Malone v. Strong

1

CALVIN MALONE, et. al., Plaintiffs, v. MARK STRONG, BILL VAN HOOK, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, STATE OF WASHINGTON, Defendants.

No. 16-5284 RJB

United States District Court, W.D. Washington, Tacoma

August 22, 2023

ORDER ON MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Defendants' Motion for Summary Judgment. Dkt. 176. The Court has considered the pleadings filed in support of and in opposition to the motion, oral argument heard on August 17, 2023, and the file herein.

In this case, the Plaintiffs, 219 residents at Washington's Special Commitment Center (“SCC”), a facility for those detained or civilly committed as sexually violent predators, allege that the water quality at the facility violates their Eighth and Fourteenth Amendment rights. Dkt 82. They seek damages, prospective injunctive relief, and attorneys' fees and costs. Id.

The Defendants now move for summary judgment. Dkt. 176. The Plaintiffs concede that, as people who are not prisoners but are civil detainees, their claims regarding water quality should be analyzed under the Fourteenth Amendment and agree that their Eighth Amendment claims should be dismissed. Dkt 189. Accordingly, the Defendants' motion for summary judgment on the Eighth Amendment claim should be granted and that claim dismissed. The Plaintiffs otherwise oppose the motion for summary judgment. Id. For the reasons provided below, the remainder of the Defendants' motion for summary judgment (Dkt. 176) should be denied, in part and granted, in part.

I. PROCEDURAL HISTORY, RELATED CASE, AND FACTS

A. PROCEDURAL HISTORY AND RELATED CASE

On April 14, 2016, Plaintiff Malone and 26 other SCC detainees filed this case, pro se, asserting that they were being harmed by the water quality at the facility. Dkts. 1-27. They initially moved to proceed as a class action, which was denied. Dkts. 28, 31 and 36. The Court appointed counsel and after several more cases regarding the water at the SCC were filed, the Court consolidated those cases into this case. Dkts. 40 and 54.

This series of cases followed Jones v. Special Commitment Center, U.S. Dist. Court for the Western Dist. of Wash. case number 3:14-cv-5018 BHS. Filed on January 8, 2014, in Jones, the plaintiff claimed, in part, that the water quality at the SCC violated his Fourteenth Amendment rights. Jones v. Special Commitment Center, et. al., U.S. Dist. Court for the Western Dist. of Wash. case number 3:14-cv-5018 BHS. Jones named as defendants the SCC and a Defendant here, Mark Strong, as well as others. Id. Another judge in this district granted the defendants' motion for summary judgment of dismissal. Id. at Dkt. 40. On March 3, 2016, the Ninth Circuit Court of Appeals reversed the decision as it related to water quality claims at the SCC, finding that Jones raised issues of fact as to whether Strong violated his Fourteenth Amendment rights. Jones v. Special Commitment Center, et. al., 644 Fed.Appx. 721 (9th Cir. 2016). The Ninth Circuit Memorandum in Jones stated that:

The record contains evidence showing that the water in Jones' housing unit was often brown, had floating debris, and at least once, caused Jones and another detainee gastrointestinal distress and vomiting....Jones also submitted evidence showing that staff occasionally told detainees not to use the water and passed out water bottles, and Strong did not address Jones' concern that he was unable to shower, wash, or shave.

Jones at 721-22. The Mandate was issued on March 28, 2016, and the Jones case was remanded the district court for further proceedings. Id. Jones died in November of 2016 and his case was dismissed without prejudice. Jones v. Special Commitment Center, et. al., U.S. Dist. Court for the Western Dist. of Wash. case number 3:14-cv-5018 BHS, Dkts. 69 and 74.

The Circuit opinion in Jones was issued "Not," but nevertheless, it is a strong indication of the Ninth Circuit's view of the necessary facts to carry a similar case forward.

After Jones was dismissed, more SCC detainees joined this case, and there are now 219 Plaintiffs. Defendants in this case are Mark Strong, the former CEO of the SCC, who resigned on April 22, 2016, and Bill Van Hook, the current CEO of the SCC, Washington's Department of Social and Health Services (“DSHS”), and the State of Washington. Dkt. 82.

B. FACTS

The following fact section contains opinions from various experts offered by the parties. In their reply, the Defendants attack the Plaintiffs' experts opinions. Dkt. 201. For purposes of the motion for summary judgment only, the undersigned finds that those opinions are adequate to be considered on summary judgment. The parties should not assume that this ruling will apply at trial.

1. Drinking Water Law and Standards

Drinking water in Washington is governed by both federal statutes and regulations (see e.g. Safe Drinking Water Act, 42 U.S.C. § 300f, et. seq.;^[1] 40 C.F.R. § 141-142, et. seq. (national primary drinking water regulations) and 40 C.F.R. § 143 (national secondary drinking water regulations)) and state statutes and regulations (see e.g. RCW 43.20.050 (vesting Washington's Department of Health with the power and duty to regulate drinking water); Washington Administrative Code 246-290, et. seq.). Federal primary drinking water regulations are standards that have been implemented to protect public health. Dkt. 181 at 3. For example, primary drinking water regulations target contaminants that are disinfection byproducts (“DBPs”) that can form during the disinfection of water (usually with chlorine); DBPs include trihalomethanes (“TTHM”) and five haloacetic acids (“HAA5”). Id. Secondary drinking water standards are guidelines for water's aesthetic characteristics such as taste, odor, and color. Id. The U.S. Environmental Protection Agency (“EPA”) sets a “Maximum Contaminate Level Goal,” which “is the level of a contaminant in drinking water below which there is no known or expected risk to health;” the “value is health-based,” “intended to be health protective,” and exceeding the value “increases the potential for adverse health effects.” Dkt. 191 at 2. In addition to incorporating the federal standards, Washington has minimum reporting levels of contaminates in drinking water. Id.

2. The SCC and the Water Drinking System at Issue

The SCC is located on McNeil Island, Washington in the Puget Sound waterway. Dkt. 181 at 1. The McNeil Island Correction Center was also located on McNeil Island, but was closed in 2011. Id.

Prior to the Correction Center's closure, the island's water system provided water to around 2,350 people. Dkt. 181 at 1. The water system was flushed (water was sent through the system at a high velocity) four times a year. Dkts. 180 at 1 and 181 at 1. Residents were sent notices before each scheduled flushing, asking them not to wash clothes, and were provided bottled water for drinking until the water was clear again. Dkt. 180 at 1-2.

By 2014, the water system provided water to only 421 people. Dkt. 181 at 1. As a consequence, the demand on the water system was reduced. Id. Velocities in the water system were decreased. Id. The reduction in demand increased the age of the water and increased sediment collection in the pipes. Id.

To make up for the lost velocity, the water system's operators increased the frequency of flushing. Dkt. 181 at 1-2. Flushing removes sediment and deposits and decreases water age in the distribution system. Id. at 2. As a consequence, water during flushing can appear brown. Id.

At times, the SCC would have a brown water event that was not related to a scheduled flushing. Dkt. 180 at 2. When a brown water event occurred, staff would again pass out bottled water and ask residents not to wash clothes until the water was clear. Id.

The Defendants' expert Damon Roth, P.E., contends that “water was confirmed to meet primary drinking water standards during [brown water] events,” and asserts that “[n]o drinking water violations were associated with the ‘brown water' events.” Dkt. 181-1 at 3.

As is relevant here, water quality testing (at least prior to November 2022 when the water system was renovated) was done quarterly at various sites in the distribution system. Dkt. 181 at 3. For most contaminants, averages were calculated annually. Id.

According to Plaintiffs' expert Lisa Corey, Ph.D.'s review of the historical data (from 1985 to 2020) on water quality at the SCC, there were “occasional exceedances of chemicals during the years of sampling” and “chemicals that were routinely elevated above guidance and reporting levels.” Dkt. 191 at 1. She notes those chemicals were iron, manganese and TTHMs. Id.

On October 16, 2014, the Department of Health conducted a Sanitary Survey of the McNeil Island water system and opened an enforcement action against it. Dkt. 177-3. A December of 2014 testing of the water system revealed a primary drinking water regulated contaminant, a TTHM, that exceeded the allowable limit. Dkt. 181 at 4. It was calculated to be .087 mg/L and the allowable limit is .08 mg/L. Id. at 3. According to the Defendants' expert, Damon Roth, P.E., health risks associated with TTHM result from long-term exposure, not a single exposure. Dkt. 181 at 4. He opined that the “increase of TTHM correlate[d] with a drop in the removal of total organic carbon at the water treatment plant in 2014 and the reduction in the population served.” Id. Roth states that as a result of these tests findings, system flushing was increased, closer monitoring occurred, unneeded portion of the system was isolated, a tank was cleaned, and the system's maintenance system was improved. Id. at 4-5.

The Department of Health conducted site visits in 2015...