Roger Smith arrived as a prisoner at the McNeil Island Correction Center (MICC), near Steilacoom, Washington in May 1999. Mrs. Smith lived in nearby Olympia. She has advanced arthritis in both hips and cannot walk long distances. During her first visit to MICC, the Smiths learned that because of Mrs. Smith's disability she would only be allowed one-third of the visiting time allowed non-disabled visitors at MICC.
At MICC, non-disabled visitors take a boat to the McNeil Island dock and walk about one-half mile to the visiting room. Disabled visitors who are unable to make the walk are transported to the island in a bus that is loaded onto a barge. Once on the island, they are driven to the visiting room. The boat schedule allows the non-disabled three weekly visits for five hours each. MICC scheduled the barge for disabled visits only on Friday and Saturday, and at times that allowed disabled visitors only two and one-half hour visits.
After learning that the barge makes runs to MICC every day, Mr. Smith asked that it be scheduled on more days for disabled visitors. Dan Snyder, then superintendent of MICC, acknowledged the disparate treatment of disabled visitors but refused to provide more visiting for them. The Smiths filed suit, pro se, in the federal District Court for the Western District of Washington at Tacoma.
During a deposition Kim White, MICC Visiting Sgt., admitted that the barge could be scheduled for an additional weekly disabled visiting day at no cost and without interfering with guards' ability to perform their duties. Still, Alice Payne, who had recently become the superintendent of MICC, refused to provide more disabled visiting.
Magistrate J. Kelly Arnold presided over the pre-trial proceedings. Magistrate Arnold ruled that Mr. Smith, who is not disabled, had standing to sue pursuant to 42 U.S.C. § 12133 and 28 C.F.R § 35-131(g) because he asserted that he was also discriminated against when MICC discriminated against Mrs. Smith, who is disabled. This ruling is important because it appears to be the first of its kind by a federal court located in the 9th Circuit.
42 U.S.C. $ 12132 requires that public entities, such as MICC, reasonably modify their activities to accommodate the disabled. Even so, Magistrate Arnold found that MICC's refusal to provide more visitation for the disabled did not violate that statute, even though doing so would cost MICC nothing in terms of money or efficiency.
Instead, Magistrate Arnold found that forcing MICC to provide additional disabled visitation would unreasonably burden MICC's resources and guard efficiency, citing Turner v. Safely, 482 U.S. 78, 89 (1987). Again, Sgt. White's admission that the additional disabled visiting could be provided without cost or inconvenience was completely ignored.
Based on that reasoning, Magistrate Arnold recommended that the Smiths' lawsuit be dismissed as frivolous. District Court Judge Franklin D. Burgess agreed, and the case was dismissed.
The Smiths appealed to the 9th Circuit Court of Appeals, which granted their motion to appoint counsel on appeal. The 9th Circuit appointed Leonard Feldman of Heller, Ehrman, White & McAuliffe, a Seattle law firm.
Kalai Lau, also with Heller/Ehrman, filed a persuasively written opening brief on the Smiths' behalf. Assistant Attorney General Shannon Inglis filed a response on the State's behalf but soon contacted` Ms. Lau to discuss settlement. A mediation conference was set for May 13, 2002.
During mediation, the State refused to pay more than $7,000 to settle the case. That amount was offered only after Ms. Lau offered to sacrifice Heller/Ehrman's fees, then about $55,000, if the State would settle for $9,000. Mediation ended with the State willing to pay,,' $7,000 and the Smiths unwilling to accept less than $9,.000.
Several days after mediation, 9th Circuit Mediator Chris Goelz wrote Ms. Inglis suggesting that the State offer more to settle. After additional dickering between Ms. Lau and Ms. Inglis, the case settled for $8,000. Leonard Feldman, who has litigated a number of Washington prison ADA cases, said he believed that is the largest settlement in such a case in Washington history.
The State also agreed to provide one additional disabled visiting day each week at MICC. However, that concession was not one of the settlement agreement's terms. Rather, MICC only expressed its intent to provide the visiting. To date, MICC continues to provide the extra visiting day for disabled visitors. See: Smith et. al. v. DOC et. al.,WD Wash. #CV-99-5579-FDB, 9th Cir. #01-35061.
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Related legal case
Smith et. al. v. Department of Corrections
|CV-99-5579-FDB, WD WA