John Doe 1 et al v. Washington State Department of Corrections et al, No. 4:2021cv05059 - Document 69 (E.D. Wash. 2021)
Court Description: ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION. Plaintiffs' Motion for Provisional Class Certification (ECF No. 16 ) is GRANTED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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John Doe 1 et al v. Washington State Department of Corrections et al Case 4:21-cv-05059-TOR ECF No. 69 Doc. 69 filed 05/17/21 PageID.1014 Page 1 of 20 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 JOHN DOE 1, JOHN DOE 2, JANE DOE 1, JANE DOE 2, JANE DOE 3, and all persons similarly situated, Plaintiffs, 9 10 11 12 NO. 4:21-CV-5059-TOR ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, and STEPHEN SINCLAIR, Secretary of the Department of Corrections, in his official capacity, 13 Defendants, 14 and 15 16 17 18 BONNEVILLE INTERNATIONAL INC., a Utah Corporation d.b.a. KIRO RADIO 97.3 FM; THE MCCLATCHY COMPANY, LLC, a California Limited Liability Company d.b.a. THE TACOMA NEWS TRIBUNE; and ANDREA KELLY, an individual. 19 Interested Parties. 20 ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 1 Dockets.Justia.com Case 4:21-cv-05059-TOR 1 ECF No. 69 filed 05/17/21 PageID.1015 Page 2 of 20 BEFORE THE COURT is Plaintiffs’ Motion for Provisional Class 2 Certification (ECF No. 16). This matter was heard with telephonic oral argument 3 on May 12, 2021. Katherine M. Forster, Ethan D. Frenchman, Heather L. 4 McKimmie, Lisa Nowlin, Nancy L. Talner, Danny Waxwing, and Joseph R. 5 Shaeffer appeared on behalf of Plaintiffs. Candie M. Dibble appeared on behalf of 6 Defendants. Michele L. Earl-Hubbard appeared on behalf of Interested Party The 7 McClatchy Company, d.b.a. The Tacoma News Tribune. Candice Jackson 8 appeared on behalf of Interested Party Andrea Kelly. The Court has reviewed the 9 record and files herein, the completed briefing, and the parties’ oral arguments, and 10 is fully informed. For the reasons discussed below, Plaintiffs’ Motion for 11 Provisional Class Certification (ECF No. 16) is GRANTED. 12 BACKGROUND 13 This case concerns three records requests that Defendants received pursuant 14 to Washington’s Public Records Act (“PRA”), RCW 42.56.540, seeking 15 information related to incarcerated transgender 1 individuals. The procedural and 16 factual background of the case are described in detail in the Court’s Order Granting 17 18 1 For purposes of this Order, the Court uses the term “transgender” as an 19 umbrella term to include transgender, non-binary, gender non-conforming, and 20 intersex individuals. ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 2 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1016 Page 3 of 20 1 Preliminary Injunction, filed concurrently. In connection with their Motion for 2 Preliminary Injunction, Plaintiffs seek provisional class certification to enjoin 3 Defendants from releasing documents that contain information related to Plaintiffs’ 4 and the proposed class members’ transgender status. Plaintiffs seek provisional 5 certification for the following proposed class: 6 All individuals identified as transgender, non-binary, gender non- 7 conforming, and/or intersex in records in the possession of the Washington 8 State Department of Corrections who are currently or were formerly 9 incarcerated by the Washington State Department of Corrections. 10 ECF No. 16 at 2. 11 Defendants oppose the provisional certification, largely on the grounds that 12 the proposed class fails to satisfy the commonality and typicality requirements of 13 Rule 23(a). ECF No. 37. 14 15 DISCUSSION A. Provisional Class Certification Standard 16 The requirements of Rule 23(a) must still be satisfied for provisional 17 certification. Specifically, the party seeking class certification must demonstrate 18 that “(1) the class is so numerous that joinder of all members is impracticable; (2) 19 there are questions of law or fact common to the class; (3) the claims or defenses 20 of the representative parties are typical of the claims or defenses of the class; and ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 3 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1017 Page 4 of 20 1 (4) the representative parties will fairly and adequately protect the interests of the 2 class.” Fed. R. Civ. P. 23(a). 3 Provided the proposed class satisfies the above criteria, courts must further 4 determine whether certification is appropriate under Rule 23(b). Where a party 5 seeks certification of a class under Rule 23(b)(2), he or she must demonstrate “the 6 party opposing the class has acted or refused to act on grounds that apply generally 7 to the class, so that final injunctive relief or corresponding declaratory relief is 8 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). As the party 9 moving for certification, Plaintiffs bear the burden of establishing that the 10 foregoing requirements have been satisfied. Mazza v. Am. Honda Motor Co., Inc., 11 666 F.3d 581, 588 (9th Cir. 2012). 12 Ordinarily, a court presented with a class certification motion must perform 13 a “rigorous analysis” to determine whether each of these prerequisites has been 14 satisfied. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). “Frequently that 15 ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s 16 underlying claim.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011); see 17 also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) 18 (emphasizing that a district court “must” consider the merits of a plaintiff’s claim 19 to the extent that they overlap with the prerequisites for class certification under 20 Rule 23(a)). “A party seeking class certification must affirmatively demonstrate ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 4 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1018 Page 5 of 20 1 his compliance with the Rule—that is, he must be prepared to prove that there are 2 in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal- 3 Mart, 564 U.S. at 350. However, in the context of a provisional certification, the 4 court’s analysis may be “tempered . . . by the understanding that such certifications 5 may be altered or amended before the decision on the merits.” Damus v. Nielsen, 6 313 F. Supp. 3d 317, 329 (D.D.C. 2018) (citation and internal quotations omitted). 7 8 9 B. Standing As an initial matter, Defendants argue the inclusion of formerly incarcerated individuals in the proposed class defeats commonality because those individuals 10 lack standing to pursue an Eighth Amendment claim. ECF No. 37 at 8-9. 11 Plaintiffs conceded at oral argument that formerly incarcerated individuals do not 12 have standing to pursue an Eighth Amendment claim, and therefore, a subclass of 13 Plaintiffs is necessary. 14 “When appropriate, a class may be divided into subclasses that are each 15 treated as a class under this rule.” Fed. R. Civ. P. 23(c)(5). “[E]ach subclass must 16 independently meet the requirements of Rule 23 for the maintenance of a class 17 action.” Aldapa v. Fowler Packing Co., Inc., 323 F.R.D. 316, 326 (E.D. Cal. 2018) 18 (citing Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 19 1981)). The Court notes Plaintiffs’ Complaint does contemplate two subclasses. 20 ECF No. 1 at 18, ¶¶ 5.2.1-5.2.2. Therefore, the Court finds division of the ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 5 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1019 Page 6 of 20 1 proposed class appropriate and will analyze the provisional class certification 2 based on the following Class and Subclass definitions found in Plaintiffs’ 3 Complaint: 4 Class Definition: All individuals identified as transgender, non-binary, 5 gender non-conforming, and/or intersex in records in the possession of the 6 Washington State Department of Corrections who are currently or were 7 formerly incarcerated by the Washington State Department of Corrections. 8 Current Inmate Subclass: All individuals identified as transgender, 9 non-binary, gender non-conforming, and/or intersex in records in the 10 possession of the Washington State Department of Corrections who 11 are currently incarcerated in Washington state prisons. 12 Former Inmate Subclass: All individuals identified as transgender, 13 non-binary, gender non-conforming, and/or intersex in records in the 14 possession of the Washington State Department of Corrections who 15 were incarcerated in Washington state prisons at any time. 16 C. Rule 23(a) Requirements 17 1. Numerosity 18 Rule 23(a)(1) provides that a proposed class must be “so numerous that 19 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Whether 20 joinder would be impracticable depends on the facts and circumstances of each ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 6 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1020 Page 7 of 20 1 case and does not, as a matter of law, require any specific minimum number of 2 class members.” Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1340 3 (W.D. Wash. 1998). “Generally, 40 or more members will satisfy the numerosity 4 requirement.” Garrison v. Asotin Cty., 251 F.R.D. 566, 569 (E.D. Wash. 2008) 5 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). 6 Conversely, the Supreme Court has indicated that a class of 15 “would be too small 7 to meet the numerosity requirement.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 8 U.S. 318, 330 (1980). Where the party seeks only injunctive or declaratory relief, 9 the numerosity requirement is somewhat relaxed, and “even speculative or 10 conclusory allegations regarding numerosity are sufficient to permit certification.” 11 Fraihat v. U.S. Immigr. & Customs Enf't, 445 F. Supp. 3d 709, 736-37 (C.D. Cal. 12 2020) (citation and internal quotation omitted). 13 a. Current Inmate Subclass 14 Plaintiffs contend they have identified over 100 currently incarcerated 15 individuals in Washington who are identified in Defendant DOC’s records as 16 transgender, non-binary and/or intersex. ECF No. 16 at 7. Defendants concede 17 there are 149 individuals currently incarcerated who identify as transgender, 18 gender non-conforming, or intersex, but argue only 29 of those individuals would 19 fall within the scope of the proposed class as they are the only individuals who 20 ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 7 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1021 Page 8 of 20 1 have requested their gender status remain fully confidential. ECF No. 37 at 14. 2 Defendants argue joinder of those 29 individuals is not impossible. Id. 3 There appears to be a dispute as to whether an individual’s disclosure of 4 their transgender status within the prison system is truly knowing and voluntary. 5 See ECF No. 52 at 6. Therefore, the Court is not persuaded at this time that the 6 proposed class is as limited as Defendants contend. For the purposes of 7 provisional class certification, numerosity is satisfied with respect to the Current 8 Inmate Subclass. 9 b. Former Inmate Subclass 10 Plaintiffs also contend there are “even more” formerly incarcerated 11 individuals in Washington who fall within the proposed Former Inmate Subclass. 12 ECF No. 16 at 7. Defendants do not specifically address numerosity for the 13 Former Inmate Subclass. While speculative, Plaintiffs have identified sufficient 14 class members to meet numerosity for provisional class certification. Fraihat, 445 15 F. Supp. 3d at 736-37. 16 17 2. Commonality Rule 23(a)(2) requires that “there are questions of law or fact common to the 18 class.” Fed. R. Civ. P. 23(a)(2). For purposes of this rule, “[c]ommonality exists 19 where class members’ situations share a common issue of law or fact, and are 20 sufficiently parallel to insure a vigorous and full presentation of all claims for ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 8 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1022 Page 9 of 20 1 relief.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2 2010) (internal quotations and citation omitted). Rule 23 does not require that 3 every question of law or fact must be common; rather, “all that Rule 23(a)(2) 4 requires is a single significant question of law or fact.” Abdullah v. U.S. Sec. 5 Assoc., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (emphasis in original) (quotation 6 omitted). “If a common question will drive the resolution, even if there are 7 important questions affecting only individual members, then the class is 8 ‘sufficiently cohesive to warrant adjudication by representation.’” Jabbari v. 9 Farmer, 965 F.3d 1001, 1005 (9th Cir. 2020) (quoting Amchem Prods., Inc. v. 10 11 Windsor, 521 U.S. 591, 623-24 (1997)). Plaintiffs have presented several common questions of law that are sufficient 12 to support a finding of commonality. Stated generally, the common question 13 driving this case is whether Defendants’ practice of releasing a variety of 14 documents in response to PRA requests that may contain sensitive and confidential 15 information pertaining to an individual’s transgender status creates federal and 16 state constitutional violations. See ECF No. 16 at 8. 17 18 a. Current Inmate Subclass Plaintiffs identify several common questions for the Current Inmate 19 Subclass, namely whether the proposed disclosure amounts to an Eighth 20 Amendment violation; whether the proposed disclosure violates federal and state ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 9 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1023 Page 10 of 20 1 constitutional rights to privacy; and whether the proposed disclosures are exempt 2 under state law. ECF No. 16 at 8. Defendants challenge commonality on the 3 grounds that some putative class members choose to live as openly transgender 4 within the prison system, and thus have voluntarily waived their rights to privacy. 5 ECF No. 37 at 8-12. Defendants also contend those living openly in the prison 6 system will have different claims and defenses with regard to Plaintiffs’ failure to 7 protect claims. ECF No. 37 at 8-12. 8 Not every question of law or fact must be shared to meet commonality. 9 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). At its core, the 10 commonality requirement is designed to ensure that class-wide adjudication will 11 “generate common answers apt to drive the resolution of the litigation.” Wal- 12 Mart, 564 U.S. at 350 (emphasis in original) (internal quotation and citation 13 omitted). Here, Defendants’ pattern or practice at issue categorically affects a 14 specific class of individuals. ECF No. 52 at 5. Individualized preferences of 15 confidentiality do not diminish or eliminate the rights of those individuals, 16 particularly where it is unclear whether disclosure of one’s transgender status 17 within the prison system is truly voluntary. See ECF No. 52 at 6. Additionally, an 18 individual’s choice to live openly as transgender does not necessarily diminish the 19 irreparable harm an inmate may face, particularly if the disclosure includes other 20 confidential information related to the individual’s transgender status (e.g., sexual ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 10 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1024 Page 11 of 20 1 victimization or sexual history). ECF No. 52 at 7. Each of these issues is directly 2 related to the common questions underpinning this litigation: whether the proposed 3 disclosure violates incarcerated transgender individuals’ rights. 4 “[W]here the circumstances of each particular class member vary but retain 5 a common core of factual or legal issues with the rest of the class, commonality 6 exists.” Rai v. Santa Clara Valley Transportation Auth., 308 F.R.D. 245, 254 7 (N.D. Cal. 2015). Such are the circumstances here. Thus, Plaintiffs have 8 established common legal questions across the Current Inmate Subclass. 9 10 b. Former Inmate Subclass: Plaintiffs identify several common questions for the Former Inmate 11 Subclass, namely whether the proposed disclosure violates Plaintiffs’ state and 12 federal constitutional rights to privacy and whether the proposed disclosures are 13 exempt under state law. ECF No. 16 at 8. Aside from the issue of standing, which 14 was resolved at oral argument, Defendants do not specifically challenge 15 commonality for the Former Inmate Subclass. 16 Plaintiffs assert their same privacy concerns also pertain to the Former 17 Inmate Subclass. ECF No. 52 at 7. Like Plaintiffs, the Former Inmate Subclass is 18 categorically affected by Defendants’ pattern or practice of releasing documents 19 that may contain highly confidential information about transgender inmates. Id. at 20 6. Because the disclosures may affect formerly incarcerated individuals in much ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 11 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1025 Page 12 of 20 1 the same way that Plaintiffs are affected, Plaintiffs have sufficiently alleged 2 common questions of law for the Former Inmate Subclass. 3 For the purposes of provisional class certification, Plaintiffs have established 4 commonality with respect to the Current Inmate Subclass for their claims under the 5 Eighth Amendment, Fourteenth Amendment, and Washington State Constitution, 6 as well as the PRA. Commonality is also satisfied with regard to the Former 7 Inmate Subclass for their claims under the Fourteenth Amendment, Washington 8 State Constitution, and the PRA. 9 3. Typicality 10 Rule 23(a)(3) requires that “the claims or defenses of the representative 11 parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). 12 This requirement serves to ensure that “the interest of the named representative 13 aligns with the interests of the class.” Wolin, 617 F.3d at 1175. Factors relevant to 14 the typicality inquiry include “whether other members have the same or similar 15 injury, whether the action is based on conduct which is not unique to the named 16 plaintiffs, and whether other class members have been injured by the same course 17 of conduct.” Ellis, 657 F.3d at 984. Stated differently, “[t]ypicality refers to the 18 nature of the claim or defense of the class representative, and not to the specific 19 facts from which it arose or the relief sought.” Id.; see also Stearns v. Ticketmaster 20 Corp., 655 F.3d 1013, 1019 (9th Cir. 2011), abrogated on other grounds by ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 12 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1026 Page 13 of 20 1 Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (“The typicality requirement 2 looks to whether the claims of the class representatives are typical of those of the 3 class, and is satisfied when each class member’s claim arises from the same course 4 of events, and each class member makes similar legal arguments to prove the 5 defendant’s liability.”) (brackets omitted). 6 7 a. Current Inmate Subclass Defendants argue Plaintiffs cannot establish typicality because each putative 8 class members’ claims and defenses will differ depending on the individualized 9 disclosure preference within the prison system. ECF No. 37 at 12. However, 10 “varying factual differences between the claims or defenses of the class and the 11 class representative” will not necessarily defeat typicality. Doe v. Los Angeles 12 Unified Sch. Dist., 48 F. Supp. 2d 1233, 1245 (C.D. Cal. 1999). This is especially 13 true where the named representative’s claims arise from the same event, practice, 14 or course of conduct, and the same legal theories, that give rise to the class claims. 15 Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). 16 Here, Plaintiffs assert their claims and harms are typical of the proposed 17 class because the proposed disclosure infringes on constitutionally protected 18 privacy rights of all incarcerated transgender individuals, and because the 19 disclosure will cause irreparable injury to all incarcerated transgender individuals. 20 ECF Nos. 16 at 9; 52 at 9-12. Plaintiffs also challenge Defendants’ assertion that ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 13 Case 4:21-cv-05059-TOR ECF No. 69 filed 05/17/21 PageID.1027 Page 14 of 20 1 some Plaintiffs and class members voluntarily waived confidentiality of their 2 transgender status. ECF No. 52 at 6. At this time, the varying degrees of 3 disclosure of an individual’s transgender status within the prison will not defeat 4 typicality, particularly where the voluntariness of those disclosures remains in 5 question. Doe, 48 F. Supp. 2d at 1245. Additionally, the same course of conduct 6 that gives rise to Plaintiffs’ claims also gives rise to the class claims. Baby Neal 7 for & by Kanter, 43 F.3d at 58. Therefore, the Court finds Plaintiffs’ have 8 sufficiently established typicality for the Current Inmate Subclass. 9 b. Former Inmate Subclass 10 Aside from the issue of standing, which was resolved at oral argument, 11 Defendants do not specifically challenge typicality for the Former Inmate Subclass. 12 Plaintiffs assert they share the same claims and harms as the Former Inmate 13 Subclass because privacy interests do not end upon release from incarceration and 14 because the threats of irreparable harm still exist beyond the prison walls. ECF 15 No. 52 at 9-11. The Court finds the Former Inmate Subclass is affected by the 16 same course of conduct and faces similar harm from that conduct because the 17 proposed disclosures will not be confined within the prison system but will be 18 released to the public at large. Baby Neal for & by Kanter, 43 F.3d at 58. For the 19 purposes of provisional class certification, Plaintiffs have satisfied typicality with 20 regard to the Former Inmate Subclass. ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 14 Case 4:21-cv-05059-TOR 1 2 ECF No. 69 filed 05/17/21 PageID.1028 Page 15 of 20 4. Adequacy of Representation The final prerequisite for class certification is that “the representative parties 3 will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 4 23(a)(4). This requirement applies to both the named class representatives and to 5 their counsel. “To determine whether named plaintiffs will adequately represent a 6 class, courts must resolve two questions: (1) do the named plaintiffs and their 7 counsel have any conflicts of interest with other class members[;] and (2) will the 8 named plaintiffs and their counsel prosecute the action vigorously on behalf of the 9 class?” Ellis, 657 F.3d at 985 (internal quotations omitted). 10 Plaintiffs represent they have no conflicts of interest with other class 11 members and that they and their counsel will vigorously pursue the claims on 12 behalf of the classes. ECF No. 16 at 12. Plaintiffs’ counsel has significant 13 experience litigating class actions and complex matters. Id. They are also well 14 versed in disability and constitutional law, and they possess sufficient resources to 15 prosecute the case. Id. Defendants challenge Plaintiffs’ adequacy on the same 16 grounds they challenge Plaintiffs’ commonality and typicality. ECF No. 37 at 12. 17 However, the relative positions of each Plaintiff regarding the level of disclosure of 18 their transgender status within the prison system is not relevant to the adequacy 19 analysis. Consequently, the Court finds that Plaintiffs and their counsel will 20 adequately represent the interests of the class. ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 15 Case 4:21-cv-05059-TOR 1 ECF No. 69 filed 05/17/21 PageID.1029 Page 16 of 20 D. Rule 23(b)(2) Requirements 2 “Rule 23(b)(2) permits certification of a class seeking declaratory or 3 injunctive relief where the party opposing the class has acted or refused to act on 4 grounds that apply generally to the class, so that final injunctive relief or 5 corresponding declaratory relief is appropriate respecting the class as a whole.” 6 Fraihat, 445 F. Supp. 3d at 740 (internal quotations omitted). In the Ninth Circuit, 7 the requirements of Rule 23(b)(2) may be met when the class members allege a 8 pattern or practice that is generally applicable to the class as a whole. Id. (citing 9 Rodriguez I v. Hayes, 591 F.3d 1105, 1125-26 (9th Cir. 2010)). The critical 10 question under Rule 23(b)(2) is “whether class members seek uniform relief from a 11 practice applicable to all of them.” Id. (citation omitted). 12 Here, Plaintiffs seek injunctive relief from Defendants’ practice of releasing 13 numerous documents in response to PRA requests that may contain highly 14 confidential information, the release of which threatens Plaintiffs’ and all current 15 and former transgender inmates’ health and safety. ECF No. 16 at 13. Defendants 16 do not challenge the appropriateness of certification under Rule 23(b)(2). Finding 17 that Plaintiffs present precisely the type of case contemplated by Rule 23(b)(2), the 18 Court finds Plaintiffs satisfy the requirements under Rule 23(b)(2). 19 20 ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 16 Case 4:21-cv-05059-TOR 1 2 3 4 5 ECF No. 69 filed 05/17/21 PageID.1030 Page 17 of 20 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Plaintiffs’ Motion for Provisional Class Certification (ECF No. 16) is GRANTED. 2. Pursuant to Fed. R. Civ. P. 23(b)(2), the Court hereby certifies the following Class and Subclasses in this case: 6 a. All individuals identified as transgender, non-binary, gender non- 7 conforming, and/or intersex in records in the possession of the 8 Washington State Department of Corrections who are currently or 9 were formerly incarcerated by the Washington State Department of 10 Corrections. 11 i. Current Inmate Subclass : All individuals identified as 12 transgender, non-binary, gender nonconforming, and/or 13 intersex in records in the possession of the Washington State 14 Department of Corrections who are currently incarcerated in 15 Washington State prisons. 16 ii. Former Inmate Subclass: All individuals identified as 17 transgender, non-binary, gender nonconforming, and/or 18 intersex in records in the possession of the Washington State 19 Department of Corrections who were incarcerated in 20 Washington State prisons at any time. ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 17 Case 4:21-cv-05059-TOR 1 2 3 ECF No. 69 filed 05/17/21 PageID.1031 Page 18 of 20 3. Pursuant to Fed. R. Civ. P. 23(c)(1)(B), the Court hereby certifies the following claims, including all damages related thereto: a. Eighth Amendment Claims: The claim that the proposed 4 disclosure constitutes cruel and unusual punishment by creating 5 conditions that put the incarcerated class members at risk of 6 serious harm, and that Defendants knew of the serious risk of harm 7 and acted with deliberate indifference. 8 b. Fourteenth Amendment Claims: The claim that current and former 9 incarcerated individuals have a privacy right in maintaining the 10 confidentiality of their transgender status, and that there is no 11 compelling government interest in disclosing the information 12 contained in the proposed disclosure nor is the disclosure narrowly 13 tailored to further a legitimate governmental interest. 14 c. Washington State Constitution Article I, Section 7: The claim that 15 a person’s transgender status is a private affair, and that the 16 government is prohibited from invading private affairs absent a 17 governmental interest that is carefully tailored and no greater than 18 reasonably necessary, and that the proposed disclosure does not 19 serve a governmental interest nor is it narrowly tailored or no 20 greater than necessary. ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 18 Case 4:21-cv-05059-TOR 1 ECF No. 69 filed 05/17/21 PageID.1032 Page 19 of 20 d. Washington Public Records Act RCW 42.56.540: The claim that 2 the proposed disclosure contains records that are exempt under the 3 Washington Public Records Act. 4 4. John Doe 1, John Doe 2, Jane Doe 1, Jane Doe 2, and Jane Doe 3 are 5 appointed as the Class Representatives for the certified Class and 6 Subclasses. 7 5. The American Civil Liberties Union of Washington Foundation; 8 MacDonald Hoague & Bayless; Disability Rights Washington; and 9 Munger, Tolles & Olson LLP are appointed as Class Counsel for the 10 Certified Class and Subclasses. 11 6. Pursuant to Rule 23(c)(2)(A), within fourteen (14) days from the date of 12 this Order, class counsel shall serve and file a proposed “Notice” to 13 members of the certified class and subclasses and suggest a method by 14 which this should be accomplished and at whose expense. 15 16 17 18 19 7. Defendants shall have fourteen (14) days from service of the proposed “Notice” to serve and file any objections to the same. 8. Class counsel shall have seven (7) days from service of any objection to serve and file a reply to the same. 9. The Court will thereafter Order Notice to be provided and by whom. 20 ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 19 Case 4:21-cv-05059-TOR 1 ECF No. 69 filed 05/17/21 PageID.1033 Page 20 of 20 10. The District Court Executive is directed to enter this Order and furnish 2 copies to counsel. 3 DATED May 17, 2021. 4 5 THOMAS O. RICE United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION ~ 20
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