Doe v. Younger

JI-KY-002-001 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION

District of Kentucky
FILED
MAY 1 193

JOHN DOE, a minor (by his Next Friend and mother, Mary Doe, and JEAN DOE, a minor (by her Next Friend or a Mother, BARBARA DOE, on behalf themselves and all others similarly situated)

At a. WHITHER1
PLAINTIFFS

vs.

JAMES KNAUF, in his official capacity as Jailor of the Kenton County Detention Center;

KENTON COUNTY FISCAL COURT, COUNTY JUDGE EXECUTIVE, CLYDE MIDDLETON, in his official capacity; and

JACK LEWIS, Secretary of Corrections, Commonwealth of Kentucky.

DEFENDANTS

Civil No. 91-187

AMENDED CIVIL RIGHTS COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER EQUITABLE RELIEF

(CLASS ACTION)

INTRODUCTORY STATEMENT 1. This is a civil rights class action challenging conditions of confinement for juveniles in the Kenton County Detention Center, in Covington, Kentucky, and the policies and practices of defendants of confining juveniles in that Detention Center. Plaintiff John Doe, through Mary Doe, his guardian and Next Friend and plaintiff Jean Doe, through her Mother and Next Friend, Barbara Doe, bring this action for declaratory, injunctive, and other equitable relief on behalf of themselves

and all other juveniles similarly situated who are, have been, or will in the future be confined in the Kenton County Detention Center and subjected by defendants to cruel, unconscionable, and illegal conditions of confinement in the Detention Center and to illegal incarceration in the Detention Center without adequate separation from confined adult offenders.
2. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983, to redress the violations by defendants, acting under color of state law, of the rights guaranteed to plaintiffs under the Fourteenth Amendment to the United States Constitution; under statutory rights enumerated in the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. Sections 5601 et seq. ("Juvenile Justice Act"), as more particularly set forth in this Complaint. Plaintiffs also bring this action under applicable Kentucky constitutional provisions and statutes.
JURISDICTION 3. This Court has jurisdiction of this action under 28 U.S.C. Section 1343(3), this being an action to redress the deprivation, under color of state law, of rights secured by the U.S. Constitution of the United States and the Juvenile Justice Act, 42 U.S.C. Sections 5601 et seq. 4. This Court also has jurisdiction of this action under 28 U.S.C. 1343(4), this being an action to secure declaratory, injunctive, and other equitable relief for violations of civil rights. 5. This Court also has jurisdiction of this action under 28 U.S.C. 1331(a), this being an action in which the matter in controversy arises under the Constitution

and laws of the United States. 6. This Court has jurisdiction to issue declaratory relief under 28 U.S.C.
Sections 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure.
7. This Court has pendant jurisdiction of plaintiffs' state law claims which permits federal courts to determine state law claims which form separate but parallel grounds for relief sought in substantial claims based on federal law.
PLAINTIFFS 8. Plaintiff John Doe is years old and a citizen of the United States. At all relevant times, he has resided in Kenton County, Kentucky. During the month of October he was taken into custody and incarcerated by defendants in the Kenton County Detention Center awaiting an adjudication or disposition hearing. He is currently under the Court's jurisdiction as a committed public offender as that term is defined by the Kentucky Revised Statutes Annotated. He sues through his mother and next friend, Mary Doe. 9. Plaintiff Jean Doe is 16 years old and a citizen of the United States. At all relevant times, she has resided in Kenton County, Kentucky. During the month of October she was taken into custody and incarcerated by defendants in the Kenton County Detention Center awaiting an adjudication or disposition hearing. She is currently under the Court's jurisdiction as a status and public offender as defined by the Kentucky Revised Statutes Annotated. She sues through her mother and next

friend, Barbara Doe. DEFENDANTS
10. Defendant Clyde Middleton is the County Judge Executive of the Kenton County Fiscal Court. As such he is responsible pursuant to §67.0831 of the Kentucky Revised Statutes Annotated for appropriating such sums of money as will provide for the maintenance and operation of the Kenton County Detention Center and for providing suitable facilities for the detention of juveniles. Said defendant is sued in his official capacity.
11. Defendant James Knauf is the Jailor in Kenton County, Kentucky. As such, this defendant is responsible under Kentucky law for the safety and welfare of all persons confined in the Kenton County Detention Center. This defendant is sued in his official capacity.
12. Defendant, Jack Lewis, as the Secretary of Corrections for the Commonwealth of Kentucky, is responsible pursuant to § 196.070 of the Kentucky Revised Statutes Annotated for the inspection of the Detention Center and is required to investigate the treatment, security and condition of persons detained in the Detention Center as well as monitor all necessary precautions against escape, sickness or danger at the Detention Center. This defendant is sued in his official capacity.
13. All policies, practices and omissions complained of in this action are the official practices, customs and usages of defendants.
CLASS ACTION 14. Plaintiff John Doe and plaintiff Jean Doe bring this action on behalf of

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themselves and all others similarly situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The class consists of all juveniles who are currently, have been or will be in the future confined in the Kenton County Detention Center.
15. The members of the class are so numerous that joinder of all members is impracticable. In addition, there are questions of law and fact common to the members of the plaintiff class regarding practices of the defendants, and the claims of the named plaintiffs are typical of the claims of the members of the plaintiff class. Named plaintiff and this counsel will fairly and adequately protect the interests of the members of the class.
16. By their policies, the defendants have acted and continue to act in a manner generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
17. The injuries suffered by the named plaintiffs and the members of the plaintiff class are a result of the policies and practices of defendants and are capable of repetition, yet may evade review, thereby making class relief appropriate.
FACTUAL ALLEGATIONS Conditions of Confinement Allegations Juvenile Detention and the Physical Plant 18. The Kenton County Detention Center is a secure facility located in Covington, Kentucky. 19. Juveniles are located on the 8th floor of this facility . This portion of the Detention Center is referred to as the Juvenile Detention Center. This is a
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misnomer in that this facility was not constructed as a separate detention center for juveniles. The Detention Center does not provide the environment, programs or services that an appropriate juvenile detention center would provide.
20. Defendants confine juveniles and adults in the Kenton County Detention Center. Juveniles are often confined in the Detention Center for several days at a time. In fact, in recent times one juvenile was held in this facility for approximately 45 days.
21. As a result of the design of the facility as well as practices invoked by defendants, juveniles confined in the holding cells can hear the voices of adult prisoners and can converse with them (albeit in loud tones). Moreover, adults in the facility often have direct contact with the juveniles, in violation of state and federal law.
Supervision by Staff 22. Juveniles in the Kenton County Detention Center are not adequately supervised or monitored. It is a regular policy and practice to leave juveniles unsupervised for long periods of time. 23. Defendants further do not have an adequate electronic monitoring system for juveniles at the Detention Center. 24. Defendants have not implemented or promulgated rules and regulations for the proper handling and treatment of children who are detained in the Detention Center.
Training and Supervision of Staff

25. Defendants do not employ Detention Center personnel who are trained in identifying and responding to problems of juveniles. Defendants' failure to employ adequately trained staff results in lack of attention to plaintiffs' problems during confinement, lack of appropriate assessment of plaintiffs' physical, mental, emotional and spiritual needs and lack of remedial programming. Such failure subjects plaintiffs to serious harm from institutional personnel, other detainees and themselves as well as neglect for their general well-being.
26. Defendants do not hire, program personnel who can respond to and provide for the needs of plaintiffs in the Detention Center.
27. Defendants do not adequately supervise Detention Center personnel who are responsible for the care of plaintiffs in the Detention Center.
28. Defendants do not adequately train staff to deal with or counsel juveniles held at the Detention Center.
Intake and Classification 29. Defendants have failed to develop and implement a classification system for juveniles. As a result, children are arbitrarily and inappropriately housed. 30. Defendants fail to provide adequate medical or psychological screening or examination for plaintiffs when plaintiffs are taken into custody. Defendants fail to provide regular medical or mental health services to plaintiffs. 31. The Kenton County Detention Center is often overcrowded and fails to provide an adequate environment for its juvenile detainees. Consequently, many juveniles suffer forced idleness in small, confined space. Moreover the level of danger

increases since staff are undertrained and do not monitor properly. Programming
32. Defendants do not provide juveniles with any appropriate educational program, including identification and provision of special education services while in the Detention Center.
33. Defendants do not provide juveniles with any appropriate indoor or outdoor activities while at the Detention Center.
34. Defendants fail to provide defendants with any appropriate religious programs.
35. As a result of defendants' policies, practices, acts and omissions, described herein, plaintiffs' confinement by defendants in the Kenton County Detention Center is cruel, harsh, punitive and oppressive.
Juvenile Justice Act Allegations Public Offenders
36. 42 U.S.C. Section 5633(13), provides that, in order to receive funding under the Act, a state must comply with the requirement that juveniles alleged or found to be delinquent shall not be detained or confined in any institution in which they have regular contact with adult persons who are incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges. The State of Kentucky receives funds under this Act.
37. In violation of the Act, defendants routinely confine and detain juveniles alleged or found to be delinquent in the Kenton County Detention Center
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where they have regular contact with adult persons who are incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges.
38. Section 501 Kentucky Administrative Regulations subsection 9:110 provides that a Detention Center must provide separate and distinct housing for five categories of inmates:
1. male/female 2. mental inquest detainees 3. mentally ill or retarded detainees 4. juveniles with communicable diseases 5. juveniles with violent propensities or
those who can be harmed by others. Defendants regularly confine and detain juveniles in the Detention Center in violation of this requirement.
39. Kentucky Revised Statutes Annotated §600.020 (30) requires that a secure juvenile holding facility separate children from adult offenders such that there be no sight or sound contact between the two groups; as well as physical separation. Defendants routinely violate this statutory provision.
Status Offenders 40. 42 U.S.C. Section 5633(12)(A), provides that, in order to receive funding under the Act, a state must comply with the requirement that juveniles that are status or non-offenders be removed from secure detention. The State of Kentucky receives funds under this Act.

41. In violation of the Act, defendants routinely securely detain status offenders in the Kenton County Detention Center which subjects plaintiffs to regular contact with adult persons who are incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges. Juveniles have been similarly confined and detained at the Detention Center in the past, and will continue to be so confined and detained in the future unless plaintiffs are granted the relief requested.
Knowledge of the Defendants 42. Clyde Middleton is County Judge Executive of Kenton County. As such, he is responsible pursuant to section 67.0831 of the Kentucky Revised Statutes Annotated for appropriating such sums of money as will provide for the maintenance and operation of the Kenton County Detention Center and for providing suitable facilities for the detention of juveniles. In such capacity defendant knows or should know that children are being confined in unconstitutional conditions in the Kenton County Detention Center. By allowing said conditions to continue, defendant has breached his duty and is responsible in part for said conditions. This defendant therefore shares responsibility with other defendants mentioned herein for violations of plaintiffs constitutional rights. 43. Defendant James Knauf is the Jailor in Kenton County, Kentucky. As such, this defendant is responsible under Kentucky law for the safety and welfare of all persons confined in the Kenton County Detention Center. In such capacity defendant Knauf directly burdened with knowing that children are being confined in unconstitutional conditions in the Kenton County Detention Center. By allowing said
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conditions to continue, defendant has breached his duty and is responsible in part for said conditions. This defendant therefore shares responsibility with other defendants mentioned herein for violations of plaintiffs' constitutional rights.
44. Defendant Jack Lewis, as the Secretary of Corrections for the Commonwealth of Kentucky, is responsible pursuant to § 196.070 of the Kentucky Revised Statutes Annotated for the inspection of the Detention Center and is required to investigate the treatment, security and condition of persons detained in the Detention Center as well as monitor all necessary precautions against escape, sickness or danger at the Detention Center. In such capacity defendant Wigginton knows or should know that children are being confined in unconstitutional conditions in the Kenton County Detention Center. By allowing said conditions to continue, defendant has breached his duty and is responsible in part for said conditions. This defendant therefore shares responsibility with other defendants mentioned herein for violations of plaintiffs' constitutional rights.
Necessity for Injunctive Relief: No Adequate Remedy At Law 45. Defendants regularly subject plaintiffs to the cruel, unconscionable and illegal conditions of confinement described above. Defendants have similarly confined and detained juveniles in the Kenton County Detention Center under such conditions in previous years and defendants will continue to confine juveniles under such conditions in the future unless plaintiffs are granted the relief requested herein. 46. As a proximate result of the policies, practices, acts and omissions of defendants complained of herein, plaintiffs have suffered and continue to suffer
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serious and irreparable physical, psychological, mental, emotional and spiritual injuries. Plaintiffs have no plain, adequate, or complete remedy at law to redress the wrongs described herein. Plaintiffs will continue to be irreparably injured by the policies, practices, act and omissions of the defendants unless this Court grants the injunctive relief which plaintiffs seek.
LEGAL CLAIMS 47. For plaintiffs' claims, each enumerated below, they reallege paragraphs 1 through 46 above, as if fully set forth herein, in each and every statement of claim, and further allege:
FIRST CLAIM (Unconstitutional Conditions of Confinement)

48. Defendants' policies, practices, acts and omissions complained of herein, and specifically defendants' subjection of plaintiffs to the cruel, unconscionable and illegal conditions of confinement in the Kenton County Detention Center deprive plaintiffs of due process of law, in violation of the Fourth, Eighth and Fourteenth Amendments to the United States Constitution and of the Kentucky Constitution; violate plaintiffs' rights to freedom of association guaranteed by th'e First and Fourteenth Amendments to the United States Constitution and the Kentucky Constitution; violate plaintiffs' right to privacy, guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution; violate plaintiffs' rights under 42 U.S.C. 1983; and violate plaintiffs' rights under the Kentucky law.

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SECOND CLAIM (Sight and Sound Separation) 49. Defendants' policies, practices, acts and omission complained of herein, and specifically defendants' detention and confinement of juveniles in the Kenton County Detention Center without adequate separation from adult offenders, violate plaintiffs' rights under the Juvenile Justice Act, 42 U.S.C. Section 5633(13); subject plaintiffs to denial of due process of law, in violation of the Fourteenth Amendment to the United States Constitution and the Kentucky Constitution; and violate plaintiffs' rights under the Kentucky statutory sections cited herein.
THIRD CLAIM (Secure Confinement of Status Offenders) 50. Defendants' policies, practices, acts and omission complained of herein, and specifically defendants' secure confinement of status offenders in the Kenton County Detention Center violate plaintiffs' rights under the Juvenile Justice Act, 42 U.S.C. Section 5633(12)(A); subject plaintiffs to denial of due process of law, in violation of the Fourteenth Amendment to the United States Constitution and the Kentucky Constitution; and violate plaintiffs' rights under the Kentucky statutory sections cited herein.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray that this Court: A. Assume jurisdiction of this action; B. Permit this action to proceed in forma pauperis;
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C. Permit plaintiffs to proceed in pseudonym; D. Issue an order certifying this action to proceed as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure; E. Issue a declaratory judgment pursuant to 28 U.S.C. Sections 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure, that the policies, practices, acts and omissions complained of herein:
(1) violate plaintiffs' rights under the Juvenile Justice Act, 42 U.S.C. Sections 5601 et seq.;
(2) subject plaintiffs to denial of due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution;
(3) violate plaintiffs' right to freedom of association guaranteed by the First and Fourteenth Amendments to the United States Constitution and the Kentucky Constitution;
(4) violate plaintiffs' statutory rights under Kentucky law; (5) violate plaintiffs' rights under the Kentucky Constitution; F. Issue preliminary and permanent injunctions prohibiting the defendants from confining plaintiffs in the Kenton County Detention Center, or, in the alternative, issue preliminary and permanent injunctions sufficient to rectify the unconstitutional acts and omissions and statutory violations alleged herein, as follows: (1) Restraining and prohibiting the defendants from failing to provide plaintiffs with any of the following during their periods of confinements:
(a) an adequate classification system;
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(b) adequate supervision of Detention Center personnel; (c) complete separation from adult inmates; (d) adequate programming and other activities; (e) an adequate educational and religious program; (f) adequately trained Detention Center personnel; (g) adequately qualified Detention Center personnel; (h) adequate monitoring; (i) adequate rules and regulations for the proper handling
and treatment of plaintiffs; (j) outdoor activity and appropriate large muscle activity; G. Issue preliminary and permanent injunctions restraining and prohibiting all defendants from transferring any plaintiff to any other detention center or any other facility where there exist the conditions complained of herein. H. Order the defendants to develop and implement a comprehensive plan for the correction of the unlawful policies, practices, acts and omissions complained of herein, and to submit this plan to the Court and to the attorneys for plaintiffs for review. I. Appoint a Special Master to review and insure implementation of the plan to be submitted by defendants and to protect the rights of plaintiffs during the pendency of this action. J. Retain jurisdiction over the defendants until such time as the Court is satisfied that their unlawful policies, practices, acts and omissions complained of
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herein no longer exist and will not recur. K. Award plaintiffs the cost of this proceeding and attorneys' fees under
42 U.S.C. Section 1988. L. Issue such other and further relief as to this Court seems just and
proper.
Dated: <M j <K) I ^
Respectfully submitted,
James Bell, Youth Law Center 114 Sansome Street, Suite 950 San Francisco, CA 94104 (415) 543-3379 C. McGehee Isaacs, Northern Kentucky Children's Law Center 706 Park Avenue Newport, KY 41071 (606) 491-8303 Attorneys for Plaintiffs
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PROOF OF SERVICE

I am employed in the county of San Francisco, State of California. I am over the age

of 18 and not a party to this action. My business address is 114 Sansome Street, Suite 950,

San Francisco, California 94104.

On the date indicated below, I served the following document:

AMENDED CIVIL RIGHTS COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER EQUITABLE RELIEF (CLASS ACTION)

to counsel hereinafter listed U.S. mail, postage prepaid, by placing them in a United States mail mailbox:

C. Thomas Hectus Williams & Wagoner One Oxmoor Place 101 Bullitt Lane, Suite 202 Louisville, KY 40222

Hon. Maria T. Geisler Office of the Counsel Cabinet for Human Resources 275 East Main Street, 4 West Frankfort, KY 40621

John R. Elfers Kenton County Attorney 107 Park Place Covington, KY 41011
Hon. Thomas J. Hellmann Office of the Attorney General Civil Division Capitol Building 700 Capitol Avenue Frankfort, KY 40601-3494

Hon. Suzanne D. Codery Corrections Cabinet Office of General Cabinet 200 State Office Building Frankfort, KY 40501

I, Christine Cross, declare under penalty of perjury that the foregoing is true and correct. Served and executed on this 29th day of April, 1992, at San Francisco, California.

 
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14:11

Doe v. Younger
H i l l 11111111 llllt inn miM«, Jl-KY-002-003
UNITED BTATEB DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
AT COVINGTON .,

(2)003
EASTERN DISTRICT of KENTUCKY
FILED
JUL 2G 13S3
AT COVINGTON LESLIE G. WHITMER CLERK, U. S. DISTRICT COURT.

CIVIL ACTION NO.

LAINTIFFS

JOHN DOE, ET AL VS.

FINEINGE-Ql^^.—gj-

DEFENDANTS

DON YOUNGER, El

T h l s U civu

t h e conditions of -

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This

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of a
further demon

that

have
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tney have

t U e .tates and violated

federal statute Is
or a

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~

An ideal juvenile facility such as advocated by the plaintiffs costs money — taxpayers' money. This court has not been elected the governor of any state, the county judge/executive of any county, or appointed superintendent of any state or local school system. It is on these officials that our constitution imposes the obligation of operating effective juvenii.e justice systems. If they choose to operate substandard facilities, as they have here, this court may not intervene unless the shortfall is so extreme as to violate federal constitutional standards.
In this case, the evidence shows that juveniles, who may not have committed any crime, are confined In a prison under harsh conditions, hereinafter described.
Plaintiffs ask the court to close this institution. After careful reflection, the court has concluded that such an extreme act would violate the principles of judicial restraint and federalism. But the court has also concluded that confining a juvenile there for an extended period -•• more than fifteen (15) days, unless there is probable cause to believe that the juvenile can Jbe^jtreated as an adult charged with a crime_— is punishment without due process of the law. What one can bear for a short period can be intolerable if prolonged.
The court also holds that inadequate staffing in certain particulars exposes the juveniles to unconstitutional physical risks and other unconstitutional conditions. The conditions of close confinement and lack of exercise are particularly objectionable.

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Although the court finds that the i::acility is not per se
I
unconstitutional, it nevertheless urges the state officials to

upgrade i t to the extent possible and voluntarily close i t as soon

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as possible. The institution is unworthy _of_ a dynamic and

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progressive community such as ours.

!

II.

FACTUAL AND PROCEDURAL BACKGROUlb

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A. Plaintiffs' Claims

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Plaintiffs filed this action for declaratory and injunctive

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relief in 1991 pursuant to 42 U.S.C. § 1983, the Individuals with

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D i s a b i l i t i e s Education Act ("IDEA"), 20 U.'s.C. § 1400 et s e a . , and
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Kentucky law, alleging unconstitutional conditions of confinement

at the Kenton County Detention Center' (KCDC) in Covington,

Kentucky. Plaintiffs' allegations encompasss various conditions and
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practices at the KCDC, including staffing, classification,

supervision, isolation, fire, safety, recreation, sanitation,

medical and mental health care, and I clothing and bedding.

Defendants, in turn, have consistently denied that any of the

conditions or practices at the Kcdc violate plaintiffs'

constitutional rights.

B. The Parties Plaintiffs Jean and John Doe bring this action on behalf of themselves and all other juveniles similarly situated who are or will in the future be confined in the KCDC.
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Defendant Clyde Middleton is the County Judge Executive of the

Kenton County Fiscal Court.

«

Defendant Don Younger is the current jailer of the KCDC.1

Defendant Jack Lewis is the Secretary of the Corrections

Cabinet which has supervisory authority over juvenile facilities in

Kentucky.

Defendant Viola Miller is the Secretary of the Kentucky

Cabinet for Families and Children ("CFC" or "Cabinet"), the primary

state agency for operating human services programs. The CFC,

created by the Governor of Kentucky in 1995, is the successor
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agency to the former Kentucky Cabinet for Human Resources ("CHR").
Since 1990, the CHR/CFC has contracted with the KCDC to house

juveniles committed to its custody and awaiting placement in

Cabinet treatment facilities.

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Defendant Wilmer Cody is the Commissioner of the state

Department of Education and has primary statutory responsibility

for the education of all school-age children in Kentucky.

Defendant Covington Independent Public Schools ("CIPS") was

dismissed from this action on July 22, 1996 in light of recent

legislation placing responsibility for all education in juvenile

holding and detention facilities on the Commonwealth of Kentucky.

See Order of July 22, 1996.

;

Defendant Paul Patton is the duly elected Governor of the

Commonwealth of Kentucky and, in that capacity, is responsible by

1 Younger replaced -James Knauf, who was jailer when this action commenced. Middleton, the Fiscal1 Court, and Younger are referred to collectively as "the county defendants."

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©007

s t a t u t e for the resolution of conflicts jbetween state agencies. Kentucky Revised Statutes Annotated ("KRS") (Michie 1992) § 12.100.

C. Procedural History
j
Plaintiffs filed this action on Novkmfcer 21, 1991. Since that

date, they have filed three amended cc mplaints resulting in the

current roster of defendants and claims now before the court. The

court granted the motion for class certification on January 13,

1993.

'

I Motions for summary judgment were briefed, argued, and denied
! in September 1995. On October 16, 19951 the court, accompanied by
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counsel for all parties, visited the KCJDC to examine the facility

and the conditions therein.

•

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At the pretrial conference held on March 22, 1996, the court

bifurcated the conditions of confinement issues from the education

issues in this case. A bench trial! on the conditions of confinement issues was held on April 15, il.6, & 19, 1996.2 At the

conclusion of trial, the court ordered that all parties submit I

post-trial briefs. In addition, the court ordered plaintiffs to

designate a facility within 125 miles of the court that they feel

illus2trateTshiasn aocpcienpitoanblethujsuveandidlreeshsoelsdinognlfyacitlhitey.c3onditions of

confinement claims.

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3 On May 3, 1996, plaintiffs designated the Henry County Youth Center in New Castle, Indiana as a facility which "meets and in many ways far exceeds the minimum constitutional and statutory standards for juvenile hd'lding and detent Lon facilities that the Kenton County juvenile facility fails to meet." Plaintiffs' Designation Brief, at 2. Defendant Kenton County objected to this

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1^008

Having heard the evidence presented at trial and having reviewed the parties' post-trial briefs, i:he court now makes the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52.

III.

FINDINGS OF FACT

A. The Physical Facility

1. The Kenton County Detention Center is a secure juvenile

holding facility located in Covington, Ki-ntucky. Juveniles are

housed on the eighth floor of the KCDC' in an area physically

separated from adult inmates.4

:

2. The KCDC juvenile facility consists of the following

areas: four 4-person cells; four 2-person cells accessible to and

from a small dayroom area; three isolation cells; one holding cell;

a booking area; a multi-purpose room, used for educational

instruction and leisure activities; a strip search and shower room;

a visiting room; a control room; and a storage area.

designation on the ground that the Henry County facility is a

juvenile detention facility, rather than a holding facility, as

defined by the Kentucky statutes and regulitions.

Defendants' objections to close comparisons between the

Indiana facility and the KCDC are well-taken. Nevertheless, for

the purposes of this opinion, the court f:.nds that this facility

illustrates the feasibility of maintaining it juvenile facility that

is secure and functional without replicating the stark, penal

atmosphere of an adult prison.

;

4 In this opinion, the juvenile holding facility portion of the KCDC will itself be referred to as the "KCDC."

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©009

3. The outdoor recreation area of the KCDC is a rooftop

basketball court with solid walls. Wire inesh covers the top, but
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other than that the area is open to the s>:y.

4. The KCDC is a stark prison-like' facility. It impresses

one as a place of punishment rather than rehabilitation. The

guards wear uniforms, and the juveniles wear prison jumpsuits. The
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juveniles reside in cells rather than rooms. The court has toured

federal penitentiaries for convicted adult, felons which were less

foreboding- The court particularly notes "rhe close confinement of

the residents and their inability to be outdoors (other than having

a view of the sky in the recreation enclosure) at any time during

their confinement.

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B. Staffing and Supervision

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5. On weekdays from 8:00 am to 5:00 pro, there are at least

three staff members on duty in the KCDC -]uvenile area, including

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the teacher.

>

6. On weekdays from 5:00 pm to 8:00 am, there is only one

deputy on duty on the juvenile floor of :he KCDC. On weekends,

there is only one deputy on duty at all ^imes. This results in

many problems as described below.

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C. Isolation and Lockdown

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7. Deputies at the KCDC use isolation for multiple purposes,
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including varying levels of discipline; the protection of youth who

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are vulnerable, homosexual, or suicidal;: and the quarantine of children with communicable diseases or<*lice.
8. Deputies at the KCDC use leather, restraints on the hands and ankles of some juveniles placed in isolation.
9. When juveniles are admitted to the KCDC, they are not given any written document explaining whe i they may be placed in isolation.
10. Only juveniles held in the 4-peraon housing area numbered 874 have access to the dayroom from their cells.
11. Juveniles in isolation at the KCfcKZ remain in the cell for at least sixteen hours a day, from 4:00 pm to 8:00 am, except that they may be allowed to attend certain religious programs. The cell is artificially lit at all times, but has bio natural light. There is no bed or cot in the cell, but a mattress is provided. It has all the characteristics of a punishment cell, although as noted, juveniles are frequently placed in it who have committed no infractions.
D. Fire Safety 12. There are no sprinklers in the (hiving areas of the KCDC juvenile facility. There are sprinkler s- in the administrative space and elevator lobby. 13. Floors one through seven of l;he KCDC building have sprinklers. 14. The eight floor of the KCDC has fire safety features including in-duct smoke detectors, a sraok'si>. control system, a Fire

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©Oil

Emergency Automatic Release System ("FEAR")5, and a staff-operated

gang release system.

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15. During fire drills, the detainee youth are not removed

from their cells.

16. Mattresses in the living areas of the KCDC are not

composed of highly flammable or explosive imaterials.

17. There is a sharp conflict among :he expert witnesses as
t
to whether this facility is safe should th^re be a fire.
i

E. Recreation and Activities

;

18. Juveniles at the KCDC are allowt-d one hour per day for

"recreation," which includes any outdoor exercise and use of the

multi-purpose room. Juveniles are permitted to exercise in their

cells and play cards or watch television in the dayroom.

19. There is no regularly-scheduleci outdoor exercise for

female youth in the KCDC.

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20. Outdoor recreation is provided on a "weather-permitting"

basis; no outdoor recreation is provided vhen the temperature is

below 50 degrees. The outdoor recreation area is on the roof,

covered by netting and open to the sky.i Its walls are solid

i

masonry.

'

21. The multipurpose room in the lilCDC contains equipment

including a Nautilus weight machine, punching bag, ping pong table,

exercise bike, board games, record player,, computer, art supplies,

5 The FEAR system automatically unlocks certain designated doors in the event that the fire alarm sovpds.

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@012

and an electronic keyboard. Nevertheless, the atmosphere of the

room is spartan. This modestly-sized room also doubles as the

facility's classroom.

i

i

F. Medical and Mental Health Services

22. Kenton County contracts with Dr. Alvarez, a licensed

physician, to provide medical care to juveniles in the KCDC on an

as-needed basis. This does not include recularly-scheduled visits

to the facility.

'

23. Kenton County contracts with iMark Kroger, M.S., to

provide counseling services to juveniles in the facility on an as-

needed basis. This does not include reguL-.rly-scheduled visits to

the facility.

24. There is a nurse at the KCDC who idivides her time between
i
the adult and juvenile parts of the facility.

25. The KCDC deputies complete mediical screening forms on

each juvenile upon his or her admission to the facility.

6. Sanitation and Environmental Conditions
i
26. Youth at the KCDC wear prison jumpsuits issued to them by
the facility.

27. Deputies issue clean underwear; to the juveniles
i

times a week.

.

i

28. Juveniles at the KCDC must purchase shampoo,

1
deodorant, and toothpaste from the canteei;.

three soap,

10

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111013

29. The KCDC has a pest control contract with an outside

agency.

'.

i

H. KCDC Confinement S t a t i s t i c s 6

30. From October 1, 1994 through Ju;ly 31, 1995, a t o t a l of

742 j u v e n i l e s were held in the KCDC. The lengths of stay for those

j u v e n i l e s were as follows:

LENGTH OF DETENTION IN KCDC
5 days or less 10 days or less 15 days or less 16 days or more 3 0 days or more 50 days or more 100 days or more

NDKB:SR OF JUVENILES
534 6 38 6 58
ii4
jl4 So
10

PERCENTAGE
68% 82% 87% 11% 6% 3%
1%

31. Of the 742 juveniles detained in j1:he KCDC from October 1, i
1994 through July 31, 1995, 420 (57%) were held for contempt of

court and/or s t a t u s offenses. Conduct underlying contempt of court

charges included truancy, dependency, failure to pay r e s t i t u t i o n ,

i

I

runaway status, and public offenses.

;

6 These statistics are derived from1 evidence introduced at trial by plaintiffs and compiled from KCDCj records provided by the county defendants. See Pi. Exh. 46-49. j

i

11

<

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@]014

IV.

COKCLUSIOHS OF LAW

A- J u r i s d i c t i o n of the Court

,

1. This court has j u r i s d i c t i o n oi: t h i s action under 28

U.S.C. §§ 1331 and 1343(a)(3), (4). Declaratory and i n j u n c t i v e

r e l i e f a r e authorized pursuant to 28 U.S.!c. §§ 2201(a), 2202 and

Fed. R. Civ. P . , Rules 57 and 65.

:

2. This action is properly maintained as a class action

under Fed. R. Civ. P. 23(b)(2).
i
i
|
B. Responsibility of the Defendants!

3. The Department of Corrections ("DOC") supervises
i
conditions at the KCDC pursuant to KRS |§ 196.030 (1) (a) , KRS §
441.057, and 501 Ky. Admin. Regs. ("KAR") 9:010-9:150 (1995).7 See
i
James v. Jonesf 148 F.R.D. 196, 204 (W.D.. Ky. 1993) (discussing i
i
authority of DOC and Justice Cabinet with respect to confinement of

juveniles in Kentucky).

:

4. The Cabinet for Families and Children ("CFC" or

"Cabinet") is responsible for the conditions in which juveniles

committed to its custody are held pursuant to KRS § 605.100. The I
CFC, by annual contract, arranges for some juveniles committed to
its custody to be housed at the KCDC while awaiting placement in

Cabinet treatment facilities. The CFC/KCDC contract clearly states

7 KRS § 441.057 directs the Department of Corrections to

issue and enforce administrative regulations governing the

operation of juvenile holding facilities, j Under the same statute,

the Department of Corrections is responsible for inspecting and

monitoring the KCDC.

'

12

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that legal custody of juveniles placed in; the KCDC "shall at all
times remain with the Cabinet." 1995 Contract at 2a.8
I
5. The county defendants are also responsible for the
conditions at the KCDC. The Kenton County Fiscal Court owns the
building in which the KCDC is located and, pursuant to KRS §
67.0831, is responsible for appropriating n.oney to provide for the j
maintenance of the facility and suitable cDnditions for juveniles
i
confined therein. Official-capacity defendant Clyde Middleton is
the County Judge Executive of the Kenton Gaunty Fiscal Court, and i
official-capacity defendant Don Younger is the current jailer of
i
the KCDC.

C. Statutory Provisions Relevant to the KCDC

6. The KCDC is a "juvenile holding facility" as that term is

defined in KRS § 600.020(30):

j

I

8 The CFC's argument that Pea ton v., Montgomery County. 989

F.2d 885 (6th Cir. 1993), relieves them of liability for

plaintiffs' claims is unavailing. In De;;,tonf the Sixth Circuit held that a county that owned a jail facility could not be held to

have adopted the policy of the city that actually operated the jail

because there was no evidence that the county knew or should have

known of the unconstitutional strip searches allegedly conducted

there. Id. at 888-89. The court indicated,, however, that evidence

that the county was on notice of the allegedly unconstitutional

actions by the city could constitute the necessary "deliberate

indifference" to satisfy the "policy or pri-ictice" requirement of a

42 U.S.C. § 1983 claim. Id.;, at 890. Specifically, the court

stated that notice through the lawsuit itself might suffice. Id.

In the case at bar, the CFC/CHR has been on notice of

plaintiffs' claims regarding the condition!! at the KCDC since 1991;

nevertheless, it has contracted with the facility every year since

then to house juveniles "committed to its custody there. Thus,

Deaton does not relieve the CFC of liability under 42 U.S.C. § 1983

for the unconstitutional conditions at th« KCDC.

i

13

!

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"Juvenile holding facility" means ai physically secure setting, approved by the Justice Cabinet, which is an entirely separate facility or portion or wing of a building containing an adult jail, which provides total separation between juvenile and adult facility spatial areas and which is staffed exclusively by sufficient certified juvenile holding facility staff to provide twenty-four (24) hours per day supervii-ion. Employees of jails who meet the qualifications of tie Justice Cabinet may supervise juvenile as well as adul.t prisoners.

(emphasis added). See also KRS § 15A.20C)(3) (same definition).

The underlined language highlights the difference between juvenile i
holding facilities and "secure detention facilities" which may not

be "part of or attached to any facility in which adult prisoners

are confined or which shares staff with a facility in which adult

prisoners are confined." KRS § 600.020(43:); KRS § 15A.200(4).

7. Youths who may be held in juvenile holding facilities
i
such as the KCDC include: (1) children age sixteen or older who are

alleged to have committed, are convicted of: committing, or who have

pled guilty to committing, a moving motor ' vehicle offense (KRS §

610.010(a)); (2) juveniles charged with !committing an offense
i
detained pending adjudication (KRS § 610.200(5)(d); KRS § 610.220);

(3) any child accused of committing or found to have committed a

status or public offense, or accused or found to be in contempt of

court (KRS § 610.265; KRS § 635.055; Kite § 635.060(3)); (4);

juveniles over the age of fourteen (14) charged with or convicted

of a felony in which a firearm was used (KRS § 635.020(4)) ; and (5)

juveniles under the age of eighteen (18) aLleged to be "youthful

offenders" and who are unable to make bail; or meet the conditions

of release (KRS § 640.020(1)).

j

14

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©017

8. " S t a t u s offenders" a r e juvenile':; who: (l) a r e h a b i t u a l runaways from t h e i r parents or from persons e x e r c i s i n g c u s t o d i a l c o n t r o l or supervision over them; (2) have not subjected themselves t o the reasonable control of t h e i r p a r e n t s i a r guardians; or (3) are
i
habitually truant from school. KRS § 610.010(1) (a) , (3); KRS § 630.020.
9. Behavior constituting a status o'::fense is not considered
i
criminal or delinquent. KRS § 600.020(48}. 10. Alleged status offenders may no<: be held in a juvenile
holding facility, prior to adjudication, for more than ten (10)
i
days unless the child waives this limitation and the court
i
considers such waiver to be in the child's best interest; with a waiver, an alleged status offender may not be held more than ten (10) additional days. KRS § 630.090. The same time limits and waiver provision apply to adjudicated states offenders held pending disposition. KRS § 630.100. Post-disposi:ion, no status offender may be held in a juvenile holding facility for more than an additional twenty-four (24) hour period. KRS § 630.130.
11. "Public offenders" are those juveniles found to have committed certain felonies, misdemeanors, or violations which, if committed by an adult, would be crimes, KRS § 635.020; KRS 600.020(37).
12. Juveniles over the age of sixteen (16) adjudicated as "public offenders" may not be held in a juvenile holding facility for more than thirty (30) days. KRS § 63;!i.060 (4) .
15

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(g|Olg

13. "Youthful offenders" are those:juveniles charged with

committing certain serious offenses, defined in KRS § 64 0.010 and

KRS § 635.020, who are tried and convicted) in the Circuit Court as

adults. KRS § 600,020(52); KRS § 635.020} KRS § 640.010.

14. It is clear, then, that many juveniles can be and are
i
held in the KCDC for many days who are not (charged with a crime and

who have not been afforded the rights of those who are so charged.

I
D. Constitutional Challenges to Conditions in Juvenile Facilities: The Appropriate Legal Standard I
As several courts faced with suit's; of this nature have
I
recognized, the Supreme Court of the j'Jnited States has not

definitively stated whether standards governing cases involving

conditions of confinement for juveniles atu to be derived from the
j
Eighth Amendment to the Constitution, prohibiting cruel and unusual
i
punishment, or from the Due Process Clause of the Fourteenth
i
Amendment. See A.J. v. Kierst. 56 F.3d 8 49, 854 (8th Cir. 1995)

(citing Inaraham v. Wright. 430 U.S. 651, 669 n.37 (1977)); Gary H.

v. Hegstrom. 831 F.2d 1430, 1431 (9th Cir. 1987); Alexander S. v. Bovd. 876 F. Supp. 773, 795 D.S.C. 19951; . Nor has the United

States Court of Appeals for the Sixth Circuit addressed this issue.

Cf. Horn by Parks v. Madison County Fiscal' Court. 22 F.3d 653 (6th j
Cir.), cert, denied. 115 S. Ct. 199 (1994) (individual action for
damages by juvenile injured in suicide attempt while detained

brought under Eighth Amendment) .

i

The majority of courts that have dealt with this question have

employed the due process clause on the ground that those detained

16

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g]019

for juvenile offenses have not been convicted of any crime and that

the purpose of their confinement is rehabilitative rather than penal.9 See, e.g, . Kierst. 56 F.3d at 85-j ; Hegstrom. 831 F.2d at

1432; Santana v. Collazo. 714 F.2d 1172, M79-80 (1st Cir. 1983),

cert, denied. 466 U.S. 974 (1984); Bovd. 876 F. Supp. at 796; D.B.

v. Tewksburv, 545 F. Supp. 896, 905 (D. Or. 1982).

Like the state juvenile systems at issue in these cases, the

Kentucky juvenile system also has rehabilitation as its objective.

See KRS § 600.010(d); 605.100(1).

:

As pertinently observed by the court in Kierst:

In applying the due process standard to juveniles, we cannot ignore the reality that asses-sments of juvenile conditions of confinement are necessarily different from those relevant to assessments of adult conditions of confinement. . . . Juveniles subject to pretrial detention have not yet had a judicial determination of probable cause which the Fourth Amendment requires as a prerequisite to extended restraint oi: liberty following arrest; . . . are. in some instances. I before the court on charges in unverified petitions. : e.g.. delinquency petitions filed on information and belief . . .; and are in a system whose purpose is rehabilitative, not penal, in nature. . . . In addition, juveniles are frequently detained for reasons entirely separate from those associated with adjudication of charges. Some are detained as a result of neglect or abusive home environments and are held in protective custody, e.q.. are "status offenders"? some are irunawavs; some are simply undisciplined. For these reasons, we conclude that, as a general matter, the du<» process standard applied to juvenile pretrial detainees should be more liberally construed than that applied to adult detainees.

9 For instance, many juveniles detained in the KCDC are

status offenders, of whom the Kentucky statute states:

Detention of status offenders in secure juvenile detention

facilities or juvenile holding facilities should only be used

for very specific and constructive purposes, when all other

less restrictive alternatives to detention have been attempted

and are not feasible.

:

KRS § 630.010(3).

17

i

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[2)020

Kierst. 56 F.3d at 854 (citations and internal quotations omitted)

(emphasis added) .

j

Under the due process clause, confined juveniles have the

right to reasonable personal safety, including protection from
i
attacks of other juveniles; freedom from unreasonable personal
i
r e s t r a i n t ; and the right to rehabilitative treatment and

appropriate programming, at least in longer term i n s t i t u t i o n s .

Boyd. 876 F. Supp. at 796-97. The flexibility of this Fourteenth

Amendment standard is well-suited to the '-juvenile context, where

the special needs of children must be weighed against the s t a t e ' s

i n t e r e s t in dealing with disruptive individuals. Id. at 798 n.44;

Hegstrom. 831 F.2d at 1432 (noting that ttU Constitution requires j
a "reasonable balance between liberty interests [of juveniles] and the institution's operational needs"). j
i
Nevertheless, the court does not have1 unlimited authority to

impose as constitutional standards those id* sal criteria proposed by

experts or advocacy groups. As stated by .Judge Anderson in Boyd.

supra:

i

The court must emphasize that j its role in this litigation is to identify minimally acceptable standards for treatment and rehabilitation. Injother words, it is not necessary that the state provide! the best possible training and services to the Plaintiffs. The test is whether the state is providing minimally adequate or reasonable services and training neceasary to ensure the protected interests of the Plaintiffs. It is not appropriate that the state be held tb a standard which imposes an affirmative duty to succeed in the purpose of correcting the juveniles' behavior.j Although such a standard may be desirable, it is no,i: constitutionally mandated. All that is required is that the juveniles be housed under conditions that provide them with a reasonable opportunity to correct- their behavior. Obviously, this standard incorporates the security,

18

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®021

program, and service functions that are basic to juvenile corrections. These basic services include sufficient numbers of adequately trained staff «o that the purpose of the confinement may be advanced,, minimal levels of programming reasonably geared toward aiding juveniles to correct their behavior, and other services that are minimally necessary to give the Plaintiffs a reasonable opportunity to accomplish the purpose of the confinement while protecting the other recognized .Interests in safety and reasonable restraint.
In deciding minimum constitutional requirements for the institutions under challenge here, th';.s court is not bound by standards promulgated by organizations such as the American Correctional Association. As noted by the United States Supreme Court in Bell v. Wolfish. 441 U.S. 520, 543 n.27, 99 S. Ct. 1861, 1876 n.27, 60 L.Ed.2d 447 (1979), "TWlhile the recommendations of these various groups . , . may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question." Lower courts have also rejected efforts to impose ACA standards as constitutional minima.
Boyd. 876 F. Supp. at 798-99 (emphasis added) . See also Gary H. v.
i
Heastrom. 831 F.2d 1430, 1433 (9th Cir. 1987) (rejecting "wholesale
adoption of various professional associations' concepts for model
institutions"); Santana v. Collazo. 714 F.:>.d 1172, 1181 (1st Cir.
1983), cert, denied. 466 U.S. 974 (1984) ,10
Just as the court need not adopt professional standards
advocating certain conditions, neither does; it view the compliance
10 At trial, plaintiffs presented the testimony of four expert witnesses: Dr. David Roush, who testified on the programming and procedures at the KCDC; Dr. Cheryl Polk, uho testified about the mental health needs of juveniles; Thomas' Jaeger, who testified about fire safety; and Ward Duel, who testified about the environmental conditions in the facility.
These experts made specific reference |*:o various professional standards and codes including those issued by the American Correctional Association,, ("ACA"); the ; National Academy of Corrections ("NAC"); the National Juvenile Detention Association ("NJDA"); the National Commission on Correctional Health Care ("NCCHC"); and the National Fire Prevention Association ("NFPA").
19

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with or violation of state statutes or regulations by defendants as

dispositive of the constitutionality of their practices or policies

at the KCDC.

;

Furthermore, when considering cases o.1 this kind, the court is

also mandated by the recently-enacted Prison Litigation Reform Act

of 1995, Pub. L. No. 104-134, 110 Stcit. 1321, 18 U.S.C. §

3626(a) (1) (A) (1996) to:

give substantial weight to any adverse impact on pubic safety or the operation of a criminal jui-itice system caused by [prospective injunctive] relief.

Thus, the court must address plaintiffs' claims and the

evidence received within the context of these varying

considerations, standards, and policies. •

E. Conditions at the KCDC as a WhoLs Although plaintiffs advert to particular conditions in the KCDC which they assert are unconstitutional, their main complaint, as viewed by the court, is to the facility as a whole. Namely, plaintiffs contend that the various conditions taken as a whole make the KCDC a punitive jail rather than an institution suitable for the rehabilitation or safe-keeping of juveniles. That plaintiffs are correct in this respect cannot be doubted. The court's own inspection verifies this Characterization of the facility. The eighth floor of the KCDC has bars, multiple occupancy cells, and catwalks. The juveniles are dressed in prison garb. They never go outside except to a small, solidly-walled, rooftop basketball court. They are locked down in cells for long
20

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©023

periods of time, especially on the weekends. They are placed in

isolation for discipline, for their own physical security, or for

suicide protection. Rehabilitation, programming, and training are

minimal or nonexistent. The interior of the facility is stark and
i
depressing. Indeed, prior to its physicalirenovation in the 1980s,
i
the portion of the eighth floor occupied by the juveniles was

simply another part of the adult jail. •

The court would have little hesitation in holding that the
i
KCDC juvenile facility was unconstitutional as a whole if it were

a long-term facility. It is saved by the f.act that only 11% of the

juveniles are held there longer than fifteen days. Two-thirds are

released or transferred in less than fives days. However, 6% of
i

juveniles are confined there for longer tha:n thirty days, and a few

for almost a year-

:

i
To confine a juvenile not charged or convicted of a crime (who

i
has therefore not received the constitutional safeguards of those

so charged) for more than a brief time xn this barren facility

constitutes infliction of punishment withdjt due process of law. I
The court therefore holds that it jls a violation of due
t
process to confine in the KCDC facility a jj-ivenile who has not been

indicted for or convicted of a crime as an adult, for longer than

fifteen (15) days.

!

The court notes that only 11% of juveniles at the KCDC are i
confined there for longer than this period at present- Thus, the
t

court holds that this relief takes due note of the needs of the

2i

0.7/26/96 14:30

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[g]024

criminal justice system as required by the'Prison Litigation Reform
Act, supra.
i
Turning to the specific conditions complained of, the court

further holds as follows: 1. Staffing
Low staff-to-detainee

ratios

'
; i in juvenile

facilities

understandably give rise to a variety of!institutional problems:

inadequate supervision and increased conflicts between confined

youths; excessive confinement to cells arid isolation; infrequent
i
exercise and programming opportunities; slow response time in
emergency situations; and difficulty in performing routine facility

functions.

•

i

At the KCDC, only one guard is on 'duty during the weekday

i

night shift and throughout the weekends;. This results in the

juveniles being locked down with no opportunity for exercise or

recreation for the entire weekend. More importantly, the juveniles

are exposed during this time to an unconstitutional safety risk in

t
i

that the response time to break up fights ;or to react to emergency

i conditions is unacceptably lengthened. Se.-2 D.B. v• Tewksbury, 545
i

F. Supp. 896, 905 (D. Or. 1982).

j

Therefore, the court holds that duejprocess requires that a

minimum of two guards, one male and one' female (when there are female detainees), must be on duty at all, times.11

11 The court notes that even with two deputies on duty at all

times, a full capacity population of juveniles in the KCDC puts the

staff-to-detainee ratio at 1:12, below the ratios recommended by relevant professional standards. See lif.)93 Report of David W.

Roush, PI. Exh. 42b, at 8.

\

22

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@025

However dedicated the individual staff members of the KCDC may be, the court agrees with plaintiffs that their training is essentially that of guards and thus insufficient to enable them to fulfill the rehabilitative purpose of juvenile detention. Nevertheless, given the time limits on the confinement of juveniles ordered herein, inadequate staff training does not rise to the level of unconstitutionality so as to warrant independent relief.

2. Recreation

j

i

Plaintiffs challenge several practices related to the lack of

opportunity for physical exercise for juveniles in the KCDC.

First, plaintiffs do not dispute that the size of the rooftop
i
recreation area is adequate; they contend, simply that juveniles
i
have infrequent use of it. Plaintiffs also challenge the lack of I
planned activities and the reliance on television as a means of

"recreation" for detained youth in the KCDC

Common sense, in addition to the testimony of plaintiffs'

experts, indicates that forced idleness and a lack of exercise

compound juveniles' feelings of frustration, anger, and malaise.

Such feelings, in turn, lead to more behavioral problems and a

greater need for disciplinary measures such as isolation. This

dynamic creates a vicious cycle of inactivity with negative

consequences for both juveniles and staff;. See Alexander S. v.

Bovd, 876 F. Supp. 773, 790 (D.S.C. 1995) flnoting that programming i
improves juveniles' behayj-or and reduces; need for disciplinary
lock-up).

23

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g]026

If prolonged, the court holds thai: this situation would violate due process. However, by shortening the length of confinement and providing for additional staff, the court has reduced the impact of the inadequate recreation to a minimally acceptable level. Thus, the court orders only that the facility shall ensure that both male and female juvenile residents are provided an opportunity for recreation ahd physical exercise — excluding television — for one hour a day, seven days a week.
The court urges the defendants to voluntarily increase the opportunities for recreation, especially cutdoor recreation. The court notes that a new facility is being planned and advises
i
special attention to this problem in its design.

3. Isolation and Lockdovn

:

The Kentucky Administrative Regulations are silent on the use

of isolation in juvenile holding facilities. The regulation

governing facility design, for example, lii.ts the various areas of

a holding facility, but it does not induce isolation cells. See

501 KAR 9:050 § 6. In contrast, the regulations governing juvenile

detention facilities provide specific rights for detained youth in

relation to being put on "room restriction"' or "confinement status"

for disciplinary infractions. See 500 ICAR 6:120 § 1(6). The

comparable holding facility regulations provide no such guidance on

official policy in this area.

i

The Policies and Procedures Manual o'j' the KCDC describes the

use of isolation in several contexts, such as where a resident is

24

i

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©027

violent or as a penalty for minor, major., or serious offenses. These policies provide the first indication that isolation and lockdown are overused at the KCDC. For example, these policies permit "cell confinement" for up to forty-eight hours for even minor offenses such as profanity or horseplay. Also, juveniles guilty of no offense are placed in isolation for their own protection.
The physical deficiencies of the KCDC facility i t s e l f appear largely to blame for the heavy reliance on isolation as a means of discipline, as well as a means of administrative segregation. A complete absence of single occupancy cells; for example, means that staff seeking to separate juveniles havs> only the holding and isolation cells at their disposal. The t r i a l testimony of juveniles Chris and Kim12 support plaintiffs7 contention that KCDC juvenile detainees are subject to long periods in isolation with l i t t l e or no notice as to what conduct wiill lead to such measures or for how long.
Due process includes the right to f reedom from unnecessary bodily restraint and from measures not reasonably related to legitimate security or safety needs of, the institution. gee Santana v. Collazo. 714 F.2d 1172, 1180-8 1 (1st Cir. 1983), cert, denied. 466 U.S. 974 (1984). Although the court is of the opinion that the conditions of isolation are too,stringent, the court is reluctant to forbid isolation of vulnerable juveniles because i t
12 Juveniles7 last names have been sealed in the record for their protection.
25

0.7/26/96 14:33

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tgj028

may be the only feasible way to protect : them given the existing

facility. The limit on the duration of the length of stay will at

least alleviate the overuse of isolation'to some extent. Again,

the court would urge that the design of the new facility reflect

these concerns.

;

4. Fire Safety

'

Fire safety in Kentucky juvenile: holding f a c i l i t i e s i s

governed by the 1981 edition of the NFPA Life Safety Code ("the

Code"). 501 KAR 9:070 § 2(1). Under these standards, "equivalency

concepts" allow the "authority having jurisdiction" — here, the

Department of Corrections — to approve alternative safety systems
i
or devices in lieu of those required by the Code.13 The Code t i
provides that the sufficiency of such alternative measures is to be

judged under the Fire Safety Evaluation System ("FSES") . The evidence presented at trial ; regarding fire safety

consisted of the testimony of plaintiffs' expert, Thomas Jaeger,

who is president of Gage-Babcock & Associates and a member of the

NFPA Life Safety Code Technical CommitiUe; defendants' expert,

Richard Stephens, Correctional Program .Administrator, Kentucky

13 The NFPA Code 101-3 states:

:

1.5 Nothing in this Code is intended to prevent the use of systems, methods, or devices of jequivalent or superior quality, strength, fire resistance, effectiveness, durability, and safety to those prescribed by this Code, providing technical documentation is submitted to the authority having jurisdiction to demonstrate equivalency and the system, method, or device is approved for th* intended use.

2 6

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©029

Department of Corrections; and defendants', witness, Cheryl Roberts,

also of the Kentucky Department of Corrections.

Mr. Jaeger testified that the majority of fires in detention

and correctional settings originate within the housing units and i
that the biggest threat to residents' personal safety in the event

of fire is smoke. He further testified that there are several

deficiencies in the fire safety features of the KCDC.

Specifically, Mr. Jaeger stated that th<b juvenile floor of the

facility lacks adequate smoke compartmantalization; that the

absence of sprinklers in the juvenile living areas would allow a

fire originating there to spread quickly to other parts of the
eighth floor and the building; that the inJ-duct smoke detection and
i
exhaust system offered as an alternative tD living area sprinklers
i s grossly inadequate for that purpose; that the absence of smoke

detectors in the cells poses a serious t.hreat to the safety of

juveniles; and that the KCDC has inadequate fire evacuation plans

and capabilities.

!

In sum, Mr. Jaeger found the KCDC to be substantially out of
i
compliance with the NFPA Code and the purported alternative safety

devices and measures to be insufficient to satisfy the Code's

equivalency provisions and to ensure the safety of KCDC residents.

Defendants' expert, Robert Stephens,: testified that the KCDC

exceeds the standards of the NFPA Code by virtue of the alternative

devices therein such as the in-duct smo'Ue detectors, the smoke

control system, the Fire,Emergency Automatic Release System, and

the staff-operated gang release system. Defendants also emphasize

27

07/26/96 14:34

© 6 0 6 655 7553

CLC

[g] 030

that sprinklers are ineffective to comb.i.t the rapid spread of

smoke, t h a t they can be used by juveniler. attempting suicide by

hanging, and that they are easily disabled by tampering- Lastly, I
Mr. Stephens testified that the use of the: alternative systems was I

approved by individuals from the Department of Corrections who

determined that they met the requirements cif the NFPA Code when the

eighth floor was renovated in the 1980s. Defendants have not,

however, produced any documentary evidence that these alternatives

were considered under the Code's FSES system or that they were ever

approved by the state fire marshal.

;

The court finds the testimony of IMr. Jaeger persuasive,

particularly in view of his qualifications and experience with

detention and correctional institutions. : On the other hand, the I
court i s disturbed that the Kentucky Depairtment of Corrections i s i
essentially self-regulating in the sense that it both sets the fire i
safety feature standards for the KCDC —j- through its choice of alternatives to the measures recommended ',by the NFPA Code — and
i
then also determines whether those standards are sufficient.
i
Defendants emphasize that there has riuver been an injury as a
result of a fire in the KCDCH; however, th!u court obviously cannot

rely on this fact alone if other evidence indicates that fire

safety measures in the facility are inadequate to protect its

i
occupants' reasonable personal safety. !

I

I

u There had never been a fire death at the Beverly Hills

Supper Club until May of 1977; then there iuere 165 in one evening.

See In re Beverly Hills Fire Litigation.' 695 F.2d 207 (6th Cir.

1982), cert, denied sub nom. Brvant ElecJ Co. v. Kiser. 461 U.S.

929 (1983).

i

28

i

07/26/96 14:35

©606 655 7553

CLC

Therefore, the expert testimony beincj in sharp conflict, the

court will appoint its own expert pursuant to Fed. R. Evid. 706 to

examine the fire safety aspects of the KCKC and report his or her

findings to the court. The court thus reserves any ruling on the

fire safety claims until such time as that independent report can

be reviewed.

;

5. Classification

'

i
The Fourteenth Amendment due process standard affords

juveniles the right to be free from unreasonable threats to their

physical safety. See Youngberg v. Romeo, 457 U.S. 3 07, 315-16

(1982) . In the context of the case 'at bar, this right is

implicated by defendants' alleged failure 1:o classify and separate
i
juveniles properly upon their admission to the KCDC.
i
Classification "is the process of separating aggressive juveniles

from passive ones and determining appropriate levels of restraint

for each juvenile based upon the threat tlie juvenile presents to

other juveniles and to the public." Alexander S. v. Bovd, 876 F.
i
Supp. 773, 787 (D.S.C. 1995). Appropriate and effective classification at the KCDC is
difficult, if not impossible, due to the inadequacies of the
I
facility itself. Other than the multiple occupancy cells, deputies

have only one holding cell and three isolation cells at their

disposal for segregating juveniles who reijuire protection or who

pose a threat to others. Moreover, these four cells must be used
i
for status offenders, suicidal youth, vulnerable youth, children

29

07/26/96 14:36

©606 655 7553

CLC

with medical problems, and juveniles beinc disciplined. Thus, at

any given time, there are more juveniles in need of segregation

than there are appropriate rooms to accommodate them.

Like other conditions discussed herein, the classification

capabilities of the KCDC fall far short of what the state should

strive to provide for children committed to its custody for

purportedly rehabilitative purposes. Neveictheless, the court holds

that these conditions are not unconstitutional on a short-term

basis. In addition, the extra staffing ordered herein should also

increase the level of supervision of juveniles in the KCDC and thus

alleviate to some degree ciny problems arising from these

classification inadequacies.

\

i

6. Other Conditions and Practices

As to the other conditions challenged by plaintiffs, the court

finds no constitutional infirmities. Th<»re is no evidence of a

lack of cleanliness or unsanitary food handling practices in the

KCDC that would violate constitutional standards- Likewise, while

the medical and mental health services at the KCDC are not ideal,

considering the shortened stay ordered herein, they do not violate

constitutional standards.

:

V.

CONCLUSION

The vast majority of the challenged ;conditions in the Kenton

County Detention Center stem from the deficiencies of the physical

plant itself. These conditions are antithetical to the

30

:

07/26/96 14:36

©606 655 7553

CLC

12)033

institutional objective of providing juveniles with an environment reasonably suited to the goal of rehabilitation. At the same time, however, except in the areas noted, they do not violate plaintiffs' constitutional rights.
The court emphasizes that this conclusion obtains only if
juveniles not indicted for or convicted of a crime as an adult are
held in the KCDC for a short period of time. Thus, the court
believes that the time limit ordered herein is the best remedy
possible in the face of weighty policy considerations which prevent
it from ordering the facility closed ior physically altered.
Institutional reform cases such as this one inevitably bring
such opposing considerations into conflict. The desired objective
of rehabilitating troubled youth and the!need to protect society
from those same youth who demonstrate a '• propensity for violence
cannot always be fully accommodated. ; Thus, while the court may consider other changes in this
i
facility highly desirable, i t can order: only such relief as is necessary to prevent any further constitutional violations. The defendants are urged, however, to implement further reforms and to
i
discontinue the use of the facility, in favor of the new facility,
i
as soon as possible.
i
i
Therefore, the court being advised,; IT IS HEREBY ORDERED:
(1) that the motion to supplement the deposition of William Von
Strohe (doc. #397) be, and it is hereby, jCSRANTED;

31

i

07/26/96 14:37

©606 655 7553

CLC

(2) t h a t t h e motion of defendant Middlfiton for judgment as a matter of law (doc. #426) be, and i t i s hereby, DENIED;

I (3) that the motion to supplement the record based on the

enactment of the Prison Litigation Reform; Act of 1995 (doc. #433)

be, and it is hereby, GRANTED;

;

i )

(4) that effective August 15, 1996, no juvenile not indicted for

or convicted of a crime as an adult shall' be held in the present

Kenton County Detention Center for more than 15 days;

i
(5) that effective August 1, 1996, the facility shall have on duty
i
a minimum of two guards — one male and orijfs female (when there are

female detainees) — at all times;

I

I
i

(6) that effective August 1, 1996, the facility shall ensure that
i
both male and female juvenile residents are provided an opportunity
i
•
for recreation and physical exercise — exc hiding television — for
i
one hour a day, seven days a week.

i
(7) the court reserves its ruling on the !l:ire safety claims until |
such time as it can appoint its own expert to examine the KCDC and
review that expert's findings and opinions'; by August 15, 1996, the
parties shall agree on a fire expert not previously involved in
this case and submit his or her name to the court for appointment.
i
i

32

j

07/26/96 14:38

©606 655 7553

CLC

A separate judgment shall enter concurrently herewith granting permanent injunctive relief as outlined above.
This ^LG/U day of July, 1996.
, O.
WILLIAM o . B:I:RTELSMAN, CHIEF JUDGE

33

 
 Doe v. Younger

J -KY-002-004
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
AT COVINGTON

CIVIL ACTION NO. 91-187

JOHN DOE, ET AL

VS.

AMENDED JUDGMENT

DON YOUNGER, ET AL

EASTERN DISTRICT of KENTUCKY
FILED
JUL 26 1996
AT COVINGTON LESLIE G. WHITMER CLERK, U. S. DISTRICT COURT
PLAINTIFFS
DEFENDANTS

Pursuant to the Findings of Fact, Conclusions of Law, and Order entered concurrently herewith,
IT IS ORDERED AND ADJUDGED as follows: 1. That, effective August 15, 1996, no juvenile not indicted for or convicted of a crime as an adult shall be held in the present Kenton County Detention Center for more than fifteen (15) days ; 2. That, effective August 1, 1996, the Kenton County Detention Center shall have on duty a minimum of two (2) guards -one male and one female (when there are female detainees) --at all times; and 3. That, effective August 1, 1996, the Kenton County Detention Center shall ensure that both male and female juvenile residents are provided an opportunity for recreation and physical exercise -- excluding television -- for one (1) hour a day, seven (7) days a week. This 26th day of July, 1996.

WILLIAM 0. BERTELSMAN, CHIEF JUDGE

 
 Sep. 26. 1997

Doe v. Younger

!•••••• ••!• • • • • •• • • • • • • • • •

I

JI-KY-002-005

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

CASE NO. 91-187

JOHN DOE, a minor, by his next friend and mother, Mary Doe , on behalf of himself and all others iimilarly situated; and, JEAN DOE, a minor, by her next friend and mother, Barbara Doe, on behal: of herself and all others similarly situated
vs.
DON YOUNGER, in lis official capacity as Jailer of the Kenton County Detention Center, COTJJNTY JUDGE/EXECUTTVE, CLYDE MTDDLETOKr, in his official capacity; JACK LEWIS Secret uy of Corrections, Commonwealth of Kentucky, in his official capacity; LARRY ROpENBERGER, Superintendent, Covington Independent Public Schools, in his official capacity; PAU] , PATTON, Governor, Commonwealth of Kentucky, in his official capacity; WILMER CODY, Commissioner, Department of Educati >n, Commonwealth of Kentucky, in his offick 1 capacity; and VIOLA MILLER, Se< retary. Cabinet for Families and Children, Commonwealth of Kentucky, in her offici J capacity

PLAINTIFFS DEFENDANTS

SETTLEMENT AGREEMENT

*** *** *** *** Whereas, Plaintiffs John Doe, a minor, and all others similarly situated, filed this class action suit pursuant to 42 U.S.C, § 1983 against county and state officials challenging the

Se p. 2 6 . 1 9 9 ; 1 : 2 3 F M T"T L L I A U S h. WAGONER
conditions of confinement of the Kenton County Detention Center (KCDC) including inadequate provision oF fire safety and emergency evacuation procedures; and
Whereas, Defendants have agreed to the provisions described herein regarding the provision of fire safety for detainees of the KCDC without making admission of violation of the United States Constitution, the Constitution of the Commonwealth of Kentucky or other federal or state law; and
Whereas, at the time the KCDC no longer detains youth. Plaintiffs agree to dismiss their Complaint, and enter into an agreed order of dismissal, except for the education issues which are pending before the court on Plaintiffs' Motion for Findings by the Court on Education Issues and Defendants' Motion for Summary Judgment. Defendants agree to dismiss the appeal pepding in the United States Court of Appeals for the Sixth Circuit. Plaintiffs also agree tc dismiss their Cross Appeal pending in the United States Court of Appeals for the Sixth Circuit.
Defendants agree to the following: The KCDC will no longer detain youth after March 1, 1999, which is the date that the juvenile detention facil ty is scheduled to open in Campbell County, Kentucky. SMOKE BARRIERS
t
The smoke barrier on the Eighth Floor will be identified and repaired in compliance with the NFPA Life S< fety Code and all unprotected openings, to the extent there are any, shall be protected, including the spaces around utility penetrations of the barrier. All existing doors in the barrier shall remain. This shall be accomplished within 7 days of the filing of
-2-

L^ P f j .
this agreement with the court. This repair shall be reviewed as set forth in the Compliance Monitoring section of (his agreement.
COMBUSTIB E STORAGE Any combustiK i storage, furniture or lockers shall be identified and, if present, will be removed from the f<illowing areas: a) The connecting corridor from the corridor in the juvenile housing area to the
elevator lobby/visitors' lobby between Dorm 887 and the stairway; (b) Stairwa>s #1 and #4 at the basement level; (c) All exit access corridors in the basement. This includes storage, furniture,
lockers, etc.; and (d) All exit access corridors on the eighth floor. The only exception is the desk
used by the correction officer in the vicinity of the day room. The booking area and file cabinets shall be removed from the vicinity of Stairway #4 on the eighth flDor. This shall be aa :omplished within 7 days of the filing of this agreement with the court. This repair shall be visually inspected to assure that the areas listed remain free of combustible storage. SMOKE DETfiCTORS Smoke detector; will be installed in compliance with NFPA72 in the following areas: (a) All cells and dormitories occupied by juveniles; (b) All exit iccess corridors on the eighth floor that serve as a means of egress for the juveiule area. This shall also include both elevator lobby areas on the eighth floor; (c) The juvenile recreation and classroom area; (d) The teacher's office; and (e) All day ooms used by juveniles,
-3-

'-i:-'.

;AMS i WAGONER

This installatior shall be completed in 90 days of the filing of this agreement with the
court. The installation and testing shall be visually inspected as outlined below.
TELEVISION WIRING
The electrical p|ower supply for the television in isolation cell 862, if damaged, will
be repaired and the wtnng to the camera in the booking area will be permanent protected
wiring in accordance with the National Electric Code and NFPA-70, to the extent it is not so
installed at present, 'Iris repair shall be completed within 30 days of the filing of this
agreement with the coin
EMERGENCY OPERATIONS PLANS
The fire emergency and operational plans shall be modified as set forth below;
1) The plar calls for the juveniles to be evacuated using Stairway #1. Nowhere in the pi in does it state what to do if Stairway #1 is not available. There are no instructions for the use of alternate means of egress. The plan shall be modifiec to provide for alternate means of egress.
2) The plan does not instruct the correctional officers on how to notify the Control Center in case of a fire. The plan shall be modified to instruct the correctional officers on how to notify the control center in case of fire.
3) The plar calls for someone to meet the fire department at the elevators in the lower leyel. The plan never defines which officer this should be. The plan shall be modified to designate a particular officer to meet the fire department.
4) There aj-prear to be emergency instructions contained in a few separate plans. One of ihese plans calls for the evacuation of eighth floor occupants to the ninth floar In general, it is not a good practice to evacuate upward in a highrise building. The plan shall be modified to detail the specific instances where upward evacuation is permitted.
5) Keys to ihe stairways are contained within the Control Center. Nowhere within the fire emergency plans does it state under what circumstances the keys are to be rel ;ased, who authorizes the release of keys or to whom the keys are to be released. The plan shall be modified to state under what circumstances the
A-

keys are to be released, who authorizes the release of keys or to whom the keys are to be released.
6) The document entitled In Cage of Fire states: ''Under no circumstances will the inmates iave passage out of the jail." This contradicts other instructions in the emergency plan. The plan shall be modified to state under what circumstances inmates may have passage out of the jail.
7) The documents entitled What to do in Case of Fire states: "Inmates should
only be moved to the closest secure area where they can be locked down," As stated be fore, the closest secured area on the eighth floor would be in the same fire/smo. compartment from which the juveniles are being evacuated. The plan shal be modified to require movement of inmates to the closest secured area outside the same fixe/smoke compartment from which they are being evacuatep Every effort shall be made to avoid evacuating juveniles into an adult un t or allowing juveniles to have any contact with adult inmates.
The plar states that if the Jailer determines that the jail has to be evacuated inmates are not to be evacuated until sufficient backup is obtained. There is no guidance as to what constitutes "sufficient" and no time limit given. It could take a considerable amount of time to get sufficient backup at the jail. The plan shall be modified to define "sufficient" backup and the length of time to wait fpr backup.
9) The Pol cy and Procedures Manual calls for the Correctional Officer, upon discover r the fire, to contact the fire department via 911. Normal procedure would tx for the officer to first contact the Control Center. The plan shall be modified to require the correctional officer, upon discovering the fire to first contact tie Control Center and then to contact the fire department via 911.
These modificat ons shall take place within 30 days of the filing of this agreement with
the court. The modifi :ations will be reviewed as outlined in the Compliance Monitoring
section of this agreement.
FIRE DRILLS
The defendants will develop a fire drill plan which indicates how fire drills will be
conducted 12 times annjually. Additionally, defendants shall create a reporting format which
-5-

6. 199? 1:JOFM WPMAMS h WAGONER
critiques each fire dril conducted. These reports shall be reviewed after the filing of this agreement with the couft as outlined in the Compliance Monitoring section of this agreement.
STAEF TRADING A fire safety and emergency evacuation training program for correctional officers, to be conducted by the ire Prevention Bureau of the Covington Fire Department and the Corrections Cabinet, w 11 be developed within 60 days after the filing of this agreement with the court. Additional y, defendants shall document that each officer attend the training approximately 30 days after the training is developed.
COMPLIANCE MONITORING The provisions <if this agreement will be monitored in accordance with the NFPA Life Safety Code 1981 edition by the following monitors: 1) Bill Engel, who is Assistant Chief of the Fire Prevention Bureau of the
Covingti >n Fire Department, in conjunction with the Commonwealth of Kentucky, Department of Corrections designees. The monitors shall have open access to the facility, including all records regarding fire safety, without notice. The contact person at the KCDC shall be the Jailer, Don Younger.
DISPUTE RESOLUTION In the event a dispute arises as to whether Defendants have failed to substantially comply with the terms of this agreement, counsel for the parties shall proceed as follows: a. Counsel for the parties shall make a good faith effort to resolve any difference which may arise between them over matters of compliance. Prior to the initiation of any proceeding before the court to enforce the provisions of this agreement, Plaintiffs' counsel
-6-

shall notify Defendants counsel in writing of any claim that Defendants are in violation of any provision of this agreement.
b. Within twenty (20) business days of the receipt of this notice, counsel for Plaintiffs and Defendants shall meet or confer in an attempt to arrive at an amicable resolution of the claim. If after twenty (20) business days following such meeting, the matter has not been resolved, Defendants' counsel shall be so infonned by Plaintiffs' counsel, in writing, and Plaintiffs may then ha\e due recourse to the court.
ATTORNEY FEES The issue of attorneys' fees s;hall be resolved separately.
OTHER MATTERS This agreement complies with the Prison Litigation Reform Act, 18 U.S.C § 3626 et

seq. Dated:

_, 1997

WILLIAM 0. BERTELSMAN CHIEF JUDGE, U.S. DISTRICT COURT
AGREED TO:

JAMES R. BELL SHAN NAN L. WTLBER YOUTH LAW CENTER 114 Sansome Street, #950 San Francisco, California 94104 (415) 543-3379
-7-

199"

WAGONER

MARK I. SOLER YOUTH LAW CENTER 1325 G Street, N.W., #770 Washington, D.C. 20005 (202) 637-0377

KIM BROOKS CHILDREN'S LAW CENTER 9 East 12th Street Covington, Kentucky 41011 (606) 431-3313
COUNSEL FOR PLAINTIFFS

R. THADDEUS KEAL C. THOMAS HECTUS WILLIAMS & WAGONER 101 Bullitt Lane, Suite 202 Louisville, Kentucky 40222 (502) 429-5700
COUNSEL FOR DEFENDANT KENTON COUNTY
GARRY L. EDMONDSON KENTON COUNTY ATTORNEY 28 West 5th Street Covington, Kentucky 41011 (606) 491-5551
COUNSEL FOR DEFENDANT KENTON COUNTY

410.0000

7 fi h i
BARBARA W. JONES KEITH HARDISON Department of Conections Office of General Counsel 200 State Office Building Frankfort, Kentucky 40601 (502) 564-2024 COUNSEL FOR DEFENDANTS HONORABLE PAUL PATTON and JACK C. LEWIS

-9-

 
 Doe v. Younger

JI-KY-002-006
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
AT COVINGTON

CIVIL ACTION NO. 91-187

JOHN DOE, ET AL

VS.

ORDER

DON YOUNGER, ET AL

EASTERN DISTRICTS KENTUCKY
FILED
dEC 16 1997
AT COVINGTON LESLIE G. WHITMER CLERK, U. S. DISTRICT COURT
PLAINTIFFS
DEFENDANTS

On December 12, 1997 a settlement approval hearing was held in this matter. Kim Brooks appeared on behalf of the plaintiffs; Garry Edmondson and Keith Hardison appeared on behalf of the defendants. The proceedings were recorded by official court reporter, Amy Blosser. The court having heard counsel and being advised,
IT IS ORDERED as follows-: 1. There being no objections to the Fire Safety settlement proposed by the parties and the court finding the settlement reasonable, the proposed settlement decree is hereby approved. 2 . As the defendants have reached an agreement concerning the division of the court-appointed experts' fees, the defendants are hereby ordered jointly and severally liable for the court-appointed expert witness fees on fire safety. See Federal Rule of Evidence 706.
3. The plaintiffs shall have thirty (30) days from the issuance of the court's opinion on the education claims in which to submit a petition for attorneys' fees.
This 16th day of December, 1997.
r c
WILLIAM O. BERTELSMAN, CHIEF JUDGE

 
 CIVIL

Doe v. Younger
Illl Illl Illl II 111 f

™ ^

™™ ™™

™™ ! •

•

JI-KY-002-007

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

ACTION NO. 91-187

EASTERN DISTRICT of KENTUCKY
FILED
DEC 13 1997
AT COVINGTON LESLIE G. WHITMER CLERK, U. S. DISTRICT COURT.

JOHN DOE, ET AL

PLAINTIFFS

VS.

OPINION AND ORDER

DON YOUNGER, ET AL

DEFENDANTS

This is a civil rights action brought pursuant to 42 U.S.C. §1983 in which Plaintiffs challenge the constitutionality of the conditions of their confinement at the Kenton County Detention Center in Covington, Kentucky (KCDC). This matter is before the court on the Defendants' motion for summary judgment on education issues (Doc. #543) and Plaintiffs' motion for findings on the education issues (Doc. #540). For the reasons set forth below, Defendants' motion for summary judgment is granted. Plaintiffs' motion for findings is denied.
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON BASIC EDUCATION ISSUE
Plaintiffs claim Defendants have violated their constitutional rights by failing to provide them with appropriate education programs at KCDC. The court construes Plaintiffs' motion for findings on the education issues as an invitation to the court to establish its own standards for education at the facility. The court must decline this invitation because it has no authority to engage in such an endeavor.

PJp.

There is no federal constitutional right to an education. San Antonio Independent School District v, Rodriguez, 411 U.S. 1 (1973) . Whether there is a public education system is left to the states. Once a state commits itself to providing a public education, however, it establishes a property interest which is protected by the Due Process Clause. Goss v. Lopez, 419 U.S. 565, 573-74 (1975).
Section 183 of the Kentucky Constitution requires the Kentucky General Assembly to "provide for an efficient system of common schools throughout the State." In addition, the legislature enacted House Bill 117, which requires the Division of Educational Services of the Department of Juvenile Justice to "ensure that all incarcerated youth be provided appropriate screening and educational programs" as outlined therein. KRS §15A.067(3). Through this legislation, Kentucky has made a voluntary commitment to educate the children of this state, including those who are incarcerated. Therefore, incarcerated youth have a legitimate entitlement to an education program. This entitlement is protected by the Due Process Clause. Goss, 419 U.S. at 574.
State action providing for a public education is not unconstitutional under a substantive due process analysis as long as that action is directed to a legitimate purpose and is rationally related to achieving that purpose. Eva N. v. Brock, 741 F. Supp. 626, 635 (E.D. Ky. 1990), aff'd, 943 F.2d 51 (6th Cir. 1991) .

In the case at bar, Defendants have established through the affidavit of Donald Younger that KCDC has two full-time teachers. (Younger Aff. %1; Doc #545} . This staffing level provides an opportunity for one of the teachers to work with the juveniles in the classroom while the other is able to teach the "keep-aparts" in their individual areas. (Younger Aff. 1|3)• The court finds the state has a legitimate interest in formulating and executing its policies for the education of detained juveniles.
Plaintiffs have not produced any evidence to establish that the education programs provided at the facility are in any way deficient. Plaintiffs cite to Peter Leone's 1995 affidavit as their only evidence of deficiencies. Plaintiffs admit that changes have occurred at the facility since the legislature passed House Bill 117, but have not submitted any additional evidence of current deficiencies. Plaintiffs maike no claims of a procedural due process violation.
Furthermore, the Eleventh Amendment prohibits a federal court from ordering state officials to conform their conduct to state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 8 9 (1984) . Accordingly, this court does not have the authority to order the Defendants to conform to the mandates of House Bill 117. Because Plaintiffs have failed to submit any evidence of deficiencies in the education programs that evidence a substantive or procedural due process violation, they have failed to establish a viable claim against the Defendants with regard to a basic education program. Accordingly, Defendants are entitled to summary

judgment on the basic education issue.
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON SPECIAL EDUCATION ISSUE
Plaintiffs allege Defendants have violated The Individuals with Disabilities Education Act (IDEA). The IDEA requires participating states1 to have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. §1412. An individualized education program ("IEP") is the primary vehicle for delivering the appropriate educational services to a child with a disability. An IEP is a written statement which is prepared for each child with a disability at a meeting with the child's parent or guardian, the child's teacher and a representative of the educational agency. 20 U.S.C. §1401(20) . The development of a blanket IEP to be applied to all disabled children would be a violation of the IDEA. A separate IEP must be developed for each child. Id.
Incarceration or detention does not vitiate the right of a child with a disability to a free appropriate public education. To the contrary, the IDEA makes it clear that children with disabilities remain entitled to an appropriate public education while detained. Magyar v. Tucson Unified School District, 958 F. Supp. 1423 (D. AZ 1997); Alexander v. Boyd, 876 F. Supp. 773 (D.S.C. 1995); Donnell v. Illinois State Board of Educ., 829 F. Supp. 1016 (N.D. 111. 1993). The stated purpose of the IDEA is to
:The parties do not dispute that Kentucky is a participating state in the IDEA.

provide all children with disabilities a right to an education. There is no exception for incarcerated youth. Id.
The only evidence Plaintiffs present to establish a claim under the IDEA is the affidavit of Mary Salyer. (Doc. #555). Ms. Salyer is the attorney of record for Jeremy Hughes, a juvenile that was detained at KCDC from September 10, 1997 to September 24, 1997. Her affidavit is in reference to this juvenile only. She states that an Admissions and Release Committee (ARC) meeting was not held to consider implementing this juvenile's IEP for 6 days after the facility received the IEP.2 She further states that the juvenile was receiving one-on-one instruction from a teacher not qualified in working with emotionally/behaviorally disturbed children. This juvenile ultimately received instruction from a qualified professional, but Ms. Salyer testified it was only for a couple of days. Ms. Salyer does not explain whether the instruction ended because the juvenile was released or because the teacher was unable to continue the instruction.
Generally when a court is reviewing a case brought under the IDEA, it "must determine whether the state has complied with the Act's procedural requirements and whether the IEP is reasonably calculated to enable the child to receive educational benefits." Thomas v. Cincinnati Board of Educ., 918 F.2d 618,624 (6th Cir.
defendants have submitted the affidavit of Clara Fister, a teacher at KCDC, stating the ARC meeting was held on the third day after receipt of the IEP. For purposes of this Motion, this court will accept Plaintiffs statement that the meeting was held on the 6th day following receipt of the IEP.

19 90) (citing Board of Educ. V. Rowley, 458 U.S. 176, 206 (1982)). The court must review the due process hearing de novo, but must give due weight to the state administrative proceedings in reaching its decision. Id.
Here, Plaintiffs argue Defendants violated the IDEA by failing to hold a timely ARC meeting and providing only limited instruction by a qualified teacher. There are no allegations of any problems with the meeting once it took place or the results reached therein. There is also no indication that Jeremy's complaints were ever reviewed in a state administrative proceeding. Exhaustion of administrative remedies is a necessary prerequisite to filing suit under IDEA. Crocker v. Tennessee Secondary School Athletic Ass'n, 873 F.2d 933 (6th Cir. 1989). Jeremy has not sought administrative review and, thus, his claim is not ripe for review by this court.
Even though the court has no jurisdiction of Jeremy's claims, the court will make certain observations. The only procedural issue is whether the ARC meeting was timely held. In 34 C.F.R. §§ 300 et seq., The Department of Education set forth the regulations it promulgated under the IDEA. In §300.343, the regulations provide: "A meeting to develop an IEP for a child must be held within 30 calendar days of a determination that the child needs special education and related services." 34 C.F.R. § 300.343. The 30 day timeline ensures that there will not be a significant delay in providing the child with the services needed. In addition, in Appendix C to Part 300 - Notice of Interpretation - the Department of Education noted that if a child with a disability has been

receiving special education in one local educational agency and moves to another community, a meeting to develop a new IEP, if necessary, should be held within a short time after the child enrolls in the new local educational agency, normally within one week.
Here, the meeting was held six (6) days after the facility learned of the juvenile's special education needs. This is within both the one week recommendaition for children already receiving special education and the 30 day timeline for newly diagnosed children. Accordingly, the meeting was timely held.
Therefore, the court being advised, IT IS ORDERED as follows: 1. That plaintiffs' motion for findings by the court on the education issues (doc. #54 0) be, and it is, hereby denied; 2. That defendants' motion for summary judgment on the education issues (doc. #543) is granted; and 3 . That a separate Judgment will enter concurrently herewith dismissing the education claims. This IQAA day of December, 1997.
WILLIAM O. BERTELSMAN, CHIEF JUDGE

 
 RECEIVED DEC 1 8 1997
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
AT COVINGTON
CIVIL ACTION NO. 91-187

EASTERN DISTRICT ef KENTUCKY
FILED
DEC 16 1997
AT COVINGTON LESLIE G. WHITMER CLERK, U. S. DISTRICT COURT:

JOHN DOE, ET AL

PLAINTIFFS

VS.

JUDGMENT

DON YOUNGER, ET AL

DEFENDANTS

Pursuant to the Opinion and Order entered concurrently herewith, the court being advised,
IT IS ORDERED AND ADJUDGED as follows: 1. That the education claims herein be, and they are, hereby dismissed, with prejudice; 2. That the last substantive issue having been disposed of, this is a final Judgment. This 16th day of December, 1997.
c
c
WILLIAM O. BERTELSMAN, CHIEF JUDGE

Doe v. Younger J -KY-002-008

 
 tnn'rED STATES DISTRICT COURT
EASTERN DISTRICT OP KENTUCKY AT COVINGTON

CIVXL ACTION NO. 91-187

JOBN DOB, BT AL
vs.

OPDllON AND ORDBR

DOH YOlJNGD, BT AL

EASTERN DISTRICT of KENTUCKY
FILED
SEP,~.. i996
AT COVINGTON LESLIE G. WHITMER ~LERK, U. S. DISTRICT COURT.
PLAINTIFFS
DEFENDANTS

This matter is before the court on defendant Kenton County's motion to alter, amend and vacate this court's July 26, 1996 judgment and to stay the execution of that judgment (doc. #450}, the motion of defendants Paul Patton and Doug Sapp to alter or amend the court's July 26, 1996 judgment (doc. #459}, and the stipulated motion for an extension of time to file a petition for attorneys' fees (doc. #459). A telephonic hearing was held on these motions on August 29, 1996. For the reasons set forth below, Kenton County's motion to alter or amend is granted as to which juveniles are exempt from the 15 day limitation on length of stay, but the remainder of Kenton County's motion is denied. The motion of defendants Governor Paul Patton and Doug Sapp is denied in its entirety, and the stipulated motion for an extension of time to file a petition for attorneys' fees is granted.
I
Plaintiffs initiated this civil rights .class action pursuant
to 42 u.s.c. §1983. They challenge the constitutionality of the
conditions of their confinement at the Kenton County Detention Center (KCDC) in Covington, Kentucky. After considering all
1

evidence presented during a three day trial to the bench and considering all arguments made in post-trial briefs filed by the parties , the court entered its findings of fact and conclusions of law as well as an amended judgment on July 26, 1996. The parties seek alteration of portions of these documents.

TBB FINDINGS OP FACT AND CONCLUSIONS OF LAW WILL BE AMENDED
CONCBR.Nl:NG THE EXEMPTION FROM THE 15 DAY LIMJ:TATION ON LENGTH OF STAY
This case requires the court to balance significant conflicting interests -- the due process rights of incarcerated juveniles, the public's right to have juvenile crime and misbehavior addressed, and the separation of federal and state powers. As explained in the court's findings of fact and conclusions of law, the Kenton County Detention Center is clearly substandard in many respects. However, in the view of the court the conditions at the KCDC become unconstitutional and thus justify court intervention only when a juvenile is subjected to those substandard conditions for an extended period of time. To that end, the court imposed a time limit on the length of incarceration in this facility for juveniles who do not have the benefit of adult

procedural protections, stating:

Plaintiffs ask the court to close this

~ci institution. After careful reflection, the
court has concluded.that such an ~fxt~e~~

ld violate the principles o JU 1.c1a

wo~traint and federalism. But the court has

~!so concluded that confining a juvenile_ there

or an extended period -.- more than fifteen

~lS) days unless there is probable cause to

believe that the juvenil~ can be ~reate~ as an

adult

c

h

d arge

with

a

crime -1

is punishment What one can

without due process of the aw.

2

bear for a short period can be intolerable if
prolonged.

Doc. #447 at 2. The court's amended judgment provides, "That,

effective August 15, 1°0 6 ;7 ;7 ,

no J· uveni· 1e not i·ndicted for or

convicted of a crime as an adult shall be held in the present

Kenton County Detention Center for more than fifteen (15) days."
Doc. #449 at 1.

In its motion to alter or amend the judgment, Kenton County

states, for the first time, that, given the procedures prescribed

by the Kentucky Revised Code concerning youthful offenders, it is impossible to judicially determine whether a juvenile will be treated as an adult charged with a crime within fifteen days of the

juvenile's initial incarceration at the KCDC. For this reason,

Kenton County asks the court to revise its language concerning

which juveniles are exempt from the fifteen day limit on length of

incarceration at the KCDC. In making its motion, Kenton County repeatedly sarcastically
states that the court was "simply wrong" in concluding that juveniles who have not been charged with a crime and who have not been afforded the rights of those who are so charged are being held for lengthy periods in the KCDC. This statement is itself not only "simply wrong" but demonstrates a profound ignorance of the law of this case. 1
It is fundamental that proceedings against juveniles, even

1 The court suggests that if one is going to be disrespectful, one ought to at least do his homework.
3

juveniles who have allegedly been in contempt

criminal proceedings.

of court, a r e not

See,~, In re Gault, 387 U.S. 1 (1967) ;

Kent v. United States, 383 u.s. 54 1 (

S. W.2d 195

1966); Young v. Knight. 329

{Ky. 1959); Alexander S. v. Boyd, 876 F. Supp. 773

(D.s.c. 1995). As the Supreme Court explained:

The theory of the District's Juvenile Court

Act, li~e tha~ of other jurisdictions, is

rooted in social welfare philosophy rather

than in the corpus juris. Its proceedings are

designated as civil rather than criminal. The

Juvenile Court is theoretically engaged in

determining the needs of the child and of

society rather than adjudicating criminal

conduct.

The objectives are to provide

measures of guidance and rehabilitation for

the child and protection for society, not to
fix criminal responsibility. guilt and
punishment.

Kent. 383 U. s. at 544 (emphasis added) . More recently, the
Kentucky Supreme Court has echoed those views, stating:

It has been a principle theory of juv?nile_law

that an individual should not be st1gma~1zed

with a criminal record for acts committed

during minority. By providing young people

"th treatment oriented facilities rather than

=~mple punishment, antisocial behavior can be

modified and the offenders will develop as law

dtarboa1e· dds iint1igi·om1n·.catiltltihyzee

ns. However, constitutional
provided for a

S)=lch treatment
druilgthtos£tfhenadt earsre.

. 1 offenders are not afforded all the

Juven7t e tional rights that adult of~enders

cons~i u

are afforded only the right.to

rfeacier ivtree. atmTheenyt. • · · J. usti.ce systern reflects

Tthhei.sKpehnti.u1coksyophjuyv. eni~e

County pepart ment f- or HumaneSrv...;.ces v . carter, 795

Jefferson

and citations omitted) (emphasis

S.W.2d 59, 61 (Ky. 1990) (footnote

added).
Even so basic a work as American Jurisprudenc2ed, a primer of

4

American law, in the very first section of its article on Juvenile Courts notes the following basic principles :

.

The pu~ose of juvenile court legi slation

1.s to provide for the disposition of deli n-

qu7nt, dependent, neglected, and abandoned

ch1.ldren by providing a complete scheme for

~reat~ent thereof including the creation of a

Juvenile court which will investigate and try

to rehabilitate minors.

With respect to the delinquent child the
philosophy of juvenile court laws is that the
juvenile is to be considered and treated not
as a c~iminal. but as a person requiring care,
education, and protection . A fundamental aim
of juvenile court laws is the prevention of
delinquency of children. Consequently, such
laws are not punitive, but are corrective and protective in that their purpose is to make
good citizens of potentially bad ones. In other words, the welfare of the child lies at the very foundation of the statutory scheme.

4 7 Am. Jur. 2d Juvenile Courts and Delinguent and Dependent

Children§ 1 (1995) (emphasis added}.

As the above authorities and many others make abundantly

clear, it is a trade-off. Juveniles may be deprived of some constitutional rights, such as the right to a jury trial and a

speedy and public trial, because they are not being punished but

treated. Therefore, all juveniles, except those being proceeded

against as adults, have not even been accused of crimes. Again,

this is 80 basic that one doubts if contrary assertions_are made in

good faith.~

2 Certainl denial of these basics would not be "warranted by exi~~ law or by a

.

y,

t r.or the extension modification or reversal of eXJstmg law or the

nonfrivolous argumen 1•

• '

establishment of new law." Fed. R C1v. P. ll(b)(2).

5

The gravamen of this court's opinion is that detention at the KCDC for more than fifteen {15) days is punishment. Therefore, no juvenile may be so punished except those being proceeded against as adults.

Thus, in determining whether juveniles could constitutionally

be housed in the substandard KCDC f aci li ty, the court protected

those children who are not afforded the additional procedural

rights available to adults. In keeping with the notion that

federal courts have the authority only to require the

constitutional minimum- -not to impose their views of an ideal

facility, the court elected to limit the length that any juvenile

not ultimately protected by adult procedural rules may be

incarcerated in the KCDC.
In Kentucky, a juvenile is protected by adult procedural requ1·.rement s only 1·f he is proceeded against as a "youthful offender.,, A "youthful offender" is a person who is transferred to

Circuit Court to be indicted, tried and sentenced as an adult

pursuant to KRS Chapter 640 and who is subsequently convicted in KRS 600.020(52). To be eligible for treatment as
Circuit Court. a youthful offender, a juvenile must be accused of committing

•

3

certain serious crimes.

6

The procedures by which it is determi'ned that

proceeded against as a youthful ff d

a ch• ild will be

o en er are contained in the

Kentucky Unified Juvenile Code. To initiate these procedures, the

county attorney must make a motion before the District court to

transfer the child to Circuit Court for treatment as a youthful offender.
KRS 635.020 and KRS 640.010(2).' The District Court
then conducts a transfer hearing pursuant to KRS 640. 010. At that

hearing, the District Court determines whether there is probable

cause to believe that the child committed an offense and whether

all age or other requirements for treatment as a youthful offender

have been satisfied. KRS 640.010(2) (a). The District Court then

considers a number of other factors concerning the circumstances

surrounding the offense, the child, and the public and determines

whether the child should be transferred to Circuit Court for treatment as a youthful offender. KRS 640. 010 (2) (b) .

felony offenses on two_s~par;telonoycciansiownhsich(KaRSfi6r3ea5r.0m20w(a3s))u; sed in
(c) a child charged wi~f a ewho was at least fourteen years old atht ethceomtmimisesioonf othfe thaelleoge~n~~mmission of the offense (KRS

:r 635.020(4));

d 'th a felony who previously had been

(d) a child charge wi

d (KRS 635.020(5)); and

convicted as a youthful offen hteen years old and is charged

w(ei)th aa pfeelrosnoyn wthhao t isocacut rlree~sptrio~ to his eighteenth birthday (KRS

635.020(7)).

4In

the

case

of

a

c hi'ld.

c

h

at r'

gleeda

swti'

th a four

felo teen

ny ye

in ars

wohldicha

t a

the

firearm was

used

and dowffheonsise, a KRS

0(4) 635.02

pHroovwiedveesr, foitr appears

time of the alleget as a youthful offender. that the county

~I!e automatic treatmenof KRS 640.010(1) and~~) child to Circuit
afrtotmorrtntheinye omlarundsgeurt to trai.gmgoetrionthetohteraar~isngfe~hateresults in the

~~~omatic transfer.

7

Due to the serious consequences associated with treatment as
a youthful offender, it is common for the child's attorney to seek
additional time for investigation and preparation prior to the

trans£er hearing. At the telephonic hearing, the County Attorney,

Garry Edmondson, personally orally certified to this court that all

motions for transfer to the Circuit Court for treatment as a

youthful off~nder are and will be made in the good faith belief

that the facts support such a transfer. He also said he could make

the necessary good faith determination within the 15 days.

Based upon the County Attorney's representation and the fact

that it is impossible to ensure that a transfer hearing will commence within 15 days of incarceration without infringing the juvenile's right to adequate preparation and investigation, the

court concludes that its July 26, 1996 findings of fact and conclusions of law and amended judgment should be modified to

state:

confining a juvenile in th~ Kenton _county

Detention Center for an extended period of

time -- more than fifteen (15) days unless ~he

prosecutor has, in go~ faith~ fi~ed a motion

to transfer the juvenile to Circuit Court for

treatment as a youthful offender

is

punishment without due process of law.

Any statements contained l·.n the court's July 26, 1996 findings of fact and conclusions o f law or in the court ' s amended judgment filed that same day that are i~consistent with this statement shall

be vacated.
mos OP PACT AND CONCLUSIONS OF LAW ~LL
THBB:~BD TO TRACK LANGUAGE REQUIRED BY PRXSON LXTXGATION R.BPORM ACT OF 1995
8

In its moti· on to alter or amend

the court did

, Kenton County contends that

ena t

not make specific findings required by the recently

c ed Prison Litigation Reform Act of 1995 and, therefore ,

Kenton

County

is

enti. tled

to

immediate

release

' from

the

prospective

relief provided by this court's July 26, 1996 amended J'ud

Kenton County' s argument is without merit.

gment.

The Prison Li·ti·gation Reform Act of 1995 provides, in part:

pTrhoe spceocutirvt e srhealilel f nuont le~r~: or app7ove any

such relief is narrowi8 e court finds that

f v l

uei. oartslhateti3r·:o-nnt rtuhosafi·nvethmeneeacFneessdsneaerracYyle

drtaown, coerxrtent ds ssrai.gryh tt,o acnodercre1.c.st

nh o ttthheee

violation of the Federal right.

1a u.s.c.A. §3626 Ca) (l.) (A) (1996). The Act further provides for

termination of prospective relief if the court fails to make such

findings. 18 u.s.c. §3626(b) (2).
The court fully complied with the PLRA in its July 26, 1996

findings of fact and conclusions of law by paraphrasing the

required findings. However, in an abundance of caution and in an

effort to avoid any misunderstanding, the court hereby amends its

July 26, 1996 findings of fact and conclusions of law to

specifically state: This court finds that the prospective relief
ordered in this case is narrowly dra~, extends no further than necessary to correct the current and ongoing violat~on _of the
1 . tiffs, Federal constitutional right to

th:ind~e process o:celsa;.; anio i~o:::ctle~:~

intrusive meansat nFederafYright. The court

violat:ion of bt~ ntial weight to any. adverse

has 91ven au.but', a safety or the oper~tion ~f a

impact on P ic

d by this relief•

criminal justiice sy~te~~a~~~ordance with the

This finding s ma e

9

Prison
U.s.c.

Litigati.'on
§3626 (a} (1).

Reform

Act

of

1995,

18

THE

C O U R TO' SRDAME,, NDED

JUD~-
'-7£·~-.,1,,

IS

NOT

A

"PRISONER

RELEASE

BR WITHIN THE MEANING OF THE PLRA

Kenton County's final contention is that the court's July 26, 1996 amended judgment constitutes a ~prisoner release order" as

used in the PLRA, 18 U.S.C. §3626(a) (3). Therefore, according to

Kenton County, the order in question can be entered only by a

three-judge panel and only after a previously entered order for

less intrusive relief has failed to remedy the constitutional

deprivation. This contention is without merit.

The PLRA defines "prisoner release order" as nany order,

including a temporary restraining order or preliminary injunctive

relief, that has the purpose or effect of reducing or limiting the

prison population, or that directs the release from or nonadmission

of prisoners to a prison." 18 U.S.C.A. §3626(g) (4) (1996). This

definition must be read in conjunction with the substantive

provisions concerning prisoner release orders and in view of the

legislative history underlying those provisions. To enter a prisoner release order, under the PLRA, a three-

judge panel must find by clear and convincing evidence that: "(i)

crowding is the primary cause of the violation of a Fe~eral right;
and (ii) no other relief will ,remedy the vi~lation of the Federal right." 18 u.s.c.A. §3626(a) (3) {E) (1996). In addition, the House Judiciary committee's report provides:
subsection (a) {2): Prison population reduction relief

10

To fh ilsa ss tu br s e c

t· ion

makes

prison

only if t~:ort,. permitting a c:;pto ~he. remedy

i s•

the

"pP;t'l.soner proves. 1) thate imposed

rimary" c

•

crowding

vio1 ation; and 2} tha:use of the federal

<;ure the violatio

no other remedy will

imposed in recogn!t·. These requirements are

ef;ects prisoner

of prison releases

r

~1~~nsdofantdhet

severe, he acco

adverse mpanying

e*i; *on to meet the caps .

i:a By requiring that a 1 . . .
actual violation of b·aint1ff.1nm~te prove an based on the alle const1.tut1.o~al rights

subsection will end lh overcrowding, this

imposing p ·

e current practice of

complained :;;on caps. when inmates have . d. . ut the prison conditions but the

p~esi ing ~udgE; has made absolutely no finding

o~~

unconstitutionality or even held the allegations. In ordering or

any t. 1 appro!f~g

ese caps, some judges now oversee hu

program, of releases to keep the p r ~

12opulat1.on down to whatever that · a

considers an appropriate level.

JU ge

House Committee on the Judiciary, Violent Criminal Incarceration Act of 1995, H.R. Rep. No. 21, 104th Congress, 1st session, p. 25

(1995) (emphasis added). After reviewing the substantive provisions concerning prisoner
release orders and the legislative history underlying this provision of the PLRA, it is clear that the prisoner release order provisions are directed at prison caps, i.e., orders directing the release of inmates housed in a particular institution once that institution houses more than a specific number of persons. This is

not that kind of case. In the case a t bar, the court ordered that children-- other

than those for whom the county attorney has filed a motion for

as a youthful offender--not be

transfer to Circuit Court incarcerated in t he barren KCDC for more than 15 days.

The court's

11

order does not impose a cap on
the number of children incarcerated
at the KCDC- -it limits only
the amount of time in which any
particular child may be held under the substandard conditions
present in the KCDC.

In addition, the court's order does not direct the release of any child. It is undisputed that counties, including Kenton
County, often house juveniles in need of a secure facility in other

counties. In fact, such transfers from facilities in one county to

facilities in another county or even another state are extremely

common.

Indeed, the Kentucky Juvenile Code specifically

contemplates such transfers. See, ~ . KRS 605.090 and KRS

615.030. Kenton County remains free to transfer juveniles in

danger of exceeding the fifteen day limit from the KCDC to any other juvenile facility that is appropriate. Accordingly, the

court's order does not come within the prisoner release order

provision of the PLRA.

THE COMMONWEALTH DBPBNDANTS' MOTION TO ALTER OR AMEND JUDGMENT IS DENIED

Defendants Paul Patton, Governor of the Commonwealth of

Kentucky and Doug Sapp, Commissioner of the Kentucky Department of

corrections (collectively "the Commonwealth defendants#) raise

three contentions in their motion to alter or amend the court's

I
July 26 , l996 findings of fact and conclusions of law.

First, the commonwealth defendants object to the court's referring to "state" officials, contending that the County

officials

have

Prima,.,, •.z

authority

to

operate

the

detention

center.

12

For purposes of cl · f • ari. ication, the court notes that "state" is used
in the section 1983 sense of off1.·c1'als acting under color of state
law and this included the Commonwealth defendants and the County
defendants. In addition, the Commonwealth defendants' objection does not affect the court's judgment in this case.
Second, the Commonwealth defendants contend that the Commissioner of the Kentucky Department of Corrections does not ~supervisen the KCDC, but they admit that the Commissioner has the authority to -monitorw and •inspectn the KCDC. This objection seems to be a simple matter of semantics and does not require any action on the part of the court. During the telephone conference concerning the motions to alter or amend judgment, counsel for the Commonwealth defendants indicated that she was concerned about the use of the word •supervise" because such supervision may have an effect on liability for the plaintiffs' attorneys' fees. As the court stated during the telephone conference, nothing in the findings of fact and conclusions of law is intended to imply a ruling concerning an attorneys' fee petition.
Finally, the Commonwealth defendants take issue with the court, s statement that the defendants have not "produced any documentary evidence that these alternatives [to complete sprinkler suppression] were considered under the Codes FSES system or that
they were ever approved by the· state fire marshal.n ~ doc. #447
at 28 . As the court specifically reserved ruling on the fire saf ety i ssue unt 1• 1 a court-appointed fire expert could be retained,
13

there is no need to revisit

safety issue at this time.

the evidence surrounding the fire

Therefore I

the court bei'ng a dv.ised,

1:T IS HEREBY ORDERED as follows:

1.
judgment

That Kenton County's motion to alter, amend and vacate

(do #4s

c.

0-1) be, and it is, hereby granted as to the

determination of what juveniles are exempt from the fifteen day
limitation period. The court's July 26, 1996 findings of fact and

conclusions of law and amended judgment are hereby modified to
state:

Confining a juvenile in the Kenton County

Detention Center for an extended period of

time -- more than fifteen (15) days unless the

prosecutor has, in good faith, filed a motion

to transfer the juvenile to Circuit Court for

treatment as a youthful offender

is

punishment without due process of law.

Any statements contained in the court's July 26, 1996 findings of fact and conclusions of law or in the court's amended judgment filed that same day that are inconsistent with this statement are hereby vacated;

2. That the court's July 26, 1996 findings of fact and
conclusions of law are hereby amended to specifically state:
This court finds that the prospective relief ordered in this case is narrowly draW1!, extends no further than necessary to correct the current and ongoing violation of the plaintiffs' Federal constitutional right to the due process of law, and is the least intrusive means necessary to correct the violation of that Federal right. The court has given substantial weight to any. adverse impact on public safety or the oper~tion ~fa criminal justice system caused by this !elief. This finding is made in accordance with the
14

UPr.sis.ocn.

Litigati'on §3626 (a) (1);

Reform

Act

of

1995,

18

3 · That the remainder of Kenton County's motion to alter,

amend and vacate J'udgment (d

#

oc, 450-1) be, and it is, hereby

denied;

4 • That Kenton County's motion for stay of execution of judgment (doc. #450-2) be, and it is, hereby denied as moot;
5. That the motion of defendants Governor Paul Patton and Doug Sapp to alter or amend judgment (doc. #459) be, and it is, hereby denied; and
6. That the stipulated motion for an extension of time in which to file a petition for attorneys' fees until October 15, 1996 (doc. #456) be, and it is, hereby granted.
This l{?fi: day of September, 1996.
~d)N&o-~
WLIAMO. BERTELSMAN, CHIEF JUDGE

15

F I L E COPY
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
September 4, 1996

Case Number: 2:91-cv-00187

Barbara w. Jones

Keith D. Hardison

R. Thaddeus Keal

James M. Burd
Garry L. Edmondson

Shannon Wilber

James Bell Kimberly A. Brooks

Mark I. Soler
Joseph u. Meyer
John Jay Fossett

E. D. Klatte

Barbara D. aonar

D certificate of Mailing by

II,\~

 
 Doe v. Younger

HUP H

VI "

™»

HH

V

^

JI-KY-002-002

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

CIVIL ACTION NO. 91-187

JOHN DOE, ET AL

VS.

MEMORANDUM OPINION

JAMES KNAUF, ET AL

Eastern District of Kentucky
FILED
AUG I 4 1992
AT OOVIN4TON CCSLW a. WMA-MKH ettwc. o. • . Dirmtcr COURT
PLAINTIFFS
DEFENDANTS

This matter is before the court on the defendants' motions to dismiss. Defendants James Knauf and Clyde Middleton argue that, under the Supreme Court's recent analysis in Suter v. Artist M., 112 S. Ct 1360 (1992) , a private right of action may not be implied under the Juvenile Justice & Delinquency Prevention Act of 1974, 42 U.S.C. §§ 5601-5780 [hereinafter Juvenile Justice Act]. They further argue that the plaintiffs' constitutional claims should be dismissed for failure to state a claim. Defendant Jack Lewis moves to dismiss on the ground that the Juvenile Justice Act does not create substantive rights enforceable through 42 U.S.C. § 1983 and on the basis of Eleventh Amendment immunity. The court overrules the motions to dismiss on these grounds, finding that the plaintiffs have adequately stated their claims and may proceed with this litigation.
The court recognizes that the defendants' argument that the plaintiffs' constitutional claims are too vague to state a claim is not properly before the court. It was not raised in the defendants' original motion, but rather was inserted in their reply brief. Regardless, the court finds that plaintiffs have adequately stated a claim under the Fourteenth Amendment for denial of due

process and under the Eighth Amendment for cruel and unusual punishment. Their amended complaint adequately alleges the facts on which their claims are based to meet the requirements of notice pleading.
The court will discuss other arguments made in the motions in more detail.

Juvenile Justice Act As a preliminary matter, defendants Knauf and Middleton appear to be claiming that they are entitled to dismissal of the plaintiffs' causes of action citing violations of the Juvenile Justice Act because the Juvenile Justice Act does not itself imply a private right of action. Plaintiffs do not dispute this conclusion. Courts that have considered this issue before have concluded that the Act does not give rise to an express or implied right of action. Doe v. McFaul, 599 F. Supp. 1421, 1430 (N.D. Ohio 1984); Cruz v. Collazo, 84 F.R.D. 307, 314 (D.P.R. 1979). Since the plaintiffs do not contend that a private right of action exists, the court will accept the analyses of these earlier district courts and deny the defendants' motion to dismiss on this ground. Plaintiffs are asserting that they may use the "and laws" provision of S 19831 to enforce substantive rights created by the Juvenile Justice Act. Defendant Lewis argues that the Act does not

1

This statute grants a private right of action to people

who, under color of law, are deprived of their "rights, privileges,

or immunities secured by the Constitution and laws." 42 U.S.C.A.

S 1983 (West 1981) (emphasis added).

create enforceable rights. In a civil rights case with largely similar issues about the detention of juveniles, a court noted the difference between S 1983 enforcement and an implied right of action: "If it were true that section 1983 actions to enforce xfederally protected rights' were coextensive with implied private rights of action to enforce federal statutory rights, then the Thiboutot decision would have been completely unnecessary." Grenier v. Kennebec County, 748 F. Supp. 908, 916 (D. Me. 1990). The court went on to say that under Maine v. Thiboutot, 4 48 U.S. 1 (1980), plaintiffs can use § 1983 to vindicate federally-protected rights not enforceable through implied private causes of action. Another court recognized this distinction in an earlier Juvenile Justice Act case: "If the Court were to define the term xright' so narrowly that no right would exist unless the Court could find an intent to permit a private suit, nothing would be left of Thiboutot." Hendrickson v. Griggs, 672 F. Supp. 1126, 1133 (N.D. Iowa 1987), appeal dismissed, 856 F.2d 1041 (8th Cir. 1988). Thus, it is apparent that § 1983 can be used to enforce federal laws that do not imply a private right of action.
In Thiboutot, 448 U.S. at 4, the United States Supreme Court established that S 1983 provided a right of action for violations of federal statutes. The Court has applied this principle to several cases since 1980, including Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), Wright v. City of Roanoke Redev. & Hous. Auth., 107 S. Ct. 766 (1987), and Wilder v. Virginia Hosp. ASS'JJ, 110 S. Ct. 2510 (1990). This line of cases illustrates the

Court's test for determining when S 1983 is applicable. Two requirements must be present: 1) the federal statute in question creates an enforceable right, privilege or immunity; and 2) Congress has not foreclosed private enforcement within the statute itself. See, e.g., Suter, 112 S. Ct. at 1366; Wilder, 110 S. Ct. at 2517; Wright, 107 S. Ct. at 770. The Court, in Wright, described the way the burden shifts in reference to these two requirements: "[l]f there is a state deprivation of a xright' secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement." Wright, 107 S. Ct. at 770; see also Hendrickson, 672 F. Supp. at 1136. In order to make out a prima facie case under § 1983, the plaintiff must demonstrate an enforceable right arising from the statute, which the defendant may rebut by showing that Congress foreclosed a private remedy within the statute itself.
In Wilder, the Court attempted to elaborate on what constitutes an enforceable right. It noted that a right is not conferred when the statute "reflects merely a * congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit, or . . . the; interest the plaintiff asserts is x"too vague and amorphous1" such that it is * "beyond the competence of the judiciary to enforce."'" Wilder, 110 S. Ct. at 2517 (citations omitted). In determining whether Congress has foreclosed enforcement through § 1983, the court should look for a

comprehensive remedial scheme within the statute, sufficient to
displace the S 1983 remedy. In this regard, state administrative
procedures normally do not foreclose resort to S 1983. Wilder, 110
S. Ct. at 2523-24.
Contrary to the defendants' assertions, Suter follows this
same analysis in concluding that the Adoption Assistance and Child
Welfare Act does not confer an enforceable right. The Court
concluded that the term "reasonable efforts" was too ambiguous for
the judiciary to enforce. In addition, the Court specifically
distinguished Wilder on the basis of the amount of detail in the
statute and regulations at issue in that case. Suter, 112 S. Ct.
at 1368. Therefore, determining whether § 1983 is applicable
requires a review of the statute sought to be enforced.
This court holds that the Juvenile Justice Act is sufficiently
detailed and mandatory in its language to support the conclusion
that it creates rights enforceable through S 1983. In specific,
the following subsections make the Juvenile Justice Act more
analogous to the Boren Amendment to the Medicaid Act discussed in
Wilder, 110 S. Ct. 2510, than to the Adoption Assistance and Child
Welfare Act discussed in Suter, 112 S. Ct. 1360.
MIn accordance with regulations which the Administrator shall prescribe, such plan shall—
• •• (12)(B) provide that the State shall submit annual reports to the Administrator containing a review of the progress made by the State to achieve the deinstitutionalization of juveniles described in subparagraph (A) and a review of the progress made by the State to provide that such juveniles, if placed in facilities, are placed in facilities which (i) are the least restrictive alternatives appropriate to the needs of the child and the

community; (ii) are in reasonable proximity to the family and the home communities of such juveniles; and (iii) provide the services described in section 5603(1) of this title;
(13) provide that juveniles alleged to be or found to be delinquent and youths within the purview of paragraph (12) shall not be detained or confined in any institution in which they have regular contact with adult persons incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges . . . ." 42 U.S.C.A. § 5633(a)(12)(B), (a)(13) (West 1983).2 On this basis,
the court holds that the plaintiffs may use the "and laws"
provision of § 1983 to enforce rights created by the Juvenile
Justice Act.
Other courts that have considered this question have reached
the same conclusion. The most thorough analyses can be found in
Grenier, 748 F. Supp. 908, and Hendrickson, 672 F. Supp. 1126.
Both of these courts found enforceable rights created in the Act at
42 U.S.C.A. § 5633(a)(12)-(14) (West 1983 & Supp. 1992). In
Grenier, the court interpreted the Supreme Court's analysis in
Pennhurst as follows: "The clear implication is that the presence
of express conditions on federal grants, and the ability of the
federal government to withhold funds when such conditions are not
satisfied, indicates Congress' intent to create enforceable
rights." Grenier, 748 F. Supp. at 916. The sections of the Act
cited above provide for the withdrawal of federal funds if a state
fails to meet the Act's requirements. The Grenier court went on to
find that Congress did not foreclose the S 1983 remedy: "The power
2 These subsections constitute an example of the type of detail required under Wilder, 110 S. Ct. 2510, and Suter, 112 S. Ct. 13 60, and are not intended to be exhaustive.

to cut off federal funds, even combined with other administrative review procedures, is simply insufficient to justify the radical step of precluding plaintiffs from pursuing section 1983 claims." Crenier, 748 F. Supp. at 917. The Hendrickson court came to the same conclusion in stating that the termination of federal funding is a sanction rather than a remedy. Hendrickson, 672 F. Supp. at 1136. Applying the analysis found in Supreme Court cases, these two district courts concluded that § 1983 can be used to enforce rights conferred by the Juvenile Justice Act.
The parties have provided two recent decisions from federal courts in Kentucky to support their opposing positions. Attached to the plaintiffs' memorandum is an opinion in James v. Wilkerson, Civil Action No. 89-0139-P(CS), slip op. at 7-9 (W.D. Ky. May 20, 1991) , in which Judge Simpson concluded that the plaintiffs could proceed on their theory that the defendants, by violating the Juvenile Justice Act, violated § 1983. This opinion follows the analysis outlined above, finding an enforceable right under the Juvenile Justice Act and no foreclosure of the § 1983 remedy. Defendants rely on a recent order entered by Judge Forester in Horn v. Devere, Civil Action No. 91-235 (E.D. Ky. May 8, 1992). Judge Forester determined that since McFaul, 599 F. Supp. 1421, is from the same circuit, whereas Hendrickson, 672 F. Supp. 1126, is not, McFaul was dispositive of this issue. This two-page Order, however, fails to distinguish between implied rights of action and S 1983 enforcement and undertakes no analysis under either line of reasoning. It is possible that in Horn the plaintiff did not seek

S 1983 enforcement of the Juvenile Justice Act. The court declines to follow the order in Horn without knowing the basis for the court's conclusion. Defendants' motions to dismiss the plaintiffs' S 1983 claim based on violations of the Juvenile Justice Act are denied.
Eleventh Amendment Defendant Lewis, the Secretary of Corrections for the Commonwealth of Kentucky, argues that this action is barred by the Eleventh Amendment. His argument appears to be that since his duties to the plaintiffs arise only under state law, this court is prohibited from ordering him to conform his conduct to those standards. He makes a further argument that this court cannot order him to perform discretionary tasks. These arguments are rejected and the motion to dismiss denied on this ground. The United States Supreme Court has issued many opinions discussing the nuances of application of the Eleventh Amendment when an action is brought against a state or its officials in federal court. In particular, the Court has explored the relationship between the Eleventh and Fourteenth Amendments. From this long line of cases, several fundamental principles may be discerned . In Ex parte Young, 209 U.S. 123 (1908), the Court made clear that a federal court may enjoin a state official from enforcing a state law that disregards the mandates of the federal Constitution. In this regard the Court stated:
8

U.S. at 337.* The Court directed lower courts to look to the substance, rather than the form, of the relief sought. Papasan, 106 S. Ct. at 2941.
One court considered an Eleventh Amendment defense to a suit brought under the Juvenile Justice Act. Grenier v. Kennebec County, 733 F. Supp. 455 (D. Me.), as amended, 749 F. Supp. 28 (D. Me. 1990) . The district court held that the Act does not override the state's Eleventh Amendment immunity. There the court applied the principles of Ex parte Young, 209 U.S. 123, and Pennhurst, 104 S. Ct. 900. It noted the general rule that "[a] state official, however, is not immune from a suit in federal court which seeks prospective injunctive relief under federal law." Grenier, 733 F. Supp. at 4 60.
Defendant Lewis tries to bring himself under the strictures of Pennhurst, 104 S. Ct. 900, by arguing that his sole duties to the plaintiffs arise under state law and therefore, they must be seeking an injunction ordering him to conform his conduct to state law. Plaintiffs, however, have brought claims against this defendant under the federal Constitution and the Juvenile Justice Act.5 Defendant Lewis is not exempt from constitutional standards or the requirements of the Juvenile Justice Act. Therefore, the

4

Cf. Sutton v. Evans, 918 F.2d 654, 658 (6th Cir. 1990)

(MOur cases hold that for an order which has a substantial effect

on the state's budget to be valid under the Eleventh Amendment, it

must be *ancillary' to some other form of prospective relief.")

s

Each claim must be examined to see if it is barred by the

Eleventh Amendment. Henry v. Metropolitan Sewer Dist., 922 F.2d

332, 337 (6th Cir. 1990).

11

"[I individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action."
Young, 209 U.S. at 155-56. This pronouncement has been interpreted
by the Court to also mean that a federal court may enjoin a state
official from breaking federal law. See Papasan v. Allain, 106 S.
Ct. 2932, 2940 (1986) .
Defendant Lewis relies on the Court's holding in Pennhurst
State Sch. & Hosp. v. Halderman, 104 S. Ct. 900 (1984). There the
Court stated: "[A] federal suit against state officials on the
basis of state law contravenes the Eleventh Amendment when—as
here—the relief sought and ordered has an impact directly on the
State itself." Pennhurst, 104 S. Ct. at 917. The Court recognized
that a federal court may, however, vindicate federal rights under
the doctrine of Ex parte Young, 209 U.S. 123, but that this
interest was not implicated in a suit based on state law. The
Court further held that pendent jurisdiction may not be used to
circumvent the restrictions of the Eleventh Amendment. Pennhurst,
104 S. Ct. at 919. Thus, Pennhurst did not limit the federal
court's ability to order a state official to conform her conduct to federal law.3

3

"We decline to endorse the proposition that officials may

undermine federal court authority by violating state as well as

federal law." Spruytte v. Walters, 753 F.2d 498, 514 (6th Cir.

1985), cert, denied, 106 S. Ct. 788 (1986).

In some instances, the Court has found that Congress evinced an intent to override the Eleventh Amendment in its enactments. Title VII of the Civil Rights Act of 1964 is an example of such legislation. The Court has held, however, that no legislative intent to abrogate the state's immunity was evident in passing S 1983. Quern v. Jordan, 440 U.S. 332, 343 (1979).
"[Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States." Quern, 440 U.S. at 345. Therefore, in an official-capacity suit under § 1983, the limitations of the Eleventh Amendment must be followed. In addition to examining the type of claim brought by the plaintiff against the state official, the court must also ensure that the remedy sought is consistent with the Eleventh Amendment. In this regard, the Court has stated that suits against state officials should raise on-going violations of federal law and should seek relief that will end the violation. Papasan, 106 S. Ct. at 2940. Relief that is compensatory to third parties is barred. Id. "On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury." Id.; see also Quern, 440
10

court denies his motion to dismiss on the ground that Eleventh Amendment immunity is inapplicable here.
IT IS SO ORDERED this .-/• I/M day of August, 1992. WILLIAM 0. BERTELSMAN, CHIEF JUDGE
cc: James T. Redwine James Bell Suzanne D. Cordery C. Thomas Hectus/W. Kenneth Nevitt John Elfers 8/24/92 jmj
12
T ~T

 
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U.S. District Court Eastern District of Kentucky (Covington) CIVIL DOCKET FOR CASE #: 2:91-cv-00187-WOB

TERMED

Doe(s), et al v. Knauf, et al Assigned to: Judge Wm. O. Bertelsman Referred to: Mag Judge J. Gregory Wehrman Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 11/21/1991 Jury Demand: Defendant Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Plaintiff
John Doe(s) a minor on behalf of himself and all others similarly situated Next Friend Mary Doe(s)

represented by C. McGehee Isaacs Children's Law Center, Inc. 104 E. Seventh Street Second Floor Covington, KY 41011-2502 859-431-3313 TERMINATED: 07/13/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Bell Youth Law Center 114 Sansome Street Suite 950 San Francisco, CA 94104-3820 415-543-3379 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James T. Redwine Northern Kentucky Children's Law Center 706 Park Avenue Newport, KY 41071 859-491-8303 TERMINATED: 01/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Brooks Tandy Children's Law Center, Inc. 104 E. Seventh Street Second Floor Covington, KY 41011-2502 859-431-3313 Fax: 859-655-7553

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Plaintiff Jean Doe(s) a minor on behalf of herself and all others similarly situated Next Friend Barbara Doe(s)
V. Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Wilber Youth Law Center 114 Sansome Street Suite 950 San Francisco, CA 94104-3820 415-543-3379 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. McGehee Isaacs (See above for address) TERMINATED: 07/13/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James T. Redwine (See above for address) TERMINATED: 01/04/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark I. Soler Youth Law Center 1325 G Street, N.W. Washington, DC 20005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Wilber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kenton County Fiscal Court TERMINATED: 04/17/1992
Defendant John T. Wigginton Secretary of Corrections, Commonwealth of Kentucky TERMINATED: 05/01/1992
Defendant Dr. Harry J. Cowherd Secretary of the Cabinet for Human Resources of the Commonwealth of Kentucky TERMINATED: 04/17/1992
Defendant Steven R. Jaeger Chief Judge, Kenton District Court TERMINATED: 04/17/1992

represented by C. Thomas Hectus Hectus & Strause, PLLC 804 Stone Creek Parkway Suite One Louisville, KY 40222 502-426-1661 Fax: FAX 502-426-6772 TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt Nevitt Law Offices 804 Stone Creek Parkway Suite 4 Louisville, KY 40223 502-429-5700 Fax: FAX 502-429-5720 TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Suzanne D. Cordery Department of Corrections P.O. Box 2400 Office of General Counsel Frankfort, KY 40602-2400 502-564-2024 Fax: FAX 502-564-6494 TERMINATED: 05/01/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Maria T. Geisler Cabinet for Human Resources - Dept. of Law 275 E. Main Street Suite 4, W. Frankfort, KY 40621 502-564-7900 TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas J. Hellmann Attorney General's Office 1024 Capitol Center Drive

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Defendant
Corrections Cabinet, KY Commonwealth of Jack Lewis, Secretary

Frankfort East Office Location Frankfort, KY 40601-8204 502-696-5300 Fax: FAX 502-573-8317 TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara W. Jones Kentucky Justice Cabinet 403 Wapping Street Bush Building, 2nd Floor Frankfort, KY 40601 502-564-3251 Fax: 502-564-3279 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith D. Hardison Department of Corrections P.O. Box 2400 Office of General Counsel Frankfort, KY 40602-2400 502-564-2024 Fax: FAX 502-564-6494 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A. Sipek Department of Corrections P.O. Box 2400 Office of General Counsel Frankfort, KY 40602-2400 502-564-2024 Fax: FAX 502-564-6494 TERMINATED: 09/19/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Perry Durham Department of Corrections, Office of General Counsel P.O. Box 2400 Frankfort, KY 40602-2400 502-564-2024 Fax: 502-564-6494 Email: steve.durham@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Covington Independent Public Schools
Official Defendant James Knauf in his official capacity as jailor of the Kenton County Detention Center

Suzanne D. Cordery (See above for address) TERMINATED: 03/24/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Jay Fossett City Solicitor Seventh & Scott Streets City of Covington Covington, KY 41011 859-292-2311 Fax: FAX 859-292-2310 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph U. Meyer 106 W. 11th Street Covington, KY 41011-3021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) TERMINATED: 11/16/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garry L. Edmondson Assistant Kenton County Attorney 303 Court Street Room 307 Covington, KY 41011 859-491-0600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Burd Whonsetler & Associates P.S.C. 6011 Brownsboro Park Boulevard Suite E Louisville, KY 40207 502-895-2297 TERMINATED: 08/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Official Defendant
Clyde Middleton County Judge Executive, in his official capacity

R. Thaddeus Keal Turner, Keal & Dallas PLLC 5924 Timber Ridge Road Suite 102 Prospect, KY 40059 502-228-8488 Fax: 502-288-8627 Email: tkeal@tkdfirm.com TERMINATED: 08/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sun S. Choy Morgan & Pottinger 601 W. Main Street Louisville, KY 40202 502-589-2780 LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) TERMINATED: 11/16/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) TERMINATED: 11/16/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garry L. Edmondson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Burd (See above for address) TERMINATED: 08/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Thaddeus Keal (See above for address) TERMINATED: 08/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Official Defendant Richard Howard Interim Superintendent in his official capacity
Official Defendant Viola Miller Secretary, Cabinet for Families and Children, Commonwealth of Kentucky, in her official capacity
Official Defendant Wilmer Cody Commissioner, Department of Education, Commonwealth of Kentucky, in his official capacity

Sun S. Choy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) TERMINATED: 11/16/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Jay Fossett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph U. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by E. D. Klatte Cabinet for Human Resources - Dept. of Law 275 E. Main Street Suite 4, W. Frankfort, KY 40621 502-564-7900 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara D. Bonar Law Offices of B. Dahlenburg Bonar, P.S.C. 3611 Decoursey Avenue Covington, KY 41015 859-431-3333 Fax: 859-392-3900 Email: bdbonar@lawatbdb.com TERMINATED: 07/10/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin M. Noland Kentucky Department of Education 500 Mero Street 120 Capital Plaza Tower

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Official Defendant Paul Patton Governor, Commonwealth of Kentucky, in his official capacity
Defendant James Knauf Individually TERMINATED: 04/17/1992
Defendant Clyde Middleton Individually TERMINATED: 04/17/1992
Defendant Charles Summe Individually TERMINATED: 04/17/1993
Defendant

Frankfort, KY 40601 502-564-4474 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara W. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith D. Hardison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Bernard Moorman Individually TERMINATED: 04/17/1993
Defendant Richard Combs Individually TERMINATED: 04/17/1993
Official Defendant Charles Summe Commissioner, in his official capacity TERMINATED: 04/17/1992
Official Defendant Bernard Moorman Commissioner, in his official capacity TERMINATED: 04/17/1992
Official Defendant Richard Combs Commissioner, in his official capacity

represented by C. Thomas Hectus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address) TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C. Thomas Hectus (See above for address)

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TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kenneth Nevitt (See above for address) TERMINATED: 04/17/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 11/21/1991 01/09/1992 01/23/1992 01/28/1992
04/17/1992
05/01/1992 05/14/1992 05/18/1992 08/26/1992
08/26/1992 04/14/1993 04/14/1993

#

Docket Text

1 COMPLAINT ( 8 summons(es) issued) with copies, Fee Paid $ 120.00, Receipt No. 043306 (Entered: 09/01/1993)

17 MOTION w/attached Memorandum in Support by defendant Steven R. Jaeger to dismiss Modified on 12/08/1995 (Entered: 09/01/1993)

21 ANSWER by defendant John T. Wigginton to [1-1] Plaintiff's Complaint (Entered: 09/01/1993)

23 ANSWER by defendant James Knauf, defendant Kenton Cty Fiscal, defendant Clyde Middleton, defendant Charles Summe, defendant Bernard Moorman, defendant Richard Combs to [1-1] Plaintiff's Complaint; jury demand (Entered: 09/01/1993)

32 ORDER by Chief Judge Wm. O. Bertelsman dismissing party Harry J. Cowherd granting motion to dismiss [17-1], dismissing party Steven R. Jaeger , dismissing party Kenton County Fiscal , dismissing party Richard Combs, party Bernard Moorman, party Charles Summe (cc: all counsel) (Entered: 09/01/1993)

34 AMENDED COMPLAINT [1-1] by plaintiff John Doe(s), plaintiff Jean Doe(s) terminating defendant John T. Wigginton; adding Corrections Cab KY, Jack Lewis, Secretary (Entered: 09/01/1993)

35 ANSWER by defendant Corrections Cabinet of KY, Jack Lewis to [341], Plaintiff's Amended Complaint (Entered: 09/01/1993)

37 ANSWER by defendant James Knauf, defendant Clyde Middleton to [341] Plaintiff's First Amended Complaint (Entered: 09/01/1993)

53 ORDER by Chief Judge Wm. O. Bertelsman Case referred to Mag Judge J. G. Wehrman to supervise discovery and pretrial proceedings, up to and including setting final pretrial conference and trial dates (cc: all counsel) (Entered: 09/01/1993)

COMMENT - RF/MAG 636A (Entered: 09/01/1993)

131 NOTICE OF APPEAL by defendant Corrections Cab KY from Dist. Court decision of Order of 3/19/93 (cc: all counsel) (Entered: 09/01/1993)

NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Docket Sheet to Parties; [131-1] (cc: all counsel) (Entered: 12/01/1993)

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04/14/1993 04/20/1993
04/20/1993 04/21/1993
04/28/1993 08/24/1993 08/30/1993 08/30/1993 09/10/1993 09/13/1993 09/14/1993

COMMENT - IPP/4/14/93 (Entered: 12/01/1993)
TRANSMISSION FORM - Copy of docket sheets, Judge's Order of 3/19/93; Notice of Appeal of 4/14/93 mailed to: 6thCCA, Kimberly A. Brooks/C. McGehee Isaacs, Mr. James Bell, Suzanne D. Cordery, C. Thomas Hectus/W. Kenneth Nevitt and John Elfers. (Entered: 09/01/1993)
132 TRANSCRIPT filed of Hearing before Wm. O. Bertelsman, Chief Judge Date(s) of transcript 3/1/93 at 9:00 a.m. (Entered: 09/02/1993)
133 ORDER OF REFERENCE by Chief Judge Wm. O. Bertelsman, reaching the conclusion that judicial economy and efficiency would be best served by referring the motions for leave to take additonal depositions to Hon. J. Gregory Wehrman pursuant to 28 U.S.C. 636(b)(1)(A) (cc: all counsel) (Entered: 09/02/1993)
136 NOTIFICATION by 6CCA of Appellate Docket Number 93-5556 (Entered: 09/02/1993)
157 ORDER by Chief Judge Wm. O. Bertelsman status hearing (status conference) set for 3:00 10/8/93 (cc: all counsel) (Entered: 09/02/1993)
158 MOTION by plaintiff John Doe(s), plaintiff Jean Doe(s) for leave to take additional depositions (Entered: 09/02/1993)
159 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiff John Doe(s), plaintiff Jean Doe(s) in support of motion for leave to take additional depositions [158-1] (Entered: 09/02/1993)
160 RESPONSE by defendant Corrections Cabinet of KY, Jack Lewis, Commissioner, to motion for leave to take additional depositions [158-1] (Entered: 09/10/1993)
161 RESPONSE by defendant James Knauf, defendant Clyde Middleton to motion for leave to take additional depositions [158-1] by Plaitniffs' John and Jean Doe (Entered: 09/13/1993)
162 ORDER by Mag Judge J. G. Wehrman telephone onference set for 10:00 9/22/93 on pending motion (cc: all counsel) (Entered: 09/15/1993)

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10/20/1993
11/15/1993

163 ORDER by Mag Judge J. G. Wehrman pretrial conference held 9/22/93 denying motion for leave to take additional depositions [158-1] (cc: all counsel) (Entered: 09/22/1993)
164 TRANSCRIPT filed of Hearing before Chief Judge Wm. O. Bertelsman Date(s) of transcript 8/20/93 at 1:30p.m. (Entered: 09/28/1993)
165 MOTION by James Bell, counsel for plaintiff John Doe(s), and plaintiff Jean Doe(s) for appearance by Telephone (Entered: 10/04/1993)
SUBMITTED re motion for appearance by Telephone [165-1] is submitted (Entered: 10/04/1993)
166 ORDER by Chief Judge Wm. O. Bertelsman granting motion for appearance by Telephone [165-1] (cc: all counsel) (Entered: 10/05/1993)
167 RESPONSE by defendant, Jack Lewis, Corrections Cabinet of KY to Motion of Plaintiff's Coounsel, James Bell to appear by telephone (Entered: 10/06/1993)
168 MOTION by Official Defendant James Knauf, Official Defendant Clyde Middleton to compel production of documents from U.S. Marshal's Service. (Entered: 10/08/1993)
SUBMITTED re motion to compel production of documents from U.S. Marshal's Service. [168-1] is submitted (Entered: 10/08/1993)
169 ORDER by Chief Judge Wm. O. Bertelsman denying motion to compel production of documents from U.S. Marshal's Service. [168-1]; Parties are to submit to the undersigned a Consent Decree, properly executed and approved, on or before November 15, 1993. (cc: all counsel) (Entered: 10/12/1993)
170 NOTICE TO THE COURT FOR PURPOSES OF CLARIFICATION IN CONNECTION WITH COURT'S ORDERS ENTERED JULY 28, 1993, AUGUST 24, L993 and OCTOBER 12, L993 by defendant Corrections Cab KY (Entered: 10/21/1993)
REMARK - Kim Brooks advised Judge's Secretary that parties need until Thursday, November l8th to submit Consent Decree (Entered: 11/15/1993)

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11/16/1993 11/19/1993
12/09/1993 12/14/1993 12/20/1993 12/20/1993 01/07/1994 01/07/1994 01/07/1994 01/07/1994 01/24/1994

171 TRANSCRIPT filed of Status Conference before Wm. O. Bertelsman, Chief Judge Date(s) of transcript 10/8/93 at 3:00 p.m. (Entered: 11/16/1993)
172 STIPULATION and ORDER of Parties by Chief Judge Wm. O. Bertelsman : The Notice of Class Action lawsuit to Plaintiffs will be removed from the Courthouse Building dismissing case (cc: all counsel) (Entered: 11/22/1993)
173 CERTIFIED COPY of 6CCA Order: (cc: all counsel) dismissing the appeal [131-1] (Entered: 12/09/1993)
174 ATTORNEY APPEARANCE for defendant Corrections Cab KY by Mark A. Sipek (Entered: 12/14/1993)
175 MOTION by plaintiff John Doe(s), plaintiff Jean Doe(s) for attorney fees before Mag Judge J. G. Wehrman (Entered: 12/20/1993)
176 MEMORANDUM by plaintiff John Doe(s), plaintiff Jean Doe(s) in support of motion for attorney fees before Mag Judge J. G. Wehrman [175-1] (Entered: 12/20/1993)
177 STIPULATION re [175-1] that parties by counsel stipulate that both County and State Defendants have until January 24, l994 to respond to plaintiff's Motion for Attorneys Fees. (Entered: 01/07/1994)
178 MOTION by plaintiff John Doe(s), plaintiff Jean Doe(s) to supplement Motion for Attorney Fees (Entered: 01/07/1994)
179 AFFIDAVIT of MICHAEL O'HARA re [175-1] (Entered: 01/07/1994)
SUBMITTED re motion to supplement Motion for Attorney Fees [1781], re motion for attorney fees before Mag Judge J. G. Wehrman [175-1] is submitted (Entered: 01/07/1994)
180 AMENDED STIPULATION Pursuant to LR 6(b)(1)(A) by counsel for parties that because of inclement weather conditions, both county and state defendants have up to and including Friday, 1/28/94 in which to respond to plf's motion for attorneys' fees, memorandum in support with appendix. (Entered: 01/24/1994)

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01/28/1994 01/31/1994 02/08/1994
02/08/1994 02/09/1994 02/10/1994 02/16/1994 02/16/1994 02/25/1994 03/22/1994
03/24/1994

181 RESPONSE by defendant James Knauf and defendant Clyde Middleton to Plaintiffs' motion for attorney fees before Mag Judge J. G. Wehrman [175-1] (Attached in separate envelope). Modified on 01/31/1994 (Entered: 01/31/1994)
182 RESPONSE by defendant Jack Lewis, Commissioner, Corrections Cab KY to Plaintiffs' motion for attorney fees before Mag Judge J. G. Wehrman [175-1] (Attached in separate envelope). (Entered: 01/31/1994)
183 ORDER by Chief Judge Wm. O. Bertelsman granting motion to supplement Motion for Attorney Fees [178-1] referring to Mag Judge J. G. Wehrman the motion for attorney fees before Mag Judge J. G. Wehrman [175-1] pursuant to 28 U.S.C. Section 636(b). (cc: all counsel) (Entered: 02/09/1994)
184 MOTION by plaintiff John Doe(s), plaintiff Jean Doe(s) to extend time before Mag Judge J. G. Wehrman (Entered: 02/09/1994)
SUBMITTED re motion to extend time before Mag Judge J. G. Wehrman [184-1], re motion for attorney fees before Mag Judge J. G. Wehrman [175-1] is submitted (Entered: 02/09/1994)
185 ORDER by Mag Judge J. G. Wehrman granting motion to extend time before Mag Judge J. G. Wehrman [184-1]. Plaintiff's reply / brief is due on or before 2/16/94. (cc: all counsel) (Entered: 02/10/1994)
------------------------------------------------------ V O L U M E 6 ----------------------------------------------------- (Entered: 02/16/1994)
186 REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' FEE APPLICATION by plaintiff John Doe(s) and plaintiff Jean Doe(s) re [175-1], Plaintiff's Motion for Attorney Fees. (Entered: 02/16/1994)
187 ORDER by Mag Judge J. G. Wehrman setting motion for attorney fees before Mag Judge J. G. Wehrman [175-1] by oral argument on March 25, l994 at 9:30 a.m.; (cc: all counsel) (Entered: 02/25/1994)
188 ORDER by Mag Judge J. G. Wehrman: Oral argument on motion for attorney fees before Mag Judge J. G. Wehrman [175-1] set for March 25, l994 at 9:30 a.m. is VACATED and a telephonic status conference is set for 11:30 3/25/94 . (cc: all counsel) Modified on 03/22/1994 (Entered: 03/22/1994)
189 ATTORNEY SUBSTITUTION: terminating attorney Suzanne D. Cordery for Corrections Cab KY (Jack Lewis, Commissioner) and substituting attorney Barbara W. Jones (Entered: 03/24/1994)

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03/25/1994
04/04/1994
04/18/1994
05/09/1994 05/25/1994 05/25/1994 05/27/1994 06/02/1994

190 ORDER by Mag Judge J. G. Wehrman: In lieu of oral argument scheduled--telephonic status hearing held 3/25/94 . (1) Parties to submit briefs on the legislataion passed, if any, regarding the requirements of the Juvenile Justice and Delinquency Prevention Act (JJDPA), including appropriate funding allocations-- reply / brief due 4/15/94 , and (2) Oral Arguments in-court hearing set for 9:30 5/12/94 to be held on the General Assembly legislative enactments, if necessary, and plaintiffs' request for attorney fees. (cc: all counsel) (Entered: 03/28/1994)
191 ORDER by Mag Judge J. G. Wehrman; An impromptu telephone status conference was held on April 4, 1994. Counsel advised that the Kentucky General Assembly passed no legislation concerning juvenile facilities as contemplated in the tentative settlement agreement in this litigation; (1) A follow-up status hearing is set for 3:30 4/18/94; (2) paragraph 1 of the order filed March 25, 1994 regarding submission of briefs is VACATED. (cc: all counsel) (Entered: 04/04/1994)
192 ORDER by Mag Judge J. G. Wehrman (A telephonic status hearing held 4/18/94 , and (1) Plainiff's (legal Memorandum ) response / brief due 5/9/94; Defendant's (reply memoranda) reply / brief due 5/31/94 , and (2) (Oral argument) in-court hearing is VACATED on 4/18/94; (3) Counsel for the Corrections Cabinet is to advise the Court whether juvenile facility funding was passed in the Special Session of the Ky General Assembly. (cc: all counsel) (Entered: 04/19/1994)
193 BRIEF FILED (MEMORANDA) by plaintiff John Doe(s) and plaintiff Jean Doe(s) regarding [192-1] (Entered: 05/09/1994)
194 MOTION by defendant Corrections Cab KY (Jack Lewis) for leave to hold in abeyance the briefing schedule before Mag Judge J. G. Wehrman (Entered: 05/25/1994)
SUBMITTED re motion for leave to hold in abeyance the briefing schedule before Mag Judge J. G. Wehrman [194-1] is submitted (Entered: 05/25/1994)
195 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion for leave to hold in abeyance the briefing schedule before Mag Judge J. G. Wehrman [194-1] (Entered: 05/31/1994)
196 ORDER by Mag Judge J. G. Wehrman (1) granting motion for leave to hold in abeyance the briefing schedule, or more specifically to delay the filing of its brief before Mag Judge J. G. Wehrman [194-1]; (2) Within (ten(10) days after conclusion of the special session of the Kentucky General Assembly, counsel shall submit to court and parties a copy of juvenile funding, if any; (3) in the event the Kentucky General Assembly passes juvenile legislation, the court will convene a telephone conference; (4) In the event the Kentucky General Assembly fails to pass juvenile legislation, the Corrections Cabinet shall submit its legal memorandum within ten (10) days of the closing of the special legislative session. (cc: all counsel) (Entered: 06/02/1994)

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06/02/1994 06/03/1994 07/05/1994

REMARK - Phone call today with Kim Brooks and Mark Sipek re: phone conference between Kim Brooks and Barbara Jones. Special legislative session to start June 6, 1994, previous order of 6/1/94 to stand. (Entered: 06/02/1994)
197 NOTICE Of Special Session Call by defendant Corrections Cabinet KY of the Governor's call for the special session scheduled to begin June 6, 1994. (Entered: 06/03/1994)
198 JOINT RESPONSE by defendant Corrections Cab KY and Official Defendant Clyde Middleton to [192-4] and [196], Court's Orders of April 18, 1994 and June 2, 1994. (Entered: 07/06/1994)

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07/13/1994 07/27/1994 08/08/1994 08/09/1994 08/23/1994
08/29/1994 09/12/1994
09/19/1994 10/03/1994 10/21/1994

199 ORDER by Mag Judge J. G. Wehrman; response / brief satisfied 7/5/94; reply / brief satisfied 7/5/94 , and ; status hearing (oral argument) is set for 9:30 7/22/94 (cc: all counsel) (Entered: 07/13/1994)
200 REPORT AND RECOMMENDATION concerning motion for attorney fees before Mag Judge J. G. Wehrman [175-1] by Mag Judge J. G. Wehrman; responses to the R R due within 10 days of service or further appeal is waived (cc: all counsel) (Entered: 07/28/1994)
201 STATUS REPORT (letter form) by plaintiff Jean Doe(s), plaintiff John Doe(s) (Entered: 08/09/1994)
SUBMITTED re motion REPORT AND RECOMMENDATION [2001], re motion for attorney fees before Mag Judge J. G. Wehrman [175-1] is submitted (Entered: 08/09/1994)
202 ORDER by Chief Judge Wm. O. Bertelsman; (1) Case reopened for statistical purposes; status hearing was rescheduled 8/23/94; (2) adopting REPORT AND RECOMMENDATION [200-1] as the findings of fact and conclusions of law of this court; (3) denying as moot motion for attorney before Mag Judge J. G. Wehrman [175-1]; (4) That the plaintiffs' claims under the Juvenile Justice and Delinquency Prevent Act be, and they are, dismissed sua sponte; and (5) that a status conference hearing is hereby set for Thursday, 2:00 9/1/94. (cc: all counsel) (Entered: 08/24/1994)
203 ORDER by Chief Judge Wm. O. Bertelsman; counsel having a conflict with regard to the status conference set on 9/1/94 at 2:00; the status hearing (conference) is now set for Thursday, 1:00 9/8/94. (cc: all counsel) (Entered: 08/29/1994)
204 ORDER by Chief Judge Wm. O. Bertelsman ; status hearing held 9/8/94 , and (1) Plaintiffs shall file a response / brief (preliminary brief) on or before 10/21/94; Defendant's reply / brief is due on or before 11/21/94; (2) All discovery shall be completed on or before 10/31/94; (3) All tours of the detention facility must be completed by 11/15/94; (4) All expert reports shall be exchanged by 12/15/94; (5) All counsel must file a detailed status report regarding settlement negotiations on or before February 1, 1995; (6) That all parties and their counsel must make a good faith effort to obtain a Consent Decree. (cc: all counsel) (Entered: 09/13/1994)
205 ATTORNEY SUBSTITUTION: terminating attorney Mark A. Sipek for Corrections Cab KY and substituting attorney Keith D. Hardison (Entered: 09/19/1994)
206 NOTICE OF COMPLIANCE by defendant Corrections Cab KY, Jack C. Lewis in accordance with the agreement of parties at the 9/8/94 pretrial conference hereby files their updated documents. (Entered: 10/03/1994)
207 BRIEF (PRELIMINARY MEMORANDUM) FILED by plaintiff Jean Doe(s) and plaintiff John Doe(s) (Entered: 10/21/1994)

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10/26/1994

208 TRANSCRIPT filed of Hearing held before William O. Bertelsman Date (s) of transcript 9/8/94 (LMB) (Entered: 10/26/1994)

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10/31/1994 11/10/1994
11/14/1994
11/16/1994 11/16/1994
11/17/1994 11/17/1994 11/18/1994 11/21/1994 11/22/1994 11/23/1994

209 RESPONSE by Official Defendant Clyde Middleton to Plaintiffs' Updated Discovery Requests. (Entered: 11/02/1994)
210 LETTER to all Counsel by Chief Judge, William O. Bertelsman with a copy of a letter that was received from Janie Nordloh of Exodus, A Jail Ministry, w/attached Article from the Kentucky Post. (Entered: 11/10/1994)
211 ORDER by Chief Judge Wm. O. Bertelsman; On November 10, 1994, an unscheduled status conference was held in this matter. It Is Ordered (1) That plfs are permitted up to and including November 21, 1994 in which to amend their complaint; (2) That the parties are to only ask about brief factual questions that don't call for a statement of opinion of people in their area of knowledge while touring the facilities. (cc: all counsel) (Entered: 11/15/1994)
212 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) to amend original complaint and add additional defendants. (Entered: 11/16/1994)
213 SECOND AMENDED COMPLAINT [1-1], [34-1] by plaintiff Jean Doe (s), plaintiff John Doe(s); adding Covington Independent Pubic Schools and Richard Howard, Interim Superintendent in his official capacity. (Entered: 11/16/1994)
SUMMONS issued as to defendant Covington Independent Pubic Schools and Richard Howard, Superintendant Covington, Independent Public Schools. (Entered: 11/17/1994)
------------------------------------------------------ V O L U M E 7 ----------------------------------------------------- (Entered: 11/22/1994)
214 RETURN OF SERVICE executed upon Official Defendant Richard . Howard on 11/18/94 (Entered: 11/21/1994)
215 RESPONSE by Official Defendant Clyde Middleton and Official Defendant James Knauf to [207-1] Plaintiffs' Preliminary Memorandum. (Entered: 11/22/1994)
216 RESPONSE by defendant, Jack Lewis, Commissioner of the Corrections Cab KY to [207-1] Plaintiffs' Preliminary Memorandum. (Entered: 11/22/1994)
217 ORDER by Chief Judge Wm. O. Bertelsman denying motion to amend original complaint and add additional defendants. [212-1] (cc: all counsel) (Entered: 11/23/1994)

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11/30/1994 12/05/1994 12/05/1994
02/03/1995 02/03/1995 02/03/1995 02/03/1995 02/03/1995 02/15/1995 02/15/1995 02/15/1995

218 NOTICE (RE-CERTIFICATION) by defendant Corrections Cab KY of remailing Def's Response to Plfs' Preliminary Memorandum due to insufficient address. (Entered: 11/30/1994)
219 ANSWER by Official Defendant Clyde Middleton and Official Defendant James Knauf to [213-1] Plaintiff's Second Amended Complaint; jury demand (Entered: 12/05/1994)
220 AGREED ORDER by Chief Judge Wm. O. Bertelsman and by agreement of parties, by counsel: (1) Plfs be allowed to depose no more than (5) jail staff personnel so that experts may complete their reports; (2) That all experts reports shall be exchanged by January 23, 1995; (3) Counsel must confer in an attempt to enter into a Consent Decree and file a reply / brief (status report) on or before 2/15/95 and (4) That all parties and their counsel must make a good faith effort to obtain a Consent Decree. (cc: all counsel) (Entered: 12/05/1994)
221 DEPOSITION of Sue Tolle taken on the following date(s): December 15, 1994 by: Plaintiffs (SEP. VOL.) (Entered: 02/03/1995)
222 DEPOSITION of Wilma Jones taken on the following date(s): December 15, 1994 by: Plaintiffs (SEP. VOL.) (Entered: 02/03/1995)
223 DEPOSITION of Clara Fister taken on the following date(s): January 5, 1995 by: Plaintiffs (SEP. VOL.) (Entered: 02/03/1995)
224 DEPOSITION of Gary V. Sinclair taken on the following date(s): January 6, 1995 by: Plaintiffs (SEP. VOL.) (Entered: 02/03/1995)
225 ANSWER by defendant Covington Indendent Public Schools and Official Defendant Richard Howard to [213-1] Plaintiffs' Second Amended Complaint; jury demand (Entered: 02/03/1995)
226 STATUS REPORT (PLAN FOR SETTLEMENT) by plaintiff Jean Doe (s) and plaintiff John Doe(s) (Entered: 02/15/1995)
227 STATUS REPORT by defendant Covington Independent Public Schools and Official Defendant Richard Howard (Entered: 02/15/1995)
228 STATUS REPORT by Official Defendant Clyde Middleton and Official Defendant James Knauf (Entered: 02/16/1995)

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02/21/1995 02/23/1995
03/10/1995 03/20/1995 03/30/1995 03/30/1995 03/31/1995
04/14/1995 04/14/1995 04/17/1995

229 STATUS REPORT by defendant Corrections Cab KY - Jack C. Lewis (Entered: 02/21/1995)
230 ORDER by Chief Judge Wm. O. Bertelsman: Matter is before the court on teh status reports of the parties, It Is Ordered that a status and settlement conference is hereby set for 10:00 3/31/95. Counsel for plfs are ordered to have full authorization to settle this matter, or have the appropriate official present at such conference with full authority to settle; and counsel for defs are ordered to have an official, fully authorized to negotiate a settlement; Disobedience to this Order will result in severe sanctions. No exceptions to attendance shall be made without the express approval of the court. (cc: all counsel) (Entered: 02/23/1995)
231 FINAL STATUS REPORT by defendant Corrections Cab KY - Jack Lewis. (Entered: 03/10/1995)
232 MOTION by plaintiff Jean Doe(s) and plaintiff John Doe(s) for attorney Mark I. Soler to appear pro hac vice with attached Affidavit. (Entered: 03/20/1995)
233 UPDATED STATUS REPORT by Official Defendant Clyde Middleton and Official Defendant James Knauf (Entered: 03/30/1995)
234 ORDER by Chief Judge Wm. O. Bertelsman granting motion for attorney Mark I. Soler to appear pro hac vice with attached Affidavit [232-1] for plaintiff Jean Doe(s) and plaintiff John Doe(s) (cc: all counsel) (Entered: 03/30/1995)
235 ORDER by Chief Judge Wm. O. Bertelsman: A settlement conference was held on 3/31/95; It Is Ordered that a further settlement conference is hereby set for 10:00 5/26/95. Counsel for plfs are ordered to have full authorization to settle this matter, or to have the appropriate official present at such conference, with full authority to negotiate a settlement. Disobedience to this Order will result in severe sanctions. No exceptions to attendance shall be made without the express approval of the court. (cc: all counsel) (Entered: 03/31/1995)
236 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for temporary restraining order (Entered: 04/14/1995)
237 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of motion for temporary restraining order [236-1 ] with attached Affidavits and Exhibits. (Entered: 04/14/1995)
238 ORDER by Chief Judge Wm. O. Bertelsman: (1) Defendants are to file a responsive pleading to Plaintiff's motion for a temporary restraining order by close of business, Monday, April 17, 1995; (2) That the parties shall stipulate to as may facts as possible; (3) setting hearing on motion for temporary restraining order [236-1] 9:30 4/19/95. (cc: all counsel) (Entered: 04/17/1995)

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04/17/1995

239 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion for temporary restraining order [236-1] (Entered: 04/18/1995)

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04/18/1995 04/18/1995 04/19/1995 04/20/1995
05/01/1995 05/01/1995 05/09/1995 05/09/1995 05/09/1995 05/11/1995 05/15/1995

240 RETURN OF SERVICE by plaintiff Jean Doe(s), plaintiff John Doe(s) of subpoena served upon Gary Taylor, executed on 4/18/95. (Entered: 04/18/1995)
241 AFFIDAVIT of Mark Modlin (Entered: 04/18/1995)
242 EXHIBIT and WITNESS list of TRO Hearing of 4/19/95. (Entered: 04/19/1995)
243 PRELIMINARY INJUNCTION by Chief Judge Wm. O. Bertelsman (1) For the reasons stated, the court advised, the defs are hereby restrained and enjoined from accepting inmates into the Juvenile Detention Center after May 15, 1995, unless 50l KAR 9:090 is strictly complied with; (2) Parties are encouraged to implement portions of the regulation....without further delay; (3) parties shall confer and attempt to reach an agreement on disputed aspect of regulation. If parties disgree concerning meaning of regulation, they may file motions for clarification not later than May 8, 1995. (cc: all counsel) (Entered: 04/20/1995)
244 MOTION by Official Defendant Clyde Middleton, Official Defendant James Knauf to alter or amend preliminary injunction. (Entered: 05/02/1995)
245 MEMORANDUM by Official Defendant Clyde Middleton, Official Defendant James Knauf in support of motion to alter or amend preliminary injunction. [244-1] (Entered: 05/02/1995)
246 MOTION by plaintiff Jean Doe(s) and plaintiff John Doe(s) to clarify preliminary injunction. (Entered: 05/09/1995)
247 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiff Jean Doe(s) and plaintiff John Doe(s) in support of motion to clarify preliminary injunction. [246-1] (Entered: 05/09/1995)
------------------------------------------------------ V O L U M E 8 ----------------------------------------------------- (Entered: 05/09/1995)
248 ORDER by Chief Judge Wm. O. Bertelsman setting hearing on motion to clarify preliminary injunction [246-1] at 9:00 on 5/16/95. (cc: all counsel) (Entered: 05/11/1995)
249 RESPONSE by Official Defendant Clyde Middleton and Official Defendant James Knauf to motion to clarify preliminary injunction. [2461] (Entered: 05/16/1995)

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05/16/1995 05/18/1995 05/24/1995 05/25/1995 05/26/1995 05/26/1995
06/09/1995 06/12/1995 06/16/1995
07/05/1995 07/05/1995

250 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to alter or amend preliminary injunction. [244-1] (Entered: 05/16/1995)
SUBMITTED re motion to alter or amend preliminary injunction. [2441] is submitted (Entered: 05/18/1995)
251 OPINION AND ORDER: by Chief Judge Wm. O. Bertelsman granting motion to clarify preliminary injunction. [246-1] (cc: all counsel) (Entered: 05/24/1995)
252 STATUS REPORT by defendant Corrections Cab KY - Jack Lewis. (Entered: 05/25/1995)
253 SUPPLEMENT by defendant Corrections Cab KY Jack Lewis re status report [252-1] (Entered: 05/26/1995)
254 ORDER by Chief Judge Wm. O. Bertelsman: The settlement conference was held on 5/26/95; (1) a non-jury court trial is set for 9:00 10/16/95, each side will be given two (2) days in which to present its case; (2) That in the interest of saving time, the direct examination of expert witnesses shall consist of each witness giving a narrative summary of his report (not to exceed l5 minutes); (3) That any dispositive motions shall be filed by 9/1/95; Any response / briefs shall be filed on 9/16/95; Any reply / briefs are due 9/26/95; (4) discovery ddl shall be completed by 8/15/95 and (5) Either side may file pretrial filings (memos) addressing new case law on or before 10/1/95. (cc: all counsel) (Entered: 05/26/1995)
255 ORDER by Chief Judge Wm. O. Bertelsman denying motion to alter or amend preliminary injunction. [244-1] (cc: all counsel) (Entered: 06/09/1995)
256 TRANSCRIPT filed of Hearing before Chief Judge, Wm. O. Bertelsman Date(s) of transcript April 19, 1995 (Entered: 06/12/1995)
257 MOTION by defendant Covington Independent Public Schools, and Official Defendant Richard Howard to dismiss , or in the alternative for summary judgment with Memorandum in Support and Affidavit of Richard Howard. Modified on 06/19/1995 (Entered: 06/19/1995)
SUBMITTED re motion to dismiss [257-1], re motion for summary judgment [257-2] is submitted (Entered: 07/05/1995)
258 RESPONSE by Official Defendant Clyde Middleton and Official Defendant James Knauf to motion to dismiss [257-1], to motion for summary judgment [257-2] (Entered: 07/07/1995)

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07/05/1995 07/05/1995 07/10/1995
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07/24/1995 07/24/1995 07/24/1995 07/27/1995

258 MOTION by Official Defendant Clyde Middleton and Official Defendant James Knauf to dismiss education claims. (Entered: 07/07/1995)
259 MEMORANDUM by Official Defendant Clyde Middleton, Official Defendant James Knauf in support of motion response [258-1], of motion to dismiss education claims. [258-1] (Entered: 07/07/1995)
260 STIPULATION and ORDER by Chief Judge Wm. O. Bertelsman: and by agreement of the parties, Plaintiff's time for filing response to defendant's Howard's Motion to Dismiss has been extended until July 28, 1995. (cc: all counsel) (Entered: 07/11/1995)
261 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for leave to inspect the Kenton Co. Detention Center facility. (Entered: 07/11/1995)
262 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) to exceed request for admission. Modified on 09/13/1995 (Entered: 07/19/1995)
263 MOTION by plaintiff Jean Doe(s) and plaintiff John Doe(s) to extend time to complete expert disclosure requirements. (Entered: 07/19/1995)
264 DISCLOSURE OF EXPERT TESTIMONY by plaintiff Jean Doe(s), and plaintiff John Doe(s) with Attached Reports of Expert Witnesses (attached in Record Separately). Modified on 07/19/1995 (Entered: 07/19/1995)
SUBMITTED re motion to dismiss education claims. [258-1] is submitted (Entered: 07/24/1995)
265 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion for leave to inspect the Kenton Co. Detention Center facility. [261-1] (Entered: 07/24/1995)
266 RESPONSE and Objection by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion to extend time to complete expert disclosure requirements. [263-1] (Entered: 07/24/1995)
SUBMITTED re motion to extend time to complete expert disclosure requirements. [263-1] is submitted (Entered: 07/27/1995)

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07/28/1995
07/31/1995 07/31/1995 08/01/1995 08/11/1995 08/14/1995 08/15/1995 08/15/1995
08/15/1995 08/15/1995 08/15/1995

267 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to dismiss or in the alternative motion for summary judgment [257-1], to motion to dismiss education claims. [258-1] (attached in record separately). (Entered: 07/31/1995)
268 RESPONSE by Official Defendant James Knauf, Official Defendant Clyde Middleton to motion to exceed page limitation [262-1] (Entered: 07/31/1995)
SUBMITTED re motion for leave to inspect the Kenton Co. Detention Center facility. [261-1] is submitted (Entered: 07/31/1995)
269 RESPONSE by Official Defendant James Knauf, Official Defendant Clyde Middleton to Plaintiffs' Request for Admission (Set No. 1). (Entered: 08/01/1995)
270 RESPONSE AND OBJECTION by Official Defendant James Knauf, official Defendant Clyde Middleton TO PLAINTIFF'S REQUEST FOR ADMISSIONS (SET NO. 2) (Entered: 08/13/1995)
SUBMITTED re motion to exceed page limitation [262-1] is submitted (Entered: 08/14/1995)
271 REPLY by Official Defendant Clyde Middleton and Official Defendant James Knauf to response to motion to dismiss [257-1], motion to dismiss education claims. [258-1] (Entered: 08/15/1995)
272 STIPULATION and ORDER by Chief Judge Wm. O. Bertelsman and by agreement of parties: extending defendants, Covington Independent Public Schools and Richard Howards's time to reply to Plaintiffs' Response up to and including 8/21/95. (cc: all counsel) (Entered: 08/15/1995)
273 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) to compel plaintiffs' request for entry onto premises. (Entered: 08/15/1995)
274 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of motion to compel plaintiffs' request for entry onto premises. [273-1] (Entered: 08/15/1995)
275 DISCLOSURE Of Exhibits to be used by Experts by plaintiff Jean Doe (s) and plaintiff John Doe(s) (Entered: 08/15/1995)

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08/15/1995 08/15/1995 08/15/1995 08/15/1995 08/15/1995 08/15/1995 08/18/1995 08/21/1995
09/01/1995 09/01/1995
09/01/1995

276 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) to compel production of documents. (Entered: 08/15/1995)
277 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of motion to compel production of documents. [276-1] (Entered: 08/15/1995)
278 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for leave to deem matter admitted or compel further responses to requests for admission. (Entered: 08/15/1995)
279 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1] (Entered: 08/15/1995)
280 PRETRIAL DISCLOSURE NUMBER 1 by Official Defendant Clyde Middleton and Official Defendant James Knauf (Entered: 08/17/1995)
281 DISCLOSURE (AMENDED DESIGNATION OF EXPERT WITNESSES) by Official Defendant Clyde Middleton, Official Defendant James Knauf (Entered: 08/17/1995)
282 RESPONSE to Plaintiffs' Second Request for Admissions by defendant Corrections Cab KY - Jack Lewis, Commissioner. (Entered: 08/18/1995)
283 REPLY by defendant Covington Independent Public Schools and Official Defendant Richard Howard re [267-1] Plaintiff's Response to defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (Entered: 08/22/1995)
284 MOTION by Official Defendant Clyde Middleton, Official Defendant James Knauf for summary judgment (attached Separately in Record). Modified on 09/07/1995 (Entered: 09/05/1995)
285 MEMORANDUM by Official Defendant Clyde Middleton, Official Defendant James Knauf in support of motion for summary judgment [284-1] (attached in Record Separately). Modified on 09/07/1995 (Entered: 09/05/1995)
286 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion to compel plaintiffs' request for entry onto premises. [273-1] Modified on 09/07/1995 (Entered: 09/05/1995)

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09/01/1995 09/01/1995 09/01/1995 09/05/1995 09/05/1995 09/06/1995 09/08/1995
09/11/1995 09/11/1995 09/11/1995 09/12/1995

287 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1] Modified on 09/07/1995 (Entered: 09/05/1995)
288 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion to compel production of documents. [276-1] Modified on 09/07/1995 (Entered: 09/05/1995)
289 MOTION by defendant Corrections Cab KY - (Jack Lewis) to dismiss , or in the alternative for summary judgment. Modified on 09/07/1995 (Entered: 09/05/1995)
SUBMITTED re motion to compel plaintiffs' request for entry onto premises. [273-1] is submitted (Entered: 09/06/1995)
SUBMITTED re motion to compel production of documents. [276-1], re motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1] is submitted (Entered: 09/06/1995)
290 RESPONSE by defendant Corrections Cab KY (Jack Lewis) to motion to compel production of documents. [276-1] (Entered: 09/06/1995)
291 ORDER by Chief Judge Wm. O. Bertelsman granting motion to exceed page limitation [262-1] setting hearing on motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1] 1:00 9/26/95, setting hearing on motion to compel production of documents. [276-1] 1:00 9/26/95, setting hearing on motion to compel plaintiffs' request for entry onto premises. [273-1] 1:00 9/26/95, setting hearing on motion to extend time to complete expert disclosure requirements. [263-1] 1:00 9/26/95, setting hearing on motion for leave to inspect the Kenton Co. Detention Center facility. [261-1] 1:00 9/26/95, setting hearing on motion to dismiss education claims. [258-1] 1:00 9/26/95, setting hearing on motion to dismiss [257-1] 1:00 9/26/95, setting hearing on motion for summary judgment [257-2] 1:00 9/26/95 (cc: all counsel) (Entered: 09/11/1995)
292 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1] (Entered: 09/11/1995)
293 NOTICE of Receipt of Requested Documents from County Defendants by plaintiff Jean Doe(s), plaintiff John Doe(s) (Entered: 09/11/1995)
------------------------------------------------------ V O L U M E 9 ----------------------------------------------------- (Entered: 09/13/1995)
294 PROTECTIVE ORDER by Chief Judge Wm. O. Bertelsman : Thomas W. Jaeger shall not disclose to any other person or entity, the eighth floor smoke evacuation plan of the Kenton County Detention Center... (cc: all counsel) (Entered: 09/13/1995)

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09/13/1995
09/13/1995 09/13/1995 09/15/1995 09/15/1995 09/18/1995 09/18/1995 09/19/1995
09/19/1995 09/20/1995 09/20/1995

295 PROTECTIVE ORDER by Chief Judge Wm. O. Bertelsman: Plaintiffs shall not disclose to any other person or entity the drawing of the eighth floor smoke evacuation plan of the Kenton County Detention Center or the eighth floor HVAC plan of the Kenton County Detention Center.... (cc: all counsel) (Entered: 09/13/1995)
296 DEPOSITION of Richard Stephens taken on the following date(s): August 1, 1995 at 10:00 a.m. by: Plaintiff (SEP. VOL.) Modified on 09/13/1995 (Entered: 09/13/1995)
297 DEPOSITION of Roger McMaster taken on the following date(s): August 1, 1995 at 10:30 a.m. by: Plaintiff (SEP. VOL.) (Entered: 09/13/1995)
298 DISCLOSURE NO. 2 by Official Defendant James Knauf, and Official Defendant Clyde Middleton (Entered: 09/18/1995)
299 ORDER by Chief Judge Wm. O. Bertelsman: The court noting an error in its Order, filed 9/8/95, It Is Ordered that the motion of plaintiffs to propound requests for admission in excess of thirty (doc. #262) is hereby granted. (cc: all counsel) (Entered: 09/18/1995)
300 DISCLOSURE Of Witnesses pursuant to Rule 26 ADO #3 by plaintiff Jean Doe(s) and plaintiff John Doe(s) (Entered: 09/18/1995)
300 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for protective order regarding witnesses. (Entered: 09/18/1995)
301 ORDER by Chief Judge Wm. O. Bertelsman granting motion for protective order regarding witnesses [300-1]; It is ordered that consistent with the Kentucky Unified Juvenile Code, Sections 610.070, .320 and .340, the names of the juvenile witnesses, in the above referenced case shall not be part of the public record and these names sealed from the public record. The names in Plaintiffs Disclosure of Witnesses list, involving minor children shall be protected from public disclosure, and sealed of record. (cc: all counsel) (Entered: 09/19/1995)
SUBMITTED re motion for summary judgment [284-1], re motion to dismiss [289-1] is submitted (Entered: 09/19/1995)
302 MOTION by plaintiff Jean Doe(s) and plaintiff John Doe(s) for protective order (Entered: 09/20/1995)
304 RESPONSE (OPPOSITION) by plaintiff Jean Doe(s) and plaintiff John Doe(s) to motion for summary judgment [284-1] of Kenton County Official Defendant Clyde Middleton, Official Defendant James Knauf (attached in Record Separately). (Entered: 09/20/1995)

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09/20/1995 09/26/1995 09/26/1995 09/29/1995
10/10/1995 10/10/1995 10/11/1995

303 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to dismiss [289-1], to motion for summary judgment. [289-2] of Jack Lewis (Commonwealth of KY) - (attached in Record Separately). (Entered: 10/02/1995)
305 JOINT MOTION by defendant Corrections Cab KY (Jack Lewis), Official Defendant Clyde Middleton, Official Defendant James Knauf, defendant Covington Independent Public Schools, Official Defendant Richard Howard for leave to conduct trial by brief. (Entered: 09/26/1995)
306 AGREED STIPULATION and ORDER by Chief Judge Wm. O. Bertelsman and by agreement of counsel for parties: ; Def. Kenton Co. KY's reply / brief to Plfs' Response to Def's Motion for Summary Judgment is now due on 10/6/95 (cc: all counsel) (Entered: 09/26/1995)
307 ORDER by Chief Judge Wm. O. Bertelsman satisfying hearing on motion for leave to inspect the Kenton Co. Detention Center facility. [261-1]; satisfying hearing on motion to extend time to complete expert disclosure requirements. [263-1]; satisfying hearing on motion to plaintiffs' request for entry onto premises. [273-1]; satisfying hearing on motion to compel production of documents. [276-1]; satisfying hearing on motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1]; satisfying hearing on motion to dismiss [257-1]; satisfying hearing on motion for summary judgment [257-2]; satisfying hearing motion for leave to conduct trial by brief [305-1]; (1) granting plfs' motion for leave to inspect the Kenton Co. Detention Center facility. [261-1]; The court accompanied by counsel will inspect the facility on Monday, 10/16/95 at 1:00 p.m.; (2) denying as moot plfs' motion to extend time to complete expert disclosure requirements. [263-1], (3) granting plfs' motion to compel plaintiffs' request for entry onto premises. [273-1], (4) granting in part and denying in part plfs' motion to compel production of documents. (5) denying plfs' motion for leave to deem matter admitted or compel further responses to requests for admission. [278-1], The County defs are ordered to respond by 10/15/95 to outstanding requests for admission...(6) denying defs' motion to dismiss [257-1], denying defs' motion for summary judgment [257-2]; School defs are ordered to draft certification and submit to the court by 10/11/95; (8) denying defs' joint motion for leave to conduct trial by brief. [305-1] ;(7) Defs shall file a response / brief adddressing issues by 10/29/95; Plfs may respond within (15) days the same being due on 11/13/95; court trial is reset for 10:00 4/15/96. Each side will have 2 days to present their case......(cc: all counsel) (Entered: 09/29/1995)
308 TRANSCRIPT filed of Hearing before Chief Judge, Wm. O. Bertelsman Date(s) of transcript May 15, 1995 at 9:00 a.m. (Entered: 10/10/1995)
SUBMITTED re motion for protective order [302-1] before Mag. Judge J. Gregory Wehrman is submitted (Entered: 10/11/1995)
309 REPLY by Official Defendant Clyde Middleton, Official Defendant James Knauf to response to motion for summary judgment [284-1]

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10/16/1995

(Entered: 10/11/1995)
310 MOTION by defendant Covington Ind Pub, Official Defendant Richard Howard to certify issue to the Supreme Court of Kentucky. (Entered: 10/12/1995)
311 TRANSCRIPT filed of Hearing before Chief Judge, Wm. O. Bertelsman Date(s) of transcript April 19, 1995 (Entered: 10/12/1995)
312 AGREED ORDER by Chief Judge Wm. O. Bertelsman and by agreement of party; Defendant, Kenton County's reply / brief (Responses to Request for Admissions, Set No. 1 and No. 2) is due 11/1/95 (cc: all counsel) (Entered: 10/16/1995)
313 PROTECTIVE ORDER by Chief Judge Wm. O. Bertelsman: Rgarding Photographs of the Kenton County Detention Center or the Kenton County Juvenile Holding Facility or both....Neither Plfs, nor Plfs' expert , Thomas W. Jaeger, nor Plfs' counsel nor photographer, Dave Brown shall dislcose to any other person....any photographs or drawings of the Kenton Co. Detention Center of the Kenton County Juvenile Holding Facility or both. (cc: all counsel) (Entered: 10/16/1995)

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10/17/1995
10/30/1995 10/30/1995 10/30/1995 10/31/1995 11/01/1995 11/01/1995 11/01/1995 11/07/1995
11/09/1995 11/14/1995

314 ORDER by Mag Judge J. G. Wehrman: granting plaintiff's motion for protective order [302-1] - The identities of all minor children involved with the case, including but not limited to those minor children mentioned in plaintiffs' summary judgment response and those who may be witnesses to this action shall be protected from public disclosure. (cc: all counsel) (Entered: 10/17/1995)
315 REPLY BRIEF by Official Defendant James Knauf and Official Defendant Clyde Middleton regarding claim of inadequate special education under idea. (Entered: 10/30/1995)
316 NOTICE To Court Re: Education Issues by defendant Corrections Cab KY (Jack Lewis). (Entered: 10/30/1995)
317 SUPPLEMENTAL MEMORANDUM by defendant Covington Independent Public Schools and Official Defendant Richard Howard Addressing Special Education Issues Raised by Plaintiffs - (attached Separately in Record). (Entered: 10/31/1995)
SUBMITTED re motion to certify issue to the Supreme Court of Kentucky. [310-1] is submitted (Entered: 10/31/1995)
318 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to certify issue to the Supreme Court of Kentucky. [310-1] (Entered: 11/01/1995)
319 RESPONSE by Official Defendant James Knauf and Official Defendant Clyde Middleton to Plaintiffs' Request for Admissions (Set No. 1). Modified on 11/02/1995 (Entered: 11/02/1995)
320 RESPONSE by Official Defendant James Knauf and Official Defendant Clyde Middleton to Plaintiffs' Request for Admissions (Set No. 2). (Entered: 11/02/1995)
321 PROTECTIVE ORDER by Chief Judge Wm. O. Bertelsman and upon agreement of Plaintiffs and Defendant Kenton County, Kentucky: It Is Hereby Ordered that: (1) Elder Photographic hereafter referred to as the LAB will process film from job no. 7696 and make prints exclusively for Dave Brown Commercial Photography......(2) All negatives, test prints...associated with said job will kept separate in a sealed envelope or box...(3) The LAB will make only straight prints directly from negatives associated with Photographer's job no. 7696...(4) The LAB will not discuss the content or subject matter of said job......(5) Any and all LAB personnel who come into contact with any of the images associated with the Photographer's job no. 7696 shall adhere to this Order. (cc: all counsel) Modified on 11/13/1995 (Entered: 11/07/1995)
322 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to Plaintiffs' Motion to Compel. (Entered: 11/09/1995)
323 TRANSCRIPT filed of Hearing before Chief Judge, Wm. O. Bertelsman Date(s) of transcript September 26, 1995 at 1:00 p.m. (Entered:

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12/08/1995 12/27/1995
12/27/1995 12/27/1995 12/27/1995 12/27/1995 12/28/1995 01/02/1996 01/03/1996
01/12/1996

324 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for order to deem matters admitted , or to compel further responses to requests for admission (attached in record separately). Modified on 12/08/1995 (Entered: 12/08/1995)
325 ORDER by Chief Judge Wm. O. Bertelsman: It Is Ordered that the plaintiffs shall have twenty (20) days the same being (1/16/96) in which to file a further Amended Complaint naming official capacities of the Commissioner of Corrections, other officials of that department and also the Governor of the Commonwealth in his official capacity.... (cc: all counsel) (Entered: 12/27/1995)
326 AGREED ORDER by Chief Judge Wm. O. Bertelsman and by agreement of parties: It Is Ordered that defendant's response / brief to Plaintiffs' Motion to Deem Matters Admitted or to Compel Further Responses to Request for Admission is due 1/12/96. (cc: all counsel) (Entered: 12/27/1995)
327 ORDER by Chief Judge Wm. O. Bertelsman denying motion for summary judgment [284-1] of official defendant Clyde Middleton and official defendant James Knauf. (cc: all counsel) (Entered: 12/27/1995)
328 ORDER by Chief Judge Wm. O. Bertelsman denying defendant's motion to dismiss [289-1], denying defendant's motion for summary judgment. [289-2] (cc: all counsel) (Entered: 12/27/1995)
329 ORDER by Chief Judge Wm. O. Bertelsman denying defendants' motion to certify issue to the Supreme Court of Kentucky. [310-1] all counsel) (Entered: 12/27/1995)
330 ORDER by Chief Judge Wm. O. Bertelsman denying official defendants' motion to dismiss education claims. [258-1] (cc: all counsel) (Entered: 12/28/1995)
------------------------------------------------------ V O L U M E 10 ----------------------------------------------------- (Entered: 01/23/1996)
331 AMENDED ORDER by Chief Judge Wm. O. Bertelsman: Plaintiffs with 20 days of the date of this order-- due 1/23/96 file a further Amended Complaint, naming in their official capacities the Commissioner of EDUCATION, and any other officials of that department as may be appropriate in their official capacities, and also the Governor of the Commonwealth, in his official capacity, to whom the Court shall look to resolve any conflicts between the defendants. Court again reiterates that it will not entertain conflicting positions on the part of the departments, but will look to the Governor to speak with one voice for the Commonwealth where there is such a conflict. (cc: all counsel) (Entered: 01/09/1996)
332 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to motion for order to deem matters admitted [324-1], to motion to compel further responses to requests for admission (attached in record separately). [324-2] (Entered: 01/12/1996)

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01/12/1996

SUBMITTED re motion for order to deem matters admitted [324-1], re motion to compel further responses to requests for admission (attached in record separately). [324-2] is submitted (Entered: 01/12/1996)

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01/23/1996 01/23/1996 01/31/1996 02/02/1996
02/06/1996 02/07/1996 02/07/1996 02/13/1996 02/13/1996 02/13/1996 02/13/1996

333 THIRD AMENDED COMPLAINT [1-1] by plaintiff Jean Doe(s), and plaintiff John Doe(s); adding Viola Miller, Wilmer . Cody and Paul Patton. Modified on 01/23/1996 (Entered: 01/23/1996)
SUMMONS issued as to Official Defendant Viola Miller, Official Defendant Wilmer . Cody and Official Defendant Paul Patton (Entered: 01/23/1996)
334 RETURN OF SERVICE executed upon Official Defendant Viola Miller, Official Defendant Wilmer Cody and Official Defendant Paul Patton on 1/24/96 (Entered: 01/31/1996)
335 FINAL PRETRIAL CONFERENCE ORDER by Chief Judge Wm. O. Bertelsman ;response / brief satisfied 1/12/96 ;reply / brief satisfied 1/23/96 ; pretrial filings (Pre trial memos) are due 3/8/96 ; The final pretrial conference is set for 2:30 3/22/96; The trial is scheduled for Monday, 4/15/96 at 10:00 a.m. FORMAT FOR FILING PRETRIAL MEMORANDUM IS ATTACHED. (cc: all counsel) (Entered: 02/02/1996)
336 ANSWER by Official Defendant James Knauf and Official Defendant Clyde Middleton to [333-1] Plaintiffs' Third Amended Complaint. (Entered: 02/06/1996)
337 NOTICE by plaintiff Jean Doe(s), plaintiff John Doe(s) of taking deposition of Mark Kroger on February 29, 1996 beginning at 9:00 a.m. (Entered: 02/07/1996)
338 NOTICE by plaintiff Jean Doe(s), plaintiff John Doe(s) of taking deposition of Hal Hayden on March 1, 1996 beginning at 9:00 a.m. (Entered: 02/07/1996)
339 AGREED ORDER by Chief Judge Wm. O. Bertelsman; Defendant, Wilmer Cody's response / brief (answer to Plf's Third Amended Complaint) is due 2/19/96. all counsel) (Entered: 02/13/1996)
340 ANSWER by defendant Covington Independent Public Schools and Official Defendant Richard Howard (Larry Rodenberger, superintendent) to [333-1] Plaintiff's Third Amended Complaint. (Entered: 02/13/1996)
341 RETURN OF SERVICE of Subpoena served upon Mark Kroger executed on 2-7-96. (Entered: 02/14/1996)
342 ANSWER by Official Defendant Viola Miller to [333-1] Plaintiffs' Third Amended Complaint. (Entered: 02/14/1996)

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02/14/1996 02/20/1996 02/21/1996 02/21/1996 02/21/1996 02/21/1996 02/22/1996 02/22/1996
02/22/1996 02/22/1996 02/22/1996

343 ANSWER by defendant Corrections Cabinet of KY and Official Defendant Paul Patton to [333-1] Plaintiff's Third Amended Complaint. (Entered: 02/15/1996)
344 ANSWER by Official Defendant Wilmer Cody to [333-1] Plaintiffs' Third Amended Complaint. (Entered: 02/21/1996)
345 PRODUCTION OF WITNESS LISTS and EXPERT REPORTS submitted by plaintiff Jean Doe(s) and plaintiff John Doe(s) - (Attached In Record Separately). (Entered: 02/21/1996)
346 MOTION by Official Defendant Wilmer Cody to continue the trial date , and for relief from the Pretrial Conference Order of 2/2/96. (Entered: 02/21/1996)
347 MEMORANDUM by Official Defendant Wilmer . Cody in support of motion to continue the trial date [346-1], of motion for relief from the Pretrial Conference Order of 2/2/96. [346-2] (Entered: 02/21/1996)
348 PRETRIAL DISCLOSURES by Official Defendant Viola Miller (Entered: 02/22/1996)
349 MOTION by Official Defendant Paul Patton and defendant Jack C. Lewis of the Corrections Cab KY for relief from the final pretrial conference order. (Entered: 02/22/1996)
350 MOTION by Official Defendant Paul Patton and defendant Jack C. Lewis of the Corrections Cab KY for consideration regarding defs. not producing expert testimony and having no witnesses to present at trial. (Entered: 02/22/1996)
351 DEPOSITION of Wilma Jones taken on the following date(s): March 3, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
352 DEPOSITION of Clara Fister taken on the following date(s): January 5, 1995 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
353 DEPOSITION of Clara Fister taken on the following date(s): March 2, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)

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02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996

354 DEPOSITION of Michael G. Borchers taken on the following date(s): March 8, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
358 DEPOSITION of Roger McMaster taken on the following date(s): June 10, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). Modified on 02/22/1996 (Entered: 02/22/1996)
355 DEPOSITION of Sue Toll taken on the following date(s): March 1, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
356 DEPOSITION of Wilma Jones taken on the following date(s): December 15, 1994 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
357 DEPOSITION of Gary V. Sinclair taken on the following date(s): January 6, 1995 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
359 DEPOSITION of Mark A. Modlin taken on the following date(s): March 25, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
360 DEPOSITION of Jack Lewis taken on the following date(s): March 2, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
361 DEPOSITION of Richard Stephens taken on the following date(s): June 11, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
362 DEPOSITION of Richard Stephens taken on the following date(s): August 1, 1995 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
363 DEPOSITION of Robert Powell taken on the following date(s): June 10, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
364 DEPOSITION of Sue Tolle taken on the following date(s): December 15, 1994 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)

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02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/22/1996 02/23/1996 03/01/1996 03/04/1996 03/04/1996 03/05/1996

365 DEPOSITION of Peggy M. Wallace taken on the following date(s): March 4, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
366 DEPOSITION of Gary L. Webster taken on the following date(s): March 26, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
367 DEPOSITION of Freida Younger taken on the following date(s): March 1, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
368 DEPOSITION of Marlene St. Clair taken on the following date(s): March 8, 1993 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
369 DEPOSITION of Roger McMaster taken on the following date(s): August 1, 1995 by: Plaintiffs (SEP. VOL.) (COPY ONLY - NOT SIGNED BY COURT REPORTER). (Entered: 02/22/1996)
370 DISCLOSURE (COMPLIANCE WITH FINAL PRETRIAL CONFERENCE ORDER) by Official Defendant James Knauf and Official Defendant Clyde Middleton (Entered: 02/23/1996)
371 WITNESS list submitted by defendant Covington Independent Public Schools and Official Defendant Richard Howard (Larry Rodenberger). (Entered: 02/23/1996)
372 PRETRIAL MEMORANDUM by defendant Covington Independent Public Schools and Official Defendant Richard Howard (Larry Rodenberger) (Entered: 03/04/1996)
373 PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW Submitted by Official Defendant Viola Miller (Entered: 03/04/1996)
374 PROPOSED FINDINGS OF FACT Submitted by defendant Covington Independent Public Schools and Official Defendant Richard Howard (Larry Rodenberger) (Entered: 03/04/1996)
375 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to continue the trial date [346-1] (Entered: 03/05/1996)

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03/05/1996 03/07/1996 03/07/1996 03/08/1996
03/08/1996 03/08/1996 03/08/1996 03/08/1996 03/08/1996
03/11/1996
03/11/1996

SUBMITTED re motion to continue the trial date [346-1] is submitted (Entered: 03/05/1996)
376 DEPOSITION of Harold Hayden taken on the following date(s): March 1, 1996 at 9:00 a.m. by: Plaintiff (SEP. VOL.) (Entered: 03/07/1996)
377 DEPOSITION of Cheryl Roberts taken on the following date(s): Marcy 1, 1996 at 11:00 a.m. by: Plaintiff (SEP. VOL.) (Entered: 03/07/1996)
378 PRETRIAL MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s)- (Attached in Record Separately). Modified on 03/08/1996 (Entered: 03/08/1996)
379 PROPOSED FINDINGS OF FACT Submitted by plaintiff Jean Doe(s), plaintiff John Doe(s) (Entered: 03/08/1996)
380 PROPOSED CONCLUSIONS OF LAW by plaintiff Jean Doe(s), plaintiff John Doe(s) (Entered: 03/08/1996)
381 STIPULATIONS AND UNCONTESTED facts by plaintiff Jean Doe(s), plaintiff John Doe(s) (Entered: 03/08/1996)
382 PRETRIAL MEMORANDUM by Official Defendant Viola Miller (Entered: 03/11/1996)
383 PRETRIAL MEMORANDUM by Official Defendant James Knauf, (Don Younger) and Official Defendant Clyde Middleton - (Attached In Record Separately). (Entered: 03/11/1996)
384 PRETRIAL MEMORANDUM by Official Defendant Paul Patton and defendant Corrections Cab KY (Jack Lewis, Commissioner) (Entered: 03/11/1996)
SUBMITTED re motion for relief from the final pretrial conference order. [349-1], re motion for consideration regarding defs. not producing expert testimony and having no witnesses to present at trial. [350-1] is submitted (Entered: 03/11/1996)

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03/12/1996 03/12/1996 03/13/1996
03/13/1996 03/18/1996 03/18/1996 03/18/1996
03/20/1996
03/22/1996 03/22/1996 03/26/1996

385 DEPOSITION of William Von Strohe, Jr. taken on the following date(s): February 29, 1996 by: Plaintiffs. (SEP. VOL.) (Entered: 03/12/1996)
386 DEPOSITION of Mark D. Kroger, M.S. taken on the following date(s): February 29, 1996 by: Plaintiffs (SEP. VOL.) (Entered: 03/12/1996)
387 MOTION by Official Defendant James Knauf, Official Defendant Clyde Middleton for order compelling production of Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services Records before Mag Judge J. G. Wehrman. (Entered: 03/13/1996)
388 REPLY by Official Defendant Wilmer Cody re [375-1] Plaintiffs' Response to Defendants' Motion for Continuance and Motion for Relief from Pretrial Order. (Entered: 03/13/1996)
389 AMENDED STIPULATIONS AND UNCONTESTED FACTS by defendant Corrections Cab KY (Jack Lewis) and Official Defendant Paul Patton in support of [381-1] (Entered: 03/18/1996)
390 ORDER by Chief Judge Wm. O. Bertelsman granting motion for relief from the final pretrial conference order. [349-1] (cc: all counsel) (Entered: 03/18/1996)
391 ORDER by Chief Judge Wm. O. Bertelsman granting motion for order compelling production of Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services Records before Mag Judge J. G. Wehrman. [387-1] (cc: all counsel) (Entered: 03/18/1996)
392 ORDER by Chief Judge Wm. O. Bertelsman: setting aside order [391-1] reinstating motion for order compelling production of Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services Records before Mag Judge J. G. Wehrman. [387-1] (cc: all counsel) (Entered: 03/21/1996)
393 MOTION by defendant Kenton Cty for order excusing C. Thomas Hectus, Co-counsel from Final PreTrial Conference (Entered: 03/22/1996)
394 ORDER by Chief Judge Wm. O. Bertelsman: Granting motion excusing C. Thomas Hectus, Co-counsel from Final PreTrial Conference [393-1]. (cc: all counsel) (Entered: 03/22/1996)
395 ORDER by Chief Judge Wm. O. Bertelsman: The final pretrial conference was held on 3/22/96 , (1) granting defendant's motion to continue the trial date [346-1], The education issues only shall be tried separately, said trial to commence on Monday, July 22, 1996 at 10:00 a.m.; (2) granting defendant's motion for relief from Pretrial Conference Order of 2/2/96 [346-2]; All discovery regarding the education issues shall be completed by 6/1/96; (3) denying plaintiffs' motion for order to deem matters admitted [324-1], denying plaintiffs' motion to compel

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further responses to requests for admission (attached in record separately). [324-2]; (4) denying defendant's motion for order compelling production of Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services Records before Mag Judge J. G. Wehrman. [387-1]; (5) The trial excluding education issues shall commence on Monday, April 15, 1996 at 9:30 a.m. and continue on Tues, 4/16/96 and Fri. 4/19/96; (6) The plfs. shall have 15 minutes for direct examination and defs. shall have 45 minutes to cross-examine each expert witness; (7) The court orders that defs shall not obtain individual class members' juvenile court records; (8) Plfs are ordered to provide defs by Monday, 4/8/96 summaries of the testimony of detention center employees and the parents of juveniles scheduled to testify at trial. (cc: all counsel) (Entered: 03/26/1996)

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03/26/1996 03/28/1996 03/29/1996 04/12/1996 04/12/1996 04/15/1996 04/15/1996 04/15/1996 04/15/1996
04/15/1996
04/16/1996

396 RESPONSE IN OPPOSITION by plaintiff Jean Doe(s) and plaintiff John Doe(s) to [387-1] Defendant's Motion for Order Compelling Production of Commonwealth of Kentucky, Cabinet for Families and Children, Department for Social Services Records. (Entered: 03/26/1996)
397 MOTION by Official Defendant James Knauf (Don Younger) and Official Defendant Clyde Middleton to supplement [385-1] William Von Strohe's Deposition of February 29, 1996. (Entered: 03/28/1996)
398 TRANSCRIPT filed of In Chambers Conference before Chief Judge, Wm. O. Bertelsman Date(s) of transcript March 22, 1996. (Entered: 03/29/1996)
399 RETURN OF SERVICE of Subpoenas served upon Chris Brown, Sharon Brown and Nicole Hamilton to appear on April 15, 1996 at 10:30 a.m. executed on 4/11/96. (Entered: 04/12/1996)
400 RETURN OF SERVICE of Subpoena served upon Kim Nichols to appear on April 15, 1996 at 10:30 a.m. - executed on 4/12/96. (Entered: 04/12/1996)
401 RETURN OF SERVICE of Supoena served upon Matt Levalley executed on April 14, 1996. (Entered: 04/15/1996)
SUBMITTED re motion to supplement [385-1] William Von Strohe's Deposition of February 29, 1996. [397-1] is submitted (Entered: 04/15/1996)
402 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) to exclude expert testimony. (Entered: 04/15/1996)
403 ORDER by Chief Judge Wm. O. Bertelsman: By letter dated 4/8/96, plfs. objected to defs. late designation of Mark Kroger as an expert witness for trial. The court will treat this letter as a motion to be filed in the record as of the date of this Order; On 4/15/96 the court heard oral argument from the parties on this motion; It Is Ordered granting motion to exclude expert testimony [402-1]; The testimony of Mark Kroger shall be limited to that of a lay witness. (cc: all counsel) (Entered: 04/15/1996)
404 CIVIL TRIAL MINUTES: before Chief Judge, Wm. O. Bertelsman Date (s) April 15, 1996 Court Reporter McCarthy/Wesley/Blosser Opening Statement by parties; Introduction of evidence for plaintiff begun not concluded; Case continued until Tuesday, April 16, 1996 at 9:00 a.m. (cc: all counsel) (Entered: 04/16/1996)
405 TRANSCRIPT filed of Civil Trial before Chief Judge, Wm. O. Bertelsman Date(s) of transcript April 15, 1996 Modified on 04/16/1996 (Entered: 04/16/1996)

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04/16/1996 04/17/1996 04/19/1996 04/22/1996
04/22/1996 04/24/1996 04/24/1996
05/02/1996 05/03/1996

406 CIVIL TRIAL MINUTES: before Chief Judge, Wm. O. Bertelsmma Date(s) April 16, 1996 Court Reporter Wesley & Blosser Introduction of evidence for plaintiff begun and concluded; Plaintiff rests; Oral motion on behalf of Kenton County Defendants to reserve their motion for directed verdict --GRANTED; Case continued until Friday, April 19, 1996 at 10:00 a.m. (cc: all counsel) (Entered: 04/16/1996)
407 TRANSCRIPT filed of Civil Court Trial before Chief Judge, Wm. O. Bertelsman Date(s) of transcript April 16, 1996 (Entered: 04/17/1996)
408 MOTION by defendant Covington Independent Public Schools and Official Defendant Richard Howard to dismiss plaintiffs' claim against the school defendants as moot with attached Memorandum in Support with attached Affidavit of Joseph U. Meyer. (Entered: 04/19/1996)
409 CIVIL TRIAL MINUTES: before Chief Judge, Wm. O. Bertelsman Date (s) April 19, 1996 Court Reporter McCarthy & Wesley Introduction of evidence for defendant begun and concluded; Defense rests; Renewed oral motion on behalf of Kenton County Defendants to reserve their motion for directed verdict--Granted; Kenton County defendants granted leave of Court to remove exhibits 1 a-j for the purpose of duplication; Briefing schedule to be set by separate order of the Court. (cc: all counsel) (Entered: 04/22/1996)
410 COURT TRIAL EXHIBIT and WITNESS list (Entered: 04/22/1996)
411 TRANSCRIPT filed of Civil Court Trial before Chief Judge, Wm. O. Bertelsman Date(s) of transcript April 19, 1996 Modified on 02/27/1997 (Entered: 04/24/1996)
412 ORDER by Chief Judge Wm. O. Bertelsman ; court trial held 4/15/96, 4/16/96 and 4/19/96 ; (1) Plaintiffs shall submit their response /post-trial brief by 5/6/96; Defendants shall submit their reply /post-trial brief by 5/20/96. (2) Plfs shall by 5/3/96 designate a facility located within 125 miles of this court which they feel illustrates an acceptable juvenile holding facility; (3) Defs' oral motion for access to the commitment orders of juveniles is granted for purpose of enabling defs to respond to statistics prepared by plfs during trial... (4) Defs' oral motion to adopt the exhibits attached to their motions for summary judgment for use in conjunction with their post-trial briefs is GRANTED. (cc: all counsel) (Entered: 04/24/1996)
413 AGREED ORDER by Mag Judge J. G. Wehrman: It Is Hereby Ordered that on Thursday, 5/2/96 at 2:00 p.m., Assistant Kenton County Attorney, Ken Rylee will review the juvenile court record of the nine juveniles listed in Plaintiff's Exhibit 49... Such information on all juveniles shall remain confidential for purposes of these proceedings... (cc: all counsel) (Entered: 05/02/1996)
414 Designation of Juvenile Facility to be visited by the court by plaintiff Jean Doe(s) and plaintiff John Doe(s) in support of [412-3] Judges' Order of 4/24/96 (Attached in Record Separately). Modified on 05/06/1996

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05/06/1996 05/06/1996

(Entered: 05/06/1996)
------------------------------------------------------ V O L U M E 11 ----------------------------------------------------- (Entered: 05/06/1996)
415 POST-TRIAL BRIEF FILED by plaintiff Jean Doe(s), plaintiff John Doe (s) regarding [412-3] Order of 4/24/96. (Entered: 05/06/1996)

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05/07/1996 05/07/1996 05/10/1996 05/14/1996 05/14/1996 05/16/1996 05/16/1996
05/17/1996
05/24/1996 05/28/1996
05/28/1996

SUBMITTED re motion to dismiss plaintiffs' claim against the school defendants as moot [408-1] is submitted (Entered: 05/07/1996)
416 AGREED ORDER by Chief Judge Wm. O. Bertelsman by agreement of the parties; Plaintiff's response / brief to defendant's Motion for Summary Judgment is due 5/13/96. (cc: all counsel) (Entered: 05/07/1996)
417 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to dismiss plaintiffs' claim against the school defendants as moot [408-1] (Entered: 05/10/1996)
418 POST-TRIAL BRIEF FILED by Official Defendant Viola Miller regarding [412-3] Order of 4/24/96. (Entered: 05/14/1996)
421 MOTION by Official Defendant Viola Miller to dismiss education claims. (Entered: 05/17/1996)
419 POST-TRIAL BRIEF FILED by defendant Corrections Cab KY (Jack Lewis) and Official Defendant Paul Patton (Entered: 05/16/1996)
420 AGREED ORDER by Mag Judge J. G. Wehrman and by agreement of counsel for the parties; response / brief satisfied 5/10/96 ; Defendant Don Younger's reply / brief (Post Trial Brief) is due 5/28/96. (cc: counsel) (Entered: 05/16/1996)
422 AGREED ORDER Extending Defendant's time for filing reply to Plaintiff's Response to its Motion to Dismiss claims as moot by Mag Judge J. G. Wehrman; Defendants, Covington Independent Public Schools and Larry Rodenberger's response / brief is due 5/24/96. (cc: all counsel) (Entered: 05/20/1996)
423 REPLY by defendant Covington Independent Public Schools to response to motion to dismiss plaintiffs' claim against the school defendants as moot [408-1] (Entered: 05/28/1996)
424 AGREED ORDER by Chief Judge Wm. O. Bertelsman: By agreement of counsel for Plffs. and counsel for defendant, Viola P. Miller Plaintiffs' response due 6/7/96 to Motion to Dismiss Education Claims [D.E. #421]. (cc: all counsel) (Entered: 05/29/1996)
425 OBJECTIONS by defendants, Kenton County, Clyde Middleton, in his official capacity as Kenton County Judge Executive and Don Younger, in his official capacity as Kenton County Jailer to Plaintiffs Designation of Juvenile Facility to be Visited by the Court [414] (Entered: 05/29/1996)

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05/28/1996
05/28/1996 05/31/1996 05/31/1996 06/07/1996 06/07/1996 06/12/1996 06/12/1996 06/13/1996
06/13/1996 06/13/1996

426 MOTION by Defendant Kenton County, Ky., Clyde Middleton in his Official capacity as Kenton County Judge Executive and Don Younger, in his official capacity as Kenton County Jail for judgment as a Matter of Law (Entered: 05/29/1996)
427 DEFENDANTS POST TRIAL BRIEFS FILED regarding [412-1] (PLEADING PLACED IN SEPARATE ENVELOPE) Modified on 05/29/1996 (Entered: 05/29/1996)
428 MOTION by Official Defendant Wilmer . Cody (Kentucky Department of Education) to dismiss plaintiff's claims as moot. (Entered: 05/31/1996)
429 MEMORANDUM by Official Defendant Wilmer . Cody in support of motion to dismiss plaintiff's claims as moot. [428-1] (Entered: 05/31/1996)
430 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to dismiss education claims. [421-1] (Entered: 06/07/1996)
SUBMITTED re motion to dismiss education claims. [421-1] is submitted (Entered: 06/07/1996)
431 MOTION by Official Defendant Clyde Middleton for summary judgment on plaintiffs' education claims. (Entered: 06/12/1996)
432 MEMORANDUM by Official Defendant Clyde Middleton in support of motion for summary judgment on plaintiffs' education claims. [431-1] (Entered: 06/12/1996)
433 MOTION by Official Defendant Clyde Middleton to supplement record based on enactment of the Prison Litigation Reform Act of 1995 with attached Affidavit of A. Bailey Taylor and Michael Collins. (Entered: 06/13/1996)
434 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to dismiss plaintiff's claims as moot [428-1] of Defendant - Kentucky Department of Education. (Entered: 06/13/1996)
SUBMITTED re motion to dismiss plaintiff's claims as moot. [428-1] is submitted (Entered: 06/13/1996)

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06/20/1996 06/24/1996 06/25/1996 06/25/1996 06/26/1996 06/27/1996 06/27/1996 06/28/1996 06/28/1996 07/01/1996
07/01/1996

435 REPLY by Official Defendant Viola Miller re [434-1] to Plaintiff's Response to defendant's motion to dismiss education claims. (Entered: 06/20/1996)
436 WITNESS and Exhibit list submitted by Official Defendant Wilmer Cody - Kentucky Department of Education (Entered: 06/24/1996)
437 RESPONSE by plaintiff Jean Doe(s) and plaintiff John Doe(s) to motion for summary judgment on plaintiffs' education [431-1] (Entered: 06/25/1996)
SUBMITTED re motion for summary judgment on plaintiffs' education claims. [431-1] is submitted (Entered: 06/25/1996)
438 REPLY by Official Defendant Wilmer Cody (Kentucky Department of Education) re [434-1] to plaintiff's Motion to Dismiss educations claims. (Entered: 06/26/1996)
439 RESPONSE by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to supplement record based on enactment of the Prison Litigation Reform Act of 1995 [433-1] (Entered: 06/27/1996)
SUBMITTED re motion to supplement record based on enactment of the Prison Litigation Reform Act of 1995 [433-1] is submitted (Entered: 06/27/1996)
440 MOTION by Official Defendant Wilmer Cody (Kentucky Department of Education) for leave to take deposition. (Entered: 06/28/1996)
441 MEMORANDUM by Official Defendant Wilmer Cody in support of motion for leave to take deposition. [440-1] (Entered: 06/28/1996)
442 ORDER by Chief Judge Wm. O. Bertelsman: It has been brought to the attention of the court that certain legislation has been passed by the General Assembly of the Commonwealth of Kentucky; It Is Ordered (1) That the trial of the education issues in this case now set on 7/22/96 is hereby continued until further order of the court; (2) the pending motions of defendnts (Doc. #408, #421, #428, and #431) will be heard at the time the trial was scheduled on Monday July 22, 1996 at 10:00 a.m.; (3) At hearing, the Commonwealth shall be prepared to speak with one voice as to its interpretation of the Act... (4) granting defendant's motion to supplement [385-1] William Von Strohe's Deposition of February 29, 1996. [397-1] (cc: all counsel) (Entered: 07/01/1996)
443 MOTION by Official Defendant Viola Miller to stay CFC's obligations with regard to the education issues. (Entered: 07/01/1996)

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07/16/1996 07/19/1996 07/19/1996 07/22/1996
07/24/1996 07/25/1996 07/26/1996 07/26/1996
07/26/1996

SUBMITTED re motion for leave to take deposition. [440-1] is submitted (Entered: 07/16/1996)
SUBMITTED re motion to stay CFC's obligations with regard to the education issues. [443-1] is submitted (Entered: 07/19/1996)
444 AFFIDAVIT of Dr. Johnnie Grissom (Entered: 07/19/1996)
445 ORDER by Chief Judge Wm. O. Bertelsman granting motion to dismiss plaintiffs' claim against the school defendants as moot [408-1], denying motion to dismiss education claims. [421-1], denying motion to dismiss plaintiff's claims as moot. [428-1], denying motion for summary judgment on plaintiffs' education claims. [431-1], denying as moot motion for leave to take deposition. [440-1], granting motion to stay CFC's obligations with regard to the education issues [443-1]; The court further orders that the education claims be stayed until further notice; The Commonwealth's reply / brief (status report); describing the progress made on the promulgation of regulations is due 8/15/96. (cc: all counsel) (Entered: 07/22/1996)
446 NOTICE by Official Defendant Clyde Middleton for Kenton County, Kentucky of filing of additional affidavit in support of motion to supplement the record - affidavit of Martin J. Sheehan - attached. (Entered: 07/24/1996)
------------------------------------------------------ V O L U M E 12 ----------------------------------------------------- (Entered: 08/28/1996)
447 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER: by Chief Judge Wm. O. Bertelsman: (2) denying def's motion for judgment as a Matter of Law [426-1], (3) granting motion to supplement record based on enactment of the Prison Litigation Reform Act of 1995 [4331].... (cc: all counsel) (Entered: 07/26/1996)
448 JUDGMENT: by Chief Judge Wm. O. Bertelsman: Pursuant to the findings of fact, conclusions of law and Order entered concurrently, It Is Ordered and Adjudged: (1) That effective 8/15/96, no juvenile indicted for or convicted of a crime as an adult shall be held in the present Kenton Co. Detention Center for more than fifteen (15) days; (2) Effectivie 8/1/96, the Kenton County Detention Center shall have on duty a minimum of two (2) guards - one male and one female at all times; (3) Effective 8/1/96 the Kenton Co. Detention Center shall ensure that both male and female juvenile residents are provided an opportunity for recreation and physical exercise...for one (1) hour a day, seven (7) days a week. (cc: all counsel) (Entered: 07/26/1996)
449 AMENDED JUDGMENT: by Chief Judge Wm. O. Bertelsman: Paragraph (1) one has been amended to state: (1) That effective, 8/15/96, no juvenile not indicted for or convicted of a crime as an adult shall be held in the present Kenton County Detention Center for more than fifteen (15) days... (cc: all counsel) (Entered: 07/26/1996)

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08/09/1996 08/09/1996

450 MOTION by Defendants to alter judgment [449-1], judgment [448-1] , and to amend or Findings of Fact, Conclusions of Law and Order (Entered: 08/12/1996)
459 MOTION by Official Defendant Paul Patton to alter or amend judgment [449-1], judgment [448-1] (Entered: 08/28/1996)

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08/15/1996 08/15/1996 08/15/1996 08/15/1996
08/16/1996
08/23/1996 08/23/1996
08/27/1996 08/27/1996
08/28/1996 08/29/1996

451 AFFIDAVIT of Ken Easterling (Entered: 08/15/1996)
452 AFFIDAVIT of Don Younger (Entered: 08/15/1996)
453 STATUS REPORT by Official Defendant Wilmer Cody and Official Defendant Paul Patton (Entered: 08/15/1996)
454 JOINT MOTION by Official Defendant Clyde Middleton, defendant Corrections Cab KY and plaintiff Jean Doe(s), and plaintiff John Doe(s) to extend time to comply with the Court's Findings of Fact, Conclusions of Law and Order. (Entered: 08/15/1996)
455 ORDER by Chief Judge Wm. O. Bertelsman granting motion to extend time to comply with the Court's Findings of Fact, Conclusions of Law and Order [454-1]; Parties have up to and including Friday, August 30, 1996 in which to attempt to agree on a fire expert not previously involved in this case and submit his or her name to the Court for appointment. (cc: all counsel) (Entered: 08/16/1996)
456 STIPULATED MOTION by plaintiff Jean Doe(s) and plaintiff John Doe (s) to extend time to file attorney fee's petition. (Entered: 08/23/1996)
457 RESPONSE (MEMORANDUM OF LAW IN OPPOSITION) by plaintiff Jean Doe(s), plaintiff John Doe(s) to motion to alter judgment [449-1], judgment [448-1] [450-1], to motion to amend or Findings of Fact, Conclusions of Law and Order [450-2] and Motion for Stay of Execution of Judgment. (Entered: 08/23/1996)
SUBMITTED re motion to alter judgment [449-1], judgment [448-1] [450-1], re motion to amend or Findings of Fact, Conclusions of Law and Order [450-2] is submitted (Entered: 08/27/1996)
458 RESPONSE by Official Defendant Clyde Middleton to motion to alter judgment [449-1], judgment [448-1] [450-1], to motion to amend or Findings of Fact, Conclusions of Law and Order [450-2] (Entered: 08/27/1996)
SUBMITTED re motion to alter or amend judgment [449-1], judgment [448-1] [459-1] is submitted (Entered: 08/28/1996)
460 REPLY by Official Defendant Don Younger, Jailer re [457-1] Plaintiffs' Response to Defendants Motion to Alter, Amend and Vacate Judgemnt and Motion for Stay of Execution of Judgment. (Entered: 08/29/1996)

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08/29/1996 09/03/1996 09/04/1996
09/05/1996 09/09/1996 09/18/1996
10/04/1996 10/04/1996
10/11/1996 10/15/1996 10/16/1996

461 RESPONSE by plaintiff Jean Doe(s) and plaintiff John Doe(s) to [453-1] Defendants' Status Report on Education. (Entered: 08/29/1996)
SUBMITTED re motion to extend time to file attorney fee's petition. [456-1] is submitted (Entered: 09/03/1996)
462 OPINION AND ORDER: by Chief Judge Wm. O. Bertelsman granting motion to alter judgment [449-1], judgment [448-1] [450-1], denying motion to amend or Findings of Fact, Conclusions of Law and Order [450-2], denying motion to alter or amend judgment [449-1], judgment [448-1] [459-1], granting motion to extend time to file attorney fee's petition. [456-1] ;Plaintiff shall file a (petition for attorneys' fees) response / brief by 10/15/96. (cc: all counsel) (Entered: 09/04/1996)
463 ORDER by Chief Judge Wm. O. Bertelsman: Parties shall file a further (status report) reply / brief on or before 3/5/97. (cc: all counsel) (Entered: 09/05/1996)
464 TRANSCRIPT filed of Hearing on Motions before Chief Judge, Wm. O. Bertelsman Date(s) of transcript July 22, 1996 (Entered: 09/10/1996)
465 ORDER by Chief Judge Wm. O. Bertelsman: It Is Ordered that Carl L. Duncan adn Thomas J. Klem are hereby appointed as court appointed experts to make an examination into said issues...The experts shall file a joint report to the Court no later than 12/2/96 which shall focus on the safety with regard to fire of juveniles...The experts shall submit their fee for their services to the court... (cc: all counsel) (Entered: 09/18/1996)
466 NOTICE OF APPEAL by Official Defendant James Knauf, Official Defendant Clyde Middleton from Dist. Court decision [447-1] (cc: all counsel) (Entered: 10/04/1996)
467 NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Docket Sheet to Parties; [466-1]; Copy of Findings of Fact Conclusions of Law of 7/26/96; Judgment and Amended Judgment of 7/26/96 and Opinion and Order of 9/4/96. (cc: all counsel) (Entered: 10/04/1996)
468 JOINT MOTION to extension of time to 11/1/96 for Plaintiffs to file Petition for Attorney Fees (Entered: 10/11/1996)
469 ORDER by Chief Judge Wm. O. Bertelsman ; Plaintiffs' counsel's response / brief to file their Petition for Attorneys Fees is due 11/1/96. (cc: all counsel) (Entered: 10/15/1996)
470 NOTICE OF APPEAL by plaintiff Jean Doe(s) and plaintiff John Doe(s) from Dist. Court decision [447-1] (cc: all counsel) (Entered: 10/16/1996)

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10/17/1996
10/21/1996 10/31/1996 10/31/1996 10/31/1996 11/04/1996 11/12/1996 11/14/1996 11/25/1996 11/26/1996 12/02/1996

471 NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Findings of Fact Conclusions of Law of 7/25/96; Judgment and Amended Judgment of 7/26/96; Opinion and Order of 9/4/96; Copy of Docket Sheet to Parties; [470-1] (cc: all counsel) (Entered: 10/17/1996)
472 NOTIFICATION by 6CCA of Appellate Docket Number 96-6357 as to Defts. Don Younger, in his official capacity, As Jailer and Clyde Middleton, in his official capacity (Entered: 10/21/1996)
473 TRANSCRIPT DESIGNATION and Ordering Form for dates: 8/29/96 by Appellant, James Knauf and Clyde Middleton Modified on 10/31/1996 (Entered: 10/31/1996)
474 MOTION by plaintiff Jean Doe(s), plaintiff John Doe(s) for attorney fees and costs. (Entered: 10/31/1996)
475 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of motion for attorney fees and costs [474-1] (attached in Record Separately). (Entered: 10/31/1996)
476 NOTIFICATION by 6CCA of Appellate Docket Number 96-6389 assigned to Notice of Appeal filed Plaintiffs Jean and John Doe(s) (Entered: 11/04/1996)
FEE PAID $ 105.00, Receipt No. 062753 - Notice of Appeal Fee for Case No. 96-6357. (Entered: 11/12/1996)
477 (STIPULATION) MOTION by Official Defendant Clyde Middleton and Official Defendant James Knauf to extend time for filing response to plaintiffs' fee petition. (Entered: 11/14/1996)
SUBMITTED re motion to extend time for filing response to plaintiffs' fee petition. [477-1] is submitted (Entered: 11/25/1996)
478 ORDER by Chief Judge Wm. O. Bertelsman granting motion to extend time for filing response to plaintiffs' fee petition. [477-1] ;Defendant's response / brief is due 1/17/97. (cc: all counsel) (Entered: 11/27/1996)
479 ORDER by Chief Judge Wm. O. Bertelsman: Matter before the court on the report of Carl L. Duncan, Fire Expert, which is attached hereto and incorporated herein by reference. (1) Any party may take the deposition of said Carl L. Duncan, who is the designated deponent by agreement of Mr. Duncan and Thomas Klem, on or before 1/2/97; (2) Motions requesting additional relief shall be filed herein on or before January 17, 1997; any response thereto shall be filed on or before February 3, 1997. (cc: all counsel) (Entered: 12/02/1996)

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12/05/1996 12/13/1996 12/23/1996 12/23/1996
01/08/1997 01/17/1997 01/22/1997 01/30/1997 01/31/1997

480 MOTION by defendants to Hold Attorney Fee Issue in Abeyance (Entered: 12/09/1996)
481 MOTION by defendant Kenton Cty Fiscal, Official Defendant Paul Patton and Doug Sapp to clarify i and to extend time within which to depose the Court appointed fire safety experts. (RSB) (Entered: 12/16/1996)
482 RESPONSE by plaintiff to Defendant's motion to Hold Attorney Fee Issue in Abeyance [480-1] (RSB) (Entered: 12/23/1996)
483 ORDER by Chief Judge Wm. O. Bertelsman: 1.Plaintiff's motion for Attorney fees (474-1] is denied without prejudice. Plaintiffs may refile their motion for attorneys' fees and costs once this case has been resolved on the merits, including the resolution of any appeals; 2. Defendants' motion to hold attorneys fees in abeyance [480] is granted; 3. Defendants motion for clarification [481] is granted in part and denied in part. Court will contact Carl L. Duncan, Thomas Klem, Edwin E. Smith and David P. Demers and request that each provide to the Cort the information referenced in Federal Rule of Civil Procedure 26(a)(2)(B). 5. Parties must depose Carl L. Duncan, if at all, no later than fifteen days after receipt of Mr. Duncan's Rule 26 information; 5. Parties must file status report or a request for a conference call no later than 10 days after Mr. Duncan's deposition. Court encourages the parties to submit the fire safety issue to the court on briefs, deposition and trial transcripts. (cc: all counsel) (RSB) Modified on 12/26/1996 (Entered: 12/24/1996)
484 TRANSCRIPT filed of oral argument before Judge Bertelsman Date(s) of transcript August 29, 1996 (by phone). (RSB) (Entered: 01/08/1997)
485 ORDER by Chief Judge Wm. O. Bertelsman: Pursuant to Court's order of 1/23/96, fire experts having forwarded pertinent information, it is ordered that Rule 26(a)2(b) information is entered into the record and Clerk is directed to forward such information to all counsel. Parties are reminded that deposition of Mr. Duncan must be taken by 2/7/97. ;reply / brief due 2/7/97 (cc: all counsel) (RSB) (Entered: 01/17/1997)
486 ORDER by Chief Judge Wm. O. Bertelsman: Pursuant to status conference, Defendants shall file a status report ( (; response/brief) due 1/31/97; Thirty days after said filing of status report plaintiffs shall take whatever depositions are necessary. No later than 3/7/97 (reply / brief) status report due or motion for additional relief due 3/7/97 (cc: all counsel) (RSB) (Entered: 01/23/1997)
487 NOTICE by defendant Corrections Cab KY, Official Defendant Paul Patton of change of address of Barbara Jones, General Counsel, Justice Cabinet, 403 Wapping Street, 2nd Floor, Bush Building, Frankfort, Kentucky 40601. (RSB) (Entered: 01/30/1997)
488 STATUS REPORT by defendant Corrections Cab KY, Official Defendant Wilmer Cody, Official Defendant Paul Patton. (RSB) (Entered: 02/03/1997)

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489 PLAINTIFF'S motion for admit expert reports into record and for a ruling on the fire safety claims (RSB) (Entered: 02/10/1997)
------------------------------------------------------ V O L U M E 13 ----------------------------------------------------- (RSB) (Entered: 02/19/1997)

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02/18/1997 02/18/1997 02/20/1997 02/20/1997 02/24/1997 02/27/1997
02/27/1997
02/28/1997 03/07/1997 03/13/1997

490 STATUS REPORT by defendant Corrections Cab KY, Official Defendant Charles Summe, Official Defendant Clyde Middleton, defendant Kenton Cty Fiscal, Official Defendant James Knauf, Official Defendant Paul Patton (RSB) (Entered: 02/19/1997)
490 MOTION by defendant Corrections Cab KY, Official Defendant Charles Summe, Official Defendant Clyde Middleton, Kenton Cty Fiscal, Official Defendant James Knauf, Official Defendant Paul Patton for conference (RSB) Modified on 02/25/1997 (Entered: 02/19/1997)
491 NOTICE by plaintiff of taking deposition of Dr. Laura Thomson, Clara Fister, & Joe Clark on February 26, 1997 (RSB) (Entered: 02/20/1997)
492 RETURN OF SERVICE by plaintiff of subponea in a civil action to Dr. Laura Thompson to appear on 2/26/97 at Childrens Law Center for desposition and requested documentation, served 2/20/97. (RSB) (Entered: 02/28/1997)
493 RESPONSE by Official Defendant James Knauf, Official Defendant Clyde Middleton, Official Defendant Paul Patton and Doug Sapp to Plaintiff's motion for hearing [490-1] (RSB) Modified on 02/28/1997 (Entered: 02/26/1997)
494 ORDER by Chief Judge Wm. O. Bertelsman: Status Conference held on 2/26/97 with Debra McCarthy as Court Reporter: 1. GRANTING Defendant's motion for conference [490-1],2. Within 15 days (March 13, 1997), parties are to submit to opposing counsel and to the court appointed experts documents that they want the court appointed experts to discuss at deposition; 3. Defendants have until March 31, 1997 to depose court appointed experts; 4. Fifteen days after filing transcripts of depositions, the defendants shall file supplemental brief. Fifteen days thereafter Plaintiffs shall file a response; 5. Status report or motion for additional releife that was to be filed by parties on March 6th & 7th, 1997 are no longer required; 6. DENYING Plaintiff's motion to admit expert reports into record and for a ruling on the fire safety claims [489-1] , cc: all counnsel) (RSB) (Entered: 02/28/1997)
495 ORDER by Chief Judge Wm. O. Bertelsman: The court enters of record the billings of the fire experts: Carl L. Duncan: $7,498.47, Demers Associates Inc: $5,198.21, Edwin E. Smith: $1,475.00, Thomas J. Klem: 6,729.34, totalling $20,901.02, Court orders that Defendants pay such billings within 30 days of the date of this order. (cc: all counsel) (RSB) (Entered: 02/28/1997)
496 NOTICE by defendant Clyde Middleton, defendant James Knauf of taking deposition of Carl L. Duncan on March 19, 1997 at 9:00 a.m. (RSB) (Entered: 03/03/1997)
497 MOTION by plaintiff for trial on education claims. (RSB) (Entered: 03/10/1997)
498 MOTION by defendant Corrections Cab KY, Official Defendant Viola

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03/13/1997

Miller, Official Defendant Paul Patton for joinder in County Defendants motion to alter or amend. (RSB) (Entered: 03/14/1997)
499 MOTION by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, Official Defendant Viola Miller, Official Defendant Paul Patton for order allowing Plaintiffs to take deposition of defendants experts (RSB) (Entered: 03/14/1997)

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03/13/1997 03/14/1997 03/14/1997 03/17/1997 03/17/1997 03/17/1997 03/18/1997 03/18/1997 03/19/1997 03/25/1997 03/25/1997

500 MOTION by Official Defendant James Knauf, Official Defendant Paul Patton, Official Defendant Clyde Middleton to amend Order of 2/27/97 directing payment of witness fees (RSB) (Entered: 03/14/1997)
501 AMENDED NOTICE OF DEPOSITION by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Carl L. Duncan on March 19, 1997 (RSB) (Entered: 03/14/1997)
502 NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Thomas J. Klem on March 19, 1997 (RSB) (Entered: 03/14/1997)
503 SECOND AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Thomas J. Klem on March 19, 1997 (RSB) (Entered: 03/17/1997)
504 NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Carl L. Duncan on March 19, 1997 (RSB) (Entered: 03/17/1997)
507 TRANSCRIPT filed of hearing before Judge Bertelsman Date(s) of transcript 2/26/97 (RSB) (Entered: 03/19/1997)
505 THIRD AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Carl L. Duncan on March 25, 1997 (RSB) (Entered: 03/19/1997)
506 THIRD AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Thomas J. Klem on March 25, 1997 (RSB) (Entered: 03/19/1997)
508 RESPONSE by plaintiff to Defendant's motion for order allowing Plaintiffs to take deposition of defendants experts [499-1] (RSB) (Entered: 03/19/1997)
510 FOURTH AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Carl L. Duncan on April 18, 1997 (RSB) Modified on 03/27/1997 (Entered: 03/25/1997)
509 FOURTH AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Thomas J. Klem on April 18, 1997 (RSB) Modified on 03/25/1997 (Entered: 03/25/1997)

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03/26/1997
03/27/1997 03/27/1997 03/27/1997 03/28/1997 04/03/1997
04/15/1997 04/16/1997 04/16/1997 04/16/1997 04/18/1997

511 ORDER by Chief Judge Wm. O. Bertelsman: 1. Parties agree that Defendants' time to respond to Plaintiff's Motion for Trial shall be suspended to allow the parties to meet and discuss possible settlement of some or all pending issues; 2. Parties will file status reports by 4/20/97; 3. Parties request that Court set a status conference on the education issues after 4/20/97 to address any issue that cannot be resolved. (cc: all counsel) (RSB) Modified on 03/27/1997 (Entered: 03/26/1997)
512 RESPONSE by plaintiff to Defendant's motion to amend Order of 2/27/97 directing payment of witness fees [500-1] (RSB) Modified on 03/27/1997 (Entered: 03/27/1997)
514 MEMORANDUM by Official Defendant Wilmer Cody (Department of Education) in support of motion to clarify order re: fees to experts. [5131] (RSB) (Entered: 03/28/1997)
513 MOTION by Official Defendant Wilmer Cody to clarify order concerning payment of fees to experts (RSB) (Entered: 04/03/1997)
515 NOTICE OF JOINING IN RECENTLY TENDERED JOINT AGREED ORDER RE EDUCATION ISSUES by Official Defendant Viola Miller (RSB) (Entered: 03/28/1997)
SUBMITTED re motion for trial on education claims. [497-1], re motion for joinder in County Defendants motion to alter or amend. [498-1], re motion for order allowing Plaintiffs to take deposition of defendants experts [499-1], re motion to amend Order of 2/27/97 directing payment of witness fees [500-1] is submitted (RSB) (Entered: 04/03/1997)
SUBMITTED re motion to clarify order concerning payment of fees to experts [513-1] is submitted (RSB) (Entered: 04/15/1997)
516 DEPOSITION of Laura Thomson taken on the following date(s): February 26, 1997 by: Plaintiffs (SEP. VOL.) (RSB) (Entered: 04/16/1997)
517 DEPOSITION of Clara Fister taken on the following date(s): February 26, 1997 by: Plaintiffs (SEP. VOL.) (RSB) (Entered: 04/16/1997)
518 DEPOSITION of Joseph Clark taken on the following date(s): February 26, 1997 by: Plaintiffs (SEP. VOL.) (RSB) (Entered: 04/16/1997)
519 FIFTH AMENDED NOTICE by Official Defendant Clyde Middleton, Official Defendant James Knauf of taking deposition of Carl L. Duncan on May 5, 1997 (RSB) (Entered: 04/18/1997)

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05/15/1997 05/19/1997 05/19/1997

520 FIFTH AMENDED NOTICE by Official Defendant Clyde Middleton and Official Defendant James Knauf of taking deposition of Thomas J. Klem on May 5, 1997 (RSB) (Entered: 04/18/1997)
521 JOINT STATUS REPORT by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, plaintiff Jean Doe(s), plaintiff John Doe(s), Official Defendant Viola Miller, Official Defendant Wilmer Cody, Official Defendant Paul Patton (RSB) (Entered: 04/22/1997)
521 REQUEST by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, plaintiff Jean Doe(s), plaintiff John Doe(s), Official Defendant Miller, Official Defendant Wilmer Cody, Official Defendant Paul Patton for status conference on education claims (RSB) (Entered: 04/22/1997)
522 ORDER by Chief Judge Wm. O. Bertelsman denying as moot Defendants'motion for order allowing Plaintiffs to take deposition of defendants experts [499-1] (cc: all counsel) (RSB) (Entered: 04/24/1997)
523 ORDER by Chief Judge Wm. O. Bertelsman granting Defendants' motion for status conference on education claims [521-1], setting hearing for MAY 7, 1997 at 2:00 p.m. (cc: counsel) (RSB) (Entered: 04/25/1997)
524 ORDER by Chief Judge Wm. O. Bertelsman changing hearing on motion for status conference on education claims [521-1] 12:30 5/5/97 (cc: all counsel) (RSB) (Entered: 05/05/1997)
525 ORDER by Chief Judge Wm. O. Bertelsman: 1.GRANTING Ky Dept of Education's motion to clarify order concerning payment of fees to experts. Court's order of 2/27/97 is hereby clarified to state that the Ky Dept of Education bears no responsibility for the court appointed fire expert witness fees; 2. DENYING without prejudice Defendants' motion to amend Order of 2/27/97 directing payment of witness fees [500-1], 3. GRANTING Defendants' motion for, joinder in County Defendants motion to alter or amend. [498-1], 4. DENYING Plaintiff's motion for trial on education claims. [497-1]; 5. Defendants must file a fee application for services relating to the education issues no later than June 5, 1997; 6. Defendants must submit a status report on education issues no later than May 15, 1997. 7. Defendants must file any response to Plaintiff's fee application no later than June 25, 1997; 8. Plaintiff's may file a reply in support of their fee application no later than July 7, 1997 ;response/brief due 6/5/97 ;reply / brief due 6/25/97 (cc: all counsel) (RSB) (Entered: 05/06/1997)
526 STATUS REPORT by defendant Corrections Cab KY (RSB) (Entered: 05/16/1997)
527 DEPOSITION of Carl L. Duncan taken on the following date(s): May 5, 1997 by: Defendant (SEP. VOL.) (RSB) (Entered: 05/19/1997)
528 DEPOSITION of Thomas Klem taken on the following date(s): May 5,

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05/27/1997

1997 by: Defendant (SEP. VOL.) (RSB) (Entered: 05/19/1997)
529 MOTION by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, Official Defendant Paul Patton to stay briefing schedule on fire safety issues pending settlement negotiations. (RSB) (Entered: 05/28/1997)

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06/05/1997 06/06/1997 06/06/1997 06/16/1997 06/23/1997 06/23/1997
06/25/1997 06/27/1997 06/27/1997 06/27/1997 07/15/1997

530 MOTION by plaintiff for order to supend filing of attorneys fees petition on education claims. (RSB) (Entered: 06/06/1997)
531 RESPONSE by plaintiff to motion to stay briefing schedule on fire safety issues pending settlement negotiations. [529-1] (RSB) (Entered: 06/06/1997)
SUBMITTED re motion to stay briefing schedule on fire safety issues pending settlement negotiations. [529-1] is submitted (RSB) (Entered: 06/06/1997)
532 ORDER by Chief Judge Wm. O. Bertelsman denying Defendant Patton's motion to stay briefing schedule on fire safety issues pending settlement negotiations. [529-1] (cc: all counsel) (RSB) (Entered: 06/16/1997)
SUBMITTED re motion for order to supend filing of attorneys fees petition on education claims. [530-1] is submitted (RSB) (Entered: 06/23/1997)
533 BRIEF FILED by defendant Corrections Cab KY, Official Offical Defendant Clyde Middleton, Official Defendant James Knauf, Official Defendant Paul Patton REGARDING FIRE SAFETY ISSUE. (RSB) (Entered: 06/25/1997)
------------------------------------------------------ V O L U M E 14 ----------------------------------------------------- (RSB) (Entered: 06/25/1997)
534 MOTION by plaintiff to strike brief regarding fire safety. (RSB) (Entered: 06/27/1997)
535 MOTION by plaintiff for sanctions (RSB) (Entered: 06/27/1997)
536 MEMORANDUM by plaintiff in support of motion for sanctions [535-1] (RSB) (Entered: 06/27/1997)
537 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to Plaintiff's motion to strike brief regarding fire safety. [534-1] (RSB) (Entered: 07/16/1997)

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07/15/1997 07/15/1997 07/16/1997 07/21/1997 07/25/1997 07/25/1997 08/06/1997
08/06/1997
08/06/1997 08/06/1997 08/08/1997

538 RESPONSE by Official Defendant Clyde Middleton, Official Defendant James Knauf to Plaintiff's motion for sanctions [535-1] (RSB) (Entered: 07/16/1997)
539 RESPONSE by defendant Corrections Cab KY (SAPP), Official Defendant Paul Patton to Plaintiff's motion for sanctions [535-1] (RSB) (Entered: 07/16/1997)
SUBMITTED re motion for sanctions [535-1], re motion to strike brief regarding fire safety. [534-1] is submitted (RSB) (Entered: 07/16/1997)
540 MOTION by plaintiff for findings by the Court on Education Issues (No memorandum submitted) Modified on 07/21/1997 (Entered: 07/21/1997)
541 REPLY by plaintiff to response to motion for sanctions [535-1]. (RSB) (Entered: 07/25/1997)
542 AFFIDAVIT of Assistant Chief James Patrick re necessity of sprinklers at jail. (RSB) (Entered: 07/25/1997)
543 RESPONSE by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, Official Defendant Wilmer Cody, Official Defendant Paul Patton to motion for findings by the Court on Education Issues [540-1] (RSB) (Entered: 08/06/1997)
543 MOTION by defendant Corrections Cab KY, Official Defendant Clyde Middleton, Official Defendant James Knauf, Official Defendant Wilmer Cody, Official Defendant Paul Patton for summary judgment (RSB) (Entered: 08/06/1997)
SUBMITTED re motion for findings by the Court on Education Issues [540-1] is submitted (RSB) (Entered: 08/06/1997)
544 AFFIDAVIT of Barbara Jordan, Education Director re response to Plaintiff's motion for findings on education issues [543-1]. (RSB) (Entered: 08/06/1997)
545 AFFIDAVIT of Donald F. Younger re Defendants' response [543-1], re Defendants' motion for summary judgment [543-1]. (RSB) (Entered: 08/08/1997)

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546 AFFIDAVIT of Laura Thomson re Defendants' response [543-1], re Defendants' motion for summary judgment [543-1]. (RSB) (Entered: 08/08/1997)
547 ORDER by Chief Judge Wm. O. Bertelsman setting oral arguments on 9/25/97 at 2:00 on Defendants' motion for summary judgment [543-1] and motion for findings by the Court on Education Issues [540-1] and motion for sanctions [535-1] and on motion to strike brief regarding fire safety. [534-1] and on motion for order to supend filing of attorneys fees petition on education claims. [530-1] (cc: all counsel) (RSB) (Entered: 08/15/1997)
548 MOTION by plaintiffs to extend time in which to respond to Defendant's motion for summary judgment on education claims. (RSB) (Entered: 08/19/1997)
549 MOTION by Official Defendant Viola Miller to dismiss fire safety and right to education claims against Ky Cabinet for Families and Children. (RSB) (Entered: 08/25/1997)
550 RESPONSE by plaintiff to brief filed by defendant regarding fire safety issue. [533-1] (RSB) (Entered: 08/25/1997)
551 ORDER by Chief Judge Wm. O. Bertelsman: Counsel for plaintiff having a conflict with regard to oral arguments set on pending motions now set for 9/25/97 at 2:00 p.m. and all counsel being in agreement, oral arguments now set for 10/2/97 at 9:00 a.m. for motion for summary judgment [543-1]; and motion for findings by the Court on Education [540-1] and motion for sanctions [535-1]; and motion to strike brief regarding fire safety. [534-1] and motion for order to supend filing of attorneys fees petition on education claims. [530-1] (cc: all counsel) (RSB) (Entered: 08/25/1997)
------------------------------------------------------ V O L U M E 15 ----------------------------------------------------- (RSB) Modified on 06/05/1998 (Entered: 08/25/1997)
SUBMITTED re motion to extend time in which to respond to Defendant's motion for summary judgment on education claims. [548-1] is submitted (RSB) (Entered: 08/26/1997)
552 RESPONSE by plaintiff to Defendant's motion for summary judgment [543-1]. (RSB) (Entered: 09/04/1997)
552 REPLY by plaintiff to response to motion for findings by the Court on Education Issues [540-1] (RSB) (Entered: 09/04/1997)
SUBMITTED re motion for summary judgment [543-1] is submitted (RSB) (Entered: 09/04/1997)

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SUBMITTED re motion to dismiss fire safety and right to education claims against Ky Cabinet for Families and Children. [549-1] is submitted (RSB) (Entered: 09/09/1997)
553 ORDER by Chief Judge Wm. O. Bertelsman: Court holding oral arguments on 10/2/97 on all pending motions with Amy Blosser as court reporter; 1. GRANTING Plaintiff's motion for order to suspend filing of atty fees petition on education claims [530]; 2. DENYING AS MOOT Plaintiff's motion to strike brief regarding fire safety; [534-1]; 3. DENYING AS MOOT Plaintiff's motion for sanctions [535-1]; 4. TAKING UNDER SUBMISSION Plaintiff's motion for findings by the court on education [540-1] and Defendant's motion for summary jgm on education issues [543-1]; 5. DENYING AS MOOT Plaintiff's motion to extend time in which to respond to Defendant's motion for summary jgm on education claims [548-1]; 6.GRANTING Defendant's motion to dismiss fire satety and right to education claims against Ky Cabinet for Families and Children; 7. Plaintiff has 15 days, the same being 10/17/97 to provide draft order regarding notice to the class members and fairness hearing. 8. Plaintiff shall file any Affidavits within 10 days the same being 10/13/97. Defendants shall respond 10 days thereafter, being 10/23/97; (cc: all counsel) (RSB) (Entered: 10/02/1997)
554 SETTLEMENT AGREEMENT by Chief Judge Wm. O. Bertelsman: Re miscelleanous issues . . . (cc: all counsel) (RSB) (Entered: 10/02/1997)
555 AFFIDAVIT of Mary Salyer re Order of court requesting affidavit re special education issues [553-1], re [553-2]. (RSB) (Entered: 10/14/1997)
556 MOTION by plaintiffs for approval of fire satety class settlement. (RSB) (Entered: 10/15/1997)
557 RESPONSE by Defendant, Kenton County to PLAINTIFF'S AFFIDAVIT ON SPECIAL EDUCATION CLAIMS [555-1] (Entered: 10/23/1997)
558 DEFENDANTS,PAUL PATTON AND DOUG SAPPY'S AFFIDAVIT of Dr. Johnnie Grissom re Special Education Service in the Kenton County Detention Center and Judge Bertelsman's Order of 10/2/97 [5531]. (RSB) (Entered: 10/27/1997)
559 RESPONSE by Official Defendant Paul Patton, defendant Corrections Cab KY to Plaintiff's motion for approval of fire safety class settlement. [556-1] (RSB) (Entered: 10/27/1997)
560 CERTIFIED COPY of 6CCA Order: dismissing appeals as agreed to by parties; [470-1], dismissing the appeal [466-1] (96-6357 and 96-6389). (RSB) (Entered: 11/03/1997)
561 ORDER by Chief Judge Wm. O. Bertelsman: 1. Proposed notice of class settlement is approved with the following modifications . . .; 2. Court will conduct a hearing on 12/12/97 at 1:30 p.m. to entertain any objections to the proposed settlement of fire safety claims. 556-1] (cc: all counsel)

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(RSB) (Entered: 11/05/1997)
562 ORDER by Chief Judge Wm. O. Bertelsman: 1. There being no objections to the Fire Safety settlement proposed by the parties and the court finding the settlement reasonable, the proposed settlement is approved; 2.As the defendants have reached an agreement concerning the division of court appointed experts' fees, the defendants are hereby ordered jointly and severally liable for the court appointed expert witness fees on fire safety; 3. Plaintiffs shall have 30 days from issuance of court's opinion on the education cliams in wich to submit a petition for attys fees. (cc: all counsel) (RSB) (Entered: 12/16/1997)

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563 OPINION AND ORDER: by Chief Judge Wm. O. Bertelsman: 1. DENYING Plaintiffs' motion for findings by the court on education issues [540-1]; 2. GRANTING Defendants' motion for summary jgm on the education issues [543-1]; 3. A separate judgment will enter concurrently herewith dismissing the education claims. (cc: all counsel) (RSB) (Entered: 12/16/1997)
564 JUDGMENT: by Chief Judge Wm. O. Bertelsman: 1. Education claims are dismissed with prejudice; 2. The last substantive issue having been disposed of, this is a FINAL JUDGMENT dismissing case (cc: all counsel) (RSB) (Entered: 12/16/1997)
565 MEMORANDUM by plaintiff Jean Doe(s), plaintiff John Doe(s) in support of Plaintiffs' Supplemental Petition for Attorneys' Fees and Costs (Entered: 01/15/1998)
566 MOTION by plaintiff for attorney fees . (RSB) (Entered: 01/15/1998)
567 JOINT MOTION to extend time for Defendants' to respond to Plaintiff's Petition for Atty Fees, up to and including 2/16/98 and to allow Plaintiff to file reply by 3/9/98. (RSB) (Entered: 01/30/1998)
SUBMITTED re motion to extend [567-1] is submitted (RSB) (Entered: 01/30/1998)
568 ORDER by Chief Judge Wm. O. Bertelsman: GRANTING joint parties motion to extend time to respond to petition for atty fees with response due 2/16/98 and reply due 3/9/98. [567-1] (cc: all counsel) (RSB) (Entered: 02/02/1998)
569 MAIL Returned [568-1], [568-2] addressed to Hon. Joseph Meyer with forwarding address to 106 West 11th Street, Covington, Ky 41011; Mail resent to new address and change of address noted. (RSB) (Entered: 02/10/1998)
570 ORDER by Chief Judge Wm. O. Bertelsman: Ordering that billings of the fire experts be paid on or before 2/20/98. No extensions will be granted. (cc: all counsel) (RSB) (Entered: 02/11/1998)
571 RESPONSE by Defendant Kenton County to Plaintiff's motion for attorney fees [566-1] (RSB) (Entered: 02/19/1998)
572 EXHIBITS of Kenton County in response to Plaintiff's motion for atty fees IN SEPARATE BINDER. (RSB) (Entered: 02/19/1998)

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573 RESPONSE by State defendants to Plaintiff's motion for attorney fees [566-1] (RSB) (Entered: 02/19/1998)
574 MOTION by Atty R. Thaddeus Keal for leave to withdraw as counsel for Defendant Kenton County. (RSB) (Entered: 02/19/1998)
575 MOTION by Official Defendant for leave to withdraw appearance as counsel of record for Kenton County. (RSB) (Entered: 02/19/1998)
576 REPLY by plaintiff to response to motion for attorney fees [566-1] (RSB) (Entered: 03/09/1998)
SUBMITTED re motion for leave to withdraw appearance as counsel of record for Kenton County. [575-1], re motion for leave to withdraw as counsel for Defendant Kenton County. [574-1], re motion for attorney fees [566-1] is submitted (RSB) (Entered: 03/09/1998)
577 MOTION by Atty Barbar Jones for defendant Corrections Cab KY for leave to withdraw as atty of record and substitute Stephen P. Durham. (RSB) (Entered: 03/17/1998)
578 JOINT MOTION by plaintiff and state defendants for an order approving settlment on atty fees and costs. (RSB) (Entered: 04/28/1998)
579 AGREED ORDER by Chief Judge Wm. O. Bertelsman granting motion for an order [578-1] for agreement on atty fees and State Defendants shall collectively pay the sum of $215,000.00 jointly to the Childrens' Law Center and Youth Law Center as complete and total satisfaction for any and all atty fees and costs due and owing by these defendants or Plaintiffs class or their attys and any further cliams for atty fees and costs against these State Defendants is hereby dismissed as withdrawn. (cc: all counsel) (RSB) (Entered: 04/28/1998)
------------------------------------------------------ V O L U M E 16 ----------------------------------------------------- (RSB) (Entered: 06/05/1998)
580 ORDER by Mag Judge J. G. Wehrman: A telephone status conference was held on 5/11/98: 1. TAKING UNDER SUBMISSION motion for attorney fees [566-1]; 2. GRANTING Attys Thad Keal and James Burd's motion for leave to withdraw as counsel for Defendant Kenton County. [574-1] [575-1]; 3. GRANTING motion of Barbara Jones for leave to withdraw appearance for Justice Cabinet; and substituting Stephen P. Durham. (cc: all counsel) (RSB) (Entered: 05/13/1998)
581 ORDER by Chief Judge Wm. O. Bertelsman referring to Mag Judge J. G. Wehrman the motion for attorney fees [566-1] for Report and Recommendation. (cc: all counsel) (RSB) (Entered: 05/27/1998)

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582 REPORT AND RECOMMENDATION by Mag Judge J. G. Wehrman: RECOMMENDS motion for attorney fees fees [566-1] be GRANTED. Plaintiffs should be awarded attorney's fees in the amount of $502,396.02, and costs in the amount of $93,957.31. In light of the settlement by the State defendant, the County is entitled to a credit against the total amount awarded in the amount of $215,000.00. Therefore attorney's fees and costs should be awarded in favor of the plaintiffs and against the County for the net total sum of $381,353.33. Motions of Thad Keal and James Burd to withdraw as counsel for the deft Kenton County [Doc. #574, 575] should be GRANTED, as should the motion of Barbara Jones to withdraw as counsel for the Corrections Cabinet and to substitute counsel Stephen Durham [Doc. #577]. Finally, as this case is fully concluded, it should be dismissed and stricken from the docket. Objections to this Report and Recommendation must be filed with the Clerk of Court within 10 days of the date of service (6/22/98) or further appeal is waived. A party may file a response to another party's objections within 10 days after being served with a copy thereof. (cc: all counsel) (Entered: 06/08/1998)
583 OBJECTIONS by Defendant, Kenton County to motion REPORT AND RECOMMENDATION [582-1] (RSB) Modified on 06/24/1998 (Entered: 06/24/1998)
SUBMITTED re motion REPORT AND RECOMMENDATION [582-1] is submitted (RSB) (Entered: 06/23/1998)
584 ORDER by Chief Judge Wm. O. Bertelsman: Overruling objections to Report and Recommendation of the Magistate Judge, except for formula calculation . . .and otherwise adopting REPORT AND RECOMMENDATION [582-1]; 2. Sum of $251,198.01 for atty fes and $36,978.66 for costs is awarded in favor of the plaintiffs and their attys against the county defendants [566-1] (cc: all counsel) (RSB) (Entered: 07/07/1998)
585 MOTION by Defendant Department of Education to withdraw attorney Barbara D. Bonar , and to substitute attorney Kevin Noland. (RSB) (Entered: 07/09/1998)
586 ORDER by Chief Judge Wm. O. Bertelsman granting motion to withdraw attorney Barbara D. Bonar [585-1] for Wilmer Cody, and substitute attorney Kevin Noland [585-2] for Wilmer Cody (cc: all counsel) (RSB) (Entered: 07/13/1998)
589 NOTICE OF APPEAL by Official Defendant Clyde Middleton, Official Defendant James Knauf from Dist. Court decision Order and Report and Reccomendation [584-1], (cc: all counsel) (RSB) (Entered: 08/06/1998)
RECEIVED re [589-1] fee in amount of $ 105.00 ( Receipt # 072262) (RSB) (Entered: 08/06/1998)
587 ATTORNEY APPEARANCE for Official Defendant Clyde Middleton, Official Defendant James Knauf by Sun S. Choy (RSB) (Entered:

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08/06/1998)
588 ATTORNEY SUBSTITUTION: terminating attorney R. Thaddeus Keal for James Knauf, attorney James M. Burd for James Knauf, attorney R. Thaddeus Keal for Clyde Middleton, attorney James M. Burd for Clyde Middleton and substituting attorney Sun Choy for same. (RSB) (Entered: 08/06/1998)
590 NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Docket Sheet to Parties; [589-1] with Report and Recommedation and Order (cc: all counsel) (RSB) (Entered: 08/06/1998)

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591 NOTIFICATION by 6CCA of Appellate Docket Number 98-6067 (RSB) (Entered: 08/12/1998)
592 TRANSCRIPT DESIGNATION and Ordering Form for dates: None. (RSB) (Entered: 08/24/1998)
593 NOTICE of change of address by Atty Sun S. Choy to Landrum & Shouse, 220 West Main Street Suite 1900, Louisville,Ky 40202. (RSB) (Entered: 09/21/1998)
594 MOTION by plaintiff for status conference. (RSB) (Entered: 01/12/1999)
595 ORDER by Judge Wm. O. Bertelsman GRANTING Plaintiff's motion for status conference. [594-1] and setting status hearing set for 1:30 2/12/99 (cc: all counsel) (RSB) (Entered: 01/26/1999)
596 CERTIFIED COPY of 6CCA Order: Parties agree to the dismissing the appeal [589-1] (RSB) (Entered: 01/27/1999)
597 MOTION by Official Defendant Clyde Middleton, Official Defendant James Knauf to modify settlement agreement of 10/2/97 (RSB) (Entered: 02/08/1999)
598 ORDER by Judge Wm. O. Bertelsman: On 2/12/99 a status conference was held with parties with Amy Blosser as court reporter: 1. GRANTING Defendant's motion to modify settlement agreement of 10/2/97 [597-1] as follows: The court shall continue the terms of the settlement agreement until 4/1/99; Plaintiff's have until 3/15/99 to file objections to continuing settlement agreement beyond 4/1/99. Objections shall be supported by fact specific affidavits; Plaintiffs shall have access to the Kenton County Juvenile Detention Center to monitor the treatment of juveniles housed there throughout the pendency of the terms of said settlement agreement. (cc: all counsel) (RSB) Modified on 02/12/1999 (Entered: 02/12/1999)
599 RESPONSE by plaintiff to County Defendants' motion to modify settlement agreement. (RSB) Modified on 02/16/1999 (Entered: 02/16/1999)
600 TRANSCRIPT filed of oral arguments before Judge Bertelsman Date(s) of transcript 2/12/99; Amy Blosser court reporter. (RSB) (Entered: 02/16/1999)
601 STATUS REPORT by Official Defendants and plaintiff. (RSB) (Entered: 03/31/1999)

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RECEIPT by Plaintiff for exhibits returned from evidenitary hrg. (RSB) (Entered: 06/01/1999)
603 CERTIFICATE of destruction of def exhibits. (RSB) (Entered: 07/16/1999)
604 JOINT STATUS REPORT by Kenton Cty Defs, Pla and Dept of Justice. (RSB) (Entered: 07/26/1999)

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 Doe v. Com. of Ky., Not Reported in F.Supp. (1992)
1992 WL 672380 Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky.
John DOE, et al., Plaintiffs, v.
COMMONWEALTH of Kentucky, Defendant.
Civ. A. No. 91–187. | Oct. 21, 1992.
Opinion
ORDER
BERTELSMAN, Chief Judge.
*1 This is an action under 28 U.S.C. § 1983 for prospective injunctive relief only. In general, the suit challenges Kentucky’s methods of handling juvenile offenders. The remaining named defendants, all sued in their official capacities are James Knauf, jailer of the Kenton County Detention Center; Clyde Middleton, Judge Executive; and Jack Lewis, Secretary of the Cabinet of Corrections, Commonwealth of Kentucky.
On August 24, 1992, this court entered an order that states at Paragraph 6:
“That the Court clarifies its previous Order of April 17, 1992, as follows:
Mr. Jack Lewis, who is sued in his official capacity only, represents the Commonwealth of Kentucky. This Court views the Commonwealth as the actual defendant in this litigation, as it is a legal entity. The Court does not recognize distinctions among the departments of cabinets contained within the state government. All rulings of the Court are binding on all departments within the government of the Commonwealth of Kentucky, and the Commonwealth shall be heard to speak with one voice. All internal disputes among the departments shall be resolved by the Kentucky Attorney General. As further clarification, the Court hereby orders that the caption of this action be amended to reflect that the Commonwealth of Kentucky is the true defendant before the Court.”
This matter is now before the court upon defendant Jack Lewis’ motion to amend the proceeding paragraph and motion to stay further discovery pending such ruling. He is represented by Suzanne D. Cordery, who is employed

by the Office of General Counsel for the Corrections Cabinet.
As to the motion to amend, Lewis argues that Paragraph 6 should be altered in two respects. First, he requests that the order be changed to state that he is sued in his official capacity only and only with respect to the Department of Corrections. Second, he requests that the order reflect that the Attorney General is not the office responsible for resolving disputes among the different executive departments as to representation, compliance with discovery requests, etc.
With respect to the first request for modification, defendant argues that under Hafer v. Melo, 112 S.Ct. 358 (1991), Will v. Michigan Dept. of State Police, 491 U.S. 58 (1991), and Ex Parte Young, 209 U.S. 123 (1908), prospective injunctive relief is not an action against the state because neither he nor the state is a “person” for § 1983 purposes. Therefore, he reasons, this suit cannot be construed as being brought against the Commonwealth, only the Department that he represents.
This argument is without merit, and reflects a tortured construction of the above cases. The Corrections Cabinet is part of the Executive Branch of the Commonwealth of Kentucky. E.g., KRS 12.010(1), (9); KRS 12.020. It is well settled that for § 1983 purposes a suit against a state employee in his or her official capacity is a suit against the state and that although the eleventh amendment prohibits recovery of damages in official capacity suits, prospective injunctive relief can be obtained. Hence, as this court has stated repeatedly, any relief granted by this court is binding on the Commonwealth and any of its departments or agencies that must act to carry out the relief granted.
*2 With respect to the second request for modification, while conceding that the office of the Attorney General is responsible for representing the Commonwealth, defendant argues that the Attorney General loses all authority to represent the state where a department or agency elects to employ attorneys under KRS 12.210 and KRS 220(1). Defendant argues that by virtue of KRS 12.100, the sole person able to resolve “conflicts” is the Governor. The “conflicts” to which defendant refers concern complying with discovery requests in this litigation:
“Defendant Lewis requests a stay of further discovery in this action because the Court’s Order of August 24, 1992 has affected the scope of the litigation and of Defendant Lewis’ capacity as the Commissioner of the Department
1

Doe v. Com. of Ky., Not Reported in F.Supp. (1992)

of Corrections. As was stated in Defendant Lewis’ Motion to Alter or Amend, Plaintiffs have construed the Order of the court to mean that Defendant Lewis must be able to provide information known by other agencies of the Commonwealth of Kentucky, to include the Cabinet for Human Resources.”

*3 (Doc. 57); see also Motion To Amend, Ex. 1 (discovery requests of plaintiffs).
This argument is also without merit. KRS 15.020 provides in part:

The attorney general is the chief

law officer of the Commonwealth

of Kentucky and all of its

departments,

commissions,

agencies,

and

political

subdivisions, and the legal advisor

of all state officers, departments,

commissions, and agencies ... He

shall appear for the Commonwealth

in all cases ... and attend all

litigation and legal business ...

required of him by law, or in which

the Commonwealth has an interest,

and any litigation or legal business

that any state officer, department,

commission, or agency may have in

connection with, or growing out of,

his of its official duties, except

where it is made the duty of the

commonwealth’s attorney or

county attorney to represent the

Commonwealth. When any

attorney is employed for any said

agency, the same shall have the

approval of such agency before

such employment.”

KRS 12.210(1) does permit the governor to approve employment of other attorneys if the Attorney General’s office cannot provide the legal services necessary—“The governor, or any department with the approval of the governor, may employ and fix their term of employment and the compensation to be paid to an attorney or attorneys for legal services to be performed for the governor or for such department.... Before approving the employment of an attorney the governor shall consult the attorney general as to whether legal services requested by

departments are available in the attorney general’s office.”
However, the effect of such approved attorneys does not exclude participation by the Attorney General’s office in cases where the Commonwealth is a party as Lewis contends.
“KRS 15.020 shall remain in full force and effect except to the extent the same is in conflict with KRS 12.200 to 12.220 and except to the extent therein provided nothing in those sections shall be construed, nor is the same intended to affect the tenure or compensation of any assistant attorney general appointed and serving pursuant to law. The governor or any department may require the advice or services of the attorney general and the assistant attorneys general in matters relating to the duties or functions of any such office or department.”
KRS 12.230 (emphasis added).
Thus, if the Office of General Counsel for the Cabinet of Human Resources or any other agency of the Commonwealth will not cooperate with defendant Lewis’ counsel from the Office of General Counsel for the Corrections Cabinet in discovery matters, the Corrections Cabinet should ask the Attorney General for assistance. If the assistance is not forthcoming, then plaintiffs are hereby granted leave to amend their complaint to add the Governor as a party.
Accordingly, the court being advised, it is hereby ORDERED AS FOLLOWS:
1. That defendant Lewis’ motions to alter or amend and to hold discovery in abeyance be, and they are, hereby DENIED;
2. That the prior discovery reference to Magistrate Judge Wehrman shall remain in effect; and
3. That plaintiffs are hereby granted leave to amend their complaint to add the Governor of the Commonwealth as a party, if they so desire.
	  

2