U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:19-cv-00635-TSZ

Doe v. Fairfax Behavioral Health Assigned to: Judge Thomas S. Zilly Cause: 42:12112 Americans with Disabilities Act

Date Filed: 04/30/2019 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff

Jane Doe

represented by Shelby R. Smith HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2ND AVENUE STE 2000 SEATTLE, WA 98101 206-268-9370 Email: shelby@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacie Berger Siebrecht DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: stacies@dr-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2ND AVENUE STE 2000 SEATTLE, WA 98101 206-623-7292 Fax: 206-623-0594 Email: steve@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Doe
Plaintiff H.S. by and trhough his guardian,

Alexa Helen Polaski DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Email: alexap@dr-wa.org TERMINATED: 09/04/2019
Todd Harris Carlisle DISABILITY RIGHTS WASHINGTON 315 5TH AVE S STE 850 SEATTLE, WA 98104 206-324-1521 Fax: 206-957-0729 Email: toddc@dr-wa.org ATTORNEY TO BE NOTICED
represented by Shelby R. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacie Berger Siebrecht (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Helen Polaski (See above for address) TERMINATED: 09/04/2019
Todd Harris Carlisle (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Shelby R. Smith (See above for address)

individually and on behalf of all others similarly situated
Plaintiff Jane Doe 2 Plaintiff Jane Doe 3 Plaintiff Jane Doe 4 Plaintiff John Doe 2 Plaintiff N.B.
V. Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacie Berger Siebrecht (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Helen Polaski (See above for address) TERMINATED: 09/04/2019
Todd Harris Carlisle (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Fairfax Behavioral Health TERMINATED: 06/19/2019

represented by Benjamin J Stone LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 THIRD AVE STE 2700 SEATTLE, WA 98101 206-436-2020 Fax: 206-436-2030 Email: benjamin.stone@lewisbrisbois.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma P Pelkey LEWIS BRISBOIS BISGAARD & SMITH LLP (PORTLAND) 888 SW 5TH AVE SUITE 900 PORTLAND, OR 97204 971-712-2800 Fax: 971-712-2801 Email: emma.pelkey@lewisbrisbois.com ATTORNEY TO BE NOTICED
Eric J. Neiman LEWIS BRISBOIS BISGAARD & SMITH LLP (PORTLAND) 888 SW 5TH AVE SUITE 900 PORTLAND, OR 97204 971-712-2800 Fax: 971-712-2801 Email: eric.neiman@lewisbrisbois.com ATTORNEY TO BE NOTICED
Ethan A Smith LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 THIRD AVE STE 2700 SEATTLE, WA 98101 206-436-2020 Email:

Defendant
BHC Fairfax Hospital Inc doing business as Fairfax Behavioral Health

ethan.smith@lewisbrisbois.com TERMINATED: 11/06/2019
represented by Benjamin J Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma P Pelkey (See above for address) ATTORNEY TO BE NOTICED
Eric J. Neiman (See above for address) ATTORNEY TO BE NOTICED
Ethan A Smith (See above for address) TERMINATED: 11/06/2019

Date Filed 04/30/2019
05/01/2019 05/01/2019 05/06/2019 05/15/2019
05/16/2019 05/16/2019

# Docket Text

COMPLAINT Class Action Complaint against defendant(s) Fairfax

1

Behavioral Health with JURY DEMAND (Receipt # 0981-5749716)

Attorney Steve W. Berman added to party Jane Doe(pty:pla), filed by

Jane Doe. (Attachments: # 1 Civil Cover Sheet,

# 2 Summons)(Berman, Steve) (Entered: 04/30/2019)

Judge Thomas S. Zilly added. (GT) (Entered: 05/01/2019)

2 Summons Electronically Issued as to defendant Fairfax Behavioral Health. (GT) (Entered: 05/01/2019)

3 AFFIDAVIT of Service of Summons and Complaint on Fairfax Behavioral Health on 5/3/2019, filed by Plaintiff Jane Doe. (Berman, Steve) (Entered: 05/06/2019)

4 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 7/15/2019, FRCP 26f Conference Deadline is 7/1/2019, Initial Disclosure Deadline is 7/15/2019, by Judge Thomas S. Zilly. (KD) (Entered: 05/15/2019)

5 NOTICE of Appearance by attorney Eric J. Neiman on behalf of Defendant Fairfax Behavioral Health. (Neiman, Eric) (Entered: 05/16/2019)

Attorneys Benjamin J Stone, Ethan A Smith for Fairfax Behavioral Health added; per 5 Notice of Appearance. (SWT) (Entered: 05/17/2019)

05/20/2019 05/20/2019 05/24/2019 06/19/2019
06/19/2019 07/03/2019 07/03/2019 07/15/2019 07/31/2019

6 CORPORATE DISCLOSURE STATEMENT identifying Corporate Parent BHC Fairfax Hospital for Fairfax Behavioral Health. Filed pursuant to Fed.R.Civ.P 7.1. Filed by Fairfax Behavioral Health (Neiman, Eric) (Entered: 05/20/2019)

7 Unopposed MOTION for Extension of Time to File Answer , filed by Defendant Fairfax Behavioral Health. (Attachments: # 1 Proposed Order Granting Defendant's Unopposed Motion for Extension of Time) Noting Date 5/20/2019, (Neiman, Eric) (Entered: 05/20/2019)

MINUTE ORDER granting defendant's 7 Unopposed Motion for

8

Extension. The deadline for defendant to file a responsive motion or

pleading is EXTENDED to 6/21/2019. Authorized by Judge Thomas

S. Zilly. (SWT) (Entered: 05/24/2019)

9 AMENDED COMPLAINT against defendant(s) BHC Fairfax Hospital, Inc. d/b/a Fairfax Behaviorial Health with JURY DEMAND Attorney Steve W. Berman added to party John Doe(pty:pla), Attorney Steve W. Berman added to party H.S., by and through his guardian(pty:pla), filed by Jane Doe, John Doe, H.S., by and through his guardian.(Berman, Steve) (Entered: 06/19/2019)

Attorneys Shelby R. Smith, Alexa Helen Polaski, Stacie Berger Siebrecht for all plaintiffs added; per 9 Amended Complaint. (SWT) (Entered: 06/20/2019)

10 ANSWER to 9 Amended Complaint, with JURY DEMAND by BHC Fairfax Hospital Inc.(Neiman, Eric) (Entered: 07/03/2019)

Attorneys Benjamin J Stone, Ethan A Smith for BHC Fairfax Hospital Inc added; per 10 Answer to Amended Complaint. (SWT) (Entered: 07/07/2019)

11 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5. Filed by Plaintiffs Jane Doe, John Doe, H.S..(Berman, Steve) (Entered: 07/15/2019)

MINUTE ORDER SETTING TRIAL AND RELATED DATES.

12

Length of Trial: 5 Days; Jury Trial is set for 2/8/2021 before Judge

Thomas S. Zilly. Discovery on class certification issues to be

completed by 1/20/2020, Any motions related to class certification

must be filed by 3/19/2020, Joinder of Parties due by 5/14/2020,

Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by

6/18/2020, Motions related to expert witnesses due by 9/17/2020, All

remaining discovery completed by 7/16/2020, Dispositive motions due

by 9/10/2020, Any motions for leave to amend pleadings due by

5/14/2020, Motions in Limine due by 12/17/2020, Pretrial Order due

by 1/22/2021, Pretrial Conference set for 1/29/2021 at 01:30 PM,

Trial briefs/Proposed voir dire/jury instructions due by 1/22/2021.

Authorized by Judge Thomas S. Zilly. (SWT) (Entered: 07/31/2019)

09/04/2019 09/05/2019 10/11/2019 10/23/2019 11/01/2019 11/01/2019
11/01/2019 11/01/2019 11/01/2019
11/06/2019

13 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Alexa Helen Polaski for Plaintiffs Jane Doe, John Doe, H.S.. (Polaski, Alexa) (Entered: 09/04/2019)

14 NOTICE of Appearance by attorney Todd Harris Carlisle on behalf of Plaintiffs Jane Doe, John Doe, H.S.. (Carlisle, Todd) (Entered: 09/05/2019)

15 Stipulated MOTION for Protective Order , filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. Noting Date 10/11/2019, (Stone, Benjamin) (Entered: 10/11/2019)

STIPULATED PROTECTIVE ORDER re parties' 15 Stipulated

16

MOTION. Signed by Judge Thomas S. Zilly. (SWT) (Entered:

10/23/2019)

17 MOTION to Seal , filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. (Attachments: # 1 Proposed Order) Noting Date 11/22/2019, (Neiman, Eric) (Entered: 11/01/2019)

18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint , filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/22/2020 12/13/2019 11/22/2019, (Neiman, Eric) Modified on 11/26/2019 (MW). Modified on 2/10/2020 (MW). (Entered: 11/01/2019)

19 DECLARATION of Michele Mendel filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Neiman, Eric) (Entered: 11/01/2019)

20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ; by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/22/2019, (Neiman, Eric) (Entered: 11/01/2019)

21 SEALED DOCUMENT Declaration of Michele Mendel by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 17 MOTION to Seal , 20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ; (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Neiman, Eric) (Entered: 11/01/2019)

22 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Ethan A Smith for Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. (Neiman, Eric) (Entered: 11/06/2019)

11/12/2019 11/14/2019
11/25/2019 12/09/2019 12/09/2019 12/13/2019 01/09/2020

23 NOTICE that the following is RE-NOTED: 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint . Filed by Defendant BHC Fairfax Hospital Inc. Noting Date 12/6/2019, (Neiman, Eric) (Entered: 11/12/2019)
24 MINUTE ORDER granting Defendant's 17 Motion to Seal. The following materials shall remain under seal: (i) the unredacted version of defendant's motion, docket no. 20 , to deny class certification and strike class allegations; and (ii) the unredacted version of the declaration of Michele Mendel and the exhibits thereto, docket no. 21 . The unredacted and redacted versions of defendant's motion to deny class certification and strike class allegations, docket nos. 20 and 18 , respectively, are both noted, albeit because the movant recently renoted the redacted version, see Notice (docket no. 23 ), the different versions of the motion now have different noting dates. The Clerk is directed to terminate the unredacted version of the motion, docket no. 20 , as duplicative. In the future, if a party files a motion under seal and a redacted version of the motion for public view, counsel shall assign a noting date to only the redacted version to avoid unnecessary duplication of the motion on the Court's docket. Authorized by Judge Thomas S. Zilly.(TH) (Entered: 11/14/2019)
25 NOTICE that the following is RE-NOTED: 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint . Filed by Defendant BHC Fairfax Hospital Inc. Noting Date 12/13/2019, (Neiman, Eric) (Entered: 11/25/2019)
26 RESPONSE, by Plaintiffs Jane Doe, John Doe, H.S., to 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint , 20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ;. Oral Argument Requested. (Berman, Steve) (Entered: 12/09/2019)
27 DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint , 20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ; (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Berman, Steve) (Entered: 12/09/2019)
28 REPLY, filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, TO RESPONSE to 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint (Neiman, Eric) (Entered: 12/13/2019)
29 MOTION for Extension of Time Plaintiffs' Motion for Extension of Class Certification Schedule, filed by Plaintiffs Jane Doe, John Doe,

01/09/2020
01/15/2020 01/17/2020 01/17/2020 02/10/2020

H.S.. (Attachments: # 1 Proposed Order) Noting Date 1/17/2020, (Berman, Steve) (Entered: 01/09/2020)

30 DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 29 MOTION for Extension of Time Plaintiffs' Motion for Extension of Class Certification Schedule (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Berman, Steve) (Entered: 01/09/2020)

31 RESPONSE, by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, to 29 MOTION for Extension of Time Plaintiffs' Motion for Extension of Class Certification Schedule. (Neiman, Eric) (Entered: 01/15/2020)

32 REPLY, filed by Plaintiffs Jane Doe, John Doe, H.S., TO RESPONSE to 29 MOTION for Extension of Time Plaintiffs' Motion for Extension of Class Certification Schedule (Berman, Steve) (Entered: 01/17/2020)

33 Supplemental DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 29 MOTION for Extension of Time Plaintiffs' Motion for Extension of Class Certification Schedule (Attachments: # 1 Exhibit 1)(Berman, Steve) (Entered: 01/17/2020)

MINUTE ORDER: The motion to deny class certification and strike

34

class allegations, docket no. 18 , brought by defendant BHC Fairfax

Hospital, Inc. is DEFERRED and RENOTED to 5/22/2020. Plaintiffs

will be permitted to file a supplemental response, not to exceed ten

(10) pages in length, by 5/18/2020. Any supplemental reply, not to

exceed five (5) pages in length, shall be filed by the new noting date.

Plaintiffs' motion to extend certain deadlines, docket no. 29 , is

GRANTED. The deadline for completing discovery on class

certification issues is EXTENDED from 1/20/2020, to 3/2/2020, and

the deadline for filing any motion for class certification is

EXTENDED from 3/19/2020, to 4/30/2020. Any motion for class

certification shall be noted for 5/22/2020, and will be considered

together with Fairfax's motion to deny class certification and strike

class allegations.

The deadlines for joining additional parties and for filing any motions

for leave to amend pleadings are EXTENDED from 5/14/2020, to

5/28/2020. All other dates and deadlines set forth in the Minute Order

04/30/2020

Setting Trial and Related Dates, docket no. 12 , shall remain in full force and effect. Authorized by Judge Thomas S. Zilly.(MW) (Entered: 02/10/2020)
35 MOTION to Certify Class Plaintiffs' Motion for Class Certification, filed by Plaintiffs Jane Doe, John Doe, H.S.. (Attachments:

04/30/2020
04/30/2020 04/30/2020 05/14/2020 05/18/2020

# 1 Proposed Order) Noting Date 5/22/2020, (Berman, Steve) (Entered: 04/30/2020)

36 DECLARATION of Steve W. Berman filed by Plaintiffs Jane Doe, John Doe, H.S. re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit 1 (FBH Policy & Procedure), # 2 Exhibit 2 (Def's Amended Resp. to First ROGs & RFPs), # 3 Exhibit 3 (FBH Skin Assessment Policy), # 4 Exhibit 4 (FBH Search for Contraband Policy), # 5 Exhibit 5 (Excerpts of Graham Dep.), # 6 Exhibit 6 (Eastern & Western State Hospital Search & Contraband Policy), # 7 Exhibit 7 (Behavioral Health Admin. Search Policy Committed Under RCW 10.77), # 8 Exhibit 8 (PS Academy Powerpoint), # 9 Exhibit 9 (Excerpts of Graham 30(b)(6) Dep.), # 10 Exhibit 10 (Prohibited Items & Belongings), # 11 Exhibit 11 (Safety Training - Searches & Patient Belongings), # 12 Exhibit 12 (Findings of WSDOH Investigation) - Fairfax Kirkland Location, # 13 Exhibit 13 (Findings of WSDOH Investigation - Fairfax Everett Location), # 14 Exhibit 14 (DOH Investigation of Fairfax Kirkland), # 15 Exhibit 15 (Fairfax Health Policy & Procedure), # 16 Exhibit 16 (Fairfax Position Description for Nurse Educator), # 17 Exhibit 17 (Hagens Berman Sobol Shapiro LLP Resume))(Berman, Steve) (Entered: 04/30/2020)

37 DECLARATION of Todd Carlisle filed by Plaintiffs Jane Doe, John Doe, H.S. re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Berman, Steve) (Entered: 04/30/2020)

38 DECLARATION of Amanda C McGill, MSN, BSN, RN filed by Plaintiffs Jane Doe, John Doe, H.S. re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit Appendix A, # 2 Exhibit Appendix B)(Berman, Steve) (Entered: 04/30/2020)

39 PROPOSED ORDER (Unsigned) Stipulation & Order to Extend Class Certification Schedule & Certain Pre-Trial Deadlines (Neiman, Eric) (Entered: 05/14/2020)

MINUTE ORDER: Pursuant to the parties' stipulation, docket no. 39 ,

40

the pending cross-motions to strike class allegations, docket no. 18 ,

and to certify a class, docket no. 35 , are RENOTED to 6/5/2020. The

briefing schedule is adjusted as follows:

(a) Plaintiffs' supplemental response to the motion to strike class

allegations and defendant's response to the motion to certify a class are

DUE on 6/1/2020; and

(b) Defendant's supplemental reply in support of the motion to strike

class allegations and plaintiffs' reply in support of the motion to certify

a class are DUE on the new noting date.

05/28/2020 06/01/2020 06/01/2020 06/01/2020
06/01/2020

Pursuant to the parties' stipulation, docket no. 39 , the deadline for disclosure of expert testimony is EXTENDED from 6/2/2020, to 6/30/2020, and the deadline for filing motions relating to discovery is EXTENDED from 6/18/2020, to 7/9/2020. The Court DEFERS ruling on whether to extend the other deadlines in this matter in the manner set forth in the parties' stipulation. Authorized by Judge Thomas S. Zilly. (MW) (Entered: 05/18/2020)
41 MOTION to Amend 9 Amended Complaint,,Plaintiffs' Motion for Leave to File Second Amended Complaint, filed by Plaintiffs Jane Doe, John Doe, H.S.. (Attachments: # 1 Exhibit A (Redline of [Proposed] Second Amended Complaint), # 2 Proposed Order) Noting Date 6/12/2020, (Berman, Steve) (Entered: 05/28/2020)
42 RESPONSE, by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, to 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification. (Neiman, Eric) (Entered: 06/01/2020)
43 RESPONSE, by Plaintiffs Jane Doe, John Doe, H.S., to 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint , 20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ;. (Berman, Steve) (Entered: 06/01/2020)
44 DECLARATION of Shelby R. Smith in Support of Plaintiffs' Supplemental Response to Fairfax's Motion to Deny Class Certification & Strike Class Allegations in Plaintiffs' Amended Complaint filed by Plaintiffs Jane Doe, John Doe, H.S. re 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint , 20 SEALED MOTION to Deny Class Certification and Strike Class Allegations in Amended Complaint; re 17 MOTION to Seal ; (Attachments: # 1 Exhibit A (Fairfax 2017-2019 Policies & Training Materials), # 2 Exhibit B (Fairfax 2017-2019 Visitor's Policies), # 3 Exhibit C (Fairfax 2019 Skin Assessment Policy), # 4 Exhibit D (Additional Training Materials))(Berman, Steve) (Entered: 06/01/2020)
45 DECLARATION of Eric Neiman ISO Defendant's Opposition to Plaintiff's Motion for Class Certification - DKT 42 filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit Exhibit A to Declaration of Eric Neiman, # 2 Exhibit Exhibit B to Declaration of Eric Neiman, # 3 Exhibit Exhibit C to Declaration of Eric Neiman, # 4 Exhibit Exhibit D to Declaration of Eric Neiman, # 5 Exhibit Exhibit E to Declaration of Eric Neiman, # 6 Exhibit Exhibit F to Declaration of Eric Neiman, # 7 Exhibit Exhibit G to Declaration of Eric Neiman,

06/01/2020
06/01/2020 06/05/2020 06/05/2020 06/05/2020
06/05/2020 06/08/2020 06/08/2020

# 8 Exhibit Exhibit H to Declaration of Eric Neiman, # 9 Exhibit Exhibit I to Declaration of Eric Neiman, # 10 Exhibit Exhibit J to Declaration of Eric Neiman, # 11 Exhibit Exhibit K to Declaration of Eric Neiman)(Neiman, Eric) (Entered: 06/01/2020)
46 DECLARATION of Declaration of Rebecca Puchkors ISO Defendant's Opposition to Plaintiff's Motion for Class Certification DKT 42 filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit Exhibit A to Declaration of Rebecca Puchkors, # 2 Exhibit Exhibit B to Declaration of Rebecca Puchkors)(Neiman, Eric) (Entered: 06/01/2020)
47 PROPOSED ORDER (Unsigned) re 42 Response to Motion re Defendant's Opposition to Plaintiff's Motion for Class Certification DKT 42 (Neiman, Eric) (Entered: 06/01/2020)
48 REPLY, filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, TO RESPONSE to 18 MOTION Defendant's Motion to Deny Class Certification & Strike Class Allegations in Amended Complaint (Neiman, Eric) (Entered: 06/05/2020)
49 REPLY, filed by Plaintiffs Jane Doe, John Doe, H.S., TO RESPONSE to 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Berman, Steve) (Entered: 06/05/2020)
50 DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Attachments: # 1 Exhibit 1 (Plan of Correction), # 2 Exhibit 2 (Jane Doe Dep. Excerpts), # 3 Exhibit 3 (John Doe Dep. Excerpts), # 4 Exhibit 4 (H.S. Dep. Excerpts))(Berman, Steve) (Entered: 06/05/2020)
51 DECLARATION of Nicole Dipzinski, LICSW, MSW, M.DIV., filed by Plaintiffs Jane Doe, John Doe, H.S. re 35 MOTION to Certify Class Plaintiffs' Motion for Class Certification (Berman, Steve) (Entered: 06/05/2020)
52 RESPONSE, by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, to 41 MOTION to Amend 9 Amended Complaint,,Plaintiffs' Motion for Leave to File Second Amended Complaint. (Neiman, Eric) (Entered: 06/08/2020)
53 DECLARATION of Eric Neiman ISO Opposition to plaintiffs' motion for leave to file second amended complaint filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 41 MOTION to Amend 9 Amended Complaint,,Plaintiffs' Motion for Leave to File Second Amended Complaint (Attachments: # 1 Exhibit Exhibit A to Declaration of Eric Neiman, # 2 Complaint Exhibit B to Declaration of Eric Neiman, # 3 Exhibit Exhibit C to Declaration of Eric Neiman,

06/12/2020 06/12/2020 06/18/2020 06/18/2020 06/22/2020 06/22/2020 06/26/2020 07/01/2020

# 4 Exhibit Exhibit D to Declaration of Eric Neiman)(Neiman, Eric) (Entered: 06/08/2020)

54 REPLY, filed by Plaintiffs Jane Doe, John Doe, H.S., TO RESPONSE to 41 MOTION to Amend 9 Amended Complaint,,Plaintiffs' Motion for Leave to File Second Amended Complaint (Berman, Steve) (Entered: 06/12/2020)

55 DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 41 MOTION to Amend 9 Amended Complaint,,Plaintiffs' Motion for Leave to File Second Amended Complaint (Berman, Steve) (Entered: 06/12/2020)

56 MOTION for Extension of Time Plaintiffs' Motion for Extension of the Deadline for Disclosure of Expert Testimony, filed by Plaintiffs Jane Doe, John Doe, H.S.. (Attachments: # 1 Proposed Order) Noting Date 6/26/2020, (Berman, Steve) (Entered: 06/18/2020)

57 DECLARATION of Shelby R. Smith filed by Plaintiffs Jane Doe, John Doe, H.S. re 56 MOTION for Extension of Time Plaintiffs' Motion for Extension of the Deadline for Disclosure of Expert Testimony (Berman, Steve) (Entered: 06/18/2020)

58 RESPONSE, by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health, to 56 MOTION for Extension of Time Plaintiffs' Motion for Extension of the Deadline for Disclosure of Expert Testimony. (Neiman, Eric) (Entered: 06/22/2020)

59 DECLARATION of Eric J. Neiman filed by Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health re 56 MOTION for Extension of Time Plaintiffs' Motion for Extension of the Deadline for Disclosure of Expert Testimony (Attachments: # 1 Exhibit A)(Neiman, Eric) (Entered: 06/22/2020)

60 REPLY, filed by Plaintiffs Jane Doe, John Doe, H.S., TO RESPONSE to 56 MOTION for Extension of Time Plaintiffs' Motion for Extension of the Deadline for Disclosure of Expert Testimony (Attachments: # 1 Proposed Order)(Berman, Steve) (Entered: 06/26/2020)

MINUTE ORDER granting Plaintiffs' 41 Motion to Amend. Plaintiffs

61

shall electronically file their Second Amended Complaint within seven

(7) days of the date of this Minute Order, provided that, in advance of

such filing, plaintiffs revise their Second Amended Complaint to make

clear that only Jane Doe 1, John Doe 1, and H.S. assert claims on

behalf of a putative class. Defendant's responsive pleading or motion

shall be due within twenty-one (21) days after the Second Amended

Complaint is filed. Plaintiffs' motion, docket no. 56 , to partially

extend the expert disclosure deadline is GRANTED, and the deadline

for disclosure of damages expert testimony is EXTENDED to August

14, 2020. Any rebuttal expert evidence shall be due as set forth in

Federal Rule of Civil Procedure 26(a)(2)(D)(ii). Defendant's response,

07/07/2020
07/28/2020 08/06/2020 08/10/2020

docket no. 58 , is treated as a cross-motion to extend additional deadlines, as to which plaintiffs have already replied, and is DEFERRED pending the Court's ruling on the parties' cross-motions concerning class certification. In connection with the cross-motions concerning class certification, the Court will consider the proposed class definition set forth in plaintiffs' Second Amended Complaint. This proposed class definition has been addressed in the parties' briefing, and the parties shall not submit any further materials regarding class certification unless requested by the Court. Authorized by Judge Thomas S. Zilly. (TH) (Entered: 07/01/2020)

62 Second AMENDED COMPLAINT [Leave to Amend Granted on July 1, 2020, Dkt. No. 61] against defendant(s) BHC Fairfax Hospital Inc with JURY DEMAND Attorney Steve W. Berman added to party Jane Doe 2(pty:pla), Attorney Steve W. Berman added to party John Doe 2(pty:pla), Attorney Steve W. Berman added to party N.B.(pty:pla), Attorney Steve W. Berman added to party Jane Doe 3(pty:pla), Attorney Steve W. Berman added to party Jane Doe 4(pty:pla), filed by John Doe, Jane Doe, H.S., Jane Doe 2, Jane Doe 3, Jane Doe 4, John Doe 2, N.B..(Berman, Steve) (Entered: 07/07/2020)

63 ANSWER to 62 Amended Complaint,, with JURY DEMAND by BHC Fairfax Hospital Inc, Fairfax Behavioral Health.(Neiman, Eric) (Entered: 07/28/2020)

64 NOTICE of Appearance by attorney Emma P Pelkey on behalf of Defendants BHC Fairfax Hospital Inc, Fairfax Behavioral Health. (Pelkey, Emma) (Entered: 08/06/2020)

ORDER: The Putative Class Representatives' motion for class

65

certification, docket no. 35 , is DENIED, and Fairfax's motion to deny

class certification and strike the class allegations, docket

nos. 18 and 20 , is GRANTED. The class allegations set forth in

Section V of the Second Amended Complaint, docket no. 62 , are

STRICKEN. Plaintiffs' individual claims remain in the case. Fairfax's

motion, docket no. 42 , to strike the declaration of Amanda McGill,

docket no. 38 , is DENIED. Signed by Judge Thomas S. Zilly.(LH)

(Entered: 08/10/2020)

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 Case 2:19-cv-00635-TSZ Document 1 Filed 04/30/19 Page 1 of 22

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UNITED STATES DISTRICT COURT,

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 JANE DOE, individually and on behalf of all other similarly situated,
11 Plaintiff,
12 v.
13 FAIRFAX BEHAVIORAL HEALTH,
14 Defendant.
15

No. ___________________ CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

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TABLE OF CONTENTS

Page

2

I. INTRODUCTION ...............................................................................................................1

3

II. THE PARTIES.....................................................................................................................2

4

III. JURISDICTION AND VENUE ..........................................................................................3

5

IV. FACTS .................................................................................................................................3

6

A. Plaintiff Doe was traumatized by baseless, invasive strip- and cavity-

7

searches. ...................................................................................................................3

8

B. Jane Doe filed grievances and video footage of the incident was destroyed. ..........5

9

C. Fairfax Hospital staff practice indiscriminate cavity searching, strip

searching and video recording of patients in various states of undress. ..................5

10

D. Fairfax Hospital’s invasive search and video monitoring practices are

11

motivated by discriminatory animus........................................................................7

12

E. Fairfax Hospital’s strip search and video monitoring practices have a

disparate impact on survivors of trauma, including Jane Doe. ..............................10

13

V. CLASS ALLEGATIONS ..................................................................................................11

14

VI. CAUSES OF ACTION ......................................................................................................12

15

COUNT I TITLE III OF THE AMERICANS WITH DISABILITIES ACT ...............................12

16

COUNT II ABUSE OF VULNERABLE ADULTS ....................................................................14

17

COUNT III NEGLIGENCE .........................................................................................................15

18

COUNT IV INVASION OF PRIVACY.......................................................................................16

19

COUNT V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...............................17

20

COUNT VI NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ..................................17

21

PRAYER FOR RELIEF ................................................................................................................19

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JURY TRIAL DEMANDED .........................................................................................................20

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CLASS ACTION COMPLAINT - i Case No.
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1

Jane Doe (“Plaintiff”), brings this action individually and on behalf of a class of adult

2 patients of Fairfax Behavioral Health (“Fairfax”) who were indiscriminately strip searched upon

3 arrival and video recorded during strip search and throughout the hospital.

4

I. INTRODUCTION

5

1. It is a violation of the standard of care for a psychiatric hospital to conduct strip

6 searches in the absence of individualized assessments that a patient possesses drugs or weapons.

7

2. It is a violation of the standard of care for a psychiatric hospital to use video

8 monitoring in the room where strip searches are conducted while patients are undressed.

9

3. All inpatient psychiatric patients are entitled to care, treatment and therapies to

10 maintain and improve their health and well-being. Most importantly for individuals with chronic

11 mental illness, inpatient psychiatric patients are entitled to dignity, respect, compassion, and

12 competent care.

13

4. Fairfax has a blanket policy requiring all patients to remove clothing and practice

14 of randomly strip searching patients indiscriminately. The process is video recorded by Fairfax in

15 violation of patient’s privacy.

16

5. No psychiatric hospital in Washington State other than Fairfax permits its staff to

17 arbitrarily conduct strip searches or cavity searches.

18

6. No psychiatric hospital in Washington State other than Fairfax makes and keeps

19 video recordings of patients in various states undress, including areas where strip searches and

20 cavity searches are conducted.

21

7. It is an unfair practice for a person in the operation of a place of public

22 accommodation to fail or refuse to make reasonable accommodation to the known physical,

23 sensory, or mental limitations of a person with a disability. Fairfax’s practice of arbitrarily

24 conducting strip-and-cavity searches of patients suffering from mental illness and use of invasive

25 video monitoring is substantially motivated by discriminatory animus toward people with serious

26 mental health conditions requiring inpatient treatment and restricts those patients from receiving

27 the treatment they present for and are entitled to receive.

28
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8. Fairfax’s blanket policy requiring all patients to remove clothing and practice of

2 indiscriminately strip searching patients and excessive video recording violates the Americans

3 with Disabilities Act, the Washington Law Against Discrimination, Vulnerable Adult statute, and

4 invades of patients’ privacy causing severe emotional distress, physical harm, and economic

5 harm to Plaintiff and the Class, for which Fairfax must be held responsible.

6

II. THE PARTIES

7

9. Plaintiff Jane Doe is a resident of Oak Harbor, Washington and a citizen of the

8 United States.

9

10. Defendant Fairfax Behavioral Health (“Fairfax”) is the largest private provider of

10 inpatient psychiatric services in the state of Washington. Fairfax’s principal place of business is

11 in Kirkland, Washington. Fairfax is a licensed psychiatric hospital that cares for outpatient and

12 inpatients, whether admitted voluntarily or involuntarily.1

13

11. Fairfax operates a 157-bed, standalone psychiatric hospital, located in Kirkland,

14 Washington; composed of six units providing specialized treatment for mental health and co-

15 occurring disorders (concurrent mental illness and substance abuse issues), as well as

16 detoxification services for both adolescents and adults. Fairfax also operates a 30-bed adult

17 general psychiatric unit, located in Everett, Washington on the seventh floor of the Providence

18 Medical Center’s Pacific campus as well as, a 34-bed unit on the campus of Evergreen Health

19 Monroe.

20

12. Fairfax offers primarily inpatient care. For example, in 2016, Fairfax received

21 over 98% of its revenue from inpatient admissions.2 And in 2017, Fairfax received 100% of its

22 revenue from inpatient admission.3

23

13. At all times material hereto, Fairfax employed nurses and other health care

24 providers, whose names are presently unknown, to care for Plaintiff and Class members. All acts

25

1 WASHINGTON STATE DEPARTMENT OF HEALTH, Facility Search, https://fortress.wa.gov/doh/facilitysearch/.

26

2 BHC Fairfax Hospital Inc. Year End Report to the Department of Health, Office of Hospital and Patient Data,

https://www.doh.wa.gov/Portals/1/.../2300/HospPatientData/YearEnd/YE904-2016.xlsx.

27

3 BHC Fairfax Hospital Inc. Year End Report to the Department of Health, Office of Hospital and Patient Data,

https://www.doh.wa.gov/DataandStatisticalReports/HealthcareinWashington/HospitalandPatientData/HospitalFinan
28 cialData/YearEndReports/2017HospitalYearEndReports.

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1 and failures to act by nurses and other health care provides at Fairfax were done within the scope

2 of their employment by Fairfax. At all times material hereto, Fairfax is vicariously liable for the

3 acts/omissions committed by the employees and/or agents working for or on behalf of Fairfax.

4

14. Upon information and belief, Plaintiffs further allege that there may be other

5 nurses, healthcare providers, agents or employees of Fairfax, or other persons or entities whose

6 tortious acts or omissions further contributed to the injuries and damages suffered by Plaintiffs,

7 but whose true and correct identity is not now known to Plaintiffs. Plaintiffs will seek leave of

8 the Court to amend this Complaint to add the names of these persons or entities when their

9 identities become known.

10

III. JURISDICTION AND VENUE

11

15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, because

12 this action arises under the laws of the United States. This Court also has jurisdiction pursuant to

13 the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), because the proposed Class consists

14 of 100 or more members; the amount in controversy exceeds $5,000,000, exclusive of costs and

15 interest; and minimal diversity exists. This Court also has supplemental jurisdiction over the state

16 law claims pursuant to 28 U.S.C. § 1367.

17

16. Venue is proper in this District under 28 U.S.C. § 1391 (a)-(d) because, inter alia,

18 substantial parts of the events or omissions giving rise to the claim occurred in the District and/or

19 a substantial part of property that is the subject of the action is situated in the District.

20

IV. FACTS

21 A. Plaintiff Doe was traumatized by baseless, invasive strip- and cavity-searches.

22

17. On March 2, 2018, Jane Doe presented for inpatient admission to Fairfax Hospital

23 in Kirkland, Washington, a psychiatric hospital, for treatment for her mental illness. At intake,

24 Fairfax staff ordered her to completely undress for a search. Jane Doe has a history of sexual

25 abuse and explained that to the staff member. Nevertheless, she was again ordered to completely

26 undress. Plaintiff was not given a gown or towel to cover up during the search.

27

28
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18. The staff member watched Ms. Doe undress and left the door open where other

2 staff members could see her in various stages of undress—eventually, completely naked except

3 for a small pair of g-string underwear.

4

19. Video cameras installed by Fairfax were present in the hallway, the holding area

5 outside the bathroom, and the room where the strip search was conducted. The cameras recorded

6 Plaintiff in a state of undress and during the events that followed. The footage, however, was

7 destroyed by Fairfax after Ms. Doe began submitting grievances in connection with this search.

8

20. During the search, Ms. Doe started shaking and crying. The staff member

9 demanded that Ms. Doe pull her underwear down to her knees, bend over, squat down, and

10 spread her vagina and behind for a cavity search. The staff member made this demand without

11 documenting the need for an intrusive strip search, or obtaining a clinical determination that one

12 was necessary from a psychiatric professional.

13

21. In response, Ms. Doe began screaming and crying and curled up in a ball on the

14 floor. The staff member then threatened to get a male worker to restrain Ms. Doe—who at this

15 point was still undressed with her underpants around her knees—in order to conduct the cavity

16 search.

17

22. Another female staff member intervened and managed to calm Ms. Doe down a

18 little. The second staff member suggested that Ms. Doe spread her cheeks and walk instead of

19 doing a cavity search. Ms. Doe complied to avoid any potential interaction with male Fairfax

20 staff.

21

23. At no point during this humiliating process did the nurse or anyone at Fairfax

22 attempt to evaluate Ms. Doe’s current safety risk to herself or others. No one asked her any

23 questions about her current thoughts with regard to self-injury or whether she was carrying

24 anything she might use to hurt herself or others.

25

24. At no time during this entire episode did Plaintiff state, imply, or otherwise

26 indicate that she had any current thoughts or intention to hurt herself or anyone else. At no time

27 during this entire period did Plaintiff act in a manner that would have led a reasonable health

28 care professional to believe that there was an immediate risk of harm to Plaintiff or to others.
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25. Although mental health professionals were available at Fairfax to evaluate her at

2 intake, no one evaluated Ms. Doe’s current safety risk by asking her any questions about her

3 current thoughts regarding self-injury or whether she was carrying anything that she might use to

4 hurt herself before demanding a strip search and threatening to get a male worker to conduct the

5 invasive search.

6 B. Jane Doe filed grievances and video footage of the incident was destroyed.

7

26. The next day, Jane Doe tried to find someone to discuss what happened during the

8 invasive strip search but was told there was no one for her to talk to because it was a weekend.

9

27. Finally, someone told her to fill out a grievance form which she did. Over the next

10 five days, she filled out five additional grievance forms. Plaintiff asked to see the policy on

11 searches but Fairfax staff refused to show it to her and Plaintiff was told to “get over it.”

12

28. Video footage of this incident was destroyed after Plaintiff began filing

13 grievances in connection with it.

14

29. Plaintiff’s emotional/mental health continued to decline during her stay at Fairfax.

15 This decline is directly attributable to the humiliating invasion of privacy and bodily autonomy

16 perpetrated by Fairfax and its staff.

17

30. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

18 a result of the March 2, 2018 strip search, Plaintiff experienced severe trauma, nightmares,

19 hopelessness, and greatly increased urges to harm and kill herself. In fact, Plaintiff attempted

20 suicide after her release from Fairfax.

21

31. After leaving Fairfax in March 2018, Plaintiff has been hospitalized three times

22 for inpatient mental health treatment. These hospitalizations were a direct result of the Fairfax’s

23 pattern and practice of conducting strip searches on incoming patients without first performing

24 an individualized risk assessment and video recording.

25 C. Fairfax Hospital staff practice indiscriminate cavity searching, strip searching and video recording of patients in various states of undress.
26 32. Fairfax has a blanket policy requiring all patients to remove their clothing and a
27 practice of randomly strip-searching patients indiscriminately. This process is video recorded by
28
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1 Fairfax in violation of the patient’s privacy. Fairfax uses video cameras in the hall, the holding

2 area outside the bathroom, and the room where the strip searches are conducted. Fairfax makes

3 and keeps these video recordings to protect itself from liability, and not for any legitimate

4 medical reasons or out of concern and care for its patients’ well-being.

5

33. Not only do these practices violate the standard of care for a psychiatric hospital,

6 they have no connection to any legitimate psychiatric purpose. By way of comparison, other

7 hospitals have policies that significantly limit staff members’ ability to conduct a strip-search or

8 a cavity-search. These policies set forth layers of measures before resorting to a strip search. For

9 example, at Eastern State Hospital, a patient must “verbalize a suicidal or homicidal plan with

10 covert or overt messages indicating the means are on his/her person and refuses to give it to

11 staff.”4 A body cavity search requires “credible report that a patient has concealed contraband in

12 a body cavity (e.g. glass in vagina, illegal drugs in rectum).”5 A physician must interview the

13 patient in order to conduct a cavity search, and all viable alternatives to a cavity search, such as

14 x-ray or the patient’s voluntary removal of the object must be eliminated before conducting the

15 search.6 At Western State Hospital, a strip- or cavity-search may only be conducted where there

16 is a “reasonable suspicion a patient possesses restricted items that constitute an immediate threat

17 to life or safety.”7 Western State Hospital staff are required to conduct the least intrusive type of

18 search necessary.8

19

34. Other institutions require privacy safeguards for patients, including a requirement

20 that the searches be conducted in a private room without a camera. At Eastern State Hospital, a

21 strip search requires two staff members of the same sex be present, and that they conduct the

22

23

24

25

4 Contraband Search, Eastern State Hospital Man § 1.39, at 7 (effective June 1993, last reviewed May 2017)

(emphasis added).

26

5 Contraband Search, Eastern State Hospital Man § 1.39, at 8 (effective June 1993, last reviewed May 2017).

27

6 Contraband Search, Eastern State Hospital Man. § 1.39, at 8 (effective June 1993, last reviewed May 2017).

7 Searches, Western State Hospital, Policy 13.06(F) (issued March 2017) (emphasis in original).

28

8 Searches, Western State Hospital, Policy 13.06(A) (issued March 2017).

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1 search as quickly as possible so the patient is not unclothed any longer than is necessary.9 A

2 cavity search must be conducted by a physician and an RN of the same sex as the patient.10

3

35. As yet another layer of protection for patients, other institutions require layers of

4 oversight before a strip- or a cavity- search can be conducted. At Eastern Washington State

5 Hospital, for instance, a physician must order a strip-search. And the hospital’s CEO or designee

6 must authorize a cavity search.11 At Western State Hospital, a written physician’s order is

7 required for either a strip- or a cavity-search.12

8

36. Other institutions furthermore require documentation of the reasons, results, and

9 persons involved in a search.13

10

37. On information and belief, no psychiatric hospital in Washington State other than

11 Fairfax permits its staff to arbitrarily conduct strip searches or cavity searches.

12

38. On information and belief, no psychiatric hospital in Washington State other than

13 Fairfax makes and keeps video recordings of patients in various states of undress.

14 D. Fairfax Hospital’s invasive search and video monitoring practices are motivated by discriminatory animus.
15 39. Stigma about people suffering from mental illness is deeply embedded in social
16 and cultural norms. Such stigma is a baseless, prejudicial attitude that discredits individuals
17 suffering from mental illness, marking them as tainted and devalued.14 Stigma results in
18 discrimination in employment, housing, medical care, and social relationships. Public stigma
19 reflects a larger social and cultural context of negative community-based attitudes, beliefs, and
20 predispositions that shape informal, professional, and institutional responses.15
21

22

23

9 Contraband Search, Eastern State Hospital Man. § 1.39, at 7-8 (effective June 1993, last reviewed May 2017).

24

10 Contraband Search, Eastern State Hospital Man. § 1.39, at 8 (effective June 1993, last reviewed May 2017).

25

11 Contraband Search, Eastern State Hospital Man. § 1.39, at 7-8 (effective June 1993, last reviewed May 2017).

12 Searches, Western State Hospital, Policy 13.06(B)(1), (F) (issued March 2017).

26

13 Searches, Western State Hospital, Policy 13.06(G) (issued March 2017); Contraband Search, Eastern State

Hospital Man. § 1.39, at 3 (effective June 1993, last reviewed May 2017).

27

14 Pescosolido, et. al., A Disease Like Any Other? A Decade of Change in Public Reaction to Schizophrenia,

Depression, and Alcohol Dependence, AM J PSYCHIATRY (2010), 167:1321-1330.

28

15 Id.

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1

40. Individuals with mental illness are subjected to prejudice and discrimination from

2 others (i.e., received stigma), and they may internalize feelings of devaluation (i.e., self-stigma).

3 On a societal level, this stigma has been implicated in low service use and inadequate funding for

4 mental health research and treatment (i.e., institutional stigma).16

5

41. Much of the stigma associated with mental illness results from conflating mental

6 illness with violence. Sensational news reporting on violent crimes committed by people with

7 mental illness, particularly mass shootings, perpetuates the stigma. These reports focus on mental

8 illness, ignoring the fact that most of the violence in society is caused by people without mental

9 illness. This societal bias contributes to the stigma faced by those with a psychiatric diagnosis,

10 which leads to discrimination.17

11

42. “Most people with mental illness are not violent toward others and most violence

12 is not caused by mental illness, but you would never know that by looking at media coverage of

13 incidents,” says Emma E. McGinty, PhD, MS, an assistant professor in the departments of

14 Health Policy and Management and Mental Health at the Bloomberg School. “Despite all of the

15 work that has been done to reduce stigma associated with mental health issues, this portrayal of

16 mental illness as closely linked with violence exacerbates a false perception about people with

17 these illnesses, many of whom live healthy, productive lives.”18

18

43. Although mental health professionals hold more positive attitudes than the general

19 public about people with mental health problems, strong stereotypes persist in both groups.19 In a

20 2014 study of Washington State mental health professionals, many providers held negative

21 attitudes about a hypothetical vignette character with symptoms of schizophrenia—nearly a third

22 said it was likely that this individual would be violent toward others.20 Yet study after study

23

24

16 Id.

17 Id.

25

18 Study: News Stories Often Link Violence With Mental Health Illness, Even Though People With Mental

Health Illness Are Rarely Violent, Johns Hopkins Bloomberg School of Public Health (2016),

26 https://www.jhsph.edu/news/news-releases/2016/study-news-stories-often-link-violence-with-mental-health-llness-

even-though-people-with-mental-health-illness-are-rarely-violent.html.

27

19 Stuber JP, Conceptions of Mental Illness: Attitudes of Mental Health Professionals and the General Public

(2014).

28

20 Id.

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1 confirms that schizophrenia, major depression, or bipolar disorder alone do not predict

2 violence.21 A study from 1998, for example, followed patients released from psychiatric

3 hospitals and found that they were no more prone to violence than other people in their

4 communities unless they also had a substance abuse problem.22 And a 2009 study analyzing the

5 results of the National Epidemiologic Survey on Alcohol and Related Conditions confirmed that

6 serious mental illness is not by itself a predictor of violence.23

7

44. The biases and prejudices held by mental health treatment providers can have a

8 significant negative impact on treatment outcomes and quality of life.24 People with mental

9 disorders engage with mental health professionals at a vulnerable time. Even a small number of

10 professionals engaging in the denigration of people with mental illness or holding low

11 expectations for improvement translates into negative treatment outcomes and a reluctance to

12 seek mental health treatment in the future.25

13

45. Even though studies have shown that up to one-third of mental health

14 professionals in Washington State incorrectly associate serious mental illness with violence,

15 Fairfax has failed to limit the operation of this bias against its patients. Fairfax does not restrict

16 arbitrary searches and invasive monitoring. This allows the discriminatory animus of its staff

17 against people with mental illness to go unchecked. Staff at Fairfax may indiscriminately strip

18 search, cavity search, and video record of patients without any justification, oversight, or

19 documentation.

20

46. Fairfax’s practices—and its failure to limit the discretion of its staff—means that

21 a substantial number of its mental health patients do not have reasonable access to inpatient care

22 for mental health disorders.

23

24

21 Elbogen, Johnson, The Intricate Link Between Violence and Mental Disorder; Results From the National

25 Epidemiologic Survey on Alcohol and Related Conditions, ARCH GEN PSYCHIATRY (2009), 66(2):152-161.
22 MacArthur Community Violence Study (2001), http://www.macarthur.virginia.edu/violence.html.

26

23 Elbogen, Johnson, The Intricate Link Between Violence and Mental Disorder; Results From the National

Epidemiologic Survey on Alcohol and Related Conditions, ARCH GEN PSYCHIATRY (2009), 66(2):152-161.

27

24 Stuber JP, Conceptions of Mental Illness: Attitudes of Mental Health Professionals and the General Public

(2014).

28

25 Id.

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1

47. Fairfax could easily provide reasonable access to care for mental health patients

2 by implementing the safeguards that other institutions already use: (1) a tiered approach that

3 requires additional justification as searches become more invasive, (2) an oversight scheme that

4 requires escalating approval as searches become more invasive; and (3) a requirement that the

5 reasons, results, and persons involved in a search be documented. Fairfax can also easily restrict

6 video monitoring to areas where patients are fully clothed, as do other institutions.

7 E. Fairfax Hospital’s strip search and video monitoring practices have a disparate impact on survivors of trauma, including Jane Doe.
8 48. Trauma is a near universal experience of individuals with behavioral health
9 problems.26 Approximately 90% of those seeking inpatient services are trauma survivors.27
10 49. Retraumatization occurs when patients experience something that makes them
11 feel as though they are undergoing another trauma, such as being involuntarily touched, forced,
12 or held down.28
13 50. All inpatient psychiatric patients are entitled to care, treatment and therapies to
14 maintain and improve their health and well-being. Most importantly for individuals with chronic
15 mental illness, inpatient psychiatric patients are entitled to dignity, respect, compassion, and
16 competent care.
17 51. The practice of requiring psychiatric patients to strip can cause patients with a
18 history of sexual abuse severe anxiety because it triggers memories of prior abuse.
19 52. It is well recognized by mental health professionals that in the absence of an
20 emergency, an individualized assessment should be made by a mental health professional before
21 a strip search is conducted. It is also well recognized by mental health professionals that for
22 some patients, requests or requirements that they strip and be searched can cause turmoil,
23

24

25

26 Trauma-Informed Care, National Council for Behavioral Health (2019), https://www.thenationalcouncil.org/topics/trauma-informed-care/.

26

27 Mueser, Essock, Haines, Wolfe & Xie, Posttraumatic Stress Disorder, Supported Employment, and Outcomes in People with Severe Mental Illness, US National Library of Medicine National Institute of Health

(2004), https://www.ncbi.nlm.nih.gov/pubmed/15616477.

27

28 A Treatment Improvement Protocol: Trauma-Informed Care in Behavioral Health Services, TIP 57,

SAMHSA (2014), http//store.samhsa.gov/product/TIP-57-Trauma-Informed-Care-In-Behavioral-Health-
28 Services/SMA14-4816.

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1 extreme agitation, panic, and exacerbates existing psychiatric conditions including anxiety,

2 depression, and post-traumatic stress disorder.

3

53. Fairfax’s pattern and practice of indiscriminately performing invasive searches of

4 patients and excessive use of unnecessary video recording strip searches and throughout the

5 hospital is negligent, violates the Vulnerable Adult statute and the Washington Law Against

6 Discrimination, and invades patients’ privacy causing severe emotional distress, physical harm,

7 and economic harm to Plaintiff and the Class, for which Fairfax must be held responsible.

8

V. CLASS ALLEGATIONS

9

54. Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(3)

10 and 23(c)(4) on behalf of themselves and the following Class:

11

All adult inpatients of Fairfax Behavioral Health who were

arbitrarily strip- or cavity-searched upon admission and were video

12

recorded throughout the hospital.

13

55. The Class consists of hundreds, of individuals, if not more, making joinder

14 impracticable, in satisfaction of Fed. R. Civ. P. 23(a)(1). The exact size of the Class and the

15 identities of the individual members are ascertainable through records maintained by Fairfax.

16

56. The claims of Plaintiffs are typical of the Class. The claims of the Plaintiff and the

17 Class are based on the same legal theories and arise from the same unlawful pattern and practice

18 of strip searching patients without particularized suspicion and excessive use of video recording

19 throughout the hospital.

20

57. There are many questions of law and fact common to the claims of Plaintiff and

21 the Class, and those questions predominate over any questions that may affect only individual

22 Class Members within the meaning of Fed. R. Civ. P. 23(a)(2) and (c)(4).

23

58. Common questions of fact and law affecting members of the Class include, but

24 are not limited to, the following:

25

a. Whether Fairfax employees fail to provide mental health treatment and

26 deny reasonable accommodations to seriously mentally ill patients who require inpatient

27 treatment by performing strip- and cavity-searches without justification, oversight or

28 documentation.
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1

b. Whether Fairfax’s pattern and practice of performing invasive searches of

2 patients without particularized suspicion violates the Americans with Disabilities Act;

3

c. Whether Fairfax’s pattern and practice of performing invasive searches of

4 patients without particularized suspicion violates the Vulnerable Adult statute;

5

d. Whether Fairfax’s pattern and practice of performing invasive searches of

6 patients without particularized suspicion violates the Washington Law Against Discrimination;

7

e. Whether Fairfax’s use of video cameras in the hall, in the holding area

8 outside the bathroom, and in the room where strip searches are being conducted invades patient

9 privacy; and

10

f. Whether Fairfax’s practice of unjustified, unsupervised, and

11 undocumented strip- and cavity-searches and practice of video-recording patients denies those

12 experiencing mental illness from receiving the treatment they present for and are entitled to

13 receive.

14

59. Absent a class action, most of the members of the Class would find the cost of

15 litigating their claims to be prohibitive and will have no effective remedy. The class treatment of

16 common questions of law and fact is also superior to multiple individual actions or piecemeal

17 litigation in that it conserves the resources of the courts and the litigants and promotes

18 consistency and efficiency of adjudication.

19

60. Plaintiff will fairly and adequately represent and protect the interests of the Class.

20 Plaintiff has retained counsel with substantial experience in prosecuting complex litigation and

21 class actions. Plaintiff and her counsel are committed to vigorously prosecuting this action on

22 behalf of the other respective Class Members, and have the financial resources to do so. Neither

23 Plaintiff nor her counsel has any interests adverse to those of the other members of the Class.

24

VI. CAUSES OF ACTION

25

COUNT I

26

TITLE III OF THE AMERICANS WITH DISABILITIES ACT

27

61. Plaintiff realleges and incorporates by reference the allegations contained in the

28 previous paragraphs.
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1

62. The Americans with Disabilities Act (“ADA”) was passed in 1990 to “provide a

2 clear and comprehensive national mandate for the elimination of discrimination against people

3 with disabilities,” 42 U.S.C. § 12101(b)(1). Congress explicitly defined discrimination to include

4 “over-protective rules and policies,” “failure to make modifications to existing ... practices,” and

5 “segregation, and relegation to lesser services,” 42 U.S.C. § 12101(a)(5).

6

63. When Congress passed the ADA, it intended to “address the major areas of

7 discrimination faced day to day by people with disabilities,” 42 U.S.C. § 12101(b)(4), including

8 in the area of “health services,” 42 U.S.C. § 12101(a)(3).

9

64. Fairfax is a “place of public accommodation” as that term is defined in Title III of

10 the Americans with Disabilities Act, 42 U.S.C. § 12181(7)(F), 28 C.F.R. § 36.104. The ADA

11 prohibits discrimination by a public accommodation against any individual on the basis of

12 disability. 28 C.F.R. § 36.201(a).

13

65. Plaintiff and the class suffer from serious mental health conditions that require

14 inpatient treatment and impair their ability to request accommodations. They are members of a

15 protected class of people with disabilities under the ADA.

16

66. Title III of the ADA prohibits public accommodations from discriminating against

17 individuals with disabilities in the full and equal enjoyment of the goods, services, facilities,

18 privileges, advantages or accommodations of any place of public accommodations, 42 U.S.C.

19 § 12182(a). The definition of discrimination includes “failure to make reasonable modifications

20 in policies, practices, or procedures, when such modifications are necessary to afford such goods,

21 services, facilities, privileges, advantages or accommodations to individuals with disabilities,

22 unless the entity can demonstrate that making such modifications would fundamentally alter the

23 nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C.

24 § 12182(b)(2)(A)(ii).

25

67. Fairfax’s practice of unjustified, unsupervised, and undocumented strip- and

26 cavity-searches denies those experiencing mental illness from receiving the treatment they

27 require and are entitled to receive. Fairfax’s humiliating, unchecked search practices proximately

28 resulted in negative treatment outcomes for Jane Doe and the Class, as well as substantial mental
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1 and physical anguish. These practices are substantially motivated by discriminatory animus

2 towards people with serious mental health conditions requiring inpatient treatment. These

3 practices deliberately required Plaintiff and the class to endure unnecessary hardship in order to

4 access a program or service. That hardship could easily be eliminated by a reasonable

5 accommodation, such as the policies and practices implemented by other institutions set forth in

6 paragraphs 33 through 36 and paragraph 47 of this Complaint. Fairfax has thus failed to provide

7 class members with the reasonable accommodations required by the federal disability statutes,

8 failing to ensure them meaningful access to the benefits to which they are entitled.

9

68. Fairfax’s practice of recording patients during strip- and cavity-searches restricts

10 those experiencing mental illness from receiving the treatment they require and are entitled to

11 receive. Fairfax’s humiliating video recording practices proximately resulted in negative

12 treatment outcomes for Jane Doe and the Class, as well as substantial mental and physical

13 anguish. This practice is substantially motivated by discriminatory animus towards people with

14 serious mental health conditions requiring inpatient treatment. This practice deliberately required

15 Plaintiff and the class to endure unnecessary hardship in order to access a program or service.

16 That hardship could easily be eliminated by a reasonable accommodation, such as a the policies

17 and practices implemented by other institutions set forth in paragraphs 33 through 36 and

18 paragraph 47 of this Complaint. Fairfax has thus failed to provide class members with the

19 reasonable accommodations required by the federal disability statutes, failing to ensure them

20 meaningful access to the benefits to which they are entitled.

21

COUNT II

22

ABUSE OF VULNERABLE ADULTS

23

69. Plaintiff re-alleges and incorporates by reference the allegations contained in the

24 previous paragraphs.

25

70. At all times, Fairfax was required to comply with the Vulnerable Adult statute at

26 RCW 74.34, et seq.

27

71. RCW 74.34.021 defines a “vulnerable adult” as “a person…admitted to any

28 facility.”
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1

72. Fairfax Behavioral Health is a “facility,” as defined in RCW 74.34.020.

2

73. Plaintiff and Class members are vulnerable adults as define under RCW

3 74.34.020.

4

74. Fairfax violated the Vulnerable Adult statute by, among other things, subjecting

5 Plaintiff and Class members to abuse, mental abuse, and/or neglect as defined under RCW

6 74.34.020.

7

75. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiff

8 and Class members were damaged.

9

76. In addition to other remedies available under the law, a vulnerable adult who has

10 been subjected to abuse, mental abuse, and/or neglect either while residing in a facility shall have

11 a cause of action for damages on account of his or her injuries, pain and suffering, and loss of

12 property sustained thereby.

13

77. As a result of Fairfax’s acts and/or omissions described herein, Plaintiff and Class

14 members shall be awarded his or her actual damages, together with the costs of the suit,

15 including a reasonable attorneys’ fee. The term “costs” includes, but is not limited to, the

16 reasonable fees for a guardian, guardian ad litem, and experts, if any, that may be necessary to

17 the litigation of a claim brought under this section.

18

COUNT III

19

NEGLIGENCE

20

78. Plaintiff realleges and incorporates by reference the allegations contained in the

21 previous paragraphs.

22

79. By seeking psychiatric treatment from Fairfax, a special, confidential, and

23 fiduciary relationship between Plaintiffs and Fairfax was created, resulting in Fairfax owing

24 Plaintiffs a duty to use care to ensure their safety and freedom from assault, abuse, and

25 molestation while interacting with their employees, representatives, and/or agents.

26

80. Fairfax had a duty to hire competent, qualified and experienced employees who

27 were knowledgeable and familiar with the proper standards of care of vulnerable adults.

28
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1

81. Fairfax had a duty to train and supervise their employees, agents and other

2 individuals hired by them to provide safe and proper care to vulnerable adults who were either

3 voluntarily admitted or involuntarily committed patients at Fairfax.

4

82. Fairfax violated their duty of care and their duty to act reasonably by, among

5 other things, performing invasive searches of patients without particularized suspicion.

6

83. Fairfax violated their duty of care and their duty to act reasonably by, among

7 other things, using video cameras outside the bathroom, where patients change and in the

8 seclusion room where invasive searches are conducted.

9

84. Fairfax violated their duty of care by, among other things, failing to adequately

10 instruct, monitor, and supervise their employees and agents regarding what searches can be done

11 and with what protections.

12

85. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiff

13 and Class members were damaged.

14

COUNT IV

15

INVASION OF PRIVACY

16

86. Plaintiff re-alleges and incorporates by reference the allegations contained in the

17 previous paragraphs.

18

87. Fairfax uses video cameras in the hall, in holding area outside bathroom, and in

19 the room where the strip searches are conducted.

20

88. Although hospitals can have legitimate reasons to video record patients, Fairfax’s

21 practice violated the standard of care.

22

89. Fairfax intentionally intruded upon Plaintiff and Class members’ solitude,

23 seclusion or private affairs and concerns by recording patients in the hallway, in holding area

24 outside the bathroom, and in the room where strip searches are conducted. This intrusion is

25 highly offensive to reasonable individuals, such as Plaintiff and the Class members, and was

26 totally unwarranted and unjustified constituting an invasion of privacy.

27

90. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiff

28 and Class members were damaged.
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1

COUNT V

2

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

3

91. Plaintiff realleges and incorporates by reference the allegations contained in the

4 previous paragraphs.

5

92. Fairfax’s extreme and outrageous conduct intentionally or recklessly caused

6 severe emotional distress to Plaintiff and the Class members.

7

93. Fairfax acted with intent or recklessness, knowing that the pattern and practice of

8 indiscriminately strip-searching psychiatric patients, many of whom have been sexually and

9 physically abused, would likely cause emotional distress. Additionally, Fairfax acted with intent

10 or recklessness, knowing that the use of video cameras in the area outside the bathroom where

11 patients are required to undress and in the room where strip searches are conducted, would likely

12 cause emotional distress.

13

94. Fairfax’s conduct caused suffering for Plaintiff and Class members at levels that

14 no reasonable person should have to endure.

15

95. As a direct and/or proximate result of Fairfax’s actions, Plaintiff and Class

16 members were damaged.

17

COUNT VI

18

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

19

96. Plaintiff realleges and incorporates by reference the allegations contained in the

20 previous paragraphs.

21

97. Fairfax’s extreme and outrageous conduct caused severe emotional distress to

22 Plaintiff and the Class members.

23

98. Fairfax knew that the pattern and practice of indiscriminately strip searching

24 psychiatric patients, many of whom have been sexually and physically abused, would likely

25 cause emotional distress. Additionally, Fairfax knows that the use of video cameras in the area

26 outside the bathroom where patients are required to undress and in the room where strip searches

27 are conducted, would likely cause emotional distress.

28
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1

99. Fairfax’s conduct caused suffering for Plaintiff and Class members at levels that

2 no reasonable person should have to endure.

3

100. As a direct and/or proximate result of Fairfax’s actions, Plaintiff and Class

4 members were damaged.

5

COUNT VII

6

WASHINGTON LAW AGAINST DISCRIMINATION

7

101. Fairfax Behavioral Health is a place of public accommodation.

8

102. Plaintiff and the class suffer from serious mental health conditions that require

9 inpatient treatment. They are members of a protected class of people with disabilities related to

10 the presence of a mental health disability.

11

103. Under RCW 49.60.030(l)(b), The Washington Law Against Discrimination

12 (“WLAD”) secures the right to "full enjoyment" of any place of public accommodation,

13 including the right to purchase any service or commodity sold by any place of public

14 accommodation "without acts directly or indirectly causing persons of [a protected class] to be

15 treated as not welcome, accepted, desired, or solicited." See RCW 49.60.040(14). Similarly,

16 WLAD prohibits “any person or the person’s agent or employee [from committing] an act which

17 directly or indirectly results in any distinction, restriction, or discrimination” based on a person’s

18 membership in a protected class. RCW 49.60.

19

104. The WLAD protects the customer’s “full enjoyment” of the services and

20 privileges offered in public accommodations. RCW 49.60.030(l)(b). WLAD’s broad definition of

21 "full enjoyment" extends beyond denial of service to include liability for mistreatment that

22 makes a person feel "not welcome, accepted, desired, or solicited." RCW 49.60.040(14).

23

105. WLAD makes it unlawful for “any person or the person’s agent or employee to

24 commit an act” of, among other things, discrimination in a place of public accommodation.

25 RCW 49.60.215. This provision imposes direct liability on employers for the discriminatory

26 conduct of their agents and employees.

27

28
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1

106. It is an unfair practice for a person in the operation of a place of public

2 accommodation to fail or refuse to make reasonable accommodation to the known physical,

3 sensory, or mental limitations of a person with a disability. WAC 162-26-080(1).

4

107. Fairfax’s practice of unjustified, unsupervised, and undocumented strip- and

5 cavity-searches denies those experiencing mental illness from receiving the treatment they

6 present for and are entitled to receive. Fairfax’s humiliating, unchecked search practices

7 proximately resulted in negative treatment outcomes for Jane Doe and the Class, as well as

8 substantial mental and physical anguish. These practices are substantially motivated by

9 discriminatory animus towards people with serious mental health conditions requiring inpatient

10 treatment.

11

108. Fairfax’s practice of recording patients during strip- and cavity-searches restricts

12 those experiencing mental illness from receiving the treatment they present for and are entitled to

13 receive. Fairfax’s humiliating video recording practices proximately resulted in negative

14 treatment outcomes for Jane Doe and the Class, as well as substantial mental and physical

15 anguish. This practice is substantially motivated by discriminatory animus towards people with

16 serious mental health conditions requiring inpatient treatment.

17

PRAYER FOR RELIEF

18

WHEREFORE, Plaintiff, individually and on behalf of all Class members, pray that this

19 Court:

20

A. Certify the Class, name Plaintiff as representative of the Class, and appoint her

21 lawyers as Class Counsel;

22

B. Enter judgment against Fairfax Behavior Health in favor of Plaintiff and the

23 Class;

24

C. Award Plaintiff and the Class members damages for pain and suffering, and

25 compensatory and punitive damages;

26

D. Injunctive relief including preliminary and permanent injunctions restraining

27 Fairfax from indiscriminately strip searching patients and/ or recording strip searches and

28
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1 requiring Fairfax to create protocols for conducting searches that require an individualized

2 assessment of immediate danger to self or others;

3

E. Injunctive relief including preliminary and permanent injunctions restraining

4 Fairfax from recording patients during strip- and cavity-searches and in other areas where

5 patients undress and requiring Fairfax to create protocols controlling the use of video-recording

6 and preservation of video-recordings; and

7

F. Award Plaintiffs their reasonable attorneys’ fees and costs.

8

JURY TRIAL DEMANDED

9

Plaintiffs demand a trial by jury on all issues so triable.

10 Dated: April 30, 2019
11 12 13 14 15 16 17 18

Respectfully submitted,
HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Steve W. Berman Steve W. Berman, WSBA No. 12536
/s/ Shelby R. Smith Shelby R. Smith, WSBA No. 31377 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com shelby@hbsslaw.com

19

/s/ Alexa Polaski

20

Alexa Polaski, WSBA No. 52683

/s/ Stacie Siebrecht

21

Stacie Siebrecht, WSBA No. 29992

Disability Rights Washington

22

315 Fifth Avenue South, Suite 850

Seattle, WA 98104

23

Telephone: (206) 324-1521

24

alexap@dr-wa.org

stacies@dr-wa.org

25 Attorneys for Plaintiffs
26

27

28
CLASS ACTION COMPLAINT - 20 Case No.
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1

HONORABLE THOMAS S. ZILLY

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 JANE DOE, JOHN DOE, and H.S., by and through his guardian, individually and on behalf
11 of all others similarly situated, and JANE DOE 2, JOHN DOE 2, N.B,, JANE DOE 3, and
12 JANE DOE 4, individually,

13

Plaintiffs,

No. 2:19-cv-00635-TSZ SECOND AMENDED CLASS ACTION COMPLAINT

14

v.

15 BHC FAIRFAX HOSPITAL, INC. d/b/a FAIRFAX BEHAVIORAL HEALTH,
16 Defendant.
17

[Leave to Amend Granted on July 1, 2020, Dkt. No. 61] DEMAND FOR JURY TRIAL

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

Page

2

I. INTRODUCTION ...............................................................................................................1

3

II. THE PARTIES.....................................................................................................................2

4

III. JURISDICTION AND VENUE ..........................................................................................4

5

IV. FACTS .................................................................................................................................4

6

A. Plaintiff Jane Doe was traumatized by baseless, invasive strip- and cavity-

7

searches. ...................................................................................................................4

8

B. Plaintiff John Doe was humiliated by baseless, invasive strip- and cavity-

searches. ...................................................................................................................6

9

C. Plaintiff H.S. was traumatized by baseless, invasive strip- and cavity-

10

searches. ...................................................................................................................8

11

D. Plaintiff Jane Doe 2 was traumatized by baseless, invasive strip and cavity

searches. ...................................................................................................................9

12

E. Plaintiff John Doe 2 was traumatized and humiliated by baseless, invasive

13

strip and cavity searches. .......................................................................................11

14

F. Plaintiff N.B. was violated by a baseless and invasive strip search. .....................13

15

G. Plaintiff Jane Doe 3 was traumatized by baseless, invasive strip- and

cavity-searches. ......................................................................................................14

16

H. Plaintiff Jane Doe 4 was traumatized and humiliated by baseless, invasive

17

strip- and cavity-searches.......................................................................................16

18

I. Fairfax Hospital staff practice indiscriminate cavity searching, strip

searching, and video recording of patients in various states of undress. ...............17

19

J. Fairfax Hospital’s invasive search and video monitoring practices are

20

motivated by discriminatory animus......................................................................19

21

K. Fairfax Hospital’s strip search and video monitoring practices have a

disparate impact on survivors of trauma, including Plaintiffs. ..............................22

22

V. CLASS ALLEGATIONS ..................................................................................................23

23

VI. CAUSES OF ACTION ......................................................................................................25

24

COUNT I TITLE III OF THE AMERICANS WITH DISABILITIES ACT ...............................25

25

COUNT II ABUSE OF VULNERABLE ADULTS ....................................................................27

26

COUNT III NEGLIGENCE .........................................................................................................28

27

COUNT IV INVASION OF PRIVACY ......................................................................................29

28

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1 COUNT V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...............................29 2 COUNT VI NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ..................................30 3 PRAYER FOR RELIEF ................................................................................................................32 4 JURY TRIAL DEMANDED .........................................................................................................33 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

All plaintiffs bring this action individually, and plaintiffs Jane Doe, John Doe, and H.S.

2 bring a class action on behalf of all persons who were admitted to BHC Fairfax Hospital, Inc.

3 d/b/a Fairfax Behavioral Health (“Fairfax”) between April 30, 2016, and the date of class

4 certification.

5

I. INTRODUCTION

6

1. It is a violation of the standard of care for a psychiatric hospital to conduct strip

7 searches in the absence of individualized assessments that a patient possesses drugs or weapons.

8

2. It is a violation of the standard of care for a psychiatric hospital to use video

9 monitoring in the room where strip searches are conducted while patients are undressed.

10

3. All inpatient psychiatric patients are entitled to care, treatment, and therapies to

11 maintain and improve their health and well-being. Most importantly for individuals with chronic

12 mental illness, inpatient psychiatric patients are entitled to dignity, respect, compassion, and

13 competent care.

14

4. Fairfax has a blanket policy requiring all adult and teen patients to remove

15 clothing and practice of randomly strip searching adult and teen patients indiscriminately. The

16 process is video recorded by Fairfax in violation of patient’s privacy.

17

5. No psychiatric hospital in Washington State other than Fairfax permits its staff to

18 arbitrarily conduct strip searches or cavity searches.

19

6. No psychiatric hospital in Washington State other than Fairfax makes and keeps

20 video recordings of patients in various states of undress, including areas where strip searches and

21 cavity searches are conducted.

22

7. It is an unfair practice for a person in the operation of a place of public

23 accommodation to fail or refuse to make reasonable accommodation to the known physical,

24 sensory, or mental limitations of a person with a disability. Fairfax’s practice of arbitrarily

25 conducting strip-and-cavity searches of adult and teen patients suffering from mental illness and

26 use of invasive video monitoring is substantially motivated by discriminatory animus toward

27 people with serious mental health conditions requiring inpatient treatment and restricts those

28 patients from receiving the treatment they present for and are entitled to receive.

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1

8. Fairfax’s blanket policy requiring all adult and teen patients to remove clothing

2 and practice of indiscriminately strip searching adult and teen patients and excessive video

3 recording violates the Americans with Disabilities Act, the Washington Law Against

4 Discrimination, Vulnerable Adult statute, and invades the patients’ privacy causing severe

5 emotional distress, physical harm, and economic harm to Plaintiffs and the Class, for which

6 Fairfax must be held responsible.

7

II. THE PARTIES

8

9. Plaintiff Jane Doe is a resident of Oak Harbor, Washington and a citizen of the

9 United States.

10

10. Plaintiff John Doe is a resident of Freeland, Washington and a citizen of the

11 United States.

12

11. Plaintiff H.S. is a resident of Snohomish, Washington and a lawful permanent

13 resident of the United States.

14

12. Plaintiff Jane Doe 2, is a resident of Tacoma, Washington and a citizen of the

15 United States.

16

13. Plaintiff John Doe 2 is a resident of Seattle, Washington and a citizen of the

17 United States.

18

14. Plaintiff N.B. is a resident of Seattle, Washington and a citizen of the United

19 States.

20

15. Plaintiff Jane Doe 3 is a resident of Selah, Washington and a citizen of the United

21 States.

22

16. Plaintiff Jane Doe 4 is a resident of Auburn, Washington and a citizen of the

23 United States.

24

17. Defendant BHC Fairfax Hospital, Inc. d/b/a Fairfax Behavioral Health (“Fairfax”)

25 is the largest private provider of inpatient psychiatric services in the state of Washington.

26

27

28

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1 Fairfax’s principal place of business is in Kirkland, Washington. Fairfax is a licensed psychiatric

2 hospital that cares for outpatient and inpatients, whether admitted voluntarily or involuntarily.1

3

18. Fairfax operates a 157-bed, standalone psychiatric hospital, located in Kirkland,

4 Washington; composed of six units providing specialized treatment for mental health and co-

5 occurring disorders (concurrent mental illness and substance abuse issues), as well as

6 detoxification services for both adults and teens (ages 13-17). Fairfax also operates a 30-bed

7 adult general psychiatric unit, located in Everett, Washington on the seventh floor of the

8 Providence Medical Center’s Pacific campus as well as, a 34-bed unit on the campus of

9 Evergreen Health Monroe.

10

19. Fairfax offers primarily inpatient care. For example, in 2016, Fairfax received

11 over 98% of its revenue from inpatient admissions.2 And in 2017, Fairfax received 100% of its

12 revenue from inpatient admissions.3

13

20. At all times material hereto, Fairfax employed nurses and other health care

14 providers, whose names are presently unknown, to care for Plaintiffs and Class members. All

15 acts and failures to act by nurses and other health care provides at Fairfax were done within the

16 scope of their employment by Fairfax. At all times material hereto, Fairfax is vicariously liable

17 for the acts/omissions committed by the employees and/or agents working for or on behalf of

18 Fairfax.

19

21. Upon information and belief, Plaintiffs further allege that there may be other

20 nurses, healthcare providers, agents or employees of Fairfax, or other persons or entities whose

21 tortious acts or omissions further contributed to the injuries and damages suffered by Plaintiffs,

22 but whose true and correct identity is not now known to Plaintiffs. Plaintiffs will seek leave of

23 the Court to amend this Complaint to add the names of these persons or entities when their

24 identities become known.

25

1 WASHINGTON STATE DEPARTMENT OF HEALTH, Facility Search, https://fortress.wa.gov/doh/facilitysearch/.

26

2 BHC Fairfax Hospital Inc. Year End Report to the Department of Health, Office of Hospital and Patient Data,

https://www.doh.wa.gov/Portals/1/.../2300/HospPatientData/YearEnd/YE904-2016.xlsx.

27

3 BHC Fairfax Hospital Inc. Year End Report to the Department of Health, Office of Hospital and Patient Data,

28

https://www.doh.wa.gov/DataandStatisticalReports/HealthcareinWashington/HospitalandPatientData/HospitalFinan cialData/YearEndReports/2017HospitalYearEndReports.

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1

III. JURISDICTION AND VENUE

2

22. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, because

3 this action arises under the laws of the United States. This Court also has jurisdiction pursuant to

4 the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), because the proposed Class consists

5 of 100 or more members; the amount in controversy exceeds $5,000,000, exclusive of costs and

6 interest; and minimal diversity exists. This Court also has supplemental jurisdiction over the state

7 law claims pursuant to 28 U.S.C. § 1367.

8

23. Venue is proper in this District under 28 U.S.C. § 1391 (a)-(d) because, inter alia,

9 substantial parts of the events or omissions giving rise to the claim occurred in the District and/or

10 a substantial part of property that is the subject of the action is situated in the District.

11

IV. FACTS

12 A. Plaintiff Jane Doe was traumatized by baseless, invasive strip- and cavity-searches.

13

24. On March 2, 2018, Jane Doe presented for inpatient admission to Fairfax Hospital

14 in Kirkland, Washington, a psychiatric hospital, for treatment for her mental illness. At intake,

15 Fairfax staff ordered her to completely undress for a search. Ms. Doe has a history of sexual

16 abuse and explained that to the staff member. Nevertheless, she was again ordered to completely

17 undress. Ms. Doe was not given a gown or towel to cover up during the search.

18

25. The staff member watched Ms. Doe undress and left the door open where other

19 staff members could see her in various stages of undress—eventually, completely naked except

20 for a small pair of G-string underwear.

21

26. Video cameras installed by Fairfax were present in the hallway, the holding area

22 outside the bathroom, and the room where the strip search was conducted. The cameras recorded

23 Ms. Doe in a state of undress and during the events that followed. The footage, however, was

24 destroyed by Fairfax after Ms. Doe began submitting grievances in connection with this search.

25

27. During the search, Ms. Doe started shaking and crying. The staff member

26 demanded that Ms. Doe pull her underwear down to her knees, bend over, squat down, and

27 spread her vagina and behind for a cavity search. The staff member made this demand without

28

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1 documenting the need for an intrusive strip search, or obtaining a clinical determination that one

2 was necessary from a psychiatric professional.

3

28. In response, Ms. Doe began screaming and crying and curled up in a ball on the

4 floor. The staff member then threatened to get a male worker to restrain Ms. Doe—who at this

5 point was still undressed with her underpants around her knees—in order to conduct the cavity

6 search.

7

29. Another female staff member intervened and managed to calm Ms. Doe down a

8 little. The second staff member suggested that Ms. Doe spread her cheeks and walk instead of

9 doing a cavity search. Ms. Doe complied to avoid any potential interaction with male Fairfax

10 staff.

11

30. At no point during this humiliating process did the nurse or anyone at Fairfax

12 attempt to evaluate Ms. Doe’s current safety risk to herself or others. No one asked her any

13 questions about her current thoughts with regard to self-injury or whether she was carrying

14 anything she might use to hurt herself or others.

15

31. At no time during this entire episode did Ms. Doe state, imply, or otherwise

16 indicate that she had any current thoughts or intention to hurt herself or anyone else. At no time

17 during this entire period did Ms. Doe act in a manner that would have led a reasonable health

18 care professional to believe that there was an immediate risk of harm to Ms. Doe or to others.

19

32. Although mental health professionals were available at Fairfax to evaluate her at

20 intake, no one evaluated Ms. Doe’s current safety risk by asking her any questions about her

21 current thoughts regarding self-injury or whether she was carrying anything that she might use to

22 hurt herself before demanding a strip search and threatening to get a male worker to conduct the

23 invasive search.

24

33. The next day, Ms. Doe tried to find someone to discuss what happened during the

25 invasive strip search but was told there was no one for her to talk to because it was a weekend.

26

34. Finally, someone told her to fill out a grievance form which she did. Over the next

27 five days, she filled out five additional grievance forms. Ms. Doe asked to see the policy on

28 searches but Fairfax staff refused to show it to her and Ms. Doe was told to “get over it.”

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1

35. Video footage of this incident was destroyed after Ms. Doe began filing

2 grievances in connection with it.

3

36. Ms. Doe’s emotional/mental health continued to decline during her stay at

4 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

5 autonomy perpetrated by Fairfax and its staff.

6

37. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

7 a result of the March 2, 2018 strip search, Ms. Doe experienced severe trauma, nightmares,

8 hopelessness, and greatly increased urges to harm and kill herself. In fact, Ms. Doe attempted

9 suicide after her release from Fairfax.

10

38. After leaving Fairfax in March 2018, Ms. Doe has been hospitalized three times

11 for inpatient mental health treatment. These hospitalizations were a direct result of the Fairfax’s

12 pattern and practice of conducting strip searches on incoming patients without first performing

13 an individualized risk assessment and video recording.

14 B. Plaintiff John Doe was humiliated by baseless, invasive strip- and cavity-searches.

15

39. On December 24, 2018, John Doe voluntarily taken by ambulance from Whidbey

16 General Hospital to Fairfax Kirkland, Washington, for treatment for his mental illness. Mr. Doe

17 was only wearing a hospital gown when he arrived at Fairfax. All of his clothes and personal

18 belongings were put in sealed bags. Once he arrived, Mr. Doe’s clothes and personal belongings

19 were given to a Fairfax staff member and locked up for the duration of his stay. Mr. Doe was

20 then taken to the locked ward where he was escorted to an open bathroom area visible to all the

21 other patients.

22

40. Fairfax staff ordered Mr. Doe to remove the hospital gown. He was then

23 instructed to bend over and spread his buttocks apart and move his genitals from side to side,

24 Fairfax staff made this demand without documenting the need for an intrusive strip search, or

25 obtaining a clinical determination that one was necessary from a psychiatric professional. Mr.

26 Doe was not given his hospital gown back. Nor was he given a gown or a towel to cover up

27 during the search.

28

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1

41. Video cameras installed by Fairfax were present in the hallway, the holding area

2 outside the bathroom, and the room where the strip search was conducted. The cameras recorded

3 Mr. Doe in a state of undress during the strip search. After the search, Mr. Doe waited naked in

4 this area for approximately 20-30 minutes for Fairfax staff to bring a gown that he was to wear

5 for his entire stay.

6

42. At no point during this humiliating process did the nurse or anyone at Fairfax

7 attempt to evaluate Mr. Doe’s current safety risk to himself or others. No one asked him any

8 questions about his current thoughts with regard to self-injury or whether he was carrying

9 anything he might use to hurt himself or others.

10

43. At no time during this entire episode did Mr. Doe state, imply, or otherwise

11 indicate that he had any current thoughts or intention to hurt himself or anyone else. At no time

12 during this entire period did he act in a manner that would have led a reasonable health care

13 professional to believe that there was an immediate risk of harm to himself or to others.

14

44. Although mental health professionals were available at Fairfax to evaluate him at

15 intake, no one evaluated Mr. Doe’s current safety risk by asking him any questions about his

16 current thoughts regarding self-injury or whether he was carrying anything that he might use to

17 hurt him before demanding a strip search.

18

45. Mr. Doe’s emotional and mental health continued to decline during his stay at

19 Fairfax. He laid in his bed crying for days and was not seen by a psychiatrist until three days

20 after his admission. This decline is directly attributable to the humiliating invasion of privacy

21 and bodily autonomy perpetrated by Fairfax and its staff. And once the psychiatrist did finally

22 meet with Mr. Doe, he advised Mr. Doe that he would not be treating him or prescribing any

23 medication management because Mr. Doe would be leaving soon and he did not want to invest

24 any time in treating him and that he could seek treatment with an outside provider.

25

46. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

26 a result of the December 24, 2018 strip search, Mr. Doe experienced severe trauma,

27 hopelessness, and greatly increased urges to harm and kill himself. In fact, Mr. Doe attempted

28 suicide after his release from Fairfax.

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1 C. Plaintiff H.S. was traumatized by baseless, invasive strip- and cavity-searches.

2

47. In May of 2017, 14 year-old H.S. was voluntarily taken by ambulance from

3 Providence Hospital to Fairfax in Kirkland, Washington, for treatment for his mental illness.

4 Once he arrived, a Fairfax staff member grabbed him and escorted him to the teen ward.

5 Although H.S. is blind after being shot in the face as a toddler, the staff member barked at H.S.,

6 “Don’t look at anyone, walk straight!” H.S. responded by telling Fairfax staff that he is totally

7 blind.

8

48. H.S. was then handed off to another Fairfax staff member who ordered him to

9 take off all of his clothes. H.S. refused and told Fairfax staff he was not comfortable doing that.

10 The Fairfax staff member responded by threatening, “You’re going to or we will do it for you.”

11 H.S. took his shirt and shorts off. Fairfax staff ordered him to also remove his underwear. H.S.

12 could feel one of the staff members moving towards him and feared that he was going to be

13 tazed. H.S. was again ordered to take off his underwear. He complied. H.S. was then told to bend

14 over and spread his buttocks apart. Next, he was told to move his genitals from side to side. The

15 staff member made these demands without documenting the need for an intrusive strip search, or

16 obtaining a clinical determination that one was necessary from a psychiatric professional. H.S.

17 was not given a gown or towel to cover up during the search. H.S.’s guardians were not informed

18 of the strip search nor were they asked for consent to strip-search their 14 year-old child.

19

49. Video cameras installed by Fairfax were present in the hallway, the holding area

20 outside the bathroom, and the room where the strip search was conducted. Cameras were also

21 present throughout the area of Fairfax where H.S. was housed during his stay including patient

22 bedrooms and bathrooms. The cameras recorded H.S. in a state of undress. H.S. waited naked in

23 the area where he was strip-searched with the door wide open for approximately 5 minutes

24 waiting for Fairfax staff to bring him clothing to put on.

25

50. At no point during this humiliating process did the nurse or anyone at Fairfax

26 attempt to evaluate H.S’s current safety risk to himself or others. No one asked him any

27 questions about his current thoughts with regard to self-injury or whether he was carrying

28 anything he might use to hurt himself or others.

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1

51. At no time during this entire episode did H.S. state, imply, or otherwise indicate

2 that he had any current thoughts or intention to hurt himself or anyone else. At no time during

3 this entire period did he act in a manner that would have led a reasonable health care professional

4 to believe that there was an immediate risk of harm to himself or to others.

5

52. Although mental health professionals were available at Fairfax to evaluate him at

6 intake, no one evaluated H.S.’s current safety risk by asking him any questions about his current

7 thoughts regarding self-injury or whether he was carrying anything that he might use to hurt him

8 before demanding a strip search.

9

53. H.S.’s emotional/mental health continued to decline during his stay at Fairfax.

10 This decline is directly attributable to the humiliating invasion of privacy and bodily autonomy

11 perpetrated by Fairfax and its staff. H.S.’s guardians contacted Fairfax multiple times during his

12 stay and were told that he would have to remain there for five days before he could be released.

13 He remained at Fairfax for two more days until his parents pulled him out.

14

54. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

15 a result of the May 2017 strip search, H.S. experienced severe trauma, hopelessness, and greatly

16 increased urges to harm and kill himself. In fact, H.S. attempted suicide after his release from

17 Fairfax.

18 D. Plaintiff Jane Doe 2 was traumatized by baseless, invasive strip and cavity searches.

19

55. On May 18, 2019, Jane Doe 2 was voluntarily admitted to Fairfax Hospital in

20 Monroe, Washington, a psychiatric hospital, for inpatient treatment for her mental illness. She

21 was transferred by ambulance from St. Clare Hospital in Lakewood, Washington. Ms. Doe 2 was

22 wearing a hospital gown when she arrived at Fairfax. Her personal belongings and a bag with her

23 personal belongings were handed over to Fairfax staff when she arrived.

24

56. Ms. Doe 2 was then taken to a seclusion room where Fairfax staff ordered her to

25 completely undress for a search. Ms. Doe 2 has a history of sexual trauma and explained that to

26 the staff member. Nevertheless, Fairfax staff again ordered Ms. Doe 2 to completely undress, and

27 spread her legs and her butt cheeks so they could observe if something came out. Fairfax staff

28

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1 made this demand without documenting the need for an intrusive strip search, or obtaining a

2 clinical determination that one was necessary from a psychiatric professional.

3

57. The Fairfax staff member left the door open where others could see Ms. Doe 2 in

4 various stages of undress. Ms. Doe 2 asked Fairfax staff to close the door, they refused. Ms. Doe

5 2 refused to become totally naked during the search. Fairfax staff told Ms. Doe 2 to just do it and

6 get it over with and it will be over sooner. A Fairfax staff member wearing gloves touched Ms.

7 Doe 2 on her back and her bottom during the search. Ms. Doe 2 was in shock and felt numb as

8 this was happening.

9

58. Video cameras installed by Fairfax were present in the hallway, the area outside

10 the seclusion room, and the room where the strip search was conducted. The cameras recorded

11 Ms. Doe 2 in a state of undress and during the strip and cavity search.

12

59. At no point during this humiliating process did the nurse or anyone at Fairfax

13 attempt to evaluate Ms. Doe 2’s current safety risk to herself or others. No one asked her any

14 questions about her current thoughts with regard to self-injury or whether she was carrying

15 anything she might use to hurt herself or others.

16

60. At no time during this entire episode did Ms. Doe 2 state, imply, or otherwise

17 indicate that she had any current thoughts or intention to hurt herself or anyone else. At no time

18 during this entire period did Ms. Doe 2 act in a manner that would have led a reasonable health

19 care professional to believe that there was an immediate risk of harm to Ms. Doe 2 or to others.

20

61. Although mental health professionals were available at Fairfax to evaluate her at

21 intake, no one evaluated Ms. Doe 2’s current safety risk by asking her any questions about her

22 current thoughts regarding self-injury or whether she was carrying anything that she might use to

23 hurt herself before demanding a strip search.

24

62. Ms. Doe 2’s emotional/mental health continued to decline during her stay at

25 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

26 autonomy perpetrated by Fairfax and its staff.

27

63. When Ms. Doe 2’s daughter visited her later that day, Ms. Doe 2 told her that

28 Fairfax staff had strip searched her in a seclusion room with a bed that had straps on it and that

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1 they had taken her walker away from her. Ms. Doe 2’s daughter observed that her mother was

2 more withdrawn than usual, like “she wanted to crawl inside herself.” Ms. Doe 2 told her

3 daughter that she did not feel safe and wanted to go home.

4

64. When Ms. Doe 2’s daughter visited the next day, she observed that Ms. Doe 2

5 was crying and that she appeared afraid. Ms. Doe 2 told her daughter that she was not allowed to

6 use her walker at Fairfax and had fallen and hurt herself. She told her daughter again that she

7 wanted to leave Fairfax. Ms. Doe 2’s daughter asked to speak with a Fairfax staff member who

8 was familiar with Ms. Doe 2’s complaints. The Fairfax staff member told Ms. Doe 2’s daughter

9 that it was standard protocol for patients to be strip searched at Fairfax. Next, Ms. Doe 2’s

10 daughter spoke with the charge nurse who informed her that Fairfax determined Ms. Doe 2 did

11 not require a walker while she was at Fairfax and that her primary care physician could not

12 dictate her medical care while she was there. The charge nurse told Ms. Doe 2’s daughter that

13 Ms. Doe 2 did not belong there and should not have been sent to Fairfax if she was not

14 ambulatory.

15

65. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

16 a result of the May 18, 2019 strip search, Ms. Doe 2 experienced severe trauma, nightmares,

17 hopelessness, and greatly increased urges to harm and kill herself.

18

66. After leaving Fairfax on May 20, 2019, Ms. Doe 2 has been hospitalized twice

19 times for inpatient mental health treatment. These hospitalizations were a direct result of the

20 patient search process at Fairfax.

21 E. Plaintiff John Doe 2 was traumatized and humiliated by baseless, invasive strip and cavity searches.
22 67. On March 1, 2019, John Doe 2 was voluntarily admitted to Fairfax Hospital in
23 Everett, Washington, for treatment for his mental illness. He was transferred by ambulance from
24 the University of Washington Medical Center in Seattle, Washington. Once he arrived at Fairfax
25 Hospital, Mr. Doe 2’s backpack with his personal belongings were given to a Fairfax staff
26 member and locked up for the duration of his stay.
27

28

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1

68. Mr. Doe 2 was then taken to the locked ward where he was escorted to a room

2 where Fairfax staff conducted a strip and cavity search. Mr. Doe was not given a gown or a towel

3 to cover up during the search. During the search, Fairfax staff instructed Mr. Doe to remove his

4 clothing and bend over and spread his buttocks apart. Fairfax staff made this demand without

5 documenting the need for an intrusive strip search, or obtaining a clinical determination that one

6 was necessary from a psychiatric professional. Fairfax staff touched Mr. Doe 2 on his hip and

7 butt cheeks during the strip and cavity search.

8

69. Video cameras installed by Fairfax were present in the hallway and the room

9 where the strip search was conducted. The cameras recorded Mr. Doe 2 in a state of undress

10 during the strip search. Fairfax staff laughed and took pictures of Mr. Doe 2 during the search.

11 Mr. Doe 2 complained to Fairfax staff that they were abusing and threatening him. He tried to

12 run away, but the door to leave the unit was locked. Fairfax staff chased after him and threatened

13 to call the police on him.

14

70. At no point during this humiliating process did the nurse or anyone at Fairfax

15 attempt to evaluate Mr. Doe 2’s current safety risk to himself or others. No one asked him any

16 questions about his current thoughts with regard to self-injury or whether he was carrying

17 anything he might use to hurt himself or others.

18

71. At no time during this entire episode did Mr. Doe 2 state, imply, or otherwise

19 indicate that he had any current thoughts or intention to hurt himself or anyone else. At no time

20 during this entire period did he act in a manner that would have led a reasonable health care

21 professional to believe that there was an immediate risk of harm to himself or to others.

22

72. Although mental health professionals were available at Fairfax to evaluate him at

23 intake, no one evaluated Mr. Doe 2’s current safety risk by asking him any questions about his

24 current thoughts regarding self-injury or whether he was carrying anything that he might use to

25 hurt him before demanding a strip search.

26

73. Mr. Doe 2’s emotional and mental health continued to decline during his stay at

27 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

28 autonomy perpetrated by Fairfax and its staff. Mr. Doe 2 requested he be discharged and was

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1 discharged from Fairfax the next day because he did not feel safe and because the environment at

2 Fairfax was damaging to his mental health.

3

74. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

4 a result of the March 1, 20198 strip search, Mr. Doe 2 experienced severe trauma, hopelessness,

5 and greatly increased urges to harm and kill himself.

6

75. Mr. Doe 2 filed a complaint against Fairfax with the Washington State

7 Department of Health (DOH). DOH conducted an investigation and found cause for corrective

8 action against Fairfax.

9 F. Plaintiff N.B. was violated by a baseless and invasive strip search.

10

76. On February 22, 2019, N.B was voluntarily admitted to Fairfax Hospital in

11 Kirkland, Washington, for treatment for their mental illness. N.B. was transferred by ambulance

12 from Harborview Medical Center in Seattle, Washington.

13

77. Upon arrival N.B. was immediately taken to the locked ward where a female

14 Fairfax staff member conducted a strip search. N.B. was not given a gown or a towel to cover up

15 during the search. During the search, Fairfax staff instructed N.B. to take off their shirt, pants,

16 and underwear. Fairfax staff made this demand without documenting the need for an intrusive

17 strip search, or obtaining a clinical determination that one was necessary from a psychiatric

18 professional. N.B. complied and removed all of their clothing and was searched.

19

78. Video cameras installed by Fairfax were present in the hallway and in the room

20 where the strip search was conducted. The cameras recorded N.B. in a state of undress during the

21 strip search. Cameras were also present throughout the area where N.B. was housed during their

22 stay at Fairfax.

23

79. At no point during this humiliating process did the nurse or anyone at Fairfax

24 attempt to evaluate N.B.’s current safety risk to themself or others. No one asked N.B. any

25 questions about their current thoughts with regard to self-injury or whether they were carrying

26 anything they might use to hurt themself or others.

27

80. At no time during this entire episode did N.B. state, imply, or otherwise indicate

28 that they had any current thoughts or intention to hurt themself or anyone else. At no time during

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1 this entire period did they act in a manner that would have led a reasonable health care

2 professional to believe that there was an immediate risk of harm to themself or to others.

3

81. Although mental health professionals were available at Fairfax to evaluate N.B. at

4 intake, no one evaluated their current safety risk by asking them any questions about their current

5 thoughts regarding self-injury or whether they were carrying anything that they might use to hurt

6 themself before demanding a strip search.

7

82. N.B.’s emotional and mental health continued to decline during their stay at

8 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

9 autonomy perpetrated by Fairfax and its staff.

10

83. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

11 a result of the February 22, 2019 strip search, N.B. experienced severe trauma, hopelessness, and

12 greatly increased urges to harm and kill themself. The patient search process at Fairfax has

13 deterred N.B. from seeking services in psychiatric hospitals.

14 G. Plaintiff Jane Doe 3 was traumatized by baseless, invasive strip- and cavitysearches.
15 84. On July 16, 2017, Jane Doe 3 was taken by ambulance from Kittitas Valley
16 Healthcare in Ellensburg, Washington to Fairfax Hospital in Kirkland, Washington for inpatient
17 treatment for her mental illness. Her personal belongings and medications were handed over to
18 Fairfax staff when she arrived.
19 85. Ms. Doe 3 was then taken to the day room where she spoke to a Fairfax nurse
20 about her history of sexual trauma. The nurse then led Ms. Doe 3 to a room at the end of the hall
21 with only a bed and then ordered her to completely undress for a search. The nurse made this
22 demand without documenting the need for an intrusive strip search, or obtaining a clinical
23 determination that one was necessary from a psychiatric professional. Ms. Doe 3 asked the nurse
24 if she needed to completely undress and the nurse responded, yes. She then asked the nurse if she
25 had to take her underwear off too and the nurse again responded, yes. Ms. Doe 3 reminded the
26 nurse that they had just discussed her history of sexual trauma, and the nurse responded, “I
27

28

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1 know. But it’s protocol.” When Ms. Doe 3 told the Fairfax nurse that she did not want to do it,

2 the nurse told her, “It’s just a body.”

3

86. Ms. Doe 3 was not given a gown or towel to cover up during the search. She

4 closed her eyes and removed all of her clothing including her underwear. Ms. Doe 3 was laying

5 down on the bed in the room and was holding her shirt in her hand during the search. The Fairfax

6 nurse touched Ms. Doe 3 on her stomach during the search. Ms. Doe 3 was crying and covering

7 her eyes as this was happening. The Fairfax nurse then ordered Ms. Doe 3 to lift up her legs and

8 cough. When Ms. Doe 3 asked the Fairfax nurse why, the nurse responded, “Just cough.”

9

87. Video cameras installed by Fairfax were present in the hallway, the area outside

10 the room, and the room where the strip and cavity searches were conducted. The cameras

11 recorded Ms. Doe 3 in a state of undress and during the strip and cavity searches.

12

88. At no point during this humiliating process did the nurse or anyone at Fairfax

13 attempt to evaluate Ms. Doe 3’s current safety risk to herself or others. No one asked her any

14 questions about her current thoughts with regard to self-injury or whether she was carrying

15 anything she might use to hurt herself or others.

16

89. At no time during this entire episode did Ms. Doe 3 state, imply, or otherwise

17 indicate that she had any current thoughts or intention to hurt herself or anyone else. At no time

18 during this entire period did Ms. Doe 3 act in a manner that would have led a reasonable health

19 care professional to believe that there was an immediate risk of harm to Ms. Doe 3 or to others.

20

90. Although mental health professionals were available at Fairfax to evaluate her at

21 intake, no mental health professional evaluated Ms. Doe 3’s current safety risk by asking her any

22 questions about her current thoughts regarding self-injury or whether she was carrying anything

23 that she might use to hurt herself before demanding a strip search.

24

91. Ms. Doe 3’s emotional/mental health continued to decline during her stay at

25 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

26 autonomy perpetrated by Fairfax and its staff.

27

28

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1

92. Fairfax failed to provide safe, non-abusive, treatment with dignity and privacy. As

2 a result of the July 16, 2017 strip search, Ms. Doe 3 experienced severe trauma, increased weight

3 loss, relationship and trust issues, fear of confined spaces, and hopelessness.

4 H. Plaintiff Jane Doe 4 was traumatized and humiliated by baseless, invasive strip- and cavity-searches.
5 93. On August 30, 2019, Jane Doe 4 was voluntarily admitted to Fairfax Hospital in
6 Kirkland, Washington, a psychiatric hospital, for inpatient treatment for her mental illness. She
7 was transferred by ambulance from Auburn Medical Center. When Jane Doe 4 arrived at Fairfax,
8 her personal belongings were handed over to Fairfax staff.
9 94. Ms. Doe 4 was then taken to a room with showers in it where a Fairfax staff
10 member ordered her to go into a bathroom and completely undress for a search. Ms. Doe 4 went
11 into the bathroom to undress and came out wearing just her underwear. The Fairfax member staff
12 again made Ms. Doe 4 go back in the bathroom and take her underwear off. The Fairfax staff
13 member made this demand without documenting the need for an intrusive strip search, or
14 obtaining a clinical determination that one was necessary from a psychiatric professional.
15 95. Ms. Doe 4 was not given a gown or towel to cover up during the search. Ms. Doe
16 4 was completely naked and felt very insecure about her body. Ms. Doe 4 was very concerned
17 that anyone could come in while she was standing there completely naked. The Fairfax staff
18 member ordered Ms. Doe 4 to lift her arms and open her mouth during the strip and cavity
19 searches.
20 96. Video cameras installed by Fairfax were present in the hallway and the area
21 outside the room. Ms. Doe 4 does not know if any cameras were present in the room where the
22 strip and cavity searches were conducted. Ms. Doe 4 is concerned that the cameras in the hallway
23 and/or outside recorded her in a state of undress and during the strip and cavity search.
24 97. At no point during this humiliating process did the nurse or anyone at Fairfax
25 attempt to evaluate Ms. Doe 4’s current safety risk to herself or others. No one asked her any
26 questions about her current thoughts with regard to self-injury or whether she was carrying
27 anything she might use to hurt herself or others.
28

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1

98. At no time during this entire episode did Ms. Doe 4 state, imply, or otherwise

2 indicate that she had any current thoughts or intention to hurt herself or anyone else. At no time

3 during this entire period did Ms. Doe 4 act in a manner that would have led a reasonable health

4 care professional to believe that there was an immediate risk of harm to Ms. Doe 4 or to others.

5

99. Although mental health professionals were available at Fairfax to evaluate her at

6 intake, no one evaluated Ms. Doe 4’s current safety risk by asking her any questions about her

7 current thoughts regarding self-injury or whether she was carrying anything that she might use to

8 hurt herself before demanding a strip search.

9

100. Ms. Doe 4’s emotional/mental health continued to decline during her stay at

10 Fairfax. This decline is directly attributable to the humiliating invasion of privacy and bodily

11 autonomy perpetrated by Fairfax and its staff.

12

101. On September 1, 2019, Ms. Doe 4 woke up feeling like her body was on fire. She

13 asked Fairfax staff to check her heart rate and went unconscious. When Ms. Doe 4 woke up, she

14 asked to be transferred to a hospital. Fairfax staff refused. When Ms. Doe 4 asked to use to

15 phone to call 911 for help, Fairfax staff told her they would remove her phone privileges.

16 Instead, Ms. Doe 4 called her boyfriend and he called 911. Ms. Doe 4 was crying and scared. She

17 requested to leave Fairfax that day. She was discharged on September 2, 2020.

18

102. Ms. Doe 4’s emotional/mental health has deteriorated extremely since leaving

19 Fairfax. This decline is directly attributable Fairfax’s failure to provide safe, non-abusive,

20 treatment with dignity and privacy. As a result of the August 30, 2019 strip search, Ms. Doe 4

21 experienced severe trauma, nightmares, hopelessness, and has really struggled to be the kind of

22 mother she was before she was admitted to Fairfax.

23 I. Fairfax Hospital staff practice indiscriminate cavity searching, strip searching, and video recording of patients in various states of undress.
24 103. Fairfax has a blanket policy requiring all patients to remove their clothing and a
25 practice of randomly strip-searching patients indiscriminately. This process is video recorded by
26 Fairfax in violation of the patient’s privacy. Fairfax uses video cameras in the hall, the holding
27 area outside the bathroom, and the room where the strip searches are conducted. Fairfax makes
28

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1 and keeps these video recordings to protect itself from liability, and not for any legitimate

2 medical reasons or out of concern and care for its patients’ well-being.

3

104. Not only do these practices violate the standard of care for a psychiatric hospital,

4 they have no connection to any legitimate psychiatric purpose. By way of comparison, other

5 hospitals have policies that significantly limit staff members’ ability to conduct a strip search or

6 a cavity-search. These policies set forth layers of measures before resorting to a strip search. For

7 example, at Eastern State Hospital, a patient must “verbalize a suicidal or homicidal plan with

8 covert or overt messages indicating the means are on his/her person and refuses to give it to

9 staff.”4 A body cavity search requires “credible report that a patient has concealed contraband in

10 a body cavity (e.g. glass in vagina, illegal drugs in rectum).”5 A physician must interview the

11 patient in order to conduct a cavity search, and all viable alternatives to a cavity search, such as

12 x-ray or the patient’s voluntary removal of the object must be eliminated before conducting the

13 search.6 At Western State Hospital, a strip- or cavity-search may only be conducted where there

14 is a “reasonable suspicion a patient possesses restricted items that constitute an immediate threat

15 to life or safety.”7 Western State Hospital staff are required to conduct the least intrusive type of

16 search necessary.8

17

105. Other institutions require privacy safeguards for patients, including a requirement

18 that the searches be conducted in a private room without a camera. At Eastern State Hospital, a

19 strip search requires two staff members of the same sex be present, and that they conduct the

20 search as quickly as possible so the patient is not unclothed any longer than is necessary.9 A

21 cavity search must be conducted by a physician and an RN of the same sex as the patient.10

22

23

24

4 Contraband Search, Eastern State Hospital Man § 1.39, at 7 (effective June 1993, last reviewed May 2017) (emphasis added).

25

5 Contraband Search, Eastern State Hospital Man § 1.39, at 8 (effective June 1993, last reviewed May 2017).

6 Contraband Search, Eastern State Hospital Man. § 1.39, at 8 (effective June 1993, last reviewed May 2017).

26

7 Searches, Western State Hospital, Policy 13.06(F) (issued March 2017) (emphasis in original).

27

8 Searches, Western State Hospital, Policy 13.06(A) (issued March 2017).

9 Contraband Search, Eastern State Hospital Man. § 1.39, at 7-8 (effective June 1993, last reviewed May 2017).

28

10 Contraband Search, Eastern State Hospital Man. § 1.39, at 8 (effective June 1993, last reviewed May 2017).

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1

106. As yet another layer of protection for patients, other institutions require layers of

2 oversight before a strip- or a cavity- search can be conducted. At Eastern Washington State

3 Hospital, for instance, a physician must order a strip search. And the hospital’s CEO or designee

4 must authorize a cavity search.11 At Western State Hospital, a written physician’s order is

5 required for either a strip- or a cavity-search.12

6

107. Other institutions furthermore require documentation of the reasons, results, and

7 persons involved in a search.13

8

108. On information and belief, no psychiatric hospital in Washington State other than

9 Fairfax permits its staff to arbitrarily conduct strip searches or cavity searches.

10

109. On information and belief, no psychiatric hospital in Washington State other than

11 Fairfax makes and keeps video recordings of patients in various states of undress.

12 J. Fairfax Hospital’s invasive search and video monitoring practices are motivated by discriminatory animus.
13 110. Stigma about people suffering from mental illness is deeply embedded in social
14 and cultural norms. Such stigma is a baseless, prejudicial attitude that discredits individuals
15 suffering from mental illness, marking them as tainted and devalued.14 Stigma results in
16 discrimination in employment, housing, medical care, and social relationships. Public stigma
17 reflects a larger social and cultural context of negative community-based attitudes, beliefs, and
18 predispositions that shape informal, professional, and institutional responses.15
19 111. Individuals with mental illness are subjected to prejudice and discrimination from
20 others (i.e., received stigma), and they may internalize feelings of devaluation (i.e., self-stigma).
21 On a societal level, this stigma has been implicated in low service use and inadequate funding for
22 mental health research and treatment (i.e., institutional stigma).16
23

24

11 Contraband Search, Eastern State Hospital Man. § 1.39, at 7-8 (effective June 1993, last reviewed May 2017).

25

12 Searches, Western State Hospital, Policy 13.06(B)(1), (F) (issued March 2017).

13 Searches, Western State Hospital, Policy 13.06(G) (issued March 2017); Contraband Search, Eastern State

26 Hospital Man. § 1.39, at 3 (effective June 1993, last reviewed May 2017).
14 Pescosolido, et. al., A Disease Like Any Other? A Decade of Change in Public Reaction to Schizophrenia,
27 Depression, and Alcohol Dependence, AM J PSYCHIATRY (2010), 167:1321-1330.

15 Id.

28

16 Id.

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1

112. Much of the stigma associated with mental illness results from conflating mental

2 illness with violence. Sensational news reporting on violent crimes committed by people with

3 mental illness, particularly mass shootings, perpetuates the stigma. These reports focus on mental

4 illness, ignoring the fact that most of the violence in society is caused by people without mental

5 illness. This societal bias contributes to the stigma faced by those with a psychiatric diagnosis,

6 which leads to discrimination.17

7

113. “Most people with mental illness are not violent toward others and most violence

8 is not caused by mental illness, but you would never know that by looking at media coverage of

9 incidents,” says Emma E. McGinty, Ph.D., MS, an assistant professor in the departments of

10 Health Policy and Management and Mental Health at the Bloomberg School. “Despite all of the

11 work that has been done to reduce stigma associated with mental health issues, this portrayal of

12 mental illness as closely linked with violence exacerbates a false perception about people with

13 these illnesses, many of whom live healthy, productive lives.”18

14

114. Although mental health professionals hold more positive attitudes than the general

15 public about people with mental health problems, strong stereotypes persist in both groups.19 In a

16 2014 study of Washington State mental health professionals, many providers held negative

17 attitudes about a hypothetical vignette character with symptoms of schizophrenia—nearly a third

18 said it was likely that this individual would be violent toward others.20 Yet study after study

19 confirms that schizophrenia, major depression, or bipolar disorder alone do not predict

20 violence.21 A study from 1998, for example, followed patients released from psychiatric

21 hospitals and found that they were no more prone to violence than other people in their

22

23

17 Id.

24

18 Study: News Stories Often Link Violence With Mental Health Illness, Even Though People With Mental

Health Illness Are Rarely Violent, Johns Hopkins Bloomberg School of Public Health (2016),

25 https://www.jhsph.edu/news/news-releases/2016/study-news-stories-often-link-violence-with-mental-health-llness-
even-though-people-with-mental-health-illness-are-rarely-violent.html.

26

19 Stuber JP, Conceptions of Mental Illness: Attitudes of Mental Health Professionals and the General Public

(2014).

27

20 Id.

28

21 Elbogen, Johnson, The Intricate Link Between Violence and Mental Disorder; Results From the National Epidemiologic Survey on Alcohol and Related Conditions, ARCH GEN PSYCHIATRY (2009), 66(2):152-161.

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1 communities unless they also had a substance abuse problem.22 And a 2009 study analyzing the

2 results of the National Epidemiologic Survey on Alcohol and Related Conditions confirmed that

3 serious mental illness is not by itself a predictor of violence.23

4

115. The biases and prejudices held by mental health treatment providers can have a

5 significant negative impact on treatment outcomes and quality of life.24 People with mental

6 disorders engage with mental health professionals at a vulnerable time. Even a small number of

7 professionals engaging in the denigration of people with mental illness or holding low

8 expectations for improvement translates into negative treatment outcomes and a reluctance to

9 seek mental health treatment in the future.25

10

116. Even though studies have shown that up to one-third of mental health

11 professionals in Washington State incorrectly associate serious mental illness with violence,

12 Fairfax has failed to limit the operation of this bias against its patients. Fairfax does not restrict

13 arbitrary searches and invasive monitoring. This allows the discriminatory animus of its staff

14 against people with mental illness to go unchecked. Staff at Fairfax may indiscriminately strip

15 search, cavity search, and video record patients without any justification, oversight, or

16 documentation.

17

117. Fairfax’s practices—and its failure to limit the discretion of its staff—means that

18 a substantial number of its mental health patients do not have reasonable access to inpatient care

19 for mental health disorders.

20

118. Fairfax could easily provide reasonable access to care for mental health patients

21 by implementing the safeguards that other institutions already use: (1) a tiered approach that

22 requires additional justification as searches become more invasive; (2) an oversight scheme that

23 requires escalating approval as searches become more invasive; and (3) a requirement that the

24

25
22 MacArthur Community Violence Study (2001), http://www.macarthur.virginia.edu/violence.html.

26

23 Elbogen, Johnson, The Intricate Link Between Violence and Mental Disorder; Results From the National

Epidemiologic Survey on Alcohol and Related Conditions, ARCH GEN PSYCHIATRY (2009), 66(2):152-161.

27

24 Stuber JP, Conceptions of Mental Illness: Attitudes of Mental Health Professionals and the General Public

(2014).

28

25 Id.

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1 reasons, results, and persons involved in a search be documented. Fairfax can also easily restrict

2 video monitoring to areas where patients are fully clothed, as do other institutions.

3 K. Fairfax Hospital’s strip search and video monitoring practices have a disparate impact on survivors of trauma, including Plaintiffs.
4 119. Trauma is a near universal experience of individuals with behavioral health
5 problems.26 Approximately 90% of those seeking inpatient services are trauma survivors.27
6 120. Retraumatization occurs when patients experience something that makes them
7 feel as though they are undergoing another trauma, such as being involuntarily touched, forced,
8 or held down.28
9 121. All inpatient psychiatric patients are entitled to care, treatment, and therapies to
10 maintain and improve their health and well-being. Most importantly for individuals with chronic
11 mental illness, inpatient psychiatric patients are entitled to dignity, respect, compassion, and
12 competent care.
13 122. The practice of requiring psychiatric patients to strip can cause patients with a
14 history of sexual abuse severe anxiety because it triggers memories of prior abuse.
15 123. It is well recognized by mental health professionals that in the absence of an
16 emergency, an individualized assessment should be made by a mental health professional before
17 a strip search is conducted. It is also well recognized by mental health professionals that for
18 some patients, requests or requirements that they strip and be searched can cause turmoil,
19 extreme agitation, panic, and exacerbates existing psychiatric conditions including anxiety,
20 depression, and post-traumatic stress disorder.
21 124. Fairfax’s pattern and practice of indiscriminately performing invasive searches of
22 patients and excessive use of unnecessary video recording strip searches and throughout the
23

24

25

26 Trauma-Informed Care, National Council for Behavioral Health (2019), https://www.thenationalcouncil.org/topics/trauma-informed-care/.

26

27 Mueser, Essock, Haines, Wolfe & Xie, Posttraumatic Stress Disorder, Supported Employment, and Outcomes in People with Severe Mental Illness, US National Library of Medicine National Institute of Health

(2004), https://www.ncbi.nlm.nih.gov/pubmed/15616477.

27

28 A Treatment Improvement Protocol: Trauma-Informed Care in Behavioral Health Services, TIP 57,

28

SAMHSA (2014), http//store.samhsa.gov/product/TIP-57-Trauma-Informed-Care-In-Behavioral-HealthServices/SMA14-4816.

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1 hospital is negligent, violates the Vulnerable Adult statute and the Washington Law Against

2 Discrimination, and invades patients’ privacy causing severe emotional distress, physical harm,

3 and economic harm to Plaintiffs and the Class, for which Fairfax must be held responsible.

4

V. CLASS ALLEGATIONS

5

125. Plaintiffs Jane Doe, John Doe, and H.S. bring this action pursuant to Federal Rule

6 of Civil Procedure 23(b)(3) and 23(c)(4) on behalf of themselves and the following Class:

7

All persons who were admitted to Fairfax between April 30, 2016,

and the date of class certification.

8

126. The Class consists of hundreds, of individuals, if not more, making joinder

9

impracticable, in satisfaction of Fed. R. Civ. P. 23(a)(1). The exact size of the Class and the

10

identities of the individual members are ascertainable through records maintained by Fairfax.

11

127. The claims of Plaintiffs Jane Doe, John Doe, and H.S. are typical of the Class.

12

The claims of Plaintiffs Jane Doe, John Doe, H.S., and the Class are based on the same legal

13

theories and arise from the same unlawful pattern and practice of strip searching patients without

14

particularized suspicion and excessive use of video recording throughout the hospital.

15

128. There are many questions of law and fact common to the claims of Plaintiffs Jane

16

Doe, John Doe, H.S. and the Class, and those questions predominate over any questions that may

17

affect only individual Class Members within the meaning of Fed. R. Civ. P. 23(a)(2) and (c)(4).

18

129. Common questions of fact and law affecting members of the Class include, but

19

are not limited to, the following:

20

a. Whether Fairfax employees fail to provide mental health treatment and

21

deny reasonable accommodations to seriously mentally ill patients who

22

require inpatient treatment by performing strip- and cavity-searches

23

without justification, oversight or documentation.

24

b. Whether Fairfax’s pattern and practice of performing invasive searches of

25

patients without particularized suspicion violates the Americans with

26

Disabilities Act;

27

28

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1

c. Whether Fairfax’s pattern and practice of performing invasive searches of

2

adult patients without particularized suspicion violates the Vulnerable

3

Adult statute;

4

d. Whether Fairfax’s pattern and practice of performing invasive searches of

5

patients without particularized suspicion violates the Washington Law

6

Against Discrimination;

7

e. Whether Fairfax’s use of video cameras in the hall, the holding area

8

outside the bathroom, and in the room where strip searches are being

9

conducted invades patient privacy; and

10

f. Whether Fairfax’s practice of unjustified, unsupervised, and

11

undocumented strip- and cavity-searches and practice of video recording

12

patients denies those experiencing mental illness from receiving the

13

treatment they present for and are entitled to receive.

14

130. Absent a class action, most of the members of the Class would find the cost of

15 litigating their claims to be prohibitive and will have no effective remedy. The class treatment of

16 common questions of law and fact is also superior to multiple individual actions or piecemeal

17 litigation in that it conserves the resources of the courts and the litigants and promotes

18 consistency and efficiency of adjudication.

19

131. Plaintiffs Jane Doe, John Doe, and H.S. will fairly and adequately represent and

20 protect the interests of the Class. Plaintiffs Jane Doe, John Doe, and H.S. have retained counsel

21 with substantial experience in prosecuting complex litigation and class actions. Plaintiffs Jane

22 Doe, John Doe, and H.S. and their counsel are committed to vigorously prosecuting this action

23 on behalf of the other respective Class Members, and have the financial resources to do so.

24 Neither Plaintiffs Jane Doe, John Doe, and H.S. nor their counsel have any interests adverse to

25 those of the other members of the Class.

26

27

28

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1

VI. CAUSES OF ACTION

2

COUNT I

3

TITLE III OF THE AMERICANS WITH DISABILITIES ACT

4

(By all Plaintiffs individually, and by Jane Doe, John Doe, and H.S. on behalf of the Class)

5

132. Plaintiffs re-allege and incorporate by reference the allegations contained in the

6 previous paragraphs.

7

133. The Americans with Disabilities Act (“ADA”) was passed in 1990 to “provide a

8 clear and comprehensive national mandate for the elimination of discrimination against people

9 with disabilities.” 42 U.S.C. § 12101(b)(1). Congress explicitly defined discrimination to include

10 “over-protective rules and policies,” “failure to make modifications to existing ... practices,” and

11 “segregation, and relegation to lesser services.” 42 U.S.C. § 12101(a)(5).

12

134. When Congress passed the ADA, it intended to “address the major areas of

13 discrimination faced day to day by people with disabilities,” 42 U.S.C. § 12101(b)(4), including

14 in the area of “health services,” 42 U.S.C. § 12101(a)(3).

15

135. Fairfax is a “place of public accommodation” as that term is defined in Title III of

16 the Americans with Disabilities Act. 42 U.S.C. § 12181(7)(F), 28 C.F.R. § 36.104. The ADA

17 prohibits discrimination by a public accommodation against any individual on the basis of

18 disability. 28 C.F.R. § 36.201(a).

19

136. Plaintiffs and the Class suffer from serious mental health conditions that require

20 inpatient treatment and impair their ability to request accommodations. They are members of a

21 protected class of people with disabilities under the ADA.

22

137. Title III of the ADA prohibits public accommodations from discriminating against

23 individuals with disabilities in the full and equal enjoyment of the goods, services, facilities,

24 privileges, advantages or accommodations of any place of public accommodations. 42 U.S.C.

25 § 12182(a). The definition of discrimination includes “failure to make reasonable modifications

26 in policies, practices, or procedures, when such modifications are necessary to afford such goods,

27 services, facilities, privileges, advantages or accommodations to individuals with disabilities,

28 unless the entity can demonstrate that making such modifications would fundamentally alter the

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1 nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C.

2 § 12182(b)(2)(A)(ii).

3

138. Fairfax’s practice of unjustified, unsupervised, and undocumented strip- and

4 cavity-searches denies those experiencing mental illness from receiving the treatment they

5 require and are entitled to receive. Fairfax’s humiliating, unchecked search practices proximately

6 resulted in negative treatment outcomes for Plaintiffs and the Class, as well as substantial mental

7 and physical anguish. These practices are substantially motivated by discriminatory animus

8 towards people with serious mental health conditions requiring inpatient treatment. These

9 practices deliberately required Plaintiffs and the Class to endure unnecessary hardship in order to

10 access a program or service. That hardship could easily be eliminated by a reasonable

11 accommodation, such as the policies and practices implemented by other institutions set forth in

12 paragraphs 51 through 54 and paragraph 65 of this Amended Complaint. Fairfax has thus failed

13 to provide Plaintiffs and Class members with the reasonable accommodations required by the

14 federal disability statutes, failing to ensure them meaningful access to the benefits to which they

15 are entitled.

16

139. Fairfax’s practice of recording patients during strip- and cavity-searches restricts

17 those experiencing mental illness from receiving the treatment they require and are entitled to

18 receive. Fairfax’s humiliating video recording practices proximately resulted in negative

19 treatment outcomes for Plaintiffs and the Class, as well as substantial mental and physical

20 anguish. This practice is substantially motivated by discriminatory animus towards people with

21 serious mental health conditions requiring inpatient treatment. This practice deliberately required

22 Plaintiffs and the Class to endure unnecessary hardship in order to access a program or service.

23 That hardship could easily be eliminated by a reasonable accommodation, such as the policies

24 and practices implemented by other institutions set forth in paragraphs 51 through 54 and

25 paragraph 65 of this Amended Complaint. Fairfax has thus failed to provide Plaintiffs and Class

26 members with the reasonable accommodations required by the federal disability statutes, failing

27 to ensure them meaningful access to the benefits to which they are entitled.

28

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1

COUNT II

2

ABUSE OF VULNERABLE ADULTS

3

(By Plaintiffs Jane Doe, John Doe, Jane Doe 2, John Doe 2, and N.B., Jane Doe 3, and Jane

4

Doe 4 individually)

5

140. Plaintiffs Jane Doe, John Doe, Jane Doe 2, John Doe 2, and N.B., Jane Doe 3, and

6 Jane Doe 4 re-allege and incorporate by reference the allegations contained in the previous

7 paragraphs.

8

141. At all times, Fairfax was required to comply with the Vulnerable Adult statute at

9 RCW 74.34, et seq.

10

142. RCW 74.34.021 defines a “vulnerable adult” as “a person…admitted to any

11 facility.”

12

143. Fairfax Behavioral Health is a “facility,” as defined in RCW 74.34.020.

13

144. Plaintiffs Jane Doe, John Doe, Jane Doe 2, John Doe 2, N.B., Jane Doe 3, and

14 Jane Doe 4 and adult Class members are vulnerable adults as defined under RCW 74.34.020.

15

145. Fairfax violated the Vulnerable Adult statute by, among other things, subjecting

16 Plaintiffs Jane Doe, John Doe, Jane Doe 2, John Doe 2, N.B., Jane Doe 3, and Jane Doe 4 and

17 adult Class members to abuse, mental abuse, and/or neglect as defined under RCW 74.34.020.

18

146. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiffs

19 Jane Doe, John Doe, Jane Doe 2, John Doe 2, N.B., Jane Doe 3, and Jane Doe 4 and adult Class

20 members were damaged.

21

147. In addition to other remedies available under the law, a vulnerable adult who has

22 been subjected to abuse, mental abuse, and/or neglect either while residing in a facility shall have

23 a cause of action for damages on account of his or her injuries, pain and suffering, and loss of

24 property sustained thereby.

25

148. As a result of Fairfax’s acts and/or omissions described herein, Plaintiffs Jane

26 Doe, John Doe, Jane Doe 2, John Doe 2, N.B., Jane Doe 3, and Jane Doe 4 and adult Class

27 members shall be awarded his or her actual damages, together with the costs of the suit,

28 including a reasonable attorneys’ fee. The term “costs” includes, but is not limited to, the

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1 reasonable fees for a guardian, guardian ad litem, and experts, if any, that may be necessary to

2 the litigation of a claim brought under this section.

3

COUNT III

4

NEGLIGENCE

5

(By all Plaintiffs individually)

6

149. Plaintiffs re-allege and incorporate by reference the allegations contained in the

7 previous paragraphs.

8

150. By seeking psychiatric treatment from Fairfax, a special, confidential, and

9 fiduciary relationship between Plaintiffs and Fairfax was created, resulting in Fairfax owing

10 Plaintiffs a duty to use care to ensure their safety and freedom from assault, abuse, and

11 molestation while interacting with their employees, representatives, and/or agents.

12

151. Fairfax had a duty to hire competent, qualified and experienced employees who

13 were knowledgeable and familiar with the proper standards of care of vulnerable adults.

14

152. Fairfax had a duty to train and supervise their employees, agents and other

15 individuals hired by them to provide safe and proper care to vulnerable adults who were either

16 voluntarily admitted or involuntarily committed patients at Fairfax.

17

153. Fairfax violated their duty of care and their duty to act reasonably by, among

18 other things, performing invasive searches of patients without particularized suspicion.

19

154. Fairfax violated their duty of care and their duty to act reasonably by, among

20 other things, using video cameras outside the bathroom, where patients change and in the

21 seclusion room where invasive searches are conducted.

22

155. Fairfax violated their duty of care by, among other things, failing to adequately

23 instruct, monitor, and supervise their employees and agents regarding what searches can be done

24 and with what protections.

25

156. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiffs

26 and Class members were damaged.

27

28

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1

COUNT IV

2

INVASION OF PRIVACY

3

(By all Plaintiffs individually)

4

157. Plaintiffs re-allege and incorporate by reference the allegations contained in the

5 previous paragraphs.

6

158. Fairfax uses video cameras in the hall, the holding area outside the bathroom, and

7 in the room where the strip searches are conducted.

8

159. Although hospitals can have legitimate reasons to video record patients, Fairfax’s

9 practice violated the standard of care.

10

160. Fairfax intentionally intruded upon Plaintiffs’ and Class members’ solitude,

11 seclusion or private affairs and concerns by recording patients in the hallway, the holding area

12 outside the bathroom, and in the room where strip searches are conducted. This intrusion is

13 highly offensive to reasonable individuals, such as Plaintiffs and the Class members, and was

14 totally unwarranted and unjustified constituting an invasion of privacy.

15

161. As a direct and/or proximate result of Fairfax’s actions and/or inactions, Plaintiffs

16 and Class members were damaged.

17

COUNT V

18

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

19

(By all Plaintiffs individually)

20

162. Plaintiffs re-allege and incorporate by reference the allegations contained in the

21 previous paragraphs.

22

163. Fairfax’s extreme and outrageous conduct intentionally or recklessly caused

23 severe emotional distress to Plaintiffs and Class members.

24

164. Fairfax acted with intent or recklessness, knowing that the pattern and practice of

25 indiscriminately strip-searching psychiatric patients, many of whom have been sexually and

26 physically abused, would likely cause emotional distress. Additionally, Fairfax acted with intent

27 or recklessness, knowing that the use of video cameras in the area outside the bathroom where

28

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1 patients are required to undress and in the room where strip searches are conducted, would likely

2 cause emotional distress.

3

165. Fairfax’s conduct caused suffering for Plaintiffs and Class members at levels that

4 no reasonable person should have to endure.

5

166. As a direct and/or proximate result of Fairfax’s actions, Plaintiffs and Class

6 members were damaged.

7

COUNT VI

8

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

9

(By all Plaintiffs individually)

10

167. Plaintiffs re-allege and incorporate by reference the allegations contained in the

11 previous paragraphs.

12

168. Fairfax’s extreme and outrageous conduct caused severe emotional distress to

13 Plaintiffs and Class members.

14

169. Fairfax knew that the pattern and practice of indiscriminately strip searching

15 psychiatric patients, many of whom have been sexually and physically abused, would likely

16 cause emotional distress. Additionally, Fairfax knows that the use of video cameras in the area

17 outside the bathroom where patients are required to undress and in the room where strip searches

18 are conducted, would likely cause emotional distress.

19

170. Fairfax’s conduct caused suffering for Plaintiffs and Class members at levels that

20 no reasonable person should have to endure.

21

171. As a direct and/or proximate result of Fairfax’s actions, Plaintiffs and Class

22 members were damaged.

23

COUNT VII

24

WASHINGTON LAW AGAINST DISCRIMINATION

25

(By all Plaintiffs individually, and by Jane Doe, John Doe, and H.S. on behalf of the Class)

26

172. Fairfax Behavioral Health is a place of public accommodation.

27

28

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1

173. Plaintiffs and the Class suffer from serious mental health conditions that require

2 inpatient treatment. They are members of a protected class of people with disabilities related to

3 the presence of a mental health disability.

4

174. Under RCW 49.60.030(l)(b), the Washington Law Against Discrimination

5 (“WLAD”) secures the right to “full enjoyment” of any place of public accommodation,

6 including the right to purchase any service or commodity sold by any place of public

7 accommodation “without acts directly or indirectly causing persons of [a protected class] to be

8 treated as not welcome, accepted, desired, or solicited.” See RCW 49.60.040(14). Similarly,

9 WLAD prohibits “any person or the person’s agent or employee [from committing] an act which

10 directly or indirectly results in any distinction, restriction, or discrimination” based on a person’s

11 membership in a protected class. RCW 49.60.

12

175. The WLAD protects the customer’s “full enjoyment” of the services and

13 privileges offered in public accommodations. RCW 49.60.030(l)(b). WLAD’s broad definition of

14 “full enjoyment” extends beyond denial of service to include liability for mistreatment that

15 makes a person feel “not welcome, accepted, desired, or solicited.” RCW 49.60.040(14).

16

176. WLAD makes it unlawful for “any person or the person’s agent or employee to

17 commit an act” of, among other things, discrimination in a place of public accommodation.

18 RCW 49.60.215. This provision imposes direct liability on employers for the discriminatory

19 conduct of their agents and employees.

20

177. It is an unfair practice for a person in the operation of a place of public

21 accommodation to fail or refuse to make reasonable accommodation to the known physical,

22 sensory, or mental limitations of a person with a disability. WAC 162-26-080(1).

23

178. Fairfax’s practice of unjustified, unsupervised, and undocumented strip- and

24 cavity-searches denies those experiencing mental illness from receiving the treatment they

25 present for and are entitled to receive. Fairfax’s humiliating, unchecked search practices

26 proximately resulted in negative treatment outcomes for Plaintiffs and the Class, as well as

27 substantial mental and physical anguish. These practices are substantially motivated by

28

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1 discriminatory animus towards people with serious mental health conditions requiring inpatient

2 treatment.

3

179. Fairfax’s practice of recording patients during strip- and cavity-searches restricts

4 those experiencing mental illness from receiving the treatment they present for and are entitled to

5 receive. Fairfax’s humiliating video recording practices proximately resulted in negative

6 treatment outcomes for Plaintiffs and the Class, as well as substantial mental and physical

7 anguish. This practice is substantially motivated by discriminatory animus towards people with

8 serious mental health conditions requiring inpatient treatment.

9

PRAYER FOR RELIEF

10

WHEREFORE, Plaintiffs Jane Doe, John Doe, and H.S. on behalf of all Class members,

11 pray that this Court:

12

A. Certify the Class, name Plaintiffs Jane Doe, John Doe, and H.S. as representative

13 of the Class, and appoint their lawyers as Class Counsel for claims under the Title III of the

14 Americans With Disabilities Act and under the Washington Law Against Discrimination

15 WHEREFORE, Plaintiffs, individually and Plaintiffs Jane Doe, John Doe, and H.S. on behalf of

16 all Class members, pray that this Court:

17

B. Enter judgment against Fairfax Behavior Health in favor of Plaintiffs and the

18 Class;

19

C. Award Plaintiffs and Class members damages for pain and suffering, and

20 compensatory and punitive damages;

21

D. Order injunctive relief including preliminary and permanent injunctions

22 restraining Fairfax from indiscriminately strip searching patients and/ or recording strip searches

23 and requiring Fairfax to create protocols for conducting searches that require an individualized

24 assessment of immediate danger to self or others;

25

E. Order injunctive relief including preliminary and permanent injunctions

26 restraining Fairfax from recording patients during strip- and cavity-searches and in other areas

27 where patients undress and requiring Fairfax to create protocols controlling the use of video

28 recording and preservation of video recordings; and

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1

F. Award Plaintiffs their reasonable attorneys’ fees and costs.

2

JURY TRIAL DEMANDED

3

Plaintiffs demand a trial by jury on all issues so triable.

4 Dated: July 7, 2020
5 6 7 8 9 10 11 12

Respectfully submitted,
HAGENS BERMAN SOBOL SHAPIRO LLP
By /s/ Steve W. Berman Steve W. Berman, WSBA No. 12536
/s/ Shelby R. Smith Shelby R. Smith, WSBA No. 31377 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com shelby@hbsslaw.com

13

/s/ Todd H. Carlisle

14

Todd H. Carlisle, WSBA No. 52683 /s/ Stacie Siebrecht

15

Stacie Siebrecht, WSBA No. 29992

Disability Rights Washington

16

315 Fifth Avenue South, Suite 850

17

Seattle, WA 98104 Telephone: (206) 324-1521

18

alexap@dr-wa.org stacies@dr-wa.org

19

Attorneys for Plaintiffs 20

21

22

23

24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on July 7, 2020, I electronically filed the foregoing with the United

3 States District Court for the Western District of Washington by using the CM/ECF system. I

4 certify that all participants in the case are registered CM/ECF users and that service will be

5 accomplished by the CM/ECF system.

6

DATED: July 7, 2020.

Respectfully submitted,

7

HAGENS BERMAN SOBOL SHAPIRO LLP

8

/s/ Steve W. Berman

9

Steve W. Berman

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

3

AT SEATTLE

4 JANE DOE, JOHN DOE, and H.S., by and

5

through his guardian, individually and on behalf of all others similarly situated, and

6

JANE DOE 2, JOHN DOE 2, N.B., JANE DOE 3, and JANE DOE 4, individually,

7

Plaintiffs,

C19-635 TSZ

8

v.

ORDER

9 BHC FAIRFAX HOSPITAL, INC. d/b/a FAIRFAX BEHAVIORAL HEALTH,
10
Defendant. 11

12

THIS MATTER comes before the Court on a motion to deny class certification

13 and strike class allegations, docket nos. 18 and 20, brought by defendant BHC Fairfax

14 Hospital, Inc., which does business as Fairfax Behavioral Health (“Fairfax”), and a

15 motion for class certification, docket no. 35, brought by plaintiffs Jane Doe, John Doe,

16 and H.S. (the “Putative Class Representatives”). Having reviewed all papers1 filed in

17 support of, and in opposition to, both motions, the Court enters the following order.

18 Background

19

Fairfax is a privately-owned entity that provides inpatient psychiatric services in

20 Washington. 2d Am. Compl. at ¶ 17 (docket no. 62). Fairfax operates three facilities:

21 22 1 Fairfax’s motion, docket no. 42, to strike the declaration of Amanda McGill, docket no. 38, is
DENIED. Although the declaration provides no expert opinion relevant to the claims for which 23 the Putative Class Representatives seek to certify a class, the Court has read and considered it.
ORDER - 1

Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 2 of 17

1 (i) a 157-bed hospital located in Kirkland; (ii) a 30-bed unit located within the Pacific

2 Campus of Providence Regional Medical Center in Everett; and (iii) a 34-bed unit

3 situated at EvergreenHealth Monroe, a public hospital. See id. at ¶ 18. Fairfax generates

4 most, if not all, of its revenue from inpatient care for persons who are either voluntarily

5 or involuntarily committed in connection with some form of mental illness. 2d Am.

6 Compl. at ¶¶ 17-19 (docket no. 62).

7

The Putative Class Representatives, Jane Doe, John Doe, and H.S., were admitted

8 to Fairfax’s hospital in Kirkland2 in March 2018, December 2018, and May 2017,

9 respectively. Id. at ¶¶ 24, 39, & 47. The Putative Class Representatives allege that,

10 during the intake process, each of them was subjected to a cavity and/or strip search,

11 which was video recorded, and that, as a result of the “humiliating invasion of privacy,”

12 each of them attempted suicide after release from Fairfax.3 Id. at ¶¶ 24-26, 36-37, 39-41,

13 45-46, 47-49, 53-54. Although the Second Amended Complaint4 contains seven causes

14 of action, only two of these claims are asserted on behalf of a class, namely violation of

15

16 2 The Putative Class Representatives attempt to make class-wide claims with respect to Fairfax’s facilities in Everett and Monroe, but none of them received services at either location, and the
17 two plaintiffs, namely John Doe 2 and Jane Doe 2, who were admitted to the units in Everett and Monroe, respectively, are not asserting claims on behalf of any class. See 2d Am. Compl. at
18 ¶¶ 55, 67, & 125 (docket no. 62).
19 3 This allegation in the operative pleading is contradicted in part by the deposition testimony of plaintiff John Doe, who denied having attempted suicide after discharge from Fairfax’s Kirkland
20 facility. See John Doe Dep. at 91:17-19, Ex. K to Neiman Decl. (docket no. 45-11).
4 Plaintiffs were granted leave to file their Second Amended Complaint after the pending cross21 motions relating to class certification had already been filed. See Minute Order (docket no. 61).
The parties, however, have addressed in their briefing the proposed class definition set forth in 22 the Second Amended Complaint, and the matter is ripe for the Court’s consideration. See id. at
¶ 4. 23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 3 of 17

1 Title III of the Americans with Disabilities Act (“ADA”) and violation of the Washington

2 Law Against Discrimination (“WLAD”), see id. at Counts I & VII; the other five claims

3 are pleaded by various plaintiffs individually, see id. at Counts II-VI.5 With respect to

4 the ADA and WLAD claims, the following class definition has been proposed:

5

All persons who were admitted to Fairfax6 between April 30, 2016,7 and

the date of class certification.

6 Id. at ¶ 125.

7 The parties disagree concerning the contours of Fairfax’s admission process.

8 According to Fairfax, new patients generally undergo a contraband search and a skin

9 assessment, but either procedure may be modified or omitted at the patient’s request.

10 See Graham Dep. at 92:23-93:15, Ex. C to Neiman Decl. (docket no. 45-3); Graham

11 Rule 30(b)(6) Dep. at 38:10-16 & 45:11-23, Ex. D to Neiman Decl. (docket no. 45-4).

12 The Putative Class Representatives contend that “[n]ot searching a patient is not an

13 option,” citing for support an undated PowerPoint slide prepared for a safety training.

14 See Supp. Resp. at 1 (docket no. 43) (citing Ex. A to Smith Decl. (docket no. 44-1 at 5)).

15

16

17 5 All plaintiffs other than H.S. allege claims individually under RCW Chapter 74.34, which allows “vulnerable” adults to sue certain types of facilities for “abuse.” See RCW 74.34.200(1);

18

see also RCW 74.34.020(2), (6), & (22) (defining “abuse,” “facility,” and “vulnerable adult”). In addition, all plaintiffs individually sue Fairfax for negligence, invasion of privacy, intentional

infliction of emotional distress (outrage), and negligent infliction of emotional distress. 19

6 For purposes of certifying a class, “Fairfax” is defined as BHC Fairfax Hospital Inc. d/b/a 20 Fairfax Behavioral Health, see 2d Am. Compl. at 1:2-3 (docket no. 62), and no distinction has

been drawn between the three sites operated by Fairfax.

21 7 This commencement date for the proposed class period corresponds with the date that precedes

22 by three years the filing of the original complaint in this action, see Compl. (docket no. 1) (filed April 30, 2019), and is intended to preclude any statute-of-limitations defense, see Supp. Resp.

23 at 8 (docket no. 43) (acknowledging that the WLAD has a three-year limitations period).

ORDER - 3

Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 4 of 17

1 Fairfax replies that, during discovery, “no one remembered seeing or using” the outdated

2 training materials on which the Putative Class Representatives rely. See Supp. Reply at 1

3 (docket no. 48).

4

Fairfax’s search for contraband, defined as items that might compromise patient

5 safety or privacy, begins with a scan, using a hand-held metal detector, while the patient

6 is clothed, and then entails a search of the patient’s garments, after the patient, in a

7 private area, out of camera view, and without staff surveillance, has removed them and

8 dressed in a hospital gown. See Fairfax Policy No. 1000.7, Ex. 4 to Berman Decl.

9 (docket no. 36-4). While the clothing is being searched elsewhere, a skin assessment of

10 the patient may be conducted. During a skin assessment, a nurse looks for wounds and

11 signs of infection. See Fairfax Policy No. 1001.40, Ex. 3 to Berman Decl. (docket

12 no. 36-3). The skin assessment is supposed to be performed in a private area, also out of

13 camera view, while the patient is wearing a gown that can be moved around to permit the

14 nurse to view only portions of the body in sequence. See id.; see also Resp. at 4 (docket

15 no. 42) (citing deposition testimony).

16

Fairfax asserts that a patient’s body is not ordinarily searched for contraband, and

17 that the Putative Class Representatives’ experiences were atypical. See Resp. at 4-5

18 (docket no. 42); see also Graham Dep. at 74:7-21 & 75:14-20, Ex. C to Neiman Decl.

19 (docket no. 45-3) (Fairfax’s policy refers to a search of belongings, not of a patient’s

20 body, and it does not envision that a patient will be totally naked during either a

21 contraband search or a skin assessment). Indeed, Putative Class Representative Jane

22 Doe’s own Patient Complaint and Grievance Report Form (“Grievance”) supports

23
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1 Fairfax’s position that the way Jane Doe was allegedly treated was unusual. See Ex. J to

2 Neiman Decl. (docket no. 45-10). In her Grievance, Jane Doe indicated that she was told

3 to remove all of her clothes, except for her “very small panties,” and to “squat down and

4 spread [her] vagina and behind.” Id. (docket no. 45-10 at 3). In response to Jane Doe’s

5 objections to these instructions, another staff member purportedly suggested that she pull

6 down her panties and “walk a few steps.” Id. (docket no. 45-10 at 4). According to Jane

7 Doe, this process made her feel “violated” and caused her to sob and shake, and she

8 “complied out of sheer terror.” Id. (docket no. 45-10 at 3-4). Jane Doe also reported,

9 however, that she spoke with four “other female patients,” and that each of them said

10 they received two gowns, “one for the front and one for the back,” so “all they had to do

11 was quickly flash their body.” Id. (docket no. 45-10 at 5). Jane Doe further wrote that

12 “NONE [of them] were asked to squat and open their private parts.” Id. (emphasis in

13 original). Thus, although Jane Doe’s allegations, if proven,8 might provide a basis for

14 her individual recovery in this action, albeit perhaps on a theory other than disparate

15 treatment, see infra note 14, they do not suggest that other Fairfax patients had similar

16 experiences or reveal a policy or practice of conducting cavity searches or requiring

17 patients to stand naked while their bodies are searched for contraband.9

18

19 8 Jane Doe’s version of events is disputed. According to Ghirmalem Haile, Jane Doe initially

20

refused the skin assessment, which she was permitted to do, but she later consented after another Fairfax staff member explained to her that she could go to the bathroom and change into a

hospital gown before undergoing the procedure. Haile Dep. at 25:12-26:1, 54:6-56:5, Ex. B to 21 Neiman Decl. (docket no. 45-2).

22 9 The Putative Class Representatives cite to a Washington State Department of Health (“DOH”) Statement of Deficiencies dated May 29, 2019, concerning Fairfax’s Kirkland facility, Ex. 12 to
23 Berman Decl. (docket no. 36-12), as evidence of “systematic violations.” See Mot. at 5 (docket

ORDER - 5

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1

During the period from January 1, 2015, to December 2, 2019, Fairfax admitted

2 25,350 patients,10 all of whom were searched for contraband. See Fairfax’s Answer to

3 Interrogatory No. 4, Ex. 2 to Berman Decl. (docket no. 36-2). Fairfax’s Answer to

4 Interrogatory No. 4 does not indicate how these contraband searches were conducted.

5 The Putative Class Representatives have offered no estimate concerning the number of

6 putative class members who underwent a contraband search of their clothing and/or a

7 skin assessment,11 as opposed to merely being scanned with a wand for metallic items of

8 concern.

9

10 no. 35). The DOH Statement identified four areas of concern: (i) privacy curtains, (ii) skin

assessments, (iii) emergency care (“Code Blue”) procedures, and (iv) emergency equipment and 11 supplies. See Ex. 12 to Berman Decl. (docket no. 36-12). In July 2019, Fairfax proposed a Plan

of Correction, see Ex. F to Neiman Decl. (docket no. 45-6 at 9-16), and in September 2019,

12 Fairfax submit a Progress Report concerning its Plan of Correction, see id. (docket no. 45-6 at

17-21). With regard to skin assessments, in the Progress Report, Fairfax indicated that it had

13 (i) revised its policies to designate a specific area in each unit, in which no cameras are located,

where skin assessments and contraband searches will be conducted, and (ii) retrained all nursing

14 staff concerning the revised policies, including the requirements that two staff members should be present throughout a skin assessment, that skin assessments and contraband searches should

15 be performed in the designated areas and not video recorded, and that patients should not be asked to squat or cough during a search for contraband. Id. (docket no. 45-6 at 18-19). In

16

October 2019, DOH accepted Fairfax’s attestation that the identified deficiencies had been corrected. See Ex. G to Neiman Decl. (docket no. 45-7). The Putative Class Representatives

discount DOH’s decision because the agency did not conduct an independent investigation to 17 ensure that the deficiencies had actually been addressed. See Reply at 4 (docket no. 49). Having

themselves relied on DOH’s Statement of Deficiencies in seeking class certification, the Putative 18 Class Representatives cannot simply ignore Fairfax’s efforts to rectify the situation or DOH’s

recognition that Fairfax had come into compliance with applicable regulations.

19 10 This figure does not distinguish between Fairfax’s three facilities, i.e., Everett, Kirkland, and

20 Monroe, and it includes patients who were admitted before April 30, 2016, when the proposed class period commenced, and who would not qualify as members of the putative class.

21 11 Although disrobing to permit a search of one’s apparel might qualify as a “strip search,” it
does not alone constitute a “cavity search,” and the Putative Class Representatives have not 22 separately quantified the extent to which cavity searches have occurred or are occurring at any of
Fairfax’s facilities. 23

ORDER - 6

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1 Discussion

2 A. Standard for Class Certification

3

Federal Rule of Civil Procedure 23 operates as “an exception to the usual rule that

4 litigation is conducted by and on behalf of the individual named parties only.” Comcast

5 Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682,

6 700-01 (1979)). To maintain a class action, a plaintiff must “affirmatively demonstrate”

7 compliance with Rule 23. Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

8 (2011)). The prerequisites of Rule 23 are not mere pleading standards, but rather are

9 evidentiary thresholds. See Wal-Mart, 564 U.S. at 350. Thus, a plaintiff bears the burden

10 of proving, not just simply alleging, that all four criteria of Rule 23(a) are satisfied,

11 see id. at 350-51, namely that (1) the class is so numerous that joinder of all members is

12 impracticable; (2) questions of law or fact common to the class exist; (3) the plaintiff’s

13 claims are typical of the claims of the class; and (4) the plaintiff will “fairly and

14 adequately” protect the interests of the class, see Fed. R. Civ. P. 23(a). Fairfax contends

15 that, in this case, commonality, typicality, and adequate representation have not been, and

16 cannot be, shown.

17

Even if the Rule 23(a) criteria are met, a plaintiff seeking class certification must

18 also establish, with evidentiary support, that the proposed class qualifies under at least

19 one of the three provisions of Rule 23(b). See Comcast, 569 U.S. at 33. In this matter,

20 the Putative Class Representatives rely on two different Rule 23(b) grounds. First, they

21 proceed under Rule 23(b)(2), which contemplates a class as to which the opposing party

22 “has acted or refused to act on grounds that apply generally to the class, so that final

23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 8 of 17

1 injunctive relief or corresponding declaratory relief is appropriate respecting the class as

2 a whole.” Fed. R. Civ. P. 23(b)(2). Second, they seek to apply Rule 23(b)(3) in

3 combination with Rule 23(c)(4), which together envision a class as to which the Court

4 finds that “the questions of law or fact common to class members predominate over any

5 questions affecting only individual members,” Fed. R. Civ. P. 23(b)(3), that “a class

6 action is superior to other available methods for fairly and efficiently adjudicating the

7 controversy,” id., and that maintaining a class action “with respect to particular issues” is

8 “appropriate,” Fed. R. Civ. P. 23(c)(4). The Putative Class Representatives ask that a

9 Rule 23(b)(2) class be certified as to both the WLAD and ADA claims, but their request

10 for a Rules 23(b)(3) and (c)(4) class is confined to just the WLAD claim.12

11 B. Rule 23(b)(2) - Injunctive or Declaratory Relief Class

12

1. Commonality

13

The Putative Class Representatives’ first hurdle is to demonstrate that the claims

14 of all potential class members depend on “a common contention” of such nature as “is

15 capable of classwide resolution.” Wal-Mart, 564 U.S. at 350. The test is whether the

16 determination of the truth or falsity of the common contention “will resolve an issue that

17 is central to the validity of each one of the claims in one stroke.” Id. “What matters . . .

18 is not the raising of common ‘questions’ ‒ even in droves ‒ but, rather the capacity of a

19 class-wide proceeding to generate common answers apt to drive the resolution of the

20

21 22 12 The ADA does not authorize private actions for damages. See Ervine v. Desert View Reg’l
Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014). 23
ORDER - 8

Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 9 of 17

1 litigation.” Id. (emphasis in original, quoting Richard A. Nagareda, Class Certification in

2 the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)).

3

The Court must “probe behind the pleadings” and engage in a “rigorous analysis”

4 as to whether the prerequisites for a class action have been satisfied. Comcast, 569 U.S.

5 at 33. The Court’s inquiry will necessarily “entail some overlap with the merits” of the

6 underlying claims because class certification considerations are generally “enmeshed” in

7 the factual and legal issues associated with the causes of action being pursued. Walmart,

8 564 U.S. at 351; see also Comcast, 569 U.S. at 33-34. In this case, the starting point for

9 analysis is a recitation of the elements of the claims as to which a Rule 23(b)(2) class is

10 sought.

11

2. The Washington Law Against Discrimination

12

The WLAD prohibits discrimination “because of . . . the presence of any sensory,

13 mental, or physical disability” with respect to the “right to the full enjoyment of any of

14 the accommodations, advantages, facilities, or privileges of any place of public resort,

15 accommodation, assemblage, or amusement.” RCW 49.60.030(1)(b). The Putative Class

16 Representatives acknowledge that, to present a prima facie case of public accommodation

17 discrimination under the WLAD, the putative class members must show (i) they have a

18 disability;13 (ii) Fairfax is a public accommodation; (iii) Fairfax provided a level of

19 service to them that was not comparable to the treatment afforded to individuals without

20

21 22 13 Under the WLAD, the term “disability” means “the presence of a sensory, mental, or physical
impairment” that “[i]s medically cognizable or diagnosable,” “[e]xists as a record or history,” or 23 “[i]s perceived to exist whether or not it exists in fact.” RCW 49.60.040(7)(a)(i)-(iii).
ORDER - 9

Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 10 of 17

1 disabilities; and (iv) their disability was a substantial factor causing the discrimination.

2 See Mot. at 18 (docket no. 35) (citing Miller v. Monroe Sch. Dist., 159 F. Supp. 3d 1238,

3 1250 (W.D. Wash. 2016), and Wash. State Commc’n Access Project v. Regal Cinemas,

4 Inc., 173 Wn. App. 174, 187, 293 P.3d 413 (2013)).

5

3. The Americans with Disabilities Act

6

The ADA bars discrimination “on the basis of disability” in the “full and equal

7 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations

8 of any place of public accommodation.” 42 U.S.C. § 12182(a). The ADA defines

9 discrimination as including the “failure to make reasonable modifications in policies,

10 practices, or procedures, when such modifications are necessary to afford such goods,

11 services, facilities, privileges, advantages, or accommodations to individuals with

12 disabilities, unless the entity can demonstrate that making such modifications would

13 fundamentally alter the nature of such goods, services, facilities, privileges, advantages,

14 or accommodations.” Id. at § 12182(b)(2)(A)(ii). In contrast to their WLAD claim,

15 which asserts disparate treatment, the Putative Class Representatives’ ADA claim alleges

16 a failure to accommodate.14 See Dunlap v. Liberty Natural Prods., Inc., 878 F.3d 794,

17 798 (9th Cir. 2017) (“a failure-to-accommodate claim ‘is analytically distinct from a

18 claim of disparate treatment or impact under the ADA’”). To prevail on their ADA

19

20 14 Fairfax characterizes as “nonsensical” the Putative Class Representatives’ discrimination theory because Fairfax does not provide services to non-disabled individuals, and thus, could not
21 have treated them more favorably than putative class members. See Resp. at 16 (docket no. 42). Fairfax’s argument exposes a fundamental flaw in the disparate treatment claim brought pursuant
22 to the WLAD, but it does not address whether liability might arise under the ADA for failure to accommodate despite Fairfax having catered solely to persons with disabilities.
23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 11 of 17

1 claim, the putative class members must prove that (i) they have a disability;15 (ii) Fairfax

2 owns, leases, or operates a place of public accommodation; (iii) Fairfax employed a

3 discriminatory policy or practice; and (iv) Fairfax discriminated against them, based on

4 their disabilities, by failing to make a requested reasonable modification to its policy or

5 practice, which was necessary to accommodate their disabilities. See Karczewski v.

6 DCH Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (quoting Fortyune v. Am.

7 Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004)).

8

4. The Allegedly Common Questions Are Unrelated

to the WLAD and ADA Claims

9

The Putative Class Representatives argue that the following questions establish the

10 requisite commonality:

11

• whether Fairfax owes a duty to protect its patients’ privacy, provide care

12

in a safe setting and protect patients from neglect and abuse, including

mental abuse;

13

• whether Fairfax violated any such duty when [sic] by providing

inadequate policies, practices, training, and supervision related to

14

patient searches;

15

• whether by failing to have adequate policies, practices, training and

supervision, Fairfax exposed patients with mental illness to the risk of

16

enduring unnecessary hardship of strip- and cavity-searches in order to

receive treatment; and

17

• whether Fairfax’s use of video cameras in the hall, the holding area

outside the bathroom, and in the room where strip searches are being

18

conducted invades patient privacy.

19 Mot. at 13 (docket no. 35). The Putative Class Representatives do not, however, explain

20 how these questions or their answers would relate in any way to the elements of the

21

22 15 The ADA defines “disability” as (A) a physical or mental impairment that “substantially limits one or more major life activities,” (B) having a record of such physical or mental impairment, or
23 (C) being regarded as having such physical or mental impairment. 42 U.S.C. § 12102(1).
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1 WLAD and ADA claims. The claims as to which the Putative Class Representatives seek

2 to certify a Rule 23(b)(2) class do not require proof or rebuttal of any duty of care or its

3 breach, exposure to or risk of harm, or invasion of privacy. Rather, for purposes of

4 Rule 23(b)(2), the key issue to be decided with respect to the WLAD and ADA claims is

5 whether Fairfax discriminated against any of its patients “because of” or “on the basis” of

6 disability. The above-listed allegedly common questions are unconnected to this key

7 inquiry, are not “central to the validity” of the statutory claims, and will not produce

8 answers that are “apt to drive the resolution of the litigation.” See Wal-Mart, 564 U.S. at

9 350. The Court declines the Putative Class Representatives’ invitation to overlook what

10 they must do to establish a violation of the WLAD and/or the ADA. See Ellis v. Costco

11 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“[I]t is not correct to say a district

12 court may consider the merits to the extent that they overlay with class certification

13 issues; rather, a district court must consider the merits if they overlap with the Rule 23(a)

14 requirements.” (emphasis in original)); see also Phillips v. Sheriff of Cook Cty., 828 F.3d

15 541, 552 (7th Cir. 2016) (plaintiffs seeking to certify a class must “articulate at least one

16 common question that is central to the resolution of all of their claims”).

17

5. The WLAD and the ADA Do Not Authorize Suit

for Quasi-Constitutional Torts

18 In support of their request for certification pursuant to Rule 23(b)(2), the Putative

19 Class Representatives contend that, because Fairfax’s policies and practices do not forbid

20 cavity and/or strip searches without reasonable suspicion, they create a risk of improper

21 searches. The Putative Class Representatives have borrowed from Fourth Amendment

22 jurisprudence the concept of a particularized basis to search, and they are essentially

23

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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 13 of 17

1 asserting a constitutional tort. Fairfax, however, is a private, not a governmental, entity,

2 and the Putative Class Representatives cite no authority for the proposition that Fairfax

3 cannot, without articulating any individualized justification, search all who enter its

4 facilities. They also fail to explain how their quasi-constitutional tort theory is actionable

5 under the WLAD and/or the ADA.

6

Even if the Putative Class Representatives could bring within the ambit of their

7 WLAD and ADA claims a challenge to the constitutionality or validity of Fairfax’s

8 contraband search policy, their reliance on B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957

9 (9th Cir. 2019), and Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014), is misplaced. Both

10 B.K. and Parsons involved claims of deliberate indifference, which were brought under

11 the Fourteenth and Eighth Amendments, respectively. B.K., 922 F.3d at 968 (involving a

12 substantive due process claim, which required proof of an objectively substantial risk of

13 harm and the official’s subjective awareness of the risk); see Parsons, 754 F.3d at 662,

14 676-77 (concerning challenges to health-care and isolation-unit policies and practices,

15 which purportedly manifested the prison officials’ deliberate indifference to a substantial

16 risk of serious harm to inmates). In each case, the government’s alleged “apathy to

17 unsafe conditions” was viewed as theoretically creating a risk of future harm that was

18 common to all class members, without regard to whether any “tragic event” had actually

19 occurred or, if so, in what manner. See Amador v. Baca, 2014 WL 10044904 at *4

20 (C.D. Cal. Dec. 18, 2014). The policies at issue were the “glue” that held together the

21 putative classes because the policies either were or were not unconstitutional, and

22

23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 14 of 17

1 therefore either did or did not give rise to liability, as to every member of the class. See

2 B.K., 922 F.3d at 969; Parsons, 754 F.3d at 678.

3

This reasoning does not apply to unlawful searches, and in attempting to invoke it,

4 the Putative Class Representatives have tried to put the proverbial “square peg through a

5 round hole.” See Amador, 2014 WL 10044904 at *4. As explained in Amador, the risk-

6 of-harm theory has “no place” in search-and-seizure jurisprudence because the manner in

7 which one person was searched or seized has no bearing on another person’s rights. Id. at

8 *4 & n.5; see id. at *4 (“[T]he Fourth Amendment admits no analogous considerations.

9 The focus is on each individual’s search – the risk of harm derived from another’s

10 asynchronous search does not fit into the analysis.”). The risk-of-harm analysis does not,

11 in this case, demonstrate the commonality required for class certification.

12

6. Numerosity, Typicality, and Adequate Representation

13

Commonality is not the only Rule 23(a) prerequisite that has not been satisfied.

14 Although Fairfax has not suggested that the Putative Class Representatives failed to

15 prove numerosity, the Court earlier identified information that has not been quantified,

16 see, e.g., supra note 11, and the Court is not persuaded that numerosity has been shown,

17 at least with respect to individuals allegedly subjected to cavity searches. In addition, the

18 Putative Class Representatives have not demonstrated typicality. They have defined the

19 proposed class broadly to include all individuals admitted to Fairfax facilities during the

20 class period, but as a result of the previously mentioned missing data and the lack of

21 commonality, the Court cannot conclude that the Putative Class Representatives’ claims

22 and experiences, which relate to only one of Fairfax’s three locations, are typical of those

23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 15 of 17

1 of the putative class members. Finally, in seeking to limit Fairfax’s ability to perform

2 searches for dangerous materials, the Putative Class Representatives assert interests that

3 might be antagonistic to those of putative class members, whose safety might be best

4 served, whether they agree or not, by allowing Fairfax to continue disarming incoming

5 patients, and thus, the Putative Class Representatives have not met the standard for

6 adequate representation. See Ellis, 657 F.3d at 985. For the foregoing reasons, the Court

7 declines to certify a Rule 23(b)(2) class as to the injunctive and declaratory relief sought

8 under the WLAD and the ADA.16 In light of this ruling, the Court need not and does not

9 address Fairfax’s argument that the Putative Class Representatives lack standing to seek

10 an injunction.

11 C. Rules 23(b)(3) and (c)(4) - Particular Issues Class

12

The “particular issues” as to which the Putative Class Representatives request

13 class certification are whether Fairfax’s policies and practices (1) “have allowed invasive

14 cavity searches and strip searches of adult patients without particularized suspicion,” and

15 (2) “have allowed use of video cameras to record cavity searches and strip searches,” in

16 violation of putative class members’ rights under the WLAD. See Mot. at 1 (docket

17 no. 35). Because the Putative Class Representatives have not satisfied the criteria of

18 Rule 23(a), they are not entitled to certification of a “particular issues” class under

19 Rule 23(c)(4). See Amador v. Baca, 2016 WL 6804910 at *3 (C.D. Cal. July 27, 2016)

20

21 16 The Court further observes that a Rule 23(b)(2) class seems unnecessary because a resolution
22 favorable to the individual plaintiffs in this matter would likely bind Fairfax in the future with regard to the manner in which it conducts contraband searches of newly admitted patients.
23
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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 16 of 17

1 (“the Ninth Circuit’s approval of Rule 23(c)(4) classes does not obviate the need to meet

2 the requirements of Rules 23(a) and (b)”).

3

In addition, certification as to the proposed “particular issues” would not be

4 “appropriate.” See Fed. R. Civ. P. 23(c)(4). In framing the “particular issues” in terms of

5 video-recorded cavity and/or strip searches that are “allowed,” rather than “required” or

6 “mandatory,” the Putative Class Representatives tacitly concede that particularized

7 grounds for conducting a cavity and/or strip search (and/or recording it) might absolve

8 Fairfax of liability to specific individuals.17 See Wal-Mart, 564 U.S. at 355 (a policy

9 “allowing discretion” is “just the opposite of a uniform . . . practice that would provide

10 the commonality needed for a class action” (emphasis in original)). Thus, even if the

11 answers to the “particular issues” outlined above were favorable to the putative class,

12 assessing how Fairfax’s policies and practices were applied, whether Fairfax has liability

13 to any of its tens of thousands of patients, and the existence, nature, and extent of any

14 damages would still need to be performed on an individualized basis. Thus, the Putative

15 Class Representatives have not made the requisite showing that any common questions of

16 law or fact would predominate over individual ones. See Fed. R. Civ. P. 23(b)(3). The

17

18 17 The Putative Class Representatives describe the search policies of Eastern State Hospital and

19 Western State Hospital, see Ex. 6 to Berman Decl. (docket no. 36-6), as “set[ting] the standard” for the type of guidance Fairfax should provide to its staff. See Mot. at 3 (docket no. 35). The

20

Court notes, however, that the state hospitals are subject to different regulations than private facilities, see, e.g., Wash. Dep’t of Soc. & Health Servs. Policy 5.5 (“Searches Among People

Committed to the State Hospitals Under RCW 10.77”), Ex. 7 to Berman Decl. (docket no. 36-7), 21 and this evidence does not establish that Fairfax’s policies and practices are deficient. It does,

however, constitute an acknowledgement by the Putative Class Representatives that, even under 22 the policies they tout as model examples, a cavity and/or strip search may be performed when the

situation warrants it.

23

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Case 2:19-cv-00635-TSZ Document 65 Filed 08/10/20 Page 17 of 17

1 Court concludes that, with respect to the “particular issues” identified, certifying a class

2 is neither a superior means of “fairly and efficiently adjudicating” this controversy, id.,

3 nor consistent with the standard set forth in Rule 23(c)(4).

4 Conclusion

5

For the foregoing reasons, the Court ORDERS:

6

(1) The Putative Class Representatives’ motion for class certification, docket

7 no. 35, is DENIED, and Fairfax’s motion to deny class certification and strike the class

8 allegations, docket nos. 18 and 20, is GRANTED.

9

(2) The class allegations set forth in Section V of the Second Amended

10 Complaint, docket no. 62, are STRICKEN. Plaintiffs’ individual claims remain in the

11 case.

12

(3) The Clerk is directed to send a copy of this Order to all counsel of record.

13

IT IS SO ORDERED.

14

Dated this 10th day of August, 2020.

15

16

A

17

Thomas S. Zilly

United States District Judge

18

19

20

21

22

23
ORDER - 17