CLOSED,APPEAL,CASREF,CLASS,EXH,PROTO
U.S. District Court Western District of Virginia (Harrisonburg) CIVIL DOCKET FOR CASE #: 5:17−cv−00097−EKD−JCH

Doe 4 v. Shenandoah Valley Juvenile Center Commission Assigned to: Judge Elizabeth K. Dillon Referred to: Magistrate Judge Joel C. Hoppe Case in other court: 4CCA, 19−01910 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/04/2017 Date Terminated: 07/23/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

John Doe by and through his next friend, Nelson Lopez, on behalf of himself and all persons similarly situated TERMINATED: 07/11/2018

represented by Bradley Clark Tobias Wiley Rein LLP 1776 K Street N.W. Washington, DC 20006 202−719−4567 Email: btobias@wileyrein.com TERMINATED: 07/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Tschiderer Dinan A Better Balance 40 Worth Street, 10th Floor New York, NY 10013 212−430−5982 x 130 Fax: 917−720−9929 Email: cdinan@abetterbalance.org TERMINATED: 05/18/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hannah E.M. Lieberman Washington Lawyers Committee For Civil Rights and Urban Affairs 700 14th St, NW, Suite 400 Washington, DC 20005 202−319−1000 x 130 Fax: 202−319−1010 Email: hannah_lieberman@washlaw.org TERMINATED: 07/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore Augustus Howard Wiley Rein LLP 1776 K Street N.W. Washington, DC 20006 202−719−7120 Fax: 202−719−7049 Email: thoward@wileyrein.com TERMINATED: 07/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tiffany S. Yang Washington Lawyers Committee For Civil Rights and Urban Affairs 700 14th St, NW, Suite 400 Washington, DC 20005

Plaintiff John Doe 2 TERMINATED: 07/11/2018
Plaintiff John Doe 3 TERMINATED: 07/11/2018
Plaintiff John Doe 4 by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated

202−319−1000 Fax: 202−319−1010 Email: tiffany_yang@washlaw.org TERMINATED: 07/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bradley Clark Tobias (See above for address) TERMINATED: 07/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Tschiderer Dinan (See above for address) TERMINATED: 05/18/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tiffany S. Yang (See above for address) TERMINATED: 07/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bradley Clark Tobias (See above for address) TERMINATED: 07/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Tschiderer Dinan (See above for address) TERMINATED: 05/18/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tiffany S. Yang (See above for address) TERMINATED: 07/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin Cairns Eggert Wiley Rein, LLP 1776 K Street NW Washington, DC 20006 202−719−7336 Fax: 202−719−7207 Email: beggert@wileyrein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hannah E.M. Lieberman (See above for address) LEAD ATTORNEY PRO HAC VICE

V.
Defendant
Shenandoah Valley Juvenile Center Commission

ATTORNEY TO BE NOTICED
James Ryan Frazee Wiley Rein LLP 1776 K Street N.W. Washington, DC 20006−2304 202−719−3751 Email: jfrazee@wileyrein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mirela Emilova Missova Washington Lawyers Committee For Civil Rights and Urban Affairs 700 14th St, NW, Suite 400 Washington, DC 20005 202−319−1000 Fax: 202−319−1010 Email: mirela_missova@washlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiffany S. Yang Washington Lawyers Committee for Civil Rights and Urban Affairs 11 Dupont Cirlce NW, Suite 400 Washington, DC 20036 202−319−1000 Fax: 202−319−1010 Email: tiffany_yang@washlaw.org TERMINATED: 07/19/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Clark Tobias (See above for address) TERMINATED: 11/16/2018 ATTORNEY TO BE NOTICED
represented by Harold Edward Johnson Williams Mullen − Richmond 200 South 10th Street, Suite 1600 Richmond, VA 23219 804−783−6447 Fax: 804−783−6507 Email: hjohnson@williamsmullen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Botkins Litten & Sipe, L.L.P. 410 Neff Avenue

Harrisonburg, VA 22801 540−434−5353 Email: jason.botkins@littensipe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melisa G. Michelsen LITTEN & SIPE LLP 410 NEFF AVENUE HARRISONBURG, VA 22801 540−434−5353 Fax: 540−434−6069 Email: mgm@littensipe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meredith M. Haynes Williams Mullen 200 South 10th Street Richmond, VA 23219 804−420−6000 Fax: 804−420−6507 Email: mhaynes@williamsmullen.com ATTORNEY TO BE NOTICED

Date Filed 10/04/2017
10/04/2017 10/04/2017 10/05/2017 10/18/2017 11/03/2017 11/03/2017 11/03/2017 11/03/2017 11/03/2017 11/07/2017
11/09/2017 12/04/2017
12/14/2017

# Docket Text
1 COMPLAINT against Shenandoah Valley Juvenile Center Commission (Filing & Administrative fee $ 400.00, Receipt No 0423−2761226), filed by John Doe. (Attachments: # 1 Civil Cover Sheet)(jat)
2 MOTION to Proceed by Fictitious Name re 1 Complaint by John Doe. (jat)
3 Brief in Support re 2 MOTION to Proceed by Fictitious Name re 1 Complaint filed by John Doe. (jat)
4 Summons Issued as to Shenandoah Valley Juvenile Center Commission.(jat)
5 SUMMONS Returned Executed by John Doe. Shenandoah Valley Juvenile Center Commission served on 10/16/2017, answer due 11/6/2017.(kld) (Entered: 10/19/2017)
6 NOTICE of Appearance by Jason Botkins on behalf of Shenandoah Valley Juvenile Center Commission (Botkins, Jason)
7 Negative Corporate Disclosure Statement by Shenandoah Valley Juvenile Center Commission (Botkins, Jason)
8 ANSWER to 1 Complaint by Shenandoah Valley Juvenile Center Commission.(Botkins, Jason)
9 Magistrate Consent Notice to Parties. (jat)
10 Scheduling Letter to parties. (jat)
11 NOTICE of Hearing: (N) (No Interpreter requested) Rule 16 Status Conference set for December 4, 2017 at 10:00 AM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties.)(mf)
12 ORDER granting 2 Motion to Proceed by Fictitious Name. Signed by District Judge Elizabeth K. Dillon on 11/9/2017. (jat)
13 Minute Entry for proceedings held before District Judge Elizabeth K. Dillon and Magistrate Judge Joel C. Hoppe: Scheduling Conference Call held in chambers on 12/4/2017. (kld)
14 NOTICE of Hearing: (N) (No Interpreter requested) Status Conference set for January 9, 2018 at 10:00 AM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties by email.) (mf)

01/08/2018 01/09/2018
01/09/2018 01/18/2018
01/22/2018
01/23/2018 01/24/2018 01/31/2018 01/31/2018
02/02/2018 02/02/2018 02/14/2018 02/20/2018 02/23/2018 02/23/2018 02/26/2018 02/27/2018 02/28/2018 02/28/2018

15 Consent MOTION for Hannah E. Lieberman to Appear Pro Hac Vice. by John Doe. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Dinan, Christine)
16 In Chambers Minute Order for Proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 1/9/2018. ORAL ORDER granting plaintiff leave to amend the complaint, to be filed by COB 1/31/18. Proposed scheduling order to be filed with the Court once parties have conferred. (bw)
17 ORDER granting 15 MOTION for Hannah E. Lieberman to Appear Pro Hac Vice. Attorney Hannah E.M. Lieberman for John Doe added. Signed by District Judge Elizabeth K. Dillon on 1/9/2018. (jv) (Entered: 01/10/2018)
18 NOTICE of Hearing: (CR) (No Interpreter requested) Jury Trial set for December 3−7, 2018 at 9:30 AM in Harrisonburg before District Judge Elizabeth K. Dillon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (mf)
19 SCHEDULING ORDER:( Jury Trial set for 12/3/2018−12/7/2018 09:30 AM in Harrisonburg before District Judge Elizabeth K. Dillon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs.), Order Referring Case to Magistrate Judge Joel C. Hoppe. Signed by District Judge Elizabeth K. Dillon on 1/19/2018. (jv)
20 Consent MOTION for Theodore A. Howard to Appear Pro Hac Vice. by John Doe.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Dinan, Christine)
21 Oral ORDER granting 20 MOTION for Theodore A. Howard to Appear Pro Hac Vice in this case. Entered by Magistrate Judge Joel C. Hoppe on 1/24/18. (JCH)
22 AMENDED COMPLAINT against Shenandoah Valley Juvenile Center Commission, filed by John Doe, John Doe 2, John Doe 3.(Dinan, Christine)
23 Consent MOTION to Proceed by Fictitious Name by John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Brief in Support of Plaintiffs' Unopposed Motion to Proceed by Fictitious Name, # 2 Text of Proposed Order)(Dinan, Christine)
24 ORDER granting 23 Motion to Proceed by Fictitious Names. Signed by Magistrate Judge Joel C. Hoppe on 2/2/18. (kld)
25 NOTICE of Appearance by Bradley Clark Tobias on behalf of All Plaintiffs (Tobias, Bradley)
26 ANSWER to 22 Amended Complaint by Shenandoah Valley Juvenile Center Commission.(Botkins, Jason)
27 MOTION for Protective Order by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Memorandum of Law in Support of Plaintiffs' Motion for Protective Order, # 2 Exhibit 1)(Dinan, Christine)
28 Consent MOTION to Seal Declarations by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Dinan, Christine)
29 Brief / Memorandum in Support re 28 Consent MOTION to Seal Declarations . filed by John Doe, John Doe 2, John Doe 3. (Dinan, Christine)
30 ORDER granting 28 Motion to File Declarations Under Seal. Signed by Magistrate Judge Joel C. Hoppe on 2/26/18. (kld)
31 Consent MOTION for Leave to File Excess Pages by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Dinan, Christine)
32 ORDER granting 31 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Joel C. Hoppe on 2/28/18. (kld)
33 WITHDRAWN ON 8/22/2018 PURSUANT TO DOCUMENT #82. MOTION for Preliminary Injunction by John Doe, John Doe 2, John Doe 3.(Attachments: # 1 Text

02/28/2018
03/06/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/12/2018 03/19/2018 03/21/2018
03/26/2018
03/27/2018 04/02/2018 04/02/2018

of Proposed Order)(Tobias, Bradley) Modified to remove mag. judge referral on 3/1/2018 (jv). Modified on 8/22/2018 doc withdrawn (jv).
34 Brief / Memorandum in Support re 33 MOTION for Preliminary Injunction . filed by John Doe, John Doe 2, John Doe 3. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Tobias, Bradley) (Additional attachment(s) added on 3/6/2018: # 9 Exhibit 1−unredacted declaration, # 10 Exhibit unredacted declaration, # 11 Exhibit unredacted declaration, # 12 Exhibit unredacted declaration, # 13 Exhibit unredacted declaration, # 14 Exhibit unredacted declaration) (kld).
35 RESPONSE in Opposition re 27 MOTION for Protective Order . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Botkins, Jason)
36 Consent MOTION for Protective Order by John Doe.Motions referred to Judge Joel C. Hoppe. (Tobias, Bradley)
37 MOTION for Leave to File Excess Pages by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
38 MOTION to Seal Document by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
39 Brief / Memorandum in Support re 38 MOTION to Seal Document . filed by Shenandoah Valley Juvenile Center Commission. (Botkins, Jason)
40 ORDER granting 37 Motion for Leave to File Excess Pages. Brief may not exceed 40 pages. Signed by Magistrate Judge Joel C. Hoppe on 3/9/18. (kld)
41 ORDER granting 36 Consent Motion for Agreed−Upon Protective Order. Signed by Magistrate Judge Joel C. Hoppe on 3/9/18. (kld)
42 Oral ORDER finding as moot 27 Motion for Protective Order. Entered by Magistrate Judge Joel C. Hoppe on 3/9/18. (JCH)
43 ORDER granting 38 Motion to File Exhibits Under Seal. Signed by Magistrate Judge Joel C. Hoppe on 3/12/18. (kld)
44 Rule 26(f) Agreed Written Plan by Plaintiffs John Doe, John Doe 2, John Doe 3 (Dinan, Christine)
45 Brief / Memorandum in Opposition re 33 MOTION for Preliminary Injunction . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Affidavit Kelsey Wong, # 2 Affidavit Elsa Gallardo, # 3 Affidavit Emily Twigg, # 4 Affidavit Elizabeth Ropp, # 5 Affidavit Carina Contreras)(Botkins, Jason) (Additional attachment(s) added on 3/22/2018: # 6 Exhibit Unredacted Wong Affidavit, # 7 Exhibit B Unredacted Gallardo Affidavit, # 8 Exhibit C Unredacted Twigg Affidavit, # 9 Exhibit D Unredacted Ropp Affidavit, # 10 Exhibit E Unredacted Contreras Affidavit) (kld). Sealed attachments added as per order at doc #43.
46 Consent MOTION for Extension of Time to File Response/Reply in Support of Plaintiffs' Motion for Preliminary Injunction by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Dinan, Christine)
47 ORDER granting 46 Motion for Extension of Time to File Response/Reply. Replies due by 4/2/2018. Signed by Magistrate Judge Joel C. Hoppe on 3/27/18. (kld)
48 Second MOTION for Extension of Time to File Response/Reply and Leave to File a Brief Exceeding 25 Pages by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Dinan, Christine)
49 ORDER granting 48 Motion for Extension of Time to File Response/Reply and to exceed page limit. Plaintiff's reply due by 4/4/2018. Signed by Magistrate Judge Joel C. Hoppe on 4/2/18. (kld)

04/04/2018 04/20/2018 04/20/2018 05/04/2018 05/18/2018 05/21/2018 05/21/2018 05/21/2018 05/25/2018 06/14/2018 06/22/2018 06/26/2018 06/26/2018 06/27/2018 07/03/2018 07/09/2018 07/11/2018
07/11/2018 07/25/2018 07/27/2018

50 REPLY to Response to Motion re 33 MOTION for Preliminary Injunction . filed by John Doe, John Doe 2, John Doe 3. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Dinan, Christine)
51 Consent MOTION for Extension of Time to File Motion for Class Certification by John Doe.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
52 ORDER granting 51 Motion for Extension of Time to File Document. Signed by Magistrate Judge Joel C. Hoppe on 4/20/18. (kld)
53 Consent MOTION to Certify Class by John Doe. (Howard, Theodore)
54 NOTICE by John Doe, John Doe 2, John Doe 3 of Withdrawal of Appearance of Co−Counsel of Record (Dinan, Christine)
55 MOTION for Protective Order by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order 1)(Botkins, Jason)
56 Brief / Memorandum in Support re 55 MOTION for Protective Order . filed by Shenandoah Valley Juvenile Center Commission. (Botkins, Jason)
57 ORDER granting 55 Motion for Protective Order. Signed by Magistrate Judge Joel C. Hoppe on 5/21/2018. (jv)
58 NOTICE of Hearing on Motion 33 MOTION for Preliminary Injunction : (CR) (No Interpreter requested) Motion Hearing set for September 10−12, 2018 at 9:00 AM in Harrisonburg before District Judge Elizabeth K. Dillon. (mf)
59 NOTICE of Hearing: (N) (No Interpreter requested) Status Conference set for July 3, 2018 at 9:00 AM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties.)(mf)
60 Notice Regarding Status Conference (by telephone conference call) (CR) (No Interpreter requested) set for July 3, 2018 at 9:00 a.m. before Judge Dillon −−− edited to add Court Reporter. (Parties have received the dial−in instructions). (mf)
61 Consent MOTION for Tiffany S. Yang to Appear Pro Hac Vice. by John Doe, John Doe 2, John Doe 3.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit 1, Cert. of Good Standing, # 2 Text of Proposed Order)(Tobias, Bradley)
62 ORDER granting 61 MOTION for Tiffany S. Yang to Appear Pro Hac Vice. Attorney Tiffany S. Yang for John Doe, John Doe 2, John Doe 3 added.. Signed by District Judge Elizabeth K. Dillon on 6/26/2018. (jv)
63 ORDER granting 53 Motion to Certify Class. Signed by District Judge Elizabeth K. Dillon on 6/27/2018. (jv)
64 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 7/3/2018. (Court Reporter: J. Webb) (bw)
66 MOTION for Leave to File Second Amended Complaint by John Doe.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Second Amended Complaint, # 2 Exhibit Proposed Order)(Tobias, Bradley)
67 ORAL ORDER granting 66 Motion for Leave to File Second Amended Complaint. Plaintiff is to file the Second Amended Complaint as a separate docket entry in this case within 5 days of this oral order. Entered by District Judge Elizabeth K. Dillon on 7/11/2018. (mf)
68 AMENDED COMPLAINT , Second Amended Class Action Complaint against John Doe 4, filed by John Doe 4.(Tobias, Bradley)
69 ANSWER to 68 Amended Complaint by Shenandoah Valley Juvenile Center Commission.(Botkins, Jason)
70 Consent MOTION to Substitute Party as Class Representative by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)

07/27/2018 08/08/2018 08/14/2018 08/17/2018 08/21/2018 08/21/2018 08/21/2018 08/21/2018 08/21/2018 08/22/2018 08/22/2018
08/22/2018 08/22/2018 08/22/2018
08/22/2018 08/22/2018 10/08/2018
10/09/2018 10/16/2018

71 Memorandum of Law in Support re 70 MOTION to Substitute Party as Class Representative by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore) Modified on 7/30/2018, to update docket text (bw).
72 ORDER granting 70 Motion to Substitute Party. Signed by Magistrate Judge Joel C. Hoppe on 8/8/18. (kld)
73 MOTION to Amend/Correct Scheduling Order by John Doe 4. Motion no longer referred to Judge Joel C. Hoppe. (Howard, Theodore) Modified on 8/17/2018 to remove referral (jv).
74 NOTICE of Hearing: (N) (No Interpreter requested) Status Conference set for August 21, 2018 at 2:00 PM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties.)(mf)
75 NOTICE of Appearance by Harold Edward Johnson on behalf of Shenandoah Valley Juvenile Center Commission (Johnson, Harold)
76 NOTICE of Appearance by Meredith M. Brebner on behalf of Shenandoah Valley Juvenile Center Commission (Brebner, Meredith)
77 Consent MOTION for Mirela Missova to Appear Pro Hac Vice. by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Cert. of Good Standing, # 2 Text of Proposed Order)(Tobias, Bradley)
78 Oral ORDER granting 77 MOTION for Mirela Missova to Appear Pro Hac Vice in this case. Entered by Magistrate Judge Joel C. Hoppe on 8/21/18. (JCH)
79 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 8/21/2018. (bw)
80 ORAL ORDER granting 73 Motion to Amend/Correct. An amended scheduling order will be entered by the court. Entered by District Judge Elizabeth K. Dillon on August 22, 2018. (mf)
81 AMENDED SCHEDULING ORDER:( Bench Trial set for 12/17/2018 − 12/21/2018 09:30 AM in Harrisonburg before District Judge Elizabeth K. Dillon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs.). Signed by District Judge Elizabeth K. Dillon on 8/22/2018. (jv) Modified on 8/22/2018 to add bench trial date(jv).
82 ORAL ORDER withdrawing 33 Motion for Preliminary Injunction at the parties' request. Entered by District Judge Elizabeth K. Dillon on 8/22/2018. (mf)
83 Notice of Cancellation of September 10−12, 2018 Preliminary Injunction Hearing (No Interpreter requested) (Cancel Court Reporter) (mf)
84 Notice Rescheduling Hearing (CR) (No Interpreter requested) jury trial previously set for December 3−7, 2018 −−−− Bench Trial set for December 17−21, 2018 at 9:30 AM in Harrisonburg before District Judge Elizabeth K. Dillon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (mf)
85 NOTICE of Hearing: (CR) (No Interpreter requested) Pretrial Conference set for December 3, 2018 at 10:00 AM in Harrisonburg before District Judge Elizabeth K. Dillon. (mf)
86 Notice of Correction: Document 33 MOTION for Preliminary Injunction was WITHDRAWN pursuant to Document #82 Oral Order. (jv)
87 Consent MOTION for J. Ryan Frazee to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0423−2992589. by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Cert. of Good Standing, # 2 Text of Proposed Order)(Tobias, Bradley)
88 Oral ORDER granting 87 MOTION for James Ryan Frazee to Appear Pro Hac Vice in this case.. Entered by Magistrate Judge Joel C. Hoppe on 10/9/18. (JCH)
89 MOTION to Seal by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Botkins,

10/16/2018 10/16/2018 10/17/2018 10/17/2018
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10/22/2018 10/22/2018
10/22/2018

Jason)
90 Brief / Memorandum in Support re 89 MOTION to Seal . filed by Shenandoah Valley Juvenile Center Commission. (Botkins, Jason)
91 ORDER granting 89 Motion to Seal. Signed by Magistrate Judge Joel C. Hoppe on 10/16/18. (kld)
92 MOTION for Protective Order by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
93 Brief / Memorandum in Support re 92 MOTION for Protective Order . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Botkins, Jason) (Additional attachment(s) added on 10/18/2018: # 4 Unredacted exhibit 1, # 5 Unredacted Exhibit 2) (jv).
94 MOTION for Leave to File Excess Pages by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
95 ORDER granting 94 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Joel C. Hoppe on 10/19/2018. (jv)
96 MOTION to Seal Exhibits by Shenandoah Valley Juvenile Center Commission.Motions referred to Judge Joel C. Hoppe. (Johnson, Harold)
97 Brief / Memorandum in Support re 96 MOTION to Seal Exhibits . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Text of Proposed Order)(Johnson, Harold)
98 ORDER granting 96 Motion to Seal Exhibits. Signed by Magistrate Judge Joel C. Hoppe on 10/19/18. (kld)
99 MOTION for Summary Judgment by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
100 Brief / Memorandum in Support re 99 MOTION for Summary Judgment . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Botkins, Jason) (Additional attachment(s) added on 10/23/2018: # 14 Exhibit F Unredacted, # 15 Exhibit G Unredacted, # 16 Exhibit H Unredacted) (jv).
101 MOTION in Limine to Exclude the Expert Testimony of Dr. Andrea Weisman by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
102 Brief / Memorandum in Support re 101 MOTION in Limine to Exclude the Expert Testimony of Dr. Andrea Weisman . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5−1, # 6 Exhibit Ex. 5−2, # 7 Exhibit Ex. 5−3, # 8 Exhibit Ex. 5−4, # 9 Exhibit Ex. 5−5, # 10 Exhibit Ex. 6)(Haynes, Meredith) (Additional attachment(s) added on 10/23/2018: # 11 Unredacted Exhibit 3) (jv).
103 MOTION in Limine to Exclude the Expert Testimony of Dr. Paul Diver by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
104 Brief / Memorandum in Support re 103 MOTION in Limine to Exclude the Expert Testimony of Dr. Paul Diver . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Haynes, Meredith) (Additional attachment(s) added on 10/23/2018: # 7 Unredacted Exhibit 2, # 8 Unredacted Exhibit 3, # 9 Unredacted Exhibit 6) (jv). Modified on 11/2/2018, Redacted version on Exhibit 6 filed as 114 (bwd).
105 MOTION in Limine to Exclude the Expert Testimony of Gregory N. Lewis, Psy.D. by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)

10/22/2018
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11/07/2018
11/07/2018 11/07/2018 11/07/2018

106 Brief / Memorandum in Support re 105 MOTION in Limine to Exclude the Expert Testimony of Gregory N. Lewis, Psy.D. . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Haynes, Meredith) (Additional attachment(s) added on 10/23/2018: # 4 Unredacted Exhibit C) (jv). Modified on 10/23/2018 (jv).
107 MOTION to Compel Discovery and for Modification of the Amended Scheduling Order by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
108 Brief / Memorandum in Support re 107 MOTION to Compel Discovery and for Modification of the Amended Scheduling Order . filed by John Doe 4. (Howard, Theodore)
109 Brief / Memorandum in Opposition re 92 MOTION for Protective Order . filed by John Doe 4. (Howard, Theodore)
110 MOTION for Extension of Time to File Responsive Memoranda and to Exceed Page Limit by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
111 ORDER granting 110 Motion for Extension of Time to File Document and to Exceed page limit. Signed by Magistrate Judge Joel C. Hoppe on 11/1/18. (kld)
112 RESPONSE in Opposition re 107 MOTION to Compel Discovery and for Modification of the Amended Scheduling Order . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Haynes, Meredith) Modified on 11/5/2018, to restrict Exhibit A−C due to redacted versions being filed at documents 115 , 116 , 117 (bwd).
113 NOTICE of Telephonic Hearing on Motion 107 MOTION to Compel Discovery and for Modification of the Amended Scheduling Order : (FTR) Telephonic Motion Hearing set for 11/5/2018 01:00 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial in information.(kld)
114 Amended Exhibit 6 to Document 104 with supplemental redactions (Haynes, Meredith)
115 Amended Exhibit A to Document 112 with redactions (Haynes, Meredith)
116 Amended Exhibit B to Document 112 with redactions (Haynes, Meredith)
117 Amended Exhibit C to Document 112 with redactions (Haynes, Meredith)
118 ORDER granting 107 Motion to Compel and extend deadlines in scheduling order. Signed by Magistrate Judge Joel C. Hoppe on 11/5/18. (kld)
119 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephone Motion Hearing held on 11/5/2018 on 107 MOTION to Compel Discovery and for Modification of the Amended Scheduling Order. (FTR Operator: H. Wheeler) (hnw)
120 FTR Log Notes for Telephonic Motion Hearing in the Charlottesville Division in CR3 held before Judge Joel C. Hoppe on 11/5/18. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: H. Wheeler (hnw)
121 REPLY TO RESPONSE IN OPPOSITION to 109 Brief / Memorandum in Opposition to 92 MOTION for Protective Order . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit)(Botkins, Jason) Modified on 11/8/2018 to show this is a reply brief (kld).
122 Consent MOTION to Seal Exhibits by John Doe 4.Motions referred to Judge Joel C. Hoppe. (Tobias, Bradley)
123 Brief / Memorandum in Support re 122 Consent MOTION to Seal Exhibits . filed by John Doe 4. (Attachments: # 1 Text of Proposed Order)(Tobias, Bradley)
124 RESPONSE in Opposition re 103 MOTION in Limine to Exclude the Expert Testimony of Dr. Paul Diver . filed by John Doe 4. (Howard, Theodore) (Additional attachment(s) added on 11/13/2018: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit F, # 4

11/07/2018 11/07/2018
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Exhibit G, # 5 Exhibit I, # 6 Exhibit J, # 7 Exhibit L, # 8 Exhibit M, # 9 Exhibit N, # 10 Errata O, # 11 Exhibit P, # 12 Exhibit A, # 13 Exhibit B, # 14 Exhibit E, # 15 Exhibit H, # 16 Exhibit K, # 17 Exhibit Q) (jv).
125 RESPONSE in Opposition re 101 MOTION in Limine to Exclude the Expert Testimony of Dr. Andrea Weisman . filed by John Doe 4. (Howard, Theodore)
126 RESPONSE in Opposition re 105 MOTION in Limine to Exclude the Expert Testimony of Gregory N. Lewis, Psy.D. . filed by John Doe 4. (Howard, Theodore) (Additional attachment(s) added on 11/13/2018: # 1 Exhibit C, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit L, # 5 Exhibit N, # 6 Exhibit O) (jv). (Additional attachment(s) added on 11/13/2018: # 7 Exhibit A, # 8 Exhibit B, # 9 Exhibit D, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Errata J, # 14 Errata K, # 15 Errata M) (jv).
128 ORDER granting 122 Motion to Seal. Signed by Magistrate Judge Joel C. Hoppe on 11/8/18. (kld)
129 RESPONSE in Opposition re 99 MOTION for Summary Judgment (corrected copy). filed by John Doe 4. (Howard, Theodore)
Notice of Correction Document viewing restricted of document 127 Brief / Memorandum in Opposition, due to attorney filing incorrect document. Correct document filed at document 129 Response in Opposition to Motion (bwd)
130 ORAL ORDER directing the parties to file proposed findings of fact and conclusions of law no later than seven days before trial. Entered by District Judge Elizabeth K. Dillon on 11/9/2018. (ekd−lc2)
131 MOTION in Limine by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Text of Proposed Order)(Botkins, Jason)
132 Brief / Memorandum in Support re 131 MOTION in Limine . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit, # 2 Exhibit)(Botkins, Jason)
133 Witness List by Shenandoah Valley Juvenile Center Commission.(Botkins, Jason)
134 Exhibit List by Shenandoah Valley Juvenile Center Commission..(Botkins, Jason)
135 Exhibit List by John Doe 4..(Howard, Theodore)
136 Witness List by John Doe 4.(Howard, Theodore)
137 NOTICE of Hearing: (N) (No Interpreter requested) Status Conference set for November 15, 2018 at 10:00 AM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties.)(mf)
138 RESPONSE in Support re 105 MOTION in Limine to Exclude the Expert Testimony of Gregory N. Lewis, Psy.D. . filed by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
139 RESPONSE in Support re 103 MOTION in Limine to Exclude the Expert Testimony of Dr. Paul Diver . filed by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
140 RESPONSE in Support re 101 MOTION in Limine to Exclude the Expert Testimony of Dr. Andrea Weisman . filed by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
141 MOTION for Sanctions Under Fed. R. Civ. P. 16(f) by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith) Modified on 11/16/2018 to remove mag judge referral(jv).
142 Brief / Memorandum in Support re 141 MOTION for Sanctions Under Fed. R. Civ. P. 16(f) . filed by Shenandoah Valley Juvenile Center Commission. (Haynes, Meredith)
143 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 11/15/2018. The parties are directed to file objections to witness and exhibit lists on or before Tuesday, November 20, 2018. The pre trial conference on December 3rd, 2018 has been extended to last

11/15/2018 11/16/2018 11/16/2018 11/16/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018
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from 10:00AM to 2:00PM. (Modified on 11/15/2018 to include information about the pre trial conference) (bwd)
144 Notice Regarding Representation filed by John Doe 4 (Tobias, Bradley)
145 NOTICE of Appearance by Theodore Augustus Howard on behalf of John Doe 4 (Howard, Theodore)
146 NOTICE of Telephonic Hearing on Motion 92 MOTION for Protective Order : (FTR) Telephonic Motion Hearing set for 11/28/2018 09:00 AM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial in information.(kld)
147 REPLY to Response to Motion re 99 MOTION for Summary Judgment . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Botkins, Jason)
148 Objections by Defendant Shenandoah Valley Juvenile Center Commission re 136 Witness List (Haynes, Meredith)
149 Objections by Defendant Shenandoah Valley Juvenile Center Commission re 136 Witness List (Haynes, Meredith)
150 Objections by Defendant Shenandoah Valley Juvenile Center Commission re 135 Exhibit List (Attachments: # 1 Exhibit A)(Haynes, Meredith)
151 RESPONSE in Opposition re 131 MOTION in Limine . filed by John Doe 4. (Howard, Theodore)
152 Objections by John Doe 4 re: 133 Witness List by Shenandoah Valley Juvenile Center Commission.(Howard, Theodore) Modified on 11/21/2018 to reflect the correct docket event; filer has been advised of the correct docket event to use for future filings. (jv).
153 Supplement to 136 Witness List by John Doe 4.(Howard, Theodore) Modified on 11/21/2018 to add link to related doc (jv).
154 Objections by John Doe 4 re: 134 Exhibit List by Shenandoah Valley Juvenile Center Commission .(Howard, Theodore) Modified on 11/21/2018 to reflect the correct docket event; filer has been advised of the correct docket event to use for future filings. (jv).
155 Supplement to 135 Exhibit List by John Doe 4.(Howard, Theodore) Modified on 11/21/2018 to add link to related doc (jv).
156 NOTICE Rescheduling Hearing on Motion 92 MOTION for Protective Order (FTR) previously set for 11/28/18 at 9:00 AM before Judge Hoppe Motion Hearing RESET for 11/28/2018 09:30 AM before Magistrate Judge Joel C. Hoppe. CHANGE IN TIME ONLY. Dial in information to remain the same.(kld)
157 REPLY to Response to Motion re 131 MOTION in Limine . filed by Shenandoah Valley Juvenile Center Commission. (Attachments: # 1 Exhibit)(Haynes, Meredith) Modified on 11/29/2018 Exhibit 1 sealed as it is an Unredacted version of doc# 161. (jv).
158 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Motion Hearing held on 11/28/2018 re 92 MOTION for Protective Order filed by Shenandoah Valley Juvenile Center Commission. (FTR Operator: Joyce C. Jones) (jcj)
159 FTR Log Notes for Telephonic Motion Hearing in the Charlottesville Division in CR3 held before Judge Joel C. Hoppe on 11/28/18. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: Joyce C. Jones (jcj)
160 RESPONSE in Opposition re 141 MOTION for Sanctions Under Fed. R. Civ. P. 16(f) . filed by John Doe 4. (Howard, Theodore)
161 Amended Exhibit to Document 157 with redactions (Haynes, Meredith)

11/30/2018
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162 ORDER granting in part and denying in part 92 Motion for Protective Order. Defendant is relieved of the obligation to respond to Plaintiffs RAs 197 to 215. Not later than December 5, 2018, Defendant shall respond to all other outstanding RAs. Signed by Magistrate Judge Joel C. Hoppe on 11/30/2018. (jv)
163 Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Final Pretrial Conference held on 12/3/2018. All Motions taken under advisement. The Court Orders supplemental briefing on the element of underlying constitutional violation for class action Monell claims, due by COB (11:59pm) on 12/7/2018. (Court Reporter: S. Ferris) (bwd) (Entered: 12/04/2018)
164 RESPONSE in Opposition re 99 MOTION for Summary Judgment Plaintiff's Supplemental Opposition. filed by John Doe 4. (Howard, Theodore)
165 Brief/Memorandum . filed by Shenandoah Valley Juvenile Center Commission. (Botkins, Jason)
166 Subpoena issued to Carol Brooks−Quintero, Joseph Gorin, Timothy Kane, Sheila Palmer, Kenneth Bailey, filed by Shenandoah Valley Juvenile Center Commission.(Johnson, Harold)
167 NOTICE of Hearing: (CR) (No Interpreter requested) ; Status Conference to be held by conference call set for 12/12/2018 10:00 AM before District Judge Elizabeth K. Dillon. Dial in information to be emailed to parties. (bwd)
168 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 12/12/2018. (Court Reporter: M. Butenschoen) (bwd)
169 NOTICE of Hearing: (CR) (No Interpreter requested) Status Conference set for December 13, 2018 at 10:30 AM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers will send the dial−in instructions to the parties.)(mf)
170 NOTICE of Hearing: (CR) (No Interpreter requested) Status Conference set for December 13, 2018 at 3:00 PM by telephone conference call before District Judge Elizabeth K. Dillon. (Chambers sent the dial−in instructions to the parties.(mf)
171 MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 12/13/2018. (jv)
172 ORDER granting in part and denying in part 99 Motion for Summary Judgment. Signed by District Judge Elizabeth K. Dillon on 12/13/18. (kld)
173 MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 12/13/2018. (jv)
174 ORDER granting 101 Motion in Limine; granting in part and denying in part 103 Motion in Limine; granting in part and denying in part 105 Motion in Limine; granting in part and denying in part 131 Motion in Limine; denying 141 Motion for Sanctions. Signed by District Judge Elizabeth K. Dillon on 12/13/2018. (jv)
175 Notice Rescheduling Bench Trial (CR) (No Interpreter requested) previously set for December 17−21, 2018 −−−− Bench Trial set for January 31, 2019 at 9:30 AM in Harrisonburg before District Judge Elizabeth K. Dillon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (mf)
176 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 12/13/2018 at 10:30am. (Court Reporter: J. Meyer) (bwd)
177 In Chambers Minute Entry for proceedings held before District Judge Elizabeth K. Dillon: Status Conference held by conference call on 12/13/2018 at 3:00PM. (Court Reporter: M. Butenschoen) (bwd)
178 ORDER granting proposed modified interim scheduling order. Signed by District Judge Elizabeth K. Dillon on 12/14/2018. (jv)

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179 Notice of Cancellation of January 31, 2019 Bench Trial (No Interpreter requested) (Cancel Court Reporter) (mf)
180 MOTION For Issuance of Class Notice Concerning Voluntary Dismissal of Certain Claims by John Doe 4. (Howard, Theodore) Modified on 3/18/2019 to remove mag judge referral (kld).
181 Brief / Memorandum in Support re 180 MOTION For Issuance of Class Notice Concerning Voluntary Dismissal of Certain Claims . filed by John Doe 4. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Howard, Theodore)
182 RESPONSE to Motion re 180 MOTION For Issuance of Class Notice Concerning Voluntary Dismissal of Certain Claims . filed by Shenandoah Valley Juvenile Center Commission. (Johnson, Harold)
183 ORDER granting 180 Motion For Issuance of Class Notice Concerning Voluntary Dismissal of Certain Claims. Signed by Judge Elizabeth K. Dillon on 3/19/2019. (Attachments: # 1 Exhibit A.) (jv)
184 NOTICE of Hearing: (CR) (No Interpreter requested) Court Hearing set for May 30, 2019 at 1:00 p.m. in Harrisonburg before Judge Elizabeth K. Dillon. (mf)
186 Notice of Correction: Changed viewing restriction of doc# 185 Order Referring Case for Mediation due to clerk docketing in incorrect case; only viewable by court personnel. Document correctly filed in case 5:18−cv−00097. (jv)
187 REDACTION to 124 Response in Opposition to Motion,, by John Doe 4 (Attachments: # 1 B, # 2 E, # 3 H, # 4 K, # 5 Q)(Howard, Theodore)
188 REDACTION to 126 Response in Opposition to Motion,, by John Doe 4 (Attachments: # 1 E, # 2 F, # 3 L, # 4 N, # 5 O)(Howard, Theodore)
189 REDACTION to 129 Response in Opposition to Motion by John Doe 4 (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22, # 22 Exhibit 23, # 23 Exhibit 24, # 24 Exhibit 25, # 25 Exhibit 26, # 26 Exhibit 27, # 27 Exhibit 28, # 28 Exhibit 29, # 29 Exhibit 30, # 30 Exhibit 31, # 31 Exhibit 32, # 32 Exhibit 33, # 33 Exhibit 34, # 34 Exhibit 35, # 35 Exhibit 36, # 36 Exhibit 37, # 37 Exhibit 38, # 38 Exhibit 39, # 39 Exhibit 40, # 40 Exhibit 41, # 41 Exhibit 42, # 42 Exhibit 43, # 43 Exhibit 44, # 44 Exhibit 45, # 45 Exhibit 46, # 46 Exhibit 47, # 47 Exhibit 48, # 48 Exhibit 49, # 49 Exhibit 50, # 50 Exhibit 51, # 51 Exhibit 52, # 52 Exhibit 53, # 53 Exhibit 54, # 54 Exhibit 55, # 55 Exhibit 56, # 56 Exhibit 57, # 57 Exhibit 58, # 58 Exhibit 59, # 59 Exhibit 60, # 60 Exhibit 61, # 61 Exhibit 62)(Howard, Theodore)
190 REDACTION to 164 Response in Opposition to Motion by John Doe 4 (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit O, # 15 Exhibit P, # 16 Exhibit Q, # 17 Exhibit R, # 18 Exhibit S, # 19 Exhibit T, # 20 Exhibit U)(Howard, Theodore)
191 REDACTION to 129 Response in Opposition to Motion Ex. 24 by John Doe 4 (Howard, Theodore)
192 REDACTION to Ex. 3 of Document 104 by Shenandoah Valley Juvenile Center Commission (Haynes, Meredith)
193 In Chambers Minute Entry for proceedings held before Judge Elizabeth K. Dillon: Status Conference held by conference call on 5/29/2019. (bwd)
194 Minute Entry for proceedings held before Judge Elizabeth K. Dillon: Court Hearing held by conference call on 5/30/2019. (Court Reporter: S. Ferris) (bwd)
195 REDACTION to 100 Exhibit H by Shenandoah Valley Juvenile Center Commission (Botkins, Jason)

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196 REDACTION to 100 Brief / Memorandum in Support,, Exhibit L by Shenandoah Valley Juvenile Center Commission (Botkins, Jason)
197 REDACTION to 147 Reply to Response to Motion, Exhibit F by Shenandoah Valley Juvenile Center Commission (Botkins, Jason)
198 NOTICE of Hearing: (CR) (No Interpreter requested) Court Hearing set for July 16, 2019 at 11:30 AM in Harrisonburg before Judge Elizabeth K. Dillon. (mf)
199 ORDER directing Plaintiffs' counsel to transmit the Notice to Class Members, attached hereto as Exhibit A and copy of this Order to the Office of Refugee Resettlement. Signed by Judge Elizabeth K. Dillon on 6/14/2019. (Attachments: # 1 Exhibit A)(jv)
200 Brief / Memorandum in Support re 180 MOTION For Issuance of Class Notice Concerning Voluntary Dismissal of Certain Claims . filed by John Doe 4. (Howard, Theodore)
201 Minute Entry for proceedings held before Judge Elizabeth K. Dillon: Court Hearing held on 7/16/2019. (Court Reporter: J. Meyer) (bwd)
202 MOTION to Withdraw as Attorney by John Doe 4. Motions referred to Judge Joel C. Hoppe. (Yang, Tiffany)
203 Oral ORDER granting 202 Motion to Withdraw as Attorney. Attorney Tiffany S. Yang terminated. Entered by Magistrate Judge Joel C. Hoppe on 7/19/19. (JCH)
204 FINAL JUDGMENT ORDER in favor of Shenandoah Valley Juvenile Center Commission against John Doe 4. Signed by Judge Elizabeth K. Dillon on 7/23/2019. (jv)
205 NOTICE OF APPEAL of 204 Final Judgment Order by John Doe 4. Filing fee $ 505, receipt number 0423−3210385. (Howard, Theodore) Modified on 8/21/2019 to add link (jv).
206 Transmittal of Notice of Appeal to 4CCA re 205 Notice of Appeal NOTE: The Docketing Statement and Transcript Order Form are available on the 4th Circuit Court of Appeals website at www.ca4.uscourts.gov. If CJA24 form(s) are applicable, you must submit a separate Auth−24 for each court reporter from whom you wish to order a transcript through the District Court's eVoucher system. (jv)
207 NOTICE of Docketing Record on Appeal from USCA re 205 Notice of Appeal filed by John Doe 4. USCA Case Number 19−1910. Case Manager: Ashley Brownlee. (kld)
208 USCA Appeal Transcript Order Acknowledgment for Motions/Final Pretrial Conference held on 12/3/2018, re 205 Notice of Appeal. Court Reporter: Sonia Ferris. Appeal Transcript due by 11/12/2019. (ca)
209 Appeal Transcript filed for Motions hearing for dates of 12/03/2018 before Judge Elizabeth K. Dillon, re 208 USCA Appeal Transcript Order Acknowledgment Court Reporter/Transcriber: Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov 540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Does this satisfy all appellate orders for this reporter? Yes Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 11/18/2019. Redacted Transcript Deadline set for 12/2/2019. Release of Transcript Restriction set for 1/27/2020. (sf)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

10/4/2017

JOHN DOE, by and through his next friend,

NELSON LOPEZ, on behalf of himself and all persons similarly situated,

Civil No. _5_:_1_7__C_V_0_0__0_9_7_

Plaintiff,

Jury Trial Demanded

v.

SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,

Defendant.

CLASS ACTION COMPLAINT INTRODUCTION
1. Plaintiff John Doe (“Plaintiff” or “Doe”) is a 17-year-old Latino immigrant who is confined to the Shenandoah Valley Juvenile Center (“SVJC”). He is one of approximately 30 unaccompanied immigrant minors under detention in the facility. Doe is confined solely because he crossed the United States border seeking to escape violence in Mexico without proper authorization and the Office of Refugee Resettlement of the U.S. Department of Health and Human Services (“ORR”) has determined to detain him. Doe and other similarly situated young people in SVJC are subjected to unconstitutional conditions that shock the conscience, including violence by staff, abusive and excessive use of seclusion and restraints, and the denial of necessary mental health care. As a result of this treatment, Doe has engaged in significant and continuous self-harm, to which SVJC staff and counselors have responded with callous indifference. These violations reflect a disorganized, untrained, and understaffed facility that houses immigrant children in brutal, inhumane
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conditions. 2. This is a civil action pursuant to 42 U.S.C. § 1983 to vindicate the rights of immigrant youth
detained at SVJC under the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff Doe represents a class of immigrant children who have suffered verbal and physical abuse by SVJC staff; received constitutionally inadequate mental health care; and been subjected to inappropriate confinement and seclusion while detained at SVJC. 3. On behalf of himself and all similarly situated immigrant children, Plaintiff Doe seeks declaratory, preliminary, and permanent injunctive relief requiring that Defendant cease its unconstitutional policies and practices at SVJC and provide class members with the standard of care and conditions of confinement mandated by the United States Constitution. 4. These problems are not unique to SVJC, but are part of a growing and alarming national trend of punitive, racially discriminatory conditions of confinement and systematic indifference to the suffering of immigrant detainees, who often fare worse in civil detention than those serving criminal sentences.1 5. Immigrant detainees are regularly subjected to poor sanitation, substandard medical and mental health care, excessive use of solitary confinement, and other conditions that too often result in senseless, preventable suffering and in some cases, deaths.
1 See, e.g., Conditions of Confinement in Immigration Detention Facilities, ACLU, June 27, 2007, https://www.aclu.org/sites/default/files/field_document/unsr_briefing_materials.pdf; Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, HUMAN RIGHTS WATCH, May 8, 2017, https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard-medical-care-us-immigrationdetention.
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PARTIES 6. Plaintiff John Doe is a 17-year-old native and citizen of Mexico who is currently detained
at SVJC. On behalf of himself and all similarly situated immigrant children, he brings this action by and through Nelson Lopez, his next friend. 7. Nelson Lopez is an adult resident of Virginia. He brings this action for the benefit of Doe and the class of immigrant detainees Doe seeks to represent. 8. Mr. Lopez is well-suited to serve in this role. He is currently self-employed and engaged as a community advocate at a Northern Virginia social justice organization that he cofounded. He previously worked as a paralegal at an immigration legal services organization for approximately three years. In that capacity, Mr. Lopez frequently visited detained immigrant adults and children to educate them about their legal rights and assist them in navigating the immigration legal system. 9. Mr. Lopez has met with Doe, and Doe consents to Mr. Lopez serving as his next friend. 10. The named Plaintiff’s plight echoes the stories of the many immigrant youth who have been or are now detained at SVJC. These children uniformly describe SVJC as a facility where immigrant youth languish without necessary mental health services, are regularly verbally and physically abused, harassed, and taunted by staff, and where they are subjected to harsh, disproportionate discipline for behavioral issues that are in many cases directly provoked by the abusive treatment they receive. These conditions violate the constitutional rights of the named Plaintiff and all similarly situated immigrant children, all of whom are entitled, to the extent they are properly detained at all, to reasonably safe and sanitary conditions of confinement and protection from harm. 11. Defendant Shenandoah Valley Juvenile Center Commission (“Defendant” or
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“Commission”) is a commission composed of members from seven jurisdictions in the Shenandoah Valley, including the Cities of Harrisonburg, Lexington, Staunton and Waynesboro, and the Counties of Rockingham, Augusta, and Rockbridge. The Commission owns and operates SVJC, a secure residential detention facility in Staunton, Virginia, for use by each of the member jurisdictions. 12. The Commission is a public body corporate pursuant to Va. Code § 16.1-315.
JURISDICTION AND VENUE 13. Plaintiff’s causes of action arise under the Fifth and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. § 1983. 14. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331. 15. Venue in this Court is proper under 28 U.S.C. § 1391(b)(2) because all or a substantial part
of the events or omissions giving rise to this action occurred in this District. STATEMENT OF FACTS Plaintiff’s Placement History
16. From a young age, Doe experienced significant verbal and physical abuse by his father. He was further traumatized by gang and drug violence in Mexico. In fear for his life and safety, he entered the United States to seek protection as a refugee.
17. Upon information and belief, the majority of the immigrant detainees in the purported class, most of whom have arrived from Mexico and Central America, have experienced similar trauma before arriving at SVJC. They have been severely traumatized by violence they have experienced or witnessed, either in their home countries or during their journeys to the United States.
18. Doe arrived in the United States on or about August 3, 2015. He was apprehended by
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Immigration and Customs Enforcement (“ICE”) officers at the Mexican border and was determined to be an unaccompanied alien child (“UAC”). 19. Doe was transferred to Baptist Child & Family Services (“BCFS”) San Antonio, a “staff secure” facility, on August 6, 2015. He remained there until February 10, 2016, when he was transferred to Mercy First Residential Treatment Center in New York City, allegedly for violent behavior and due to concerns for his mental health. 20. On March 24, 2016, Doe was transferred to the Northern Virginia Juvenile Detention Center (“NOVA”), another “staff secure” facility located in Alexandria, Virginia, allegedly because he was considered to be a flight risk. 21. On April 15, 2016, Doe was transferred to SVJC, a “secure” facility, allegedly due to his violent and threatening behavior. Doe has been continuously detained at SVJC since that time. 22. Behaviors perceived to be threatening or violent by staff at each of these facilities were the direct result of untreated mental illness resulting from trauma experienced by Doe in his home country. 23. In each of these placements, Doe failed to receive the mental health services necessary to allow him to live in a community setting despite that ORR is obligated by federal law to ensure that unaccompanied minors “be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
General Conditions at SVJC 24. SVJC holds an approximate average daily population of 40 youth between the ages of 10
and 17 years old. This includes both UACs and United States citizen youth who have been adjudicated juvenile delinquent.
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25. ORR, the division of the U.S. Department of Health and Human Services directly responsible for the care and custody of unaccompanied immigrant minors, has contracted with the Commission to house children whom ORR determines are UACs, requiring detention in secured conditions due to the risk of harm these UACs purportedly pose to themselves or others.
26. SVJC is currently one of only two secure facilities in the country that house detained UACs. 27. ORR’s explanation for its decision to place a child in a secure facility must be made in
writing and made available to the child. Its evaluations in this regard are to be revisited at regular intervals. Upon information and belief, ORR consistently fails to fulfill these obligations, and many of the members of the putative class that Doe seeks to represent have little to no understanding as to why they have been placed at SVJC. 28. SVJC is, both structurally and functionally, a prison. Children are not permitted to freely move about the facility and they are locked in their rooms for approximately 12-14 hours per day, including before and after meals; during staff breaks; and after 9:30 in the evening. 29. The children are fed substandard meals that contain too few calories and are often served cold. They consistently remain hungry after meals because they receive too little to eat. 30. Each child is assigned to a room with a mattress, a sink, and a toilet. There is no wall or divider enclosing the bathroom area, so the staff can see the children use the toilet through the window in the door to their room. 31. Some children have sought privacy by placing paper over this window to obscure the view from outside the room, but the staff have removed it. On at least one occasion, a staff member has stood at the window and watched Doe use the bathroom. 32. Each room is in a “pod,” which is a cluster of approximately ten rooms with a shared
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common area. 33. In the common area of each pod, there are metal tables and chairs that are bolted to the
floors. 34. The immigrant children detained at SVJC are grossly under-stimulated. Although they
receive a few hours of classroom instruction per day, much of it is either inaccessible, as the instruction is not provided in the children’s native language, or it is significantly below grade level. 35. The children are usually given just one hour of recreation time per day, which is either spent in a small gymnasium or, less frequently, in a small outdoor area that is fenced in with barbed wire. Their remaining free time is spent locked in their pods, where the only activities they are permitted are reading or playing cards with incomplete decks. 36. In the evening, the children are permitted to watch a limited amount of television, but the staff members control the TV and the children are not allowed to touch it. 37. There is a point system in place to reward children for good behavior and punish them for bad behavior. The children are required to use points if they want to have access to personal hygiene items such as toothpaste and soap. 38. Points have been taken away by SVJC staff from detained UACs for such purported “offenses” as asking the time of day and declining to read a book during the children’s designated “free time.”
Race and National Origin Discrimination by SVJC Staff 39. The majority of SVJC staff members are Caucasian and do not speak Spanish. 40. SVJC staff routinely insult, taunt, and harass the immigrant youth detained at the facility
based on their language, race, and/or national origin.
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41. One child was called a “Mexican monkey” by staff; another was told by a guard that “dark people bother me.”
42. Similarly, SVJC staff taunt the youth, calling them “criminal” and “nothing more than an immigrant,” and telling them that the only way for them to leave SVJC is to be deported.
43. Staff also frequently refuse to allow the immigrant children to watch Spanish-language programming on the communal television in their pods, commenting that they “don’t care” that the children are Latino and cannot understand an English television show.
44. SVJC staff members have taunted and harassed Doe, on a daily basis, since shortly after he arrived there. They call him names such as “pendejo” (or “idiot” in Spanish) and “onion head,” and they will intentionally provoke him, such as by dropping his clean towel on the dirty floor in front of him.
45. SVJC staff also exert their control in a way that is intended to demean and humiliate the children. Several immigrant detainees have reported being stripped of their clothes, occasionally including their underwear, while being placed on “restriction,” or confined to their rooms, as a form of punishment. There is no legitimate penological justification for such behavior.
46. SVJC staff also subject the immigrant youth to disparate discipline, doling out harsher punishments to the immigrant youth than to juvenile offenders who have engaged in the same or considerably worse behavior. Upon information and belief, the majority of the local juvenile offenders detained at SVJC are Caucasian and were born in the U.S.
47. On one occasion, Doe and a juvenile offender got into a fight after the juvenile offender had taunted Doe and told him that he “hate[d] Latinos”. When SVJC staff intervened to break up the fight, Doe was grabbed and thrown forcefully to the ground, but the juvenile offender
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was merely held by the arms and pulled away. Thereafter, Doe was restrained, tied to a chair, and hit several times by staff members while restrained. Doe was required to remain tied to the chair, in his room, for four hours. This restraint served no security or penological purpose and was legally impermissible punishment. 48. Despite the fact that local detainees have been adjudicated as juvenile delinquents, while the immigrant youth residing at SVJC have not, the local juvenile offenders are also granted more privileges than the immigrant youth. Upon information and belief, the local offenders are granted more physical freedom to move about the facility; they are given the opportunity to engage in work details; and they are provided with markers and pencils for drawing and MP3 players for listening to music. None of these privileges are afforded to the immigrant youth.
Physical Abuse by SVJC Staff 49. In addition to being called racially-charged names, Doe and other immigrant children are
frequently called “gay” or “faggot” by SVJC staff, who appear outside of their rooms and taunt them until they receive a response. 50. For Doe and other immigrant detainees, verbal abuse by staff triggers emotional responses connected to traumatic memories of past abuse that they have experienced and selfprotective behaviors. 51. Relentless verbal abuse of the immigrant youth by SVJC staff frequently escalates into physical confrontations, as the frustrated children reach their breaking points and act out. See, e.g., Santos v. Smith, No. 5:17-cv-00020, 2017 U.S. Dist. LEXIS 83909, at *38 (W.D. Va. June 1, 2017) (Dillon, J.) (noting, in a habeas petition brought by an immigrant youth detained at SVJC, that most of the petitioner’s significant behavioral problems had arisen
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after he had been in custody for over a year and were “likely . . . attributable in part to his placement at SVJC.”) 52. In such situations, SVJC staff regularly respond by physically assaulting the youth, applying an excessive amount of force that goes far beyond what is needed to establish or regain control. 53. For example, Doe once became so frustrated by a staff member’s repeated taunting that he pushed the staff member. In response, four SVJC staff members shoved Doe to the floor and piled on top of him, and they began hitting him in his abdomen with their elbows. Doe sustained significant bruising as a result. 54. On another occasion, Doe asked to come inside during his recreation time because he had a headache. SVJC staff suspected, for no apparent reason, that he may have found a piece of glass outside. Doe was thrown to the ground and forcibly strip searched, and his clothes were shredded. Though they found no contraband items, staff nevertheless transferred Doe to Alpha Pod – the pod designated for children who have engaged in bad behavior – in response to this incident. 55. Other immigrant detainees have reported similar incidents of being physically assaulted by SVJC staff after verbal altercations with them. 56. One immigrant detainee was physically assaulted because he failed to comply with a directive to leave his book in his room when he went to class. Although the child had not exhibited any physical aggression, three SVJC staff members reacted to his refusal by shoving him into his room, placing handcuffs on him, and forcing him to his knees. The staff members removed the mattress from his room and proceeded to push the youth, face down, on the concrete slab where the mattress had been. When they picked him back up,
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his face red from being pushed into the concrete, they locked him in his room for 8 hours. 57. Doe and other children have also been assaulted when they have tried to defend other
children who are being abused by staff. Doe once tried to intervene when a staff member was hitting another child. As a result, both Doe and the other child were stabbed by the staff member with a pen. 58. Doe and other children have also been assaulted by SVJC staff while they are restrained. 59. Doe has been assaulted by SVJC staff several times while he was tied to a chair. On one occasion, Doe was hit in the face and scratched by a staff member while he was restrained, and he developed a black eye and bruising. 60. Another child was punched by SVJC staff in the chin while his hands were tied behind his back, leaving a bruise. He struggled to break free, and staff members pushed him to the ground, causing him to lose consciousness. 61. As these examples demonstrate, SVJC staff regularly apply force to Doe and other putative class members maliciously and sadistically for the very purpose of causing them harm. 62. The predicate for the application of force is often manufactured by SVJC staff, as they intentionally provoke the youth to violence in order to justify physically assaulting them, purportedly as punishment. 63. The degree of force used by SVJC staff is disproportionately severe in relation to any reasonably perceived threat. SVJC staff routinely hit and/or push children to the ground for minor acts of aggression, and they assault the children after they have been restrained, when any threat that the children may have posed has been eliminated. 64. As a result of such malicious and sadistic applications of force, Doe and other immigrant youth have sustained significant injuries, both physical and psychological.
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65. Upon information and belief, and based on interviews with youth who are currently held or were recently held at SVJC, such physical abuse is routinely inflicted on putative class members. Confinement and Restraints
66. Defendant has a policy or practice of confining the immigrant detainees to their rooms for lengthy periods of time and/or using handcuffs and cloth shackles on their hands and feet to restrain them.
67. Defendant’s use of lengthy confinement and restraints are for punitive purposes. 68. Immigrant youth are confined to their rooms for minor behavioral infractions, including
arguing over the television, not participating in class, and complaining about a headache. 69. Confinement and restraints are also used when youth fight with one another, fight with staff,
or engage in self-harm. 70. The decision to use restraints on a child for “fighting” is often made haphazardly, and
children have been restrained merely for being present when a fight breaks out. 71. Moreover, the children are restrained long after any safety or security justification for doing
so has expired. 72. Doe was once forced to wear handcuffs on his wrists and shackles on his feet for
approximately 10 days in a row after an altercation with a staff member. The staff member entered Doe’s room without his consent and provoked an altercation during which the staff member hit Doe and Doe bit the staff member. Thereafter, the staff member beat Doe, leaving him with bruises on his neck and arms. Subsequently, Doe was placed in the restraints. 73. During the time that a child is forced to wear the restraints, they are removed only while he
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sleeps or eats alone in his room. 74. Doe and other children have suffered serious physical and emotional harm from Defendant’s
use of restraints. The restraints are very tight, often leaving bruises and cuts on the children’s wrists after they have been taken off. Doe has complained about this and shown his injuries to SVJC staff and to ORR’s on-site representatives, but they have taken no actions to remedy it. 75. Doe and other children have also been confined to their rooms for 24 hours or more at a time. On some occasions the children are stripped of their clothes, including their underwear, during such lengthy periods of confinement. 76. Doe has also been tied to a chair, on multiple occasions, as a form of punishment. He has remained tied to a chair for several hours at a time. 77. There is no legitimate penological justification for using confinement or restraints in this manner, as they are used long after control of the subject child has been secured and there is no threat of further violence. Defendant’s conduct is motivated by a desire to harass or humiliate the detained children in their care or to provoke a response that justifies the use of force by staff.
Inadequate Mental Health Care 78. Defendant fails to provide minimally adequate mental health services for the immigrant
detainees in its custody and is deliberately indifferent to their serious medical needs. 79. Defendant has a policy or practice of denying Doe and putative class members access to
appropriate mental health treatment and counseling with licensed health professionals, in violation of well-established professional standards. 80. Most SVJC staff members are unable to recognize and properly react to the obvious needs
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of youth with known, demonstrable, serious mental health disorders and instead further taunt and harass the children when they exhibit signs of distress. 81. Approximately two weeks after his arrival at SVJC, Doe was evaluated by a psychologist, Dr. Gustavo Rife, and diagnosed with conduct disorder, disruptive mood dysregulation, and depressive disorder. Doe has not received any further care, treatment, or evaluations from Dr. Rife, or from any other psychologist at the initiative or direction of SVJC, since that time. 82. Since his initial psychological evaluation, attention to Doe’s mental health has been primarily provided by Evenor Aleman, a licensed professional counselor, with whom he meets on a weekly basis. 83. SVJC staff are not trained to appropriately deal with trauma. Although the effects of trauma on unaccompanied immigrant children are widely known, SVJC staff fail to recognize it in the children entrusted to their care, and they fail to supervise immigrant detainees with a trauma-informed approach, focusing only on maintaining control and discipline. 84. Approximately six weeks after he arrived at SVJC, Doe first disclosed to Mr. Aleman that he had engaged in self-harm. 85. Prior to his arrival in the United States, Doe had not engaged in self-harm. He reports that he learned this behavior while in ORR custody. 86. Since he has been detained at SVJC, Doe has regularly engaged in self-harm by cutting his wrists with a piece of glass or plastic and occasionally by banging his head against the wall or floor. 87. Doe cuts himself to deal with his feelings of desperation and helplessness, and as a way to escape. Upon information and belief, these are symptoms of his past trauma and untreated
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mental health conditions, which are exacerbated by the conditions in the facility and the treatment he is subjected to by staff. 88. On or about August 21, 2017, Doe attempted suicide by tying a part of a curtain around his throat. He repeatedly expresses a desire to kill himself. 89. Other immigrant youth have also engaged in cutting and other self-harming behaviors, including ingesting shampoo and attempting to choke themselves. 90. This self-harming behavior is a manifestation of serious mental health need. 91. SVJC staff are aware that Doe and other immigrant youth engage in cutting and other selfharming behaviors. Staff members have seen the visible scarring on Doe’s wrists, a distinct marker of self-mutilation, and Doe has reported these behaviors to Mr. Aleman on multiple occasions. 92. SVJC staff are deliberately indifferent to the children’s serious mental health needs, as they are aware of the harm that Doe and others are causing themselves by cutting and other behaviors, and they disregard the excessive risk of future harm – namely, serious injury and possibly death – to the children’s health and safety if they do not receive appropriate treatment for these needs. 93. SVJC staff have told Doe, on multiple occasions, that they “don’t care” that he is cutting himself. Other youth have similarly been told, “Kill yourself already,” by SVJC staff when they have learned that the youth have engaged in cutting. 94. Rather than treat the underlying causes of this behavior, SVJC staff punish Doe and others for it. Engaging in self harm is considered a “bad behavior” which is punishable by segregation and confinement and/or use of shackles. Doe has occasionally been tied to a chair as punishment for self-harm.
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95. When SVJC staff discovered and interrupted Doe’s most recent suicide attempt, they removed all of his clothes and placed him on restriction for several days, allowing him to leave his room only for classes.
96. Similarly, when another child once attempted to choke himself, SVJC staff responded by taking all of his clothes away, including his underwear, and confining him to his room, naked, for more than 8 hours. Upon information and belief, he received no other treatment.
97. Isolating children who are suicidal is extremely damaging, and violates well-established professional standards.
98. Doe has been and continues to be harmed by the lack of appropriate, trauma-informed mental health treatment. CLASS ACTION ALLEGATIONS
99. The named Plaintiff brings this suit on his own behalf and on behalf of all UACs who are, or will in the future be, detained at SVJC.
100. The class is so numerous that joinder of all members is impractical. SVJC has the capacity to house 63 youth at one time and approximately 30 immigrant youth are detained there currently. Further, because children remain at SVJC for varying lengths of time, and the population changes on a daily basis, the class also includes future members whose names are not known at this time. Fed. R. Civ. P. 23(a)(1).
101. There are questions of law and fact common to all class members, including but not limited to the Defendant’s failure to protect class members from harm; the Defendant’s failure to provide class members with constitutionally adequate mental health care; the Defendant’s policy and practice of subjecting class members to inappropriate restraint and prolonged periods of seclusion; and the Defendant’s failure to otherwise provide class members with
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constitutionally safe and humane conditions of confinement. Fed. R. Civ. P. 23(a)(3). 102. Because the policies, practices, and customs challenged in this Complaint apply with equal
force to the named Plaintiff and the other members of the class, the claims of the named Plaintiff are typical of the class in general. Fed. R. Civ. P. 23(a)(3). 103. The named Plaintiff will fairly and adequately represent the interests of the class. He possesses a strong personal interest in the subject matter of the lawsuit and is represented by experienced counsel with expertise in class action litigation in federal court. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). 104. The Defendant has acted or refused to act on grounds generally applicable to the class in that Defendant’s policies and practices of violating the Plaintiff’s constitutional rights have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
NECESSITY FOR INJUNCTIVE RELIEF 105. The Defendant has acted and continues to act in violation of the law as described above.
The named Plaintiff and the class he seeks to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendant, the named Plaintiff, and the class he seeks to represent, have suffered serious, imminent, irreparable physical, mental, and emotional injuries.
COUNT I Violations of the Fifth and Fourteenth Amendments
(42 U.S.C. § 1983 – Excessive Use of Force) 106. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1
through 105 as if fully set forth herein.
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107. The Due Process Clause of the Fifth Amendment requires that civil detainees be protected from harm and kept physically safe and secure. This right is enforced against the States through the Fourteenth Amendment.
108. That Fifth Amendment right includes the right to be free from excessive use of force by staff.
109. As described above, Defendant subjected Plaintiff to excessive force when he was punched, hit, shoved, and otherwise physically assaulted by SVJC staff.
110. Any perceived need for the application of force in each such instance in which it was applied dissipated at the moment control was achieved and Plaintiff was restrained. Nevertheless, Defendant then tied Plaintiff to a chair for hours at a time; confined him to his room for hours or even days, sometimes without any clothing; or forced him to wear handcuffs and shackles on his hands and feet for up to 10 days at a time.
111. Defendant wantonly engaged in this injurious conduct by applying force maliciously and sadistically for the very purpose of causing harm, rather than in a good faith effort to maintain or restore discipline, particularly in light of Plaintiff’s extensive and detailed record of mental health diagnoses.
112. Defendant’s excessive use of force causes physical pain and suffering, mental anguish, emotional distress, the deterioration of Plaintiff’s mental health and an undue risk of serious injury and/or premature death.
113. Defendant’s refusal to protect children from harm, otherwise keep them physically safe and secure and free from unconstitutional practices like excessive use of restraints and prolonged confinement violates the constitutional rights of the Plaintiff and putative class members under the Fifth and Fourteenth Amendments to the United States Constitution, as
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enforced through 42 U.S.C. § 1983. 114. Defendant’s policies, practices, acts and/or omissions have placed or will place the named
Plaintiff and the members of the putative class he seeks to represent at an unreasonable risk of suffering new or worsening serious illnesses, injuries, and harm. 115. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT II Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services) 116. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 105 as if fully set forth herein. 117. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care, during their detention. This right is enforced against the States through the Fourteenth Amendment. 118. As described above, Defendant failed to provide necessary care and treatment for Plaintiff’s known and well-documented mental health conditions, diagnosed by the Defendant’s or ORR’s own psychologist as conduct disorder, mood dysregulation, and depression. 119. In particular, Defendant denied Plaintiff the necessary medical and psychological care required to treat an individual who has engaged in continuous self-mutilation. 120. Defendant engaged in this injurious conduct with deliberate indifference to Plaintiff’s
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serious medical needs, in light of his extensive and detailed record of mental health diagnoses, placing Plaintiff in substantial risk of serious harm. 121. Defendant’s deliberate indifference to Plaintiff’s serious mental health needs has caused, and continues to cause, the Plaintiff physical pain and suffering, mental anguish, emotional distress, the deterioration of his mental health and an undue risk of serious injury and/or premature death. 122. Defendant’s policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. 123. Defendant’s policies, practices, acts and/or omissions have placed or will place the named Plaintiff and the members of the putative class he seeks to represent at an unreasonable risk of suffering new or worsening serious mental health illnesses, injuries, and harm. 124. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT II (IN THE ALTERNATIVE) Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services) 125. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 105 as if fully set forth herein. 126. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care,
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during their detention. This right is enforced against the States through the Fourteenth Amendment. 127. As described above, Defendant failed to provide necessary care and treatment for Plaintiff’s known and well-documented mental health conditions, diagnosed by the Defendant’s or ORR’s own psychologist as conduct disorder, mood dysregulation, and depression. 128. In particular, Defendant denied Plaintiff the necessary medical and psychological care required to treat an individual who has engaged in continuous self-mutilation. 129. By failing to provide Plaintiff with appropriate mental health care and treatment, Defendant has failed to exercise appropriate professional judgment, and/or exercised decision-making that is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the Defendant has not actually based its decision-making on such a judgment. 130. Defendant’s failure to adequately treat Plaintiff’s mental health needs has caused, and continues to cause, physical pain and suffering, mental anguish, emotional distress, the deterioration of his mental health and an undue risk of serious injury and/or premature death. 131. Defendant’s policies, practices, acts and/or omissions constitute a failure to exercise professional judgment and/or a substantial departure from accepted professional judgment, practice, or standards as to the appropriate treatment of the mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
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132. Defendant’s policies, practices, acts and/or omissions have placed or will place the named Plaintiff and the members of the putative class he seeks to represent at an unreasonable risk of suffering new or worsening serious mental health illnesses, injuries, and harm.
133. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth. COUNT III Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of Race)
134. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 105 as if fully set forth herein.
135. Plaintiff enjoys a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of his race.
136. Plaintiff, a Latino youth, has been treated differently than Caucasian youth detained at the facility with whom he is otherwise similarly situated.
137. Defendant’s statements to Plaintiff and other immigrant youth demonstrate that such unequal treatment was the result of intentional or purposeful discrimination.
138. There is no legitimate penological interest or rational basis for subjecting Plaintiff and other immigrant youth to unequal treatment on the basis of their race.
139. Due to Defendant’s arbitrary and irrational discrimination against Plaintiff and putative class members on the basis of their race, the Defendant has denied the Plaintiff and others similarly situated their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.
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140. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth. COUNT IV Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of National Origin)
141. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 105 as if fully set forth herein.
142. Plaintiff enjoys a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of his national origin.
143. Plaintiff, a citizen of Mexico, has been treated differently than United States citizen youth detained at the facility with whom he is otherwise similarly situated.
144. Defendant’s statements to Plaintiff and other immigrant youth demonstrate that such unequal treatment was the result of intentional or purposeful discrimination.
145. There is no legitimate penological interest or rational basis for subjecting Plaintiff and other immigrant youth to unequal treatment on the basis of their national origin.
146. Due to Defendant’s arbitrary and irrational discrimination against Plaintiff and putative class members on the basis of their national origin, the Defendant has denied the Plaintiff and others similarly situated their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.
147. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and
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federal law, and will cause irreparable harm to these youth. PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court: a. Declare that the acts and omissions of the Defendant as alleged in this Complaint
violate the Constitution and laws of the United States; b. Enter a preliminary and permanent injunction requiring the Defendant, its agents,
employees and all persons acting in concert with or on behalf of the Defendant to cease their unconstitutional and unlawful practices; c. Certify this case as a Class Action pursuant to Fed. R. Civ. P. 23(b)(2); d. Designate undersigned counsel as attorneys for the certified class; e. Award to the Plaintiff reasonable costs and attorney's fees; and f. Grant the Plaintiff all such other further relief as the Court deems just.
JURY DEMAND Plaintiff demands trial by jury for all claims which may be so tried.

Dated: October 4, 2017

Respectfully submitted,
By: /s/ Christine T. Dinan Christine T. Dinan (VSB No. 84556) Jonathan M. Smith (pro hac vice forthcoming) Matthew K. Handley (pro hac vice forthcoming) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone) (202) 319-1010 (facsimile) christine_dinan@washlaw.org jonathan_smith@washlaw.org matthew_handley@washlaw.org

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Theodore A. Howard (pro hac vice forthcoming) WILEY REIN LLP 1776 K Street NW Washington, D.C. 20006 (202) 719-7120 (telephone) thoward@wileyrein.com Attorneys for Plaintiff John Doe
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3, by and through their next friend, NELSON LOPEZ, on behalf of themselves and all persons similarly situated,

Civil No. 5:17-cv-0097 Judge Elizabeth K. Dillon

Plaintiffs,

Jury Trial Demanded

v.

SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,

Defendant.

FIRST AMENDED CLASS ACTION COMPLAINT INTRODUCTION
1. Plaintiffs John Doe 1 (“Doe 1”), John Doe 2 (“Doe 2”), and John Doe 3 (“Doe 3”) (collectively, “Plaintiffs”) are Latino immigrant youths who are, or may in the future be, confined to the Shenandoah Valley Juvenile Center (“SVJC”). There are approximately 30 unaccompanied immigrant minors under detention in the facility. Plaintiffs are confined solely because they crossed the United States border seeking to escape violence in Mexico and Central America without proper authorization and the Office of Refugee Resettlement of the U.S. Department of Health and Human Services (“ORR”) has determined to detain them. Plaintiffs and other similarly situated young people in SVJC are subjected to unconstitutional conditions that shock the conscience, including violence by staff, abusive and excessive use of seclusion and restraints, and the denial of necessary mental health care. As a result of this treatment, Doe 1 and other youths have engaged in significant and

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continuous self-harm, to which SVJC staff and counselors have responded with callous indifference. These violations reflect a disorganized, untrained, and understaffed facility that houses immigrant children in brutal, inhumane conditions. 2. This is a civil action pursuant to 42 U.S.C. § 1983 to vindicate the rights of immigrant youth detained at SVJC under the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs represent a class of immigrant children who have suffered verbal and physical abuse by SVJC staff; received constitutionally inadequate mental health care; and been subjected to inappropriate confinement and seclusion while detained at SVJC. 3. On behalf of themselves and all similarly situated immigrant children, Plaintiffs seek declaratory, preliminary, and permanent injunctive relief requiring that Defendant cease its unconstitutional policies and practices at SVJC and provide class members with the standard of care and conditions of confinement mandated by the United States Constitution. 4. These problems are not unique to SVJC, but are part of a growing and alarming national trend of punitive, racially discriminatory conditions of confinement and systematic indifference to the suffering of immigrant detainees, who often fare worse in civil detention than those serving criminal sentences.1 5. Immigrant detainees are regularly subjected to poor sanitation, substandard medical and mental health care, excessive use of solitary confinement, and other conditions that too often result in senseless, preventable suffering and in some cases, deaths.
1 See, e.g., Conditions of Confinement in Immigration Detention Facilities, ACLU, June 27, 2007, https://www.aclu.org/sites/default/files/field_document/unsr_briefing_materials.pdf; Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, HUMAN RIGHTS WATCH, May 8, 2017, https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard-medical-care-us-immigrationdetention.
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PARTIES Plaintiff John Doe 1 6. Plaintiff John Doe 1 is a 17-year-old native and citizen of Mexico. 7. From a young age, Doe 1 experienced significant verbal and physical abuse by his father. He was further traumatized by gang and drug violence in Mexico. In fear for his life and safety, he entered the United States to seek protection as a refugee. 8. Doe 1 arrived in the United States on or about August 3, 2015. He was apprehended by Immigration and Customs Enforcement (“ICE”) officers at the Mexican border and was determined to be an unaccompanied alien child (“UAC”). 9. Doe 1 was transferred to Baptist Child & Family Services (“BCFS”) San Antonio, a “staff secure” facility, on August 6, 2015. He remained there until February 10, 2016, when he was transferred to Mercy First Residential Treatment Center in New York City, allegedly for violent behavior and due to concerns for his mental health. 10. On March 24, 2016, Doe 1 was transferred to the Northern Virginia Juvenile Detention Center (“NOVA”), another “staff secure” facility located in Alexandria, Virginia, allegedly because he was considered to be a flight risk. 11. On April 15, 2016, Doe 1 was transferred from NOVA to SVJC, a “secure” facility, allegedly due to his violent and threatening behavior. 12. Doe 1 was detained at SVJC from April 2016 through December 2017. In December 2017, he was transferred back to NOVA, which was recently re-opened as a secure facility. Doe 1 remains in the custody of ORR and can be transferred back to SVJC at any time. 13. On behalf of himself and all similarly situated immigrant children, Doe 1 brings this action by and through Nelson Lopez, his next friend.
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14. Nelson Lopez is an adult resident of Virginia. He brings this action for the benefit of Doe 1 and the class of immigrant detainees Doe 1 seeks to represent.
15. Mr. Lopez is well-suited to serve in this role. He is currently self-employed and engaged as a community advocate at a Northern Virginia social justice organization that he cofounded. He previously worked as a paralegal at an immigration legal services organization for approximately three years. In that capacity, Mr. Lopez frequently visited detained immigrant adults and children to educate them about their legal rights and assist them in navigating the immigration legal system.
16. Mr. Lopez has met with Doe 1, and Doe 1 consents to Mr. Lopez serving as his next friend. Plaintiff John Doe 2
17. Plaintiff John Doe 2 is a 16-year-old native and citizen of Mexico. 18. Doe 2 was brought to the United States when he was 10 months old and has lived in the
United States since that time. 19. On or about May 17, 2017, Doe 2 came to the attention of immigration authorities after the
car in which he was riding was pulled over and searched by police. When Doe 2 failed to produce identification, the police arrested him and contacted ICE. Upon information and belief, Doe 2 was classified as a UAC. He was taken to a shelter in Harlingen, Texas. 20. After he made an unsuccessful attempt to escape from the shelter, Doe 2 was transferred to BCFS San Antonio. 21. While he was detained at BCFS San Antonio, Doe 2 saw a doctor and was diagnosed with attention deficit/hyperactivity disorder (ADHD), depression, and anger management issues. 22. Angry and frustrated, Doe 2 got into verbal and physical altercations with other detained youth and began cutting his wrists.
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23. Doe 2 was transferred to another facility for treatment for approximately twenty days. Shortly after he returned to BCFS San Antonio, he was transferred to SVJC on or about September 30, 2017.
24. Doe 2 is currently detained at SVJC. On behalf of himself and all similarly situated immigrant children, he brings this action by and through Nelson Lopez, his next friend.
25. Mr. Lopez has met with Doe 2, and Doe 2 consents to Mr. Lopez serving as his next friend. Plaintiff John Doe 3
26. Plaintiff John Doe 3 is a 15-year-old native and citizen of Honduras. 27. Doe 3 left Honduras because a gang there had threatened to kill him. In fear for his life and
safety, he fled to Guatemala and then Mexico, and entered the United States to seek protection as a refugee. 28. On or about July 17, 2017, Doe 3 was apprehended by ICE officers at the Mexican border and was determined to be a UAC. He was placed in different shelters in Texas, where he stayed for approximately one month. 29. Doe 3 was then transferred to BCFS San Antonio. He stayed there for about two weeks, after which he was transferred to SVJC on or about August 4, 2017. 30. While he was being transported to SVJC, Doe 3 repeatedly asked where he was going, but his questions went unanswered. Later he learned that he had been transferred because of alleged gang affiliation, which Doe 3 denies. 31. Doe 3 is currently detained at SVJC. On behalf of himself and all similarly situated immigrant children, he brings this action by and through Nelson Lopez, his next friend. 32. Mr. Lopez has met with Doe 3, and Doe 3 consents to Mr. Lopez serving as his next friend. 33. Upon information and belief, the majority of the immigrant detainees in the purported class,
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most of whom have arrived from Mexico and Central America, have experienced psychological trauma before arriving at SVJC. They have been severely traumatized by violence they have experienced or witnessed, either in their home countries or during their journeys to the United States. 34. Similarly, behaviors perceived to be threatening or violent by staff at other ORR facilities, which often resulted in the transfer of immigrant youth to SVJC, were the direct result of untreated mental illness resulting from trauma experienced by the youth in their home countries. 35. In each of their previous placements, Plaintiffs failed to receive the necessary services – including, but not limited to, appropriate mental health care – to allow them to live in a community setting despite that ORR is obligated by federal law to ensure that unaccompanied minors “be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). 36. The plight of the named Plaintiffs echoes the stories of the many immigrant youth who have been or are now detained at SVJC. These children uniformly describe SVJC as a facility where immigrant youth languish without necessary mental health services, are regularly verbally and physically abused, harassed, and taunted by staff, and where they are subjected to harsh, disproportionate discipline for behavioral issues that are in many cases directly provoked by the abusive treatment they receive. These conditions violate the constitutional rights of the named Plaintiffs and all similarly situated immigrant children, all of whom are entitled, to the extent they are properly detained at all, to reasonably safe and sanitary conditions of confinement and protection from harm.
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Defendant Shenandoah Valley Juvenile Center Commission 37. Defendant Shenandoah Valley Juvenile Center Commission (“Defendant” or
“Commission”) is a commission composed of members from seven jurisdictions in the Shenandoah Valley, including the Cities of Harrisonburg, Lexington, Staunton and Waynesboro, and the Counties of Rockingham, Augusta, and Rockbridge. The Commission owns and operates SVJC, a secure residential detention facility in Staunton, Virginia, for use by each of the member jurisdictions. 38. The Commission is a public body corporate pursuant to Va. Code § 16.1-315.
JURISDICTION AND VENUE 39. Plaintiffs’ causes of action arise under the Fifth and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. § 1983. 40. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331. 41. Venue in this Court is proper under 28 U.S.C. § 1391(b)(2) because all or a substantial part
of the events or omissions giving rise to this action occurred in this District. STATEMENT OF FACTS General Conditions at SVJC
42. SVJC holds an approximate average daily population of 40 youth between the ages of 10 and 17 years old. This includes both UACs and United States citizen youth who have been adjudicated juvenile delinquent.
43. ORR, the division of the U.S. Department of Health and Human Services directly responsible for the care and custody of unaccompanied immigrant minors, has contracted with the Commission to house children whom ORR determines are UACs, requiring detention in secured conditions due to the risk of harm these UACs purportedly pose to
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themselves or others. 44. SVJC is currently one of only three secure facilities in the country that house detained
UACs. 45. ORR’s explanation for its decision to place a child in a secure facility must be made in
writing and made available to the child. Its evaluations in this regard are to be revisited at regular intervals. Upon information and belief, ORR consistently fails to fulfill these obligations, and many of the members of the putative class that Plaintiffs seek to represent have little to no understanding as to why they have been placed at SVJC. 46. SVJC is, both structurally and functionally, a prison. Children are not permitted to freely move about the facility and they are locked in their rooms for approximately 12-14 hours per day, including before and after meals; during staff breaks; and after 9:30 in the evening 47. The children are fed substandard meals that contain too few calories and are often served cold. They consistently remain hungry after meals because they receive too little to eat. 48. Each child is assigned to a room with a mattress, a sink, and a toilet. There is no wall or divider enclosing the bathroom area, so the staff can see the children use the toilet through the window in the door to their room. 49. Some children have sought privacy by placing paper over this window to obscure the view from outside the room, but the staff have removed it. When Doe 3 once attempted to place a paper over the window to his room for privacy, staff swarmed into his room with plastic shields and assaulted him. On at least one occasion, a staff member has stood at the window and watched Doe 1 use the toilet. 50. Each room is in a “pod,” which is a cluster of approximately ten rooms with a shared common area.
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51. In the common area of each pod, there are metal tables and chairs that are bolted to the floors.
52. The immigrant children detained at SVJC are grossly under-stimulated. Although they receive a few hours of classroom instruction per day, much of it is either inaccessible, as the instruction is not provided in the children’s native language, or it is significantly below grade level. Doe 2 had completed ninth grade in a school in Texas before he arrived at SVJC, but he was never given an assessment to determine which grade level of instruction he should receive. As a result, he has been taking classes that are too easy for him.
53. The children are usually given just one hour of recreation time per day, which is either spent in a small gymnasium or, less frequently, in a small outdoor area that is fenced in with barbed wire. Doe 2 has not been allowed outside once in his more than three months of detention at SVJC. The children’s remaining free time is spent locked in their pods, where the only activities they are regularly permitted are reading or playing cards with incomplete decks.
54. In the evening, the children are permitted to watch a limited amount of television, but the staff members control the TV and the children are not allowed to touch it.
55. There is a point system in place to reward children for good behavior and punish them for bad behavior. The children are required to use points if they want to have access to personal hygiene items such as toothpaste and soap.
56. Points have been taken away by SVJC staff from detained UACs for such purported “offenses” as asking the time of day; declining to read a book during the children’s designated “free time”; giving their food to a friend; neglecting to raise their hand in class; moving the location of the TV in their pod to see it better; and throwing a ball that hit the
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ceiling in the gym. If a child loses two points in a day, the child will be placed on restriction in his room.
Race and National Origin Discrimination by SVJC Staff 57. The majority of SVJC staff members are Caucasian and do not speak Spanish. 58. SVJC staff routinely insult, taunt, and harass the immigrant youth detained at the facility
based on their language, race, and/or national origin. 59. One child was called a “Mexican monkey” by staff; another was told by a guard that “dark
people bother me.” 60. Similarly, SVJC staff taunt the youth, calling them “criminal” and “nothing more than an
immigrant,” and telling them that the only way for them to leave SVJC is to be deported. 61. While he was detained at SVJC, staff members taunted and harassed Doe 1, on a daily basis,
beginning shortly after he arrived there. They called him names such as “pendejo” (or “idiot” in Spanish) and “onion head,” and they would intentionally provoke him, such as by dropping his clean towel on the dirty floor in front of him. 62. Doe 2 has often overheard staff members insulting him and other immigrant detainees in English, telling them that they are stupid and making fun of them for not understanding English. Frustrated, he began to tell some of the youth who do not speak English what the staff members were saying about them. The staff members became angry at Doe 2 and took away his points for this. 63. When Doe 3 once asked a friend to ask a staff member why he was taking away so many of his points, the staff member responded, “Tell that Hispanic guy to tell me in English.” 64. Staff also frequently refuse to allow the immigrant children to watch Spanish-language programming on the communal television in their pods, making dismissive comments such
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as they “don’t care” that the children are Latino and cannot understand an English television show. 65. SVJC staff also exert their control in a way that is intended to demean and humiliate the children. Several immigrant detainees, including all three Plaintiffs, have reported being stripped of their clothes, occasionally including their underwear, while being placed on “restriction,” or confined to their rooms, as a form of punishment. There is no legitimate penological justification for this kind of treatment. 66. SVJC staff also subject the immigrant youth to disparate discipline, doling out harsher punishments to the immigrant youth than to local juvenile offenders, the majority of whom are Caucasian and were born in the U.S, who have engaged in the same or considerably worse behavior. 67. On one occasion, Doe 1 and a juvenile offender got into a fight after the juvenile offender had taunted Doe 1 and told him that he “hate[d] Latinos”. When SVJC staff intervened to break up the fight, Doe 1 was grabbed and thrown forcefully to the ground, but the juvenile offender was merely held by the arms and pulled away. Thereafter, Doe 1 was restrained, strapped to a chair, and hit several times by staff members while restrained. Doe 1 was required to remain strapped to the chair, in his room, for four hours. This restraint served no security or penological purpose and was legally impermissible punishment. 68. Despite the fact that local detainees have been adjudicated as juvenile delinquents, while the immigrant youth residing at SVJC have not, the local juvenile offenders are also granted more privileges than the immigrant youth. Upon information and belief, the local offenders are granted more opportunities to go outdoors and more physical freedom to move about the facility; they are given the opportunity to engage in work details; they are provided with
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computers in their classrooms and with markers and pencils for drawing; and they have regular access to MP3 players for listening to music and to Xboxes in their pods. None of these benefits are afforded to the immigrant youth.
Physical Abuse by SVJC Staff 69. In addition to being called racially-charged names, Plaintiffs and other immigrant children
are frequently called names, such as “gay” or “faggot”, by SVJC staff, who appear outside of their rooms and taunt them until they receive a response. 70. For Plaintiffs and other immigrant detainees, verbal abuse by staff triggers emotional responses connected to traumatic memories of past abuse that they have experienced and self-protective behaviors. 71. Relentless verbal abuse of the immigrant youth by SVJC staff frequently escalates into physical confrontations, as the frustrated children reach their breaking points and act out. See, e.g., Santos v. Smith, No. 5:17-cv-00020, 2017 U.S. Dist. LEXIS 83909, at *38 (W.D. Va. June 1, 2017) (Dillon, J.) (noting, in ruling on a habeas petition brought by an immigrant youth detained at SVJC, that most of the petitioner’s significant behavioral problems had arisen after he had been in custody for over a year and were “likely . . . attributable in part to his placement at SVJC.”) 72. In such situations, SVJC staff regularly respond by physically assaulting the youth, applying an excessive amount of force that goes far beyond what is needed to establish or regain control. 73. For example, Doe 1 once became so frustrated by a staff member’s repeated taunting that he pushed the staff member. In response, four SVJC staff members shoved Doe 1 to the floor and piled on top of him, and they began hitting him in his abdomen with their elbows.
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Doe 1 sustained significant bruising as a result. 74. On another occasion, Doe 1 asked to come inside during his recreation time because he had
a headache. SVJC staff suspected, for no apparent reason, that he may have found a piece of glass outside. Doe 1 was thrown to the ground and forcibly strip searched, and his clothes were shredded. Though they found no contraband items, staff nevertheless transferred Doe 1 to Alpha Pod – the pod designated for children who have engaged in bad behavior – in response to this incident. 75. Similarly, Doe 2 has been restrained by multiple SVJC staff members at a time for verbally insulting them. They have grabbed Doe 2’s hands and put them behind his back so he cannot move, and sometimes they will use pens to poke him and/or grab his jaw with their hands. The amount of force used against Doe 2 has left bruises on his wrists, ribs, and shoulder. 76. Doe 3 was once reprimanded by SVJC staff when he held the door open for other youth as they were going in to art class. When Doe 3 asked why the staff member was yelling at him, the staff member lunged at him. Doe 3 crouched down to avoid him, and the staff member fell. The staff member then put Doe 3’s hands behind his back and slammed his face into the wall. Doe 3 maneuvered his way out of the hold, and two staff members slammed his body to the ground, picked him back up, and then shoved him into the wall again. 77. Other immigrant detainees have reported similar incidents of being physically assaulted by SVJC staff after verbal altercations with them. 78. One immigrant detainee was physically assaulted because he failed to comply with a directive to leave his book in his room when he went to class. Although the child had not exhibited any physical aggression, three SVJC staff members reacted to his refusal by
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shoving him into his room, placing handcuffs on him, and forcing him to his knees. The staff members removed the mattress from his room and proceeded to push the youth, face down, on the concrete slab where the mattress had been. When they picked him back up, his face red from being pushed into the concrete, they locked him in his room for 8 hours. 79. Doe 1 and other children have also been assaulted when they have tried to defend other children who are being abused by staff. Doe 1 once tried to intervene when a staff member was hitting another child. As a result, both Doe 1 and the other child were stabbed by the staff member with a pen. 80. Plaintiffs and other children have also been assaulted by SVJC staff while they are restrained. 81. Doe 1 has been assaulted by SVJC staff several times while he was strapped to a chair. On one occasion, Doe was hit in the face and scratched by a staff member while he was restrained, and he developed a black eye and bruising. Doe 3 has also been hit by staff members while he was in handcuffs inside his room. 82. Doe 2 was once removed from class after he swore at a teacher, and staff members took him to his room. When Doe 2 tried to resist, staff members put handcuffs on his wrists. After Doe 2 was in handcuffs, staff members pushed his face into the wall. 83. Another child was punched by SVJC staff in the chin while his hands were tied behind his back, leaving a bruise. He struggled to break free, and staff members pushed him to the ground, causing him to lose consciousness. 84. As these incidents illustrate, SVJC staff regularly apply force to Plaintiffs and other putative class members maliciously and sadistically for the very purpose of causing them harm. 85. The predicate for the application of force is often manufactured by SVJC staff, as they
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intentionally provoke the youth to violence in order to justify physically assaulting them, purportedly as punishment. 86. The degree of force used by SVJC staff is disproportionately severe in relation to any reasonably perceived threat. SVJC staff routinely hit and/or push children to the ground for minor acts of aggression, and they assault the children after they have been restrained, when any threat that the children may have posed has been eliminated. 87. As a result of such malicious and sadistic applications of force, Plaintiffs and other immigrant youth have sustained significant injuries, both physical and psychological. 88. Upon information and belief, and based on the accounts of youth who are currently held or were recently held at SVJC, such physical abuse is routinely inflicted on putative class members.
Confinement and Restraints 89. Defendant has a policy or practice of confining the immigrant detainees to their rooms for
lengthy periods of time and/or using handcuffs and cloth shackles on their hands and feet to restrain them. 90. Defendant utilizes lengthy confinement and restraints for punitive purposes. 91. Immigrant youth are confined to their rooms for minor behavioral infractions, including arguing over the television, not participating in class, and complaining about a headache. 92. Confinement and restraints are also used when youth fight with one another, fight with staff, or engage in self-harm. 93. The decision to use restraints on a child for “fighting” is often made arbitrarily, and children have been restrained merely for being present when a fight breaks out. 94. Moreover, the children are restrained long after any safety or security justification for doing
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so has expired. 95. Doe 1 was once forced to wear handcuffs on his wrists and shackles on his feet for
approximately 10 days in a row after an altercation with a staff member. The staff member entered Doe 1’s room without his consent and provoked an altercation during which the staff member hit Doe 1 and Doe 1 bit the staff member. Thereafter, the staff member beat Doe 1, leaving him with bruises on his neck and arms. Subsequently, Doe 1 was placed in the restraints. 96. Doe 3 has been forced to wear handcuffs on his wrists and shackles on his feet several times while he has been restrained in his room. 97. During the time that a child is forced to wear the restraints, they are removed only while he sleeps or eats alone in his room. 98. Plaintiffs and other children have suffered serious physical and emotional harm from Defendant’s use of restraints. The restraints are very tight, often leaving bruises and cuts on the children’s wrists after they have been taken off. Doe 1 has complained about this and shown his injuries to SVJC staff and to ORR’s on-site representatives, but they have taken no actions to remedy it. Doe 3 has been unable to sleep well because of the pain in his wrists from being placed in handcuffs. 99. Plaintiffs and other children have also been confined to their rooms for 24 hours or more at a time. On some occasions the children are stripped of their clothes, including their underwear, during such lengthy periods of confinement. 100. Doe 2 was once confined to his room for a day and a half. Staff took away his mattress, blanket, and shirt for the first few hours of his confinement. On several occasions Doe 3 has been confined to his room while stripped down to his boxers. Doe 3 was once left in
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his room all day without his clothes, mattress, or blanket, and he was very cold. 101. Plaintiffs and other immigrant youth at SVJC have also have been strapped to a restraint
chair as a form of punishment. While the youth are in the chair, their arms, legs, and torso are strapped down, and a mask is sometimes placed over their face. The children are sometimes strapped to the chair wearing nothing but their underwear, and in some instances have been subjected to urinating on themselves when staff refused their pleas to be untied so they could use the restroom. 102. All three Plaintiffs have been placed in the restraint chair during their detention at SVJC. Doe 1 once remained strapped to the chair for several hours. 103. There is no legitimate penological justification for using confinement or restraints in this manner, as they are used long after control of the subject child has been secured and there is no threat of any further physical altercation. Defendant’s conduct is motivated by a desire to harass or humiliate the detained children in their care or to provoke a response that justifies the use of even further force by staff.
Inadequate Mental Health Care 104. Defendant fails to provide minimally adequate mental health services for the immigrant
detainees in its custody and is deliberately indifferent to their serious psychological and/or medical needs. 105. Defendant has a policy or practice of denying Plaintiffs and putative class members access to appropriate mental health treatment and counseling with licensed health professionals, in violation of well-established professional standards. 106. Most SVJC staff members are unable to recognize and properly react to the obvious needs of youth with known, demonstrable, serious mental health disorders and instead further
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taunt and harass the children when they exhibit signs of distress. 107. Doe 1 and Doe 2 each have diagnosed mental health conditions. Approximately two weeks
after his arrival at SVJC, Doe 1 was evaluated by a psychologist, Dr. Gustavo Rife, and diagnosed with conduct disorder, disruptive mood dysregulation, and depressive disorder. Doe 2 was diagnosed with ADHD, depression, and anger management issues while he was detained at BCFS San Antonio. 108. Doe 1 did not receive any further care, treatment, or evaluations from Dr. Rife, or from any other psychologist at the initiative or direction of SVJC, while he was detained at SVJC. Upon information and belief, Doe 2 has received only intermittent and inconsistent treatment by a psychologist while he has been detained at SVJC. 109. Attention to Doe 1 and Doe 2’s mental health at SVJC has primarily been provided by Evenor Aleman, a licensed professional counselor, with whom the young men generally meet on a weekly basis. 110. SVJC staff are not trained to appropriately deal with trauma. Although the effects of psychological trauma on unaccompanied immigrant children are widely known, SVJC staff fail to recognize it in the children entrusted to their care, and they fail to supervise immigrant detainees with a trauma-informed approach, focusing only on maintaining control and discipline. 111. Approximately six weeks after he arrived at SVJC, Doe 1 first disclosed to Mr. Aleman that he had engaged in self-harm. 112. Prior to his arrival in the United States, Doe 1 had not engaged in self-harm. He reports that he learned this behavior while in ORR custody. 113. While he was detained at SVJC, Doe 1 regularly engaged in self-harm by cutting his wrists
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with a piece of glass or plastic and occasionally by banging his head against the wall or floor. 114. Doe 2 has also engaged in self-harm at SVJC. He began cutting his wrists when he was detained at BCFS San Antonio and continued to do so at SVJC. 115. Doe 1 and Doe 2 engaged in cutting to deal with their feelings of desperation and helplessness, and as a way to escape. Upon information and belief, these are symptoms of past trauma and untreated mental health conditions, which are exacerbated by the conditions in the facility and the treatment to which Plaintiffs are subjected by staff. 116. On or about August 21, 2017, Doe 1 attempted suicide by tying a part of a curtain around his throat. He repeatedly expressed a desire to kill himself. 117. Other immigrant youth have also engaged in cutting and other self-harming behaviors, including ingesting shampoo and attempting to choke themselves. 118. This self-harming behavior is a manifestation of serious mental health need. 119. SVJC staff are aware that immigrant youth engage in cutting and other self-harming behaviors. Staff members saw the visible scarring on Doe 1’s wrists, a distinct marker of self-mutilation, and Doe 1 reported these behaviors to Mr. Aleman on multiple occasions. 120. SVJC staff are deliberately indifferent to the children’s serious mental health needs, as they are aware of the harm that Doe 1 and others are causing themselves by cutting and other behaviors, and they disregard the excessive risk of future harm – namely, serious injury and possibly death – to the children’s health and safety if they do not receive appropriate treatment for these needs. 121. SVJC staff told Doe 1, on multiple occasions, that they “don’t care” that he is cutting himself. Other youth have similarly been told, “Kill yourself already,” by SVJC staff when
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they have learned that the youth have engaged in cutting. 122. Rather than treat the underlying causes of this behavior, SVJC staff punished Doe 1 and
others for it. Engaging in self harm is considered a “bad behavior” which is punishable by segregation and confinement and/or use of restraints. Doe 1 has occasionally been strapped to the restraint chair as punishment for self-harm. 123. When SVJC staff discovered and interrupted Doe 1’s most recent suicide attempt, they removed all of his clothes and placed him on restriction for several days, allowing him to leave his room only for classes. 124. Similarly, when another child once attempted to choke himself, SVJC staff responded by taking all of his clothes away, including his underwear, and confining him to his room, naked, for more than 8 hours. Upon information and belief, he received no other treatment. 125. Isolating and punishing children who are suicidal is extremely damaging to their wellbeing, and violates well-established professional standards. 126. Plaintiffs have been and continue to be harmed by the lack of appropriate, trauma-informed mental health treatment.
CLASS ACTION ALLEGATIONS 127. The named Plaintiffs bring this suit on their own behalf and on behalf of all UACs who
are, or will in the future be, detained at SVJC. 128. The class is so numerous that joinder of all members is impractical. SVJC has the capacity
to house 63 youth at one time and approximately 30 immigrant youth are detained there currently. Further, because children remain at SVJC for varying lengths of time, and the population changes with frequency, the class also includes future members whose names are not known at this time. Fed. R. Civ. P. 23(a)(1).
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129. There are questions of law and fact common to all class members, including but not limited to the Defendant’s failure to protect class members from harm; the Defendant’s failure to provide class members with constitutionally adequate mental health care; the Defendant’s policy and practice of subjecting class members to inappropriate restraint and prolonged periods of seclusion; and the Defendant’s failure to otherwise provide class members with constitutionally safe and humane conditions of confinement. Fed. R. Civ. P. 23(a)(3).
130. Because the policies, practices, and customs challenged in this Complaint apply with equal force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general. Fed. R. Civ. P. 23(a)(3).
131. The named Plaintiffs will fairly and adequately represent the interests of the class. They each possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action litigation in federal court. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4).
132. The Defendant has acted or refused to act on grounds generally applicable to the class in that Defendant’s policies and practices of violating the Plaintiffs’ constitutional rights have affected all class members. Accordingly, preliminary as well as final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2). NECESSITY FOR INJUNCTIVE RELIEF
133. The Defendant has acted and continues to act in violation of the law as described above. The named Plaintiffs and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendant, the named Plaintiffs, and the class they seek to represent, have suffered serious, imminent, and
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irreparable physical, mental, and emotional injuries. COUNT I
Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Excessive Use of Force)
134. Plaintiffs re-allege and incorporate by reference the allegations set forth in Paragraphs 1 through 133 as if fully set forth herein.
135. The Due Process Clause of the Fifth Amendment requires that civil detainees be protected from harm and kept physically safe and secure. This right is enforced against the States through the Fourteenth Amendment.
136. This Fifth Amendment right includes the right to be free from excessive use of force by staff.
137. As described above, Defendant subjected Plaintiffs to unnecessary and excessive force when they were punched, hit, shoved, and otherwise physically assaulted by SVJC staff.
138. Any perceived need for the application of force in each such instance in which it was applied dissipated at the moment control was achieved and Plaintiffs were controlled or restrained. Nevertheless, Defendant then strapped Plaintiffs to a chair for hours at a time; confined them to their rooms for hours or even days, sometimes without any clothing; or forced them to wear handcuffs and shackles on their hands and feet for up to 10 days at a time.
139. Defendant wantonly engaged in this injurious conduct by applying force maliciously and sadistically for the very purpose of causing harm, rather than in a good faith effort to maintain or restore discipline, particularly in light of Plaintiffs’ youth and their extensive and detailed record of mental health diagnoses.
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140. Defendant’s excessive use of force causes physical pain and suffering, mental anguish, emotional distress, the deterioration of Plaintiffs’ mental health and an undue risk of serious injury and/or premature death.
141. Defendant’s refusal to protect children from harm, otherwise keep them physically safe and secure and free from unconstitutional practices like excessive use of restraints and prolonged confinement violates the constitutional rights of the Plaintiffs and putative class members under the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
142. Defendant’s policies, practices, acts and/or omissions have placed or will place the named Plaintiffs and the members of the putative class they seek to represent at an unreasonable risk of suffering new or worsening serious illnesses, injuries, and harm.
143. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth. COUNT II Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services)
144. Plaintiffs re-allege and incorporate by reference the allegations set forth in Paragraphs 1 through 133 as if fully set forth herein.
145. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care, during their detention. This right is enforced against the States through the Fourteenth Amendment.
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146. As described above, Defendant failed to provide necessary care and treatment for Plaintiffs’ known and well-documented mental health conditions.
147. In particular, Defendant denied Plaintiffs the necessary medical and psychological care required to treat individuals who are psychologically traumatized and/or have engaged in self-mutilation.
148. Defendant engaged in this injurious conduct with deliberate indifference to Plaintiffs’ serious psychological and/or medical needs, placing Plaintiffs in substantial risk of serious harm.
149. Defendant’s deliberate indifference to Plaintiffs’ serious mental health needs has caused, and continues to cause, the Plaintiffs physical pain and suffering, mental anguish, emotional distress, the deterioration of their mental health and an undue risk of serious injury and/or premature death.
150. Defendant’s policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
151. Defendant’s policies, practices, acts and/or omissions have placed or will place the named Plaintiffs and the members of the putative class they seek to represent at an unreasonable risk of suffering new or worsening serious mental illnesses, injuries, and harm.
152. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
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COUNT II (IN THE ALTERNATIVE) Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services) 153. Plaintiffs re-allege and incorporate by reference the allegations set forth in Paragraphs 1 through 133 as if fully set forth herein. 154. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care, during their detention. This right is enforced against the States through the Fourteenth Amendment. 155. As described above, Defendant failed to provide necessary care and treatment for Plaintiffs’ known and well-documented mental health conditions. 156. In particular, Defendant denied Plaintiffs the necessary medical and psychological care required to treat individuals who are psychologically traumatized and/or have engaged in self-mutilation. 157. By failing to provide Plaintiffs with appropriate mental health care and treatment, Defendant has failed to exercise appropriate professional judgment, and/or exercised decision-making that is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the Defendant has not actually based its decision-making on such a judgment. 158. Defendant’s failure to adequately treat Plaintiffs’ mental health needs has caused, and continues to cause, physical pain and suffering, mental anguish, emotional distress, the deterioration of their mental health and an undue risk of serious injury and/or premature death.
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159. Defendant’s policies, practices, acts and/or omissions constitute a failure to exercise professional judgment and/or a substantial departure from accepted professional judgment, practice, or standards as to the appropriate treatment of the mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
160. Defendant’s policies, practices, acts and/or omissions have placed or will place the named Plaintiffs and the members of the putative class they seek to represent at an unreasonable risk of suffering new or worsening serious mental health illnesses, injuries, and harm.
161. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth. COUNT III Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of Race)
162. Plaintiffs re-allege and incorporate by reference the allegations set forth in Paragraphs 1 through 133 as if fully set forth herein.
163. Plaintiffs enjoy a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of their race.
164. Plaintiffs, who are Latino, have been treated differently than Caucasian youth detained at the facility with whom they are otherwise similarly situated.
165. Defendant’s actions towards Plaintiffs and other immigrant youth indicate that such unequal treatment is the result of intentional or purposeful discrimination.
166. There is no legitimate penological interest or rational basis for subjecting Plaintiffs and
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other immigrant youth to unequal treatment on the basis of their race. 167. Due to Defendant’s arbitrary and irrational discrimination against Plaintiffs and putative
class members on the basis of their race, the Defendant has denied the Plaintiffs and others similarly situated their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. 168. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT IV Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of National Origin) 169. Plaintiffs re-allege and incorporate by reference the allegations set forth in Paragraphs 1 through 133 as if fully set forth herein. 170. Plaintiffs enjoy a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of their national origin. 171. Plaintiffs, who are citizens of Mexico and Central America, have been treated differently than United States citizen youth detained at the facility with whom they are otherwise similarly situated. 172. Defendant’s actions towards Plaintiffs and other immigrant youth indicate that such unequal treatment is the result of intentional or purposeful discrimination. 173. There is no legitimate penological interest or rational basis for subjecting Plaintiffs and other immigrant youth to unequal treatment on the basis of their national origin. 174. Due to Defendant’s arbitrary and irrational discrimination against Plaintiffs and putative
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class members on the basis of their national origin, the Defendant has denied the Plaintiffs and others similarly situated their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. 175. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: a. Declare that the acts and omissions of the Defendant as alleged in this Complaint
violate the Constitution and laws of the United States; b. Enter a preliminary and permanent injunction requiring the Defendant, its agents,
employees and all persons acting in concert with or on behalf of the Defendant to cease their unconstitutional and unlawful practices; c. Certify this case as a Class Action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2); d. Designate undersigned counsel as attorneys for the certified class; e. Award to the Plaintiffs reasonable costs and attorney's fees; and f. Grant the Plaintiffs all such other further relief as the Court deems just.
JURY DEMAND Plaintiffs demand trial by jury for all claims which may be so tried.

Dated: January 31, 2018

Respectfully submitted,
By: /s/ Christine T. Dinan Christine T. Dinan (VSB No. 84556) Hannah M. Lieberman (admitted pro hac vice)

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WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone) (202) 319-1010 (facsimile) christine_dinan@washlaw.org hannah_lieberman@washlaw.org Theodore A. Howard (admitted pro hac vice) Bradley C. Tobias (VSB No. 88046) WILEY REIN LLP 1776 K Street NW Washington, D.C. 20006 (202) 719-7120 (telephone) thoward@wileyrein.com btobias@wileyrein.com Attorneys for Plaintiffs John Doe 1, John Doe 2, and John Doe 3
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division

JOHN DOE 1, et al., by and through their next friend, NELSON LOPEZ, on behalf of themselves and all persons similarly situated,
Plaintiffi,

Civil No. 5: l 7-cv-00097-EKD Judge Elizabeth K. Dillon

V.

SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Christine T. Dinan (VSB No. 84556) Hannah M. Lieberman (admitted pro hac vice) WASHINGTON LAWYERS ' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036

Theodore A. Howard (admitted pro hac vice) Bradley C. Tobias (VSB No. 88046) WILEY REIN LLP 1776 K Street, NW Washington DC 20006

Attorneys for Plaintiffs

Case 5:17-cv-00097-EKD-JCH Document 34 Filed 02/28/18 Page 1 of 44 Pageid#: 194

TABLE OF CONTENTS

Page(s)

Table of Authorities ......... ............................................................................................................... ii

INTRODUCTION AND STATEMENT OF THE CASE ............................................................... l

STATEMENT OF RELEVANT FACTS ........................................................................................5

A. Conditions Of Confinement At SVJC .....................................................................5

1. Plaintiff John Doe 1 ........................................................................................... 5 2. Plaintiff John Doe 2 ...........................................................................................7 3. Plaintiff John Doe 3 ........................................................................................... 8 4. Former SVJC Detainees ..................................................................................... 9

B. Plaintiffs' Experts' Opinions ................................................................................. 12

GOVERNING LEGAL STANDARD ........................................................................................... 17

ARGUMENT .................................................................................................................................21

THE INFLICTION OF IMPROPER, EXCESSIVE AND INHERENTLY INJURIOUS FORMS OF DISCIPLINE AND PUNISHMENT UPON TRAUMATIZED, OFTEN MENTALLY ILL PLAINTIFFS AT THE DEFENDANT'S FACILITY SHOULD BE ENJOINED PENDING RESOLUTION OF THIS ACTION .......................................................21

I. The Plaintiffs Are Substantially Likely To Succeed On The Merits Of Their Constitutional Claims That Defendant Used Excessive, Inappropriate Forms Of Discipline And Punishment, And Improperly Denied Them Adequate Mental Health Care .........................................................21

A. Excessive Physical Force ...........................................................................22

B. Denial Of Adequate Mental Health Treatment.. ........................................28

2. The Plaintiffs Are Suffering Irreparable Harm As A Result Of The Defendant' s Practices As To Which An Injunction Is Sought ..............................32

3. The Balance Of Equities And The Public Interest Weigh Heavily In Favor Of A Preliminary Injunction ........................................................................36

CONCLUSION ..............................................................................................................................37

Case 5:17-cv-00097-EKD-JCH Document 34 Filed 02/28/18 Page 2 of 44 Pageid#: 195

TABLE OF AUTHORITIES
Page(s)
Cases
Alexander S. ex rel. Bowers v. Boyd, 876 F. Supp. 773 (D.S.C. 1995) ......................................................................................... 22, 30
Centro Tepeyac v. Montgomery Cty. , 722 F.3d 184 (4th Cir. 2013) ....................................................................................... 18, 19, 36
D.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) .............................................................................................21 , 22
Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017) ....................................................................................... 17, 20, 35
Dilworth v. Adams, 841 F.3d 246 (4th Cir. 2016) ...................................................................................................24
Draego v. City ofCharlottesville, VA, No. 3:16-cv-00057 NKM, 2016 WL 6834025 (W.D. Va. Nov. 18, 2016) ............ 17, 18, 19, 20
Giavani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) ................................................................................................... 18
Gisbert v. U.S. Att'y Gen., 988 F.2d 1437 (5th Cir. 1993) .................................................................................................21
Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc. , 193 F.Supp.3d 556 (E.D. Va. 2016), ajf'd, 700 F. App'x 251 (4th Cir. 2017) ............ 17, 19, 32
Heyer v. US Bureau ofPrisons 849 F.3d 202 (4th Cir. 2017) ...................................................................................................30
Doe ex rel. Johnson v. S. C. Dep 't ofSoc. Servs. , 597 F.3d 163 (4th Cir. 2010) ................................................................................................... 21
Kingsley v. Hendrickson , 135 S. Ct. 2466 (2015) ...........................................................................................23 , 24, 25, 27
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ................................................................................................................. 21
Marietta Mem 'l Hosp. v. W Va. Health Care Auth. , No. 2:16-cv-08603 , 2016 WL 7363052 (S.D. W.Va. Dec. 19, 2016) .....................................34
11
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Matthews v. Diaz, 426 U.S. 67 (1976) ................................................................................................................... 21
Metro. Reg'! Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013) ............................................................................................. 16, 17
Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir. 1994) .....................................................................................................32
Newsome ex rel. Newsome v. Albermarle Cty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) ............................................................................................. 19, 36
Oliver v. Baity, 208 F. Supp. 3d 681 (M.D.N.C. 2016) ....................................................................................24
Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ................................................................................. 17, 19, 20, 35
Patten v. Nichols, 274 F.3d 829 (4th Cir. 2001) ....................................................................................... 22, 23, 29
Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................................................. 21
Potomac Conj Corp. ofSeventh-Day Adventists v. Takoma Acad. Alumni Ass 'n, Inc., No. Civ. A. DKC 13-1128, 2014 WL 857947 (D. Md. March 4, 2014) ........................... 18, 32
R.!L. R. v. Johnson , 80 F. Supp. 3d 164 (D.D.C. 2015) .......................................................................................... .35
Real Truth About Obama, Inc., v. FEC, 575 F.3d 342 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010) .............. 16, 17
Santos v. Smith, 260 F.Supp.3d 598 (W.D. Va. 2017) ....................................................................................... 21
SAS Inst. , Inc., v. World Programming Ltd, 874 F.3d 370 (4th Cir. 2017) ............................................................................................. 17, 32
Schall v. Martin, 467 U.S. 253 ( l 984) .................................................................................................................22
Signature Flight Support Corp. v. Landow Aviation Ltd P 'ship, 442 F. App'x 776 (4th Cir. 2011) ...................................................................................... 18, 32
Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1988) ................................................................................................... 19
111
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Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 (2008) ...... :........................................................... .................... ....................... passim
Yick Wo v. Hopkins , 118 U.S. 356 (1886) ................................................................................................................. 21
Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................1 ...................................28, 29, 30
Zavydas v. Davis, 533 U.S. 678 (2001) .................................................................................................................21
RULES AND REGULATIONS Fed. R. Civ. P. 65(c) ......................................................................................................................20
IV
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Plaintiffs Jolm Doe 1, et al., by and tlu-ough their next friend, Nelson Lopez, by their undersigned attorneys, submit this Memorandum of Law in support of their Motion for Preliminary Injunction. For the reasons set forth below, Plaintiffs seek preliminary relief to suspend implementation of Defendant's excessive, abusive, and irreparably punitive and disciplinary practices and denial of adequate mental health care that continue to subject Plaintiffs to physical, emotional and psychological damage, in violation of fundan1ental constitutional norms.
INTRODUCTION AND STATEMENT OF THE CASE On October 4, 2017, John Doe l, the original named Plaintiff, 1 filed a Class Action Complaint, alleging that he and a class of similarly-situated unaccompanied immigrant children who are in the custody of the Office of Refugee Resettlement of the U.S. Department of Health and Human Services(' ORR") and detained by ORR at the Shenandoah Valley Juvenile Center ("SYJC"), an ORR contract facility owned and operated by the Defendant have been subjected to conditions of confinement at SVJC that violate the Plaintiffs' constitutional rights. See ECF Dkt. No. 1. Specifically, the Complaint asserted, on the basis of detailed allegations reflecting John Doe 1's experiences while in detention at SVJC beginning in April 2016, that he and the other immigrant detainees in custody at the facility were routinely subjected to: (i) race and national origin-related discriminatory practices by the facility's predominately white, non Spanishspeaking correctional staff; (ii) physical and verbal abuse, excessive physical force and excessive
The original Complaint was accompanied by a Motion seeking leave of the Court to permit John Doe to proceed in the litigation on an anonymous basis in order to shield his identity from publ ic disclosure in light of his age and the nature of the matters alleged. The Court, without objection by the Defendant, granted the Motion on or about November 9, 2017. See ECF Docket No. 12.
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solitary confinement and restraints, all as punishment for purported misconduct of any kind

allegedly engaged in by the children; and (iii) a pervasive failure to provide even minimally

adequate treatment with respect to an entire class of children traumatized by their past

experiences, many of whom suffered from clearly manifesting mental illness in various levels of

severity including, in some instances, very serious self-harm. See generally, ECF Dkt. No. 1,

39-98. These allegations served as the foundation for multiple claims seeking declaratory and

injunctive relief on behalf of the class under the Fifth and Fourteenth Amendments to the U.S.

Constitution and 42 U.S.C. § 1983. See id.,~~ 105-147.

The Defendant, Shenandoah Valley Juvenile Center Commission ("Shenandoah" or "the

Commission"), by counsel, filed its Answer to the original Complaint on November 3, 2017. See

ECF Dkt. No. 8. The Answer did not include any Affirmative Defenses, id. , but generally denied

the allegations of the Complaint. Notably, however, the Answer admitted:

•

That the majority of SVJC staff members are Caucasian and do not speak

Spanish;

•

That the majority of the local juvenile offenders detained at SVJC are Caucasian

and were born in the U.S.;

•

That confinement and restraints are used when immigrant detainees fight with one

another or fight with staff, and that "restraints are used when youth ... engage in

self-harm....";

•

That approximately two weeks after his arrival at SVJC, Plaintiff John Doe 1

"was evaluated by a psychologist ... and diagnosed with conduct disorder,

disruptive mood dysregulation and depressive disorder";

•

That "[s]ince his initial psychological evaluation, attention to Doe 1's mental

health has been primarily provided by Evenor Aleman, a licensed professional

counselor";

•

That "Plaintiff [Doe 1] has engaged in self-harm by cutting his wrists and banging

his head against the wall or floor while at SVJC";

•

That, on or about August 21 , 201 7, "Plaintiff [Doe 1] wrapped a curtain around

his neck ... and that Plaintiff has repeatedly expressed a desire to kill himself'·

2

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•

That " [o]ther immigrant youth have also engaged in cutting and other self-

harming behaviors, including ingesting shampoo and attempting to choke

themselves";

•

That "SVJC staff are aware that Doe 1 and other immigrant youth engage in

cutting and other self-harming behaviors ... [and] have seen visible scarring on

[Doe l's] wrists, a distinct marker of self-mutilation, and [that] Doe 1 has

reported these behaviors to Mr. Aleman on multiple occasions";

•

That " [i]solating children who are suicidal is exh·emely damaging, and violates

well-established professional standards"; and

•

That "there is no legitimate penological interest or rational basis for subjecting

Plaintiff and other immigrant youth to unequal treatment on the basis of their

race ... or national original."

See ECF Dkt. No. 8, 39, 69, 81-82, 86, 88-89, 91, 97, 138 and 145. The Defendant denied

that any of these admitted facts would support a class action, ostensibly because "the factual

allegations of the Complaint are particular to Plaintiff [Doe 1]." Id., IO 1.

Following the filing of the Defendant' s Answer, an Initial Rule 16 Conference was held

on December 4, 2017, and counsel for the parties jointly submitted a proposed Scheduling Order

on December 13 , 2017. At the time of that submission, the parties advised the Court that

Plaintiff John Doe 1 had been transferred to another ORR secure facility and requested a Status

Conference at which the possible legal significance of that development could be addressed.

During the January 9, 2018 Status Conference, Plaintiffs, without objection, were granted leave

to amend their pleadings. See Minute Order (ECF Dkt. No. 16).

Plaintiffs filed their First Amended Complaint, incorporating the allegations of two

additional named Plaintiffs, John Doe 2 and John Doe 3, on January 31 , 2018. See ECF Dkt.

No. 22. The Defendant answered the First Amended Complaint on February 14, 2018. ECF

Dkt. No. 26.

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As before, the Defendant did not raise any Affirmative Defenses. And, without altering

any of its prior admissions with respect to the allegations of the original Complaint, Defendant

acknowledged the following with respect to the allegations of John Doe 2 and John Doe 3:

•

While he was detained at a prior facility, " Doe 2 saw a doctor and was diagnosed

with attention deficit/hyperactivity disorder (ADl-ID), depression and anger

management issues;"

•

That Doe 2 engaged in self harm involving the creation of "superficial scratches

on this [sic] ann due to feeling frustrated while housed at [the prior detention

facility];"

•

That Doe 3 "reported" being threatened with death by a gang in Honduras;

•

That Doe 3 "has been restrained by SYJC staff members" when deemed by them

to be " necessary to protect him from hurting himself and others;"

•

That "[c]onfinement and restraints are used" at SVJC "when youth fight with one

another or fight with staff' and that "restraints are used" at SVJC "when youth

continue to engage in self-harm and less restrictive measures have been

exhausted[.] ";

•

That " [Doe 3] has been confined in his room" purportedly "for a limited time

while wearing boxers after he has [allegedly] destroyed his other clothes.";

•

That " [Doe 2 and Doe 3] have been temporarily confined to their rooms without a

mattress, [allegedly] for time periods ofless than half a day," purportedly when

they "have either destroyed their mattresses or are acting aggressively" in light of

an alleged history of mattress destruction;

•

That "an emergency restraint chair is utilized," purportedly "as the last step of a

progressive response to aggressive behavior by residents," and that"[w]hen the

emergency chair is utilized, residents are restrained by their arms , legs, and torso,

and a spit mask is placed on the resident to prevent staff from being spit [sic]

upon or bitten[.]";

•

That Doe 2 "has been diagnosed with ADHD, major depressive disorder, conduct

disorder, intermittent explosive disorder, and general anxiety disorder.";

•

That, as with Doe 1, attention to Doe 2's mental health at SVJC has primarily

been provided by Evenor Aleman, a licensed professional counselor; and

•

That Doe 2 has engaged in self-harm at SVJC."

4

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ECF Dkt. No. 26, 1121, 22, 27, 75, 92(a), 92(b), IOO(a), lOO(b), IOl(a), (b), 107(b), 109 and 114.
STATEMENT OF RELEVANT FACTS A. Conditions Of Confinement at SVJC Immigrant youth detained at SVJC nniformly describe a facility in which they are regularly, routinely subjected to verbal and physical abuse, harassing and taunting by staff and experience harsh, disproportionate discipline and pnnishment for behavioral issues that, in many instances, are either directly provoked by the abusive treatment they receive or are manifestations of mental health problems for which little, if any , treatment is provided. These conditions violate settled constitutional notms and deprive the Plaintiffs and all other immigrant detainees at SVJC of their entitlement to a reasonably safe environment free from harm and an excessive risk of harm.
l. Plaintiff John Doe 1 Plaintiff Doe l , 17 years of age, was detained at SVJC from April 2016 to December 2017. See Plaintiffs' First Amended Class Action Complaint ("Am. Comp."), 116-12;
Declaration of Doe 1, dated Jan. 17, 2018, ~[1 I, 5. 2 Doe I remains in the custody of ORR and is
currently detained at the Northern Virginia Juvenile Detention Center ("NOVA"), from which he is subject to being retransferred to SVJC at any time. Am Comp., 112.
Soon after his arrival at SVJC in April 2016, Doe 1 was evaluated by a psychologist, Dr. Gustavo Rife, and was diagnosed with conduct disorder, disruptive mood dysregulation, and
2 A redacted copy of Doe 1's sworn Declaration is attached to the publicly-filed version of this Memorandum as Exhibit 1 thereto. The unredacted version of Doe l's Declaration will be filed under seal pursuant to W.D.Va. Gen. Local Rule 9 and this Court's Order entered February 26, 2018 (ECF Dkt. No. 30).
5
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depressive disorder. Am Comp.,~ 107; compare Defendant's Answer to Plaintiffs' First Amended Class Action Complaint ("Answer"),~ 107; see also Declaration of Doe 1, 6. Following his initial evaluation session with Dr. Rife Doe 1 was not examined or treated by any psychologist during the remainder of his detention at SVJC. Am. Comp.,~ 108; Answer,~ 108. Attention to Doe l 's mental health problems was provided solely by a staff member, Evener Aleman, a counselor with whom Doe 1 generally met on a weekly basis. Am Comp.,~ 109; Answer,~ 109.
Although Doe 1 never engaged in self-harm before he came to the United States, he learned this behavior by observing other children while in ORR custody and began to harm himself shortly after his arrival at SVJC. Am. Comp.,~~ 111-113; Answer,~~ 111-113; Declaration of Doe 1, 23-29. Doe 1 cut his wrists with pieces of glass or plastic, and would sometimes bang his head against the wall or the floor when he was angry or sad. Id. Doe I told his counselor, Mr. Aleman, that he was harming himself and other staff were aware of this because they could see the scarring on Doe 1's wrists resulting from his self-mutilation. Am. Comp.~ 111; Answer,~ 111; see also Am. Comp.,~~ 119-121; Declaration of Doe 1, 24. Staff members advised Doe l on multiple occasions that they did not care that he was engaging in self-harm. Id.
On or about August 21, 2017, Doe 1 unsuccessfully attempted to commit suicide by hanging himself with a curtain. Am. Comp.,~ 116; Answer,~ 116; Declaration of Doe 1, 27. SY.TC responded not by providing Doe 1 with treatment or therapy , but rather by removing all of his clothes and placing him on restriction for several days. Am. Comp., 116; Declaration of Doe 1, ~27.
6
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Apart from its lack of appropriate responsiveness to Doe l's repeated, glaring manifestations of mental illness, SVJC subjected Doe 1 to a variety of other forms of mistreatment. He was subject to verbal or physical abuse, or both, by staff on a regular basis. Declaration of Doe 1, I 0. Adverse reactions by Doe 1 to such provocation were met with brutal beatings, placement in restraints - including, on multiple occasions, being strapped to a chair, sometimes for hours on end - and solitary confinement. 11, 14-17, 19-22. Doe I frequently saw other immigrant detainees at SVJC subjected to similar punitive measures. Id. ,
18. 2. Plaintiff John Doe 2
Plaintiff Doe 2, a 16-year old, while detained in a facility in Texas prior to being transferred to SVJC in September 2017, was evaluated by a psychologist who told him he had ADHD, depression and anger management issues. Declaration of Doe 2, dated Jan. 5, 2018,
7. 3 Defendant admits that Doe 2 suffers from attention deficit hyperactivity disorder (ADHD), major depressive disorder, conduct disorder, intermittent explosive disorder, and general anxiety. Answer, ~ 21. While in detention in Texas, feelings of extreme anger and/or sadness caused Doe 2 to begin engaging in self-harm. Declaration of Doe 2, 9; Answer,~ 22. After anival at SVJC, Doe 2 was told he had been transfened there because of behavioral issues, and he was assigned to live in Alpha Pod, where the "bad" kids were sent. Declaration of Doe 2, 13-14.
Doe 2 experiences feelings of great anger and sadness resulting from his detention at SY.TC. Id. , ~ 24. When he has expressed his frustration with his circumstances, those
3 A redacted copy of Doe 2' s sworn Declaration is attached to the publicly-filed version of this Memorandum as Exhibit 2 thereto. The unredacted version of Doe 2' s Declaration will be filed under seal pursuant to W.D.Va. Gen. Local Rule 9 and this Court' s Order entered February 26, 2018 (ECF Dkt. No. 30).
7
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expressions have been routinely met by staff with physical assaults, application of restraints, deprivation of possessions and isolation. Id., 1125, 29, 32-33. On at least one occasion, Doe 2 was punished by having his arms and legs strapped to a chair and some form of hood pulled
down over his head and face over an extended period of time. Id. , 11 30-31, see generally
Answer, 11101(a),(b). He has suffered painful bruises on his wrists his ribs and his shoulder as
a result of physical force inflicted upon him by staff. Id., 1 33.
3. Plaintiff John Doe 3 Plaintiff Doe 3, who is 15 years old, was transferred to SVJC in early August of 2017, only a few weeks after having been apprehended by ICE while crossing the border from Mexico into the U.S. after fleeing gang violence in his native Honduras. Am. Comp., 1127-29;
Declaration of Doe 3, dated Jan. 5, 2018, 111, 5.4 See also Answer, 127. Since arriving at
SVJC, Doe 3 has been place "on restriction" - i.e., subjected to solitary confinement - more than
10 times "for any little thing." Declaration of Doe 3, 19. For holding the door and letting others
enter the classroom before him, Doe 3 was subjected to verbal abuse and a physical assault by staff members, and then placed on restriction in hi s room, with his mattress, blanket and all
clothing but his boxer shorts removed. Id., 11 10-11; see also Answer, 1175, 1OO(a) (admitting
that Doe 3 was confined to room while only wearing boxers); 1OO(b)(admitting that Does 2 and 3 have been confined to their rooms without mattresses). Sometimes Doe 3 has been confined to his room in handcuffs and leg restraints, and he has been subjected to beatings by staff while
restrained. Declaration of Doe 3, 1113-15. He was restrained by being strapped to a chair on at
4 A redacted copy of Doe 3's sworn Declaration is attached to the publicly-filed version of this Memorandum as Exhibit 3 thereto. The unredacted version of Doe 3's Declaration will be filed under seal pursuant to W.D.Va. Gen. Local Rule 9 and this Court's Order entered February 26, 2018 (ECF Dkt. No. 30).
8
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least one occasion. Id., ,i 14; see generally Answer, ,i,i lOl(a), (b) (admitting use of "emergency
restraint chair").
4. Former SVJC Detainees
The verbal and physical abuse, instances of excessive restraint and imposition of solitary
confinement and failure to address mental health concerns recounted by Plaintiffs Doe 1, Doe 2
and Doe 3 are also reflected in the sworn factual accounts of other immigrant youth who
previously spent time in detention at SVJC.
An especially harrowing account of some of the practices employed against immigrant
detainees at SVJC is provided by J.A. , a 15-year old who was detained at SVJC for several
months. He relates:
6. At Shenandoah, they punished us by putting us in solitary confinement for Jong periods of time. If we got in a fight, refused to go to our rooms or to follow the program, or broke the rules in another minor way, they would put us in om rooms for weeks at a time. Three times, they put me into my room in solitary confinement for two weeks, and one time, they put me in my room for three and a half weeks. When we were in solitary confinement, they did not let us out for any reason, including to eat, take showers or use the bathroom . Each room had a bathroom which we used to do our necessities so we would not go out. We had to do all of that in our rooms. I didn't know of any way to appeal or challenge the staff's decision to put me into solitary confinement; no one seemed to pay attention to how they were treating us.
7. They also tied us to restraint chairs as punishment. One time, when I was at Shenandoah, I didn't want to go into my room. The staff members reacted by pushing me to the floor, and one of the staff members grabbed my head and forced my head down to the ground. Then they handcuffed me and put a white bag of some kind onto my head. They took off all my clothes and put me into a restraint chair, where they attached my hands and feet to the chair. They also put a strap across my chest. They left me naked attached to that chair for two and a half days, including at night. They took the bag off my head when they sat me down on the restraint chair. There were staff members in the room at times but they would leave me alone for a few hours. I do not remember very well. I never saw a doctor while I was in the chair or after they took me out.
8. I saw three other children tied to the restraint chair at different times. Each time, they were left there for about a day.
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Declaration of J.A. , dated Jan. 16, 2018 , 6-8. 5

Declarant D.M., now 20 years of age and free from ORR custody, reported a similar

experience during a period of eight months of secure detention at SYJC commencing in 2014.

By the time he was transfe1Ted to SY.JC, D.M. was already diagnosed with "post-traumatic stress

clisorder, major depressive disorder, and bipolar disorder" as a result of psychological evaluation at a prior ORR detention facility. Declaration ofD.M. dated Jan. 2, 2018, 14.6

Notwithstanding this prior assessment, D.M. was not seen by a psychologist at SY.JC until six

weeks after his transfer there. Id. The mental health medications he had previously been

determined to need were not provided by SY.JC. Id. Moreover, outward manifestations of his

mental illness at SYJC were met not with therapeutic treatment, but rather with punitive

measures:

15. I had a lot of issues [at SYJC) because of my mental diso rder. Whenever I was in crisis - if I was trying to hurt myself inside my cell, or saying things to someone no one el.se could see - they would drag me out of my cell and put me in the restraint chair. All I could see was them running for the chair.

16. Whenever they used to restrain me and put me in the chair, they would handcuff me. Strapped me down all the way; from your feet all the way to your chest, you couldn't really move. Handcuffs would have been enough. Once you ' re strapped down, they have total control over you.

17. They also put a bag over my head. It has little holes; you can see through it. But you feel suffocated with the bag on.

*

*

*

5 Redacted copies of the sworn Declarations referred to in this subsection are attached to the publicly-filed versions of this Memorandum as Exhibits 4-6 thereto. The unredacted versions of these Declarations will be filed under seal pursuant to W.D.Ya. Gen. Local Rule 9 and this Court's Order entered February 26, 2018 (ECF Dkt. No. 30). 6 See n.5, supra.
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20. I saw two other cases, besides me where kids had to be put in the chair. It was when the guards had to break up a fight. I never had a fight in that place. I was placed in the chair when I was having a mental crisis. 21. Every time I was in a crisis. they put me in the chair. The guards never did anything less extreme than that. ...
Id. , ,r,r 15-17, 20-21 (emphasis added).
A disturbingly consistent story is recounted by former SVJC detainee R.B., 18 years old, who also is no longer in ORR custody. R.B., who also had a preexisting diagnosis of mental illness before being transferred to SVJC, was determined to have additional mental health problems while there for which he was treated with serious psychotropic drugs. Declaration of
R.B. , dated Jan. 8, 2018, ii 19 ("They keep you drugged there."). 7 R.B. was at SVJC to which
he was transferred based on ..behavioral problems," for a little over three months. During that time, R.B. says he had a fight at least once a week, "with a guard, another kid, or anybody who
wanted to fight me - because I was so angry." Id., ,r 9. Whenever he fought, R.B. was
physically restrained by SVJC staff and then subjected by them to the restraint chair, solitary
confinement, or both . See id., ,r,r 12-17. On at least one occasion, when strapped into the
restraint chair, R.B. had to urinate on himself because SVJC staff would not free him in order to
use the batlu·oom. Id. , if .15.
Although R.B. himself was not subject to provocation by staff during his time at SVJC, he "saw it happen with other kids. [The staffJ would say things to them and challenge them until the kids got really mad and fought back. Then the kids would push the guard, and then the guard would grab both of the kid' s arms and try to force them into a restraint. The guards were twice
7 See n.5 , supra. 11
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the size of the kids, who were 13 or 14 years old, but [the guards] would use their full weight to push [the kids] to the ground. Sometimes it was two guards doing this to a little kid. " Id.,~ 18.
B. Plaintiffs' Experts' Opinions Gregory N. Lewis, Psy.D., is a licensed clinical psychologist with well in excess of twenty years of experience. See Report of Gregory N. Lewis, Psy.D., dated February 27, 2018, (''Lewis Rept. "), 1 (copy attached hereto as Exhibit 7). Dr. Lewis has had extensive first-hand involvement in the assessment and evaluation of children who emigrated to the United States from Central American countries, many of whom were detained by U.S. Customs and Border Patrol, handed over the U.S . Immigration and Customs Enforcement ("ICE"), and eventually entrusted to the custody of ORR. In addition to his direct encounters with such children in connection with asylum and Special Immigrant Juvenile Status ("SI.TS") proceedings, Dr. Lewis has served as a trainer in programs for Physicians for Human Rights, the Vera Institute of Florida the Young Center for Immigrant Children's Rights and the Loyola Center for the Human Rights of Children with respect to the subject of forensic psychological evaluation of trauma in the context of asylum and immigration. Lewis Rept., 7-9. Dr. Lewis has also performed psychological evaluations of numerous unaccompanied minor immigrant children ("UACs") in his capacity as a consulting expert for the plaintiffs in two prior class action lawsuits against governmental detention facilities charged with mistreatment of the immigrant minors detained in
those facilities. Id., ii~ 11-16.
Apart from his work specific to immigrant children, Dr. Lewis has also, through his education, training and employment experiences, developed in-depth familiarity with the U.S. juvenile justice system and the standards governing the proper care and treatment of children affected by trauma and/or mental health problems within the context of that system, and he has both written and spoken on this subject matter. Id. , ~~ 1-3, 5.
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Dr. Lewis first became familiar with the facts and circumstances of detention involving

immigrant children at SVJC as a result of conducting a psychological evaluation of John Doe 1

in August 2017 for purposes of an umelated Immigration Court proceeding. The evaluation was

conducted for 10 hours over the course of two days and included an extensive interview as well

as the administration of a battery of psychological tests and questio1maires. Dr. Lewis was also

provided access to Doe 1's entire set of medical and mental health records as maintained by

ORR. At the time of the evaluation, Doe 1 was a detainee at SVJC. Id. , ,i 24 & Appendix A

thereto.

As a result of his in-depth examination of Doe 1, Dr. Lewis learned that

Doe 1 experienced many forms of repeated and prolonged abuse and punishment while in SVJC detention including teasing and physical abuse from staff, humiliation when being observed using the toilet, being confined to his room or restrained to a chair (sometimes with a mask put over his head) for long periods of time, and being forced to wear handcuffs and shackles. These actions on the part of staff replicated and exacerbated the abuse and teasing he experienced as a child from his father and his peers, and further traumatized Doe I.

*

*

*

[I]t is my opinion that Doe 1's traumatic childhood history of abuse, neglect and teasing has been replicated while in detention. Individuals with this kind of history are extremely vulnerable to becoming emotionally and behaviorally dysregulated in situations where others are saying or doing things that are abusive and demeaning. Even such subtle interpersonal signals as a harsh look, a critical tone of voice, or a humiliating comment could be enough to trigger a traumatic reaction of "fight" of 'fl ight" in someone like Doe 1.

Id., ,i,i 36, 48. On the basis of these findings, Dr. Lewis concluded that the punitive treatment of

John Doe 1 and SVJC's failure to respond appropriately to Doe l's mental health needs were

"abusive" and "exacerbated his prior trauma and caused additional long-term harm. ' Id. , ,i 50.

As a supplement to his knowledge of the policies and practices in effect at SVJC obtained

through his extended interaction with Doe 1, Dr. Lewis reviewed the sworn Declarations

prepared by Plaintiffs John Doe 2 and John Doe 3, as well as three former SVJC detainees, J.A.,

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R.B. and D.M. The accounts of those Declarants reprise the san1e sorts of experiences described

by Doe 1 with respect to verbal abuse by staff, excessive physical assaults, application of

restraints -- including subjection to time in the restraint chair -- and imposition of solitary

confinement, resulting in feelings of anger, frustration, sadness, humiliation and manifestations

of self-inflicted harm. See generally id. , 51-72.

Based on his education, training and substantial experiences in working with traumatized

youth in general and immigrant children in particular, and his familiarity with contemporary

professional standards of care governing practices in the juvenile justice system, Dr. Lewis has

concluded that the Plaintiffs and the former-detainee Declarants all suffered grave mistreatment

as a result of the punitive disciplinary measmes to which each of them was subjected, and that

each of them may have suffered ham1 of an unquantifiable nature. Id. , ~ 91-99. Summarizing

his findings in this regard , he made it clear that these were not merely isolated failures, but the

consequence of deficient facility-wide practices:

The predominant approach utilized at SVJC is that of punishment and behavioral control through such methods as solitary confinement, physical restraint, strapping to a restraint chair, and loss of behavioral levels. These approaches are not only unsuccessful, but are extremely detrimental to detained, trawnatized youth -- especially to UACs. At times the use of solitary confinement and restraint chairs reached the level of what could be considered torture and other cruel, inhuman or degrading treatment or purushment. The use of these methods leads to a vicious cycle in which youth, who are already distrustful and traumatized, become further distrustful and traumatized when staff punish them. This leads them to act out even more and then justifies to the staff the need for further efforis to control and punish the youth.

*

*

*

... It is my opinion that the mental health care and overall care provided at SVJC are deficient and fall far short of the standards of care expected in the juvenile justice system, and that this represents deliberate indifference to the health and mental health needs of the Plaintiffs as well as other detainees at SVJC.
Id. , ~,r 100 I04.

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Importantly, Dr. Lewis noted that a readily achievable, well-established alternative to the harmful practices in effect at SVJC would be a "trauma-informed" model, which would bring the facility into compliance with baseline professional standards. Id. ,~~ 83-87.
Andrea Weisman, Ph.D., is a licensed clinical psychologist whose experience spans nearly 30 years. See Report of Andrea Weisman, Ph.D., dated February 27, 2018 ("Weisman Rept.''), 1 (copy attached hereto as Exhibit 8). Dr. Weisman has worked with juveniles in corrections settings for over 25 years, including five years serving as the Chief of Health Services for the Depa1iment of Youth Rehabilitation Services of Washington, D.C. from 2007 to 2011. Id.,~ 2. She has been appointed to serve as the mental health expert for Cowt-appointed monitors overseeing the implementation of consent decrees addressing the reform of the juvenile justice systems of Pennsylvania, Illinois, Kentucky, California, Ohio and Maine. In Georgia, she assisted the U.S. Department of Justice in monitoring the implementation of a memorandum of understanding reached between the DOJ and the State, in connection with which her focus was on conditions of confinement to which juveniles were subject and the adequacy of the mental health services they were provided. Id.,~ 6. Dr. Weisman has written and spoken extensively on the issues of isolation and mental health services for juveniles involved in the justice system, including testimony before the U.S. Congress in 2007 on mental health issues in the juvenile justice system. Id.,~ 7; see generally Weisman Rept., Exhibit A (curriculum vitae).
Based upon her review of the Declarations of the Plaintiffs and the former-detainee Declarants, Dr. Lewis' Report, and her own substantial education and training, her significant level of familiarity with applicable professional standards and her professional experiences directly pertinent to the subject matter, Dr. Weisman has formed opinions concerning the disciplinary and punitive practices employed by the staff at SVJC in their interactions with the
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immigrant children detained there. She is especial1y concerned with the widespread imposition

of solitary confinement at SVJC, due to the particular risk of harm that this pernicious practice

poses to youth due to their psychological and physiological immaturity:

It is my opinion, within a reasonable degree of certainty in the field of clinical psychology that all juveniles subjected to the SVJC policy and practice of solitary confinement ... are at a substantial risk of serious harm to their socia l, psychological, and emotional development.

*

*

*

Due to their developmental vulnerability, solitary confinement causes juveniles much greater harm than does such confinement of adults, and the risks of solitary confinement to juveniles are alarming.

Weisman Rept. at 5-6. See also id. at 9 ("Medical professionals, including organizations like the

American Medical Association, agree thatjuveniles with mental illnesses should not be placed in

sol itary confinement for longer than one hour without a comprehensive evaluation from a

physician. Solitary confinement should never be used to punish people with mental illness."

Emphasis added.)).

Beyond the concern with use of solitary confinement, Dr. Weisman also criticized SVJC

staffs routine engagement in excessive verbal and physical abuse of immigrant detainees at the

facility and its use of restraints, concluding that "[t]hese overly punitive and degrading practices

at SYJC lead to a culture within which youth cannot possibly be rehabilitated[,] which is the

mandate ofjuvenile correctional facilities. " Id. at 10. In summary, she opines that "[t]he

practices employed by the SVJC create a hostile and punitive environment that runs counter to

all national standards. While implementation of an adequate mental health program may take

time, these practices must cease immediately." Id. at 14. Like Dr. Lewis, Dr. Weisman outlined

the essential components needed to bring SYJC into compliance with applicable national

standards, also drawing on the framework for a trauma-informed approach, including those

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necessary for proper screening, assessment. basic mental health treatment, staff training and grievance procedures for minor detainees. Id. at 11-13.
GOVERNING LEGAL STANDARD
Courts in the Fourth Circuit have expressly adopted and follow the four-part test for preliminary injunctive relief articulated by the Supreme Court of the United States in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 (2008). See Metro Reg'! Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013); Real Truth About Obama, Inc. , v. FEC, 575 F.3d 342,346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (20 l 0). As set forth in Winter, in order to obtain a preliminary injunction , the moving party must establish:
(i) that it has a likelihood of success on the merits; (ii) that it has suffered and will continue to suffer irreparable harm absent the
granting of preliminary relief; (iii) that a balancing of the relevant equities weighs in its favor; and (iv) that the issuance of a preliminary injunction is consistent with the public
interest. 555 U.S. at 20; Metro Reg '! Info. Sys., 722 F.3d at 595; Real Truth About Obama, 575 F.3d at 346; Draego v. City o/Charlottesville, VA, No. 3:16-cv-00057 NKM, 2016 WL 6834025, at *23 (W.D. Va. Nov. 18, 2016); Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 193 F.Supp.3d 556, 565-66 (E.D. Va. 2016), aff'd, 700 F. App'x 251 (4th Cir. 2017). All four factors must be satisfied for the movant to be awarded preliminary injunctive relief. Id.
As an initial matter under the Winter analysis, a plaintiff seeking a preliminary injunction must make a "clear showing" that he or she is likely to succeed at trial on the merits of his or her claim(s). Di Biase v. SPX Corp., 872 F.3d 224,230 (4th Cir. 2017); Pashby v. Delia, 709 F.3d 307,321 (4th Cir. 2013). The courts are careful to note, however, that this "clear showing"
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standard does not amount to a requirement that the plaintiff show that he/she is certain to succeed. Pashby, 709 F.3d at 321 (" plaintiffs need not show a certainty of success").
Next, Winter requires plaintiffs to show that " irreparable injmy is likely in the absence of an injunction." 522 U.S. at 22. Absent the requisite showing of irreparable harm, equitable relief in the form of a preliminary injunction may not be granted. SAS Inst., Inc., v. World Programming Ltd. , 874 F.3d 370, 386 (4th Cir. 2017), citing City ofLos Angeles v. Lyons, 461 U.S. 95 , 111 (1983). A clear showing of existing or imminent harm, neither specifically quantifiable nor readily compensable by monetary relief alone, must be made in order to satisfy the second Winter element; the mere possibility of irreparable harm will not suffice. Handsome Brook Farm, 700 F. App'x at 263 (" [Plaintiff] must show that the likelihood of irreparable harm rises above the threshold of mere possibility and is likely to occur if the request is denied. "); see also Signature Flight Support Corp. v. Landow Aviation Ltd P 'ship, 442 F. App'x 776, 785 (4th Cir. 2011) (noting that Winter standard for irreparable harm is satisfied by plaintiffs demonstration of " harm in fact"); Potomac Conj Corp. ofSeventh-Day Advent;sts v. Takoma Acad. Alumni Ass 'n, Inc. , No. Civ. A. DKC 13-1128, 2014 WL 857947, at* 19 (D. Md. March 4, 2014) (irreparable harm cannot be "remote nor speculative" but rather must be "actual and i m m i n e n t" ).
Finally, the moving plaintiffs must show that the balance of the equities (or the " balance of hardshjps" as expressed by some courts) weighs in their favor, and that a preliminary injunction is favored by or consistent with the pub lic interest. These last two elements of the Winter test are frequently considered together by the courts. See, e.g., Centro Tepeyac v. Montgomery Cty. , 722 F.3d 184, 191 (4th Cir. 2013). Where, as here, the underlying premise for the request for preliminary injunctive relief is alleged conduct violative of constitutional rights,
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courts in the Fowth Circuit have repeatedly acknowledged that the equities favor the granting of relief. See, e.g., Giavani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) ("[A] state is no way harmed by issuance of a preliminary injunction which prevents [it] from enforcing restrictions likely to be found unconstitutional." (Citations and internal quotations omitted.)); Draego, 2016 WL 6834024, at *23 (concluding that "the balance of harms ... weighs exclusively in Plaintiff's favor" because there was no chance that the city government could be harmed by a preliminary injunction "which prevents it from enforcing a regulation ... likely to be found unconstitutional."). Accordingly, to the extent the Plaintiffs here satisfy the " likelihood of success" and " irreparable harm" elements of the Winter analysis, it follows that the balance of equiti es and public interest will strongly favor the granting of the preliminary injunction they seek. See generally Newsom ex rel. Newsom v. Albermarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) ("upholding constitutional rights serves the public interest"); accord Centro Tepeyac, 722 F.3d at 191.
A threshold matter to be considered in the Court's determination as to the rigor with which the four Winter factors are to be applied concerns the particular nature of the preliminary injunction sought. Whether a preliminary injunction is "mandatory" or "prohibitory" in nature affects the strictness with which courts will conduct their inquiry and dictates the standard of appellate review. See Pashby, 709 F.3d at 320; Handsome Brook Farm, 193 F.Supp.3d at 566; Draego , 20 16 WL 6834025, at *24. Here, Plaintiffs submit that the preliminary injunction they seek is primarily prohibitory in nature; such injw1ctions "aim to maintain the status quo and prevent irreparable harm while [the] lawsuit remains pending.'' Pashby, 709 F.3d at 319. Tbe Fourth Circuit has defined the "status quo" for these purposes as "the last uncontested status between the parties which preceded the controversy." Id. at 320, quoting Aggarao v. MOL Ship
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Mgmt. Co., 675 F.3d 355 , 378 (4th Cir. 2012). Here, such "last uncontested status' with respect to the Plaintiffs was when they and those they seek to represent were transferred to SVJC and prior to the onset of application of the practices and procedures chaJlenged as unconstitutional herein against those individuals. The preliminary injunction sought by the Plaintiffs would foreclose SVJC's continuing employment of those inherently injurious practices and procedures against the Plaintiffs during the pendency of this action. See generally Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1988) (mandatory preliminary injunctions compel rather than prohjbit action).
Lastly, under Fed. R. Civ. P. 65(c) , a preliminary injunction can be granted only if the movant provides some form of security in order to protect the defendant from costs incuned in the event it is subsequently detennined that the injunction was improperly granted. In the Fourth Circuit, "the district court retains the discretion to set the bond in the amount it sees fit or waive the security requirement. " Pashby, 709 F.3d at 332. That discretion may, upon due consideration, be exercised to excuse a bond requirement under appropriate circumstances, such as those presented in this case, wherein the Plaintiffs plainly lack financial resources. See, e.g., Draego, 2016 WL 6834025, at *24 (bond waived where plaintiff was "an ordinary citizen unable to post anything more than a nominal bond," but had a strong case on the merits "and the injunction will result in little to no harm to the government" (citing Doe v. Pittsylvania Cty., VA, 842 F.Supp.2d 927, 937 (W.D.Va. 2012) (setting bond at $0 where municipality had little likelihood of success and would suffer no harm for injunction)) .
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ARGUMENT
THE INFLICTION OF IMPROPER, EXCESSIVE AND INHERENTLY INJURIOUS FORMS OF DISCIPLINE AND PUNISHMENT UPON TRAUMATIZED, OFTEN MENTALLY ILL PLAINTIFFS AT THE DEFENDANT'S FACILITY SHOULD BE ENJOINED PENDING RESOLUTION OF THIS ACTION
1. The Plaintiffs Are Substantially Likely to Succeed On the Merits Of Their Constitutional Claims That The Defendant Used Excessive, Inappropriate Forms Of Discipline And Punishment, And Improperly Denied Them Adequate Medical Care
As addressed above, Plaintiffs must first demonstrate a "clear showing" that they are
likely to succeed on the merits of their claims. Winter , 555 U.S. at 22; Di Biase, 872 F.3d at 230.
Accordingly, Plaintiffs must demonstrate that they are likely to prevail on their contentions that,
in subjecting them and other putative class members at SVJC to (1) the excessive forms of
discipline and punishment routinely imposed by the staff at the facility, and (2) withholding from
the Plaintiffs and similarly-situated immigrant youth at the facility adequate mental health care,
the Defendant has violated and continues to violate Plaintiffs' substantive rights under the Fifth
Amendment, as made applicable to the States by the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment bars States from "depriv[ing] any person of life, liberty or property, without due process of Jaw." U.S. Const. amend. XIV, § I. The Clause "guarantees more than fair process." Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (internal quotation marks omitted). It "also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests." Id. (internal quotation marks omitted); see County of Sacramento v. Lewis, 523 U.S. 833 , 840 (1998) (The Due Process Clause "cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them. " (internal quotation marks omitted); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995) (' Substantive due process ... is an absolute check on certain governmental actions notwithstanding the fairness of the procedures used to implement them.' (internal quotation marks omitted)).
Doe ex ref. Johnson v. SC. Dep'tofSoc. Servs., 597 F.3d 163,1 70 (4th Cir. 2010); accordD.B.
v. Cardall, 826 F.3d 721 , 740 (4th Cir. 2016). Notwithstanding their status as cunently
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undocumented immigrants, there is no question that the Plaintiffs are entitled to the protections afforded by the Due Process Clause. See generally Zavydas v. Davis, 533 U.S. 678, 693 (200 I) ("[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent. See Plyler v. Doe , 457 U.S. 202,210 (1982); Matthews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98 & n.5 (1953); Yick Wo v. Hopkins , 118 U.S. 356 (1886)."); accord Santos v. Sm ith, 260 F. Supp. 3d 598, 609 (W.D. Va. June I, 2017) (citing Zavydas).
A. Excessive Physical Force The Plaintiffs ' "libe11y interests" subject to protection under substantive due process principles include the right to be free from excessive physical abuse and punishment at the hands of State actors such as staff members at SVJC. See Gisbert v. US. Ally Gen., 988 F.2d 1437, 1442 (5th Cir. 1993) ("[W]hatever due process rights excludable aliens may be denied by virtue of their status, they are enti tied under the due process clauses of the fifth and fourteenth amendments to be free from gross physical abuse at the hands of state or federal officials." (citing Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987)). The same protections apply to detained juveniles generally. Alexander S. ex rel. Bowers v. Boyd, 876 F. Supp. 773 , 797-98 (D.S.C. 1995) ("[T]be Due Process Clause guarantees to juveniles who are incarcerated the right to reasonably safe conditions of confinement [and] freedom from umeasonable bodily restraint[.] ... Safety, in [this] context ... encompasses the Plaintiffs' right to reasonable protection from the aggression of others, whether ' others' be juveniles or staff." (Citations omitted.)); see generally Schall v. Martin, 467 U.S. 253,269 (1984) (it is "axiomatic" that "particular restrictions and conditions of confinement amounting to punishment" are unconstitutional if imposed upon juveniles in pretrial detention).
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While the foregoing authorities clearly estab lish that the rights the Plaintiffs seek to
vindicate pursuant to the claims asserted in their First Amended Complaint are cognizable and
subject to protection under the Due Process Clause, Plaintiffs must also show that the nature of
the Defendant's conduct, in alleged abrogation of those rights, meets the heightened standard
pursuant to which liability may be imposed for a constitutional violation. In this regard, "there
are 'two strands of the substantive due process doctrine.' The first strand protects rights that are
'fundamental,' whereas the second 'protects against the exercise of governmental power that
shocks the conscience."' Carda!!, 826 F.3d at 740, quoting Seegmiller v. LaVerkin City, 528
F.3d 762 767 (10th Cir. 2008). Elaborating on the latter "strand" of substantive due process
analysis, which the Plaintiffs have invoked here, 8 the Court of Appeals, in Patten v. Nichols, 274
F.3d 829 (4th Cir. 2001), stated as follows:
The substantive component of the due process clause protects against only the most egregious, arbitrary governmental conduct -- that is, conduct that can be said to "shock[] the conscience." County ofSacramento v. Lewis, 523 U.S. 833, 846 (199); see also Young v. City ofMount Ranier, 238 F.3d 567,574 (4th Cir. 2001). Depending on the circumstances of each case however "different degrees of fault may rise to the level of conscience-shocking." Young, 238 F.3d at 574; see Lewis, 523 U.S. at 850 ( 'Rules of due process am not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another. .. .''): Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) ("The exact degree of wrongfulness necessary to reach the 'conscience-shocking' level depends upon the circumstances of a particular case."). While it is clear that intentionally harmful conduct may constitute a violation ofthe Fourteenth Amendment, it is equally clear that negligence alone does not amount to a constitutional violation. See Lewis, 523 U.S. at 849 ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.... [C]onduct intended to injure in some way unjustifiable by any governmental interest is the sort ofofficial action most likely to rise to the 'conscience-shocking' level.").
8 See First Amended Complaint (ECF Dkt. No. 22), 1 ("Plaintiffs and other similarly situated young people at SVJC are subjected to unconstitutional conditions that shock the conscience, including violence by staff, abusive and excessive use of seclusion and restraints, and denial of necessary mental health care. ').
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Id. at 834 (emphasis added). In determining whether the Plaintiffs' claims premised upon the Defendant's use of
excessive physical force and the imposition ofrestraints upon them and other similarly-situated immigrant youth detained at SVJC implicate unconstitutional "conscience-shocking" conduct on the Defendant's part, trial comis are to apply the standard of "objective reasonableness'' endorsed by the Supreme Comi in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). In Kingsley, presented with the question of whether a physical altercation between jail officers and a suspected drug offender under pretrial detention involved the use of excessive force in violation of the detainee's substantive due process rights under the Fourteenth Amendment, the Court had to decide whether the applicable standard by which the officers' conduct should be judged was "objective reasonableness" under the circumstances alleged, or whether a subjective standard should apply under which the plaintiff would have to plead and prove "that the use of force was not applied in a good faith effo11 to maintain or restore discipline' but, rather, was applied 'maliciously and sadistically to cause harm."' 135 S. Ct. at 2469, 2475 (citations omitted).
Noting that the intentional nature of the officers' acts constituting force was not in dispute, but only whether or not the acts were excessive, the Comt embraced the proposition "that a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Id. at 2473. In so holding the Court acknowledged that "obj ective reasonableness turns on the 'facts and circumstances of each particular case,"' and noted that the Court's determination must be made "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Id.; see generally Dilworth v. Adams, 841 F.3d 246, 255-56 (4th Cir. 2016); Oliver v. Baity, 208 F. Supp. 3d 681,695 (M.D.N.C. 2016).
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Observing that some degree of deference is due the relevant governmental entity's interest in maintaining internal order, discipline and security, the Comt stated:
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintifrs injury; any effort made by the officer to temper or limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. We do not consider this list to be exclusive. We mention these factors only to illustrate the types of objective circumstances potentially relevant to a determination of excessive force. Kingsley, 135 S. Ct. at 2473 (citation omitted). Assessing Plaintiffs' evidence, as set forth in sworn Declarations, regarding the physical assaults and exposure to restraints to which they have been and continue to be subjected at SVJC in light of the considerations outlined in Kingsley, the conclusion is inescapable that the degree of force in use against minor immigrant detainees at the facility is excessive and objectively unreasonable. Even assuming, for the sake of argument, that the use of some level of force on the part of SVJC's adult staff is occasionally necessary to break up a fight between detainees or to control a child manifesting temperamental behavior, nothing in the nature of the brutal physical abuse related by the Plaintiffs and suppo11ing Declarants is warranted as a response to the circumstances to which they attest. Indeed, applying the factors set forth in Kingsley, it is clear that the amount of force used by SVJC staff on detainees is consistently grossly disproportionate to the "need" for such force. Each of the Plantiffs and several of the Declarants describe incidents in which they were shoved to the ground (or headfirst into a concrete wall) by one or several adult staff members, who were much larger than them in size, for any perceived slight. Doe 1, while at SVJC, was subject to verbal and physical abuse by staff on a regular basis. Any adverse reaction on his part was met with brutal beatings, including being shoved to the floor by several staff members at one time
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and hit in the abdomen after having "pushed" a staff member who had repeatedly taunted him.
Declaration of Doe 1, ,r,r 10-11; see also ,r,r 14-17, 19-22. Doe 2 reports that when he has
expressed his frustration with being detained at SVJC, those expressions have been routinely met by staff with physical assaults, including having his face pushed into the wall while he was handcuffed and being poked in the ribs and grabbed by the jaw by three or four staff members at
a time. Declaration of Doe 2, ,r,r 25, 29, 32. For merely holding a door open for others entering
a classroom, Doe 3 was physically assaulted by staff and then solitarily confined to his room with his mattress, blanket and all clothing but his boxer shorts removed. Declaration of Doe 3,
,r,r 10-11.
The Declarations of former SVJC detainees attest to virtually the same adverse experiences. For resisting going to his room, Declarant J.A. was physically assaulted, handcuffed, stripped naked and bound to a restraint chair for multiple days. Declaration of J.A.,
,r,r 6-8. He noted that he and other immigrant children at SVJC were frequently placed in
solitary confinement in their rooms for weeks at a time for breaking the rules in any ' minor way." Id. Declarant D.M. similarly described how youths were placed in solitary confinement
in their rooms for such trivial offenses as not reading a book. Declaration of D.M., ,r 8. Such
brutal applications of force scarcely could have been deemed necessary to respond to the threats allegedly posed by frustrated adolescents who failed to follow staff directives.
Defendant's regular and prolonged use of a restraint chair for behavioral incidents that are similarly minor, and often manifestations of serious mental health problems, is especially hanowing. Declarant D.M. was dragged bodily out of his room and placed in a restraint chair with a suffocating bag over his bead in response to behavior reflecting his mental health
problems. Declaration of D.M. , ,r,r 15-17, 20-21. Declarant R.B., who admits frequent
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behavioral problems attributed to his mental illness and anger issues, was physically restrained and subjected to the restraint chair, solitary confinement, or both, by staff. Declaration of R.B. , 11 12-17. Moreover, it is evident that youths remain restrained long after any perceived threat posed by their behaviors has dissipated, as youths describe having been placed in the restraint chair for hours at a time - sometimes after having been stripped of their clothing. Declaration of Doe 1, 1114-15; Declaration of Doe 3, 114; Declaration of J.A. , 117-8; Declaration ofD.M, 1 19.
Both of Plaintiffs' expert witnesses found SVJC's use ofrestraints and brutal force contrary to all known professional standards and clearly repugnant. Dr. Weisman stated unequivocally that the practices violate national standards. Weisman Rept. at 9 ("National standards do not allow staff members to 'slam youth against the wall, excessively shackle and restrain youth and use derogatory language in describing immigrant youth. "), 14; see also Lewis
Rept., 1 54 (confinement, restraint and brutalizing of Doe 3 "fall below all professional standards of which I am aware); 1 62 (use of chair restraint for Declarant J.A. "highly unusual" and
"borders on a form of torture"); 167 (R.B. 's experience with solitary and chair restraint "a form of torture and cruel, degrading punishment); 171 (same comment with respect to Declarant D.M.); see also 1195-103.
Notwithstanding the emotional and psychological harms that such practices impose on traumatized youths, which is discussed more fully below, the assaults and excessive and inappropriate use of restraints have left Plaintiffs with physical injuries, including bruising (Declaration of Doe 1, 1119, 21; Declaration of Doe 2,133 ("The force used by staff has left bruises on my wrists, on my ribs, and on my shoulder. The doctor here gave my ibuprofen for the
pain."); Declaration of Doe 2, 1 13) and sleeplessness due to pain from restraints (Declaration of
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Doe 3, 13 ), which forth er underscores the unreasonableness of the force used. These recitations do not present a close question in terms of describing situations in which a "reasonable officer" would conclude that it was "objectively reasonable" to engage in the forms and types of brutal force to which the Plaintiffs -- children, and neither criminals nor the subject of criminal charges -- have been subjected.
Indeed, the conduct engaged in by SVJC staff constitutes the kind of force applied "maliciously and sadistically to cause harm" that would meet the subjective standard rejected by the Court in Kingsley. Plaintiffs and the Declarants repeatedly describe how staff goad children into acting out, to which predictable behavior staff members respond with disproportionately harsh physical restraint and beatings. See, e.g., Declaration of Doe 1, 10, 1l (describes mocking by staff, noting that "[t]hey were always trying to provoke me"); Declaration of Doe 3,
16 (''I think they do things to make me angry so that I will hit them and then charges will be pressed and I will get a longer sentence"); Declaration of J.A., 5 (staff would say ugly things "to try to make me mad and to act out. I saw them do similar things to the other kids who were there."); Declaration of R.B. 18 (saw guards pick fights with other kids: "They would say things to them and challenge them until the kids got really mad and fought back"). For these reasons, the Plaintiffs have made a "clear showing" of likelihood of success on the merits of their claims that the physical discipline and punishment in which Defendant ' s staff at SVJC regularly engage "shock the conscience" and violate the Plaintiffs' substantive due process protections.
B. Denial Of Adequate Mental Health Treatment A similar conclusion is waiTanted, albeit under a different analytical standard, regarding the way SVJC staff inadequately - indeed , harmfully -- addresses the serious mental health needs of the Plaintiffs and other immigrant youth detained there. A common characteristic of the unaccompanied minor immigrants detained at SVJC is the extent to which they experience
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psychological (if not physical) trauma in their home countries or en route from those countries to
the U.S. border, long before their entered detention at SVJC. See Lewis Rept., ,r,r 18-19. In fact,
Plaintiffs Doe 1 and Doe 2, and Declarants D.M. and R.B., were all diagnosed with serious
mental illnesses before they were transfe1Ted to SVJC. See Declaration of Doe 1, ,r 3; Declaration of Doe 2, ,r 7; Declaration of D.M. , ,r 14; Declaration of R.B., ,r 19. Accordingly, it
is clearly known to the Defendant that children entrusted to its care and custody often struggle with serious mental health problems and are in need of appropriate attention and treatment.
Defendant's obligation to provide mental health care constitutionally adequate to meet the needs of Plaintiffs and other similarly situated immigrant detainees, all of whom are civil detainees, is governed by the "professional judgment" standard established by Youngberg v. Romeo, 457 U.S. 307 (1982), and its progeny. In Youngberg, the Supreme Court addressed "the substantive rights of involuntarily committed mentally retarded persons under the·Fourteenth Amendment[.] " 457 U.S. at 314-15. The respondent did not challenge his commitment, but "argue[d] that he has a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution, and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement. " Id. at 315.
Noting that "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests," and that "if there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury," (id. at 321), the Court set about determining the proper standard to apply. Id. It found guidance in the concurring opinion of then-Chief Judge Seitz of the Third Circuit in the en bane appellate proceedings that had taken place below. Id. In this regard, the Court stated as follows:
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We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." 644 F.2d [147], 178 [3d Cir. 1980) (en bane)].

*

*

*

By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions. For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment. practice, or standard"i as to demonstrate that the person responsible actually did not base the decision on such a [professional] judgment.

Id. at 321-23 (emphasis added; citations omitted). The Fourth Circuit and district courts therein

have embraced and applied the Youngberg "professional judgment" standard in subsequent cases

involving involuntary civil commitments that can be analogized to the plight of the Plaintiffs and

members of the putative class they seek to represent in the case at bar. See, e.g., Patten, 274

F.3d at 845-46 (holding that involuntarily committed psychiatric plaintiff's Section I983 denial

of medical care claim should be determined on the basis of the Youngberg "professional

judgment" standard, not the Eighth Amendment "deliberate indifference" standard applicable to

the w1constitutional medical care claims of prisoners); Alexander S., 875 F. Supp. at 798

(holding that claims of class ofjuvenile offenders concerning unconstitutional conditions of

confinement in violation of substantive due process rights should be resolved by application of

the Youngberg "professional judgment" standard); cf Heyer v. U.S. Bureau ofPrisons 849 F.3d

202, 209 n.6 (4th Cir. 2017) (holding, in case involving civil detainee sexual offender's claim

that the Bureau of Prison's failure to provide sign language interpreters for deaf persons'

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interactions with medical personnel constituted deliberate indifference to his serious medical needs, that the Court need not decide whether the Youngberg "professional judgment" standard should have been applied since the claimant's "evidence is sufficient to support a finding of deliberate indifference"). 9
Here, SVJC's clear failure to afford a trauma-informed treatment environment to detained immigrant children known to be affected by mental health problems, and its routine response to the children's outward manifestation of those problems with vicious physical abuse and kneejerk punitive imposition of restraints and solitary confinement, undoubtedly constitute the "substantial departure from accepted professional judgment, practice [and] standards" held constitutionally actionable and violative of substantive due process rights in Youngberg. Plaintiffs' experts, Dr. Lewis and Dr. Weisman, have both explained that established professional standards in the field of clinical psychology governing the treatment of traumatized, mentally ill minors, particularly detainees such as the Plaintiffs, dictate the application of a trauma-informed approach. See Lewis Rept., ,I,I 83-97 & nn.25-33; Weisman Rept. at 9-13. Both experts emphasize the extent to which punitive responses to behavioral manifestations of traumatized children's mental illness in general, and the use of solitary confinement in particular, depart from the accepted standard of care in the profession.
Dr. Lewis and Dr. Weisman found that SVJC's punitively-focused responses have severely exacerbated known mental illness, and pose a continuing, significant risk of permanent emotional and psychological harm to minors subjected to such practices. Both opined that Plaintiffs and Declarants have been denied adequate mental health treatment. Lewis Rept., ,I 92
9 [n their First Amended Complaint, Plaintiffs have pled this claim under both the "deliberate indifference" standard (Am. Comp., ,I,I 144-152) and the "professional judgment" standard (id. , ,I,I 153-161). For purposes of this Motion, Plaintiffs seek relief under the Youngberg standard.
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(mental health care provided to Doe 1 at SVJC was deficient), 199 (D.M. "did not receive
appropriate mental health care for his conditions"); 1 104 ("[T]he mental health care and the
overall care provided at SVJC are deficient and fall far short of the standards of care expected in the juvenile justice system, and ... this represents deliberate indifference to the health and mental health needs of the Plaintiffs, as well as the other detainees at SVJC."); Weisman Rept. at 5 (solitary confinement practices place children at SVJC at substantial risk for serious harm to their social, psychological and emotional development). These deficiencies are not limited to
individual detainees' circumstances but are pervasive and systemic. Lewis Rept., 1 I00; see
also Weisman Rept. at 14 ("The practices employed at SVJC create a hostile and punitive environment that runs counter to all national standards.").
Jn sum, there is nothing to suggest that the exercise of professional judgment plays any role whatsoever in the reactive manner in which SVJC staff responds to serious, known mental health needs through punitive measures, including inflicting physical force, restraints and isolation. Indeed, there is overwhelming evidence to the contrary. In light of the evidence supporting these conclusions, the Plaintiffs have clearly shown that they have a substantial likelihood of success on the merits of their claim that the Defendant's failure to provide an adequate, appropriate level of care to address their serious mental health needs violates their substantive due process rights.
2. The Plaintiffs Are Suffering Irreparable Harm As A Result Of The Defendant's Practices As To Which An Injunction Is Sought
An integral element of a movant' s showing that preliminary injunctive relief is warranted is its demonstration that "irreparable injury is likely in the absence of an injunction." Winter, 522 U.S. at 22; see SAS Inst., 874 F.3d at 386; Handsome Brook Farm, 700 F. App'x at 263; Signature Flight Support, 442 F. App'x at 785. As reflected by the analysis in the cited
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authorities, more than a " possibility" of irreparable harm in the absence of injunctive relief is

required; irreparable harm must be shown to be " likely" and " imminent." See also Potomac

Conj Corp. ofSeventh-Day Advenasts, 2014 WL 857947, at *19 (iITeparable harm cannot be

"remote nor speculative" but rather must be "actual and imminent"). Plaintiffs satisfy this

standard here. The repmis provided by Plaintiffs' experts leave no room for doubt that the

punitive disciplinary measures to which the Plaintiffs and similarly-situated minor immigrant

detainees at SVJC have been and continue to be subjected are causing them harm of a character

that cannot be quantified or compensated by monetary relief. See generally Multi-Channel TV

Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994) (an

element of irreparable harm is that " monetary damages are difficult to ascertain or are

inadequate " ).

As detailed by Dr. Lewis,

Punitive approaches such as prolonged isolation, restraints. and physical abuse are harmful and ineffective. For example, 50% of all suicides in juvenile facilities occur while youth are in isolation. Facilities, including SVJC, continue to hann youth by using force as a means of behavioral control (e.g., aggressively restraining youth) and isolation as means of behavioral control rather than using de-escalation and conflict resolution, and trauma-informed strategies that are more effective and not harmful.

*

*

*

Solitary confinement can lead to severe psychological and physical effects including difficulties with thinking, overt paranoia, panic attacks, illusions and hallucinations, self-injurious behavior, hopelessness, sleep disturbances, headaches, heaii palpitations and dizziness.

. . . Youth held in solitary confinement, especially when it is frequent and prolonged, needlessly suffer a great deal and can become depressed and suicidal, self injurious, acutely anxious or psychotic, and aggressive. They are at increased risk of having psychological problems if they have a history of trauma and abuse. Youth are also at increased risk simply because their bodies and brains are still developing physically and psychologically.

*

*

*

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... Approaches ... that are punitive are detrimental to [children] and have no place in the juvenile justice system. Irreparable harm can result from punitive, physically abusive approaches because of the residual psychological scars brought about by youth no longer feeling safe in the world and no longer being able to trust others to treat them with dignity and respect. While the extent ofthe damage caused by these approaches cannot always be determined in the moment, it is likely that many ofthese detained youth will never recover from their traumatic experiences prior to and during detention[]
Lewis Rept. , ,i,i 75, 77, 101 (emphasis added; footnotes omitted).

These consequences are likely to follow the children detained at SVJC, who will continue

to struggle with enduring damage caused by their exposure to inhumane treatment at SVJC. See

Lewis Rept., ,i 95 (forms of punishment in use at SVJC "likely to result in compounding prior

trauma and causing longstanding harm); ,i 98 (noting "enduring impact" of harm suffered at

SVJC by Declarant R.B.); ,i I 02 (" It is likely that many of these detained youth will never fully

recover from their traumatic experiences prior to and during detention[.]").

Dr. Weisman, focusing in particular on the use of solitary confinement at SVJC, is no less

emphatic, stating:

It is my opinion, within a reasonable degree of certainty in the field of clinical psychology that all juveniles subjected to the SVJC policy and practice of solitary confinement ... are at a substantial risk of serious haim to their social, psychological and emotional development.

*

*

*

Due to their developmental vulnerability, solitary confinement causes juveniles much greater harm than does such confinement of adults, and the risks of solitary confinement to juveniles are alarming.

Because juvenile are still developing socially and emotionally, they are especially susceptible to psychological, and neurological harms when they are deprived of environmental and social stimulation. For a juvenile, simply being placed in isolation -- the utter helplessness of it -- is enormously stressful. This surge of co1tisol -- of fear, anxiety, and agitation -- will be especially severe injuveniles. The consequences, including actual changes in brain structure, have been demonstrated to persist into adulthood.

*

*

*

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Exposure to chronic, prolonged trawnatic or stressful experiences, such as solitary confinement, has the potential to permanently alter an adolescent s brain which may cause longer-term problems. Weisman Rept. at 5-7 (citations omitted). Simply stated, the serious and grave physiological and psychological risks to which the Plaintiffs and other immigrant youth residing at SVJC, attributable to the punitive practices the facility employs, have been and continue to be exposed constitute unquantifiable harms remediable only by the granting of injunctive relief. That the treatment to which these children are subject likely violates their substantive due process rights, as shown in Argument Section 1 above, only confirms the necessity of a preliminary injunction in the circumstances presented. See, e.g., Marietta Mem '! Hosp. v. W Va. Health Care Auth. , No. 2:16-cv-08603, 2016 WL 7363052, at *8 (S.D. W.Va. Dec. 19, 2016) (" Where a person's constitutional right will be denied if an action is allowed to continue, an irreparable harm will be established.") (citing Bd. o.fSupervisors ofLa. State Univ. & Agric. & Mech. Coll. v. Wilson , 92 F. Supp. 986, 988-89 (E.D. La 1950), a.ff'd, 340 U.S. 909 (1951)); see R.I.L.R. v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 20 15) (in action seeking preliminary injunction with respect to federal governmental policy of detaining immigrant families as a means of di scouraging further mass migration of refugees form Central America, the Court, observing the "detention harms putative class members in myriad ways, and as various mental health experts have testified, it is particularly harmful to minor children," held: "Members of the proposed class ... seek injunctive and declaratory relief invalidating and setting aside the improper deterrence policy. Unlike economic hann, the harm from detention pursuant to an unlawful policy cannot be remediated after the fact. "). Based on the definitive opinions of Plaintiffs ' experts and the relevant case authorities, the in-eparable harm element of the test for injunctive relief is clearly satisfied.
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3. The Balance Of The Equities And The Public Interest Weigh Heavily In Favor Of A Preliminary Injunction
Finally, under Winter and its progeny, a party seeking the entry of a preliminary injunction must show: (i) that the balance of the equities (or "hardships") weighs in favor of the relief sought; and (ii) that the public interest likewise favors the granting of an injunction. 522 U.S. at 20; Di Biase, 872 F.3d at 235; Pashby 709 F.3d at 329
Plaintiffs submit that the hardships to them and other immigrant youth detained at SVJC of a continuation of the pw1itive, abusive practices reflected in this submission during the pendency of this action are obvious and egregious, whereas the hardship to SVJC of suspending those practices while this case is fully adjudicated are essentially nonexistent. Alternative means by which SVJC staff can respond to the Plaintiffs' ''bad behavior" -- if any -- while this case proceeds to final resolution are readily reflected in Plaintiffs' experts' opinions and the professional standards for the juvenile justice system upon which those stated opinions rest. Any "hardship" to SYJC of conforming its treatment of immigrant detainees to the professional standards in accordance with which all juveniles are to be treated is no bw-den with which this Cowt should be concerned.
Likewise, it is difficult to identify any interest that the public would have in the perpetuation of the use of excessive physical force, undue use of restraints, and imposition of solitary confinement against detained immigrant children while this case continues.
The " balance of equities" and "public interest" elements of the Winter test have frequently been assessed together by the Courts in this Circuit, especially where constitutional rights are implicated and the movant has already satisfied the " likelihood of success" and "irreparable harm" criteria. So, Plaintiffs suggest, should it be here. See Centro Tepeyac, 722 F.3d at 191 ("[A] state is in no way harmed by issuance of a preliminary injunction which
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prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.... Upholding constitutional rights surely serves the public interest." (citing Giavani Carandola, Ltd. v. Bason, 303 F.3d 507, 520 (4th Cir. 2002)); accord Newsom ex rel. Newsom, 354 F.3d at 261 ("Surely, upholding constitutional rights serves the public interest.").
In light of these considerations, a preliminary injunction is supported by the balancing of the equities and the public interest.
CONCLUSION For all of the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction should be granted. DATED: February 28, 2018
Respectfully submitted, Christine T. Dinan (VSB No. 84556) christine dinan@washlaw.org Hannah M. Lieberman (admitted pro hac vice) (hannah Lieberman@washlaw.org) WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAJRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone) (202) 319-1010 (facsimile)
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Theodore A. Howard (admitted pro hac vice) thoward@wileyrein.com Bradley C. Tobias (VSB No. 88046) btobias@,wileyrein.com WILEY REIN LLP 1776 K Street NW Washington, D.C. 20006 (202) 719-7120 (telephone) (202) 719-7049 (facsimile) By ~ ~ Attorneysfor PlainJifJ
38
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CERTIFICATE OF SERVICE I hereby cer6fy that on this 28th day of February 2018, a true and correct copy of the foregoing Memorandum of Law In Support of Plaintiffs' Motion for Preliminary Injunction, supporting Exhibits and proposed Order was served via this Court's electronic case filing system upon the following:
Jason A. Botkins, Esq. MeJjsa G. Michelsen, Esq. LITTEN & SIPE, LLP 410 Neff Avenue HaITisburg, VA 22801 jason. botkins02li ttensi pe.com melisa.michelsen@littensipe.com Attorneys for Defendant Shenandoah Valley Juvenile Center Commission
Theodore A. Howard
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EXHIBIT 1
Case 5:17-cv-00097-EKD-JCH Document 34-1 Filed 02/28/18 Page 1 of 6 Pageid#: 238

DECLARATION OF JOHN DOE 1 I, John Doe 1, declare and state the following:
1. I am 17 years old. I was born in Tamaulipas, Mexico. 2. I came to the United States right after I turned 15. I believe it was in August. 3. J was taken into custody by immigration authorities as soon as I crossed the border. I was
sent to BCFS in San Antonio, Texas, and I stayed there for a few months until I was transferred to Mercy First, a treatment center in New York, for psychological issues. 4. After a short time in New York, I was transferred to NOVA, a staff secure facility in Virginia. Then I was sent to Shenandoah. 5. I was detained at Shenandoah for over a year and a half, from April 2016 to December 2017. 6. I have been diagnosed with depression and other disorders, and I take medications for them. I think they increased the dosage of my depression medication when I came to Shenandoah. At first it made my symptoms worse, and I didn ' t feel like getting out of bed or doing anything, but then I got used to it. 7. For most of my time at Shenandoah, I was placed in Alpha Pod. It is for kids who have misbehaved. 8. We would get points awarded for good behavior and points taken away for bad behavior. If you had all of your points at the end of the week, you could buy things like toothpaste and soap. I regularly got points taken away for things like not wanting to work on the mural in art class, complaining about a headache, or thrnwing a ball that hit the ceiling in the gym. 9. At Shenandoah, my room had a mattress, a sink, and a toilet. There is no wall or divider
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in the room, and the staff could see into the rooms through a window in the door. The kids would sometimes put a piece of paper over this window so people couldn ' t see them using the toilet, but the staff would remove it. One time a staff member stood at my doorway and watched me use the bathroom. 10. While I was at Shenandoah, staff members would make fun of me on a daily basis. They would call me names such as "pendejo" and "onion head," and do things like drop my clean towel on the dirty floor in front of me. They were always trying to provoke me. 11. I once becan1e so frustrated by a staff member's repeated mocking that I pushed the staff member. In response, four staff members shoved me to the floor and piled on top of me, and they began hitting me in my abdomen with their elbows. I had a lot bruises from this. 12. There are American and Latino kids at Shenandoah. The Latino kids are treated differently than the American kids. 13. Staff frequently refused to allow us to watch Spanish shows on the TV in our pods. They would tell us they didn ' t care what we wanted and didn't care that we were Latino. 14. On one occasion, I got into a fight with one of the American kids after he had taunted me and told me that he "hates Latinos' . When staff broke up the fight, I was grabbed and thrown forcefully to the ground, but the other kid was just held by the arms and pulled away. I was then restrained, tied to a chair, and hit several times by staff members while I was tied to the chair. I was left tied to the chair in my room for four hours. 15. They tied me to a chair about five times while I was at Shenandoah. My hands, legs and chest were tied to the chair. On some occasions they put something over my head. It had small holes that I could see out of, but only a little. 16. I was assaulted by Shenandoah staff on many occasions while I was detained there, and
2
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several times while I was tied to a chair. On one occasion, I was hit in the face and scratched by a staff member whi le I was restrained. I developed a black eye and bruising from this. 17. On another occasion, I asked to come inside during gym because I had a headache. Staff suspected for no apparent reason, that I may have found a piece of glass outside. I was thrown to the ground and searched, and my clothes were slu·edded. Though they found nothing, staff transfened me to Alpha Pod after this incident. 18. I saw other kids being hit by staff too. I once tried to defend another kid when a staff member was hitting him. As a result, the other kid and I were both stabbed by the staff member with a pen. 19. Another time, a staff member entered my room when I didn't want him to and provoked a fight. The staff member hit me, and I bit the staff member. Thereafter, the staff member beat me, leaving me with bruises on my neck and arms. A supervisor took photographs of my injuries. I have asked for these photos repeatedly, but staff members have never given them to me. 20. After this incident, I was placed in cha-chas (handcuffs) . I was forced to wear handcuffs on my wrists and shackles on my feet for approximately 10 days in a row. During this time, the handcuffs were only removed when I was sleeping or eating alone in my room. 21. The handcuffs are very tight, and they often left bruises and cuts on my wrists after they were taken off. I complained about this and showed my injuries to the staff, but they took no action. 22. At Shenandoah, I was also placed on restriction a lot. This happened whenever kids would act out or hit the staff, or if they hurt themselves. When you are restricted, you ar·e largely
3
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in your room and you can't leave. When you are outside yom room, staff place you in handcuffs. I have been restricted in my room for several days at a time. I was only allowed to leave my room for classes. 23 . Soon after I arrived at Shenandoah, I began to hurt myself. I would cut my wrists with a piece of glass or plastic whatever I could find. I would sometimes bang my head against the wall or the floor because I was angry and sad. 24. Staff members saw the scars on my wrists and knew I was hurting myself. They told me they didn ' t care. Sometimes I would lose points or be placed on restriction for hurting myself. 25. One time I cut myself after 1had gotten into a fight with staff. 1filled the room with blood. This happened on a Friday, but it wasn't until Monday that they gave me a bandage or medicine for the pain. 26. I had never cut myself before I came to the United States. I learned this from other kids while I was detained. 27. On August 21, 2017, I tried to kill myself. I tied part of a curtain around my throat. Staff found me, and they responded by taking away all of my clothes and placing me on restriction for several days. 28. I was angry that I was at Shenandoah for so long, and I didn' t want to be there anymore. l would thrnw food down the toilet because I couldn't eat it. I would feel sick and dizzy. 29. I had the urge to cut myself frequently, and expressed a desire to kill myself. 30. In December 2017, I was transferred back to NOVA. It's better here. I don't know how long I will be here or whether I will be transferred back to Shenandoah.
4
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31. This statement has been prepared in English but it bas been read to me in Spanish by a bilingual interpreter.
32. I declare, under penalty of perjury, that all the information I have provided here is true and con-ect to the best of my knowledge, and I am aware of the legal consequences of making a false declaration.
Executed this 17th day of January, 2018, in Alexandria, Virginia John Doe 1
5
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EXHIBIT 2
Case 5:17-cv-00097-EKD-JCH Document 34-2 Filed 02/28/18 Page 1 of 6 Pageid#: 244

L DECLARATION OF .:TOHN toG

<Jon" Doe I, 1

1 :, declare and state the following:

1. I am 16 years old. I was born in Reynosa, Mexico.

2. I came to the United States when I was ten months old. I lived with my mom in

Macallen, Texas until I was sixteen. While living in Macallen, I attended school. I was

about to finish ninth grade when I was taken into custody by immigration authorities.

3. One day in 2017, I was driving with some friends. The driver of the car was pulled over,

and the police searched our car. They asked for identification, and no one had any, so

they called immigration.

4. I was then arrested, and taken to a shelter in Harlingen, Texas. I stayed at the shelter in

Harlingen for approximately two months.

5. While I was staying at Harlingen, I tried to escape, but I did not succeed. I was then

transferred to BCFS, a staff secure facility in San Antonio, Texas.

6. I felt safe at BCFS. I played soccer, was treated well by staff, and enjoyed visits from my

family.

7. While I was staying at BCFS, I saw a doctor who told me I had ADHD, depression, and

anger management issues. The doctor gave me Prozac, Trazodone, and two other

medications, which I was told are used for my mood and concentration.

8. Sometimes I would get in trouble with the staff at BCFS because other kids would pick

on me and I would defend myself. I got in verbal fights with other kids a few times, and

once I tried to hit a kid. The staff restrained me, and took me to the floor.

9. I was feeling very angry and very sad during this time. I started to harm myself. I cut my

wrists.

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I0. Because of my anger, I was taken to see a doctor at a hospital or a rehab place. I stayed there for about twenty days, before I was taken back to BCFS.
11. Shortly after I returned to BCFS, I was transferred to Shenandoah. I had been at BCFS for about three months. I was told I was "going to a better place," but I knew I was being transferred to juvenile.
12. I arrived at Shenandoah on September 30, 2017. I did not see a doctor when I arrived, but my medications came with me. I am still taking them.
13. Soon after I arrived at Shenandoah, I met my case manager, Emily. She told me I had been transferred to Shenandoah because of behavioral issues. She also told me that ifl'm good for 30 days, they'll send a request for a transfer.
14. I was assigned to live in Alpha Pod. I was told by staff and other kids that people who behave badly go to Alpha Pod.
15.1 feel very sad at Shenandoah. I do not have many privileges. A few months ago r cut
myself again, but I haven't done it in a while. 16. I am not allowed outside of the building at all. I have not been outside since I've been
here. We have gym class, but it is always indoors. 17. In addition to gym, I take math, science, and art. My favorite class is art. I don't like my
other classes. They aren't interesting because they are too easy. The teachers teach things I learned in elementary and middle school. I never took a test here to measure my - - - - - - - - -grcrde-revel. 18. Generally, they teach class in Spanish. Sometimes they teach in English. Spanish is my native language, but I understand English very well because I lived most of my life in Texas.
2
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19. Some of the staff here are nice, they'll joke around with you. Some are all mean. They tel l you do this, do that. Some of them are bilingual, but a lot of them are not.
20. I often overhear staff members insult me and other kids in English, thinking we cannot understand them. If you don't know Spanish, they will talk shit. They will say, "Hispanics, they don't know nothing, they just come to our country," and tell the kids they're stupid, make fun of them for not understanding English. I was the only one who understood what they were saying because I am the only federal kid who speaks English.
21. The staff will say things behind the kids' backs, but in a way that the kids can hear them. I became very frustrated, so I started to tell the other kids what the staff was saying about them in English. The staff got very mad at me for this and took away my points.
22. I have complained about the staff being racist. I submitted a report and Mr. K, the director, came to talk to me about it.
23. There are local kids and federals (immigrant kids) at Shenandoah. We don't interact with the local kids at all but we see them in the hallways and pass by the pods where they live. They have different privileges and they are treated differently. They can go outside more, staff is friendlier to them. They get Xboxes in their pods and they have computers in their classrooms. I have said things to the staff about it, but no changes have been made. We want to be treated equally, like the locals. They shouldn't look down on us for not having papers.
24-.-1cfe~is-bmi-t-o belrere-:--1--g-erre-aUy-arrgry-:--I"mfrustrated-abour-bern-g--Jcrcked--up;-and I miss my family.
25. One time, about one or two months ago, I was mad and I said, "Fuck school and fuck this place" during class, and the staff removed me from the program. They took me to my
3
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room. I told them I didn't want Lo go, and I was resisting it - I wasn't letting them grab me. They put the handcuffs on me. When I kept resisting, they drew me to the wall and put my face in the wall. Once I was inside my room, they took the handcuffs off. They kept me in my room for four hours and overnight. 26. After that I started to behave bad a lot. I got removed from the program a lot. I was placed on restriction for dumb things, like trying not to go to class, joking around with other kids, or for saying bad words to a teacher. 27. If you lose two points in a day, you don't go outside your room. During the night shift, you don't leave your room. So if you are placed on restriction you're in your room from the time when you are removed from the program, and through the night until the next day. 28. If you are behaving bad, resisting the staff when they try to remove you from the program, they will take everything in your room away - your mattress, blanket, everything. They will also take your clothes. Then they will leave you locked in there for a while. This has happened to me, ad I know it has happened to other kids too. 29. One time I was kept in my room for a day and a half. I had tried to swing at a staff member. I was pushing back, so they called a I033 for backup. When the other staff came, they put me to the floor. They used force to push me inside my room, and then they put the handcuffs on me. 30:4'lrere·' nhts-chatr,and they broughr-ir-outsirle my,-o·om--:-1r-has-wlreels-orr-irsoircan·be moved. They put me in the chair, strapped my arms and legs down, and put something over my face. lt' s a white thing with small holes in it. You can see and breathe out of it. They told me they were putting it on so I couldn't spit, but I hadn't tried to spit.
4
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31. When I was strapped to the chair, they took the handcuffs off and they brought the chair to another room. I don't know how long I stayed there, but it was maybe 30 or 40 minutes. After that I was brought back to my room. This was during the evening, and I was kept in my room for the next day and a half, until the morning of the day after. They took away my mattress, blanket, and shi1t for the first few hours, and then they brought them back.
32. When I get frustrated sometimes I talk back to staff and insult them, and I get removed Jrom the program. When this happens, the staff will sometimes use force to restrain me. They will grab my hands and put them behind my back so I can't move. Sometimes they will use pens to poke me in the ribs, sometimes they grab my jaw with their hands. They are bigger than me. Sometimes there will be three or four of them using force against me at the same time.
33. The force used by staff has left bruises on my wrists, on my ribs, and on my shoulder. The doctor here gave me ibuprofen for the pain.
34. I have been good for the past 44 days, and [ haven't been removed from the program. They told me they sent a request for a transfer, and that it generally takes 60-90 days, but they didn't tell me why.

I declare, under penalty of perjury, that all of the information I have provided here is

correct and complete to the best of my knowledge, and I am aware of the legal consequences of

------

-------

rnaking a false declaration.

Executed this 5th day of January, 2018, in Staunton, Virginia

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EXHIBIT 3
Case 5:17-cv-00097-EKD-JCH Document 34-3 Filed 02/28/18 Page 1 of 6 Pageid#: 250

DECLARATION OF

DOG 3

, declare and state the following:

1. I am 15 years old. I was born in Honduras. 2. I left Honduras because I was being persecuted by the "l 8 gang" who threatened to kill
me.
3. My girlfriend and 1 fled to Guatemala and then travelled to Mexico. My girlfriend wanted to go back to Honduras, but I told her that I couldn't, because the gang was going to kill me.
4. With a friend, I took buses and jumped on trains through Mexico to get to the United States. It took us something like 25 days to get to the US border from Mexico.
5. I was picked up by immigration right after I crossed the border. I was placed at a house in Texas and then moved to a house in San Antonio, where I stayed for about a month. I was then moved to a center called BCFS where I stayed for about two weeks. After that, I was moved to Shenandoah.
6. To get to Shenandoah, they put me on three planes. I kept asking where I was going but they never told me. It took a long time and put me in a bad mood.
7. They said the reason for the moves from place to place was because I was a member of
---· - - -·- - - - - - - - - - - - - -
MS-13. I told them I was not part of anything. 8. When we landed at the airport, a grey van was waiting to transport me to Shenandoah.
They put cuffs on my hands that were connected to a belt around my waist and put cuffs on my feet. When I asked them why they put us in handcuffs, they said that everyone

1
-- - -- .--···- -------·- --
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who is transported here gets handcuffs. I threw a fit. I asked what was going on and kicked a chair. They put handcuffs on my hands and legs. 9. At Shenandoah, I was put in restriction for any little thing. I was put in restriction many times; more than 10. They restrict me when I get angry and send me back to the pod. get angry because of the things they do. 10. On one occasion, going to art class, I held the door open so everyone could enter. A staff member yelled at me for doing this, and I asked him why he was yelling at me and bringing his anger here. In response, the staff member lunged towards me, and I crouched down to avoid him. He fell and then restrained me, putting my hands behind my back and slamming my face into the wall. I maneuvered my way out of the hold and asked, "what is happening"? Then two staff members slammed my body to the ground and, when they picked me back up, shoved me against the wall again. 11. After this, they put me in restriction in my room. They took away my mattress and my blanket and left me only in my boxers. I was left in my room all day without clothes and
it was very cold. I did not get the mattress and blanket back until 9:00 that night. I did
not get my clothes back until the next morning. 12. On another occasion, I moved the TV in the pod so that the light wouldn't hit it and we
could see better. A staff member came over and took a point away from me for that and put me in restriction. Whenever I was put in restriction, they took away my mattress and olanke t. Tfiey tool< my clotl1es away a6ouf8 times.
13. About four times when they put me in restriction, staff put cuffs on my hands and my feet
inside my room. The cuffs were very tight and left marks on my ,vrists. One night in
2
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particular I couldn't sleep well because of the pain in my wrists. When I was cuffed, staff also hit me. They came into my room and started hitting me. 14. One time I got angry when staff sent me to my room. I hit the door with my fist and my hand started bleeding. Staff then they put cuffs on me and I was strapped to a chair with
a belt. r was just in my boxers. I was there for definitely more than half an hour. I was
crying. Staff said that they did it to calm me down. No one did anything for my bleeding hand. 15. Another time I put paper over the window in the door to my room for privacy. A lot of staff came into the room with plastic shields and swarmed over me. A large staff member put all his weight on me. I had scratches and bruises all over my arms. 16. Staff members take away points without telling me. When I ask how many points I have, they tell me 4 to 5 points less than I have. That makes me mad. I ask the supervisor why they do this and say that they are messing up. They don't give me an answer. I think they do things to make me angry so that I will hit them and then charges will be pressed and I will get a longer sentence. 17. Staff take away points for little things. They take away points when 1 don't want my food and give it to a friend. Some staff take away points when you don't raise your hand. 18. I feel like people here are racist. The American kids are treated differently. For example, an American kid asked for chapstick and got it immediately. I asked for Vaseline for my hps wfi1cn\ Vere chappecranohurting.- Igot tt eventually but not immediately. 19. The pods for the American kids are very different than the pods for the Hispanic youth. Bravo and Echo, the pods for the American youth, have soft chairs, X-boxes all week
3
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and I-pods. The immigrant youth have steel chairs, no I-pods and have X-boxes one to three times a week. 20. We get special food, like Burger King and pizza, on Tuesdays. My Honduran friends who arrived this past Saturday did not get the special food on the following Tuesday, but the American kids who also arrived on that Saturday got the special food . .21. Staff is disrespectful to us. When I asked a friend to ask a staff member why the staff member was taking away so many points, the staff member said to my friend, "tell that Hispanic guy to tell me in English". 22. If something hurts, I can see a doctor. But I don't get medicine until much later than I ask for it. I get very strong headaches, that are so bad that they make me cry. Many times when I ask for medicine I have to wait a long time. When I had a stomach ache, I did not get medicine until a week after I asked for it. Then it was pointless. 23. We got six vaccinations at a clinic. I do not know what the shots were for. They had us in hand and leg cuffs the entire time we were in public. People stared at us. 24. I am taking medications for anger and to help me sleep. I would like calcium and iron supplements but they refused to give them to me. 25. I have been on good behavior for three months. I should have been stepped down after 30 days of good behavior. I am upset that I haven't been stepped down. l will talk to my case manager about that.
4
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26. I want us to be treated as human beings. This statement has been prepared in English but has been read to me in Spanish by a bilingual interpreter. I declare, under penalty of perjury, that all the information I have provided here is correct and complete to the best of my knowledge. I am aware of the legal consequences of making a false declaration. Executed this 5 day of January, 2018, in Staunton, Virginia
001-lN D05 3
5
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EXHIBIT 4
Case 5:17-cv-00097-EKD-JCH Document 34-4 Filed 02/28/18 Page 1 of 5 Pageid#: 256

1 I,

A.

declare as follows:

2

3 1. This declaration is based on my personal knowledge. If called to testify in this

4 case, I would testify competently about these facts.

5 2. . I am 15 years old. I am from Mexico. I speak Spanish and some English. I have

6 been in the United States for about" one year and nine months. I am currently in

7 immigration detention in the custody of ORR at Mercy First Residential Treatment

8 Center.

9 3. When I came to the United States, I was taken into immigration custo.dy _and ~hen .

." 10 tr~sferred to BCFS in San Anto.nio. I was ju;t there·for four days: One morning, they

11 woke me up at 4 am and put me on a plane. They did not tell me where I was going; they

12 just said that I was being taken to a better place, which turned out to be a lie. When I

13 arrived in Virginia, they finally told me where I was and that they were taking me to

14 Shenandoah Juvenile Detention Center.

15 4. I don't remember ORR telling me why they were moving me to Shenandoah. I

16 don't remember ever getting anything in writing that told me the reason that they moved

17 me to Shenandoah. I don't remember being told that I could challenge or appeal the

18 decision to put me in Shenandoah.

19 5. I was in Shenandoah for seven months. I did riot like being in Shenandoah or the

20 way that the staff treated us there. The staff members would say ugly things about my

21 mother and my family members. I think they did that to try to make me mad and to act

22 out. I saw them do similar things to the other kids who were there. I think the worst

· -- l3- --thlng-about-b©m.g-i-n-Sb©nandoah-was-the-ti.ghts-and.-seeing...the-sta-f'f-member.s-hit-other-

24 kids in the facility.

25 6. At Shenandoah, they punished.us by putting us in solitary confinement for long

26 periods of time. Ifwe got into a fight, refused to go into our rooms or to follow the

27 program, or broke the rules in another minor way, they would put us into our rooms for

28 weeks at a time. Three times, they put me into my room in solitary confinement for two

1

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1 weeks, and one time, they put me in my room for three and a half weeks. When we were 2 on solitary confinement, they did not let us out for any reason, including to eat, take 3 showers or use the bathroom. Each room had a bathroom which we used to do our 4 necessities so we would not go out. We had to do all of that in our rooms. I didn't know 5 of any way to try to appeal or challenge the staffs decision to put me into solitary ·6 ·confinement; no o.z:ie seemed to pay attention to how they were treating us. 7 7. They also tied us to restraint chairs as punishment. One time, when I was at 8 Shenandoah, I didn't want to go into my room. The staff members reacted by pushing 9 me to the floor, and one of the staff members grabbed my head and forced my head down
10 to the gro{ind: Then they.handcuffed me and put a white b~g of some kind orito m; head.
11 They took off all of my clothes and put me into a restraint chair, where they attached my 12 hands and feet to the chair. They also put a strap across my chest. They left me naked 13 attached to that chair for two and a half days, including at night. They took the bag off 14 my head when they sat me down on the restraint chair. There were staff members in the 15 room at times but they would leave me alone for a few hours. I do not remember very 16 well. I never saw a doctor while I was in the chair or after they took me out. 17 8. I saw three other children tied to the restraint chair at different times. Each time, 18 they were left there for about a day. 19 9. Early one morning at about 3 am when I was at Shenandoah, the staff woke me up 20 and told me that I was leaving. I was moved to Yolo Juvenile Detention Center that day. 21 I don't remember ever getting anything in writing about the transfer telling me why I was 22 being moved or that I could appeal or challenge the decision to put me in Yolo.
23- --1-0-. - Y-oro-wa-satsoa lmrrtole place. They used pepper spray on tnelacistnere, ana-r
24 was sprayed seven times in my eyes. It burned and hurt a lot. . 25 11. After I was at Yolo for five months, they moved me to Mercy First in the RTC 26 program. I have been here for nine months now. 27 12. I receive a number of medications here, to help me sleep and for my emotions, 28 including depression and anxiety. They told me here that I have to talce the medications,
2
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1 and that it is mandatmy. When I hav e refused to take my medications, they put me on th

2 red level of our program, which means that I cannot leave the unit. 3 13. During the time that I have been in immigration detention, I do not remember

4 being told that I could have a bond hearing if I requested one. 5 · 14. I considered taking voluntary departure because of the way that I have been treated 6 at the different centers that I have been held at.. Because of the things that have happened 7 to me, I do not have any trust in them that they will treat me properly or that the 8 government will try to release me to a .sponsor or to be held in a less restrictive 9 environment. I have_~een in immigration_detention for a lqng time, and I have never had 10 any good news in the.time that I have been.here. I just ~ant to.have freedo~ and to not

11 have to live in these types of places.

12 13 I declare under penalty of perjury that the foregoing is true and correct. Executed on this

14

day ofl.""'"".)

, 2018, at

Ve"' '1 11 ..--\.:

, New York.

15

16

17

. J. A.

18 19
20
21 22
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24
25 26 27
28

3

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1

CERTIFICATE OF TRANSLATION

2

I, \J,€?)<\\~:sf? ~0-tff..Q..(l)

, hereby certify that I am proficient in both

3 Spanish and English, and that I accurately translated the foregoing statement and read it

4 back to

:[ A.

#' rin its entirety in Spanish on

[DATE] \ \Z \\i .

5

6

~ - " " - - _-· - ~ -

7

[NAME]

8 ·9 . 10

11 12 13

14 15 16 17

18 19
20
21
22

23

- - - - - - - - - - - -- ~ - - -

24

25
26 27 28

4

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EXHIBIT 5
Case 5:17-cv-00097-EKD-JCH Document 34-5 Filed 02/28/18 Page 1 of 5 Pageid#: 261

DECLARATION OF D.M. I, D.M., declare and state the following:
1. I am 20 years old. I currently live in San Antonio, Texas. 2. I was born in Honduras, and I came to the United States when I was 15. I was taken in
by immigration authorities when I crossed the border, and then I was in ORR custody for about three years. 3. I arrived at Shenandoah in 2014, around the last week of May. I was at Shi loh Treatment Center before that. 4. At first the people transfe1Ting you don ' t tell you they ' re going to take you to jail - all they do is tell you you ' re going to another placement. But then they handcuff you, and put a big heavy bag on your right or left leg. Once you have the handcuffs and the big bag, you know you're going to jail. 5. I was told I was sent to Shenandoah because I was too aggressive, supposedly because I had had physical issues with staff more than three times in one week. But I never had a chance to dispute this, and I was only to ld the reason for the transfer after I arrived there. 6. When I was at Shenandoah, there was a lock-in (secure) paii and a staff secure part of the faci lity. I was in the lock-in pa1i for 8 months, and then I was stepped down to the staff secure pai·t for about 3 months. 7. The rules at Shenandoah were really strict. There was one hour when you had to read a book. The guards had to see your eyes moving back and forth on the page, and if they didn ' t, they would put you on restriction in your cell. 8. One day, it was reading time, and there was this kid who was quiet but wasn 't looking at his book like he was supposed to. This guard - I forgot his name, but he was a big guy,
1
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he used to be an NFL player - he was really strict and he used to be mean to everyone. He asked the kid why he wasn't looking at bis book. The kid responded and said he wasn ' t causing any trouble or anything. The guard told him to shut up. The kid got up and said, 'I'm sorry, sir." And the guard grabbed him by the shirt and pushed him away. Then the kid felt disrespected, so he got mad and he punched the guard. In response, the guard grabbed the kid and tackled him, and slan1med him to the floor. The guard put bis whole weight on top of him. He had his elbow on the kid's chest and had his other arm pinning the kid down. He took his time calling a 1033 on his radio (for backup). There was a group ofus watching this, and we didn't think it was necessary for the guard to treat the situation as he did. 9. It's easy for the guards to write incident reports - you did this, you did that, you disrespected me - but they never hear the kid 's side of the story. My voice was never heard. They never came and talked to us about what was going on inside of us. A kid starts suffering as soon as Border Patrol gets them. They're all scared of being sent back home or being sent to jail. 10. I didn't feel like I belonged there. I never threatened staff members. I wasn't affiliated with a gang in my home country or anywhere else. I was terrified there. 11. There were both federals (immigrant kids) and local American kids at Shenandoah, and there were differences in the way they were treated. The locals were able to have a roommate, while federals have to have cells by themselves. The guards would joke with the local kids about the federals, telling them that the federals were in their cells alone because they raped someone or because they had sexual problems (HIV, stuff like that). I
2
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overheard them tallcing like this in the gym, and I understood because I was the only one who spoke English. The guards are adults, and they were supposed to be there for us. 12. The guards at Shenandoah also put down the federals, calling them wetbacks. They used that word because they know it' s insulting. Most of the kids don't even understand what's being said about them because the staff doesn't speak Spanish. 13. The guards would also mock us by trying to speak Spanish. They would say "Vamonos! Vamanos!" with a smirk on their faces. 14. Before I came to Shenandoah, I had been diagnosed with post-traumatic stress disorder major depressive disorder, and bipolar disorder. I didn't meet with a psychologist until about a month and half after I had arrived there. I went in with medication from Shiloh , but I didn ' t receive any meds until a month and a half in, when I met with the psychologist. What did they do with my meds? What did they think, they I didn't need them in secme? 15. I had a lot of issues there because of my mental disorder. Whenever I was in crisis - if I was trying to hurt myself inside my cell, or saying things to someone no one could see they would drag me out of my cell and put me in the restraint chair. All I could see was them running for the chair. 16. Whenever they used to restrain me and put me in the chair, they would handcuff me. Strapped me down all the way; from your feet all the way to your chest, you couldn't really move. Handcuffs would have been enough. Once you re strapped down, they have total control over you. 17. They also put a bag over your head. It has little holes; you can see through it. But you feel uffocated with the bag on.
3
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18. When you're in a crisis, the bag is the least helpful thing- it's scary, you know. And they don't do it in a nice way. They don't explain what they are doing· they just grab the left side of your head and they force it over you. You can't move to resist. The first thing that came to my head when they put it on me was, "They are going to suffocate me. They are going to kill me."
19. They had me in that chair for a good hour, but they don't check the time. They don't check if blood is flowing through your veins. I feel like they should have to do a 20minute check to make sure it's not too tight, it 's not hurting you, or whatever. There is a guard there with you, but they never checked on me.
20. I saw two other cases, besides me, where kids had to be put in the chair. It was when the guards had break up a fight. I never had a fight in that place. I was placed in the chair when I was having a mental crisis.
21. Every time I was in crisis, they put me in the chair. The guards never did anything less extreme than that. They would call for help from a psychologist only after I was strapped down. They would wait for like 45 minutes or an hour to call though.
I declare, under penalty of pe1jury, that all the information I have provided here is correct and complete to the best of my knowledge, and I am aware of the legal consequences of making a fa lse declaration.
Executed this 2nd day of January, 2018, in San Antonio, Texas
D.M.
4
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EXHIBIT 6
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DECLARATION OF R.B.
I, R.B., declare and state the following: 1. I am 18 years old. I am currently living in Corpus Christi, Texas, with my mom. 2. I am originally from Guatemala, but I came to the United States with my mom when I was young. 3. When I was 13, I got picked up by immigration authorities. I had run away from home and I was living in Rio Grande City at the time. 4. I stayed in a sorting facility for one night, and then I was sent to Nueva Esperanza, a staff secure facility in Brownsville, Texas. From there I was moved to a juvenile facility in Newark, New Jersey. I stayed there for about two months, but I staTted losing it. I was sad because I hadn't seen my mom in a long time. I had a Jot of anger problems, and it was really hard. 5. I told the guards I wanted to hwt myself, and they sent me to Sandy Pines, a hospital in West Palm Beach, Florida. The guards at Newark told me they were sending me away because I needed help, and they didn't have the right resources there. 6. A few months later, I was sent to Shenandoah because of behavioral problems. I lit a piece of toilet paper on fire using lead from a pencil. I burned it in the sink, right under the faucet, and I put it out in a matter of seconds. I wasn't trying to start something, I was just showing off. I also got into a fight with my roommate that night. Two or three days later, they told me I was being transfened. They didn't tell me where I was going. I was 14 at the time. 7. I was at Shenandoah for a little over three months. After being there for two months, I escaped while I was being transported to a doctor's office. I was so sad, I felt worthless
Case 5:17-cv-00097-EKD-JCH Document 34-6 Filed 02/28/18 Page 2 of 5 Pageid#: 267

and I didn't feel like I had anything to live for. In Shenandoah, they locked me in a room that was 8x10, or maybe 8xl6, for 23 hours a day, all by myself. It' s not good for a person to be isolated that long. I started talking to myself. 8. I wasn ' t myself after that. When I left home I was just a little boy, but being there changed me. I'm not optimistic any more. Even now, my mom tells me that I changed a lot, that I'm not the same person. I rarely go out with friends. I just spend time with my family now. 9. When I was at Shenandoah, at least once a week, I had to fight - with a guard, another kid, or anybody who wanted to fight me-.because I was so angry. They didn't tell me anything about what was going on with my case or when I was goiJ1g to leave. Not knowing anything month after month drove me crazy. 10. When I got in fights, the guards at Shenandoah would grab my arms and put them behind my back. They would cross my elbows and put pressure on them. Then they would fold my knees and push me down. It hurt, so I fought back to relieve the pressure. I told them, " If you just let me go a little bit, I'll calm down," but they wouldn't do it. 11. When they couldn't get one of the kids to calm down, the guards would put us in a chair - a safety chair, I don't know what they call it - but they would just put us in there all day. This happened to me, and I saw it happen to others too. It was excessive. 12. At other detention facilities where I had been, the staff would treat us differently when we were angry. They would tell me to calm down and then slowly let me go, and then they would take me to my room so I could punch a wall or something. The guards at Shenandoah would say, "calm down, calm down" and I would say " I just got punched in the face, why you want me to calm down?" AJ1d then they would put me in the chair.
2
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13. I was put in this chair 4-6 times I guess. The longest time I was in it was probably half a day, or two shifts. I was really mad that time. I was young, I had a lot of problems.
14. The chair is painful. Imagine a little rocking chair with straps for your head, elbows, legs, feet; you could turn your head a little from side to side, but you can barely move it in. It ' s a metal chaiT that has two little wheels in the back, so they can lean it back and transfer it, like a dolly.
15. This is embarrassing, but on one occasion, I had to pee, and they wouldn't let me, so I just went on myself. I know one or two other kids this happened to as well; they peed on themselves while they were in the chair.
16. One time they put a mask on my face because I spit on the guard when I was strapped clown. I know now that was bad , but you have to understand there was nothing you could do, except move your head back and forth, while you were in the chair. The mask is like a white veil I guess, or a net for your hair - it has a million little holes in it. You can see through it and breathe through it.
17. I also got placed on room restriction a lot. If me and another minor got into a fight, they'd put us on room restriction for 3, 4, 5 days at a time. When you were on room restriction, when they woke you up at 6 or 7 am, they'd take your mattress away, and wouldn't give it back until room checks at the end of the day. They would leave you in your room with nothing but a book and a Bible, but no mattress - so you can't sleep, because you would just be laying on the concrete. I started talking to myself and banging my head against the wall. I felt like I was going crazy, and I would do anything to get the guard's attention.
3
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18. The guards never picked fights with me, but I saw it happen with other kids. They would say things to them and challenge them until the kids got really mad and fought back. Then the kids would push the guard, and then the guard would grab both of the kid's arms and try to force them into a restraint. The guards were twice the size of the kids, who were 13 or 14 years old, but they would use their full weight to push them to the ground. Sometimes it was two guards doing this to a little kid.
19. Before I was at Shenandoah, I had been diagnosed with ADI-ID and prescribed medications for it, but that was it. When I came to Shenandoah, they told me I had bipolar disorder and PTSD. At first I didn't even take medicine, but they made me think I needed it - sleeping pills, Seroquel, and a bunch of others. They keep you drugged there.
20. Now I just take melatonin to help me sleep, nothing else. I don't need any anti-psychotic drugs.
21. l declare, under penalty of pe1:jury, that al I the information I have provided here is true and correct to the best of my knowledge, and I am aware of the legal consequences of making a false declaration.
Executed this 8th day of January, 2018, in Corpus Christi, Texas
R.B.
4
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EXHIBIT 7
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Gregory N. Lewis, Psy.D. Licensed Clinical Psychologist 5636 N. Virginia Avenue Chicago, IL 60659
February 27, 2018
Theodore A. Howard, Esq. Wiley Rein LLP 1776 K Street, NW Washington, DC 20006
Re: John Doe, et al. v. Shenandoah Valley Juvenile Center Commission
Dear Mr. Howard:
On November 10, 2017 we discussed my willingness to serve as an expert witness on the case referenced above and agreed that I would serve in that capacity. The - - - - - -ronowfng is a reportaaaresstng:1."") my psyclToJo-gmrl--evato·atiou of--PJ-aintiffiohn--B-oe- - - - - 1 (who was a detainee at the Shenandoah Valley Juvenile Detention Center for an extended period of time), the conditions under which he was detained, and the appropriateness of the treatment he received; 2) my review of the declarations of the two other plaintiffs and three other individuals who were formerly detained at Shenandoah; 3) my prior clinical experiences in evaluating unaccompanied alien children who are in detention in the United States; 4) standards of care for treating UACs and other youth who are in detention; and 5) my opinions regarding the appro riateness of care off~r~d to the plair_:i.tiffs~ Shenandoah and how their experiences there impacted them.
Executive Summary:
Shenandoah Valley Juvenile Center (SVJC) staff do not understand the manifestations of trauma and stress in youth and are not well trained in utilizing trauma-informed approaches that are the standard of care in all stages of the juvenile justice system. The predominant approach utilized to manage youth at SVJC is punishment and behavioral control through methods such as solitary - - ~ ___ co.nfinernen_t,_~sical restraint, stra1212in to a chair and loss of behavioral levels. These approaches are not only ineffective, but have a profound negative impact on youth, can seriously impair their development and psychological well-being, and can cause or exacerbate mental health problems including panic attacks, suicidal and self-injurious behavior, psychotic symptoms, paranoia, and hopelessness. Because of their special vulnerabilities and needs as adolescents, the use of these approaches is a cruel and harmful practice when utilized and can have long-term deleterious consequences that are difficult to remediate. The mental health care and the overall care provided at SVJC are deficient and fall well below the standards of care in the juvenile justice system.
1
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Qualifications /Background:
1. I am a licensed clinical psychologist. I received my doctorate in clinical psychology from the Illinois School of Professional Psychology in 1989. I became licensed in Illinois in 1990. As part of my professional training, I completed a one-year internship in clinical psychology and a one-year fellowship in adolescent health psychology at Cook County Hospital (now John H. Stroger, Jr. Hospital of Cook County).
2. I was a Clinical Psychologist in the Department of Psychiatry at Stroger Hospital from September 1987 - July 2013. I worked with children, adolescents, and adults including those who had chronic medical illnesses and/or were traumatized or abused. I was Co-Director of the Adolescent & Young Adult Clinic and Coordinator of the Child & Adolescent Inpatient Consultation-Liaison Service that provided assessment and consultation to the pediatric, trauma, and ob-gyn units, as well as to the Child Protective Services team and the pediatric emergency room. During my time at Stroger, I evaluated many detainees from the Cook County Juvenile Temporary Detention Center and worked at the center for a period of four months when they were understaffed.
3. In addition to working at Stroger Ho~pital, I was a Lecturer in the Department of Behavioral Sciences at Rush University Medical Center in Chicago from January 1998 - July 2013. I have had a private practice in Wheaton, Illinois since 1987, working primarily .with adults providing individual, couples, and family therapy. Since 2013 I have also been the Clinical Director of The Counseling Center at the First Presbyterian Church of Evanston. In addition, I provide psychC'll·ogieal- serv-iees i-n--a-seh00l--b-as-ecl health- eenter--in a- GhiGago area- high- - school that is predominantly Latino.
4. I have served on two medical missions with the Syrian American Medical Society providing psychological trauma services to Syrian refugees living in Jordan, primarily to those living at the Zaatari Refugee Camp.
5. I was guest co-editor for a special issue of the Journal ofChild and Adolescent Trauma: Resilience-Based Approaches to Trauma Intervention for Children and Adolescents (Volume 9, Issue 1, March 2016).
6. I am a member in good standing of both the American Psychological Association and the Illinois Psychological Association.
7. I have done numerous forensic psychological assessments in Special Immigrant Juvenile Status and asylum cases in the United States and have also done several forensic psychological assessments of immigrants involved in civil cases. I have completed the training by the Physicians for Human Rights Asylum Program on "Aiding Survivors of Torture & Other Human Rights Abuses: Physical and Psychological Documentation of Individuals Seeking Humanitarian
2
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Protection in the U.S." I am familiar with the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I have received training in forensic psychological assessment and testimony from the American Psychological Association and in forensic report writing, comprehensive assessment of feigning in forensic contexts, and forensic assessments in immigration proceedings from the American Academy of Forensic Psychology. I have done trainings for Physicians for Human Rights, the Vera Institute of Justice, the Young Center for Immigrant Children's Rights, and the Loyola Center for the Human Rights of Children on the topic of forensic psychological evaluation of trauma in the context of asylum and immigration.
8. I have personally evaluated about 25 UACs since 2004 for reasons of asylum and Special Immigrant Juvenile Status. Most have been referred to me from the Young Center for Immigrant Children's Rights, but others have been referred from the National Immigrant Justice Center, the DePaul Asylum & Immigration Law Clinic, the Loyola Civitas ChildLaw Center, as well as various law firms. I have als-e-clone-numer-0t1-s-eva-h:1-a-Eit>ns-el'l-a-au-Jt-s-seek~ng-a-s-yhtm-. - - - -
9. I was involved in a civil class action lawsuit brought by several women from Central America against the federal government and the Corrections Corporation of America after these women were sexually assaulted by a guard during transport. I did not testify, but did provide deposition testimony. This case was eventually settled (see Appendix B No. 1).
10. I, along with several others, submitted a brief to the United States Court of Appea s for the FourtITircuit fn support of an a11en ch1Tc:1 wnowas detainecr6y - - - - the Office of Refugee Resettlement (ORR) despite the availability of his mother to care for him in the United States (see Appendix B No. 2).
11. I am familiar with conditions of detention and mental health treatment for unaccompanied minors who reside in facilities similar to the Shenandoah Valley Juvenile Justice Center as a result of my work in doing Special Immigrant Juvenile Status and asylum evaluations, as well_ as my involvement in civil cases brought against other juvenile facilities.
---'-------11-+2.- - l-ha-ve- eva-l-ua·tecl.-YACs as pa-r-t---e-F----tW-e--€i-vil--€la-s-s--aGti-e-F1-lawst1.4-ts--agam.s.--- - - - detenti on centers in the U.S. that did not provide appropriate care to UACs. I evaluated five youth as part of a civil case in 2009 brought against the Abraxas Hector Garza Center ("Abraxas"), Cornell Companies, the Office of Refugee Resettlement, U.S. Immigration and Customs Enforcement, the Texas Department of Family and Protective Services, and the city of San Antonio alleging tha~ these youth were physically and emotionally abused while residing at Abraxas. I did not testify and did not provide deposition testimony. This case was eventually settled (see Appendix 8 No. 3). The Division of Unaccompanied Children's Services (DUCS) terminated its contract with Abraxas for many
3
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reasons including inadequate services. 1 I evaluated six youth as part of a civil class action lawsuit brought against the federal government alleging that these youth were sexually, physically, and emotionally abused while residing at the Texas Sheltered Care Facility in Nixon, TX. I did not testify, but did provide deposition testimony. A settlement agreement was reached with the facility and its employees, but the case against the United States and its employees was lost. The case has been filed with the Inter-American Commission on Human Rights (see Appendix B No. 4). DUCS had been previously alerted to problems at Nixon by child advocates, but no action had been taken.2
13. The boys that I evaluated for both of these lawsuits were all UACs from Central America. Most of them had experienced various forms of abuse, neglect, abandonment, and violence from their families and communities, and many had also been traumatized during their journey to the U.S. They came to the U.S. to get away from their abusive environments in the hopes of obtaining a better life.
14. The youth who were at Abraxas reported physical and verbal abuse; inadequate medical care; confinement; denied access to attorneys;_and abru t transfers to other facilities with no explanation. The youth I evaluated for the Nixon litigation also reported significant abuse.
15. It was my opinion that all but one of the youth I evaluated at both facilities had suffered substantial physical, mental, and emotional harm as a result of the abuse they experienced while in detention. Most had experienced prior traumas that were exacerbated due to the traumas they experienced in detention. Most were diagnosed with PTSD, depression, and/or anxiety.
16. It was also my opinion that these youth had not been provided with a safe and humane environment in which to live and that they had not received adequate mental health care.
Materials Reviewed:
17. See Appendix A.
Unaccompanied Alien Children and Complex Trauma:
18. Children who come to the United States unaccompanied from other countries (unaccompanied alien child - "UAC") come for a variety of reasons including: fleeing parental abuse and neglect; fleeing violence and unsafe conditions in
1 Halfway home: Unaccompanied children in immigration custody. (2009). Women's Refugee Commission. https://www.womensrefugeecommission.org/resources/document/196-halfwayhome-unaccompanied-children-in-immigration-custody 2 Ibid.
4
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their home country; fleeing persecution; to join parents or other relatives already living in the U.S.; and a desire for a better life in which they will have opportunities to work and go to school. Some children are also involuntarily trafficked into the U.S. as part of the worldwide labor and sex trafficking industry.3 UAC's are vulnerable before, during, and after their journey to the U.S. because they do not have adult protection and are unable to properly care for themselves.4
19. Most UACs have experienced abuse, neglect, and trauma within their home countries, but are then faced with the additional stresses of migrating to the U.S. often traveling through unsafe and dangerous countries over a period of weeks and months. During their journey - which may take them through multiple countries - UACs may undergo highly traumatic experiences including: going days without food, water, or shelter; being exposed to unsanitary conditions; getting sick or injured; being robbed or kidnapped; being beaten; being raped; watching others being tortured or murdered; having to survive in the jungle; and having to survive crossing through deserts and rivers. Once they arrive in the _US, UACs maY- b e _further___traumatized if ag__prehended by Immigration and Customs Enforcement and detained. In addition, they have to adjust to living in a country in which they often do not speak the language and are unfamiliar with the customs. All of these experiences contribute to UACs who are likely to have suffered extensive and multiple instances of abuse and trauma, often referred to as complex trauma, prior to any trauma they may experience if detained.
20. Complex trauma occurs when a child has been exposed to multiple, chronic, and prolonged traumatic experiences that are often of an interpersonal nature ft;.g;-;-ab u-s-e----from- a-earet-aker-}.-S-W-hen- un-t:reated,t:hese- lea-cl- t:0----ehanges--i-n-+he brain (i.e., prolonged activation of the body's stress response system) and result in a loss of core capacities for self-regulation and interpersonal relatedness.6 Trauma-exposed children develop psychological symptoms including hypervigilance, over reactivity to perceived threats of danger, difficulties in calming themselves, and avoidance or dissociation - i.e., they try not to think about their traumatic experiences so as not to be overwhelmed by them and can
3 Levinson, A. (2011). Unaccompanied immigrant children: A growing phenomenon
====--====-.wr.n.m:e:ww.:.:.:ei~cilS-Sl¥~olutions.:M1gtatlcml~ottcy1nsttmre:~- - -- - - - - - - - - - - ~ ~ = - ~ --
https:/ /www.migrationpolicy.org/print/43 28 4 Young, W., & McKenna, M. (2010). The measure of a society: The treatment of unaccompanied refugee and immigrant children in the United States. Harvard Civil Rights-Civil Liberties Law Review, 45, 247-260. http://harvardcrcl.org/wpcontent/uploads/2009 /06/24 7-260.pdf s Van der Kolk, B. (2005). Developmental trauma disorder. Psychiatric Annals, 35, 401-408. 6 Cook, A. et al. (2005). Complex trauma in children and adolescents. Psychiatric Annals, 35, 390-398.
5
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become very distressed when these experiences come to mind.7 Children who have been abused develop strategies and mechanisms to manage their anxiety and to cope with their abuse (e.g., fleeing the abuse, fighting back, or emotionally detaching from the abuse). This is what is typically referred to as the "fight" or "flight" response and gets activated when the child is in a situation or interacting with someone that triggers past memories of the abuse. The child is essentially doing his or her best to "survive-in-the-moment" in response to a threat or perceived threat that is overwhelming and for which they have limited abilities to soothe and regulate themselves.
21. The responses of children who have experienced complex trauma are rooted in their past traumatic experiences (which may include parental abuse and neglect) that can be easily triggered in an environment - such as a detention center - where staff are not trained to see how their own actions and words can precipitate traumatic memories and, therefore, survival-in-the-moment responses on the part of detainees as a way of managing these traumatic memories. Once a child knows what it is like to feel danger and terror, it takes
very litti.e_new_ thr.eat ta reignite it a Childr.e.n___.who_hav_e_b_een abused develop
strategies and mechanisms to manage their anxiety and to cope with their abuse (e.g., fleeing the abuse, fighting back, or emotionally detaching from the abuse), and these strategies become activated by the parts of the brain that control basic emotionality and survival-motivated behavior and prepare the body for emergency responses. Sensory information from the environment is transmitted very quickly and unconsciously so that the child has a chance to · respond immediately to the danger or perceived danger. Analysis of details and the context of the situation are sacrificed for speed of transmission so that the child -------- carrsurvive.9-
22. Youth who experience complex trauma often do not meet criteria for Posttraumatic Stress Disorder (PTSD), but instead are given several diagnoses that reflect their various symptoms and behaviors (e.g., depression, conduct disorder, anxiety). This often leads to attempts to treat each of these particular diagnoses rather than seeing that all of these are part of a complex trauma presentation. It is not that these youth are not depressed or anxious or have behavioral problems, it is that these need to be viewed as manifestations of, and coping methods for dealing with, their past abuse and trauma.
7 Dudley, R. (2015). Childhood trauma and its effects: Implications for police. New Perspectives in Policing Bulletin. Washington, D.C.: U.S. Department of Justice, National Institute of Justice. NCJ 248686. a Garbarino, J. (2008). Children and the dark side ofhuman experience. New York: Springer.
9 Saxe, G., Ellis, B., & Kaplow, J. (2007). Collaborative treatment oftraumatized
children and teens: The trauma systems therapy approach. New York: The Guilford Press.
6
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23. Youth who have been abused will often unconsciously get drawn into, or draw others into, situations in which they can try to master their past abuse. For example, a youth who felt powerless and helpless when physically abused as a child might be drawn to, or draw others into, situations in which he/she could feel powerful and in control and, in this way, undo or master their previous victimization and abuse.
Evaluation of Plaintiff John Doe 1:
24. On August 10 and August 11, 2017 I evaluated Plaintiff John Doe 1 at the request of the Young Center for Immigrant Children's Rights. The evaluation was requested to provide an understanding of Doe l's past trauma and detention history, the impact this had on him, and recommendations for future placement and treatment. The evaluation was conducted at the Legal Aid Justice Center in Charlottesville, VA over a period of 10 hours with the assistance of Mr. Jeff Divers, who served as my Spanish-English interpreter. Doe 1 was also .administered several psychological tests and questionnaires (as adjuncts to the
-Cli.ni.caLint~v.i.ew)- tha.Lassess... fOLanx.Let)l,_cie.p.res.sion, traumatic life ev...e..nt.s,._ _ _ __
behavioral problems, self-esteem, and cognitive functioning. At the time of the evaluation, Doe 1 was a UAC at the Shenandoah Valley Juvenile Center (SVJC).
25. Doe _1 is a 17-year-old Mexican youth. His childhood history in Mexico indicates that he had experienced abuse and neglect from his parents and struggled with depression. Doe l's father drank a lot and would become violent. He physically abused Doe 1 (this was confirmed by the Young Center after conversations with Doe l's mother) with objects such as shoes, belts, and cables aml-psydroto-gicatlyabus-ed-lrtnrby-saying-D oe 1 was-not-his-chHd--an-d-by-m-aki-ng other disparaging remarks. His mother was unable to adequately protect him from the father's abuse and appears to have been unable to provide Doe 1 with the nurturance and support he needed to process, understand, and cope effectively with his father's abuse. Doe 1 has no positive memories of his father.
26. Doe 1 would cry and feel scared and angry when his father abused him and would frequently run away from the house to escape the abuse. He would run and hang out on the streets or hide near the river and either his mother would come and get him or he would return home on his own after about half a day.
27. Doe 1 was frequently teased about his physical appearance when he was a child. He dropped out of school when he was 14 years old because he lost interest and was getting into fights.
28. Doe 1 came to the U.S. right after his 15th birthday because he felt unsafe and unhappy in Mexi!=O due to the violence there and because he wanted the opportunity for a better life. He would eventually like to have a family and work in a car factory.
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29. Doe 1 expressed fears of being killed by the drug cartels if returned to Mexico.
30. I diagnosed Doe 1 with: 1) Child Physical Abuse, Confirmed; 2) Child Psychological Abuse, Suspected; 3) Major Depressive Disorder (MOD), Recurrent Episode, Moderate; 4) Persistent Depressive Disorder (Dysthymia); and 5) Conduct Disorder, Unspecified onset, Moderate.
31. Results of the evaluation indicate that Doe 1 is a very depressed young man with serious doubts about his self-worth who has limited abilities to regulate his mood and behavior when upset. He desires to better control his temper and admits to feeling bad when he hurts someone. He experiences a high degree of behavioral and emotional maladjustment and does not easily trust others because he fears being taken advantage of. Doe 1 vacillates between feeling depressed and sad about where his life is at and that others do not like him vs. liking that others are afraid of him because it gives him a sense of feeling powerful and in control over them. He believes it is a sign of weakness to show that he is depressed. Results of the evaluation also suggested that Doe 1 has
- -below-a.verag_eJntellectuaLfunctioning.
32. Doe 1 became highly distressed during the evaluation when asked to talk about his father. He had trouble discussing the abuse that he experienced with any detail and at times completely shut down emotionally. He reported forgetting and not wanting to remember things from his past - especially memories regarding his father. While detaching .from these painful memories allows Doe 1 to not have to feel the emotional pain associated with these memories, it also serves to keep these hurtful memories buried inside him like cnrulu-woun-d- thattan be all-tao-eastly-op-ened- up-in---situati-o-ns--i n- which--he-i·s- - - - reminded of the abuse.
33. Although Doe 1 did not meet criteria for Posttraumatic Stress Disorder (PTSD), it is my opinion that, from a complex trauma framework, his behavioral and emotional difficulties have most likely resulted from and been shaped by his early childhood abuse and neglect and have been exacerbated while he has been in detention. Complex trauma is not a diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DMS-5), but is likely to be included in the next edition of the DSM. Viewing Doe l's problems from a
- - - - - - -,comptex=trauma_p.erspectili.eJs critical in tha.Lit DOj~~s::=to exp=la=i_,_,_n_,h=·=--- - - - behaviors and moods, but also helps to understand both the type of treatment and environment that he will best respond to and how his experience at SVJC has exacerbated his pre-existing trauma. In other words, understanding that youth such as Doe 1 are traumatized can avoid creating additional harm and improve the diagnoses and facilitate matching them to trauma-informed services.
34. It was my opinion that it would be detrimental for Doe 1 to be returned to Mexico and I recommended that he receive services in · a trauma-focused residential treatment facility. It was my belief that his depression and aggressive
8
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behaviors originated in his adversity and trauma and would likely not improve without proper trauma-focused treatment in a safe environment over an extended period of time. It was also my opinion that Doe 1 would probably never fully recover from the traumatic events that he experienced as a child (and while detained at SVJC) without proper trauma-informed treatment.
Doe l's Experiences in Detention at SVJC:
35. Doe 1 reported feeling very depressed while in detention at SVJC. He felt "stuck" and "trapped" because he was not allowed to go outdoors much. At times he felt so depressed that he struggled to get out of bed in the morning and had thoughts that he would be better off dead.
36. Doe 1 experienced many forms of repeated and prolonged abuse and punishment while in SVJC detention including teasing and physical assault from staff, humiliation when being observed using the toilet, being confined to his room or restrained to a chair (sometimes with a mask put over his head) for long periods of ti me, and-bei.ng.J.oc.ced..--t~at-handc.uffs_anci..sba ck) es.__These_actLons_ _ __ on the part of staff replicated and exacerbated the abuse and teasing that he experienced as a child from his father and his peers, and further traumatized Doe 1. Several examples will be provided below.
37. Doe 1 tended to respond to his traumatic experiences in both internalizing and externalizing ways. At times he would internalize by withdrawing from others and engaging in self-injurious acts such as cutting himself with an object or hitting his head against the wall when upset. On several occasions, he talked
- - - - - - - aocmtortmrde-sui-ctcte attempts. tt-ei'etrrrevVas-frequently-b-lamecHorthings-t:hat - - were not his fault.
"I feel all torn up inside, but I don't show this to people because it is a sign of weakness. I feel like there is something broken with me. When I feel bad, it comes up on me suddenly and Ijust want to be left alone and sit in the sun."
38. For example, on 07/10/16, Doe 1 refused to leave his room and engaged in self-injurious behavior (carving initials on his chest and banging his head against the wall). Subsequent discussion with his counselor on 07/11/16 suggested that
- - - - - - - ,....--..--. "-:e1ldl.estr: ite::B a.Y-1 arwasm response to being~c=n~ro=n=1=c·=a=tly""b,~J---=at=I~tec=--=.,_______
one of his peers. The counselor seemed more concerned with why Doe 1 selfharmed and what the meaning was of the initials he carved on his chest than on understanding his experience of being bullied, the feelings that this triggered in him (e.g., fear, anger, shame, self-loathing), and more appropriate ways to manage these feelings.
39. At other times Doe 1 would get "really angry" and act out aggressively. He thought that others did not like him and would get upset and feel "bad" when others insulted or pushed him, and would want to retaliate. He stated that his
9
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"adrenalin would kick in" when he felt insulted or abused and this would sometimes cause him to respond aggressively.

"/ feel depressed and rejected and take it out on whoever is around. There is nothing I can do about my bad feelings, so I attack people because I can't tolerate my bad feelings."

40. For example, Doe 1 was involved in an incident during recreation time on

04/20/16 in which he was verbally redirected several times to not forcefully

throw the ball. Doe 1 failed to obey and continued to throw the ball. He cursed at

staff and a physical altercation ensued. This resulted in Doe 1 being physically

restrained, confined to his room, and losing all of his behavioral levels or

"points".10 This altercation occurred only five days after Doe 1 had been

transferred to SVJC and appears to have set the tone for further aggression from

both Doe 1 and staff throughout his detainment. The progress note dated

04/20/16 said, "UC stated that this staff member spoke to him 'like my father'

which caused him to react with physical aggression." This statement and the

abovc-~ae-i-a-e-R-t-- aFe-si-g-ni-Fi-ra-nt-f0-F-------S€l-V.g.i:al- r--easons.- .Ei.r-st,--D-0.e...- l himselLis,_ _ _ _ __

providing his mental health counselor the lirik between his prior abuse and his

current reaction, yet there was no attempt by the counselor to process this with

Doe 1 despite their meeting for 60 minutes. Had this been recognized as a

traumatic trigger for Doe 1, a different treatment approach could have been

utilized which would have included working with Doe 1 to calm himself and

express his anger in other ways and to work with the staff member to be aware

of how his words triggered Doe 1 so as to be more aware of this in their future

interactions. Second, things appear to have escalated after Doe 1 cursed at the

------s~taff mem5er. A staff memoer asl<eaD0et1f11ehad--utre-cted--tlre---curse--words- - - - - -

towards staff and a fight ensued. While it is understandable that the staff

member likely felt disrespected, it appears that this staff member may have

unnecessarily provoked Doe 1 through his words and actions. This would have

been an opportunity to utilize de-escalation strategies to defuse the situation.

However, there is no indication that this was done. Instead, "with no time left for

less intrusive intervention, Doe 1 was placed in a physical restraint." Third, this

incident exemplifies that the predominant approach utilized at SVJC is one of

behavioral control and punishment. This incident very likely set the stage for

-

-------- '----~ bDeo-ien-g1---uto.-n.nj~ uo.£tt1fe¥e-tlr-seaaf.tee

at or understood by the staff at SVJC and to feel -Eo.u.ct r......ma.Il¥-)Wiltl:Clim.es 6frrans1ti on

angry for
a.._,.._...>,L4'.._..oA-

-

-

-

-

-

difficult to manage because of the ensuing anxiety. Doe 1 had recently

transitioned from NOVA, a staff secure facility in Virginia, and may have been

10 Points are given to reinforce behaviors such as turning in schoolwork and taken away to punish behaviors such as fighting or cursing. The total number of points is used to determine the behavioral level of a detainee. The lower the behavioral level, the less privileges the detainee has. Unfortunately, staff may arbitrarily give or not give points based on their own attitude and mood at a particular time rather than relying on objective criteria and administering the point system consistently.

10

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confused about the expectations at SVJC. He may have also been experiencing shame as a result of being sent to a more secure facility. However, there was no attempt on the part of his counselor to discuss Doe l's feelings about the recent transition and the adjustments he was having to make.
41. Four days later, on 04/24/16, Doe 1 again lost all of his behavioral levels and was restricted to his room for disruptive behavior and assault on staff. When meeting with his mental health counselor the following day, the "clinician emphasized to UC the significant consequences that can occur if he were to continue assaulting staff/peers while at the facility." Again, there was no effort to process with Doe 1 what his feelings and thoughts were during this incident and to help him learn more adaptive ways to cope; instead, the main intervention was to punish him and to emphasize his need to behave better.
42. On 05/03/16, Doe 1 lost all of his behavioral levels and was confined to his room for stealing a pencil. On 05/04/16, he was put in restraints and confined to his room for assaulting a peer. In his therapy session on ·05/05/16, his counselor
- -"empn-a-si-ved---eeto!:i-th e-i-mmefi-i-a-t-e- a-n4--lG-r-1.g,..te-i:-m-co-J'.J.seq.uences-of hiS-aggr.essh,e behavior at the facility/ outside in the community." The only effort made to help Doe 1 process his behaviors was when·the counselor tried to get him to discuss his "motives," which Doe 1 had difficulty doing. This is not an effective approach with impulsive youth, as they often do not know why they are behaving in certain ways. An effective approach would have been to ask him what he was thinking and feeling before he took the pencil and before he assaulted the peer, to link these thoughts and feelings to his subsequent behaviors,.and to help Doe 1 understand how his behaviors were likely efforts to survive in the moment and to se -regula e emo ions sucn as aepress1on, Ione1lne-ss;--fe--a-r; or angery-that were distressing him.
43. In his session with his counselor on 08/01/16, Doe 1 attributed much of his acting out at the facility to "bad dreams" that upset him during the day. "UC stated that his dreams often include staff members and previous cartel members involved in violent acts." This was a clear indication that Doe 1 was carrying around a great deal of traumatic anxiety with him during the day and was an opening for the counselor to further process Doe l's experiences .of trauma, as well as to provide education for Doe 1 as to what trauma is, how it is carried in
- - - - - - -ou.i::-hodies,_andJi.ow--trnageiOnstead, the cmms.ellir seemedTo most11=_ ,--&·."o,:-c=u-,-s,a - - - - -
on whether the content of the dreams was true and to reiterate the consequences that would occur if Doe 1 were to continue assaulting others. -
44. A psychological evaluation was completed by Gustavo Rife, Psy.D on 05/04/16 at the request of Mr. Evenor Aleman, Doe l's mental health counselor at SVJC. The results of this evaluation and the recommendations appear to have contributed to the behavior control and punishrnent approach utilized at SVJC rather than a more trauma-focused approach. For example, Dr. Rife states, "Testing also indicated that [Doel] consistently approves of antisocial behavior
11
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and has a generalized predisposition to resolve problems of social and personal adjustment in ways that disregard social customs and rules." This statement sets up Doe 1 to be viewed as being predisposed to antisocial behavior vs. considering that his "antisocial behavior" may, instead, be behavior that has been learned in response to his past abuse and distrust of others and which can be easily triggered in situations in which he is treated (or perceives that he is being treated) unfairly and harshly.

45. Dr. Rife also states, "There was also a history of physical abuse and possible exposure to other trauma, but there are no evident symptoms for PTSD at this time." While I agree with this statement, it does not go far enough in recognizing that youth with complex trauma often do not meet criteria for PTSD and often have several diagnoses (e.g., depression, conduct disorder, etc.) that become the focus of treatment rather than the underlying trauma and abuse that drives these moods and behaviors. Dr. Rife goes on to state," ...testing indicates that his interpersonal difficulties ·rriay be due more to social anxiety than a complete lack of regard for other people .... he also had a very low score on his sense of relateEl.fte-s-s-s-uggesti-Rg gr-eat-di-tti-€-1:l+ti e-s-b@i-n-g--i-n--r-@J.a.oo.n.shlps~t- i.s-my- o.p.i ni onthat this more accurately captures the trauma and anxiety that gets easily triggered in reactively aggressive ways when Doe 1 is around others. However, rather than focusing on ways to address his underlying anxiety and trauma, the approach taken at SVJC was largely to just control his aggression and selfinjurious behavior. This was further reinforced by Dr. Rife's recommendation that "[Doe l's] persistent anger, self-centeredness, lack of respect for authority and lack of concern about others put him at high risk for antisocial acting out which needs to be directly confronted and contained." Again, the emphasis here 1s on controlfing antisocTar5enav10r rafner tnan considering tlrartrtsa rt1ng-1Yut behaviors may be defensive reactions to protect himself from further victimization by those in his environment.

46. In his summary of Doe 1, Dr. Rife states, "He does not appear to suffer from

active symptoms of serious mental illness that significantly impairs his cognitive

competence to make informed decisions although his cognitive abilities may be

temporarily impaired when he is highly angered or upset. " It is my opinion that

this statement minimizes the impact of Doe l's depression and past

-

-

--

--------ta,biu:aseu/.tmra~umciagognehr:is

ability to function in the moment when his reaction to past .-TJ1-iS-WO.uldJiave been aILO.p.p.ortunity ta explam_.ln..Jlie_

_

_ __

_

report that Doe l's behaviors are often in reaction to his environment and to

those around him and are an attempt to "survive" in the moment when there are

reminders of his past abuse and traumas, rather than simply manifestations of

disregard for others and delinquency.

47. During the course of my evaluation of Doe 1, he was noticeably agitated and restless when discussing his experiences in detention. His legs were constantly shaking, he pulled apart the paper cup he was drinking from, and kept looking down at his feet. He said that talking about these experiences reminded him of

12

Case 5:17-cv-00097-EKD-JCH Document 34-7 Filed 02/28/18 Page 13 of 30 Pageid#: 283

when he was growing up and would feel bad about himself because kids would tease and make fun of him. He also said that witnessing other boys being mistreated was upsetting to him because it reminded him of his father's abuse. He would sometimes try to defend the other boys and would then be punished for this by being put in restraints or confinement.
48. Based on the information provided above, it is my opm10n that Doe l's traumatic childhood history of abuse, neglect, and teasing has been replicated while in detention. Individuals with this kind of history are extremely vulnerable to becoming emotionally and behaviorally dysregulated in situations where others are saying or doing things that are abusive or demeaning. Even such subtle interpersonal signals as a harsh look, a critical tone of voice, or a _humiliating comment could be enough to trigger a_ traumatic reaction of "fight" or "flight" in s_omeone like Doe 1. As described above, his usual responses vacillate between those that are internalized (i.e., fleeing or detaching) and those that are externalized (i.e., fighting). "Fleeing" is a survival behavior that he learned as a child to get away from his father's abuse and may partly explain his threats to run away from the detention center and being labeled a "flight risk." However, Doe 1 also reported numerous situations in which he felt insulted or humiliated by things staff said or did to him and would go into fight mode and become reactive and aggressive. Later, when staff would ask him why he responded the way he did, he would often not know why. He was simply surviving in the moment.
49. Doe 1 has difficulties self-regulating his emotions (e.g., humiliation, fear, - - - - -~er, self-loathin ) and behaviors ~g., aggressiveness), especially_w'--h'--e'-n--'-f-a-'-'-c"-e''-d'~ - - - - -
with situations in which he does not feel safe. It is my opinion that it is highly likely that many of Doe l's aggressive behaviors (both self and other directed) in detention were survival responses to situations in which he felt in danger (or felt another detainee was in danger), much as he felt with his dad. An environment in which people intentionally or unintentionally provoke an abused child and then focus on limiting, shaming, and punishing the child can lead to further acting out (because the child does not feel understood and feels angry and helpless) and to the child's being labeled as antisocial or delinquent rather than as a previously abused and traumatized child who is trying to survive in an _ _ _ _ environme t that i triggering him and not understanding or supp..orting him in - - - - - - -Q-l'\.13ropriate wa~.- -
50. In my professional opinion, the abusive punishment Doe 1 experienced at SVJC exacerbated his prior trauma and caused additional, long-term harm.
Declaration ofJohn Doe 2:
51. Plaintiff John Doe 2 is a16-year-old Mexican youth. He has been living in the U.S. since the age of 10 months and was taken into custody at the age of 16 by immigration simply for not having identification. Doe 2 was detained at two
13
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other facilities prior to being transferred to SVJC for behavioral problems. He has not been allowed outside of the facility for recreation. He attends school, but finds the academic work well below what he is capable of doing. He is likely bored as a result of this and this, in turn, may be contributing to his frustration in the classroom.

52. Doe 2 was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), depression, and anger management issues while residing at a staff secure facility in Texas. He was prescribed four m~dications for these problems including Prozac and Trazodone. While it is possible that Doe 2 is in need of and benefits from some, or all, of these medications, it is also possible that these medications are used primarily to try to control his behavior in lieu of other therapeutic strategies (e.g., trauma-focused therapy) and environmental modifications (e.g., more recreational and social opportunities, more appropriate educational opportunities) that would improve his attitude, increase his ability to cope, and decrease his acting out.

53. Doe 2 witnessed many of the SVJC staff insulting and making....derGga.tG-J.:'.Yremarks about many of the Hispanic youth. He was retaliated against (i.e., he lost points) for informing the other kids as to what the staff was saying about them. Doe 2 experienced racism and discrimination at SVJC and submitted a report to the facility director. He complained that the immigrant kid? did not receive the same privileges as the local kids (e.g., they were not ,;1.llowed to go outside as much and did not have X-boxes in their pods or computers in their classrooms).

S-4-. -·1Joe2reports several mstancesof"l1arsh anda busive t r eatmen:rwnrle at-sv-re.

On one occasion, he cursed in the classroom and was taken to his room. He

became resistive and was handcuffed and had his face pushed into the wall. He

was confined to his room until the next day. On another occasion, after being

confined to his room for a day and a half, he had an altercation with staff which

led to his being strapped to a chair with a bag (with holes in it) put over his head.

He was kept tied to the chair for 30 - 40 minutes, after which he was again

confined to his room for one and a half days. Doe 2 was confined to his room on

several occasions for resisting staffs attempts to remove him from the program.

His mattress, blanket, personal items, and clothes were taken from him during

- - - --. oiiliru

e O e ex enencesot confinement for Ton ~o S of·- - - - - -

time, being handcuffed, having .his head physically pushed into a wall, being

strapped to a chair with a bag over his head, and having his mattress and other

belongings removed from him are, in my opinion, highly detrimental,

unreasonable and abusive. They fall below all professional standards of which I

am aware.

55. Doe 2 reports several instances of being restrained by staff and taken to the floor, often by three or four men using force against him. He was often left with bruises as a result of this. While there are times that some youth may need to be

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physically restrained for their own safety or that of others (much as an inconsolable baby sometimes needs to be swaddled or a small child who is out of control needs to be put in "time out"), these types of interventions should only come after other efforts have been made to de-escalate the situation, and should only be used for the period of time it takes for the youth to regain control. Once control has been established, the restraints should be removed. In my opinion, there are very few, if any, situations in which it is justified to have three or four large men jump on a smaller youth (much less push his head into a wall) or for a youth to have to be strapped to a chair with a bag over his head.
56. Doe 2 reports feeling sadness, anger, and frustration at being locked up at SVJC. This is likely compounded by the fact that he has lived in the U.S. for over 15 years and was only arrested for failure to have identification on him. On one occasion he cut himself and on several occasions got into verbal and/or physical fights with the other kids. This suggests that he does. not know how to emotionally self-regulate and self-soothe. He does not report any efforts by staff to talk to him about his feelings and thoughts, so it is not clear whether he was provided w-ith-a-ey----t:-ype--o-H-hera13y-t:h-a-t- m-i-gh-t-h-av-e-helpea-fl-i-m,~.- - -
Declaration of John Doe 3:
57. Plaintiff John Doe 3 is a 15-year-old Honduran youth who fled Honduras due to gang violence and death threats. He took busses and trains through Guatemala and Mexico to get to the U.S. border. He was assumed to be a gang member and was told that, for this reason, he was transferred from a facility in Texas to SVJC. Doe .3 reports several situations in which punishment resulted for no reason or
- - - - - - -~ram minor in ract1ons ofllie rules. n one situation, oe 3- was yerrec:rarl5y stafr - - - · -
for holding the door to the art room open. This escalated and led to staff restraining Doe 3, pushing his face into the wall, and then two staff members slamming him to the ground. Subsequent to this, he was put on room confinement for the remainder of the day with no mattress or blanket, and only allowed to wear his boxers. The room was cold and he did not get his clothes back until the next day (although he did get his mattress and blanket back that evening). He reports numerous times in which his clothes were taken away. On at least one occasion, he was strapped to a chair with only his boxers on.
- - - - --e-8~. - DQ.W---r-eJW-J:.ts-heing.--l1-andcuffed-sevei:aLtimes_aruLthat staff WQJ] IcOiIEblm while he was handcuffed. He felt the staff would intentionally try to get him to hit them so they could punish him further. He tried to cover the window in the door to his room for privacy, but this led to several staff entering his room with plastic shields and becoming physical with him. Doe 3 felt the staff was racist and discriminatory in their treatment of the Hispanic kids compared to the American kids. He also felt the staff was intentionally disrespectful and provocative and that they administered the point system in an arbitrary and inconsistent manner which led to his earning fewer points than he should have earned.
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Declaration of J.A.:
59. J.A. is a 15-year-old Mexican youth. He does not recall being given any explanation as to why he was being transferred from BCFS in San Antonio to SVJC and does not remember getting anything in writing explaining this. This lack of transparency can create confusion, anxiety, susp1c10n, and misunderstandings for the detainee. Transitions can be difficult in the best of circumstances, but can be particularly stressful for youth such as UACs who have not come from stable family situations.
60. The Division of Unaccompanied Children's Services (DUCS) Manual states that all children placed in secure and staff-secure facilities will be given a Notice ofPlacement in Secure and Staff-Secure form 11, which will explain the reasons for the placement in that kind of f~cility and written in language the child understands.12
61. J.A. reports considerable mistreatment during his time at SVJC. He reports rece-iving---deme-a-ni-n-g-rema-rks-fro m st-a-ff,---b e·i-ng-f:) rnv0 k-eEi-·by-s-re.f-f, seei-n-g-s-t-a-ff-l'litother detainees, and being put in solitary confinement - often for long periods of time. During some of these confinements he was not allowed to leave for any reason.
62. J.A. was restrained in a chair as punishment on at least one occasion. He was stripped of his clothes; handcuffed, strapped across his chest, had his feet and hands strapped to the chair, and had a white bag put over his head. He was left naked and attached to the chair for more than two days. This is highly unusual punishment an was i ely higlily traumatizmg- for J-:A--:-In my opinion, this borders on a form of torture. Torture, as defined by the Istanbul Protocol, is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person, has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such or pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an
_ __ ___o_f_fi_c_ia_l_ca acity. It does not include pain or suffering arising only from, inherent ~ - __ - - -- -- -i-fHlfi-fl:e-i-El-enta+--Ee-lawfu.l--sa-RC-t-iOflc0c."-~ - - -- - - -- - -- -- - -- - - - -- --
11 DUCS Manual, Section 5.02 cited in Halfway home: Unaccompanied children in immigration custody. (2009). Women's Refugee Commission. 12 DUCS Manual, Section 2.05 and 3.02 cited in Halfway home: Unaccompanied children in immigration custody. (2009). Women's Refugee Commission. 13 Istanbul protocol: Manual on the effective investigation and documentation of torture and other cruel, i!7-human or degrading treatment or punishment. (2004). Office of the United Nations High Commissioner for Human Rights.
16
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Review of Declaration of R.B.:
63. R.B. is an 18-year-old male from Guatemala. He came to the U.S. with his mom when he was young, but ran away from home at the age of 13 and was picked up by immigration authorities. Due to his behavioral problems, he was eventually sent to SVJC.
64. While at SVJC, R.B. was frequently placed on room confinement for 3-5 days at a time for up to 23 hours a day. His mattress would be removed early in the morning and he would only be left with a book and a Bible. This isolation was difficult for him and led him to start talking to himself and banging his head against the wall. He felt like he was going crazy.
65. When he got into fights, he felt the guards used excessive force to.subdue him. He was frequently put into a restraint chair and left in it for long periods of time, sometimes for up to half a day, or "two shifts." He described his feet, legs, arms, and head being strapped to a metal chair. On one occasion, he had a mask put over his face after he spit at a guard. He described the chair as a physically painful and humiliating experience. One time he peed on himself when he was not allowed to go to the bathroom.
66. RB. witnessed the guards provoking some of the other detainees into fights and then pushing them to the ground and forcing them into restraints.
67. R.B. was undoubtedly traumatized by his confinement and restraint chair experiences at SVJC and experienced what I believe to be a form of torture and
- e-r-1±el,---El-egra-d-m-g-puni-s-ll-men-t-,------He-El-esff--i-ee-s-n-et- ee-i n-g-him-sel-f- si-R-re- be-i-R-g detained at SVJC.
"When I left home I was just a little boy, but being there changed me. I'm not optimistic anymore. Even now, my mom tells me that I changed a lot, that I'm not the same person. I rarely go out with friends. I Just spend time with my family now."
Review of Declaration of D.M.:
- - --68:- B:M:-~ - -: ea-r-,otd---Hondur~male-wh-o--resided at~S-VJC-for-1-1--montfts:-He- - - - - wi tnessed another boy being slammed to the floor after hitting a guard who had physically provoked the boy by grabbing his shirt and then pushing him. D.M. says this incident started because the guard was upset that the boy was not reading a book like he was supposed to. D.M. felt this whole incident was unnecessary.
69. D.M. believes the guards wrote up biased incident reports on the detainees and did not allow the "kid's side of the story to be heard. They never came and talked to us about what was going on inside of us."
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70. D.M. reported that the guards were prejudicial and discriminatory in how they dealt with UACs vs. local American youth. The UACs were not allowed to have a roommate and lies were told to the local youth that the UACs had raped someone or had HIV. The guards called the youths derogatory names and insulted them.
71. D.M. had been previously diagnosed with PTSD, major depressive disorder, and bipolar disorder. He had taken medications when at the previous facility (Shiloh Treatment Center), but then did not receive medications for six weeks after transferring to SVJC. D.M. experienced periods of crisis in which he would want to hurt himself and, instead of receiving counseling, would be taken out of his cell and put in a restraint chair for about one hour. He would be handcuffed and strapped in the chair from his feet to his chest.·A bag with little holes was put over his head, which made him feel like he was being suffocated. "They are ·going to suffocate me. They are going to kill me." This was undoubtedly a very traumatizing and humiliating experience for D.M. and, in my opinion, borders on a form of torture and cruel, inhumane punishment.-'Ihis-tY-J)-e--OLco.ntr.ol.li.ng_and __ degrading response suggests that the facility staff were not trained in dealing with mental illness and were simply trying to control D.M. because of their own fears. It is situations like this that breed fear, distrust, and resentment amongst detainees and lead to further acting out as a way to protect themselves.
72. D.M. witnessed two other boys being put in the restraint chair as a punishment for fighting. However, he never had any fights and was only put in the restraint chair when he was in crisis.
Youth in the Juvenile Justice System/Detention:
73. Immigration detention has a significant detrimental effect on· the mental health of all children and youth no matter whether they have suffered previous trauma or whether they are UACs. Psychological harm has consistently been associated with detention.14 Children held in detention are at risk for many psychological problems such as depression, anxiety, PTSD, suicidal ideation, and self-destructive behavior. The longer children and youth are detained, the greater the chance of mental health problems developing.is Immigrant children
14 Kronick, R., Rousseau, C., & Cleveland, l (2015). Asylum-seeking children's
experiences of detention in Canada: A qualitative study. American Journal of Orthopsychiatry, 85, 287-294. 1s Australia Human Rights and Equal Opportunity Commission. (2004). A last resort? National inquiry into children in immigration detention, 357-454, https://www.humanrights.gov.au/sites/default/files/document/publication/alr_co mplete.pdf
18
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and youth who are detained even for very short periods of time show signs of psychological deterioration.16

74. Research indicates that a high percentage of youth involved in the juvenile justice system have been exposed to multiple types of traumatic events including violence, family abuse, and traumatic losses. 17 These youth often become distrustful, hypervigilant, impulsive, reactively aggressive, and display lack of
empathy for others.rn

75. Punitive approaches such as prolonged isolation, restraints, and physical abuse are harmful and ineffective. For example, 50% of all suicides in juvenile facilities occur while youth are held in isolation.19 Facilities, including SVJC, continue to harm youth by using force (e.g., aggressively restraining youth) and isolation as means of behavioral control rather than using de-escalation, conflict resolution, and trauma-informed strategies that are more effective and not harmful.20

- - -7-e;- -lJAGs,a-sylu-m-s@eke-F-s-, aHG-OtJJ.-m---d is-p-1arefi-pe-rsons-gx_pe-r-i €!-AGe- -m-e-nt-a-1----h-eaLt-h.problems at higher rates than the general population.21 Their mental illnesses
get worse when they are detained, especially when interventions such as solitary confinement and force are utilized.22These types of practices serve to re-
traumatize already vulnerable youth and can retrigger painful feelings of fear,

16 Lorek, A., Ehntholt, K., Nesbit, A., Wey, E., Githinji, C., Rossor, E., &

Wickramasinghe, R. (2009). The mental and physical health difficulties of children

held within a British immigration detention center: A pilot study. Child Abuse &

- - - -Neglect: The lnternatronal]ournal, :Ir,-57T-5ff5.

--------------

http://dx.doi.org/10.1016/j.chiabu.2008.10.005 17 Ford, J., Grasso, D., Hawke, J., & Chapman, J. (2013). Poly-victimization among

juvenile justice-involved youths. Child Abuse and Neglect, 37, 788-800,

http://dx.doi.org/10.1016/j.chiabu.2013.01.005 1s Report of the Attorney General's National Task Force on Children Exposed to

Violence (2012). 19 Puzzancherra, C., & Hockenberry, S. (2016). Data reflect changing nature offacility

populations, characteristics, and practices. Pittsburgh, PA: National Center for

Juvenile Justice.

·

l-l-tt-p~H--WWW.f>-j-j.fip..gG-Vf-Gj-statb-h-/-s-nap&hGt-S-J-DataSna-pshG~~RF-C2 0·~1~4--,p~-~ - -- - -- - -

20 Bilchik; S., Umpierre, M., & Lenhoff, C. (2017). A roadmap for change: How juvenile

justice facilities can better serve youth with mental health issues. Focal Point, 31, 13-

16, www.pathwaysrtc.pdx.edu/publications

21 Fujio, C. (2011). Dual loyalties: The challenges ofproviding professional health care

to immigration detainees. Physicians for Human Rights,

www.physiciansforhumanrights.org 22 Holman, B., & Ziedenberg, J. (2006). The dangers ofdetention: The impact of incarcerating youth in detention and other secure facilities. Justice Policy Institute, www.justicepolicy.org

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helplessness, powerlessness, and loneliness.23 Furthermore, the harm caused by these practices can often be long-term and difficult to remediate. Their use falls well below professional standards for treating detained youth.
Use of Solitary Confinement and Seclusion in Youth:
77. Solitary confinement can lead to severe psychological and physical effects including difficulties with thinking, overt paranoia, panic attacks, illusions and hallucinations, self-injurious behavior, hopelessness, sleep disturbances, headaches, heart palpitations, and dizziness.24
78. Youth are frequently subjected to solitary confinement for one of three reasons: to punish them (disciplinary segregation); to manage them because they are considered dangerous (administrative segregation) or vulnerable to abuse (protective custody); or as a form of tr~atment (e.g., seclusion after a suicide attempt). Youth held in solitary confinement, especially when it is frequent or prolonged, needlessly suffer a great deal and can become depressed and suici.d.a1,....s.elf-=-inµlri.o.us,acutely- anxious._o.i:..._psy...chotic, ancL agg.r.essi:v.e..-Th.eyare at increased risk of having psychological problems if they have a history of trauma and abuse. Youth are also at increased risk simply because their bodies and brains are still developing physically and psychologically. When youth are placed in solitary confinement they are often restricted from getting adequate exercise and recreation, socialization, nutrition, and education.25
Interpersonal dynamics in working with youth in facilities such as hospitals. schools. and detention centers:
79. Youth who are hospitalized for psychiatric reasons (e.g., being a danger to themselves or others) will sometimes "act out" towards themselves or others while hospitalized. While these episodes may be a manifestation of their mental illness (e.g., their depression or psychosis), they may also occur in response to either inappropriate actions or inappropriate monitoring on the part of the staff. For example, staff that react in verbally or physically aggressive and punitive ways to youth who are getting out of control will often trigger further acting out because the youth feel angry and unsafe. Milieu meetings · (when staff and adolescents meet together) and team meetings (when the entire treatment team
23 Burrell, S. (2013). Trauma and the environment ofcare in juvenile institutions. Los Angeles, CA & Durham, NC: The National Center for Child Traumatic Stress, www.NCTSN.org 24 Fujio, C., & Corradini, M. (2013). Buried alive: Solitary confinement in 'the US detention system. Physicians for Human Rights, http://physiciansforhumanrights.org/solitary 2s Human Rights Watch/American Civil Liberties Union. (2012). Growing up locked down: Youth in solitary confinement in jails and prisons across the United States, https://www.aclu.org/files/assets/us1012webwcover.pdf
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meets) are held regularly to address these issues. Periodic staff trainings address the kinds of psychological problems youth experience and appropriate ways of treating them while hospitalized.
80. Youth who are hospitalized for medical reasons (e.g., complications of a chronic illness or surgery) often display behavioral and emotional difficulties due to such things as the degree of pain they are experiencing, the enforced dependency brought about by being hospitalized, anxieties about their illness and the treatment they will need to undergo, and being separated from their parents. However, hospitalized youth will also exhibit behavioral and emotional difficulties (e.g., refusing to comply with recommended treatments) when they feel misunderstood or mistreated by medical and nursing staff. For this reason, multidisciplinary team meetings, case conferences, an~ regular staff trainings are held to enable staff to discuss their frustrations and concerns regarding particular adolescent ·patients, to cpordinate patient c~re, to educat_e staff on the problems the youth are experiencing and more effective approaches in dealing with these problems, and to help the staff become aware of how their communication and -b.eha.vJ.or:.-.at times tri.g...ge.z:.s-----th.e.ir adol-esce.nt ._p.ati.en t.s.'.. noncompliance and acting out.
81. All teachers, but especially those working with youth with various developmental and psychological difficulties, need help in understanding the emotional and learning needs of their students, to develop appropriate ways of behavior management, and to understand how their own verbalizations and behaviors may at times unintentionally provoke their students to act out. Inservice training and consultation are provided to assist teachers with these
- - - - - - -issues,-. - - - - - - - -
82. The interpersonal dynamics that exist in hospitals and schools that treat and work with youth are also manifested in juvenile -detention centers. Just as medical personnel and teachers need education, training, and consultation to understand how their own reactions can provoke negative reactions in youth, so too do detention center staff that work with youth. Training juvenile detention center staff in conflict de-escalation strategies and trauma-informed care would help them to better understand youth who are traumatized, to better understand interpersonal situations and dynamics that can trigger traumatic reactions in
ou n o e rn mor - effec 1v wa~ to manage these situarums This. in turn
would enable staff to meet basic professional standards of care in ways that are not harmful to detainees.
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Trauma-Informed Treatment of Juveniles:
83. Trauma-informed approaches are the standard of care in all stages of the juvenile justice system.26 UACs, because of their substantial histories of trauma and loss, are members of a particularly at-risk population that is in need of specialized mental health services including comprehensive clinical assessments that consider both their early traumas as well as their current hardships and s t r e s s o r s . 27
84. Recent research suggests child abuse and neglect targets certain brain regions and pathways and can lead to brain abnormalities. Essentially, once a child has experienced maltreatment, the world is experienced with a different nervous system. 28 Psychological treatment must address the. chronic emotional dysregulation, ruptured attachments with caregive~s, and deficiencies .in personal identity and ·competen~e caused by the trauma of the abuse and neglect. Treatments and approaches that simply try to ·control behavior rather than working to restore the underlying brain abnormalities and treating the "trauma" will be ineffective-and Hkely harmfttJ.29
85. Treatment of detained youth is served when the social ecology in which these youth are embedded is addressed - i.e., when it is understood that the social environment and the interpersonal dynamics to which the youth is exposed can also contribute to the youth's problems and re-victimize them. More specifically, there needs to be an assessment of the extent to which a detention facility is capable of helping traumatized, emotionally-dysregulated youth to regulate their emotions and behaviors. 30 Often, there is a disconnect between these two 1eading to a punitiv.e, _mer.cive approach that jus.Ltreats the particu ar yQut - - - - - the problem and easily leads to punishment, seclusion, aggressive force, and over reliance on medication to control the youth's "bad behavior." This approach essentially ignores the fact that many, if not most, detained youth have been
26 The National Child Traumatic Stress Network. (2016). Essential elements of a trauma-informed juvenile justice system, www.NCTSN.org 27 Betancourt, T., Newnham, E., Birman, D., Lee, R., Ellis, H., & Layne, C. (2017). Comparing trauma exposure, mental health needs, and service utilization across clinical sam les ofrefug~e, immigrant, and U.~.:_orLgi12 children.Journal o Traumatic - - - - ~,t:f'.e--ss,-J-~4--1ij.,.-- - -- - - - - - - - - - - - - - - - - - - - - - - - -
28 Teicher, M. and Samson, J. (2016). Annual research review: Enduring
neurobiological effects of childhood abuse and neglect.journal ofChild Psychology and Psychiatry, 57, 241-266. 29 Van der Kolk, B. (2016). Commentary: The devastating effects of ignoring maltreatment in psychiatry- a commentary on Teicher and Samson 2016.Journal of Child Psychology and Psychiatry, 57, 267-270.
30 Saxe, G., Ellis, 8., & Kaplow, J. (2007). Collaborative treatment of traumatized
children and teens: The trauma systems therapy approach. New York: The Guilford Press.
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previously traumatized and/or will be traumatized while in detention and that their "bad behaviors" are often trauma based. That is, the "bad behaviors" are often traumatic reactions to being detained or to provocative peer and staff behavior.
86. The primary purpose of a trauma-informed juvenile detention system is to provide an environment in which youth feel safe, are assisted in coping when past traumatic experiences are triggered, and in which exposure to potentially traumatizing reminders or events is reduced. 3l This would necessitate: appropriate trauma-informed policies and procedures; appropriate methods of screening, assessing, and treating traumatized youth; culturally sensitive, trauma-informed programs that strengthen the resilience of youth; and culturally sensitive, trauma-informed staff education and training.32
87. There are three major implications of utilizing a trauma-informed approach. The first is that understanding behaviors as symptoms of trauma will lead to appropriate interventions that can reduce these symptoms and improve overall
- - ------funet-ion-ing. The -s-ee0-n-d----i-s- tha-t---t-hi-s- t:yp·e of-app-roaeh- will encourage a- moreglobal or systems perspective on traumatized youth such that other alternatives to detention can be considered which are less restrictive and allow for more comprehensive trauma treatment.33The third is that staff trained in traumainformed care rely less on the use of restraint and seclusion, are better able to manage their own emotions and behaviors, and find their work more rewarding.3 4
Failure to Utilize a Trauma-Informed Approach at SVJC:
88. My evaluation of Doe 1 and the records provided me, along with my review of the declarations of the other plaintiffs, suggests that the approach utilized with the detainees at SVJC was primarily based on behavioral control and punishment that was often of a humiliating and abusive nature. Although there is documentation that Doe 1 received some mental health treatment, there is no documentation or other indication of efforts to utilize a trauma-informed treatment approach, or to address staff behaviors that were abusive and
31 Buffington, K., Dierkhising, C2 & Marsh, S. 2010 . Ten thin9s ever)!_Juvenile court - - --=--=- -fudg-e-sh.-O-ul-d-kng.W-Q.bg-UUro-um-<1--Q-OO-deJ.i.nq.uenG)4--Re--ru>, N.\4-Na-ti-f>.na-l-Go-UH-Gi-1-o£- - - - - - --
Juvenile and Family Court Judges. 32 The National Child Traumatic Stress Network. (2016). Essential elements of a trauma-informed juvenile justice system, www.NCTSN.org 33 Kretschmar, J., Capizzi, A., & Shafer, E. (2017). A decade of diversion: Ohio's behavioral health juvenile justice initiative. Focal Point, 31, 22-24, www.pathwaysrtc.pdx.edu/publications 34 Marrow, M., Knudsen, K., Olafson, E., & Bucher, S. (2012). The value of implementing TARGET within a trauma-informed juvenile justice setting,Journal of Child &Adolescent Trauma, 5(3), 257-270.
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provocative in contributing to the detainees' behavior. In other words, the approach utilized at SVJC is based on the notion of needing to control and punish "bad behavior" on the part of youth vs. understanding that many, if not most, of these youth are demonstrating traumatic "fight or flight" reactions in response to being detained, as well as in response to being secluded, confined, mistreated, and misunderstood by staff.
89. When the behavior of youth in juvenile facilities is simply seen as "bad" behavior and not seen from a trauma-informed lens (in which the behaviors are viewed as originating in trauma and adversity) then the behavioral problems worsen, the chances for rehabilitation are reduced, and the likelihood of youth becoming further involved in the juvenile justice system is increased.35
90. . Simply put, it is not sufficient to offer general mental .s.ervices to youth who · are UACs and/or are involved in the juvenile justice system; given the high likelihood they have been previously traumatized. When youth have been exposed to violence, abuse, and neglect growing up they may respond by becomi·ng-·defiant, app-earing-indifferent;-or b-ecurntn-g-a:ggres·sive-as·-a- means orprotecting themselves. Their attempts to protect themselves from further victimization and helplessness when in detention are often motivated by a desire to feel safe and in control rather than by the callous indifference and antisocial qualities often attributed to them as "delinquents."36 When this difference is not understood and the role played by traumatic stress is overlooked (as is often the case in detention facilities), then harsh, punitive, and harmful approaches such as seclusion, restraint, and staff aggression become the default methods utilized.
Opinions:
91. Plaintiff John Doe 1 experienced abuse and neglect from his parents, as well as teasing from his peers, when growing up in Mexico. These traumatic experiences were replicated when he was detained at SVJC. He experienced teasing, humiliation, physical assault, confinement, chair restriction for long periods of time, and was handcuffed and shackled many times. Experiences like these have instilled a legacy of shame, resentment, fear, and distrust in Doe 1 that he will likely n~ver ful!Y._ recover frq__m ~ithout ro er trauma=-~in=i~o~r-m=~e~d~ - - - - -
- - - -~ .....atment.o_v..e.i.:..a-consi.dei:able-pe-i:i.od----of-ti.m.g.i.r-i-a...safg.sgtt-i-T-1-g,- - - -- - - - - - - - - - -
35 Kinscherff, R., & Keator, K. (2017). Adversity, trauma, and behavioral health needs among justice involved youth. Focal Point, 31, 17-19, www.pathwaysrtc.pdx.edu/publications 36 Ko, S., Ford, J., Kassam-Adams, N., Berkowitz, S., Wilson, C., & Wong, M. (2008). Creating trauma-informed systems: Child welfare, education, first responders, juvenile justice. Professional Psychology: Research and Practice, 39 (4), 396-404.
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92. The mental health care provided to Doe 1 at SVJC was deficient. The main approach was to emphasize the consequences of his continuing to engage in aggressive behavior as a way to deter him. There was no attempt to understand the underlying traumas that were being triggered in Doe 1, and there was very little effort to help him learn more adaptive self-soothing and self-regulating strategies.

93. Although Doe 1 had a history of being depressed as a child in Mexico,

nevertheless, his feelings of being abused and trapped at SVJC greatly

exacerbated his depression and at times led to self-injurious and suicidal

behavior. At other times this led to aggressive behavior. However, rather than

viewing these behaviors as "survival-in-the-moment" behaviors in which Doe 1

was essentially coping the best that he could in a prison-like environment, these

behaviors W€:re ·viewed as "bad" behaviors in need of punishment through

confinement and loss of behavioral leve1s.

·

94. The psychological evaluation conducted by Gustavo Rife, Psy.D appears to have been heavily relied upon to direct Doe l's treatment. Dr. Rife largely viewed Doe 1 as a depressed, conduct-disordered adolescent in need of confrontation and containment for his antisocial and delinquent tendencies. There was no attempt to understand these behaviors from a complex trauma framework in which his aggression could be seen as reactive to his environment and those around him as a way to protect himself from being victimized. As a result, Dr. Rife's report served to further justify the behavioral control and confrontation approach utilized by both mental health and other staff, which exacerbated Doe l's preexisting trauma.

95. A review of the Declaration of John Doe 2 suggests that he may have been overmedicated as a means of behavioral control and that he suffered from racist and discriminatory attitudes and behaviors of staff. When the environment in which youth reside does not treat them equally and justly, it is not unusual to expect that they would feel humiliated and would talk back and/or become aggressive as a way to survive and try to maintain their dignity. Doe 2's aggressive behaviors were punished with prolonged confinements, unnecessary physical force, and being strapped to a chair with a bag over his head - all of which represent cruel, traumatizing, and degrading forms of punishment. Such
- - - - - -p.u..rnsh.m.entrwhi-cll-fal.Is-b.e.loW-aJ'.l¥--Pr4f.ess.i.o.nal-s.tanda.rdS--Of-Wh.i.ch-I-.am-awa.re.~ - - -- is likely to result in compounding prior trauma and causing longstanding harm.

96. A review of the Declaration of John Doe 3 suggests that he was a victim of excessive force on multiple occasions; suffered humiliation and degradation as a result of racial and derogatory staff remarks, lack of privacy in his room, and being stripped of all his clothes except for his underwear; and was unreasonably restrained, handcuffed and/or confined, for minor infractions. Doe 3's history of fleeing gang violence and death threats in Honduras, as well as his dangerous journey to the U.S. suggests a youth with considerable past trauma who was

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likely retraumatized while in detention due to the excessive punishment and degrading experiences he suffered there. A youth such as Doe 3 is in need of an environment that is safe and responsive to his needs vs. a detention facility such as SVJC that appears to discriminate against immigrant youth, that enforces rules inconsistently and arbitrarily, and that utilizes harsh and cruel punishment as a means of controlling youth who act out. This form of control leads to shame and helpless rage on the part of the youth (who feel misunderstood and treated unfairly) and inadvertently leads these youth to continue to act out further through self-destructive and/or outwardly aggressive behavior.
97. A review of the Declaration of J.A. suggests that he was subjec~ to extremely and unreasonably harsh punishment including: being put in solitary confinement for long periods· of time; and left naked and strapped to a chair for more than two days. These experiences were likely highly traumatizing t_o him.
98. A review of the Declaration of R.B. suggests that he was highly traumatized while at SVJC and may have had a psychotic episode when in solitary confinement H-e-be-gan-tallfi-ng-t-e--h-imself,hitting-his head-against the wal-lTand- felt he was going crazy. His experiences at SVJC appear to have been highly disturbing to him and to have had an enduring impact - he said he had lost his optimism for life and that both he and his mom noticed that he had changed and was not the same person anymore.
99. A review of the Declaration of D.M. suggests that he did not receive appropriate mental health care for his psychiatric conditions. He not only was not given his medications for six weeks after being transferred to SVJC, but was pu ma res rame_ cnait on several .occasi.ons when_li:e was m "cns1s" and wEnting to hurt himself. While in the restraint chair, a bag with holes was put over his head causing D.M. to fear that he would suffocate and die. This was undoubtedly highly frightening and traumatizing for D.M. It would not be surprising if he developed PTSD symptoms as a result of these experiences.
100. The predominant approach utilized at SVJC is that of punishment and behavioral control through such methods as solitary confinement, physical restraint, strapping to a restraint chair, and loss of behavioral levels. These approaches are not only unsuccessful, but are extremely detrimental to detained,
--tr:aumatize.cLy:ou.th..-=--.esp.ecially-tO.::UACs..A.t..times_tlie:.us.e__ofi_olitacy_.conJioe mew~t - - - -and restraint chairs re.ached the level of what could be considered torture and other cruel, inhuman or degrading treatment or punishment. The use of these kinds of methods leads to a vicious cycle in which youth, who are already distrustful and traumatized, become further distrustful and traumatized when staff punish them. This leads them to act out even more and then justifies to the staff the need for further efforts to control and punish the youth.
101. From my evaluation of Doe 1 and the materials I reviewed, it is my opinion that SVJC facility staff do not understand the manifestations of trauma and stress
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in youth and are not well trained in dealing with highly traumatized children and youth. To avoid harming youth, SVJC needs to implement trauma-focused approaches that will help st~ff to understand how easily the past experiences of abuse and trauma in some youth, especially UACs, can be triggered, especially when staff are abusive or 1 insensitive. Implementing these appro~ches will require appropriate traumr1-informed policies and procedures, appropriate methods of screening, assessing, and treating traumatized youth, :culturally sensitive and trauma-inform~d programs that strengthen the resilience of youth, and culturally sensitive, traumI a-inf.ormed staff education and tr.aining.

02. While all detainees (adults as well as children) should be treated with dignity I and respect, this is especial~y critical for children and youth becau~e of their

inherent vulnerabilities. Approaches tbat violate the rights of .children and

youth, that. do not consider their "best interests", and that are pu:nitive are

detrimental to them and hav~ no place in the juvenile justice system. Irreparable

harm can result from punitive, physically abusive approaches because of the

residual psychological scars prought about by youth no longer feeling safe in the

world and no longer being able to trust others to treat them with dignity and

- respect-:-Wnife the extent of ~amage caused by these approaches canr!ot always

be determined in the momeqt, it is likely that many of these detained youth will

never fully recover from tiheir traumatic experiences prior to a~d during

detention, particularly if effebtive trauma-informed treatment is not available to

them.

j

1 3. SVJC staff frequently violated the rights of youth in their custody aJid became

outright abusive as a way t0 maintain control. The punitive methods used by

SVJC staff often reached tHe threshold of torture and cruel, inhuman, and

--degraaing punishment and i <e y substantial, if not irreparaole:-harm to

these youth.

I

!

l 4. Detention, in and of itself, is traumatizing to youth, but even more so when

their physical and emotional needs are not met, when they are subjected to

abuse, and when their envirpnment does not keep them safe. It is my opinion

that the mental health care and the overall care provided at SVJC are deficient

and fall far short of the stand~rds of care expected in the juvenile justice system,

and that this represents deliberate indifference .to the health and mental health needs of the Plaintiffs, as well as the other detainees at SVJC.

. 1{.-f,, ,.. , cerely,

cf-tW&e./

! iGre

Lewis, Psy.D.

27 Case 5:17-cv-00097-EKD-JCH Document 34-7 Filed 02/28/18 Page 28 of 30 Pageid#: 298

Appendix A:

l. Declaration of Plaintiff John Doe 1, dated January 17, 2018

2. Declaration of Plaintiff John Doe 2, dated January OS, 2018

3. Declaration of Plaintiff John Doe 3, dated January OS, 2018

4. Declaration of J.A., dated January 08, 2018

5. Declaration of R.B., dated January 08, 2018

6. Declaration of D.M., dated January 02, 2018

.

.

· 7. Forensic Psychological Assessment of Plaintiff John Doe 1 by Gregory N.

Lewis, Psy.D., dated October 10, 2017

8. John Doe v. Shenandoah Valley Juvenile Center Commission Class Action Complaint, filed October 4, 2017

9. John Doe v. Shenandoah Valley Juvenile Center Commission First Amended Class Action Complaint, filed January 31, 2018

10. Office of Refugee Resettlement Records for Plaintiff John Doe 1: • Case Management and Progress Notes
- - -.- - finical.Addendum 5y Evenor Aleman, ~~d.S., atea May T,'2-Ur • Medical Evaluations by Timothy J. Kane, M.D. • Psychological Evaluation by Angela Medellin, M.Ed., LPC and Anne M. Esquivel, Ph.D., not dated • Psychological Evaluation by Gustavo E. Rife, Psy.D., dated May 4, 2016

28 Case 5:17-cv-00097-EKD-JCH Document 34-7 Filed 02/28/18 Page 29 of 30 Pageid#: 299

Appendix B:

1. KimberlyDoe, eta!. v. United States, 1:11-cv-907-LY(WD. Tex. - Austin Division)

2. D.B. , as next friend of R.M.B, a minor, v. Cardall et al., 1:15-cv-00745-JCC-JFA (ED. VA. - Alexandria Division): Brief of Amici Cmiae Linda Brandmiller, Holly Cooper, Greg Lewis, Carter White and Lorilei Williams in support of appellant' s petition for panel rehearing or rehearing en bane

3. Abraxas Litigation: L.M VF., et al. v. United States, 5:08-CA-124-XR (WD. Tex. - San Antonio Division)

4. Nrxon Litigation: Gaitan-Fabian: et a( V. Dunn, et al., 5:08-CV-26.9-XR (Wb.

Tex." -·san Antonio Division)

·

29
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EXHIBIT 8
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ANDREA WEISMAN, Ph.D. Juvenile and Correctional Mental Health Consultant Phone: (202} 531-0488 Email: aweisman@aol.com
Date of Report: 2/27/18 To: Theodore A. Howard, Esq.
Wiley Rein, LLP 1776 K Street, NW Washington, DC 20006
MY INVOLVEMENT IN THIS CASE
1. I was retained by Theodore A. Howard, Esq. with Wiley Rein, LLP to provide an overview of established national standards regarding the essential ingredients in an adequately functioning juvenile correctional facility and to comment on current practices at the Shenandoah Valley Juvenile Center as revealed by the evidence made available thus far.
This declaration is submitted in support of the motion for a preliminary injunction submitted by the plaintiffs. If called upon to testify I would do so competently as follows.
MY QUALIFICATIONS
2. I am a licensed clinical psychologist in Washington, D.C. My experience as a clinical psychologist spans nearly 30 years. I have extensive experience evaluating juveniles who have been subjected to sh·ingent conditions of confinement, a very large percentage of whom have experienced severe trauma or are diagnosed with mental or intellectual disabilities. I have evaluated several hundred juveniles during my career.
3. I have worked with juveniles in correctional settings for over 25 years. Most recently I served as the Chief of Health Services for the Department of Youth Rehabilitation Services (DYRS) in Washington. DC from 2007 - 2011. While there, I was responsible for the oversight of all medical and behavioral health programs and services for youth detained in or committed to DYRS facilities or in the community. DYRS had been under court order (Jerry M.) since 1987, in large part due to the inadequacy of medical and mental health services. During my tenure, both medical and behavioral health services came into substantial compliance with
1
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the consent decree. In addition, I oversaw the development of specialized programs, including programs introducing trauma informed care.
4. From December, 2004 - April, 2007, I was Director of the Division of Behavioral Health Services for the Maryland Department of Juvenile Services in Baltimore, Maryland. I was responsible for the development, implementation and oversight of a continuum of behavioral health services (i.e., mental health and substance abuse) for youth in the 15 Department of Juvenile Services (DJS) facilities, encompassing both detention and commitment. DJS was operating under agreements with the U.S. Department of Justice under the Civil Rights of Institutionalized Persons Act (CRIPA) in three facilities (Baltimore City Juvenile Justice Center, Cheltenham Youth Facility and Charles H. Hickey School). During my tenure, we came into partial or substantial compliance on most CRlPA-related indicators.
5. From December, J995 -July, 2000, I was the Director of Mental Health Services at the Central Detention Facility (DC Jail) during the time it was under federal receivership (Campbell v. McGruder). Under my leadership, the D.C. Jail developed protocols, procedures and policies that conformed with, and in many instances went beyond, the National Commission on Correctional Health Care standards.
6. I have been appointed to serve as the mental health expert for monitors of consent decrees involving reforms in the juvenile justice systems in Pennsylvania, Illinois, Kentucky, California, Ohio, Maine and Georgia. In my role in Ohio, I aided in the restructuring of the mental health system and revamping of the disciplinary process in the State's three secure juvenile facilities. Ohio's use of isolation and programmatic restraint was a central part of the litigation. See SH v Reed 2:04-cv-1206 (S.D. Ohio). In Georgia I assisted the US Department of Justice (DOJ) in monitoring a memorandum of understanding DOJ reached with the State. My focus was on the conditions of confinement juveniles were subjected to and the adequacy of mental health services provided to the juveniles.
2
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7. I have written and spoken extensively on the issues of isolation and mental health services for juveniles involved with the justice system. In 2007, I testified before Congress on mental health issues among youth in the juvenile justice system.
8. I obtained my Doctor of Philosophy (Ph.D .), in clinical psychology from Clark University in 1988. I am a licensed clinical psychologist in Washington D.C.
9. I have included a copy of my curriculum vita as Exhibit A.
MATERIALS REVIEWED I reviewed the declarations of six immigrant youth who were or are at the Shenandoah Valley Juvenile Center Commission: John Doe 1, John Doe 2, John Doe 3, D.M., J.A. and R.B.
I reviewed Dr. Greg Lewis' declaration.
I also relied on my extensive knowledge of best practices in the field of juvenile justice. In addition, I relied on the national standards promulgated by the National Commission on Correctional Health Care, the Juvenile Detention Alternatives Initiative and the American Correctional Association. Finally, as will be evident throughout this declaration, I referenced professional literature on adolescent development/brain development, prevalence and presentation of youth in the juvenile justice system with complex trauma, consequences of solitary confinement and the effectiveness of incentivized behavior management programs.
THE BACKGROUNDS OF THE IMMIGRANT YOUTH Immigrant youth at Shenandoah Valley Juvenile Center (SVJC} were picked up because they crossed the border while fleeing from trauma and abuse they were suffering at home and in their communities. As Dr. Lewis notes in his report:
Children who come to the United States unaccompanied from other countries (unaccompanied alien child - "UAC") come for a variety of reasons including: fleeing
3
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parental abuse and neglect; fleeing violence and unsafe conditions in their home country; fleeing persecution; to join parents or other relatives already living in the U.S.; and a desire for a better life in which they will have opportunities to work and go to school. Some children are also involuntarily trafficked into the U.S. as part of the worldwide labor and sex trafficking industry.1 UAC's are vulnerable before, during, and after their journey to the U.S. because they do not have adult protection and are unable to properly care for themselves. 2
Most UACs have experienced abuse, neglect, and trauma within their home countries, but are then faced with the additional stresses of migrating to the U.S. often traveling through unsafe and dangerous countries over a period of weeks and months. During their journey - which may take them through multiple countries - UACs may undergo highly traumatic experiences including: going days without food, water, or shelter; being exposed to unsanitary conditions; getting sick or injured; being robbed or kidnapped; being beaten; being raped; watching others being tortured or murdered; having to survive in the jungle; and having to survive crossing through deserts and rivers. Once they arrive in the U.S., UACs may be further traumatized if apprehended by Immigration and Customs Enforcement and detained. In addition, they have to adjust to living in a country in which they often do not speak the language and are unfamiliar with the customs. All of these experiences contribute to UACs who are likely to have suffered extensive and multiple instances of abuse and trauma, often referred to as complex trauma, prior to any trauma they may experience if detained.
These already significantly traumatized youth are then detained in the SVJC and subjected to additional traumatization as will be discussed in this report.
1 Levinson, A. (2011). Unaccompanied immigrant children: A growing phenomenon with few easy solutions. Migration Policy Institute, available at https://www.migrationpolicy.org/print/4328 2 Young, W., & McKenna, M. (2010). The measure of a society: The treatment of unaccompanied refugee and immigrant children in the United States. Harvard Civil Rights-Civil Liberties Law Review, 45, 247-260, available at http://ha rva rdcrcl .org/wp-content/uploads/2009/06/24 7-260. pdf
4
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THE YOUTHS' DECLARATIONS
All six youth spoke of spending repeated, extended periods of time in solitary confinement, often for minor infractions. While in solitary, the youth's clothes, personal items, mattress and bedding are typically removed from the cell. They are left in the cell in only their boxer shorts. They are afforded one book and a bible.

All youth also spoke of having been excessively restrained by the use of a restraint chair to which they are physically attached for hours (shifts), sometimes days at a time. Several youths told of having been placed in the restraint chair as an intervention to address their suicidality.

The youth also detailed the physical and verbal abuse they experienced at the hands of the staff members. These experiences will be discussed in detail in this report.

MY OPINION
I. SOLITARY CONFINEMENT: PRACTICES AT THE SHENANDOAH VALLEY JUVENILE CENTER

1.

It is my opinion, within a reasonable degree of certainty in the field of clinical

psychology, that all juveniles subjected to the SVJC policy and practice of solitary

confinement as described above are at a substantial risk of serious harm to their social,

psychological, and emotional development.

2.

Solitary confinement can be dangerous for anyone. Severely limiting an individual's

environmental and social stimulation has a profoundly deleterious effect on mental

functioning.

3.

Research over the last half-century has demonstrated that solitary confinement can

worsen mental illness and produce symptoms even in prisoners who start out

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psychologically robust. Individuals who are deprived of meaningful external stimuli are soon unable to maintain an adequate state of alertness and attention to the environment. Even a short time in solitary confinement will predictably shift the encephalogram (EEG) pattern towards an abnormal pattern characteristic of stupor or delirium.3

4.

Due to their developmental vulnerability, solitary confinement causes juveniles much

greater harm than does such confinement of adults, and the risks of solitary

confinement to juveniles are alarming.

5.

Because juveniles are still developing socially and emotionally and psychologically, they

are especially susceptible to psychological and neurological harms when they are

deprived of environmental and social stimulation. For a juvenile, simply being placed in

isolation -the utter helplessness of it - is enormously stressful. This surge of cortisol -

of fear, anxiety, and agitation - will be especially severe in juveniles. The

consequences, including actual changes in brain structure, have been demonstrated to

persist into adulthood.4

6.

Our knowledge of the harms caused to juveniles in solitary confinement is based on

extrapolation from the clinical interviews of adults and the expanding knowledge of

adolescent development. It is widely accepted that, in the adolescent brain, the

connections between the frontal lobe and the mid-brain are still developing. 5 The

frontal lobe sits just behind the forehead. As it develops, teenagers can reason better,

3 These harms are discussed in further detail in Psychiatric Effects of Solitary Confinement, 22 Wash. U. Journal of Law & Policy 325 (2006) an article written by Stuart Grassian, M.D. one of the leading experts on the harmful effects of solitary confinement. 4 Tottenham, N, Galvan, A. (2016). Stress and the adolescent brain; Amygdala-prefrontal cortex circuitry and ventral striatum as developmental targets. Neuroscience and Behavioral Reviews, 70, 217-227. 5 See, e.g.: Casey, B.J., Jones, R.M., and Hare, T.A., (2008) The Adolescent Brain, Ann. N.Y. Acad. Sci. 1124: 111-126; Ernst, M., Mueller, S.C. (2008) The adolescent brain: Insight from functional neuroimaging research. Dev. Neurobiol 68(6) 729-743.
6
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develop more control over impulses and make better judgments. 6 This part of the brain continues to develop until an individual's mid-twenties.

7.

Exposure to chronic, prolonged traumatic or stressful experiences, such as solitary

confinement, has the potential to permanently alter an adolescent's brain which may

cause longer-term problems in the following domains:

a. Attachment: Trouble with relationships, boundaries, empathy, and social isolation;

b. Emotional (Dis)Regulation: Difficulty identifying or labeling feelings and communicating needs;

c. Cognitive Ability: Problems with focus, learning, processing new information, language development, planning and orientation to time and space;

d. Behavioral (Dis)Control: Difficulty controlling impulses, oppositional behavior, aggression, disrupted sleep and eating patterns, trauma re-enactment. 7

8.

The American Academy of Child and Adolescent Psychiatry, the American Medical

Association, the World Health Organization and the United Nations have all concluded

that, due to their developmental vulnerability, adolescents are in particular danger of

adverse reactions to prolonged stays in isolation.

6Noted developmental psychologist Lawrence Steinberg, details adolescents' growing capacity for executive functioning as their brains mature. Age of Opportunity: Lessons from the New Science of Adolescents. Houghton, Miffin, Harcourt, 2014).
7 How Trauma Affects Child Brain Deve lopment - N.C. Divi sion of Social Services . Vo l. 17, No.2, 201 2; See, e.g.: Tottenham, N ., Galvan, A. (2016) Stress and th e adolescent brain. Amygdala prefrontal co1tex circuitry and ventral striatum as deve lopmental targets. Neuroscience and Bio-behavioral Reviews 70:217-22 7.

7
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9.

Juveniles with intellectual and mental health disabilities are especially vulnerable to a

substantial risk of serious harm from solitary confinement because they are more likely

than persons in the general population to have diagnosed mental illnesses, learning

disabilities, and a high incidence of trauma. Research shows that over 60% of the youth

in correctional settings have an underlying major mental illness. These include

Posttraumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, and various

forms of Bi-Polar mood disorders. Youth in solitary confinement have an even higher

incidence of mental disorders than those in the general population.

10. Juveniles experience time differently- a day for a child feels longer than a day to an
adult. 8 Whittmann et.al. conducted research investigating this perception difference, examining 499 subjects aged 14 to 94 years old. Their results generally support the widespread perception that the process of experiencing passage of time speeds up with age. In addition, juveniles have a greater need for social stimulation.

11. Across all developmental spheres, children are different from adults, making their time
spent in isolation even more difficult and the developmental, psychological, and physical damage more comprehensive and lasting. 9

12. The incidence of trauma among incarcerated youth is also significant, with some studies reporting the number to be as high as 50- 90%. 10 There is a clear medical consensus that, for those juveniles with mental illness, the risk of harm posed by solitary confinement is especially great. People with mental illnesses already have cognitive defects in their brain structure or biochemistry. They already have weakened
8 Age effects in perception of time. Psychol Rep. 2005 Dec;97(3):921-35.Wittmann M, Lelmhoff S.
9 See e.g. Bremner,J. (2006) Traumatic Stress: effects on the brain. Dialogues in Clinical Neuroscience; Vol. 8, No. 4, 445-461. 10 Ford, J., et.al, Trauma Among Youth in the Juvenil e Justice System: Critical Issues and New Directions, National Center for Mental Health and Juveni le Justice, 2007.
8

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defense mechanisms, are at a higher risk for mental health abnormality and are more susceptible to significant trauma from lack of environmental and social stimuli. Therefore, the trauma that can occur in juveniles with pre-existing mental illnesses will be more significant than the already significant and long-lasting effects on juveniles without a mental health condition when exposed to isolation.

13. Medical professionals, including organizations like the American Medical Association, agree that juveniles with mental illnesses should not be placed in solitary confinement for longer than one hour without a comprehensive evaluation from a physician. Solitary confinement should never be used to punish people with mental illnesses.

14. Youth exposed to traumatic or stressful events exhibit a wide range of symptoms. They present with not just internalizing problems, such as depression or anxiety, but also externalizing problems like aggression, conduct problems, and oppositional or defiant behavior. These are the very behaviors that result in institutional infractions that lead to placements in solitary confinement. This in turn causes more trauma, and can lead to more negative behavior, resulting in infractions, prolonging a youth's time spent in solitary.

I.

SHENANDOAH VALLEY JUVENILE CENTER'S HOSTILE ENVIRONMENT

In addition to the trauma youth experience consequent to their placement in solitary confinement, the hostile environment created by the correctional officers is also traumatizing. National standards do not allow officers to "slam" youth against the wall, excessively shackle and restrain youth and use derogatory language in describing immigrant youth.

Physical Abuse
All youth reported that they had been beaten up by staff members. One youth spoke of having been placed naked in a restraint chair fully shackled and then beaten by staff members; the youth reports he was left naked in the restraint chair for two and a half days. All youth spoke of

9
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being slammed against the wall or floor in staff members' attempts to "de-escalate" them and the situation. Clearly, these abusive actions further traumatized youth and were anything but calming interventions.
Verbal Abuse
The youth also spoke of the verbal harassment visited upon immigrant youth with remarks such as: "Hispanics, they don't know nothing, they just come to our country." The same youth said that staff "tell the kids they're stupid and make fun of them for not understanding English." The youth that reported this understood English enough to understand what the officers were saying.
Another youth spoke of being taunted by officers on a daily basis: "While I was at Shenandoah, staff members would make fun of me on a daily basis. They would call me names such as "pendejo" and "onion head," and do things like drop my clean towel on the dirty floor in front of me."
These overly punitive and degrading practices at SVJC lead to a culture within which youth cannot possibly be rehabilitated which is the mandate of juvenile correctional facilities. Shenandoah's strategies for managing youth's behaviors is entirely counter-productive. For over 70 years, behavioral psychological research has demonstrated that rewarding desired behavior is much more effective than punishing undesirable behavior. With a reward-centered paradigm, youth learn what TO DO, not just what NOT TO DO. As such, rewarded behaviors have a much greater likelihood of being repeated as opposed to behaviors which are not reinforced, which have a tendency to extinguish.
Research has shown that effective behavior management programs in juvenile justice systems are based on providing incentives for youths' production of desired behavior. Typically, the youth participates in identifying what rewards would be meaningful (e.g., extra phone call, later bed time, etc.). While the rewards jump-start the change process, as youths' behavior changes, so too does the reaction of others engaging with the youth. Over time, improved interactions
10
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with others becomes its own reward. Through this process, youth come to incorporate the behavioral changes into their repertoire. Encouraging the development of more acceptable behaviors while detained has the greatest likelihood of their repetition in the community.

This is consistent with the Juvenile Detention Altern,atives Initiative (JDAI) standard that requires "[t]he facility [to have] a system of positive behavior interventions and supports that provides a set of systemic and individualized strategies for achieving social and learning outcomes for youth while preventing problem behavior.1111

II.

ESSENTIAL COMPONENTS OF A MENTAL HEALTH PROGRAM IN JUVENILE

FACILITIES

National standards promulgated by the National Commission on Correctional Health Care (NCCHC), the American Correctional Association (ACA) and the Juvenile Detention Alternative
Initiative (JDAI) articulate the essential components of an adequately functioning mental health
program in juvenile correctional facilities. As a general matter, there should be a sufficient number of mental health staff to perform the following functions:

la. Intake Screening and Assessment - upon admission, all youth should receive a screening to determine if they are "eligible11 for admission (e.g., they are not acutely psychotic or suffering a medical condition that cannot be treated at the facility).

lb. Admission screening should also determine if the youth is at risk of self-harm or has any other mental health condition requiring immediate intervention. When the screening detects possible mental health or substance use conditions, detainees should be referred for further evaluation, assessment and treatment by mental health professionals.12

11 JDAI standard at 01 - Positive Behavior intervention and Supports 12 E.g., NCCHC standard Y-E-05 Mental Health Screening and Evaluation.
11
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2a. Suicide Prevention -All juvenile justice facilities should have and follow well-articulated policies and procedures for the management of youth who express suicidality or intent to harm themselves or engage in self-harming behaviors following admission. Typically, these procedures include placement of the youth on a suicide watch with either close (every 15 minutes) or constant observation.
In most facilities, anyone can place a youth on a suicide watch but only a mental health professional can lower or remove a youth from watch status. 13
Several youths reported being placed in a restraint chair when they expressed intent on harming or killing themselves. Placing a youth in a restraint chair because he/she expresses suicidality is not consistent with national standards. 3. Mental Health Services Youth are entitled to adequate medical and mental health care, to protection from harm including staff abuse, and to a facility in which the vulnerable can be protected: a safe, sanitary and humane environment. In order to provide this environment, certain measures should be implemented:
a. All detainees should be screened upon admission by trained personnel for mental health and substance abuse problems.
b. Treatment should be provided in an atmosphere of empathy and respect for the dignity of the person. It should be strength-based and recovery-oriented. A reasonable array of mental health interventions should be available (e.g., individual and group therapies, psychoeducational programs).
c. Youth should have unimpeded access to care. This is accomplished by having a "kite" or sick call system where in every living unit has a sick call box into which youth can place their request to be seen by a mental health provider.
d. Mental health providers make daily rounds ensuring they check in with all youth.
13 E.g., NCCHC standard Y-G-05 Suicide Prevention Program
12
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e. Mental health providers meet regularly with each other and with correctional staff to ensure everyone involved has knowledge of youths' needs and to coordinate intervention strategies going forward.
f. Treatment plans are developed for each youth (with or without a mental health disorder) which articulate what the youth and staff will work on/toward during the youth's residency. This is essential as it serves as the contract between the youth and staff.

111.

Staff Training (See JDAI Training Standards at C)

At a minimum correctional staff should receive pre-deployment training on:

• Adolescent development/brain development.

• Signs and symptoms of youth with mental health disorder and the prevalence of these

among incarcerated youth.

• Suicide prevention policy and protocols and their attendant responsibilities.

• The incidence of trauma among incarcerated youth and what staff can do minimize

further traumatization.

• De-escalation strategies. Programs such as Safe Crisis Management have been shown to

have great efficacy in calming youth and reducing confrontations between staff and

youth. Their literature states: "Safe Crisis Management® 'SCM' is a comprehensive

training program focused on preventing and managing crisis events and improving

safety in agencies. Safe Crisis Management has a trauma-sensitive approach with

emphasis on building positive relationships with individuals. Our program is designed to

assist staff with responding to the needs of all individuals and particularly with the needs of the most challenging."1415

IV.

Grievance System

14 See: JKM Training, Inc. Safe Crisis Management 15 E.g., NCCHC Y-C-04 Training for Child Care Workers
13
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National standards require an accessible and meaningful grievance process. For example, JDAI standard (at Rfl) reads, "The facility provides more than one way to report abuse, neglect, harassment, and retaliation by other youth or staff within the facility." Further, the standard (at Rf4) requires that, "Staff provide all youth with access to a grievance procedure that provides an opportunity for a fair consideration and resolution of complaints about any aspect of the facility, including medical and mental health services."
A fair and equitable grievance system is essential in any correctional facility so that those incarcerated within them feel they have recourse in the event they feel they are being mistreated. The declarations of the youth made it clear they felt abused and demeaned but that they did not have any meaningful recourse to address their complaints. One youth said, "It's easy for the guards to write incident reports - you did this, you did that, you disrespected me - but they never hear the kid's side of the story. My voice was never heard." Fl NAL CONCLUSIONS The SVJC is riddled with problems. The concerns of the immigrant children must be taken seriously. These already traumatized youth report being abused both physically and verbally while at SVJC. The practices employed by the SVJC create a hostile and punitive environment that runs counter to all national standards. While implementation of an adequate mental health program may take time, these practices must cease Immediately.
It is imperative that the leadership at Shenandoah Valley Juvenile Center familiarize themselves with national standards and develop a plan for their implementation to avoid continuing practices that create lasting harm for vulnerable youth.
I submit this report on 2/27/2018.
Andrea Weisman, Ph.D.
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EXHIBIT A
ANDREA WEISMAN Juvenile and Correctional Mental Health Consultant
DOJ Certified PREA Auditor Phone: (202) 531-0488 Email: aweisman@aol.com
Forensic Consultation June, 2017 - present Corrections Information Council Washington, DC
CIC provides oversite of DC imnates in the FBOP. I am their mental health consultant. I have been involved in their ass ssment of mental health services for inmates at the ADX Florence FaciUty.
August, 2016 - present Equal Justice Initiative Montgomery, AL This is a Miller re-sentencing case. A JLWOP case concen1ing a won1an sentenced when she was 14. May, 2015 - June, 2016 Office of the State Public Defender Kalispell, MT
I was the mental health expert evaluating a young man charged with mitigated deliberate homicide. March, 2015 - present Lee Hunt Law Office Santa Fe, NM
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I am 1.he 1nental health expert in a wrongful death sujt of a youth in the Santa Fe County Juvenile Detention Faci lity.
August, 2017 - September, 2017 Center for Children's Law and Policy Washington, DC
I served on a team of experts assessing four juvenile detention centers in Kentucky.
August, 2017 - September, 2017 Center for Children's Law and Policy Washington, De
I was the mental health expert on a team of experts a sessing the Long Creek Juvenile Detention Center in Portland Maine.
September, 2015 - October, 2016 Law Offices of Victor Fleitis Tupelo, MS
I was the mental health expert in a case involving the intrusive and unnecessary strip search of a 12 year old girl.
May, 2014 - June, 2016 U.S. Department of Justice v. Glen Mills School
I was the mental health expert for DOJ investigating services for youth with mental health disabilities.
July, 2014 - June, 2015 Center for Children's Law and Policy Washington, DC
2
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I served as the mental health expert for the enter for Chi ldren's Law and Policy as part of a team brought in to assess the Rhode Island Training School's compliance with Juvenile Detention
Alternative Initiative + standards.
July, 2014 Georgetown Criminal Justice Law Clinic Washington, DC
I conducted a competency assessment of a 54 year o ld man with schizophrenia and MR charged with crack distribution.
November, 2011- December, 2015 S.H. v. Reed Ohio Department of Youth Services Columbus, Ohio
I served as the mental health expert for the federally appointed
Monitor in the class action lawsuit regarding conditions of confinement in three secure juvenile justice facilities in Ohio. Their use of isolation and programmatic restraint had been a central component of the litigation.
February, 2012 - August, 2013 'I'roy. D. v. Mickens, et. al. Juvenile Law Center Philadelphia, PA
I served as the expert mental health consultant regarding the use of extensive isolation and the development of an adequate mental health program.
April, 2013 Center for Children's Law and Policy Washington, DC
3
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I was the mental health expert on a team brought in to review the Cook County Temporary Juvenile Detention Facility in Chicago, Illinois on behalf the Annie . Casey Foundation's Juvenile Detention Alternatives Initiative.
May, 2013 - August, 2013 State Office of the Public Defender Cheyenne, WY
I was the expert mental health consultant regarding the resentencing of a juvenile originally sentenced to life without parole.
December, 2003 - September, 2004 Receiver, Riverview Psychiatric Center/Augusta Mental Health Institute Augusta, Majne
I served as an expert forensic consultant, working for the Receiver of Riverview Psychiatric Center (RPC), appointed by the federal court, regarding the structure and design of menta1 health services within the RPC (Maine's state mental hospital serving the forensic population) and the accessibility of acute care services for incarcerated populations in Maine jails and prisons. My consultation included the develop1nent of strategies for implementation of community-based services.
July, 2003 - January, 2004 Dickstein, Shapiro, Morin & Olinsky LLP Washington, DC
I served as a mental health expert in a wrongful death lawsuit against the Virginia Department of Corrections. This case
4
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involved the suicide of a 37-year-old man in one of the Sussex prisons in Virginia.
January, 1998 - June, 2001 Institute on Crime, Justice and Corrections George Washington University Washington, DC
I worked as a mental health expe1t for the Institute, which served as monitor of a Memorandum of Understanding between the US Department of Justice and the Georgia Depattment of Juvenile Justice regarding health care and conditions of confinement in the state's juveni le detention facilities and training schools for sentenced youth. Adequacy of mental health services in all the facilities was one ofDOJ's principal concerns. I traveled throughout the state monitoring program capacity, speaking with youth and staff about practices and resources, and communicating back to the Institute, DOJ and the Georgia Commissioner on Juvenile Justice.
November 1999 Human Rights Watch Baltimore ity Jail Baltin1ore, Md.
I was the mental health expert for I-IRW on a team brought in to investigate mental health services and conditions of confinement for juveniles in the Baltimore City Jail.
March, 1999 - June, 2001 Physicians for Human Rights Washington, DC
As a mental health expert for PI-TR, I provided training for medical students and physicians on how to inspect juvenile facilities.
5
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February 1999 Amnesty International Norway
1 served as a mental health expert for AI as part of a team that toured Norway to discuss the American Juvenile Justice system with public officials and other policymakers, attorneys, law students, and other advocates.
September, 1994 - December, 1994 National Coalition for Mental and Substance Abuse Health Care in the Criminal Justice System Washington, DC
This was a national advocacy organization funded by SAMI--ISA promoting mental health services for juveniles/adults in the juvenile/criminal justice system. I served as Senior Policy Analyst and helped to coordinate state policy planning meetings.
Full-time Employment
May, 2007 - August, 2011 Chief, Health Services Administration Depaiiment of Youth Rehabilitation Services Washington, DC
I was responsible for the oversight of all medical and behavioral health programs and services for youth detajned in or committed to DYRS facilities or in the community. The Agency has been under court order (Jerry M.) since 1987, in large part due to the inadequacy of medical and n1ental health services. Among my responsibilities was the development of a consent decree work plan with the court's Special Arbiter and plaintiffs' attorneys that would
6
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allow DYRS to bring medical and behavioral health services up to national standards and move toward exiting Jerry M
My responsibilities included oversight of the Jerry M work plan, including the development of new policies, procedures, protocols, services, progra1ns and staffing requiren1ents and patterns of deployment for both medical and behavioral health programs. During my tenure, both medical and behavioral health services came into substantial compliance with the work plan. In addition, I oversaw the development of specialized programs, including programs introducing trauma jnformed care, the use of biofeedback to address youths' trauma issues, a fatherhood program (Baby Elmo), gender specific programming, including family planning, implementation of an evidence-based sub tance abuse program, Lesbian-Gay-Bisexual-Transgender-Questioning programming and sensitivity training, the dev lopn1ent of an extensive continuous quality improvement program for the Health Services Administration and access to an an-ay of evidence-based programs and services, including Multisystemic Therapy, Functional Family Therapy, and Multidimensional Treatment Faster Care.
I have also been responsible for the development of significant interagency collaborative opportunities with the District's Departinents of Education, Child and Family Services, Mental Health, Health, Health Care Financing, the Addiction Prevention and Recovery Administration, and Court Social Services. I have also had significant responsibility for working with the District's judges and court system.
December, 2004 -April, 2007 Director, Division of Behavioral Health Services Maryland Department of Juvenile Services Baltimore, MD.
7
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l was responsible for the development, implementation and oversight of a continuum of behavioral health services (i.e., mental health and substance abuse) for youth in the 15 Department of Juvenile Services (DJS) facilities, both detention and commit1nent. DJS was under agreements with the U.S. Department of Justice under the Civil Rights of Institutionalized Persons Act (CRIPA) in three facilities (Baltimore City Juvenile Justice enter, Cheltenham Youth Facility and Charles H. Hickey School). During my tenure, we came into partial or substantial compliance on most CRJPA-related indicators.
I was responsible £ r the collaboration and coordinati n of behavioral health services with Maryland sister agenc.ies, including the Department of Health and Mental Hygiene (DHMI-D, Maryland State epartment of Education (MSD , Department of Social Services (DSS), Department of Health and various community mental health and advocacy organizations.
I was a co-founder of the Community and Family Resource Center in the Baltimore City Juvenile Justice Center, which provided information, short-term mental health counseling and linkage to an array of community-based services for families of youth in the juvenile justice system.
September, 2002 - June, 2004 Director, Alternative Pathways Department of Mental Health Washington, D
Alternative Pathways (AP) was a locally- and federally-funded initiative to divert youth with mental health and/or substance abuse disorders from the juvenile justice system. I became the director of this initiative after l secured the funding from the federal Office of
8
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Juvenile Justice and Delinquency Prevention for $1,600,000 for the Depattment of Mental Health to take the lead for the District.
AP spearheaded interagency collaboration among all the District agencies that touch youth involved in the juvenile justice system, including the Family Comi, the Metropolitan Police Department,
ourt Social Services, Public Defender Services, Department of Mental Health, Youth Services Administration, the Deputy Mayor for Children, Youth and Elders and various communjty stakeholders.
As chair of the mayorally appointed committee, known as the Front-End Assessment Team FEAT), J was responsible for leading the effort and for bringing together those who could conceptualize the infrastructure and resources that would be needed. I developed the RFPs for vendors and was re ponsible for the development of all budgets and accounting to the District and federal agency. I was also responsible for all quarterly and annual reports.
In FY 2003, Alternative Pathways launched Youth Empowerment Services (YES), with the goal of screening chronic truants and all apprehended youth for co-occurring disorders so that linkage to necessary services and supports could be established.
Alternative Pathways was also asked to apportion a percentage of its funds for " deep-end" youth, defined as those residing on the Oak Hill Youth Center campus, or in out-of-District residential settings. I was responsible for developing the budget, criteria, and protocol for identifying youth with mental health needs who required resources not available in their current placements. Dozens of youth were identified and, with Medicaid and AP funds, were transitioned into the community to receive the services they required. The blending of funds fr m these sour ·es made it
9
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possible to focus on community-based plans that were a mix of traditional and non-traditional services and supports.
In addition, AP provided the funds to support the validation of Court Social Services' Risk Assessment Instrument (RAT) used in screening youth for detention. As part of AP~ s strategic plan for addressing the front-end, it was essential that the District used an objective and validated RAT. I budgeted funds in the AP grant to accommodate this expenditure and developed a contract between AP and the National Council on Crime and Delinquency. Progress and monitoring was provided by the F AT.
February, 2001 - September, 2002 Director, Mental HeaJth Services, Oak Hill Youth Center Department of Mental Health Washington, DC
As noted previously, the Youth Services Administration (YSA), which was the predecessor of the Department of Youth Rehabilitation Services, had been under court order (Jerry M.) since 1987. During my tenure the daily census on the OHYC campus averaged 175, with up to 20 daily admissions. The population included a co-mingled mix of detained and committed youth. Working for the Department of Mental Health, I was responsible for the administrative and clinical oversight of mental health services and supports at the facility. I worked to dev lop interagency agreements between DMIT and YSA, and other District agencies providing direct service to the population (e.g., Department of Education, Court Social Services and various group and shelter home providers). With supervisory resp nsibility for 15 mental health professionals, I developed a comprehensive mental health program that included: suicide screening, comprehensive psychiatric and psychological assessments, medication management, crisis management, acute care services
10
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and protocols for hospital transfers, and brief and on-gojng psychotherapy. I also established procedures for the linkage of youth to mental health services upon their release to the community.
In addition, I provided a number of trainings for OHYC juvenile
corrections officers, including: "Mental Health 10 l ," strategies for
de-escalating youth, and suicide prevention.
December, 1995 - July, 2000 Director, Mental Health Services, Central Detention Facility (DC Jail) Federal Receivership (Campbell v. McGruder) DC Jail Washington, DC
In 1995, the DC Jail (Central Detention Facility, or DF) was placed into receivership after nearly two decades of failing to come into compliance with consent decrees . The sentinel events leading to a receivership were the large number of completed suicides (9) that had occurred in the jail in the previous year. At that time, CDF provided services for all DC inmates, including sentenced inmate · residing in the Virginia-based Lorton prison complex. Upon my appoint1nent, I decentralized mental health services. This included training prison staff and developing protocols and procedures for delivery of mental health services through ut the DC Department of Corrections.
The CDF had a court-mandated ceiling of 1,767 (there were 1,700 on any given day and about 1,000 monthly admissions). I developed two residential treatment units, one serving those identified as acutely mentally ill, and a second, long-term stay unit that served as a step-down for those unable to be housed in the general population. All officers, detailed and relief, had to go through an 40-hour, full-week training in order to qualify to work on the ''mental health units." In addition, I developed an outpatient
11
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mental health program for inmates residing in the general population. I hired and supervised a professional staff of 13 Jjcensed psychologists and social workers to accomplish this. Together we developed protocols, procedures and policies that conformed with, and in many instances, went beyond the National Commission on orrectional Health Care standards.
I developed, staffed and resourced numerous trainings for correctional officers Including, the 40-hour mental health training, suicide prevention, stress management, and de-escalation strategies.
I also developed the funding necessary to launch two residential
treatment units, (one for men, the other for women) for inmates with substance abuse histories or charges. Working with Pretrial Ser ices, the Addiction, Prevention and Recovery Administration (APRA), and the Salvation Army, these jail-based units provided comprehensive mental health and substance abuse assessments and
medical evaluations of detainees. I also began the process of
establishing a recovery plan and effecting real Iinkages for detainees returning to the community.
My responsibilities included negotiating aftercare services and supports with the Department of Mental Health. In addition, I spearheaded an initiative to divert non-violent misdemeanants from the criminal justice system into mental health services and settings. As Chair of the DC Jail Diversion Task Force, I brought together the DC Superior Court, the Attorney General's Office, Public Defender Services, numerous community-based mental health advocacy groups and others to craft the District's diversion plan.
January, 1995 - August, J996 Director, DC Women's Jail Project Central Detention Facility (DC Jail)
12
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Washington, DC
I developed the program and funds to establish the Wo1nen's Jail Project, which provided direct mental health services and advocacy for women in the DC Jail. I supervised four Howard University clinical psychology doctoral students who worked on site in the Jail. The project was supported by funds from the U.S. District Court for the District of Columbia, the Public Welfare Foundation, the Eugene and Agnes E. Meyer Foundation, and the Center for Mental Health Services/Substance Abuse and Mental Health Services Administration/HHS.
Volunteer Work
April, 2010- June, 2011 International Sports Federation (INAS)
I was part of an international eligibility committee of psychologists that reviewed applications from intellectually disabled athletes from around the world who were applying to compete in the International Olympics.
August, 1992 - September, 1994 Death Penalty Focus San Francisco, 'A.
I volunteered for the Death Penalty Pocus Group in San Francisco offering technical assistance in their development of media campaign .
September, 1993 - December, 1993
13
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Pelican Bay Information Project San Francisco, CA
I volunteered for this grass-roots project whose mission was to monitor the Pelican Bay Prison trial and stay in communication with inmates in Pelican Bay's Special Housing Unit (Sl--IU).
Clinical Practice
• Director, Psychological Services Center, Clark University, Worcester, Ma. (1/91-6/91)
• Partner, Private Practice, linical Associates of Shrewsbury, Shrewsbury, Ma. (9/90-6/93)
• Treatment Team Coordinator, Westborough State Hospital, Westborough, Ma. (9/87-·12/90)
• Sexual Abuse Specialist, Westborough State Hospital, Westborough, Ma. (9/88-12/90)
• Staff Psychologist, Psychiatry and the Law Program, Worcester Area Co1nmunity Mental Health Center, Worcester, Ma. (9/83-6/87)

Education

1988Ph.D. Clinical Psychology Clark University, Worcester,

MA

1977 M.A. Psychology

Clark niversity, Worcester,

MA

1972 B.A. Psychology

Clark University, Worcester,

MA

Honors and Awards
14
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1987 Research Scholar Appointment, Clark University, Worcester, Ma.
1972 Phi Beta Kappa, Clark University, Worcester, Ma. 1972 B.A. Cum Laude and with High I-Ionors in Psychology,
Clark University, Worcester, Ma.
Select Publications, Reports and Presentations
(2014) Hartford Courant Op-Ed: State Must End Use of Restraints
On Juveniles.
(2014) Workshop presentation: Solitary Confinement and Isolation of Youth: Successful Reforms and Next Steps. Coalition for Juvenile Justice. With Amy Fettig, Senior Staff Counsel for the ACLU and Mishi Faruque, National Juv nile Justice Policy Strategist, ACLU.
(2007) Testimony on "Mental Health Issues among Youth in the Juvenile Justice System" presented to the Congressional Subcommittee on Healthy Families and Communities of the Committee on Education and Labor.
(2003) "Remarks - Mental Health in Prison Groups,'' UDC David A. Clarke School of Law Law Review, Vol. 7, Spring, umber 1, pgs. 224-232.
(2002) "Trends in Mental Health and Juvenile Justice in the U.S." XXVIIth International Congress on Law and Mental Health, Amsterdam, the Netherlands.
(2000) "Mental Illness Behind Bars." In J. May and K. Pitts (Eds.) Building Violence: How America's Rush to Incarcerate Creates More Violence. Sage Publications, Ca.
I 5
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(1999) HCentral Detention Facility Safety Net Program." An interactive journaling series for use in a jail-based substance abuse program. Developed with Corrective Action Publications, a subsidiary of Serenity Support Services. (1999) "Manufacture of Mental Illness in U.S. Prisons: Can Psychologists Respond?" With Craig Haney. Panel presented at the American Psychological Association meeting in Boston, Ma. The panel was part of a session entitl ed Crisis in U.S. Prisons: Implications for a Culture ofPeace. ( 1998) "Mental Health Outpatient Services in Correc6onal Settings." In M. Puisis, R. hansky, and J. May (eds.) Clinical Practice in Correctional Settings. Mosby, Chicago, Ill. Licensed in DC: license # PSY 1752 Licensed in MD: license # 04384 (inactive)
References upon request.
16
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Doe v. Shenandoah Valley Juvenile Center Commission, Docket No. 5:17-cv-00097 (W.D. Va. Oct 04, 2017), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Western District of Virginia; United States District Court for the Western District of Virginia Civil Rights - Other[440] 5:17-cv-00097

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 140

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division

JOHN DOE 1, et al., by and through their next friend, NELSON LOPEZ, on behalf of themselves and all persons similarly situated,
Plaintiffs,

Civil No. 5:17-cv-00097-EKD/JCH Judge Elizabeth K. Dillon

v.

SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,

Defendant.

REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Christine T. Dinan (VSB No. 84556)

Theodore A. Howard (admitted pro hac vice)

Hannah M. Lieberman (admitted pro hac vice) Bradley C. Tobias (VSB No. 88046)

WASHINGTON LAWYERS’

WILEY REIN LLP

COMMITTEE FOR CIVIL RIGHTS

1776 K Street, NW

AND URBAN AFFAIRS

Washington DC 20006

11 Dupont Circle, NW, Suite 400

Washington, D.C. 20036

Attorneys for Plaintiffs

Case 5:17-cv-00097-EKD-JCH Document 50 Filed 04/04/18 Page 1 of 29 Pageid#: 730

TABLE OF CONTENTS Page(s)
Table of Authorities ........................................................................................................................ ii INTRODUCTION ...........................................................................................................................1 I. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS .............................2
A. Excessive Physical Force .........................................................................................2 B. Denial Of Adequate Mental Health Treatment ......................................................13 II. THE DEFENDANT’S UNLAWFUL PRACTICES HAVE CAUSED AND CONTINUE TO CAUSE IRREPARABLE HARM .........................................................22 III. THE INJUNCTIVE RELIEF SOUGHT BY THE PLAINTIFFS IS PRINCIPALLY PROHIBITORY RATHER THAN MANDATORY IN NATURE ......................................................................................................................24 CONCLUSION ..............................................................................................................................27
i Case 5:17-cv-00097-EKD-JCH Document 50 Filed 04/04/18 Page 2 of 29 Pageid#: 731

TABLE OF AUTHORITIES
Page(s)
Cases
Blackwelder Furniture Co. v. Seiling Mfg. Co., 550 F.2d 189 (4th Cir. 1997) ...................................................................................................12
Alexander S. ex rel. Bowers v. Boyd, 876 F. Supp. 773 (D.S.C. 1995)...............................................................................................17
Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................................19
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S. Ct. 1510 (2012)......................................................................................27
Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 193 F. Supp. 3d 556 (E.D. Va. 2016) ................................................................................25, 26
Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 862 (S.D. W. Va. 2014) .................................................................................12
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) .........................................................................................................6, 13
Newbrough v. Piedmont Reg’l Jail Auth., 822 F. Supp. 2d 558 (E.D. Va. 2011) ..........................................................................14, 16, 19
Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) .............................................................................................24, 25
Short v. Smoot, 436 F.3d 422 (4th Cir. 2006) ...................................................................................................20
Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994) .....................................................................................................26
Thompson v. Commonwealth, 878 F.3d 89 (4th Cir. 2017) .....................................................................................................19
Volvo Group North America, LLC v. Truck Enterprises Inc., Case No. 7:16-cv-00025-EKD, 2016 WL 1479687 (W.D. Va. April 14, 2016) .....................25
Youngberg v. Romeo, 457 U.S. 307 (1982)......................................................................................................... passim
ii Case 5:17-cv-00097-EKD-JCH Document 50 Filed 04/04/18 Page 3 of 29 Pageid#: 732

Statutes 8 U.S.C. § 1232(c)(2)(A) ...............................................................................................................13
iii Case 5:17-cv-00097-EKD-JCH Document 50 Filed 04/04/18 Page 4 of 29 Pageid#: 733

Plaintiffs John Doe 1, et al., by and through their next friend, Nelson Lopez, by their undersigned attorneys, submit this Reply Memorandum of Law in response to the Brief in Opposition to Plaintiff’s Motion for Preliminary Injunction filed by Defendant Shenandoah Valley Juvenile Center Commission on March 21, 2018. See ECF Docket No. 45.
INTRODUCTION Plaintiffs’ Motion for Preliminary Injunction asks this court to curb the use of excessive force and restraints against the traumatized immigrant children in Defendant’s custody, and to require Defendant to provide them with necessary and appropriate mental health care during the pendency of this litigation. See ECF Dkt. Nos. 33, 34. In its Brief in Opposition to the Plaintiffs’ Motion, ECF Dkt. No.45, Defendant primarily challenges the factual accuracy of the accounts provided by the Plaintiffs and other former immigrant detainees concerning the mistreatment to which they were subjected while residing at Shenandoah Valley Juvenile Center (“SVJC” or “the Facility”). It also takes issue with the Plaintiffs’ articulation of the substantive legal standards which they contend govern this Court’s disposition of the Motion, and dismisses the expert opinions supporting the Motion on the grounds that Plaintiffs’ experts are simply misguided or insufficiently informed. However, Defendant openly concedes that Plaintiffs have recounted facts that, if true, make out a violation of their Constitutional rights: “Without question, the use of force alleged by Plaintiffs is not objectively reasonable”. ECF Dkt. No. 45 at 25. Thus, disposition of this Motion largely requires resolution of the parties’ competing facts. As set forth below, the Plaintiffs reject the Defendant’s presentation, as well as its conclusion, based on the consistent narratives of current and former children detained at SVJC, the Declaration of a former SVJC employee concerning its practices, the opinions of the only experts designated in this case and, in some instances, admissions contained in Defendant’s own records.
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ARGUMENT I. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A. Excessive Physical Force The Declarations provided by Plaintiffs Doe 1, Doe 2, and Doe 3 and additional Declarants J.A., D.M. and R.B. are replete with disturbing allegations concerning physical assaults and abuse these children routinely suffered at the hands of staff at the Juvenile Facility. See Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction (ECF Dkt. No. 34) at 25-27 and citations therein (summarizing excessive force claims). It is noteworthy, in this regard, that Plaintiff Doe 1’s period of detention at SVJC overlapped with those of Plaintiffs Doe 2 and Doe 3 for only a few months in late 2017.1 Declarant J.A.’s detention at SVJC overlapped for several months in 2016 with the early part of Plaintiff Doe 1’s time there, but J.A. left SVJC well in advance of when Plaintiffs Doe 2 and Doe 3 arrived.2 Declarants R.B. and D.M. were detained at SVJC in 2014, and thus did not overlap with any of the Plaintiffs, or with J.A.3 Defendant does not suggest that the Plaintiffs and Declarants knew each other or had any opportunity to confer with one another about their experiences or coordinate their stories. Yet, the consistent, coherent nature of their respective accounts of violent encounters with SVJC staff and subjugation to physical restraints and isolation is undeniably clear. The parties agree that, in order to prevail on their claim that the punitive disciplinary practices employed at SVJC of which they complain violate their substantive due process rights under the Fifth Amendment, Plaintiffs must show conduct of such nature as to “shock the

1

ECF Dkt. No. 34-1, ¶ 5; compare ECF Dkt. No. 34-2, ¶ 12 and ECF Dkt. No. 22, ¶¶ 27-

29.

2

See Ropp Aff. (ECF Dkt. No. 45-4), Ex. D-1 at 1.

3

ECF Dkt. No. 34-4, ¶ 3; Wong Aff. (ECF Dkt. No. 45-1), ¶ 75.

5

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conscience” of the Court, and that in assessing whether the conduct alleged meets the “conscience-shocking” level required to merit relief, the Court must apply the “objective reasonableness” standard articulated in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). Compare ECF Dkt. No. 34 at 23-24 with ECF Dkt. No. 45 at 24-25. Significantly, Defendant expressly concedes, under Kingsley, that “[w]ithout question, the use of force alleged by Plaintiffs is not objectively reasonable.” ECF Dkt. No. 45 at 25 (emphasis in original). However, Defendant simply denies that the allegations are accurate. Id.
Utilizing unequivocal and unabashedly categorical language, the Defendant contests the incidents or severity of excessive physical force attested to by the Plaintiffs and Plaintiffs’ Declarants, and insists that such episodes did not and could not occur at SVJC, maintaining instead that its use of physical force was sequenced and justified in each instance, and that restraints were only used as a last resort. Id. at 27-29 (citations omitted). The Defendant posits that its employment of physical intervention and restraints, as described, is “objectively reasonable” under Kingsley as a matter of law and entitled to deference from the Court, thus mandating the denial of injunctive relief. Id.4
Resolution of Plaintiffs’ Motion is not as simple as the Defendant wishes it to be. In a Declaration submitted in support of this Reply Memorandum and the Plaintiff’s Motion, Ms. Anna Wykes, a Residential Supervisor at SVJC from August 2016 through her compelled resignation on or about October 5, 2017 -- the day after this lawsuit was filed -- corroborates the

4

The Plaintiffs do not pretend that they or their supporting Declarants never engaged in

behavior while detained at SVJC that would not have provoked some form of disciplinary

response from the Facility’s staff. See, e.g., ECF Dkt. No. 34-2, ¶ 25. However, the Defendant’s

choice to portray these children -- who are beset by past trauma and, in many instances, serious

mental illness significantly affecting their conduct -- as sociopaths as to whom any measure of

control exercised by the Facility was necessarily justified is disingenuous, to say the least.

6

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consistent, repeated accounts of current and former youth held at SVJC and flatly contradicts many of the factual assertions upon which the Defendant relies in arguing that injunctive relief must be denied. The obvious disconnect and conflicts between the facts concerning excessive force set forth in the Plaintiffs’ and their supporting Declarants’ sworn statements and the facts as to which the Defendant’s Affiants have attested can only be properly resolved through credibility determinations to be made by this Court on the basis of an evidentiary hearing.
Ms. Wykes, in her Declaration dated March 28, 2018 and attached hereto as Exhibit 1 (“Wykes Decl.”), based upon her personal knowledge and observations while working at SVJC for more than one year, significantly undermines the sweeping assertions that characterize the Defendant’s Opposition Brief and supporting Affidavits as regards the degree of force SVJC uses with respect to immigrant detainees and the circumstances under which such force is utilized. Without a doubt, Ms. Wykes’ account of her experiences on the staff at SVJC paint a radically different picture with respect to discipline and the use of force at SVJC than the pristine, sanitized portrayal the Defendant attempts to advance.
The subjugation and control of the immigrant children detained at SVJC is the principal focus of staff orientation and training at the Facility. A four-hour training session on the use of force, including how to apply physical restraints such as handcuffs and shackles, how to “take a kid down” and how to use the restraint chair, and provision of a packet containing SVJC’s policies on how to respond to physical threats, were the main components of new staff orientation when Ms. Wykes commenced work at the Facility. Wykes Decl., ¶¶ 5-6. By contrast, Ms. Wykes had been employed at SVJC for more than one year before any training was provided to the staff concerning techniques to use in interacting with traumatized children, emphasizing staff’s need to exercise empathy and sympathy in these interactions. Wykes Decl.
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¶ 9. She notes that, to her observation, “the techniques [the trainer] suggested were not
implemented, and the training did not have any effect on the procedures and practices at SVJC.”
Id.5
Ms. Wykes provides a description of how discipline and punishment are imposed upon
immigrant detainees at SVJC quite different from the orderly process portrayed in the
Defendant’s papers.
22. The system of discipline at SVJC is all about control. My supervisors emphasized “safety,” but in practice it was all about having control over the kids in custody.
23. The staff had several ways to discipline kids in order to maintain control. These methods ranged from taking away a child’s points to placing them in room confinement or in the restraint chair.
24. Often discipline for small things, like losing points for back-talking or not raising a hand in class, would escalate to bigger problems. A kid would get angry when he lost points, which would then lead to removal from programming. As the kid became more frustrated, bored or angry, he would act out and would then be placed in restraints.
25. There were no written guidelines that told us how and when to use certain means of discipline or force, so it was largely left to the discretion of the residential and assistant supervisors.
Wykes Decl. at 5 (internal citation omitted).
What Ms. Wykes’ Declaration, coupled with all of the youths’ accounts, demonstrates, is
that Defendant’s practices created an inevitable continuum of escalating violence. The continuum

5

Ms. Wykes observes, in this regard, that “[o]ne clear barrier to the ability to express

empathy was the fact that few staff members could communicate with the kids because they

didn’t speak Spanish.” Id., ¶ 9. Defendant has admitted in its Answer to the initial and amended

Complaints that the majority of SVJC staff members are Caucasian and do not speak Spanish.

See, e.g., ECF Dkt. No. 8, ¶ 39. This admission reflects a clear violation of the terms of the

Cooperative Agreement between ORR and SVJC. See ECF Dkt. No. 35, Ex. 3 at 7, ¶ 5

(“Shenandoah must provide services in a culturally sensitive and knowledgeable manner. The

majority of staff responsible for direct service delivery must be bilingual in English and

Spanish.” (Emphasis added.)).

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of force and increased restraints often starts with taking away “points” – the only and much-desired
way for the youth to get a treat or perk -- for alleged minor infractions, triggering frustration and anger. 6 A youth’s lashing out would prompt his “removal from programming” – i.e., being placed
in isolation with restraints – which would lead to further boredom, anger and aggression,
prompting the use of additional restraints, including the much-reviled and feared “restraint chair”.
The discretion accorded staff to use the punitive measures and their readiness to do so, which Ms.
Wykes describes, and which the young Declarants and Plaintiffs experienced, is irreconcilable
with the Defendant’s presentation at virtually every stage of the “behavior management”
continuum:
 While the Defendant extols its “behavior management policy utiliz[ing] positive reinforcement to encourage good behavior” and insists that points earned through compliance with this policy cannot be taken away (ECF Dkt. No. 45 at 3-4), Ms. Wykes attests that taking away children’s points “happened all the time . . . for pretty much anything.” Wykes Decl., ¶ 27. 7

6

Indeed, a theme that emerges from the youths’ Declarations is that goading and

harassment by staff leads to and feeds this cycle of violence. See ECF Dkt. No. 34-1, ¶ 10

(“They were always trying to provoke me”); ECF Dkt. No. 34-3, ¶ 16 (“I think they do things to

make me angry so that I will hit them and then charges will be pressed and I will get a longer

sentence”; ECF Dkt. No. 34-4, ¶ 5 (“The staff members would say ugly things about my mother

and my family members. I think they did that to try to make me mad and to act out”).

7

The accounts of Plaintiffs and their supporting Declarants are in harmony with

Ms. Wykes’ assertions concerning the point system. See, e.g., ECF Dkt. No. 34-1, ¶ 8 (“We

could get points awarded for good behavior and points taken away for bad behavior. . . . I

regularly got points taken away for things like not wanting to work on the mural in art class,

complaining about a headache, or throwing a ball that hit the ceiling in the gym.”); see also ECF

Dkt. No. 34-2, ¶ 27; ECF Dkt. No. 34-3, ¶¶ 16-17. Notably, certain references in Defendant’s

own submissions are in accord. See ECF Dkt. No. 45-1, Ex. A-1 at 2 (“In accordance with the

[SVJC’s] behavioral management policy, [Declarant R.B.] . . . will be restricted to his room for

losing all of his behavioral levels[.]”); ECF Dkt. No. 45-4, Ex. D-1 at 2 (“[Declarant J.A.] talked

about his point loss for the day and some of his anger.”). Collectively, this evidence flatly

repudiates the Defendant’s contention that “[o]nce earned, points may not be taken away.”

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 While Defendant contends that removal of detained children from educational programming and subjecting them to room confinement occurs “only when every possible alternative has been exhausted” -- see ECF Dkt. No. 45 at 4 (internal citations omitted) -- Ms. Wykes states that “[r]emoval from programming was sometimes done when, for example, a kid would complain of a headache and not want to come out of his room to go to class, or when a kid would not want to go back into his room after lunch, which happened frequently. [¶] If kids disrupted the daily routine in any way, they would be removed from programming and left alone in their rooms for the rest of the day.” Wykes Decl., ¶¶ 31-32 (emphasis added). See also ECF Dkt. No. 34-4, ¶ 6; ECF Dkt. No. 34-5, ¶ 7.
 In its Opposition, Defendant categorically denies that children may wind up in solitary confinement for extended periods of time, asserting that “Plaintiffs’ provocative, nonspecific allegations of weeks-long solitary confinement . . . [is] simply not credible” and constitute “allegations of past conduct that did not occur.” ECF Dkt. No. 45 at 36. Indeed, Defendant admits that “prolonged solitary confinement of juveniles may give rise to irreparable harm”. Id. Yet Ms. Wykes’ Declaration and SVJC’s own affiants agree that solitary confinement attendant to “removal from programming” could last from a few hours in some instances to many days in others. Wykes Decl., ¶¶ 34-38 (describing alternative three-day and ten-day programs of confinement); see ECF Dkt. No. 45 at 5 (acknowledging the possibility of room confinements of five days or more).8 Based on the system Ms. Wykes describes, a three-day placement in isolation could quickly expand to a much longer time, as the children’s ability to get out of isolation depends on their “passing” a day without offending the residential supervisor. Wykes Dec., ¶ 37(d)-(f).
 While Defendant asserts that “SVJC adheres to a strict policy that allows physical intervention by staff only as a last resort and only with the least amount of force that is reasonably necessary” (ECF Dkt. No. 45 at 7 (internal citations omitted)), Ms. Wykes recounts that “[t]he staff at SVJC would . . . use physical restraints, including handcuffs, leg shackles, and soft restraints . . . to maintain control. Restraints were not always used as a last resort. [¶] Many staff members, including my assistant supervisors, would have no problem going ‘hands-on’ with a kid if they thought they needed to. ‘Going hands-on’ means several adults would put a kid in restraints, often by first pinning them down on the floor or against the wall. Some staff members would automatically go hands-on without trying any deescalation techniques as soon as a kid did not comply with an order

8

Although, in its pleadings, the Defendant readily admitted that “[i]solating children who

are suicidal is extremely damaging and violates well-established professional standards” -- see

ECF Dkt. No. 8 ¶ 97; see also ECF Dkt. No. 26, ¶ 125 -- it expressly acknowledges in its

Opposition papers that immigrant detainees at SVJC are placed in room confinement for

attempted or actual self-harm, including suicide. See ECF Dkt. No. 45-1, ¶ 41(b) (addressing the

use of room confinement for children “on suicide watch”).

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to do something.” Wykes Decl., ¶¶ 39-40 (emphasis added). Ms. Wykes once “saw 5 staff members use force to restrain a kid who was so small we called him ‘Baby J.’ He was 80 pounds.” Id., ¶ 43.9
 While Defendant states that “[w]hen all other measures have proven inadequate, SVJC utilizes an emergency restraint chair for residents who are physically combative, self-destructive, or potentially violent. . . . the chair is used only for justifiable protection . . . [and] is never applied as punishment” (ECF Dkt. No. 45 at 7 (internal citations omitted)), Ms. Wykes’ firsthand account differs significantly. She indicates that “[t]he chair could be used for any non-compliant behavior, such as when a kid resisted being placed in shackles. If the kid wasn’t calming down, or wasn’t complying with directives to stop kicking, stop struggling, or stop biting, he would be placed in the chair. [¶] Sometimes kids were placed in the chair as a result of a fairly minor behavioral issue or an attempt at self-harm once the child had been removed from programming. . . . [¶] The kids were not placed in the restraint chair due to any real concern for their safety or staff safety. By the time the kid was put in the chair, staff members had already taken the kid to the ground, had taken away anything threatening, such as a shank or a piece of glass, and had already placed the kid in restraints. . . . [¶] In my experience, the assistant supervisors went too quickly for the chair instead of trying to exhaust less drastic measures.” Wykes Decl., ¶¶ 48-51 (emphasis added).
 Moreover, Defendant understandably omits any description of the chair from its sanitized presentation. Having been placed in the chair as part of a training exercise, Ms. Wykes provides a vivid picture of the sinister qualities of the chair and its use. She explains that kids are strapped in at the waist, chest, arms and legs. Already in shackles, the arm and leg shackles are connected to the chair. A “horror movie”-looking spit mask is sometimes placed over their face. Strapped in, the child can only move his head, fingers and toes. Wykes Decl., ¶¶ 44-46. She described feeling “trapped” while restrained in the chair, asserting that “no human would like it”. Id., ¶ 52. Far from helping a child calm down, even Defendant’s other staff members recognized that strapping a child to the chair caused increased agitation. See, e.g. Twigg Aff. (ECF Dkt. No 45-3), Ex. C, ¶
9 The youth recount similar instances of being subjected to such disproportionate force. See, e.g., ECF Dkt. No. 34-1, ¶ 11 (“four staff members shoved me to the floor and piled on top of me”); ECF Dkt. No.34-2, ¶ 32 (“Sometimes there will be three or four of them using force against me at the same time”); ECF Dkt. No. 34-3, ¶ 10 (“two staff members slammed my body to the ground”); ECF Dkt. No. 34-4, ¶7 (“The staff members reacted by pushing me to the floor, and one of the staff members grabbed my head and forced my head down to the ground); ECF Dkt. No. 34-6,¶ 18 (“The guards were twice the size of the kids, who were 13 or 14 years old, but they would use their full weight to push them to the ground. Sometimes it was two guards doing this to a little kid”).
11
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16(i) (describing how Doe 2 “head-butted the wall and chewed a hole in the spit mask while being placed in the chair.”).10
 Although the Defendant would have this Court believe that, as part of their “behavior management program”, the youth confined at SVJC have a meaningful opportunity to contest disciplinary actions taken against them and have a viable grievance procedure available by which their concerns can be raised and resolved (ECF Dkt. No. 45 at 3, 4-5), Ms. Wykes’ account makes clear that nothing is further from the truth. While youth were provided with disciplinary reports, the reports were only in English. Wykes Decl., ¶ 73. She would translate the reports into Spanish for the youth through their room door. When the youth denied the report, he was not given an opportunity to tell or record his story. The assistant supervisor would deny the appeal on the spot. It was, as she said, a “joke” that took “two minutes, tops.” Id. She watched grievances submitted by the youth immediately get thrown in the trash. Id.
In sum, Ms. Wykes’ detailed description of the disciplinary/punishment process at SVJC
in practice on a real-world, day-to-day basis provides clear and substantial corroboration for the
horrific experiences recounted by the Plaintiffs and their supporting Declarants in their sworn
submissions offered in support of the Plaintiff’s Motion, and flatly contradicts the orderly
practices and procedures described by the Defendant’s Opposition. In such circumstances, it is
apparent that the outright rejection of Plaintiffs’ request for injunctive relief sought by the
Defendant cannot be granted. Instead, an evidentiary hearing, on the basis of which credibility
determinations can be made by this Court, is required. See Imagine Medispa, LLC v.
Transformations, Inc., 999 F. Supp. 2d 862, 869 (S.D. W. Va. 2014), citing Cobell v. Norton,
392 F.3d 251, 261 (D.C. Cir. 2004) and Blackwelder Furniture Co. v. Seiling Mfg. Co., 550 F.2d
189, 192 n.1 (4th Cir. 1997) (if parties’ competing submissions in connection with a motion for
10 See also ECF Dkt. No. 34-5, ¶ 18 (describing the chair and spit mask as “scary” and explaining, “[y]ou can’t move to resist. The first thing that came to my head when they put it on me was, ‘They are going to suffocate me. They are going to kill me.’”); ECF Dkt. No. 34-6, ¶¶ 11-12.
12
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preliminary injunction implicate genuine issues of material fact, “an evidentiary hearing is required”).
The Plaintiffs’ evidence, if ultimately credited by the Court, establishes a purposeful, knowing use of force against detained immigrant children at SVJC that is “objectively unreasonable” -- i.e., a use of force that “was not ‘applied in good faith effort to maintain or restore discipline’ but, rather, was applied ‘maliciously and sadistically to cause harm.’” Kingsley, 135 S. Ct. at 2469, 2473, 2475. As such, Defendant’s suggestion that Plaintiffs cannot make a “clear showing” of likelihood of success on the merits of their claim that the excessive force in use at SVJC violates substantive due process principles is without basis.
B. Denial Of Adequate Mental Health Treatment In supporting their claim that the failure of SVJC to provide adequate care for the serious mental health needs of the Plaintiffs and other similarly-situated immigrant detainees at the Facility violates the children’s substantive due process rights, the Plaintiffs invoked the “professional judgment” standard established by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307 (1982). Under that standard, “liability may be imposed . . . when the decision by the professional is such a substandard departure from professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a [professional] judgment.” Id. at 321 (citations omitted); see generally ECF Dkt. No. 34 at 29-30. Because there is no evidence suggesting that the brutal punitive measures routinely invoked by SVJC staff in response to behavior on the part of traumatized immigrant detainees that manifests their serious mental health problems took accepted and applicable professional standards for the treatment of traumatized youth into account whatsoever, Plaintiffs submit that they have a high likelihood of success on their Fifth Amendment claim in this regard. ECF Dkt. No. 34 at 30-32.
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The Defendant’s principal rejoinder to the Plaintiffs with respect to their denial of adequate mental health care claim is its assertion that Plaintiffs have relied on the wrong substantive standard:
. . . SVJC is a secure detention facility rather than a health-care provider or a treatment facility. The basis upon which UAC, including Plaintiffs, are placed at SVJC is a determination by ORR that they pose a safety risk in a less secure setting. The applicable standard in a non-healthcare setting like SVJC is the “deliberate indifference” standard. ECF Dkt. No. 45 at 30. Defendant goes on to assert that “the deliberate indifference test has been applied to civil detainees, including immigrant detainees, being held in a correctional facility as opposed to a treatment or healthcare setting.” Id. at 31, citing Newbrough v. Piedmont Reg’l Jail Auth., 822 F. Supp. 2d 558 (E.D. Va. 2011) (footnote and other citation omitted). However, as shown below, the Court’s analysis set forth in Newbrough explains why the Plaintiffs are correct and the Defendant is wrong: the Youngberg “professional judgment” standard governs here. The Newbrough case involved a German national arrested and taken into custody by U.S. Immigration and Customs Enforcement agents and detained at the Piedmont Regional Jail while awaiting removal from the United States. While in detention, Newbrough became seriously ill and, after repeatedly but unsuccessfully seeking medical care for his illness, he died. In the lawsuit brought by a representative of the decedent’s estate, the plaintiff asserted civil rights claims under Section 1983 premised upon allegations of wrongful denial of medical care. Certain named defendants filed a motion to dismiss, asserting that the complaint failed to state a claim against them for deliberate indifference to the decedent’s serious medical needs, and “[p]laintiff counter[ed] that because Newbrough was a civil detainee and not a pretrial detainee, ‘the “professional judgment” standard, and not the Eighth Amendment deliberate indifference standard’ applies.” 822 F. Supp. 2d at 570. Noting the absence of definitive Fourth Circuit
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authority directly on point, the Court turned to the question whether the Youngberg “professional

judgment” standard or the Eighth Amendment “deliberate indifference” standard should apply to

the wrongful denial of medical care claim of an alien detainee. Id. at 574. In this regard, the

Court noted:

The Supreme Court’s analysis in Youngberg makes clear that the purpose of the detention dictates the proper standard for assessing the detainee’s denial-ofmedical-care claim. In that case, for instance, the patient’s commitment was intended “to provide reasonable care and safety.” Youngberg, 457 U.S. at 320 n.27. For that reason, the plaintiff was “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321-22. In short, Youngberg indicated that differently situated detainees are entitled to different standards of care from their custodians.

In Patten [v. Nichols, 274 F.3d 829 (4th Cir. 2011)] . . . the Fourth Circuit observed that whereas psychiatric patients are confined for purposes of “treatment,” pretrial detainees are confined “because the state believes that the detainee has committed a crime, and . . . to ensure that he appears for trial and serves any sentence that might ultimately be imposed.” Id. at 841.

*

*

*

Applying Patten’s analytical framework to the case at hand, this Court finds that immigration detainees are more similarly situated to pretrial detainees than to involuntarily committed patients, such that the stricter deliberate indifference standard should apply. First, the Court assesses “the reason for which the person has been taken into custody.” Id. On close review, there is substantial similarity between the justifications for pretrial detention of the criminally accused and the detention of removable aliens. Most notably, both forms of detention serve to secure the detainee’s appearance at future proceedings, and to protect the community.

*

*

*

Additionally, the Court considers the physical and durational nature of the confinement. Like pretrial detainees, immigration detainees generally are housed in jails while awaiting removal. And like pretrial detainees, pre-removal detention is generally limited in duration, whereas patients are often committed for longer periods of time. . . .

. . . [T]his Court finds that pretrial and alien detainees share sufficient similarities to justify assessing their denial-of-medical-care claims under the same standard.

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Accordingly, this Court evaluates Plaintiff’s allegations under the deliberate indifference standard. Id. at 574-75 (emphasis in original; citations omitted). Although Defendant is thus correct that the Newbrough Court held that the “deliberate indifference” standard should govern the denial of medical care claim of the immigrant detainee involved in that case, Plaintiffs submit that the analytical framework articulated and applied in Newbrough points to a different conclusion in the case at bar. The Plaintiffs are not detained as a result of pending criminal charges or in anticipation of imminent removal. Nor, at least in the capacity that it is functioning in the context of this case, is SVJC acting as a “correctional facility.” Rather, SVJC is a “care provider,” charged by ORR with express responsibilities to provide the immigrant detainees subject to ORR custody with “[p]roper physical care and maintenance, including suitable living conditions,” as well as “[a]ppropriate routine medical . . . care . . . emergency health care services . . . [and] appropriate mental health interventions when necessary.” ECF Dkt. No. 35, Ex. 3 at 4. Without regard to their removal status, all unaccompanied minor immigrant children entrusted to ORR are to be “promptly placed in the least restrictive setting that is in the best interest of the child.” See 8 U.S.C. § 1232(c)(2)(A). Children may not be placed by ORR in a secure facility “absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” Id. Secure facility placements must be reviewed on a monthly basis “to determine if such placement remains warranted.” Id. Given these considerations and the significant psychological trauma and mental health problems which are characteristic of unaccompanied minors who have made their way from their home countries to the U.S. and find themselves subject to ORR custody, Plaintiffs submit that their placement in a secure ORR “care provider” facility is more closely analogous to the
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circumstances of those involuntarily committed and in need of treatment, like the plaintiffs involved in Youngberg and Patten, rather than those of pretrial detainees being held on criminal charges or immigrant detainees held in anticipation of imminent removal. As is emphasized by Plaintiffs’ expert Dr. Lewis, in his Supplemental Report in Response to Defendant’s Opposition attached hereto as Exhibit 2 (“Supp. Lewis Rept.”), juvenile facilities differ from adult correctional facilities in a manner directly consistent with this conclusion:
The primary purpose of the adult prison system is to punish those convicted of crimes and to protect society from criminals. Although the juvenile justice system must also protect society, hold juveniles accountable, and effect justice, it also has the primary purpose of trying to rehabilitate juveniles by appropriately addressing their therapeutic needs. This is a major difference and requires juvenile justice systems to be in the business of restorative justice rather than punishment. Supp. Lewis Rept., ¶ 8; see also id., ¶ 9 (because of their physiological, developmental and psychological differences from adults, “adolescents are in need of a juvenile justice system that accounts for these differences and functions separately and differently from the adult correctional system.”). For these reasons, Plaintiffs’ claims are properly governed by the “professional judgment” standard, not the “deliberate indifference” standard applicable to the claims of those detained for purposes of punishment. See also Alexander S. ex rel. Bowers v. Boyd, 876 F. Supp. 773, 797-98 (D.S.C. 1995) (holding that claims of class of juvenile offenders detained in facilities whose stated objective was “treatment or rehabilitation” concerning unconstitutional conditions of confinement are governed by Youngberg “professional judgment” standard). Both of the Plaintiffs’ highly-credentialed, eminently qualified experts, Dr. Lewis and Dr. Weisman, have explained in their respective reports supporting the Plaintiffs’ Motion, that established professional standards in the field of clinical psychology governing the treatment of traumatized, mentally ill minors, especially those in detention such as the Plaintiffs, dictate the
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application of trauma-informed therapy. Both experts stressed that punitive approaches to the behavioral manifestations of traumatized children’s mental illness, such as those routinely applied at SVJC, are wholly divorced from the accepted standard of care in the profession. ECF Dkt. No. 34-7, ¶¶ 83-97 & nn. 25-33; ECF Dkt. No. 34-8 at 9-13; Supp. Lewis Rept. at 1; see also, ¶ 6 (underscoring “the importance of stopping or greatly limiting correctional practices that further traumatize youth such as physical restraints, isolation, and shackling.”)
Despite these uncontroverted expert opinions concerning what “professional judgment” entails in this context, Defendant insists that “SVJC’s provision of mental health care is well above the constitutional minimum regardless of whether the deliberate indifference or the professional judgment standard applies.” ECF Dkt. No. 45 at 32. But in attempting to support that assertion solely by reference to the quantity of mental health services provided or available to immigrant detainees at SVJC, Defendant misses the point. Thus, as Dr. Lewis has noted, “it is not sufficient to offer general mental services to youth . . . [who] have been previously traumatized.” ECF Dkt. No. 34-7, ¶ 90.11 Plaintiffs agree with Defendant’s assertion that “the professional judgment standard sets a minimum constitutional threshold as opposed to a judicially-sanctioned debate between mental health professionals.” ECF Dkt. No. 45 at 33 (citation omitted). But here, no such “debate” is presented. Plaintiffs’ experts’ opinions reflect
11 See Supp. Lewis Rept., ¶¶ 13-15 (explaining why the mental health services afforded to Plaintiff Doe 1 at SVJC did not constitute effective treatment or therapy: “Although Doe 1 did, in fact receive limited mental health services while at SVJC, these were not trauma-informed and were primarily focused on why he was breaking rules and helping him to understand that there would continue to be consequences to his behaviors if he continued to act out. Indeed some of these services, such as his meetings with Dr. Kane, did not involve therapy at all. This punishment-oriented approach likely contributed to Doe 1 's further acting out at SVJC vs. a trauma-informed approach that would have helped him understand the relationship between his behaviors and past traumas and strategies to more effectively cope with his moods and behaviors when triggered by external events in his environment.” Id, ¶ 15).
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that the punitive disciplinary methods utilized by SVJC to respond to the behavior of traumatized, mentally ill children “is such a substantial departure from professional judgment, practice or standards as to demonstrate that [SVJC] did not base the decision [to employ those methods] on such a professional judgment.” Youngberg, 457 U.S. at 321. Defendant has offered nothing to the contrary.
Even if the Court finds that the stricter “deliberate indifference” standard set forth in Farmer v. Brennan and its progeny applies to this case, Plaintiffs have provided sufficient evidence to demonstrate that they are likely to succeed on the merits of their claim regarding inadequate mental health care. To establish deliberate indifference, Plaintiffs must show that (1) they were exposed to a substantial risk of serious harm; and (2) the defendant knew of, and consciously disregarded, a substantial risk to their health or safety. Thompson v. Commonwealth, 878 F.3d 89, 97-98 (4th Cir. 2017) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)).
To prevail on such a claim, “it is essential to show actual knowledge or awareness on the part of the alleged inflicter.” Newbrough v. Piedmont Reg'l Jail Auth., 822 F. Supp. 2d 558, 581 (E.D. Va. 2011) (citing Brice v. Virginia Beach Correctional Ctr., 58 F.3d 101, 105 (4th Cir. 1995)) (internal quotations omitted) (emphasis added). Here, there is no dispute that Defendant was aware that a significant proportion of the youths who were transferred to SVJC, including Does 1 and 2 and each of the three Declarants, suffered from mental illness.12 There is also no
12 ECF Dkt. No. 26, ¶ 107(a) (admitting that Doe 1 had been diagnosed with depression and conduct disorder); id., ¶ 107(b) (admitting that Doe 2 had been diagnosed with depression, conduct disorder, and anxiety disorder); ECF Dkt. No. 45-4, (Declarant J.A. had been diagnosed with explosive anger and impulsivity); Contreras Aff. (ECF Dkt. No. 45-5), ¶ 6 (Declarant D.M. placed at SVJC in part because of “suicidal ideation at a prior lower-security placement”); ¶ 73 (Declarant
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dispute that Defendant was aware that these youths were engaging in self-harm – including, in several cases, attempted suicide.13 Such knowledge is sufficient to demonstrate Defendant’s awareness that the youths faced a substantial risk of serious harm. See Short v. Smoot, 436 F.3d 422, 427 (4th Cir. 2006) (risk of suicide is sufficient to demonstrate a substantial risk of serious harm).
Yet Defendant indisputably and unapologetically engages in practices, including solitary confinement and the use of a restraint chair, that are known to be harmful to youths with mental illness and those who express suicidal ideation. In the face of such known risks, Defendant’s actions constitute a conscious disregard for the health and safety of Plaintiffs and other youths in its custody.
Plaintiffs’ experts, Dr. Lewis and Dr. Weisman, unequivocally assert that solitary confinement is harmful to youths with mental illness, and that it should never be used as a punishment. See ECF Dkt. No. 34-7, ¶¶ 75-76 (“Punitive approaches such as prolonged isolation, restraints, and physical abuse are harmful and ineffective. For example, 50% of all suicides in juvenile facilities occur while youth are held in isolation. . . . [Immigrant youths’] mental illnesses get worse when they are detained, especially when interventions such as solitary
R.B. had been diagnosed with post-traumatic stress disorder (“PTSD”) and had PTSD-related nightmares and hallucinations).
13 ECF Dkt. No. 26, ¶¶113, 114, 116 (admitting Doe 1 and Doe 2 had engaged in self-harm, and that Doe 1 had attempted suicide); ECF Dkt. No. 45-4, Ex. D-1 at p. 2 (describing incident in which Declarant J.A. cut his wrists and attempted to choke himself by tying a sweatshirt tightly around his neck, crying and stating that he wanted to die); ECF Dkt. No. 45-5, Ex. E-1 at 1-2; Ex. E-2 at 1-2 (describing incidents in which Declarant D.M. engaged in self-harm, including “banging his head forcefully against the brick wall” and “cutting his arm with a staple” and repeatedly expressed a desire to kill himself); ECF Dkt. No. 45-1, ¶ 81(Declarant R.B. had reported suicidal ideation on three separate occasions while he was detained at SVJC.)
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confinement and force are utilized.”); ECF Dkt. No. 34-8, ¶ 13 (“Medical professionals, including organizations like the American Medical Association, agree that juveniles with mental illnesses should not be placed in solitary confinement for longer than one hour without a comprehensive evaluation from a physician. Solitary confinement should never be used to punish people with mental illness.”). Defendant has not disputed the opinions of Drs. Lewis and Weisman on this point, nor has it offered any contrary opinions in the form of competing expert testimony. Indeed, Defendant conceded in its Answer to Plaintiffs’ Complaint that isolating children who are suicidal is “extremely damaging” and that it “violates well-established professional standards.” ECF Dkt. No. 26, ¶ 125. And yet Defendant admits that SVJC places youths on room confinement for self-harm, or attempted self-harm, including suicide. ECF Dkt. No. 45-1, ¶ 41(b) (room confinement is used for children who are “on suicide watch”). Defendant also makes no effort to deny that solitary confinement is used as a punishment for any perceived violation of SVJC’s rules (See ECF Dkt. No. 45-1, ¶¶ 35-38), or that it can last for a period spanning several hours to several days. Id., ¶¶ 37, 41(d)-(f).
Plaintiffs’ experts are no less emphatic regarding the harms that mentally ill youths suffer from being placed in the restraint chair. See ECF Dkt. No. 34-1 at 1 (“The predominant approach utilized to manage youth at SVJC is punishment and behavioral control through methods such as solitary confinement, physical restraint, strapping to a chair and loss of behavioral levels. These approaches are not only ineffective, but . . . can cause or exacerbate mental health problems including panic attacks, suicidal and self-injurious behavior, psychotic symptoms, paranoia, and hopelessness.”); ECF Dkt. No. 34-8 at 12 (“Placing a youth in a restraint chair because he/she expresses suicidality is not consistent with national standards.”) Yet Defendant concedes that the restraint chair may be used on youths who are engaging in self-
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harm. ECF Dkt. No. 45-1, ¶ 53(f); ECF Dkt. No. 34-5, ¶ 12. That the restraint chair is used by SVJC as a specific response to youths’ self-mutilation or attempted suicide is supported by Ms. Wykes’ Declaration and the youths’ accounts. See Wykes Decl., ¶¶ 67-68; ECF Dkt. No. 34-5, ¶ 21 (“Every time I was in crisis, they put me in the chair. The guards never did anything less extreme than that”).
Thus it is clear, on the basis of this uncontroverted evidence – including the Defendant’s own admissions regarding the practices at SVJC, and the opinions of well-respected experts in the field of clinical psychology and juvenile justice – that Defendant consciously disregards excessive risks to the youths’ health and safety by engaging in practices that are demonstrably harmful to youths with mental illness. II. THE DEFENDANT’S UNLAWFUL PRACTICES HAVE CAUSED AND
CONTINUE TO CAUSE IRREPARABLE HARM In their respective reports submitted in support of the Plaintiffs’ Motion, Plaintiffs’ experts have set forth in clear terms that the punitive disciplinary measures to which the Plaintiffs and other similarly-situated immigrant detainees at SVJC have been and continue to be subjected causes these children harm of a character that cannot be quantified or compensated by monetary relief. ECF Dkt. No. 34 at 33-35; see also ECF Dkt. No. 34-7, ¶¶ 75, 76, 77, 101; ECF Dkt. No. 34-8 at 5-7. Because of their particularly vulnerable status as a result of both their lack of full physiological development and the prior psychological trauma they suffered even before arriving at SVJC, the Plaintiffs and other immigrant detainees at SVJC may suffer new, immediate and indeterminate levels of serious mental harm each time they are subjected to physical abuse, excessive restraints or solitary confinement at the hands of the Facility’s staff. ECF Dkt. No. 34-7, ¶ 84 (“Recent research suggests that child abuse and neglect targets certain brain regions and pathways and can lead to brain abnormalities.”); ECF Dkt. No. 34-8 at 6
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(“Because juveniles are still developing socially and emotionally and psychologically, they are especially susceptible to psychological and neurological harms when they are deprived of environmental and social stimulation. . . . The consequences, including actual changes in brain structure, have been demonstrated to persist into adulthood.” (Footnote omitted.)).
The Defendant’s response that “[n]o irreparable harm can befall Plaintiffs because they have nearly immediate access to treatment whether it be from a mental health clinician, a psychiatrist, or hospitalization for more urgent needs” (ECF Dkt. No. 45 at 35 (citation omitted)), simply fails to address or take into account the nature of the physiological and psychological harm which the Plaintiffs’ experts have identified. Nor does Defendant offer any competing expert opinion evidence. Moreover, Defendant’s focus on the volume of the mental health response available to immigrant detainees at SVJC again strays wide of the mark. As Dr. Lewis has made clear in this regard,
Psychological treatment must address the chronic emotionally dysregulation, ruptured attachments with caregivers, and deficiencies in personal identity and competence caused by the trauma of the abuse and neglect. Treatments and approaches that simply try to control behavior rather than working to restore the underlying brain abnormalities and treating the “trauma” will be ineffective and likely harmful. ECF Dkt. No. 34-7, ¶ 84 (emphasis added). Lastly, although the Defendant readily concedes that “prolonged solitary confinement of juveniles may give rise to irreparable harm,” it purports to dismiss this concern on the grounds that “the isolation or confinement of juveniles for shorter periods of time is not ‘a significant hardship.’” ECF Dkt. No. 45 at 36 (citation omitted). But SVJC’s own evidence acknowledges the prospect of room confinement of children at the Facility for more than five days, even putting aside: (i) Plaintiffs’ experts’ opinions indicating that even relatively short periods of solitary confinement can do serious harm to children, and (ii) Ms. Wykes’ statement regarding use of a
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“10-day program” of room confinement at SVJC. See ECF Dkt. No. 34-8 at 6 (¶ 3), 9 (¶ 13); Wykes Decl., ¶ 38.
In sum, rhetoric notwithstanding, Defendant’s Opposition does little, if anything, to undercut the Plaintiffs’ compelling showing concerning irreparable harm. III. THE INJUNCTIVE RELIEF SOUGHT BY THE PLAINTIFF IS PRINCIPALLY
PROHIBITORY RATHER THAN MANDATORY IN NATURE Based upon a highly selective and self-serving interpretation of the Plaintiffs’ Motion, supporting papers and proposed Order, the Defendant concludes that the preliminary injunction sought by the Plaintiffs is mandatory in nature, such that it can only be granted in “‘the most extraordinary of circumstances.’” ECF Dkt. No. 45 at 23-24 (citation omitted). However, a fair reading of the injunctive relief that Plaintiffs are seeking indicates that the principal remedies they seek are prohibitory in nature, rather than mandatory and, in any event, the relevant case authorities favor a bifurcated analysis under the circumstances presented, rather than the categorical denial of relief for which the Defendant argues. As articulated in the Plaintiffs’ moving papers, “[h]ere, Plaintiffs submit that the preliminary injunction they seek is primarily prohibitory in nature; such injunctions ‘aim to maintain the status quo and prevent irreparable harm while [the] lawsuit remains pending.’” ECF Dkt. No. 34 at 19, quoting Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). Consistent with this representation, the principal objectives of the Plaintiffs’ proposed Order are a suspension of the manner in which SVJC utilizes its “emergency restraint chair” and alterations in the manner in which it utilizes physical force, restraints and solitary confinement against the immigrant children detained at SVJC, pending the ultimate resolution of this case. See ECF Dkt. No. 33-1, ¶ 1.a. through f., and ¶ 2.a. through e. at 2-3. Utterly disregarding these main
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objectives of the relief sought by the Plaintiffs, however, the Defendant focuses solely upon the last paragraph of Plaintiffs’ proposed Order, wherein they propose that:
Within __ days of this Order, SVJC . . . shall submit to Plaintiffs’ counsel and to the court a plan to adopt and implement a fully trauma-informed environment that is consistent with national standards. ECF Dkt. No. 33-1, ¶ 3 at 4; see ECF Dkt. No. 45 at 23-24. While the Plaintiffs: (i) stand by this limited element of “mandatory” injunctive relief as warranted by the facts and circumstances of this case as set forth in their opening Motion papers and the instant Reply papers; and (ii) believe that even under a more rigorous application of the relevant standards for “mandatory” injunctive relief -- see, e.g., Pashby, 709 F.3d at 320; Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 193 F. Supp. 3d 556, 566 (E.D. Va. 2016) -- they should prevail in this regard, they recognize that a bifurcated analysis by the Court as to the two forms of injunctive relief requested may be required here. See Handsome Brook Farm, 193 F. Supp. 3d at 566 (“In cases where the request for preliminary relief encompasses both an injunction to maintain the status quo and to provide mandatory relief, the two requests must be reviewed separately, with the request for mandatory relief being subjected to a more exacting review. . . . When mandatory relief is sought ‘a strong showing of irreparable injury must be made, since relief changing the status quo is not favored unless the facts and law clearly support the moving party.’” (Citations omitted.)); see also Volvo Group North America, LLC v. Truck Enterprises Inc., Case No. 7:16-cv-00025-EKD, 2016 WL 1479687, at *3-*6 (W.D. Va. April 14, 2016) (addressing “prohibitory” and “mandatory” aspects of movant’s request for injunctive relief separately). Plaintiffs believe, and submit, that enjoining the Defendant’s arbitrary, capricious and cruel imposition of physically abusive forms of discipline, excessive use of physical restraints and reflexive employment of solitary confinement would be prohibitory in nature, restoring the
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Plaintiffs and those similarly-situated to the status quo at the time those immigrant detainees were first transferred to SVJC -- see ECF Dkt. No. 34 at 19-20 -- during the pendency of the case. Other than its attempted denials of Plaintiffs’ underlying allegations, Defendant has done nothing to show that the curtailment of these practices is unjustified.
As for Plaintiffs’ request that SVJC be required to adopt and implement current professional standards for juvenile facilities by abandoning its control/punishment-oriented mode of interaction with its traumatized immigrant detainees in favor of a trauma-informed approach to care and treatment, Plaintiffs submit that the force of its experts’ opinions regarding the irreparable harm they and other immigrant children have suffered and continue to suffer as a result of the Defendant’s practices at SVJC, especially in regard to solitary confinement, is sufficient to warrant mandatory relief as well under a heightened level of scrutiny. See ECF Dkt. No. 34 at 32-35; ECF Dkt. No. 34-7 & 34-8; supra at 19-20; Handsome Brook Farm, 193 F. Supp. 2d at 574. Moreover, Plaintiffs have demonstrated the requisite deference to the Defendant’s status and capacity as a juvenile facility by suggesting that SVJC should be permitted to propose how it plans to implement a trauma-informed approach to the Facility’s provision of mental health care in the first instance, rather than suggesting that the Court simply impose appropriate terms and conditions upon SVJC for this transition ab initio. See ECF Dkt. No. 45 at 37-38.14
14 This distinguishes the mandatory relief sought by the Plaintiffs here from the situation addressed in Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994), a case upon which Defendant heavily relies, wherein, in granting a preliminary injunction ultimately vacated by the Court of Appeals, the district court not only disregarded evidence of “the numerous remedial steps undertaken or committed to be undertaken” by the officials of the youth correctional facility involved to try to address the alleged unconstitutional conditions of which the plaintiffs complained, but entered an injunctive order that wholly deprived those officials “of essentially all discretion to address the problems” found by the Court to exist. Id. at 270-72. In any event,
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Accordingly, both the “prohibitory” and the “mandatory” elements of the Plaintiffs’
request for preliminary injunctive relief are properly granted.
CONCLUSION
For the foregoing reasons, as well as those set forth in the Plaintiffs’ opening Motion
papers, a preliminary injunction should be granted.
DATED: April 4, 2018
Respectfully submitted,
By: /s/ Christine T. Dinan Christine T. Dinan (VSB No. 84556) christine_dinan@washlaw.org Hannah M. Lieberman (admitted pro hac vice) (hannah_Lieberman@washlaw.org) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone) (202) 319-1010 (facsimile)
Theodore A. Howard (admitted pro hac vice) thoward@wileyrein.com Bradley C. Tobias (VSB No. 88046) btobias@wileyrein.com WILEY REIN LLP 1776 K Street NW Washington, D.C. 20006 (202) 719-7120 (telephone) (202) 719-7049 (facsimile)
Attorneys for Plaintiffs
deference of the sort the Defendant seeks to claim for itself here simply does not apply where the punitive disciplinary measures complained of are shown to have no reasonable relationship to legitimate penological interests in light of substantial evidence indicating that a facility’s officials have exaggerated their response to the safety or security concern invoked. See generally Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S. Ct. 1510, 1515-17 (2012). Plaintiffs submit that precisely that set of circumstances will be shown to exist here.
27
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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of April 2018, a true and correct copy of the foregoing Reply Memorandum of Law In Support Of Plaintiffs’ Motion for Preliminary Injunction with supporting Exhibits was served via this Court’s electronic case filing system upon the following:
Jason A. Botkins, Esq. Melisa G. Michelsen, Esq. LITTEN & SIPE, LLP 410 Neff Avenue Harrisburg, VA 22801 jason.botkins@littensipe.com melisa.michelsen@littensipe.com Attorneys for Defendant Shenandoah Valley Juvenile Center Commission
/s/ Christine T. Dinan Christine T. Dinan
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

6/27/2018

JOHN DOE 1, JOHN DOE 2, and JOHN

)

DOE 3, by and through their next friend,

)

NELSON LOPEZ, on behalf of themselves )

and all persons similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

SHENANDOAH VALLEY JUVENILE

)

CENTER COMMISSION,

)

)

Defendant.

)

S/J.Vasquez
Civil Action No. 5:17-cv-00097 By: Elizabeth K. Dillon
United States District Judge

ORDER CERTIFYING CLASS

Plaintiffs John Does 1–3, Latino immigrant youths who are, or may in the future be,

confined to the Shenandoah Valley Juvenile Center (SVJC), bring this action under 42 U.S.C.

§ 1983. Plaintiffs assert that they represent a class of immigrant children who have suffered

verbal and physical abuse by SVJC staff; received constitutionally inadequate mental health care;

and been subjected to inappropriate confinement and seclusion while detained at SVJC. (Am.

Compl. ¶ 2, Dkt. No. 22.) They seek declaratory and injunctive relief. (Id. ¶ 3.) This matter is

before the court on plaintiffs’ consent motion for entry of a proposed order regarding class

certification. (Dkt. No. 53.) The motion indicates the parties’ agreement that plaintiffs’

amended complaint satisfies the elements required by Federal Rule of Civil Procedure 23 and

asks the court to certify the case as a class action accordingly.

To be certified, a proposed class must satisfy the four requirements of Federal Rule of

Civil Procedure 23(a) and one of the three sub-parts of Rule 23(b). Thorn v. Jefferson-Pilot Life

Ins. Co., 445 F.3d 311, 318 (4th Cir. 2006) (citations omitted). Having reviewed plaintiffs’ first

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amended complaint, the court concludes that these requirements are satisfied. For a class to meet the first requirement of Rule 23(a), it must be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The amended complaint’s assertion that there are approximately 30 unaccompanied immigrant minors under detention at SVJC (Am. Compl. ¶ 1) satisfies this requirement. See, e.g., Talbott v. GC Servs. Ltd., 191 F.R.D. 99, 102 (W.D. Va. 2000) (“Where the class is twenty-five or more, joinder is usually presumed impracticable.”) (citation omitted); Knight v. Lavine, No. 1:12-cv-611, 2013 WL 427880, at *2 (E.D. Va. Feb. 4, 2013) (“The Fourth Circuit has affirmed certification for classes as small as 18 people.”) (citation omitted).
Second, “commonality” requires the presence of questions of law or fact common to the class, Fed. R. Civ .P. 23(a)(2), such that “classwide resolution” can be provided “in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “[S]uits for injunctive relief by their very nature present common questions of law and fact.” McGlothlin v. Connors, 142 F.R.D. 626, 633 (W.D. Va. 1992). Plaintiffs’ causes of action implicate questions of fact and/or law that are common to the proposed class as a whole, such as plaintiffs’ allegations that SVJC subjects the members of the proposed class to excessive force (Am. Compl. ¶ 72) and that SVJC treats members of the proposed class differently from Caucasian youth detained at the facility on the basis of race (id. ¶ 164).
Third, “typicality” requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The essence of the typicality requirement is captured by the notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.’” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (citation omitted). Thus, in pursuing their own case, the representative parties “must
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simultaneously tend to advance the interests of the absent class members.” Id. The typicality requirement tends to merge with that of commonality. Id. Here, plaintiffs meet the typicality requirement for the same reason that they meet the commonality requirement—the declaratory and injunctive relief sought would benefit all class members alike.
Finally, “adequacy of representation” requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequacy inquiry . . . serves to uncover conflicts of interest between named parties and the class they seek to represent.” Monroe v. City of Charlottesville, No. 3:05-cv-74, 2007 WL 2461746, at *2 (W.D. Va. Aug. 27, 2007) (quotations omitted). This inquiry also tends to merge with the preceding inquiries into commonality and typicality. Id. A conflict must be fundamental to defeat adequacy of representation; a conflict is not fundamental when all class members “share common objectives and the same factual and legal positions and have the same interest in establishing the liability of defendants.” Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (internal alterations and quotations omitted). Finally, in addition to inquiring into the named plaintiffs themselves, the adequacy requirement also contemplates the conflicts and competency of class counsel. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997). The named plaintiffs, who represent that they are committed to vigorously pursuing a favorable outcome, do not have interests in conflict with the interests of the proposed class as a whole, nor do they seek relief for themselves different in character from the relief sought for the class. As to class counsel, plaintiffs note that their counsel has had “substantial civil rights and class action experience” (Pls.’ Mot. 7, Dkt. No. 53), and defendants do not dispute these qualifications. Thus, the court finds that the requirements of Rule 23(a)(4) are satisfied.
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Having determined that each of the Rule 23(a) requirements is satisfied, the court turns to
Rule 23(b). In addition to meeting the requirements of Rule 23(a), a class must also qualify
under one of the three “types” of classes set forth in Rule 23(b). Gray v. Hearst Commc’ns, Inc.,
444 F. App’x 698, 700 (4th Cir. 2011). Plaintiffs seek to pursue their claims as a Rule 23(b)(2)
class. Class certification pursuant to Rule 23(b)(2) is appropriate when “the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs assert that the alleged unconstitutional conditions of
confinement at SVJC are imposed upon the entire population of unaccompanied alien children
(UACs) detained at the facility. As noted above, the declaratory and injunctive relief sought
would benefit all class members alike. Accordingly, class certification under Rule 23(b)(2) is
appropriate.
Based on the foregoing reasons, the court GRANTS plaintiffs’ consent motion (Dkt. No.
53) and CERTIFIES this matter as a CLASS ACTION. Pursuant to the parties’ agreement and
the court’s review, the class is defined as follows:
Latino1 unaccompanied alien children (UACs)2 who are currently detained or will be detained in the future at Shenandoah Valley Juvenile Center who either: (i) have been, are, or will be subject to the disciplinary policies and practices used by SVJC staff; or (ii) have needed, currently need, or will in the future need care and treatment for mental health problems while detained at SVJC.
1 Although the consent motion frames the class as “all” unaccompanied alien children, Does 1–3 are Latino immigrant youths who claim, in part, that they and other similarly situated youth have been treated differently due to defendant’s discrimination on the basis of their race. (Am. Compl. ¶¶ 1, 57, 61, 64, 164.) Thus, the court certifies a class of “Latino,” rather than “all,” unaccompanied alien children. See EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (“A class cannot be certified unless a court can readily identify the class members in reference to objective criteria.”).
2 An unaccompanied alien child is a child who: “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom . . . (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2).
4
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The court hereby appoints the named plaintiffs as class representatives and plaintiffs’ counsel of record as class counsel.
The clerk is directed to send a copy of this order to all counsel of record. Entered: June 27, 2018.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated,
Plaintiffs,
v.

Civil No. 5:17-cv-0097 Judge Elizabeth K. Dillon
Jury Trial Demanded

SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,

Defendant.

SECOND AMENDED CLASS ACTION COMPLAINT INTRODUCTION
1. Plaintiff John Doe 4 (“Doe 4” or “Plaintiff”) and members of the class he seeks to represent are Latino immigrant youths who are, or may in the future be, confined to the Shenandoah Valley Juvenile Center (“SVJC”). There are approximately 24 - 30 unaccompanied immigrant minors under detention in the facility at any given time. Doe 4 and members of the class he seeks to represent are confined solely because they crossed the United States border seeking to escape violence in Mexico and Central America without proper authorization and the Office of Refugee Resettlement of the U.S. Department of Health and Human Services (“ORR”) has determined to detain them. Doe 4 and other similarly situated young people detained at SVJC are subjected to unconstitutional conditions that shock the conscience, including violence by staff, abusive and excessive use of seclusion and restraints, and the denial of necessary mental health care. As a result of this treatment, Doe 4 and other youths have engaged in significant and often continuous self-harm, to which SVJC staff and
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counselors have responded with callous indifference. These violations reflect a disorganized, untrained, and understaffed facility that houses immigrant children in brutal, inhumane conditions. 2. This is a civil action pursuant to 42 U.S.C. § 1983 to vindicate the rights of immigrant youth detained at SVJC under the Fifth and Fourteenth Amendments to the United States Constitution. Doe 4 represents a class of immigrant children who have suffered verbal and physical abuse by SVJC staff; received constitutionally inadequate mental health care; and been subjected to inappropriate confinement and seclusion while detained at SVJC. 3. On behalf of himself and all similarly situated immigrant children, Doe 4 seeks declaratory, preliminary, and permanent injunctive relief requiring that Defendant cease its unconstitutional policies and practices at SVJC and provide class members with the standard of care and conditions of confinement mandated by the United States Constitution. 4. These problems are not unique to SVJC, but are part of a growing and alarming national trend of punitive, racially discriminatory conditions of confinement and systematic indifference to the suffering of immigrant detainees, who often fare worse in civil detention than those serving criminal sentences.1 5. Immigrant detainees are regularly subjected to poor sanitation, substandard medical and mental health care, excessive use of solitary confinement, and other conditions that too often result in senseless, preventable suffering and in some cases, deaths.
1 See, e.g., Conditions of Confinement in Immigration Detention Facilities, ACLU, June 27, 2007, https://www.aclu.org/sites/default/files/field_document/unsr_briefing_materials.pdf; Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, HUMAN RIGHTS WATCH, May 8, 2017, https://www.hrw.org/report/2017/05/08/systemicindifference/dangerous-substandard-medical-care-us-immigration-detention.
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PARTIES Plaintiff John Doe 4 6. Doe 4 is a 17-year-old native and citizen of Honduras. 7. Doe 4 left Honduras to escape a gang that threatened his life if he did not join the gang. In fear for his life and safety, he fled to Guatemala and then Mexico, and he entered the United States to seek protection as a refugee. 8. Doe 4 arrived in the United States on or about May 15, 2017. He was apprehended by Immigration and Customs Enforcement (“ICE”) officers at the Mexican border and, upon information and belief, was determined to be an Unaccompanied Alien Child (“UAC”). He was placed in a shelter in Tucson, Arizona for approximately one month. 9. From Tucson, Doe 4 was transferred to a detention facility in New York, where he spent approximately 7-8 months. 10. Doe 4 was subsequently transferred to SVJC on or about December 1, 2017. He was not initially informed of the reason for his transfer, but was later told that he was moved because he was considered a flight risk. Doe 4 has never attempted to escape from detention. He was also informed that he was moved because he did not respect staff at the prior facility. 11. Doe 4 is currently detained at SVJC. On behalf of himself and all similarly situated immigrant children, he brings this action by and through Nelson Lopez, his next friend. 12. Mr. Lopez has met with Doe 4, and Doe 4 consents to Mr. Lopez serving as his next friend. 13. Nelson Lopez is an adult resident of Virginia. He brings this action for the benefit of Doe 4 and the class of immigrant detainees Doe 4 seeks to represent. 14. Mr. Lopez is well-suited to serve in this role. He is currently self-employed and engaged as a community advocate at a Northern Virginia social justice organization that he co-founded.
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He previously worked as a paralegal at an immigration legal services organization for approximately three years. In that capacity, Mr. Lopez frequently visited detained immigrant adults and children to educate them about their legal rights and assist them in navigating the immigration legal system. 15. Upon information and belief, the majority of the immigrant detainees in the class, most of whom have arrived from Mexico and Central America, have experienced psychological trauma before arriving at SVJC. They have been severely traumatized by violence they have experienced, witnessed or with which they have been threatened, in their home countries and during their journeys to the United States. 16. When ORR staff at other facilities are faced with behaviors of immigrant youth detainees which they perceive to be threatening or violent, they may arrange for the transfer of those immigrant youth to SVJC, because it is a “secure” facility. Those behaviors, however, are generally the direct result of untreated mental illness resulting from trauma experienced by the youth in, or during the process of fleeing from, their home countries. 17. As is the case with other SVJC detainees, Doe 4, upon information and belief, was not provided in his previous placements in ORR facilities the necessary services – including, but not limited to, appropriate mental health care – to allow him to live in a community setting, despite ORR’s obligations under federal law to ensure that unaccompanied minors “be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). 18. Doe 4’s plight echoes the stories of the many immigrant youth who have been or are now
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detained at SVJC.2 These children uniformly describe SVJC as a facility where immigrant youth languish without necessary mental health services, are regularly verbally and physically abused, harassed, and taunted by staff, and are subjected to harsh, disproportionate discipline for behavioral issues that are in many cases directly provoked by the abusive treatment they receive. These conditions violate the constitutional rights of Doe 4 and all similarly situated immigrant children, all of whom are entitled, to the extent they are properly detained at all, to reasonably safe and sanitary conditions of confinement and protection from harm.
Defendant Shenandoah Valley Juvenile Center Commission 19. Defendant Shenandoah Valley Juvenile Center Commission (“Defendant” or
“Commission”) is a commission composed of members from seven jurisdictions in the Shenandoah Valley, including the Cities of Harrisonburg, Lexington, Staunton and Waynesboro, and the Counties of Rockingham, Augusta, and Rockbridge. The Commission owns and operates SVJC, a secure residential detention facility in Staunton, Virginia, for use by each of the member jurisdictions. 20. The Commission is a public body corporate pursuant to Va. Code § 16.1-315.
JURISDICTION AND VENUE 21. Plaintiff’s causes of action arise under the Fifth and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. § 1983. 22. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331.
2 Those prior detainees include John Does 1, 2 and 3, who served as named Plaintiffs in this lawsuit for a period of time and attested to the inhumane conditions at SVJC. See, e.g., Plaintiffs’ (First) Amended Complaint, ECF Doc. 22; Exhibits 1-3 filed in support of Plaintiffs’ Motion for Preliminary Injunction, ECF Docs. 34-1, 34-2, 34-3.
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23. Venue in this Court is proper under 28 U.S.C. § 1391(b)(2) because all or a substantial part of the events or omissions giving rise to this action occurred in this District. STATEMENT OF FACTS General Conditions at SVJC
24. SVJC holds an approximate average daily population of 40 youth between the ages of 10 and 17 years. This includes both UACs and United States citizen youth who have been adjudicated as juvenile delinquents.
25. ORR, the division of the U.S. Department of Health and Human Services directly responsible for the care and custody of unaccompanied immigrant minors, has contracted with the Commission to house children whom ORR determines are UACs and require detention in secured conditions due to the risk of harm these UACs purportedly pose to themselves or others.
26. SVJC is currently one of only three secure facilities in the country that house detained UACs. 27. ORR’s explanation for its decision to place a child in a secure facility must be made in writing
and made available to the child. Its evaluations in this regard are to be revisited at regular intervals. Upon information and belief, ORR consistently fails to fulfill these obligations, and many of the members of the class that Plaintiff seeks to represent, including himself, have little to no understanding as to why they have been placed at SVJC. 28. SVJC is, both structurally and functionally, a prison. Children are not permitted to freely move about the facility and they are locked in their rooms for approximately 12-14 hours per day, including before and after meals; during staff breaks; and after 9:30 in the evening. 29. The children are fed substandard meals that contain too few calories and are often served cold or are accompanied by spoiled milk. They consistently remain hungry after meals
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because they receive too little to eat. 30. Each child is assigned to a room with a mattress, a sink, and a toilet. There is no wall or
divider enclosing the bathroom area, so the staff can see the children use the toilet through the window in the door to their room. 31. Some children have sought privacy by placing paper over this window to obscure the view from outside the room, but the staff have removed any such covering. One youth reported that, when he attempted to place paper over the window to his room for privacy, staff swarmed into his room with plastic shields and assaulted him. From the window, staff can and do regularly observe youth. Youth report being watched when they use the toilet. 32. Each room is in a “pod,” which is a cluster of approximately ten rooms with a shared common area. 33. In the common area of each pod, there are metal tables and chairs that are bolted to the floors. 34. The immigrant children detained at SVJC are grossly under-stimulated. Although they receive a few hours of classroom instruction per day, much of it is either inaccessible, as the instruction is not consistently provided in the children’s native language, is significantly below grade level and/or is repetitious. The facility does not meaningfully assess educational proficiency to determine the level of instruction that each resident should receive. 35. The children are given limited recreation time per day, which is either spent in a small gymnasium or, less frequently and only recently, in a small outdoor area that is fenced in with barbed wire. The children’s remaining free time is spent locked in their pods, where the only activities they are regularly permitted are reading or playing cards with incomplete decks. 36. In the evening, the children are permitted to watch a limited amount of television, but the
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staff members control the TV and the children are not allowed to touch it. 37. There is a point system in place to reward children for good behavior and punish them for
bad behavior. The children are required to use points if they want to have access to personal hygiene items such as toothpaste and soap. 38. Points are taken away by SVJC staff from detained UACs for such purported “offenses” as asking the time of day; declining to read a book during the children’s designated “free time”; giving their food to a friend; neglecting to raise their hand in class; moving the location of the TV in their pod to see it better; walking in the hallways with their hands down at their sides rather than behind their backs; and throwing a ball that hits the ceiling in the gym. If a child loses two points in a day, the child will be placed on “restriction,” which amounts to solitary confinement in his room.
Race and National Origin Discrimination by SVJC Staff 39. The majority of SVJC staff members are Caucasian and, despite the express requirements of
SVJC’s contract with ORR, do not speak Spanish. 40. SVJC staff routinely insult, taunt, and harass the immigrant youth detained at the facility
based on their language, race, and/or national origin. 41. Doe 4 has had staff members insult him and has heard them insult other immigrant detainees.
Staff have taunted Doe 4 by calling him “criminal”, “pig”, and “nothing more than an immigrant.” They have told him that the only way for the immigrant children to leave SVJC is to be deported. He has heard staff say that the immigrant children are “living off of the government,” that they have come to the United States to steal jobs, that they do not deserve to be in this country, and that they have no right to anything because of their immigration status and national origin.
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42. Youth report staff calling them “delinquents,” “gangsters,” and “defective.” One child was called a “Mexican monkey”; another was told by a guard that “dark people bother me.” Others have been called names such as “pendejo” (or “idiot” in Spanish) and “onion head”.
43. Youth who understand English have heard staff insult the immigrant children and call the children stupid for failing to understand the staff’s English insults. When these youth translate the insults into Spanish so the other children can understand what is being said about them, staff members become angry and take away points.
44. Staff also have frequently refused to allow the immigrant children to watch Spanish-language programming on the communal television in their pods, making dismissive comments such as they “don’t care” that the children are Latino and cannot understand an English television show.
45. SVJC staff also exert their control in a way that is intended to demean and humiliate the children. Doe 4 and other detainees have reported being stripped of their clothes, including, at times, even their underwear, while restricted to their rooms in solitary confinement as a form of punishment. There is no legitimate penological or detention-related justification for this kind of treatment.
46. SVJC staff also subject the immigrant youth to disparate discipline, doling out harsher punishments to the immigrant youth than to local juvenile offenders, the majority of whom are Caucasian and were born in the U.S, who have engaged in the same or considerably worse behavior.
47. On one occasion, an immigrant youth and a juvenile offender got into a fight after the juvenile offender had taunted the immigrant youth and told him that he “hate[d] Latinos”. When SVJC staff intervened to break up the fight, the immigrant youth was grabbed and thrown
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forcefully to the ground, but the juvenile offender was merely held by the arms and pulled away. Thereafter, the immigrant youth was restrained, strapped to a chair, and hit several times by staff members while restrained. The immigrant youth was required to remain strapped to the chair, in his room, for four hours. This restraint served no security or penological purpose and was legally impermissible punishment. 48. Despite the fact that local detainees have been adjudicated as juvenile delinquents, while the immigrant youth residing at SVJC have not, the local juvenile offenders are also granted more privileges than the immigrant youth. Upon information and belief, the local offenders are granted more opportunities to go outdoors and more physical freedom to move about the facility; they are provided with computers in their classrooms and with markers and pencils for drawing; and they have regular access to MP3 players for listening to music and to Xboxes in their pods. The local juvenile offenders have better and more comfortable furniture in their pods. None of these benefits are afforded to the immigrant youth.
Physical Abuse by SVJC Staff 49. In addition to being called racially-charged names, Plaintiff and other immigrant children are
frequently called names, such as “gay” or “faggot”, by SVJC staff, who appear outside of their rooms and taunt them until they receive a response. 50. For Plaintiff and other immigrant detainees, verbal abuse by staff triggers emotional responses connected to traumatic memories of past abuse that they have experienced and/or self-protective behaviors. 51. Relentless verbal abuse of the immigrant youth by SVJC staff frequently escalates into physical confrontations, as the frustrated children reach their breaking points and act out. See, e.g., Santos v. Smith, No. 5:17-cv-00020, 2017 U.S. Dist. LEXIS 83909, at *38 (W.D.
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Va. June 1, 2017) (Dillon, J.) (noting, in ruling on a habeas petition brought by an immigrant youth detained at SVJC, that most of the petitioner’s significant behavioral problems had arisen after he had been in custody for over a year and were “likely . . . attributable in part to his placement at SVJC.”) 52. When immigrant youth lash out following the staff’s taunting, SVJC staff regularly respond by physically assaulting the youth, applying an excessive amount of force that goes far beyond what is needed to establish or regain control. 53. Doe 4 has been subjected to physical assault by SVJC staff. 54. For example, when Doe 4 once attempted to calmly speak with a staff member about an issue, he was ordered to his room for a time out – ostensibly a short period of time for “cooling off” purposes. As he tried to approach his room, staff punched him, shoved him into the room, and tied his hands behind his back. A staff member then pinned him against the wall, twisted his wrist, and continued to hit him until several staff persons fell on top of him. When Doe 4 protested that he could not breathe, staff told him that it was “good” he could not breathe. 55. On other occasions, Doe 4 has been restrained by more than one staff member, put into a restraint hold, and removed from programming for actions deemed non-compliant but which were not accompanied by any physical act on his part. On such occasions, Doe 4 would be restricted to his room – in solitary confinement – for four to eighteen hours. 56. Other youth report use of force against them that is grossly disproportionate to the perceived offense. Youth have reported staff shoving them to the floor, hitting them while they were on the floor and, as in the case of Doe 4, piling on top of them. Youth subjected to such force also report significant bruising as a result.
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57. Other youth have been restrained by multiple SVJC staff members at a time when the youth do nothing more than verbally insult them. In one such case, staff grabbed the youth’s hands and put them behind his back so that he could not move, using enough force to leave bruises on his wrists, ribs, and shoulder.
58. Plaintiff and other children have also been assaulted by SVJC staff while they are restrained. Doe 4 has been hit by staff even while he was restrained inside his room.
59. Youth report being slammed, face first, into the wall, as staff respond to a verbal challenge. They report staff stabbing them with pens.
60. One immigrant detainee was physically assaulted because he failed to comply with a directive to leave his book in his room when he went to class. Although the child had not exhibited any physical aggression, three SVJC staff members reacted to his refusal by shoving him into his room, placing handcuffs on him, and forcing him to his knees. The staff members removed the mattress from his room and proceeded to push the youth, face down, on the concrete slab where the mattress had been. When they picked him back up, his face red from being pushed into the concrete, they locked him in his room for 8 hours.
61. Other youth have been assaulted by SVJC staff while they were restrained. For example, one youth was removed from class after he swore at a teacher, and staff members took him to his room. When the youth tried to resist, staff members put handcuffs on his wrists. After he was in handcuffs, staff members pushed his face into the wall.
62. Another child was punched by SVJC staff in the chin while his hands were tied behind his back, leaving a bruise. He struggled to break free, and staff members pushed him to the ground, causing him to lose consciousness.
63. As these incidents illustrate, SVJC staff regularly apply force to Plaintiff and other class
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members for no legitimate penological or detention-related purpose, maliciously and sadistically for the very purpose of causing them harm. 64. The predicate for the application of force is often manufactured by SVJC staff, as they intentionally provoke the youth to an aggressive reaction in order to justify physically assaulting them, purportedly as punishment. 65. The degree of force used by SVJC staff is disproportionately severe in relation to any reasonably perceived threat. SVJC staff routinely hit and/or push children to the ground for minor acts of aggression, and they assault the children after they have been restrained, when any threat that the children may have posed has been eliminated. 66. As a result of such malicious and sadistic applications of force, Plaintiff and other immigrant youth have sustained significant injuries, both physical and psychological. 67. Upon information and belief, and based on the accounts of youth who are currently held or were recently held at SVJC, such physical abuse is routinely inflicted on class members.
Confinement and Restraints 68. Defendant has a policy or practice of confining the immigrant detainees to their rooms for
lengthy periods of time and/or using handcuffs and cloth shackles on their hands and feet to restrain them. 69. Defendant utilizes lengthy confinement and the application of restraints for punitive purposes. 70. Immigrant youth are confined to their rooms for minor behavioral infractions, including arguing over the television, not participating in class, complaining about a headache, or accidentally hitting another resident or the ceiling with the ball while playing soccer. 71. Confinement and restraints are also used when youth fight with one another, fight with staff,
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or engage in self-harm. 72. The decision to use restraints on a child for “fighting” is often made arbitrarily, and children
have been restrained merely for being present when a fight breaks out. 73. Moreover, the children are restrained long after any safety or security justification for doing
so has expired. 74. On one occasion, Doe 4 had an altercation with a staff member. Multiple staff members
grabbed his fingers, pulled them back painfully, and placed his knees on the ground before falling on top of him and throwing him to the ground. After placing his hands and feet in shackles, staff members grabbed him by the torso and put him in his cell. Doe 4 was kept in these restraints for an entire day inside his room, during which he was forced to lie face down on the floor with no mattress and with no other clothing but his boxers. 75. One youth was once forced to wear handcuffs on his wrists and shackles on his feet for approximately 10 days in a row after an altercation with a staff member. The staff member entered the youth’s room without his consent and provoked an altercation with the child during which the staff member hit the youth and the youth bit the staff member. Thereafter, the staff member beat the youth, leaving him with bruises on his neck and arms. Subsequently, the youth was placed in the restraints. 76. Another youth was forced to wear handcuffs on his wrists and shackles on his feet several times while he has been restrained in his room. 77. During the time that a child is forced to wear the restraints, they are removed only while he sleeps or eats alone in his room. 78. Plaintiff and other children have suffered serious physical and emotional harm from Defendant’s use of restraints. The restraints are very tight, often leaving bruises and cuts on
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the children’s wrists after they have been taken off. When the use of handcuffs on Doe 4 cut off his circulation, leaving bruises and hurting his wrists, he asked for medicine. Staff told him they would bring him medicine, but they never did. 79. Other children have complained about pain caused by excessively tight handcuffs and have shown injuries to SVJC staff and to ORR’s on-site representatives, but no action to remedy the practice has been implemented. 80. Plaintiff and other children have also been confined to their rooms for 24 hours or more at a time. On some occasions the children are stripped of their clothes, including their underwear, during such lengthy periods of confinement. 81. Doe 4 was once confined to his room for three days following an altercation with a staff member. The first day of restriction, Doe 4 was kept in restraints and left in his boxer shorts. Late in the second day, staff removed the restraints and gave him a blanket. During these days in isolation, he was not provided adequate meals and remained very hungry. On the third day, when he was released from restriction, he was allowed to go to school, and his mattress, books and other belongings were returned to him. 82. On another occasion, Doe 4 was placed in restriction for the entire day because he took a notebook from his classroom to his pod to draw, without first obtaining his teacher’s permission. Staff told him that he was placed in restriction because he took the book without permission and had been disrespectful in discussing the incident. 83. Youth have also reported that at times, staff will escalate interactions and provoke an immigrant child before subsequently punishing the child, including placing the child in isolation. Once, when Doe 4 asked to play with the x-box in his pod, staff said no. When Doe 4 calmly asked why he could not play, staff threatened — and subsequently continued
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to threaten — a time-out rather than answering his question. During this encounter, other staff members were called into the pod. Doe 4 became frustrated and said a bad word, which resulted in his being placed in restriction. On multiple occasions, he has been put in solitary confinement for merely saying angry words without any physical escalation, or for simply asking why points were taken from him. 84. On other occasions, when youth ask SVJC staff to be separated from other youth that are insulting them or attempting to provoke violence or anger, staff will ignore these requests and allow situations to escalate before punishing the provoked youth. 85. Doe 4 has been forced to wear a scratchy and suffocating thick green blanket that covers the entire body for three weeks whenever he was in his cell, including the time when he went to sleep. It is very thick and makes the wearer sweat. Staff told him he had to wear the green blanket because he didn’t listen and didn’t go to school. 86. When Doe 4 was told he had to wear the blanket, staff came and checked on him every 15 minutes to see that he had the blanket over him. They said that they would take everything he had away from him if he did not keep the blanket on. 87. During the period of time in which he was forced to wear the blanket while in his cell, Doe 4’s mattress was also taken away. When he complained to his case worker, he was told that they did not have another mattress and he would have to wait until another youth left and a mattress became available. 88. Doe 4 has also been forced to wear a special suit for one or two days when confined to his room. The pants and shirt of the suit are connected and underwear is worn under the suit. He is not sure why he had to wear the suit, but it may have been because of a time when he was angry, hit the wall, and hurt his arm.
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89. Upon information and belief, the blanket and the suit are used for children who have engaged in self-harm. However, youth have also reported that the green blanket is forced on them when they misbehave, such as if they are deemed to have demonstrated “disrespect” towards a teacher or hit the door of their room in frustration.
90. Other youth have been subjected to solitary confinement for more than a day. When placed in solitary confinement, staff take away the youth’s mattress, blanket, and clothes.
91. Immigrant youth at SVJC have also have been strapped to a restraint chair as a form of punishment. While the youth are in the chair, their arms, legs, and torso are strapped down, and a mask is sometimes placed over their head. The children are sometimes strapped to the chair wearing nothing but their underwear, and in some instances have been subjected to urinating on themselves when staff refused their pleas to be unbound so they could use the restroom. Youth have been strapped to the chair for several hours at a time.
92. Although Doe 4 has not been placed in the restraint chair during his detention at SVJC, he and other immigrant youth have been threatened with punishment in the chair if they misbehave or do not listen to staff members.
93. There is no legitimate penological or detention-related justification for using confinement or restraints in the described manner, as these measures are used long after control of the subject child has been secured and there is no threat of any further physical altercation. Defendant’s conduct is motivated by a desire to harass or humiliate the detained children in its care or to provoke a response that justifies the use of even further force by staff. Inadequate Mental Health Care
94. Defendant fails to provide minimally adequate mental health services for the immigrant detainees in its custody and is deliberately indifferent to their serious psychological and/or
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medical needs. 95. Defendant has a policy or practice of denying Plaintiff and class members access to
appropriate mental health treatment and counseling with licensed mental health professionals, in violation of well-established professional standards. 96. SVJC staff members are unable to recognize and properly react to the obvious needs of youth with known, demonstrable, serious mental health disorders and instead further taunt and harass the children when they exhibit signs of distress. 97. Youth who arrive at SVJC with diagnosed mental health conditions do not receive adequate or appropriate follow up care or treatment following their arrival at the facility. Their mental health treatment consists of meeting with a licensed professional counselor and taking prescribed medications. 98. In his meetings with his counselor, Doe 4 regularly asks to meet with a psychologist. He has explained that he wants to talk to a psychologist to help him deal with his anger and frustration. Despite his repeated requests, he has met with a psychologist only once during his six months at SVJC. 99. Staff have often refused Doe 4 access to his counselor outside of their routine schedule. For example, after Doe 4 was placed in restriction when he took a notebook to his pod to draw without first obtaining his teacher’s explicit permission, see supra at ¶ 82, he was allowed to go to the gym. He sat in a chair and asked to speak with his counselor to talk through his anger about the situation. The staff member refused and demanded that Doe 4 leave his seat. When Doe 4 again asked to speak to his counselor, the staff member called other staff for assistance and ordered them to return Doe 4 to his cell. The staff members grabbed him by his hands and arms, and he asked them to not touch him. The staff ignored him, grabbed his
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hands and arms, put him in his cell, and took away all his belongings. He was then placed in solitary confinement for approximately seven to eight hours. 100. Youth at SVJC frequently engage in self-harm. Self-harm includes cutting arms, wrists or other places on the body with objects, such as pieces of plastic or glass. It may include banging the head against the wall or floor. Youth, including a former Plaintiff in this action, have attempted suicide or expressed suicidal ideation while detained at SVJC. 101. Youth who engage in self-harm report that they started the self-harming conduct after being placed in SVJC or ORR custody. 102. Doe 4 has engaged in self-harm at SVJC. He began scratching and cutting himself after he arrived at SVJC. He has hit his head against the wall, and on one occasion he hit his arm against the wall and broke it, requiring a cast. 103. The only response from staff to Doe 4’s self-harm was to tell him not to do it again and to warn him that further attempts at self-harm would result in the loss of privileges. No one discussed with him why he did it. He did not talk to a psychologist after incidents of selfharm. 104. Doe 4 is aware that other youth engage in self harm. Some youth try to drink shampoo. Another youth recently was hitting his head against the wall of his room, resulting in bleeding, before he was subdued by staff. The youth are given bandaids for self-inflicted cuts. 105. Doe 4 engaged in cutting to deal with feelings of anger and frustration. Upon information and belief, these are symptoms of past trauma and untreated mental health conditions, which are exacerbated by the conditions in the facility and the lack of meaningful treatment to which he and other youth are subjected by staff.
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106. The self-harming behavior of Doe 4 and other detained youth is a manifestation of serious, untreated mental health need.
107. SVJC staff are aware that immigrant youth engage in cutting and other self-harming behaviors. Doe 4 has reported his incidents of self-harm to his counselor on multiple occasions. Other youth have made similar reports.
108. SVJC staff are deliberately indifferent to the children’s serious mental health needs, as they are aware of the harm that Doe 4 and others are causing themselves by cutting and other behaviors, and they disregard the excessive risk of future harm – namely, serious injury and possibly death – to the children’s health and safety if they do not receive appropriate treatment for these needs.
109. SVJC staff have told youth and other staff on multiple occasions that they “don’t care” that the youth are cutting themselves. Other youth have similarly been told, “Kill yourself already,” by SVJC staff when they have learned that the youth have engaged in cutting.
110. Rather than treat the underlying causes of this behavior, SVJC staff have punished youth for engaging in self-harm. Engaging in self harm is considered a “bad behavior” which is punishable by segregation and confinement and/or use of restraints.
111. SVJC staff have responded to suicide attempts by removing the youth’s clothes, placing the youth on restriction for one or more days, and allowing them to leave their room only for classes.
112. Youth have also been strapped to the restraint chair as punishment for self-harm. 113. Upon information and belief, youth who attempted suicide received no treatment beyond that
accorded to any other detainee – i,e., periodic visits with counselors who admonish the youth to “behave.”
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114. Isolating, punishing, and failing to provide clearly-needed mental health treatment to children who are or may be suicidal is extremely damaging to their well-being, and violates well-established professional standards.
115. Plaintiffs have been and continue to be harmed by the lack of appropriate, trauma-informed mental health treatment. CLASS ACTION ALLEGATIONS
116. John Doe 4 brings this suit on his own behalf and on behalf of all UACs who are, or will in the future be, detained at SVJC.
117. The class is so numerous that joinder of all members is impractical. SVJC has the capacity to house 63 youth at one time and approximately 24-30 immigrant youth are detained there currently. Further, because children remain at SVJC for varying lengths of time, and the population changes frequently and unpredictably, the class also includes former SVJC residents who may return there in the future as well as future members whose names are not known at this time. Fed. R. Civ. P. 23(a)(1).
118. There are questions of law and fact common to all class members, including but not limited to the Defendant’s failure to protect class members from harm; the Defendant’s failure to provide class members with constitutionally adequate mental health care; the Defendant’s policy and practice of subjecting class members to inappropriate restraint and prolonged periods of seclusion; and the Defendant’s failure to otherwise provide class members with constitutionally safe and humane conditions of confinement. Fed. R. Civ. P. 23(a)(3).
119. Because the Defendant’s policies, practices, and procedures challenged in this Second Amended Complaint apply with equal force to the named Plaintiff and the other members of the class, the claims of the named Plaintiff are typical of the class in general. Fed. R. Civ. P.
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23(a)(3). 120. The named Plaintiff will fairly and adequately represent the interests of the class. He
possesses a strong personal interest in the subject matter of the lawsuit and is represented by experienced counsel with expertise in class action and civil rights litigation in the federal courts. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). 121. The Defendant has acted or failed to act on grounds generally applicable to the class in that Defendant’s policies and practices in violation of the Plaintiff’s constitutional rights have affected all class members. Accordingly, preliminary as well as final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
NECESSITY FOR INJUNCTIVE RELIEF 122. The Defendant has acted and continues to act in violation of the law as described above. The
named Plaintiff and the class he seeks to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendant, the named Plaintiff, and the class he seeks to represent, have suffered serious, imminent, and irreparable physical, mental, and emotional injuries.
COUNT I Violations of the Fifth and Fourteenth Amendments
(42 U.S.C. § 1983 – Excessive Use of Force) 123. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1
through 122 as if fully set forth herein. 124. The Due Process Clause of the Fifth Amendment requires that civil detainees be protected
from harm and kept physically safe and secure. This right is enforced against the States through the Fourteenth Amendment.
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125. This Fifth Amendment right includes the right to be free from excessive use of force by staff. 126. As described above, Defendant subjected Plaintiff to unnecessary and excessive force when
Plaintiff was punched, hit, shoved, and otherwise physically assaulted by SVJC staff. 127. Any perceived need for the application of force in each such instance in which it was applied,
if warranted at all, dissipated at the moment control was achieved and the youth involved was controlled or restrained. Indeed, Plaintiff Doe 4 was repeatedly subjected to force when he had not engaged in physically threatening behavior toward staff that warranted the use of any force, much less restraint by multiple staff members. 128. Despite the fact that Defendant achieved control, Defendant would routinely take further punitive action against the offending youth by, among other things, strapping them to a chair for hours at a time; confining them to their rooms for hours or even days, sometimes without clothing; or forcing them to wear handcuffs and shackles on their hands and feet for up to 10 days at a time. 129. Defendant wantonly engaged in this injurious conduct by applying force maliciously and sadistically for the very purpose of causing harm, rather than in a good faith effort to maintain or restore discipline, particularly in light of the minimal severity of the youths’ perceived infractions and, in many cases, their extensive and detailed record of mental health diagnoses. 130. Defendant’s excessive use of force causes physical pain and suffering, mental anguish, emotional distress, the deterioration of Plaintiff’s and other youths’ mental health and an undue risk of serious injury and/or premature death. 131. Defendant’s refusal to protect children from harm, and to otherwise keep them physically safe and secure and free from unconstitutional practices like excessive use of restraints and prolonged confinement, violates the constitutional rights of the Plaintiff and class members
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under the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. 132. Defendant’s policies, practices, acts and/or omissions have placed or will place Doe 4 and the members of the class he seeks to represent at an unreasonable risk of suffering new or worsening serious illnesses, injuries, and harm. 133. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT II Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services) 134. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 122 as if fully set forth herein. 135. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care, during their detention. This right is enforced against the States through the Fourteenth Amendment. 136. As described above, Defendant failed to provide necessary care and treatment for detainees’ known and well-documented mental health conditions. 137. In particular, Defendant denied Plaintiff and other detainees the necessary medical and psychological care required to treat individuals who are psychologically traumatized and/or have engaged in self-mutilation. 138. Defendant engaged in this injurious conduct with deliberate indifference to Plaintiff’s and other detainees’ serious psychological and/or medical needs, placing these youth in
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substantial risk of serious harm. 139. Defendant’s deliberate indifference to Plaintiff’s and other detainees’ serious mental health
needs has caused, and continues to cause, Doe 4 and other youth physical pain and suffering, mental anguish, emotional distress, the deterioration of their mental health, an undue risk of serious injury and/or premature death. 140. Defendant’s policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. 141. Defendant’s policies, practices, acts and/or omissions have placed or will place Doe 4 and the members of the class he seeks to represent at an unreasonable risk of suffering new or worsening serious mental illnesses, injuries, and harm. 142. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT II (IN THE ALTERNATIVE) Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Failure to Provide Adequate Mental Health Services) 143. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 122 as if fully set forth herein. 144. The Due Process Clause of the Fifth Amendment requires that all individuals who are detained by the State be afforded adequate medical care, including mental health care, during their detention. This right is enforced against the States through the Fourteenth Amendment.
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145. As described above, Defendant failed to provide necessary care and treatment for Plaintiff’s and other detainees’ known and well-documented mental health conditions.
146. In particular, Defendant denied Plaintiff and other detainees the necessary medical and psychological care required to treat individuals who are psychologically traumatized and/or have engaged in self-mutilation.
147. By failing to provide Plaintiff and other detainees with appropriate mental health care and treatment, Defendant has failed to exercise appropriate professional judgment, and/or exercised decision-making that is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the Defendant has not actually based its decision-making on such a judgment.
148. Defendant’s failure to adequately treat Plaintiff’s and other detainees’ mental health needs has caused, and continues to cause, physical pain and suffering, mental anguish, emotional distress, the deterioration of their mental health, an undue risk of serious injury and/or premature death.
149. Defendant’s policies, practices, acts and/or omissions constitute a failure to exercise professional judgment and/or a substantial departure from accepted professional judgment, practice, or standards as to the appropriate treatment of the mental health needs of the immigrant youth residing at SVJC and violate the Fifth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
150. Defendant’s policies, practices, acts and/or omissions have placed or will place Plaintiff Doe 4 and the members of the class he seeks to represent at an unreasonable risk of suffering new or worsening serious mental health illnesses, injuries, and harm.
151. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions
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set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
COUNT III Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of Race) 152. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 122 as if fully set forth herein. 153. Plaintiff and the members of the class enjoy a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of their race. 154. Plaintiff and the members of class he seeks to represent, who are Latino, have been treated differently than Caucasian youth detained at the facility with whom they are otherwise similarly situated. 155. Defendant’s actions towards Plaintiff and other immigrant youth indicate that such unequal treatment is the result of intentional or purposeful discrimination. 156. There is no legitimate penological or detention-related interest or rational basis for subjecting Plaintiff and other immigrant youth to unequal treatment on the basis of their race. 157. Due to Defendant’s arbitrary and irrational discrimination against Plaintiff and class members on the basis of their race, the Defendant has denied Plaintiff and other similarly situated youth their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. 158. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and
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will cause irreparable harm to these youth. COUNT IV
Violations of the Fifth and Fourteenth Amendments (42 U.S.C. § 1983 – Discrimination on the Basis of National Origin) 159. Plaintiff re-alleges and incorporates by reference the allegations set forth in Paragraphs 1 through 122 as if fully set forth herein. 160. Plaintiff and members of the class enjoy a Fourteenth Amendment right to due process under the laws, including the right to be free from discrimination on the basis of their national origin. 161. Plaintiff and members of the class, who are citizens of Mexico and Central America, have been treated differently than United States citizen youth detained at the facility with whom they are otherwise similarly situated. 162. Defendant’s actions towards Plaintiff and other immigrant youth indicate that such unequal treatment is the result of intentional or purposeful discrimination. 163. There is no legitimate penological or detention-related interest or rational basis for subjecting Plaintiff and other immigrant youth to unequal treatment on the basis of their national origin. 164. Due to Defendant’s arbitrary and irrational discrimination against Plaintiff and class members on the basis of their national origin, the Defendant has denied Plaintiff and others similarly situated their right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. 165. Unless restrained by this Court, Defendant will continue to engage in the acts and omissions set forth herein that deprive immigrant detainees confined at SVJC of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youth.
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PRAYER FOR RELIEF WHEREFORE, Plaintiff John Doe 4, on his own behalf and on behalf of the class he seeks to represent, respectfully requests that the Court:
a. Declare that the acts and omissions of the Defendant as alleged in this Second Amended Complaint violate the Constitution and laws of the United States;
b. Enter a preliminary and permanent injunction requiring the Defendant, its agents, employees and all persons acting in concert with or on behalf of the Defendant to cease their unconstitutional and unlawful practices;
c. Allow, upon appropriate motion, the substitution of Doe 4 in place of John Does 1, 2 and 3 as representative of the Class certified by this Court pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2);
d. Designate undersigned counsel as attorneys for the certified class; e. Award to the Plaintiff and class members reasonable costs and attorney's fees; and f. Grant the Plaintiff and all members of the class all such other further relief as the
Court deems just. JURY DEMAND
Plaintiff demands trial by jury for all claims which may be so tried.

Dated: July 11, 2018

Respectfully submitted,
By: /s/ Hannah M. Lieberman Hannah Lieberman (admitted pro hac vice) Tiffany Yang (admitted pro hac vice) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone)

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(202) 319-1010 (facsimile) hannah_lieberman@washlaw.org tiffany_yang@washlaw.org Theodore A. Howard (admitted pro hac vice) Bradley C. Tobias (VSB No. 88046) WILEY REIN LLP 1776 K Street NW Washington, D.C. 20006 (202) 719-7120 (telephone) thoward@wileyrein.com btobias@wileyrein.com Attorneys for Plaintiff John Doe 4
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CERTIFICATE OF SERVICE I hereby certify that on this 11th day of July, 2018, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which will then send a notification of such filing (NEF) to the following counsel of record: Jason A. Botkins Melisa G. Michelsen LITTEN & SIPE, LLP 410 Neff Avenue Harrisonburg, VA 22801 (540) 434-5353 (telephone) (540) 434-6069 (facsimile) jason.botkins@littensipe.com melisa.michelsen@littensipe.com
By: /s/ Hannah M. Lieberman Hannah Lieberman WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 (telephone) (202) 319-1010 (facsimile) hannah_lieberman@washlaw.org
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

12/13/2018 S/J.Vasquez

JOHN DOE, by and through his next friend, )

NELSON LOPEZ, on behalf of himself and )

all persons similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

SHENANDOAH VALLEY JUVENILE

)

CENTER COMMISSION,

)

)

Defendant.

)

Civil Action No. 5:17-cv-97
By: Elizabeth K. Dillon United States District Judge

MEMORANDUM OPINION

I. BACKGROUND

Doe 4 and the class he represents bring this action against Shenandoah Valley Juvenile

Center Commission (Commission). The members of the class (the Detainees) are Latino

immigrant youths who are or may be confined in the future at the Shenandoah Valley Juvenile

Center (the Center). (Second Am. Compl. 1–2; Dkt. No. 68.) Doe 4 is a seventeen-year-old

Honduran citizen who came to the United States to seek protection as a refugee. (Id. at 3.) Doe

4 and the Detainees who came into the United States without proper authorization are detained at

the Center, per the decision of the U.S. Department of Health and Human Services’ Office of

Refugee Resettlement (ORR). (Id. at 1.) The Center holds both unaccompanied alien children

(UAC) and United States citizens who have been adjudicated as juvenile delinquents. (Id. at 6.)

The Detainees allege that they are subjected to unconstitutional conditions and have

consequently engaged in self-harm and suffered abuse. (Id. at 1–2.) They bring this action

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under 42 U.S.C. § 1983, alleging excessive use of force, failure to provide adequate mental
health services, and discrimination on the bases of race and national origin.1 (Id. at 22–28.)
Plaintiffs seek declaratory and permanent injunctive relief. Specifically, they ask that the
court declare the Commission’s acts and omissions unconstitutional, that the Commission be
ordered to cease its alleged unconstitutional policies and practices, and that the Commission be
ordered to provide class members with care that satisfies constitutional standards. (Id. at 2, 29.)
II. DISCUSSION
A. Motions to Exclude Experts
Defendant has filed three motions in which it seeks to exclude the testimony and/or
reports of opposing experts. The motions to exclude are based on an alleged lack of
qualifications of a given expert or on assertions that the testimony is inadmissible under Federal
Rule of Evidence 702 and the standards established in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
Rule 702 governs the admissibility of expert testimony. It states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
1 At the summary judgment hearing, plaintiffs’ counsel withdrew the national origin and race discrimination claims.
2
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Under Rule 702, a district court acts as gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 588 (1993). The proponent of the testimony must establish its admissibility by a preponderance of proof, although it need not prove its expert’s theory is correct. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); Maryland Cas. Co. v. Therm–O–Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998).
The Fourth Circuit has explained the Daubert standard as a “two-step gatekeeping function” required of trial courts. First, the trial court must ask whether proffered scientific evidence is valid and reliable. United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000). The second question is whether the evidence will help the trier of fact, which is generally a question of relevance, or “fit”: assuming the evidence is reliable, will it “assist the trier of fact to understand or determine a fact in issue.” Maryland Cas. Co., 137 F.3d at 784 (quoting Daubert, 509 U.S. at 592).
1. Defendant’s Motion in Limine to Exclude Expert Testimony of Paul Diver, Ph.D. Defendant first moves to exclude the report and testimony of Dr. Paul Diver. Dr. Diver is a senior managing consultant with experience teaching and applying statistical techniques in a wide variety of industries. Plaintiffs have retained Dr. Diver as an independent statistical expert in this case. In his report, he purports to analyze incidents at the Center involving class members spending time in seclusion and the use of force against class members, although it appears nonclass members may be included. He analyzes these incidents before and after the defendant implemented a change in its behavioral management program, and he also analyzes when these incidents occurred against class members who were exhibiting self-injurious behavior. (Report of Dr. Diver, Ex. 2, Dkt. No. 104-2.) To create his report, Dr. Diver reviewed reports and
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documents related to the relevant incidents and compared this data against the defendant’s internal standards regarding force and restraints, the Juvenile Detention Alternatives Initiative (JDAI) standard, and the American Medical Association (AMA) standard. (Id. at 3.)
Defendant argues that Dr. Diver’s expert testimony should be excluded for three reasons: his analysis is 1) irrelevant under Federal Rule of Evidence 702(a), 2) lacks an adequate factual foundation under Rule 702(b), and 3) is fundamentally flawed and unreliable under Rule 702(c).
First, defendant argues that Dr. Diver’s analysis is irrelevant because, although the data he relied on pertained to 131 UACs, only three of those UACs were residents at the Center when the class was certified. Further, defendant asserts that the timeframe employed by Dr. Diver is irrelevant because it spanned from June 2015 to May 2018, while plaintiffs defined the relevant time period in their discovery requests as October 4, 2015, to May 1, 2018. Last, because Dr. Diver did not consider all the incidents that did not lead to force or confinement, he improperly limited his relied-upon data. Defendant suggests, then, that the report cannot provide a “reliable sense of the frequency with which force is used at SVJC.” (Mem. Supp. Mot. Exclude Expert Test. Dr. Paul Diver 7–11, Dkt. No. 104.)
Second, defendant contends that Dr. Diver’s analysis is based on an inadequate factual foundation because he relied on a spreadsheet provided by plaintiffs’ counsel and did not personally review the source data from which the spreadsheet was created, thereby failing to meet the proponent’s burden to establish that expert opinion is based on reliable data. Defendant also questions the probative value of Dr. Diver’s report because he did not consider the reason why force or confinement was used in each incident and whether it was justified. By failing to consider the factual circumstances of these incidents, defendant contends that it cannot be
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determined whether the use of force or confinement was “justified, appropriate or objectively unreasonable.” (Id. at 11–14.)
Finally, defendant asserts that Dr. Diver’s analysis as to room confinement is fundamentally flawed and unreliable because he included incidents during which UACs refused to leave, voluntarily stayed, or were sleeping in their rooms. In addition, defendant emphasizes that Dr. Diver admitted to two instances of double-counting during his deposition. (Id. at 14– 20.)
In their opposition, plaintiffs first explain that the purpose of Dr. Diver’s report was to assist the court by quantifying and synthesizing the use of isolation and force shown in the thousands of pages of reports produced by defendant. (Pls.’ Mem. Opp’n Def.’s Mot. Exclude Expert Test. Dr. Paul Diver 2–3, Dkt. No. 124.) Plaintiffs contend that this report will help the court determine if the defendant’s practices violate constitutional norms because Dr. Diver found: (1) 87.2% of the 938 behavioral incidents between June 2015 and May 2018 exceeded the AMA standard and the JMAI benchmark; (2) 426 incidents involved force, a number of which violated the Center’s own standards; (3) the change in the defendant’s behavioral management program did not change the use of isolation and excessive force; and (4) many incidents involved youth with self-injurious behavior. Further, plaintiffs reject Dr. Diver’s double-counting as a significant issue, pointing out that the incidents of seclusion only decreased from 972 to 938 and his conclusion that the defendant engaged in excessive isolation and physical force did not change after making corrections. (Id. at 4–7.)
Plaintiffs also argue that Dr. Diver’s report is reliable because he is permitted to rely on data prepared by third parties under Federal Rule of Evidence 703. (Id. at 10–11.) Plaintiffs contend that the 938 incidents of isolation and 426 instances of force are “plainly relevant” to
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show the pervasiveness and recurrence of the defendant’s practices over a period of time. (Id. at 11–13.) As to the lack of factual circumstances surrounding each incident, plaintiffs argue that the purpose of Dr. Diver’s report was not to explore the justification for force or confinement. (Id. at 17–20.)
In its reply, defendant repeats that the report is flawed because the reasonableness of force cannot be determined without context, so it is valueless in determining whether the use or duration of force was unconstitutional. (Reply Br. Supp. Def.’s Mot. Exclude Expert Test. Dr. Paul Diver 7, Dkt. No. 139.) It asserts that, by omitting the underlying reasons, “Diver has provided the Court with only skewed numbers without any context.” (Id. at 8.)
The court finds that Dr. Diver’s expert testimony and analysis is inadmissible to the extent it is introduced to show an unconstitutional custom or practice of the defendant. Viewed in light of its “quantitative” purpose—as asserted by plaintiffs—Dr. Diver’s report simply adds up the number of behavioral incidents when force or confinement was used during the relevant time period. Without any consideration whatsoever of the reasons why force was used or the underlying facts of the situation during these particular instances, the sheer numbers on their own are not relevant to determine whether those incidents involved unconstitutional behavior or whether those incidents caused by a custom or practice that thereby violated plaintiffs’ constitutional rights. See Sigle v. City of Chicago, No. 10-C-04618, 2013 WL 1787579, at *8 (N.D. Ill. Apr. 25, 2013) (“[E]vidence of statistics and [complaints] alone are insufficient to support a Monell claim.”) Further, although plaintiffs asserted in their oral argument that Dr. Diver’s analysis is relevant because their other experts rely on it, defendant clarified that Dr. Lewis limited his data to Does 1–4 and Dr. Weisman only reviewed abuse complaints from
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sixteen UACs. Thus, plaintiffs’ other experts are not relying on Dr. Diver’s analysis to conduct their own, further lessening the relevance of Dr. Diver’s report.
Contrary to plaintiffs’ argument at the hearing on this motion, the number of incidents on its own cannot provide context to a “policy or practice” case when the numbers are given without explanation. The court must determine whether incidents involving unconstitutional practices were widespread at the Center, and offering figures that add up the number of incidents does not assist this inquiry. See, e.g., Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (finding that an expert “offered no qualitative analysis of [complaints] and how they were similar to the present case,” so his conclusion “that the Police Department must have an unwritten policy of condoning excessive force because of the mere number of complaints previously filed against it” was found to be “insufficient to create a genuine issue of material fact on which a jury could reasonably find that such a policy exists”); Strauss v. City of Chicago, 760 F.2d 765, 768–69 (7th Cir. 1985) (rejecting plaintiff’s attempts to use statistical summaries of complaints filed with police department to plead that the city was the proximate cause of his illegal arrest, where plaintiff failed to identify what made prior arrests illegal or to show that similar illegality was involved in his case).
However, the court also finds that Dr. Diver’s analysis regarding the defendant’s violations of its own policies is relevant2 and therefore admissible for the limited purpose of showing attribution to the defendant and deliberate indifference. The defendant’s failure to follow its own policies could be relevant to show that any constitutional violation is attributable to it as a result of a culture of only reviewing staff’s actions when a specific complaint has been made.
2 Any analysis under the JDAI or AMA standards is irrelevant and inadmissible.
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Generally, a municipality’s failure to comply with its own policies does not amount to a constitutional violation. See Jackson v. Sampson, 536 F. App’x 356, 357–58 (4th Cir. 2013) (finding that failure to follow internal policies by prison officials was “not actionable under § 1983 unless the alleged breach of policy rises to the level of a constitutional violation”). Notwithstanding the general rule, the defendant’s failure is narrowly relevant for the elements of attribution to the municipality, deliberate indifference, and causation in the overall Monell analysis. See Spell v. McDaniel, 824 F.2d 1380, 1387, 1391 (4th Cir. 1987).
The data from which Dr. Diver’s report was created was held by the Center and likely available to the Commission, so individuals with policy-making authority had these recorded incidents in which their policies were continually violated according to Dr. Diver, available to them. This potentially shows that plaintiffs may be able to prove that the Center and Commission disregard violations of their own policies and limit their review to specific complaints made by individuals at the Center. Consequently, this could be relevant to argue that if the Center never looks at violations of its own policies unless a complaint is made, and if some of those policy violations rise to the level of unconstitutional conduct, then the Center, and thereby the Commission, acts with deliberate indifference to a consistent practice and itself engages in a practice of purposeful ignorance. Indeed, by not addressing the numerous instances where its own policies were violated, the defendant’s alleged failure could be relevant to show either that it “knowingly ignored a practice that was consistent enough to constitute custom” or “neglected to respond ‘to a need . . . . in such a manner as to show deliberate indifference to the risk that not addressing the need will result in constitutional violations.’” Hayes v. United States, No. 1:16-cv-00131, 2016 WL 3465950, at *3 (D.D.C. June 13, 2006) (quoting Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004)).
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Essentially, evidence that the defendant ignored its own policies that are created—at least in part—to avoid constitutional violations could establish an increased risk that a constitutional violation would occur, thereby demonstrating deliberate indifference. Dr. Diver’s report is thus admissible as it may show that there was a consistent practice of ignoring violations of defendant’s own policies sufficient to constitute a custom, though not necessarily itself an unconstitutional practice, and that the defendant’s failure may show deliberate indifference to the risk that its failure to address these violations would allow constitutional violations to occur. Nevertheless, plaintiffs must still prove an unconstitutional custom or practice to succeed on their Monell claim. Spell, 824 F.2d at 1386.
For these reasons, Dr. Diver’s expert testimony and analysis are admissible for the narrow and limited purpose described above.
2. Defendant’s Motion in Limine to Exclude Expert Testimony of Dr. Andrea Weisman
Defendant next moves to exclude any testimony and opinions of Dr. Weisman. She is a clinical psychologist with experience evaluating juveniles who have been in confinement, including juveniles who have experienced trauma and have mental or intellectual disabilities. (Report of Dr. Weisman 1, Ex. 2, Dkt. No. 102-2.) Dr. Weisman was retained by plaintiffs to create a report from her review of the declarations of six UACs and clinical progress notes for three UACs at the Center, the defendant’s policies related to mental health, complaints from UACs, psychiatric evaluations, the deposition of the Center’s deputy director of programs, the declaration of another expert retained by plaintiffs, and relevant statistics. In doing so, she relied on her “knowledge of best practices in the field of juvenile justice” and “national standards promulgated by the National Commission on Correctional Health Care and the Juvenile Detention Alternatives Initiative.” (Id. at 3–4.) Dr. Weisman concluded that the mental health
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services provided at the Center fall far below all “nationally accepted standards for the operation of juvenile detention facilities,” and that the “aggregate levels of the use of force, restraints, including the chair, and isolation” are “shockingly high,” “demonstrate that the Center continues to violate their own policies and practices by placing youth in isolation for extended periods of time,” and show that these practices exceed what is permitted under JDAI’s and other organizations’ standards regarding solitary confinement of juveniles. (Id. at 20–21.)
Defendant argues that Dr. Weisman’s opinions and expert testimony should be excluded under Federal Rule of Evidence 702 because: 1) they are based on aspirational standards, 2) Dr. Weisman did not properly apply those standards in her assessment, 3) her opinions are based on insufficient and/or inaccurate facts, and 4) her opinions extend beyond her area of expertise. (Mem. Supp. Mot. Exclude Expert Test. Dr. Andrea Weisman 2–3, Dkt. No. 102.)
In assessing Dr. Weisman’s report against the requirements of Federal Rule of Evidence 702, defendant argues that Dr. Weisman’s testimony regarding JDAI standards will not help the trier of fact. (Id. at 3–4, 6.) Specifically, defendant contends that Dr. Weisman’s opinions are based almost exclusively on the JDAI standards, which are not applicable to the Center. The defendant’s administration of its UAC program is governed by an agreement with the Office of Refugee Resettlement (ORR Agreement). The ORR Agreement sets forth specific program requirements for the defendant’s treatment of UACs, and requires the defendant to comply with conditions of the “Flores Settlement Agreement” and any applicable state regulations. Defendant references Dr. Weisman’s deposition testimony that she did not consider these legal requirements in reviewing the defendant’s policies, but rather based her opinions almost exclusively on JDAI standards. (Id. at 6)
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Defendant argues that the comprehensive and demanding JDAI standards are an aspirational goal, rather than a minimum requirement for the Center, and that there is no basis or authority for applying the JDAI standards to the Center. (Id. 6–8.) Defendant maintains that Dr. Weisman improperly “seeks to opine on the legal standard of conduct required of [the defendant] in its treatment of UAC’s” and that her testimony should be excluded because she uses aspirational standards as a proxy for legal requirements. (Id. 8–9.)
In response, plaintiffs contend that Dr. Weisman’s reliance on the JDAI standards in forming her opinions is not grounds for exclusion and note that Dr. Weisman also relied on national standards promulgated by the National Commission on Correctional Health Care (NCCHC). (Pls.’ Opp’n to Def.’s Mot. Exclude Expert Test. Dr. Andrea Weisman 5, Dkt. No. 125.) Plaintiffs contend that Dr. Weisman considered a range of sets of standards in assessing SVJC, but even if she had only considered the JDAI standards, this approach should be explored by the defendant on cross examination and in the weight the court gives to the testimony. (Id. at 5–6.)
The court finds that Dr. Weisman’s expert testimony should be excluded for two reasons. First, her conclusions regarding the mental health treatment provided at the Center are irrelevant because the court is granting summary judgment in favor of defendant on the adequate mental health claim. Second, Dr. Weisman’s opinions and conclusions regarding the use of force, restraints, the restraint chair, and isolation shall be excluded because they are analyzed under standards that are inapplicable to the defendant and beyond what is constitutionally required. Plaintiffs have not adequately explained to the court how Dr. Weisman’s conclusions, drawn from standards that go above and beyond minimum constitutional standards, are relevant to determine the facts at issue here. Because the standards Dr. Weisman applied in her report are
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not relevant to the court’s analysis as the trier of fact, the coinciding opinions are also irrelevant. Therefore, Dr. Weisman’s expert testimony shall be excluded.
3. Defendant’s Motion in Limine to Exclude Expert Testimony of Gregory Lewis, Psy. D.
Defendant also moves to exclude Dr. Lewis’s opinions and expert testimony. Dr. Lewis is a licensed clinical psychologist and was retained as an expert witness for plaintiffs to address unaccompanied children and complex trauma and provide his “opinions regarding the appropriateness of care offered to the plaintiffs at Shenandoah and how their experiences there impacted them,” based on his psychological evaluation of Does 1 and 4 and their treatment and confinement conditions, his review of the Center’s documents related to Does 2 and 3, and standards of care for treating youth in detention. (Report of Dr. Lewis 1, Ex. B, Dkt. No. 106-2.) Defendant asserts that his opinions lack an adequate factual basis and are insufficient under Rule 702(b) of the Federal Rules of Evidence and that his opinions regarding the standard of care applicable to the Center are subjective and not the product of reliable principles and methods under Rule 702(c) of the Federal Rules of Evidence. (Mem. Supp. Def.’s Mot. Exclude Expert Test. Gregory N. Lewis, Psy. D. 1–2, Dkt. No. 106.)
First, defendant argues that Dr. Lewis’s opinions are unreliable because he failed to review or consider sufficient information by only evaluating Does 1 and 4, reviewing records for Doe 1 and limited records for Does 2, 3, and 4, and reviewing the records of three other youths. (Id. at 5–6.) Second, defendant alleges that Dr. Lewis’s opinion that trauma-informed care is the standard of care applicable to the Center is subjective and not the product of reliable principles and methods. Dr. Lewis based this opinion on: (1) the aspirational standard held out by the National Child Traumatic Stress Network (NCTSN); (2) a 2012 publication from the Attorney General; and (3) his own experience. Defendant contends that these sources are inadequate for
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expert testimony. Defendant argues that neither the NCTSN nor the Attorney General’s report are binding, regulatory, or applicable to the Center or detention centers like it “in any way,” and that these standards are advisory and aspirational. (Id. at 7–10.) Third, defendant asserts that Dr. Lewis cannot testify to causation or “attribute a youth’s detention at SVJC to current diagnoses or symptoms” because his initial evaluation of Doe 1 was done at the request of an advocacy group rather than Doe 1’s attorneys, so Dr. Lewis was evaluating him to make a treatment recommendation, not to inform the court of how his individual psychological problems affect the legal question in this case. Additionally, defendant states that Dr. Lewis acknowledged “it is impossible to connect specific trauma to a particular diagnosis or manifestation in an individual,” and therefore, he cannot connect his evaluations to the Center’s failure to apply trauma-informed care. (Id. at 11.)
Plaintiffs respond that Dr. Lewis relied on sufficient information to form his opinions and the significance of the materials he considered can be explored on cross examination. (Pls.’ Opp’n to Def.’s Mot. Exclude Expert Test. Gregory N. Lewis, Psy. D. 9–10, Dkt. No. 126.) Plaintiffs also contend that trauma-informed care is widely accepted, highly reliable, and not susceptible to a Daubert challenge because defendant cannot argue that it is “based on untested methods, [has] not withstood peer review and publication, [or] lack[s] standards for its application or has not been accepted in its field.” (Id. at 12.) In addition, plaintiffs argue that Dr. Lewis had more than enough information and evidence to conclude that the defendant’s practices harmed plaintiffs and he identified how the experience at the Center exacerbated existing trauma for each child, thereby establishing a sufficient causal link between the defendant’s practices and the damages sustained by the children. (Id. at 15–21.) Last, plaintiffs contend that Dr. Lewis’s
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opinions apply to the class as a whole because they depend on the common needs of similarly situated children and the Center’s failure to respond appropriately. (Id. at 22.)
Defendant countered plaintiffs’ response by again asserting that Dr. Lewis’s opinions concerning trauma-informed care merely constitute his subjective opinion, and that he failed to consider sufficient evidence to form his opinion. (Reply Br. Supp. Def.’s Mot. Exclude Expert Test. Gregory N. Lewis, Psy. D. 2, Dkt. No. 138.)
Because the court is granting summary judgment in defendant’s favor on the failure to provide adequate mental health services claim, Dr. Lewis’s opinions related to the mental health care provided at the Center are irrelevant and therefore excluded. As to the rest of his opinions, the court makes several rulings. First, Dr. Lewis’s opinions regarding the Center’s negligence in its treatment of UACs are inadmissible because a finding of negligence is insufficient to prove a constitutional violation and therefore irrelevant to the inquiry before the court. See, e.g., Estelle v. Gamble, 429 U.S. 97, 105–06 (1976) (holding that mere negligence, malpractice, or incorrect diagnosis does not amount to a constitutional violation). Second, Dr. Lewis’s opinions regarding trauma-informed care and the Center’s failure to apply this approach to its treatment of UACs are inadmissible because this simply is not the minimum constitutional standard. A traumainformed approach to juvenile detention has only been implemented in a handful of states, including Missouri, New York, Ohio, North Carolina, and Kentucky. (Pls.’ Opp’n to Def.’s Mot. Exclude Expert Test. Gregory N. Lewis, Psy. D. 13.) Moreover, at least one court has recognized that trauma-informed care is not only more demanding than the minimum constitutional standard, but is a “cutting edge” standard. See Willis v. Palmer, No. C12-4086, 2018 WL 3966959, at *12 (N.D. Iowa Aug. 17, 2018) (characterizing trauma-informed care services in a sex offender treatment program as “cutting edge”.) Because trauma-informed care
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does not set the minimum constitutional floor for treatment of youth at juvenile facilities, but instead constitutes an aspirational standard, Dr. Lewis’s opinions drawn from this approach are irrelevant. Cf. Robinson v. Weisenburger, No. 7:14-cv-114, 2015 WL 5023745, at *6 (W.D. Va. Aug. 5, 2015) (“Despite their failure to meet these aspirational guidelines, the conditions described in the amended complaint do not rise to the level of a constitutional violation.”).
However, Dr. Lewis’s expert testimony will be permitted to the extent that he has opinions about harm to members of the class and the cause of that harm from any unconstitutional custom or practice. Through his evaluations and review of materials related to Doe 1–4, Dr. Lewis may be able to provide expert testimony directly related to the legal issue before the court: the existence of an unconstitutional custom or practice at the Center that thereby caused harm to the class members. Thus, Dr. Lewis’s expert testimony is admissible for this limited purpose. B. Defendant’s Motion for Sanctions
Defendant also filed a motion for sanctions under Federal Rule of Civil Procedure 16(f), requesting that the court exclude Dr. Diver’s supplemental expert report as a sanction for failing to disclose it in a timely manner. (Mem. Supp. Def.’s Mot. Sanctions 1, Dkt. No. 141.)
During Dr. Diver’s deposition on October 16, 2018, defendant’s counsel notified Dr. Diver of errors in his report. Two days after the deposition, plaintiffs’ counsel communicated to defendant’s counsel that Dr. Diver had reviewed the data and would be submitting an amended report on October 22, 2018. Defendant’s counsel responded, expressly objecting to extending the deadline for disclosure of amended reports. (Id. at 1–2.)
Plaintiffs eventually disclosed Dr. Diver’s supplemental expert report on November 7, 2018, along with their response to defendant’s motion in limine to exclude Dr. Diver’s expert
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testimony. (Ex. E, Dkt. No. 124-14.) The report indicates that Dr. Diver made changes in response to defendant’s counsel’s questions regarding over-counting of time in seclusion, which defendant asserts was a significant revision and an attempt to salvage Dr. Diver’s analysis. (Mem. Supp. Def.’s Mot. Sanctions 2–3.)
Under Federal Rule of Civil Procedure 16(f), “on motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . (C) fails to obey a scheduling or other pretrial order.” “In deciding whether to impose sanctions under Rule 16(f), a district court considers the following four factors: ‘(1) the reason for failing to name the witness [or failing to complete expert reports]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.’” Thompson v. United States, No. 7:14-cv-92, 2015 WL 2412249, at *4 (W.D. Va. May 21, 2005) (quoting Scott v. Holz-Her, No. 6:04-cv-69, 2017 WL 3171937, at *5 (W.D. Va., Oct. 26, 2007)).
Defendant contends that Dr. Diver’s supplemental report should be excluded because it was filed two months after plaintiffs’ September 7 deadline to disclose trial experts, there is no good reason for Dr. Diver’s failure to initially provide a complete and accurate report, his testimony is “of little importance” because it is more of a mathematical calculation than an expert opinion and pertains largely to data that is irrelevant to the certified class, and it would be prejudiced by the inclusion of his supplemental report. (Mem. Supp. Def.’s Mot. Sanctions 5–9.)
Plaintiffs respond by reiterating that Dr. Diver’s supplemental report corrected a small number of mistakes and did not “change the methodology or conclusions of his original report.” (Opp’n Mot. for Sanctions 1, Dkt. No. 160.) They also note that they did not ask for an extension to file Dr. Diver’s amended report, but rather, they acted under their continuing
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obligation to supplement expert disclosures under Federal Rule of Civil Procedure 26(e) and offered defendant an opportunity to re-depose Dr. Diver and an extension to file a motion to exclude. (Id. at 2–3.)
Under Federal Rule of Civil Procedure 26(e), “[a] party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”3 As to expert witnesses, “the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2). When “[t]he discovery plan agreed upon by the parties sets no deadlines for the filing of supplemental expert reports. . . . ‘it is presumed the parties agreed or the Court intended that the time would be as supplied by the Rules.’” Scott v. Holz-Her, No. 6:04-cv-69, 2017 WL 3171937, at *1 (W.D. Va. Oct. 26, 2007) (quoting Luma Corp. v. Stryker Corp., 226 F.R.D. 536, 544 (S.D. W. Va. 2005)).
Plaintiffs argue that Rule 16(f) does not apply to Dr. Diver’s supplemental report. They posit that when the behavioral incident count decreased from 972 to 938 and the total time in seclusion decreased slightly as a result of his modifications, only a “trivial difference in relation to the total number of incidents and total time immigrant youth spent in seclusion” was made, and “the finality of Dr. Diver’s opinions is not in question.” (Opp’n Mot. for Sanctions 5.) Accordingly, plaintiffs contend that the supplemental report should be treated as just that—a
3 Plaintiffs concede that Dr. Diver’s corrections are not “material,” but state that they were made for the benefit of the court and the parties. (Opp’n Mot. for Sanctions 4, n.1.)
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supplemental report as opposed to a new report—and is not excludable under Rule 16(f). (Id. at 6); see Scott, 2017 WL 3171937, at *1 (“Rule 16 does not apply if the expert's report is a supplemental report within the terms of Rule 26(e)(1).”)
The court will not exclude Dr. Diver’s supplemental expert report. Dr. Diver was permitted to supplement his report under Federal Rule of Civil Procedure 26(e). He simply corrected errors that were pointed out to him in his deposition by providing a supplemental report, and the correction of these errors did not significantly change the information in his report or change his overall conclusion. Thus, because Dr. Diver was well within his right to provide a supplemental report, the defendant’s motion for sanctions is denied and the supplemental report will not be excluded. C. Defendant’s Motion in Limine to Exclude Evidence of Non-Class Members and Class
Members Not Identified in Plaintiffs’ Initial Disclosures Defendant moves to exclude at trial the admission of evidence of non-class members and
class members not identified in plaintiffs’ initial disclosure, pursuant to Federal Rule of Civil Procedure 37(c) and Federal Rule of Evidence 103. (Br. Supp. Mot. in Limine 2, Dkt. No. 132.)
Defendant argues that evidence pertaining to non-class members is irrelevant and should be excluded. Because the complaint seeks declaratory and injunctive relief and defines the class as Latino immigrant youths who are or may be in the future confined at the Center, defendant asserts that the prospective relief sought has no relation to youths who are no longer residents at the Center. (Id. at 4.) In their response in opposition, plaintiffs first argue that there is no legal basis for excluding evidence of mistreatment of former detainees in a “pattern-and-practice case.” Plaintiffs contend that the certified class determines who will benefit from the relief sought, while the issues determine relevancy. As such, plaintiffs posit that instances during which UACs were subject to the alleged unconstitutional conduct—whether or not the UAC is
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still at the Center—are relevant because they make it more probable that the Center engaged in a pattern and practice of wrongful conduct. (Opp’n 4–5, Dkt. No. 151.) In its reply, defendant asserts that Doe 4’s allegations must be sufficient on their own before turning to the allegations of other class members. (Reply Br. Supp. Def.’s Mot. in Limine 1–2, Dkt. No. 157.)
Evidence related to non-class members is plainly relevant to show an unconstitutional custom or practice. If Doe 4 were to bring an individual claim, he would certainly be entitled to bring forth evidence pertaining to other UACs to prove a custom or practice at the Center; evidence related to Doe 4 alone could not prove the same. See Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003) (“[T]here must be ‘numerous particular instances’ of unconstitutional conduct in order to establish a custom or practice.”) (quoting Kopf v. Wing, 942 F.2d 265, 269 (4th Cir. 1991)). Similarly, here, while Doe 4 and the class cannot look to non-class members to prove an underlying constitutional violation, non-class member evidence that is relevant to unconstitutional uses of force and conditions-of-confinement directly relates to the requirement of a custom or practice in a Monell claim. Indeed, it would almost be impossible to prove a Monell claim but for third-party evidence of a custom or practice because showing a persistent or widespread practice, by necessity, requires evidence from more than one person. See Bielevicz v. Dubinon, 915 F.2d 845, 852 (3rd Cir. 1990) (Testimony of former police chief describing customary police conduct in making public intoxication arrests was sufficient to present jury question in § 1983 suit arising from such arrests on the issue of whether there was a longestablished municipal custom in the police department of arresting and detaining people on charges of public intoxication without probable cause and with no intention of prosecuting them or of holding a hearing); see also Velazquez v. City of Long Beach, 793 F.3d 1010, 1027–28 (9th Cir. 2015) (finding that the district court abused its discretion by granting defendants’ motion in
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limine to exclude reference to other complaints, internal affairs incidents, and disciplinary action against an officer in a Monell claim because “a jury might have been able reasonably to infer from prior complaints that the [defendant] was aware that [the officer] had previously used excessive force when making arrests, but had taken no steps to curb his propensity.”); Malik v. Hannah, 799 F. Supp. 2d 355 (D.N.J. 2011) (individual established that city had custom of tolerating excessive force by its police officers, as required to hold city liable in his § 1983 action alleging officers violated his Fourth Amendment rights; city had received more than 300 citizen complaints against officers over course of few years but failed to take action to address their conduct).
Therefore, this evidence is relevant and admissible for this purpose. III. CONCLUSION
For the foregoing reasons, the court will deny in part and grant in part defendant’s motion in limine to exclude the expert testimony of Dr. Paul Diver, will grant defendant’s motion in limine to exclude the expert testimony of Dr. Andrea Weisman, will deny in part and grant in part defendant’s motion in limine to exclude expert testimony of Gregory Lewis, Psy. D., will deny defendant’s motion for sanctions, and will deny defendant’s motion in limine to exclude evidence of non-class members.
An appropriate order will be entered. Entered: December 13, 2018.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon United States District Judge
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