IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
___________________________________
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
THE STATE OF LOUISIANA, et al.,
Defendants.
Civil No. 98-947-B-1
___________________________________
HAYES WILLIAMS, et al.,
Plaintiffs,
v.
JOHN McKEITHEN, et al.,
Defendants,
UNITED STATES OF AMERICA,
Amicus Curiae.
Civil No. 71-98-B
IN RE: JUVENILE FACILITIES
Civil No. CH 97-MS-001-B
IN RE: JENA JUVENILE JUSTICE
CENTER FOR YOUTH
Civil No. 98-804-B-M1
___________________________________
BRIAN B., et al.,
Plaintiffs,
v.
RICHARD STALDER, et al.,
Defendants.
Civil No. 98-886-B-M1
___________________________________
MEMORANDUM IN SUPPORT OF THE UNITED STATES' MOTION
FOR A PRELIMINARY INJUNCTION REGARDING CONDITIONS
OF CONFINEMENT AT THE JENA JUVENILE JUSTICE CENTER
The United States moves this Court for a preliminary
injunction pursuant to Fed. R. Civ. P. 65(a), Local Rule 65 of
the Uniform Dist. Ct. Rules, D. La., and the Violent Crime
Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. The
State and Wackenhut Corrections Corporation are jeopardizing the
lives and health of many of the juveniles confined in the Jena
Juvenile Justice Center, by failing to protect them from harm,
providing them with inadequate mental health care, and subjecting
them to unreasonable restraints.(1)
Therefore, the United States moves for a preliminary
injunction to: 1) enjoin the use of corporal punishment or
excessive force by Jena staff; 2) hire a sufficient number of
qualified staff and provide staffing training to provide adequate
safety and security; 3) develop and implement an adequate
response to the violence at Jena, including improved abuse
reporting mechanisms, an improved investigation system, adequate
responses to substantiated abuse, and adequate employment
screening; 4) reduce the population density of dormitories to
provide adequate safety and security and provide sufficient space
for appropriate classification of juveniles; 5) enjoin the use of
gas grenades; 6) limit the use of chemical restraints at Jena to
situations where there is a genuine risk of serious bodily harm
to another and other less intrusive methods of restraint are not
reasonably available; 7) impose limitations on the use of
isolation and mechanical restraints on juveniles at Jena;
8) enjoin the use of four and five point restraints by
correctional staff; 9) impose limitations on the use of isolation
and restraints at Jena on juveniles with mental retardation or
mental health needs to situations and methods that comport with
accepted professional standards; 10) to provide adequate mental
health treatment, supervision, and housing for juveniles who
engage in suicidal and self-injurious behavior; 11) enjoin
disciplinary or punitive action against juveniles who exhibit
self-injurious or suicidal behavior; and 12) eliminate obvious
suicide hazards in the facility.
Background
In 1998, before the Court would permit the State to transfer
juveniles to the newly-built Jena, the Court requested that the
United States, amicus in Williams v. McKeithen, No. 71-98-B, and
In re: Juvenile Facilities, No. CH 97-MS-001-B (together
referred to as "Williams"), evaluate the proposed plans for the
opening of the facility. The Court was concerned about the
opening of a new secure juvenile correctional facility and stated
that Jena was "not opening unless we get everything on board.
We're not going to have another Tallulah at Jena." Transcript of
August 10, 1998 Status Conference at 19. Together with Williams
plaintiffs, we negotiated a "private settlement agreement"(2) with
the State and Wackenhut, which provided for specific measures to
govern Jena's operation and contribute to the safety of the
juveniles to be confined there. This agreement, called the Jena
Interim Agreement, also provided that after Jena was up and
running, the United States and its experts would evaluate
conditions of confinement at Jena and file reports with the
Court. See Exhibit A.
Jena opened in December 1998. Allowing the facility time to
get on its feet, we initially monitored conditions by reviewing
documents periodically produced by Wackenhut and reading the
Court Expert's and the State's reports. The Court Expert, John
Whitley, documented problems at the facility right from the
start. Mr. Whitley noticed some improvements with security
during the summer of 1999 when the State had a presence at Jena,
but noted that security problems reverted when the State left
Jena in September 1999. Mr. Whitley's reports made clear that
over the course of Jena's initial year of operation, some
problems have never been resolved. In December 1999, Mr. Whitley
concluded: "My impression of the Jena Juvenile Justice Center, if
no major changes are made, is that it is a disaster waiting to
happen." December 13, 1999 Whitley Report at 13.
We toured Jena in January 2000 with four experts. At the
end of each tour, our experts provided exit interviews to counsel
for Wackenhut and the State, as well as to Jena staff, to give
Jena the benefit of their initial thoughts and an opportunity to
begin to take corrective action immediately. On February 23,
2000, we filed our expert reports with the Court and promised to
seek a negotiated agreement with the parties before enlisting
judicial assistance. Exhibit B, Response of the United States to
the Court's November 6, 1998 Order Concerning the Jena Juvenile
Justice Center ("Response")(without attachments) at 2. Part II of
the Jena Interim Agreement, which covers limitations on the use
of isolation and chemical and mechanical restraints, lapsed with
the filing of our expert reports. Efforts to negotiate a
consensual remedy to the problems at Jena have been unsuccessful.
In the course of conducting its monitoring obligations under
the Jena Interim Agreement, the United States found that
juveniles at Jena are subjected to life-threatening and hazardous
conditions. The United States attaches affidavits from each of
our experts, as well as their respective reports regarding
conditions at Jena, in support of its motion for a preliminary
injunction as follows: Affidavit and report of protection from
harm expert, Dr. Nancy Ray (Exhibit C); Affidavit, updated CV,
and report of mental health care expert, Dr. Kathleen Quinn
(Exhibit D); Affidavit and report of medical care expert, Dr.
Michael Cohen (Exhibit E); and Affidavit and report of juvenile
justice expert, Mr. Paul DeMuro (Exhibit F).
I. STANDARD FOR ISSUANCE OF A PRELIMINARY INJUNCTION
The Fifth Circuit's legal standard for issuance of a
preliminary injunction is well established. The moving party
must carry the burden of persuasion as to all of the following
four elements:
1. There is a substantial likelihood of success on the
merits;
2. There is a substantial threat that plaintiff will
suffer irreparable injury if the injunction is denied;
3. The threatened injury outweighs any damage that the
injunction may cause the defendants; and
4. The injunction will not disserve the public interest.
Sugar Busters LLC v. Brennan, 177 F.3d 258, 264-65 (5th Cir.
1999), citing Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.
1998), and Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246,
250 (5th Cir. 1997); Affiliated Professional Home Health Care
Agency v. Shalala, 164 F.3d 282, 284 (5th Cir. 1999). In
addition, the injunction sought must comply with the terms of the
Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626 (a)(2).
In the case at bar, an analysis of the relevant facts and
law reveals that the issuance of injunctive relief is appropriate
because each of the four elements required for the issuance of a
preliminary injunction is met and the injunction sought complies
with the PLRA.
II. STATEMENT OF FACTS
A. Defendants routinely expose youth to staff abuse and
juvenile-on-juvenile violence without adequate
response.
1.Staff abuse and juvenile-on-juvenile violence
As fully discussed in our February 23, 2000 Response(3) and
as delineated in the attached expert reports, defendants subject
juveniles at Jena to routine physical abuse and overly aggressive
uses of force by staff, including punches, take downs, and body
slams.(4) See Exhibit B at 8-9, Exhibit C at 3-12; Exhibit F at
9-11; Exhibit D at 21-22; Exhibit E at 43. Defendants resort to
using force, including physical take downs and restraints, too
quickly in addressing minor acts of non-compliance, use group and
corporal punishment, and engage in taunting, provoking, and
humiliating conduct towards juveniles. See Exhibit B at 8-9;
Exhibit C at 5-12, 16-22; Exhibit F at 9-11, 15; Exhibit D at 21-22.
Officers at Jena slam youth against walls and doors, harshly
rub their faces on cement floors and walkways, take away their
clothing, require them to squiggle on their bellies across the
floor, and make them squat naked with their buttocks spread apart
for several minutes during strip searches. Exhibit C at 5.
Defendants even violently restrain some youth with chronic
medical conditions that require careful handling. For example,
staff used force on LB, a juvenile with a colostomy bag. LB's
intestine was pushed out of the colostomy hole, creating a risk
of trauma or infection.(5)
With respect to juvenile-on-juvenile violence, there is a
very high incidence of juvenile fights in the facility with
injuries resulting from these altercations. Exhibit C at 3;
Exhibit D at 21-25; Exhibit E at 43-44; Exhibit F at 9. Staff
sometimes will not and sometimes lack the training to intervene
to stop the violence. See Exhibit C at 17. There is also
evidence that some staff encourage or recruit stronger juveniles
to fight other youth. Exhibit F at 9. Some juveniles have felt
so unsafe in the facility, that they reported that they hoped to
spend the rest of their time in lock-down without school or
recreation in order to ensure their protection. See Exhibit C at
3.
Juveniles at Jena are sustaining an unacceptably high rate
of traumatic injuries, almost all of which are attributed to
officers' use of force or fights among youth. Exhibit C at 9-10.
For example, Dr. Ray found that in the 54-day period from
November 28, 1999 until January 20, 2000:
There were 104 reported traumatic injuries to youth, or
two traumatic injuries per day;
At least one-fourth of the youth at Jena had been
traumatically injured at least once during this brief
period;
There were 66 reported orthopedic injuries to youth at
Jena, and in almost all of these cases, youth were
x-rayed for suspected fractures or serious sprains or
strains to various body parts including hands, wrists,
feet, ankles, backs, spines, jaws, shoulders, noses,
ribs, knees, and hips;
Twenty-five youth were sent for assessments, usually
x-rays, or other treatment for hand injuries,
reflective of the number of physical fights at Jena;
There were 40 non-orthopedic traumatic injuries,
including lacerations requiring sutures, youths having
teeth knocked out, and busted lips;
There were five reports of youth alleging sexual
assaults, only two of which had been formally
investigated; and
Eight youth either harmed or tried to kill themselves.
Exhibit C at 9-15.
The incidence of documented use of force has been increasing
since November 1999. Exhibit C at 17. Dr. Ray concludes that
"the frequency and seriousness of these incidents [of use of
force], coupled with the high rate of serious traumatic injuries
to youth at the institution, provide hard empirical evidence that
the Jena Center is a dangerous place to be." Exhibit C at 18.
The United States' medical expert, Dr. Cohen, and its mental
health expert, Dr. Quinn, find that the level of violence at Jena
is detrimental to the medical and mental health of juveniles.
See Exhibit E at 43-44 (reporting unusually high rates of stress-
related disorders such as hypertension and ulcers in the
facility); Exhibit D at 21-24 (citing case examples of a pattern
of physical, sexual, and emotional abuse with a lack of an
organized institutional response).
2.Defendants' inadequate response to the violence
Defendants do not take adequate measures to respond to the
violence at Jena. Jena's abuse investigation process is broken,
such that it offers juveniles few, if any, protections. See
Exhibit B at 9-12; Exhibit C at 9. Dr. Ray delineates serious
barriers to reporting allegations of abuse; a pattern of
institutional staff not acting on complaints that were filed;(6)
many staff not being aware of their obligations to report abuse
within and outside of the facility with the predictable
consequence of a failure to report many abuses; and critical
flaws in the investigation of the complaints that are acted upon,
including the failure to follow standard investigation procedures
and bias against juvenile accounts of incidents. Exhibit C at
23-29.
Dr. Ray found that "hundreds" of incidents of suspected or
alleged staff-on-youth abuse over the past year were never
investigated, many of which were more serious than those which
were investigated. Exhibit C at 29; See Exhibit B at 11 (citing
examples of allegations of abuse that were never investigated).
Despite the routine oversight of the Jena investigator by
the State Department of Public Safety and Corrections (DPS&C),
there is no evidence that obvious deficiencies in the abuse
investigation system were detected, much less remedied, by the
State or Wackenhut officials.
3. Other conditions at Jena exacerbate the violence
a. Work force problems at Jena contribute to the
unsafe environment
There are tremendously high rates of staff and administrator
turnover at Jena, severe staff shortages, and frequent use of
overtime. See Exhibit C at 40; see Exhibit B at 14-16. These
unremedied problems result in juveniles being supervised by
overworked and inexperienced staff. Id. at 43. There is
evidence that in some cases officers have simply left their posts
rather than stay for mandatory overtime. Exhibit C at 42. There
is even evidence that staff have left juveniles in the cell block
units unattended. See Exhibit F at 10.
Not only is the correctional staff inexperienced, but many
supervisory staff lack juvenile justice experience and do not
have the training to match their job responsibilities. Exhibit F
at 9. Line staff are also inadequately trained for their
positions, especially in using verbal, nonphysical interventions
to de-escalate confrontations. Exhibit F at 8, 14; Exhibit D at
25.
Jena is failing to take reasonable measures to ensure that
staff do not have past criminal records or employment experiences
that make them unsuited to work at the facility. See Exhibit C
at 44-50; see Exhibit B at 15, 16. There is evidence that some
employees have been hired and maintained on the payroll despite
identified histories of criminal arrests and convictions. Jena's
inadequate hiring practices have led to an unusually high
termination rate at the facility during its first year.
b. Insufficient float space and high density
in 48 bed dormitories.
Jena cannot adequately supervise 48 juveniles housed in each
of the Falcon C and D and the Eagle C and D units. Dr. Quinn
described these 48-bed dormitories as loud, chaotic, and barely
in control. Exhibit D at 22. Dr. Quinn reports that these
living units exceed the population limit standards set by the
American Correctional Association for living units in juvenile
training schools such as Jena. Exhibit D at 22. Mr. DeMuro
notes that on the 48-bed dormitories, the acoustics are poor and
when all 48 juveniles are in the unit, it is difficult for staff
to supervise them. Exhibit F at 12. Moreover, there is a lack
of float space in the facility - empty beds that staff can use to
move juveniles into or out of a particular unit. Dorms generally
operate at full capacity, preventing Jena from transferring a
youth due to a special need or as a reward for positive behavior
without displacing another youth. Exhibit D at 27.
B. Defendants expose many juveniles at Jena to abusive and
life-threatening use of chemical restraints and fail to
respond adequately to incidents where chemical
restraints are used inappropriately.
Jena endangers the life and health of juveniles and injures
some juveniles through its dangerous and unreasonable use of
chemical restraints, as illustrated by the examples below.
1. Defendants' unlawful conduct and the resulting harm to juveniles on November 27, 1999
On November 27, 1999, the defendants deployed a "triple
chaser grenade", which is a CS gas grenade, indoors into the
Falcon C unit, that at the time housed at least 46 youth (some of
whom were being compliant and already in bed) and several Jena
staff. The grenade was deployed because allegedly some of the
juveniles were yelling and kicking a trash can. Defendants
risked the lives of at least 46 juveniles and several staff by
using a grenade whose manufacturer's specifications specifically
state that it "is designed for outdoor use in crowd control
situations . . . . It should not be deployed . . . indoors due to its fire producing capability." (emphasis added). Exhibit F at
6 and attachment to the report. The gas from the grenade
permeated some of the other units in the building, which had to
be evacuated.
After the use of the grenade, juveniles were ordered to lie
face down outdoors on concrete in the cold, some in only their
underwear, for approximately five hours. Exhibit E at 7.
Defendants also sprayed at least four juveniles with a hand-held
canister of "Deep Freeze" mace while they were on the ground.
Exhibit E at 5-6. On at least two occasions, two groups of
youths were ordered to go back into Falcon C before the gas had
been ventilated - the youth claim for punishment because they
were complaining about being cold. Exhibit F at 7.
TH, a youth with a history of a seizure disorder, was
exposed to gas three times that evening including being subjected
to the grenade, being ordered back into the unit where the gas
was still noxious, and then being sprayed in the face with "Deep
Freeze" while lying down outside. He began to shake violently
immediately after he was sprayed with "Deep Freeze." Exhibit E at
6. A nurse found him unresponsive and he was taken to the
emergency room. Id. His face was red and swollen, and he
complained of burning in his eyes. Two days after the incident,
he complained of blurred vision, face burning, and soreness to
his left eye. About four days after the incident, he complained
about his face being burned and the nurse observed that his skin
was peeling. Dr. Cohen found evidence of repeated failures to
provide this juvenile with adequate medical care after his
exposure to chemical restraints. Id. at 5-8.
Defendants used the gas grenade and the "Deep Freeze" Spray
without regard for the juveniles' chronic medical conditions,
such as asthma. Exhibit E at 8. For example, DH, an asthmatic
youth, was subjected to the teargas grenade in Falcon C, and was
seen by the facility physician after he complained of the after-
effects of the chemical agents. His respiratory rate was
abnormally high, evidencing active asthma, but he was not
provided treatment for his asthma. Exhibit E at 8.
2. Defendants' inadequate response to the events of
November 27, 1999
The Jena Project Zero Tolerance ("PZT") investigator
concluded that the use of chemical restraints appeared to be
within acceptable limits. Mr. DeMuro finds that the
investigation was flawed because the investigator took an active
part in the incident, the investigator failed to interview key
staff and juveniles, and there was no investigation of the use of
chemical spray on the walkway or the taking of juveniles back
into the noxious gas. Exhibit F at 6.(7)
Defendant Wackenhut's response to the incident is that,
other than failing to comply with the notification provisions of
the Interim Agreement, they believe their conduct in using the
chemical restraints complies with the Interim Agreement.(8) See
Exhibit M, Wackenhut Response to December 22, 1999 Report, Jena
Juvenile Justice Center at 4-6 (names of juveniles have been
redacted). Wackenhut also states that it would be permissible to
use the Triple Chaser Grenade in an enclosed space of
approximately 4200 square feet. Id. at 4. Defendant Wackenhut
did not adequately investigate the staff involved in the use of
chemical restraints on the night of November 27, 1999. Nor did
Wackenhut take any disciplinary action regarding the involved
staff.(9)
As for the State, its investigation was also flawed and
incomplete. Assistant Secretary of Corrections, Billy Travis,
reported to Secretary Stalder on December 3, 1999, regarding the
events of November 27, 1999. See Exhibit O, December 3, 1999
Report of Assistant Secretary B.R. Travis to Secretary Stalder
re: Jena Juvenile Justice Center. Mr. Travis did not address
whether any of the force used that evening was excessive in light
of DPS&C's use of force regulations. He stated only that the
Assistant Warden made a "terrible mistake" in giving the
Lieutenant the authority to use his discretion to deploy the gas
grenade, thereby violating the Interim Agreement; and that there
was a staffing problem that night. Id. at 3. Thus, the State
has not made any finding that excessive force was used, and there
is no evidence that the State has taken sufficient remedial
measures to address the use of chemical restraints on November
27, 1999, and forcing juveniles to remain on the ground semi-dressed for hours.(10)
3. Other inappropriate uses of chemical restraints
The use of a gas grenade on November 27, 1999, is not an
isolated event. On December 19, 1998, the facility used a gas
grenade indoors to quell a disturbance. Immediately after the
incident, the United States wrote to the State and Wackenhut,
expressing its concern regarding the inability of the facility to
intervene in a timely manner in order to address a behavioral
disturbance by juveniles without resorting to using a gas
grenade. See Exhibit G. In the same letter, the United States
also expressed concern that Mr. Pepper, the State's investigator,
made no finding in his report regarding whether the use of the
gas grenade constituted excessive force.(11) Id.
Jena also documented 32 chemical spray incidents at the
facility in 1999 in its PZT log. Exhibit C at 16. The United
States notified defendants of allegations of improper uses of
chemical spray as early as January 8, 1999. See Exhibit H. In
response to our letter, Wackenhut admitted that it did in fact
spray a juvenile in order to prevent him from breaking a
sprinkler head in his room, apparently taking the position that
this was not an excessive use of force. See Exhibit Q, January
28, 1999 letter from Amber Rives to Kevin Russell.
As recently as March 7, 2000, the facility used "Deep
Freeze," a hand-held chemical spray, on two juveniles who
allegedly refused to stop beating and kicking their cell door.
Exhibit R, March 7, 2000 Use of Force form and March 8, 2000
facsimile from Asst. Warden Simms to John P. Whitley with
attached incident report and Unusual Occurrence Reports (names of
juveniles and staff have been redacted). This is another
instance where the facility used a chemical restraint for
juvenile conduct that did not pose an immediate physical harm to
anyone nor was any alternative use of force other than giving
orders attempted before these juveniles were sprayed.
C. Defendants routinely isolate juveniles under unduly
harsh conditions, for unjustified reasons, and for
durations unrelated to the behavior of the
juveniles.
Defendants impermissibly isolate juveniles at Jena.(12)
Exhibit C at 37-39. Many juveniles in the cell blocks are
confined to their cells from the late afternoon to the next
morning. Juveniles who do not attend school are locked in their
cells during the day as well.(13) Id. at 38-39. In addition to
these isolation practices, the facility often places juveniles on
lockdown. Id. For example, Jena documented at least 98
lockdowns of 63 different juveniles in December 1999; however,
Dr. Ray states there is strong evidence that many lockdowns were
not documented. Moreover, most facility documentation lacks
narratives explaining what the youth had done to warrant lockdown
and how the juvenile was behaving on lockdown. Id. at 38-39.
Mr. DeMuro finds that youth placed in Falcon A unit as a
result of being judged to be "out of control" or "being a danger
to security" are subject to "extensive periods of room
confinement and punishment in Falcon A before having a
disciplinary hearing." Exhibit F at 12. Even if most of these
youth regain control in a short period of time, they are still
excluded from the general population and subjected to long
periods of room confinement in Falcon A while they await
disciplinary hearings, which generally do not occur in a timely
fashion. Exhibit F at 11-12. Mr. DeMuro also reports that staff
do not visually monitor juveniles in isolation every fifteen
minutes. Id. at 11.
The conditions of confinement while youth are locked in
their cells is unreasonable. Many youth are confined to small,
locked cells with only a metal bunk, covered by a two-inch
mattress, and a metal sink and toilet for 15 or more hours per
day. Exhibit C at 8. Dr. Ray reports that almost all of the
youth on Falcon A, the cell block used for administrative
segregation, do not have one full set of clothing to wear and
that many of the youth on Falcon A and B are wearing dirty
clothes. Exhibit C at 33.
D. Defendants fail to provide adequate supervision,
reasonable safety, and adequate mental health care for
suicidal and self-injurious youth.
Suicide attempts and self inflicted wounds occur frequently
at the facility.(14) Jena's psychiatrist and psychologist
describe a pattern of repetitious offender self-mutilation to
escape the dangers of the Jena general population, but neither
could describe Jena's approach to addressing the root causes of
the self-injurious behavior. Exhibit D at 13. Defendants do not
have mental health behavioral plans for self-injurious behavior;
they do not adequately monitor self-injurious and suicidal youth;
they house suicidal and self-mutilating juveniles in unsafe areas
where these juveniles are not protected from physical harm.
Exhibit D at 13-17, 18-20; Exhibit F at 13. Juveniles with
patterns of suicidal and self-injurious behavior are exposed to
suicide hazards that are obvious, and many of which have already
been used for self harm at the facility.(15) Exhibit D at 13-17,
18-20; Exhibit F at 13. Defendants also use punitive and
coercive responses to self-injurious behavior, even though Jena's
psychiatrist acknowledges that the use of tickets, chemical
spray, and removal of mattresses is not standard practice and is
anti-therapeutic. Exhibit D at 13-17, 18-20.
The serious injuries and life-threatening situations that
some juveniles at Jena experience are illustrated by TG. TG, a
small juvenile with mental retardation and a history of Attention
Deficit Hyperactivity Disorder, has attempted to harm himself
over 10 times at Jena from methods such as threatening to hurt
himself with a syringe, hanging, cutting himself, and attempting
to drown himself. Exhibit D at 23. Some of his recent
experiences at the facility have included:
- On May 6, 1999, TG threatened to kill himself with a needle
and syringe, indicating that he was being victimized by
youth wanting sexual favors and taking his canteen. The
psychologist's response to TG's allegation was to refer TG
to the psychiatrist. Exhibit D at 14.
- The very next day, on May 7, 1999, the psychologist's note
describes that the juvenile was physically assaulted by five
other youth in his dorm. Id.
- On May 10, 1999, TG had a sheet tied around his neck. Id.
at 20; Exhibit W, TG juvenile record page JJJ003983.
- On June 23, 1999, he had cuts on his inner right arm and a
belt around his neck. Id.
- On June 25, 1999, he asked the psychiatrist if he could go
to Bridge City, and on June 28, 1999 he made a similar
request to the psychologist due to continued physical and
sexual victimization. Id.
- On July 2, 1999, he had a belt around his neck and was
attempting to drown himself in the toilet. Id. at 20.
- On July 7, 1999, he was found with a sheet around his neck
that was affixed to the bar in the window in his cell. He
was left in this cell after this attempt. Review of his
medical record indicates no mental health order for
precaution or initiation of suicide watch. Id.
- On August 1, 1999, he was found threatening to jump off the
top bunk in his cell while a shoelace was tied around his
neck and was affixed to the window. The shoelace had to be
cut off. Id.
- On August 23, 1999, he was found under his bed with a belt
around his neck. The facility responded by giving him a
disciplinary ticket and a reprimand. Id. at 15.
- On October 28, 1999, the psychologist observed TG with
abrasions, a right eye bruised and swollen, as well as his
nose and jaw swollen. TG reported that peers were taking
his food as well as forcing him to perform sexual acts. If
he refused, he was beaten by peers. Although TG denied
sexual victimization when directly questioned during our
tour, other juveniles reported that he was sexually
assaulted on the weekend before the United States' tour of
the facility. Id.
Despite all of the serious self-injuries and near successful
suicide attempts at the facility, the psychiatrist has not
surveyed the units for suicide hazards; the emergency cut down
tool has not been kept in units where suicidal juveniles are
housed; and suicide watch continues to be held on the cellblocks,
giving juveniles access to the sprinklers, window bars around
which to tie ligatures, and beds with protrusions which allow for
hanging. Exhibit D at 19. Suicide hazards are even present in
the medical isolation rooms at the facility. Exhibit E at 44.
Finally, showers throughout the facility pose a risk of hanging.
Id.
E. Improper use of mechanical and mental health restraints
Juveniles at Jena are mechanically restrained in ways that
grossly deviate from acceptable professional standards. Exhibit
D at 27-32. Jena uses restraints without regard to the mental
health needs of the juvenile, without adequate authorization,
without medical assessments, and without adequate monitoring.
The Interim Agreement does not permit use of four and five-point
restraints by correctional staff in the facility, we found
examples of the use of such restraints by officers. Moreover,
there is evidence that correctional staff use mechanical
restraints, such as handcuffs, when there is no justification for
their use. Examples of unreasonable uses of restraints include:
- Correctional staff ordered CB, a mentally ill youth, into 4
point restraints on his bed in the cell block, without a
physician's orders for the restraints, without a mental
health professional assessment, and without documented
medical monitoring. Exhibit D at 28.
- DC was placed in 4-point restraints by correctional staff
for almost three hours. The juvenile was quoted as saying
"I hope I hurt my head. I'm gonna try to break my arm", but
there was no medical or mental health assessment of him, nor
was there any documented medical monitoring of the
restraint. Id. at 31.
- NR, who has a long history of self-mutilation, was placed on
the floor in cuffs after self mutilating on October 1, 1999.
Id.
- RS, a mentally ill youth, was placed in mechanical
restraints for beating on a window and door, two hours after
he attempted suicide. Id. at 30-31.
- MT cut his wrists. Jena's psychologist ordered that
correctional staff constantly monitor the youth. Ignoring
the mental health order and not providing staff to
constantly watch MT, correctional staff instead restrained
MT to the bed in his cell in four-point restraints. Exhibit
D at 29. On another occasion, MT was placed in cuffs and
shackles after swallowing pieces of metal. MT was "dragged
back to mattress" by a Captain and placed in cuffs. MT
pressed his wrists against the cuffs to make reds marks and
tried to scratch his back with the cuffs. MT bit a hole
through his lip. The Jena physician was contacted and he
gave a telephone medication order. Id. at 31-3O. On yet
another occasion, MT threatened to tie underwear around his
neck so he was left naked in his cell and placed in
handcuffs. Id. at 32.
III. ARGUMENT
A. The United States is likely to succeed on the merits.
A party seeking a preliminary injunction needs to prove that
it has a substantial likelihood of succeeding on the merits. The
showing required to demonstrate "likelihood of success on the
merits" is reduced where the showing of irreparable injury and/or
the balance of harms is particularly strong. In Canal Authority
of State of Florida v. Callaway, 489 F.2d 567, 576-577 (5th Cir.
1974), the court explained that:
Although a showing that plaintiff will be more severely
prejudiced by a denial of the injunction than defendant
would be by its grant does not remove the need to show
some probability of winning on the merits, it does
lower the standard that must be met. Wright & Miller,
Federal Practice and Procedure: Civil § 2948.
In order to prevail on the merits in this action, the
United States must demonstrate that defendants have engaged in a
pattern or practice of conduct that deprives the juveniles at
Jena of their rights, privileges, or immunities secured or
protected by the United States. 42 U.S.C. § 14141. In pattern
or practice cases, the burden of proof is satisfied where a
preponderance of the evidence reveals instances of sufficient
scope, variety, and number to constitute a pattern. See, e.g.,
Madrid v. Gomez, 889 F. Supp. 1146, 1181 (N.D. Cal. 1995); Ruiz
v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part,
vacated in part on other grounds, 679 F.2d 115 (5th Cir. 1982),
modified by 688 F.2d 266 (5th Cir. 1982). Such a conclusion can
rest on a variety of evidence, including the opinions of experts
with the benefit of having comprehensively reviewed facility
records, lay witness testimony, as well as evidence regarding
specific instances and practices. Madrid, 889 F. Supp. at 1181.
1. The appropriate constitutional standard
The Supreme Court has not yet decided the appropriate
constitutional standard by which to judge conditions in post-adjudication juvenile facilities such as Jena. In 1982, the
Court decided Youngberg v. Romeo, holding that a person with
mental retardation in state custody has a constitutional right
under the Due Process Clause of the Fourteenth Amendment to
adequate food, shelter, reasonable care, reasonably non-restrictive conditions of confinement, adequate medical care, and
reasonable safety. Youngberg v. Romeo, 457 U.S. 307, 324 (1982).
The Youngberg Court recognized that the Fourteenth Amendment
implicitly encompasses the protections of the Eighth Amendment.
Id. at 315-16.
Three years earlier, the Court had held that the Fourteenth
Amendment standard also applies to conditions of confinement of
adult jail detainees, who have not been convicted of a crime.
Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979).(16) In
Louisiana, juvenile adjudications are not criminal proceedings,
and adjudication to the care and custody of the State is not
criminal punishment. See, e.g., In re C.B., 708 So.2d 391, 396-97 (La. 1998) ("[T]he unique nature of the juvenile system [in
Louisiana] is manifested in its non-criminal, or 'civil', nature,
[and] its focus [is] on rehabilitation and individual treatment
rather than retribution . . . .").(17)
In the two decades since Bell and Youngberg were decided,
every Circuit that has decided the issue has held that the Due
Process Clause of the Fourteenth Amendment is the standard by
which to judge conditions in juvenile facilities. Gary H. v.
Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987); H.C. ex rel.
Hewett v. Jarrard, 786 F.2d 1080, 1084-85 (11th Cir. 1986);
Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983), cert.
denied, 460 U.S. 974 (1984); Milonas v. Williams, 691 F.2d 931,
942 & n.10 (10th Cir. 1982).(18) Each court relied on either Bell
or Youngberg or a combination of the two. Gary H., 831 F.2d at
1432; H.C., 786 F.2d at 1085; Santana, 793 F.2d at 44-45;
Milonas, 691 F.2d at 942. The Fourteenth Amendment test to determine whether
conditions in juvenile facilities violate constitutional rights
is articulated in Bell and Youngberg. In Bell, the Supreme Court
held that conditions and treatment "had to be related to a
legitimate governmental objective." The Court made clear that
punishment of the individual is not a "legitimate governmental
objective." 441 U.S. at 520, 535. To judge the
constitutionality of a restriction, a determination must be made
of whether there is a legitimate purpose to which the restriction
is related and whether the restriction appears excessive in
relation to the purpose assigned to it. Id. at 537-538. See
Hare v. City of Corinth, 74 F.3d 633, 644 (5th Cir. 1996)(Bell
articulates a reasonable relationship test); see also Grabowski
v. Jackson County Public Defenders Office, 47 F.3d 1386, 1398
(5th Cir. 1995)("We hold today that in all conditions of
confinement actions, medically related or otherwise, it is not
necessary for a pretrial detainee to establish that the official
involved acted with "deliberate indifference" in order to
establish a due process violation.")
The Youngberg Court also used a balancing test, instructing
that whether constitutional rights have been violated must be
determined by balancing the person's liberty interest against the
relevant state interests. 457 U.S. at 321. In determining
whether rights have been violated, the Court set forth a
"professional judgment" test. That is, courts must give due
deference to the judgments made by professionals who are
"competent, whether by education, training or experience, to make
the particular decision at issue." Id. at 322-23 & n.30. Thus,
"liability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate
that the person responsible did not base the decision on such a
judgment." Id. at 323.
In Louisiana, the mission of the Department of Public Safety
and Corrections with respect to juvenile offenders is to protect
the public safety and to provide opportunities for the
rehabilitation of juvenile offenders. LA R.S. 15:905. As such,
the conditions in the juvenile facilities must be measured in
relation to these purposes.
2. The violence and abuse at Jena violates
juveniles' right to reasonable safety.
Confined juveniles, like the juveniles at Jena, have a
constitutional right to reasonably safe conditions of
confinement. See, e.g., Youngberg, 457 U.S. at 315-16; Bell, 441
U.S. at 546-547; Santana, 793 F.2d at 43; H.C., 786 F.2d at 1083-86, 1089; Milonas, 691 F.2d at 942; Alexander S. v. Boyd, 876 F.
Supp. 773, 787 (D.S.C. 1995); Gary W. v. Louisiana, 1990 WL
17537, *29 (E.D. La. 1990); Morgan v. Sproat, 432 F. Supp. 1130,
1138-40 (S.D. Miss. 1977); Pena v. New York State Division for
Youth, 419 F. Supp. 203, 208-209 & n.2 (S.D.N.Y. 1976), aff'd,
708 F.2d 877 (2d Cir. 1983).
There is no legitimate governmental interest in subjecting
youth at Jena to physical abuse and excessive force by staff and
physical abuse from other juveniles. Such force and violence is
not reasonably related to the rehabilitation of juveniles or to
public safety. Even if defendants take the position that their
use of force is for the purpose of maintaining order and security
in the facility, the measures that they are using are clearly
excessive in light of this purpose.
Furthermore, defendants' failure to take adequate measures
to safeguard juveniles from staff and their peers can serve no
legitimate governmental interest and substantially departs from
current accepted professional standards. Defendants' failure to
engage in reasonable hiring practices, to investigate and respond
adequately to abuse allegations, and to provide a sufficient
number of adequately trained and experienced staff is not
reasonably related to any legitimate interest in operating a
juvenile training facility.
Courts have held in the context of juvenile facilities that
uses of force similar to that employed by defendants against
juveniles at Jena violate the constitutional rights of the
confined youth. See, e.g., H.C., 786 F.2d at 1089 (a juvenile's
Fourteenth Amendment rights were violated when a juvenile
detention facility superintendent slammed the juvenile against a
wall and metal cot for laughing and protesting the imposition of
isolation on another detainee); Milonas, 691 F.2d at 942
(prohibiting using physical force for any purpose other than to
restrain a juvenile who is physically violent and immediately
dangerous to himself or others or physically resisting
institutional rules); Santana, 533 F. Supp. 966 (D.P.R.
1982)(issuing injunction prohibiting physical abuse and corporal
punishment where court found that juveniles who escaped from an
institution were beaten after they were recaptured), aff'd in
relevant part, and vacated in part and remanded in part, Santana
v. Collazo, 714 F.2d 1172 (1st Cir. 1983); Morales v. Turman, 364
F. Supp. 166, 173 (E.D. Tex. 1973)(issuing a preliminary
injunction where court found that juvenile facilities' widespread
practice of beating, slapping, kicking and otherwise physically
abusing juveniles in absence of exigent circumstances violated
juveniles' rights); Nelson v. Heyne, 355 F. Supp. 451, 454 (N.D.
Ind. 1972)(beating juveniles with boards violated juveniles'
constitutional rights), aff'd, 491 F.2d 352 (7th Cir. 1974). The
right of juveniles to reasonable safety encompasses juveniles'
right to reasonable protection from the aggression of others,
whether "others" be juveniles or staff. See, e.g., Alexander S.
876 F. Supp. at 798.(19)
In order to afford juveniles their right to reasonable
safety, a facility must have a sufficient number of adequately
trained staff in order to supervise juveniles. See, e.g.,
Alexander S., 876 F. Supp. at 773. There is abundant evidence
that the current staffing at Jena does not adequately provide for
the safety of juveniles.
Furthermore, as a part of providing reasonable safety, the
system must have an adequate classification system which
separates more aggressive from vulnerable juveniles, and which
includes periodic revaluation of placement. Alexander S., 876 F.
Supp. at 787. The lack of float beds prevents Jena staff from
providing an adequate classification system.
Finally, Jena's inadequate hiring practices, which results
in the hiring of individuals whose background, personalities, and
lack of qualifications render them likely to harm juveniles
physically or psychologically, violate juveniles' constitutional
rights. Morales, 364 F. Supp. 166, 175 (E.D. Tex. 1973).
3. Defendants' use of chemical restraints violates
juveniles' rights to reasonable safety and
freedom from unreasonable restraints.
In addition to their right to reasonable safety that was
just discussed, confined juveniles, like the juveniles at Jena,
have a constitutional right to be free from unreasonable
restraints. Youngberg, 457 U.S. at 320. In Alexander S., 876 F.
Supp. at 786, the court concluded that where CS gas chemical
restraints, like the "Triple Threat Chaser" and the "Deep Freeze"
gas at Jena, were repeatedly used to enforce facility orders,
such use violates juveniles' constitutional rights. The court
held that "gas should be used only when a genuine risk of serious
bodily harm to another exists and other less intrusive methods of
restraint are not reasonably available". Id.; see also Morales,
364 F. Supp. at 170, 173 (practice of using tear gas and other
chemical crowd-control devices is unconstitutional in situations
not posing an imminent threat to human life and substantial
threat to property).(20)
Jena has used chemical restraints on compliant juveniles,
juveniles laying face down on the ground, and juveniles whose
"property damage" may have consisted of no more than kicking a
trash can or banging and kicking a door. In none of these cases,
were juveniles posing an immediate threat of serious bodily harm
to another or causing any substantial property damage. Moreover,
the defendants have twice used indoors gas grenades which were
not manufactured for indoor use, violating juveniles' right to
reasonable safety.
In these cases, juveniles' rights to be free from exposure
to dangerous chemicals and the risk of fire outweighs any state
interest that defendants may raise. Uses of gas grenades and
chemical spray at Jena do not serve the purpose of rehabilitation
or the interests of public safety. In the instances where
juveniles were sprayed while they were lying on the ground and
when they were taken back into a unit filled with noxious gas,
defendants' objectives were clearly to punish, and were thus
impermissible. Even if defendants claim that they have a
legitimate governmental interest in maintaining internal security
and order in the facility, their conduct is not reasonably
related to such an objective. Certainly, using gas grenades
intended for outdoor use on juveniles indoors is excessive. In
addition, where defendants have used chemical restraints to
address behavior that does not pose an immediate threat of
serious bodily injury to another or substantial property damage,
they could have used numerous less intrusive methods to address
the behavior.
4. Defendants' use of excessive, unjustified and
unmonitored isolation violates juveniles' right
to freedom from unreasonable restraint.
Confined juveniles, like those at Jena, have a right to be
free of inappropriate isolation. Milonas, 691 F.2d at 942
(prohibiting defendants from placing youth in isolation for any
reason other than to contain a juvenile who is physically
violent); Morales, 364 F. Supp. at 174, 177 (juveniles'
constitutional rights were violated where duration and intensity
of isolation was left to unfettered discretion of staff;
prohibiting the use of solitary confinement unless such
confinement was clearly necessary to prevent imminent physical
harm to the youth or to other persons or clearly necessary to
prevent imminent and substantial destruction of property); Morgan
v. Sproat, 432 F. Supp. 1130, 1138-1140 (S.D. Miss. 1977)
(housing juveniles with disciplinary problems in cells without
providing adequate treatment or counseling services, where staff
did not know why youth were confined, where youth ate meals in
the cells, and where juveniles were only getting out to take
showers violated juveniles constitutional rights; enjoining
isolation that exceeded 24 hours); Pena v. New York State
Division for Youth, 419 F. Supp. 203, 210 (S.D.N.Y. 1976)
(isolation causes clearly anti-therapeutic hostility and
frustration and limiting isolation to six hours except "in the
most extreme circumstances"); Gary W. v. Louisiana, 437 F. Supp.
1209, 1229 (E.D. La. 1976)(limiting isolation to 12 hours unless
renewed by a qualified professional).
A court has prohibited the use of isolation for youth with
mental retardation and mental illness. See Morgan, 432 F. Supp.
at 1140 n.15, citing Welsch v. Likins, 373 F. Supp. 487, 503
(1974), and New York State Ass'n for Retarded Children v.
Rockefeller, 357 F. Supp. 752, 768 (E.D.N.Y. 1973). The Morgan
court enjoined defendants from isolating youth "whose
psychological, emotional or intellectual status make isolation
inappropriate." Jena isolates many juveniles with mental
retardation and mental illness.
In Santana, the First Circuit found "that if the need for
restraints, in this case the need for extended isolation, can be
significantly reduced or eliminated by other equally effective
but less confining methods requiring minimal additional effort,
it is unreasonable not to use them." 793 F.2d at 45.(21)
At Jena, youth, including youth with mental retardation and
mental illness, are isolated for long periods of time in bare
cells with little or nothing to do and with no social
stimulation. Youth who do not go to school spend virtually the
entire day in isolation, eating in their cells. Youth who are
judged to be "out of control" or a danger to security are subject
to extensive periods of isolation before having a disciplinary
hearing. Jena's routine isolation of juveniles who are not
posing an immediate threat to others is unreasonable and
excessive as juveniles could easily be permitted to be in the day
room area of the unit if they were adequately supervised.
Defendants' excessive use of isolation is not reasonably
related to the legitimate governmental objective of
rehabilitation of the juveniles. Indeed, given that isolation is
anti-therapeutic, defendants' excessive use of isolation is
contrary to the objective. Even if defendants take the position
that their uses of isolation serve the purpose of maintaining
order and security in the facility, the measures that they are
using are clearly excessive in light of this purpose. For
example, short periods of isolation could serve this same
objective. And for youth with mental disabilities, the mental
health problems of the youth, which are exacerbated by isolation,
outweigh any purported state interest in maintaining security.
5. Defendants' failure to adequately supervise and
protect suicidal and self-mutilating youth
violates their rights to reasonable safety and
adequate mental health care.
Confined juveniles such those at Jena have a constitutional
right to adequate mental health care. Morales v. Turman, 383 F.
Supp. 53, 105 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d
864 (5th Cir. 1976), rev'd, 430 U.S. 322 (1977); Inmates of Boys'
Training School v. Affleck, 346 F. Supp. 1354, 1374 (D.R.I.
1972). Where a facility fails to provide adequate mental health
treatment to youth who are attempting suicides and engaging in
self-mutilating behaviors, juveniles' constitutional rights are
violated. Gary H., 831 F.2d at 1436-37; Inmates of Boys Training
School, 346 F. Supp. at 1359, 1360, 1361-62 (juveniles'
constitutional rights violated where, among other deficiencies,
juveniles received no psychiatric care proximately following
suicide attempts); Martarella v. Kelley, 349 F. Supp. 575, 586 &
n.9 (S.D.N.Y. 1972)(same).(22)
Under the Fourteenth Amendment, juveniles with mental
disabilities are entitled to adequate mental health care,
supervision, and an environment free of obvious suicide hazards
unless the failure to supply these is reasonably related to a
legitimate government objective. No such legitimate government
objective exists. Moreover, there is substantial evidence that
Jena's failure to adequately treat, supervise or protect suicidal
and self-mutilating juveniles is a substantial deviation from
current accepted professional standards in treating mentally ill,
suicidal, and self-injurious youth. See Exhibit D at 13-24.
6. Jena's inappropriate use of mental health and
mechanical restraints violates juveniles' rights
to freedom from unreasonable restraints, to
reasonable safety, and, for mentally disabled
juveniles, to adequate mental health care.
"Freedom from bodily restraint has always been at the core
of the liberty protected by the Due Process Clause from arbitrary
governmental action." Foucha v. Louisiana, 504 U.S. 71, 80
(1992). The manner in which defendants use mental health and
mechanical restraints violates juveniles' rights to be free of
unreasonable restraint and to receive adequate mental health
treatment.
Cases involving juvenile facilities have held that use of
restraints in manners similar to those used at Jena violate the
constitutional rights of juveniles. See, e.g., H.C., 786 F.2d at
1083, 1089 (a juvenile's rights were violated when correctional
staff shackled the juvenile to his bunk with metal cuffs because
he was banging on the door of the cell in which he was isolated);
Pena, 419 F. Supp. at 211 (use of handcuffs and plastic straps to
restrain boys for hours at a time and restraining of boys to
their beds violated juveniles' constitutional rights); Gary W.,
437 F. Supp. at 1229-30 (limiting use of mechanical restraints to
situations where alternative techniques have failed).(23)
In the case at bar, defendants use correctional restraints
in lieu of appropriate therapeutic restraints; restrain juveniles
to their beds; restrain juveniles for prolonged periods; and
restrain juveniles when the use of mechanical restraints is
unjustified, such as when a juvenile bangs on his cell door.
Moreover, mentally ill juveniles have been placed in restraints
in unsafe and suitable settings, without appropriate medical
authorizations, without adequate monitoring, and without the
record keeping required for therapeutic restraints.
The use of restraints at Jena grossly deviates from current
accepted professional standards. Exhibit D at 27. Moreover,
there is no governmental interest in inappropriate and prolonged
uses of restraints that would justify the unsafe restraints to
which juveniles in the facility are exposed.
B. There is a substantial threat that juveniles at Jena
will be irreparably injured if the injunction is
denied.
Where, as here, a deprivation of a constitutional right has
been threatened, no further showing of irreparable injury is
required. Elrod v. Burns, 427 U.S. 347, 373 (1976) (where First
Amendment rights were clearly threatened or in fact impaired at
the time that a preliminary injunction was sought, irreparable
injury was shown); Deerfield Medical Center v. City of Deerfield
Beach, 661 F.2d 328, 338 (5th Cir. 1981)(where constitutional
right of privacy was "either threatened or in fact impaired," the
conclusion mandated a finding of irreparable injury); Jolly v.
Coughlin, 76 F.3d 468, 482 (1996)("the alleged violation of a
constitutional right ... triggers a finding of irreparable
harm"); Causeway Medical Suite v. Foster, 1999 WL 498187, *1
(E.D. La. 1999)("when constitutional rights to privacy and
liberty are threatened, or being impaired, there is a substantial
threat of irreparable injury").
Moreover, the United States establishes irreparable harm
when it seeks enforcement of a federal statute, here the Violent
Crime Control and Law Enforcement Act of 1994, which expressly
authorizes the Court to render injunctive relief. "When an
injunction is expressly authorized by statute, and the statutory
conditions are satisfied, the movant need not establish specific
irreparable injury to obtain a preliminary injunction" since
irreparable harm is presumed. EEOC v. Cosmair, Inc., L'Oreal
Hair Care Division, 821 F.2d 1085, 1090 (5th Cir. 1987). Indeed,
when a civil rights statute is violated, "irreparable injury
should be presumed from the very fact that the statute has been
violated." United States v. Hayes Int'l Corp., 415 F.2d 1038,
1045 (5th Cir. 1969). In White v. Carlucci, 862 F.2d 1209 (5th
Cir. 1989), the Fifth Circuit stated that the irreparable harm
presumption set forth in Cosmair and Hayes applies only in cases,
like this one, where the government or a government officer seeks
enforcement of a federal statute and the statutory requirements
are met. Id. at 511.
Even if the irreparable harm presumption is not invoked, the
United States will prove that the juveniles at Jena are
threatened with irreparable harm if the injunction does not
issue. The Fifth Circuit has held that an "injury is
'irreparable' only if it cannot be undone through monetary
remedies." Enterprise Intern., Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). Here,
the threatened harm to the juveniles at Jena includes physical
and emotional injuries, and possibly death. In such cases, the
harm is irreparable. Jolly v. Coughlin, 76 F.3d 468, 481 (2d
Cir. 1996) (money damages inadequate to compensate physical
injuries resulting from defendant's conduct); Morales v. Turman,
364 F. Supp. 166, 175 (E.D. Tex. 1973)(preliminary injunction
necessary where practices at juvenile facility "would work
irreparable injury, both physical and psychological" if allowed
to continue); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F.
Supp. 440, 447-48 (N.D. Ill.1988) (money damages inadequate to
compensate emotional and psychological injury resulting from
defendant's conduct). As the Supreme Court stated in Hellig v.
McKinney, 509 U.S. 25, 33 (1993), "Courts of Appeals have plainly
recognized that a remedy for unsafe conditions need not await a
tragic event."
Even if the defendants claim that they have taken some
remedial measures since the United States' filed its suit and
this motion, a preliminary injunction is still necessary. Just a
few months ago, the Supreme Court stated in Friends of the Earth,
Inc. v. Laidlaw Environmental Services (TOC) Inc., 120 S. Ct.
693, 698 (2000) that "it is well settled that 'a defendant's
voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the
practice.'" (citation omitted). The Court further held that the
party alleging mootness bears "the burden of showing that the
allegedly wrongful behavior cannot be expected to recur." Id. at
698. An earlier Supreme Court case also made clear that "the
power of the court to grant injunctive relief survives
discontinuance of the illegal conduct." See United States v.
W.T. Grant, 345 U.S. 629, 633 (1953).
In the context of prison litigation, the Fifth Circuit made
clear that in cases involving constitutional violations in
prisons, "[c]hanges made by defendants after a suit is filed do
not remove the necessity for injunctive relief, for practices may
be reinstated as swiftly as they were suspended." Jones v.
Diamond, 636 F.2d 1364, 1375 (5th Cir.1981), cert. dismissed, 453
U.S. 950 (1981), and overruled on other grounds, Int'l
Woodworkers of America v. Champion Int'l Corp., 790 F.2d 1174
(5th Cir. 1986). Given the facts at bar, the defendants cannot
make a showing that the wrongful behavior cannot be expected to
recur.
C. The threatened injury outweighs any damage to the
defendants.
The threatened injuries that juveniles will suffer in this
case if an injunction does not issue include serious impairments
to mental health, physical injuries, and possibly death. This
preliminary injunction seeks to ameliorate the most egregious of
the alleged violations of juveniles' rights. They can and should
be immediately remedied to prevent further harm to juveniles.
Whatever burden will fall on the defendants as a result of
the preliminary injunction is clearly outweighed by the continued
physical and mental injuries that juveniles will suffer if the
injunction is not issued.
Moreover, this burden cannot be properly classified as
damage to the defendants. Defendants cannot be harmed by
remedies designed to bring them into compliance with
constitutional standards and federal laws. This preliminary
injunction seeks to compel the defendants to meet their basic and
fundamental obligation to provide reasonably safe conditions in a
juvenile facility -- care and conditions to which juveniles
confined at Jena are entitled. See Youngberg, 457 U.S. 307
(1982). The defendants cannot be injured by remedies designed to
bring them into compliance with constitutional standards. See,
e.g., Bolthouse v. Continental Wingate Co., 656 F. Supp. 62, 630
(W.D. Mich. 1987)("defendants cannot claim that they will be
harmed by complying with [the law] since an injunction will only
require that which the law already requires"); Hunt v. United
States Securities & Exchange Comm'n, 520 F. Supp. 580, 609 (N.D.Tex. 1981)
preliminary injunction requiring the Defendant agency
to do what the law requires could not result in any harm to the
agency).
D. The injunction will not disserve the public interest.
The entry of the requested preliminary injunctive relief
will not disserve the public interest. On the contrary, it will
further the public interest. Congress, by enacting the Violent
Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141,
recognized that there was an interest in protecting the rights of
confined juveniles. Congress authorized the Attorney General to
bring suit, for or in the name of the United States, to ensure
those protections. The Act specifically provides that the United
States may obtain appropriate equitable and declaratory relief to
eliminate a pattern or practice of conduct by juvenile justice
administrators that deprives juveniles of rights, privileges, or
immunities secured or protected by the Constitution or laws of
the United States. 42 U.S.C. § 14141 (a),(b).
The long-standing and clear public interest in protecting
the constitutional and legal rights of its citizens along with
the greater need to protect those who cannot help themselves,
compels the conclusion that the United States has met its burden
of demonstrating that a preliminary injunction satisfies the
public interest. Essentially, a preliminary injunction will
serve to protect the physical safety of the youth at Jena and
provide some improvements in mental health care, which are of
critical necessity.
E. The relief sought complies with the Prison
Litigation Reform Act.
The preliminary injunction sought by the United States in
its proposed order complies with the requirements of the Prison
Litigation Reform Act, 18 U.S.C. § 3626 (a)(2). Section (a)(2)
provides in pertinent part that "[p]reliminary injunctive relief
must be narrowly drawn, extend no further than to correct the
harm the court finds requires preliminary relief, and be the
least intrusive means necessary to correct that harm."
The proposed order is narrowly tailored to the specific harm
that the United States found and extends no further than to
correct the harm which is occurring at the facility. The United
States will present evidence regarding the necessity for each of
the injunctions sought in its proposed order.
Such an order is required in this case, where the
limitations in the now-defunct sections of the Jena Interim
Agreement, regarding the use of chemical and mechanical
restraints and the use of isolation, have not worked. Thus, less
intrusive methods of trying to persuade defendants to engage in
legal conduct at Jena have failed, necessitating the imposition
of enforceable measures by the Court.
The PLRA also requires that the court give substantial
weight to any adverse impact on public safety or the operation of
the criminal justice system caused by the preliminary relief.
The United States believes that the injunction will in no way
negatively impact on the operations of the criminal justice
system or public safety.
CONCLUSION
For the foregoing reasons, the United States' Motion for
Preliminary Injunction Regarding Conditions of Confinement at the
Jena Juvenile Justice Center should be granted and the proposed
order should be entered.
Respectfully submitted,
/s/ Bill Lann Lee
BILL LANN LEE
Acting Assistant
Attorney General
Civil Rights Division
/s/ Steven H. Rosenbaum
STEVEN H. ROSENBAUM
Chief
Special Litigation Section
/s/ Robinsue Frohboese
ROBINSUE FROHBOESE
Deputy Chief
Special Litigation Section
/s/ Judith C. Preston
_______________________
JUDITH C. PRESTON
IRIS GOLDSCHMIDT
Trial Attorneys
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 514-6258
/s/ L. J. Hymel
L.J. HYMEL, La. Bar #7137
UNITED STATES ATTORNEY
MIDDLE DISTRICT OF LOUISIANA
777 Florida Street, Suite 208
Baton Rouge, Louisiana 70801
1. Through this motion, the United States seeks preliminary
relief only for the most serious constitutional deprivations to
which the juveniles at Jena are exposed, which need to be and can
be corrected through immediate actions by the defendants. We
anticipate resolving the constitutional deprivations that require
more complex, longer-term remedies through settlement or
litigation.
2. Under the Prison Litigation Reform Act, a "private
settlement agreement" is defined as an agreement "that is not
subject to court enforcement other than the reinstatement of the
civil proceeding that the agreement settled." 18 U.S.C.
§ 3626(c)(2).
3. In order to avoid as much repetition of the facts as
possible, we incorporate herein by reference the facts set forth
in our Response, as if fully set forth herein. Furthermore, the
United States has several boxes of documents and other materials
regarding Jena, many of which were provided by the defendants to
the United States, that support our motion. These documents and
materials will be introduced at an evidentiary hearing and are
available for inspection and copying by the defendants.
4. Even before the United States' tour of Jena, we received
allegations of staff abuse which we forwarded to defendants. See
Exhibits G-K (letters from Justice Department attorneys to
counsel for the State and Wackenhut)(names of juveniles and staff
have been redacted).
5. On March 8, 2000, the Orleans Parish Juvenile Court removed
LB from Jena and ordered that he be held at the Community Youth
Center in Orleans Parish pending appropriate placement. See
Exhibit L, In re L.B., 99-032-02-Q-F (Orleans Parish Juv. Ct.
3/8/2000). The court found "constitutional violations of gross
proportions in the areas of excessive use of force, mental health
treatment, and education." Id. at 13. The court found that
"...through the actions of the "system," he [LB] wound up in a
place that drives and treats juveniles as if they walked on all
fours." Id. at 16.
6. Dr. Ray finds that Jena's senior officials and investigators
disregard or fail to take seriously youth reports of sexual
abuse. Exhibit C at 14.
7. "Deep Freeze" was used the same night on Eagle D dormitory
and Jena's investigative report on that incident also found that
the use of chemical spray was within acceptable limits, without
the investigator having conducted substantive interviews of staff
and juveniles.
8. The United States believes that in addition to multiple uses
of excessive force on November 27, 1999, the Interim Agreement
was violated in at least five different ways that evening. The
United States discussed these violations in its Response.
Exhibit B at 21-22.
9. In a letter regarding the Triple Chaser grenade used at Jena,
counsel for Wackenhut indicates that this type of chemical has
been removed from the facility. Exhibit N, February 11, 2000,
Andrew T. McMains letter to Iris Goldschmidt, at 2. This is an
inadequate response, as Jena's arsenal contains another kind of
CS grenade (Federal #519) which is encircled by a warning label
that states, "...for outdoor use only. May release lethal concentration indoors." (emphasis added). See Exhibit E at 4.
Wackenhut also reports that additional instruction and training
have been provided to the facility administration to ensure that
all responsible staff have adequate knowledge of the provisions
the Interim Agreement. Exhibit M at 8. This is insufficient
given that Wackenhut interprets the Interim Agreement as having
permitted their conduct on November 27, 1999.
10. Even when the United States wrote to the State and Wackenhut
requesting specific information concerning the use of chemical
restraints on November 27, 1999, including a question about what
remedial measures were being taken, the State simply referred the
questions to Wackenhut and did not otherwise respond to our
specific questions. See Exhibit P, December 22, 1999, facsimile
from Richard Curry to Steven Rosenbaum, enclosing letter to
Andrew T. McMains.
11. During its January 2000 tours of Jena, the United States
learned that the grenade that was used in the December 19, 1998,
incident was the F519; one of the same grenades stored in the
facility's arsenal and labeled "...for outdoor use only. May release lethal concentration indoors" (emphasis added). See
Exhibit E at 4.
12. Both Mr. DeMuro and Dr. Ray found that Jena's isolation
practices violated the Interim Agreement. See Exhibit C at 38,
Exhibit F at 16.
13. Eighty four of the 276 juveniles at Jena live in cell block
dorms.
14. The United States has learned of several recent suicide
gestures and attempts which have occurred at Jena since our
experts' tours in January 2000. For example, on March 14, 2000,
youth JS was discovered in his cell with a rope of socks tied
around his neck and to the cell door. When he refused to untie
the rope, guards took him to the ground and cut the rope off his
neck. JS voiced suicidal ideations. He was escorted to medical,
where he talked by phone with Jena's psychologist and signed an
"agreement." Officers wrote him a "disciplinary [ticket]" and
returned him to his cell. Less than three hours later, JS was
discovered in his cell with another instrument of suicide -- this
time a shoelace was tied around his neck and to the bed. See
Exhibit S, February 14, 2000 Unusual Occurrence Reports regarding
JS. On February 25, 2000, juvenile MJ tied a shirt around his
neck and tied the other end to an overhead bar. See Exhibit T,
February 25, 2000 Duty Officer Report. On February 26, 2000,
juvenile LH was discovered with a towel around his neck and was
sent to the emergency room because he was shaking and his blood
pressure was low. See Exhibit U, February 26, 2000 Duty Officer
Report.
15. On March 2, 2000, a DPS&C employee monitoring Jena reported
that he had found a glass bottle in a cell on the Falcon A unit
which houses special needs juveniles. Apparently, one of the
correctional staff had given it to the juvenile. See Exhibit V,
Jena Juvenile Justice Weekly Monitoring Report dated March 2,
2000.
16. See also Schall v. Martin, 467 U.S. 253, 268 (1984) (Due
Process Clause applies to claims concerning a juvenile detention
center).
17. In Ingraham v. Wright, 430 U.S. 651 (1977), the Court held
that "Eighth Amendment scrutiny is appropriate only after the
state has complied with the constitutional guarantees
traditionally associated with criminal prosecutions." Id. at
671-72 n.40.
18. Two years before Bell, five years before Youngberg, and
seven years before Schall were decided, the Fifth Circuit stated,
in dicta, that the Eighth Amendment "applies to juvenile
detention centers as well as to adult prisons." Morales v.
Turman, 562 F.2d 993, 998 n.1 (5th Cir. 1977). The Supreme Court
has subsequently made clear that the Fourteenth Amendment Due
Process Clause, incorporating the protections of the Eighth
Amendment, protects individuals who are detained or confined by
the State for reasons other than service of a criminal sentence.
See Schall, 467 U.S. at 268; Youngberg, 457 U.S. at 316; Bell,
441 U.S. at 535 n.16.
19. Even in cases involving adult prisoners, where the "cruel
and unusual punishment" test of the Eighth Amendment is used, the
Supreme Court has made clear that a prison has the duty to
provide humane conditions of confinement and to "take reasonable
measures to guarantee the safety of inmates." Farmer v. Brennan,
511 U.S. 825, 832 (1994). Prison officials may not use excessive
physical force against inmates. Hudson v. McMillan, 503 U.S. 1,
4-7, 9 (1992)(rejecting the Fifth Circuit's previous requirement
that a "significant injury" be shown to establish a viable
excessive force claim). Adult inmates' constitutional rights are
violated where there are uses of force and facility responses to
violence that are similar to the circumstances at Jena. See,
e.g., Alberti v. Klevenhagen, 790 F.2d 1220, 1225-1226 (5th Cir.
1986)(the level of violence and sexual assault coupled with
inadequate supervision in a county jail violated detainees'
constitutional rights, noting that it was not necessary for every
detainee to be assaulted every day before a federal court could
intervene); Ruiz v. Johnson, 37 F. Supp.2d 855, 933-940 (S.D.
Tex. 1999)(unjustified and disproportionate use of force on
inmates, including officers being quick to take inmates to the
ground and punching and kicking inmates violated their
constitutional rights).
20. Where a prison used chemical restraints in circumstances
similar to the uses at Jena, the court found such use to violate
inmates' Eighth Amendment rights. Ruiz, 37 F. Supp.2d at 935-36
(finding gas was used excessively, including an incident where
gas was released into a pod of 23 inmates in response to a
disturbance in which some inmates were banging on cell doors and
plugging up toilets).
21. Courts have found that inappropriate isolation also violates
adult prison inmates' constitutional rights. Gates v. Collier,
501 F.2d 1291, 1305 (1974) (prison's isolation practices violated
inmates' rights and prohibiting the use of isolation of any
inmate for a period in excess of twenty-four hours); Ruiz v.
Johnson, 37 F. Supp.2d at 907-915 (where prison housed inmates in
cells virtually devoid of property, personal contact, and mental
stimulation, rights were violated; mentally ill inmates "whose
illness can only be exacerbated by the depravity of their
confinement" could not be isolated).
22. Courts have recognized that constitutionally-mandated
medical care in prisons includes psychiatric care. See, e.g.,
Ruiz, 37 F. Supp.2d at 906. Prisons have a duty to properly
supervise suicidal inmates. Vest v. Lubbock County Com'rs Court,
444 F. Supp. 824, 831 (N.D. Tex. 1977)(where inmates who had a
tendency toward suicide were not given proper supervision to
prevent a suicide attempt, such as close observation, and in some
cases had access to instruments of harm that were left in cells,
inmates' rights were violated).
23. In the adult context, in Campbell v. McGruder, 580 F.2d 521,
553 (D.C. Cir. 1978), the court affirmed an injunction limiting
restraints on adult detainees.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
___________________________________
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
THE STATE OF LOUISIANA, et al.,
Defendants.
Civil No. 98-947-B-1
___________________________________
HAYES WILLIAMS, et al.,
Plaintiffs,
v.
JOHN McKEITHEN, et al.,
Defendants,
UNITED STATES OF AMERICA,
Amicus Curiae.
Civil No. 71-98-B
IN RE: JUVENILE FACILITIES
Civil No. CH 97-MS-001-B
IN RE: JENA JUVENILE JUSTICE
CENTER FOR YOUTH
Civil No. 98-804-B-M1
___________________________________
BRIAN B., et al.,
Plaintiffs,
v.
RICHARD STALDER, et al.,
Defendants.
Civil No. 98-886-B-M1
___________________________________
PROPOSED ORDER
Having reviewed the testimony and documentary evidence
offered by the parties with respect to the United States' Motion
for a Preliminary Injunction Regarding Conditions of Confinement
at the Jena Juvenile Justice Center ("Jena"), and having heard
the arguments of counsel, the Court makes the following findings
and conclusions:
1. The United States is likely to succeed on the merits in
showing that Defendants have violated juveniles' Fourteenth
Amendment rights to reasonable safety, freedom from unreasonable
restraints, and adequate mental health care.
2. The United States has shown that there is a substantial
threat of irreparable harm if this injunction is not issued.
3. The United States has shown that the threatened injury
outweighs any damage that the injunction may cause the
Defendants.
4. This preliminary injunction will not disserve the public
interest.
WHEREFORE, the United States' Motion for a Preliminary
Injunction is hereby GRANTED. The Defendants are hereby
immediately enjoined:
1. From imposing corporal punishment or using excessive
force on the juveniles.
2. To hire a sufficient number of qualified staff and
provide staff training to provide adequate safety and security.
3. To develop and implement an adequate response to the
violence at Jena, including improved abuse reporting mechanisms,
an improved investigation system, adequate responses to
substantiated abuse, and adequate employment screening.
4. To reduce the population density of dormitories to
provide adequate safety and security and provide sufficient space
for appropriate classification of the juveniles at Jena.
5. From using gas grenades.
6. To limit the use of chemical restraints at Jena to
situations where there is a genuine risk of serious bodily harm
to another and other less intrusive methods of restraint are not
reasonably available.
7. From using inappropriate isolation and mechanical
restraints on juveniles at Jena.
8. From using four and five point restraints by
correctional staff.
9. To limit the use of isolation and restraints at Jena on
juveniles with mental retardation or mental health needs to
situations and methods that comport with accepted professional
standards.
10. To provide adequate mental health treatment,
supervision, and housing for juveniles at Jena who engage in
suicidal and self-injurious behavior.
11. From taking disciplinary or punitive action against
juveniles who exhibit self-injurious or suicidal behavior.
12. To eliminate obvious suicide hazards at Jena.
In order to ensure compliance with these injunctions, each
party is ordered to submit within five calendar days of the entry
of this Order, a proposed Supplemental Order setting forth the
specific actions, with timelines, to achieve compliance with this
Order.
The Court finds that the relief contained herein is narrowly
drawn, extends no further than necessary to correct the harm at
Jena that requires preliminary relief, is the least intrusive
means necessary to correct this harm, and will not have an
adverse impact on public safety or the operation of a criminal
justice system.
SO ORDERED this ____ day of _______, 2000.
/s/ Frank J. Polozola
________________________________ Chief Judge Frank J. Polozola
United States District Judge
District Court for the Middle
District of Louisiana
Updated 2008-07-25