Some employees who work at the Special Commitment Center for violent sex offenders bring water with them on the ferry to McNeil Island every day.
That way they don’t have to drink the water that residents describe as dark as mild coffee, with sediment that accumulates in it.
When the water runs brown, employees pass out bottled water to the people on the island, sometimes for as long as a week.
“The bottled water is sufficient for … for thirst or the body’s need for retaining water,” says James Jones, 64, who has been committed to the state Department of Social and Health Services-run facility since 2013.
“But I don’t think it’s sufficient for washing your tailbone in it or washing your face for a shave, or getting into the shower,” the former Spokane resident said. “You can’t get into the shower with bottled water.”
State officials say the water can be discolored, but it is still safe to drink. The bottled water is given to residents as a comfort, not out of necessity, officials said.
That reasoning isn’t good enough for Jones — and 28 other SCC residents — who ended up filing a federal lawsuit against the facility.
A spokesman for DSHS declined to comment on the legal matters and Assistant Attorney General Craig Mingay, the lead attorney for the state in Jones’ lawsuit, could not be reached for this story.
Jones sued the SCC after exhausting the state’s grievance processes. The lawsuit in U.S. District Court in Tacoma covered the condition of the water, along with the facility’s ventilation and how quickly the hot water runs out.
Magistrate Judge J. Richard Creatura dismissed Jones’ case. The Ninth Circuit Court of Appeals returned it to District Court over the condition of the water, while dismissing the other claims.
After the appeal was granted, 28 more residents sued about the water condition.
“It seems like there’s no problem when it comes to us drinking the water, but it’s not OK for the staff to drink the water, and I find that suspect,” says Calvin Malone, 64, of Edmonds, an SCC resident since 2012 who is among the second wave of litigants.
Water lawsuit still afloat
Jones arrived on McNeil Island on Feb. 22, 2013. On Nov. 13, he filed a grievance about the water condition, water temperature and air quality in SCC buildings. The next day, the grievance was denied.
On to court he went, filing the first of the lawsuits, on Jan. 8, 2014. In the suit, Jones made first, eighth Amendment and 14th amendment claims, contending that:
▪ He was not given adequate opportunity for redress of his grievances.
▪ Water and air quality at the SCC fell “below the minimum standards of decency.”
▪ Civilly detained persons “must be afforded more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”
Lawyers from the state’s Attorney General’s Office denied the water was unsanitary and said it stayed warm, and said the SCC’s ventilation systems worked properly.
They also said state employees were working in good faith and that Jones’ complaints weren’t “civil rights deprivations.”
As evidence for his suit, Jones collected and sealed samples from at least five periods in which SCC residents were told to not use the water.
He also collected emails through public records requests, including an exchange between an employee and Crystal McCabe, the safety officer at the SCC.
The employee complained about having to wash his hands in brown water and using overly diluted cleaning supplies. He ended his email by saying, “In closing, it doesn’t appear as if the facility cares about the safety of the employees working at SCC.”
McCabe forwarded the email to then-CEO Mark Strong, whose Feb. 27, 2014, email, in its entirety, said, “I doubt I need to write it, but don’t respond to (the employee).”
Jones submitted the exchange with the evidence he filed.
Among the state’s rebuttal evidence was testimony from Michael Trust, who operates the SCC’s waste-water treatment plant.
He wrote the water testing complied with federal and state standards, and that discolored water wasn’t hazardous. He said the discoloration was caused when water lines were flushed, heavy equipment went over the lines or fire hydrants were tested.
The state moved to have the case dismissed before it reached trial.
“Nothing in the complaint, the discovery, or Mr. Jones’ opposition to the motion for summary judgment creates a genuine issue of material fact,” Mingay wrote Sept. 19, 2014.
Creatura granted the summary judgment request Nov. 10, 2014.
“Although plaintiff has presented evidence that the water is brown, the showers are tepid, and the air is dank at the SCC, plaintiff has failed to prove that these constitute a health hazard,” Creatura wrote.
“To constitute cruel and unusual punishment, plaintiff must present admissable evidence that the conditions are unhealthful — not unpleasant.”
Jones, who represented himself throughout the case and wrote his filings by hand, appealed to the Ninth Circuit Court of Appeals.
The appellate court ruled Feb. 24, 2016, that the summary judgment was proper in regards to the complaints about air quality and temperature, and water temperature.
But the judges sent the case back to District Court for a trial about water quality. He cited Jones’ 14th amendment argument about the rights of SCC residents — civilly committed people deemed sexually violent predators — to better conditions of confinement than prisoners convicted of a crime.
Jones’ jury trial is to begin Dec. 12 with Creatura presiding.
Larger group tries to sue state
A second lawsuit came from Malone, who filed the suit pro se April 14. He sued Strong, using Jones’ case as the basis for his eighth and 14th amendment claims.
The filing includes a note dated Jan. 30, 2015, from McCabe, the SCC’s safety officer, to residents, saying the amount of trihalomethanes in the water there exceeded the limit from the federal Environmental Protection Agency.
Trihalomethanes are a byproduct of the chlorination process used to disinfect water supplies.
“This is not an immediate health risk,” McCabe wrote. “However, it is the consumer’s right to know trihalomethanes may, when consumed in excess of the (maximum contaminant level) over many years, result in liver, kidney, or central nervous system problems and an increased risk of cancer.”
Says Malone to The News Tribune: “There’s a lot of people who suddenly get ill and nobody knows why they get sick.”
He, along with more than 20 co-petitioners, tried to file the lawsuit as a class action for all former and current SCC residents. But Jones’ successful pro se navigation of his case to trial proved their undoing.
Magistrate Judge David Christel denied the residents’ request June 22, ruling they cannot represent one another in a class action.
Among his reasons was that if one person were released from the SCC, the class action would become moot because that person no longer was being wronged.
“We were informed by the court we could not represent each other as attorneys, so we had to file separately,” Malone said.
“Some of those people ... have very little ability to navigate the court system. Others were told that they saved too much money for their release, so they’ll probably back out” instead of paying the court filing fees. (Jones and Malone both filed as indigent.)
Malone has been trying to find a lawyer who will represent the residents as a class so they could certify.