Case 5:05-cv-00128-PLM Doc #1 Filed 09/14/05 Page 1 of 20 Page ID#1
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

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MICHIGAN PROTECTION & ADVOCACY SERVICE, INC.,
Plaintiff,
v.
PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections; FRANK ELO, Warden, Michigan Youth Correctional Facility; THE GEO GROUP, INC., a Florida corporation doing business In Michigan

Case No~
Hon. 5: 0 5 cv 0 12 8
Richard Alan Enslen U.S. District Judge

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. PRELIMINARY STATEMENT
1. The Michigan Youth Correctional Facility ("MYCF"), a maximum security (Level V) prison for adolescent males located in Lake County, is Michigan's only privately operated prison. It operates under a management contract with the Michigan Department of Corrections ("MDOC") and is subject to Michigan laws and MDOC regulations and policy directives. It houses approximately 480 youth between the ages of 14 and 19 years old who have been convicted as adults. In addition to being a maximum security facility, MYCF also has 70 beds used for disciplinary segregation and administrative segregation unit, where youth may be kept in nearly total isolation for weeks, months, or even years.
2. A significant number of youth in the MYCF have serious and persistent mental illness. By housing these youth in the isolation unit, in conditions of extreme social and sensory deprivation, the Defendants are knowingly subjecting them to conditions that constitute cruel

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'I

and unusual punishment in violation ofthe Eight and Fourteenth Amendments to the United States Constitution, are discriminating against them by virtue of their disabilities or the severity oftheir disabilities and in methods of administration ofMYCF in violation ofTitle II ofthe Americans with Disabilities Act (ADA), 41 U.S.C. §§ 12132, and Section 504 ofthe Rehabilitation Act of1973 (§504), 29 U.S.C. §794, and are deprivingthemofanappropriate education in violation ofthe Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1401 et seq. and regulations promulgated thereunder.

II. JURISDICTION AND VENUE

3.

The Plaintiff, Michigan Protection & Advocacy Service, Inc. ("MPAS"), brings this action to

redress the deprivation ofrights guaranteed its constituents under the Eighth and Fourteenth

Amendments, all of which are enforceable under 42 U.S.C. §1983, as well as those rights

secured by the ADA, §504, and IDEA.

4.

The Court has jurisdiction pursuant to 28 U.S.C. §§1331 and 1343(a) (3).

5.

Declaratory relief is authorized by Fed. R. Civ. P. 57 and by 28 U.S.C. §§2201, 2202.

6.

This Court has jurisdiction to grant injunctive relief pursuant to Fed. R. Civ. P. 65.

7.

Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b) because Defendants

reside in this district, and because a substantial part ofthe events and omissions giving rise to

Plaintiffs claims occurred in this district.

Plaintiff

III. PARTIES

8.

PlaintiffMPAS is responsible for providing protection and advocacy services to individuals

with disabilities pursuant to the Protection and Advocacy for Individuals with Mental Illness

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Act (PAlMI). 42 U.S.C. §§ 10801-108027, the Developmental Disabilities Assistance and Bill ofRights Act, (hereinafter "PADD Act") 42 U.S.C. §15041 et seq., and the Protection& Advocacy for Individual Rights Act (hereinafter "PAIR Act"). 29 U.S.C. § 794e. Under PAlMI and PADD, MPAS is also authorized to monitor facilities and programs that house individuals with mental illnesses and developmental disabilities, to investigate suspected incidents of abuse and neglect and to pursue administrative, legal, and other remedies on behalfofindividuals with mental illnesses or developmental disabilities wherever programs for such individuals are operated within the State ofMichigan. 42 U.S.C. §10805. 9. Plaintiff MPAS is a private, non-profit agency established pursuant the PAlMI Act, the PADD Act, and the PAIR Act. In furtherance of its duties and this authority, and in response to requests from eligible clients, MPAS has monitored the conditions at MYCF, has met with and provided legal assistance to youth confined there, and has investigated complaints of abuse and neglect. In addition, with the permission ofMYCF youth, MPAS has reviewed the records of numerous youth confined to MYCF. 10. The interest MPAS seeks to vindicate by bringing this lawsuit- the protection of the rights ofyouth with mental illnesses and developmental disabilities- is central to MPAS' purpose. Plaintiff MPAS is charged with the statutory responsibility to represent the interests of persons with mental illnesses and developmental disabilities in state institutions, including prisons, who also have standing to sue in their own right. 11. The youth whose rights the Plaintiffseeks to vindicate here are persons with mental illnesses, emotional difficulties, or/and developmental disabilities such that they are persons with disabilities under the ADA.
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12. The Plaintiff and its constituents with disabilities have brought the violations of law described in this complaint to the attention of the defendants and their authorized agents. Numerous youth have filed and exhausted internal MYCF and MDOC grievances without positive results. Plaintiff MPAS has written to and met with defendants to complain about the conditions described in this complaint, all without any change in policy, procedures or practices.
Defendants 13. Patricia L. Caruso is the Director of the MDOC. Under Michigan statute M.C.L. §791.203,
Defendant Caruso is responsible for all individuals entrusted to the custody of the MDOC, including youth at MYCF. She is also responsible to oversee, manage, and evaluate the management contract with The GEO Group, Inc. At all times relevant hereto, she has acted under color of state law. Defendant Caruso is sued in her official capacity. The Michigan Department of Corrections ("MDOC") is a governmental agency. M.C.L. § 16.375. 14. Defendant Frank Elo is the Warden ofMYCF and is an employee ofThe GEO Group, Inc., the private corporation that owns and operates MYCF pursuant to a contract with the MDOC. As such, he is the legal custodian of all prisoners housed at MYCF, and is responsible for the safe, secure, and humane housing ofthose prisoners. At all times relevant hereto, he has acted under color of state law. 15. Defendant The GEO Group, Inc. (hereinafter referenced as "GEO") is a corporation with headquarters in Boca Raton, Florida and doing business in Lake County, Michigan, by operating MYCF, which is located at 1805 West 32nd Street, Baldwin, MI 49304. According
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to its web site, GEO operates and manages numerous correctional facilities around the world. At all times relevant hereto, GEO has acted under color of state law.
IV. STATEMENT OF FACTS 16. The allegations contained in this complaint are based on information provided to and
obtained by MPAS in the furtherance of its duties and authorities including, but not limited to, the review of records, the collection and analysis of data from those records, interviews with youth confined at MYCF, interviews with MYCF staff and administrators, review of MYCF and MDOC policies and regulations, monitoring and other visits to MYCF, and public information. 17. Defendant GEO opened MYCF in July 1999 as a maximum security, Level V, prison for young male prisoners. The prison is owned and operated by a private vendor, Defendant GEO, under a management contract with the MDOC. The contract was authorized by M.C.L. § 791.220g. 18. Although it houses only male youth through age of 19, MYCF is a prison and is not designed or operated as a juvenile detention facility. 19. MYCF, located on a 100 acre site in Lake County, is surrounded by two 12 foot high chain link perimeter fences topped with barbed wire, has two armed watch towers, and has numerous security cameras located throughout and within the premises. The buildings and grounds of MYCF are owned by GEO and leased by GEO to MDOC. 20. The MDOC's management contract authorizes MYCF to house up to 480 youthful prisoners. The youth are housed in two identical housing pods that are divided into five separate units, each with 24 to 25 cells with two bunks.
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21. MYCF also has a 40-bed disciplinary segregation unit, a 30-bed administrative segregation unit, and a 10 bed medical unit. Each of these units has one bed per cell.
22. MDOC has at least two employees who work at MYCF, including a contract manager to ensure compliance with the term of the contract and a hearings officer who visits the facility to hold hearings for allegations of major misconduct by MYCF youth.
23. In 1996, when the Michigan Legislature authorized MDOC to operate or to contract for the operation of a separate youth correction facility, the Legislature and MDOC expected an increase in the prison population ofyouth involved in violent crimes. In fact, this population decreased by 21% between 1994 and 2003.
24. Likewise, when the youth prison was authorized in 1996, the Legislature and MDOC anticipated the need for a Level V, maximum security prison for youthful prisoners. In fact, only about 6% of the youth incarcerated at MYCF are classified as Level V prisoners, requiring the degree and extent of security and regimentation and the lack of training and habilitation programs, which are common in prisons built and operated to the specifications of a maximum security facility.
25. MDOC receives federal funds for its programs and facilities. GEO receives a per diem rate from MDOC based on the number of prisoners being housed, in addition to lease payments from the state.
26. MDOC's contract with the GEO currently provides for a per diem rate of$75.81 for each youth housed at Michigan Youth Correctional Facility, for an approximate payment to GEO of$35,388.80 per day or $13,281,912.00 per year.
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27. Michigan youth who are tried and sentenced as adults by Michigan courts may be committed to the MDOC. Male youth under the age of 19 who are committed to the MDOC, after a brief stay at a reception center, are assigned to MYCF, where they may be held until age 19. If they complete the term of their sentence while at MYCF, they will be released. If the youth has time remaining on his sentence on his 19th birthday, he will be transferred to an adult prison to serve the remainder of his term.
28. Defendant Caruso have failed to monitor and supervise the operation of MYCF by GEO, thereby allowing and condoning the illegal practices described herein.
Isolation 29. MYCF has systems and procedures that allow for the isolation and segregation of youth
from the general prison population. Such isolation and segregation may be used for disciplinary or punitive purposes (called "disciplinary segregation") or for a variety of other reasons including punishment (called "administrative segregation"). 30. Youth at MYCF who are alleged to have committed an act of major misconduct are subject to placement in disciplinary or punitive segregation. A youth may be placed in temporary segregation for up to four consecutive business days pending a hearing. After a hearing before a MDOC employee, a youth may be sentenced to disciplinary segregation for up to 30 days for each offense, or 60 days for all violations arising from a single incident. MDOC Policy B3 D3 .1 05. The youth must serve the entire length of his disciplinary sentence. Sentences of more than 30 days must be approved by the Defendant Elo. 31. Upon completion of the term of disciplinary segregation, a youth may be placed in administrative segregation without a hearing. According to MDOC Policy Directive
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04.05.120, which applies to MYCF, administrative segregation is the most restrictive level of security classification. Under MDOC policies, a youth may be classified to administrative segregation if he demonstrates an inability to be managed with the general population, or if he is a serious threat to the physical safety of staff or other prisoners or to the good order of the facility, if he is a serious escape risk, or for other reasons set forth in MDOC Policy 04.05.120. 32. Confinement in administrative segregation begins with the approval of the warden/deputy warden or shift supervisor, according to MYCF Policy and Procedure Manual, 10.3.1 0. Confinement for more than 30 days must be approved by the Defendant Elo. 33. Confinement in administrative segregation ofyouth at MYCF for consecutive months is very common. According to the records received by the Plaintiff, youth who do not have a mental illness diagnosis spent, on average, a total of 68 days in administrative segregation over the past two years, with some experiencing significantly longer time periods. 34. Discharge from administrative segregation requires the approval of MYCF's Security Classification Committee or another authorized staff group. This review process should occur every seven (7) days for the first two months of administrative segregation and at least every 30 days thereafter, according to MYCF Policy and Procedure Manual, I0.3.1 0. In the case of segregation as the result of a serious assault on staff, discharge requires the approval of a regional prison administrator. 35. According to MDOC Policy Directive 04.05.120, criteria for release from administrative segregation include an assessment of the youth's behavior and attitude while in segregation,
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the potential the youth will honor "the trust implicit in less restrictive confinement," and an assessment of the youth's need for mental health programming. 36. Youth in disciplinary or administrative segregation at MYCF are subjected to social isolation and sensory deprivation that approach the limits of human endurance. They are entombed in concrete cells virtually 24 hours a day, seven days a week. 37. The cell doors at MYCF are solid steel with a small window; the only opening is a small food port. Youth in segregation are usually allowed out of their cells only to shower three times a week and for one hour a day for severely restricted recreation. 38. Youth in segregation at MYCF are deprived ofvirtually all social contact and environmental stimulation. They are allowed no congregate activity and very few possessions. There are no educational or other programs. Visiting is non-contact and is severely restricted. Recreation time of one hour for 5 days is only provided after thirty days of administrative segregation. Thus, youth in segregation often spend months, or even years, in a state of almost total idleness. Effect on youth with mental illness 39. The Defendants, through their actions and inactions, have subjected youth with mental illness at MYCF to conditions and circumstances which have exacerbated their mental illness and caused them irreparable harm. 40. Mental illness is prevalent among the youth at MYCF. Even previously healthy youth may become mentally ill as a result ofconfinement under conditions at MYCF and particularly in segregation. For those youth who are already mentally ill upon their arrival, conditions at MYCF, and particularly in segregation, cause serious and sometimes catastrophic
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deterioration in their mental health. As a result, numerous youth at MYCF hear voices and are obsessed with suicidal thoughts; others attempt suicide by drug overdose, attempt to hang themselves, and otherwise attempt to harm or kill themselves. 41. Many youth with a mental illness receive disciplinary charges (called "tickets") for behavior that is a symptom oftheir mental illness. Therefore, they are retained in the most restrictive conditions ofadministrative segregation for months or even years at a time. The more severe a prisoner's mental illness, the more likely he is to become placed indefinitely in administrative segregation, where the harsh conditions will exacerbate his mental illness still further. 42. Mentally ill youth at MYCF are more likely to be placed in administrative segregation and are likely to spend longer periods of time there. The data received by the Plaintiff for those youth requiring mental health services shows the average amount of time spent in administrative segregation over the past two years was 112 days. 43. Youth at MYCF who suffer from a mental illness have spent significant amounts oftime in administrative segregation, including Youth 1, who suffers from a mental illness and was held in a combination of detention and administrative segregation for more than 600 days from December 2003 to present. 44. Youth 2, who suffers from a mental illness, has been confined in administrative segregation for at least 233 days from January 2005 through August 2005, after a ticket for threatening behavior, 56 days from July to September 2004 following a ticket for threatening behavior, and 24 days in December 2003 to January 2004 following a ticket for insolence.
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45. Youth 3, a youth with a mental illness, was confined in administrative segregation for 133 days in 2004 and 152 days in 2003.
46. Youth 4, a youth with a mental illness and on the outpatient mental health team, was confined in segregation and administrative segregation for 46 days in October and November 2004, and for significant additional time from February through June 2005.
47. Youth 5, a youth with a mental illness and on the outpatient mental health team, was confined in administrative segregation for at least 81 days in February through April2005 and again in May 2005, for 31 days in November and December 2004 after a ticket for threatening behavior, and for 24 days in October 2004 after a ticket for disobeying a direct order.
48. Youth 6, a youth with a mental illness and on the outpatient mental health team has been confined in segregation and administrative segregation in May and July 2005 and from November 2004 through January 2005 for significant periods oftime after receiving tickets for disobeying a direct order and threatening behavior, and for a significant period oftime in February and March 2004. Youth 8 was given a suicide evaluation in September 2004.
49. Youth 7, a youth with a mental illness and on the outpatient mental health team, has been confined in segregation and administrative segregation for significant periods of time from March through June 2005, and for 33 days in October and November 2004.
50. Youth are also held in the administrative segregation unit as protective custody when they have been threatened with bodily harm by staff or other youth. The same restrictions applied to prisoners held in administrative segregation apply to youth in protective custody. One youth with a mental illness, Youth 3, was held in protective custody for a total of 56 days in
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2004. Another youth with mental illness, Youth 4, was held in protective custody for two months in 2004. Punishment of youth with mental illness. 51. Because many youth with serious mental illness are believed to be merely "malingering," manifestations of their mental illness are interpreted by MYCF staff as willful misconduct and are punished by reclassification to disciplinary then administrative segregation. 52. Youth who are placed in administrative segregation have engaged in repeated self-harming behavior. 53. Youth 1 has spent at least 600 days in detention and administrative segregation from December 2003 to present, and has been placed on "food loaf'' several times. Food loaf means that the youth's entire meal is placed in a blender and then served to the youth. Youth 1 was on suicide watch in November 2004. MYCF staff evaluated Youth 1 for inclusion on its outpatient mental health team in April 2004, but he was not added to that team until October 2004. 54. Youth 8 was placed on a 10 day detention for disobeying a direct order only 10 days after having been released from a three-day suicide watch. 55. Youth 9 was on suicide watch on several occasions between November 2004 and January 2005, before, during and after time served in detention and administrative segregation. 56. Youth 7, a youth with a mental illness and on the outpatient mental health team, who has been in segregation and administrative segregation for significant periods of time from March through June 2005, and in October and November 2004, has engaged in self-abusive behavior and has been placed on suicide watch at least seven (7) times since October 2004.
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57. Youth 10, a youth with a mental illness, spent 47 days in administrative segregation from December 2004 to January 2005 after 30 days in detention, 12 days in administrative segregation in June and July 2004, 34 days in administrative segregation in December 2003 and January 2004, and additional time in detention in July 2003. Youth 13 engaged in suicidal behavior in July 2003, February 2004 and December 2004.
58. Youth 11, a youth with a mental illness, spent a significant period oftime in segregation and administrative segregation from March through May 2005 and served 10 days in detention in September 2004. Youth 14 engaged in self-harm at MYCF in March 2005. Youth 14 was diagnosed with a mental disorder at the MDOC reception center in June 2004, but was not admitted to the MYCF outpatient mental health team until March 2005.
59. One youth with a mental illness diagnosed by MYCF's psychologist, Youth 12, has spent significant periods oftime in administrative segregation beginning in January 2005 after a 10 day detention for threatening behavior, 54 days in administrative segregation and detention from August to October 2004, and significant periods of time in administrative segregation from April through June 2004, and in April through July and September through October 2003. Youth 12 has been on suicide watches in November 2004, June 2003, April 2003, January 2003, and December 2002. Youth 12 came to MYCF in October 2002 at age 16. Youth 12 was evaluated for the MYCF outpatient mental health team in March 2003 but was not placed on that team.
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The Failure to Diagnose and the Mis-diagnosis of Mental Illness 60. The Defendant MDOC operates a "reception center" facility at Jackson, Michigan. All male
prisoners committed to MDOC spend a brieftime at the reception facility before assignment to a particular prison. Youth under 19 convicted as adults are confined at the reception facility before transfer to MYCF. 61. Youth are screened for mental illness at a MDOC reception center before transfer to MYCF. 62. Serious mental illness often goes undiagnosed at the MDOC reception center. In cases known to the Plaintiff, youth who have been diagnosed as seriously mentally ill before coming to prison, who have received years of treatment in the community for that mental illness, have been admitted to psychiatric hospitals, and have been placed on powerful psychotropic drugs, have nevertheless been deemed by MDOC reception center mental health staff to be merely "malingering" or "manipulating." As a result, when these youth arrive at MYCF they do not receive the treatment they need for their mental illness. 63. In other cases known to the Plaintiff, youth diagnosed with mental illness and recommended by the reception center for mental health services, are determined by MYCF upon their arrival not to need mental health services. 64. Many of the youth who are not provided with mental health treatment spend time in administrative segregation at MYCF, including Youth 13 who has been held in administrative segregation on numerous occasions in 2004 and 2005. Youth 16 was recommended for mental health treatment at the MDOC reception center but was not placed on the outpatient mental health treatment team at MYCF.
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65. Youth 14 was held in administrative segregation for 31 days in October and November 2004, and in detention in December 2003 and July and September 2004. Youth 17 was diagnosed with a major mental illness at the MDOC reception center but was not placed on the outpatient mental health treatment team at MYCF.
Inadequacies of MYCF Mental Health Care 66. Despite the overwhelming need, mental health services at MYCF are systemically
inadequate. There is insufficient staffing to meet the needs of mentally ill prisoners. As a result, identification, assessment, monitoring and treatment of mentally ill prisoners are inadequate. Although many mentally ill prisoners are prescribed powerful psychotropic medications with potentially dangerous side effects, they are rarely, if ever, seen by a psychiatrist. 67. Mental health services to youth in segregation are inadequate. When mental health staffdoes speak with youth in segregation, it is almost always done at cell-front, by yelling through the side slit in the cell door, within earshot of other prisoners and staff. Many youth refuse to speak with mental health staff under these conditions because they fear harassment and victimization if other youth learn that they are suicidal or suffering from other mental health problems. Cell-front interviews are useless because ofthe complete lack ofconfidentiality; a prisoner may tell mental health staffthat he is fine, when he is in fact paranoid, hallucinating, or contemplating suicide. 68. Because many youth with serious mental illness are believed to be merely "malingering," manifestations of their mental illness are interpreted by MYCF staff as willful misconduct and are punished by reclassification to disciplinary then administrative segregation.
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-.
69. After a prisoner has attempted or threatened suicide, a mental health management plan is developed. The following explanation was found in numerous mental health management plans: "inmate threatened suicide in an attempt to manipulate his environment. Ifthe inmate threatens suicide or makes an attempt to harm himselfhe is to be managed by custody staffin accordance with the procedures for disruptive inmates." These youth are treated as disciplinary problems if they inform staff of their suicidal thoughts or ideations.
Special education services. 70. Defendants fail to adequately identify, screen, and assess youth at MYCF who have
disabilities that cause them to have special educational needs and fail to determine how those needs can be met. 71. Special education services at MYCF are extremely limited. Most educational services, whether regular or special are designed solely to prepare youth to pass a GED examination. Education services for youth with special educational needs are not individually tailored to meet the needs of individual students. 72. Defendants have inadequate special education staff to provide a free and appropriate public education to all youth at MYCF with special educational needs, including related and transitional services. 73. Youth with special educational needs who are in segregation are almost totally deprived of individualized special education services, including related and transitional services. The Plaintiff has learned that at most, such youth may be visited by a special education teacher once a week for usually fewer than I 0 minutes. Some youth in administrative segregation are
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not allowed to have educational materials in their cells. Youth with special educational needs are expected to learn and study on their own while in segregation. 74. In March 2005, Plaintiff filed a complaint with the Michigan Department of Education alleging various violations ofiDEA at MYCF, including the allegations in this complaint. Although an investigator substantiated most of the allegations in that complaint, to date the Michigan Department of Education has not acted on the recommendations of that investigator.
V. CAUSES OF ACTION 75. The conditions described in this Complaint result in gratuitous pain and suffering, and pose
an imminent danger of serious illness, injury, or death to prisoners with mental illness. 76. In imposing the conditions described in this Complaint, Defendants have acted with
deliberate indifference to the serious health, safety, and mental health needs ofprisoners with mental illness, and to the risk that these prisoners will suffer serious illness, injury, or death. Defendants have repeatedly been made aware of these conditions by meetings with and correspondence from the Plaintiffs staff, by MDOC staff, by prisoner grievances, and other means, but have failed to take reasonable corrective action. 77. Plaintiffs constituents who are youth at MYCF with mental illness are qualified individuals with disabilities within the meaning ofthe ADA and qualify as individuals with disabilities as defined in§ 504. Absent these disabilities, these youth would otherwise qualify for the services provided by the defendants. 78. Plaintiffs constituents who are youth at MYCF with mental illness, emotional difficulties and learning disabilities have special educational needs within the meaning of IDEA.
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79. The conditions described in this Complaint are likely to persist unless enjoined by this Court. Plaintiff and its constituents have no adequate remedy at law.
80. By subjecting youth with mental illness to the conditions of confinement described herein, with full knowledge of those conditions and of their devastating effects on these prisoners, Defendants have acted, and continue to act, with deliberate indifference to these prisoners' serious health, safety, and mental health needs, and have subjected these prisoners to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. §1983.
81. The conditions of confinement at MYCF and the Defendants' policies, practices, acts, and omissions complained of in this Compliant are a substantial departure from accepted professional judgment, standards, and practices and thereby deprive the Plaintiffs constituents of due process of law, in violation of their constitutional rights under the Fourteenth Amendment to the United States Constitution.
82. The Defendants' failure to provide adequate special education and related services deprived the Plaintiffs constituents oftheir rights under IDEA and regulation promulgated hereunder.
83. By placing youth with mental illness in disciplinary and administrative segregation because of behaviors which are related to their mental and emotional illnesses, the Defendants have denied the youth of the benefits of the facility's services, programs or activities, including school, recreation, exercise, and mental health services, thus discriminating against the Plaintiffs constituents on the basis of their disability in violation of the ADA and §504.
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84. The agreement between MDOC and GEO requires that certain services be provided to the youth at MYCF for their benefit. By failing to provide the youth those services, GEO has caused irreparable harm to them. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully request that the Court:
1. Issue a judgment declaring that the actions of Defendants described herein are unlawful and constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and punishment in violation of the Fourteenth Amendment to the United States Constitution; and discrimination in violation of the ADA and §504 and failure to provide a free and appropriate education in violation of the IDEA. 2. Permanently enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them, from subjecting prisoners with mental illness to the conditions described in this Complaint; 3. Grant youth who have been impacted by the Defendants' policies and practices injunctive relief entitling them to adequate education and mental health services, adjustment of their security status, and adjust their eligibility for parole to reflect the harm imposed on them by MYCF's use of administrative segregation and failure to provide adequate education and mental health services to them; 4. Grant Plaintiffs their reasonable attorney fees and costs pursuant to 42 U.S.C. §1988 and other applicable law; and 5. Grant such other relief as the Court considers just and proper.
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Respectfully Submitted,
~k~~
Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansin MI 489
487- 5
rk A. Cody (P42695) Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517)487-1755
OF COUNSEL: Robert D. Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 413-587-6265 Michael Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 60 West Hancock Street Detroit, MI 4820 1 313-578-6814
Attorneys for Plaintiff
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 Case 5:05-cv-00128-PLM Doc #45 Filed 04/10/06 Page 1 of 2 Page ID#261

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION _____________________

MICHIGAN PROTECTION & ADVOCACY SERVICE, INC.,
Plaintiff,

Case No. 5:05-CV-128

v.

Hon. Richard Alan Enslen

PATRICIA L. CARUSO, in her capacity as Director of the Michigan Department of Corrections,
Defendant. _________________________________/

ORDER

In accordance with the Opinion of this Court; IT IS HEREBY ORDERED that Defendant Patricia L. Caruso’s Motion for More Definite Statement and for Partial Summary Judgment (Dkt. No. 24) is GRANTED IN PART AND DENIED IN PART in that Defendant’s request for a more definite statement is GRANTED, but Defendant’s requests for partial summary judgment are DENIED without prejudice to later motion. IT IS FURTHER ORDERED that Plaintiff Michigan Protection & Advocacy Service, Inc.’s Motion for Protective Order (Dkt. No. 29) is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall provide a more definite statement within 14 days of this Order by the filing a Second Amended Complaint in compliance with W.D. Mich. L.Civ.R. 10.7, which Complaint shall name prisoners by anonymous number, but shall reference a sealed appendix which appendix shall indicate the names and prisoner numbers assigned to each of the persons named by anonymous number. The appendix shall be filed under seal and disclosed to defense counsel, but shall not otherwise be disclosed to the public except for necessary disclosures

Case 5:05-cv-00128-PLM Doc #45 Filed 04/10/06 Page 2 of 2 Page ID#262

to prosecute and defend this suit. The Second Amended Complaint may also include other

amendments, though such amendments are not required by this Order.

IT IS FURTHER ORDERED that any discovery materials produced or disclosed in this

suit and any trial exhibits shall preserve the confidentiality of the prisoners’ identities and health

information.

DATED in Kalamazoo, MI: April 10, 2006

/s/ Richard Alan Enslen RICHARD ALAN ENSLEN SENIOR UNITED STATES DISTRICT JUDGE

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 Case 5:05-cv-00128-PLM Doc #117 Filed 11/06/06 Page 1 of 21 Page ID#525

UNITED STATES DISTRICT COURT

''

WESTERN DISTRICT OF MICHIGAN

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MICHIGAN PROTECTION & ADVOCACY SERVICE, INC,

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·ffJI Case No. 5:05-CV-0121i~

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Plaintiff, v

Hon. Richard Alan Enslen

PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,

Defendant.

Stacy A. Hickox (P54431) Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755 Attorney for Plaintiff
Mark A Cody (P42695) Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755 Attorney for Plaintiff

Leo H. Friedman (P26319) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 Attorney for Defendant
Linda M. Olivieri (P27646) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 Attorney for Defendant

SETTLEMENT CONFERENCE REPORT OF JOEL DVOSKIN, PH.D. IN ACCORDANCE WITH ORDER OF SEPTEMBER 22, 2006
In an Order following the September 15, 2006 Settlement Conference in this matter, the Court directed me to file a written report "regarding [my] recommendations, including various MDOC facilities, within 30 days" of the Order. I am pleased to do so.
I understand that this Report is for settlement purposes and is intended to assist the parties and the Court in their further discussions in an effort to resolve the matter without trial. Accordingly, I have not drafted the Report with the formalities required by the Federal Rules of

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Case 5:05-cv-00128-PLM Doc #117 Filed 11/06/06 Page 2 of 21 Page ID#526
Civil Procedure, Rule 26(a)(2)(B). I have, however, attached my curriculum vitae for the information of the Court and the Defendant.
I caution the parties and the Court that I have not yet engaged in the full and complete examination and investigation that I would undertake before submitting a formal report and before testifying. For example, I have not undertaken a full review of inmates' records, something that I might later determine is necessary. Likewise, I recognize that I have visited only three of the State's facilities, and I have not conducted extensive interviews of inmates and staff members. Thus, the opinions expressed here (that are the same as those I presented at the settlement conference) are based on my review of the pleadings, certain inmate information provided to me by the Plaintiff's counsel, MDOC policies also provided by counsel, tours of three prisons, interviews with prison staff and administrators, brief discussions with segregated inmates during the tours, and out-of-cell interviews with 13 youthful inmates. Therefore, although the review I have conducted to date provides a sufficient basis upon which to form the opinions I relate here, it is possible that upon further investigation I might alter, revise, or supplement them.
Finally, a few words about the limitations of my investigation are necessary. First, I have not been asked to and do not address the Plaintiff's education related claims, except in a limited manner and as they relate to youth in segregation. Second, although I saw and spoke with inmates of all ages, consistent with the claims in the case, I concentrated on inmates under the age of 26. All of my confidential out-of-cell inmate interviews were with inmates under 26 years old.
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1. The tours. I toured three MDOC facilities during the week of September 11, 2006. I visited the
Bellamy Creek Correctional Facility, a Level 2 and 4 facility, in Ionia on September 12, 2006; the Thumb Correctional Facility, a Level 2 facility with a program for youthful offenders in Lapeer, on September 13, 2006; and, Standish Maximum Correctional Facility, a Level 5 facility, on September 14, 2006. Each of the tours included meetings with facility administrators, a tour of the facility (with an emphasis on living quarters and segregation and isolation units), and confidential interviews with youthful inmates identified by the Plaintiff. The Bellamy and Thumb visits began at 9:00 AM and concluded after 4:00 PM. The Standish tour began at 11:00 AM and concluded at about 3:30PM. We did not break for lunch or for any other purpose at any of the facilities.
At each of the facilities, Plaintiffs counsel accompanied me. Defendant's counsel, Assistant Attorney General Leo Freidman, was present at each of the facilities as was Steven Meno, a representative of the Corrections Mental Health Program ("CMHP") of the Department of Community Health ("DCH"), the agency that is responsible for the "outpatient mental health" services at the prisons. Roy Calley, the CMHP Director, joined us at The Thumb. At each facility, the warden, deputy warden, and/or an assistant deputy warden and other staff were also present. In all cases, the staff and administration were very cooperative with the tour and were responsive to my inquiries. As I said at the settlement conference, I particularly found the wardens I met to be highly professional. I appreciated their cooperation and assistance.
2. Mental health services at the facilities. Bellamy Creek and the Thumb divide their mental health services into two teams. The MDOC operates Psychological Services Units ("PSUs") that are designed as "gatekeepers," that
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is, to identify mentally ill, developmentally disabled, and other special needs prisoners for referral to the Outpatient Mental Health Team ("OPMHT"). I was told that prisoners with major mental illnesses are appropriate for such referraL Some PSU staff also deliver some group therapy and offender rehabilitation programs such as assaultive offender and sex offender groups.
There is also a "gate keeping" function of sorts at the intake or reception center at Jackson. However, both staff and inmates described inadequacies in the testing and evaluation there and said that some inmates with mental disabilities, particularly some with developmental disabilities, are not identified.
The OPMHT is operated by DCH' s CMHP under a contract with MDOC. I was told that the OPMHT is an interdisciplinary team that provides mental health services to prisoners with major mental disorders. Depending on the facility, the OPMHT may include one or more nurses, a part-time or full-time psychiatrist, one or more psychologists (I do not know the educational level of the psychologists), and one or more social workers.
At least at Bellamy Creek, nurses on the health care services team administer medications, including psychiatric medications. I understand the health services to be delivered under a contract with Correctional Medical Services, Inc. I assume this is also true at the other facilities.
Standish, the maximum-security facility, does not have an OPMHT and has only one psychologist on its PSU. I was told that any inmates identified by the PSU psychologist as needing outpatient treatment are transferred to other Level 5 facilities (for example, Ionia Maximum) that have OPMHTs.
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I was told that if the OPMHT believes that an inmate needs secure inpatient mental health care (higher level of care than can be provided by the OPMHT), he may be transferred to a Residential Treatment Program ("RTP") at either Ionia (apparently Riverside Correctional Facility) or the Huron Valley Center. I was told that acute mental health inpatient care is provided at Huron Valley and that there is a six-bed crisis intervention unit at Riverside Correctional Facility, Ionia.
3. Segregation Each of the facilities uses segregation m three forms: disciplinary segregation, administrative segregation, and protective custody. All three may be used regardless of the inmate's age. The Thumb also has an apparently unique Behavior Modification Unit ("BMU") in its Program for Youthful Offenders. This program, also apparently called the HOPE program, is described in the next section of this report. Segregation units are separated from the general population housing units. As I came to understand it from my tours and my review of MDOC policies, disciplinary segregation is used as punishment for major misconduct rule infractions (called "tickets" or "major tickets" by staff and inmates alike) and in such cases inmates have the right to a hearing. Prior to this, an inmate may be placed in temporary segregation pending a hearing. After a hearing, the inmate may be sentenced to disciplinary segregation for up to 30 days for each offense, or 60 days for all violations arising from a single incident. An inmate's prior disciplinary history (including, for the young inmates who are the subject of this case, tickets that obtained at the now closed Michigan Youth Correctional Facility, "MYCF") is a factor in determining placement in disciplinary segregation.
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Upon completion of the term of disciplinary segregation, an inmate may be placed in administrative segregation, apparently at least initially without a hearing. (This process was not entirely clear to me.) Administrative segregation is used for those inmates that the warden, deputy warden, or shift supervisor determines to meet at least one of the following criteria: 1) They have demonstrated an inability to be managed with the general population; 2) They present a serious threat to the physical safety of staff or other prisoners or to the good order of the facility; 3) They present a serious escape risk; or 4) For other reasons, they are not appropriate for the general population. A deputy superintendent reviews each inmate's status in administrative segregation once a month. Protective custody is used, sometimes at the request of the inmate and in other cases involuntarily, to provide protection from others.
Disciplinary and administrative segregation are the most restrictive levels of security classification, and during my tour they were sometimes referred to as "Level 6."
There is little if any difference from facility to facility (at least those I toured) in the physical conditions in which inmates on the several forms of detention are housed. Their cells are small (approximately 6 feet by 9 feet), with a heavy steel door, little natural light, a small window to the corridor, and a food port. Oral communication with custody, health, mental health staff, and chaplains is typically through the food port or at cell front. There is little or no privacy possible in such interactions.
Though they can communicate (e.g., by yelling) with other segregation inmates, inmates in segregation are deprived of virtually all normal social contact and environmental stimulation. They are allowed no congregate activity and very few possessions. Recreation time is limited to one hour a day in small specially designed secure outdoor space that prevents direct contact with other prisoners. Otherwise, except in very limited circumstances (e.g., attorney visits, periodic
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Case 5:05-cv-00128-PLM Doc #117 Filed 11/06/06 Page 7 of 21 Page ID#531
showers), segregated inmates are confined to their cells 23 hours a day. Ironically, programs such as "assaultive groups" are not available to inmates in segregation, many of whom are there because of assaultive behavior.
There are no levels in disciplinary or administrative segregation and, therefore, no way for one to earn increased freedom, possessions, or privileges gradually by demonstrating the ability to manage their behavior appropriately. Nor is there any incentive for appropriate behavior, except the vague and uncertain possibility that they might be returned to general population. (As described below, the adolescent program at the Thumb does employ a graduated type of segregation in the BMU.)
Many of the inmates I saw in the segregation units were on their bunks, apparently asleep. Some of the concrete beds were equipped with braces to which mechanical restraints may be attached. I was told this procedure is called "top of bed" restraint. The units, particularly the one at Standish, were very noisy.
Practices appeared to vary as to how often segregated inmates are seen by the PSU or the OPMHT. For instance, at Bellamy Creek the PSU sees everyone only after they have been in segregation for 30 days, unless a specific referral is made earlier. Inmates invariably told me that the PSU visited less often than staff said they did. Inmates described the visits, when they happened, as perfunctory. Several inmates said that their kites for mental health services were ignored or that it took days or weeks for PSU to see them. Although OPMHT may see a segregated inmate privately outside the cell, alleged or perceived security concerns appear to make this an infrequent occurrence.
Young inmates with whom I spoke told me that they had very few educational opportunities while in segregation. Although I did see one teacher talking to an inmate through
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his food port, there was very little evidence that segregated inmates with special or regular educational needs receive much more than very perfunctory educational instruction while in segregation. Several inmates stated that a teacher would merely "drop off' homework and then leave after a very brief discussion.
4. The Program for Youthful Offenders at the Thumb. The Program for Youthful Offenders ("PYO") at the Thumb, I was told, was created to accommodate youth between ages 14 and 26 who were transferred to The Thumb when the Baldwin facility (the Michigan Youth Correctional Facility) was closed, after the filing of this case. The Thumb is a Level 2 facility. As I understood it, youth at Baldwin who were under 17 and had special education needs or were on the OPMHT at Baldwin were transferred to the Thumb. To the credit of MDOC, some PYO youth may actually be classified at a level higher than Level 2, but are purportedly treated as Level 2 inmates at least for programming. The BMU is the PYO's equivalent to a segregation unit. Its cells are nearly identical to those in the Thumb's adult segregation units, although two youth are held in each BMU cell, except for inmates under 17, who are housed alone. However, unlike adult segregation, it is possible to earn one's way to less restrictive BMU segregation. There are, I was told, three levels with the BMU. "Core C" is the most restrictive level and is similar in almost every way to disciplinary or administrative segregation. Youth in "Core B" are allowed out of their cells to eat on the unit. Those in "Core A" eat first, off the unit. None of the youth on the BMU's Franklin B unit have televisions or other electronics, although I was told that at least some of them were supposed to be allowed to have them. (When I informed the Warden of this, she said it was against policy to deny them televisions, and promised to remedy it.) No programming is provided to youth in "Core C." Youth assigned there lose their spot in educational classes and
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apparently may wait months to be placed back in class. Some youth in the BMU attend classes, assuming that they have a spot in class.
Core C notwithstanding, administrative segregation per se is not used on the Thumb's PYO. Apparently, any youth who would require administrative segregation is sent to the adult side of the Thumb or, perhaps more likely, reclassified and sent to another (e.g., level 5) facility.
Although the staff said that BMU placements are less than 30 days, we did identify at least one youth who had been in the BMU for over four months and stays of more than 30 days are apparently not unusual.
According to staff, youth in the BMU appear to receive slightly more educational opportunities than youth in segregation at Standish and Bellamy Creek or youth in segregation at the Thumb. I was told that these youth receive training in "Thinking for a Change," a cognitive behavioral program with which I am familiar in other jurisdictions. I was also informed by staff that even in Core C, inmates receive group and individual treatment. However, brief cell front interviews raised questions about the degree to which this actually occurs. Staff informed me that they complete an Individual Education Plan ("IEP") for every inmate with a learning disability, and that there is a minimum of 3 hours of instruction per week. It was reported that school attendance is required. I must confess to some confusion about the number of hours of school instruction given to youth in various categories. I did not spend the time necessary to clear up this confusion, as education was not my primary focus during these visits. This issue requires further investigation.
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5. My interviews with youthful inmates. I met with 13 youthful inmates out of their cells in rooms provided to us by the facilities. Plaintiff's counsel were present during these interviews. No prison staff or administrators were present, although they were nearby. One youthful inmate I met at Standish (Youth 14.) has been in administrative segregation since October 2004 (including his time at MYCF), far beyond what I was told by staff was typical. He had been ticket free for at least 10 months, perhaps longer. He was understandably confused and upset by the facility's decision to continue his segregation. When I discussed this with the Warden, he told me that the Security Classification Committee felt that the youth showed a lack of contrition. I think that if the inmate's statements to the Committee that led to that belief were understood in the context of adolescent development it is likely that he would be considered a better candidate for return to the general population. At any rate, it is hard to see what interests, at least in terms of growth, development, and habilitation, are being served by keeping this ticket free young man in segregation any longer. With training, staff might better understand when to rely a youth's behavior rather than on his presentation that is, when what he does is more important than what he says. Further, there is no evidence of any skill training during his period of segregation. If inmates are segregated due to an inability to safely do time, it makes little sense to prevent them from learning the skills necessary to allow them to return to general population. The myth that segregation alone will cause the acquisition of social skills, or even learning how to act appropriately in a prison, defies logic and is supported by no evidence. In my opinion, public policy and prisons safety would both be served by adding a social skills education component to segregation.
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Another youth, Youth 2, has been in segregation at MYCF and Standish, continuously since January 2005.
All of the youth with whom I spoke carried "points" with them from MYCF at Baldwin. These points, they explained, affect their classification to security levels, the time they may spend in segregation if they receive tickets, their chances for parole, and the way they are treated by custody staff. Several told me that they felt that tickets they received at Baldwin in the weeks before it closed were particularly unfair. Although the Defendant's staff deny any unfair discipline at Baldwin, there is a clear perception of unfairness among the youthful inmates that extends beyond the complaining of unwarranted discipline. There is no dispute that points earned at MYCF are counted against youth in parole hearings and determinations.
Similarly, several of the youth told me that participation on the OPMHT, especially taking psychotropic medication, would be used against them when they came up for parole. They believed that being labeled as mentally ill produced negative points. At least one youth told me he had taken himself off of the OPMHT and off medication in the belief that it would improve his chances for parole. The Defendant's staff denied that receiving mental health services negatively impacted parole. However, it is clear to me that that message has not reached the prisoners. Nor is it clear that the staff perception is necessarily more accurate than that of the pnsoners. This issue needs to be discussed with the Parole Board, including an accurate assessment of how many inmates have received discretionary releases while taking psychotropic medication.
6. General observations. Like all prisoners, many youth in prison suffer from mental illness and/or developmental disabilities. Generally, studies demonstrate that as many as 20% of adult inmate populations
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suffers from diagnosable mental disorders, a figure that does not include those diagnosed solely with substance abuse disorders. From my experience, these studies present a reasonable representation of the extent of mental illness in the American prison system and from my tours I saw no reason to believe Michigan is immune or even significantly different.
(Even at Standish, which I was told was a "mental illness free" prison, in a very short time I identified three inmates on the segregation unit who, I believe, even after only a brief cellfront conversation, are very likely to be psychotic. It appeared likely to me that the one mental health professional on staff, a PSU psychologist, could not perform the necessary "gatekeeper" functions for a facility with over 500 high security prisoners. Although I asked to speak with the psychologist, I was not provided that opportunity. In addition to inmates with previously unidentified mental illnesses and emerging mental illnesses that commence subsequent to incarceration, the psychologist at Standish is also responsible for responding to psychiatric or emotional crises, such as suicide gestures, attempts or threats that can occur in inmates with or without serious mental illnesses. This leaves very little time for the routine "gatekeeper" function that is envisioned for this lone mental health practitioner at Standish. Nor does this person appear to have any regular backup for his periods of vacation, sick leave, etc.)
Studies also show that inmates with mental health problems are more likely than those without to be charged with breaking facility rules - precisely the kinds of infractions that result in disciplinary sanctions in segregation units. Doris J. James & Lauren E. Glaze, Special Report: Mental Health Problems of Prison and Jail Inmates DOJ, Bureau of Justice Statistics (September 7, 2006). While I understand the sad necessity of segregating some prisoners, those whose inability to follow orders is at least in part due to their mental disabilities typically pose little threat to the prison, and their segregation often serves no useful purpose. Worse, segregation of
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these inmates can cause iatrogenic harm, as some of them find their mental illnesses exacerbated by the segregation experience.
Most experts I know and studies I have read agree that the incidence of mental illness is even higher among incarcerated youth than among adult inmates. All of the young inmates I interviewed out of their cells were mentally ill and all had been or were in segregation. (Of course, they were selected by Plaintiff's counsel precisely for those reasons.) Most had long histories of involvement with the mental health system or, at least, of being treated with mental health medications, most frequently for Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder.
Virtually without exception, correctional and correctional mental health experts recognize that adequate screening for suicide risk, mental illness, and developmental disabilities is essential. My impression from my investigation to date is that at least some and perhaps a significant number of youth with mental illnesses may be missed in the screening. I saw and met with inmates whom I believe have serious mental illness who are not being treated as such. It is not clear to me whether they were missed at the reception center, by PSU, or by the OPMHT. Nor is it clear to me whether their mental health needs were unidentified or simply ignored. This seemed particularly true for the several young inmates who had long histories with mental health medications prior to incarceration.
In June 2006, the Commission on Safety and Abuse in America's Prisons found that prisoners with mental illness are particularly susceptible to conditions in segregation. In the Commission's view, it may be impossible for some prisoners with schizophrenia, major depression, and other psychotic disorders to cope with segregation. In the Commission's view, extended stays in segregation may actually be harmful to these inmates and make it more
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difficult to successfully treat them once they return to the general prison population or are released to the community. Nicholas de B. Katzenbach and John J. Gibbons, Confronting Confinement (2006). While adaptation to segregation varies idiosyncratically among inmates, many experts believe that the impact of segregation on youth is even more profound than on adults.
In my professional opinion, segregation increases the risk of exacerbation of the mental illness of inmates who are mentally ill when they are placed in segregation. Some inmates should not be placed in segregation because of their illness, while others may need to be removed from segregation depending upon their response to it.
Some inmates with serious mental illness, and even some youth, can in fact be housed in and can tolerate segregation. However, those inmates must receive appropriate mental health and other services and they should be carefully monitored so that any signs of decompensation or other severe negative effects of segregation can be identified early. These signs should result in prompt assessment and treatment.
For youth, it is particularly important that segregation, if it must be used, bear a relationship to its purpose, for example, to teach the youth to control behavior and "how to do time." Simply separating a young inmate from the general population for a long period of time, without more, will not be likely to improve subsequent behavior, and sometimes makes it much worse.
When screening inmates to determine if they are likely to respond especially badly to segregation, merely looking at diagnosis is not enough, particularly for young inmates. For example, a practice of screening out inmates with schizophrenia would be of little meaning for many youth, since the diagnostic criteria state that typical onset of the illness is between ages 18
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and 25 and that symptoms must be sustained for at least six months. While serious mental illness or mental retardation might increase the risk of a bad response to segregation, inmates without such diagnoses might also have severe and negative responses. Further, predictive assessments at the beginning of the period of segregation are not sufficient, since it is difficult to predict which inmates with have severe negative reactions to the stress of segregations. In my opinion, regular brief assessments and periodic intensive assessments are required in order to respond quickly and effectively to an emerging psychological crisis in segregation.
Prisoners need human contact, natural light and other sensory stimulation, and regular exercise. Therefore, all experts that I know and all the literature recommend the use of rigorous screening and, more importantly, ongoing assessment to identify prisoners with mental illness who are not able to cope with the conditions in segregation. This requires facilities to have adequate trained and qualified staff to screen and identify such inmates, whenever these negative responses develop.
For those inmates who simultaneously pose a serious risk to the prison and a serious mental illness, it may be necessary to transfer them to inpatient psychiatric facilities, or to create secure treatment units inside prisons. Such units must be adequately staffed by mental health professionals and line staff, so that inmates with these characteristics can safely receive adequate psychiatric treatment This should include therapy and activities that occur out of celL Not only will this increase the safety and health of the prisoners and staff, but it will ease the transition from prison to the general community upon eventual release, thus promoting the public welfare as welL
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Depression and hopelessness was a common theme among the youth I interviewed. While these may be common characteristics among inmates generally, the inmates I saw are still quite young, even minors.
7. My recommendations. At the settlement conference, I made several recommendations, for settlement purposes only, that I characterized then as reasonable, practical, and inexpensive. I reiterate the recommendations here. I believe that the implementation of these recommendations would improve the lives of young inmates without in any way compromising the safety of the inmates or staff or the integrity of the penological purposes of the facilities. Nor do I believe that any of these recommendations are likely to result in significantly increase expense. Indeed, it is my opinion that these straightforward changes would result in fewer injuries to staff (thus saving money) and inmates and would increase the likelihood of young inmates' successful reintegration after release. Discipline and punishment. Based on what I have seen to date, I believe that the structure of the equivalent to the "insanity defense" to disciplinary tickets appears appropriate as it is set forth in MDOC policy. However, I am concerned about the qualifications and training of custody staff who give tickets and the hearing officers who decide the punishment to youthful inmates. Therefore, I recommend training for hearing officers on the relationship between mental illness, adolescent development, and prison misconduct; and that the hearing officers be required to consult with the OPMHT for anyone who is under 18 and receives a ticket that could result in segregation. For youth between 18 and 26, the hearing officer should have the option of consulting with the OPMHT if there is any evidence of mental illness. For any youth with an lEP, the hearing officer should be required
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to consult with the prison's special education teacher. Current policy requires consultation with the OPMHT only if the inmate raises an "insanity defense" to the ticket, which may not occur due to ignorance, an unwillingness or inability to acknowledge one's mental illness, or embarrassment.
Also, in regard to discipline, I recommend that wardens and other appropriate administrators receive training on adolescent development and its implications for behaviors that may result in discipline. The training should include the implications of adolescence and development on mental health and the effects of segregation and isolation on young people.
Drawing from this training, each facility should develop a plan for addressing the behavior of youthful inmates and for teaching better behavior. The facility mental health and educational staff should be involved in the development of this plan. Any mental health staff member who works with youth should receive special training in adolescent mental health and development. If possible, I would recommend recruiting a child and adolescent psychologist into any current or future vacancies, especially at Thumb. Training of custody staff is addressed in the next paragraph.
Specifically, I recommend creation of a multi-level behavioral program in segregation. While I believe that such a program would be well advised in every segregation setting, for the purposes of this matter, it is especially important for youth housed in segregation environments. This program should allow inmates to control aspects of their conditions of confinement by demonstrating appropriate behavior, and should include some instruction in how to manifest such behaviors. For most inmates, this should allow them to control the conditions and duration of their segregation, by working their way back to general population.
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Mental health services. In my opinion, it is essential that custody staff be trained to identify symptoms of mental illness, to spot mental health needs, and how to work with youth with mental illness. I understand that this training will necessarily compete with other compelling training needs. However, there are many excellent training packages, and some could be prepared for use at shift changes. Correctional officers who work with inmates with serious mental illness should receive specialized training, and officers who work with youth should receive training in adolescent development. If my preliminary observations were correct, it may be necessary to improve identification of developmental disabilities at the reception center and throughout an inmate's incarceration. I recommend that any youthful inmate who identifies or is known to have been hospitalized for mental illness or to have taken mental health medication (including medication for ADD, ADHD, or behavioral issues) automatically be referred to a psychiatrist for evaluation. It is difficult to understand why any facility would have no OPMHT staff, especially one with large numbers of segregation inmates. Facilities like Standish should have at least one OPMHT clinician and access to a psychiatrist, and if it does not have a OPMHT, it should have additional PSU staff, including at least one person with doctoral level qualifications to be better able to identify mental health needs. Inmates at these facilities should also have access to a psychiatrist. This is particularly important for the youth who are subject of this case. In areas where psychiatric staffing is not possible, telemedicine may provide an adequate alternative.
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All mental health staff (PSU, OPMHT, and health team staff who administer psychiatric medications) should receive annual training on youth and adolescent mental health issues. Wardens and other top administrators should also participate in this training.
There should be policies that require mental health staff to respond quickly to requests from youthful inmates to see mental health staff.
Disciplinary and Administrative Segregation and the BMU. As I understand current MDOC policy, if the inmate has a mental health treatment history, and they are on the OPMHT or on psychotropic medication, they should be seen and evaluated by a mental health professional (a social worker, psychologist, psychiatric nurse, or psychiatrist) no more than one business day after being placed in segregation. That is an appropriate policy. That mental health professional should recommend an appropriate placement, which could include a mental health unit, and then the inmate should be transferred there within three business days. However, just because an inmate is deemed likely to adapt to segregation is no guarantee that he will. Ongoing assessment is required, preferably by doing weekly cell-tocell "rounds" on segregation units. lfthe inmate has a serious mental illness or receives psychotropic medication and stays in segregation, current policy requires a management plan within three days after going to segregation. This plan should include frequent follow up by a mental health professional while they are in segregation. My impression is that the plans tend to be forms that are not at all individualized to the inmates' needs. In one facility, plans were posted on the inmates' cell doors, a very good idea. However, this was apparently limited to inmates on suicide precautions (and not for those with serious mental illnesses) and was not duplicated at any other facility I visited.
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To ensure that those youth who are segregated are released as soon as possible, I recommend that a member of the OPMHT be a member of the Security Classification Committee to address whether continued segregation is contraindicated for the inmate's mental health needs. Alternatively, the Classification Committee could be required to consult with the OPMHT at regular intervals.
In addition to at least weekly mental health rounds, any youth who is in segregation for 30 days should be seen outside his cell by a qualified mental health professional. A similar review should take place after 60 days. Current policies require that if an inmate is cont1ned in segregation for more than 30 days, he should be interviewed by a mental health professional, and he should be given a psychological assessment. There are no requirements as to the scope, intensity, or setting of this evaluation.
There should be more explicit segregation reviews with an emphasis on mental health issues, and the criteria for release should be more clear and better known to the inmates. To the extent that inmates perceive the termination of their segregation as arbitrary and beyond their control, it will contribute to feelings of hopelessness that are counter-productive and unlikely to improve the inmate's behavior.
There should be graduated levels of segregation, with progression through the levels based on behavior. At each progressive level, inmates should have slightly higher behavioral expectations and slightly additional privileges. For most inmates, this should provide a way to "work themselves out" of segregation in a predictable fashion. This will create an environment of individual responsibility, where release from segregation is no longer perceived as an arbitrary process, but instead is the predictable result of the inmate's own behavior. (I note that in some cases of especially significant institutional dangers, such as inmates who have made lethal
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attacks on staff, there may be limitations to how far an inmate may be allowed to progress, but

even in these cases the inmate will have something to lose by acting in an inappropriate manner.)

Mental health rounds in segregation should be conducted at least weekly for all

segregated inmates, regardless of the length of their segregation. These rounds should be

completed by a QMHP, and any signs of psychological distress should result in a more intensive,

preferably face-to-face assessment outside of the inmate's cell.

Meaningful instruction and educational opportunity should be available to youth m

segregation. This includes sufficient time one to one with a teacher.

In regard to the BMU in particular, I recommend access to MH groups and special

education while in BMU. There should also be a requirement that if a youth cannot be moved

out of Franklin B due to bed space but they have satisfied the BMU requirements, their

privileges (like electronics) should be restored.

Parole eligibility.

I recommend that there be a program through which youth transferred from Baldwin can

earn back points they earned there through good behavior at the new facility. This will provide

an opportunity for a fresh start, provide some hope for the future, and perhaps increase the

likelihood of better behavior and successful reintegration.

I wish to reiterate my appreciation to the Wardens and their staff members for their

candor and hospitality during my visits. I believe that the changes suggested in this document

will assist them in managing their prisons in a safe, fair, secure, and psychologically appropriate

fashion.

Date: November 3, 2006

R~'ectfully subm~)ted,
I cHJ- ;v (J/ vo---
a~ Dvoskin, Ph.D.

21 FOR SETTLEMENT PURPOSES ONLY

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 1 of 13 Page ID#512

CURRICULUM VITAE
Joel A. Dvoskin, Ph.D., A.B.P.P.
3911 E. Ina Road Tucson, Arizona 85718 Phone: 520-577-3051 Fax: 520-577-7453 E-mail: JoeltheD@aol.com

EDUCATION: Undergraduate:
Graduate: Professional:

University ofNorth Carolina at Chapel Hill; B.A. 1973; Majors: English and Psychology;
Awards: Order of the Old Well Honorary Society Order of the Grail Honorary Society.
Stockholm University, Stockholm, Sweden; Diploma, 1972; Major: Social Science.
University of Arizona, Tucson, Arizona; M.A. in Clinical Psychology, 1978; Ph.D. in Clinical Psychology, 1981;
Dissertation: Battered Women: An EpiQemiological Study of Spousal Violence.
University of Arizona College of Law, Tucson, Arizona; Doctoral Minor

HONORS:
Diplomate in Forensic Psychology, American Board of Professional Psychology Fellow, American Psychological Association Fellow, American Psychology-Law Society Peggy Richardson Award, National Coalition for the Mentally Ill in the Criminal Justice System Amicus Award, American Academy of Psychiatry and the Law Affiliate Member, International Criminal Investigative Analysis Fellowship Distinguished Visiting Professor of Psychiatry, University of California, Davis School of Medicine and
Napa State Hospital, April 14, 2005 President, Division 18 of the American Psychological Association, Psychologists in Public Service President-Elect, American Psychology- Law Society, division 41 of the American Psychological
Association (Presidential year 2006-2007). American Psychological Association, Division 18 Special Achievement Award
ACADEMIC POSITIONS:
1996 - Current Asst. Professor (Adjunct)- University of Arizona College of Law Asst. Professor (Clinical) - University of Arizona College of Medicine, Dept. of Psychiatry
1986 - Current Assistant Clinical Professor- New York University Medical School, Dept. of Psychiatry
2000 - Current Assistant Clinical Professor- Louisiana State University Medical Center

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CURRICULUM VITAE ·JOEL A. DVOSKIN, PH.D. PAGE2
LICENSE:
Arizona Board of Psychologist Examiners, License #0931 New Mexico State Board of Psychologist Examiners, License #0904
PROFESSIONAL EXPERIENCE:
September 1995 - Current Full-time private practice of forensic psychology, providing expert testimony on civil and criminal matters, and consultation in the provision of mental health and criminal justice services, and workplace and community violence prevention programs. Duties: Provide expert testimony, consultation, training, and public speaking services to federal, state, and local governmental agencies, corporations and attorneys, including the following areas: • Police misconduct • Conditions ofconfinement and hospitalization • Architectural design of psychiatric and secure psychiatric buildings • Workplace violence prevention and crisis response o Working with labor organizations o Safely managing corporate layoffs • Psychological autopsy • Suicide prevention • Mental health services in correctional and criminal justice settings • Mental health services to juvenile correctional facilities • Stalking • Assessing and preventing the risk of violent behavior • Administration of public mental health and criminal justice services
September 1995 Current Associate, Threat Assessment Group, Inc., Newport Beach, California. Duties: Provide consultation and training in workplace violence prevention and crisis management to governmental and corporate organizations.
September 1995- Current Associate, Park Dietz & Associates, Inc., Newport Beach, California. Duties: Forensic psychological services and expert testimony
March 1995 - August 1995 Acting Commissioner, New York State Office of Mental Health. Duties: Under the direct supervision of the Governor, served as C.E.O. of the largest agency of its kind in the United States, with an annual budget of more than $2.4 billion. The agency employed over 24,000 people and directly operated 29 institutions, including adult inpatient and outpatient psychiatric facilities, children's psychiatric hospitals, forensic hospitals and research institutes. The Office of Mental Health also licensed, regulated, financed, and oversaw more than 2,000 locally operated inpatient, emergency, outpatient, and residential programs in collaboration with 57 counties and New York City.

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 3 of 13 Page ID#514
CURRICULUM VITAE- JOEL A. DVOSKIN, PH.D. PAGE3
November 1984 - March 1995 Director, Bureau of Forensic Services ( 1984-1988) and Associate Commissioner for Forensic Services (1988-1995), New York State Office of Mental Health. Duties: Line authority for inpatient services at three large forensic hospitals and two regional forensic units, including services to civil, forensic and correctional patients; line authority for all mental health services in New York State prisons (serving more than 60,000 inmates); responsibility for innovative community forensic programs including suicide prevention in local jails, police mental health training, and mental health alternatives to incarceration.
December 1984- July 1985 Acting Executive Director, Kirby Forensic Psychiatric Center. Duties: Founding C.E.O. for new maximum security forensic psychiatric hospital in New York City.
July 1984- November 1984 Acting Director, Office of Mental Health, Virginia Department of Mental Health and Mental Retardation (held concurrently with permanent position as Director of Forensic Services). Duties: Supervision of budget and certification of all community mental health programs statewide; statewide policy development in all program areas related to mental health; Executive Secretary to Virginia Mental Health Advisory Council.
July 1983 -November 1984 Director of Forensic Services, Virginia Department of Mental Health and Mental Retardation. Duties: Design and coordination of statewide delivery system of institutional and community treatment and evaluation of forensic patients; management of the contract for the University of Virginia Institute of Law, Psychiatry and Public Policy; departmental liaison to Virginia Dept. of Corrections and other criminal justice agencies; develop statewide plan for delivery of mental health services to D.O.C. inmates; statewide Task Force on Mental Health Services in Local Jails.
August 1982- July 1983 Psychologist, Arizona Correctional Training Center, Tucson, Arizona. Duties: Supervision of psychology department; direct clinical treatment and evaluation services.
April 1982 -July 1982 Acting Inmate Management Administrator, Arizona State Prison Complex, Florence, Arizona. Duties: Direct supervision of inmate records office; inmate classification and movement; correctional program (counseling) services; psychology department; hiring of all new correctional officers. (NOTE: During this period, I also maintained all duties of my permanent position as Psychologist (below).
October 1981- July 1982 Psychologist, Arizona State Prison Complex, Florence, Arizona. Duties: Supervision of Psychology Department for complex consisting of five prisons; direct clinical treatment and evaluation services.

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 4 of 13 Page ID#515

CURRICULUM VITAE· JOEL A. DVOSKIN, PH.D. PAGE4

November 1980 - October 1981 Psychology Associate, Arizona State Prison Complex, Florence, Arizona. Duties: Direct clinical treatment and evaluation services.

August 1980- November 1980 Psychological consultant to the Massachusetts Department of Correction. Duties: Consultation to Director of Health Services; direct clinical treatment and evaluation services at Walpole and Norfolk State Prisons.

January 1980- November 1980 Psychologist- Tri-Cities Community Mental Health Center, Malden, Massachusetts

August 1979 - August 1980 Pre-Doctoral Intern in Clinical Psychology, McLean Hospital, Belmont, Massachusetts; and Fellow in Clinical and Forensic Psychology, Harvard Medical School, Cambridge, Massachusetts, and Bridgewater (Massachusetts) State Hospital

1978-1979 Psychology Extern, Pima County (Arizona) Superior Court Clinic

1977-1978 Psychology Extern, Palo Verde Hospital, Tucson, Arizona

1976-1977

Psychology Extern, Arizona Youth Center (now Catalina Mountain School), Tucson, Arizona

1975-1976 National Institute of Mental Health Trainee

1973-1975 United States Peace Corps Volunteer, Senegal, West Africa

1970-1995

Coach, Dean Smith's Carolina Basketball School, Chapel Hill, N.C. (1-3 weeks each summer)

SELECTED CONSULTATION CLIENTS:
Federal Government -
National Institute of Mental Health United States Secret Service United States Department of Justice, Civil Rights Division National Institute of Justice National Institute of Corrections Center for Mental Health Services Substance Abuse and Mental Health Administration United States Secret Service

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 5 of 13 Page ID#516

CURRICULUM VITAE· JOEL A. DVOSKIN, PH.D. PAGES

State and Local Governments -

Alabama Arizona Arkansas California Colorado Connecticut Delaware Dist. of Columbia Florida Georgia

Hawaii Illinois Kentucky Louisiana Maine Maryland Massachusetts Michigan Missouri Nebraska

Nevada New Jersey New Mexico New York North Carolina Ohio Oregon Pennsylvania Puerto Rico South Carolina

International Clients Province of Ontario Correctional Service of Canada Province of British Columbia

Selected Corporate Clients American Express Amgen Boise Cascade Borden Foods Chase Manhattan Bank Corning, Incorporated Daim lerChrysler Corporation General Dynamics Honeywell Johnson and Johnson Kraft Foods Levi Strauss Macy's Motorola National Basketball Players Association National Basketball Association National Semiconductor Nationwide Insurance Nordstrom Oracle Corporation Pillsbury Sony Corporation State Farm Insurance Texas Instruments 3M Corporation University of Arizona Warner-Lambert Pharmaceuticals

Tennessee Texas Utah Vermont Virginia Washington West Virginia Wyoming

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 6 of 13 Page ID#517
CURRICULUM VITAE- JOEL A. DVOSKIN, PH.D. PAGES
Professional Organization Clients-
American Psychiatric Association - Committee on Correctional Psychiatry American Correctional Association Arizona Bar Association American Bar Association
Federal Court Expert and Monitor-
Independent Expert to monitor a Federal Court settlement agreement at the Bernalillo County (N.M.) Detention Center in Albuquerque.
Federal Court Monitor (one of two) of a settlement agreement regarding the Institute of Forensic Psychiatry at the Colorado Mental Health Institute -Pueblo.
Federal Court Monitor (one of three) of a settlement agreement regarding the Forensic Unit at the Western State Hospital in Tacoma, Washington.
Architectural Consultations -
Dr. Dvoskin has served as design consultant for major renovations and new construction of a number of state, federal, and territorial psychiatric facilities during his long career. The following is a partial list of these projects:
New York - As part of his duties as Associate Commissioner of Mental Health for the state of New York, Dr. Dvoskin oversaw design of major renovations to Mid-Hudson Psychiatric Center, a 300 bed forensic psychiatric hospital in Middletown, NY. Completion of this project resulted in significant reductions in violent incidents at this facility.
Georgia - As part of a federal class action, plaintiffs and defendants agreed to ask Dr. Dvoskin to assess suicide hazards at six of Georgia's large state prisons, resulting in cost-effective, potentiaUy life saving physical plant changes to rooms in which suicidal inmates were housed.
Louisiana- Again, at the request of plaintiffs and defendants, Dr. Dvoskin perfonned a comprehensive assessment of suicide hazards in the state's juvenile correctional facilities.
Puerto Rico- Dr. Dvoskin served as design consultant for a new correctional psychiatric center, which cost less than renovation of the existing building, which was the basis for a finding of unconstitutional conditions.
Michigan - Dr. Dvoskin assisted the state of Michigan, which was involved in constitutional litigation regarding its prison mental health system, in creating a system within the Department of Mental Health. He also served as design consultant for new beds added to a state forensic psychiatric facility.

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 7 of 13 Page ID#518

CURRICULUM VITAE- JOEL A. DVOSKIN, PH.D. PAGE7

Maryland, Florida, and Maine - Dr. Dvoskin served as consultant to Commissioners of Mental Health, including consultation on the physical plants offorensic and civil psychiatric hospitals.
Delaware - Dr. Dvoskin served as design consultant for the new forensic wing of the state's psychiatric hospital.
Colorado - Dr. Dvoskin served as design consultant for the state's new forensic psychiatric hospital; a design which combines a sense of privacy and dignity among patients without sacrificing the visibility needed in order for staff to maintain safety.
Washington, DC- Dr. Dvoskin served as consultant to two Federal Receivers, then to the Commissioner of Mental Health, in a variety of areas. These included an assessment of the number of beds needed, then to assist in a Capital Plan for the entire District of Columbia Mental Health System. Most recently and currently, Dr. Dvoskin serves as design consultant for the creation of a brand new Saint Elizabeths Hospital, to replace the entire civil and forensic hospital campus. The design of this facility, which is nearly completed, included an innovative consumer advisory panel, facilitated by Dr. Dvoskin, which had input into every phase of the project's design.
North Carolina - Consultant to architectural renovation of forensic unit at Broughton State Hospital.

BOARD MEMBERSHIPS:

Editorial Boards

Journal of the American Academy of Psv~hjatry and the Law (former) Journal of Mental Health Administration Behavioral Sciences and the Law Journal of Aggression, Maltreatment, and Trauma (former) Psychological Services Journal of Threat Assessment (former) Law and Human Behavior

Research Advisory Board

United States Secret Service

Advisory Board

National Center for State Courts, Institute on Mental Disability and the Law

Member

White House Panel on the Future of African-American Males 1995

Member

American Bar Association Task Force on Capital Punishment and Mental Disability

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CURRICULUM VITAE -JOEL A. DVOSKIN, PH.D. PAGES
PUBLICATIONS:
Dvoskin JA & Metzner JL (2006). Commentary: The Physicians Torture Report. Correctional Mental Health Report. Kingston, NJ. Volume 8, No. l.
Schlank A & Dvoskin JA (2006). Similar Statutes, Different Treatment Needs --A Comparison of SVP and Mentally Ill Populations. In Schlank, A. (Ed.) The Sexual Predator, Volume 3: New York, NY: Civic Research Institute.
Metzner JL & Dvoskin JA. (2006) Controversies Concerning Supermax Confinement and Mental Illness. Psychiatric Clinics of North America. Philadelphia: Elsevier. Volume 29, No.3.
Dvoskin JA (2005) Two Sides to Every Story: The Need for Objectivity and Evidence. Journal of the American AcademyofPsychiatry and the Law. Vol. 33, No.4, 482-483.
Dvoskin JA, Spiers EM, & Brodsky SL. (In press.) Correctional Psychology: Law, Ethics, and Practice. In Goldstein AM (Ed.), Forensic Psychology: Emerging TopiC§ and Expanding Roles. Hoboken, NJ. John Wiley & Sons.
Peters RH, Matthews CO & Dvoskin, JA (2005) Treatment in prisons and jails. In Lowinson JH, Ruiz P, Millman RB, & Langrod JG (eds.)
Substan~_Abuse: A Comprehensive Textbook_~Third Edition. Baltimore, MD: Williams & Wilkins Publishers. Pages 707-722.
Metzner JL and Dvoskin JA (2004) Psychiatry in Correctional Settings, in Textbook of Forensic Psychiatry. Robert R. Simon MD and Lisa H. Gold, MD (editors). Washington, DC: American Psychiatric Publishing, Inc.
Dvoskin JA and Spiers EM (2004) On the Role of correctional Officers in Prison Mental Health Care. Psychiatric Quarterly.
Dvoskin JA and Spiers EM (2003) Commentary: ln Search of Common Ground, Journal ofthe American Academy of Psychiatry and the Law. Vol. 31, No.2. 184-188.
Glancy GD, Spiers EM, Pitt SE & Dvoskin JA. (2003) Commentary: Models and Correlates of Firesetting Behavior. JOI!I]l<!l of the American Ac<!_cl~!!!Y..Qf Psy~hiatry and the Law. 31 ( 1):053057.
Dvoskin, Joel A. (2003) Catch 'em doing something right. NtHS Coaches' Quarterly. National Federation of State High School Associations. Indianapolis, IN.
Spiers, EM, Dvoskin, JA, and Pitt, SE (2003) Mental health professionals as institutional consultants and problem-solvers. In Fagan, T, and Ax,

Case 5:05-cv-00128-PLM Doc #117-2 Filed 11/06/06 Page 9 of 13 Page ID#520
CURRICULUM VITAE -JOEL A. DVOSKIN, PH.D. PAGE9
R (Eds) Correctional Mental Health Handbook Thousand Oaks, CA: Sage Publications.
Dvoskin, JA, Spiers, EM, Metzner, JL, and Pitt, SE (In press) The structure of correctional mental health services. In Rosner, R. (ed.), PJ:inciples and Practice of Forensic Psychiatry, Second Edition. London: Arnold Publishing.
Dvoskin, J.A. (2002) Knowledge is Not Power- Knowledge is Obligation. ,JQ_urnal of the American Academy of Psychiatry and the.Law. Vol. 30, No.4.
Dvoskin JA, Radomski SJ, Bennett C, Olin JA, Hawkins RL, Dotson LA, Drewnicky IN. (2002) Architectural design of a secure forensic state psychiatric hospital. Behavioral Sciences and the Law, Vol. 20, No.5. Pages 481-493.
Dvoskin, J.A. and Petrila, J. (2002). Commentary: Behavioral Health Professionals in Class Action Litigation -- Some Thoughts on the Lawyer's Perspective. Journal of the American Academy of Psychiatry and the Law. 30:1
Dvoskin, JA, and Heilbrun, K. (2001) Risk assessment and release decision-making: Toward resolving the great debate. Journal of the American Academy of Psychiatry and the Law Vol. 29:6-10
Hafemeister, TL, Hall SR, and Dvoskin, JA (2000) Administrative concerns associated with the care of adult offenders with mental illness within correctional settings. In Ashford JB, Sales BD, and Reid W (Eds.) Treating Adult and Juvenile Offender~ with Special Needs. Washington, D.C.: American Psychological Association.
Dvoskin, JA. (2000) The mentally disordered inmate and the law (book review). Psychiatric Services. 51:397.
Pitt SE, Spiers EM, Dietz PE, & Dvoskin JA ( 1999) Preserving the Integrity of the Interview: The value of video tape. Journal of Forensic Sciences. Vol. 44, No.6, Pp. 1287-1291
Dvoskin, Joel A. and Patterson, Raymond F. (1998) Administration of Treatment Programs for Offenders with Mental Illness. In Wettstein, Robert M. (Editor), Treatment ofthe Mentally Disordered Offender. New York: Guilford Press. pp. l-43.
Coggins MH, Pynchon MR, Dvoskin JA (1993) Integrating research and practice in federal law enforcement: Secret Service applications of behavioral science expertise to protect the President Behavioral Sciences & the Law, Volume 16, Issue 1, pp. 51 - 70
Dvoskin, Davidman, Ferster, Miller, Montenegro, and Moody (1997) Should Psychologists Unionize? A CoJloquy with Labor and Management Experts. Profession Psychology: Research and Practice. Vol. 28, No.5.
Dvoskin, Joel A. (1997) Sticks and Stones: The Abuse of Psychiatric Diagnosis in Prisons. The Journal of the California Alliance for the Mentally Ill, Vol. 8, No. l.
Dvoskin, Joel A., Massaro, Jackie, Nerney, Michael, and Harp, Howie T. (1995) Safety Trajl!ing for Mental Health Workers in the Community. Albany: New York State Office of

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CURRICULUM VITAE -JOEL A. DVOSKIN, PH.D. PAGE10
Mental Health and The Information Exchange.
Dvoskin, Joel A., Petrila, John and Stark-Riemer, Steven (1995) Powell v. Coughlin and the Application of the Professional Judgment Rule to Prison Mental Health. Mental and Physical Disability Law Reporter. Vol. 19, No. 1
Dvoskin, Joel A., McCormick, C. Terence and Cox, Judith (1994) Services for Parolees with Serious Mental Illness. Topics in Community Corrections. 1994: 14-20
Dvoskin, Joel A. and Horn, Martin F. (1994) Parole Mental Health Evaluations. Community Corrections Rgmrt. July/August 1994
Dvoskin, Joel A. and Steadman, Henry J. (1994) Using Intensive Case Management to Reduce Violence by Mentally Ill Persons in the Community. Hospital and_Qqmmunity ~chiatry. Vol. 45, No.7. Pp. 679-684.
Condelli, WardS., Dvoskin, Joel A., and Holanchock, Howard (1994) Intermediate Care Programs for Inmates with Psychiatric Disorders. Bulletin of the American Academy of Psychiatry and the Law. Volume 22, Number 1.
Dvoskin, Joel A. (1994) The Structure of Prison Mental Health Services. In Rosner, Richard (Editor), Principals and Practice of Forensic Psychiatry. New York: Chapman and Hall.
Cohen, Fred and Dvoskin, Joel A. (l993) Therapeutic Jurisprudence and Corrections: A glimpse. New York Law School Journal of Human Rights. Vol.X.
Dvoskin, Joel A., Smith, Hal, and Broaddus, Raymond (1993) Creating a Mental Health Care Model. Corrections Today. Vol. 55, No.7.
Dvoskin, Joel A., Steadman, Henry J. and Cocozza, Joseph J. (1993) Introduction. In Steadman, Henry J. and Cocozza, Joseph J. (Editors), Mental Illness in America's J;lrison~. Seattle: National Coalition for the Mentally Ill in the Criminal Justice System.
Clear, Todd R., Byrne, James M. and Dvoskin, Joel A. (1993) The Transition from being an inmate. In Steadman, Henry J. and Cocozza, Joseph J. (Editors), Mental Illness in America's Prisons. Seattle: National Coalition for the Mentally Ill in the Criminal Justice System.
Cohen, Fred and Dvoskin, Joel A. (1992) Inmates with Mental Disorders: A Guide to Law and Practice (Part 2). Mental & Physical Di~~bil.i!y_Law Reporter, Volume 16, No.4.
Cohen, Fred and Dvoskin, Joel A. (1992) Inmates with Mental Disorders: A Guide to Law and Practice (Part 1). Mental & Physical Disability Law Reporter, Volume 16, No.3.
Heilbrun, K.S., Radelet, M.L. and Dvoskin, J.A. (1992) Debating Treatment of Those Incompetent for Execution. American Journal of Psychiatry, Volume 149, No.5.

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CURRICULUM VITAE -JOEL A. OVOSKIN, PH.D. PAGE11
Way, Bruce B., Dvoskin, Joel A., Steadman, Henry J. (1991) Forensic Psychiatric Inpatients Served in the United States: Regional and System Differences. Bulletin of the American Academy of Psychiatry and the Law, Volume 19, No.4.
Steadman, HJ., Holohean, E.J., Jr., Dvoskin, J.A. (1991) Estimating Mental Health Needs and Service Utilization among Prison Inmates. Bulletin of the American Academy of Psychiatry and the Law, Volume 19, No. 3.
McGreevy, M.A., Steadman, H.J., Dvoskin, J.A. & Dollard, N. (1991) Managing Insanity Acquittees in the Community: New York State's Alternative to a Psychiatric Security Review Board. Hospital and Community Psychiatry. Volume 42, No.5.
Dvoskin, Joel A. ( 1991) Allocating Treatment Resources for Sex Offenders. Hospital and Community Psychiatry. Vol. 41, No.3.
Dvoskin, Joel A. (1990) What Are the Odds on Predicting Violent Behavior? The Journal of the California Alliance for the Mtm_till_ly_ill, Volume 2, No. l.
Perlin, M.L. and Dvoskin, J.A. (1990) AIDS Related Dementia and Competency to Stand Trial: A Potential Abuse of the Forensic Mental Health System. Bulletin of the American Academy of Psychiatry and the Law, Volume 18, No.4.
Dvoskin, J.A. ( 1990) Jail-Based Mental Health Services. In Steadman, H.J. (Editor), Effectively Addressing the Mental Health Needs of Jail Detainees, National Institute of Corrections: Boulder, Colorado.
Way, B.B., Dvoskin, J.A., Steadman, H.J., Huguley, H.C. & Banks, S. (1990) Staffing of Forensic Inpatient Services in the United States. Hospital & Community Psychiatry, Volume 41:2.
Dvoskin, Joel A. and Steadman, Henry (1989) Chronically Mentally Ill Inmates: The Wrong Concept for the Right Services. International Journal of Law and Psychiatry, Volume 12, Nos. 2/3.
Dvoskin, Joel A. (1989) Multiple Murder as Social Protest? ~ntemporary Psychology, Volume 34, No.5.
Dvoskin, Joel A. (1989) The Palm Beach County, Florida Forensic Mental Health Services Program: A Comprehensive Community-Based System. In Steadman, H.J., McCarty, D.W., and Morrissey, J.P. The Mentally Ill in Local Jails: Planning for ~Essential Services. New York: Plenum.
Dvoskin, Joel A. (Editor) (1988) Special Issue: Forensic Administration. International Journal ofLaw and Psychiatry. Vol. 11, No.4.

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CURRICULUM VITAE- JOEL A. DVOSKIN, PH.D. PAGE12
Dvoskin, Joel A. (1988) Confessions of a Reformed Forensic Illiterate. Contemporary Psychiatry, Volume 7, No. 2.
Roth, L.H., Aldock, J.D., Briggs, K.K., Dvoskin, J.A., Parry, J.W., Phillips, R.M, Silver, S.B., and Weiner, B.A. (1988)
Final Report of the National Institute of Mental Health Ad Hoc Forensic Advisory Panel. Mental l}nd Physical Disability Law Reporter, Volume 12, No. 1.
Steadman, H.J., Fabisiak, S., Dvoskin, J.A., and Holohean, E.J., Jr. (1987) Mental Disability Among State Prison Inmates: A statewide survey. Hospital and Community Psychiatry, Volume 38, No. 10.
Dvoskin, J.A. and Powitsky, R. ( 1984) A Paradigm for the Delivery of Mental Health Services in Prison. Boulder, CO: National Academy of Corrections.
Koson, Dennis F. and Dvoskin, Joel A. (1982) Arson-A diagnostic study. Bulletin ofthe American Academy of Psychiatry and the Law, Vol. X, No. I.
Dietz, Park E. and Dvoskin, Joel A. (1980) Quality of life for the mentally disabled. Journal of Forensic Sciences, JPSCA, Volume 25, No.4.
Dvoskin, Joel A. (1979) Legal alternatives for battered women who kill their abusers. l3ulletin of the American Academy of Psychiatry and the Law- Special Issue on Crime and Sexuality, Volume IV, No.6.
PROFESSIONAL AFFILIATIONS:
American Psychological Association (Fellow) American Association of Correctional Psychologists American Psychology- Law Society (Fellow) American Correctional Association National Association of State Mental Health Forensic Directors - Chairman 1986-1988 American Correctional Health Association American Jail Association

 
 Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 1 of 89 Page ID#618

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN ______________________________________________________________________________

MICHIGAN PROTECTION & ADVOCACY

SERVICE, INC.,

Case

No. 5:05-CV-0128

Plaintiff,

Hon.

Richard Alan Enslen

v.

PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,

Defendant. ______________________________________________________________________________

THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I.

PRELIMINARY STATEMENT

1. Michigan Protection & A dvocacy Service, In c. ( AMPAS@) brings this action against the

Defendant to challenge and rem edy the Defendant =s illegal and unconstitutional use of

isolation, denial of adequate mental health services, and denial of appropriate educational

services to young prisoners with mental illnes s and/or developm ental disabilities. The

Defendant=s actions and inaction have caused

youth with m ental illness and

developmental disabilities great and irreparable harm.

2. The Michigan Departm ent of Corrections ( AMDOC@) houses adolescent inm ates who

have been convicted of crim es as adults. From 1999 to October 2005, MDOC assigned

many of these youth to the Michigan Youth Correctional Facility (AMYCF@), a maximum

security (“L evel V”) prison located in Lake County. Until it clos ed in October 2005,

MYCF was Michigan’s only privately opera ted prison. It operated under a m anagement

contract with the MDOC and was s ubject to Michigan laws and MDOC regulations and

policy directives. It housed approximately 480 youth between the ages of 14 and 19 years

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 2 of 89 Page ID#619

old who ha ve been convicted and s entenced as adults. In addition to being a m aximum

security facility, MYCF also had 70 beds

used for disciplinary segregation and

administrative seg regation unit, where you th c ould be kept in nearly total isolation for

weeks, months, or even years.

3. A significant num ber of youth who are house d by MDOC have serious and persistent

mental illness and/or developm ental disabili ties. The youth with disabilities who were

imprisoned at MYCF were moved, along with all other MYCF residents, to other MDOC

facilities wh en MYCF closed in October 2005. The illegal conditions of confine ment

which these youth experienced at MYCF have b een and are being repl icated at the other

MDOC facilities.

4. By allowing MDOC to house th ese youth in an isolation un it, in conditions of extreme

social and sensory deprivati on while denying them adequate mental health and education

services, Patricia L. Caruso, Director of MDOC, has, and continues to, knowingly

subjected them to conditions that co nstitute cruel and unusual punishm ent in violation of

the Eighth and Fourteenth Am endments to the United States Constitution, has and is

discriminating against them by virtue of th eir dis abilities or th e severity of their

disabilities and in m ethods of adm inistration of MDOC in violation of Title II of the

Americans with Disabilities Act (“ADA”), 41 U.S.C. '12132, and Section 504 of the

Rehabilitation Act of 1973 ( '504), 29 U.S.C. '794, has and is depriving them of an

appropriate education in viol ation of the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. '1401 et seq . and regulations prom ulgated thereunder, and has

retaliated ag ainst them for exe rcising their constitutional rights to acc ess to the co urts

2

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 3 of 89 Page ID#620
under the First and Fourteenth Amendments. II. JURISDICTION AND VENUE
5. Plaintiff M PAS brings this action to re dress the deprivation of rights guaranteed its constituents under the First , Eighth and Fourteenth Amendm ents, all of which are enforceable under 42 U.S.C. '1983, as well as those rights secured by the ADA, Section 504, and IDEA. The Court has jurisdiction pursuant to 28 U.S.C. ''1331 and 1343(a) (3).
6. Declaratory relief is authorized by Fed. R. Civ. P. 57 and by 28 U.S.C. ''2201, 2202. 7. This Court has jurisdiction to grant injunctive relief pursuant to Fed. R. Civ. P. 65. 8. Venue is proper in this judicial district pursuant to 28 U.S.C. '1391(b) because Defendant
resides in th is district, and because a substan tial part of the events and om issions giving rise to Plaintiff MPAS’ claims occurred in this district.
III. PARTIES Plaintiff
9. Plaintiff MPAS is responsible for provi ding protection and advocacy services to individuals with disabilities pursuant to the Protection and Advocacy for Individuals with Mental Illness Act ( APAIMI Act @). 42 U.S.C. ''10801 and 108027, the Developmental Disabilities Assistance a nd Bill of Rights Act, ( APADD Act@) 42 U.S.C. '15041 et seq., and the Pro tection & A dvocacy for Indiv idual Rights Act ( APAIR Act @). 29 U.S.C. ' 794e. Under the PAIMI Act and PADD Act, Plaintiff MPAS is also authorized to monitor facilities an d program s that hous e individuals with m ental illn esses an d developm ental disabilities, to investig ate suspec ted inci dents of abuse and neglect, and to pursue administrative, legal, and other remedies on behalf of individuals with mental illnesses or
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developmental disabilities wherever program s for such individuals are operated within the State of Michigan. 42 U.S.C. '10805. 10. Plaintiff MPAS is a private, non-profit agency established pursuant the PAIMI Act, the PADD Act, and the PAIR Act. In f urtherance of its duties and this authority, and in response to requests from eligible clients, Plaintiff MPAS has monitored the conditions at MYCF and at o ther M DOC facilities, m et wi th and prov ided leg al as sistance to youth confined at those facilities, and investigated complaints of abuse and neglect. In addition, with the perm ission of num erous youth, Plain tiff MPAS has reviewed the records of those youth confined to MYCF and successor MDOC facilities. 11. Plaintiff MPAS brings this suit in its own name to vindicate the rights of youth below the age of 27 with m ental illness, developm ent disabilities, or other disabilities who are incarcerated in f acilities operated b y MDOC , i ncluding but not lim ited to those youth with disabilities who reside d at MYCF and have been transferred to o ther MDOC facilities either prior to or upon the closing of MYCF in October 2005. 12. The interest Plaintiff MPAS s eeks to vindicate by bringing th is lawsuit, the protection of the rights of youth with m ental illnesses and developm ental disabilities, is central to Plaintiff MPAS= purpose. Plaintiff MPAS is charged with the statutory responsibility to represent the interests of persons with m ental illnesses and developmental disabilities in state institutions, including prisons, who also have standing to sue in their own right. 13. The mission of Plaintiff MPAS is to advan ce the dignity, equality, self-determination and expressed choices of individuals. Plain tiff MPAS promotes, expands, and protects human and legal rights of people through the provision of information and advocacy.
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14. The purpose of Plaintiff MPAS is to (a) im plement a system to protect and advocate for the rights of persons with developm ental disabilities or for individua ls labeled m entally ill and other populations as are eligible for its services under its federal and state grants; (b) pursue legal, adm inistrative and other appr opriate remedies to ensure the welfare and protect the r ights of eligible individuals; (c) p rovide information and re ferral services to eligible pe rsons, their p arents, gu ardians, and attorn eys, an d to aid and advise them in obtaining and protecting the rights of eligible people; (d) provide education, training and technical assistance to agencies which serve eligible populations, attorneys, professional persons, courts and others regarding the rights of eligible persons; (e) advocate for quality services appropriate to address the n eeds and desires or eligible persons; and (f) receive and distribute funds for the accomplishment of these purposes.
15. Plaintiff MPAS= Board of Directors is com posed 16 individuals who broadly represent or are knowledgeable about the ne eds of clients served by the protection and advocacy system and includes individuals who have received or are receiv ing m ental health services and family members of such individuals.
16. Plaintiff MPAS’ Board of Dir ectors has quarterly m eetings in different locations within the state of Michigan. At these m eetings, Plaintiff MPAS provides the public an opportunity to comm ent on its priorities and activities. Plaintiff MPAS also has a grievance procedure for clients to assure that individuals with m ental illnes s and developmental disabilities have full access to the services of Plaintiff MPAS.
17. Plaintiff MPAS has an advisory council, the PAIMI Advisory C ouncil. This council advises the MPAS Boa rd of Directors on polic ies and priorities to be carried out in
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protecting and advocating for the rights of indi viduals with m ental illness. The council includes attorneys, m ental health professi onals, individuals from the public who are knowledgeable about m ental illness, at least one provider of m ental health serv ices, individuals who have received or are receivin g m ental h ealth serv ices, and fam ily members of such individuals, including at le ast one f amily m ember of a m inor child who is receiving or has received m ental health services. A m ajority of the m embers are persons wh o have received or are receiv ing m ental health s ervices or they have fam ily members who have received or are receiving mental health services. 18. The youth whose rights the Plaintiff MPAS seeks to vindicate here are persons w ith mental illnesses, emotional difficulties, and/or developmental disabilities. Specif ically, many of the youth identified in this Complaint and the numerous other youth with mental illness with in th e MD OC system are ind ividuals with Asignificant m ental illness or emotional impairm ent, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4). Other youth named in this Complaint and additional youth in the MDOC system who they represent h ave a Asevere, chronic disability that becam e manifest before the age of 22 and that result s in substantial functional limits in thre e or major life activities,@ as defined in the PADD Act, 42 U.S.C. '5002(8)(A). Other youth have disabilities as defined in the P AIR Act, 29 U.S.C. '794e. The dis abilities of these youth substantially lim it at leas t one their m ajor life activities such that they are persons with disabilities under the ADA. 19. Plaintiff MPAS on it own behalf and on behalf of the its constituents with disabilities have brought the violations of law described in this Complain t to the attention o f the
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Defendant and her authorized agents. Num erous youth have filed and exhausted internal MYCF and MDOC grievances without positive results. Plaintiff MPAS has written to the Defendant and has m et with Defendant =s rep resentatives to c omplain abo ut and d iscuss the conditions described in this Complaint, all without any change in po licy, procedures, or practices.
Defendant 20. Patricia L. Caruso is the Director of the MDOC. Under Mich igan statute M.C.L. '
791.203, Defendant Caruso is responsible for all individuals entrusted to the custody of the MDOC. She was also responsible to ov ersee, m anage, and evaluate the MDOC management contract with The GEO Group, Inc. ( AGEO@), a for profit corporation, when GEO operated MYCF. At all tim es relevan t hereto, she has acted under color of state law. Defendant Caruso is sued in her o fficial capacity. The MDOC is a governmental agency. M.C.L. '16.375.
IV. STATEMENT OF FACTS 21. The allegations contained in this C omplaint are based on inform ation provided to and
obtained by MPAS in the furtherance of its duties and authorities including, but not limited to, the rev iew of records, the collection and analysis of data from those records, interviews with youth confin ed at MYCF and at oth er MDOC facilities after MYCF closed, interviews with MYCF and successo r facility staff and adm inistrators, review of MYCF and MDOC policies and regulations, m onitoring and other visits to MYCF and other MDOC facilities, a su rvey of incarcerated youth de signed and adm inistered by Plaintiff MPAS, and public information.
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22. MDOC receives federal funds for its programs and facilities. 23. MDOC began assigning inm ates to MYCF a fter it opened in July 1999 as a m aximum
security, Level V, prison for young m ale prisoners. Although it housed only m ale youth through age of 19, MYCF was a pr ison and was not designed or operated as a juvenile detention facility. 24. In 1996, when the Michigan Legislature author ized MDOC to operate or to contract for the operation of a separate youth co rrection facility, the Legislature and MDOC expected an increase in the prison population of youth involved in violent crim es. In fact, this population decreased by 21% between 1994 and 2003. 25. When the youth prison was authorized in 1996, the Legislature and MDOC anticipated the need for a Level V, m aximum security prison for youthful prisoners. In fact, only about 6% of the youth incarcerated at MYCF were classified as Level V prisoners, requiring the degree and extent of security and regimentation and the lack of training and habilitation program s, which are common in prison s built a nd operated to the specifications of a maximum security facility. 26. Michigan youth who are tried and sentence d as adults by Michigan courts m ay be committed to the MDOC. Until Oc tober 2005, male youth under the age of 19 who were committed to the MDOC, af ter a brief stay at the rec eption center, w ere ass igned to MYCF, whe re they generally were held un til age 19. Since October 2005, MDOC has assigned these youth, after a brief stay at the reception center, to other MDOC facilities and has transferred youth who were housed at MYCF in October 2005 to other MDOC facilities. Fem ale youth sentenced as adults have been and are confined at the Robert
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Scott Correctional Facility. 27. Defendant Caruso failed to m onitor and supervise the operation of MYCF by GEO,
thereby allo wing and condoning the illeg al pr actices described herein. Likewise, Defendant Caruso has failed to monitor and supervise th e facilities to which M YCF youth were transferred, and other facilities in which yout hful inm ates are confined, thereby allowing and condoning similar illegal practices. 28. Since October 2005, Defendant Caruso has allowed youthful inmates in MDOC facilities to be subjected to a m isuse of segregation a nd to a lack of m ental health and educational services simila r to those to which they we re subjected at MYCF. She has allowed the disciplinary records and security designations that were assigned to youth at MYCF to follow them to the successor f acilities, thereby substantia lly and unf airly af fecting the conditions of their incarcera tion at the successor facil ities. She has allowed her employees to retaliate against the youth cooperating with the Plaintiff MPAS.
The Youth 29. For purposes of this action, Plaintiff MPAS = constitu ent yo uth ar e def ined as inm ates
under the age of 27 who have a disability such that he or she is an individual with a Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by the PAIMI Act, 42 U.S.C. '10802(4) and/or a Asevere, chronic disability that became manifest before the age of 22 and that results in substantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A), with a disability as de fined in the PAIR Act, 29 U.S.C ' 794e, or with a combination of such disabilities.
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Youth 1 30. Youth 1 was held in a com bination of disc iplinary and adm inistrative segregation at
MYCF for more than 600 days from December 2003 to O ctober 2005. Youth 1 suffers from a mental illness. MYCF staff evaluated Youth 1 for inclusion on its outpatient mental health team (“OPMHT”) in April 2004, but he was not adm itted to the OPMHT until October 2004. Youth 1 has en gaged in self-injurious behavior as recently as March 2006 at a MDOC facility, but continues to be denied adequate mental health services. 31. Since his transfer to another MDOC facility in October 200 5, Youth 1 has been held i n protective custody (“P. C.”) due to threats fr om other inm ates and has received sev eral misconduct tickets (“tickets”) for w hich he ha s been placed in segregation. In addition, after October 2005, Youth 1 was housed in a behavior m anagement unit (“BMU”) at the MDOC f acility to whic h he was tr ansferred, w here he was locked do wn in his c ell f or approximately 22-23 ho urs out of 24 hours pe r day without access to programm ing or electronic equipment. 32. Youth 1 is a person with a Asignificant m ental illness or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 2 33. Youth 2 wa s confined in adm inistrative segregation at MY CF for at least 263 days from January 2005 through Septem ber 2005, after a ti cket for threatening behavior, 56 days from July to Septem ber 2004, following a ticket for threatening behavior, and 24 days in December 2003 to January 2004 following a tick et for insolence. Since his tran sfer from MYCF in October 2005 to the date of this Am ended Complaint, Youth 2 continues to be
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held in adm inistrative segregation, at a nother MDOC fa cility, for a total continuous segregated confinement of at least 22 months. 34. Youth 2 has not received any appropriate m ental health services for a significant period of tim e at his cur rent MDOC f acility, and continues to be denied his prev iouslyprescribed medication and adequate counseling, despite self-injurious behavior as recent as April 11, 2006. 35. After engaging in self-inj urious behavior on April 11, 2006, Youth 2 was held down in top of bed four-point restraints for at least 12 hours, but c ontinues to be denied adequate mental health services. Youth 2 has a security level of Le vel V as th e result of these tickets and times in segregation at MYCF and at his current MDOC facility. 36. Youth 2 is a person with a Asignificant m ental illness or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 3 37. Youth 3 suffers from post traumatic stress disorder. 38. Youth 3 was confined in adm inistrative segregation for 133 days in 2004 and 152 days in 2003 at MYCF. 39. Since his transfer from MYCF to a nother MDOC facility, Youth 3 has spent significant amounts of time in P.C. after being stabbed by another inmate. Youth 3, was held in P.C. at MYCF for a total of 56 days in 2004. He was held again in P.C. from November 2005 until July 2006, after being st abbed by another inm ate, during which time he had 1 hour of Ayard time@ per day, and 3 showers per week. 40. Youth 3 had asked to be rem oved from the OPMHT in February 200 6 because h e was
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seeing the parole board, and he did not want the negative po ints assigned by the p arole guidelines for m ental illness to be counted against him . Even before his parole was denied, however, Youth 3 felt the need for m ental health treatm ent and in June 2006 he asked to be put back on the OPMHT. That request has been denied. 41. Youth 3 is a person with a Asignificant m ental illness or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 5 42. Youth 5 was confined in adm inistrative se gregation at MYCF for at least 81 days in February through April 2005 and again in May 2005, for 31 days in Nove mber and December 2004 after a receivi ng a ticket for th reatening be havior, and for 24 days in October 2004 after a ticket for disobeying a direct order. 43. Youth 5 has at least 35 points on his secu rity classification report from his ti me at MYCF. These poin ts will adv ersely im pact dis ciplinary dec isions and se curity classifications at th e facility to which Y outh 5 has been transfer red, and can af fect eligibility for parole. 44. Since September 2005, at a MDOC facility a prison operated and overseen by Defendant Caruso, Youth 5 has been in P.C. after being threatened by other inmates. 45. Youth 5 has been on the OPMHT at MYCF and at his current facility. Youth 5 only sees a mental health professional for about 5 m inutes every month or two. Youth 5 has kited (requested) to see a mental health staff a bout specific issues but staff have been unresponsive to those requests. 46. Youth 5 is a person with a Asignificant m ental illness or em otional im pairment, as
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determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 6 47. Youth 6 was confined in disciplinary se gregation and adm inistrative segregation at
MYCF in May and July 2005 and from November 2004 through January 2005 and for a significant period of time in February and March 2004. 48. Youth 6 has at least 35 points on his secu rity classification report from his ti me at MYCF. These poin ts will adv ersely im pact dis ciplinary dec isions and se curity classifications at th e facility to which Y outh 6 has been transfer red, and can af fect eligibility for parole. 49. Since October 2005, Youth 6 has been housed in a BMU at a facility operated at MDOC, where he is locked down in his cell for a pproximately 20 hours out of 24 hours per day, and attends school for 3 of the hours per day that he is out of his cell. 50. Youth 6 was placed in segregation in June 2006 the day af ter being visited by P laintiff MPAS staff. 51. Youth 6 is on the OPMHT at his current fac ility as he was at MYCF. Youth 6 exhibited suicidal tendencies so as to warrant a suicide evaluation in September 2004, and has been on mental health m anagement plans as r ecently as May 2005. Youth 6 has been on the OPMHT at the Thumb Correctio nal Facility (“Thum b”) and at his current M DOC facility. Youth 6 only sees som eone from t he OPMHT when he kites them , and sometimes mental staff are unrespo nsive to these requests. Youth 6 requested to see the psychologist two or three tim es in July 2006 after getting out of segregation, with no response. 52. Youth 6 is a person with a Asignificant m ental illness or em otional im pairment, as
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determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 7 53. Youth 7 is a youth with a m ental illn ess who was on th e OPMHT at MYCF, and is
currently housed at MDOC=s inpatient mental health facility. 54. Youth 7 was confined in disciplinary segr egation and adm inistrative segregation at
MYCF for significant periods from March through June 2005, and for 33 days in October and November 2004. 55. Youth 7 engaged in self-abusiv e behavior and was placed on suicide watch at least seven (7) times between October 2004 and October 2005, while at MYCF. Since his placement at another MDOC facility, Yout h 7 has continued to engage in several incidents of selfinjurious behavior for which he h as been hos pitalized. Youth 7 was m ost recently hospitalized for an overdose in October 2006. 56. Youth 7 has at least 25 points on his secu rity classification report from his ti me at MYCF. These points will adversely im pact discip linary decision s and security classifications at the facility to whic h Youth 7 h as been transferred. The points also can affect his eligibility for parole, as evidenced by the denial of his parole in December 2005. 57. Youth 7 has been housed at MDOC’s inpatient mental health facility since March 2006, but has not received any significant mental health programming there. 58. Youth 7 is a person with a Asignificant m ental illness or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
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Youth 9

59. While at MYCF, Youth 9 was on suicide watch on several occasions between November

2004 and January 2005, before, during and

after time served in detention and

administrative segregation.

60. Since his transfer to a residen tial treatment program (“RTP”) at MDOC’ inpatient mental

health facility, Youth 9 has been on suicide watch. 61. At his current MDOC facility, Youth 9 has been as saulted by a corrections officer and

then written a ticket because of the incident . When Youth 9 discussed his responsibility

for this ticket with his therapist, she informed him that she had to give the opinion to the

hearing officer that he was responsible or else he would be sent to the hospital.

62. Youth 9 wa s found responsible for another tic ket at his current MDOC facility without

any meeting or discussion with the therapist who opined that he was responsible.

63. Youth 9 is a person with both a Asignificant mental illness or em otional impairment, as

determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4),

and a Asevere, chronic disability that becam e manifest before the age of 22 and that

results in su bstantial functional limits in three or major life activities,@ as defined in the

PADD Act, 42 U.S.C. '15002(8)(A).

Youth 10

64. Youth 10 spent 47 days in adm inistrative segregation at MY CF from December 2004 to

January 2005 after 30 days in disciplinar y segregation, 12 days in adm inistrative

segregation in June and July 2004, 34 days in adm inistrative segregation in December

2003 and January 2004, and additional time in disciplinary segregation in July 2003.

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65. Youth 10 engaged in suicidal behavior in July 2003, February 2004, and December 2004. 66. Youth 10 ha s approximately 12 points on his s ecurity classification report from his ti me
at MYCF. At his current MDOC facility, Youth 10 was housed for a significant period of time in a B MU, where he was locked down in his cell for approxim ately 22 hours out of 24 hours per day, even though he has not received a ticket in over a year. 67. Youth 10 has been on the OPMHT a t MYCF and at his current MDOC facility. Youth 10 believes that he should be on the OPMHT, but he was told by MDOC or OPMHT staff that he does not need m edication and ther efore does not need to be on the OPMHT. Youth 10 has kited to see a psychologist with no response. 68. Youth 10 was also told by MDOC or OP MHT staff that being on the OPMHT would negatively affect his eligibility for parole. 69. Youth 10 is a person with a Asignificant m ental illn ess or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 11 70. Youth 11, a youth with a m ental illness, spent a significant period of tim e in segregation and administrative segregation at MYCF fr om March through May 2005 and served 10 days in detention in September 2004. 71. Youth 11 engaged in self-harm at MYCF in March 2005, and has been on m anagement plans in May 2005 and as recently as September 2005. 72. Youth 11 was diagno sed with a m ental d isorder at the MDOC receptio n center in June 2004, but was not admitted to the MYCF OPMHT until March 2005.
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73. Youth 11 is a person with a Asignificant m ental illn ess or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 12 74. Youth 12 has m ade num erous requests for me ntal health services at his current and
previous MDOC facilities. Youth 12 has also filed grievances about the lack of m ental health services at his MDOC facilities. 75. Even while in segreg ation for 5 m onths at h is previous M DOC facility, Youth 12 was never evaluated by a mental health professional and was only seen once briefly at his cell door, when he again asked for addition al m ental health services which were never received. 76. At his current MDOC facility, in S eptember 2006, Youth 12 asked to see the m ental health professional, who then ta lked to him briefly and told Youth 12 that he would call him out, but he never did so. 77. Youth 12 has been on suicide watche s in Novem ber 2004, June 2003, April 2003, January 2003, and December 2002. 78. Since his transfer to his curren t M DOC f acility, Youth 12 has not been adm itted to an OPMHT even though he was approved for the OPMHT at MYCF. 79. Youth 12 is a person with a Asignificant m ental illn ess or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 13 80. Youth 13 spent at least 81 days in adm inistrative segregation at MYCF in 2005 after 15 days in detention for an assault ticket. Youth 13 also spent 31 days in adm inistrative
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segregation at MYCF in Nove mber and D ecember 2004 after 10 days in detention for threatening behavior and 24 days in administrative segregation at MYCF in October 2004 after receiving a ticket for disobeying a direct order. 81. In May 2005, prior to the closing of MYCF , Youth 13 was transfe rred to adm inistrative segregation at another MDOC facility at se curity Level V, where he r emained in administrative segregation for approximately 6 months. 82. Youth 13 continues to be held by MDOC at a Level V facility based in part on the points he accumulated at MYCF and in part based on his security threat group (“STG”) status. 83. Youth 13 has been on the OPMHT at MYCF and at his current MDOC facility. Youth 13 is a person with a Asignificant mental illness or emotional impairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 14 84. Youth 14 was held in adm inistrative segregation for at l east 80 days at MYCF from October 2004 to January 2005. 85. In January 2005, Youth 14 was tr ansferred to adm inistrative segregation at his current MDOC f acility at s ecurity Leve l V, where he r emains to the date of the f iling of this Amended Complaint. 86. Youth 14 has spent 2 continuous years in adm inistrative segregation with no m ore than 1 hour out of cell per day and without any access to any appropriate programming. 87. Youth 14 was on the OPMHT at MYCF, but has been taken off that team at his current MDOC facility. 88. Youth 14 has not received any appropriate mental health services during the 22 months in segregation at his current MDOC facility, since his transfer from MYCF.
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89. Since January 2005, Youth 14 repeatedly has requested placement on the OPMHT at his current MDOC fa cility, as he was a t MYCF. As of Nove mber 2006, Youth 14 had not even been assessed for placement on the OPMHT.
90. Youth 14 is a person with a Asignificant m ental illn ess or em otional i mpairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 15 91. Youth 15 cam e to MYCF at age 15. He was ho used in adm inistrative segregation a
MYCF from Nove mber 2004 to August 2005 until his transfer to an RTP at another MDOC facility. 92. Youth 15 ha s approximately 35 points on his s ecurity classification report from his tim e at MYCF. These points will adv ersely im pact disc iplinary decis ions and secu rity classifications at oth er MDOC f acilities, in cluding the f acility to which Youth 15 has been transferred, and can affect his eligibility for parole. 93. Youth 15 is housed in a BMU at the his current facility operated by the Defendant, where he is locked down in his cel l for approxim ately 22 hours out of 24 hours per day, even though he has not received a ticket for over 6 months. 94. Youth 15 has been on the OPMHT at MYCF a nd at his current facility. Youth 15 is a person with a Asignificant m ental illness o r em otional im pairment, as determ ined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 16 95. Youth 16 attempted suicide in March 2003 and had suicidal ideations in March 2004 and June 2004.
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96. Youth 16 spent at least 46 days in adm inistrative segregation at MYCF, in October and

November 2004 and accum ulated at least 35 poi nts on his security classification rep ort

from his tim e there. His disciplinary record at MYCF has been a ne gative factor in

disciplinary decisions at the facility to which he was transferred.

97. Since m oving to a facility operated by th e Defendant in October 200 5, Youth 16 was

placed for several months in a BMU where he was out of his cell only 1 hour per day, did

not receive any educational services, a nd did not have access to any electronic

equipment.

98. In January 2006, Youth 16 was charged with assaulting a MDOC staff and he told a

member of the mental health staff that he did not have control over what happened due to

his mental illness. Youth 16 was still held resp onsible for the alleg ed misconduct, and

was then placed in detention for 60 days.

99. Youth 16 has sin ce been moved to a Level V facility where he is only allowed out of his

cell 1 hour per day.

100. Youth 16 has not received adequate m ental he alth services at his current or previous

MDOC facilities, including the time he spent in segregation.

101. Youth 16 has been on the OPMHT both at MYCF and his current MDOC facility. Youth

16 is a person with a Asignificant mental illness or emotional impairment, as determined

by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).

Youth 17

102. Youth 17 spent 78 days in adm inistrative se gregation at MYCF from July to October

2004 after receiving a ticket and serving 60

days in d isciplinary segregation for

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possession of contraband. 103. In October 2004, Youth 17 attem pted suicide and was subsequently assaulted by MYCF
staff while in administrative segregation at MYCF. 104. Youth 17 has approximately 16 points on his security classification report from his time
at MYCF. 105. Youth 17 has received 3 m ajor misconduct ticke ts since his transf er from MYCF to
another MDOC f acility, and was be en placed in disciplinary segregation at th at facility. He has also been placed on Level 2 STG fo r unexplained reasons, which significantly limits his privileges and has negatively affected his eligibility for parole. 106. Since late 2 005, Youth 17 has been relocate d to a Level V facility where he is only allowed out of his cell 1 hour per day. 107. Although he is a person with a serious m ental illness, Youth 17 is no longer on the OPMHT and has not seen a m ental health professional for several months. Youth 17 had been on the OPMHT both at MYCF and his previous MDOC f acility. Youth 17 is a person with a Asignificant m ental illness o r em otional im pairment, as de termined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 20 108. Youth 20 is a person with a mental illness who was on the OPMHT at MYCF. 109. At MYCF, Youth 20 was placed in adm inistrative segregation for 3 days in 2003 after making a suicide threat, for 13 days in 2003 af ter a ticket for unaut horized occupation of cell, for 41 days in 2004 after a ticket for creating a disturbance and insolence, and for 21 days in 2004 after a ticket for disobeying a direct order.
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110. Youth 20 attem pted suicide in October 2003, and was suicidal again in May 2004, August 2004 and January 2005. He again engaged in self-harm in May 2005, and was placed on a management plan in July 2005.
111. Since moving to another MDOC facility after his time at MYCF, Youth 20 has received 2 major misconduct tickets for which he was placed in segregation.
112. Youth 20 accumulated approximately 20 points on his security classification report based on his time at MYCF and currently has 35 points, which has resulted in his placement at a Level V facility and will affect his eligibility for parole.
113. Youth 20 is a person with a Asignificant mental illness or emotional impairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 22 114. Youth 22 has been on the OPMHT at his curre nt and previous MDOC facilities, but has
not been receiving adequate m ental health services. Youth 22 has been at his current MDOC facility for nearly 3 m onths and has only seen a mental health professional once during that tim e. During that visit the staff =s advice was to stop using caffein e and tobacco, and provided Youth 22 w ith literature from the Jehovah =s W itness religious organization. At his current MDOC facili ty, Youth 22 has reques ted to s ee a menta l health professional several times without response. 115. Youth 22=s m edications have been reduced, which is adversely affecting his mental health, but the psychiatrist has failed to re view his m edications with hi m since that change was made. 116. Youth 22 has been told by MDOC staff that he is being held at a Level II facility even
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though he has Level I points because he asked for protection at a previous MDOC facility. 117. Youth 22 only gets at most 3 hours per day of Ayard time,@ which is the a mount allowed for Level IV security level inmates. 118. Youth 22 was held in P.C. from M arch to May 2006 at a MDOC fac ility after being attacked by another inmate. Youth 24 119. Youth 24, a person with a mental illness, attempted suicide by several means in late May 2006. Youth 24 had only seen the ps ychiatrist twice before this attempt since arriving at his current MDOC facility. From the time of his suicide attempts in May through August 2006, Youth 24 had not seen m ental health staff at all. W hen he did see m ental health staff in Septem ber 2006, i t was f or no m ore than 5 m inutes, at his adm inistrative segregation cell door where he had no privacy and could not receive any m eaningful counseling. 120. Youth 24 has been placed in disciplinary segregation and adm inistrative segregation since March 2006, and has received several tick ets while in segregation. Youth 24 has received no counseling while in segregation. 121. Youth 24 has been on the OPMHT at MYCF a nd at his current fac ility. Youth 24 is a person with a Asignificant m ental illness o r em otional im pairment, as determ ined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 25 122. Youth 25 spent significant periods of tim e in the BMU his current facility, during which
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 24 of 89 Page ID#641
time he was out of hi s cell no more than 1 hour per day and was not allowed to participate in programming. 123. In April 2 006, he was placed in discip linary segregation and then adm inistrative segregation af ter rece iving tickets f or insole nce and creating a disturba nce. Youth 25 remained in segregation, with no programm ing or mental health services and at m ost 1 hour out of cell per day, until early September 2006. 124. Youth 25 has asked to receive mental health services at his current MDOC facility with no response. 125. Youth 25 has a Asevere, chronic disability that became manifest before the age of 22 and that results in substan tial functional limits in th ree or m ajor life activities,@ as defined in the PADD Act, 42 U.S .C. '15002(8)(A), and m ay be a pe rson with Asignificant mental illness o r e motional impairm ent, a s dete rmined by a m ental health prof essional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 26 126. Youth 26, a person with a m ental illness, has not received any appropriate mental health counseling since arriving at his current MDOC facility. 127. Youth 26 attem pted to harm hi mself twice while in segregation in July 2006, but even since then he has no t received any mental health treatm ent other than adjustm ent of his medication by a psychiatrist in early September 2006. 128. You th 26=s me ntal il lness s ymptoms b ecame s ignificantly m ore seve re afte r he was placed in segregation in May 2006. 129. Youth 26 has been as signed to the BMU at a MDOC f acility f or s ignificant pe riods of
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time, during which time he was out of his no more than 1 to 2 hours per day, and did not receive access to programming, education or electronic equipment. 130. Youth 26 has been in discip linary segregation and adm inistrative segregation from May 2006 through October 2006. During this tim e in segregation Youth 26 has been visited occasionally by a m ental health pro fessional but he has not been pulled out of his cell weekly for an assessment, as required by MDOC policies. 131. In July 2006 Youth 26 was placed on Afood loaf.@ 132. Since May 2006, Youth 26 has been in m echanical top of bed restra ints at least 5 tim es, meaning that he is strapped to the bed by his hands and feet and cannot move off of the bed for as long as 11 continuous hours. Duri ng some top of bed restraint periods Youth 26 has not been allowed off of the bed to use the bathroom. 133. Youth 26 has gone for as long as 52 days wit hout going outside since he has been held in disciplinary segregation and administrative segregation at his current MDOC facility. 134. Youth 26 recently tried to defend a ticket for Ainsolence@ by alleging that he should not be held respon sible due to his m ental illness, wh ich preven ted him f rom controlling his actions. The alleged insolence occurred when Youth 26 was in segregation. The hearing officer for the ticket failed to get an opinion from a m ental health p rofessional as to Youth 26 =s responsibility for the ticket. The hearing offi cer then found that Youth 26 was guilty of insolence and gave him a punishment of 30 days loss of privileges (“LOP”). 135. Youth 26 is a person with a Asignificant m ental illn ess or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
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Youth 27 136. Youth 27 was charged as an adult at age 14 and spent significant periods of time in
detention and administrative segregation at MYCF. 137. Since Octob er 2005, Youth 27 has been housed in a unit at his curren t MDOC facility
where he is allowed out of his cell for no m ore than 2 to 3 hours of recreation. Youth 27 has been in this unit from Nove mber 2005 until April 2006 and ag ain from June 2006 to date. 138. Youth 27 was m oved to the BMU a t his cu rrent MDOC facility in May 2006. As of October 2006 he was still in th at unit and had not been allowe d to return to his education classes. 139. Youth 27 has been on the OPMHT at MYCF a nd at his current fac ility. Youth 27 is a person with Asignificant m ental illn ess or em otional im pairment, as determ ined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 28 140. Youth 28 has been housed at three MDOC facilities since 2002, when she was 19 years old. At her curren t facility, where she has been housed since Decem ber 2004, Youth 28 has been in disciplinary segregation and administrative segregation at least 8 times, for as long as 96 days each time. 141. In August 2006, while in segr egation, Youth 28 tried to hang herself because she could not tolerate the conditions in segregation. 142. After that suicide attempt, Youth 28 was placed in top of be d restraints in segregation for 2 days. During those 2 days, she was not al lowed to use the bathroom and was given
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water only every 4 hours. 143. Corrections officers who have attempted to fight with Youth 28 in the past have been
assigned to the segregation unit while she has been housed there. 144. From August 30, 2006 until September 11, 2006, Youth 28 was placed in segregation
because someone assaulted her. 145. On September 15, 2006 Youth 28 was pl aced back in segr egation for threatening an
officer, but security cameras showed that she did not threaten the officer. 146. Youth 28 was taken off her m edications for about 2 m onths and only started receiving
them again on September 18, 2006. 147. Youth 28 is a person with Asignificant m ental illness o r em otional im pairment, as
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 29 148. Youth 29 spent from March 200 3 until April 2005 at MYCF, during which tim e he was
placed in disciplinary segregation and administrative segregation 10 or 11 times. He was placed in ad ministrative segreg ation for at leas t 30 days after each time in d isciplinary segregation, even if the segregation time was based on non-assaultive behavior. 149. Shortly after a m eeting with Plaintiff MPAS staff on June 5, 2006, Youth 29 was placed in administrative segregation on a n otice of investigation (“NOI”). Staff had no reason for holding Youth 29 on a NOI other than an alleged threat made towards him by another inmate. Youth 29 continued to be held in administrative segregation on a NOI at from June 13 until he was transferred to another MDOC facility on August 16, 2006. 150. After returning to adm inistrative segregation from a Secu rity Classification Comm ittee
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(“SCC”) meeting on August 14, 2006, Youth 29 reports that he put his hands through the tray slot to have his hand cu ffs removed. Youth 29 kept his arm in the tray slot and two corrections officers twisted his arm , bent it, and slamm ed it with the tray slot door. As the result, his arm was heavily bruised. 151. The tim es in isolation describ ed in the preced ing paragrap hs have cau sed Youth 29 a significant amount of stress and aggravated his mental illness. 152. These tickets and tim e in segregation re sulted in Youth 29 having approxim ately 24 points when he m oved f rom MYCF to ano ther MDOC f acility, and a dditional po ints since his transfer, which have negatively affected his ability to be given parole. 153. Youth 29 sent requests in April and May 2006 to see someone from psychological services at his MDOC facilit y. He received no response to those requests. His request stated that he was thinking of harm ing himself at the tim e. He also requested to see someone from psychological services while he was in segregation in May 2006 and no one responded to that request. 154. Based on his history of receiving mental heal th services in the past, Youth 29 m ay be a person with Asignificant m ental illn ess or em otional im pairment, as determ ined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 30 155. Youth 30 has been held at MDOC=s inpatient mental health facility since approximately October 2005. 156. For a significant period of time, Youth 30 was placed in a unit where he is not allowed out of his cell to attend school or use the library. 157. Youth 30 has attempted to kill himself at least 2 times since his incarceration by MDOC,
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once as recently as August or September 2006. 158. Youth 30 is a person with both a Asignificant mental illness or emotional impairment, as
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4), and has a Asevere, chronic disability that becam e manifest before the age of 22 and tha t results in su bstantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A). Youth 31 159. Youth 31 has been held in adm inistrative segregation at a facility under the direction of Defendant Caruso for a period of at least 17 months, through August 2006. 160. Youth 31 has not been receiving any mental health services at his MDOC facility. 161. Youth 31 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 32 162. Youth 32 has been held in segregati on at a facility under the direction of Defe ndant Caruso for a period of at least 20 months, from February 2005 through October 2006. 163. Youth 32 has 35 points based on tickets he has received in MDOC facilities, which causes him to be placed in a Level V facility and will affect his eligibility for parole. 164. Youth 32 has not been called out of his cell to see the m ental health staff since he has been at his current MDOC facility. Youth 32 has made requests to see the m ental health staff without response. At most Youth 32 sees a m ental health professional at his door once or twice a month. 165. Youth 32 is a person with Asignificant m ental illness o r em otional im pairment, as
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 30 of 89 Page ID#647
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 33 166. Youth 33 was held in segregatio n at MYCF and other MDOC facilities under the
direction of the Defendant for three and a half years. 167. Youth 33 continued to receive tickets while he was in segregation. 168. Youth 33 was only reviewed once by a SCC over several years in segregation. 169. Youth 33 was referred to a RPT by a sta ff on the OPMHT ea rly in his tim e in
segregation, but other staff at the MDOC facility denied that request. 170. Youth 33 has been at a Level V facility since April 2006 and has only seen a m ental
health staff 2 or 3 tim es, for a short tim e each visit, and he h as had only one m edication review during that time. 171. Youth 33 last received a ticket in July 2005, but he continues to be held at a Level V facility where he is kept in his cell except for time he spends working, approximately 2-3 hours per day. 172. Youth 33 believes that he has Level IV point s but he has not been m oved to a Level IV facility. 173. Youth 33 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 34 174. Youth 34 was arrested and confined in MDOC at age 17. 175. Youth 34 has been held in adm inistrative segregation at facilities under the direction of the Defendant for at least 4 different periods, once for a period of more than 6 m onths, in the past 3 years.
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176. Youth 34 has been on the OPMHT and on m edication for his mental illness. Youth 34 is a person w ith Asignificant m ental illness o r em otional im pairment, as determ ined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 35 177. Youth 35 was arrested at age 16. He has b een held in adm inistrative segregation at
facilities under the direction of the Defendant at least 9 different times. 178. Youth 35 was held in adm inistrative segregation for 7 months beginning in late 2005 and
ending in July 2006. 179. Youth 35 continue s to be held in a Leve l V prison due to his points based on tickets
received in prison and on his STG classifica tion. As a Level V prisoner he only has 1 hour of recreation out of his cell per day. 180. To his knowledge, Youth 35 has never been evaluated for the OPMH T. Youth 35 =s mental illness symptoms have been aggravated by his time in segregation. 181. Youth 35 has been denied parole at least 3 times. 182. Based on past m ental health assess ments, Yout h 35 m ay be a person w ith Asignificant mental illness or em otional impairment, as de termined by a m ental health prof essional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 36 183. Youth 36 was arrested and confined in M DOC at age 17. Youth 36 has been held in administrative segregation at facilities und er the direction of the Defendant for at least three periods of time, for two periods of 8 months, and one period of one year. 184. Youth 36 is 3 years beyond his earliest release date based at least in part on points he has
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accumulated in prison. 185. Youth 36 ha s attempted suicide, and has b een on the OPM HT and on m edication for his
mental illne ss. Youth 36 is a person with Asignificant m ental illne ss or em otional impairment, as determ ined by a m ental hea lth professional, @ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 37 186. Youth 37 was arrested and confined in MDOC at age 18. He has been held in administrative segregation at facilities unde r the direction of De fendant C aruso for several different periods. 187. Youth 37 has been held more than 1 year beyond his earliest release date based at least in part on points he has accumulated in prison. 188. Youth 37 recently attempted to com mit suicide while being held in segregation, and he has been on the OPMHT and on m edication for his mental illness. Youth 37 is a person with Asignificant m ental illness or em otional impairm ent, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 38 189. Youth 38 was arrested and confined in M DOC at age 17. Youth 38 has been held in administrative segregation at facilities under th e direction of the Defendant for at least 6 times. 190. Youth 38 has been denied parole 3 tim es and has been held more than 3 years beyond his earliest release date based at least in part on points he has accumulated in prison. 191. Youth 38 has been on the OPMHT and on medication for his mental illness.
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192. Youth 38 was on the O PMHT at MYCF and has attempted suicide in the past, including 2 attempts at MYCF and 2 attempts while at MDOC facilities.
193. Youth 38 has recently been put back on m edication but at h is current M DOC facility he has not seen anyone from the m ental health staf f in about 2 m onths. Even if he asks to see someone from the m ental health staff, it takes one to two week s for Youth 38 to get called out.
194. When Youth 38 was in segregation starting on June 3, 2006, the m ental health staff only saw him one time when walking by his door but did not stop to talk to him.
195. Youth 38 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 39 196. Youth 39 has been held in adm inistrative segregation at facilities under the direction of
the Defendant on several different occasions. 197. Youth 39 often attem pts to commit suicide while in segregation, incl uding an attempt on
September 1 8, 2006. After that attem pt, he was m oved to a RTP at another facility, where he has been confined to his cell m ore than 22 hours per day, and 24 hours per day on the weekends. 198. Youth 39 has been on the OPMHT and/or in a RTP and on m edication for his mental illness, but he has had limited contact with any mental health professional. 199. Youth 39 was just recently denied parole and will not be reviewed for another 24 months, based at least in part on points he has accumulated at various MDOC facilities. 200. Youth 39 h as been in MDOC facilities s ince 2002 and has been h eld in segregatio n for
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 34 of 89 Page ID#651
significant periods of tim e at vario us MDOC facilities. At MDOC’s inpatient m ental health facility where he has been held fo r several m onths at a tim e for two different periods since early 2005, the last time beginning in Septem ber 2006 after he attempted suicide at another MDOC facility. 201. At MDOC’s inpatient mental health facility, Youth 39 has be en held in a restricted RTP unit known as SSRTP, in which he is locked in room for at least 22 hours and sometimes for 24 hours per day. This tim e in isolation has made Youth 39 more likely to engage in self harm. 202. At MDOC facilities, Youth 39 has spent appr oximately 3 years in segregation during his 4 years in prison. W hen Youth 39 was returned to a level 5 MDOC fa cility after several months at MDOC’s inpatient mental health facility, he was not seen by any mental health staff for two months, due at least in part to a la ck of mental health staffing at that facility. Youth 39 has been restrained to the bed several times for punitive purposes, for 2 weeks on one occasion and for 7 days in February 2006. 203. Youth 39 was eligible for paro le in February 2007 but he ha s been inform ed that parole has been denied and will not be reviewed for a period of 24 months. 204. Youth 39 i s a person with “significant m ental illness or em otional im pairment, as determined by a mental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). Youth 40 205. Youth 40 was arrested and confined in M DOC at age 17. Youth 40 has been held in administrative segregation at facilities unde r the direction of th e Defe ndant on several different occasions, including at least 5 m onths in adm inistrative segregation as of August 2006.
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206. Youth 40 has been held past his earliest release date based at least in part on points he has accumulated in prison.
207. Youth 40 has not been on the OPMHT but is a person in need of m ental health services and substance abuse counseling. Based on his history of recei ving mental health services prior to his arrest, Youth 40 is a person with Asignificant m ental illne ss or em otional impairment, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 41 208. Youth 41 was arrested and confined in MDOC for failing to register as a sex offender. 209. Youth 41 has been held in adm inistrative segregation at facilities under the direction of
the Defendant for approxim ately 15 different tim es, including at least 4 m onths in administrative segregation from April through August 2006. 210. Youth 41 has been held past his earliest release date based at least in part on points he has accumulated in prison. 211. Youth 41 was previously on the OPMHT but hi s medications have been discontinued at his current MDOC facility. 212. Based on his histo ry o f receiving m ental h ealth serv ices, Youth 41 is a person with Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 42 213. Youth 42 was arrested and confined in MDOC at age 16. 214. Youth 42 has been held in a Level V fac ility even though his points would warrant
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placement in a lower level security facility. Youth 42 has no more than 2 hours out of his cell per day, which has had a significantly negative effect on his mental health. 215. Youth 42 is on the OPMHT, but does not re ceive signif icant m ental health services beyond receipt of his medication. 216. When in segregation in 1998 and in 2003, Youth 42 did not see m ental health staff regularly. At his current f acility, Youth 42 only sees m ental health staff every 2-3 months and there are no treatment programs available to him. 217. Youth 42 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 43 218. Youth 43 was arrested and confined in M DOC at age 17. Youth 43 has been held in administrative segregation at facilities under the direction of the Defendant for significant periods of time during his 7 years of incarceration. 219. Youth 43 has been held for m ore than 3 years past his earliest releas e date based at least in part on points he has accumulated in prison. 220. Youth 43 has not been on the OPMHT but is a person in need of services to address the effects of Attention Def icit Hy peractivity Disorder (“AD HD”), serious learning disabilities and other possible disabilities. 221. Youth 43 has both a Asevere, chronic disability that became manifest before the age of 22 and that results in substantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A), and may be a person with Asignificant mental illness o r e motional impairm ent, a s dete rmined by a m ental health prof essional,@ as
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defined by PAIMI, 42 U.S.C. '10802(4). Youth 44 222. Youth 44 was arrested and confined in MDO C at age 18. He has been held in
administrative segregation at facilities under the direction of the Defendant for significant periods of time during his 7 years of incarce ration, including being held in administrative segregation for the past 6 months. 223. During this current time in segregation Youth 44 has had thoughts of committing suicide but has received limited attention from mental health staff. 224. Youth 44 has been placed on food loaf, which he has been unable to eat, for as long as 2 weeks. 225. Youth 44 has been placed in top of bed re straints on at least two different occasions, including one period of 2 weeks after attempting to commit suicide, during which time he did not eat or drink, and one period of 42 da ys after staff reported that he possessed a razor. 226. Youth 44 has been held for m ore than 3 years past his earliest releas e date based at least in part on points he has accumulated in prison. 227. Youth 44 has been taken off of the OPMHT but is a person in need of m ental health services. Youth 44 is a person with Asignificant mental illness or emotional impairment, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 45 228. Youth 45 was arrested at ag e 16 and later confined with MDOC bas ed on a probation
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violation. He has been held in adm inistrative segregation at faciliti es under the direction of the D efendant for significant periods dur ing his 7 years of incarceration, including being held in segregation since April 2006. 229. While Youth 45 was at a previous MDOC facility, from August 2004 until Ju ly 2005, he attempted suicide. 230. Youth 45 received add itional ticke ts after being m oved t o MDOC =s inpatient m ental health facility. 231. In November 2006, Youth 45 had not had a medication review for at least 3 months. 232. Youth 45 is occasionally visited by mental health staff for brief periods in segregation but has not been pulled out of his segregation cell for an evaluation or assessment. 233. Youth 45 has been held for m ore than 3 years past his earliest releas e date based at least in part on points he has accumulated in prison. 234. Youth 45 is on the OP MHT but is in need of more significant m ental health services. Youth 45 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 46 235. Youth 46 was arrested and confined in M DOC at age 17. Youth 46 has been held in administrative segregation at facilities under the direction of the De fendant, from 20 00 until January 2006, when he was sent to MDOC’s inpatient mental health facility. 236. In June 2006 Youth 46 was returned to a Level V facility even though he has Level II points. 237. In September 2006, Youth 46 was returned to segregation for one and one-half m onths after receiving a ticket for threatening behavior.
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238. At his current MDOC facility, Youth 46 is not receiving any mental health programming even though he continues to be on th e OPMHT. Youth 46 i s a person with Asignificant mental illness or em otional impairment, as de termined by a m ental health prof essional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 47 239. Youth 47 was arrested at age 17 and was at MYCF from May until October 2005. 240. Youth 47 has only received one tick et in th e past 8 m onths, and has points which w ould
make him a level 2. 241. Youth 47 is held in his cell for as much as 22 hours per day. Youth 47 was placed in
segregation for approxim ately one and one half months after a hearing officer gave him 60 days detention for failure to disburse. 242. Youth 47 was then moved to the facility’s BMU, where he was held for another month. 243. Youth 47 has requested m ental health services, including medication and counseling, but has not received any significant treatment at his current MDOC facility. 244. Youth 47 is not a part of his facility ’s O PMHT but he is in need of mental h ealth services, which he does not receive. 245. Based on his receipt of m ental health serv ices in the past, Yout h 47 is a perso n w ith “significant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). Youth 48 246. Youth 48 was arrested and confined in M DOC at age 18. Youth 48 has been held in segregation at facilities under the direction of the Defendant for significant periods during
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 40 of 89 Page ID#657
his 5 years of incarceration, including bein g held continuously in adm inistrative segregation for the past 3 years, after being placed in segregation on or about July 4, 2003. 247. Youth 48 has engaged in self harm at least once every several m onths since he has bee n in segregation, most recently in June 2006. 248. Youth 48 has been held past his earliest release date based at least in part on points he has accumulated in prison. 249. Youth 48 is not on the OPMHT but is in need of signi ficant m ental health services. Youth 48 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 49 250. Youth 49 was arrested and confined in MDOC at age 19. He has been held in segregation at facilities unde r the direction of the Defendant from November 2005 until June 2006 and from July 19, 2006 through October 2006. 251. Mental health staff see Youth 49 in segregation at most two times per month, and at those times they only stop at his ce ll door and ask i f he is all ri ght. Youth 49 has not received any mental health services since he came into the MDOC system. 252. Youth 49 has not receive d any tickets since he has been in segregation since July 2006 and has had good behavior reports. Nevertheless, he remains in segregation. 253. Youth 49 has accumulated at least 35 points since his incarceration in 2005. 254. Youth 49 is not on the OPMHT but is in need of significant m ental health services. Youth 49 is a person with Asignificant m ental illness o r em otional im pairment, as
40

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 41 of 89 Page ID#658
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 50 255. Youth 50 cam e to prison at age 17 on a senten ce of 5 m onths to 10 years, and has been
held more than a year past his earliest release date. 256. Youth 50 is placed at a Level V facility ba sed in large part on poi nts he has received
based on his non-violent but disobedient behavior in prison. 257. Youth 50 has requested m ental health services on several occasions, but he has not been
fully evaluated for or received app ropriate mental health s ervices. Bas ed on evaluations completed prior to coming to prison, Youth 50 is a person with Asignificant mental illness or emotional impairment, as determ ined by a mental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 51 258. Youth 51 received special education services pr ior to his arrest at age 1 6 and at MYCF, but at his current MDOC facility he has not been in school for several months. 259. Youth 51 is a person with a Asevere, chronic dis ability that became manifest before the age of 22 an d that results in substantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A). Youth 52 260. Youth 52 has been held in segreg ation at MDOC facilities under th e direction of the Defendant for approximately 3 years since his arrest. 261. Youth 52 has attempted to harm himself while in custody of MDOC and has been placed on suicide watch, during which time MDOC staff did not feed him for 3 days during first
41

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 42 of 89 Page ID#659
shift. 262. Youth 52 was forced to drink out of the toil et for 30 days at a previous MDOC fac ility
while he was in segregation because he was not provided with drinking water. 263. Since his arrival as his current MDOC facility in December 2005, Youth 52 has met once
with the SCC regarding his continuation in segregation. 264. Youth 52 received m ental health treatm ent prior to hi s arrest at age 18. Youth 52 has
requested but has no t received appropriate mental health services, including medication, during his tim e with MDOC. The m ental health staff does not pull him out of his segregation cell for any evaluation. Youth 52 is not on the OPMHT but is in need of significant mental health services. 265. Youth 52 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 53 266. Youth 53 has been held in a Level V facility based in large part on 28 or more points he has accumulated since his confinement by MD OC. In Level V, he has no m ore than 2 hours out of his cell per day, which has had a significantly negative e ffect on his mental health. 267. Youth 53 has also spent at least 8 periods of time in segregation. 268. Youth 53 is not on the OPMHT, and does not receive significant m ental health serv ices. Youth 53 has requested to be evaluated to r eceive m ental health serv ices from MDOC without response. Youth 53 is a person with Asignificant m ental illness or em otional impairment, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4).
42

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 43 of 89 Page ID#660
Youth 54 269. Youth 54 was 17 years old at the tim e of his arrest. Youth 54 has spent at least 4 periods
of time in segregation. 270. Youth 54 is not on the OPMHT, and does not receive significant m ental health serv ices.
Youth 54 was on medication for his mental illness prior to his arrest. 271. Youth 5 4 is a person with Asignificant m ental illness o r em otional im pairment, as
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 55 272. Youth 55 has not received significant m ental health treatment at MYCF or at the MDOC
facilities where he has b een placed s ince MYCF. Youth 55 h as not been placed on th e OPMHT. During his 9 tim es in segregation at various MDOC fac ilities and at M YCF, the mental health staff have not pulled Youth 55 out of his cell for any type of evaluation. Youth 55 has been placed on suicide watc h recently but still does not receive any significant or appropriate mental health services. 273. Youth 55 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 56 274. Youth 56 was arrested at 18 and rem ains in pr ison past his original earliest release date based on a second charge which he obtained while in prison. 275. Youth 56 had been diagnosed with a m ajor mental illn ess and was taking m edication prior to his arrest. Since com ing to tw o diff erent MDOC f acilities, Youth 56 has requested mental health services and evaluation for the OPMHT m any times, but MDOC
43

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 44 of 89 Page ID#661
staff have refused to even evaluate him thoroughly for possible adm ission to the OPMHT. The mental health professional serving Youth 56=s unit serves a total of 8 units at that MDOC facility, which includes as many as 768 inmates. 276. Youth 56 had engaged in self-injurious be havior on many occasions in prison, including cutting his wrists in early October 2006. 277. Youth 56 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 57 278. Youth 57 was arrested at 18 and has been placed at numerous MDOC facilities. 279. Youth 57 has requested but has not received ade quate mental health services at several of those MDOC facilities. Youth 57 was placed on suicide watch at leas t 2 times for 7 days each time. 280. Youth 57 has received tickets for non-violent MDOC rule violations and then has been placed in adm inistrative segregatio n, even after being g iven only to p lock, a lesse r sanction, as punishment by the hearing officer. 281. Youth 57 spent at least 6 m onths in segr egation in 2003 and 2004 at a previous MDOC facility. M ental health sta ff have not com e to see him wh en he was in adm inistrative segregation. 282. Youth 57 has been denied parole 4 tim es a nd his earliest release date was in Oct ober 2003. 283. Youth 57 has been hospitalized and had taken m edication for his m ental health prior to his arrest. Youth 57 is a person with Asignificant mental illness or emotional impairment,
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 45 of 89 Page ID#662

as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C.

'10802(4). Youth 61 284. Youth 61 was 16 at the tim e of his arrest th at led to his incarcera tion by MDOC. He has
been held in segregation at facilities under the direction of the Defendant for significant periods, including a recent period of 16 months in administrative segregation. 285. Youth 61 is not on the OPMHT but is in need of significant m ental health services. Youth 61 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).

Youth 63 286. Youth 63 was arrested and confined in MDOC at age 19. He has been held in a L evel V

facility based in large part on 35 or m

ore points he has accumulated since his

confinement by MDOC, in less than 2 years. In Level V, Youth 63 has no m ore than 2

hours out of his cell per day, which has had a significantly negative e ffect on his mental

health.

287. Youth 63 has spent 2 periods in administrative segregation.

288. Youth 63 is on the OPMHT, but does not re ceive signif icant m ental health services

beyond receipt of his medication. Youth 63 is a person with Asignificant mental illness or emotional impairm ent, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4).

Youth 64 289. Youth 64 received m edication for his m ental illness in the past, but he now receives no

45

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 46 of 89 Page ID#663
medication or counseling and is not on the OPMHT at his current MDOC facility. 290. Youth 64 last attempted to commit suicide in June 2006. 291. Youth 64 is a person with Asignificant m ental illness o r em otional im pairment, as
determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 65 292. Youth 65 was 17 when he was arreste d. At MYCF from 20 00-2002, Youth 65 was in
administrative segregation two tim es for a bout 3 m onths each tim e. Aft er moving from MYCF, Youth 65 spent 9 m onths in adm inistrative segregation at his previous MDOC facility after receiv ing a ticket and 30 days disciplinary s egregation for disobey ing a direct order, a non-violent offense. 293. Youth 65 has been in adm inistrative segregation at his current MDOC facility from June 2006 through October 2006. He has not received any tickets while in segregation and his behavior has been reported as Agood@ in segregation. Nevertheless, he rem ains in segregation. 294. Youth 65 is in need of m ental health treatm ent but not receive ade quate treatment at his current MD OC f acility. Youth 6 5 is a person with Asignificant m ental illness or emotional impairm ent, as determ ined by a m ental health professional, @ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 66 295. Youth 66 has been held in segregation at facilities under the direction of the Defendant for significant periods on at le ast 5 different occasions, including three periods of tim e in administrative segregation.
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 47 of 89 Page ID#664
296. Youth 66 is not on the OPMHT but is in need of significant mental health services. Youth 66 has requested those services at various MDOC facilities where he has been housed but has not been provided with any significant mental health services.
297. The judge wh o sentenced Youth 66 recomm ended that he receive m ental health services while being held by MDOC, and Youth 66 ha s attempted to commit suicide on numerous occasions.
298. Based on his receipt of m ental health services, prior to hi s arrest, Youth 66 is a person with Asignificant m ental illnes s o r em otional impairm ent, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 67 299. Youth 67 has been held in segregation most recently since September 5, 2006, for tickets
he received while on suicide watch on September 5, 2006. 300. At a previous MDOC facility, m ental health staff took Yout h 67 off of his psychotropic
medications while he was in segregation in late 2005. 301. Youth 67 was then taken off the OPMHT in March or April 2006, based on the m ental
health staff=s opinion that he did not need the OPMHT anymore. 302. In Septem ber 2006, Youth 67 was on suicide watch for a week before he saw anyone
from the mental health staff. 303. Since he has been in segregation beginning in September 2006, mental health staff person
comes to his door to check on him about once a week. However on November 6, 2006, he had not been seen for about 2 weeks. He ha s not been pulled out of his cell for an assessment or evaluation since he began segregation in September 2006. 304. Youth 67 has been denied parole 2 tim es, and is not eligible for parole again until
47

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 48 of 89 Page ID#665
September 6, 2008. 305. Based on his treatm ent for m ental i llness prior to his arrest, Youth 67 is a person with
Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 68 306. Youth 68 received m edication for his m ental illness in the past, b ut he now receives no medication or counseling and is not on the OPMHT at his current MDOC facility. 307. Youth 68 ha s been placed on suicide watch 8 tim es since February 2004, including one time at his current MDOC facility. 308. Based on his receipt of m ental health services prior to his arrest, Youth 68 is a person with Asignificant m ental illness o r em otional impairm ent, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 69 309. Youth 69 was arrested at age 16 after suffering a traumatic brain injury (“TBI”) at age 11. Youth 69 receives no treatm ent for his TBI other than seiz ure medication, no counseling and is not on the OPMHT at his current MDOC facility. 310. Youth 69 has received tickets for behavior a ssociated wi th his seiz ures that he cannot always control. 311. Youth 69 has both a Asevere, chronic disability that became manifest before the age of 22 and that results in substantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A), and may be a person with Asignificant mental illness o r e motional impairm ent, a s dete rmined by a m ental health prof essional,@ as
48

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 49 of 89 Page ID#666
defined by PAIMI, 42 U.S.C. '10802(4). Youth 70 312. Youth 70 has been held in segregation at facilities under the dire ction of the Defendant
for significant periods on at least 3 differe nt occasions, including being held in segregation for the past 14 months. 313. Youth 70 is not on the OPMHT but is in need of significant mental health services. 314. Youth 70 is a person with a Asignificant m ental illn ess or em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4), and he m ay have a Asevere, chronic disability th at became manifest before the age of 22 and that results in substantial functional limits in three or major life activities,@ as defined in the PADD Act, 42 U.S.C. '15002(8)(A). Youth 71 315. Youth 71 has been held in disciplinary segr egation and adm inistrative segregation from June 1, 2006 through October 30, 2006 after receiving a threatening behavior ticket. 316. Youth 71 was recently referred for a m ental health evaluation, but still has not received medications which were prescribed at his previous MDOC facility in June 2006. 317. At a previo us MDOC placem ent, Youth 71 was held in segregation for 3 contin uous years, from 2001 to 2004. 318. Youth 71 continues to receive numerous tickets, particularly while in segregation. 319. Youth 71 is in need of m ental health serv ices but is not receiving them at his MDOC facilities, even when he is placed in segregation. Youth 71 is a person with Asignificant mental illness or em otional impairment, as de termined by a m ental health prof essional,@
49

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 50 of 89 Page ID#667
as defined by PAIMI, 42 U.S.C. '10802(4). Youth 72 320. Youth 72 was 18 when he was arrested. Yout h 72 was held in segreg ation at his current
facility from approxim ately February 2006 until October 2006. Yout h 72 was also held in segregation from May 26, 2005 until December 16, 2005 after comm itting a n onviolent rule violation. 321. Youth 72 has not received any appropriate m ental health services since he has b een in prison and rarely saw som eone from the m ental health staff when he was in segregation. Even when a correction off icer told him that he had a m ental problem when he was in segregation, Youth 72 saw the mental health staff for about 30 minutes and was only told to find other ways to vent his frustration. Youth 72 has requested m ental health services several times at his current MDOC facility. 322. Based on his receipt on m ental health services prior to hi s arrest, Youth 72 is a person with Asignificant m ental illness or em otional impairm ent, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 73 323. Youth 73 was 17 when he was arrested. Yo uth 73 has been in segregation since he arrived at h is curren t M DOC facility in A ugust 2006. He has not received any tickets while in segregation. 324. Youth 73 fe els that he could benefit from mental health se rvices. Youth 73 saw m ental health s taff only two tim es at his previous M DOC f acility, where he was held for 14 months. He has only seen the m ental health staff one time in the 3 m onths he has been at his current facility. Those meetings were at his cell door.
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 51 of 89 Page ID#668
325. Based on his receipt of m ental health services prior to his arrest, Youth 73 is a person with Asignificant m ental illness or em otional impairm ent, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 74 326. Youth 74 was in segregation for 5 or 6 m onths until appr oximately January 2006 at his
current MDOC facility. W hile in s egregation, Youth 74 does no t recall any visits from the mental health staff, even though he reque sted those services. Youth 74 continues to be held at a Level IV fa cility, where he has only 2-3 hours out of his cell per day, even though he has Level II points. 327. Based on his receipt o f m ental hea lth services in the past, Youth 74 is a person w ith Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 75 328. Youth 75 was arrested at age 14. Youth 75 was last held i n segregation from November 2005 to May 2006, he believes for too m any tickets. Youth 75 requested m ental health services during this time, but the mental h ealth staff only spoke to him for a short tim e and told him to Abe good.@ Youth 75 requested additional help but was not even ref erred for an evaluation for more substantial mental health services. 329. Earlier in 2005, Youth 75 was wr itten a ticket f or dangerous contraband after he used a sheet to try to hang him self at his pre vious MDOC facility. When he made that atte mpt, he was put on suicide observation for only a few hours, then sent to the hospital for medical treatm ent. He was not put back on suicide watch when he returned fro m the
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 52 of 89 Page ID#669

hospital. Instead he was placed in disciplinary segregation for 15 days for the contraband

ticket, then waited in se gregation for another 15 days to m ove to another facility. Y outh

75 received no mental health counseling when he returned from the hospital.

330. Based on his past self-harmf ul behavior, Youth 75 m ay be a person with Asignificant

mental illness or em otional impairment, as de termined by a m ental health prof essional,@

as defined by PAIMI, 42 U.S.C. '10802(4).

Youth 76

331. Youth 76 has been in segregation from September 20, 2006 through October 30, 2006 at

his current MDOC facility. Youth 76 was also held in segregation from March 2006 until

June 19, 2006 at his cu rrent facility . At his previous MD OC facility, which he left in

approximately October 2004, Youth 76 spent nearly a year in segregation.

332. Youth 76 was not checked regularly by mental health during these times in segregation.

333. Youth 76 be lieves that the treatm ent he has received in MDOC facilities has aggrav ated

his mental illness.

334. Youth 76 has been denied parole on two occasions due at least in part to the points he has

accumulated while in MDOC facilities. Youth 76 received mental health services prior to

his incarceration.

335. Youth 76 has not been able to receive his GED because the work is too hard for him and

he does not receive any individual help or adequate instruction while in class. Youth 76

received special education services in high school prior to his arrest and he informed the

MDOC reception center that he had received those services, but he has not received any

of those services from MDOC. 336. Based on his previous receipt of

mental health services, Youth 76 is 52

a p erson with

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 53 of 89 Page ID#670
Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 77 337. Youth 77 was 17 when he was arrested. 338. When Youth 77 arrived at the MDOC reception center, he informed the nurse that he had been receiving wee kly m ental health counseling and he had been on psychotropic medications, but he was never even given a mental hea lth assessm ent at the rec eption center. W hen he h as asked to s ee th e m ental he alth s taff at MDOC f acilities and explained about hi s mental health issues, he has been told to work out more and use the yard, even when he was being held in segregation and had very limited use of the yard. 339. At his previous MDOC facility, Youth 77 was interviewed by an OPMHT staff and was told that he should be on the OPM HT, but he has not been placed on the OPMHT since then. 340. Youth 77 has spent sign ificant periods of time in segregation at his MDOC facilities, but was not visited by m ental health staff duri ng those tim es, including 6 m onths at one previous MDOC facility and over a year a t two other MDOC facilities, after getting into fight with another inmate. 341. In June 2006 at his previous MDOC fac ility, while in segreg ation, Youth 77 stabbed himself with an ink pen numerous times, and he was placed on suicide watch for ab out 2 weeks. 342. During this tim e Youth 77 was placed on top of bed restrain ts for 2 days, which caused him great physical discomfort. During this period he also refused to eat for 17 days. 343. In August 2006, Youth 77 tried to hang him self with a sheet in the outside yard. He was
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 54 of 89 Page ID#671
not placed on suicide watch or given significant m ental h ealth coun seling after this incident. 344. Youth 77 was rem oved from class after telli ng his teacher that he could not do the work. Youth 77 h as receiv ed no special education services from MDOC, even though h e had always received special education services in public school prior to his arrest. 345. Based on his receipt of m ental health servi ces and self-harmful be havior in the past, Youth 77 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 78 346. Youth 78 has been held in segregation for th e past two and one half years. Youth 78 has been free from tickets for 6 months. 347. Youth 78 has never attended a SCC meeting while he has been held in segregation. 348. While he has been held in segregation, MDOC staff have refused to give him his food. 349. Youth 78 suffered a TBI at a young age, but he has not been provide d with appropri ate treatment for that condition since he began his time with MDOC. 350. The m ental health staff occasion ally com e to segregation to as k Youth 78 how he is doing, but he has only been pulled out his cell by mental health staff two times in the past 8 to 9 months at his current MDOC facility. 351. Based on his receipt of m ental health serv ices in the past, Yout h 78 is a person w ith Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4), and he m ay have a Asevere, chronic disability that became manifest before the age of 22 and that results in substantial
54

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 55 of 89 Page ID#672
functional limits in three or m ajor life activities, as defined in the PADD Act, 42 U. S.C. '15002(8)(A). Youth 79 352. Youth 79 has been held at a L evel V MDOC facility since January 2006. He was held in segregation from September 2005 to July 2006. 353. Youth 79 has been denied parole 3 times due at least in part to his points. 354. Youth 79 was on the OPMHT at MYCF but ha s not received counseling or any other appropriate m ental health servic es s ince coming to other M DOC f acilities. Youth 79 does not recall any m ental health staff talking to him while he was in segregation at his current MDOC facility. 355. Youth 79 received m ental health services prior to coming to his arrest at age 17. Y outh 79 is a person with Asignificant mental illness or emotional impairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 80 356. Youth 80 has been placed in segregation at MDOC facilities at least 5 tim es for significant periods of time. 357. Youth 80 is on the OPMHT at his cu rrent MDOC facility b ut does not receive adeq uate mental health services, since at most he is seen by mental health staff once per month. 358. The conditions of his confinem ent have wo rsened Youth 80’s sym ptoms of his mental illness. 359. Youth 80 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
55

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 56 of 89 Page ID#673
Youth 81 360. Youth 81 was sentenced to 1 to 10 years in the custody of MDOC at age 17, has recently
been denied parole and will not be reviewed for 18 months. 361. Youth 81 has spent several m onths in the BMU at his previous MDOC facility, where he
was kept in his cell most of the time. 362. Youth 81 was put on food load for 3 days becaus e his tray fell out of his tray slot while
on the BMU. 363. At his current MDOC facility Youth 81 wa s placed in segregation for m ore than 2
months after being given just 5 days LOP by the hearing officer. 364. The psychiatrist at Youth 81 =s p revious MDOC f acility d iscontinued his m edication
without explanation. 365. Based on his receipt of m ental health serv ices in the past, Yout h 81 is a person w ith
Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 82 366. Youth 82, who is currently housed at MDOC fa cilities and has not received his GED, is eligible f or specia l ed ucation ser vices, bu t has not been enrolled in any classes or received ad equate spe cial educ ation servic es at his cu rrent MDOC f acilities s ince October 2005. Youth 83 367. Youth 83 was arrested at age 16 and sentenced to 2 to 22 years with the MDOC. Hi s earliest release date was August 2002.
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Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 57 of 89 Page ID#674
368. Youth 83 has been in segregation at his current and previous MDOC facilities since March 2005. He was also in segregation at previous MDOC facilities from January 2004 until h e was sent to th e MDOC’s inpatient mental h ealth facility in Nove mber 2004, where he was still kept in his cell.
369. In October 2006 Youth 83 was assaulted in the shower by a MDOC officer after allegedly trying to spit on an officer.
370. Youth 83 has been requesting m ental health se rvices but no one responds to his kites. Youth 83 is on the OPMHT but at m ost Youth 83 sees a m ental health staff one tim e a month, and then the staff only talks to him at his door in segregation for a short time.
371. Youth 83 has been placed on suicide watch twice in the past 2 months. 372. Based on his receipt of m ental health serv ices in the past, Yout h 83 is a person w ith
Asignificant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4). Youth 84 373. Youth 84 was arrested at age 17. You th 84 has been in disciplinary segregation and administrative segregation since January 2006. Youth 84 was placed in segregation on an NOI at his previous M DOC facility and then received some tickets while in seg regation because he was frustrated about being held in segregation without hav ing received any tickets. Youth 84 believes that he w as placed on NOI because a MDOC officer said he was going to hurt himself. 374. Youth 84 has been on the OPMH T at MYCF and his previous MDOC facility. Youth 84 only saw mental health staff once at this pr evious MDOC facility. While he has been
57

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 58 of 89 Page ID#675
segregation, a mental health staff sometimes comes to Youth 84=s door but he is reluctant to talk to the staff without any privacy. 375. Based on a diagnosis prior to his arrest, Youth 84 is a person with Asignificant m ental illness o r e motional impairm ent, a s dete rmined by a m ental health prof essional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 85 376. Youth 85 was arrested at age 16 and is curren tly 18 years old. Youth 85 has been held at
a Level V facility since June 2006, where he is locked in his cell 23 hours per day. 377. Youth 85 was placed in segregation on January 8, 2006 at his previou s MDOC fac ility
and remained in segregation there and at hi s current MDOC facility until Septem ber 11, 2006. 378. Youth 85 received add itional tickets while he was in segregation during this period. Since September 11, 2006, Youth 85 has continued to be on LOP, meaning that he cannot go outside or order food from commissary. Youth 85 has received tickets for breaking LOP because it has been hard for h im to not be able to go outside . Yo uth 85 was also sent to segregation and then placed in the BM U at his previous MDOC facility beginning in November 2005. 379. In the BMU he was not allowed to have any electronics, receive d no programm ing and had no access to the library. 380. Youth 85 has been on the OPMHT but in N ovember 2006 he had not seen a m ental health staff for at least a month.
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381. Youth 85 is a person with Asignificant m ental illness o r em otional im pairment, as determined by a mental health professional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 86 382. Youth 86 was arrested at age 18 and then placed in the custody of MDOC at age 19 based
on a probation violation. 383. Youth 86 has since been denied parole 3 tim es, based in large part on the tickets he has
received while in prison. 384. Youth 86 continues to have Level V points so he has been held at his current Level V
facility since March 2005. 385. Youth 86 has been placed in segregation 13 tim es for tickets he has received at different
MDOC facilities. 386. Youth 86 received m edication and other m ental health services prior to his arrest, b ut he
has not been placed on the OPMHT and ha s n ot receiv ed m edication while in M DOC facilities. Youth 86 believes that his m ental illness and his lack of treatm ent have contributed to the large number of tickets he has received. Youth 88 387. Youth 88 was arrested in 1999 at age 16 and was held at MYCF until October 2005 when he was moved to MDOC’s inpatient mental health facility. 388. Youth 88 has a job as a porter which include s showering and changi ng diapers of older inmates, which he does not want to do. 389. Youth 88 was held in segregation for several years. 390. Youth 88 was eligible for parole in Decem ber 2004 but he has been denied parole du e in
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large part to points he has received at MYCF and in MDOC facilities. 391. Youth 88 may have a “severe, chronic disabil ity that becam e manifest before the age of
22 and that results in s ubstantial f unctional lim its in thre e or m ajor lif e activitie s, as defined in the PADD Act, 42 U.S.C. '15002(8)(A), and is a person with “signif icant mental illness or em otional impairment, as d etermined by a m ental health prof essional,” as defined by PAIMI, 42 U.S.C. '10802(4). 392. Youth 88 has only been in school for 3 m onths at his current f acility, although he has been there since October 2005. Y outh 88 rece ived special education services bef ore coming to prison. Youth 89 393. Youth 89 is housed at MDOC’s inpatient m ental health facility but he is not receiving any group treatment and meets with his treatment only about 2 times a month. 394. Youth 89 has been held in segregation virt ually all of the tim e he ha s been in prison, beginning in April 2003, when not at MDOC’s inpatient mental health facility. 395. Youth 89 was eligible for parole in April 2006 but he has been denied parole due in large part to points he has received at MDOC facilities. 396. Youth 89 may have a “severe, chronic disabil ity that becam e manifest before the age of 22 and that results in substantial f unctional limits in thre e or m ajor lif e activitie s, as defined in the PADD Act, 42 U.S.C. '15002(8)(A), and is a person with “signif icant mental illness or em otional impairment, as d etermined by a m ental health prof essional,” as defined by PAIMI, 42 U.S.C.'10802(4). Youth 90 397. Youth 90 was arrested at the age o f 17, a fter receiv ing m ental health services while in
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juvenile residential placements from ages 11 to16. 398. Youth 90 is not on the OPMHT, and he is not receiving any therapy or programming. 399. Youth 90 has been held in disciplinary segregation 2 tim es, and in adm inistrative
segregation for over 3 months. The mental health staff ca me by his c ell in s egregation and asked how he was doing occas ionally, but did not pull hi m out of his c ell for an assessment or evaluation. 400. Based on a diagnosis prior to his arrest, Y outh 90 is a person with “significan t m ental illness or e motional im pairment, as determ ined by a m ental hea lth prof essional,” a s defined by PAIMI, 42 U.S.C. '10802(4). Youth 91 401. Youth 91 was first arrested at 15 an d was placed on probation. Youth 91 received m ental health services while in juvenile residential placements and while in foster care. 402. Youth 91 has requested m ental health services at his current MDOC facility but he was refused those services due to his past drug history. 403. Youth 91 has been held in detention 2 tim es and was held for 3 m onths in administrative segregation. No m ental health staff check ed on his mental health status while in segregation. 404. Based on his receipt of extensive mental health services prior to his arrest, Youth 91 is a person with “significant m ental illness or emotional im pairment, as determ ined by a mental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). Youth 92 405. Youth 92 was arrested in 1997 at age 16 for Criminal Sexual Conduct (CSC) III and went to his first MDOC facility at age 17.
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406. Youth 92 ha d received m ental health services while in foster care sin ce he was 11 years old.
407. Youth 92 was placed o n suicide w atch at MY CF and engaging in self-harm . He has attempted suicide twice at other MDOC facilities. Out of 7 m onths at MYCF, he was in segregation for approximately 6 months.
408. Youth 92 was placed in segregation in August 2006 for approximately 3 months. He was not seen by any mental health professional while in segregation.
409. Youth 92 is a person with “significant m ental illness or em otional im pairment, as determined by a mental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 93 410. Youth 93 was arrested at age 18 and was held at MYCF from April 2005 until Octo ber
2005, and was then transferred to his current MDOC facility. 411. Youth 93 has been held in the BMU for signi ficant periods of tim e at his current MDOC
facility, during which tim e he has little tim e out of his cell and lim ited if any access to programming. 412. Youth 93 received m ental heal th s ervices prior to h is a rrest and is a person with “significant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). 413. Youth 93 received special educa tion services prior to his arre st and at MYCF but he was not in school from June through September 2006 at his current MDOC facility. Youth 94 414. Youth 94 was arrested at age 16 an d has been held at an MDOC facility s ince January 2003.
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415. Youth 94 is held in his cell for approximately 22 hours per day. 416. Youth 94 is not receiving adequate m ental health services at his current MDOC facility,
including counseling. 417. Youth 94’s earliest release date was May 5, 2004 but he has b een denied parole in large
part based on points he has received while in MDOC facilities. 418. Based on his receipt of m ental health servi ces prior to his arrest, Youth 94 is a person
with “s ignificant m ental illness o r em otional impairm ent, as determ ined by a m ental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). Youth 95 419. Youth 95 was arrested and sentenced to MDOC at age 17. 420. Youth 95 was placed in the BMU for severa l weeks at hi s current MDOC facility, and was then moved to a unit where he is held in his cell at 22 to 23 hours per day. 421. Based on his receipt of m ental health serv ices in the past, Yout h 95 is a pers on w ith “significant m ental illne ss or em otional im pairment, as determ ined by a m ental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4). 422. Youth 9 5 is eligible for special educatio n services bu t h as been waiting for several months to be placed in school at his current MDOC facility. Youth 96 423. Youth 96 was arrested at age 18 and was at MYCF for approxim ately 1 year before coming to his current MDOC facility. 424. Youth 96 is currently held in his cell for approximately 22 hours per day other than being released for school and limited mental health programming. 425. Youth 96 has been placed in his MDOC facility’s BMU 2 times.
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426. About 8 m onths ago Yo uth 96 was placed in the BMU after hav ing been found with a tattoo gun for which the hearing officer gave him top lock for 7 days, but he stayed in the BMU for at least 2 weeks, during which time he was only allowed out of his cell 3 times and he did not participate in any programming.
427. Youth 96 has been on the OPMHT at his current MDOC facility, but he has not received adequate or appropriate mental health services even as a part of that team.
428. Youth 96 has points which would make him a level 2, since he is 6 months ticket free, but he is still treated as level 4.
429. Youth 96 is a person with “significant m ental illness or em otional im pairment, as determined by a mental health professional,” as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 97 430. Youth 97 has received special education servic es in the past but has been held in a B MU
at his current MDOC facility since Oc tober 2006 and has not received any education services during that time. Youth 98 431. Youth 98 was arrested at age 17. 432. Youth 98 received special education services prior to his arrest. He has been at his current MDOC facility since March 2006 and as of November 15, 2006, he had not been placed in school there. 433. Youth 98 has held in his MDOC facility ’s B MU since April 2006, even though the hearing officer gave him 30 days detention for the ticket he received in April 2006. 434. Youth 98 is not a part of hi s facility’s OPMHT but he is in need of an a ssessment and may be in need of significant mental health services, which he does not receive.
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435. Based on the sym ptoms he h as exhibited, Youth 98 m ay be a person with “significant mental illness or em otional impairment, as d etermined by a m ental health prof essional,” as defined by PAIMI, 42 U.S.C. '10802(4).
Youth 99 436. Until his death on August 6, 2006, Youth 99 wa s incarcerated at Southern Mich igan
Correctional Facility in Jackson, M ichigan, op erated und er the direction of Defendant Caruso. At the time of his death, Youth 99 was 21 years old. From August 2, 2006 until August 6, 2006, Youth 99 was restra ined in top of bed restrain ts in an observation roo m in the segregation unit. 437. Records indicate that Youth 99 was restrained after he attempted to plug the sink in his room. During this period, Youth 99 was not provided with or refu sed basic n ecessities such as water, and was not allowed to us e the bathroom regularly. Y outh 99 was not visited by a psychiatrist during th is time because there was n one on duty. On August 6, 2006, Youth 99 died in his segregation cell less than 3 hours after being released from the top of bed restraints. 438. Youth 99 had been taking anti-psychotic medications and had attem pted sui cide on numerous occasions prior to his death. Youth 99 was a person with Asignificant mental illness o r e motional impairm ent, a s dete rmined by a m ental health prof essional,@ as defined by PAIMI, 42 U.S.C. '10802(4).
Isolation 439. Segregation is used extens ively for youth in MDOC faci lities. Many of the youth
described in this Complaint have been in segregation, most of them for months and some
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for years at a time. 440. Defendant Caruso has established systems and procedures that allow for the isolation and
segregation of youth from the general prison population. Such isolation and segregation may be used f or disc iplinary o r pun itive purpos es (c alled Adisciplinary segrega tion@) or for a variety of other reasons including punishment (called Aadministrative segregation@) and P.C. 441. Youth held by MDOC who are alleged to have committed an act of major misconduct are subject to placem ent in disciplinary segr egation. A youth m ay be placed in tem porary segregation for up to 4 consecutive business days pending a hearing. After a hearing before a MDOC e mployee, a youth m ay be sent enced to disciplinary segregation for up to 30 days for each offense, or 60 days for a ll violations arising from a single incid ent. MDOC Policy B3 D3.105. The youth m ust serve the entire length of his disciplinary sentence. Sentences of more than 30 days must be approved by the warden of the facility. The youth=s prior disciplinary history is a factor in determining placement in disciplinary or punitive segregation. 442. MDOC hearing officers who determ ine guilt or innocence on a charge, called a Aticket,@ of m ajor m isconduct are required unde r MDOC Pol icy 03.03.105 to m ake a determination as to whether the youth is responsible for his misconduct. An inmate is not responsible for his conduct unde r this MDOC policy if the in mate lacked the substantial capacity to know right from wrong, or was unable to conform his conduct to MDOC rules. 443. Hearing o fficers typically do not even m ake a determ ination as to whether the youth
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should be held responsible. Of the hundred s of hearing decisi ons reviewed by the

Plaintiff MPAS, only one recorded that the hearing officer made a positive determination

that one youth was responsible for the m isconduct for which he received punishm ent.

Youth 16 and Youth 26 are among Plaintiff MPAS’ constituents who were not afforded a

Anot responsible @ defense to m isconduct that could well have a result of their mental

illnesses.

444. Upon com pletion of the term of discip linary segregation, a youth m ay be placed i n

administrative segregation without a hear ing. According to MDOC Policy Directive

04.05.120, which applie d to MYCF and applies to all other MDOC facilities where

youthful inm ates are currently held, adm inistrative segregation is the m ost restrictive

level of security classification. Under Defendant Caruso =s policies, a youth m ay be

classified to adm inistrative segr egation if he o r she dem onstrates an inability to be

managed with the general populatio n, or if he is a se rious threat to the physical safety of

staff or other prisoners or to the good order of the facility, if he or she is a serious es cape

risk, or for other reasons set forth in MDOC Policy 04.05.120. Most of the youth

described in this Co mplaint ha ve been moved to adm inistrative segrega tion f or

significant periods of time after completing time in disciplinary segregation.

445. Confinement in adm inistrative segregation begins with the approval of the facility =s

warden/deputy warden or shift supervisor. C onfinement in administrative segregation for

more than 30 days must be approved by the warden.

446. Confinement in administrative segregation of youth at MYCF and other MDOC facilities

for consecutive months is very com mon. Acco rding to the records received by Plaintiff

MPAS, youth at MYCF spent, on average, 67

a total of 68 days in adm

inistrative

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segregation from 2003 to 2005, with some experiencing significantly longer time periods.

A record of long periods of segregation at MYCF has had a negative im pact on

disciplinary decisions and actio ns at the facilities to wh ich former MYCF youth are now

assigned.

447. Based on information received from MDOC, from January 1, 2005 through June 1, 2006,

approximately 737 youth had been held in segregation for more than 30 days at least once

during that period, and approxim ately 198 youth had been held in a BMU for m ore than

30 days at least once during that period.

448. Discharge f rom adm inistrative segregati on req uires the ap proval of a MDOC facility =s

SCC or another authorized staff group. This review process should occur every 7 days for

the first 2 months of adm inistrative segregation and at least every 30 days thereafter. In

the case of segregation as the result of a seri ous assault on staff, discharge requires the

approval of a regional prison administrator.

449. According to MDOC Policy Directive 04.05.120, criteria for release from administrative

segregation include an assessm ent of the youth =s behavior and attitude while in

segregation, the poten tial the you th will hono r "the tru st im plicit in less restrictiv e

confinement," and an assessment of the youth=s need for mental health programming.

450. The Thumb is the only one of the De fendant=s facilities with a unit desig ned specifically

for male youth. More than 300 of the youth fr om MYCF were transferred to the Thum b

when MYCF closed.

451. At the Thu mb, some youth are held in a unit known as the Franklin unit which MDOC

has characterized as the BMU. The BMU

at th e Thu mb includes three lev els of

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confinement. Youths 1, 15, 16, 25, 26, 27, 43, 51, 57, 68, 81, 99, 94, 95, 99, 96, and 98 are among Plaintiff MPAS’ constituents who have been or are now confined in the BMU. 452. Youth are placed in the BMU after receiving a ticket for misconduct, or after engaging in other behavior that the staff deems sufficient to warrant p lacement in the BMU. If the youth does not receive a ticket, he may be placed in the BMU without a hearing. 453. The BMU limits the movement and privileges of youth much like any inmate in detention or administrative segregation. No o ne in any le vel of the B MU is allo wed to hav e any electronic equipm ent, including televisions. At the m ost r estrictive level, youth eat in their cell an d come out of the cell f or no m ore than one hour per day. Their acces s to programming, including educational services, is restricted. At the less r estrictive levels of BMU, youth may be allowed out of their cell for program ming and meals but have no more than one to two hours out of their cell per day for recreation. For example, Youths 1 and 15 have been locked down in their cells for 22 hour s a day in the BMU with out access to programming. 454. Youth in disciplinary segregation, adm inistrative segregation, or the BMU (hereinafter referenced col lectively as Asegregation@) at any MDOC facility are subjected to soc ial isolation and sensory deprivation that appro ach the limits of human endurance. They are entombed in concrete cells virtually 24 hours a day, seven days a week, until they qualify for lim ited recreation after 30 days in adm inistrative segregation. The cell doors at MYCF were and at other MDOC facilities are solid steel with a sm all window; the only opening is a small food port.
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455. Youth in segregation are deprived of vi rtually all social contact and environm ental

stimulation. They are allowed no congregate activity and very fe w possessions. There

are no educational or other programs. Visiting is non-contact and is severely re stricted.

Recreation tim e of one hour 5 days a w

eek is only provided after 30 days of

administrative segregation. Thus, youth in segregation of ten spe nd months, or even

years, in a s tate of alm ost tota l idle ness. The Def endant=s policy provides the right to

possession of som e pe rsonal property in administrative segreg ation and protective

custody, including certain electronic equipment. MDOC Policy 04.05.120.

456. The use of segregation for extended periods for youth in prison, part icularly those with

mental illness and other disabilities, poses an immediate threat to the well-being of these

youth.

457. In addition to segrega tion units, MDOC ope rates 5 Level V or m aximum security

facilities in which youth and ot her inm ates are held in thei r cells for approxim ately 22

hours per day, with at most one hour of r ecreation outside per day, unless the youth

attends school or som e other type of progr amming. This extensive tim e in the cell is

similar to tim e in segregation in th at the youth in Level V facilities h ave very lim ited

access to su nlight, fresh air, and sp ace in wh ich to exercis e or otherwise m ove freely.

Youths 2, 13, 14, 16, 17, 18, 20, 32, 33, 35, 4 2, 46, 50, 53, 63, 79, 85 and 86 are a mong

the Plaintif f MPAS’ co nstituents who are or have been con fined by th e Def endant to a

Level V facility.

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Effect on youth with mental illness 458. The Defendant, through her actions and inactions, has subjected youth with mental illness
then at MYCF and now at other MDOC fac ilities to conditions and circum stances which have exacerbated their mental illness and caused them irreparable harm. Youth 7, 10, 17, 28, 29 and 77 are am ong Plaintiff MPAS’ constitu ents wh ose m ental illn ess has been exacerbated during their confinement in segregation. 459. Mental illness is prevalent am ong the youth who were housed at MYCF and continue to be hou sed at other MDOC facilities. Ev en previously healthy youth m ay becom e mentally ill as a result of conf inement in disciplinary segregation or adm inistrative segregation. For those youth who were alrea dy mentally ill upon their arrival, conditions at MDOC facilities, and particularly in segregation, cause serious and som etimes catastrophic deterioration in their mental health. As a result, num erous youth who were at MYCF he ar voices and are obsessed with su icidal thoughts; others attem pt to har m or kill themselves. Youths 6, 7, 9, 12, 16, 17, 18, 20, 24, 28, 36, 37, 38, 39, 44, 45, 52, 55, 57, 64, 66, 67, 68, 75, 77, 83, and 99 are am ong Plaintiff MPAS’ constitu ents who have attempted, threatened, or considered suicide. 460. Many youth with a m ental illn ess at MDOC faci lities receive dis ciplinary charg es, or Atickets,@ f or behavio r that is a sy mptom of their m ental illn ess. T herefore, th ey ar e retained in the m ost restrictive conditi ons of segregation, in cluding disciplinary segregation, administrative segregation, or the BMU, for months or even years at a tim e. The m ore severe a prisoner =s m ental illness, the m ore likely he is to becom e pl aced indefinitely in administrative segregation, where the harsh conditions will ex acerbate his
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mental illne ss still f urther. Youths 7, 9, 10, 17, 26, 28, 29 and 77 are a mong Plainti ff

MPAS’ constitu ents whose m ental illne ss has exacerbated while they were in

segregation.

461. The Defendant=s policies provide that an inmate can d efend a ticket by st ating that he or

she should not be resp onsible for the m isconduct because they lacked the substantial

capacity to know right from wrong, or they w ere u nable to conform their conduct to

MDOC rules. However, m any youth do not know that they can assert this defense and

many are not allowed to call m ental health st aff as witnesses to support this defense.

Youths 9, 16 and 26 ar e among the Plaintiff =s constituents who were disciplined de spite

the availability of a Anot responsible@ defense.

462. If an inmate is found guilty on a ticket, the Defendant =s policies state that when deciding

on a sanction, the hearing officer should c

onsider any m itigating circum stances.

However, based on inform ation and be lief, MDOC hearing officers lack the

understanding of m ental illne ss and adolescent developm ent and fail to consult with

mental health staff to consider the mitigating factors for youth who commit misconducts. 463. Mental health and correctional professionals and courts have long understood that A[m]ost

inmates have a difficult tim e handling these conditions of extrem e social isolation and

sensory dep rivation, bu t for seriou sly m entally ill inm ates, the con ditions can be

devastating.@ Jones El v. Berge, 164 F. Supp. 1096, 1098 (W.D. Wisc. 2001).

464. Moreover, mental health and correctional prof essionals and courts have recognized that

because of their immature decision-making abilities and the status of their developmental

maturation, incarcerated adolescents experien ce isolation and segr egation even more

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harshly and are more susceptible to mental anguish than adults.

465. The Defendant=s segregation policies do not include in creased privileges or other rewards

for youth w ho behave approp riately or improve their behavior when placed in

segregation. Youths 13, 14, 15 and 49 are am ong Plaintiff MPAS’ constituents who have

remained in a BMU or segrega tion notwithstanding that they have been free from tickets

and disciplinary reports.

466. Mentally ill youth at the Defendant =s facilities are m ore likel y than inm ates without a

mental illness to be p laced in segregation and are likely to spend longer periods of tim e

there.

467. Keeping youth at a corrections facility in segre gation without appropriate m ental health

treatment rather than tra nsferring th em to a f acility where they can rec eive approp riate

treatment, particularly when youth are exhibi ting self-harmful beha vior, can result in a

deterioration of the youth =s mental health and in creases the risk of their death. Youths 9,

26, and 28 are among Plaintiff MPAS’ constituents whose mental illness has deteriorated

while in segregation. For exam ple, Youth 28 tr ied to hang herself while in segregation

because she found the conditions intolerable.

468. The use of top of bed restraints on

youth with active m ental health sym ptoms,

particularly when used without appropriate medical oversight, can significantly increase

their risk of death, or at least cause a deteri oration of their physical and m ental health.

Youth 103 died while in top of bed restra int. Youths 2, 26, 28, 44 a nd 77 are among

Plaintiff MPAS’ constituents who have been placed in mechanical top of bed restraints.

469. Youth in disciplinary segregation or adm inistrative segregation w ho are not subject to

daily rounds by a psychologist or psychiatrist which include review of the segregation log 73

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as well as youth m edical and m ental health r ecords risk the deterioration of their m ental health, including an unacceptably high risk self harm. None of the youth described in this Complaint have seen a mental health professional on a daily basis while in segregation. 470. Youth housed at MDOC facilities who suffer from a mental illness have spent significant amounts of time in segregation. Nearly all the youth described in this complaint have spent significant time in segregation.
Protective Custody 471. Youth at MYCF were held in the adm inistrative segregation un it as the protective
custody unit when they have been threatened with bodily harm by staff or other youth. The same restrictions applied to prisoners held in segregation have been applied to youth in P.C., including taking meals in their cell, one hour of recreation out of cell per day, and only 3 showers per week. According to the D efendant=s policy, youth should rem ain in P.C. only as long as their protection needs ca nnot be m et through a transfer to general population at an appropriate in stitution. Youth in P.C. cannot participate in regular schooling, m ental health program s, or ot her programm ing recomm ended for parole. Youths 3, 4, 5, and 22 are am ong Plaintiff M PAS’ constituents who ha ve been held in P.C.
Punishment of Youth with Disabilities 472. Because many youth with serious m ental illness are believed to be m erely Amalingering,@
manifestations of their m ental illne ss were inte rpreted by MYCF staff and have been interpreted by staff at succe ssor facilities as willful m isconduct and are punished by reclassification to disciplinary then administrative segregation. 473. Youth who are placed in adm inistrative seg regation hav e engaged in repeated self-
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harming behavior and suic ide attempts. Youths 2, 20, 28, 50, 54 and 58 are among

Plaintiff MPAS’ constituents who engaged in self-harming behavior while in segregation.

474. MDOC policy requires an eval uation of any youth placed in segregation who is also on

the OPMHT within one day and the developm ent of a m anagement plan within three

days. Many youth who have a serious m ental illness, including some on the OPMHT, go

to segregation but do not receive a m ental health evaluatio n within one day of go ing to

segregation and do not have an approp riate individualized management plan within three

days of going to segregation. Youths 12, 14, and 35 are am ong the great num ber of

Plaintiff MPAS’ constituents who have not been timely evaluated when in segregation.

475. The Defendant=s policy requires w eekly reviews of inmates in segregation by m ental

health staff, but policy does not specify the length or depth of these reviews. Many youth

report that they do no t receive these reviews or that the review is at their cell door an d is

very brief and does not allow them to describe any symptoms of their mental illn ess that

they m ay be experiencing. Youths 32, 33, 42, 44, 45, 46, 55, 57, 63, 67, and 714 are

among the great num ber of Plaintiff MPAS’ constituents who have not been reviewed or

whose review while in segregation has been inadequate and perfunctory.

476. MDOC pol icy requires that after 30 days in segregation, any inm

ate should be

interviewed by a m ental health professiona l and he should be gi ven a psychological

assessment. Many youth report that th ey do not receiv e th ese interviews or th at th e

Ainterview@ is at their cell door and is very brie f and does not allow th em to describe any

symptoms of their m ental illness that th ey m ay be experiencing. Many of the youth

described in this Complain t report that they never have receiv ed a psycholo gical

assessment while in segregation. Youths 32, 38, 45 and 49 are among the great number of

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Plaintiff MPAS’ constituents who have not been called out of their cells for mental health interviews. 477. When they have been disciplined for misbehavior, youth receive Apoints@ tha t im pact punishment for future transgressions and in fluence parole decisions. Many of the youth who were confined at MYCF received points that have carried over to their current facilities. Youths 6, 7, 10, 13, 15, 16, 20, and 29 are among Plaintiff MPAS’ constituents who have carried MYCF points with them . Several of these youth and others have been denied parole. 478. Of the 330 youth who responded to a su rvey submitted to any youth w ho had been held by MDOC in segregation for m ore than 30 da ys from January 1, 1005 to June 21, 2006, which was sent by MPAS to these youth in July and August 2006, 151 indicated that they had a mental illness and were in need of treatment.
The Failure to Diagnose and Treat Mental Illness 479. The Defendant MDOC operates a Areception center @ facility at Jackso n, Michig an. All
male prison ers comm itted to MDOC spend a b rief tim e at the recep tion facility be fore assignment to a particular prison. Youth under 19 convicted as adults are confined at the reception facility before tran sfer to MYCF - or since the closing of MYCF - another MDOC facility. 480. Youth are screened for m ental illness at the MDOC reception cen ter b efore transfer to MYCF or, since the closing of MYCF, to another MDOC facility. 481. Serious mental illness often goes un diagnosed at the MDO C reception center. In cases known to Plaintiff MPAS, youth who have been diagnosed as seriously m entally ill
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before coming to prison, who have received y ears of treatment in the community for that mental illne ss, have be en adm itted to psychiatric hosp itals, and have been plac ed on powerful psychotropic drugs, have nevertheless been deemed by MDOC reception center mental health staff to b e merely Amalingering@ or Amanipulating.@ Other youth who have received m ental hea lth tre atment in th e pa st never m eet with a psychiatrist at the reception center. As a result , when these youth arrive at a MDOC facility they do not receive the treatment they need for their m ental illness. Youths 79, 80 and 83 are among Plaintiff MPAS’ constituents who have b een m isdiagnosed or not diagnosed at the reception center. 482. In other cases known to Plain tiff MPAS, youth diagnos ed with m ental illn ess and recommended b y th e reception center for m ental h ealth services, were determ ined b y MYCF or, since October 2005, by another MD OC facility upon their a rrival not to need mental health services. Youths 2, 11, 12, 14 are among Plaintiff MPAS’ constituents who have been determ ined not to need m ental health services after their arr ival at one of the Defendant=s facility from the reception center. 483. At least since August 2006, one psychiatri st has been shared b etween the MDOC reception center and another MD OC correct ions facility with approxim ately 1,400 inmates. 484. Defendant Caruso has failed to ens ure that you th in all M DOC facilities have access to adequate mental health staff, particularly youth at facilities without an OPMHT. Where a psychiatrist is unavailable on site, th e only way to order or renew psychotropic medications is through telephone orders through a nurse, without the required psychiatric evaluation regarding necessity or appropriateness of the order.
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485. MDOC facilities which have segregation units or operate at a Level V security level have inadequate mental health staff to address the mental health needs of youth in those units. For example, at Standish Maximum Correctional Facility, operated under the direction of Director Caruso, one mental health staff is responsible for m aking rounds in the two segregation units there which house approxi mately 167 inm ates, including m any youth, including Youths 2 and 14. This one staff m ember is also responsible for responding to requests for services from the inm ates in general population, providi ng m ental health programming to inmates and addressing mental health emergencies.
486. Corrections staff under the dir ection of Defendant Caruso have limited access to training on addressing the m ental health needs of inm ates, and youth in particular. At most, corrections officers in facilities with segr egation units bu t without an OPMHT receive two hours of training per year on mental illness. At most, corrections officers at facilities with an outpatient mental health team have a training session on mental illness of 8 hours in duration every 2 years.
487. Of the 330 youth who responded to a su rvey submitted to any youth w ho had been held by MDOC in segregation for m ore than 30 da ys from January 1, 2005 to June 21, 2006, which was sent by Plaintiff MPAS t o these youth in July and August 2006, 88 indicated that they ha d a m ental illn ess and were in need of trea tment but wer e not rece iving adequate and appropriate mental health services.
488. The failure to diagnose m ental illness among youth and the inadequacy of mental health care for youth in MDOC f acilities poses an im mediate threat to the we ll-being of these youth.
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489. Many of the youth who are not provided with mental health treatm ent spend time in administrative segregation at MYCF, incl uding Youth 12, who was evaluated for the MYCF OPMHT in March 2003 bu t was not placed on that team , and still has not been placed on the OPMHT at his current MDOC facility.
490. MDOC critical incident record s document at least 5 suicides at its facilities in 2005, and 131 suicide attem pts in 2005, including 12 attemp ts at the Alger facility, 9 attem pts at Bellamy Cr eek, and 10 attem pts at Standis h. The MDOC recep tion center in Jackson also reported 64 accidental/natural deaths.
491. Many youth at MDOC facili ties report that th ey are not on the OPMHT and do not receive any significant or appropriate mental health services from MDOC psychological services staff, including Youths 2, 14, 17, 40, 43, 44, 47, 48, 57, 60, and 62.
492. Other youth report that they have requested m ental health services, but that their requests have been either unanswered of substant ially delayed, including Youths 3, 5, 6, 10, 12, 22, 25, 29 and 32.
493. Despite the overwhelm ing need, m ental h ealth serv ices at MDO C facilities are systemically inadequate. There is insuf ficient staffing to meet the n eeds of mentally ill prisoners. As a result, iden tification, assessment, monitoring and treatm ent of m entally ill p risoners are inadeq uate. Alth ough m any mentally ill prisoners are p rescribed powerful psychotropic m edications with poten tially dang erous sid e e ffects, they are rarely, if ever, seen by a psychiatrist.
494. Mental health services to youth in segrega tion are inadequate. W hen mental health staff does speak with youth in segregation, it is al most always done at cell-f ront, by yelling
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through the side slit in the cell door, within earshot of other prisoners and staff. M any

youth refuse to speak with m ental health s taff under these conditions because they fear

harassment and victimization if other youth lear n that they are suicidal or suffering from

other mental health prob lems. Cell-front inte rviews are us eless because of the com plete

lack of confidentiality; a prisoner may tell mental health staff that he is fine, when he is in

fact paranoid, hallucinating, or contemplating suicide.

495. Because many youth with serious mental illness are believed to be merely "malingering,"

manifestations of their m ental illness ar e in terpreted b y MDOC staf f as willf ul

misconduct and are punished by reclassifica tion to disciplinary then adm inistrative

segregation.

496. After a prisoner has attem pted or threatened suicide, a mental health management plan is

developed. The fol lowing explanation was found in num erous m ental health

management plans: Ainmate threatened suic ide in an attem pt to m anipulate his

environment. If the inmate threatens suicide or makes an attempt to harm himself he is to

be managed by custody staff in acco rdance with the pro cedures for dis ruptive inmates.@

These youth are treated as discip linary problem s if they info rm staff of their suicidal

thoughts or ideations.

497. Youth, including Y ouths 2, 3, 5, 6, 10, 12, 14, 16, 17, 20, 22, 24, 25, 26, 29, 33, 39, 39,

42, 44, 45, 46, 49, 50, 56, 64, 68, 69, 77 and 79, who need m

ental health services,

receive no mental health care or inadequate care.

Special Education Services 498. Defendant failed to adequately identify, screen, and assess youth at MDOC facilities who

have disabilities that cause them to have special educational needs and fail to de termine 80

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how those needs can be met. 499. Special education services offered previously at MYCF and subsequently at other MDOC
facilities ha ve been extrem ely lim ited. Mos t e ducational s ervices, wh ether regu lar or special, are designed solely to prepare youth to pass a GED exa mination. Education services for youth with special educational needs are not individually tailored to meet the needs of individual students. Youths 43, 76, and 77 are am ong Plaintiff MPAS’ constituents who do not have individually tailored plans. 500. Defendant Caruso has had inadequate spec ial education staff to provide a free and appropriate public education to all youth formerly housed at MYCF with special educational needs, including related and transitional services. 501. Of the 330 youth who responded to a su rvey submitted to any youth w ho had been held by MDOC in segregation for m ore than 30 da ys from January 1, 2005 to June 21, 2006, which was sent by Plaintiff MPAS to these youth in July and August 2006, 98 indicated a need for special education services, but repor ted that they were no longer receiving those services even those they had not received a GED or a high school diploma. 502. Plaintiff MPAS has identified num erous youth, including Youths 2, 6, 12, 13, 14, 16, 17, 81, 82, and 87, who are curren tly housed at MDOC facilities and have n ot received their GED, are eligible for special education services, but have not been enrolled in any classes or have no t received adequate special educ ation services at their MDOC facilities since October 2005. 503. Youth who are housed for any pe riod in the BMU at the Thum b ar e rem oved from educational classes, even if they are eligible for special education services. For example, Youth 27 was m oved to the BMU a t the Thum b in May 2006. As of October 2006 he
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was still in that unit and had not been allowed to return to his education classes. 504. Youth with special educat ional needs who are in a Leve l V f acility or in segregation are
almost totally deprived of individualized special education services, including related and transitional services. F or example, Youths 46, 49, 52, 67, 71, and 83 have not received special education services at their MDOC facilities while in segr egation. Youths 46, 49, 52, 67, 71 and 83 were receiving special educa tion services prior to com ing into the MDOC system. 505. Youth in segregation or at a Level V fac ility m ay be visited by a special education teacher once a week for usually fewer than 10 m inutes. Som e yout h in adm inistrative segregation are not allo wed to have education al m aterials in their ce lls. Youth with special educational needs are expected to learn and study on their own while in segregation. For example, Y outh 70 has been held in adm inistrative segrega tion at his current MD OC facility since Aug ust 2005, a nd during that tim e he has receiv ed no instruction. 506. Even youth who are in class are not receiv ing adequate special edu cation services. For example, Youth 76 and Youth 80 have not been able to receive their GED’s because the work is too hard for them and they do not receive any individu al h elp or ad equate instruction while in class. Youth 76 and Youth 80 received special education services in high school prior to th eir arrest and they inform ed the MD OC reception center that they had received those services, but they have not received any of those services from MDOC. Youth 77 was removed from class after telling his teacher that he could no t do the work. Youth 77 has received no special education services from MDOC, even though he had always received special education services in public school prior to his arrest.
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507. In March 2005, Plaintiff MPAS filed a com plaint with the Michig an Departm ent of Education ( AMDOE@) a lleging various violations of IDEA at MYCF, including the allegations in this Complaint.
508. On March 28, 2006, the MDOE issued a final decision in response to that com plaint, a copy of which is attached hereto as Exhibit 1.
509. Since March 2006, MDOC has failed to deve lop a plan to address and co rrect the substantiated violations documented in the MDOE final decision of March 28, 2006.
510. Plaintiff MPAS has adequately exhausted a ny potential adm inistrative rem edies f or the claims m ade in this Am ended Com plaint by f iling a com plaint with the MDOE approximately 19 months ago.
511. Plaintiff MPAS has adequately exhausted a ny potential adm inistrative rem edies f or the claims made in this Complaint by filing a second complaint with MDOE in June 2006 to address violation which have arisen or have not been adequately addressed since the original March 2005 complaint. In a Augus t 4, 2006, letter, MDOE opined that these complaints were the su bject of this litigation and therefore MDOE would not inve stigate those complaints while this litigation is pending.
512. Since filing its second special ed ucation co mplaint, Plaintiff MPAS has identified numerous youth in MDOC f acilities who are not receiving any educ ation services even though they are eligible for special educat ion services, including Youths 34, 37, 40, 41, 49, 51, 52, 53, and 58. In addition, Youth 54 and Youth 55 report that they are not in school even though they identify themselves as Ailliterate.@
513. Since filing its second special ed ucation co mplaint, Plaintiff MPAS has identified
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numerous youth in MDOC fac ilities who are receiv ing education serv ices but are not

receiving special education services, even t hough they are eligible for special education

services, including Youths 43, 76, and 77.

Retaliation

514. Despite being m ade aware by Plaintiff MPAS of retaliatory actions against P laintiff

MPAS’ constituents for their participation in th is action, th e Defendant has allowed her

employees to harass, intim idate and retaliat e against youth in violation of their rights.

Youths 2, 6, 10, 14, 22, 29 are am

ong Plain tiff MPAS’ constituents who have

experienced retaliation.

515. Youth who have m et with MPAS staff have been confronted by prison officials about

their participation in this litigation and asked about MPAS.

516. Youth who have met with MPAS staff, including Youth 6, 22 and 29, have been told that

they should not cooperate with MPAS and that things would be easier f or them if t hey

did not meet with MPAS staff.

517. Youth, including Youth 2 and 11, have been reta ined in segregation for participation in

this litigation or for meeting with MPAS staff.

518. Youth, including Youth 2 and 11, have been de nied adequate m ental health services,

denied opp ortunities to take a shower a nd receive ap propriate food, due to their

cooperation with MPAS.

519. Many youth have had their lega l mail, including m ail from MPAS, opened outside of

their presence or otherwise tampered with or destroyed.

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V. CAUSES OF ACTION 520. The conditions described in this Complaint result in grat uitous pain and suffering, and
pose an imm inent danger of serious illnes s, injury, or de ath to priso ners with mental illness. 521. In im posing the conditions described in this Com plaint, Defendant has acted with deliberate indifference to the seriou s health, sa fety, and m ental health needs of prisoners with mental illness, and to the risk that th ese prisoners will suf fer serious illne ss, injury, or death. Defendant has repeatedly been made aware of these conditions by m eetings with and correspondence from P laintiff MP AS’ staff, by MDOC staff, by prisoner grievances, and other means, but have failed to take reasonable corrective action. 522. Plaintiff MPAS’ constituents include youth housed at MDOC facilities and who have a mental illne ss. These constitu ents are qualif ied individua ls with disab ilities within the meaning of the ADA and qualify as individu als with disabilities as defined in '504. Absent these disabilities, these youth would otherwise qualif y for the servic es provided by the Defendant. 523. Plaintiff MPAS’ constituents in clude youth currently hou sed at MDOC facilities, and who have a m ental illn ess, em otional dif ficulties and le arning disab ilities, have sp ecial educational needs within the meaning of IDEA. 524. The conditions described in thi s Complaint ar e likely to persist unle ss enjoined by this Court. Plaintiff MPAS and its constituents have no adequate remedy at law.
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525. By subjecting youth with m ental illness to the conditions of confine ment described herein, with full knowledge of those conditions and of their devast ating effects on these prisoners, Defendant has acted, and continues to act, with deliberate indifference to these prisoners= serious health, safety, a nd m ental health needs, and have subjected these prisoners to cruel and unusual punishment, in violation of the E ighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. '1983.
526. The conditions of confi nement at MYCF and other MDOC facilities and the Defendant =s

policies, practices, acts, and om issions complained of in t his Complaint are a substantial

departure from accepted professio nal judgm ent, stand ards, and practices and th ereby

deprive th e Plaintif f MPAS’ constituents of due process of law, in violation of their

constitutional rights under the Fourteenth Amendment to the United States Constitution.

527. The failure of MDOC hearing officers to make a determination as to whether the youth

should be held responsible for misconduct when charged with a major m

isconduct

deprives Plaintiff MPAS’ constituents of du e process of law, in violation of their

constitutional rights under the Fourteenth Amendment of the U.S. Constitution.

528. The Defendant=s failure to provide adequate speci al education and related services deprived th e Plain tiff MPAS’ constitu ents of their righ ts under IDEA and reg ulation promulgated hereunder.
529. By placing youth with m ental illness in disciplinary and administrative segregation because of behaviors which are related to their m ental and em otional illn esses, th e Defendant has denied the youth of the benefits of the facility =s services, program s or activities, includin g school, re creation, exercise, and m ental health services, thus

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discriminating against Plaintiff MPAS’ constituents on the basis of their disability and in the manner of the administration of the prisons in violation of the ADA and ' 504. 530. By retaliating against Plaintiff MPAS’ constituents for their participation in this case, the Defendant has acted in viola tion of the First and Fourteen th Am endments, by denying them access to the courts. 531. By retaliating against Plaintiff MPAS’ constituents and by questioning them about their meetings with MPAS staff, Defendant has interfered with MPAS’ access authority under the PADD and PAIMI statutes.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff MPAS respectfully request that the Court: 1. Issue a judg ment declaring that the action s of Defendant described herein are unlawful
and constitute cruel and unusual punishm ent in violation of the Eighth and Fourteenth Amendments to the U nited S tates Constitu tion, and punishm ent in violation of th e Fourteenth Amendment to the United States Constitution; and discrimination in violation of the ADA and '504 and failure to provide a free and appropriate education in violation of the IDEA. 2. Permanently enjoin Defendant, their subordi nates, agents, em ployees, and all others acting in c oncert with them , f rom subjectin g prisoner s with m ental illness to the conditions described in this Complaint; 3. Require the Defendant to provide training to her staff to ensure that youth are not punished for sym ptoms of their m ental illness or developmental disability, and to ensure that punishm ent decisions for m isconduct cons ider the disability of the youth to be punished;
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4. Grant youth who have been impacted by the Defendant=s policies and practices injunctive relief entitling them to adequate and appropr iate spec ial educati on and m ental health services, ad justment of their secu rity sta tus, a nd adjust their eligib ility f or parole to reflect the harm i mposed on them by MYCF =s use of adm inistrative segregation and failure to provide adequate education and mental health services to them;
5. Permanently enjoin the Defendant from interfering with the Plaintiff MPAS’ constituents= right to access to the courts through their participation in th is matter and from retaliating against the Plaintiff MPAS’ constituents for their pa rticipation in this m atter o r their cooperation with the Plaintiff;
6. Permanently enjoin the Defendant from interfering with Plaintiff MPAS’ access authority which includes the ability to meet with constituents without interference;
7. Grant Plain tiff MPAS t heir reasonable atto rney fees and c osts pursuant to 42 U.S.C. '1988 and other applicable law; and
8. Grant such other relief as the Court considers just and proper. Respectfully Submitted,

Date: November 20, 2006

/s/ Stacy A. Hickox Stacy A. Hickox (P54431) Michigan Protection & Advocacy Service, Inc.
/s/ Mark A. Cody Mark A. Cody (P42695) Michigan Protection & Advocacy Service, Inc.

Robert D. Fleischner
Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 587-6265

88

Case 5:05-cv-00128-PLM Doc #141 Filed 11/20/06 Page 89 of 89 Page ID#706 Michael Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 60 West Hancock Street Detroit, MI 48201 (313) 578-6814 Attorneys for Plaintiff
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 Case 5:05-cv-00128-PLM Doc #155 Filed 02/01/07 Page 1 of 16 Page ID#772

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

MICHIGAN PROTECTION & ADVOCACY

SERVICE, INC.,

Case

Plaintiff,

Hon.

v

PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,

Defendant.

No. 5:05-CV-0128 Richard Alan Enslen

Stacy A. Hickox (P54431)

Leo H. Friedman (P26319)

Michigan Protection & Advocacy Service, Inc. Michigan Department of Attorney General

4095 Legacy Parkway, Suite 500 Corrections

Division

Lansing, MI 48911 P.O.

Box 30217

(517) 487-1755

Lansing,

MI 48909

Attorney for Plaintiff (517)

335-7021

Attorney for Defendant

Mark A. Cody (P42695)

Michigan Protection & Advocacy Service, Inc. Linda M. Olivieri (P27646)

4095 Legacy Parkway, Suite 500

Michigan Department of Attorney General

Lansing, MI 48911 Corrections

Division

(517) 487-1755

P.O.

Box 30217

Attorney for Plaintiff Lansing,

MI 48909

(517)

335-7021

Attorney for Defendant

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE

Case 5:05-cv-00128-PLM Doc #155 Filed 02/01/07 Page 2 of 16 Page ID#773
TABLE OF CONTENTS PAGE
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRIOR PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 FACTUAL ALLEGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT
I. Retaliation Against the Plaintiff’s Constituents by the Defendant’s Agents Violates the Constituents Constitutional Rights and Impedes the Plaintiff’s Ability to Litigate this Case on their Behalf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. This Court Should Sanction the Defendant for the Violations of the Second Protective Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 INDEX OF EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii

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CASES

INDEX OF AUTHORITIES

PAGE

Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Berryman v. Rieger, 150 F.3d 561 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Glover v. Johnson, 138 F.3d 229 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 9, 10

Gnesys, Inc v. Greene, 437 F.3d 482 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Janis v. Ashcroft, 348 F.3rd 491 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Maggio v. Zeitz, 333 U.S. 56 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585 (6th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Shillitani v. United States, 384 U.S. 364 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Spallone v. United States, 493 U.S. 265 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7, 8

United States v. United Mineworkers, 330 U.S. 258 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

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CASES

PAGE

Westefer v. Snyder, 422 F.3rd 570 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Wilson v. Silcox, 151 F. Supp.2d 1345 (N.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

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INTRODUCTION Plaintiff, Michigan Protection & Advocacy Service, Inc. (“MPAS”) requests this Court to find that Defendant Caruso has violated the Second Protective Order issued by this Court on December 22, 2006. This Order was entered to ensure the MPAS constitu ents, youth with mental illness in M ichigan Department of Corrections (“MDOC”) facilities, who are the subjec t of this litigation rem ain free from retaliation, harassment, and other m istreatment by em ployees of the MDOC. Specifically, Plaintiff seeks a find ing that the Defendant has violated the Order regarding the handling of legal m ail and the prohibition agai nst retaliation and harassm ent of MPAS constituents by MDOC employees under the direction of Defendant Caruso.
PRIOR PROCEEDINGS Plaintiff MPAS filed its original Complain t in this m atter on Septem ber 14, 2005. In response to Defendant Patricia L. Caruso' s Motion for More Definite Statem ent and for Partial Summary Judgment, the Plai ntiff filed a Motion to Seal Docum ents, to allow MPAS to disclose the names of youth in the custody of MDOC who would be identified by num ber in the Second Amended Complaint in a m anner that would en sure the confidentiality of the youth . Defendant Caruso filed a response to the Motion for a Pr otective Order, and on Ap ril 10, 2006, this Court issued its O pinion gr anting Plain tiff’s Motion to Seal Doc uments. In its Opin ion, this Cour t analogized to the purposes of Western District of Michigan Local Civil Rule 10.7 and held that:
[t]he danger of m isuse of the inform ation at is sue in th is case (p ersonal identifier of m inors/young prisoners and their mental health and disability information, the disclosure of which m ight subject them to targeted abuse in prison) is such that it should be afforded like special protection. Subsequently, the Court' s fears were rea lized. On August 7, 2006, Plaintiff MPAS was required to seek a Second Protective Order for th e youth who had the courage to com e forth and complain of their mistreatment or non-treatment at MDOC facilities and were targeted for abuse,

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harassment, and retaliation by em ployees of MDOC. Based on these affidavits and testim ony1 at the Novem ber 21 and 22, 2006 hearing the parties agreed to the entry of a Second Protective Order, entered on December 22, 2006. This agreem ent wa s designed to ensure that the youth with mental illness now in the custo dy of MDOC are not subjected to th e type of retaliation and harassment that affectiv ely dep rives them of access to th e courts. T hat Order s pecifically prohibits MDOC staff from engaging in any kind of retaliation against any youth who has filed or is pursuing litigation against MDOC. The Orde r also states that em ployees of MDOC should not without good reason discuss or question an y youth about litigation pursued by the youth. A copy of the Order is attached hereto as Exhibit 1.
Unfortunately, the Order appear s to have had almost no im pact. The Plaintiff has learned of continuing harassment of its constituents . Before filing this Motion, on January 12, 2007, the Plaintiff notified the Defendant in writing through her counsel of most of the allegations set forth in the affidavits and requested relief. The Defendant has not responded to that notification.
FACTUAL ALLEGATIONS Prisoners are especially vulnerab le to treatment which would deter them from bringing a legal claim against prison officials. They are dependant upon prison officials for food, clothing, shelter, freedom from abuse from prison staff and other inm ates, freedom from unnecessary segregation and, ultim ately parole the community. They can be subtlety, or som etimes not so subtlety, su bjected to practices which are intended to co erce th em into not par ticipating in litigation. Obviously, youth, and, in particu lar, youth with m ental illn ess, are especially vulnerable to this form of treatment or mistreatment.
1 At the hearing the plaintiff presented testimony from six youth. Each youth described the retaliation they have experienced due to their association with MPAS The hearing was adjourned before MDOC completed testimony from its first witness
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As is dem onstrated by the ac companying af fidavits, subm itted und er s eal to th is Court and to opposing couns el, MPAS constitu ents w ho are youth currently in the cu stody of the MDOC continue to be subjected to retaliation and harassment by MDOC staff, notwithstanding two orders for m this Court. The staf f identif ied by the inm ates in their affidavits are all employees or agen ts o f Defendant Caruso. The m altreatment identified in th ese affidavits commenced after these youth began m eeting with MPAS and has occurred since the entry of the Second Protective Order. Many of t he youth subm itting affidavits were identified in the Third Amended Complaint, filed with this Court on November 20, 2006. A summary of som e of the facts alleged in the affidavits follows.
Several youth have suffered physical threats and harm in t he past two m onths. MDOC has adm itted that Youth 39 was placed in top of bed restrain ts from Novem ber 23, 2006 to November 27, 2006. For extended periods during hi s restraint, Youth 39 was not given food or water and was not released for regular bathroom breaks. According to his affidavit, while he was in top of bed restraints, several officers came into the room and hit him. At that time the officers were assaulting him, they threatened Youth 39 that if he told MPAS about the assault, they could make his death look suicidal. On December 22, 2006, when Youth 39 was being escorted in full restraints to be m oved to Huron Valley, MDOC staff took him to the ground and then dragged him by my feet across cement for about 15-20 feet to the van to take him to Huron Valley. Youth 39 only stayed at Huron Valley for approximately 4 weeks and has since been transferred back to Ionia Max.
In his affidavit, Youth 46 reports being a ssaulted by MDOC staff. I n January 2007, Youth 46 was pushed into a door w hile he was bei ng escorted in full rest raints. Youth 46 also
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has been placed in two different cells where th e walls and floor are covered with f eces, urine, sperm and blood, and he has been exposed to gas which aggravates his asthma.
Other youth nam ed in MPAS’ Complaint also report feeling unsafe. Youth 6, who testified at the Nove mber 21, 2006 hearing, still reports that he does not feel safe at his facility. Youth 66 re ports that since he beg an m eeting with and wr iting le tters to MPAS, MDOC staff have been s aying to h im that he will be in s egregation or “better y et, dead” in the nex t f ew weeks. Youth 20 has requested to be placed in protective custody because of threats from staff, but that request has been refused. Youth 20 was one of the youth who subm itted an affidavit in support of MPAS’ motion requesting the Second Protective Order.
Youth named in the Third Am ended Complaint are also receiving unsubstantiated tickets since the issuance of the Sec ond Protective Order. For exa mple, Youth 20 was placed in segregation after two corrections officers sent another inmate to fight with him because he would not sign of f the MPAS law suit against MDOC. Yout h 46 has sim ilarly been placed in segregation based on his observation of a fight between two other inmates.
Youth na med in the complaint have also had their property destroyed. After Youth 20 was sent to segrega tion, MDOC staf f threw away most of his prope rty and they w ill not bring him his legal work, including docum ents from MPAS. Youth 46 also repor ts that MDOC staff have refused to give him back his legal documents related to MPAS’ litigation against MDOC.
Youth are also denied as sistance of MDOC staff based on their a ssociation with MP AS. For example, Youth 17 has discovered that in late November 2006, MDOC failed to subm it his filing fee for his appeal of a M DOC m isconduct ticket to Circuit Court. This m eant that his appeal was not filed with the Court before the d eadline. His grievance was substantiated, and he
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was told by Marquette staff he could resubmit his paperwork to the Court, but only if he signs off on the grievance. Youth 17 testified at this Court’s November 21, 2006 hearing on retaliation.
Other youth have experienced sim ilar treatm ent. Youth 90 reports that when he has a problem with a co rrections officer, the officer’s superiors refuse to address the prob lem because of his association with MPAS. Youth 48 was to ld, when asking about seeing a mental health staff, that as long as he was dealing with MP AS, “you won’t have shit com ing.” Youth 70 has had officers refuse to process his legal mail in a timely manner, and has had two unsubstantiated tickets issued in connection with his sending and receipt of legal mail. Youth 46 has been refused his meal trays and snack bags.
One youth, who is not even nam ed in the Th ird Amended Complaint but was visited by MPAS, reports that shortly after he was visited by MPAS staff, mental health staff at Marquette found out that he had m et with MPAS and di scontinued his psychotropic m edication. In contrast, MPAS has learned that, Y outh 2, who declined to testify at the Nove mber 20, 2006 hearing and subsequently contacted the Defenda nt’s counsel to say that he w as no longer associated with MPAS, has recently been removed from administrative segregation.
ARGUMENT Courts have the inherent power to enforce compliance with their own orders through civil contempt. Spallone v. United S tates, 493 U.S. 265, 276 (1990)(quo ting Shillitani v. United States, 384 U.S. 364, 370 (1966). In enforcing com pliance, the Court does not reconsider the legal or factual basis for the order to be enforced. Maggio v. Zeitz, 333 U.S. 56, 69 (1948). Civil contempt is appropriate where a party shows by clear and convincing evidence that the opposing party violated a defin ite and specific order of the Court. After the moving party makes a prima facie showing of a violation of the Cour t’s Order, the oppos ing party has the
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burden to prove an inability to comply with the order. Glover v. Johnson, 138 F.3d 229, 244 (6th Cir. 1998). The Glover Court stated in an earl ier opinion that contem pt is established if a party has failed to take all reasonable steps within their power to comply with the Court’s Order. 934 F.2d 703, 708 (6 th Cir. 1991). The Defendant has the burden of proving im possibility of complying with th e C ourt’s Orde r. Id. Neith er lack of good faith nor willfuln ess need be established to show contempt. Id. See also, Rolex Watch U.S.A., Inc. v. Crowley , 74 F.3d 716, 720-21 (6th Cir. 1996).
I. Retaliation Against the Plaintiff’s Consti tuents by the Defendant’s Agents Viola tes the Constituents Constitutional Rights and Impedes the Pla intiff’s Ability to Litigate this Case on their Behalf. Defendant's agents and em ployees actions are having the effect of depr iving Plaintiff' s
constituents their fundamental constitutional right to access to the courts . Bounds v. Sm ith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Berryman v. Rieger , 150 F.3d 561, 567 (6 th Cir. 1998). This right extends to prisoner assi stance in civil rights actions. Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S.Ct. 2963 (1996). The exerci se of this fundament al right is obviously dependant upon freedom from harassm ent, reta liation, and abuse at the hands of MDOC officials. Collectively, these affidavits establish that there is a pa ttern and practice of harassm ent and retaliation by prison official s against the inmates who have had the cour age to step forward to participate in this litigation at the challenged condition s of their confinem ent in MDOC. Consequently, the P laintiff is severely ham pered in its ef forts to litig ate this ac tion on the ir behalf.
The Sixth Circuit Court of Appeals has been especia lly m indful of the poten tial f or retaliation agains t inm ates by pr ison of ficials when th ose inm ates have exer cised the ir constitutional righ ts of access to th e courts. In Thaddeus-X v. Blatter , 175 F.3d 378 (6 th Cir.
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1999), the Court set forth the elem ents for r etaliation claim brought by a prisoner under 42 U.S.C. § 1983. Those elem ents are: "(1) The plai ntiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elem ents one and two - that is, th e adverse action was m otivated in at least in part by the p laintiff's protected conduct." Id. at 394.
In Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002), the Sixth Circuit was faced with a claim by an inm ate that had been subjected to retaliat ory action for filing a civil rights lawsuit. The Court held that he had met his burden of presenting sufficient evidence of adverse action, stating:
The fact that defendants re peatedly stole plaintiff’ s legal papers certainly had the potential to directly im pede his pursuit of his claim , and m ay have caused o thers to b elieve that any e fforts they m ight expend in preparing legal claims would be wasted since any materials they prepared could easily be destroyed or confiscated. In addition, a jury could infer that deliberately depriving a prisoner of dietary suppl ements designed to am eliorate th e weight-loss effects of a deadly dise ase like AIDS could deter a person of ordinary firmness from pursuing his or her legal claims. 308 F.3d at 605. The type of harassm ent visited upon Plaintiff in Bell v. Johnson is sim ilar to the retaliation experienced by the youth identified in this matter and interviewed by Plaintiff MPAS, as set forth in the affidavits as described above. Legal m ail has been confiscated. Y outh have been placed in segregation for extended peri ods of time. Comments have been made about the participation of inmates in the instant litigation. Similarly, in Janis v. A shcroft, 348 F.3rd 491 (6 th Cir. 2003), the Court found that the implementation of new telephone policies by prison officials in alleged re taliation for inm ates pursuing litigation stated a cognizable claim under 42 U. S.C. § 1983. Certainly the implementation of telephone restrictions as a form of harassment falls far short of the harassment experienced by the Plaintiffs in this suit.
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Other courts have been equally diligent in pro tecting the free access to the courts by inmates. As an example, in Wilson v. Silcox, 151 F. Supp.2d 1345 (N.D. Fla. 2001), the District Court denied a Motion for Summary Judgment for the defense when an inmate alleged retaliation in the form of threatening st atements made by a guard. Sim ilarly, in Westefer v. Snyder , 422 F.3rd 570 (7th Cir. 2005), a Section 1983 claim was found to be cognizable wh ere the allegation was that the inm ates had been transferred to a pa rticular prison as retali ation for their response s to certain interrogatories.
As shown by the decision in Thaddeus-X , supra, the Sixth Circuit Court of Appeals has been especially p rotective of the rights of in mates who seek access to th e cou rts. That Court recognized that harassm ent and retaliation com es in m any forms, and recognized as cognizable claims allegations that are far less severe then those raised by the inmates in this matter. 175 F.3d at 387-92.
This case is brought on behalf of youth with mental illness in MDOC facilities, by MPAS as an organizational Plaintiff. In all respects, the Plaintiff stands in the place of its constituents in the exercise of the protection of their rights. The retaliation and associated actions taken by the Defendant’s employees and agents negatively impact s the ability MPAS to exercis e and protect the legal of its constituents. The response of Yo uth 2 to the retaliation he suffered – opting to cease his association with MPAS – demonstrates the effect of this treatment on MPAS’ ability to litigate this action. Con tinuation of such har assment and retaliation cannot help but m ake other youth at M DOC facilities reluctant to m eet with MPAS staff, and has m ade the m fearful of continuing to provide information in support of this litigation.
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II. This Court Should Sanction the Defenda nt for the Violations of the Second Protective Order.

Plaintiff asks the Court to find Defendant’s employees in civil con tempt of the Court’s

Second Protective Order. This Court should sanction the De fendant as a rem edy for the

harassment described here, which has violated th e Second Protective Order. Plaintiff MPAS has

met its burden of demonstrating a prima facie violation of the Court’s order by showing evidence

in the acco mpanying affidavits that Defendant’s staff continue to violate the Court’s Secon d

Protective Order.

This Court, as noted in its April 2006 Order, was aware of the abuse th at inmates may be

subjected to should personal infor mation about them be disclosed to prison officials.

Unfortunately, prison officials have becom e aware of those youth who have offered their nam es

and stories to Plaintiff and have thereby supported th is litigation, and they have proceeded to

make these youth fearful for their safety.

This Court should find Defendant Caruso, who has been made aware through her counsel

of the actions of her agents a nd employees, to be in contempt of the Second Protective Order.

Any party m ay be found in contempt based on the violation of a “d efinite and specific order of

the court requiring him to perfor m or refrain from perf orming a particular ac t or a cts with th e

knowledge of the court’s order.” Gnesys, Inc v. Greene

, 437 F.3d 482, 493 (6 th Cir.

2005)(quoting NLRB v. Ci ncinnati Bronze, Inc. , 829 F.2d 585, 591 (6 th Cir. 1987)). Contem pt

has occurr ed if a party f ailed to ta ke all rea sonable step s to com ply with an order, includ ing

“marshall[ing] their own resources, assert[ing] their high authority, and demand[ing] the results

needed from subordinate persons and agencies in order to effectuate the course of action required.” Glover v. Johnson , 934 F.2d 703, 708 (6 th Cir. 1991). A party can be held in

contempt to coerce futu re compliance with the C ourt’s Order, or to compensate for the injuries

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which have resulted from the noncom pliance. Glover v. Johnson , 199 F.3d 310, 313 (6 th Cir. 1999). The Glover Court upheld sanctions of $5,000 against MDOC based on its denial of vocational training for female inmates. Id.
The affidavits submitted in support of this Motion demonstrate that Defendant Caruso has failed to us e her autho rity and h er re sources to p revent f urther re taliation aga inst MPAS constituents. Youth named in the Third Amended Complaint as well as other MPAS constituents have been subjected to physical abuse and verbal threats, unsubstantiated discipline, and denial of access to basic services. MDOC staff have made no attempt to hide the connection between this treatment and th e youths’ association with MP AS and this litiga tion. As the r esult of this treatment, one youth has already ceased his asso ciation with MPAS and m any others fear for their safety.
Because MDOC staff are continu ing to hara ss MPAS constitu ents after the entry of the Second Protective Order, m ore specific relief is re quested in this m atter. The m agnitude of the sanctions imposed should consider the harm already caused by the noncom pliance, and the probable effectiveness of the sanctions in bringing about the resu lt desired. Glover , 199 F.3d at 312 (quoting United States v. United Mineworkers , 330 U.S. 258, 304 (1947)). This Court should order that Defendant Caruso pay a fine to this Court based on her failure to ensure compliance with the Court’s Orde r. MPAS constitu ents should be compensated f or the inju ries they have incurred from the physical and ve rbal assaults by Defendant Caruso’s staff. Additionally, any tickets they have received d ue to retaliation should be rem oved from their record, and their points adjusted accordingly.
To protect these youth from future harm , in consultation with and approval of undersigned counsel, these constituents should be moved to another facility where retaliation has
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not occurred but where they can continue to receive th e m ental health and education serv ices they require. In addition, MPAS should be reimbursed its attorney fees and expenses which have been incurred in its effo rts to ensure com pliance with the Second Protective Order. This relief is necessary to protect youth with m ental illnes s in the custo dy of M DOC from retaliation and harassment. By reacting to this prohibited activity by the corrections staff, sanctions will enhance the operation or the facilities as well as pr otect the young inm ates from illegal harassm ent and allow the Plaintiff to pursue the protection of their rights.
CONCLUSION For the reasons set forth above, P laintiff Michigan Protection & A dvocacy Service, Inc. prays this C ourt to find the Defendant in civi l contempt of the Sec ond Protective Order which enjoined Defendant Caruso and her employees and agents from retaliating against constituents of Michigan Protection & Advocacy Service, Inc.

Date: February 1, 2007

Respectfully submitted:

/s/ Stacy A. Hickox Stacy A. Hickox (P54431) Mark A. Cody (P42695) Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755 Phone: (517) 487-1755 shickox@mpas.org Attorneys for Plaintiff

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Case 5:05-cv-00128-PLM Doc #155 Filed 02/01/07 Page 16 of 16 Page ID#787 INDEX OF EXHIBITS
Exhibit 1: Second Protective Order, dated December 22, 2006 *Remaining exhibits filed under seal with the Court.
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 Case 5:05-cv-00128-PLM Doc #225 Filed 07/29/08 Page 1 of 2 Page ID#1371

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN PROTECTION & ADVOCACY SERVICE, INC.,
Plaintiff,
v.
PATRICIA L. CARUSO, et al.,
Defendants. _________________________________/

Hon. Paul L. Maloney Case No. 5:05-cv-00128

REPORT AND RECOMMENDATION
This matter is before the Court following several settlement conferences and ongoing settlement discussions. The Court held settlement conferences on the following dates: September 15, 2006 (Dkt. 99), March 2, 2007 (Dkt. 163), and August 21-22, 2007 (Dkt. 194 and 195). The Court has also conducted telephone status conferences regarding the progress of settlement discussions on: August 29, 2006 (Dkt. 90), April 3, 2007 (Dkt. 177), December 13, 2007 (Dkt. 202), January 16, 2008 (Dkt. 203), and May 14, 2008 (Dkt. 219). The parties last appeared before the Court on July 24, 2008. They have developed an action plan for implementation of agreements reached in this case. The Court reviewed the plan and discussed it with the parties at the hearing. The plan will not be filed in the case as it is subject to Fed. R. Evid. 408; however, it is available for the Court’s review.

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The undersigned recommends that this matter be stayed for a period of twelve months, during which time the negotiated plan will be implemented and, if all goes well, papers stipulating to dismissal of the case with prejudice will be filed soon thereafter.
The expert witnesses for the parties, specifically Dr. Joel A. Dvoskin, Ph.D. and Dr. Lee H. Rome, M.D., have been working to resolve the disputes in this matter with extraordinary cooperation and collegiality. If any disputes remain after the twelve month implementation period for the plan, the undersigned expects that they will be much narrower than those currently included in this case. The undersigned is optimistic given the expert witnesses’ cooperation and the thoroughness of the plan that there will be no remaining disputes. However, the parties have been unable to agree to the entry of a consent judgment at this time.
Also, it should be noted that the issue of attorneys’ fees has been specifically reserved. Further, the pending motion for partial summary judgment is specifically excepted from the parties’ negotiations.

Date: July 29, 2008

/s/ Ellen S. Carmody ELLEN S. CARMODY United States Magistrate Judge

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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 Case 5:05-cv-00128-PLM Doc #226 Filed 08/12/08 Page 1 of 5 Page ID#1373

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

________________________________________________

|

MICHIGAN PROTECTION AND ADVOCACY

|

SERVICE, INC.,

|

|

Plaintiff,

|

|

v.

|

|

PATRICIA L. CARUSO, in her official capacity as

|

Director, Michigan Department of Corrections,

|

|

Defendant.

|

_______________________________________________ |

Case No. 5:05-cv-128
HONORABLE PAUL MALONEY

Opinion and Order
Adopting the R&R without Objection; Staying the Case for One Year,
Except the Pending Cross-Motions for Partial Summary Judgment

This is a civil-rights action under 42 U.S.C. § 1983. Plaintiff Michigan Protection and Advocacy Se rvice, Inc. (“MPAS”) is a private non- profit entity that is statutorily authorized “to monitor fa cilities and program s that house indivi duals with m ental illnesses and developm ental disabilities, to investigate suspected incidents of abuse and neglect, and to pursue adm inistrative, legal, and other remedies on behalf of [such] individuals . . . wherever programs for such individuals are operated within the State of Michigan . . . .” See Third Amended Complaint filed Nov. 20, 2006 (“Comp”) ¶¶ 9-10. MPAS challenges the conditions underhwich the defendant Michigan Department of Corrections (“MDOC”) confine certain mentally ill and disabled prisoners who are under the age of 27 (“prisoners”). This challenge centers on butis not limited to the Michigan Youth Correctional Facility (“MYCF”) in Lake County, which operatedas a maximum-security (“Level V”) prison from

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July 1999 until its closure in October 2005,1 housing about 480 male prisoners between the ages of 14 and 19 who were convicted and sentenced as adults. See Comp ¶¶ 2, 9-11, and 23.
In particular, MPAS challenges MDOC’s alleged use of isolation and its failure to provide adequate mental-health and educational services, both of which it contends violates the prisoners’ Eighth Amendment right to be free from cruel and unusual punishm ent and their rights under the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”), the Rehabilitation Act of 1974 section 504 as codified at 29 U.S.C. § 794(“Rehab Act”), and the Individualswith Disabilities Education Act, 20 U.S.C. § 1401et seq. (“IDEA”). See Comp ¶¶ 1, 4, 525, 528-29. MPAS also contends that MDOC violates prisoners’ Fourteenth Am endment due-pr ocess right by im posing “m ajor m isconduct” punishments without determining whether the prisoner should be held responsible for his actionss, ee Comp ¶¶ 527, leading to negative disciplinary recorsdand security designations that followed MYCF prisoners to other facilities, see Comp. ¶ 28. Finally, MPAS alleges that MDOC retaliated against certain prisoners for cooperating with MPAS and participating in this lawsuit, violating their federal constitutional right of access to the courts. See Comp ¶¶ 28 and 530.
MPAS’s com plaint does not seek com pensatory or punitive dam ages. Rather, it seeks a declaration that MDOC has violated the Eighth Amendment, the Americans with Disabilities Act
1
According to MPAS, Until October 2005, m ale youth under the age of 19 who were com mitted t o t he MDOC, after a brief stay at the receptioncenter, were assigned to MYCF, where they generally were held until age 19. Since October 2005, MDOC has assigned these youth, after a brief stay at the recepti on c enter, to other MDOC facilities and has transferred youth who were housed at MYCF i n October 2005 to other MDOC facilities. Female youth sentenced as adultshave been and are confined at the Robert Scott Correctional Facility. Comp. ¶ 26.
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(“ADA”), and the Individuals with Disabilities Education Act (“IDEA”), and a permanent injunction that (1) prohibits subjecting mentally ill prisoners to the conditions described, (2) trains MDOC staff to ensure t hat t hey do not punish young prisoners for sym ptoms of their m ental illness or developmental disability, (3) grants adequate sp ecial-education and m ental-health services to prisoners who have been affected by the challeng ed pr actices, (4) adjust the security status of prisoners affected by the failure to consider the prisoner’s disability or mental illness before imposing punishment or security classification, (5) adjust the parole eligibility of prisoners who were housed at MDOC, to reflect MYCF’s use of adm inistrative segregation and its failure to provide adequate education and mental-health services. See Comp at 87-88 (Prayer for Relief ¶¶ 1-6). MDOC also seeks attorney fees and costs under 42 U.S.C. § 1988. See Comp at 88 (Prayer for Relief ¶ 7).
On January 30, 2008, MPAS moved for partialsummary judgment on a purely legal question. MPAS seeks a declaration “that students over the age of 22 but under the age of 27 who are in the custody of Defendant are entitled to special education se rvices” under the Michigan Mandatory Special Education Act, M.C.L. §§ 380.1701 - 380.1766 (“the Act”), while MDOC seeks, roughly, a contrary declaration. MDOC filed an opposition biref on February 29, 2008; MPAS filed a reply brief on March 14, 2008; and with leave of court, the Michigan Department of Education (“DOE”) filed an amicus curiae brief in support of MDOC on April 1, 2008.
On Tuesday, July 29, 2008, the Honorable EllenS. Carmody, United States Magistrate Judge, issued a Report and Recommendation (“R&R”) stating as follows:
The Court held settlement conferences on the following dates: September 15, 2006, March 2, 2007, and August 21-22, 2007. The Court also conducted telephone status conferences regarding the progress of settlement discussions on: August 29, 2006, April 3, 2007, December 13, 2007, January 16, 2008, and May 14, 2008. The parties last appeared before the Court on July 24, 2008. They have developed an action plan for implementation of agreements reached in this case. The Court reviewed the plan and discussed it with the parties at the hearing. The plan will not be filed in the case
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as it is subject to FED. R. EVID. 408; however, it is available for the Court’s review. The undersigned recommends that this matter be stayed for a period of twelve months, during which time the negotiated plan will be implemented and, if all goes well, papers stipulating to dismissal of the case with prejudice will be filed soon thereafter. * * * However, the parties have been una ble to agree to the entry of a consent judgment at this time. Also it should be noted that the issue of attroneys’ fees has been specifically reserved. Further, the pending m otion for partial summ ary judgment is specifically excepted from the parties’ negotiations. R&R at 1-2 (docket numbers omitted). Title 28 U.S.C. § 636(b)(1) provides, “Within ten days after being served with a copy [of an R&R], any party m ay serve and fi le written objections to such proposed findings and recommendations as provided by rules of court.” Likewise, Federal Rule of Civil Procedure 72 provides that “[w]ithin 10 days after being servedwith a copy of the recommended disposition, a party may serve and file specific, written objectionsto the proposed findings and recommendations.” See Deruso v. City of Detroit, 121 F. App’x 64, 66 n.2 (6th Cir. 2005) (“The Rule requires parties to file objections to a magistrate’s report and recom mendation within ten days of the tim e the report is filed.”) (citing FED. R. CIV. P. 72(a)). Federal Rule of Civil Procedure 6 begins, “I n computing any period of tim e prescribed or allowed by these rules, by the localrules of any district court, by order of court, or by any applicable statute, the day of the act, event or default from which the designated period of tim e begins to run shall not be included.” FED. R. CIV. P. 6(a). Thus, the ten-day objection period began on Wednesday, July 30, 2008. Days one through three of the period ran from Wednesday, July 30 through Friday, August 1. Rule 6 further provides, “When the period of time prescribed or allowed is less than 11 days,
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Case 5:05-cv-00128-PLM Doc #226 Filed 08/12/08 Page 5 of 5 Page ID#1377
intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” FED. R. CIV. P. 6(a). Thus the court excludes Saturday, August 2 and Sunday, August 3. Days four through eight of the period ran fr om Monday, August 4 through Friday, August 8. The court excludes Saturday, August 9 and Sunday, August 10, and daynsine and ten of the period were Monday, August 11 and Tuesday, August 12.
Thus, the ten-day period for filing objectionsexpired at midnight on Tuesday, August 12. No party filed objections by that deadline, so no review of the R&R is required under a de novo or any other standard.
ORDER Accordingly, the Report & Recommendation is ADOPTED without objection. This case is STAYED through and including August 31, 2009. No later than August 31, 2009, the pa rties SHALL FILE a joint status report indicating whether they intend to file a joint stipulation ofdismissal with prejudice of MPAS’s claims, and how they intend to address the issue of attorney fees and costs. This is not a final order. IT IS SO ORDERED this 12th day of August 2008.
/s/ Paul L. Maloney Honorable Paul L. Maloney Chief United States District Judge
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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MICHIGAN PROTECTION AND ADVOCACY

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SERVICE, INC.,

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Plaintiff,

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v.

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PATRICIA L. CARUSO, in her official capacity as

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Director, Michigan Department of Corrections,

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Defendant.

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________________________________________________

Case No. 5:05-CV-128
HONORABLE PAUL MALONEY

Opinion and Order
Granting Defendant's Motion for Summary Judgment to Defendant on State-Law Claim; Denying Plaintiff's Motion for Summary Judgment on State-Law Claim

This is a civil-rights acti on under 42 U.S.C. § 1983. Plaintiff Michigan Protection and Advocacy Service, Inc. (“MPAS”) i s a private non-profit entity that is statutorily authorized “to monitor facilities and program s that house individuals with m ental illnesses and developm ental disabilities, to investigate suspected incidents of abuse and neglect, and to pursue administrative, legal, and other remedies on behalf of [such] indviiduals . . . wherever porgrams for such individuals are operated within the State of Michigan . . . .”See Third Amended Complaint filed Nov. 20, 2006 (“Comp”) ¶¶ 9-10. MPAS challenges the c onditions under which the def endant Michigan Department of Corrections (“MDOC”) confined certain mentally ill and disabled prisoners who are
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under the age of 27 (“prisoners”). This challenge centers on but is not lim ited to the Michigan Youth Correctional Facility (“MYCF”) in Lake County, which operated as a m aximum-security (“Level V”) prison from July 1999 until its closure in October 2005, 1 housing about 480 m ale prisoners between the age of 14 and 19 who were convicted and sentenced as adults. See Comp ¶¶ 2, 9-11, and 23.
In particular, MPAS challenges MDOC’s alleged use of isolation and its failure to provide adequate mental-health and educational services, both of which it contends violates the prisoners’ Eighth Amendment right to be free from cruel and unusual punishment and their rights under three federal statutes: t he Am ericans with Di sabilities Act, 42 U.S.C. § 12132 (“ADA”), the Rehabilitation Act of 1974 section 504 as codified at 29 U.S.C. § 794 (“the Rehab Act”), and the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 et seq. (“IDEA”). See Comp ¶¶ 1, 4, 525, 528-29. MPAS also contendsthat MDOC violates prisoners’ Fourteenth Amendment dueprocess right by im posing “m ajor m isconduct” punishm ents without determ ining whether the prisoner should be held responsible for his actionss,ee Comp ¶ 527, leading to negative disciplinary records and security designations that f ollowed MYCF prisoners to other f acilities, with adverse
1
According to MPAS, Until October 2005, m ale youth under the age of 19 who were com mitted to the MDOC, after a brief stay at the recepti on center, were assigned to MYCF, wher e they generally were held until age 19. Since October 2005, MDOC has assigned these youth, after a brief stay at the reception center, to other MDOC facilities and has transferred youth who were housed at MYCF in October 2005 to other MDOC facilities. Female youth sentenced as adultshave been and are confined at the Robert Scott Correctional Facility. Comp. ¶ 26.
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consequences, see Com p. ¶ 28. Finally, MPAS alleges that MDOC retali ated a gainst certain prisoners for cooperating w ith MP AS and participating in this law suit, violating their f ederal constitutional right of access to the courts. See Comp ¶¶ 28 and 530.
MPAS’s complaint does not seek com pensatory or punitiv e damages. Rather, it seeks a declaration that MDOC has violated the Eighth Amendment, the ADA, the IDEA, and the Rehab Act, and a permanent injunction that (1) prohibits MDOC from subjecting mentally ill prisoners to the conditions described, (2) requires MDOC to tr ain its staff t o ensure that they do not punish young prisoners for sym ptoms of their m ental illn ess or developm ental disabilit y, ( 3) r equires MDOC to offer adequate special-education and mental-health services to prisoners who have been affected by the challenged practices, (4) requires MDOC to adjust the security status of prisoners affected by the f ailure to consider the prisoner’s disability or m ental illness bef ore im posing punishment or a more restrictive or onerous security classification, (5) requires MDOC to adjust the parole eligibility of prisoners who were housed atMDOC, to reflect MYCF’s use of administrative segregation and its failure to provide adequate education and m ental-health services to such prisoners. See Comp at 87-88 (Prayer for Relief ¶¶ 1-6). MDOC also seeks attorney fees and costs under a federal civil-rights statute, 42 U.S.C. § 1988. See Comp at 88 (Prayer for Relief ¶ 7).
On January 30, 2008, MPAS moved for partial summary judgment on a single purely legal question. MPAS seeks a declaration “that students over the age of 22 but under the age of 27 who are in the custody of Defendant are entitled to speci al education services” under the Michigan Mandatory Special Education Act, MICH. COMP. LAWS §§ 380.1701 - 380.1766 (“the Act”), while MDOC seeks, roughly, a contrary declaration. MDOC filed an opposition brief on February 29, 2008; MPAS f iled a reply brief on March 14, 2008; and with leave of court, the Michigan
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Department of Education (“DOE”) filed an amicus curiae brief in support of MDOC on April 1, 2008.
In August 2008, the parties jointly moved to stay this action for one year while they attempt to agree on changes in the Michigan prison system that m ay lead to an am icable resolution of MPAS’s federal claim s. The pa rties m ade clear, however, that they did not wish to delay consideration of their cross-motions for summary judgment on the state-lawissue. The court entered a stay of the action with the exception of the instant motions. For the reasons that follow, the court will grant summary judgment to MDOC on the state-law issue, and the case will remain stayed on the federal-law issues.
A Federal Court’s Application of State Law
“‘In applying state law, we anticipate how the relevant state’s highest court would rule in the case and are bound by controlling decisions of t hat court.’” Appalachian Railcar Servs. v. Boatright Enters., Inc. , – F. Supp.2d –, –, 2008 W L 828112, *14 (W .D. Mich. 2008) (Paul L. Maloney, J.) (“ARS”) (quoting National Union Fire Ins. Co. of Pittsburgh v. Alticor, Inc., 472 F.3d 436, 438 (6th Cir. 2007) (Richard Allen Griffin, J.) (citatoin omitted)). If the state supreme court has not conclusively decided the issue, a federal courpt resumptively looks to the decisions of the state’s appellate courts: “In anticipating how the statesupreme court would rule, ‘we look to the decisions of the state’s intermediate courts unless we areconvinced that the state supreme court would decide the issue differently.’” ARS, – F. Supp.2d at –, 2008 WL 828112 at *14 (citingUS v. Lancaster, 501 F.3d 673, 679 n.3 (6 th Cir. 2007) (Griffin, J.) ( citation om itted)). In determ ining what is the controlling law of the State, a federal court also “may give weight” to the decisions of the State’s
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trial courts, Bradley v. GMC, 512 F.2d 602, 605 (6th Cir. 1975) (citingRoyal Indem. Co. v. Clingan, 364 F.2d 154 (6 th Cir. 1966)), especially when the trial c ourt’s decision is consistent with state appellate decisions, Bradley, 512 F.2d at 605.
PRECEDENTIAL VALUE OF MICHIGAN DECISIONS
A federal court must accord the same precedential value to a state-court decision as it would be accorded by that state’s courts. See Appalachian Railcar Servs., Inc. v. Boatright Enters., Inc., – F. Supp.2d –, –, 2008 WL 828112, *14 (W.D. Mich. Mar. 25, 2008) (Maloney, J.) (“ARS”) (citing Mutuelle Generale Francaise Vie v. Life Ass. Co. of Pa, .688 F. Supp. 386, 397 n.15 (N.D. Ill. 1988) (“[O]ne Supreme Court decision (Fidelity Union Trust Co. v. Field, 311 U.S. 169 . . . (1940)) . . . required a federal court to ascribe the same precedential force to a New Jersey trial court decision that such a decision would receive in that states’ court system under the peculiarities of New Jersey law.”)). If a state court would not be bound by a particular state-court decision, then neither is this court. ARS, – F. Supp.2d at –, 2008 WL 828112 at *14 (citingKing v. Order of United Commercial Travelers of America, 333 U.S. 153, 161 (1948) (“a federal court adjudicating a matter of state law in a diversity suit is, in effect, only another cour t of the State; it would be incongruous indeed to hold the federal court bound by a decision which would not be bi nding on any state court.”)) (citation omitted).
Michigan Court Rule 7.215(C)(2) states that “a[] published decision ofthe Court of Appeals has precedential value under the rule of stare decisis.” This subsection makes no distinction based on when the decision was issued. ARS, – F. Supp.2d at –, 2008 WL 828112 at *14.
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However, Michigan Court Rule 7.215(J)(1) provides that “[a] panel ofthe Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court or by a Special Panel o f the Court of Appeals as provided in this rule.” Em phasis added. ARS , – F. Supp.2d at –, 2008 WL 828112 at *14.
Synthesizing Michigan Court Rul es 7.215(C)(2) and 7.215(J)(1), the Michigan Court of Appeals accords precedential value to all of its prior published decisions, regardless of when they were issued. ARS, – F. Supp.2d at –, 2008 W L 828112 at *14. When a post-Novem ber 1, 1990 published Court of Appeals de cision conflicts with a pre-Novem ber 1, 1990 published Court of Appeals decision, however, the post-November 1, 1990 decision prevails. ARS, – F. Supp.2d at –, 2008 WL 828112 at *14.
When there is a conflict between two published decisions of the Court of Appeals that were both issued after November 1, 1990, Michigan courts must follow the first opinion that addressed the matter at issue. ARS, – F. Supp.2d at –, 2008 WL 828112 at *15 (citing Novak v. Nationwide Mut. Ins. Co., 599 N.W. 2d 546, 554 (Mich. App. 1999) (citation omitted)).
By contrast, Michigan Court of Appeals panels are not bound by unpublished decisions of that same court, regardless of when they were issued. ARS, – F. Supp.2d at –, 2008 WL 828112 at *15 (citing Iqbal v. Bristol West Ins. Group, – N.W.2d –, –, 2008 WL 398881, *__ (Mich. App. Feb. 14, 2008) (citing MICH. CT. R. 7.215(C)(1))).
Finally, a federal court’s interpretation of state law is not binding. ARS, – F. Supp.2d at –, 2008 WL 828112 at *15 (citingLeavitt v. Jane L., 518 U.S. 137, 146 (1996) (Stevens, J., dissenting o.g., joined by Souter, Ginsburg, & Breyer, JJ.) (“[T]he decision of a federal court (even this Court)
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on a question of state law is not binding on state tr ibunals . . . .”)). Accordingly, t his court will seriously and respectfully consider our Circuit’s interpretation of state law but is not bound by it. See ARS, – F. Supp.2d at –, 2008 WL 828112 at *15.
Analysis
MDOC Contends that the Act Does Not Apply to Prisons Undisputed Material Facts. MPAS states that the following material facts are undisputed: there are inmates in MDOC’s custody who qulaify for special-education services; MDOC terminates special-education services when an inmate reaches age 22; and there are inmates over the age of 22 but under the age of 27 who continue to qualify for special education services. MSJ at 2. MDOC agrees, with one exception. MDOC correctly notes that age 27 is not the cut-off for special-education services under the MMSEA. AMs DOC notes, “Michigan lawprovides for special education for persons with certain impairments only through age25, but if a student turns26 during the school year, the special education continues until the end of that school year.” MDOC’s Opp’n at 2 (citing MAC Rule 340.1702). In other wor ds, the MMSEA’s cut-off age for state-taxpayerfunded special education services is sometimes 25 and sometimes 26 years old, depending on when the student’s birthday falls in relation to the school year. The parties agree that the cut-off for specialeducation services under federal law is age 22, i.e., that MDOC inmates aged 22 and older are notentitled to special education services unless state law (such as the MMSEA) accords them that right. The Parties’ Arguments. MPAS contends that the Act requires MDOC to provide special education s ervices t o i nmates “over the age of 22 but under the age of 27", and that there are
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approximately 77 inmates within that age range whoseem to qualify for those services. MSJ at 2-3. MPAS points to MICH. ADMIN. CODE R. 340.1702, which defines “student with a disability” as
a person who is determined by an individual education program team or a hearing officer to have 1 or more of the impairments specified in this part that necessitates special education or related services, or both, who is not more than 25 years of age as of September 1 of the school year of enrollment, who has not completed a normal course of study, and who has not graduatde from high school. A student who reaches the age of 26 years after September 1 is a ‘student with a disability’ and entitled to continue a special education program or service until the end of that school year. MPAS contends that MDOC is bound by the Act because it fits Michigan law’s broad definition of a “public agency.” Michigan Administrative Code Rule 340.1701 today provides, All public agencies in the state,as those agencies are defined at 34 C.F.R. § 300.22 of the regulations implementing the Individuals with Disabilities Education Act, 20 U.S.C. chapter 33, § 1400 et seq., shall comply with these rules; all provisions of the state’s application for federal funds under part B of the [IDEA]; the requirements of part B of the [IDEA]; and the regulations im plementing the [IDEA], which are adopted by r eference in these rules. Emphasis and paragraph breaks added.
June 6, 2002 through the Present MAC Rule 340.1701 expressly adopts by referencethe definition of “public agency” set forth at 34 C.F.R. § 300.22. As the Michigan Supreme Court has held, statutes that incorporate existing federal statutes by ref erence are valid and constitutional. Radecki v. Dir. of Bureau of Worker’s Disability Compensation, 526 N.W.2d 611, 613 (Mich. App. 1994) (citingPleasant Ridge v. Gov. George Romney, 169 N.W.2d 625, 630-32 (Mich. 1969) andPeople v. Urban, 206 N.W.2d
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511, (Mich. App. 1973)). See, e.g., Parker, Webb & Co. v. Austin , 121 N.W. 322 (Mich. 1909);
McGeorge v. Walker, 31 N.W. 601 (Mich. 1887) (incorporating federal standards for weights and
measures);
But State legislation that adopts by referenc e “future legislation, rules, or regulations, or
amendments thereof, which are enacted, adopted, or pr omulgated by another sovereign entity,
constitutes an unlawful delegation of legislative power.” Radecki, 526 N.W.2d at 613 (emphasis
added) (citing, inter alia, Lievense v. Unemployment Comp. Comm’n, 55 N.W.2d 857 (Mich. 1952)
and Dearborn Independent, Inc. v. Dearborn, 49 N.W.2d 370 (Mich. 1951)).2 To the extent that a
Michigan statute purported to incorporate a futureenactment of another sovereign entity, the statute
2
The Michigan Legislature m ay, however, enact a statute provi ding that a decision or determination by another sovereign entity, such as a f ederal agency, will have a specif ied effect under state law. InTaylor v. SmithKline Beechum Corp,. 468 U.S. 1 (2003), the Michigan Supreme Court addressed a state statute that limited the liability of drug manufacturers and sellers if the drug at issue and its labeling were in compliance with the federal Food and Drug Administration (FDA)’s standards. Addressing the argument that the statute represented an unconstitutional delegation of legislative power, the Supreme Court wrote:
The Court of Appeals also cited Radecki . . . . In Radecki, the Court of Appe als considered a state statute that incorporatedby reference a federal statute. The Court said that state statutes may incorporate by reference existing federal statutes, but not future legislation. Utilizing its “no change” a rgument, the Court characterized M.C.L. § 600.2946(5) as an im permissible “reference statute” that incorpor ates future standards prom ulgated by the FDA. We disagree. First, M.C.L. § 600.2946(5) is not a “reference statute” as th at phrase is used, which is to m ean incorporation into Michigan law of a standard from a different jurisdiction as a rule of law to be applied in Michigan courts . Rather, it provides that certain legal consequences fl ow from factual determ inations m ade by the FDA and is not a delegation. Accordingly, Radecki, whatever its m erits as law, is not relevant to a consideration of whether M.C.L. § 600.2946(5) is an im permissible delegation of legislative power.
Id. at 16-17. Such a statute is not at issue here. The Michigan act at issue here is a true “reference statute.”
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would be invalid, though the rem ainder of the st atute would be severable and re main valid. See
People v. DaSilva, 189 N.W.2d 362, 365 (Mich. App. 1971).
This constitutional distinction compels the rule that when a Michigan statute, regulation, or
rule incorporates by reference a named federal statute, regulation, or rule, the Michigan authority
forever incorporates only the version of the incorporated federal authority that existed on the date
the Michigan statute was enacted.
When a Michigan statute adopts by refere nce a federal law that is subsequent ly amended, but the Michigan statute remains unchanged, the courts are constitutionally required to construe the statute as continui ng to refer to the original federal enactment before am endment. By faili ng to am end the Michigan statute, the Legislature is presumed to have intended to freeze the federal law as it was at the time of the original state statute.
Radecki, 526 N.W.2d at 614 (citing Urban, 206 N.W.2d at 517); see also DaSilva, 189 N.W.2d at
364-65.
In Jager v. Rostagno Trucking Co., Inc., 728 N.W.2d 467 (Mich. App. 2006), app. denied,
729 N.W.2d 512 (Mich. 2007), for instance, the Cour t of Appeals had to interpret a Michigan
statutory provision that incorporated by refere nce the definition of “em ployment in the logging
industry” found in the section of the Workmen’s Compensation and Employers Liability Insurance
Manual entitled “logging or lumbering drivers code no. 2702.” The Court of Appeals held that
the Legislature intended the version of the m anual referred to in [the statute], including the code no. 2702 that was in existence at the time [the Public Laws enacting the statute] were enacted, to be tehstandard to determine employment in the logging industry. Any subsequent changes tothe definition contained in the manual would not change the statutory definition of “employment in the logging industry.”
Jager, 728 N.W.2d at 467 (f ollowing, as persuasive authority, Michigan Mfrs. Ass’n v. Workers
Disability Comp. Bureau Dir,. 352 N.W.2d 712, 714-15 (Mich. App. 1984)).See also, e.g., Radeck,i
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526 N.W.2d at 614 (“We conclude that, by failing to amend the Workers’ Disability Compensation Act to incorporate the 1986 federal tax reforms, the Legislature intended the Act to continue to refer to the pre-1986 Internal Revenue Code.”);Urban, 206 N.W.2d at 516 (“Thus, M.C.L.A. § 335.106 . . . cannot be construed to refer to the 1968 or 1970-1971 version of the [federal] Act, since these laws were enacted after the date on which the Michigan statute was passed by the Legislature.”).
Moreover, Michigan’s Administrative Procedures Act (“APA”) provides that An agency may adopt, by reference in its rules and without publishing the adopted matter in f ull, all or any part of a code, standar d or r egulation which has been adopted by an agency of the United Stateos r by a nationally recognized organization or association. The referenc e shall fully identify the adopted m atter by date and otherwise. The reference shall not cover any later amendments and editions of the adopted matter, but if the agency wishes to incorpoarte them in its rule it shall amend the rule or promulgate a new rule therefor. M.C.L. § 24.232(4) (emphasis added), quoted by Martin v. DOC, 384 N.W.2d 392, 393 n.3 (Mich. 1986).
Accordingly, the court holds that each verison of MAC Rule 340.1701 incorporates only the definition of “public agencies” that was found in 34 C.F.R. § 300.22 at the tim e that particular version of the rule was enacted, without any subsequent amendments to the federal provision.
Which versions of MAC Rule 340.1701 apply here? MPAS’s com plaint f ocuses on MDOC’s treatment of certain inmates at the Lake County MYCF, which operated from July 1999 until its closure in October 2005. Accordingly, the court looks only to the versions of MAC Rule 340.1701 that have been in effect from and including July 1999 to the present.
MAC Rule 340.1701 was amended in 1997 and on June 6, 2002. The 1997 version did not contain the incorporation of 34 C.F.R. § 300.22's definition of “public agency.” Thus, the version
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of MAC Rule 340.1701 in effect at the beginning of the relevant period (July 1999) was the 1997 version. It did not incorporate any definition of p“ublic agency.” Here is the version of MAC Rule 340.1701 that was in effect from July 1999 until June 6, 2002:
R. 340.1701 Definitions: A to E Rule 1. As used in these rules:
* * * (b) “Agency” means a public or pr ivate e ntity or organization, including the
local education agency, intermediate school district, the department, and any other political subdivision of the state that is responsible for providing education or services to persons who are disabled. MAC Rule 340.1701 (retrieved fr om Michigan Register 1997, Issue No. 3, “Departm ent of Education, State Board of Education, Special E ducation Programs and Services , Part 1-General Provisions), reproduced at Def. MDOC’s Ex. 2. MAC Rule 340.1701 has not been amended since June 6, 2002. Thus, the version of MAC Rule 340.1701 in effect fromJune 6, 2002 to the present is the June 6, 2002 aemnded version, which added the incorporation of 34 C.F.R. § 300.22's definition of “public agency.” The court holds, therefore, that from June 6, 2002 to the present,the only entities that are required to comply with Michigan’s special-education requirements are those that are “public agencies” as that term was defined by 34 C.F.R. § 300.22 as it stood on June 6, 2002. Was MDOC a “public agency” as defined by 34 C.F.R. § 300.22 as it stood from June 6, 2002 through the present? The court holds that it was not. Title 34 C.F.R. § 300.22 was last am ended March 12, 1999 and A ugust 14, 2006. Thus, when MAC Rule 340.1701 was am ended on June 6, 2002, it incorporated the March 12, 1999 version of that federal regulation, which provided:
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As used i n t his part, the term public agency includes the SEA [State Education Agency, i.e., the Michigan Departm ent of Educat ion]3, LEAs [Local Education Agencies]4, ESAs, public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for proivding education to children with disabilitie.s
MDOC Opp’n, Ex. 3 (March 12, 1999 version of 34 C.F.R. § 300.22) (emphasis added). Because
MAC Rule 340.1701 has not been am ended since June 6, 2002, it has ne ver i ncorporated
amendments to the f ederal regulation that w ere passed after that date (such as the A ugust 2006
amendment, see MDOC Opp’n, Ex 4).
The court analyzes 34 C.F.R. § 300.22s' two clauses separately. As for the first clause, it is
undisputed that MDOC is not the Michigan Department of Education or an LEA (Local Education
Agency). Next, MPAS has not contended that MDOC is an ESA (educational services agency)5.
3
The term “State Education Agency” appears four times in the Michigan Compiled Laws:
MICH. COMP. LAWS § 388.164a(11)(c) (“‘State education agency’ means the Department.”); MICH. COMP. LAWS § 388.1694a(11)(c) (“‘State education agency’ means the Department.”); MICH. COMP. LAWS § 388.1698(9)(c) (“‘State education agency’ means the Department.”); MICH. COMP. LAWS § 388.1698(10)(c) (“‘State education agency’ means the Department.”).
4
The full term“Local Education Agency” appears only once in the Michigan Copmiled Laws. See MICH. COMP. LAWS § 3.1041, I nterstate Compact on Educational Opportunity for Military Children, Art. II, Definitions, ¶ H (“‘Local edu cation agency’ m eans: a public authority legally constituted by the state as an adm inistrative agen cy to provide control of and direction f or Kindergarten through Twelfth (12th) grade public educational institutions.”).
5
The acronym ESA appears nowhere in the Michigan Compiled Laws.
When the acronymESA appears infederal statutes, it occurs only in non-education contexts: the Endangered Species Act, the Employment Standards Administration, the Economic Stabilization Act, Coverdell Education Savings Accounts, the Energy Security Act, or the Illinois Employment of Strikebreakers Act, and in one instance each in statutes governing National Forests and Transportation, respectively.
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Concluding the analysis of 34 C.F.R. § 300.22s' first clause, MPAS has not contended that MDOC
is a public charter school.6
Therefore, MDOC will not qualify as a public agency under 34 C.F.R. § 300.22 unless it
satisfies the regulation’s second cla use: “any ot her political subdivision[] of the State that [is]
The acronym ESA does appear in arelevant context in federal regulations. Title 34 C.F.R. § 300.2(b)(ii) and 34 C.F.R. Part 300, App. E both e quate ESA with educational servic e agency. More specifically, title 34 C.F.R. § 300.12 defines ESA as
(a) a regional public multiservice agency –
(1) Authorized by State law to develop, manage, or provide services orprograms to LEAs;
(2) Recognized as an adm inistrative agency for pur poses of the provision of special education and related servic es provided within public elem entary schools and secondary schools of the State;
(b) includes any other public institution or agency having adm inistrative control and direction over a public elementary school or secondary school; and
(c) includes entities that meet the definition of intermediate educational unit in section 602(23) of the Act as in effect prior to June 4, 1997.
In turn, 34 C.F.R. § 222.50 defines intermediate educational unit as “any public authority, other than an LEA, that is under the general supervision of a State educational agency, that is established by State law for the purpose of providing free public education on a regional basis, and that provides special education and related services to children with disabilities within that State.
6The term “public charter school” appears nowhere in the Michigan Compiled Laws or the Michigan Administrative Code.
The term “charter school” appears nowhere in the Michigan Compiled Laws. It appears only once in the Michigan Administrative Code, but it is not defined. See Mich. Admin. Code R. 325.1545, DEQ, Drinking Water & Radiological Protection Division, Medical Waste Producing Facilities, “Registration of Multiple Producing Facilities; medical waste management plan content; registrations for school districts; registration fee.”
The court has not located any state or federal court decision that defines “public charter school” or “charter school” under Michigan law.
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responsible for providing education to children withdisabilities.” MPAS fails to show that MDOC is such an entity.
First, MPAS claims that in Simpson v. UAW Local 6000 and MDOC, 394 F. Supp.2d 991 (E.D. Mich. 2005) (Zatkoff, U.S.D.J.), a federal district court “noted that MDOC is a ‘. . . political subdivision of the State of M ichigan.’” MPAS MSJ Reply at 3. This court m ust note, with disapproval, that MPAS’s quotation from Simpson is misleadingly incomplete. The district court in Simpson did not analyze whether MDOC should be considered a political subdivision of the State of Michigan, and it cited noauthority, binding or persuasive, for that proposition. Rather, when one includes the part of the sentence that MPAS conveniently om its, Simpson merely stated, without discussion, “Plaintiff concedes that MDOC is a political subdivision of the State of Michigan.” Simpson, 394 F. Supp.2d at 999 (em phasis added). In our case, by contrast, MDOC does not concede that it is a political subdivision of theState. Moreover, as a federal court opinion,Simpson lacks precedential value in Michigan state courts. See ARS, – F. Supp.2d at –, 2008 WL 828112 at *15 (citing Leavitt v. Jane L. , 518 U.S. 137, 146 (1996) (Stevens, J ., dissenting o.g., joined by Souter, Ginsburg, & Breyer, JJ.) (“[T]he decision ofa federal court (even this Court) on a question of state law is not binding on state tribunals . . . .”)).
Second, MPAS has not identified any Michigan statute or regulation defining MDOC as a political subdivision of the State, whether for purpos es of this regulation or generally. Nor has MPAS identified any Michigan statute or regulaotin whose language even inferentially suggests that the Legislature considers MDOC to a political subdivision of the State.
On the contrary, at least one Michigan statute is phrased in a w ay that suggests that MDOC, precisely because it is a department of the State, is therefore not a “subdivision” of the
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State. Michigan’s Elliott-Larsen Civil Rights Act (MELCRA) defines “public service” as
a public facility, department, agency, board, or com mission, owned, operated, or managed by or on behalf ofthe state, a political subdivision, or an agency thereof or a tax-exempt private agency established toprovide service to the public, except that public service does not include . . . .
MICH. COMP. LAWS § 37.2301(b) (em phasis added).7 It bears rem embering that MDOC is the
Michigan Department of Corrections. This is significant, because MELCRA contem plates that
departments can be and are owned, operated, and managed by political subdivisions of the State –
it would be nonsensical to say t hat a department that is itself a political subdivision is owned or
operated by ... a political subdivision! The court is not aware of a ny e xample of one State of
Michigan political subdivision (such as a county or municipality) owning, operating or managing
another.
Moreover, under basic principles of statutory construction, the court ascribes significance
to the fact that MICH. COMP. LAWS § 37.2301(b) lists “a political subdivision,or an agency thereof”
in the disjunctive. For purposes of the MELCRA, at least, the Legislature clearly does not equate
a political subdivision with an agency. Based on the definitional language of MICH. COMP. LAWS
§ 37.2301(b), MD OC, agai n the Michigan Department of Corrections, m ight be considered a n
7
Even if MDOC were considered “a political usbdivision of the State”, MPAS has not shown that MDOC is “responsible for providing education to children with disabilities.” MPAS presents no authority, nor can it, for the notion that itnhe view of the Michigan Legislature, theraison d’etre, the primary intended function, or even asubstantial intended function of the Michigan prison system is to provide education to children with disabilities. Federal and state statute may require MDOC to provide education to disabled inmates under the age of majority, but MDOC is obviously not one of the entities whose bailiwick is education.
In this connection, it is useful to remember that the Michigan Mandatory Special Education Act itself is an article of the School Code, not a general statute or part of a code governing crime, criminals, or prisons. See MICH. COMP. LAWS §§ 380.1701 - 380.1766.
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agency of the State, but not a political subdivision of the State.8
In addition, a Michigan statutory provisionentitled Governmental Liability for Negligence
defines political subdivision as
a m unicipal corporation, county, county road com mission, school district, community college district, port district , m etropolitan district, or transportation authority or a com bination of 2 or m ore of these when act ing jointly; a district or authority authorized by law and formed by 1 or more political subdivisions; or an agency, department, court, board, or council of a political subdivision.
MICH. COMP. LAWS § 691.1401(b). The definition does not include MDOC.
Another statute shows that political subdivisionsare entities that are fundamentally different
in character from MDOC. A statute governing Conditions of Employment for Public Officers and
Employees defines “public employer” as “a county,township, village, city, authority, school district
or other political subdivision of this stateand includes any entity jointly created by 2 or more public
employers.” MICH. COMP. LAWS § 15.601(a) (emphasis added).
Finally, the Michigan Supreme Court views agencies of the State as distinct and different
from political subdivisions of the State, and it has no doubt which one MDOC is. DInearden v. City
8
Other statutory provisions likewise distingui sh between a stat e a gency and a political subdivision of the State by listing them in the disjunctive:
MICH. COMP. LAWS § 423.501(2)(b) (Bullard-Plawecki Act) (defining “employer” to include “. . . the state or any agency or a political subdivision of the state . . . .”) (emphasis added);
MICH. COMP. LAWS § 37.2103(g) (Civil Rights Act) (defining “person” to include “the state or a political subdivision of the state or an agency of the state . . . .”) (emphasis added).
Cf. People v. Williams , 664 N.W.2d 811, 815 (Mich. App. 2003) (“As Justice Boyle observed, the Legislature’s use of the disjunctive ‘or’ ‘suggests strongly that open exposure and indecent exposure are distinctly diffe rent ki nds of behavior and that the Michigan Legislature understood each to define different conduct.’”) (quotingIn re Certified Question, 359 N.W.2d 513, 518 (Mich. 1984)) (emphasis added).
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of Detroit, 269 N.W.2d 139 (Mich. 1978) (Rya n, J., for a unanim ous Court, with Moody, J., not participating), the Suprem e Court stated, “W e are asked i n t his case to decide whether the Department of Corrections, an agency of the State,is immune from, or subject to, the local zoning ordinance of the City of Detroit, a political subdivision of the State.” Id. at 140.
On the basis of these authorities, and lacking any contrary authority from MPAS, the court determines that the Michigan Supreme Court would not consider MDOC a political subdivision of the State for this purpose. That means that MDOC was not a “public agency” for purposes of MAC Rule 340.1701 (incorporating March 12, 1999 versionof 34 C.F.R. § 300.22) fromJune 6, 2002 to the present. Thus, during that period, the MMS EA did not require MDOC to provi de specialeducation services to its adult inm ates beyond that required by federal la w. For this reason, MDOC is entitled to summary judgment on the MMSEA claim as to the period from June 6, 2002 through the present.
1999 through June 5, 2002 The court next considers w hether the MMSEA obligated MDOC to provide specialeducation services to its adult inmates, beyondthose required by federal law, from July 1, 1999 through June 5, 2002. The court ultimately concludes that MPAS fails to provide any applicable definition of agency or public agency that would bring MDOC within the purview of the MMSEA for this earlier period, either. As discussed above, before June 6, 2002, MAC Rule 340.1701 did not incorporate 34 C.F.R. § 300.22's definition of “public agency.” The court must look elsewhere in Michigan law, then – preferably, but not necessarily, Michigan education law – to find a suitable definition of “agency” or “public agency” for the period before June 6, 2002. Plaintiff MPAS points to a federal regulation, 34 C.F.R. § 300.2. That regulation, entitled
-18-

Public Agencies within the State, provides, in pertinent part,
(a) States. This part applies to each State that receives payments under Part B of the Act, as defined in § 300.4.
(b) Public agencies within the State. The provisions of this part –
(1) apply to all political subdivisions of the State that are involved in the education of children with disabilities, including:
(I) The State educational agency (SEA).
(ii) Local educational agencies (LEAs), educational service agencies (ESAs), and public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA.
(iii) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for children with deaf ness or children with blindness).
(iv) State and loc al juvenile and adult correctional facilities. . . .
(2) Are binding on each public agency in the State that provides special education and related services to children with disabilities, regardl ess of whether that agency is receiving funds under Part B of the Act.
34 C.F.R. § 300.2(a) and (b) (em phasis added). MPAS argues t hat be cause federal education
regulations specifically include state adult correctoinal facilities in the definition of public agencies,
and because s tate regulations refer to those federal regulations, “it is apparent that the State of
Michigan has intended to include state adult correctional facilities as public agencies subject to the
provisions of state law with respect to the delivery of special education services.” MPAS MSJ at
6.
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The court finds this argument unpersuasive. MPAS fails to identify any Michigan statute or administrative rule that incorporated 34 C.F.R. § 300.2 by reference during the period from the facility’s opening in 1999 through June 5, 2002. Therefore, MPAS provides no basis for this court to read 34 C.F.R. § 300.2 into Michigan law.9
MPAS next argues that when the Michigan Legislature wished to exempt MDOC from an act’s requirements, it knew how to do so and did so explicitly. MPAS contrasts the Act – which does not expressly exempt MDOC from its coverage – with the Michigan Persons with Disabilities Civil Rights Act, MICH. COMP. LAWS § 37.1301(b), and the Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §37.2301(b) (“MELCRA”), both of which expressly exempt MDOC. This argument rests on the rationale of construction, that the Legislature’s exemption or exclusion of an entity or thing in some instances can make its failure to exempt or exclude significant in other instances.See MPAS MSJ at 6 and MPAS Replyat 2. Moreover, MPAS notes, MICH. COMP. LAWS § 380.1751(5) requires state governm ent departm ents to operate spe cial-education program s, and it does not exempt MDOC. But this indirect argum ent by inference still be gs the question, is there any affirmative Michigan statutory or regulatory authority that includes or specifies the prison system as subject to the special-education requirement, in the absence of some definition of “agency” or “public agency” that would bring MDOC withinthe MMSEA’s purview? MPAS has not identified such authority. The m ere fact that some statutes exclude MDOC but the MMSEA does not, is a
9
Accordingly, the court need not consider MDOC’s other arguments against the application of 34 C.F.R. § 300.2 here. See MDOC Opp’n at 8 (“Second, the inclusion of corrections facilities in 34 CFR 300.2[(b)](iv) signals tha t corrections facilities were specifically NOT included in 34 CFR 300.22, which Michigan did adopt by reference. Under the tim e-honored maxim regarding statutory construction . . . inclusion by specific mention excludes all that is not mentioned.”).
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rather slender reed, given that (1) there is no strong reason to think that MDOC is included in the MMSEA’s coverage in the first place and (2) as discussed below, several School Code provisions tend to show that the Legislature did not contemplate state law requiring MDOC to play a role in providing special-education services.
Referring to the aforementioned statute requiring state government departments to operate special-education progr ams, M ICH. COMP. LAWS § 380.1751(5), MPAS argues that under this provision, “departments of state government, which include MDOC, are obligated to provide those special education programs and services that are mandated under State law and those include the provision of services to students under the age of 27.” MPAS MSJ at 7. But that too begs the question whether special-education services are “mandated under State law” for MDOC, when the MMSEA Rules themselves fail to clearly say so.
MPAS also points to a statutory provisi on that requires MDOC teachers to possess valid teaching certificates, MICH. COMP. LAWS § 380.1531a, as reflecting the Legislature’s “capacity and willingness to address education provided to inmates . . . .” MPAs’s MSJ at 7. But it is not enough for MPAS to show that the Legislature was able and willing to address the topic of education for inmates. MPAS must identify some clear statutory or regulatory authority for a court, especially a federal court, to for ce t he t axpayers of Mi chigan specifically to fund the provision of specialeducation services to additional inmates under t he M MSEA. MPAS has not identified such authority. See generally Henry v. Dow Chem. Co. , 701 N.W .2d 684, 698 n.20 (Mi ch. 2005) (Corrigan, J., for the Court) (citing with approval a ssiter court’s reference to “the virtue of judicial restraint”); Nat’l Wildlife Fed’n v. Cleveland Cliffs Iron Co. , 684 N.W .2d 800, 816 n.21 (Mich. 2004) (Markman, J., for the Court) (noting tha t “judicial restraint” has been “honored by judges
-21-

from time immemorial”). Perhaps most significant, a major definitional provision of the School Codestrongly suggests
that the Legislature did not contemplate requiring MDOC to provideadult special-education services beyond those required by federal law. The School Code’s definition of special education programs and services nowhere mentions MDOC, instead specifying by name a host of other entities that are expected to render such services:
“Special education programs and services” means educational and training services designed for students with a disability and operated by local school districts, local act school districts, intermediate schooldistricts, the Michigan schools for the deaf and blind, the department of community health, the department of human services, or a combination of t hese, and ancillary prof essional services f or students with a disability rendered by agencies approved by the state board. The program s shall include vocational training, but need not include academic programs of college or university level. MICH. COMP. LAWS § 380.6(7) (emphasis added). Absent a clear directive from the Legislature, it strains logic to believe that it required MDOC to provide special-education programs and services when the very definition of those services contemplates provision by numerous entities of the State and its subdivisions but not MDOC. Finally, amicus curiae Michigan Department of Education correctly points out that MDOC is nowhere to be found in three School Code sections detailing the role, authority, and obligations of various governmental bodies in providing special-education services. See Amicus Brief filed April 1, 2008 at 2-3. These provisions of the Code conspicuously omit MDOC from mandatory interaction and cooperation with the Superintendentof Public Instruction, local school districts, and intermediate school districts in the special-education arena. See MICH. COMP. LAWS § 380.1701(a) (directing the Superintendent to “[d]evelop, establish, and continually evaluate and m odify in
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cooperation with intermediate school boards, a state plan for special education which shall provide
for delivery of special education programs and services.”) (emphasis added); MICH. COMP. LAWS
§ 380.1711 (directing intermediate school district boards to “[d]evelop, establish, and continually
evaluate and modify in cooperation with its constituent districts, a plan for special education . . . “
and making no m ention of cooperation with MDOC) (em phasis added); M ICH. COMP. LAWS §
380.1751(1)(b) (in fulfilling out its responsibility for providing special education program s and
services, a local school district m ay “[c]ontract with i ts interm ediate school board, another
intermediate school board, another local school district board, an adjacent school district board in
a bordering state, the Michigan schools for the deafand blind, the department of community health,
the department of human services, or any combination thereof”).10
MDOC Contends that MPAS is Collaterally Estopped by a State-Court Decision,Cain
10
In addition to arguments based on various staut tes and regulations, MPAS expresses its view that requiring MDOC to provide the special-education services at issue here would be a wise and just policy, with practical benefits, whereas a llowing some adult inm ates to go without specialeducation services would do a disservice to both those inmates and the public interest. But it is a fundamental principle of our Republic that courts cannot be used to substitute litigants’ “personal preferences of what governm ental policy ought to be for the policies a ctually pr oduced by the representative processes of governm ent” Nat’l Wildlife Fed’n v. Cleveland Cliffs Iron Co. , 684 N.W.2d 800, 820 n.28 (Mich. 2004) (Markm an, J., for the Court). As t he M ichigan Court of Appeals has emphatically stated,
The wi sdom of the principle of judicial restraint expressed by [the Michigan] Supreme Court is self-evident; the notion taht our courts may precipitously intervene in the political arena and preempt a vote of the people is inconsistent with both the role of the courts and the principles of our democracy.
Charter Twp. of Bloomfield v. Oakland Cty. Clerk, 654 N.W.2d 610, 632 (Mich. App. 2002) (citing Senior Accountants, Analysts & Appraisers Ass’n v. City of Detroit, 553 N.W.2d 679, 683 (Mich. App. 1996)).
-23-

Alternatively, MDOC contends that it is entitled to judgment based on collateral estoppel. See MDOC’s Opp’n at 9-10. Specifica lly, MDOC contends that MPAS should be collaterally estopped from arguing a position contrary to theholding of the Circuit Court for InghamCounty in Cain v. MDOC, No. 88-61119-AZ. In Cain, a class of Michigan state prisoners argued that they were entitled to special-education services pursuant to the Michigan School Code.
The record of the instant case initially contained only two short orders from that case. By order dated June 21, 1993, the Honorable James R. Giddings partially granted and partially denied MDOC’s motion for sum mary judgment. The order stated, in per tinent part, “the Defendant’s Motion for Summary Disposition is granted as to Pa ragraph 62 of the Plaintiffs’ Third Am ended Complaint concerning the Michigan Mandatory Special Education Act. For the reason that [the] Act does not im pose any specific duties upon the Michig an Department of Corrections.” MDOC’s Opp’n, Ex. 5. TheCain case was closed by order dated November 4, 2003, wherein Judge Giddings approved a settlement that covered Cain and two other cases. See MDOC’s Opp’n, Ex. 6.
MPAS initially complained that the court cannot determine whether Cain meets the first two criteria for collateral estoppel because we do not know precisely what issue was presented, and what relief was sought, in Cain’s claim(“Paragraph 62 of the Third Amended Complaint”) on which the state court granted summary judgment to MDOC. See MPAS Reply at 4. MPAS was correct in this regard. Accordingly, by order issued April 9, 2008, this court ordered MDOC to file copies of the third amended complaint, the answer thereto, and summary-judgment briefs from Cain, in case the collateral-estoppel issue proved essential to a ruling. MDOC filed theCain documents, and MPAS responded by arguing, inter alia, that it was neither a party to Cain nor in privity with a party and hence cannot be bound by it.
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The disposition of the pending motions on the merits, however, obviates the need to address collateral-estoppel issues. Any collateral estoppel effect of Cain would m erely provide an additional, superfluous basis for the instant ruling.See MDOC’s Opp. at 9-10; MPAS’s MSJ Reply at 4-5.
Order
Having reviewed the third am ended com plaint and the de fendant’s answer thereto, the plaintiff’s summary-judgment brief, the defendant’sopposition brief, the plaintiff’s reply brief, the amicus curiae brief of the Michigan Department of Education, and the defendant’s reply brief:
Plaintiff’s motion for partial summary judgment [#204] is DENIED. Defendant’s motion for partial summary judgment [#206] is GRANTED. Plaintiff’s claim under the Michigan Mandatory Special Education Act is DISMISSED. This is not a final order, because it does not dispose of all issues as to all parties. IT IS SO ORDERED this 8th day of October 2008.
/s/ Paul L. Maloney Honorable Paul L. Maloney Chief United States District Judge
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 Case 5:05-cv-00128-PLM Doc #231 Filed 12/09/09 Page 1 of 5 Page ID#1407

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN PROTECTION & ADVOCACY

SERVICE, INC.,

Case

Plaintiff,

Hon.

v

PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,

Defendant.

No. 5:05-CV-0128 Paul L. Maloney

Mark A. Cody (P42695)

A. Peter Govorchin (P31161)

Michigan Protection & Advocacy Service, Inc. Michigan Department of Attorney General

4095 Legacy Parkway, Suite 500 Corrections

Division

Lansing, MI 48911 P.O.

Box 30217

(517) 487-1755

Lansing,

MI 48909

Attorney for Plaintiff (517)

335-7021

Attorney for Defendant

Robert Fleischner (BBO 171320) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 587-6265 Attorney for Plaintiff

STIPULATION FOR STAY
COME NOW the parties, through their undersigned counsel and stipulate and agree as follows:

1

Case 5:05-cv-00128-PLM Doc #231 Filed 12/09/09 Page 2 of 5 Page ID#1408
1. On August 12, 2008, with the consent of the parties, the Court entered an Order staying this matter through August 31, 2009.
2. The purpose of the stay was to give the parties time to develop, implement, and monitor the terms of an action plan that had been negotiated by the parties under the supervision and assistance of the Magistrate Judge.
3. This action plan details a significant number of measures to be undertaken by the Defendant to address allegations about the treatment of inmates with mental illness, including the allegations in the Plaintiff's amended complaint.
4. By agreement of the parties, the implementation of the action plan has been monitored by the Joint Monitors, Joel Dvoskin, Ph.D., chosen by the Plaintiff and Lee Rome, M.D., chosen by the Defendant.
5. The Joint Monitors have completed five tours of Defendant's facilities and have prepared and distributed a total of six reports to the parties. The Joint Monitors are in the process of preparing a seventh report, following their most recent tour of MDOC facilities.
6. The development and implementation of the action plan, among other of MDOC's activities, has led to significant modifications in the treatment of prisoners with mental illness, including, but not limited to:
A. Improved identification of prisoners with mental illness and thus an increase in referrals to the Corrections Mental Health program for treatment;
B. Fewer prisoners with mental illness being placed in administrative segregation;
2

Case 5:05-cv-00128-PLM Doc #231 Filed 12/09/09 Page 3 of 5 Page ID#1409
C. Training of MDOC staff in understanding mental illness and its signs and symptoms; and
D. Creation of programs to lessen the length of time prisoners are in administrative segregation through providing incentives to segregation prisoners to improve behavior and thereby lessen the need that they be segregated.
7. Notwithstanding this progress, some provisions of the action plan have not been implemented or have been only partially implemented. The Joint Monitors have recommended to the parties and informed the Magistrate Judge that sufficient time has not yet elapsed for them to make an assessment of the effectiveness of all of the provisions of the action plan in improving the treatment of prisoners with mental illness.
8. Most significantly, full compliance with the action plan may require an increase in the number of mental health treatment personnel. The Defendant is making efforts to secure additional staff in addition to other program and organizational changes. However, the Defendants efforts may be impacted by the State's fiscal difficulties.
9. The Joint Monitors and the parties are in agreement that this matter should be stayed an additional year in order to allow the Defendant to fully implement the terms of the action plan.
10. During the time this matter is stayed, ,the Joint Monitors, as set forth in the action plan, will continue in their role of touring facilities, meeting with staff of MDOC and reporting to the parties on the progress of Defendant in meeting its goals under the action plan.
3

Case 5:05-cv-00128-PLM Doc #231 Filed 12/09/09 Page 4 of 5 Page ID#1410
11. At any time during the stay, the Plaintiff may move for a finding that the Defendants are in substantial non-compliance with the action plan or the Defendants may move that the mental health issues in Plaintiff's Amended Complaint have been substantially resolved. The parties or either of them may refer to or otherwise incorporate their most recent Joint Monitors' report, in support of or in opposition to a motion for a finding of substantial compliance or non-compliance. In the event the Court finds the Defendant to be in substantial non-compliance with the action plan, the stay shall be lifted and litigation may recommence pursuant to any orders of the Court. If the Court finds substantial compliance, the case shall be dismissed.
12. Absent a pre-stay expiration finding of non-compliance, the parties agree that the case shall be dismissed without prejudice at the expiration of the stay, except as set forth in the following paragraph.
13. The Plaintiff may present a request for reasonable attorneys' fees to the Defendant no later than 45 days prior to expiration of the stay. The parties agree to negotiate the request in good faith. If the parties cannot agree on an award of attorneys' fees, they shall so inform the Court before the expiration of the stay, in which event the Court shall retain jurisdiction of the case for the sole purpose of considering the Plaintiff's motion for fees. The Plaintiff shall file its motion for attorneys' fees, if any, no later than 30 days after the expiration of the stay. If the case is resolved upon a Defendant’s motion pursuant to paragraph 11 of the stipulation, the Court shall retain jurisdiction under such terms as the Court may order, for resolution of Plaintiff’s request for attorneys’ fees.
4

Case 5:05-cv-00128-PLM Doc #231 Filed 12/09/09 Page 5 of 5 Page ID#1411

WHEREFORE, Plaintiff and Defendant pray this Court to extend the Stay previously issued in this matter for another year, pursuant to the provisions set forth above.

Dated: _12/09/09_________

Subm

itted by,

__s/ Mark A. Cody______________

__s/ A. Peter Govorchin

Mark A. Cody (P42695)

A. Peter Govorchin (P31161)

Michigan Protection & Advocacy Service, Inc. Michigan Department of Attorney General

4095 Legacy Parkway, Suite 500 Corrections

Division

Lansing, MI 48911 P.O.

Box 30217

(517) 487-1755

Lansing,

MI 48909

mcody@mpas.org

(517)

335-7021

govorchinp@michigan.gov

5

 
 Case 5:05-cv-00128-PLM Doc #235 Filed 11/10/10 Page 1 of 5 Page ID#1418

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN PROTECTION & ADVOCACY SERVICE, INC.,
Plaintiff, v
PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,
Defendant.

Case No. 5:05-CV-0128 Hon. Paul L. Maloney

Mark A. Cody (P42695) Michigan Protection & Advocacy Service, Inc. 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755 Attorney for Plaintiff
Robert Fleischner (BBO 171320) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 587-6265 Attorney for Plaintiff

A. Peter Govorchin (P31161) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 Attorney for Defendant

JOINT MOTION FOR A STAY The parties, through their undersigned counsel, jointly move this Honorable Court to extend the stay of litigation in the above captioned matter for six months. In support of their joint motion, the parties respectfully state as follows:
1

Case 5:05-cv-00128-PLM Doc #235 Filed 11/10/10 Page 2 of 5 Page ID#1419
1. On December 17, 2009, with the consent and in accordance with a stipulation of the parties (Doc. 231), the Court stayed this matter for one year. (Doc. 232).
2. In the nearly eleven months since the stay, the parties have continued to work together to further the implementation of the terms of the “action plan” negotiated by the parties under the supervision and assistance of the Magistrate Judge.
3. Pursuant to the terms of the action plan, the Joint Monitors, Joel Dvoskin, Ph.D., and Lee Rome, M.D., have made regular periodic visits to the defendant’s facilities and, with the full cooperation of the defendant, have met and consulted with the defendant’s staff and with prisoners.
4. After each monitoring visit, the Joint Monitors have provided the parties with comprehensive written reports of their efforts and their observations. The reports have noted those provisions of the action plan with which the defendant is in substantial compliance and those provisions with which, in the Joint Monitors’ opinions, the defendant has yet to achieve substantial compliance.
5. The Joint Monitors have scheduled a monitoring visit for the week of November 29, 2010.
6. Based on their prior visits and their continuing contact with the defendant and her staff, the Joint Monitors have informed the parties that they anticipate that their upcoming monitoring visit will result in a determination that the defendant is in substantial compliance with the provisions of the action plan.
7. The Monitor’s anticipated determination of substantial compliance will be made at or very near the end of the term of the current stay, which expires on December 17, 2010.
2

Case 5:05-cv-00128-PLM Doc #235 Filed 11/10/10 Page 3 of 5 Page ID#1420
8. Because some of the policies, practices and programs established by the defendant pursuant to the action plan will have been in place for only a brief time, the Joint Monitors have recommended to the parties that two additional visits are warranted and necessary to determine whether the polices, practices and programs continue, are stable and are working effectively in accordance with the action plan. The Joint Monitors are willing and available to undertake this task and recommend monitoring visits at the end of February 2011 and the end of April 2011.
9. The parties’ attorneys have conferred with their clients and with each other and agree with the Joint Monitors’ recommendations. It is the opinion of the parties that a stay of the nature recommended by the Joint Monitors will be of benefit to the plaintiff and its constituents and to the defendant.
10. The parties agree that during the time this matter is stayed, the Joint Monitors will continue in their role of touring facilities, meeting with staff of MDOC and reporting to the parties on the progress of Defendant in meeting its goals under the action plan.
11. That parties agree that at any time during the stay, the plaintiff may move for a finding that the defendant is in substantial non-compliance with the action plan or the defendant may move that the mental health issues in plaintiff's Amended Complaint have been substantially resolved. The parties or either of them may refer to or otherwise incorporate their most recent Joint Monitors' report, in support of or in opposition to a motion for a finding of substantial compliance or non-compliance. In the event the Court finds the defendant to be in substantial non-compliance with the action plan, the stay shall be lifted and litigation may recommence pursuant to any orders of the Court. If the Court finds substantial compliance, the case shall be dismissed.
3

Case 5:05-cv-00128-PLM Doc #235 Filed 11/10/10 Page 4 of 5 Page ID#1421

12. Absent a pre-stay expiration finding of non-compliance, the parties agree that the

case shall be dismissed with prejudice at the expiration of the stay, except as set forth in the

following paragraph.

13. The plaintiff may present a request for reasonable attorneys' fees to the defendant

prior to expiration of the stay. The parties agree to negotiate the request in good faith. If

the parties cannot agree on an award of attorneys' fees, they shall so inform the Court

before the expiration of the stay, in which event the Court shall retain jurisdiction of the

case for the sole purpose of considering the plaintiff's motion for fees. The plaintiff shall

file its motion for attorneys' fees, if any, no later than 30 days after the expiration of the

stay unless an extension is agreed to by the parties and is approved by the Court. If the

case is resolved upon a defendant’s motion pursuant to paragraph 11 of the stipulation,

the Court shall retain jurisdiction under such terms as the Court may order, for

resolution of plaintiff’s request for attorneys’ fees.

WHEREFORE, the parties jointly move the Court to extend the stay in this matter for

six months until June 17, 2011 in accordance with this joint motion.

Respectf

ully submitted,

The Plaintiff, MICHIGAN PROTECTION AND ADVOCACY SERVICES, By it attorney,

________________________ Mark A. Cody (P42695) Michigan Protection & Advocacy Service, Inc 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755

4

Case 5:05-cv-00128-PLM Doc #235 Filed 11/10/10 Page 5 of 5 Page ID#1422
Robert D. Fleischner (MA BBO 171320) Center for Public Representation 22 Green St. Northampton, MA 01060 413-586-6024 The Defendant, PATRICIA L. CARUSO By her attorneys, s/A. Peter Govorchin________________________ A. Peter Govorchin (31161) Linda M. Olivieri (P27646) Michigan Dept. of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021
5

 
 Case 5:05-cv-00128-PLM Doc #238 Filed 06/17/11 Page 1 of 3 Page ID#1431

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN PROTECTION & ADVOCACY

SERVICE, INC.,

Case

Plaintiff,

Hon.

v

PATRICIA L. CARUSO, in her official capacity as Director, Michigan Department of Corrections,

Defendant.

No. 5:05-CV-0128 Paul L. Maloney

Mark A. Cody (P42695) Michigan Protection & Advocacy Service, Inc. Attorney for Plaintiff Corrections 4095 Legacy Parkway, Suite 500 Lansing, MI 48911 (517) 487-1755 (517) Robert Fleischner (BBO 171320) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 587-6265 Attorney for Plaintiff

A. Peter Govorchin (P31161) Assistant Attorney General
Division Attorney for Defendant P.O. Box 30217 Lansing, MI 48909
335-7021

STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE NOW COME Michigan Protection and Advocacy Service, Inc. (MPAS), Plaintiff, and Patricia Caruso in her official capacity as Director of the Michigan Department of Corrections, Defendant, by their undersigned counsel and to the Court state: 1. Since August 22, 2007, Lee H. Rome, M.D., and Joel Dvoskin, Ph.D., have acted in the capacities of Joint Monitors to oversee Defendant's efforts to address the issues raised by
1

Case 5:05-cv-00128-PLM Doc #238 Filed 06/17/11 Page 2 of 3 Page ID#1432

Plaintiff in its Complaint, as amended, regarding the treatment of certain inmates with mental illness and/or special education needs.
2. The final report of the Joint Monitors attesting that those claims have been resolved will be submitted to the court within one week of today.
3. The issue of Plaintiff's claim for attorneys' fees and costs has not yet been resolved.
4. Pursuant to the Joint Motion filed on November 10, 2010 and approved by this Court on November 16, 2010, this Court retains jurisdiction over the issue of Plaintiff's claim for attorney fees and costs.
5. If the parties are unable to resolve the issue of Plaintiff's claim for attorney fees and costs, a Motion for Attorneys' Fees and Costs will be filed with this Court within thirty (30) days of June 17, 2011.
6. The parties now agree that this matter should be dismissed, with prejudice, except for the issue of attorneys' fees and costs.
WHEREFORE, the parties pray this Court to dismiss the Plaintiff's claim(s) with prejudice, retaining jurisdiction solely to decide the issue of Plaintiff's claim for attorneys' fees and costs, should the parties not be able to resolve that matter. Submitted by:

s/with consent of Mark A. Cody

Mark A. Cody

Michigan Protection & Advocacy Service, Inc.

4095 Legacy Parkway, Suite 500

Lansing, MI 48911 Lansing,

(517) 487-1755

(517)

mcody@mpas.org

P42695

P31161

Dated: June 17, 2011

s/A. Peter Govorchin Assistant Attorney General Corrections Division P.O. Box 30217
MI 48909 335-7021 govorchinp@michigan.gov
Dated: June 17, 2011

2

Case 5:05-cv-00128-PLM Doc #238 Filed 06/17/11 Page 3 of 3 Page ID#1433

s/with consent of Robert Fleischner Robert Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 587-6265 RFleischner@cpr-ma.org BBO 171320
Dated: June 17, 2011

IT IS SO ORDERED.

ORDER

Dated:_________________

Honorable Paul L. Mahoney U.S. District Court Judge

3

 
 Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 1 of 18
CLOSED,SEALEDDOC(S)
United States District Court Western District of Michigan (Southern Division (5)) CIVIL DOCKET FOR CASE #: 5:05−cv−00128−PLM

Michigan Protection &Advocacy Service, Inc. v. Caruso Assigned to: Chief Judge Paul L. Maloney Cause: 28:1343 Violation of Civil Rights
plaintiff

Date Filed: 09/14/2005 Date Terminated: 07/14/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Michigan Protection and Advocacy Service, Inc.

represented by Mark A. Cody Michigan Protection &Advocacy Service Inc. (Lansing) 4095 Legacy Pkwy., Ste. 500 Lansing, MI 48911 (517) 487−1755 Email: mcody@mpas.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Dixon Fleischner Center for Public Representation 22 Green St. Northampton, MA 01060 (413) 587−6265 Email: RFleischner@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Ann Hickox Michigan Protection &Advocacy Service Inc. (Lansing) 4095 Legacy Pkwy., Ste. 500 Lansing, MI 48911 (517) 487−1755 Email: shickox@mpas.org TERMINATED: 08/16/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abraham Singer Pepper Hamilton LLP (Southfield) 4000 Town Center, Ste. 1800 Southfield, MI 48075−1505 (248) 359−7300 Fax: (248) 359−7382 Email: Abraham.Singer@kitch.com ATTORNEY TO BE NOTICED

Michael J. Steinberg ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201−3035 (313) 578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Thomas G. Cecil Michigan Protection &Advocacy Service Inc. (Lansing)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 2 of 18
4095 Legacy Pkwy., Ste. 500 Lansing, MI 48911 (517) 487−1755 Fax: (517) 487−0827 Email: tomcecillaw@hotmail.com ATTORNEY TO BE NOTICED

V. defendant Patricia L. Caruso in her official capacity as Director, Michigan Department of Corrections
defendant Frank Elo Warden, Michigan Youth Correctional Facility TERMINATED: 10/10/2005 defendant GEO Group, Inc., The a Florida corporation doing business in Michigan TERMINATED: 10/10/2005 amicus Michigan Department of Education

represented by Leo H. Friedman MI Dept Attorney General (Corrections) Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335−7021 Email: friedmanL@michigan.gov TERMINATED: 12/06/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda M. Olivieri MI Dept Attorney General (Corrections) Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335−7021 Email: cheno7@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin MI Dept Attorney General (Corrections) Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335−7021 Fax: (517) 335−7157 Email: govorchinp@michigan.gov ATTORNEY TO BE NOTICED
represented by William R. Morris MI Dept Attorney General (Education/Social Services) Education &Social Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373−7700 Email: morrisw@michigan.gov

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 3 of 18
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/14/2005 09/14/2005 09/14/2005 10/07/2005 10/07/2005 10/07/2005 10/10/2005 10/10/2005 10/17/2005 10/17/2005 10/19/2005 10/25/2005 10/25/2005 10/26/2005 12/09/2005 12/09/2005 12/09/2005
12/12/2005

# Docket Text
1 COMPLAINT for declaratory and injunctive relief against Patricia L. Caruso, Frank Elo, GEO Group, Inc., The filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Civil Cover Sheet) (rlw, ) (Entered: 09/16/2005)
RECEIPT: in the amount of $250.00, receipt number 107306; for filing fee (rlw, ) (Entered: 09/16/2005)
SUMMONS ISSUED as to Patricia L. Caruso, Frank Elo, GEO Group, Inc., The (rlw, ) (Entered: 09/16/2005)
2 ATTORNEY APPEARANCE of Linda M. Olivieri on behalf of defendant Patricia L. Caruso with certificate of service (Olivieri, Linda) Modified text on 10/7/2005 (acr, ). (Entered: 10/07/2005)
3 ATTORNEY APPEARANCE of Leo H. Friedman on behalf of defendant Patricia L. Caruso with certificate of service (Friedman, Leo) Modified text on 10/7/2005 (acr, ). (Entered: 10/07/2005)
6 SUMMONS returned executed; Patricia L. Caruso served on 9/30/2005, answer due 10/20/2005; The GEO Group, Inc. served on 9/29/05 (acr, ) Modified text on 10/13/2005 (acr, ). (Entered: 10/13/2005)
4 NOTICE OF VOLUNTARY DISMISSAL re The GEO Group, Inc. and Frank Elo (Hickox, Stacy) (Entered: 10/10/2005)
5 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 4 (Hickox, Stacy) (Entered: 10/10/2005)
7 STIPULATION of Plaintiff and Defendant Caruso for Order Granting Enlargement of Time by defendant Patricia L. Caruso (Attachments: # 1 Attachment Signed Stip for Enlg) (Friedman, Leo) (Entered: 10/17/2005)
8 PROPOSED ORDER regarding Granting Stipulation of Plaintiff and Defendant Caruso for Enlargement of Time by defendant Patricia L. Caruso (Friedman, Leo) (Entered: 10/17/2005)
9 ORDER disapproving STIPULATION 7 ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 10/19/2005)
10 STIPULATION of Plaintiff and Defendant Caruso for Order Granting Enlargement of Time by defendant Patricia L. Caruso (Attachments: # 1 Attachment Signed Stip) (Friedman, Leo) (Entered: 10/25/2005)
11 PROPOSED ORDER regarding Granting Enlargement of Time by defendant Patricia L. Caruso (Friedman, Leo) (Entered: 10/25/2005)
12 ORDER granting STIPULATION 10 ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 10/26/2005)
13 (WITHDRAWN) MOTION for summary judgment by defendant Patricia L. Caruso; (Friedman, Leo) Modified text on 2/7/2006 (Motion withdrawn pursuant to Order, docket #28) (bd, ). (Entered: 12/09/2005)
14 BRIEF in support of 13 Motion for Summary Judgment filed by Patricia L. Caruso (Attachments: # 1 Attachment 1 − Caruso Affidavit) (Friedman, Leo) (Entered: 12/09/2005)
15 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 13 Motion for Summary Judgment and 14 Brief in Support of Motion for Summary Judgment with Attachment 1 − Affidavit of Patricia Caruso (Friedman, Leo) (Entered: 12/09/2005)
16 ORIGINAL PAPER AFFIDAVIT of Patricia L. Caruso in reference to the affidavit submitted electronically and assigned document number 14 as Attachment 1 ;

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 4 of 18

12/15/2005 12/15/2005 12/15/2005 01/05/2006 01/06/2006
01/11/2006 01/11/2006 01/25/2006 01/25/2006 01/25/2006 02/06/2006 02/07/2006 02/08/2006 02/08/2006
02/08/2006 02/21/2006
02/21/2006

submitted for filing by defendant Patricia L. Caruso (rlw, ) (Entered: 12/12/2005)
17 FIRST MOTION to amend/correct by plaintiff Michigan Protection &Advocacy Service, Inc.; (Attachments: # 1 Proposed Document Proposed Amended Complaint) (Hickox, Stacy) (Entered: 12/15/2005)
18 BRIEF in support of 17 First Motion to Amend Complaint filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 12/15/2005)
19 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 17 (Hickox, Stacy) (Entered: 12/15/2005)
20 PROPOSED STIPULATION and ORDER Re: Enlargement of Time to File Response to Motion for Summary Judgment by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 01/05/2006)
21 ORDER granting STIPULATION 20 ; Plaintiff's response to Defendant's Motion for Summary Judgment is due no later than February 9, 2006 ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 01/06/2006)
22 ORDER granting 17 plaintiff's motion to amend complaint; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 01/11/2006)
23 AMENDED COMPLAINT for Declatory and Injunctive Relief against Patricia L. Caruso filed by Michigan Protection &Advocacy Service, Inc. (bd, ) (Entered: 01/20/2006)
24 MOTION for partial summary judgment and for More Definitive Statement by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 01/25/2006)
25 BRIEF in support of 24 Motion for More Definitive Statement and Partial Summary Judgment filed by Patricia L. Caruso (Friedman, Leo) (Entered: 01/25/2006)
26 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 24 Motion for More Definitive Statement and Partial Summary Judgment, together with Brief in Support (Friedman, Leo) (Entered: 01/25/2006)
27 MOTION to withdraw 13 motion for summary judgment (in letter form) by defendant Patricia L. Caruso; (acr, ) (Entered: 02/06/2006)
28 ORDER granting 27 defendant's motion to withdraw, withdrawing 13 defendant's motion for summary judgment; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 02/07/2006)
29 FIRST MOTION for protective order by plaintiff Michigan Protection &Advocacy Service, Inc.; (Attachments: # 1 Proposed Order Proposed Protective Order and Order to Seal the File in this Case) (Hickox, Stacy) (Entered: 02/08/2006)
30 RESPONSE to motion re 24 Plaintiff's Response to Defendant's Motion for More Definitive Statement and Brief in Support of Motion for Protective Order filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 02/08/2006)
31 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 29 (Hickox, Stacy) (Entered: 02/08/2006)
32 RESPONSE in opposition re 24 Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 13 − MDOC Policy Directive 05.02.114# 2 Exhibit 14 − Letter to Stacy Hickox from Joe Gomez dated 5/6/05# 3 Exhibit 15 − MDOC Investigation Report dated 5/4/05) (Hickox, Stacy) Modified text on 2/23/2006 (bd, ). (Entered: 02/21/2006)
33 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 32 (Hickox, Stacy) (Entered: 02/21/2006)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 5 of 18

02/21/2006 02/21/2006 02/21/2006 02/22/2006 02/22/2006 02/22/2006 02/22/2006 02/24/2006 02/24/2006 02/24/2006 04/10/2006 04/10/2006
04/10/2006
04/24/2006
04/24/2006 04/24/2006 04/25/2006

34 MOTION to SEAL DOCUMENT by plaintiff Michigan Protection &Advocacy Service, Inc.; (Attachments: # 1 Proposed Order Order to Seal Documents) (Hickox, Stacy) (Entered: 02/21/2006)
35 BRIEF in support of 34 filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 02/21/2006)
36 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 34 (Hickox, Stacy) (Entered: 02/21/2006)
37 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 02/22/2006)
38 RESPONSE to motion re 29 Protective Order filed by Patricia L. Caruso (Olivieri, Linda) (Entered: 02/22/2006)
39 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 38 Response to Motion for a Protective Order (Olivieri, Linda) (Entered: 02/22/2006)
43 SEALED EXHIBITS 1−12 re 32 Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment by plaintiff Michigan Protection &Advocacy Service, Inc. (bd, ) Modified text on 2/27/2006 (bd, ). (Entered: 02/27/2006)
40 ORDER granting 34 plaintiff's motion to seal document; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 02/24/2006)
41 RESPONSE to motion re 34 Defendant Caruso's Response to Plaintiff's Motion to Seal Documents filed by Patricia L. Caruso (Friedman, Leo) Modified text on 2/24/2006 (mbb, ). (Entered: 02/24/2006)
42 PROOF OF SERVICE by defendant Patricia L. Caruso to be linked to docket entry 41 (Friedman, Leo) (Entered: 02/24/2006)
44 OPINION; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 04/10/2006)
45 ORDER granting in part and denying in part 24 defendant's motion for a more definite statement and for partial summary judgment, granting defendant's request for a more definite statement, denying without prejudice defendant's requesst for summary judgment; granting 29 plaintiff's motion for protective order, Plaintiff shall provide a more definite statement within 14 days by filing a Second Amended Complaint, which Complaint shall name prisoners by anonymous numbers, but shall reference a sealed appendix which appendix shall indicate the names and prisoner numbers assigned to the persons named by anonymous number, and which appendix shall be filed under seal and disclosed to defense counsel; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, blb) (Entered: 04/10/2006)
46 ORDER setting Rule 16 scheduling conference for 5/24/2006 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; status report due by 5/19/2006 ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 04/10/2006)
47 AMENDED COMPLAINT Second Amended Complaint against Patricia L. Caruso filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 1 − Letter to Straub from Gomez dated 3/28/06) (Hickox, Stacy) Modified text on 4/26/2006 (bd, ). (Entered: 04/24/2006)
48 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 47 (Hickox, Stacy) (Entered: 04/24/2006)
52 SEALED APPENDIX re 47 Second Amended Complaint for Declaratory and Injunctive Relief by plaintiff Michigan Protection &Advocacy Service, Inc. (bd, ) Modified text on 4/27/2006 (bd, ). (Entered: 04/27/2006)
49 MOTION for extension of time to file a responsive pleading by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 04/25/2006)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 6 of 18

04/25/2006 04/25/2006 05/08/2006 05/08/2006 05/19/2006 05/19/2006 05/24/2006 05/26/2006 05/26/2006 05/26/2006 06/02/2006 06/05/2006
06/07/2006
06/07/2006 06/08/2006 06/08/2006 06/13/2006 06/16/2006

50 BRIEF in support of 49 Motion for Enlargement of Time to File a Responsive Pleading filed by Patricia L. Caruso (Friedman, Leo) (Entered: 04/25/2006)
51 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 49 for Defendant's Motion and Brief for Enlargment of Time in which to File a Responsive Pleading (Friedman, Leo) (Entered: 04/25/2006)
53 RESPONSE in opposition re 49 Plaintiff's Opposition to Defendant's Motion for Enlargement of Time in which to File Responsive Pleading filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 05/08/2006)
54 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 53 (Hickox, Stacy) (Entered: 05/08/2006)
55 JOINT STATUS REPORT (Hickox, Stacy) (Entered: 05/19/2006)
56 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 55 (Hickox, Stacy) (Entered: 05/19/2006)
57 MINUTES of scheduling conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 05/24/2006)
58 MOTION to take deposition from Prisoners Identified in Appendix to Second Amended Complaint by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 05/26/2006)
59 BRIEF in support of 58 Motion to take deposition from Prisoners Identified in Appendix to Second Amended Complaint filed by Patricia L. Caruso (Friedman, Leo) (Entered: 05/26/2006)
60 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 58 Motion to take deposition from Prisoners Identified in Appendix to Second Amended Complaint and 59 Brief in Support (Friedman, Leo) (Entered: 05/26/2006)
61 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 06/02/2006)
62 ORDER granting 49 Defendant's Motion for Enlargement of Time to File Responsive Pleading; Defendant's response to the Second Amended Complaint will be due 6/12/2006; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 06/05/2006)
63 CASE MANAGEMENT ORDER: bench trial set for 3/17/2008 at 08:30 AM at 174 Federal Building, Kalamazoo, MI before Senior Judge Richard Alan Enslen; settlement conference set for 9/15/2006 at 02:00 PM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; final pretrial conference set for 2/5/2008 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 06/07/2006)
64 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Rule 26(a)(1) Disclosures) (Hickox, Stacy) (Entered: 06/07/2006)
65 ANSWER to second amended complaint for declaratory and injunctive relief; affirmative defenses by Patricia L. Caruso (Friedman, Leo) Modified text on 6/12/2006 (bd, ). (Entered: 06/08/2006)
66 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 65 Defendant's Answer to Second Amended Complaint for Declaratory and Injunctive Relief; Affirmative Defenses (Friedman, Leo) (Entered: 06/08/2006)
67 ORDER granting 58 Defendant's motion for leave to take depositions of prisoners; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 06/13/2006)
68 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re service of (1) Defendant's First Set of Interrogatories and Request to Produce, and (2) Defendant's First Request for Production of Documents (Friedman, Leo) (Entered: 06/16/2006)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 7 of 18

06/30/2006 06/30/2006 07/10/2006 07/17/2006 07/20/2006 07/21/2006 08/02/2006 08/07/2006 08/07/2006
08/08/2006 08/09/2006
08/09/2006 08/09/2006
08/11/2006 08/14/2006 08/24/2006
08/25/2006 08/25/2006 08/25/2006

69 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso confirming service of Defendant's Responses to Plaintiff's First Request for Production or Inspection of Documents (Friedman, Leo) (Entered: 06/30/2006)
70 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso confirming service of Defendant's Fed R Civ P 26(a)(1) Disclosure (Friedman, Leo) (Entered: 06/30/2006)
71 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso confirming service of fully signed copy of Defendant's Responses to Plaintiff's First Request for Production or Inspection of Documents (Friedman, Leo) (Entered: 07/10/2006)
72 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 07/17/2006)
73 ORDER regarding 9/15/2006 settlement conference; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 07/20/2006)
74 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso confirming service of Defendant's Supplemental Response to Plaintiff's First Request for Production or Inspection of Documents (Friedman, Leo) (Entered: 07/21/2006)
75 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. Plaintiff's First Set of Interrogatories and Second Request for Production or Inspection of Documents (Hickox, Stacy) (Entered: 08/02/2006)
76 MOTION for protective order by plaintiff Michigan Protection &Advocacy Service, Inc.; (Attachments: # 1 Proposed Order Protective Order and Order to Seal the File in This Case) (Cody, Mark) (Entered: 08/07/2006)
77 MEMORANDUM in support of 76 Memorandum of Law in Support of Plaintiff's Motion for Second Protective Order filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Index of Exhibits# 2 Exhibit 9# 3 Exhibit 10) (Cody, Mark) Modified text on 8/8/2006 (bd, ). (Entered: 08/07/2006)
78 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 08/08/2006)
79 NOTICE OF MOTION HEARING regarding document number 76 : motion hearing is set for 8/29/2006 at 09:30 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/09/2006)
80 SEALED document (acr, ) (Entered: 08/11/2006)
81 ORIGINAL PAPER AFFIDAVIT of Sara Koroniotis in reference to the affidavit submitted electronically and assigned document number 77 memorandum in support of motion (exhibit 9) ; submitted for filing by plaintiff Michigan Protection &Advocacy Service, Inc. (acr, ) (Entered: 08/11/2006)
82 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 08/11/2006)
83 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 08/14/2006)
84 RESPONSE to motion re 76 named as Defendants' Response to Plaintiff's Motion for Second Protective Order filed by Patricia L. Caruso (Attachments: # 1 Exhibit A − Dep Dir Straub Affidavit# 2 Exhibit B − Response to Affs for 2d Prot Order.082406) (Olivieri, Linda) (Entered: 08/24/2006)
85 MOTION to SEAL DOCUMENT by defendant Patricia L. Caruso; (Olivieri, Linda) (Entered: 08/25/2006)
86 BRIEF in support of 85 Motion to Seal Documents filed by Patricia L. Caruso (Olivieri, Linda) (Entered: 08/25/2006)
87 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso for Proposed Sealed Affidavits and Attachments in Response to Plaintiff's Motion for Second Protective Order via hand delivery (Olivieri, Linda) (Entered: 08/25/2006)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 8 of 18

08/28/2006
08/28/2006 08/29/2006 08/29/2006 08/29/2006 08/29/2006
08/30/2006 08/31/2006
09/01/2006
09/06/2006
09/11/2006 09/15/2006 09/22/2006
09/22/2006
09/22/2006 09/27/2006 10/19/2006

88 RESPONSE to motion re 76 named as Defendant's Supplemental Response to Plaintiff's Motion for Second Protective Order filed by Patricia L. Caruso (Attachments: # 1 Attachment Dennis Straub Affidavit.082806) (Olivieri, Linda) (Entered: 08/28/2006)
93 SEALED document (acr, ) (Entered: 08/30/2006)
89 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 08/29/2006)
90 MINUTES of in chambers conference re motions 76 , 85 held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, mdr) (Entered: 08/29/2006)
91 ORDER granting 85 Defendant Caruso's Motion to Seal Documents; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/29/2006)
92 NOTICE OF EVIDENTIARY HEARING regarding document number 76 : EVIDENTIARY motion hearing is set for 10/5/2006 at 09:30 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/29/2006)
96 SEALED document (bd, ) (Entered: 09/05/2006)
94 ORIGINAL PAPER AFFIDAVIT of Dennis Straub in reference to the affidavit submitted electronically and assigned document number 84 response to motion for second protective order (Exhibit A) ; submitted for filing by defendant Patricia L. Caruso (acr, ) (Entered: 09/01/2006)
95 ORIGINAL PAPER AFFIDAVIT of Dennis Straub in reference to the affidavit submitted electronically and assigned document number 88 ; submitted for filing by defendant Patricia L. Caruso (Attachments:, # 1 Attachment) (bd, ) (Entered: 09/01/2006)
97 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re service of Defendant's Responses to Plaintiff's First Set of Interrogatories and Defendant's Responses to Plaintiff's Second Request for Production or Inspection of Documents (Friedman, Leo) (Entered: 09/06/2006)
98 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 09/11/2006)
99 MINUTES of settlement conference held before Magistrate Judge Ellen S. Carmody; case did not settle(Proceedings Digitally Recorded) (Magistrate Judge Ellen S. Carmody, mdr) (Entered: 09/15/2006)
100 ORDER regarding continued settlement conference: Discovery and motion practice in this case are STAYED for a period of 120 days from the date of this order; the evidentiary hearing set for 10/5/2006 on Plaintiff's motion for a second protective order 76 is CANCELLED; continued settlement conference set for 1/4/2007 and 1/5/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 09/22/2006)
101 NOTICE of filing of Supplemental Affidavit in Support of 76 Motion for Second Protective Order by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) Modified to include numerical link on 9/26/2006 (acr, ). (Entered: 09/22/2006)
102 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 101 (Hickox, Stacy) (Entered: 09/22/2006)
103 SEALED document re 76 titled "Supplemental Affidavit in Support of Motion for Second Protective Order" filed by Michigan Protection &Advocacy Service, Inc. (bd, ) (Entered: 09/27/2006)
104 MOTION for extension of time to File Expert's Written Report by plaintiff Michigan Protection &Advocacy Service, Inc.; (Cody, Mark) (Entered:

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 9 of 18

10/24/2006
11/02/2006 11/03/2006 11/06/2006
11/06/2006
11/06/2006
11/06/2006 11/06/2006
11/07/2006 11/07/2006 11/07/2006 11/07/2006 11/07/2006 11/08/2006
11/08/2006
11/08/2006

10/19/2006)
105 NOTICE OF EVIDENTIARY HEARING regarding Plaintiff's Motion for a Second Protective Order 76 : hearing is set for 11/21/2006 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 10/24/2006)
106 MOTION for writ of habeas corpus by plaintiff Michigan Protection &Advocacy Service, Inc.; (Attachments: # 1 Proposed Order) (Cody, Mark) (Entered: 11/02/2006)
107 ORDER granting 104 Plaintiff's Motion for Extension of Time to File Expert Report for Settlement Purposes; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/03/2006)
108 RESPONSE to motion re 106 entitled "Defendant's Response in Opposition to Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference" filed by Patricia L. Caruso (Friedman, Leo) (Entered: 11/06/2006)
109 BRIEF by defendant Patricia L. Caruso re 108 entitled "Brief in Support of Defendant's Response in Opposition to Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference" (Friedman, Leo) (Entered: 11/06/2006)
110 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 108 Defendant's Response in Opposition to Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference (Friedman, Leo) (Entered: 11/06/2006)
116 SEALED document re 106 filed by plaintiff MI Protection &Advocacy Service, Inc. (bd, ) (Entered: 11/07/2006)
117 STATUS REPORT submitted for filing by plaintiff Michigan Protection &Advocacy Service, Inc. titled as "Settlement Conference Report of Joel Dvoskin, Ph.D. in Accordance with Order of September 22, 2006" submitted by Joel Dvoskin, Ph.D. (Attachments:, # 1 Attachment) (bd, ) (Entered: 11/08/2006)
111 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 11/07/2006)
112 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 106 (Cody, Mark) (Entered: 11/07/2006)
113 NOTICE re 76 of filing of Additional Supplemental Affidavit in Support of Motion for Second Protective Order by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 11/07/2006)
114 SUPPLEMENTAL MOTION for writ of habeas corpus by plaintiff Michigan Protection &Advocacy Service, Inc.; (Cody, Mark) (Entered: 11/07/2006)
115 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 11/07/2006)
118 RESPONSE to motion re 114 entitled "Defendant's Response in Opposition to Plaintiff's Petition for Writ of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference and Brief in Support" filed by Patricia L. Caruso (Friedman, Leo) (Entered: 11/08/2006)
119 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 118 Defendant's Response in Opposition to Plaintiff's Petition for Writ of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference and Brief in Support (Friedman, Leo) (Entered: 11/08/2006)
120 RESPONSE in support re 106 of Petition for Writs of Habeas Corpus Ad Testificandum and in Opposition to Motion to Present Witnesses by Video Conference filed by Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 11/08/2006)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 10 of 18

11/08/2006 11/08/2006 11/09/2006
11/13/2006 11/13/2006 11/14/2006 11/14/2006 11/14/2006
11/15/2006
11/15/2006 11/15/2006
11/16/2006 11/16/2006 11/16/2006 11/16/2006
11/16/2006 11/16/2006

121 SEALED document re 76 and 113 filed by plaintiff MI Protection &Advocacy Service, Inc. (bd, ) (Entered: 11/09/2006)
122 SEALED document re 45 filed by plaintiff MI Protection &Advocacy Service, Inc. (bd, ) (Entered: 11/09/2006)
123 ORDER denying 106 , 114 Plaintiff's Petitions for Writ of Habeas Corpus, granting 108 , 118 Defendants' Motions to Present Certain Witnesses by Video Conference; the Department of Corrections shall coordinate with the Court's IT Department to ensure that any incarcerated witness is available for testimony by video conference when needed by Plaintiff; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/09/2006)
124 MOTION to strike the November 7, 2006 Prisoner Affidavit Filed in Support of Plaintiff's Motion for Protective Order and Brief in Support by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 11/13/2006)
125 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re 124 (Friedman, Leo) (Entered: 11/13/2006)
126 SUPPLEMENTAL MOTION to SEAL Documents by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 11/14/2006)
127 BRIEF in support of 126 Supplemental Motion to Seal Documents filed by Patricia L. Caruso (Friedman, Leo) (Entered: 11/14/2006)
128 RESPONSE to motion re 124 Defendant's Motion to Strike the November 7, 2006 Prisoner Affidavit Filed in Support of Plaintiff's Motion for Protective Order and Brief in Support filed by Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 11/14/2006)
129 RESPONSE in support re 124 named as Defendant's Reply in Support of Motion to Strike the November 7, 2006 Prisoner Affidavit Filed in Support of Plaintiff's Motion for Protective Order and Brief in Support filed by Patricia L. Caruso (Friedman, Leo) (Entered: 11/15/2006)
130 MOTION for extension of time to Respond to Plaintiff's Expert Report and to Adjourn the Settlement Conference and Brief in Support by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 11/15/2006)
139 SEALED document titled "Supplemental Sealed Affidavits and Attachments in Response to Plaintiff's Motion for Second Protective Order" re 84 , 88 filed by defendant Patricia Caruso (bd, ) Modified text on 11/17/2006 (bd, ). (Entered: 11/17/2006)
131 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. Settlement Letter (Cody, Mark) (Entered: 11/16/2006)
132 SECOND MOTION to SEAL Affidavits and Attachments in Response to Plaintiffs' Motion for Second Protective Order by defendant Patricia L. Caruso; (Friedman, Leo) (Entered: 11/16/2006)
133 BRIEF in support of 132 with Proof of Service thereon filed by Patricia L. Caruso (Attachments: # 1 Attachment Seal Cover) (Friedman, Leo) (Entered: 11/16/2006)
134 ORDER denying 124 Defendant's Motion to Strike the 11/7/2006 Prisoner Affidavit Filed in Support of Plaintiff's Motion for Protective Order; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/16/2006)
135 ORDER granting 126 , granting 132 Defendant Caruso's Supplemental Motion and Second Supplemental Motion to Seal Documents; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/16/2006)
136 ORDER: By 5:00 p.m. on Friday, 11/17/2006, each party shall deliver to the Grand Rapids chambers of Magistrate Judge Ellen S. Carmody one indexed hearing notebook containing all documentation submitted by that party relating to Plaintiff's Motion for Second Protective Order 76 , whether such documentation has been filed under seal or not under seal; signed by Magistrate Judge Ellen S.

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 11 of 18

11/17/2006 11/17/2006 11/17/2006 11/20/2006 11/20/2006 11/20/2006 11/21/2006 11/21/2006 11/22/2006 11/30/2006 12/06/2006
12/06/2006
12/06/2006 12/13/2006 12/22/2006

Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/16/2006)
137 MEMORANDUM in support of 76 of its Motion for Second Protective Order filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 11/17/2006)
138 RESPONSE to motion re 130 for Extension of Time to Respond to Plaintiff's Expert Report and to Adjourn the Settlement Conference and Brief in Support filed by Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 11/17/2006)
140 SEALED document titled "Supplemental Sealed Affidavits and Attachments in Response Second to Plaintiff's Motion for Second Protective Order" re 84 88 filed by defendant Patricia L. Caruso (bd, ) (Entered: 11/20/2006)
141 AMENDED COMPLAINT Third Amended Complaint against Patricia L. Caruso filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 1 − March 28, 2006 MDOE Decision) (Hickox, Stacy) Modified text on 11/22/2006 (bd, ). (Entered: 11/20/2006)
142 PROOF OF SERVICE by plaintiff Michigan Protection &Advocacy Service, Inc. re 141 (Hickox, Stacy) (Entered: 11/20/2006)
145 LETTER from Leo H. Friedman for defendant Patricia L. Caruso regarding sealed document (attached) (Attachments:, # 1 Sealed Document) (bd, ) (Entered: 11/22/2006)
143 MINUTES of evidentiary hearing held before Magistrate Judge Ellen S. Carmody (Proceedings Digitally Recorded) (Magistrate Judge Ellen S. Carmody, mdr) (Entered: 11/21/2006)
146 SEALED document by defendant Patricia Caruso re 141 (bd, ) (Entered: 11/22/2006)
144 MINUTES of evidentiary hearing (day two) held before Magistrate Judge Ellen S. Carmody (Proceedings Digitally Recorded) (Magistrate Judge Ellen S. Carmody, mdr) (Entered: 11/22/2006)
147 PROPOSED ORDER regarding 30−day extension of time to file response to Pl's Third Amended Complaint by defendant Patricia L. Caruso (Friedman, Leo) (Entered: 11/30/2006)
148 ORDER granting 130 Defendant's Motion for Extension of Time to Respond to Plaintiff's Expert Report and to Adjourn the Settlement Conference; the continued Settlement Conference is rescheduled to 3/1/2007 − 3/2/2007 at 9:00 a.m. with Magistrate Judge Ellen S. Carmody in Grand Rapids, 401 Federal Building; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/06/2006)
149 CORRECTED ORDER granting 130 Defendant's Motion for Extension of Time to Respond to Plaintiff's Expert Report and to Adjourn the Settlement Conference; the continued Settlement Conference is rescheduled to 3/1/2007 − 3/2/2007 at 9:00 a.m. with Magistrate Judge Ellen S. Carmody in Grand Rapids, 401 Federal Building; signed by Magistrate Judge Ellen S. Carmody (corrected as to date of ordered reply only) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/06/2006)
150 ORDER granting PROPOSED ORDER 147 ; Defendant shall have an additional 30 days to file a response to Plaintiff's Third Amended Complaint for Declaratory and Injunctive Relief; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/06/2006)
151 STIPULATION and PROPOSED ORDER by plaintiff Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Proposed Order # 2 Attachment Notice of the Prohibition Against Retaliation) (Hickox, Stacy) (Entered: 12/13/2006)
152 PROTECTIVE ORDER granting STIPULATION 151 , resolving 76 plaintiff's motion for a second protective order; signed by Magistrate Judge Ellen S. Carmody (Attachments:, # 1 Attachment Notice of Prohibition Against Retaliation)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 12 of 18

01/10/2007
02/01/2007 02/01/2007
02/05/2007 02/09/2007
02/12/2007
02/14/2007 02/14/2007 02/14/2007 02/22/2007
03/02/2007 03/02/2007
03/05/2007 03/06/2007 03/12/2007 03/13/2007

(Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/22/2006)
153 ANSWER to amended complaint entitled "Defendant's Answer to Third Amended Complaint for Declaratory and Injunctive Relief; Affirmative Defenses" by Patricia L. Caruso (Friedman, Leo) Modified text on 1/12/2007 (bd, ). (Entered: 01/10/2007)
154 MOTION for order to show cause by plaintiff Michigan Protection &Advocacy Service, Inc.; (Hickox, Stacy) (Entered: 02/01/2007)
155 MEMORANDUM in support of Motion for Order to Show Cause 154 filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 1 − Protective Order)(Hickox, Stacy) Modified text on 2/5/2007 (bd, ). (Entered: 02/01/2007)
156 SEALED document (Exhibit 1 re 155 ) filed by plaintiff Michigan Protection &Advocacy Service, Inc. (bd) (Entered: 02/07/2007)
157 (WITHDRAWN) MOTION to unseal document by plaintiff Michigan Protection &Advocacy Service, Inc.; (Hickox, Stacy) Modified text on 2/13/2007 (bd, ). Modified text on 3/6/2007 to reflect this Motion is withdrawn pursuant to Order, docket # 166 (bd, ). (Entered: 02/09/2007)
158 AFFIDAVIT in support of Motion for Order to Show Cause 154 Notice of Supplemental Affidavits in Support of Motion for Order to Show Cause filed by Michigan Protection &Advocacy Service, Inc.(Hickox, Stacy) (Entered: 02/12/2007)
159 TRANSCRIPT of Evidentiary Hearing held November 21, 2006 before Hon. Ellen S. Carmody, US Mag. Judge (Transcriptionist: Pritchard, Pat) (Entered: 02/14/2007)
160 TRANSCRIPT of Continued Evidentiary Hearing held November 22, 2006 before Hon. Ellen S. Carmody, US Mag. Judge (Transcriptionist: Pritchard, Pat) (Entered: 02/14/2007)
161 SEALED document− re 158 attachment to the notice of supplemental affidavits in support of motion to show cause (mrs) (Entered: 02/14/2007)
162 NOTICE of settlement conference rescheduled to 3/2/2007 and 3/5/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) Modified text on 2/23/2007 (bd, ). (Entered: 02/22/2007)
163 MINUTES of settlement conference held before Magistrate Judge Ellen S. Carmody; case did not settle (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 03/02/2007)
164 NOTICE: CONTINUED SETTLEMENT CONFERENCE set for 4/16/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; EVIDENTIARY/MOTION HEARING regarding document number 154 set for 4/17/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 03/02/2007)
165 WITHDRAWAL of document re 157 (Hickox, Stacy) (Entered: 03/05/2007)
166 ORDER dismissing as withdrawn 157 joint motion to unseal document; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 03/06/2007)
167 NOTICE re 154 Notice of Filing Supplemental Affidavits by plaintiff Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) (Entered: 03/12/2007)
168 ATTACHMENTS re 167 notice of supplemental affidavits in support of motion for order to show cause by plaintiff Michigan Protection &Advocacy Service, Inc. (elc) Modified on 3/13/2007 to edit text (elc, ). (Entered: 03/13/2007)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 13 of 18

03/27/2007 03/27/2007 03/28/2007 03/28/2007 03/29/2007
03/29/2007 03/29/2007 03/29/2007 04/03/2007 04/03/2007
04/09/2007
04/13/2007 04/16/2007 04/17/2007 04/17/2007

169 MOTION for writ of habeas corpus Ad Testificandum by plaintiff Michigan Protection &Advocacy Service, Inc.; (Cody, Mark) (Entered: 03/27/2007)
170 PROPOSED ORDER regarding Writ of Habeas Corpus Ad Testificandum by plaintiff Michigan Protection &Advocacy Service, Inc. (Cody, Mark) (Entered: 03/27/2007)
171 NOTICE of telephone status conference set for 4/3/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 03/28/2007)
176 SEALED Attachments to 169 Motion for Writ of Habeas Corpus Ad Testificandum (acr) (Entered: 03/30/2007)
172 RESPONSE in opposition to MOTION for writ of habeas corpus Ad Testificandum 169 named as Defendant's Response in Opposition to Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum and Motion to Present certain Witnesses by Video Conference filed by Patricia L. Caruso (Attachments: # 1 Attachment 1 − Order.110906)(Friedman, Leo) (Entered: 03/29/2007)
173 BRIEF by defendant Patricia L. Caruso re 172 in Support of Defendant's Response in Opposition to Plaintiff's Petition for Writs of Habeas Corpus Ad Testificandum and Motion to Present Certain Witnesses by Video Conference (Friedman, Leo) (Entered: 03/29/2007)
174 SUPPLEMENTAL MEMORANDUM in support of Motion for Order to Show Cause 154 filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 1 Protective Order dated 12/22/06)(Hickox, Stacy) Modified text on 3/29/2007 (acr, ). Modified text on 3/30/2007 (acr, ). (Entered: 03/29/2007)
175 REPLY TO RESPONSE to MOTION for writ of habeas corpus Ad Testificandum 169 filed by Michigan Protection &Advocacy Service, Inc. (Hickox, Stacy) Modified text on 3/30/2007 (acr, ). (Entered: 03/29/2007)
177 MINUTES of status conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 04/03/2007)
178 NOTICE: CONTINUED SETTLEMENT CONFERENCE set for 4/16/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; EVIDENTIARY/MOTION HEARING regarding document number 154 set for 5/21/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 04/03/2007)
179 ORDER: The 4/16/2007 settlement conference is cancelled; counsel for Plaintiff shall contact the Court and counsel for Defendant during the week of 4/16/2007 to arrange a time to continue the settlement conference; both Dr. Dvoskin and Defendant's expert shall attend the rescheduled conference in person; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 04/09/2007)
180 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re service of Defendant's Affidavits in Opposition to Plaintiff's Motion for Order to Show Cause under seal (Friedman, Leo) (Entered: 04/13/2007)
181 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso re service of Defendant's Supplemental Affidavits in Opposition to Plaintiff's Motion for Order to Show Cause under seal (Friedman, Leo) (Entered: 04/16/2007)
182 ORDER REJECTING PLEADING ; signed by Magistrate Judge Ellen S. Carmody (Attachments: # 1 Attachment Enclosure letter from State of Michigan Atorney General's Department)(ghl) (Entered: 04/17/2007)
Copy of Order Rejecting Pleading 182 sent via U.S. Mail to Leo H. Friedman, Department of Attorney General, State of Michigan with original affidavits to be sealed and returned for filing under seal (ghl) (Entered: 04/17/2007)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 14 of 18

04/17/2007 04/18/2007
04/26/2007
05/04/2007 05/21/2007 06/25/2007
06/26/2007 07/02/2007 07/03/2007 07/30/2007 08/10/2007 08/16/2007 08/16/2007 08/17/2007 08/21/2007 08/22/2007 09/06/2007

184 SEALED document: Defendant's Supplemental Affidavits in Opposition to Plaintiff's Motion for Order to Show Cause by defendant Patricia L. Caruso (bd) Modified text on 4/20/2007 (bd, ). (Entered: 04/19/2007)
183 NOTICE of continued settlement conference set for 5/21/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody; THE EVIDENTIARY HEARING ON PLAINTIFF'S MOTION FOR ORDER TO SHOW CAUSE 154 , SET PREVIOUSLY FOR 5/21/2007, IS ADJOURNED AND WILL BE RESCHEDULED IF NECESSARY (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 04/18/2007)
185 ORDER: The 5/21/2007 settlement conference is adjourned; counsel for the parties shall appear in person at 401 Federal Building, 110 Michigan N.W., Grand Rapids, Michigan on 5/21/2007 at 9:00 AM with the calendars of everyone necessary for the continued settlement conference; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 04/26/2007)
186 SEALED document: Defendant's Affidavits in Opposition to Plaintiff's Motion for Order to Show Cause 154 by defendant Patricia L. Caruso (bd) Modified text on 5/7/2007 (bd, ). (Entered: 05/07/2007)
187 NOTICE of continued settlement conference set for 8/21/2007 − 8/22/2007 at 09:00 AM at 401 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 05/21/2007)
188 CERTIFICATE OF SERVICE by defendant Patricia L. Caruso confirming service via first class mail of Defendant's Supplemental Affidavit in Opposition to Plaintiff's Motion for Order to Show Cause (under seal) (Friedman, Leo) (Entered: 06/25/2007)
189 SEALED document: Defendant's Supplemental Affidavit in Opposition to Plaintiff's Motion for Order to Show Cause 154 by defendant Patricia Caruso (bd) (Entered: 06/27/2007)
190 ORDER REJECTING PLEADING; signed by Senior Judge Richard Alan Enslen (Attachments: # 1 Proposed Document)(bd) (Entered: 07/03/2007)
Copy of Order Rejecting Pleading 190 with original proposed document sent via U.S. Mail to Phillip J. VanderVeloe (bd) Modified text on 7/17/2007 (bd, ). (Entered: 07/03/2007)
191 MOTION to withdraw as attorney by plaintiff Michigan Protection &Advocacy Service, Inc.; (Hickox, Stacy) (Entered: 07/30/2007)
NOTICE that pursuant to ADMINISTRATIVE ORDER No. 07−091, filed August 10, 2007, this case is reassigned to Judge Paul L. Maloney for all further proceedings (rlw) (Entered: 08/14/2007)
192 ORDER granting 191 motion to withdraw as attorney; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal) (Entered: 08/16/2007)
193 ATTORNEY APPEARANCE of Abraham Singer on behalf of plaintiff Michigan Protection &Advocacy Service, Inc. (Singer, Abraham) (Entered: 08/16/2007)
Copy of Order on Motion to Withdraw as Attorney 192 sent via U.S. Mail to Abraham Singer (bd) (Entered: 08/17/2007)
194 MINUTES of continued settlement conference held before Magistrate Judge Ellen S. Carmody; conference to be continued 8/22/2007 (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/21/2007)
195 MINUTES of continued settlement conference held before Magistrate Judge Ellen S. Carmody; RRto issue (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/22/2007)
196 ORDER: Plaintiff's Motion for Show Cause Order 154 is dismissed without prejudice as moot; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 09/06/2007)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 15 of 18

09/24/2007 11/30/2007 12/05/2007 12/05/2007 12/05/2007 12/06/2007 12/06/2007 12/13/2007 01/16/2008
01/30/2008 01/30/2008 02/29/2008 02/29/2008
03/14/2008 04/01/2008 04/09/2008

197 ORDER finding as moot 169 plaintiff's petition for writ of habeas corpus; finding as moot PROPOSED ORDER 170 ; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 09/24/2007)
198 NOTICE of telephone status conference set for 12/10/2007 at 02:00 PM at 654 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/30/2007)
199 NOTICE of telephone status conference rescheduled to 12/13/2007 at 02:00 PM at 654 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/05/2007)
200 ATTORNEY APPEARANCE of Thomas G. Cecil on behalf of plaintiff Michigan Protection &Advocacy Service, Inc. (Cecil, Thomas) (Entered: 12/05/2007)
Copy of Notice of Hearing 199 sent via U.S. Mail to Thomas G. Cecil (bd) (Entered: 12/05/2007)
201 ATTORNEY SUBSTITUTION adding attorney A. Peter Govorchin in the place of Leo H. Friedman (Govorchin, A.) (Entered: 12/06/2007)
Copy of Notice of Hearing 199 sent via U.S. Mail to A. Peter Govorchin (bd) (Entered: 12/06/2007)
202 MINUTES of telephone status conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 01/16/2008)
203 ORDER: Plaintiff's motion on the issue of whether the Michigan Mandatory Special Education Act is applicable to plaintiffs in a prison setting shall be filed on or before 1/30/2008; Defendant's response shall be filed no later than 2/29/2008; Plaintiff's reply shall be filed no later than 3/15/2008; the Michigan Department of Education is invited to file an amicus brief no later than 4/1/2008; the 2/5/2008 final pretrial conference and 3/17/2008 bench trial are adjourned without date; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 01/16/2008)
204 MOTION for partial summary judgment by plaintiff Michigan Protection &Advocacy Service, Inc.; (Cody, Mark) (Entered: 01/30/2008)
205 BRIEF in support of MOTION for partial summary judgment 204 filed by Michigan Protection &Advocacy Service, Inc.(Cody, Mark) (Entered: 01/30/2008)
206 MOTION for summary judgment named as Defendant's Motion for Partial Dismissal or Partial Summary Judgment by defendant Patricia L. Caruso; (Olivieri, Linda) (Entered: 02/29/2008)
207 RESPONSE in opposition to MOTION for partial summary judgment 204 ; and BRIEF in support of MOTION for summary judgment named as Defendant's Motion for Partial Dismissal or Partial Summary Judgment 206 , named: "Defendant's Brief in Opposition to Plaintiff's Motion for Partial Summary Judgment and in Support of Defendant's Motion for Partial Summary Judgment" filed by Patricia L. Caruso (Attachments: # 1 Attachment Index of Exhibits, # 2 Exhibit 1 − MAR 340.1701 current, # 3 Exhibit 2 − MAR 340.1701 1997, # 4 Exhibit 3 − 34 CFR 300.22 Mar 12 1999, # 5 Exhibit 4 − 34 CFR 300.22 Aug 14 2006, # 6 Exhibit 5 − Cain Summ Disp Order, # 7 Exhibit 6 − Cain v MDOC closing order)(Olivieri, Linda) Modified text on 3/3/2008 (bd). (Entered: 02/29/2008)
208 REPLY to response to motion 206 , 204 filed by Michigan Protection &Advocacy Service, Inc. (Attachments: # 1 Exhibit 34 CFR 300.22, # 2 Exhibit 34 CFR 300.2)(Cody, Mark) (Entered: 03/14/2008)
209 BRIEF Amicus (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Morris, William) (Entered: 04/01/2008)
210 ORDER Directing the Defendant to File Copies of Certain State−Court Filings; signed by Judge Paul L. Maloney (Judge Paul L. Maloney, aeb) (Entered: 04/09/2008)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 16 of 18

04/23/2008 04/23/2008 04/24/2008 04/24/2008 04/25/2008 04/25/2008 04/30/2008 05/07/2008
05/14/2008 05/15/2008 06/27/2008 07/14/2008 07/24/2008 07/25/2008
07/29/2008 08/12/2008

211 MOTION for extension of time to Respond to Order Directing the Defendant to File Copies of Certain State−Court Filings by defendant Patricia L. Caruso; (Olivieri, Linda) (Entered: 04/23/2008)
212 BRIEF in support of MOTION for extension of time to Respond to Order Directing the Defendant to File Copies of Certain State−Court Filings 211 filed by Patricia L. Caruso(Olivieri, Linda) (Entered: 04/23/2008)
213 ORDER granting 211 motion for extension of time; signed by Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/24/2008)
214 LETTER from Attorney A. Peter Govorchin regarding 210 with attachments (Attachments: # 1 Attachment Plaintiffs' Third Amended Complaint (filed in State Court), # 2 Attachment Answer to Plaintiffs' Third Amended Complaint (filed in State Court))(bd) (Entered: 04/25/2008)
215 SUPPLEMENT re 214 Page 44 of Answer to Plaintiffs' Third Amended Complaint in Cain v MDOC by defendant Patricia L. Caruso (Govorchin, A.) (Entered: 04/25/2008)
216 CLERK'S LETTER to attorney A. Peter Govorchin regarding e−filing requirement and paper filing 214 (bd) (Entered: 04/25/2008)
217 NOTICE of telephone status conference set for 5/14/2008 at 02:30 PM at 654 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody(Magistrate Judge Ellen S. Carmody, jal) (Entered: 04/30/2008)
218 SUPPLEMENT re 206 named as Defendant's Response to April 9, 2008 Court Order and Defendants' Supplement to Motion for Partial Dismissal of Partial Summary Judgment by defendant Patricia L. Caruso (Attachments: # 1 Attachment 1−Cain.Mot for Part Summ Disp, # 2 Attachment 2−Memo in Opp to Mot for Part Summ Disp)(Olivieri, Linda) (Entered: 05/07/2008)
219 MINUTES of status conference held before Magistrate Judge Ellen S. Carmody; further status conference to be scheduled (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 05/14/2008)
220 NOTICE of status conference set for 7/24/2008 at 10:00 AM at 654 Federal Building, Grand Rapids, MI before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal) (Entered: 05/15/2008)
221 ORDER directing plaintiff to file an amended brief in opposition to partial summary judgment; directing defendant to file an amended reply brief; signed by Judge Paul L. Maloney (Judge Paul L. Maloney, aeb) (Entered: 06/27/2008)
222 RESPONSE in opposition to MOTION for summary judgment named as Defendant's Motion for Partial Dismissal or Partial Summary Judgment 206 filed by Michigan Protection &Advocacy Service, Inc. (Cecil, Thomas) (Entered: 07/14/2008)
223 MINUTES of status conference held before Magistrate Judge Ellen S. Carmody; Report and Recommendation regarding a stay, and Order regarding reports to issue (Proceedings Digitally Recorded) (Magistrate Judge Ellen S. Carmody, jal) (Entered: 07/24/2008)
224 SUPPLEMENT re 221 Defendant Caruso's Supplemental Reply Brief in Support of Motion for Partial Summary Judgment by defendant Patricia L. Caruso (Attachments: # 1 Exhibit 1 − Cain v MDOC 3rd Amended Complaint, # 2 Exhibit 2 − Cain v MDOC Order)(Olivieri, Linda) Modified text on 7/28/2008 (bd). (Entered: 07/25/2008)
225 REPORT AND RECOMMENDATION that this matter be stayed for a period of twelve months; objections to RRdue within 10 days; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 07/29/2008)
226 Opinion and ORDER ADOPTING REPORT AND RECOMMENDATION 225 without objection; staying the case for one year, except the pending cross−motions for partial summary judgment; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb) (Entered: 08/14/2008)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 17 of 18

10/08/2008 01/21/2009 09/08/2009
10/08/2009
10/29/2009 11/04/2009
12/09/2009 12/09/2009
12/17/2009 10/26/2010 11/04/2010 11/10/2010 11/12/2010 11/16/2010
03/30/2011 06/17/2011 06/23/2011

227 Opinion and ORDER denying 204 motion for partial summary judgment; granting 206 motion for summary judgment; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb) (Entered: 10/08/2008)
228 ATTORNEY APPEARANCE of Michael J. Steinberg on behalf of plaintiff Michigan Protection &Advocacy Service, Inc. (Steinberg, Michael) (Entered: 01/21/2009)
(NON−DOCUMENT) NOTICE of telephone status conference set for 10/29/2009 at 10:00 AM at Grand Rapids, MI, (616)456−2528, before Magistrate Judge Ellen S. Carmody; counsel for plaintiff to initiate call (Magistrate Judge Ellen S. Carmody, jal) (Entered: 09/08/2009)
(NON−DOCUMENT) NOTICE of telephone status conference RESCHEDULED to 10/29/2009 at 03:00 PM at Grand Rapids, MI, (616)456−2528, before Magistrate Judge Ellen S. Carmody; counsel for plaintiff to initiate call (Magistrate Judge Ellen S. Carmody, jal) (Entered: 10/08/2009)
229 MINUTES of telephone status conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 10/29/2009)
230 ORDER that the parties shall submit a stipulation and proposed order within 35 days of the date of this order for consideration regarding the length of an additional stay; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal) (Entered: 11/04/2009)
231 STIPULATION and PROPOSED ORDER for Stay by plaintiff Michigan Protection and Advocacy Service, Inc. (Attachments: # 1 Proposed Order Extension Order)(Cody, Mark) (Entered: 12/09/2009)
(NON−DOCUMENT) ORDER REFERRING STIPULATION and PROPOSED ORDER for Stay by plaintiff Michigan Protection and Advocacy Service, Inc. 231 to Magistrate Judge Ellen S. Carmody pursuant to 28 U.S.C. 636(b)(1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 12/09/2009)
232 ORDER granting STIPULATION 231 extending stay for one year; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 12/17/2009)
233 NOTICE of telephone status conference set for 11/4/2010 at 10:00 AM before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 10/26/2010)
234 MINUTES of telephone status conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/04/2010)
235 JOINT MOTION to stay by plaintiff Michigan Protection and Advocacy Service, Inc.; (Cody, Mark) (Entered: 11/10/2010)
(NON−DOCUMENT) ORDER REFERRING JOINT MOTION to stay 235 to Magistrate Judge Ellen S. Carmody pursuant to 28 U.S.C. 636(b)(1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 11/12/2010)
236 ORDER granting 235 Joint Motion for a Stay; the stay of this matter is extended to 6/17/2011; absent extraordinary circumstances, the stay WILL NOT be extended beyond that date; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 11/16/2010)
237 LETTER from Travis Tillman−Bey #324495 (Attachments: # 1 Letter/Response from Chief Judge Maloney)(bd) (Entered: 03/30/2011)
238 PROPOSED STIPULATION and ORDER of Dismissal with Prejudice by defendant Patricia L. Caruso (Govorchin, A.) (Entered: 06/17/2011)
239 NOTICE of telephone status conference set for 7/11/2011 at 11:00 AM before Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 06/23/2011)

Case number 5:05-cv-128 Docket as of 01/09/2015 07:23 AM EST Page 18 of 18

06/23/2011 07/06/2011 07/08/2011
07/11/2011 07/12/2011 07/14/2011
08/09/2011 08/10/2011
08/11/2011 09/09/2011 09/12/2011 04/03/2014

(NON−DOCUMENT) NOTICE from chambers: Correspondence from interested parties forwarded to counsel of record (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 06/23/2011)
240 STIPULATION and PROPOSED ORDER for Extension of Time by plaintiff Michigan Protection and Advocacy Service, Inc. (Attachments: # 1 Proposed Order)(Cody, Mark) (Entered: 07/06/2011)
241 ORDER approving STIPULATION 240 ; deadline for plaintiff to file its motion for attorney fees is extended until 30 days after dismissal or other final disposition by the Court; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 07/08/2011)
242 MINUTES of telephone status conference held before Magistrate Judge Ellen S. Carmody (Proceedings Not Recorded) (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 07/11/2011)
243 JOINT STATUS REPORT submitted for filing by defendant Patricia L. Caruso entitled "Joint Monitors' Final Report" (Govorchin, A.) (Entered: 07/12/2011)
244 STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE; case is dismissed with prejudice; the Court retains jurisdiction to decide the issue of attorney fees and costs should the parties not be able to resolve that matter; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 07/14/2011)
245 PROPOSED STIPULATION and ORDER for Extension of Time for Plaintiff to File Motion for Attorney Fees by defendant Patricia L. Caruso (Govorchin, A.) (Entered: 08/09/2011)
(NON−DOCUMENT) ORDER REFERRING PROPOSED STIPULATION and ORDER for Extension of Time for Plaintiff to File Motion for Attorney Fees by defendant Patricia L. Caruso 245 to Magistrate Judge Ellen S. Carmody pursuant to 28 U.S.C. 636(b)(1)(A)(Chief Judge Paul L. Maloney, acr) (Entered: 08/10/2011)
246 ORDER granting STIPULATION 245 for Extension of Time for Plaintiff to File Motion for Attorney Fees; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 08/11/2011)
247 PROPOSED STIPULATION and ORDER of Dismissal with Prejudice by defendant Patricia L. Caruso (Govorchin, A.) (Entered: 09/09/2011)
248 STIPULATION AND ORDER of dismissal with prejudice; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 09/12/2011)
249 LETTER from Joel Carter #410324 requesting docket sheet; (Attachments: # 1 Response from Clerk)(dfw) Modified text on 4/7/2014 (dfw). (Entered: 04/07/2014)