IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

UNITED STATES OF AMERICA, 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Plaintiff,
vs.
STATE OF TEXAS P.O. Box 12428 Austin, Texas 78711-2428 County of Residence: Travis;
TEXAS YOUTH COMMISSION 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;
RICHARD NEDELKOFF, Conservator Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;
DIMITRIA D. POPE, Acting Executive Director Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;

)

)

)

)

)

)

) Civil Action No.

)

)

)

)

COMPLAINT

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

MELODY VIDAURRI, Superintendent Evins Regional Juvenile Center 3801 East Monte Cristo Road Edinburg, TX 78541 County of Residence: Hidalgo,
Defendants. Plaintiff, the United States of America, by its undersigned attorneys, for its complaint alleges:
1. This action is brought by the Attorney General, on behalf of the United States, pursuant to the pattern or practice provision of the Vio~ent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the State of Texas from depriving youth confined in the Evins Regional Juvenile Center ("Evins") in Edinburg, Texas of rights, privileges or immunities secured or protected by the Constitution and laws of the United States.
JURISDICTION, STANDING AND VENUE
2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.
3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141.
4. Venue in the Southern District of Texas is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in this complaint arose in this District.
2

DEFENDANTS 5. Defendant STATE OF TEXAS ("State") is responsible for the administration of juvenile justice in the State,including the operation of certain secure juvenile facilities. This action concerns the administration of Evins. 6. Defendant Texas Youth Commission ("TYC") is a department of the Executive Branch of the State of Texas and is the state agency responsible for the care and custody of youth confined at Evins. 7. Defendant Richard Nedelkoff is the Conservator of TYC and, in this capacity, exercises administrative control of, and responsibility for Evins. 9. Defendant Dimitria D. Pope is the Acting Executive Director of TYC and is responsible for the administration and day-to~day operations of TYC. 10. Defendant.M~lody Vidaurri is the Superintendent of Evins, and is responsible for the administration and day-to-day operations of Evins. 11. The individual Defendants named in paragraphs 5-10 above are officers of the Executive Branch of the State of Texas and are sued in their official capacities. 12. Defendants are legally responsible, in whole or in part, for the operation of and conditions at Evins; for ensuring
3

the safety and secur~ty of youth; for ensuring that youth are adequately protected from harm; for ensuring that youth receive appropriate treatment, rehabilitation, and education commensurate with their needs and abilities; and for ensuring that youth are provided due process of law.
13. All relevant acts or omissions described below have been undertaken by the State, a political subdivision of the State, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 14. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice within the meaning of 42 U:S.C. § 14141. 15. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at Evins are adequately protected from harm and from undue risk of harm from staff assault and youth-on-youth assault. 16. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide youth at Evins adequate due process. 17. Defendants have engag~d, and continue to engage, in a pattern or practice of failing to ensure that youth at Evins receive adequate rehabilitative treatment.
4

VIOLATIONS ALLEGED 18. Through the acts, practices, and omissions alleg~d in paragraphs 14~17, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at the facilities of rights, privileges, or immunities secured by the Constitution of the United States, including the Fourteenth Amendment, and in violation of 42 U.S.C. § 14141(a). 19. Unless restrained by this Court, Defendants will· continue to engage in the conduct and practices set forth in paragraphs 14-17 that deprive youth confined at the facilities of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF 20. The Attorney General is authorized under 42 U.S.C. § 14141 to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, contractors and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 14-17, above, and to require Defendants to take such action as will pro~ide legal and constitutional conditions of
5

care to youth confined at the facility and any other secure facility to which Defendants transfer youth confined at the facility during the pendency of this action. The United States further prays that this Court grant such other. and further equitable relief as it may deem just and proper.
6

Respectfully submitted,

DONALD J. DEGABRIELLE, Jr United States Attorney Southern District of Texas P.O. Box 61129 Houston, TX 77208 (713) 567-9535

lsi Grace C. Becker
GRACE C. BECKER
Acting Assistant Attorney General Civil Rights Division

lsi Keith Edward Wyatt
KEITH EDWARD WYATT Assistant United States Attorney Texas Bar No. 22092900 Federal Bar No. 3480 P.O. Box 61129 Houston, TX 77208 Telephone: (713)567-9713 Fax: (713) 718-3303

lsi Shanetta Y. Cutlar
SHANETTA Y. CUTLAR Chief Special Litigation Section
lsi Daniel H. Weiss
DANIEL H. WEISS Deputy Chief Special Litigation Section Sheridan Leigh England Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Telephone: (202) 514-6253 Fax (202) 514-0212

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

UNITED STATES OF AMERICA, 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Plaintiff,
vs.
STATE OF TEXAS P.O. Box 12428 Austin, Texas 78711-2428 County of Residence: Travis;
TEXAS YOUTH COMMISSION 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;
RICHARD NEDELKOFF, Conservator Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;

Civil Action No. AGREED ORDER

DIMITRIA D. POPE, Acting Executive Director Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;
MELODY VIDAURRI, Superintendent Evins Regional Juvenile Center 3801 East Monte Cristo Road Edinburg, TX 78541 County of Residence: Hidalgo,
Defendants.

TABLE OF CONTENTS

I . INTRODUCTION

3

II. DEFINITIONS.

5

III. CONSTITUTIONALLY REQUIRED CARE

6

IV. SUBSTANTIVE REMEDIAL MEASURES .

. 6

A. PROTECTION FROM HARM

6

B. TRAINING .

10

V.

COMPLIANCE AND QUALITY ASSURANCE

11

VI. MONITORING AND ENFORCEMENT . .

12

VII. IMPLEMENTATION AND TERMINATION

12

VIII. FINDINGS'MADE PURSUANT TO THE PRISON LITIGATION REFORM ACT . . . . . . . . . . . . . . . 18

I. INTRODUCTION
(A) On June 9, 2006, the United States notified State of Texas officials of its intent to investigate conditions of confinement at the Evins Regional Juvenile Center ("Evins"), located in Edinburg, Texas, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141") .
(B) Between September 11 and September 15, 2006, the United Slates toured Evins with a consultant in the juvenile justice field.
(C) The State of Texas has cooperated and negotiated in good faith with the United States regarding the investigation of Evins, provided the United States and its consultants full access to the facility and documents, and was receptive to the on-site recommendations of the Department of Justice's consultants.
(D) On March 15, 2007, the United States issued a findings letter pursuant to 42 U.S.C. § 1997(a) (1), which concluded that certain conditions at Evins violated the constitutional rights of juveniles confined at Evins. The United States recognizes that its letter notifying the State of Texas of the results of its investigation focused, by virtue of statutory requirements, on conditions the United States believed to violate federal law and, therefOre, did not discuss positive aspects of Evins nor the many changes made at Evins since the United States toured the Evins facility.
(E) The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. § 14141. Venue is proper in this district pursuant to 28 U.S.C. §·1391 (b).
(F) Defendants in this action are the State, Governor Rick Perry, the Texas Youth Commission ("TYC"), Richard Nedelkoff, Conservator. of TYC, Dimitria D. Pope, Acting Executive Director of TYC, Melody Vidaurri, Evins Superintendent, and their successors, contractors and agents. The State of Texas shall reasonably ensure that all State agencies take any actions necessary t·o comply with the provisions of this Agreed Order.
3

(G) For purposes of this lawsuit only and in order to settle this matter, the State of Texas agrees to the entry of a finding that the conditions at Evins necessitate the remedial measures contained in this Agreed Order. The State is firmly committed to providing legally adequate conditions by instituting the remedial measures required by this Agreed Order.
(H) The United States and the State of Texas stipulate and agree that all of the prospective relief in this Agreed Order is narrowly drawn, extends no further than necessary to correct violations of federal rights, is the least intrusive means necessary to correct these violations, and will aid public safety and the operation of Evins.
(I) The parties to this Agreed Order agree and represent to the Court that this Agreed Order complies in all respects with the provisions of 18 U.S.C. § 3626(a), and may serve as the factual and legal basis for a Court order issued pursuant to those provisions.
(J) The issue of liability has not been litigated. The parties ask the Court to approve this Agreed Order without a full hearing on the merits, on the basis of the United States' Complaint and the above stipulations.
(K) This Agreed Order is not intended to have any preclusive e:ffect except between the parties. Should the issue of the preclusive effect of this Agreed Order be raised in any proceeding other than this civil action, the parties agree to certify that this Agreed Order was intended to have no such preclusive effect.
(L) This Agreed Order shall not be used against the State in any proceeding other than a proceeding between the United States and the State of Texas. This Agreed Order is intended to enhance the conditions at Evins. This Agreed Order is not intended to be used to prove deficiencies in the level of care provided by the State at the facility in any proceeding other than an enforcement action between the parties.
(M) Nothing in this Agreed Order shall prevent the State from modifying or closing Evins, or developing alternative community placements for the youth currently at Evins.
(N) No person or entity is intended to be a third-party beneficiary of the provisions of this Agreed Order for
4
..;.

purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreed Order. This Agreed Order is not intended to impair or expand the right of any person or organization to seek relief against the State or its officials, employees, or agents for their conduct; accordingly, it does not alter legal standards governing any such claims, including those under Texas law.
(0) The State will not transfer youth out of Evins in order to attempt to avoid compliance with this Agreed Order or any constitutional requirements.
II. DEFINITIONS
In this Agreed Order, the following definitions apply:
(P) "Evins" means the Evins Regional Juvenile Center located at ~~Ol East Monte Cristo Road, Edinburg, Texas, and any facility that is built to replace or supplement Evins.
(Q) "TYC" means the Texas Youth Commission that oversees the safety, treatment, and rehabilitation of juveniles residing at Evins.
(R) "DOJ" means the United States Department of Justice, which represents the United States in this matter.
(S) "Effective Date" means the date this Agreed Order is entered by the Court.
(T) "Implement" means to give practical effect and reasonably ensure actual fulfillment by concrete measures, including appropriate training of relevant staff.
(U) "Include" or "including" means "include, but not be limited to" or "including, but not limited to."
(V) "Restraints" means any physical, chemical, or mechanical device, including oleoresin capsicum spray, used to control the behavior of a youth.
(W) " "'Qualified medical professional" means a physician, nurse or other medical provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
5

(X) "Performance-based accountability system" means a system designed to collect data necessary to assess and reasonably ensure the effective implementation and operation of. all remedies instituted pursuant to this Agreed Order.
(Y) "State" means the Defendants as described in paragraph F above.
(Z) "Train" means sufficiently instruct in the skills addressed, including ongoing assessment of mastery of instructional material.
(AA),' "Youth" means any juvenile or juveniles committed by,.. a court to and residing at Evins during the operation of this Agreed Order.
III. CONSTITUTIONALLY REQUIRED CARE
The purpose of this Agreed Order is to protect certain constitutional rights of youths committed to Evins. The terms and requirements of this Agreed Order shall be interpreted to be consistent with the remedial measures necessary to pr6tect the 6onstitutional rights of the youths.
IV. SUBSTANTIVE REMED1AL MEASURES
A. PROTECTION FROM HARM
(1) Protection from Harm The State shall, at all times, provide youth at Evins with reasonably safe living conditions, and shall implement policies, procedures, and practices to reasonably ensure that youth are protected from harm by staff (e.g., improper restraint and excessive use of force) and harm from other youth.
(2) B.±;otection from Undue Restraints The State shall develop and implement policies, procedures, and practices to reasonably ensure that only safe methods 6f restraint are used at Evins, and only in those circumstances necessary for safety and security, and that restraints are never used to punish youth.
(3) Reporting of Staff Misconduct and Other Serious Incidents T~e State shall develop and implement appropriate policies and procedures which contain definitions approved by DOJ after review and comment by the DOJ for the terms "use of force," "staff-on-youth assault," "youth-on-youth assault,"
6

and "inappropriate staff relationships with youth," and will develop and implement such policies, procedures, and practices so that:
tal appropriate Evins staff report all incidents of use of
force, staff-on-youth and youth-on-youth assault, inappropriate staff relationships with youth, and sexual misconduct between youth, to appropriate individuals at the facility;
(b) appropriate Evins staff notify appropriate supervising officials and document in writing all incidents involving mechanical restraints to control youth; incidents resulting in bodily injury to youth and/or staff; inappropriate staff relationships with youth; sexual misconduct between youth;
(c) reporting may be done without fear of retaliation; and
(d) all such incidents are appropriately documented and reported, including the facts of the incident, any injury that occurred as a result of the incident, and in a way that permits review.
(4) Review of Incidents by Senior Management The State shall develop and implement policies, procedures, and practices so that senior management review all incidents involving mechanical restraints to control youth, incidents resulting in' bodily injury to youth and/or staff, inappropriat~ staff relationships with youth, and sexual misconduct between youth.
(5) Health Care Inguiries Reqardinq Injurv If, in the course of the youth's infirmary visit, a health care provider suspects staff-on-youth abuse, that health care provider shall:
(a) report the suspected abuse to the appropriate officials, the Office of Inspector General, law enforcement and social service agencies;
(b) adequately document the matter in the youth's medical record; and
(c) complete an incident report.
(6) Uses of Force The State shall develop and implement comprehensive policies, procedures, and practices governing uses of force, ensuring that the least amount of force
7

necessary for the safety of staff, youth residents, and visitors is used on youth.
(7) Documentation and Trackinq of Investigations The State shall develop policies, practices, and procedures for documenting all incidents of use of force, staff-on-youth assault, youth-on-youth assault, inappropriate staff relationships with youth, sexual misconduct between youth, and for documenting and tracking the status and outcome of all investigations. Where there is evidence of staff misconduct, the State shall initiate appropriate personnel actions and systemic remedies, where appropriate.
(8) Investiqations The State shall develop and implement policies, procedures, and practices to reasonably ensure an effective system for investigation of uses of force, physical restraint, alleged child abuse, youth-on-youth assault, and alleged sexual contacts.
(9) Reporting Possible Criminal Violations The State shall " develop and implement policies, practices, and procedur~s governing when possible criminal violations must be reported to the appropriate law enforcement authorities.
(10) Behavior Management Program The State shall develop and implement an evidence-based behavior management program. The behavior management program shall be implemented throughout the day, including during school time. The State shall develop and implement policies, procedures, and practices to reasonably ensure that mental health staff provide regular consultation regarding behavior management to custody and other staff involved in the behavior management program, and shall develop and implement a mechanism to assess the effectiveness of interventions utilized.
(11) Staffing The State shall provide sufficient numbers of adequately trained direct care and supervisory staff to (a) supervise youth safely, (b) protect youth from harm, (c) allow youth reasonable access to medical and mental health services, and (d) provide youth with adequate time spent in out-of-cell activities. The State shall establish mandatory minimum staffing requirements, including a determination of all direct supervision posts that must be f'illed on each shift. In establishing mandatory post coverage, the State shall include provisions for coverage
8

for all required staff training as well as authorized leave time.
(12) Employment Practices The State shall continue to conduct a criminal record check for all current employees at Evins, taking appropriate actions where new information is obtained. At least as often as every year thereafter, the State shall update such criminal record checks for all employees who come into contact with youth. The Evins administration shall develop·and implement policies and procedures to require that applicants and all current staff immediately report to it any arrest other than a minor traffic violation and also report the issuance of a r~straining order entered against the staff member due to alleged abusive behavior.
(13) Due Process The State shall implement policies, procedures, and practices to reasonably ensure that youths confined to the Security Unit for disciplinary reasons for more than 24 hours receive an appropriate due process hearing by an impartial supervisory staff member to determine whether cause exists for continued disciplinary confinement.
(14) Youth Grievances The State shall develop and implement policies, procedures, and practices to reasonably ensure that there is a functional and responsive youth grievance system.
(15) Admissions Intake and Orientation The State shall develop and implement policies, procedures, and practices to establish a consistent, orderly admissions intake system conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining youth safety. Each youth entering Evins shall receive an effective orientation that shall include simple directions for reporting abuse, and assure youth of their right to be protected from harm and from retaliation for reporting allegations of abuse. Orientation shall also clearly set forth the rules youth must follow at the facility, explain how to access medical and mental health care and the grievance system, and provide other information pe~tinent to the youth's participation in facility programs.
(16) Classification The State shall develop and implement a classification system that considers factors including youth age, committing offense, gang affiliation, delinquent
9

history and treatment needs to reasonably ensure that youth are safely placed within Evins, and provides for reclassification in appropriate circumstances.
B. TRAINING
(17), T'l::aining The State shall develop and implement policies, procedures, and practices to provide staff, volunteers and contractual employees of Evins with training regarding their responsibilities. These policies, practices, and procedures shall include:
(a) a comprehensive training plan for all Evins employees, reviewed and updated annually;
(b) requirements by job category;
(c) standards for qualification of trainers;
(d) processes for approval of the training curriculum;
(e) schedules for staff training;
(f) criteria for determining whether Evins staff, volunteers, and contractual employees have mastered the instructional materials and methods being taught; and
(g) specific requirements by professional discipline for any continuing education credits established by licensure, certification, or recognized professional academies and organizations.
(18) Physical Restraint Traininq The State shall train direct care staff on its approved method for physical restraint that minimizes the risk of injury to youth. The State shall only use instructors who are appropriately qualified to teach the approved physical restraint method. All training shall include each staff member demonstrating the approved techniques and meeting the minimum standards for competency established by the method. Direct care staff skills in employing the method shall be periodically re-evaluated. Staff who demonstrate deficiencies in technique or method shall be removed from direct contact with youth until they meet minimum standards for competency established by.the method. Juvenile Correctional Officer Supervisory staff shall be trained to evaluate their subordinates' use of the approved restraint methods and must provide evaluation of
10
·'i;·':

these methods in their reports addressing use of force incidents.
(19) Staff Training in Behavior Management, De-Escalation and Crisis Intervention The State shall provide appropriate competency-based training to staff in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth.
(20) Staff Traininq in Incident Reporting The State shall develop and implement policies, procedures, and practices so that staff are appropriately trained in incident reporting consistent with the type of incident reporting required under this Agreed Order.
V. COMPLIANCE AND QUALITY ASSURANCE
(21) Document Development and Revision The State shall maintain, revise, and/or develop and implement policies, procedures, training curricula, and practices to reasonably ensure that they are consistent with, incorporate, address, and implement all provisions of this Agreed Order. The ptate shall maintain, revise and/or develop as necessary other written documents including assessment instruments, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreed Order.
(22) Policy Review and Traininq The State shall draft policies and procedures to reasonably ensure the effective implementation of the provisions of this Agreed Order in conjunction with comments and discussions with the DOJ and the Monitor. All policies and procedures regarding ,the following topics shall be submitted to DOJ and the Monitor within ninety (90) calendar days of the execution of this Agreed Order for review and comment: use of restraints and confinement to the Security Unit, use of force, youth grievance system, investigations of alleged staff misconduct, behavior management program, and reporting and review of staff misconduct and other incidents. The State shall provide initial and refresher training to all Evins staff with respect to newly-implemented or revised policies and procedures. The State shall document employee review and training in policies and procedures.
(23) Performance-Based Accountability System The State shall develop and implement a system designed to collect data
11

necessary to assess and reasoriably ensure the effective implementation and operation of all remedies instituted pursuant t6 this Agreed Order.
(24) Corrective Action Plans With regard to the protection from harm and training remedial measures addressed in this Agreed Order, the State shall develop and implement policies and procedures to address problems that are uncovered during the course of performance-based accountability activities. The State shall .develop and implement corrective action plans to address these problems in such a manner as to prevent them from occurring again in the future.
VI. MONITORING AND ENFORCEMENT
(25)" The DOJ shall monitor the State's compliance with this Agreed Order. Until this matter is dismissed, the DOJ shall have unrestricted access to, and shall, upon request, receive copies of any documents, records, and information relating to the implementation of this Agreed Order. The State shall provide any requested documents, records, and information to the DOJ as soon as possible, but no later than 30 days from the date of the request. The DOJ shall have reasonable access to Evins, including any newly constructed, renovated and/or designated buildings and facilities; staff and youth, including private inter,views with staff; and youth records, documentation, and information relating to the issues addressed in this Agreed Order. The State shall instruct all employees to cooperate fully with the DOJ. The DOJ agrees to provide the State with reasonable notice of any visit or inspection, although the DOJ and the State agree that no notice is required in an emergency situation where the life, health, or immediate safety of youth is at issue. The DOJ shall regularly report its assessment of the State's compliance with the provisions of this Agreed Order to the State and the Court.
VII. IMPLEMENTATION AND TERMINATION
I"'"
(26) Information to Employees The State shall reasonably ensure that all current and future relevant State employees understand the terms of this Agreed Order (to the extent necessary to carry out their job duties and responsibilities) and implement the terms of this Agreed Order.
12

(27) Implementation The State shall implement all reforms necessary to effectuate this Agreed Order. Implementation will begin immediately upon the filing of this Agreed Order.
(28) Inteqration This Agreed Order shall constitute the entire integrated agreement of the parties with respect to the United States' claims concerning protection from harm. With the exception of DOJ's findings letter referenced in ~ D hereof, and any DOJ technical assistance recommendations, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding.
(29) Enforcement If DOJ believes that the State has failed to substantially comply with any obligation under this Agreed Order, DOJ will, prior to seeking judicial action to enforce the terms of this Agreed Order, give written notice of the failure to the State. The parties shall conduct good-faith negotiations to attempt to resolve the dispute. These negotiations will last for a maximum of 30 days from the date of DOJ's written notice. DOJ commits to work in good faith with the State to avoid enforcement actions. However, in case of an emergency posing an immediate threat to the health or safety of youth, the United States may omit the notice and negotiation requirements herein, before seeking judicial action.
(30) Compliance Coordinator The State shall appoint a Compliance Coordinator to coordinate and oversee compliance with this Agreed Order. The Compliance Coordinator shall have no ~.iher assigned duties.
(31) Termination This Agreed Order shall terminate three years from the date it is ordered by the Court. The Agreed Order may also end earlier than three years from the date it is ordered by the Court if the State has substantially complied with each of the provisions of this Agreed Order and has maintained substantial compliance for at least eighteen (18) months. The burden shall be on the State to demonstrate this level of compliance. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
13

(32) Defense of Agreed Order The parties agree to defend the provisions of this Agreed Order. The parties shall notify each other of any court challenge to this Agreed Order. In the event any provision of this Agreed Order is challenged in any local or State court, removal to a federal court shall be sought.
(33) Successors This Agreed Order shall be binding on all successors, assignees, employees, agents and all those working for or on behalf of the State.
(34) No Waiver for Failure to Enforce Failure by either'party to enforce this entire Agreed Order or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to e~force other deadlines or provisions of this Agreed Order. .
(35) Notice "Notice" under this Agreed Order shall be provided by first class mail, facsimile, electronic mail, or any combination of those communication methods. Notice shall be provided to the Governor of Texas and to the Attorney General of Texas.
(36) Unforeseen Delay If any unforeseen circumstance occurs wpich causes a failure to timely carry out any requirements of this Agreed Order, the State shall notify the DOJ in writing within 20 calendar days of the time that the State becomes aware of the unforeseen circumstance and its imPi3.ct on the State's ability to perform under this Agreed Order. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
(37) Non-Retaliation The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Agreed Order.
(38) Subheadings All subheadings in this Agreed Order are written for the convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
14

(39) Severability In the event any provision of this Agreed Order is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreed Order.
(40) Attornev's Fees and Expenses Each party shall bear the cost of their fees and expenses incurred in connection with this cause.
15

FOR THE UNITED STATES:

i~flCFHcUCNLG'B"E"k~E7R kc~
Acting Assistant Attorney General
Civil Rights Division
ETTA Y. CUTLAR Chief
Litigation Section
Deputy Chief SHERIDAN L. ENGLAND Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

16

01/17/2308 17:14 9552895580
01/17/2008 16:41 FAX
FOR 'rHE STATE:

EJC SUPER

PAGE 01/01
~001/001

MELODY VI DA sup~~intenQ t
Evins ~egional Juven~le C~nter

..

5s;i.stant Attc::n:m;!y General

state of Texas

17

IX. FINDINGS MADE PURSUANT TO THE PRISON LITIGATION REFORM ACT

Having considered the foregoing, and based on the stipulations of the Parties, the Court hereby finds:

1. The prospective relief in the Agreed Order is necessary to correct the violations of the federal rights of youths at Evins set forth in the Complaint.

2. The Agreed Order is narrowly drawn, extends no f~rther than necessary to correct these violations of federal rights, and is the least intrusive means necessary to correct these violations of f~deral rights.

3. The Agreed Order will not have an adverse impact on public safety of the operation of a criminal justice system. (PLRA, 18 U.S.C. § 3626 (a)(l»

Wherefore, it is hereby ORDERED that the Agreed Order be entere'd as a judgment of the Court. This order is not an adjudication on the merits and therefore ~hall have no preclusive effect except between the parties to this litigation.

SO ORDERED this

day of ____________, 200

United States District Court Judge Southern District of Texas

18

 
 Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

UNITED STATES OF AMERICA( 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Plaintiff,
vs.
STATE OF' TEXAS P.O. Box 12428 Austin, Texas 78711-2428 County of Residence: 'l'ravis;
TF,XAS YOUTH COMMISSION 4900 N. Lamar Blvd Austln, TX 78765 County of Residence: Travis;
RICHARD NEDELKOFF, Conservator Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;

Civil Action No. 7:08 cv 00038
AGREED ORDER

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 2 of 20
DIMITRIA D. POPE, Acting Executive Director Texas Youth Commission 4900 N. Lamar Blvd Austin, TX 78765 County of Residence: Travis;
MELODY VIDAURRI, Superintendent Evins Regional Juvenile Center 3801 East Monte Cristo Road Edinburg, TX 78541 County of Residence: Hidalgo,
Defendants.

Case 7'OB-cv-00038 Document 11 Flied 04/11/2008 Page 3 of 20

TABLE OF CONTENTS

I.

INTRODUCTION

II. DEFINITIONS.

III. CONSTITUTIONALLY REQUIRED CARE

IV. SUBSTANTIVE REMEDIAL MEASURES

A. PROTECTION FROM HARM

B. TRAINING .

V.

COMPLIANCE AND QUALITY ASSURANCE

VI. MONITORING

VII. IMPLEMENTATION AND TERMINATION

VIII. FINDINGS MADE PURSUANT TO THE PRISON LITIGATION REFORM ACT.

3 5 6 6 6
10 12 12 13
'~/'f

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 4 of 20
I. INTRODUCTION
(A) On June 9, 2006, the United States notified State of Texas officials of its intent to investigate conditions of confinement at the Evins Regional Juvenile Center (~EvinsU), located in Edinburg, Texas, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA") I 42 U.S.C. § 1997 and the Violent Crlme Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141").
(8) Between September lJ and September 15, 2006, the United States toured Evins with a consultant in the juvenile justice field.
(C) The State of Texas has cooperated and negotiated in good faith with the United States regarding the investigation of Evins, provided the United States and its consultants full access to the facility and documents, and was receptive to the on-site recommendations of the Department of Justice's consultants.
(D) On March 15, 2007, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 (a) (1), which concluded that certain conditions at Evins violated the constitutional rights of juveniles confined at Evins. The United States recognizes that its letter notifying the State of Texas of the results of its investigation focused, by virtue of statutory requirements, on conditions the United States believed to violate federal law and, therefore, did not discuss positive aspects of Evins nor the many changes made at Evins since the Unl~ed States toured the Evins facility.
(E) The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. § 14141. Venue is proper in this district pursuant to 28 U.S.C. § 1391 (b).
(F) Defendants in this action are the State, the Texas Youth Commission ("TYC"), Richard Nedelkoff, Conservator of Tye, Dimitria D. Pope, Acting Executive Director of TYC, Melody Vidaurri, Evins Superintendent, and their successors, contractors and agents. The State of Texas shall reasonably ensure that all State agencies take any actions necessary to comply with all provisions of this Agreed Order.
(G) For purposes of this lawsuit only and in order to settle this matter, the Stale of Texas agrees to the entry of a
3

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 5 of 20
finding that the conditions at Evins necessitate the remedial measures contained in this Agreed Order. The State 13 firmly committed to providing legally adequate conditions by instituting the remedial measures required by this Agreed Order.
(H) The United States and the State of Texas stipulate and agree that all of the prospective relief jn this Agreed Order is narrowly drawn, extends no further than necessary to correct violations of federal rights, is the least intrusive means necessary to correct these violations, and will aid public safety and the operation of EVlns.
(J) The parties to this Agreed Order agree and represent to the Court that this Agreed Order complies in all respects with the provisions of 18 U.S.C. § 3626(a), and may serve as the factual and legal basis for a Court order issued pursuant to those provisions.
(J) The issue of liability has not been litigated. The parties ask the Court to approve this Agreed Order without a full hearing on the merits, on the basis of the United States' Complaint and the above stipulations.
(K) This Agreed Order is not intended to have any preclusive effect except between the parties. Should the issue of the preclusive effect of this Agreed Order be raised in any proceeding other than thi s c.i.vil act ion, the parties agree to certify that this Agreed Order was intended to have no such preclusive effect.
(L) This Agreed Order shall not be used against the State in any proceeding other than a proceeding between the United States and the State of Texas. This Agreed Order is intended to enhance the conditions at Evins. This Agreed Order is not intended to be used to prove deficiencies in the level of care provided by the State at the facility in any proceeding other than an enforcement action between the parties.
(M) Nothing in this Agreed Order shall prevent the State from modifying or closing Evins, or developing alternative community placements for the youth currently at Evins.
(N) No person or entity is in~ended to be a third-paLLY benef1ciary of the provisions of this Agreed Order [or purposes of any civil, criminal, or administrative actlon, and accordingly, no person or entity may assert any claim or
4

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 6 of 20
right as a beneficiary or protected class under this Agreed Order. This Agreed Order is not intended to impair or expand the right of any person or organization to seek relief against the State or its officials, employees, or agents for their conduct; accordingly, it does not alter legal standards governing any such claims, including those under Texas law.
(0) The State will not transfer youth out of Evins in order to attempt to avoid compliance with this Agreed Order or any constitutional requirements.
II. DEFINITIONS
In this Agreed Order, the following definitions apply:
(P) "Evins" means the Evins Regional Juvenile Center located at 3801 East Monte Cristo Road, Edinburg, Texas, and any facility that is built to replace or supplement Evins.
(Q) "TYC" means the Texas Youth Corcunission that oversees the safety, treatment, and rehabilitation of juveniles residing at Evins.
(R) "DOJ" means the United States Department of Justice, which represents the United Siates in this matter.
IS) "Effective Date" means the date this Agreed Order is entered by the Court.
(T) "Implement" means to give practical effect and reasonably ensure actual fulfillment by concrete measures, including appropriate training of relevant staff.
(U) "Include" or "including" means "include, but no~ be limited to" or "including, but not limited to."
(V) "Restraints" means any p~ysical, chemical, or mechanical device, including oleoresin capsicum spray, used to control the behavior of a youth.
(W) "Qualified medical professional" means a physician, nurse or other medical provider licensed and sufficiently trained to p£ovide the services he or she undertakes to provide.
(X) "Performance-based accountab~lity system" means a system designed to collect data necessary to assess and reasonably
5

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 7 of 20
ensure the effective implementation and operation of all remedies instituted pursuant to this Agreed Order.
(Y) "StateU means the Defendants as described in paragraph F above.
(2) "Substantial Compliance" means that the State has satisfied all of the requirements of the numbered paragraphs set forth in Sections IV and V of this Agreed Order for no less than 12 consecutive months. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
(AA) "Train" means sufficiently instruct in the skills addressed, including ongoing assessment of mastery of instructional material.
(BB) "Youth lf means any juvenile or Juvenjles committed by a court to and residing at Evins during the operation of this Agreed Order.
III. CONSTITUTIONALLY REQUIRED CARE
The purpose of this Agreed Order is to protect certain constitutional rights of youths committed to Evins. The terms and requirements of this Agreed Order shall be interpreted to be consistent with the remedial measures necessary to protect the constitutional rights of the youths.
IV. SUBSTANTIVE REMEDIAL MEASURES
A. PROTECTION FROM HARM
(1) Protection from Harm The State shall, at all times, provide youth at Evins with reasonably safe living conditions, and shall implement policies, procedures, and practices to reasonably ensure that youth are protected from harm by statf (e.g., improper restraint and excessive use of force) and harm from other youth.
(2) Protection from Undue Restraints Within 60 days of the effective date of this Agreed Order, the State shall deve}op and implement policies, procedures, and practices to
6

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 8 of 20
reasonably ensure that only safe methods of restraint are used at Evins, and only in those circumstances necessary for safety and security, and that restraints are never used to punish youth.
(3) Reporting of Staff Misconduct and Other Serious Incidents Within 60 days of the effective date of this Agreed Order, the State shall develop and implement appropriate policies and procedures which contain definitions approved by DOJ after review and comment by the DOJ for the terms "use of force,n "staff-on-youth assault,N "youth-an-youth assault," and "inappropriate staff relacionships with youth,n and will develop and implement such policies, procedures, and practices so that:
(a) appropriate Evins staff report al~ incidents of use of force, staff-on-youth and youth-an-youth assault, inappropriate staff relationships with youth, and sexual misconduct between youth, to appropriate individuals at the facility;
(b) appropriate Evins staff notify appropriate supervising officials and document In writing all incidents involving mechanical restraints to control youth; incidents resulting in bodily injury to youth and/or staff; inappropriate staff relationships with youth; sexual misconduct between youth;
(c) repor~ing may be done without fear of retaliation; and
(d) all such incidents are appropriately documented and reported, including the facts of the incident, any injury that occurred as a result of the incident, and in a way that permits review.
(4) Review of Incidents by Senior Management Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices so that senior management review all incidents involving mechanical restraints to control youth, incidents resulting in bodily injury to youth and/or staff, inappropriate staff relationships with youth, and sexual misconduct between youth.
(5) Health Care Inquiries Regarding Injury If, in the course of the youth's infirmary visit, a health care provider suspects staff-on-youth abuse, that health care provider shall:
7

Case 7:08-cv-00038 Document 11 Filed 04/11/2008 Page 9 of 20
(a) report the suspected abuse to the appropriate officials, the Office of Inspector General, law enforcement and social service agencies;
(b) adequately document the matter in the youth's medical record; and
(c) complete an incident report.
(6) Uses of Force Within 60 days of the effective date of this Agreed Order, the State shall develop and implement comprehensive policies, procedures, and practices governing uses of force, ensuring that the least amount of force necessary for the safety of staff, youth residents, and visitors is used on youth.
(7) Documentation and Tracking of Investigations Within 60 days of the effective date of this Agreed Order, the State shall develop policies, practices, and procedures for documenting all incidents of use of force, staff-on-youth assault, youth-on-youth assault, inappropriate staff relationshlps with youth, sexual misconduct between youth, and for documenting and tracking the status and outcome of all investigations. Where there is evidence of staff misconduct, the State shall inl tiate appropriate, personnel actions and systemic remedies, where appropriate.
(8) Investigations Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to reasonably ensure an effective system for investigation of uses of force, physical restraint, alleged child abuse, youth-on-youth assault, and alleged sexual contacts.
(9) Reporting Possible Criminal Violations Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, practices, and procedures governing when possible criminal vio~ations must be reported to the approprlate law enforcement authorities.
(10) Behavior Mar.agement Program Within 90 days of the effec~ive date of this Agreed Order, the State shall develop and implement an evidence-based behavior management program. The behavior management program shall be implemented throughout the day, including during school time. The State shall develop and implement policies, procedures, and practices to reasonably ensure that mental health staff provide regular consultation regarding behavior management
8

Case 7 08-cv-00038 Document 11 FIled 04/11/2008 Page 10 of 20

to custody and other staff involved in the behavior management program, and shall develop and implement a mechanism to assess the effectiveness of interventions utilized.
(11) Staffing Within 60 days of the effective date of this Agreed Order, the State shall provide sufficient numbers of adequately trained direct care and supervisory staff to (a) supervise youth safely, (b) protect youth from harm, (e) allow youth reasonable access to medical and mental health services, and (d) provide youth with adequate time spent in out-of-cell activities. The State shall establish mandatory minimum staffing requirements, including a determination of all direct supervision posts that must be filled on each shift. In establishing mandatory post coverage, the State shall include provisions for coverage for all required staff training as well as authorized leave time.

(12) Employment Practices Within 60 days of the effective date of this Agreed Order, the State shall continue to conduct a criminal record check for all current employees at Evins, taking appropriate actions where new information is obtained. At least as often as every year thereafter, the State shall update such criminal record checks for all employees who come into contact with youth. The Evins administration shall develop and implement policies and procedures to require that applicants and all current staff immediately report to it any arrest other than a minor traffic violation and also report the issuance of a restraining order entered against the staff member due to alleged abusive behavior.

(13)

Due Process Within 60 days of the effective date of this Agreed Order, ~he State shall implement policies, ~rocedures, and practices to reasonably ensure that youths confined to the Security Unit for disciplinary reasons for more than 24 hours receive an appropriate due process hearing by an impartial supervisory staff member to determine whether cause exists for continued disciplinary confinement.

(14) Youth Grievances Within 60 days of the effective date of this Agreed Order, the State shall develop and implement poliCies, procedures, and practices to reasonably ensure that there is a functional and responsive youth grievance system.

9

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 11 of 20
(IS) Admissions Intake and Orientation Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to establish a consistent, orderly admissions intake system conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining youth safety. Each youth entering Evins shall receive an effective orientation that shall include simple directions for reporting abuse, and assure youth of their right to be protected from harm and from retaliation for reporting allegations of abuse. Orientation shall also clearly set forth the rules youth must follow at the facility, explain how to access medical and mental health care and the grievance system, and provide other information pertinent to the youth's participation in facility programs.
(16) Classification Within 90 days of the effective date of this Agreed Order, the State shall develop and implement a classification system that considers factors including youth age, committing offense, gang affiliation, delinquent history and treatment needs to reasonably ensure that youth are safely placed within Evins, and provides for reclassification in appropriate circumstances.
B. TRAINING
(17) Training Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to provide staff, volunteers and contractual employees of Evins with training regarding their responsibilities. These policies, practices, and procedures shall include:
(a) a comprehensive training plan for all 8vins employees, reviewed and updated annually;
(b) requirements by job category;
(c) standards for qualification of trainers;
(d) processes for approval of the training curriculum;
(e) schedules for stafE training:
10

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 12 of 20
(f) criteria for determining whether Evins staff, volunteers, and contractual employees have mastered the instructional materials and methods being taught; and
(g) specific requirements by professional discipline for any continuing education credits established by licensure, certification, or recognized professional academies and organizations.
(18) Physical Restraint Training Within 60 days of the effective date of this Agreed Order, the State shall train direct care staff on its approved method for physical restraint that minimizes the risk of injury to youth. The State shall only use instructors who are appropriately qualified to teach the approved physical restraint method. All training shall include each staff member demonstrating the approved techniques and meeting the minimum standards for competency established by the method. Direct care staff skills in employing the method shall be periodically re-evaluated. Staff who demonstrate deficiencies in technique or method shall be removed from direct contact wiLh youth until Lhey meet minimum standards for competency established by the method. Juvenile Correctional Officer Supervisory staff shall be trained to evaluate their subordinates' use of the approved restraint methods and must provide evaluation of these methods in their reports addressing use of force incidents.
(19) Staff Training in Behavior Management, De-Escalation and Crisis Intervention Within 60 days of the effective date of this Agreed Order, the State shall provide appropriate competency-based training to staff in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth.
(20) Staff Training in Incident Reporting Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices so that staff are appropriately trained in incident reporting consistent with the type of incident reporting required under this Agreed Order.
11

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 13 of 20

V. COMPLIANCE AND QUALITY ASSURANCE

(21) Document Development and Revision Throughout the term of this Agreed Order, the State shall maintain, revise and/or develop as necessary other written documents incleding assessment instruments, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreed Order.

(22) Policy Review and Training Within 45 days of the effective date of this Agreed Order, the State shall submit all policies and procedures regarding the following topics to DOJ for review and comment: use of restraints and confinement to the Security Unit, use of force, youth grievance system, investigations of alleged staff misconduct, behavior management program, and reporting and review of staff misconduct and other incidents. Within 120 days of the effective date of this Agreed Order, the State shall commence initial and refresher training to all Evins staff with respect to any newly-implemented or revised policies and procedures. Such training shall be completed within 180 days of the effective date of this Agreed Order. The State shall document employee training.

(23)

Performance-Based Accountability System Within 90 days of the effective date of this Agreed Order, the State shall develop and implement a system designed to collect data necessary to assess and reasonably ensure the effective implementation and operation of all remedies instituted pursuant to this Agreed Order.

(24)

Corrective ActiQn Plans With regard to the protection from harm and training remedial measures addressed in this Agreed Order, throughout the term of this Agreed Order, the State shall develop and implement policies and procedures to address problems that are uncovered during the course of performance-based accountability activities. The State shall develop and implement corrective action plans to address these problems in such a manner as to prevent them from occurring again in the future.

VI . MONITORING

(25) The DOJ shall monitor the State's compliance with this Agreed Order. The DOJ's monitoring shall include, on-Sl~e inspections of Evins, interviews with Evins youth, staff, and administrators, and a review of relevant documents. The DO] shall retain a juver.lle justice consultant wi~h

12

Case 708-cv-00038 Document 11 Filed 04/11/2008 Page 14 of 20

expertise in protection of youth from harm within the context of the operation of a secure juvenile justice facility to assist the DOJ in its monitoring activities. DOJ shall routinely report its assessment of the state's compliance with the paragrdphs of this Agreed Order to the Court. The DOJ's reports s~all include the factors cons ide red by the DOJ j.n monitoring the State's compliance I and shall include: (1) a verbatim recitation of each paragraph of the Agreed Order; (2) the DOJ's assessment of the State's compliance wi~h each paragraph of the Agreed Order, including a narrative of the information the DOJ considered in reaching its assessment; (3) to the extent that the DOJ's assessment is that the State is not in compliance with any particular paragraph(s) of the Agreed Order, the DOJ's report shall include the specific factual basis for this assessment and technical assistance recommendations to asslst the State in achieving compliance with such paragraph(s); and (4) identify any noncompliance with mere technicalities or temporary failures to comply during a period of otherwise sustained compliance. The DOJ's first report shall be submitted within six months of the effective date of this Agreed Order, and subsequent reports shall be filed every six months thereafter. Until this matter is dismissed, the DOJ shall have unrestricted access to, and shall, upon request, receive copies of any documents, records, and information relating to the implementation of this Agreed Order. The State shall provide any requested documents, records, and informatlon to the DOJ as soon as possible, but no later than 30 days from the date of the request. The DOJ shall have reasonable access to Evins, including any newly constructed, renovated and/or designated buildings and facilities; staff and youth, including private interviews with staff; and youth records, documentation, and information relating to the issues addressed in this Agreed Order. The State shall instruct all employees to cooperate fully with the DOJ. The DOJ agrees to provide the State with reasonable notice of any visit or inspection, although the DOJ and the State agree that no notice is required in an emergency situation where the life, health, or immediate safety of youth is at issue.

VII. IMPLEMENTATION AND TERMINATION

(26)

Informa~ion to Employees Within 90 days of the effective date of this Agreed Order, the State shall reasonably ensure that all current and future relevant State employees understand the terms of this Agreed Order (to the extent

} 3

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 15 of 20
necessary to carry out their job duties and responsibilities) and implement the terms of this Agreed Order.
(28) Integration This Agreed Order shall constitute tte entire integrated agreement of the parties with respect to the United States' claims concerning protection from harm. With the exception of DOJ's findings letter referenced in ~ 0 hereof, and any DOJ technical assistance recommendations, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding.
(29) Enforcement If DOJ believes that the State has failed to comply with any obligation under this Agreed Order, DOJ will, prior to seeking judicial action to enforce the terms of this Agreed Order, give written notice of the failure to the State. The parties shall conduct good-faith negotiations to attempt to resolve the dispute. These negotiations will last for a maximum of 30 days from the date of :JOJ's written notlce. DOJ commits to work in good faj.th w1th the State to avoid enforcement actions. However, 1n case of an emergency posing an immediate threat to the health or safety of youth, the DOJ may omit the notice and negotiation requirements herein, before seeking jUdicial action.
(30) Compliance Coordinator The State shall appoint a Compliance Coordinator to coordinate and oversee the State's compliance with this Agreed Order. The Compliance Coordinator shall have no other assigned duties.
(31) Termination This Agreed Order shall terminate three years from the date it is ordered by the Court. The Agreed Order may also end earlier than three years from the date it is ordered by the Court if the State has substantially complied with this Agreed Order for a pe~iod of 18 months. Early termination of the Agreed Order may be sought only upon joint motion of the parties. The parties agree that twelve months prior to the termination of this Agreed Order, the Court shall conduct a status conference regarding the status of the State's compliance with this Order. At this status conference, the Court will entertain any enforcement actions and/or requests for appropriate relief.
] 4

Case 7'08-cv-00038 Document 11 Filed 04/11/2008 Page 16 of 20

(32) Reservation of Clvil Action In the unanticipated event that, within 90 days of the termination of this Agreed Order, it does not appear to the DOJ that the State will achieve substantial compliance with the provisions of this Agreed Order, the parties agree that they will engage in good faith negotiations for a period lasting nO more than 60 days regarding an extension of the term of this Agreed Order. If agreed to by the parties, an appropriate motion shall be filed with the Court at least 30 days prior to the termination of this Agreed Order. In the unanticipated event that the State has not achieved substantial compliance with the provisions of this Agreed Order by its termination date and the parties are unable to negotiate an extension of the term of this Agreed Order, the parties acknowledge that the DOJ may institute litigation (either by moving the court to react~vate the complaint filed in this matter or by commencing a new civil action) to address an ongoing pattern or practice of violations of the federal rights of youths at Evins. The parties acknowledge that a civil action would be predicated upon information obtained during the term of the Agreed Order and, accordingly, would not be barred by res judicata or collateral estoppel. The Sta~e agrees that, in such litigation, the DOJ's findings letter referenced in Paragraph 0 of this Agreed Order shall be deemed admissible and probative of notice to the State of violations of federal rights at Evins and the necessary remedial measures to address those violations.

(33)

Defense of Agreed Order The parties agree to defend the provisions of this Agreed Order. The parties shall notify each other of any court challenge to this Agreed Order. In ~he event any provision of this Agreed Order is challenged in any local or State court, removal to a federal court shall be sought.

(34) Successors This Agreed Order shall be binding on all successors, assignees, employees, agents and all those working for or on behalf of the State.

(35) No Waiver for Failure to Enforce Failure by either party to enforce this entire Agreed Order or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines or provisions o[ this Agreed Order.

(36) Notice "NoticeU under this Agreed Order shall be provided by first class mail, facsimile, electronic mail, or any

15

Case 7 08-cv-00038 Document 11 FIled 04/11/2008 Page 17 of 20
combination of those cOffir(1unication methods. Notice shall be provided to the Governor of Texas and to the Attorney General of Texas.
(37) Unforeseen Delay Jf any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreed Order, the State shall notify the DOJ in writing within 20 calendar days of the time that the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perform under this Agreed Order. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
(38) Non-Retaliation The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Agreed Order.
(39) Subheadinas All subheadings in this Agreed Order are wrltten for the convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shaJl follow the text of each provision.
(40) Severability In the event any provision of this Agreed Order is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreed Order.
(41) Attorney's Fees and Expenses Each party shall bear the cost of their fees and expenses incurred in connection with this cause.
(42) Extenslon of Deadlines Either party may pe~ition the Court for extension of any of the deadlines specified in this Agreed Order, for good cause shown.
16

Case 7 08-cv-00038 Document 11 Filed 04/11/2008 Page 18 of 20

FOR THE UNITED STATES:
DONALD J. DEGABRIELLE, JR. United States Attorney Southern District of Texas

Acting Assis General
Civil 'ghts Division

Chief Special Litigation Section
1!trif4 'v dp11?1/~/. -· ANIEL H. WEISS Deputy Chief SHERIDAN L. ENGLAND Trial Attorney U.S. Department of Justlce Civil Rlghts Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

17

Case 7.08-cv-00038 Document 11 FIled 04/11/2008 Page 19 ot 20

FOR THE STATE:

Texa"ZC711G- Conservator
~fEMARTi~

Superintendent

(-;<Y«A~.</:-~ -2 . Evins Regional Juvenile Center

~/'7

J

J;';[M TODD
/Assistant Attorney General ~ State of Texas

I

18

Case 708-cv-00038 Document 11 Filed 04/11/2008 Page 20 of 20
IX. FINDINGS MADE PURSUANT TO THE PRISON LITIGATION REFORM ACT Having considered the foregoing, the evidence submitted in
support of the entry of this Agreed Order, and based on the stipulations of the Parties, the Court hereby finds:
1. The prospective relief in the Agreed Order is necessary to correct the vioJations of the federal rights of youths at Evins set forth in the Complaint.
2. The Agreed Order is narrowly drawn, extends no further Lhan necessary to correct these violations of federal rights, and is the least intrusive means necessary to correct these violations of federal rights.
3. The Agreed Order will not have an adverse impact on public safety or the operation of a criminal justice system. (PLRA, 18 U.S.C. § 3626 (a) (1»
Wherefore, it is hereby ORDERED that the Agreed Order be entered as a judgment of the Court. This order is not an adjudication on the merits and therefore shall have no preclusive effect except between the parties to this litigation.
SO ORDERED this _S_ -.... Itday.O.f..~ _~.___ , 200i'.r~r~:~-/-"-i~
United States District Judge Southern District of Texas
19

 
 Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

UNITED STATES OF AMERICA,

)

950 Pennsylvania Avenue, N.W. )

Washington, D.C. 20530

)

)

Plaintiff

)

)

vs.

)

)

STATE OF TEXAS

)

P.O. Box 12428

)

Austin, Texas 78711-2428

)

County of Residence:

)

Travis;

)

)

TEXAS YOUTH COMMISSION

)

4900 N. Lamar Blvd.

)

Austin, TX 78765

)

County of Residence:

)

Travis;

)

)

CHERIE TOWNSEND,

)

Executive Director

)

Texas Youth Commission

)

4900 N. Lamar Blvd.

)

Austin, TX 78765

)

County of Residence:

)

Travis;

)

)

EDUARDO MARTINEZ,

)

Superintendent

)

Evins Regional Juvenile Center )

3801 East Monte Cristo Road

)

Edinburg, TX 78541

)

County of Residence:

)

Hidalgo,

)

)

)

)

)

Defendants.

)

Civil Action No. 7:08 cv 00038
COMPLIANCE REPORT

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 2 of 20
UNITED STATES’ SIXTH COMPLIANCE REPORT Pursuant to Paragraph 25 of the Agreed Order in the abovecaptioned matter, the United States submits to this Honorable Court its sixth report assessing the State’s compliance with the Agreed Order. The report includes the factors considered by the DOJ in monitoring the State’s compliance and includes: (1) a verbatim recitation of each paragraph of the Agreed Order; (2) the DOJ’s assessment of the State’s compliance with each paragraph of the Agreed Order, including a narrative of the information the DOJ considered in reaching its assessment; (3) to the extent that the State is not in compliance with any particular paragraph(s) of the Agreed Order, the report includes the specific factual basis for this assessment and technical assistance recommendations to assist the State in achieve compliance with such paragraphs(s); and (4) the report identifies any noncompliance with mere technicalities or temporary failures to comply during a period of otherwise sustained compliance. In reaching the conclusions detailed below, the DOJ reviewed policies, reports, investigation documents, committee minutes, staffing rosters, background checks, videos, and other administrative materials from the Texas Youth Commission (“TYC”) and Evins Regional Juvenile Center (“Evins”). We also toured Evins on February 7-11, 2011. We interviewed numerous TYC officials, members of Evins management, direct care staff, medical care staff, and youth. We requested and reviewed additional documents after the February 2011 tour.
2

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 3 of 20
As detailed below, DOJ’s assessment is that the State has achieved compliance with the Agreed Order. DOJ therefore has no objection to the termination of this matter, as set out in the Agreed Order, on May 5, 2011.
COMPLIANCE RATINGS (1) Protection from Harm The State shall, at all times, provide
youth at Evins with reasonably safe living conditions, and shall implement policies, procedures, and practices to reasonably ensure that youth are protected from harm by staff (e.g., improper restraint and excessive use of force) and harm from other youth.
This Paragraph provides the overarching compliance standard. DOJ’s monitoring of compliance with this Paragraph has considered the State’s implementation of the remedial measures contained in Paragraphs 2-24, which are discussed in detail below.
In addition, since filing our second Compliance Report in May 2009, DOJ’s monitoring of compliance with this Paragraph has focused on concerns about youth-on-youth extortion and youth possession of contraband. In our fifth Compliance Report, filed in November 2010, we found that that the State had made progress in controlling these problems. Based on data gathered in April 2010 as part of Evins’ participation in the Performance-based Standards (PbS) project, a nationally-recognized improvement program for juvenile facilities, we found the State in partial compliance with this Paragraph in our fifth Compliance Report. This finding of partial compliance indicated that the State had made notable progress in achieving compliance, but that significant work remained.
3

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 4 of 20
PbS data are collected twice a year, in April and October, but the data are not available for several weeks after collection. The data from Evins can be compared to the “National Field Average,” which is gathered from facilities similar to Evins throughout the country.1 PbS data collected at Evins in April 2010 indicated that Evins exceeded the national field average in assaults on staff, the percentage of youths and staff who reported that they feared for their safety within the preceding six months, and the use of physical and mechanical restraints. After our fifth Compliance Report was filed, PbS data collected at Evins during October 2010 became available. This data showed that Evins was below the national field average in each of the areas in which it had exceeded the average in April 2010.
In our February 2011 tour, we reviewed information about areas in which the PbS data indicated a potential basis for concern. During that tour, we did not find indications that youth or staff concerns about safety were a consistent or systemic problem. We did not find information indicating a concern with respect to the use of restraints. We also found that Evins had maintained its success in addressing extortion and possession of contraband. Overall, the information gathered in our February 2011 tour was more consistent with the improved October 2010 PbS data than with the more
1 The PbS Project uses a mathematical formula which allows comparison of facilities of different capacities. It is noted that data is largely “self-reported” and thus the quality of the data is dependent upon the ability of each facility or jurisdiction to accurately collect information about their respective operations.
4

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 5 of 20
concerning April 2010 data. We also reviewed the PbS Facility Improvement Plan completed by Evins after the April 2010 reports, which described strategies used by Evins to address the April 2010 data that was the basis for our partial compliance finding. We found that the Facility Improvement Plan represented a strong effort to address the concerns raised by the April 2010 data through measurable programmatic goals.
In addition, in evaluating compliance with this Paragraph, we considered statements made in an anonymous letter to our expert consultant shortly after the February 2011 tour, and the State’s response to those statements. The anonymous letter alleged that weak youth were being moved from Evins, while the aggressive youth preying on the weaker youth suffered no consequences. We sent the letter to the State, with a request for its response. On April 22, 2011, the State provided a detailed response that discussed each youth transferred from Evins since February 2010, and the explanations for those transfers. The response described 16 transfers. Most of the transfers, the response explained, were undertaken for safety reasons, such as gang affiliations or protection from medical or mental health-related issues. We found the explanations for the transfers to be reasonable, and a sufficient response to the statements that were made in the anonymous letter. We also noted that the response described a situation in which Evins responded to assaults on a youth by imposing disciplinary consequences and by referring matters to the Texas Youth Commission Office of the Inspector General for
5

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 6 of 20
investigation. We appreciate that the State responded in a
cooperative and thorough matter to our inquiry.
Based on the foregoing information, and based on the State’s
continued compliance with the 15 additional protection from harm
standards in the Agreed Order, we now find that the State has
achieved compliance with this Paragraph.
Compliance Rating: Compliance.
(2) Protection from Undue Restraints Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to reasonably ensure that only safe methods of restraint are used at Evins, and only in those circumstances necessary for safety and security, and that restraints are never used to punish youth.
As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
(3) Reporting of Staff Misconduct and Other Serious Incidents Within 60 days of the effective date of this Agreed Order, the State shall develop and implement appropriate policies and procedures which contain definitions approved by DOJ after review and comment by the DOJ for the terms “use of force,” “staff-on-youth assault,” “youth-on-youth assault,” and “inappropriate staff relationships with youth,” and will develop and implement such policies, procedures, and practices so that:
(a) appropriate Evins staff report all incidents of use of force, staff-on-youth and youth-on-youth assault, inappropriate staff relationships with youth, and sexual misconduct between youth, to appropriate individuals at the facility;
(b) appropriate Evins staff notify appropriate supervising officials and document in writing all incidents involving mechanical restraints to control youth; incidents resulting in bodily injury to youth and/or staff;
6

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 7 of 20
inappropriate staff relationships with youth; sexual misconduct between youth; (c) reporting may be done without fear of retaliation; and (d) all such incidents are appropriately documented and reported, including the facts of the incident, any injury that occurred as a result of the incident, and in a way that permits review. As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
(4) Review of Incidents by Senior Management Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices so that senior management review all incidents involving mechanical restraints to control youth, incidents resulting in bodily injury to youth and/or staff, inappropriate staff relationships with youth, and sexual misconduct between youth. As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
(5) Health Care Inquiries Regarding Injury If, in the course of the youth’s infirmary visit, a health care provider suspects staff-on-youth abuse, that health care provider shall: (a) report the suspected abuse to the appropriate officials, the Office of Inspector General, law enforcement and social service agencies; (b) adequately document the matter in the youth’s medical record; and (c) complete an incident report.
Evins maintained its compliance with the requirements of this Paragraph. We have found compliance with this Paragraph in every Compliance Report.
7

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 8 of 20
Compliance Rating: Compliance.
(6) Uses of Force Within 60 days of the effective date of this Agreed Order, the State shall develop and implement comprehensive policies, procedures, and practices governing uses of force, ensuring that the least amount of force necessary for the safety of staff, youth residents, and visitors is used on youth. As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
(7) Documentation and Tracking of Investigations Within 60 days of the effective date of this Agreed Order, the State shall develop policies, practices, and procedures for documenting all incidents of use of force, staff-on-youth assault, youth-on-youth assault, inappropriate staff relationships with youth, sexual misconduct between youth, and for documenting and tracking the status and outcome of all investigations. Where there is evidence of staff misconduct, the State shall initiate appropriate personnel actions and systemic remedies, where appropriate.
As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
(8) Investigations Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to reasonably ensure an effective system for investigation of uses of force, physical restraint, alleged child abuse, youth-on-youth assault, and alleged sexual contacts. As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.
8

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 9 of 20

(9) Reporting Possible Criminal Violations Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, practices, and procedures governing when possible criminal violations must be reported to the appropriate law enforcement authorities.
As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.

(10)

Behavior Management Program Within 90 days of the effective date of this Agreed Order, the State shall develop and implement an evidence-based behavior management program. The behavior management program shall be implemented throughout the day, including during school time. The State shall develop and implement policies, procedures, and practices to reasonably ensure that mental health staff provide regular consultation regarding behavior management to custody and other staff involved in the behavior management program, and shall develop and implement a mechanism to assess the effectiveness of interventions utilized.

The State has long been engaged in the transformation of its behavior management program. We continue to find, as in our fifth Compliance Report, that the current program is functioning properly. In previous Compliance Reports, we described the ambivalence of some staff toward this program and their concerns that the revised program’s focus on positive behavior programming had resulted in youth no longer being held accountable for their actions. We also described concerns about the effectiveness of positive behavior reinforcements in the Evins program. As noted in our fifth Compliance Report, however, more recently staff seems to have

9

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 10 of 20

generally embraced the positive reinforcement approach. We also found that youth now generally understand the program. Compliance Rating: Compliance

(11)

Staffing Within 60 days of the effective date of this Agreed Order, the State shall provide sufficient numbers of adequately trained direct care and supervisory staff to (a) supervise youth safely, (b) protect youth from harm, (c) allow youth reasonable access to medical and mental health services, and (d) provide youth with adequate time spent in out-of-cell activities. The State shall establish mandatory minimum staffing requirements, including a determination of all direct supervision posts that must be filled on each shift. In establishing mandatory post coverage, the State shall include provisions for coverage for all required staff training as well as authorized leave time.

As in our fifth Compliance report, we find that Evins meets the requirements of this Paragraph. Evins exceeds the staffing ratios set out in State law almost 100% of the time. In addition, as we previously noted, staff have learned over time how to effectively provide supervision in individual dorm rooms, which have replaced the open bay dormitories in existence when the Agreed Order was signed. Compliance Rating: Compliance.

(12)

Employment Practices Within 60 days of the effective date of this Agreed Order, the State shall continue to conduct a criminal record check for all current employees at Evins, taking appropriate actions where new information is obtained. At least as often as every year thereafter, the State shall update such criminal record checks for all employees who come into contact with youth. The Evins administration shall develop and implement policies and procedures to require that applicants and all current staff immediately report to it any arrest other than a minor traffic violation and also report the issuance of a restraining order entered against the staff member due to alleged abusive behavior.

10

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 11 of 20

Evins maintained its compliance with the requirements of this Paragraph. We have found compliance with this Paragraph in every Compliance Report. Compliance Rating: Compliance.

(13)

Due Process Within 60 days of the effective date of this Agreed Order, the State shall implement policies, procedures, and practices to reasonably ensure that youths confined to the Security Unit for disciplinary reasons for more than 24 hours receive an appropriate due process hearing by an impartial supervisory staff member to determine whether cause exists for continued disciplinary confinement.

As in our third, fourth and fifth Compliance Reports, we

find that Evins meets the requirements of this Paragraph.

Compliance Rating: Compliance.

(14)

Youth Grievances Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to reasonably ensure that there is a functional and responsive youth grievance system.

As in our fourth and fifth Compliance Reports, we find that Evins meets the requirements of this Paragraph. Compliance Rating: Compliance.

(15) Admissions Intake and Orientation Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to establish a consistent, orderly admissions intake system conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining youth safety. Each youth entering Evins shall receive an effective orientation that shall include simple directions for reporting abuse, and assure youth of their right to be protected from harm and
11

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 12 of 20

from retaliation for reporting allegations of abuse. Orientation shall also clearly set forth the rules youth must follow at the facility, explain how to access medical and mental health care and the grievance system, and provide other information pertinent to the youth’s participation in facility programs.
As in our third, fourth and fifth Compliance Reports, we
find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.

(16)

Classification Within 90 days of the effective date of this Agreed Order, the State shall develop and implement a classification system that considers factors including youth age, committing offense, gang affiliation, delinquent history and treatment needs to reasonably ensure that youth are safely placed within Evins, and provides for reclassification in appropriate circumstances.

As we noted in our fifth Compliance Report, improved policies and the completed physical modifications at Evins allow the facility to do a significantly better job in classification, and to provide youth with housing placements that are appropriate in terms of treatment, programming and safety. Compliance Rating: Compliance.

(17)

Training Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices to provide staff, volunteers and contractual employees of Evins with training regarding their responsibilities. These policies, practices, and procedures shall include:

(a) a comprehensive training lan for all Evins employees, reviewed and updated annually;

(b) requirements by job category;

(c) standards for qualification of trainers;

(d) processes for approval of the training curriculum;

12

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 13 of 20

(e) schedules for staff training;
(f) criteria for determining whether Evins staff, volunteers, and contractual employees have mastered the instructional materials and methods being taught; and
(g) specific requirements by professional discipline for any continuing education credits established by licensure, certification, or recognized professional academies and organizations.
As in our fourth and fifth Compliance Reports, we find that
Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.

(18)

Physical Restraint Training Within 60 days of the effective date of this Agreed Order, the State shall train direct care staff on its approved method for physical restraint that minimizes the risk of injury to youth. The State shall only use instructors who are appropriately qualified to teach the approved physical restraint method. All training shall include each staff member demonstrating the approved techniques and meeting the minimum standards for competency established by the method. Direct care staff skills in employing the method shall be periodically re-evaluated. Staff who demonstrate deficiencies in technique or method shall be removed from direct contact with youth until they meet minimum standards for competency established by the method. Juvenile Correctional Officer Supervisory staff shall be trained to evaluate their subordinates’ use of the approved restraint methods and must provide evaluation of these methods in their reports addressing use of force incidents.

As in our fifth Compliance Report, we find that Evins meets

the requirements of this Paragraph. Our fourth and fifth Compliance

Reports noted our concerns regarding staff initially being trained

to use their body weight during passive restraints, a potentially

dangerous technique. As we described in our fifth Compliance

Report, the State responded appropriately to our expression of

concern, including by revising its training so that staff are no

longer being instructed to use body weight in passive restraints.

13

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 14 of 20

In February 2011, we watched training videos and confirmed that the State continues to implement changes in physical restraint training in response to the concern we raised and the technical assistance we provided. Compliance Rating: Compliance.

(19)

Staff Training in Behavior Management, De-Escalation and Crisis Intervention Within 60 days of the effective date of this Agreed Order, the State shall provide appropriate competency-based training to staff in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth.

As in our fifth Compliance Report, we find that Evins meets

the requirements of this Paragraph. We have observed the State’s

appropriate response to staff concerns about holding youth

accountable in the revised behavior management programming,

including by continued modifications to the behavior management

program and by providing staff more tools to deal with youths’

challenging behaviors.

Compliance Rating: Compliance.

(20)

Staff Training in Incident Reporting Within 60 days of the effective date of this Agreed Order, the State shall develop and implement policies, procedures, and practices so that staff are appropriately trained in incident reporting consistent with the type of incident reporting required under this Agreed Order.

As in our fourth and fifth Compliance Reports, we find that

Evins meets the requirements of this Paragraph.

Compliance Rating: Compliance.

14

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 15 of 20

(21)

Document Development and Revision Throughout the term of this Agreed Order, the State shall maintain, revise and/or develop as necessary other written documents including assessment instruments, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreed Order.

As in all past Compliance Reports, we find that Evins meets the requirements of this Paragraph. Compliance Rating: Compliance.

(22)

Policy Review and Training Within 45 days of the effective date of this Agreed Order, the State shall submit all policies and procedures regarding the following topics to DOJ for review and comment: use of restraints and confinement to the Security Unit, use of force, youth grievance system, investigations of alleged staff misconduct, behavior management program, and reporting and review of staff misconduct and other incidents. Within 120 days of the effective date of this Agreed Order, the State shall commence initial and refresher training to all Evins staff with respect to any newly-implemented or revised policies and procedures. Such training shall be completed within 180 days of the effective date of this Agreed Order. The State shall document employee training.

As in our third, fourth and fifth Compliance Reports, we

find that Evins meets the requirements of this Paragraph.

Compliance Rating: Compliance.

(23)

Performance-Based Accountability System Within 90 days of the effective date of this Agreed Order, the State shall develop and implement a system designed to collect data necessary to assess and reasonably ensure the effective implementation and operation of all remedies instituted pursuant to this Agreed Order.

We again find Evins meets the requirements of this Paragraph. We found Evins in compliance with the requirements of this Paragraph in our third, fourth and fifth Compliance Reports.

15

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 16 of 20

As we previously reported, TYC is participating in the Performance-Based Standards project (“PbS”). PbS was begun in 1995 through a grant from the US Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (“OJJDP”), to improve the conditions reported by the 1994 Conditions of Confinement study of 1,000 secure facilities. Directed by the Council of Juvenile Correctional Administrators (“CJCA”), PbS asks participants to collect and analyze data to target specific areas for improvement.
As noted in our previous Compliance Reports and in our discussion of Paragraph 1, above, we review PbS data collected at Evins as part of our analysis of whether the State is in compliance with the requirements of the Agreed Order’s overarching protection from harm standard. Our discussion of compliance Paragraph 1 notes that PbS data collected at Evins in October 2010 and our review of the PbS Facility Improvement Plan completed by Evins in response to data collected in April 2010 helped us to conclude that Evins is now in compliance with the requirements of Paragraph 1. Compliance Rating: Compliance.

(24)

Corrective Action Plans With regard to the protection from harm and training remedial measures addressed in this Agreed Order, throughout the term of this Agreed Order, the State shall develop and implement policies and procedures to address problems that are uncovered during the course of performance-based accountability activities. The State shall develop and implement corrective action plans to address these problems in such a manner as to prevent them from occurring again in the future.

16

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 17 of 20

As we found in our third, fourth and fifth Compliance Reports, we find that Evins meets the requirements of this Paragraph.
Compliance Rating: Compliance.

(25)

The DOJ shall monitor the State’s compliance with this Agreed Order. The DOJ’s monitoring shall include, on-site inspections of Evins, interviews with Evins youth, staff, and administrators, and a review of relevant documents. The DOJ shall retain a juvenile justice consultant with expertise in protection of youth from harm within the context of the operation of a secure juvenile justice facility to assist the DOJ in its monitoring activities. DOJ shall routinely report its assessment of the State’s compliance with the paragraphs of this Agreed Order to the Court. The DOJ’s reports shall include the factors considered by the DOJ in monitoring the State’s compliance, and shall include: (1) a verbatim recitation of each paragraph of the Agreed Order; (2) the DOJ’s assessment of the State’s compliance with each paragraph of the Agreed Order, including a narrative of the information the DOJ considered in reaching its assessment; (3) to the extent that the DOJ’s assessment is that the State is not in compliance with any particular paragraph(s) of the Agreed Order, the DOJ’s report shall include the specific factual basis for this assessment and technical assistance recommendations to assist the State in achieving compliance with such paragraph(s); and (4) identify any noncompliance with mere technicalities or temporary failures to comply during a period of otherwise sustained compliance. The DOJ’s first report shall be submitted within six months of the effective date of this Agreed Order, and subsequent reports shall be filed every six months thereafter. Until this matter is dismissed, the DOJ shall have unrestricted access to, and shall, upon request, receive copies of any documents, records, and information relating to the implementation of this Agreed Order. The State shall provide any requested documents, records, and information to the DOJ as soon as possible, but no later than 30 days from the date of the request. The DOJ shall have reasonable access to Evins, including any newly constructed, renovated and/or designated buildings and facilities; staff and youth, including private interviews with staff; and youth records, documentation, and information relating to the issues addressed in this Agreed Order. The State shall instruct all employees to cooperate fully with the DOJ. The DOJ agrees to provide the State with reasonable notice of any visit or inspection, although the DOJ and the State agree that no notice is required in an emergency situation where

17

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 18 of 20

the life, health, or immediate safety of youth is at issue.

As we found in our second, third, fourth and fifth Compliance Reports, we find that Evins meets the requirements of this paragraph. Compliance Rating: Compliance.

(26)

Information to Employees Within 90 days of the effective date of this Agreed Order, the State shall reasonably ensure that all current and future relevant State employees understand the terms of this Agreed Order (to the extent necessary to carry out their job duties and responsibilities) and implement the terms of this Agreed Order.

As we found in all previous Compliance Reports, we find that

Evins meets the requirements of this paragraph.

Compliance Rating: Compliance.

18

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 19 of 20

Respectfully Submitted,
FOR THE UNITED STATES:
José Angel Moreno United States Attorney Southern District of Texas

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
Jonathan M. Smith Chief Special Litigation Section
/s/ Shelley R. Jackson SHELLEY R. JACKSON Massachusetts Bar: 548997 Deputy Chief U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 305-3373

19

Case 7:08-cv-00038 Document 35 Filed in TXSD on 05/05/11 Page 20 of 20
CERTIFICATE OF SERVICE I hereby certify that on May 5, 2011, a true and correct copy of the foregoing COMPLIANCE REPORT was served on counsel for Defendants as identified below via the ECF system. James C. Todd Office of the Attorney General PO Box 12548 Capital Station Austin, TX 78711-2548 512-475-4055 512-320-0667 (fax) Jim.todd@oag.state.tx.us
/s/ Shelley R. Jackson Shelley R. Jackson
20

 
 U.S. Department of Justice
Civil Rights Division
Assistant Attorney General 950 Pennsylvania Avenue, NW - RFK Washington, DC 20530
March 15, 2007
The Honorable Rick Perry Governor of Texas P.O. Box 12428 Austin, Texas 78711-2428
Re: Evins Regional Juvenile Center, Edinburg, Texas
Dear Governor Perry:
I write to report the findings of the Civil Rights Division’s investigation of conditions at the Evins Regional Juvenile Center (“Evins”). On June 9, 2006, we notified you of our intent to conduct an investigation of Evins pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). As we noted, both CRIPA and Section 14141 give the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
On September 12-15, 2006, we conducted an on-site inspection at Evins with an expert consultant in juvenile justice. We interviewed staff, youth residents, teachers, school administrators, and administrative staff. Before, during, and after our visits, we reviewed an extensive number of documents, including policies and procedures, incident reports, investigation reports, infirmary logs, medical records, grievances from youth residents, staff personnel files, internal quality assurance reports, unit logs, orientation materials, staff training materials, and school records. In keeping with our pledge of transparency and to provide technical assistance where appropriate regarding our investigatory findings, we conveyed our preliminary findings to facility and Texas Youth Commission (TYC) officials at the close of our on-site visit.
We commend the staff at Evins for their helpful and professional conduct throughout the course of the investigation.
1


We received full cooperation with our investigation and appreciate the State’s receptiveness to our consultant’s on-site recommendations.
Consistent with the statutory requirements of CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. 42 § U.S.C. 1997b. As described more fully below, we conclude that certain conditions at Evins violate the constitutional rights of the youth residents. In particular, we find that children confined at Evins are not adequately protected from harm.
Notwithstanding the foregoing, we are pleased to report that many of the youths that we interviewed at Evins had favorable things to say about specific staff members and indicated that these individuals carried out their job responsibilities in a professional and fair manner. In addition, our investigation found that in many instances, Evins has taken strong disciplinary action, including termination of employment, against employees who use inappropriate force techniques.
I. BACKGROUND
The State of Texas, through TYC, owns and operates the Evins Regional Juvenile Center, located in Edinburg, Texas. Evins houses male juveniles who have been adjudicated delinquent by the Texas juvenile courts and committed to TYC care. Evins originally opened in 1994 as a 48 bed unit. However, Evins expanded to 240 beds–-its present capacity–-in 1997. Evins houses youths who are typically between the ages of 15 and 20.
Evins houses youths in several manners. First, the original two housing units, known as “Building 1" and “Building 2,” have 24 individual sleeping rooms that are divided into 12 room pods with a day room (i.e., common living area) in each pod. Building 1 houses youths in Evins’ chemical dependency treatment program, while Building 2 houses youths on psychotropic medications and youths who are too young to be placed in the general population. Second, the two newer housing units, known as “Building 3" and “Building 4" are open bay dormitory styled constructions. Each building is divided into four 24 bed pods that have no individual rooms. Each of these buildings contains a security station in the middle of each pod.
The Evins campus also contains an administration building, two school buildings, a medical/social services office, a dining
2


hall, a vocational building, a security building, a staff training building, and a maintenance shop.
II. LEGAL STANDARDS
The Eighth Amendment requires that a state provide detainees with basic human needs, including protection from harm. Hare v. City of Corinth, 135 F.3d 320, 324 (5th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). In Morales v. Turman, the U.S. District Court for the Eastern District of Texas made clear that physical abuse of juveniles was intolerable under the Constitution. 364 F. Supp. 166, 173 (E.D. Tex. 1973) See also Bright v. Hickman, 96 F. Supp. 2d. 572, 576–77 (E.D. Tex. 2000).
Additionally, corrections officers have a duty to protect inmates from violence at the hands of other inmates. Farmer, 511 U.S. at 833. Officials violate the Constitution when they act “with ‘conscious or callous indifference’ to their duty to protect [a] prisoner from others.” Hare, 135 F.3d at 327 (quoting Johnston v. Lucas, 786 F.2d 1254, 1260 (5th Cir. 1986)). Corrections officials may be constitutionally liable when they “have failed to control or separate prisoners who endanger the physical safety of other prisoners and the level of violence has become so high . . . it constitutes cruel and unusual punishment.” Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir. 1981) (citation omitted).
The Eighth Amendment’s prohibition against cruel and unusual punishment forbids the unnecessary and wanton infliction of pain, which includes the unwarranted or excessive use of restraints. See Hope v. Pelzer, 536 U.S. 730, 737 (2002). Minimal constitutional standards require that physical restraints only be used when a youth is out of control and poses a serious danger to himself or others. See also Morales, 562 F.2d at 998 n.1 (incidences of prolonged isolation and unsupervised use of physical restraints could be adequately addressed under the Eighth Amendment).
III. FINDINGS
We find that Evins fails to adequately protect the youths in its care from youth and staff violence.
A. Youth Violence
Juveniles in institutions have a constitutional right to be reasonably safe from harm inflicted by other juveniles.
3


Facilities must maintain sufficient structure, safeguards, and staffing to ensure reasonable safety. Our investigation revealed an unacceptably high rate of youth violence at Evins. The atmosphere at Evins is chaotic and dangerous. Youths frequently fight with each other without detection or intervention by staff. Staff members and youths we interviewed consistently reported that staff members are unable to manage youths’ behavior due to inadequate staffing. According to information provided by TYC, there were 1,025 reported youth-on-youth assaults at Evins in 2005, an average of 2.8 per day. For the first six months of 2006, there were 568 reported youth-on-youth assaults, an average of 3.1 per day. This frequency of assaults is a substantial departure from generally accepted professional standards. Nationally, facilities comparable to Evins typically report an average of .241 youth on youth assaults per 100 days of confinement which, for Evins, correlates to 1.235 assaults per 100 days of confinement.1 Thus, the rate of assaults at Evins is approximately five times the national average.
While the number of youth-on-youth assaults at Evins is alarming, the actual number of youth assaults is likely even higher than what is reported. During our tour, youths consistently reported that there are numerous incidents of youthon-youth violence about which staff are unaware. Although Evins has installed cameras to monitor the dormitories, youths are able to avoid being recorded by fighting in the cameras’ blind spots. Residents reported that it is easy to arrange fights out of staff’s line of sight during recreation by “catching the wall,” which refers to a fight that occurs near a building but outside the vision of either staff or the security cameras. Youths we interviewed indicated that they plan fights in the bathrooms on the living units, which are also outside the range of the security cameras. In light of the high potential for undetected and unreported youth violence, the amount of violence is likely much higher than what the facility documents.
The following examples illustrate the serious nature of youth-on-youth assaults:
• On August 25, 2006, a youth assaulted another youth who was coming out of a meeting with his caseworker, striking him with closed fists on his back and head. The youths continued to strike each other with closed
1Data comparison based upon Performance-based Standards (PbS), a self-improvement and accountability system developed by the Council of Juvenile Correctional Administrators.
4


fists. The initiating youth escaped from an attempted physical restraint by a Juvenile Correctional Officer (“JCO”) and grabbed a broom, which he started swinging at the other youth before staff were able to restrain him.
• On June 22, 2006, at least seven youths were involved in a riot in the cafeteria. Staff attempted several unsuccessful physical restraints and ultimately had to deploy pepper spray to subdue two youths.
• On May 27, 2006, one youth attacked another youth while they were in line to go to the cafeteria, punching him in the face and the back of the head. While staff were attempting to restrain the youths, one youth headbutted the other in the face, seriously injuring his jaw.
• On April 16, 2006, a youth was assaulted from behind by another youth, striking him with closed fists on his neck, shoulders, and face.
• On March 17, 2006, a staff member walked into a group room and witnessed a youth bleeding from his lip and crying. The youth initially refused to identify his assailant, but eventually did.
• On February 17, 2006, two youths were involved in a fight in their dorm. One staff member tried to intervene, and fell to the floor trying to execute a physical restraint. The staff member injured himself and was out of work for two months. In an Accident Review Board meeting on March 31, 2006, Evins staff assessed the situation, saying that in order to prevent reoccurrence, “We need to have less youths on pods, this is when we were over populated and short of coverage.”
• On or about February 3, 2006, a youth requested to go to security because he was being assaulted by other youths. He reported that they were assaulting him because he would not let them take his food. He reported that another youth hit him with closed fists near his left eye and again on his right cheek. Security was called and the youth was taken to security.
5


• On June 26, 2005, a JCO unlocked the door to a group room and left it unsupervised. Two pairs of youths seized this opportunity to fight after they were left unsupervised. Although two staff were aware of this incident, neither reported the incident, documented the incident in any manner, or referred the youths involved.
Many of the youths we interviewed stated that fights are a regular part of the culture on the living units. Youths consistently reported that they did not feel safe. One said, “It’s not safe for me to be on this campus.” Another related, “In a gang you’re not safe, but safer.” Our investigation revealed that the unacceptable level of youth violence at Evins results from the following systemic deficiencies: inadequate staffing; inadequate programming; inadequate classification; and a dysfunctional grievance system.
1. Inadequate Staffing
The most striking factor contributing to the frequency of youth-on-youth violence is the absence of sufficient staff to adequately supervise youths at Evins. Without adequate numbers of trained staff on duty, it is not possible to respond in a safe and timely manner when violence and other crises occur. Moreover, without adequate numbers of qualified staff, correctional officers do not have the time to build the relationships with youths that are necessary to identify potential conflicts on their unit and prevent incidents from occurring.
The physical layout of Evins further exacerbates the current staffing deficiencies. Most assaults at Evins take place in Buildings 3 and 4, which are each broken into four pods each housing 24 youths in open bay dormitory style sleeping arrangements with the youths sleeping in bunk beds. In this open physical environment, it is difficult for staff to adequately supervise youths. Increasing the number of JCOs available to supervise youth would enable staff to be aware of early signs of trouble and to take measures to defuse problems before violence erupts. Moreover, additional JCOs are needed at the facility to provide shift relief. We found that Evins staff are extremely overworked because there are not a sufficient number of staff to cover shifts. Staff reported that they are frequently required to work double shifts of 16 hours, often without advance warning, leaving them tired, short-tempered and less alert. The high level of violence that we found at this facility is not surprising given these circumstances. One JCO said that staff
6


don’t have control of the units that they supervise and that the staff to youth ratio was not good. Another officer said that over the past two weeks he had worked about eight 12-hour shifts.
It is often the case at Evins that one staff member is left to oversee the entire pod of 24 youths. Youths and staff reported that, at times, one of the two staff in a Building may leave the area to perform other duties. Such absences place the youths – as well as staff – at significant risk of serious harm. Supervision is inadequate at night, as well. One youth reported that he has been assaulted at night by other youths on at least four separate occasions. The facility investigator confirmed that in each instance staff provided inadequate supervision.
We also found that there is inadequate staff to control movements between buildings on Evins’ sizable campus. Subsequent to our on-site tour, we were informed by TYC officials that on October 1, 2006, after dinner, 20 of the 24 youths from one dorm broke from their line and scattered around the campus. It apparently took staff hours before these 20 youths, and 4 others who left the cafeteria to join them, were brought under control. That same evening, several other youths from another dorm took advantage of the disorder, kicking open the exterior door from their pod and dispersing about Evins’ grounds. It took most of the night for staff to bring these youths under control. This event highlights ongoing concerns at Evins regarding the ability of staff to gather intelligence regarding security risks and to take sufficient measures to control youths’ behavior.
The safety concerns related to inadequate staffing noted above are exacerbated when the facility is over populated, as it was during our tour. While we were on site, we were told the facility’s population was 251 (its capacity is 240). Overpopulation at Evins extends the already stressed staffing beyond already unacceptable levels, and the logistical challenges of supervising youths in excess of the population maximum creates additional difficulties in properly maintaining order.
Our findings regarding the inadequate number of staff at Evins are not likely to surprise its staff or residents. Staff readily acknowledged to us that there are not enough of them to safely supervise the youths in their care. Several staff members opined candidly that Evins was inadequately staffed. One JCO stated, “We react, not prevent.” Several staff confirmed that they found it difficult to provide adequate supervision in the open bay dormitory style living units. One JCO commented, “[e]ven with two staff working the room, things can happen really fast. You can get distracted and something bad can happen.”
7


2. Inadequate Programming
Compounding the concerns with safe supervision of youths, we found that Evins does not provide youths with adequate programming or incentives to promote positive behavior. There is a behavior modification system, but it offers no incentive to the considerable percentage of the population that is facing long term confinement. As such, some residents have no incentive to conform their behavior to meet the requirements of the behavior modification system. Due to determinate sentences, these residents will not be able to shorten their time at the facility.
Another deficiency that both youths and staff mentioned is the lack of incentives for youths to behave appropriately. One JCO commented, “Kids need incentives. Kids need to be able to earn more privileges.” A resident said, “There’s nothing to do especially on weekends.” Another resident said he believed that boredom contributed to fights between residents. He said, “Kids get bored and they fight over little things. Little things just get out of hand.”
Evins’ large day rooms and open sleeping dormitories permit significant numbers of residents to congregate in largely unstructured settings, increasing the potential for serious problems to develop among the youths. Juveniles who are not engaged in structured activities are more likely to engage in horseplay which, if adequate staffing is not provided, has the potential to spiral into fighting, assaults and other dangerous activities.
3. Inadequate Classification
The absence of an adequate classification system negatively impacts the frequency of youth-on-youth assaults at Evins. Generally accepted professional standards require that youths be housed and supervised in accordance with their classification. Reliable classification systems take into consideration such information as a youth’s age, charged offense, history of violence and escape, gang membership or affiliation, health and mental health concerns, and institutional history.
By these measures, Evins does not have an adequate classification system. Unless a youth is especially young (12 individual rooms are reserved for such youths), in a chemical dependency program, or on psychotropic medication, housing unit assignments are largely a function of where there is an available bed. Staff do not separate violent and non-violent youths.
8


Youths are not classified by age or by the seriousness of their charged offenses.
Our interviews with direct care staff, youths, and other TYC employees confirmed that the above examples of youth violence are representative of recurrent problems at the facilities and are not aberrational. The recurrent nature of the incidents reflects a lack of appropriate staffing, training, supervision, and reporting at Evins. Significantly, incidents that come to light appear to be appropriately investigated, and often lead to disciplinary measures against involved staff. This is consistent with generally accepted practices and we commend Evins for these systems. Nevertheless, Evins fails to implement systemic measures to ensure that similar incidents do not recur.
4. Dysfunctional Grievance System
The dysfunctional grievance system at Evins also contributes to the State’s failure to ensure a reasonably safe environment. An adequately functioning grievance system ensures that youth residents have an avenue for bringing serious allegations and other complaints to the administration’s attention. It also provides an important tool in evaluating the culture at the facility, and alerting the administration about dangers and other problems in the facility’s operations. Few of the youths we interviewed expressed any confidence in the system. One youth reported that he was sitting at a table writing a grievance when a staff member came by and took it away from him. One JCO said that responses to grievances are slow and as a result, animosity and resentment builds among the youths.
B. Staff-on-Youth Violence
Juveniles at Evins have a right to be free from unnecessary restraint and the use of excessive force. We were pleased to learn that in many instances Evins has taken appropriate disciplinary action, including termination of employment, against employees when an inappropriate use of force is identified. Additionally, some youths identified specific members of the corrections staff who they felt were fair and conscientious in executing their duties. These are admirable attributes for a juvenile facility. Nevertheless, our investigation revealed an unacceptably high degree of physical abuse of youths by staff at Evins. We also found a disturbing consistency in the youths’ accounts of the use of unnecessary physical restraint and excessive force by many Evins’ staff. The following examples are illustrative:
9


• On December 5, 2005 a resident alleged that a staff person slammed him to the ground and hit him. The resident was taken to the emergency room where he received eleven stitches. While there the resident had a mild seizure. TYC’s internal investigation resulted in a finding of confirmed abuse and unprofessional conduct.
• On December 14, 2005 a resident showed a staff person large bruises on his chest. He said he had been attacked by gang members. TYC’s internal investigation revealed that three staff had allowed the beating to continue and did not intervene on the victim's behalf. A finding of neglect was made on the three employees. Allegations against a fourth employee were not confirmed.
• On January 12, 2006 a resident alleged that a staff person hit him in the throat and hit his head several times against the wall. The youth had a large bump on his forehead and hurt his hand. The incident was confirmed by TYC officials as abuse.
• On January 15, 2006 a staff member allegedly pushed a resident, slammed him into a wall, threw him on a bunk and on the floor. The ensuing TYC investigation did not confirm abuse but did confirm an unnecessary use of force.
• On January 26, 2006 a resident alleged that during a restraint a staff person pushed the resident's eyes "back into his face." The ensuing TYC investigation confirmed abuse and noted that prohibited physical restraint techniques had been used.
Interviews with Evins staff indicate that inadequate staffing ratios contribute to the use of more force than necessary in many incidents of physical restraint. Virtually every correctional officer we interviewed expressed concern about maintaining control of the facility. As detailed above, we have found that this facility suffers from inadequate staffing, and that many of the staff at Evins have not been adequately trained nor do they have much practical experience on-the-job. When staff feel outnumbered and stretched too thin, they are more likely to apply extra force during a restraint to emphasize to the youth that non-compliant behavior will not be tolerated. These factors have a significant detrimental effect on the morale of Evins staff. One staff person summed it up by saying, “Staff
10


are tired. Working 12 hour shifts day after day. Morale is low.”
Additionally, staff communicated to us that they do not feel appropriately trained. Many staff were critical of the training they receive on how to deal with non-compliant and aggressive youths. One JCO flatly stated, “Core training is a waste of time.” Our staff interviews consistently revealed a sense of helplessness that greatly contributes to the low morale among those staff who have the most contact with the youths. Our investigation revealed that Evins is well behind in on-the-job training, partially because staff turnover is so high. One staff member said that the lack of training and turnover among JCO staff is the biggest problem the facility has. We note that the training concerns our investigation revealed closely mirror those identified by TYC as having contributed to the well-publicized October and November 2004 riots.2 An internal monitoring review from the Director of Juvenile Corrections, dated December 13, 2004, noted that the JCO staff did not express confidence in their ability to perform their jobs. “Several of the JCO staff interviewed did not express confidence in their ability to perform the requirements of the job adequately.” Elsewhere, the same report stated, “Several of the JCO staff interviewed did not know what verbal judo was because of the turnover in staff and the lack of training. They did not express confidence in their ability to conduct huddle ups and behavior groups.”3 Our investigation indicates that the facility still has large deficits in its training.
Related to the deficiencies in training, we also observed deficiencies in the way Evins staff document and review incidents. Our review revealed that incident reports filled out

2

Small gang-related race riots reportedly occurred on

October 25, 2004 and October 28, 2004. The second riot, which

reportedly took place in the cafeteria, began after two youths

were allegedly stabbed by youths affiliated with a gang.

According to the TYC, one youth was injured by other youths,

while another youth injured himself when he broke a glass window.

3

“Huddle ups” are short individual and small group talks

that are administered when staff observe a situation that may

evolve into an incident. Huddle ups are designed to defuse a

situation before it escalates by helping youths learn how to

appropriately handle a situation. “Behavior groups” are larger

group sessions designed to assist youths properly conduct

themselves in the general population.

11


by Evins staff frequently lack important information such as details of who was present during the incident, what happened during the incident, and what precipitated the incident. This occurs because, apparently, staff are reluctant to cooperate with Evins’ investigator. In addition, at the time of our tour, Evins employed only one investigator for the entire facility. Given the number of residents at Evins, the high number of incidents, and the investigator’s lack of institutional support and authority to compel staff statements/documents in a timely fashion, the incident review process is inadequate.
It also appears that the process for reviewing the use of restraints is deficient. In most of the reviews we sampled, the reviewer did not evaluate the restraint at all, but simply noted that the incident report (IR) form was not filled out completely and correctly. Additionally, there appears to be a significant problem in obtaining copies of the security camera’s video for use in the investigation process. According to the information technology staff, camera images are only held for 5 to 11 days before they are overwritten with new data. According to the investigator, in about two-thirds of the cases, the video of an incident has been deleted before he is able to secure a copy for his investigation.
We also note that the climate of violence at Evins also affects staff safety. Many of the staff we interviewed said they had been assaulted by residents. On March 31, 2006 Evins’ Accident Review Board met and analyzed seven incidents that resulted in staff injuries between January 10 and February 24, 2006, four of which resulted in those staff missing work for at least three weeks. One of the incidents examined took place on February 17, 2006. Two residents were involved in an argument that escalated into an assault. A JCO attempted to intervene, injured his knee and back, and was off work for two months.
One JCO stated that he has been assaulted by youths on several occasions. During our on-site visit, another staff member showed us the scars from injuries he sustained when a youth wielding a shank stabbed him twice in the chest while the JCO was trying to break up a riot in the cafeteria on June 5, 2006. Another staff member we interviewed told us that a youth had punched him in the face and body, chipping one of his teeth.
12


IV. REMEDIAL MEASURES

In order to rectify the identified deficiencies and protect the constitutional and statutory rights of youths confined at Evins, this facility should implement, at a minimum, the following remedial measures:
1. Ensure that youths are adequately protected from physical violence from staff and other youths;
2. Ensure that there is sufficient, adequately trained staff to safely supervise the residents at all times;
3. Ensure that there is an adequate and appropriate behavior modification system in place;
4. Provide safe and appropriate housing for youths;
5. Develop and implement an adequate classification system to place youths appropriately and safely;
6. Develop and implement a grievance system that ensures resident access to a functional and responsive grievance process;
7. Develop and implement a use of force policy that provides clear guidelines and appropriate limits on the use of force;
8. Provide adequate training and supervision to correctional staff regarding safe and appropriate use of force and physical restraint;
9. Ensure that staff adequately and promptly report incidents.
* * *
Please note that this findings letter is a public document. It will be posted on the Civil Rights Division’s website. While we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on the Civil Rights Division’s website until ten calendar days from the date of this letter.
We hope to continue working with the County in an amicable and cooperative fashion to resolve our outstanding concerns regarding Evins. Assuming there is a spirit of cooperation from the State, TYC, and Evins, we also would be willing to send our
13


consultants’ evaluations under separate cover. These reports are not public documents. Although the consultants’ evaluations and work do not necessarily reflect the official conclusions of the Department of Justice, their observations, analysis, and recommendations provide further elaboration of the issues discussed in this letter and offer practical technical assistance in addressing them.
We are obligated to advise you that, in the entirely unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General may initiate a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a)(1). We note that we are also authorized, pursuant to 42 U.S.C. § 14141, to initiate a suit to address the above described conditions.
We would prefer, however, to resolve this matter by working cooperatively with you and are confident that we will be able to do so in this case. The lawyers assigned to this investigation will be contacting the facility’s attorney to discuss this matter in further detail. If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,

cc: The Honorable Greg Abbott Attorney General State of Texas
Edward Glenn Owens
 Acting Executive Director
 Texas Youth Commission

Neil Nichols
 General Counsel
 Texas Youth Commission


/s/ Wan J. Kim Wan J. Kim Assistant Attorney General

14


Bart Caldwell Superintendent Evins Regional Juvenile Center The Honorable Donald J. Degabrielle, Jr. United States Attorney Southern District of Texas
15


 
 Case: 7:08-cv-00038 As of: 05/21/2011 09:38 AM CDT 1 of 5

U.S. District Court SOUTHERN DISTRICT OF TEXAS (McAllen) CIVIL DOCKET FOR CASE #: 7:08−cv−00038

CLOSED, MAG

United States of America v. State Of Texas et al Assigned to: Chief Judge Ricardo H. Hinojosa Cause: 28:1331 Fed. Question
Plaintiff United States of America

Date Filed: 02/01/2008 Date Terminated: 05/05/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Aaron Fleisher US Dept of Justice 601 D St #5915C Washington, DC 20530 202−307−6457 Email: aaron.fleisher@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shelley Jackson UNITED STATES DEPARTMENT OF JUSTICE 601 D Street W Washington, DC 20530 202−305−3373 Email: shelley.jackson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheridan Leigh England US Department of Justice 601 D St # 5027B Washington, DC 20530 202−616−2249 Email: sheridan.england@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel H Weiss U S Dept of Justice 950 Pennsylvania Ave NW Washington, DC 20530 202−616−6594 Fax: 202−514−0212 Email: Daniel.Weiss@usdoj.gov TERMINATED: 05/12/2010 ATTORNEY TO BE NOTICED

Keith Edward Wyatt Office of U S Attorney P O Box 61129 Houston, TX 77208 713−567−9713 Fax: 713−718−3303 Email: keith.wyatt@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant

Case: 7:08-cv-00038 As of: 05/21/2011 09:38 AM CDT 2 of 5

State Of Texas

represented by James C Todd Office of the Attorney General PO Box 12548 Capitol Station Austin, TX 78711−2548 512−475−4055 Fax: 512−320−0667 Email: jim.todd@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Texas Youth Commission

represented by James C Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Richard Nedelkoff

represented by James C Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Dimitria D. Pope

represented by James C Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Melody Vidaurri

represented by James C Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/01/2008 02/01/2008 02/04/2008
02/14/2008
02/16/2008 02/28/2008 03/11/2008
03/14/2008

# Docket Text
1 COMPLAINT against all defendants filed by UNITED STATES OF AMERICA.(Wyatt, Keith) (Entered: 02/01/2008)
2 Agreed PROPOSED ORDER, filed.(Wyatt, Keith) (Entered: 02/01/2008)
3 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 4/9/2008 at 02:30 PM before Judge Ricardo H. Hinojosa. Parties notified.(bgarces, ) (Entered: 02/04/2008)
4 NOTICE of Designation of Attorney in Charge by State Of Texas, Texas Youth Commission, Richard Nedelkoff, Dimitria D. Pope, Melody Vidaurri, filed. (Todd, James) (Entered: 02/14/2008)
5 Joint MOTION for Entry of Order re: by United States of America, filed. Motion Docket Date 3/7/2008. (Wyatt, Keith) (Entered: 02/16/2008)
6 NOTICE of Setting. Parties notified. Motion Hearing set for 3/17/2008 at 04:00 PM before Judge Ricardo H. Hinojosa, filed. (bgarces, ) (Entered: 02/28/2008)
7 MOTION for Daniel H. Weiss to Appear Pro Hac Vice by United States of America, filed. Motion Docket Date 3/31/2008. (Wyatt, Keith) (Entered: 03/11/2008)
8 ORDER granting 7 Motion for Daniel H. Weiss to Appear Pro Hac Vice.( Signed by Judge Ricardo H. Hinojosa ) Parties notified.(mzamarripa, ) (Entered: 03/26/2008)

Case: 7:08-cv-00038 As of: 05/21/2011 09:38 AM CDT 3 of 5

03/17/2008
03/31/2008
04/04/2008 04/08/2008
04/11/2008 04/11/2008
05/05/2008 11/05/2008 04/29/2009 04/29/2009 05/19/2009 10/28/2009 10/28/2009 11/04/2009 05/05/2010 05/05/2010

Minute Entry for proceedings held before Judge Ricardo H. Hinojosa. Hearing on Joint Motion for Entry of Proposed Agreed Order held on 3/17/2008. All parties present. The Court GRANTS the Motion to Appear Pro Hac Vice of Mr. Daniel Weiss. After some discussion the parties request from the Court that they continue this discussion at the next scheduled hearing which is 4/9/08 at 2:30 p.m. so that the parties can have some further time to discuss the matters brought up by the Court. The Court instructs the parties to file a motion for continuance of the 4/9/08 hearing if they need additional time for further discussion. Appearances:Daniel Weiss. James C Todd.(ERO:Tony Tijerina), filed.(smartinez, ) (Entered: 03/27/2008)
9 TRANSCRIPT of HEARING ON JOINT MOTION FOR ENTRY OF PROPOSED AGREED ORDER held on March 17, 2008 before Judge Ricardo H. Hinojosa. ERO: Antonio Tijerina. Transcript is available for viewing in the office of the clerk, filed. (Attachments: # 1 Continuation) (atijerina, ) (Entered: 04/01/2008)
ORAL ORDER by Judge Ricardo H. Hinojosa: Initial Pretrial and Scheduling Conference reset for 4/11/2008 at 02:30 PM before Judge Ricardo H. Hinojosa. Parties notified.(mzamarripa, ) (Entered: 04/04/2008)
10 SUPPLEMENT to 5 Joint MOTION for Entry of Order re: by United States of America, filed. (Attachments: # 1 Proposed Order Revised Agreed Order# 2 Affidavit Declaration of Jon Trzinski# 3 Exhibit Report and CV of Jon Trzinski# 4 Affidavit Declaration and CV of Stan DeGerolami)(Weiss, Daniel) (Entered: 04/08/2008)
11 Amended PROPOSED ORDER re: 5 Joint MOTION for Entry of Order re:, filed.(Weiss, Daniel) (Entered: 04/11/2008)
Minute Entry for proceedings held before Judge Ricardo H. Hinojosa. STATUS CONFERENCE held on 4/11/2008. All parties present. The Court has reviewed the agreed order submitted by the parties. After some suggestions, the parties agree and will file a revised agreed order for the Court's consideration. Appearances: James C Todd, Daniel H Weiss.(ERO:Tony Tijerina), filed.(smartinez, ) (Entered: 04/17/2008)
12 JUDGMENT of the Court. Case terminated on 05/05/2008.(Signed by Judge Ricardo H. Hinojosa) Parties notified.(mzamarripa, ) (Entered: 05/05/2008)
13 STATUS REPORT by United States of America, filed.(England, Sheridan) (Entered: 11/05/2008)
14 STATUS REPORT by United States of America, filed.(England, Sheridan) (Entered: 04/29/2009)
15 NOTICE of Appearance by Aaron Fleisher on behalf of United States of America, filed. (England, Sheridan) (Entered: 04/29/2009)
16 NOTICE of Setting. Parties notified. Status Conference set for 6/5/2009 at 02:30 PM before Judge Ricardo H. Hinojosa, filed. (bgarces, ) (Entered: 05/19/2009)
17 NOTICE of Appearance by Charles W. Hart, Jr. on behalf of United States of America, filed. (England, Sheridan) (Entered: 10/28/2009)
18 NOTICE of Appearance by Winsome G. Gayle on behalf of United States of America, filed. (England, Sheridan) (Entered: 10/28/2009)
19 STATUS REPORT by United States of America, filed.(England, Sheridan) (Entered: 11/04/2009)
20 MOTION for Daniel H. Weiss to Withdraw as Attorney by United States of America, filed. Motion Docket Date 5/26/2010. (England, Sheridan) (Entered: 05/05/2010)
21 STATUS REPORT by United States of America, filed.(England, Sheridan) (Entered: 05/05/2010)

Case: 7:08-cv-00038 As of: 05/21/2011 09:38 AM CDT 4 of 5

05/06/2010 05/11/2010 05/12/2010 05/24/2010 06/23/2010
07/08/2010 08/02/2010
09/15/2010
09/15/2010 11/01/2010 11/02/2010 11/05/2010 11/16/2010 02/22/2011 03/24/2011 03/25/2011 03/28/2011

22 ORDER striking 20 Motion to Withdraw as Attorney.(Signed by Chief Judge Ricardo H. Hinojosa) Parties notified.(bgarces, ) (Entered: 05/07/2010)
23 Unopposed MOTION for Daniel H. Weiss to Withdraw as Attorney by United States of America, filed. Motion Docket Date 6/1/2010. (Attachments: # 1 Proposed Order draft order)(England, Sheridan) (Entered: 05/11/2010)
24 ORDER granting 23 Motion to Withdraw as Attorney. Attorney Daniel H Weiss terminated.(Signed by Chief Judge Ricardo H. Hinojosa) Parties notified.(bgarces, ) (Entered: 05/14/2010)
25 NOTICE of Setting. Parties notified. Status Conference set for 6/23/2010 at 04:00 PM before Chief Judge Ricardo H. Hinojosa, filed. (bgarces, ) (Entered: 05/25/2010)
Minute Entry for proceedings held before Chief Judge Ricardo H. Hinojosa. STATUS CONFERENCE held on 6/23/2010. All parties present. The Court reviews with counsel the latest compliance report and his concerns regarding the ones listed as partial compliance. The Court instructs counsel to file their report when they need to file it and another Status Conference will be set up after that is done. The Court also instructed counsel to make the facility aware of the concerns the Court had with regards to the partial compliances listed on the report. Appearances: James C Todd, Sheridan Leigh England.(ERO:Tony Tijerina (4:03−4:20), filed.(smartinez, ) (Entered: 06/25/2010)
26 NOTICE of Appearance by Luis E. Saucedo on behalf of United States of America, filed. (England, Sheridan) (Entered: 07/08/2010)
AO 435 TRANSCRIPT ORDER FORM by Ayanna Brown. This is to order a transcript of STATUS CONFERENCE held on August 28, 2010 before Chief Judge Ricardo H. Hinojosa (original). Court Reporter/Transcriber: Exceptional Reporting, filed. (atijerina, ) (Entered: 08/13/2010)
27 TRANSCRIPT re: STATUS CONFERENCE held on 6/23/10 before Chief Judge Ricardo H. Hinojosa. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Release of Transcript Restriction set for 12/14/2010., filed. (thudson, ) (Entered: 09/15/2010)
28 Notice of Filing of Official Transcript as to 27 Transcript. Party notified, filed. (atijerina, ) (Entered: 09/23/2010)
29 NOTICE of Appearance by Shelley Jackson on behalf of United States of America, filed. (England, Sheridan) (Entered: 11/01/2010)
30 NOTICE Vacation Letter by Texas Youth Commission, filed. (Todd, James) (Entered: 11/02/2010)
31 STATUS REPORT by United States of America, filed.(England, Sheridan) (Entered: 11/05/2010)
32 RESPONSE to United States' Fifth Compliance Report, filed by Dimitria D. Pope, Melody Vidaurri, Richard Nedelkoff, State Of Texas, Texas Youth Commission. (Todd, James) (Entered: 11/16/2010)
ORAL ORDER Status Conference set for 3/30/2011 at 04:00 PM before Chief Judge Ricardo H. Hinojosa.(by Chief Judge Ricardo H. Hinojosa) Parties notified.(klopez, ) (Entered: 02/22/2011)
33 MOTION for Shelley R. Jackson to Appear Pro Hac Vice by United States of America, filed. Motion Docket Date 4/14/2011. (Jackson, Shelley) (Entered: 03/24/2011)
34 ORDER granting 33 Motion for Shelley R Jackson to Appear Pro Hac Vice.(Signed by Chief Judge Ricardo H. Hinojosa) Parties notified.(bgarces, ) (Entered: 03/28/2011)
ORAL ORDER by Chief Judge Ricardo H. Hinojosa: Status Conference reset for 4/27/2011 at 04:00 PM before Chief Judge Ricardo H. Hinojosa. Parties notified.(bgarces, ) (Entered: 03/28/2011)

Case: 7:08-cv-00038 As of: 05/21/2011 09:38 AM CDT 5 of 5

04/25/2011 05/05/2011

ORAL ORDER by Chief Judge Ricardo H. Hinojosa: Status Conference set for 4/27/11 is cancelled until further notice. Parties notified.(bgarces, ) (Entered: 04/25/2011)
35 Compliance Report by United States of America, filed.(Jackson, Shelley) (Entered: 05/05/2011)