Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 1 of 33
`
`Andrew H. Lemke, Sr. (WSB No. 7-4988)
`Supervising Attorney
`Protection & Advocacy System, Inc.
`7344 Stockman Street
`Cheyenne, Wyoming 82009
`Telephone: (307) 632-3496
`email: lawpanda@wypanda.com
`
`FlLLiJ
`U.S. DISTRICT COURT
`DISTRICT OF WYO?-;iNG'
`
`20ZZJAH18 PH 12=59
`
`^•iARGARETBOTKiHS.CLEriK
`CHEtERHE
`
`UNITED STATES DISTRICT COURT
`
`FOR THE
`
`DISTRICT OF WYOMING
`
`PROTECTION & ADVOCACY
`SYSTEM, INC.,
`
`Plaintijf
`
`Case No. CpA'CU-iO
`
`V.
`
`STEFAN JOHANSSON, in his official
`capacity as Interim Director of the
`Wyoming Department of Health, and
`PAUL MULLENAX, in his official
`capacity as Administrator of the
`Wyoming State Hospital,
`
`Defendants
`
`Complaint for Declaratory
`and Injunctive Relief
`
`Comes Now Plaintiff, Protection & Advocacy System, Inc. ("P&A"), and for its Complaint
`
`against Defendants, states and alleges as follows:
`
`Introduction
`
`1.
`
`This is a civil action for injunctive and declaratory relief pursuant to 28 U.S.C. §§2201
`
`and 2202, and for injunctive and declaratory relief under 42 U.S.C. §1983 to redress
`
`ongoing deprivations of Plaintiffs federal rights and to prevent the Defendants from
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`restricting full, complete, and meaningful access by Plaintiff to patients of the Wyoming
`
`
`
`Andrew H. Lemke, Sr. (WSB No. 7-4988)
`Supervising Attorney
`Protection & Advocacy System, Inc.
`7344 Stockman Street
`Cheyenne, Wyoming 82009
`Telephone: (307) 632-3496
`email: lawpanda@wypanda.com
`
`FlLLiJ
`U.S. DISTRICT COURT
`DISTRICT OF WYO?-;iNG'
`
`20ZZJAH18 PH 12=59
`
`^•iARGARETBOTKiHS.CLEriK
`CHEtERHE
`
`UNITED STATES DISTRICT COURT
`
`FOR THE
`
`DISTRICT OF WYOMING
`
`PROTECTION & ADVOCACY
`SYSTEM, INC.,
`
`Plaintijf
`
`Case No. CpA'CU-iO
`
`V.
`
`STEFAN JOHANSSON, in his official
`capacity as Interim Director of the
`Wyoming Department of Health, and
`PAUL MULLENAX, in his official
`capacity as Administrator of the
`Wyoming State Hospital,
`
`Defendants
`
`Complaint for Declaratory
`and Injunctive Relief
`
`Comes Now Plaintiff, Protection & Advocacy System, Inc. ("P&A"), and for its Complaint
`
`against Defendants, states and alleges as follows:
`
`Introduction
`
`1.
`
`This is a civil action for injunctive and declaratory relief pursuant to 28 U.S.C. §§2201
`
`and 2202, and for injunctive and declaratory relief under 42 U.S.C. §1983 to redress
`
`ongoing deprivations of Plaintiffs federal rights and to prevent the Defendants from
`
`restricting full, complete, and meaningful access by Plaintiff to patients of the Wyoming
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 2 of 33
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`State Hospital, as mandated by the Protection and Advocacy for Individuals with Mental
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`Illness Act, codified at 42 U.S.C. §§10801 et seq. and its federal regulations, codified at
`
`42 C.F.R. Part 51, and the Developmental Disabilities Assistance and Bill of Rights Act,
`
`codified at 42 U.S.C. §§15001, et seq. and its federal regulations, codified at 45 C.F.R.
`
`Part 1326.
`
`2.
`
`This action is directly and materially related to this Court's declaration of the same rights
`
`under the same statutes and between the same parties in Protection & Advocacy System,
`
`Inc. V. Freudenthal et ai. Civil Action No. 05-CV-014-J, reported at 412 F. Supp. 2d
`
`1211 (D. Wyo. 2006).
`
`3.
`
`Plaintiff has not brought this case to seek new or different rights. Plaintiff has brought
`
`this case to seek Court enforcement of Plaintiff s existing clearly-established access rights
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`under federal law, as previously declared by this Court, in order to stop and deter
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`Defendants' recurring and ongoing violations of those rights.
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`Jurisdiction and Venue
`
`4.
`
`Subject matter jurisdiction is vested with the Court under 28 U.S.C. § 1331, as this
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`dispute arises under the laws of the United States including, but not limited to:
`
`a.
`
`28 U.S.C. §§ 2201 and 2202,
`
`b.
`
`The Protection and Advocacy for Individuals with Mental Illness Act, codified at
`
`42 U.S.C. §§ 10801, et seq., and its federal regulations, codified at 42 C.F.R. Part
`
`51, (hereinafter collectively referred to as the "PAIMI Act"), and
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`Complaint for Declaratory and Injunctive Relief
`
`Page 2
`
`
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 3 of 33
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`c.
`
`The Developmental Disabilities Assistance and Bill of Rights Act, codified at 42
`
`U.S.C. §§ 15001, et seq., and its federal regulations, codified at 45 C.F.R. Part
`
`1326 (hereinafter collectively referred to as the "DD Act").
`
`5.
`
`Venue is proper in this district pursuant to 28 U.S.C. §1391(b). All events, acts, or
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`omissions giving rise to the claims occurred in the State of Wyoming, particularly in
`
`Unita County or Laramie County, Wyoming. All Defendants reside in the State of
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`Wyoming, and at all times acted under color of state law of the State of Wyoming.
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`6.
`
`Plaintiff, Protection & Advocacy System, Inc., located at 7344 Stockman Street,
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`Parties
`
`Cheyenne, Wyoming 82009, is a private, nonprofit Wyoming corporation authorized by
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`Congressional mandate to investigate incidents of abuse and neglect of persons with
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`developmental disabilities and mental illness if the incidents are reported to the system or
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`if there is probable cause to believe that the incidents occurred. Congress has, pursuant to
`
`the PAIMI Act and the DD Act, explicitly authorized protection and advocacy systems,
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`such as Plaintiff, to pursue administrative, legal and other remedies to ensure the
`
`protection of persons with developmental disabilities and mental illness. Plaintiff has
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`served as Wyoming's protection and advocacy agency since 1977. Plaintiff is a "person"
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`for purposes of 42 U.S.C. §§ 1983 and 1988 and other applicable federal laws. Plaintiff
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`is funded substantially by federal dollars. Plaintiff does not report to any state
`
`governmental entity regarding its work and no state governmental entity directs Plaintiff
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 3
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`
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 4 of 33
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`or participates in Plaintiffs decision-making process.
`
`Defendant Stefan Johansson (hereinafter "Defendant Johansson") is being sued in his
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`official capacity as Interim Director of the Wyoming Department of Health, Pursuant to
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`Wyo. Stat. §§9-2-101, et seq., as Interim Director of the Department of Health, Defendant
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`Johansson is the chief administrative officer and immediate supervisor of all
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`administrators and heads of agencies and institutions that are assigned to the Department
`
`of Health, including the Wyoming State Hospital (hereinafter "WSH"). Defendant
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`Johansson's responsibilities include, but are not limited to, administering state programs
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`for mental health and developmental disabilities services, coordinating a network of
`
`programs and facilities for those services, establishing standards, policies, procedures,
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`rules and regulations for the delivery of those services, and disbursing and administering
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`state and federal funds or other monies allotted to the Department of Health.
`
`!.
`
`Defendant Paul Mullenax (hereinafter "Defendant Mullenax") is being sued in his official
`
`capacity as Administrator of the WSH. As Administrator, or agency head, of the WSH,
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`Defendant Mullinax's responsibilities include, but are not limited to, administering state
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`programs for mental health and developmental disabilities services at the WSH,
`
`coordinating a network of programs and facilities for those services, establishing and
`
`ensuring compliance with standards, policies, procedures, rules and regulations for the
`
`delivery of those services, disbursing and administering state and federal funds or other
`
`monies allotted to the WSH, operating the WSH, and protecting, caring for, and treating
`
`patients at that facility.
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`Complaint for Declaratory and Injunctive Relief
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`Page 4
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 5 of 33
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`9.
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`Defendants Johansson and Mullinax represent the State of Wyoming and are responsible
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`for actions taken under color of state law that deny and restrict full, complete and
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`meaningful access by Plaintiff to patients of the WSH as required by Federal law. At all
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`times and events relevant to this action and its underlying events. Defendants Johansson
`
`and Mullinax acted under color of state law.
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`Procedural Prerequisites
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`10. P&A duly submitted a notice of claim pursuant to the Wyoming Governmental Claims
`
`Act to the Wyoming Department of Administration and Information on December 6,
`
`2021. A true and correct copy of the Notice of Claim is attached to this Complaint as
`
`"Exhibit A."
`
`Factual Allegations
`
`11.
`
`Recognizing the vulnerability of persons admitted to in-patient psychiatric facilities, the
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`pervasiveness of harm, and the power and control of facility operators over the vulnerable
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`population. Congress created a nationwide system of protection and advocacy agencies.
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`42 U.S.C. §§ 10801(a) and 15001(a).
`
`12.
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`Congressional intent is mandated in both the PAIMI Act and the DD Act as two-fold:
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`protect the federal interest in the health and safety of persons who are eligible under the
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`PAIMI Act or under the DD Act, and require that the protection and advocacy agencies be
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`free from state interference.
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`Complaint for Declaratory and Injunctive Relief
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`Page 5
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 6 of 33
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`13.
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`The federal interest in life, health, and safety of persons eligible under the PAIMI Act is
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`mandated broadly in 42 U.S.C. § 10801(b): the purpose of the PAIMI Act is to establish a
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`protection and advocacy system that will "ensure that the rights of individuals with
`
`mental illness are protected" and will "investigate incidents of abuse and neglect of
`
`mentally ill individuals."
`
`14.
`
`Similarly, the federal interest in life, health, and safety of persons eligible under the DD
`
`Act is mandated broadly in 42 U.S.C. §§ 15001(b): the purpose of the DD Act is to
`
`establish "protection and advocacy systems in each State to protect the legal and human
`
`rights of individuals with developmental disabilities" in order to "promote
`
`self-determination, independence productivity, and integration and inclusion in all facets
`
`of community life."
`
`15.
`
`The protection and advocacy systems created by the PAIMI Act and the DD Act are
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`charged with investigating abuse, which is defined as:
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`"any act or failure to act... which was performed, or which was failed to be
`
`performed, knowingly, recklessly, or intentionally, and which caused, or may have
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`caused, injury or death to" an individual with mental illness or a developmental
`
`disability. Abuse includes, but is not limited to, such acts as "verbal, nonverbal,
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`mental and emotional harassment;... rape or sexual assault;... striking;... the
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`use of excessive force when placing an individual in bodily restraints;... the use
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`of bodily or chemical restraints which is not in compliance with Federal and State
`
`laws and regulations;... or any other practice which is likely to cause immediate
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`Complaint for Declaratory and Injunctive Relief
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`Page 6
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`
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 7 of 33
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`physical or psychological harm or result in long-term harm if such practices
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`continue."
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`45 C.F.R. §1326.19. See 42 U.S.C. §10802(1); 42 C.F.R. §51.2.
`
`16.
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`The protection and advocacy systems created by the PAIMI Act and the DD Act are also
`
`charged with investigating neglect, which is defined as:
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`"a negligent act or omission by an individual responsible for providing services,
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`supports or other assistance which caused or may have caused injury or death to
`
`an individual... or which placed an individual ... at risk of injury or death, and
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`includes acts or omissions such as failure to: establish or carry out an appropriate
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`individual program plan or treatment plan (including a discharge plan); provide
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`adequate nutrition, clothing, or health care to an individual with developmental
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`disabilities; or provide a safe environment which also includes failure to maintain
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`adequate numbers of trained staff or failure to take appropriate steps to prevent
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`self-abuse, harassment, or assault by a peer."
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`45 C.F.R. §1326.19. See 42 U.S.C. §10802(5); 42 C.F.R. §51.2.
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`17.
`
`The federal interest in requiring that the protection and advocacy agencies be protected
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`from state interference is mandated by 45 C.F.R. §1326.21(c) (emphasis added):
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`States may not establish a policy or practice, which requires the P&A to: Obtain
`
`the State's review or approval of the P&A's plans to undertake a particular
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`advocacy initiative, including specific litigation (or to pursue litigation rather than
`
`some other remedy or approach); refrain from representing individuals with
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`Complaint for Declaratory and Injunctive Relief
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`Page 7
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 8 of 33
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`particular types of concerns or legal claims, or refrain from otherwise pursuing a
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`particular course of action designed to remedy a violation of rights, such as
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`educating policymakers about the need for modification or adoption of laws or
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`policies affecting the rights of individuals with developmental disabilities; restrict
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`the manner of the P&A's investigation in a wav that is inconsistent with the
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`Svstem's required authority under the DP Act: or similarlv interfere with the
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`P&A's exercise of such authority.
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`18.
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`The federal interest in requiring that protection and advocacy agencies have access to
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`patients and other people in a facility is mandated under the PAIMI Act by 42 C.F.R.,
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`§§51.41(d) and 51.42(b):
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`"A P&A system shall have reasonable unaccompanied access to public and
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`private facilities and programs in the State which render care or treatment for
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`individuals with mental illness, and to all areas of the facility which are used by
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`residents or are accessible to residents."
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`"Unaccompanied access to residents shall include the opportunity to meet and
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`communicate privately with individuals regularly, both formally and informally,
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`by telephone, mail and in person. Residents include minors or adults who have
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`legal guardians or conservators."
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`19.
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`The federal interest in requiring that protection and advocacy agencies have access to
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`patients and other people in a facility is mandated under the DD Act by 42 U.S.C.
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`§ 15043(a)(2)(H): The P&A "system shall—
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`Complaint for Declaratory and Injunctive Relief
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`Page 8
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 9 of 33
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`* * *
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`have access at reasonable times to any individual with a developmental disability
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`in a location in which services, supports, and other assistance are provided to such
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`an individual, in order to carry out the purpose of this subtitle [42 U.S.C. §§15041
`
`et seq.]."
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`20.
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`Expanding on the preceding mandate, 45 C.F.R. § 1326.27 emphasizes the right of access
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`as being "reasonable unaccompanied access" that is required to be "afforded upon
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`request" and "privately" and "shall be provided without advance notice and made
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`available immediately upon request" (emphasis added).
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`21.
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`Immediate oversight includes virtual oversight, such as telephone calls from patients to
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`Plaintiff P&A and from P&A to patients. This is especially important when in-person
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`contact cannot occur, such as during winter storms, wildfires, and road closures, or when
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`safety concerns warrant virtual contact, such as during the current COVID-19 global
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`pandemic.
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`22.
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`Recognizing this, the PAIMI Act at 42 U.S.C. §§10841(1)(J) and (M) distinguishes
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`between access by protection and advocacy agencies and access afforded to non-
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`investigative entities. Subsection (J) allows telephone restrictions in some instances, but
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`subsection (M) forbids any such restrictions on the right of patients to call and speak
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`privately with P&A and other investigative agencies.
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`A person admitted to a program or facility for the purpose of receiving mental
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`health services should be accorded the following:
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`Complaint for Declaratory and Injunctive Relief
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`Page 9
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 10 of 33
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`* * *
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`(J) The right... to converse with others privately ... except that, if a
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`mental health professional treating such person ... may, for a specific,
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`limited, and reasonable period of time, deny such access ...
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`Hs * *
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`(M) Notwithstanding subparagraph (J), the right of access to (including
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`the opportunities and facilities for private communication with) any
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`available—
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`* * *
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`(iii) system established under title I [42 U.S.C. §§10801 et seq.] to
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`protect and advocate the rights of individuals with mental illness;
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`* **
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`for the purpose of receiving assistance to understand, exercise, and
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`protect the rights described in this section and in other provisions
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`of law.
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`23.
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`The right of patients to call and speak privately with P&A equally implies also the right
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`of P&A to return calls and speak privately with the patients.
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`24.
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`When facilities such as the Wyoming State Hospital operate in walled secrecy, without
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`immediate oversight:
`
`a.
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`Patients are raped by staff members. Wyoming State Hospital v. Romine, 2021
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`WY 47,483 P.3d 840 (Wyo. 2021).
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`Complaint for Declaratory and Injunctive Relief
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`Page 10
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 11 of 33
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`b.
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`Patients are left siting in chairs for twenty-four hours, covered in ants, being bitten
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`countless times. Wyoming Guardianship Corporation v. Wyoming State Hospital^
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`2018 WY 114, 428 P.3d 424 (Wyo. 2018).
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`c.
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`Patients die. Craft v. State ex rel Wyoming Department ofHealthy 2020 WY 70,
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`465 P.3d 395 (Wyo. 2020).
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`25.
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`The State of Wyoming repeatedly has attempted to block, delay, impede, and obstruct
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`Plaintiff P&A's federal access authority.
`
`a.
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`In 1995, denials of access by the Wyoming State Hospital against Plaintiff were
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`alleged in Protection & Advocacy System, Inc. v. Leon Clyde Pruett, et al. United
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`States District Court for the District of Wyoming, Civil Action No. 95-CV-040-J,
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`and subsequently settled by a Consent Decree and Order.
`
`b.
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`In 2002, Protection & Advocacy System, Inc. entered into a Stipulated Settlement
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`Agreement with the State of Wyoming in Chris S. et al v. Geringer et al. United
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`States District Court for the District of Wyoming, Case No. 94-CV-311-J.
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`c.
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`In 2005, widespread access violations by the State prompted Plaintiff to seek
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`declaratory relief in Protection & Advocacy System, Inc. v. Freudenthal et al.
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`United States District Court for the District of Wyoming, Civil Action No. 05-
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`CV-014-J, reported at 412 F. Supp. 2d 1211 (D. Wyo. 2006). This case remains a
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`national leading precedent involving protection and advocacy access rights. The
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`case resulted in a declaratory judgment and Court-approved Access Agreement.
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`26.
`
`Despite the declaratory judgment and Access Agreement in the Freudenthal case, the
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`Complaint for Declaratory and Injunctive Relief
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`Page II
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 12 of 33
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`Wyoming State Hospital continued to violate Plaintiffs federal access rights. Plaintiff
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`repeatedly invoked the Access Agreement's dispute resolution process. Until the present
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`access deprivations, this process eventually resolved the previous access issues:
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`a.
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`Dispute Resolution Process No. 1, April 30, 2009 (Wyoming State Hospital
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`administrator email directing WSH staff not to communicate with P&A)
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`b.
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`Dispute Resolution Process No. 2, April 17, 2012 (Wyoming State Hospital's
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`failure to provide personnel records)
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`c.
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`Dispute Resolution Process No. 3, August 8,2012 (Wyoming State Hospital's
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`failure to provide videos)
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`d.
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`Dispute Resolution Process No. 4, June 30,2013 (Wyoming State Hospital's
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`failure to provide videos)
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`e.
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`Dispute Resolution Process No. 5, February 13, 2018 (Wyoming State Hospital's
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`obstruction of on-site visits, telephone access to patients, and failure to provide
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`videos)
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`27.
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`Beginning during the global COVID-19 pandemic, P&A experienced increasing
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`telephone access deprivations when attempting to contact WSH patients using P&A
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`access authority. Following are just two of the examples of the telephone access
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`deprivations:
`
`a.
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`On August 7,2020, a P&A advocate attempted to contact a WSH patient in Intake
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`No. 2105004, using P&A access authority.
`
`i.
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`On August 7, 2020, the P&A advocate first called the patient telephone. A
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`Complaint for Declaratory and Injunctive Relief
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`Page 12
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 13 of 33
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`WSH employee answered, and stated that the patient was not available.
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`ii.
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`Over the next twelve days, the P&A advocate called several times, and the
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`calls were not answered or the advocate was offered excuses for the
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`inability to speak with the patient.
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`iii.
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`On August 19, 2020, the P&A advocate finally was able to speak with the
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`patient, who was by then in the process of being discharged, and no longer
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`needed assistance.
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`b.
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`On September 17, 2020, a P&A advocate attempted to contact a WSH patient in
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`Intake No. 2112373, using P&A access authority.
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`i.
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`In the morning of September 17, 2020, the P&A advocate called the hall
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`telephone. A WSH employee answered the patients telephone, and stated
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`that he "would have to give a message to [patient's] team and have
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`[patient] call me when [patient] was on her out time."
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`ii.
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`At 11:30 a.m. on September 21, 2020, the P&A advocate finally was able
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`to speak with the patient, who was no longer interested in assistance.
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`28. P&A contacted its federal grant administrators for technical assistance. The funding
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`sources reached out to the Defendants and the Office of the Governor. The meeting did
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`not resolve the access deprivations, and they continue unabated through the date of filing
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`of this Complaint.
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`29. On September 14,2021, P&A and Defendants and their counsel participated in a lengthy
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`virtual meeting in an attempt to resolve the telephone access deprivations. During the
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`Complaint for Declaratory and Injunctive Relief
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`Page 13
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 14 of 33
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`meeting, Defendants proposed multiple levels of contacts, including telephone calls to
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`multiple Wyoming State Hospital and Wyoming Department of Health personnel, emails
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`to the same, and other unduly dilatory and complex steps to obtain the federally mandated
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`"immediate" and "unaccompanied" access. Defendant Mullinax proposed that P&A
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`could mail a letter to the WSH to request access, but even Defendant Johansson agreed
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`that was inappropriate. The meeting did not resolve the access deprivations, and they
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`continue unabated.
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`30.
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`Following this meeting. Defendants proposed a protocol for P&A telephone contact
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`requests. This proposal would have required P&A to email a WSH administrator, who
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`then would email a WSH social worker, who then would determine dates and times for
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`contact and email the WSH administrator, who then would contact P&A with the
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`proposed dates and times, who then would select a date and time and notify the WSH
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`administrator, who then would send the telephone number to the social worker, who then
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`presumably would allow the patient to call P&A. The P&A grant officer informed P&A
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`that the proposed protocol did not comply with federal law. P&A acceptance of the
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`Defendants' proposal could have jeopardized the P&A federal funding. The Defendants'
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`proposal did not resolve the access deprivations, and they continue unabated.
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`31. On September 21,2021, P&A attempted to move discussions forward by proposing a
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`simpler two-step process for access. The access deprivations continued, and the
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`examples listed below demonstrate the futility of P&A attempting to contact WSH
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`administrators for assistance.
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`Complaint for Declaratory and Injunctive Relief
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`Page 14
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`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 15 of 33
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`32. As a direct result of the continuing access deprivations, on September 27,2021, P&A
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`filed a Dispute Resolution Process No. 6 under the Access Agreement. This Dispute
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`Resolution filing terminated the futile discussions regarding access protocols.
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`33. On October 5,2021, Defendant Johansson responded to the Notice of Dispute, purporting
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`to desire to accept the withdrawn P&A discussion drafts of protocols for access and
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`stating in part that the Department of Health "will continue work to make our processes
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`more efficient and timely" and "My door is open and my cell phone is on. I am available
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`to you and the other members of P&A day or night." Despite this response, telephone
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`access delays and violations continue unabated through the date of filing this Complaint.
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`34. On October 20, 2021, following continued access deprivations, P&A notified Defendants
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`that P&A would commence the process to file suit. The access deprivations continue
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`unabated.
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`35. On December 6, 2021, P&A duly filed its Notice of Claim with the Wyoming
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`Department of Administration and Information. The access deprivations continue
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`unabated.
`
`36.
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`Multiple continuing access deprivations have occurred during and after the extended
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`emails, telephone calls, meetings, and virtual meetings between P&A and Defendants and
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`their counsel. Following are some of the examples. The deprivations are ongoing.
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`37. On September 21, 22, and 23, 2021, a P&A advocate attempted to contact a WSH patient
`
`in Intake No. 2178798, using P&A access authority.
`
`a.
`
`At 2:15 p.m. on September 21,2021, the P&A advocate called the WSH
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 15
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 16 of 33
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`switchboard, and asked to have the call put through to the patient telephone on
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`WSH Unit C. A WSH employee answered the telephone, and placed the advocate
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`on hold. The WSH employee stated that the WSH patient "was snoozing" and she
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`asked if the patient wanted to talk to the caller, and represented that the patient
`
`said "no."
`
`b.
`
`At 10:29 a.m. on September 22,2021, the P&A advocate called the WSH
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`switchboard, and asked to have the call put through to the patient telephone on
`
`WSH Unit C. The telephone rang over 20 times, but nobody answered the call.
`
`c.
`
`At 1:32 p.m., on September 22, 2021, the P&A advocate called WSH employee
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`Tara Gerrard, who was a point of contact Defendants instructed P&A to call.
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`The telephone rang, but nobody answered the call, and there was no voicemail
`
`option.
`
`d.
`
`At 2:02 p.m. on September 22, 2021, the P&A advocate called the switchboard to
`
`speak with WSH Administrator Paul Mullenax. The line was busy.
`
`e.
`
`At 2:04 p.m. on September 22, 2021, the P&A advocate again called the
`
`switchboard to speak with WSH Administrator Paul Mullenax. The telephone
`
`rang, but nobody answered the call.
`
`f.
`
`An email eventually prompted a scheduled telephone call for September 23, 2021.
`
`g.
`
`On information and belief, on September 22,2021, the WSH switchboard and
`
`telephone used by WSH point of contact Tara Garrard had Caller ID.
`
`38. On October 26, 2021, a P&A advocate attempted to return a call from a WSH patient in
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 16
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 17 of 33
`
`Intake No. 2186628, using P&A access authority.
`
`a.
`
`At 1:05 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit B. The telephone rang,
`
`but nobody answered the call.
`
`b.
`
`At 1:07 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the nursing station on WSH Unit B. A WSH employee
`
`answered and stated that he was unable allow [name redacted] to receive a call at
`
`the nursing station, and that the P&A advocate would have to call the patient's
`
`phone. The P&A advocate informed the WSH employee that the advocate had
`
`just done that and there was no answer. The WSH employee stated that someone
`
`must have been on the phone, but did not explain how the telephone rang without
`
`an answer while it was in use. The WSH employee asked the P&A advocate to
`
`call the patient's phone.
`
`c.
`
`At 1:17 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit B. The telephone was
`
`answered, and the advocate was able to speak with the WSH patient.
`
`d.
`
`On information and belief, on October 26,2021, the WSH switchboard and Unit
`
`B nursing station telephones had Caller ID.
`
`39. On November 3,2021, a P&A advocate attempted to return a call from a WSH patient in
`
`Intake No. 2186283, using P&A access authority.
`
`a.
`
`At 1:55 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 17
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 18 of 33
`
`the call put through to the patient telephone on WSH Unit B. The telephone rang,
`
`but nobody answered the call.
`
`b.
`
`At 2:16 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit B. The telephone rang,
`
`but nobody answered the call.
`
`c.
`
`At 2:38 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit B. The telephone was
`
`answered, and the advocate was able to speak with the WSH patient.
`
`d.
`
`On information and belief, on November 3, 2021, the WSH switchboard had
`
`Caller ID.
`
`40. On November 16,2021, a P&A advocate attempted to return a call from a WSH patient
`
`in Intake No. 2190525, using P&A access authority.
`
`a.
`
`At 11:04 a.m., the P&A advocate returned the call. The advocate called the WSH
`
`switchboard, and asked to have the call put through to WSH Unit D. A WSH
`
`employee answered the telephone, and placed the advocate on hold. The WSH
`
`employee represented that the WSH patient did not want to take the call from
`
`P&A.
`
`b.
`
`On information and belief, on November 16,2021, the switchboard and Unit D
`
`nursing station telephones had Caller ID.
`
`41. On November 22,2021, a P&A advocate attempted to return a call from a WSH patient
`
`in Intake No. 2191725, using P&A access authority.
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 18
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 19 of 33
`
`a.
`
`At 1:38 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit A. The telephone rang,
`
`but nobody answered the call.
`
`b.
`
`At 1:42 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the nursing station on WSH Unit A. The telephone rang,
`
`but nobody answered the call.
`
`c.
`
`At 1:48 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit A. The telephone rang,
`
`but nobody answered the call.
`
`d.
`
`At 2:00 p.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the nursing station on WSH Unit A. The telephone rang,
`
`but nobody answered the call.
`
`e.
`
`At 2:17 p.m., the P&A advocate called the WSH switchboard. A WSH employee
`
`stated that she had just been informed that the patient telephone on Unit A was not
`
`working. The P&A advocate asked to have the call put through again to the
`
`nursing station on WSH Unit A. The telephone rang, but nobody answered the
`
`call.
`
`f.
`
`At 2:20 p.m., the P&A advocate called the WSH switchboard, and asked to be
`
`transferred to the nursing station on WSH Unit A. The same WSH employee
`
`stated that was where the last call had been transferred. The call was not
`
`transferred.
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 19
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 20 of 33
`
`g.
`
`At 2:45 p.m., the P&A advocate called WSH employee Tara Gerrard, the point of
`
`contact that Defendants told P&A to call. The telephone rang, but nobody
`
`answered the call, and there was no voicemail option.
`
`h.
`
`At 2:50 p.m., the P&A advocate emailed WSH employee Tara Gerrard, stating:
`
`"Tara, I have attempted to call a patient [name redacted] five times on Unit A and
`
`there has been no answer on the unit at either the patient's phone or the nurse's
`
`station. I attempted to call you today at 2:45 p.m. but did not reach you and was
`
`also unable to leave a message. Please let me know if you can assist to facilitate a
`
`call. I will continue to try and reach this individual."
`
`i.
`
`At 3:02 p.m., the P&A advocate called the WSH switchboard, and asked to be
`
`transferred to the nursing station on WSH Unit A. The call was transferred, and
`
`the telephone finally was answered. The P&A advocate finally was able to speak
`
`with the WSH patient who had called P&A.
`
`j.
`
`On information and belief, on November 22,2021, the WSH switchboard and
`
`Unit A nursing station telephones had Caller ID.
`
`42. On November 29, 2021, a P&A advocate attempted to call a WSH patient who was an
`
`existing P&A client in Intake No. 2192607, using P&A access authority.
`
`a.
`
`At 8:30 a.m., the P&A advocate called the WSH switchboard, and asked to have
`
`the call put through to the patient telephone on WSH Unit B. The telephone rang,
`
`but nobody answered the call.
`
`b.
`
`At 8:45 a.m., the P&A advocate called the WSH switchboard, and asked to have
`
`Complaint for Declaratory and Injunctive Relief
`
`Page 20
`
`
`
`Case 0:22-cv-00010-KHR Document 1 Filed 01/18/22 Page 21 of 33
`
`the call put through to the patient telephone on WSH Unit B. The telephone rang,
`
`but nobody answered the call.
`
`c.
`
`At 9:00 a.ni., the P&A advocate called the WSH switchboard, and asked to be
`
`transferred to the nursing station on WSH Unit B. The call was transferred, and
`
`the telephone finally was answered. The P&A advocate finally was able to speak
`
`with the WSH patient who had called P&A.
`
`d.
`
`On information and belief, on November 29,2021, the WSH switchboard and
`
`Unit B nursing station telephones had Caller ID.
`
`43. On December 20, 202
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