Case: 4:18-cv-5071 As of: 05/10/2020 10:35 AM PDT 1 of 5
STAYED,CLOSED,LC02,NC,PROTO
Eastern District of Washington U.S. District Court (Richland) CIVIL DOCKET FOR CASE #: 4:18−cv−05071−RMP

Disability Rights Washington v. Inslee et al Assigned to: Judge Rosanna Malouf Peterson Cause: 42:12101 Americans With Disabilities Act
Plaintiff

Date Filed: 04/23/2018 Date Terminated: 07/01/2019 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Disability Rights Washington

represented by Andrew Sean Biviano Paukert & Troppmann PLLC 522 West Riverside Avenue Suite 560 Spokane, WA 99201 509−232−7760 Fax: 509−232−7762 Email: abiviano@pt−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Breean Lawrence Beggs Paukert & Troppmann PLLC 522 West Riverside Avenue Suite 560 Spokane, WA 99201 509−232−7760 Fax: 509−232−7762 Email: bbeggs@pt−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David R Carlson Disability Rights Washington 315 Fifth Avenue South Suite 850 Seattle, WA 98104 206−324−1521 Email: davidc@dr−wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn McKimmie Disability Rights Washington 315 5th Avenue S Suite 850 Seattle, WA 98104 206−324−1521 Email: heatherm@dr−wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Elizabeth Dillon Paukert & Troppmann PLLC 522 West Riverside Avenue Suite 560 Spokane, WA 99201 509−232−7760 Fax: 509−232−7762 Email: bdillon@pt−law.com

Case: 4:18-cv-5071 As of: 05/10/2020 10:35 AM PDT 2 of 5
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael E Seevers Disability Rights Washington 315 5th Avenue S Suite 850 Seattle, WA 98104 206−324−1521 Email: rachaels@dr−wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Governor Jay Inslee State of Washington TERMINATED: 07/01/2019
Defendant Secretary Stephen Sinclair Washington State Department of Corrections
Defendant Superintendent Donald R Holbrook Washington State Penitentiary

represented by Cassie B vanRoojen Washington State Attorney General's Office PO Box 40116 Olympia, WA 98504−0116 360−586−1445 Fax: 360−664−8716 Email: CassieV@atg.wa.gov ATTORNEY TO BE NOTICED
Haley Christine Beach Attorney General's Office − Corrections Division −OLY PO Box 40116 Olympia, WA 98504−0116 360−586−1445 Fax: 360−664−8716 Email: haleyb@atg.wa.gov ATTORNEY TO BE NOTICED
Timothy N Lang Attorney General of Washington − OLY Corrections Division P O Box 40116 Olympia, WA 98504−0116 360−586−1445 Fax: 360−664−8716 Email: timothyl@atg.wa.gov ATTORNEY TO BE NOTICED
represented by Cassie B vanRoojen (See above for address) ATTORNEY TO BE NOTICED
Haley Christine Beach (See above for address) ATTORNEY TO BE NOTICED
Timothy N Lang (See above for address) ATTORNEY TO BE NOTICED
represented by Cassie B vanRoojen (See above for address)

Case: 4:18-cv-5071 As of: 05/10/2020 10:35 AM PDT 3 of 5
ATTORNEY TO BE NOTICED
Haley Christine Beach (See above for address) ATTORNEY TO BE NOTICED
Timothy N Lang (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/23/2018
04/23/2018 04/23/2018 05/14/2018
05/14/2018
05/14/2018
05/21/2018 05/22/2018 05/23/2018 05/23/2018 05/23/2018 05/23/2018 07/03/2018
07/03/2018

# Docket Text
1 COMPLAINT against Donald R Holbrook, Jay Inslee, Stephen Sinclair ( Filing fee $ 400; Receipt # 0980−2872478) Filed by Disability Rights Washington. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Jay Inslee, # 3 Summons Stephen Sinclair, # 4 Summons Donald Holbrook)(Seevers, Rachael) (Entered: 04/23/2018)
Notice of Judge Assignment. Judge Rosanna Malouf Peterson assigned to case. (AY, Case Administrator) (Entered: 04/23/2018)
2 Summons Issued to Jay Inslee (Attachments: # 1 Summons Stephen Sinclair, # 2 Summons Donald Holbrook) as to All Defendants. (AY, Case Administrator) (Entered: 04/23/2018)
3 NOTICE of Appearance by Haley Christine Beach on behalf of Donald R Holbrook, Jay Inslee, Stephen Sinclair (Attorney Haley Christine Beach added to party Donald R Holbrook(pty:dft), Attorney Haley Christine Beach added to party Jay Inslee(pty:dft), Attorney Haley Christine Beach added to party Stephen Sinclair(pty:dft))(Beach, Haley) (Entered: 05/14/2018)
4 NOTICE of Appearance by Cassie B vanRoojen on behalf of All Defendants (Attorney Cassie B vanRoojen added to party Donald R Holbrook(pty:dft), Attorney Cassie B vanRoojen added to party Jay Inslee(pty:dft), Attorney Cassie B vanRoojen added to party Stephen Sinclair(pty:dft))(vanRoojen, Cassie) (Entered: 05/14/2018)
5 NOTICE of Appearance by Timothy N Lang on behalf of All Defendants (Attorney Timothy N Lang added to party Donald R Holbrook(pty:dft), Attorney Timothy N Lang added to party Jay Inslee(pty:dft), Attorney Timothy N Lang added to party Stephen Sinclair(pty:dft))(Lang, Timothy) (Entered: 05/14/2018)
6 ANSWER to Complaint by Donald R Holbrook, Jay Inslee, Stephen Sinclair.(Beach, Haley) (Entered: 05/21/2018)
7 SCHEDULING CONFERENCE NOTICE : Telephonic Scheduling Conference set for July 10, 2018, at 10:00 AM before Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 05/22/2018)
8 CERTIFICATE OF SERVICE as to 1 Complaint, Service on Donald Holbrook filed by Disability Rights Washington. (Seevers, Rachael) (Entered: 05/23/2018)
9 CERTIFICATE OF SERVICE as to 1 Complaint, Service on Jay Inslee filed by Disability Rights Washington. (Seevers, Rachael) (Entered: 05/23/2018)
10 CERTIFICATE OF SERVICE as to 1 Complaint, Service on Stephen Sinclair filed by Disability Rights Washington. (Seevers, Rachael) (Entered: 05/23/2018)
11 Praecipe filed by Disability Rights Washington: Re 10 Certificate of Service. Description: redaction needed. (Seevers, Rachael) (Entered: 05/23/2018)
12 STATUS REPORT and Proposed Discovery Plan by Donald R Holbrook, Jay Inslee, Stephen Sinclair. (Attachments: # 1 Text of Proposed Order Agreement Regarding Discovery of Electronically Stored Information, # 2 Text of Proposed Order Agreed Protective Order)(vanRoojen, Cassie) (Entered: 07/03/2018)
13 RULE 7.1 CORPORATE DISCLOSURE STATEMENT by Disability Rights Washington. (Seevers, Rachael) (Entered: 07/03/2018)

Case: 4:18-cv-5071 As of: 05/10/2020 10:35 AM PDT 4 of 5

07/10/2018 07/10/2018
07/11/2018 07/11/2018 12/03/2018 02/12/2019 02/13/2019
02/13/2019 05/29/2019 06/03/2019
06/27/2019 06/27/2019 07/01/2019 07/01/2019

14 Minute Entry for TELEPHONIC proceedings held before Judge Rosanna Malouf Peterson: Scheduling Conference held on 7/10/2018. (Reported/Recorded by: Allison R. Stovall) (MF, Courtroom Deputy) (Entered: 07/10/2018)
15 BENCH TRIAL SCHEDULING ORDER: Telephonic Status Conference set for 4/26/2019 at 09:30 AM before Judge Rosanna Malouf Peterson. Parties to call toll−free conference line at (888) 363−4749 and enter access code 6699898#. Pretrial Conference set for 8/6/2019 at 11:00 AM in Yakima Courtroom 324. Bench Trial set for 8/19/2019 at 09:00 AM in Yakima Courtroom 324. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Entered: 07/10/2018)
16 ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Entered: 07/11/2018)
17 PROTECTIVE ORDER. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Entered: 07/11/2018)
18 STIPULATION re 15 Scheduling Order, to Modify the Deadlines for Exchange of Expert Disclosures by All Defendants. (Beach, Haley) (Entered: 12/03/2018)
19 Stipulated MOTION to Stay re 18 Stipulation by Donald R Holbrook, Jay Inslee, Stephen Sinclair. Motion Hearing set for 2/19/2019 in Richland Courtroom 189 before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Beach, Haley) (Entered: 02/12/2019)
20 TEXT−ONLY ORDER (no PDF shall issue) accepting the parties' stipulation and GRANTING the parties' joint motion to stay proceedings, ECF No. 19 , based on a finding that a stay of this matter serves the best interests of the parties and promotes judicial efficiency. All deadlines set by the Bench Trial Scheduling Order, ECF No. 15, are STAYED, and the hearings set by that Order are vacated. The parties shall notify the Court by June 3, 2019, of the status of their settlement efforts and the likelihood of a final settlement, and, if no settlement is imminent, shall jointly propose an amended pretrial schedule and shall obtain a new bench trial date from the Courtroom Deputy. A case management deadline shall be set for June 4, 2019. This text−only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 02/13/2019)
Case Management Deadline set for 6/4/2019. See ECF No. 20. (MS, Judicial Assistant) (Entered: 02/13/2019)
21 STATUS REPORT Joint by Donald R Holbrook, Jay Inslee, Stephen Sinclair. (Beach, Haley) (Entered: 05/29/2019)
22 TEXT ONLY ORDER (no PDF will issue) regarding the parties' Status Report filed at ECF No. 21 . The parties submit that they are working to resolve this case and request that this case remain stayed until June 20, 2019. Accordingly, this case remains stayed, and the parties will submit either settlement documents or an updated status report by June 28, 2019. This text−only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 06/03/2019)
23 Stipulated MOTION to Dismiss Defendant Jay Inslee by Donald R Holbrook, Jay Inslee, Stephen Sinclair. Motion Hearing set for 7/1/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Beach, Haley) (Entered: 06/27/2019)
24 Stipulated MOTION For Approval of Settlement by Donald R Holbrook, Jay Inslee, Stephen Sinclair. Motion Hearing set for 7/1/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Beach, Haley) (Entered: 06/27/2019)
25 ORDER OF DISMISSAL WITH PREJUDICE; granting 23 Stipulated Motion to Dismiss Defendant Jay Inslee. Jay Inslee (State of Washington) terminated. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Entered: 07/01/2019)
26 JUDGMENT OF DISMISSAL. (AY, Case Administrator) (Entered: 07/01/2019)

Case: 4:18-cv-5071 As of: 05/10/2020 10:35 AM PDT 5 of 5

07/01/2019

27 ORDER GRANTING 24 STIPULATED MOTION FOR APPROVAL OF SETTLEMENT. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Entered: 07/01/2019)

 
 Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.1 Page 1 of 18

1 DISABILITY RIGHTS WASHINGTON David R. Carlson, WSBA #35767
2 Heather McKimmie, WSBA #36730 Rachael Seevers, WSBA #45846
3 315 Fifth Avenue South, Suite 850 Seattle, WA 98104
4 (206) 324-1521

5 PAUKERT & TROPPMANN Breean Lawrence Beggs, WSBA #20795
6 Andrew Sean Biviano, WSBA #38086 Mary Elizabeth Dillon, WSBA #50727
7 522 W. Riverside Avenue, Suite 560 Spokane, WA 99201
8 (509) 232-7760

9

10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

11 DISABILITY RIGHTS WASHINGTON,

12

Plaintiff,

No. 18-5071

13 v.

COMPLAINT

14 JAY INSLEE, Governor, State of

15

Washington; STEPHEN SINCLAIR, Secretary, Washington State Department

16

of Corrections; DONALD HOLBROOK, Superintendent, Washington State

17 Penitentiary

18

Defendants.

19

Plaintiff alleges the following based on information and belief, and

20 investigation of counsel.
COMPLAINT - 1

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.2 Page 2 of 18

1

I. Preliminary Statement

2

1. This litigation is brought by Disability Rights Washington as

3 organizational plaintiff on behalf of its constituents who are inmates with mental

4 illness held in overly restrictive conditions due to their disability.

5

2. Specifically, inmates with mental illness who are classified as

6 minimum or medium custody by the Washington State Department of Corrections

7 (DOC) are being confined in a more restrictive close custody setting in parts of

8 Washington State Penitentiary’s Baker, Adams, and Rainier (BAR) units, in order

9 to receive mental health services.1

10

3. DOC confines these minimum and medium security inmates in close

11 custody mental health housing units, irrespective of an inmate’s individual custody

12 level. Some inmates are housed in these restrictive conditions for years solely due

13 to their disability, despite being eligible for a far less restrictive setting. This

14

15

1 The BAR units serve only adult men and are comprised of three separate

16 units, all of which are run as close custody. Inmates in protective custody are also

17 held on these units. Baker is comprised mostly of inmates with mental health

18 needs; Adams is a mix of inmates on protective custody and those in need of

19 mental health services, or both, while Rainier is almost entirely inmates in

20 protective custody.
COMPLAINT - 2

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.3 Page 3 of 18

1 restrictive placement limits inmates’ abilities to engage in programming and

2 recreational opportunities, for which they would otherwise be eligible.

3

4. DOC’s discriminatory policy and practice of housing inmates with

4 mental illness in close custody conditions in the BAR units irrespective of their

5 actual custody classification violates title II of the Americans with Disabilities Act,

6 42 U.S.C. §§ 12131-34 (“ADA” or “Title II”), and section 504 of the

7 Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”).

8

II. Jurisdiction and Venue

9

5. This court has jurisdiction over the subject matter of this action

10 pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343

11 (civil rights jurisdiction).

12

6. Venue in this court is proper pursuant to 28 U.S.C. § 1391(b)(2), as a

13 substantial part of the events giving rise these claims occurred in this judicial

14 district, where Washington State Penitentiary is located.

15

III. Parties

16

7. Plaintiff Disability Rights Washington (DRW), a nonprofit

17 corporation duly organized under the laws of the State of Washington, is the

18 statewide protection and advocacy system designated by the Governor of the State

19 of Washington to protect and advocate for the legal and civil rights of those

20 residents of this state who have disabilities, pursuant to the DD Act, 42 U.S.C. §§

COMPLAINT - 3

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.4 Page 4 of 18

1 15041-45, the PAIMI Act, 42 U.S.C. §§ 10801-51, the PAIR Act, 29 U.S.C. §

2 794e, the PATBI Act, 42 U.S.C. § 300d-53, and RCW 71A.10.080(2). As such,

3 DRW fulfills its federal mandate by providing an array of protection and advocacy

4 services to people with disabilities across Washington, including the inmate

5 constituents in this case. DRW is governed by a board of directors comprised

6 predominantly of people with disabilities and their family members. This board is

7 advised by two advisory councils, the Disability Advisory Council and the

8 statutorily mandated Mental Health Advisory Council, also primarily comprised of

9 people with disabilities and their family members.

10

8. As the protection and advocacy system, DRW has engaged in

11 advocacy on behalf of people with disabilities for over forty years, and over the

12 past twenty years, DRW has undertaken significant systemic litigation to protect

13 the rights of individuals with mental illness and ensure they receive individualized

14 and appropriate care in the least restrictive setting appropriate to their needs.

15

9. DRW’s Amplifying Voices of Inmates with Disabilities (AVID)

16 Program specifically focuses on advocating for people with disabilities in jails and

17 prisons. The AVID Program has been recognized across the state and nationally,

18 and has been asked to present at events for the White House, U.S. Senate, the

19 national Center on Disability, and at multiple conferences for corrections advocates

20 and administrators across the country.

COMPLAINT - 4

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.5 Page 5 of 18

1

10. Through what has become its AVID Program, DRW has conducted

2 numerous monitoring visits to all twelve state prisons and has undertaken

3 investigations into potential abuse or neglect of prison inmates with disabilities for

4 over eight years. The AVID Program has received and responded to thousands of

5 inmate calls during that time and has engaged in advocacy on behalf of dozens of

6 individual inmates with disabilities, addressing issues such as inappropriate or long

7 term segregation, access to accommodations, access to adequate medical and

8 mental health care, and access to programming.

9

11. In 2016, BAR units inmates with mental illness contacted DRW’s

10 AVID Program and reported that they were being improperly held in the units

11 under close custody status, even if classified as a minimum or medium custody

12 inmate. In response to these constituent calls, in May 2016, DRW’s AVID

13 Program conducted an investigation and verified these reports through an extensive

14 document review. In August 2016, DRW sent a letter to Assistant Secretary Robert

15 Herzog, outlining its concerns. Since that time DRW has met with the DOC to

16 attempt to resolve this issue on multiple occasions, but has been unsuccessful.

17

12. DRW brings this action as an organizational plaintiff on behalf of its

18 constituents, DOC inmates with mental illness, who are qualified individuals with

19 disabilities under Title II and Section 504.

20
COMPLAINT - 5

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.6 Page 6 of 18

1

13. Courts have regularly found that DRW has associational standing to

2 represent the interests of people with disabilities, including people held in

3 correctional facilities. Trueblood v. Washington State Dep't of Soc. & Health

4 Servs., 101 F. Supp.3d 1010, 1020 (W.D. Wash. 2015), modified, No. C14-1178

5 MJP, 2016 WL 4533611 (W.D. Wash. 2016), vacated and remanded on other

6 grounds, 822 F.3d 1037 (9th Cir. 2016) (recognizing DRW’s associational

7 standing); K.M. v. Regence Blueshield, No. C13-1214 RAJ, 2014 WL 801204, at

8 *7 (W.D. Wash. 2014) (holding “DRW has constitutional standing to represent its

9 constituents-individuals with physical, mental and developmental disabilities in

10 Washington State.”); see also Oregon Advocacy Center v. Mink, 322 F.3d 1101,

11 1109-16 (9th Cir. 2003) (outlining associational standing requirements for a

12 protection and advocacy system). Because DRW’s constituency includes DOC

13 inmates who have a mental illness, the interests of DRW and the affected

14 individuals in this case are aligned.

15

14. Defendant Jay Inslee is the Governor of the State of Washington. The

16 Governor must supervise the conduct of all executive offices and appoint the

17 Secretary of the Department of Corrections and is therefore vested with the

18 ultimate authority and responsibility over the state corrections system. RCW

19 43.06.010(1); RCW 72.09.030. At all times relevant to this action Defendant Inslee

20 was acting under color of state law and is being sued in his official capacity.

COMPLAINT - 6

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.7 Page 7 of 18

1

15. Defendant Stephen Sinclair is the current Secretary of the Department

2 of Corrections and is responsible for the operation of all adult state correctional

3 institutions, including the Washington State Penitentiary where the BAR units are

4 located. See RCW 72.09.050. In that capacity, he is required to exercise all powers

5 and perform all duties prescribed by law with respect to the administration of

6 Washington’s prisons, including adopting, implementing, and enforcing policies

7 and procedures that ensure that inmates with disabilities are not discriminated

8 against while in DOC’s custody. He has the authority to direct activities of

9 subordinate officers and other DOC employees, as well as the authority to identify

10 capital needs and submit budget requests to the state legislature. DOC has custody

11 of DRW’s constituents. At all times relevant to this action Defendant Sinclair was

12 acting under color of state law and is being sued in his official capacity.

13

16. Defendant Donald Holbrook is the Superintendent of the Washington

14 State Penitentiary and is responsible for the day to day operation and management

15 of that prison, including the operation and management of the BAR units. At all

16 times relevant to this action Defendant Holbrook was acting under color of state

17 law and is being sued in his official capacity.

18

IV. Statement of Facts Entitling Plaintiffs to Relief

19

17. The Department of Corrections uses a custody classification system to

20 assign inmates to the least restrictive custody level appropriate. The initial

COMPLAINT - 7

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.8 Page 8 of 18

1 classification process is set forth in DOC Policy 310.150; the periodic

2 classification review process is set forth in DOC Policy 300.380.

3

18. The Department of Corrections has six custody levels.

4

19. Maximum custody is segregation and is the most restrictive custody

5 level. Upon information and belief, inmates in maximum custody are housed alone,

6 are generally limited to five hours of recreation per week, and do not have access

7 to most prison programs and services. Maximum custody is generally reserved for

8 inmates with substantial behavioral issues or those awaiting, or serving time for, a

9 disciplinary sanction.

10

20. Close custody is the second most restrictive custody status. Inmates in

11 close custody are unable to leave their cell at will and access to the dayroom is

12 controlled by correctional officers in a central control booth. Inmates in close

13 custody are generally locked in their cells for sixteen hours of the day. They may

14 access the main yard and gym for approximately ten hours per week; access to the

15 dayroom is limited to approximately sixteen hours per week. Inmates in close

16 custody have less access to educational programming, recreational programming,

17 and have fewer job opportunities than inmates at lower custody levels. By statute,

18 inmates who have been sentenced to the death penalty or life without parole are

19 generally assigned to close custody. Inmates with known gang affiliations or recent

20 infractions may also be placed in close custody.
COMPLAINT - 8

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.9 Page 9 of 18

1

21. The BAR units, which are close custody, are in many ways even more

2 restrictive than other close custody units at Washington State Penitentiary. While

3 other close custody units at Washington State Penitentiary have access to the dog

4 training program, the BAR units do not. BAR units inmates also do not have

5 access to chemical dependency programming, unlike both close and medium

6 custody inmates located elsewhere in the facility. The educational programming

7 available in the BAR units is limited to GED preparation, while inmates in other

8 close custody units at Washington State Penitentiary may access various education

9 programs, including vocational programs and higher education. BAR units inmates

10 also have more restrictions on dayroom activities, with limitations on what can be

11 brought into the general area that are not applied on other close custody units.

12

22. Medium Custody is far less restrictive than either general close

13 custody or the version of close custody found on the BAR units. Inmates in

14 medium custody have a key to their cell and can generally come and go

15 independently. Medium custody inmates are able to access the main yard and gym

16 almost forty hours per week; they may access the dayroom approximately fifty-six

17 hours per week. Inmates in medium custody have access to a range of educational

18 programming and vocational training, meals with the general population, and

19 increased access to jobs and work training programs.

20
COMPLAINT - 9

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.10 Page 10 of 18

1

23. Minimum custody is the lowest level of custody and is subdivided

2 into three levels, MI3, MI2, or MI1, with MI1 being the least restrictive custody

3 status. Inmates at these custody levels have access to increased programming and

4 may be eligible for a work camp or work release in the community.

5

24. During initial classification, DOC intake staff conduct an assessment

6 that includes the inmate’s sentence, criminal history, infraction and institutional

7 history, and programming needs, resulting in a numerical risk assessment and

8 corresponding custody level.

9

25. After this initial classification, inmates are reassessed at least annually

10 through the classification review process.

11

26. During each classification reassessment, an inmate’s infraction

12 history, programming needs, and release plan are considered.

13

27. An inmate’s mental health is also evaluated as part of the

14 classification process.

15

28. Male inmates who are assessed as requiring placement in a Mental

16 Health Residential Treatment Unit are assigned to either the Special Offender Unit

17 (SOU) at the Monroe Correctional Complex, in Monroe, Washington, or the BAR

18 units at the Washington State Penitentiary, in Walla Walla, Washington. These

19 units provide a higher level of mental health services than other DOC facilities.

20
COMPLAINT - 10

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.11 Page 11 of 18

1

29. The SOU has two maximum custody units, two close custody units,

2 and two medium/minimum custody units.

3

30. Thus, all custody levels are available to inmates deemed in need of

4 residential mental health treatment at the SOU and inmates are generally placed in

5 the SOU unit that corresponds with their assigned custody level.

6

31. The BAR units are all close custody.

7

32. Inmates deemed in need of residential mental health treatment at the

8 BAR units are housed in a close custody unit, irrespective of their actual custody

9 classification.

10

33. Inmates with mental illness who have been classified as medium or

11 minimum custody are regularly assigned to the BAR units and placed in a close

12 custody setting, solely in order to receive mental health services.

13

34. Custody facility plans for inmates with mental illness routinely state

14 that the inmate is to be retained in the BAR units for mental health treatment.

15

35. Upon information and belief, in November 2017 there were

16 approximately 164 inmates in the two BAR units that house inmates with mental

17 illness.

18

36. In November 2017, 51 of these inmates were classified as minimum

19 custody and 19 were classified as medium. Despite these official custody

20 classifications, all 70 inmates were housed in restrictive, close custody conditions.

COMPLAINT - 11

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.12 Page 12 of 18

1

37. Due to their need for mental health services, these inmates are not in

2 the most integrated setting appropriate to their needs and are housed in a more

3 restrictive setting than necessary. Solely due to their disability, these inmates have

4 limited access to yard, dayroom, educational programming, and job assignments,

5 all prison programs that they are otherwise qualified to access.

6

38. For example, multiple inmates in the BAR units are under the

7 jurisdiction of the indeterminate sentence review board and in need of sex offender

8 treatment before being deemed eligible for release. Sex offender treatment is not

9 offered to inmates in the BAR units.

10

39. Some inmates in the BAR units are in need of chemical dependency

11 programming, which is not offered in the BAR units.

12

40. Other BAR units inmates have not been placed in jobs or other

13 programming that would be available if they were housed at their appropriate

14 custody level.

15

41. DOC records indicate that one of DRW’s constituents, B.S., who has

16 more than 25 years remaining on his sentence, is currently classified as minimum

17 custody but is housed in the BAR units under close custody. He reported that he

18 does not have a job and is locked in his cell for most of the day. He reported that if

19 he were housed in a minimum custody unit he would have increased access to

20 JPay, the email and media system used by the DOC, and more access to

COMPLAINT - 12

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.13 Page 13 of 18

1 programming. This inmate has family in Western Washington and would like to be

2 closer to them. This constituent has been designated as being in need of residential

3 mental health services and is therefore being housed in the BAR unit.

4

42. F.G., another DRW constituent, is currently classified as medium

5 custody but according to DOC records, is nevertheless housed in the BAR units

6 under close custody status “for mental health services.” This inmate reported that

7 he would like to be placed in a medium custody unit because he would have more

8 time out of cell and increased access to programming.

9

43. A third DRW constituent, M.N., has been infraction free since 2009

10 and has been classified as long-term minimum custody. Despite that classification,

11 he has been housed at the BAR units under close custody status “for mental health

12 concerns.” This inmate has requested housing at his appropriate custody level but

13 remains under restrictive conditions, with limited out of cell time and access to

14 programming, despite his almost decade of infraction-free behavior.

15

44. In a November 2017 interview with DRW, B.T., a BAR units inmate

16 classified as minimum custody who was previously incarcerated in the

17 medium/minimum custody units at the SOU, compared the units, noting that in the

18 SOU’s medium custody unit he had a key to his cell and could come and go freely.

19 He reported vastly increased access to fresh air and outdoor space while in the

20 SOU and noted that he had been closer to family and friends, who had visited him

COMPLAINT - 13

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.14 Page 14 of 18

1 almost every weekend. Now at the BAR units, this DRW constituent reports that

2 he is mainly confined to his room. Notably, while DOC records indicate that this

3 inmate is in need of sex offender treatment, that programming is not offered at the

4 BAR units. After more than a year of being confined in the BAR units, upon

5 information and belief this constituent was finally transferred to the SOU in early

6 2018. Though he is currently at the SOU, as an inmate with mental illness in need

7 of residential mental health services, he remains at risk of being placed back into

8 the BAR units as he has in the past.

9

45. A fifth constituent, D.D., who is currently medium custody reported

10 that he has been housed in close custody in the BAR units for almost two years.

11 Like B.T., he had previously been housed in the medium/minimum units at the

12 SOU and noted the increased freedom available on that unit. Specifically, in the

13 SOU he reported that inmates ate in the main dining area, unlike the BAR units,

14 which restricts inmates to their unit even for meals. The inmate reported that due

15 to the close custody conditions of the unit he spends few hours per day out of his

16 cell. This inmate was scheduled for release from this restrictive setting in

17 December 2017 and expected to be placed on a Greyhound bus to Seattle upon

18 release. Thus, upon information and belief, rather than being provided with the

19 opportunity to live under fewer restrictions at his assigned custody level, this

20
COMPLAINT - 14

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.15 Page 15 of 18

1 inmate was released to the community, via bus, straight from the BAR units’

2 restrictive close custody setting.

3

46. The classification practices that DRW identified in November 2017

4 persist today, despite DRW’s repeated efforts to work with Defendants to address

5 this issue.

6

47. Due to their disability, DRW’s constituents with mental illness in the

7 BAR units are held in more restrictive conditions than necessary, in violation of

8 federal law.

9

48. Defendants’ policy and practice of placing inmates with mental illness

10 in the close custody BAR units, irrespective of their individual custody

11 classification, discriminates against DRW’s constituents.

12

V. Federal Financial Funding

13

49. The DOC receives federal financial assistance, including grants from

14 the U.S. Department of Justice.

15

Claims for Relief

16

Count I:

17

Violation of the Americans with Disabilities Act and Section 504 of the

Rehabilitation Act

18

50. The allegations of the paragraphs above are incorporated herein.

19

20
COMPLAINT - 15

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.16 Page 16 of 18

1

51. Plaintiff DRW’s constituents are all inmates with a mental illness and

2 are therefore “qualified individual[s] with a disability” within the meaning of 42

3 U.S.C. § 12131(2) and are “otherwise qualified individual[s] with a disability”

4 within the meaning of the Rehabilitation Act, 29 U.S.C. § 794.

5

52. The Defendants’ policy and practice of housing all inmates in need of

6 mental health services in the BAR units under close custody conditions,

7 irrespective of their actual custody classification, denies them the benefit of DOC’s

8 services, programs, and/or activities and/or subjects them to discrimination on the

9 basis of disability, in violation of Section 504 and Title II and its implementing

10 regulations. Such discrimination against Plaintiff’s constituents includes, but is not

11 limited to:

12

a) Failing to administer services, programs, and activities in the most

13

integrated and least restrictive setting appropriate to the needs of

14

qualified inmates with mental illness, in violation of 28 C.F.R. §

15

35.152(b).

16

b) Placing inmates in inappropriate security classifications due to

17

disability, in violation of 28 C.F.R. § 35.152(b)(2)(i).

18

c) Confining inmates with disabilities in facilities that do not offer the

19

same programming as facilities in which they would otherwise be

20

housed. 28 C.F.R. § 35.152(b)(2)(iii).

COMPLAINT - 16

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.17 Page 17 of 18

1

d) Separating inmates with disabilities from their families by placing

2

them in distant facilities where they would not otherwise be housed,

3

in violation of 28 C.F.R. § 152(b)(2)(iv).

4

e) Denying inmates with disabilities the equal opportunity to

5

participate or benefit from services, facilities, privileges, and

6

advantages, for which they are qualified, including yard time,

7

dayroom, congregate dining, commissary, programming, JPay, and

8

overall out of cell time, because they have a mental illness.

9

f) Failing to make reasonable accommodations in policies, practices,

10

and procedures when the modifications are necessary to avoid

11

discrimination on the basis of disability.

12

VI. Prayer for Relief

13

53. Wherefore, Plaintiff requests that this Court:

14

a. Issue a declaratory judgment that the conduct, conditions, and

15

treatment described in the complaint violate Plaintiff’s

16

constituents’ rights in the manner identified in this complaint;

17

b. Issue a permanent injunction restraining Defendants from engaging

18

in classification and housing practices in the BAR units that violate

19

Title II, and Section 504 of the Rehabilitation Act;

20
COMPLAINT - 17

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

Case 4:18-cv-05071-RMP ECF No. 1 filed 04/23/18 PageID.18 Page 18 of 18

1

c. Issue an award for Plaintiff’s costs, litigation expenses, and

2

reasonable attorney’s fees pursuant to 42 U.S.C. § 12205 and 29

3

U.S.C. § 794a, and other applicable law;

4

d. Order such other and further relief as this Court may deem just and

5

equitable.

6

Dated: April 23, 2018.

7

DISABILITY RIGHTS WASHINGTON

8

/s/ David Carlson

/s/ Heather McKimmie

9

/s/ Rachael Seevers

David R. Carlson, WSBA No. 35767

10

Heather McKimmie, WSBA No. 36730

Rachael Seevers, WSBA No. 45846

11

PAUKERT & TROPPMAN

12

/s/ Breean Beggs

13

/s/Andrew Biviano

/s/ Beth Dillon

14

Breean Lawrence Beggs, WSBA No. 20795

Andrew Sean Biviano, WSBA No. 38086

15

Mary Elizabeth Dillon, WSBA No. 50727

16 Attorneys for Plaintiffs
17

18

19

20
COMPLAINT - 18

Disability Rights Washington 315 5th Avenue South, Suite 850
Seattle, Washington 98104 (206) 324-1521  Fax: (206) 957-0729

 
 Case 4:18-cv-05071-RMP ECF No. 24 filed 06/27/19 PageID.162 Page 1 of 3

1 Timothy Lang, WSBA #21314 Haley Beach, WSBA #44731
2 Cassie vanRoojen, WSBA #44049 Assistant Attorneys General
3 Corrections Division PO Box 40116
4 Olympia, WA 98504 (360) 586-1445
5

6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

7

DISABILITY RIGHTS

NO. 4:18-cv-05071-RMP

8

WASHINGTON,

STIPULATION AND

9

Plaintiff,

MOTION FOR APPROVAL

OF SETTLEMENT

10

v.

11

JAY INSLEE, Governor, State of

Washington; STEPHEN

7/1/2019 Without Oral Argument 6:30 pm

12

SINCLAIR, Secretary,

Washington State Dept. of

13

Corrections; and DONALD

HOLBROOK, Superintendent,

14

Washington State Penitentiary,

15

Defendants.

16

The Parties, through their attorneys of record, hereby jointly request

17 Court approval of their Final Settlement Agreement (Agreement), a copy of

18 which is attached as Exhibit A. The Agreement resolves all claims in this

19 matter, including for fees and costs, and requires the Defendants to make

20 certain physical plant and condition of confinement modifications for

21 incarcerated individuals housed in the “BAR” Residential Treatment Units at

22 the Washington State Penitentiary.

STIPULATION AND MOTION FOR APPROVAL OF SETTLEMENT NO. 4:18-cv-05071-RMP

1

ATTORNEY GENERAL OF WASHINGTON Corrections Division

PO Box 40116

Olympia, WA 98504-0116

(360) 586-1445

Case 4:18-cv-05071-RMP ECF No. 24 filed 06/27/19 PageID.163 Page 2 of 3

1

The Parties do not anticipate they will need Court involvement during

2 settlement implementation, but they request that the Court incorporate the

3 Agreement into an Order and retain jurisdiction to enforce the substantive terms

4 of Section II (D)(1) of the Agreement for thirty (30) months following approval

5 of the Agreement. In addition, the parties have agreed, and request the Court to

6 order, that after thirty (30) months, absent an order extending the term of the

7 Agreement pursuant to Section II (F)(3), the Agreement will automatically

8 terminate, the Court’s jurisdiction will end, and the Court shall dismiss the case

9 with prejudice upon presentation of an order to that effect.

10

Stipulated and jointly presented June 27, 2019.

11

By: s/ Rachael Seevers DISABILTY RIGHTS WASHINGTON

By: s/ Haley Beach ATTORNEY GENERAL’S OFFICE

12 David Carlson, WSBA #35767 13 davidc@dr-wa.org

14

Heather McKimmie, WSBA #36730 heatherm@dr-wa.org

15 Rachael Seevers, WSBA #45846 16 rachaels@dr-wa.org

17 PAUKERT & TROPPMAN

18

Andrew Biviano, WSBA #38086 abiviano@pt-law.com

Tim Lang, WSBA #21314 Senior Assistant Attorney General TimothyL@atg.wa.gov
Haley Beach, WSBA #44731 Assistant Attorney General HaleyB@atg.wa.gov
Cassie vanRoojen, WSBA #44049 Assistant Attorney General CassieV@atg.wa.gov
Attorneys for Defendants

19 Breean Beggs, WSBA #20795 20 bbeggs@pt-law.com

21

Mary Dillon, WSBA #50727 bdillon@pt-law.com

22 Attorneys for Plaintiff

STIPULATION AND MOTION FOR APPROVAL OF SETTLEMENT NO. 4:18-cv-05071-RMP

2

ATTORNEY GENERAL OF WASHINGTON Corrections Division

PO Box 40116

Olympia, WA 98504-0116

(360) 586-1445

Case 4:18-cv-05071-RMP ECF No. 24 filed 06/27/19 PageID.164 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I certify that on the date below I caused to be electronically filed the

3 foregoing STIPULATION AND MOTION FOR APPROVAL OF

4 SETTLEMENT with the Clerk of the Court using the CM/ECF system which

5 will send notification of such filing to the following:

6

David R. Carlson:

davidc@dr-wa.org

7

Heather Lynn McKimmie:

heatherm@dr-wa.org

8

Rachael E. Seevers:

rachaels@dr-wa.org

9

Andrew Sean Biviano:

abiviano@pt-law.com

10

Breean Lawrence Beggs:

bbeggs@pt-law.com

11

Mary Elizabeth Dillon:

bdillon@pt-law.com

12

13

I declare under penalty of perjury under the laws of the United States of

14 America that the foregoing is true and correct.

15

EXECUTED this 27th day of June, 2019, at Olympia, Washington.

16

s/ Tera Linford

TERA LINFORD

17

Legal Assistant

Corrections Division

18

PO BOX 40116

Olympia WA 98504-0116

19

360-586-1445

Tera.Linford@atg.wa.gov 20

21

22

STIPULATION AND MOTION FOR APPROVAL OF SETTLEMENT NO. 4:18-cv-05071-RMP

3

ATTORNEY GENERAL OF WASHINGTON Corrections Division

PO Box 40116

Olympia, WA 98504-0116

(360) 586-1445

 
 Case 4:18-cv-05071-RMP ECF No. 25 filed 07/01/19 PageID.194 Page 1 of 2

1

2

FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

3

Jul 01, 2019

4

SEAN F. MCAVOY, CLERK

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF WASHINGTON

7 DISABILITY RIGHTS
8 WASHINGTON,

NO: 4:18-CV-5071-RMP

9

10

v.

Plaintiff,

ORDER OF DISMISSAL WITH PREJUDICE

11 JAY INSLEE, Governor, State of Washington; STEPHEN SINCLAIR,
12 Secretary, Washington State Department of Corrections;
13 DONALD R. HOLBROOK, Superintendent, Washington State
14 Penitentiary,

15

Defendants.

16

17

BEFORE THE COURT is the Stipulated Motion to Dismiss Defendant Jay

18 Inslee, ECF No. 23. Having reviewed the Stipulation and the record, the Court finds

19 good cause to grant dismissal. Accordingly, IT IS HEREBY ORDERED:

20

1. The Stipulated Motion to Dismiss Defendant Jay Inslee, ECF No. 23, is

21

GRANTED.

ORDER OF DISMISSAL WITH PREJUDICE ~ 1

Case 4:18-cv-05071-RMP ECF No. 25 filed 07/01/19 PageID.195 Page 2 of 2

1

2. Plaintiff’s Complaint is dismissed with prejudice and without fees or costs

2

to any party as to Defendant Jay Inslee only.

3

3. All other claims against all other defendants remain pending.

4

IT IS SO ORDERED. The District Court Clerk is directed to enter this

5 Order, enter judgment of dismissal with prejudice, terminate Defendant Jay Inslee

6 as a defendant in this matter, provide copies to counsel, and close this case.

7

DATED July 1, 2019.

8

s/ Rosanna Malouf Peterson

9

ROSANNA MALOUF PETERSON

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

ORDER OF DISMISSAL WITH PREJUDICE ~ 2

 
 Case 4:18-cv-05071-RMP ECF No. 27 filed 07/01/19 PageID.197 Page 1 of 2

1

2

FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

3

Jul 01, 2019

4

SEAN F. MCAVOY, CLERK

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF WASHINGTON

7 DISABILITY RIGHTS WASHINGTON,
8 Plaintiff,
9 v.
10 JAY INSLEE, Governor, State of
11 Washington; STEPHEN SINCLAIR, Secretary, Washington State
12 Department of Corrections; DONALD R. HOLBROOK,
13 Superintendent, Washington State Penitentiary,
14 Defendants.
15

NO: 4:18-CV-5071-RMP
ORDER GRANTING STIPULATED MOTION FOR APPROVAL OF SETTLEMENT

16

This matter is before the Court on the Parties’ Stipulation and Motion for

17 Approval of Settlement. ECF No. 24. Having reviewed the parties’ Stipulation

18 and Motion, as well as the attached Final Settlement Agreement, ECF No. 24-1,

19 , the Court GRANTS the Motion, ECF No. 24, and ORDERS AS FOLLOWS:

20

1. The Court APPROVES the Parties’ Final Settlement Agreement,

21 and incorporates it into this Order as an attachment;
ORDER GRANTING STIPULATED MOTION FOR APPROVAL OF SETTLEMENT ~ 1

Case 4:18-cv-05071-RMP ECF No. 27 filed 07/01/19 PageID.198 Page 2 of 2

1

2. The parties shall abide by the Final Settlement Agreement at ECF

2 No. 24-1.

3

3. The Court will retain jurisdiction to enforce the substantive terms of

4 Section II (D)(1) of the Agreement for thirty (30) months following entry of this

5 Order; and

6

4. Absent an order extending the term of the Agreement pursuant to

7 Section II (F)(3), thirty (30) months from the entry of this Order, the Court’s

8 jurisdiction to enforce the Agreement shall end, the Agreement will terminate, and

9 the Court shall dismiss the case with prejudice upon presentation of an order to that

10 effect.

11

IT IS SO ORDERED. The District Court Clerk is directed to enter this

12 Order and provide copies to counsel.

13

DATED July 1, 2019.

14

s/ Rosanna Malouf Peterson

15

ROSANNA MALOUF PETERSON

United States District Judge

16

17

18

19

20

21

ORDER GRANTING STIPULATED MOTION FOR APPROVAL OF SETTLEMENT ~ 2