Case 2:11-cv-00053-KS-MTP Document 11 Filed 04/12/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

)

DISABILITY RIGHTS MISSISSIPPI,

)

)

Plaintiff,

)

v.

) Case No. 2:11cv53-KS-MTP

)

FORREST COUNTY, MISSISSIPPI, )

)

Defendant.

)

)

AGREED ORDER

On March 7, 2011, Plaintiff Disability Rights Mississippi (DRMS) filed this litigation

against Forrest County seeking to enforce what it contends are its access rights to the Forrest

County Juvenile Detention Center ("FCmC") pursuant to the Protection and Advocacy for

Individuals with Mental Illness Act of 1986 ("PAlMI Act"), 42 U.S.C. §§1080I et seq.; the

Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act"), 42 U.S.C.

§§15001, et. seq.; Protection and Advocacy of Individual Rights Program ("PAIR Act"), 29

U.S.C., §§794e, et. seq.

After negotiation among the parties, the Defendant and the Plaintiff have agreed that the

Court should order a temporary plan of access until the parties can further investigate this case

and attempt to negotiate a permanent resolution or obtain a ruling from the Court on any

disputed issues. The terms of this order are governed by the Protection and Advocacy for

Individuals with Mental Illness Act of 1986 ("PAlMI Act"), 42 U.S.C. §§10801 et seq.; the

Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act"), 42 U.S.C.

§§ 15001, et. seq.; Protection and Advocacy of Individual Rights Program ("PAIR Act"), 29

1

Case 2:11-cv-00053-KS-MTP Document 11 Filed 04/12/11 Page 2 of 5
U.S.C., §§794e, et. seq., and all relevant implementing regulations. Accordingly, with the agreement of the parties, and pending further order of the Court, it is hereby ordered that: 1. The FClDC and its personnel will permit DRMS and/or its contractor (the Southern Poverty Law Center) access for monitoring and investigative purposes consistent with 42 C.F.R. Sec. 51.42(c)(2) and 45 C.F.R. Sec. 1386.22(g). Such monitoring and investigative activities shall be conducted so as to minimize interference with FClDC programs, respect residents' privacy interests, and honor a resident's right to terminate an interview. For purposes of monitoring, and pursuant to 45 C.F.R. Sec. 1386.22(g), DRMS and/or its contractor shall have access to LDlDC at reasonable times, which at a minimum shall include normal working hours and visiting hours, for the purpose of education and monitoring. DRMS shall make every reasonable effort to provide 48 hours advance written notice to the FCmC Administrator of any requested visit to the FClDC. In response and within 24 hours, the FClDC will provide DRMS and/or its contractor a list of detained juveniles who are believed to be either developmentally disabled within the meaning of the DD Act, or have a mental illness within the meaning of the PAIMI Act, or disabled with the meaning of the PAIR Act (collectively, "eligible residents"). The FClDC and its personnel will allow DRMS and/or its contractor (the Southern Poverty Law Center) to conduct confidential visits with any juveniles included on such list. On or before June 1, 2011 this list will be generated by a counselor who will be hired pending the approval of the Forrest County Board of Supervisors. DRMS and/or its contractor will respect the right of any resident to terminate an interview at any time. When DRMS and/or its contractor have probable cause to believe that eligible residents are being subject to abuse and neglect, notice shall not be required before DRMS is provided access to residents, the facility and relevant records as set forth below. The parties acknowledge that DRMS is the final arbiter of probable cause and shall
2

Case 2:11-cv-00053-KS-MTP Document 11 Filed 04/12/11 Page 3 of 5
not deny DRMS investigative access based on FCJDC's determination that probable cause is insufficient. 2. The FCmC and its personnel shall allow DRMS and/or its contractor to conduct confidential visits with any eligible resident who w~uld like to speak with DRMS and/or its contractor. The FCJDC and its personnel will further allow DRMS to confidentially meet with any resident if DRMS has probable cause to believe that the resident has a eligible disability and is therefore eligible for DRMS services. 3. Consistent with 42 C.F.R. Sec. 51.42(b) and 45 C.F.R. Sec. 1386.22(f) and the prerequisites therein, the FCJDC and its personnel will allow DRMS and/or its contractor to confidentially interview any eligible resident and the opportunity to interview any resident or staff member who may be reasonably believed to have knowledge of alleged abuse, or neglect of any eligible resident. 4. The FCmC and its personnel shall allow any client of DRMS or its contractor, or any juveniles who are either developmentally disabled within the meaning of the DD Act, or have a mental illness within the meaning of the PAIMI Act, or have a disability within the meaning of the PAIR Act to contact DRMS and/or its contractor through confidential phone calls and letters, and allow DRMS or its contractor to prepare and place flyers in the FCJDC lobby area, and to prepare and post notices in the FCJDC visitation room, and in the residents' living areas that inform eligible residents of their rights to contact DRMS or its contractor in writing. Pursuant to
42 C.F.R. § 51.42 (c)(1), FCJDC and its personnel shall allow DRMS to inform residents about
their potential rights to access DRMS services by making announcements in the living units about DRMS's services.
3

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5. Consistent with 42 C.F.R. Sec. 51.41(b)(3) and 45 C.F.R. Sec. 1386.22(a)(3) and the prerequisites therein, the FClDC and its personnel shall allow access to all relevant records (including written or in another medium such as electronic files, photographs, or video or audio tape records) pertaining to an eligible resident upon the request of DRMS when the DRMS believes there is probable cause to investigate a potential incident of abuse or neglect of an eligible resident. DRMS agrees to obtain a valid release from the facility resident and hislher legal guardian, conservator, or other legal representative before requesting that individual resident's medical, mental health, educational records in the custody or control of the FClDC. However, releases shall not be required when DRMS requests facility records such as those enumerated in the first sentence of this paragraph, despite the fact that the record relevant to the eligible resident may also contain otherwise confidential information related to other individual facility residents. 6. DRMS shall make monthly reports to the Board Attorney for the Forrest County Board of Supervisors regarding its monitoring and investigating activities in FClDC. The FCmC and its personnel will allow any resident to meet confidentially with any DRMS attorney (or its contractor's attorney), who has a retainer agreement from the resident, or the resident's parent or legal guardian, authorizing the attorney to represent the resident regarding either all legal matters, or youth court matters, or conditions of confinement. Except as provided in paragraph 5 above (or otherwise provided by § 43-21-261, Miss. Code of 1972), attorneys for DRMS andlor its contractor may have access to their client's records in the custody or control of the FClDC (if an eligible resident) only upon execution of a valid release from the facility resident/client and hislher legal guardian, conservator, or other legal representative.
4

Case 2:11-cv-00053-KS-MTP Document 11 Filed 04/12/11 Page 5 of 5

7. The FCJDC and its persOlmel will all ow DRMS and/or its contractor reasonable

unaccompanied access to view and photograph all areas of the detention center that are used by

residents or that might be accessible to them. The FCJDC and its personnel may refuse, limit or

restrict access to a certain area or areas, or persons when it/ they deem reasonably necessary for

the safety and security of the residents, guests or employees at the FCJDC.

8. FCJDC and its personnel will ensure that no youth suffers retaliation or adverse treatment

as a result of exercising his or her right to meet with DRMS or participate in a DRMS

invest igat ion.

9. In li ght of the forgoing , the Court determines that the Defendant's Cross Complaint for

Declaratory Judgment is now moot and is therefore dismissed without prejudice and Plaintiff's

Mo~ to D~iS:; n~d dismissed wit out~.ej~~e. - "6-"' ~ _~,.,r-r:-:. ~

, "'"'-

L ~

.

( ~.v

SO ORDERED this ~y of Ap ril, II.

n...4

-/

(?edt~
UNITED STATES DISTRICT JUDGE

AGREED:

AGREED:

Jo y E. Owens II MS Bar No. 102333 Poonan1 Juneja MS Bar. No . 103181 Corrie Cockrell MS Bar No. 102376 Sheila A. Bedi MS Bar No. 101652 Wendy Wl1ite MS Bar No . 100409 Counsel for Plaintiff

James K. Dukes Ir. MS Bar No. 6213 David B. Miller MS Bar No. 99638 Counsel for Defendant

5

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

___________________________________

)

DISABILITY RIGHTS MISSISSIPPI,

)

)

Plaintiff,

)

v.

) Case No. 2:11cv53-KS-MTP

)

FORREST COUNTY, MISSISSIPPI, )

)

Defendant.

)

____________________________________)

ORDER On June 3, 2011, Plaintiff, Disability Rights Mississippi (hereinafter “DRMS”), filed an emergency motion to stay the enforcement of several Youth Court orders that limited DRMS’s access rights to the Forrest County Juvenile Detention Center (hereinafter “Juvenile Detention Center”). DRMS sought to enjoin the Defendant and its agents from enforcing or complying with all state court orders that interfere, contradict, or conflict with the Agreed Order entered in the above captioned matter on April 12, 2011, and respectfully requested that this Court issue a stay prohibiting the future enforcement of any state court order that conflicts with an order of this Court related to the above captioned matter. DRMS seeks to enforce its access rights to the Juvenile Detention Center pursuant to the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. §§10801 et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. §§15001, et. seq.; Protection and Advocacy of Individual Rights

Program (“PAIR Act”), 29 U.S.C., §§794e, et. seq. (collectively “the P & A Acts”). Accordingly, it is hereby ordered that: 1. Under the PAIMI and PADD Act, the Juvenile Detention Center is a facility whose residents
are entitled to the protections afforded eligible youth under the P&A Acts. 42 U.S.C. § 10802(3); 42 C.F.R. § 51.2; 45 C.F.R. § 1386.19. 2. Consistent with the purpose of the P & A Acts, DRMS is mandated to protect individuals with disabilities from abuse, neglect, and other unconstitutional practices. DRMS and/or its agents are authorized by federal law to monitor and investigate any complaints of abuse and neglect within facilities where eligible youth are confined. 42 C.F.R. § 51.42; 45 C.F.R. § 1386.22. To ensure the protection of youth with disabilities, federal law requires that each state’s P & A must be an independent system that is able to carry out its congressional mandate without interference from institutional, local, county, or state governmental entities. 42 U.S.C. § 10805; 42 U.S.C. § 15043. 3. Congress indicated a clear intent for the state P & A’s access to apply regardless of state, local, or institutional policies and practices. Congress’ recognition of the importance of protecting youth with disabilities would be undermined and fatally frustrated if states, localities, and institutions are permitted to enact policies that limit and restrict DRMS’s access to facilities and residents. The language of the federal regulations accompanying the PAIMI Act demonstrates the broad access rights that DRMS must have in accordance with federal law. It states in part, “The right of access specified in paragraph (c) of this section shall apply despite the existence of any State or local laws or regulations which restrict informal access to minors and adults with legal guardians or conservators.” 42 C.F.R. § 51.42(e)

4. The Juvenile Detention Center and its personnel shall allow DRMS and/or its contractor to conduct confidential visits with any eligible resident who would like to speak with DRMS and/or its contractor. The Juvenile Detention Center and its personnel will further allow DRMS to meet confidentially with any resident if DRMS has probable cause to believe that the resident has an eligible disability and is therefore eligible for DRMS services.
5. Consistent with 42 C.F.R. § 51.42(b) and 45 C.F.R. § 1386.22(f) and the prerequisites therein, the Juvenile Detention Center and its personnel will allow DRMS and/or its contractor to confidentially interview any eligible resident and the opportunity to interview any resident or staff member who may be reasonably believed to have knowledge of alleged abuse or neglect of any eligible resident.
6. All provisions of the Agreed Order entered by this Court on April 12, 2011 apply to every youth in the custody of the Juvenile Detention Center regardless of the county Youth Court that ordered his detention.
7. The Defendant is hereby enjoined from complying with all state court orders that interfere with, contradict, or conflict with the Agreed Order entered in the above captioned matter on April 12, 2011 and are hereby enjoined from enforcement of same. Such orders include, but are not limited to, state court orders that require prior notice to a youth’s public defender before DRMS can interview youth, the required presence of the public defender at DRMS’s confidential interview, and any other mandated involvement of the public defender in DRMS’s monitoring and investigative activities.
8. However, most if not all residents of the Forrest County Juvenile Detention Center have attorneys representing them on their delinquency or criminal petition or complaint. The DRMS representatives or personnel are ordered not to discuss the details or facts of the

delinquency or criminal charge with the residents unless the attorney representing the resident is present or has been given reasonable opportunity to be present.
SO ORDERED this 13th day of June, 2011.
s/ Keith Starrett UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 1 of 12

IN TIIE UNITED STATESDISTRICT COURT FOR THE SOUTHERNDISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

i'1A0R?2011

DISABILITY RIGHTS MISSISSPPI. Plaintiff,
v.
FORRESTCOUNTY,MISSISSPPI,
Defendant.

CaseNo. 2:11cv53KS-MTP

DISABILITY RIGHTSMISSISSIPPI'SCOMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF This civil action seeksto protectchildrenimprisonedin the ForrestCountyJuvenile DetentionCenter("DetentionCenter")from harm and to enforcetheir rights to an effective, meaningfulProtectionand AdvocacySystem("P & A'). Recentlyreleasedvideo footage documentsin graphicdetailthe abusesufferedby thechildrendetainedin the detentioncenters. The video-which was widely broadcasitn the local media-shows staff membersbeating childrenand slammingthem into walls, One staff memberpuncheda youth repeatedlyin the face,slammedhim on the groundand continuedto beathim as the child lay helplesson the ground.Anotherstaffplacedon child on his bed,andwhiletheyouthlaid on his back,the staff memberpunchedand slappedthe youth.Oneyouthwashogtied-laid on his stomachwith his handsand legs tied to togetherbehindhis back-and left alone in a dark room. Gids are punishedby beingstrippednaked,forcedinto a papergown,isolatedin cold cells anddenied accessto personahl ygieneproductsI.n additionto thephysicalabuse,for up to 23 hoursa day, youtharefrequentlylockedin filthy cellsthatreekof humanwaste. The abusiveconditionsare verifiedby numeroussourcesi,ncludingstatementfsrom over30 youthwho havebeendetained in thefacilityand

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 2 of 12

repofts from the Mississippi Departmentof Public Safety's Juvenile Facilities Monitoring Unit,

and photographsof the f'acility. SeeExhibit A

l.

Plaintiff DRMS is a non-profit agency with a f'ederalmandateto protect the rights of

individuals with disabilities. In order to ensurethat DRMS can provide effective protection and

advocacy services, federal law requires that juvenile detention centers provide DRMS with

accessto residents. facilities and records. DRMS has made considerableefforts in Forrest

County to exerciseits accessrights without resorting to litigation, in the hopesof collaborating

with the County to correct the unlawful conditions in the Juvenile Detention Center.

Unfbrtunately, county officials have barred DRMS from providing protection and advocacy

servicesto the children imprisoned in the Juvenile Detention Center. The County's failure to

comply with I'ederal law leaves Plaintiff DRMS with no choice but to seek declaratory and

preliminary and permanentinjunctive relief to prevent Defendantfrom denying DRMS its rights

to complete,timely and unaccompaniedaccessto the JuvenileDetention Center,its staff, records

and youthful residents.

JURISDICTIONAND VENUE

2. Plaintiff s causeof actionarisesundertheProtectionandAdvocacyfor Individualswith

MentallllnessAct of 1986('PAIMI Act"),42 U.S.C.$$ 10801et seq.;the Developmental DisabilitiesAssisrancaendBill of RightsAct of 2000C'PADDAcr"),42 U.S.C.$$ 15001e/ seq.; theProtectionandAdvocacyof IndividualRightsProgram('PAIR Act"),29 U.S.C.$$ 794eet .se4(.thesethreelawsarehereaftecr ollectivelyreferredto as"The P & A Acts"); and42

U.S.C.$ 1983.Jurisdictioinn thisCourtis properpursuantto 28U.S.C.$ 1331. 3. Venuein this Court is properunder28 U.S.C.$ 1391(b).Defendanrtesidesin this district,andtheeventsandomissionscomplainedof occurredin this district.

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 3 of 12
PARTIES 4. Plaintiff DisabilityRightsMississipp(i "DRMS") is a nonprofitorganizationwith a federalmandateto protectandadvocatefor therightsof personswith disabilitiesin Mississippi. Federallaw extendsthis mandateto childrenwith disabilitieswho are confinedto juvenile detentioncenters. Through a contractedagent, DRMS devotessignificant resourcesto investigatingconditionsof confinemenat nd advocatingon behalfof youth housedin juvenile facilitiesacrossthe stateof Mississippi. DRMS andits contractedagent,the SouthemPoverty Law Center,havemadeconsiderableffortsto gainaccessto the childrenwith disabilitieswho areconfinedin theJuvenileDetentionCenterin ForrestCountyandhavebeendeniedthisaccess by theDefendant.rDRMS recentlychangedits namefrom MississippPi rotectionandAdvocacy ServicesI,nc.to DisabilityRightsMississippiI.ncorporatedin 1976,DRMShasoverthirty years experienceprotectingthe rightsof childrenwith disabilitiesthroughouthe stateof Mississippi. DRMS filesthis complaintin its own nameto redressinjuriesto itselfandto thechildrenDRMS is mandatedto serve. 5. DefendanFt orrestCountyis the govemmentael ntitywith responsibilityto "establishand maintaindetentionfacilities.shelterfacilities,...orany otherfacility necessartyo carry on the work of the youth court." Miss. CodeAnn. g 43-21-19. ForrestCounty is the entity with ultimateresponsibilityto secureandprotectthe rightsof childrenheldin theJuvenileDetention Center.
' FederallawpermitsDRMSto designateagentswith whomit contractsto assisitn carryingoutits responsibilities underfederallaw. 42 U.S.C.$ | 0804(a)|()(A-B);42 C.F.R.g 51.42(a)P. ursuantot thisauthorityD, RMShas contractewdiththeMississippYi outhJusticeProjec(tMYJP)to conducmt onitoringactivitieisnjuvenilejusticeand mentalhealthlacilitiesthroughouthestateof MississippiW. henconductingmonitoringundertheP & A Acts, MYJPis anagentof DRMSandthushasthesameaccessauthorityunderfederal aw.SeeExhibitB (Memorandum of CooperatiobnetweenMYJPandDRMS).

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 4 of 12
STATEMENT OF F'ACTS 6. The Forrest County Juvenile Detention Center is a 46-bed facility that holds children awaiting adjudication and disposition by the Forrest County Youth Court. It may also house youth for up to 90 daysasa post-adjudicationdisposition.Miss. CodeAnn. $ 43-21-605(lXk). 7. DRMS has probable causeto concludethat children detainedin the Juvenile Detention Centerlive in abusiveand unlawful conditions.The illegal conditions in the JuvenileDetention Center include dangerous and unsanitary living quarters, physical abuse, excessive use of restraints, overcrowding, excessive cell confinement, a lack of educational services, and inadequatemental health treatment. These accountshave been confirmed by multiple reports, including the media, and reportsfrom the Mississippi JuvenileFacilities Monitoring Unit. Based on thesereports, DRMS has probablecauseto believe that youth detainedin the live in abusive conditions. 8. Federal law requires that the County provide DRMS with access to the Juvenile Detention Center so that DRMS can protect the rights of the youth that it is mandatedto serve. By denying DRMS accessto the Juvenile Detention Center and its facilities, staff and detained youth, the Def'endanthas deniedDRMS the right to exerciseits federal authority and has denied children with disabilities detainedat the Juvenile Detention Centertheir risht to accessDRMS's protectionand advocacyservices.
Plaintiff DRMS's AccessAuthoritv 9. CongressestablishedProtectionand Advocacy ("P & A") systemsin 1975to protect and advocate for the rights of persons with developmental disabilities, and reauthorized these systemsin the Developmental Disabilities Assistanceand Bill of Rights Act of 2000 C'PADD Act"). 42 U.S.C. $$ 15001el seq. Congressprovided P & A systemswith the authorityto

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 5 of 12
investigateincidentsof abuseandneglectagainstindividualswith developmentadlisabilitiesand pursuelegal, administrativea,nd other remedieson their behalf. 42 U.S.C. g 15043(a). Congresshas expandedthe scopeof the P & A systemto provideprotectionand advocacy servicesto all personswith disabilities. The Protectionand Advocacyfor Individualswith MentalIllnessAct of 1986("PAIMI Act") providesfor the protectionof rightsof individuals with mentalillness,42 U.S.C.$$ 10801et seq.;andthe ProtectionandAdvocacyof Individual RightsProgram("PAIR Act") was createdto protectthe rights of all other individualswith disabilitiews hoarenotcoveredunderthePADDandPAIMI Acts. 29U.S.C.gg794eetseq. 10. Pursuantto federalaw,DRMShasrightsto:
a. reasonabluenaccompanieadccessf,or monitoringandinvestigatorypurposest,o publicandprivateareasof thedetentionfacility in theJuvenileCenter,42 C.F.R. $ 5 1 .a 2 (b );4C2.F .R$. 51.42( c) ;4C5.F.R$. 1386.22( 0;4C5.F.R$. 1386 .22( g) ;
b. interviewfacility servicerecipientss, taffandotherpersonsaspartofan abuse andneglectinvestigationwhenDRMSdeterminesit hasprobablecauseto believe anincidenht asoccurred,42C.F.R.$ 51.a20);
c. provideinformationandtrainingon individualrightsandservicesprovidedby the P & A system4,2C.F.R$. 51.a2(c);4C5 .F.R$. 1386.22(9);
d. communicatperivatelywith facilityresidents4,2 C.F.R.$ 51.a2(d)4; 5 C.F.R.$ 1386.22(h); accestso recordsof facilityresidents,4C2 .F.R.$ 51.414; 5C.F.R.g 1386.22(a)(e); and accessto facility incidentreportsandinvestigatoryfindings,42 C.F.R.$ 5l.al(c)(2);4s C.F.R$. 1386.22(bX1)-(2).
11. BecauseMississippireceivesfederalfundingundertheP & A Acts,the statemusthave an effective P & A system. DRMS is the designatedMississippiP & A System. (See MississippPi rotection& Advocacyv. Cotten,929F.2d1054,1055-5615'hCir. 1991).Federal

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 6 of 12
law permitsDRMS to designateagentswith whom it contractsto assistin canying out its responsibilitieusnderf'ederalal w. 42U.S.C.$ 1080a(aXl)(A-B)a;2C.F.R.$ 51.42(a). 12. To effectuatethe Congressionaml andateto protect and advocatefor the rights of individualswithdisabilities,theP&AActsrequirethataP&Asystemanditsauthorized agentshavephysicalaccessto individualswith disabilities,accessto individuals'records,and physicalaccessto the facilitieshousingtheseindividuals.42U.S.C.g 150a3(aX2XH)-(Ja)2; U.S.C.$$1$0$8$05(a)(3)-@a5);C.F.R.$ 1386.22:4C2 .F.R.I 51.42(a)-(cT).hisaccesisncludes the right "to meetandcommluricateprivately"with residentso'bothfbrmallyandinformally,by telephonem, ailandin person.4" 5 C.F.R.g 1386.22(h4);2 C.F.R.$ 51.42(d). 13. Underthe PAIMI Act, "any public or privateresidentiasl ettingthat providesovernight careaccompaniedby treatmentservices"is a facility that a P & A is authorizedto accessand monitor.These"[t]acilitiesinclude..j.uveniledetentionfacilities."42 C.F.R.$ 51.2. Seealso 45 C.F.R.$ 1386.19(specifyingthat facilitiescoveredunderthe PADD Act includejuvenile detentionfacilities). 14. The detentioncenterat the ForrestCounty JuvenileDetentionCenteris a covered "facility"asdefinedunderthePAIMI Act andthePADD Act. 42 U.S.C.$ 10802(3)4;2 C.F.R. 5 1 . 2 ; 4C5 . F . R$. 1 3 8 6 . 1 9 . 15. UndertheP & A Acts,Congressdesignatetdwo distinctbasesfor accessto facilitiesand residents: (1) accessfor the purposeof investigatingallegationsof abuseand/orneglect,42 U.S.C.$ ls0a3(a)(2)(B4),2 U.S.C.g 10805(aX1)(A4)5, C.F.R.$ 1386.22(f),42C.F.R.$ 51.42(b);and (2) accessfor the purposeof monitoringthe facility and the treatmentof its residents4,2 u.s.c. $ 15043(a)(2)(H),4U2.S.C.$ r080s(a)(34),5 C.F.R.S 1386.22(9a, 2 C . F . R$. 5 1.4 2 (c).

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 7 of 12
16. To carry out its mandateto investigateincidentsof abuseand neglect,DRMS is entitled to "reasonableunaccompaniedaccess. . . to all areasofthe facility which are usedby residents or are accessibleto residents. . . [and] shall have reasonableunaccompaniedaccessto residents at all times necessaryto conduct a full investigation of an incident of abuseor neglect." 42
C.F.R.$ 51.42(b).Seealso45 C.F.R.$ 1386.22(f). I7. To carry out its monitoring duties,DRMS is entitled to reasonableunaccompaniedaccess
to all residents of a t-acility at reasonabletimes to provide P & A services and contact information, rights information, monitor compliance with respect to the rights and safety of service recipients, and to view and photograph all areas of the facility which are used by residentsor areaccessibleto residents.42 C.F.R.g 51.42(c);45 C.F.R.g 1386.22(9). 18. The PAIMI Act statesthat DRMS has the right of accessto all residentsof a facility "despite the existenceof any State or local laws or regulationsthat restrict informal accessto minors and adultswith legal guardiansor conservators." 42 C.F.R. $ 51.42(e). 19. The PAIMI and PADD Acts provide DRMS with accessto records of individuals who are in the custodyof the stateand with respectto whom a complaint hasbeenreceivedby DRMS or with respect to whom there is probable cause to believe that such individual has been subjectedto abuseor neglect. 42 C.F.R. $ 51.41(bx2)(ii)-(iii); 45 C.F.R. $ 1386.22(a)(2)(ii)(iii).
20. The PAIMI regulationsalso requirethe Def'endanto provide DRMS: Reportspreparedby an agencychargedwith investigatingabuse,neglect,or injury occurring at a facility renderingcareor treatment,or by or for the facility itself, that describeany or all of the following: (i) Abuse,neglect,or injury occuffing at the facility; (ii) The stepstakento investigatethe incidents;(iii) Reportsand records,including personnelrecords,preparedor maintainedby the facility, in connectionwith suchreportsof incidents;or (iv) Supporting information that was relied upon in creatinga report,including all information and recordsusedor reviewedin preparingreportsofabuse, neglector injury such

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 8 of 12
asrecordswhichdescribepersonswhowereinterviewedp, hysicaland documentareyvidencethatwasrevieweda, ndtherelatedinvestigativefindings. 4 2C .F .R$. 5 l .a l (c)(2 ). 21. The accessprovisionsofthe P & A Acts are interrelatedand it is clearthat Congress intendedfor the provisionsto be appliedin a consistenmt anner,andthe PAIR Act expressly incorporatebsy referencea, t 29 U.S.C.g 794e(f),theauthorityregardingaccessto facilitiesand recordssetforth in thePADD Act. 22. To the extent Mississippsi tatelaw protectsthe identitiesof minorsandrequiresparental consentth, isconfidentialitsypreemptebdy federaal uthorittyo monitotrhesefacilities.42 C.F.R$. 51.42(e). 23. Moreover,federalcourtshave widely recognizedthat a P&A is "the final arbiterof probablecause" for the purposeof investigatingabuseor neglect. SeeArizona Ctr. For DisabilityLaw v. Allen, 197 F.R.D.689, 693 (D. Ariz. 2000);seealso OfficeoJ Prot. & Advocacy.for Personswith Disabililiesv. Armstrong,266 F. Supp.2d 303, 321-22(D. Conn. 2003)(holdingthatP&A is entitledto makeits probablecausedeterminationindependenotf any otheragencyor third partyreview).
Denialof Access 24. In the wakeof mediareportsof wide spreadabuseinsidethe facility, Plaintiff DRMS assertedits accessauthorityin January2011. As a courtesy,DRMS gaveCounty Officials advancenotice of the date and time of the proposedvisit. DRMS even went so far as to reschedulethe visit onceat the requestof CountyOfficials.Eventually,the partiesagreedthat DRMScouldconducta monitoringvisit on JanuarJ28,2011. 25. DRMS agentsJodyOwensII, CorrieCockrell,andJedOppenheimarrivedat theFonest CountyJuvenileDetentionCenterto conductmonitoringandinvestigationactivitiesasrequired by the P & A Acts. Upon their anival at the JuvenileDetentionCenter,DetentionCenter

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 9 of 12
DirectorChrisSelmaninformedthemthattheywerenot allowedto speakto anyof the children detainedin thefacility. 26. On March 1,2010 DRMS sentthe Defendanat letterrequestingclarificationof the policiesregardingDRMS accessto the juvenile detentioncenter.Exhibit C Correspondences betweenDRMSagentsand representativeosf the DetentionCenter.The Defendant'scounsel respondedby claimingthat the ForrestCountyYouth CourtJudgewould haveto be consulted beforeDRMScouldexerciseits accessauthority. 27. In follow-up March 3,2011 letter,Defendant'scounseldescribedForrestCounty's unlawful accesspolicy requiresDRMS to petition the youth court beforeit can conductits federallymandatedmonitoring.SeealsoExhibitC. 28. As detailedabove,Defendant'srefusalto allow DRMS to exerciseits Congressionallymandatedduties of protectingand advocatingfor the youth held at the JuvenileDetention Centera, ndhasdeprivedthesechildrenof theirrightsto DRMS'sservices.
CAUSESOF ACTION 29. Plaintiff incorporatesby referenceall of the abovefactual allegationsto supportthe followingclaim. 30. 'I'hepolicies,proceduresr,egulationsp, racticesandcustomsof theDefendanvt iolateand continueto violatethe rights of the Plaintiff DRMS to full, complete,timely and meaningful accessto the DetentionCenter,staff, residentsand their records,in violation of the PAIMI, PADD andPAIR Acts, andundercolor of law in violationof the Civil RightsAct of 1871,42
u . s . c$. 1 9 8 3 .

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 10 of 12

NECESSITY FOR INJUNCTIVE RELIEF

31. Plaintiff DRMS doesnot have an adequateremedy at law and will be irreparablyharmed

if the Defendantis permittedto continueprohibiting DRMS and its agentsfrom:

a. having reasonable unaccompanied access, for monitoring and investigatory pu{poses,to public and private areasof the detentionfacility at the ForrestCounty Juvenile Center;

b.

interviewing youth, staff and other persons as part of its duty to monitor the

facility and investigateincidentsofabuse and neglect;

c. providing infbrmation and training on individual rights and servicesprovided by theP&Asystem;

d. communicatingprivately with facility residents;

e. accessingfacility incident reportsand investigatoryfindings; and

f-. accessingresidents'records.

32. In supportof this Defendantsrely on the following exhibits:

Exhibit A:

Media Reportsof Abuse at ForrestCounty DetentionCenter,Relevant Communicationsfrom Mississippi Departmentof Public Safety's Juvenile Facilities Monitoring Unit, and Photographsof the DetentionCenter.

ExhibitB: Memorandumof CooperationbetweenMYJP and DRMS.

ExhibitC: CorrespondencesbetweenDRMS agentsand representativesand counsel of the Detention Center.

Exhibit D:

Agreed OrdersbetweenDRMS and Harrison and LauderdaleCounties authorizing DRMS accessto youth.

PRAYERFORRELIEF

WHEREFOREt,hePlaintiffpraysthatthis HonorableCourtgrantthe followingrelief:

a. Declare that the actsand omissionsof the Defendantviolate the federallaw;

b . Enter a preliminary and permanentinjunction requiring the Defendant,its agents, employees and all persons acting in concert with the Defendant to ceasetheir unconstitutionaland unlawful practices;

l0

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 11 of 12

Grant injunctive relief enjoining the Defendantand its agentsand employeesfrom denying DRMS and its contractedagent immediate, full, complete, meaningful and unaccompaniedaccessto the staff, residents,records and facilities at the Detention Center to conduct monitoring activities and abuse and neglect investigations without advance notice and at any reasonabletime, including businessand visiting hours,in violation of the PAIMI, PADD and PAIR Acts;

d. Issue a declaratory judgment that the Defendant's polices, regulations, and practicesof denying DRMS and its contractedagent immediate, full, complete, meaningful, and unaccompanied access to the staff, residents, records and facilities at the Detention Center to monitor and to conduct abuse and neglect investigations, without advance notice and at any reasonabletime, including during businessand visiting hours,violate the PAIMI, PADD and PAIR Acts;

e . Award to the Plaintilf reasonablecostsand aftorney's fees;and

f.

Grant the Plaintiff suchother relief asthe Court deemsiust.

This 7'ndav of March. 2011

Respectfullysubmitted,
wensII MS BarNo. 102333 PoonamJunejaM, S BarNo. l03l8l ConieCockrellM. S BarNo. 102376 SheilaA. Bedi,MS BarNo. 101652 MississippYi outhJusticeProject A Projectofthe SouthernPovertyLaw Center 921N. PresidenStt..SuiteB JacksonM, ississipp3i9202 601-948-888(2telephone) 6 0 1 - 9 4 8 - 8 8 8( f5a x )

ll

Case 2:11-cv-00053-KS-MTP Document 1 Filed 03/07/11 Page 12 of 12
RobertB. McDuff,MS BarNo. 2532 767North CongressStreet JacksonM, ississipp3i9202 60I -969-080(2telephone) 601-969-080(4fax)
WendyWhite,MS BarNo. 100409 Disabli ty RightsMississippi 5305ExecutivePlace J a c k s o nMoi s s i s s i p p3i 9 2 0 6 60I -981-820(7telephone) 601- 981- 83(1fa3x)
Counseflor Plaintiff

 
 Case: 2:11-cv-00053-KS-MTP As of: 02/08/2014 02:49 PM CST 1 of 4
MTP,NO_CMC
U.S. District Court Southern District of Mississippi (Eastern (Hattiesburg)) CIVIL DOCKET FOR CASE #: 2:11−cv−00053−KS−MTP

Disability Rights Mississippi v. Forrest County, Mississippi Assigned to: District Judge Keith Starrett Referred to: Magistrate Judge Michael T. Parker Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/07/2011 Jury Demand: None Nature of Suit: 444 Civil Rights: Welfare Jurisdiction: Federal Question

Disability Rights Mississippi

represented by Jody E. Owens , II SOUTHERN POVERTY LAW CENTER − Jackson 921 North President Street, Suite B Jackson, MS 39202 601/948−8882 Fax: 601/948−8885 Email: jody.owens@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Poonam Juneja POONAM JUNEJA, ATTORNEY 1389 Jefferson Street, Apt. A101 Oakland, CA 94612 925/858−8606 Email: poonam.juneja@gmail.com TERMINATED: 07/28/2011 ATTORNEY TO BE NOTICED

Wendy Wilson White DISABILITY RIGHTS MISSISSIPPI 210 East Capitol Street, Suite 600 Jackson, MS 39201 601/968−0600 Fax: 601/968−0665 Email: wwhite@drms.ms ATTORNEY TO BE NOTICED

V. Defendant Forrest County, Mississippi
Cross Claimant Forrest County, Mississippi

represented by James K. Dukes , Jr. LAW OFFICE OF JAMES K. DUKES P. O. Box 2055 Hattiesburg, MS 39403−2055 601/544−4121 Email: jdukesjr@jdukeslaw.com ATTORNEY TO BE NOTICED
represented by James K. Dukes , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant Disability Rights Mississippi

represented by

Case: 2:11-cv-00053-KS-MTP As of: 02/08/2014 02:49 PM CST 2 of 4
Jody E. Owens , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) TERMINATED: 07/28/2011 ATTORNEY TO BE NOTICED

Date Filed 03/07/2011
03/07/2011 03/08/2011 03/08/2011 03/09/2011 03/14/2011 03/22/2011 03/29/2011
03/29/2011 03/31/2011
03/31/2011

# Docket Text
1 COMPLAINT against Forrest County, Mississippi ( Filing fee $ 350 receipt number 24643001101), filed by Disability Rights Mississippi. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A − News Articles/ Photos/Juvenile Facilities Monitoring Unit Letters, # 3 Exhibit B − Amended Cooperative Agreement for DRMS and MYJP, # 4 Exhibit C − Letters from SPLC, # 5 Exhibit D − Agreed Orders Filed in USDC Southern District of MS)(LDR) (Entered: 03/08/2011)
2 Summons Issued as to Forrest County, Mississippi. (LDR) (Entered: 03/08/2011)
3 MOTION for Preliminary Injunction by Disability Rights Mississippi (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Owens, Jody) (Entered: 03/08/2011)
4 MEMORANDUM in Support re 3 MOTION for Preliminary Injunction filed by Disability Rights Mississippi (Owens, Jody) (Entered: 03/08/2011)
DOCKET ANNOTATION as to #3: Exhibits missing meaningful description. L.U.Civ.R. 7 requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (LDR) (Entered: 03/09/2011)
5 ORDER setting dates certain re 3 MOTION for Preliminary Injunction filed by Disability Rights Mississippi. Respondent's response is due on or before March 22, 2011; the Movant's rebuttal, if any, is due on or before March 29, 2011. Signed by District Judge Keith Starrett on 3/14/11 (scp) (Entered: 03/14/2011)
6 ANSWER to 1 Complaint, for Injunctive and Declaratory Relief, CROSSCLAIM for Declaratory Judgment against Disability Rights Mississippi by Forrest County, Mississippi.(Dukes, James) (Entered: 03/22/2011)
TEXT ONLY ORDER Setting Conference Call and, additionally, setting an in−person Hearing on Injunctive and Declaratory Relief. At the request of counsel, a conference call in this matter is set for Thursday March 31, 2011 at 9:00 a.m. The call shall be initiated by the Court. Additionally, an in−person hearing in this matter is set for Tuesday, April 12, 2011 at 2:30 p.m., Colmer Federal Building, Courtroom 1, before U.S. District Judge Keith Starrett. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by District Judge Keith Starrett on March 29, 2011 (dsl) (Entered: 03/29/2011)
7 REPLY ANSWER to 6 Answer to Complaint, Crossclaim by Disability Rights Mississippi.(Owens, Jody) (Entered: 03/29/2011)
Minute Entry for proceedings held before District Judge Keith Starrett: Telephone Conference held on 3/31/2011. It was determined by the Court and counsel for the parties that an in person hearing previously set would need to be held. The hearing was previously scheduled to be heard on Tuesday, April 12, 2011, at 2:30. The time of the hearing has been changed to 1:00 p.m., however, the date remains set for April 12, 2011. A text order will be entered resetting same. PARTICIPANTS: Jody E. Owens, II on behalf of Plaintiff; James K. Dukes, Jr. and David Miller on behalf of Defendant. (dsl) (Entered: 03/31/2011)
TEXT ONLY ORDER RESETTING TIME OF HEARING FOR INJUNCTIVE AND DECLARATORY RELIEF. The hearing previously set for Tuesday, April 12, 2011, at 2:30 p.m. has been reset for 1:00 p.m. Please note that only the time of the hearing has changed. The date of the hearing remains Tuesday, April 12, 2011.

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04/08/2011 04/08/2011 04/08/2011 04/11/2011
04/12/2011 04/12/2011 04/13/2011
04/13/2011
06/03/2011
06/03/2011 06/06/2011 06/09/2011
06/13/2011

The hearing will be held at the Colmer Federal Courthouse, Courtroom 1, Hattiesburg, before District Judge Keith Starrett. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by District Judge Keith Starrett on March 31, 2011 (dsl) (Entered: 03/31/2011)
8 Subpoena Returned Executed as to Tony Best. (Owens, Jody) (Entered: 04/08/2011)
9 MOTION to Dismiss for Lack of Jurisdiction, MOTION to Dismiss for failure to state a claim by Disability Rights Mississippi (Owens, Jody) (Entered: 04/08/2011)
10 MEMORANDUM in Support re 9 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for failure to state a claim filed by Disability Rights Mississippi (Owens, Jody) (Entered: 04/08/2011)
DOCKET ANNOTATION as to #9, #10: Identification of filer is incomplete; filer's email address is missing. L.U.Civ.R. Rule 11.(a) states that all filed, signed documents must contain counsels name, address, telephone number, fax number, e−mail address and counsels bar membership identification number. Attorney is advised to comply with this requirement in future filings. (LDR) (Entered: 04/11/2011)
11 AGREED ORDER. The Court retains jurisdiction for the enforcement of this order. A separate judgment shall be entered. Signed by District Judge Keith Starrett on April 12, 2011 (dsl) Modified on 4/12/2011 (dsl). (Entered: 04/12/2011)
DOCKET ANNOTATION as to #11. Docket entry modified to correct title of document from "Agreed Order of Dismissal" to "Agreed Order." (dsl) (Entered: 04/12/2011)
12 **ERROR, DISREGARD THIS ENTRY** JUDGMENT, parties have settled the matters pending before this Court; the Court retains jurisdiction over this case for the enforcement of this Judgment. Case is finally closed. Signed by District Judge Keith Starrett on 4/12/11. (LDR) Modified on 4/13/2011 (LDR). (Entered: 04/13/2011)
TEXT ONLY ORDER SETTING ASIDE JUDGMENT entered on April 13, 2011. Said Judgment was entered through error and inadvertence and should be set aside and held for naught. The Clerk of Court is directed to reopen this case. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by District Judge Keith Starrett on April 13, 2011 (dsl) (Entered: 04/13/2011)
13 Emergency MOTION to Stay Case State Court Proceedings Pursuant to 28 U.S.C. 2283 by Disability Rights Mississippi (Attachments: # 1 Exhibit A Forrest County PD Order, # 2 Exhibit B Stone County PD Order, # 3 Exhibit C 2 Stone County PD Order, # 4 Exhibit D George County PD Order, # 5 Exhibit E Greene County PD Order)(Owens, Jody) (Entered: 06/03/2011)
14 MEMORANDUM IN SUPPORT re 13 Emergency MOTION to Stay Case State Court Proceedings Pursuant to 28 U.S.C. 2283 filed by Disability Rights Mississippi (Owens, Jody) (Entered: 06/03/2011)
Minute Entry for proceedings held before District Judge Keith Starrett: Telephone Conference held on 6/6/2011 at the request of the Court. PARTICIPANTS: Jody E. Owens, II on behalf of the Plaintiffs; James K. Dukes, Jr. and David Miller on behalf of the Defendants. (dsl) (Entered: 06/06/2011)
Minute Entry for proceedings held before District Judge Keith Starrett: Telephone Conference held on 6/9/2011 at the request of Plaintiff's counsel. After talking with the Court it was agreed that counsel for the parties would have another status conference with the Court on Monday, June 13th, if needed. PARTICIPANTS: Jody E. Owens, II on behalf of Plaintiffs; James K. Dukes, Jr. and David Miller on behalf of the Defendants. (dsl) (Entered: 06/09/2011)
15 ORDER granting 13 Motion to Stay the enforcement of State Court orders that conflict with orders of this Court. Signed by District Judge Keith Starrett on 6/13/11 (scp) (Entered: 06/13/2011)

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07/28/2011 07/28/2011 08/05/2011

16 MOTION to Withdraw as Attorney by Disability Rights Mississippi (Juneja, Poonam) (Entered: 07/28/2011)
TEXT ONLY ORDER granting 16 Motion to Withdraw as Attorney. Attorney Poonam Juneja terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on July 28, 2011 (KPM) (Entered: 07/28/2011)
17 NOTICE of Appearance by Wendy Wilson White on behalf of Disability Rights Mississippi (White, Wendy) (Entered: 08/05/2011)