-a misdemeanor offense. Thus, the hearing officer’s determination of his liability under the statute was comparable to the ordinary business of courts, and certainly a function that courts have historically performed. Further, the disciplinary hearing officer performed the functions of inquiry and investigation required under the Yaw test. Accord Cleavinger v. Saxner, 474 U.S. 193, 203, 106 S.Ct. 496, 501-02, 88 L.Ed.2d 507 (1985)(finding that although no justification existed to provide absolute immunity for members’ official acts, prison disciplinary committees “do perform an adjudicatory function in that they determine whether the accused inmate is guilty or innocent of the charge leveled against him”).
Appellees rely on the Washington Supreme Court decision In re Reismiller, 101 Wash.2d 291, 678 P.2d 323 (1984), to support their contention that Duffy’s charges arising from his disciplinary hearing are nonreviewable matters of internal prison discipline. Id. 678 P.2d at 325-26 (applying an arbitrary and capricious standard of review to inmate’s “personal restraint” petition challenging the findings of his prison disciplinary proceeding). However, Reismiller is distinguishable because Duffy neither challenges nor seeks review of the ultimate outcome of his disciplinary hearing.
Rather, Duffy makes the distinct allegation that WSR officials violated Washington law by failing to provide a certified interpreter in a “quasi-judicial” proceeding. As such, we hold that the provisions of RCW 2.42.120 were applicable. Thus, the district court erred in dismissing Duffy’s Washington state law claim regarding the disciplinary hearing.

V. CONCLUSIONS
We reverse the district court’s dismissal of Duffy’s ADA and RA claims against the WSR and Department of Corrections on the ground of Eleventh Amendment immunity. Because Duffy has raised genuine issues of material fact as to Linder’s qualifications, and his ability to communicate effectively with her, we reverse both district courts’ grants of summary judgment to Appellees on Duffy’s ADA and RA claims, and remand so that an evidentiary hearing can be held to test the qualifications of the offered interpreter.
We affirm the grants of summary judgment to the Appellees on Duffy’s § 1983 claims. Finally, we reverse the dismissal of Duffy’s Washington state law claims regarding his disciplinary hearing.
*1538 AFFIRMED IN PART, REVERSED IN PART and REMANDED. The parties shall bear their own costs on appeal.

Parallel Citations

5 A.D. Cases 1126, 17 A.D.D. 1023, 8 NDLR P 209, 96 Cal. Daily Op. Serv. 4995

Footnotes

1

After one of Duffy’s 1991 encounters with Linder, he wrote a letter to Appellee Riveland regarding his communication difficulties

with her: “The problem is: there is no qualified interpreter present in this disciplinary proceeding at all! I did indicate that I want an

(sic) qualified interpreter to be in this hearing, but I was disregard (sic).... The [Twin Rivers Correctional Center] officials did use a

correctional officer as an interpreter, but she’s not fluently (sic) in sign languages nor met the requirement to became (sic) an

qualified interpreter. So there was a problem with the communication in the disciplinary proceeding and I became uncooperative

with these officers.”

9

Duffy v. Riveland, 88 F.3d 1525 (1996)

2

Officer Gerstbrein stated in his affidavit that he returned a copy of his written exchange with Duffy to Ms. Williams in the

disciplinary hearing office. However, the record is silent regarding what, if any, inquiry was made by WSR officials to determine

Duffy’s ability to communicate effectively with Linder.

3

The district court had previously dismissed defendants WSR and the Washington state Department of Corrections from Duffy’s

action based on their asserted immunity from suit under the Eleventh Amendment.

4

Further, as to the July disciplinary hearing, it is not clear that Duffy affirmatively waived his right to attend. Just prior to the

scheduled hearing time, Duffy inquired about its status and was told that an interpreter was still being sought. Thus, we cannot

determine on the current record whether Duffy realized that the hearing was in fact proceeding in his absence.

5

As we noted in Bonner, the implementing regulations promulgated by the Department of Justice (“DOJ”) under section 504 of the

RA require correctional facilities to “ .... provide appropriate auxiliary aids to qualified handicapped persons with impaired

sensory, manual or speaking skills where refusal to make such provision would discriminatorily impair or exclude the participation

of such persons.... Such auxiliary aids may include brailled and taped materials, qualified interpreters, readers and telephonic

devices.” 28 C.F.R. § 42.503(f) (1995)(emphasis added).

6

The WSR’s decision in this regard is particularly curious in light of the fact that the hearing had previously been continued based

on the “serious nature” of the infraction, and their belief that interpreter services should be secured.

10