1 ALAN BAILY OREGON LEGAL SERVICES CORPORATION

2

408 S.W. Second Avenue, Suite 412

Portland, Oregon 97204

3

(503) 242-1411

4

JAMES T. MASSEY

OREGON LEGAL SERVICES CORPORATION

5

2328 N.W. Everett Street

Portland, Oregon 97210

Gary H. v. Hegstrom

6 (503) 223-7502

|||||||| III I

7 MICHAEL H . MARCUS
J. RICHARD FORESTER 8 LEGAL AID SERVICE -

|||||||| III I

™ •

»•

™™

• • ™™

JI-OR-003-001

9

Multnomah Bar Association, Inc. 900 Board of Trade Building

10

310 S.W. Fourth Avenue Portland, Oregon 97204

11

(503) 222-9311

HARRY F. SWANGER

12 NATIONAL JUVENILE LAW CENTER 3701 Lindell Boulevard

13 St. Louis, Missouri 63108 (314) 533-8868

14 ROBERT L. WALKER

15 PETER BULL

NATIONAL CENTER FOR YOUTH LAW 16 693 Mission Street, Sixth Floor

17 San Francisco, California 94105 (415) 543-3307

18 JAN C. COSTELLO MICHAEL J. DALE
19 JUVENILE JUSTICE LEGAL ADVOCACY PROJECT YOUTH LAW CENTER
20 693 Mission Street, Seventh Floor San Francisco, California 94105
21 (415) 543-3379

22 Attorneys for Plaintiffs

23

IN THE UNITED STATES DISTRICT COURT

24

FOR THE DISTRICT OF OREGON

25 GARY H., ANGELO C., LARRY H.,

) Civil No. 77-1039

RICKY W., JOSEPH M., JOSEPH B., )

26 JOHN D., JIM J., BRIAN M.,

)

Page 1 - SECOND AMENDED COMPLAINT

1 CHARLES C , ALVIN C , BARKETT N., TERRY E., LORENZO C , STEVEN D.,
2 AVERY R., RICK J., HOWARD J., and ELWOOD H., by and through their
3 guardians ad litem, MICHAFL TAYLOR and DON H. MARMADUKE, and DOUG G.,
4 individually and or. behalf of all others similarly situated,

5 Plaintiffs,

6 vs.

7 LEO T. HEGSTROM, individually

8 and in his capacity as Director of the Oregon Department of

9 Human Resources; J. N. PEET, individually and in his capacity

10 as Administrator of the Children's Services Division; RICHARD S.

11 PETERSON, individually and in his capacity as Manager of the

12 Juvenile Corrections Services Section? BENNETT K. HOLT, JR.,

13 individually and in his capacity as Resident Superintendent of

14

MacLaren School; LEONARD MUNKS, individually and in his capacity

15

as Manager of the Juvenile Community Services Unit; DALE

16

REEVES, individually and in his capacity as Administrator of

17

the Vocational Rehabilitation Division; JOSEPH H. TRELEAVEN,

18

M.D., individually and in his capacity as Administrator of

19

the Mental Health Division; VERNE A. DUNCAN, individually

20

and in his capacity as Superintendent of Public

21

Instruction of the Oregon Department of Education;

22

JESSE FASOLD, individually and in his capacity as Associate

23

Superintendent of the Special Education and Special Schools

24 Division,

25

Defendants.

26

Page 2 - SECOND AMENDED COMPLAINT

SECOND AMENDED COMPLAINT
Civil Rights Class Action

1

PRELIMINARY STATEMENT

2

1. MacLaren School (hereinafter usually referred to as

3

"MacLaren"), located at 2630 N. Pacific Highway, Woodburn, Oregon,

4

confines approximately 400 to 500 male juveniles who are in the

5

custody of Children's Services Division. In addition to the

6

juveniles housed at the facility in VJoodburn, the plaintiff class

7

includes MacLaren juveniles held at Fillcrest School in Salem,

8

at Project Picture in Portland, and at Camps Florence, Tillamook,

9

and Hildegard, in Florence, Tillamook, and LaGrande, respectively.

10 Plaintiffs' class consists of all residents of MacLaren as of

11 July 17, 1978, all residents since that date,-and all future 12 residents of MacLaren. All of the acts, practices, and conditions 13 complained of herein have been suffered by at least one of the 14 named plaintiffs. All of the members of plaintiffs' class suffer 15 directly from some of the acts, practices and conditions complained

16 of herein. All of plaintiffs' class suffer from the impact of 17 these acts, practices, and conditions in that they combine to

18 produce an atmosphere at MacLaren of fear, tension, and hostility

19 which seriously conflicts with the goal of rehabilitating plaintiffs

20 and providing them treatment.

21

2. Plaintiffs and the class they represent seek declaratory

22

and injunctive relief to prevent violations of their constitutional

23 and statutory rights by defendants, including but not limited to:

24

a. Violations of their right to be free from cruel and

**> unusual punishments, including macings, beatings, druggings with

26 powerful psychotropic drugs that have serious physical and 3 - SECOND AMENDED COMPLAINT

1 psychological side effects, strapping plaintiffs* to beds for long

2 periods of time, forcing them to stand at attention for hours on

3 end, or to sit silently for days at a time, confining them in

4 cramped isolation cells and often depriving them of mattresses,

5 blankets, reading materials, and bathroom facilities, forcing

6 them to urinate out windows or on the floor, maintaining MacLaren

7 in an overcrowded, unsafe, and inhumane condition, and failing to

8 provide adequate treatment under the least restrictive conditions

9 necessary ;

10

b. Violations of their right to due process of law,

11 including inflicting corporal punishments witjiout providing

12 a hearing, removing privileges and lowering "tag levels"

13 affecting eligibility for parole without providing a hearing,

14 enforcing group penalties for individual offenses, providing

15 inadequate due process safeguards for plaintiffs subjected to

16 confinement in isolation, confinement in maximum security,

17 inter-institutional transfers, and re-confinement for alleged

18 parole violations, failing to inform plaintiffs of rules and

19 regulations, the violation of which can result in punishment,

20 denying plaintiffs' requests to consult with their attorneys,

21 and opening, reading, censoring, and obstructing communications

22 between plaintiffs and their attorneys or judicial officers and

23 with their family members .

24

c. Violations of their right to be free from involuntary

25 servitude, including forcing plaintiffs to scrub floors with a

26 toothbrush, to work full-time maintaining the school with no

Page 4 - SECOND AMENDED COMPLAINT

1 pay* and to work as contract labor for private profit-oriented

2 enterprises with little or no pay.

3

d. Violations of their right to equal protection of the

4

laws, including failing to provide fire and emergency procedures

5 required by Oregon law in adult correctional facilities, failing

6 to give plaintiffs an administrative hearing before imposing

7 discipline, the use of corporal punishment, and maintaining

8 MacLaren in overcrowded and unhealthy conditions which are

9 prohibited under Oregon law in adult correctional facilities.;

10

e. Violations of their right to freedom of religion,

11 speech and association, including forcing plaintiffs to attend

12 particular religious services regardless of individual plain-

13 tiff's religious preferences, denying plaintiffs reading materials

14 while in detention, prohibiting conversational communications 15 between students, and interfering with plaintiffs1 conununications

16 and visitation with their families.;

17

f. Violations of their right to privacy, including failing

18 to provide adequate space, imposing regimentation designed to

19 minimize individualism and dignity, conducting humiliating and

20 degrading "skin searches" and other searches of students' bodies

21 without reasonable suspicion, interfering with their communications

22 and relationships with their families, and failing to protect

23 plaintiffs from harm.;

24

g. Violations of their right to treatment, including

25 failing to develop individualized treatment plans, failing to

26 provide psychological or psychiatric counseling, failing to

Page 5 - SECOND AMENDED COMPLAINT

1 provide any contact with raembers of the opposite sex, failing

2 to provide adequate staff training or discipline, failing to

3 provide sufficient opportunities for exercise or recreation —

* particularly for class members in detention -- failing to develop

* and administer an adequate vocational and general educational

* program including, but not limited to, a program for those

' juveniles who are handicapped, developmentally disabled, or

° possess special educational needs; and

*

h. Violations of their right to be confined only under

10 the least restrictive conditions necessary to provide suitable

H

treatment and rehabilitation. Specifically, -this action seeks

12 to compel defendants to create sufficient and adequate treatment

13 and rehabilitation settings or programs which are less restrictive

14 than MacLaren as presently constituted, and, where appropriate,

15 to place plaintiffs therein.

16

JURISDICTION

17

3. This action arises under the Civil Rights Act, 42 U.S.C.

18 § 1983, to redress the deprivation under color of state law of

19 rights, privileges and immunities guaranteed to plaintiffs by the

20 First, Fourth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments

21 to the United States Constitution; Title VI of the Civil Rights Act 22 of 1964, 42 U.S.C. S 2000d; the Education of All Handicapped Children

23 Act, 20 U.S.C. S 1401, et seg.; Title XX of the Social Security Act,

2*

42 U.S.C. S 1397, et seq.; the Developmentally Disabled Assistance and

25

Bill of Rights Act, 4 2 U.S.C. § 6001, et seq., the Rehabilitation Act,

26

29 U.S.C. S 794, et seq., and the Vocational Education Act, 20 U.S.C.

6 - SECOND AMENDED COMPLAINT

1 § 2301, et seq. The jurisdiction of this Court*is based upon 28

2 U.S.C. § 1343(3) and (4). Declaratory relief is sought

3 pursuant to 28 U.S.C. §§ 2201-02.

4

This Court also has jurisdiction to determine all state

5 claims made under Oregon Revised Statutes 419.474 and 420.120(3)

6 herein by the doctrine of pendent jurisdiction.

7

PLAINTIFFS

8

4. Plaintiffs GARY H., ANGELO C , JOSEPH M., JOSEPH B.,

9 JOHN D., JIM J., BRIAN M., CHARLES C , ALVIN C , BARRETT N.,

10 TERRY E., LORENZO C , STEVEN D., AVERY R., RICK J., HOWARD J.,

11 and ELWOOD H. at the commencement of this suit were juveniles

12 incarcerated in MacLaren. Plaintiffs RICKY W. and LARRY H. at

13 the commencement of this action were juveniles on unauthorized

14 leave from MacLaren, subject to immediate reincarceration at

15 MacLaren. Plaintiff DOUG G. was 18 years old, under the jurisdiction

16 of the Juvenile Court, and incarcerated in MacLaren at the

17 commencement of this suit. Most named plaintiffs have been

18 incarcerated at MacLaren more than once, and all, if hereafter

19 released, are substantially likely to be reincarcerated at

20 MacLaren one or more times in the future.

21

5. While incarcerated at MacLaren, plaintiffs have

22 endured and continue to endure its conditions, including the

23 actions of defendants as described hereinafter. Plaintiffs,

24 with the exception of DOUG G., bring this action by and through

25 MICHAEL TAYLOR and DON H. MARMADUKE as their guardians ad litem.

26 All of the individual plaintiffs together with the other members

Page 7 .. SECOND AMENDED COMPLAINT

1 of the class shall hereinafter be referred to collectively as

2

"plaintiffs" unless otherwise specified.

3

DEFENDANTS

4

6. Defendant LEO T. HEGSTROM is, and since January, 1979,

5

has been, the Director of the Oregon Department of Human Resources,

6

succeeding Richard A. Davis, and as such is responsible for

7 coordinating, providing, maintaining and supervising programs

8 and services rendered to plaintiffs by the Children's Services

9 Division of the Department of Human Resources.

10

7. Defendant J. N. PEET is, and at all times herein relevant

11 has been, the Administrator of the Children'syServices Division, 12 and as such is responsible for equipping, conducting, maintaining,

13 and supervising MacLaren in a manner suitable for the confinement

14 of minors, and in conformance with law.

15

8. Defendant RICHARD S. PETERSON is, and at all times herein

16 relevant has been, the Manager of the Juvenile Corrections Services

17 Section of the Children's Services Division, and as such is

18 responsible for coordinating, providing, maintaining, and supervising

19 programs and services to plaintiffs.

20

9. Defendant BENNETT K. HOLT, JR., is, and at all times

21 herein relevant has been, the Resident Superintendent of MacLaren

22 School, and as. such is responsible for the treatment and rehabilitation

23 of plaintiffs into useful and honorable members of society, and

24 for hiring, supervising, training and disciplining MacLaren staff

25 members.

26

10. Defendant LEONARD MUNKS is, and at all times herein

8 - SECOND AMENDED COMPLAINT

1 relevant has been, Manager of the Juvenile Community Services Unit of

2 the Juvenile Corrections Services Section, and as such is responsible

3 for granting, supervising and revoking plaintiffs* parole.

4

11. Defendant DALE REEVES is, and at all times herein

5 relevant has been, the Administrator of the Vocational Rehabilitation
to

6

Division of the Department of Human Resources, and as such is

7 responsible for the provision and administration of treatment,

8

rehabilitation and vocational training programs in Oregon, and

9

compliance with the Rehabilitation Act, 29 U.S.C. § 794, et seq.

10

12. Defendant JOSEPH H. TRELEAVEN, M.D., is, and at all

11

times herein relevant has been, the Administrator of the Mental

12 Health Division of the Department of Human Resources, and as

13 such is responsible for the administration of federal funds

14 appropriated pursuant to the Developmentally Disabled Assistance

15 Act and Bill of Rights, 42 U.S.C. S 6001, et seq.

16

13. Defendant VERNE A. DUNCAN is, and at all times herein

17 relevant has been, the Superintendent of Public Instruction of

18 the Oregon Department of Education, and as such is responsible

19 for the administration of federal funds appropriated pursuant to

20 Title XX of the Social Security Act, 42 U.S.C. S 1397, et seq. ,

21 and the Education of All Handicapped Children Act, 20 U.S.C.

22 S 1401, et seq.

23

14. Defendant JESSE FASOLD is, and at all times herein

24 relevant has been, Associate Superintendent of the Special Education 25 and Special Schools Division of the Oregon Department of Education,

26 and as such is responsible for the provision and administration of

Page 9 _ SECOND AMENDED COMPLAINT

1 special education programs receiving federal financial assistance

2 under the Education of All Handicapped Children Act, 20 U.S.C.

3

S 1401, et seq.

4

15. Defendants HEGSTROM, PEET, PETERSON and HOLT have

5 actual knowledge that the acts, omissions, and conditions alleged

6 below occur on a regular basis at MacLaren. Said defendants

7 have either expressly approved these acts, omissions, and

8 conditions or acquiesced in them. In acting and failing to

9 act, and in maintaining the conditions hereinafter described,

10 defendants, and each of them, separately and in concert, have

11 been and are acting under color of the statutes, ordinances,

12 regulations, customs, and usages of the State of Oregon. Said

13 acts, omissions, and conditions continue to be maintained by

14 said defendants personally and through actions of their agents

15 and subordinates under instructions and directions from them.

16

16. All of the individual defendants and their successors

17 in office shall hereinafter be referred to collectively as

18 "defendants" unless otherwise specified.

19

CLASS ACTION ALLEGATIONS

20

17. Plaintiffs bring this action on behalf of themselves

21 and all others similarly situated pursuant to Rules 23(a) and

22 23(b)(2) of the Federal Rules of Civil Procedure. The members of

23 plaintiffs' class are all residents of MacLaren as of July 17,

24 1978, all residents since that date, and all future residents 25 of MacLaren. It is estimated that the members of plaintiffs1

26 class number in excess of fifteen hundred.

10 - SECOND AMENDED COMPLAINT

1

18. All of the acts, practices, and conditions complained

2 of herein have been suffered by at least one of the named

3

plaintiffs. All of the plaintiffs1 class suffer from the

4

impact of these acts, practices and conditions, in that they

5

combine to produce an environment at MacLaren which seriously

6

conflicts with the goal of rehabilitation and treatment of

7

plaintiffs. All of the members of plaintiffs' class suffer

8

from the lack of available and appropriate less restrictive

9

residential and non-residential programs and facilities, and

10 from the lack of education, treatment, effective screening,

11 review and placement procedures at MacLaren.'* The members of

12 the class are so numerous that joinder of all members is

13

impracticable. The predominant questions of law and fact

14 are common to all members of the class. The claims of the

15 named plaintiffs are typical of the claims of the class, and

16 the named plaintiffs will fairly and adequately protect the

17 interests of the entire class. The parties opposing the class

18 have acted and refused to act on grounds generally applicable

19 to the class, thereby making appropriate final injunctive and

20 declaratory relief with respect to the class as a whole.

21

STATEMENT OF FACTS

22

19. Defendants claim to have discontinued, and have adopted

23 administrative rules concerning some of the practices complained

24 of herein; but plaintiffs have no assurance that they have, in

25

fact, abandoned these practices, or that they will not reinstitute

26 those practices which they have discontinued for the present.

Page ii _ SECOND AMENDED COMPLAINT

1

20. Defendants impose harsh and brutal punishments on

2 plaintiffs without any notice, hearing., or opportunity for

3 plaintiffs to speak on their own behalf. These punishments

4 include:

5

jai. Macing. For example, Plaintiff JIM J. was sprayed

6 with mace while confined in an isolation cell as punishment

7 for not remaining quiet;

8

b. Beatings, and other types of assault including kicking,

9 choking, and shoving. For example, Plaintiff JOSEPH B. was,.

10 beaten upon the face by staff while restrained in a "belly chain"^

11 and ankle chains, Plaintiff LARRY H. had his head repeatedly,

12 beaten against a stair railing by staff, and Plaintiff HOWARD J.

13 was punched in the face by staff and knocked across the room;

14

c. Drugging with powerful psychotropic drugs which can

15 have long-lasting physical and psychological side effects including,

16 but not limited to, extra-pyramidal reactions, hyperventilation,,

17 fainting, insomnia, dizziness, dehydration, assaultiveness,

18 temporary paralysis, parkinsonism, depression, euphoria, neurosis,

19 jjelusions, and hallucinations. These drugs are administered as

20 punishment and as a "chemical straight-jacket," frequently in

21 combination with other punitive measures such as isolation.

22 Further, these drugs are administered with conscious disregard

23 for their effects and in violation of standard medical procedures

24 .for their administration, including the administration of drugs

25 _by non-medical personnel without prior authorization from a

26 physician, and not under the direct and immediate supervision Page 12 - SECOND AMENDED COMPLAINT

1

of a physician; the failure to monitor the patie.nt for harmful

2

side effects; and the failure to keep complete records pertaining

3

to the time and amount of medication administered to each

4

resident;

5

.d. Depriving plaintiffs confined in isolation cells or in

6

the maximum security unit of their mattresses, blankets, pillows,

7

and reading materials.r For example. Plaintiffs LORENZO C ,

8

STEVKN P.. ELWOOD H., CHARLES C , TERRY E., and DOUG G. were

9

.deprived of their mattresses, blankets, and pillows while

10

confined in isolation;

11

e. Depriving plaintiffs confined in iso.lation cells

12

of adequate food, opportunity for exercise, reading materials,

13

and bathroom facilities, forcing them to urinate out windows

14 x>r on the floor; requiring plaintiffs confined in isolation

15 cells to wear degrading and ill-fitting institutional clothing.;

16 .blocking windows and doors to isolation cells with pillows or

17 padding, thus denying plaintiffs adequate ventilation and

18 . rendering it difficult for plaintiffs to cnmmuninatft wifch^.

19 _ the counselors on duty;

20

f. Restricting visitation rights of plaintiffs confined

21

in isolation and the maximum security unit to one hour per week,

22 or denying visitation altogether as punishment;

23

g. Conducting frequent individual and group strip searches

2*

and locker searches without reasonable suspicion or any legitimate

security purpose solely to degrade and intimidate plaintiff8, i and at times in the presence of female staff;.

Page 13 - SECOND AMENDED COMPLAINT

1

h. Imposing group punishments such as " standing on line"

2

in which plaintiffs must stand at attention sometimes for hours

3

on end; "group freezes" in which plaintiffs must sit silently

4

for days at a time, thus preventing plaintiffs from participating

5 .in educational, vocational, or recreational activities;

6

requiring all students in a cottage to sit in the locker roomi

7

while only one student at a time takes a shower, even though

8 ..more showers are available, as a means of preventing their

9

participation in normal evening activities;

10

i. Forcing plaintiffs to scrub floors or walls with

11

a toothbrush; and

12

j . Strapping or chaining plaintiffs to beds

13

in isolation cells for long periods of time as punishment;

14

strapping or chaining plaintiffs to beds without mattresses;

15

and beating plaintiffs so restricted. For example,

16 Plaintiff ELWOOD H. was chained with handcuffs and leather

1?

leggings to his metal bed frame without a mattress after

18 he had been maced.

19

21. Defendants i'n fact impose sanctions upon piainfiffc

20 for purported violations of unwritten rules or policies of

21 which plaintiffs have no notice whatever. Defendants fail to

^

provide plaintiffs with any prior notice of the sanctions which

23 such violations may involve, and fail to provide standardized
s a n c t i ° n s f ° r such violations. Defendants enforce such rules

regulations and impose such sanctions arbitrarily. 26 //

Page 14 _ SECOND AMENDED COMPLAINT

1

22. Plaintiffs are subjected to brutal group punishments

2 in the event an individual attempts to run away. Plaintiffs

3 are compelled to pursue the runaway and encouraged to beat up

4 the runaway upon capture. Failure to capture the individual

5 can result in suspension of group privileges or the imposition

6 of group punishments, including "group freezes" and "standing

7 on line."

8

23. Defendants impose harsh and inhumane punishments and

9 restrictions on plaintiffs without a hearing that adequately

10 safeguards plaintiffs' rights and due process of law. These

11 punishments and restrictions include;

-

12

a. Confinement in cramped isolation cells lacking adequate

13 heat, ventilation, or lighting and frequently lacking

14 plumbing when plaintiffs are neither a danger to themselves or

15 others. Plaintiffs so confined are deprived of communications,

16 including communication with attorneys or visitation. Further,

17 they are provided with no exercise, no out-Annr <->*-

18

recreation, and no educational program. Plaintiffs in isolation

19 must subsist on a meager diet, and are not provided with an

20 ^opportunity to consult with psychiatrists or psycholoqists ;

21

b. Confinement in the maximum security unit in which

22 contact with other persons outside of MacLaren is highly

23 restricted, and in which activities and privileges are kept

24 to a minimum .

J5

c. Removal of all forms of group privileges including

!6 but not limited to off-campus recreational activities. Page 15 - SECOND AMENDED COMPLAINT

1 and swimming privileges, and smoking privileges. These group

2 privileges are removed for individual offenses;

3

d. The lowering of plaintiffs' "tag levels" (privilege

4 levels) which determine eligibility for parole, plaintiffs'

5 freedom of movement or lack thereof on and off campus, and

6 other privileges such as access to second helpings of food,

7 use of the canteen, and access to recreational activities.

8

e. Transferring plaintiffs or denying plaintiffs'

9 requests for transfers from MacLaren to Hillcrest Sr-hr>o3 or

10 to Camps Florence, Tillamook and Hildegard, substantially

11 affecting the amount of time before plaintiffs are released

12 on parole as well as privileges afforded to and hard labor

13 required of plaintiffs; and

14

f. Revoking the parole of plaintiffs who have been

15 released from MacLaren, without providing a judicial or a

16 formal administrative hearing and a determination that any

17 conditions of parole have been violated.

18

24. Defendants in imposing each of the sanctions or

19 .deprivations listed in Paragraph 23 fail to provide plaintiffs

20 with all or some of the following incidents of procedural due

21 process:

22

a. The right to counsel or counsel substitute*

23

b. The right to written notice of chargess

24

c. The right to confront and cross-examine witnesses*

25

d. The right to speak on their own behalf*

26

e. The right to an impartial tribunall

Page 16 - SECOND AMENDED COMPLAINT

1

f. The right to a written record on which to base an

2 appeal.

3

25. It has been defendants' practice to prevent plaintiffs

4

from learning of their legal rights, and from obtaining the

5

assistance of attorneys or others to protect and assert those

6

rights, for example:

7

a. Defendants have actively intimidated and discouraged

8

plaintiffs from seeking to consult with their attorneys.

9

Defendants have advised plaintiffs that an attorney cannot

10 help them because they are totally within the control of the

11 State, and defendants have prevented or discouraged plaintiffs

12

from communicating with their attorneys by telephone or written

13 correspondence. Defendants encourage plaintiffs to waive their

14 right to judicial or administrative proceedings;

15

b. Defendants open, read, inspect, censor/ obstruct, and

16

impede mail between students and persons in and outside of v

17 MacLaren, including but not limited to attorneys and judicial

18 officers. Defendants refuse to convey mail containing any

19 statement critical of the conditions, programs, or treatment

20 at MacLaren or critical of the conduct of personnel employed

21 at MacLaren; and

22

c. Defendants fail to afford plaintiffs access to a

23

set of Oregon Revised Statutes, fail to maintain an

** adequate law library, and refuse requests by plaintiffs to

25

examine other available legal materials, nsfpn^ants also fail

2^

to provide plaintiffs with assistance from persons trained

Page 17 - SECOND AMENDED COMPLAINT

1

in law in the preparation and filing of legal papers.

2

26. Defendants force plaintiffs into involuntary servitude

3

by:

*

a. Requiring plaintiffs not attending classes to work at

*

MacLaren maintaining the school and to perform tasks such as

"

laundry work, kitchen work, farm work, and maintenance work for

7 n o P a v o r compensation;

°

b. Requiring plaintiffs to work at forestry camps in

9 r Florence, Tillamook, and LaGrande. These plaintiffs are paid

10

85 cents to $1.25 per hour for hard labor, done with heavy

H

and dangerous eauipment, and performed under-"adverse weather

12

conditions. Money earned by plaintiffs is placed in "accounts"

13

at MacLaren where it does not earn any interest;

14

c. Subjecting plaintiffs who refuse to work at these

15

jobs to confinement in isolation or reduction of tag levels; and

16

d. Failing to provide plaintiffs who are injured while

17

working any form of compensation or adequate medical care and

18

protection from injury.

1^

27. Defendants force plaintiffs to attend religious

*

services of evangelical groups, often in direct violation of

21

the religious beliefs of plaintiffs. These services are

22

conducted solely to convert plaintiffs to these faiths. In

23

some cottages plaintiffs who do not choose to attend religious

*

services are forced to work; plaintiffs in the detention unit

25 and reception cottages are locked in isolation if they do not

attend religious services.

Page l g _ S E C 0 N D AMENDED COMPLAINT

28. Defendants interfere with plaintiffs' exercise of

2

religious liberty by predicating attendance at religious

3

services on a majority vote of the members of some cottages;

4

or by denying plaintiffs attendance at religious services as

a punishment, or if plaintiffs are scheduled to work during

6

the period when services are being conducted. Defendants also

7

^compel residents who are Native Americans to Jhave^ their hairm

°

cut in contravention of the residents' tribal customs and

9

religious beliefs.

10

29. Defendants censor or otherwise refuse to convey mail

H

to or from students that contains statements "considered by

12

defendants in their sole discretion to be inimical to security

13

at MacLaren or immoral. This standard is vague, overbroad,

14

and permits arbitrary and malicious censorship without good

15

cause or a showing of a clear and present danger to the school.

16

Defendants restrict in some cottages the number of letters

1^

plaintiffs may write and fail to provide postage for plaintiffs

18

unable to afford it.

19

30. Defendants fail to encourage and promote relationships

20

between plaintiffs and the members of their families. Defendants

21

severly restrict the visitors plaintiffs may receive and the

22

telephone calls plaintiffs may make. Plaintiffs are not allowed

23

to receive visits from siblings between the ages of twelve and

24

eighteen except with special permission. Visits with relatives

26
Page

other than parents are also prohibited in the absence of special permission. Special permission for such visits is arbitrarily lg _ S E C 0 N D AMENDED COMPLAINT

V-. ••.

2 3
7
* 12
*16 *'
18
19
99
25 26 Page

granted and withheld. Plaintiffs are only allowed to receive
visits from their parents for four hours on Sunday afternoons.
31. Students who have completed their GFD or obtained high school diplomas are not allowed to use the library. Access to the library by plaintiffs in the school program is restricted,
32. Defendants maintain MacLaren in an overcrowded and
physically substandard condition. In some cottages plumbing is so decrepit that it is nonfunctional approximately fifty percent of the time, leading to stench and unsanitary conditions in those bathrooms. All of the cottages are infested with silverfish; some of the cottages are also infested with rats,
mice and cockroaches. Plaintiffs frequently find bugs in their clothing when they are dressing. Control of heat in cottages is frequently inadequate, and plaintiffs frequently complain .preparation are unsanitary due in part to inadequate supervision of cold or of excessive heat. Kitchen procedures for food of plaintiffs who are forced to work there. Food provided
plaintiffs is nutritionally inadequate and insufficient for
the needs of growing teenagers. 33. Procedures for evacuating cottages in case of fire
are inadequate and plaintiffs are not informed of them.
Defendants have failed to document continuous supervision of plaintiffs as requested by the State Fire Marshall. Defendants have not informed the State Fire Marshall of fire
evacuation procedures used at MacLaren, and on numerous occasions d2e0fe-ndSaEnCtOsNDhAaMvEeNDfEaDileCdOMpPrLoAmIpNtTly to abate other hazardous condi-

1

tions, contrary to the request of the State Fire Marshall.

2

Lack of fire evacuation procedures has endangered plaintiffs.

3 ^ For example, students and staff in bed on the second floor of

*

Chadwick Cottage, who smelled fire on the first floor, could

*

not use the fire escapes until the presence of fire had been

6

verified by outside security personnel sent from another building.

7

34. Defendants violate plaintiffs' right to treatment and

8

right to humane living conditions as follows:

9

a. Defendants fail to develop individualized treatment

10

plans and to provide minimally adequate treatment and rehabili-

11

tation programs;

,„"

12

b. Defendants fail to provide appropriate and adequate

13

supervision of plaintiffs;

14

c. Defendants fail to provide reasonable access to toilet

15

facilities during bedtime hours;

16

d. Defendants fail to train and psychologically screen

17

staff;

18

e. Defendants fail to provide adequate psychiatric,

19

emergency medical, and routine medical or dental care. Plaintiffs

20

in need of routine medical attention are allowed to see a

21

doctor, nurse, or technician only if nonmedical cottage personnel

22

determine that the complaint is serious enough to warrant

23

seeing medical personnel. Unreasonable and unnecessary delays

24

in delivery of these services is common. Medical technicians,

25

unlicensed to do so, prescribe medications and medical procedures

26

Cottage staff, unlicensed to do so, administer medications;

Page 21 - SECOND AMENDED COMPLAINT

*

f. Defendants fail to provide reasonable access to

*

psychologists and psychiatrists to give routine care to

3

plaintiffs;

A

^

g. Defendants, provide only cursory physical examinations

-'upon admission to MacLaren;

"

h. Defendants fail to provide plaintiffs with appropriate

t r e a t i n e n t f°r alcohol and drug abuse;

i. Defendants fail to provide plaintiffs with sufficient

g

y

privacy at any time. Reds in the dormitories of the cottages

*®

have as little as one foot of space between them. No personal

11

'**

xx

locked storage spaces are provided for plaintiffs and, con-

12

seuqently, personal possessions and necessities such as combs

*3

and toothbrushes are frequently stolen. Defendants consistently

.

_

—

_

•

•

—

-

fail to promptly replace these necessities, thus encouraging

17
19
21 22
24
25 2P6age

juveniles to lie, steal, and bully other juveniles to obtain these necessities;

j. Defendants do not arrange regular interactions with

members of the opposite sex for plaintiffs, and consequently

k~

\

plaintiffs have no contact with peer group members of the

—

—

„

opposite sex. As a proximate result of the deprivation of

ycontact with members of the opposite sex, plaintiffs suffer

a grave risk of social retardation and personality distortion; k. Defendants subject plaintiffs to long periods of enforced

idleness, including a long and unnecessary delay when plaintiffs are first admitted to MacLaren before they are enrolled in any t2r2ea-tmSeECnOt NDproAgMrEaNmDEDorCcOMoPttLaAgINeT; and

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

1. Defendants allow and tacitly encourage the brutalizing of plaintiffs by other plaintiffs.
35. Defendants fail to screen or test plaintiffs to determine if they are devilopmentally disabled or otherwise educationally handicapped, and fail to provide adequate and appropriate specialized educational services or programs for those members of the plaintiff class who, because of a developmental disability or educational handicap, are in need of such services and programs.
36. Defendants fail to screen or test plaintiffs to determine if they are handicapped, fail to create and maintain appropriate treatment rehabilitation and vocational training programs for the relevant members of plaintiffs' class under the least restrictive conditions consistent with their treatment and rehabilitation needs, and discrimanate against those members of plaintiff's class solely on the basis of handicap in the provision and administration of such, programs and in placements*
37. Defendants fail to provide plaintiffs with meaningful vocational education which is of high quality, which is reasonably related to plaintiffs' actual or anticipated opportunities for gainful employment, and which is suited to plaintiffs1 needs, interests, and abilities.
38. Reading materials commonly available in the cottages, detention units, and reception areas are inappropriate for the educational needs and interests of plaintiffs, and inconsistent with programming designed to encourage the improvement of reading 23 - SECOND AMENDED COMPLAINT

1 skills.

2

39. Defendants practice racial discrimination, making the

3 achievement of certain privilege levels virtually impossible

4 for minority group members, aggravating racial tensions between

5 plaintiffs, penalizing minority children for associating with

6 each other, and promoting a general atmosphere of fear and hatred

7 at MacLaren. Defendants have also failed and refused, and

8 continue to fail and refuse to create, contract with, or utilize

9 sufficient numbers of community placements which will accept

10 minority — particularly black — children. As a proximate

11 result of defendants' actions and omissions to-act, minority

12 children who are suitable for placement in community facilities 13 ^and programs are confined at MacLaren, and these minority

14 children are required to spend longer periods of confinement

15 at MacLaren than white children of comparable ages and backgrounds.

16

40. Defendants deprive plaintiffs of the opportunity

17 to be placed in programs, including residential and nonresidential 18 community programs, which are less restrictive of plaintiffs1

19 constitutional rights. A significant number of the

20 members of plaintiffs' class did not and do not require

21 secure confinement, and would benefit from being placed

22 in alternative residential programs or facilities without

23 impairment of legitimate juvenile corrections objectives.

24

These include group homes, foster homes, shelter care,

25 halfway houses and other residential environments. A sub-

2" stantial number of the remaining juveniles could live in community

Page 24 - SECOND AMENDED COMPLAINT

1 placements with their owr families or in foster or group

2 homes if adequate support services were available in the

3

community. Support services include mental health counseling,

4 drug and alcoholism therapy, occupational therapy, vocational

5

training and counseling, recreational programs, crisis intervention

6

and respite overnight care (short-term or on a permanent basis).

7 The limited treatment and rehabilitation services which are

8 offered at MacLaren can be and routinely are administered

9

in less restrictive community-based programs. Such programs

10 also offer other treatment and rehabilitation services which

i

y

11 are not available at MacLaren and which would greatly further

12 plaintiffs' successful integration into the community.

13

41. Only a small fraction of plaintiffs' class has been

14 placed in less restrictive alternatives, either because there

15 are not enough places in existing programs to handle the number

16 of juveniles who are appropriate for placement, or because

17 defendants have failed to utilize suitable existing placements.

18 The absence of adequate and appropriate community-based placements

19 is the result of a pattern and practice on the part of

20 defendants of failing to locate, investigate and create such

21 alternatives. Even members of plaintiffs' class who are initially

22 suitable for community placements are required to spend many

23 months in MacLaren before they are placed in community facilities

2* or programs.

25

42. Defendants fail to obtain available student reports,

26 records, histories, and evaluations, and fail to conduct adequate

Page 25 - SECOND AMENDED COMPLAINT

evaluations of each student, thereby impeding a* determination of whether a student should be placed in a less restrictive setting. Defendants further fail to adequately document the considerations, if any, given to placement in a community setting

or

"

43. Defendants have not established adequate placement

'

procedures for students at MacLaren.

°

44. Defendants have no adequate procedures for referring

^

prospective students to less restrictive alternative settings

*"

prior to or upon admission to MacLaren.

H

45. Defendants do not adequately deploy.- staff in order

*2 _ to effect proper placement, to monitor and supervise,

*3 y existing placements, or to facilitate the transition from

"

( MacLaren to less restrictive settings.

***

^46. Defendants have not provided enough places in

*" Lexisting alternative facilities to provide plaintiffs with

*' x suitable treatment in the least restrjrt-ivg sptting.

47. Defendants have failed to establish or enforce

**

minimum standards for placing students in alternative facilities.

*®

48. Defendants have failed to allocate the resources

2*

necessary to develop less restrictive alternatives that will

**

provide suitable treatment and services for plaintiffs' needs.

**

49. Defendants have failed to develop, coordinate, or

24

~~~

implement any comprehensive state-wide, regional or local plans

25

for the establishment and maintenance of an adequate number of

suitable less restrictive settings.

Page 26 - SECOND AMENDED COMPLAINT

1

50. Defendants receive federal funds appropriated pursuant

2

to the Education of All Handicapped Children Act, 20 U.S.C. S

3

1401, et s e q A the Developmental^ Disabled Assistance Act and

4

Bill of Rights, 4 2 U.S.X,. S S)2tOl, et seq. , the Rehabilitation

5

Act, 29 U.S.C. § 794 et seg*^ and the Vocational Education Act,

6

20 U.S.C. § 2301, et sea/;, and Rave received federal funds

7

^reimbursements for services to member^ of plaintiffs ' class

8

pursuant to Title ,XX of the Social Security Act, 42 U.S.C. S

9

1397 et seq. '

10

ACTUAL AND SUBSTANTIAL CONTROVERSY

11

51. An actual and substantial controversy exists between

12

plaintiffs and defendants in that plaintiffs contend and

13

defendants deny that the actions and omissions of defendants

14 ^described in Paragraphs 1-50 above are as alleged and const

15

violations of plaintiffs' constitutional and statutory rights.

16

IRREPARABLE HARM AND NO ADEQUATE REMEDY AT LAW

17

52. By reason of defendants' violations, plaintiffs have

18

suffered, and will continue to suffer, irreparable harm, injury,

19

and loss in that their most fundamental human rights have been,

20 / are being, and will continue to be subjected by defendants to

21

acts, omissions, and conditions which are likely to seriously

22

impair their physical and mental health.

23

53. Plaintiffs have no plain, speedy, and adequate remedy

24

at law to remedy these deprivations of their constitutional and

25

statutory rights and threats to their lives and health. Damages

26

cannot adequately compensate plaintiffs for the loss of their

Page 27 - SECOND AMENDED COMPLAINT

constitutional and personal rights.

LEGAL CLAIMS

3

54. For plaintiffs' claims, each enumerated below, they

^

reallege and incorporate by reference Paragraphs 1 through 53

a k ° v e in each statement of claim, and further allege;

6

First Claim

55. Defendants' actions in imposing harsh and brutal

** punishments upon plaintiffs, as described in Paragraphs 20 and

*

23; imposing group punishments upon plaintiffs, as described

10

in Paragraphs 20 and 22; maintaining MacLaren in an overcrowded,

**

unsafe, and inhumane condition, as described in Paragraphs 32,

**

33 and 34; and in confining plaintiffs without providing adequate

*3

treatment in the least restrictive setting necessary, as

**

described in Paragraphs 34 through 38 and 40 through 49,

*•* constitute cruel and unusual punishment, in violation of ,

*" ^plaintiffs' rights under the Eighth and Fourteenth Amendments

*^

to the United States Constitution.

18

Second Claim

21
11 23
24 25
26
Page

56. Defendants' actions in arbitrarily imposing punishm e n t s o r sanctions upon plaintiffs for purported violations of
unwritten rules, and imposing punishments or sanctions upon P l a i n t i f f s without notice, a hearing, and other incidents of Procedural due process, as described in Paragraphs 21 and 24,
are in violation of plaintiffs' rights under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution. 28 - SECOND AMENDED COMPLAINT

^
5
o
10 1
12 13 14 15 16 17 18 19
20
21
22
23 2*
25
2^ Page

Claim 57. Defendants' practice of preventing plaintiffs from learning of their rights, or from obtaining of attorneys or others to protect and assert those rightsr as described in Paragraph 25, is in violation of plaintiffs' right t o reasonable access to the courts under the Due Process Clause of the Fourteenth Amendment to the United States Constitution
and their rights under the First and Fourteenth Amendments to the United States Constitution. .
Fourth Claim 58. Defendants' actions in forcing plaintiffs to work without pay, as described in Paragraph 26, are in violation of plaintiffs' right to be free from involuntary servitudp, under the Thirteenth AmeFnidfmtehntCltaoimthe United States Constitution 59. Defendants' actions in forcing plaintiffs to attend religious services, as described in Paragraph 27, and interfering with plaintiffs' exercise of religious liberty, as described in Paragraph 28, are in violation of plaintiffs' rights to freedom . of religion under the First and Fourteenth Amendments to the United States Constitution.
Sixth Claim 60. Defendants' actions in restricting plaintiffs' visitation with their families and others, as described in Paragraph 30; censoring or restricting their mall* as described in Paragraphs 25 and 29? and restrinfring thp yp^ 29 - SECOND AMENDED COMPLAINT

*

of the library, as described in Paragraph 31, are in violation

2

of plaintiffs' rights to freedom of speech and association

*

under the First and Fourteenth Amendments to the United States

*

Constitution.

5

Seventh Claim

^

61» Defendants' actions in confining plaintiffs in MacLaren

*

under the conditions described herein? in -F* s •!»•» r^g to provide

°

adequate treatment and rehabilitation programs and humane living

9

conditions, as described in Paragraph 34; in failing to

10

provide adequate educational services, as described in Paragraphs.

H

35, 37, and 38; and in failing to provide adequate services

12

to handicapped members of plaintiffs' class, as described in

1*

Paragraph 36, are in violation of plaintiffs' right to treatment

**

under the Due Process Clause Amendment and the Eighth and

15

Fourteenth Amendments to the United States Constitution and

16

ORS 419.474 and 420.120(3).

17

Eighth Claim

62. Defendants' failure to insure that plaintiffs are

"

placed in the least restrictive setting necessary to provide

*"

suitable treatment and rehabilitation, as described in Paragraphs

**

40 through 49, is in violation of plaintiffs1 right to the

22

least restrictive alternative which will effectuate the purpose

**

of their confinement under the Due Process Clause of the

24

Fourteenth Amendment to the United States Constitution, and, 25

**'

their rights to association, assembly, speech, belief, and

26

travel under the First and Fourteenth Amendments to the United

30 - SECOND AMFNDFD COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

States Constitution. Ninth Claim
63. Defendants' actions in conducting frequent strip searches and locker searches, as described in Paragraph 20; interfering with plaintiffs1 communications and relationships with their families, as described in Paragraphs 20, 23, 29, and 30; maintaining MacLaren in an overcrowded condition affording plaintiffs no opportunities for privacy, as described in Paragraphs 32 and 34; and failing to insure that plaintiffs are placed in the least restrictive setting necessary to provide suitable treatment and rehabilitation', as described in Paragraphs 4 0 through 49, are in violation of their right to privacy under the First, Ninth, and Fourteenth Amendments to the United States Constitution.
Tenth Claim 64. Defendants' actions in maintaining conditions and practices as described in Paragraphs 20 through 25, 32, 33 and 39, that are prohibited in adult correctional facilities in Oregon; failing to provide compensation for injuries incurredv by students working at MacLaren, as described in Paragraph 26, which is required in adult correctional facilities; discriminating against certain groups of plaintiffs in the use of library facilities, as described in Paragraph 31; failing to provide plaintiffs with special education and related services, as described in Paragraph 35; failing to provide plaintiffs with adequate treatment in the least restrictive alternative, as 31 - SECOND AMENDED COMPLAINT

1 2 3
5 6 7 ** ^ 10 11 12
23
14
1* 16 *' 1® 1»
20 21 22 23
25
Pa*e

described in Paragraphs 34 through 49; failing to provide _ appropriate services to and discriminating against handicapped members of plaintiffs' class, as described in Paragraph 36; and failing to provide plaintiffs with meaningful vocational education, as described in Paragraph 37, are in violation of plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Eleventh Claim 65. Defendants' actions in practicing racial discrimination, as described in Paragraphs 28 and 39, are in violation of plaintiffs' rights under the Fqual Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964, 42 U.S.C. S 2000d.
... _Twelfth Claim
66. Defendants actions in subjecting plaintiffs to unreasonable and unnecessary strip searches and locker searches, as described in Paragraph 20, constitute unreasonable searches and seizures in violation of plaintiffs' rights under the Fourth and Fourteenth Amendments to the United States Constitution.
Thirteenth Claim 67. Defendants' failure to identify, locate and evaluate developmentally disabled or educationally handicapped members plaintiffs' class, and provide them with special education
and related services adequate to meet their individual needs, as described in Paragraph 35, is in violation of their rights 32 - SECOND AMENDED COMPLAINT

1

under the Education of All Handicapped Children Act, 20 U.S.C.

2

§ 1401, et seq.

3

Fourteenth Claim

*

68- Defendants' failure to determine, both upon admission

5

and throughout their period of confinement, whether treatment

6

could be provided to plaintiffs in a less restrictive, non- *

7

institutional setting, and failure to place members of plaintiffs'

8

class, where appropriate, in such alternative programs, as

9

described in Paragraphs 40 through 49, is in violation of

10

plaintiffs' rights under Title XX of the Social Security Act,

11

42 U.S.C. § 1397, et sqq.

12

Fifteenth Claim

13

f 69. Defendants' failure to provide plaintiffs with adequate

14

treatment, under the least restrictive conditions consistent with

15

their needs, as described in Paragraphs 34 through 49. is in

1®

violation of their rights under the Developmentally Disabled

17

Assistance Act and Bill of Rights, 42 U.S.C. S 6001, et seq.

18

Sixteenth Claim

19

70. Defendants' actions in failing to screen or test

20

plaintiffs to determine if they are handicapped, failing to

21

provide appropriate services to those members of plaintiffs'

22

class, and discriminating against them solely by reason of

23

handicap, as described in Paragraph 36, are in violation of

24

plaintiffs1 rights under the Rehabilitation Act, 29 U.S.C. S

25

794, et sea,

26

Seventeenth Claim

33 _ SECOND AMENDED COMPLAINT

1

71. Defendants' failure to provide plainti'ffs with mean-

2

ingful vocational education which is of high quality, which is

3

reasonably related to plaintiffs' actual or anticipated oppor-

r

_

4

tunities for gainful employment, and which is suited to plaintiffs'

5

needs, interests, and abilities, as described in Paragraph 37,

6

is in violation of plaintiffs' rights under the Vocational

7

Education Act, 20 U.S.C. § 2301, et seq.

8

PRAYER FOR RELIEF

9

WHEREFORE, plaintiffs request that this Court:

10

1. Issue a declaratory judgment pursuant to 28 U.S.C. S 2201

11

and 2202 and Rule 57 of the Federal Rules of •"Civil Procedure that

12

the acts, practices, and omissions of defendants complained of

13

herein violate plaintiffs' rights under the First, Fourth, Eighth,

14

Ninth, Thirteenth, and Fourteenth Amendments to the United States

15

Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C.

16

§ 2000d. the Education of All Handicapped Children Act, 20 U.S.C.

17

S 1401, et seq. , Title XX of the Social Security Act, 42 U.S.C.

18

§ 1397, et seq., the Developmentally Disabled Assistance Act and

19

Bill of Rights, 42 U.S.C. S 6001, et seq., the Rehabilitation

20

Act, 29 U.S.C. S 794, et.seq. , the Vocational Education A c t , 20

21

U.S.C. § 230, et seq., and ORS 419.474 and 420.120(3).

22

2. Enter preliminary and permanent orders enjoining

23

defendants and each of them, their successors in office, and

24 their agents, servants, subordinates, employees, and those

25

under their control and those acting in concert with them,

26

from engaging in any of the unlawful and/or unconstitutional

Page 34 - SECOND AMENDED COMPLAINT

1

acts, practices or omissions complained of herein.

2

3. Enter preliminary and permanent orders enjoining

3

defendants and each of them, their successors in office, and

4

their agents, servants, subordinates, employees and those

5

under their control and those acting in concert with them

6

from harassing, intimidating, punishing, or retaliating in

7

any manner against plaintiffs from participating in this

8

lawsuit, and from interfering in any manner with plaintiffs'

9

communications with their attorneys in this lawsuit.

10

4. Direct the defendants, within ninety (90) days of

11

the date of such Order, to develop and submit to this Court

12

a plan, including a timetable for implementation, which will

13

secure the rights of the plaintiffs to conditions of confinement

1^

consistent with state and federal statutes and the United States

15

Constitution, to treatment and to placement in the least

16

restrictive setting consistent with their individual needs, and

17

which will ensure that no juvenile shall be confined at MacLaren

18

unless MacLaren is the least restrictive alternative consistent

19

with his individual needs.

20

5. Appoint, after consultation with counsel for all

21

parties,a person or persons, such as a master, ombudsman, or

22

panel of experts, to monitor and enforce the decree issued by

23

the Court until such time as this Court determines that such

2*

an information-gathering and enforcement mechanism is no longer

25

necessary.

2^

6. Retain jurisdiction over this matter until the above

35 - SECOND AMENDED COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

plan has been completely implemented. 7. Award reasonable attorneys' fees and costs of suit
herein to plaintiffs. 8. Award such other relief as may be necessary and
proper.

DATED:

Respectfully submitted,

ILY OREGON LEGAL'SERVICES CORPORATION 408 S.W. Second Avenue, Suite 412 Portland, Oregon .J7204 (503) 242-1411
JAMES T. MASSEY OREGON LEGAL SERVICES CORPORATION 2328 N.W. Everett Street Portland, Oregon 97210 (503) 223-7502
MICHAEL H. MARCUS J. RICHARD FORESTER LEGAL AID SERVICE Multnomah- Bar Association 900 Board of Trade Building 310 S.W. Fourth Avenue Portland, Oregon 97204 (503) 222-9311
HARRY F. SWANGER NATIONAL JUVENILE LAW CENTER 3701 Lindell Boulevard St. Louis, Missouri 63108 (314) 533-8868
ROBERT L. WALKER PETER BULL NATIONAL CENTER FOR YOUTH LAW 693 Mission Street, Sixth Floor San Francisco, California 94105 (415) 543-3307
36 - SECOND AMENDED COMPLAINT

1

JAN C. COSTELLO

MICHAEL J. DALE

2

JUVENILE JUSTICE LEGAL ADVOCACY PROJECT

YOUTH LAW CENTER

3

693 Mission Street, Seventh'Floor

San Francisco, California 94105

*

(415) 543-3379

5

Attorneys for Plaintiffs

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

e

37 - SECOND AMENDED COMPLAIMT

 
 Gary H. v. Hegstrom

m m

•• ••

•• ||

JI-OR-003-002

1 2 3 4 5 6
7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

U. 1 WSTmCT COURT OtSTJlCT OF OHGON
EILE
FEB22B85'

M. CHRIST. CLERK

Bti

IT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GARY H., et al. ,

Plaintiffs,

Civil No. 77-1039-BU

v. LEO T. HEGSTROM, et al.,

FINAL DECREE AND JUDGMENT (Isolation and Detention

Defendants. )

Based upon the pleadings and all prior proceedings had

herein regarding defendants' use of Detention Special Services-I

(hereinafter D-I) and the conditions of confinement therein,

and upon the findings of fact and conclusions of law contained

in the Opinion of the Court entered on" December 17, 1984, and

the determination of the Court that there is no just reason

for delay and that a final decree and judgment should be entered

as to plaintiffs' claims regarding the isolation and detention

unit,

It is hereby ORDERED, ADJUDGED AND DECREED that:

Defendants' use of D-I and the conditions of confinement

therein violate plaintiffs' right to due process of law, to

1 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

be free from cruel and unusual punishment, and to treatment under the Eighth and Fourteenth Amendments to the United States Constitution; and
Defendants, their successors, officers, agents, servants, employees and all other persons acting in concert or participation with any of them, are as of the date of this order permanently enjoined and restrained from placing any student in D-I or any other form of isolation (hereinafter D-I) without complying with the following: 1. CONFINEMENT IN D-I.
a. Purpose of Confinement. No student shall be placed in D-I unless that student has engaged in conduct that creates an imminent danger of physical harm to himself or to others.
b. Use of Less Restrictive Measures. No student shall be placed in D-I when other, less restrictive measures are available to deal with the student's conduct.
c. Length of Confinement. i. No student shall be placed in D-I for any longer
than is necessary to calm him down to the point where he can be returned to his cottage without posing an imminent danger of physical harm to himself or others.
ii. No student shall be placed in D-I for longer than 24 hours, except in the most extreme circumstances, in which the student remains out of control in spite of appropriate efforts by a qualified mental health professional (psychiatrist, psychologist, or clinical social worker) 2 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

(hereinafter qualified mental health professional). Appropriate efforts by a qualified mental health professional shall be attempted during the first 24 hours.
iii. No student shall be placed in D-I for longer than 24 hours until such time as defendants develop and the court approves a suitable plan and schedule for its implementation to provide the procedural safeguards specified in paragraph (l)(d) before or during the first 24 hours.
iv. Students confined in D-I (hereinafter students) shall be inspected visually at least every 15 minutes while they are in their cells to determine if they are still out of control or are in need of services or intervention, and defendants shall maintain a written log of such inspection. d. Procedural Safeguards.
i. No student shall be placed in D-I unless approval is given verbally within one hour of the placement by the superintendent, officer of the day, or a qualified mental health professional. This verbal approval shall be followed with written approval specifying the reason placement in D-I was necessary the the conduct of the student that led to it, by the person giving approval, by the end of that person's shift.
ii. No student shall be placed in D-I for longer than 24 hours without providing adequate procedural safeguards, including the following: a hearing before an impar3 - FINAL DECREE AND JUDGMENT

1

tial hearings officer at which the student has the right

2

to be present during all stages of the hearing with the

3

exception of the hearings officer's deliberations; the

4

right to introduce evidence and/or witnesses on his behalf;

5

the right to be represented by an advocate of his choice,

6

and the right to have an advocate appointed by the hearings

7

officer if the hearings officer determines that the student

8

requires the assistance of such an advocate, unless expressly

9

waived by the student; the right to confront and

10

cross-examine accusers or adverse witnesses, unless the

11

witnesses are other students whom the hearings officer

12

finds would be intimidated; written findings and a record

13

prepared to permit review; and an adequate review procedure.

14

The hearing shall be conducted before or during the first

15

24 hours of placement in D-l.

16

2. ENVIRONMENT IN D-I.

17

a. The D-I Cell.

18

i. Defendants shall maintain D-I cells in a clean

19

and sanitary condition free of insects and lice. Mattresses

20

and pillows in good condition, covered with fire-retardant

21

and water-resistant material, shall be provided. Mattresses,

22 '

pillows, bed frames, toilets and sinks shall be cleaned

23

with disinfectant between students. Floors and walls of

24

cells shall be washed as needed, but at least monthly. When

25

occupied, cells shall be cleaned daily. Bathroom areas

26

shall be cleaned and showers, urinals, and toilets disinfec-

Page 4 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
23
24 25 26 Page

ted daily. Students shall not be required to perform any of the above tasks unless the student has caused the condition. However, no condition creating a health hazard shall be allowed to remain because of the refusal or inability of the student to perform any of the above tasks. Defendants shall take all necessary measures consistent with students' health and safety to eliminate insect and lice infestation in D-I, including an inspection by a licensed pest control professional at least every three months.
ii. Defendants shall provide heating and ventilation systems in each D-I cell that provide fresh air, and maintain farenheit temperatures as follows: not less than 65 to 68 degrees during the day and 60 to 63 degrees during the night in winter, and not more than 78 to 80 degrees in summer. The ventilation system shall provide at least 10 cubic feet of fresh or purified air per minute. Windows in the doors of D-I cells shall not be blocked with pillows or other materials for any reason. However, if the student in the cell throws material through the window, defendants may temporarily employ a plexiglass cover hinged at the top and kept open at least six inches at the bottom, or a stand kept parallel to but at least six inches away from
the window, in no case longer than 15 minutes, and in no
case in such a way as to prevent a complete change of air in the cell at least every 11 minutes.
iii. Defendants shall provide adequate lighting in 5 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

each cell, including a central light fixture providing adequate ambient lighting for general purpose use and sufficient for staff supervision, and task sufficient lighting that provides at least 25 foot candles of light at desk level. b. Supplies and Clothing.
i. Each D-I cell shall be furnished with a mattress measuring four inches thick, 25 inches wide, and 75 inches long.
ii. Defendants shall supply freshly washed sheets and pillowcases and a clean blanket for each new student. When cells are occupied, the bedding shall be changed as needed. Clean towels shall be provided daily. Students requesting additional blankets shall be provided with them.
iii. Upon entry into D-I, each student shall be provided with any of the following personal hygiene items that have not been brought to D-I with the student: toothbrush, toothpaste, deodorant, brush or comb, soap, and toilet paper. Daily showers shall be offered of at least ten minutes duration. Adequate supplies of hot water and shampoo shall be provided. Students shall be allowed access to personal hygiene items including towels, toothbrush, toothpaste, brush or comb, and soap.
iv. Students shall be allowed to wear clothing that resembles as closely as possible clothing worn in other cottages at MacLaren. This clothing shall be in good repair 6 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

and properly fitting, and shall not be of inappropriate colors such as pink. Students shall not be required to wear pa jama-like clothing during day-time hours. Defendants may prohibit clothing that contains metallic fittings with which students may harm themselves.
v. Defendants shall offer students at least three items per day of recreational reading material, and writing materials, including paper, envelopes, and pencils or pens, unless the student is actively destroying the above items, or injuring himself with them. c. Discipline in D-I.
i. Defendants shall not remove cell furnishings, including mattresses and bedding, clothing, underwear and socks, reading materials, or toilet paper from students, unless the student is actively destroying the above items, or injuring himself with them.
ii. Defendants shall not turn off the water in any cell or prevent any toilet from flushing, unless the student is actively flooding or throwing water out of his cell. In such event, the water shall be turned back on at least hourly to allow the student to wash, drink, or flush the toilet.
i n . Defendants shall not deny students access to meals in the D-I dining room.
iv. Defendants shall not deny students access to exercise. 7 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

v. Defendants shall not block the window in the D-I cell doors, except as permitted in paragraph (2)(a)(ii). d. Use of Restraints.
i. Defendants shall not restrain students with hard restraints, including but not limited to handcuffs and leg shackles. Only soft restraints shall be used to restrain students.
ii. Defendants shall not attach restraints to any stationary objects including furniture, unless the student attempts to and would otherwise injure himself even though in restraints and such injuries cannot be physically prevented by staff or the presence of staff would aggravate the student's condition.
iii. Defendants shall not use restraints unnecessarily or as a substitute for adequate programming and adequate psychiatric services.
iv. Defendants shall not place students in restraints without approval, either prior to or immediately thereafter, and in no case more than 15 minutes thereafter, from a qualified mental health professional who has certified that no other means is available to prevent the student from inflicting immediate and serious physical harm on himself or others. However, for a period not to exceed 120 days from the date of this Final Judgment, such approval may also be given by the superintendent or officer of the day. 8 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

v. Defendants shall provide training for each staff member authorized to apply restraints in how to apply and release restraints without hurting the students. D-I staff shall receive a minimum of 20 hours of training in methods for calming down students who are restrained, and alternative methods for dealing with violent or disturbed students. Only trained staff shall be regularly assigned to work in D-I.
vi. A staff person or qualified mental health professional shall stay with the student, preferably in the student's cell or if necessary just outside the door, for the entire time the student is restrained. However, for a period not to exceed 120 days from the date of this Final Judgment, defendants may substitute a five minute watch by a staff person or qualified mental health professional.
vii. No student shall be placed in restraints for longer than 30 minutes, unless the student would still otherwise inflict immediate and serious physical harm on himself or others and each additional 30 minute period is authorized by a qualified mental health professional, or, for a period not to exceed 120 days from the date of this Final Judgment, the superintendent or officer of the day. Any student who remains in restraints for more than two hours shall be promptly transferred to a mental health facility. 9 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

viii.

Each student who has been restrained shall

be immediately checked by a medical technician, and shall

be evaluated, and, if necessary, treated by a qualified

mental health professional within 24 hours. However, for

a period not to exceed 120 days from the date of this

Final Judgment, this may be done within one working day.

ix. Defendants shall maintain a written log indicating

the name of the student restrained, the date, type and

duration of the restraint, and the name of the qualified

mental health professional, or, for a period not to exceed

120 days from the date of this Final Judgment, the superin-

tendent or officer of the day, who gave prior approval

for the restraint.

e. Exercise and Recreation.

i. Defendants shall offer students at least one

hour per day of large muscle activity, with at least half

of the time spent either outside, in a gymnasium, or in

a swimming pool.

ii. Defendants shall offer students at least two

hours on school days and three hours on non-school days

of planned recreational activities.

f. Education.

i. Defendants shall offer students, including students

studying for their G.E.D., and students who have already

received a high school diploma or G.E.D., a formal classroom

educational program. This educational program shall be

10 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

the equivalent in duration, subject matter, materials and otherwise to that provided to students not confined in D-l.
ii. Defendants shall offer students at least three items per day of recreational reading material, and writing materials, including paper, envelopes, and pencils or pens, unless the student is actively destroying the above items, or injuring himself with them.
iii. Provision of an educational program, educational materials, recreational reading, and writing materials shall not depend upon student request, but shall be offered affirmatively to every student. g. Food.
i. Defendants shall provide students with an adequate and nutritious diet developed by a certified dietician.
ii. Defendants shall provide students with three meals each day, plus a nutritionally balanced snack in the evening, of sufficient quantity so that students are not hungry during the evening, approved by a certified dietician. Students will not be deprived of food for more than 13 hours.
iii. Students shall not be served food of lesser quality or in lesser quantity, including seconds and snacks, than the food available to students not confined in D-l.
iv. The food served to students shall be appetizing, at the appropriate temperature, and free of foreign objects. 11 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

Any food contaminated by foreign objects shall be replaced before serving.
v. Defendants shall maintain all food preparation areas in a clean and sanitary manner, and shall take all necessary measures consistent with students1 health and safety to eliminate insect, rodent and pest infestation in such areas, including an inspection by a licensed pest control professional at least monthly. h. Visitation.
i. Defendants shall encourage the involvement of family and interested friends in students' rehabilitative programs by encouraging visitation.
ii. Students shall be permitted to receive daily visits from parents, other family members and friends for at least one hour per day between the hours of 3:30 to 8:00 p.m. on school days and 1:00 p.m. to 8:00 p.m. on non-school days. Students shall be permitted to decline to receive visitors.
iii. Visits by parents, other, family members and friends may be denied or limited only when ordered by the committing court, or when a qualified mental health professional, or for a period not to exceed 120 days from the date of this Final Judgment, the superintendent or officer of the day, has certified in writing that such a restriction is necessary because the visit would seriously disturb the student's mental health, or the visitor violates rules 12 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

of the institution during the visit. Any such restriction shall be reviewed at least monthly, and the student may challenge the restriction of any visitor through the grievance-appeal process.
iv. Reasonable limits may be placed on the number of persons visiting a student at one time. 3. MEDICAL CARE a. Health Evaluations and Sick Call.
i. Defendants shall evaluate the health of any student who asks for medical attention, has been in a fight, has had to be physically restrained by staff, or who appears to be in need of medical attention.
a. This evaluation may be performed by a physician or registered nurse, or by a health technician who has been carefully trained to detect students' medical needs and who is carefully supervised by a physician.
b. This evaluation shall be performed within one hour of the request, incident or observation, and will be provided to the superintendent, officer of the day or qualified mental health professional who reviews the placement pursuant to subsection (l)(d).
c. Students identified as in need of physical or mental health care shall promptly receive appropriate care. ii. Defendants shall operate a sick call system that 13 - FINAL DECREE AND JUDGMENT

1 2 3 4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

ensures on an ongoing basis that each student with a health problem is identified and receives needed health care.
a. Each student who informs staff of a health need or asks to see medical staff shall be examined
m
or taken to a medical facility promptly and treated by appropriately trained medical staff.
c. Within 120 days of the date of this Final Judgment, a physician and a qualified mental health professional shall be on site or on call 24 hours a day, seven days a week. b. Drug and Alcohol Withdrawal. D-I staff shall be trained to recognize symptoms of drug or alcohol withdrawal and will assure appropriate treatment for students experiencing such withdrawal. c. Medications. i. D-I staff shall be provided with a list of side-effects for any medications being used in D-I. D-I lead shift supervisors, who provide non-injectable medications to students under the supervision and direction of qualified medical staff, shall be trained regarding the use, purposes, expectations and side-effects of medications. Other regularly assigned D-I staff shall also be trained to recognize adverse side-effects of medications. ii. A physician or nurse shall examine the student for the effectiveness and adverse side-effects of psycho14 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

tropic, stimulant and tranquilizing medication within onehalf hour after the medication is first administered intra-
muscularly, and within one hour if the medication is administered orally, or the dosage is changed. Persons with such qualifications shall make the same evaluation periodically thereafter, and shall report the findings to the physician who prescribed the medication.
iii. Students experiencing an adverse reaction to medication shall be seen immediately by a physician, who shall order any tests indicated and shall provide appropriate care.
iv. A log shall be kept of all psychotropic, stimulant and tranquilizing medications administered to students. d. Mental Illness.
i. Defendants shall not admit to or confine in D-l any student showing psychotic or other seriously disabling psychiatric symptoms, except for a very brief period of time, not to exceed four hours, necessary to transfer the student to a mental health facility.
ii. During the entire brief period such a student is confined in D-l, a staff person or qualified mental health professional shall stay with the student, preferably in the student's cell or if necessary just outside the door. e. Staff and Training.
i. Defendants shall employ sufficient numbers of 15 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ' 23 24 25 26 Page

qualified mental health professionals so that students who require mental health evaluations and individualized mental health services shall receive them as indicated. At a minimum, defendants shall, within 120 days of the date of this Final Judgment, employ sufficient qualified mental health professionals so that such a person is on site 24 hours a day, seven days a week, plus the equivalent of one full-time psychologist and one half-time psychiatrist.
ii. Defendants shall provide D-l staff and cottage counselors with suitable training in meeting tfre needs of students, including but not limited to recognizing mental and emotional disturbances, use of medication (both expectations and side-effects), and working with unmotivated students.
iii. Each student shall receive meaningful crisisoriented individual and/or group counseling.
a. The counseling program shall allow for intensive individual and group sessions daily by a trained counselor meeting the qualifications specified in paragraph (e)(iii)(b).
b. The minimum qualifications for the person providing the counseling are a masters degree in psychol°gy» social work or counseling and two years of experience in working with juveniles, or five years of experience as a mental health specialist in the area of working with juveniles. 16 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 2* 22 23 *4 ^^ 26 Page

c. The function of such counseling in D-I shall be crisis-oriented. The counselors shall help the students to understand the situation which resulted in their placement in D-I, and shall assist in development of coping mechanisms and relief of anxiety so that the students can be released from D-I as soon as possible. 4. MONITORING AND REPORTING. a. Plaintiffs1 counsel, Guardian Ad Litem, consultants or employees may, for a period of two years from the date of this Final Decree and Judgment, enter and inspect D-I to monitor compliance with this Final Decree and Judgment at any time, unless the timing or circumstances present an unreasonable security risk. b. On the first quarter occurring at least 30 days after the date of this Final Decree and Judgment, defendants shall provide the Court, plaintiffs' counsel and plaintiffs' Guardian Ad Litem with a written report showing in detail defendants' progress in implementing this Final Decree and Judgment. c . Defendants shall report to the Court, plaintiffs' counsel, and plaintiffs' Guardian Ad Litem, quarterly thereafter for two years, as to: i. the number of students placed in D-I, the purpose and length of each placement, the person who gave approval for the placement pursuant to paragraph (l)(d)(i), and the date and time of each hearing provided pursuant to 1 7 _ FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 H 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

paragraph (l)(d)(ii); ii. the number of students restrained, the type and
duration of the restraint, and the qualified mental health professional, or, for a period not to exceed 120 days from the date of this Final Judgment, the superintendent or officer of the day, who gave prior approval for the restraint pursuant to paragraph (2)(d)(iv);
iii. the dates and findings of pest inspections obtained pursuant to paragraphs (2)(a)(i) and (2)(g)(v);
iv. the dates, instructors and topics of staff training provided pursuant to paragraphs (2)(d)(v), (3)(c)(i), and (3)(e)(ii);
v. any denials or restrictions of visitation pursuant to paragraph (2)(h)(iii) ;
vi. all psychotropic, stimulant and tranquilizing medications administered to students; and
vii. the number of psychiatrists, psychologists, and professionals with a masters degree in psychology, social work or counseling, or five years of equivalent experience, employed by defendants, and the number of hours employed per week. The Court having been informed by the parties that defendants intend to seek additional resources from the state in order to develop alternatives to isolation which would further reduce the need for D-I and make it possible to limit placement there to no more than 24 hours, some modifications of this Final Decree 18 - FINAL DECREE AND JUDGMENT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page

and Judgment may become appropriate in the future, and the parties are invited to approach the Court should that become the case.
It is further ORDERED, ADJUDGED AND DECREED that: Plaintiffs are prevailing parties and are hereby granted an extension of time of 60 days to file their petition for attorneys' fees and 80 days to file their bill of costs.

DATED this ,9.<PN day of <Q*J>^U-O^cj

, 1985.

United Stcftes District Judge

Presented by:
Alan Baily Of Attorneys for Plaintiffs

19 - FINAL DECREE AND JUDGMENT

 
 District of Oregon - Docket Report

Page 1 of 12

U.S. District Court District of Oregon (Portland) CIVIL DOCKET FOR CASE #: 3:77-cv-01039-BU

TERMINATED

Gary H, et al v. Hegstrom, et al Assigned to: Honorable James M. Burns Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Gary H
Plaintiff

Date Filed: 01/25/1988 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jan C Costello National Center For Youth Law 1663 Mission Street 5th Floor San Francisco, CA 94103 415-543-3379 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane Juvenile Right Project 123 NE 3rd Suite 310 Portland, OR 97232 232-2540 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus Multnomah County Legal Aid Service 700 SW Taylor Suite 300 Portland, OR 97205 224-4086 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker Walker & Bull 380 Hayes Street Suite 4 San Francisco, CA 94102 415-863-4855 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?106879251339163-L_923_0-1

10/17/2005

District of Oregon - Docket Report Angelo C
Plaintiff Larry H
Plaintiff Ricky W

Page 2 of 12
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?106879251339163-L_923_0-1

10/17/2005

District of Oregon - Docket Report
Plaintiff Joseph M
Plaintiff Joseph B

Page 3 of 12
ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?106879251339163-L_923_0-1

10/17/2005

District of Oregon - Docket Report Plaintiff John D
Plaintiff Jim J
Plaintiff Brian M

Page 4 of 12
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY

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10/17/2005

District of Oregon - Docket Report
Plaintiff Charles C
Plaintiff Alvin C

Page 5 of 12
ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus

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10/17/2005

District of Oregon - Docket Report
Plaintiff Barrett N
Plaintiff Terry E

Page 6 of 12
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?106879251339163-L_923_0-1

10/17/2005

District of Oregon - Docket Report Plaintiff Lorenzo C
Plaintiff Steven D
Plaintiff Avery R

Page 7 of 12
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane

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10/17/2005

District of Oregon - Docket Report
Plaintiff Rick J
Plaintiff Howard J

Page 8 of 12
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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10/17/2005

District of Oregon - Docket Report

Page 9 of 12

Plaintiff Elwood H
Plaintiff Michael Taylor Guardian Ad Litem
Plaintiff Don H Marmaduke

Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello

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10/17/2005

District of Oregon - Docket Report Guardian Ad Litem
Plaintiff Doug G
V. Defendant Leo T Hegstrom

Page 10 of 12
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jan C Costello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H McFarlane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael H Marcus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary Harrang Long Gary Rudnick, PC (Eugene) 360 E. 10th Avenue Suite 300 Eugene, OR 97401-3248 (541) 485-0220

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District of Oregon - Docket Report

Page 11 of 12

Defendant J N Peet Administrator, Childrens Services
Defendant Richard S Peterson Mgr. Juvenile Corrections
Defendant Bennett K Holt, Jr Resident Superintendent of MacLearen
Defendant Leonard Munks Manager Juvenile Comm. Serv. Defendant Dale Reeves Administrator Vocational Rehabilitation
Defendant Joseph H Treleaven Administrator Mental Health
Defendant Verne A Duncan Superintendent of Lic Instr
Defendant Jesse Fasold

Fax: (541) 686-6564 Email: william.f.gary@harrang.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William F. Gary (See above for address) LEAD ATTORNEY

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District of Oregon - Docket Report

Page 12 of 12

Date Filed 07/20/1989 07/20/1989
08/11/1989

ATTORNEY TO BE NOTICED

#

Docket Text

214 RECORD OF ord stip. ord of dism signed in open court. ntfd Honorable James M. Burns (former employee) (Entered: 08/01/1989)

215 Stipulation and ORDER: dismissing case w/out prej and w/out costs or atty fees. Pltf's may move for leave to reopen this act at any time upon the grounds that defts are acting in violation of the pltfs' federal statutory or constitutional rights. Signed 7/20/89 microfilmed 8/1/89 Honorable James M. Burns ntfd. (former employee) (Entered: 08/01/1989)

216 Mail Returned from Robert Walker re [docs [214 & 215]. (former employee) (Entered: 08/11/1989)

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 831 F.2d 1430 (1987)
GARY H., et al., Plaintiffs-Appellees, v.
Leo HEGSTROM, J.N. Peet, Richard S. Peterson, Bennett K. Holt, Jr., Leonard Munks, Dale Reeves, Joseph H. Trealeaven, M.D., Verne A. Duncan, and Jesse Fasold, DefendantsAppellants.
No. 85-3730.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 1986. Decided November 4, 1987.
1431 *1431 Loren M. Warboys and Robert Walker, San Francisco, Cal., Michael H. Marcus and Julie McFarland, Portland, Or., for plaintiffs-appellees.
Michael D. Reynolds, Salem, Or., for defendants-appellants.
Before GOODWIN, WALLACE and FERGUSON, Circuit Judges.
GOODWIN, Circuit Judge:
Ten years ago, after complaints about the management of Oregon's MacLaren facility for adolescent wards of the juvenile court failed to bring about desired reforms, eleven inmates filed a class action. Seven years later, after numerous attempts to settle the case, the district court entered a decree enjoining, on federal constitutional grounds, some eighteen pages of instructions for managing the institution. The state appeals.
The case has not become moot even though the original plaintiffs have become adults. New inmates have taken their places. Counsel for both sides assure us that the controversy is an on-going one despite evolving improvement in institutional budgets and management during the past decade. It became clear at the oral argument that the state was and remains willing to make adjustments in the treatment of internal disclipinary problems, but the state is not willing to yield entirely to the micromanagement by the court encompassed in the challenged decree.
The trial court's findings of fact are not clearly erroneous. Lengthy and detailed findings reveal that the housing of juvenile wards in Oregon was and is not perfect. Children have been placed in disciplinary segregation for periods exceeding 24 hours without a hearing. Light, ventilation and cleanliness could be improved. Professional experts testified at length about better ways of dealing with assorted problems. The trial court correctly found that many of the institutional practices were substandard, not only according to the latest thinking of the behavioral scientists and other interested professionals who testified, but in due process terms.
The Supreme Court has not announced the appropriate federal standards by which to judge state juvenile detention facility conditions. See e.g., Ingraham v. Wright, 430 U.S. 651, 669 n. 37, 97 S.Ct. 1401, 1411 n. 37, 51 L.Ed.2d 711 (1977) (expressly reserving the question whether the cruel and unusual punishments clause applies to juvenile institutions). Lower federal courts differ on the appropriate standard: Some apply the eighth amendment. E.g., Nelson v. Heyne, 491 F.2d 352, 355 (7th Cir.) (applying eighth amendment to guards' beatings of juveniles confined at medium security boys school), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). Other courts apply the due process clause. E.g., H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1084-85 (11th Cir.1986) (applying due process clause to conditions of confinement of a juvenile confined pending trial on delinquency charges); Santana v. Collazo (Santana I), 714 F.2d 1172, 1179 (1st Cir.1983) (using eighth amendment standards as constitutional minimum, but applying due process clause to juveniles confined for status and minor offenses), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); Milonas v. 1432 Williams, 691 F.2d 931, 942 & n. 10 (10th Cir.1982) (applying due *1432 process clause to conditions involving

juveniles confined for discipline problems and crimes), cert. denied, 460 U.S. 1069, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983).
From our review of the case law and the statutes governing MacLaren, we conclude that the approach employed by the Santana I court 0907 applying the due process clause, which implicitly incorporates the cruel and unusual punishments clause standards as a constitutional minimum 0907 is the appropriate standard for reviewing conditions at MacLaren.
The status of the detainees determines the appropriate standard for evaluating conditions of confinement. The eighth amendment applies to "convicted prisoners." See Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986); see also Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) ("the Cruel and Unusual Punishments Clause was `designed to protect those convicted of crimes'") (quoting Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711 (1977)). By contrast, the more protective fourteenth amendment standard applies to conditions of confinement when detainees, whether or not juveniles, have not been convicted. See e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntarily committed mental patients); Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979) (adult pretrial detainees); Ingraham v. Wright, supra (students disciplined at school).
The district court correctly concluded that the Oregon juvenile justice system is noncriminal and nonpenal. The Oregon statutes specifically provide: "The chief objects of the school are educational and reformatory, rather than penal, but this does not prevent the confinement and discipline of juvenile offenders therein." Or.Rev.Stat. § 420.120(3) (1985). Thus, we hold that the district court correctly concluded that the fourteenth amendment applies to conditions of confinement at MacLaren.
The trial court next sought the help of counsel to negotiate an agreed form of order. After several efforts at negotiation, and after agreement on many points, complete accord broke down because the plaintiffs wanted too much and the state was willing to do too little. The district court finally adopted as a remedial order virtually the entire wish list of the plaintiffs.
The court appeared to be of the opinion that any treatment falling short of standards adopted by various professional associations was suspect, and probably violated the United States Constitution. A state court construing state law could, no doubt, involve itself in the kind of detailed oversight and management of the institution demonstrated in this case. But nothing we can find in the due process clause of the fourteenth amendment or in Supreme Court decisions authorizes a federal district judge to establish the candle power at desk level of reading lamps, proscribe pink pajamas, or order the superintendent of the institution to maintain seasonal temperatures appropriate for resort hotels. (E.g. winter daytime at 65 degrees or above, and 60 at night, summer temperatures not to exceed 80 degrees.) The Constitution requires only minimally adequate training, and reasonable balance between liberty interests and the institution's operational needs. See Youngberg, 457 U.S. at 322-23, 102 S.Ct. at 2461-62.
In general, we review the scope of an injunction for an abuse of discretion. Hoptowit v. Ray, 682 F.2d 1237, 1245-46 (9th Cir.1982). "Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation." Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Thus,
[w]e will scrutinize the injunction closely to make sure that the remedy protects the plaintiffs' constitutional rights and does not require more of state officials than is necessary to assure their compliance with the constitution. Within these parameters, we will defer to the district court.
Id. at 1089.
1433 In this case, we believe that the distinguished trial judge went well beyond *1433 the oversight of the management of the institution necessary to protect the due process rights of inmates. To the extent that the court ordered due process hearings prior to confinement in excess of 24 hours, and minimum sanitary, health, educational and medical resources for the inmates, the decree was clearly within the power of a federal court to assure minimum constitutional standards taught by Youngberg. But the wholesale adoption of various professional associations' concepts for model institutions as if they were constitutionally mandated was

unwarranted. Hoptowit v. Ray, 682 F.2d at 1253. There we held that it was error for the court to constitutionalize the standards of the American Medical Association and the American Public Health Association.
On remand, the trial court should invite the state to submit a report of the remedial actions it has taken to date, with or without the compulsion of the challenged order, and to designate which remedial actions it will take in the future. The court should then require briefs and arguments that focus on the Youngberg due process concerns. Hoptowit, 682 F.2d at 1247 (citations omitted), is instructive on this point:
... only the specific conditions that violate the Constitution may be remedied, and the remedy may be only so much as is required to correct the specific violation. A remedy may go beyond this only when there is a record of past constitutional violations and violations of past court orders.
In ordering a remedy, courts must consider the cost of compliance and the effect on legitimate security needs. Courts should consider bona fide steps that prison officials are taking to alleviate poor prison conditions. This is not to say that such steps necessarily obviate the need for a remedy. Rather, the court should defer to the policy choices made by prison officials and order a remedy consistent with the basic approach taken by prison officials, unless that approach itself is inconsistent with the Eighth Amendment. See Bell v. Wolfish, 441 U.S. at 562, 99 S.Ct. at 1886.
While it is true that there are "obvious differences between adult penal institutions and juvenile training schools," those differences should be accounted for in the liability stage, not the remedy stage. Once a constitutional violation is found, the remedy should be no broader than is required to meet the particular constitutional standard applied in establishing liability. It is not the duty of the district judge to fashion operating manuals for state institutions. It is, however, the duty of the federal courts to make certain that minimal constitutional rights are preserved. The order entered in the trial court in this case far exceeds anything remotely required by the fourteenth amendment.
Vacated and remanded with neither party to recover costs. If further appeals are necessary, this panel will retain the case.
FERGUSON, Circuit Judge, concurring in the result:
I concur in the result that the majority reaches. I write separately as I cannot join the majority's conclusion that the district judge abused his discretion in issuing the detailed remedial order. The defendants failed to raise any objections to the scope of the order in the district court, and present no convincing reason why we should now review the order despite their failure to preserve the issue for appeal. However, because of potential difficulties of oversight and enforceability, I believe this court should use its general supervisory powers to vacate the district court's detailed remedial order and remand for further proceedings. Second, I believe that the majority, while expressly upholding the district court's findings of fact, fails to detail the serious constitutional violations which it concedes exist at MacLaren and which alone can explain the district judge's resort to such a detailed order.
I.
The plaintiffs alleged that the conditions in MacLaren's separate isolation unit (D-1) violated their constitutional 1434 rights. The district court made findings of fact with respect to each allegedly unconstitutional *1434 condition. This
court may not disturb those findings unless they are clearly erroneous. LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir.1985), amended on other grounds, 796 F.2d 309 (9th Cir.1986). I agree with the majority that the findings of fact are not clearly erroneous, and summarize them here in order to place this case and the relief ordered in its proper factual context.
Use and Length of D-1 Confinement
D-1 commitment is a "serious deprivation of liberty," one that also "increases the length of time a student will be required to spend at MacLaren." Gary H. v. Hegstrom, No. 77-1039-BU, slip op. at 18-19 (D.Or. Dec. 17, 1984) ("Opinion"). MacLaren regulations provide that officials may confine juveniles from the general population at

MacLaren to D-1 isolation only if the juveniles have violated the school's Incident Code or if their conduct poses an imminent threat to themselves or others. Id. at 11. Moreover, the regulations require that, before placing a student in D-1, the administrator must consider whether "less restrictive consequences would be appropriate in light of the student's conduct and his rehabilitative program." Id. at 13.
The district court concluded that defendants made "[e]xtraordinarily high use" of isolation; indeed, half of all students were placed in isolation at some point during a given month. Id. at 11. Moreover, the court found that students were sent to D-1 for conduct that did not require isolation: "`mouthing off' to staff, refusing to obey an order or directive, yelling or swearing, [and] getting out of bed at nights without permission 0907 behavior generally considered typical for adolescents." Id. at 13. The district court accepted the opinion of plaintiffs' expert that "students are assigned to D-1 for punishment," id. at 12, rather than for dangerousness, as required by the regulations.
Juveniles are placed in D-1 for indefinite periods of time, sometimes several days or weeks. The district court concluded, from testimony of MacLaren students and experts, that "[t]he impact on students at MacLaren of repeated, long-term confinement to D-1 has been devastating." The court found that such use of D-1 makes students angry, depressed, frightened, self-destructive, and violent. The district court agreed with plaintiffs' experts "that a student should be confined to a unit such as D-1 only so long as necessary to calm him down, and that [only] in the most extreme circumstances should it be necessary or permissible for a child to be confined to D-1 longer than twenty-four hours." Id. at 15.
Procedural Safeguards[1]
The district court found that, although the juveniles' liberty interests are significantly impaired by confinement in D-1 and the Constitution therefore imposes due process requirements, "procedural safeguards are woefully lacking." The court concluded that the defendants have no system "to assure promptly that a D-1 referral is fair and correct.... [S]tudents are not provided with a meaningful opportunity to be heard prior to their confinement." Id. at 20. Moreover, the Detention Committee, which decides only whether to continue the confinement once a student has already been placed in D-1, insufficiently protects the students' constitutional rights. Students are confined for indefinite periods, and the staff has unfettered discretion to determine their release.
Environment in D-1
The district court concluded, from its observation of the conditions during two visits to MacLaren and from testimony at the hearing, that the isolation cells are "dirty and unsanitary": The cells are infested with insects and body lice; the walls are covered with food, spit, blood, toilet paper, and feces; and the rooms smell of urine. Id. at 23. Lighting is inadequate; rooms are "dark and depressing." Heating and ventilation systems are inadequate; 1435 cell temperatures become uncomfortably hot or *1435 cold. Moreover, the staff often block door windows, cutting off ventilation to the cells.
Mattresses and blankets are in poor condition and contain urine from previous residents; requests for additional blankets are frequently denied. Personal hygiene supplies are inadequate; clothing is frequently in ill repair, ill fitting, and inappropriate.
Discipline
The district court found certain disciplinary practices in D-1 to be inhumane, degrading, and "punitive." For example, the staff frequently "white tag" students 0907 that is, they remove mattresses, bedding, clothing, reading material, and toilets from the cell, and block the door window 0907 for disciplinary reasons. For the first twenty-four hours in D-1, students are "red tagged" 0907 they may not leave their cells, even for meals or exercise. The court concluded that "there is no legitimate state interest in safety, security or internal control to outweigh the individual interests being violated by these practices." Id. at 27.

In addition, the district court found that defendants use physical restraints more often than is necessary and as a substitute for adequate psychiatric care. Despite explicit provisions in the MacLaren rules limiting the use of restraints, students are placed in restraints for "refusing to quiet down, singing, and making noise." Id. at 28. Moreover, mental health professionals do not participate in restraint decisions or inspect the children before, during, or after the use of restraints. Staff members receive no training in applying restraints and sometimes injure students when placing them in restraints. The court concluded that "[b]eing in restraints is a very dehumanizing, demoralizing, depressing experience, and the longer it goes on, the more frustrated and provoked the individual feels," and that "[d]efendants fail both in not adequately training custodial staff in the use of restraints and in not requiring prior approval or, where necessary, supervision after the fact by a qualified professional." Id. at 29.
Exercise
The district court found that the defendants fail to provide adequate opportunities for exercise and recreation, especially large muscle outdoor exercise. Students are denied any recreation for the first twenty-four hours of D-1 confinement and while the students are white tagged. Other students in D-1 are permitted exercise only fifteen to twenty minutes a day; however, defendants often refuse to allow even this limited time. Consequently, juveniles are seldom out of their cells.
The court found that this denial of an adequate recreation program "has a seriously debilitating impact on the D-1 students." Id. at 30. It also concluded that exercise is necessary to relieve the students' tension, anxiety, and anger. Defendants offered no reason for these limitations, and the court concluded that the denial of exercise was irrational because the D-1 compound contained a gymnasium and other recreation facilities.
Education
D-1 students are denied access to any education program. Students have only minimal access to a sparse collection of books, and students are not allowed any writing materials in their cells. The court concluded that the "[s]tudents are harmed by both the deprivation of an education and educational materials in D-1, and by the resulting forced idleness and frustration." Id. at 32. Moreover, it found that the state offered no legitimate justification for denying education.
Food
The district court found that students in D-1 are not provided with the same quality of food as other MacLaren residents; the food is unappetizing, cold, and sometimes full of foreign objects. Moreover, children sometimes go hungry; they are not permitted second helpings, and snacks are not routinely provided. Thus, the district court found that the defendants denied the juveniles their basic right to an adequate and nutritious diet, and violated Or.Admin.R. XXX-XX-XXX, § 40(b)(3)(b)(1) ("[E]ach [D-1] resident shall receive food of the same quality and 1436 quantity, from the same menu *1436 and as nearly as possible on the same schedule, as that provided to all other students.").
Visitation
Visitation for those students in D-1 is limited to thirty minutes on Sunday afternoons. The district court found that this restrictive policy "ultimately works to discourage family involvement in a child's rehabilitative program." The court concluded that parental visitation is an "integral part of a child's right to treatment." Opinion at 33.
In addition, the defendants presented no "reasonable justification or legitimate reason for their overly restrictive visitation policy." Id. at 34. It found no time or space problems to justify the overly restrictive practice. Moreover, the fact that non-D-1 students are routinely permitted visits and even off-campus privileges belies any assertion that the policy promotes security interests.

Medical Care
The district court found many facets of medical care in D-1 to be inadequate: health evaluation and sick call; drug and alcohol dependency;[2] medication; mental illness; and staff and training.
First, the court found a failure to evaluate students' health as they are admitted to D-1; the lack of a sick call system that ensures that each D-1 student with a health problem is identified and provided with needed care; and a failure to respond appropriately to the known health problems of students in D-1. Even when students specifically request medical attention, the staff sometimes ignores them.
Second, the district court found that untrained staff members administer psychotropic, stimulant, and tranquilizing medication on some students. There is no adequate system for evaluating the students and no physician available for medical emergencies. The court found it vital to have prompt initial evaluation and periodic evaluation for adverse effects of psychotropic, stimulant, and tranquilizing medication. It concluded that the lack of such evaluations threatens the health of the juveniles. The "almost non-existent monitoring system harmed the students by exposing them to undetected side effects and impeded assessment of the effectiveness of the type of dose of the medication given." Id. at 36-37.
Third, the court concluded that, despite the high number of D-1 residents who "are both severely mentally disordered and engage in suicidal, self-destructive, or self-mutilating behavior," defendants provide little or no mental health treatment. Id. at 37. The court found many examples of students who engaged in self-mutilation, and who did not later receive mental health care. From the experts' testimony, the court concluded that D-1 is an inappropriate place for children with suicidal or self-destructive tendencies. "Since sufficient mental health professional staff is not available at MacLaren, D-1 is used inappropriately to `punish' those severely disturbed youngsters. Defendants are, in effect, using a lock-up instead of providing treatment." Id. at 38.
In addition, the district court found that mental health resources throughout MacLaren were inadequate; as a result, students in D-1 "have no chance of receiving meaningful mental health treatment." Id. One psychiatrist works in MacLaren or D-1 three hours a week; one psychologist works twelve hours a week; another psychiatrist works four hours once every two weeks. Thus, counseling of students, superficial at best, is performed almost exclusively by untrained, non-mental-health professionals. This situation produces long delays in obtaining any treatment. One student who had intentionally cut himself had to wait for a month to see a psychiatrist.
Basing its conclusion on its evaluation of the expert testimony, national guidelines, Oregon's administrative 1437 procedures, and MacLaren's own regulations, the court ruled that the inadequacy of each of these *1437 medical
conditions violated the juveniles' constitutional rights.
II.
I agree with the majority that where, as here, an institution is noncriminal and nonpenal, allegations of unconstitutional conditions of confinement are governed by the more protective standard of the Fourteenth Amendment, rather than the Eighth Amendment.[3] I also concur in the majority's conclusion that the district court's findings of fact are sufficient to establish a violation of the Fourteenth Amendment.
In cases in which the state has expressed an intent not to punish, a determination that a practice constitutes punishment, and thus violates the Due Process Clause, "generally will turn on `whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.'" Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979). "In assessing whether the conditions are reasonably related to the assigned purposes, we must, further, inquire as to whether these conditions `cause (inmates) to endure (such) genuine privations and hardships over an extended period of time,' that the adverse conditions become excessive in relation to the purposes assigned for them." Union County Jail Inmates v. Di Buono, 713 F.2d 984, 992 (3d Cir.1983) (finding temporary overcrowding in jail facility not punishment) (quoting Bell, 441 U.S. at 542, 99 S.Ct. at 1876), cert.

denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984). Thus, a court examines the government's interest in maintaining the condition, and determines whether the condition is reasonably related to the interest. See Hamm v. DeKalb, 774 F.2d 1567, 1573 (11th Cir.1985) ("failure to provide [minimal level] of necessities violates due process 0907 even though the conditions imposed serve some ordinarily legitimate state objective"), cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986).
Defendants argue that the district court erred in applying these standards by (1) balancing the juveniles' liberty rights against the state's interest, thus failing to give "proper deference" to the state officials' professional judgment, and (2) improperly relying on the plaintiffs' experts in making its conclusions. Defendants contend that the district court's task is to "defer to professional judgment." These arguments misconstrue both the district court's role generally, and how the district court in this case correctly fulfilled its role.
Under a due process analysis, a state interest is insufficient to justify the imposition of certain conditions or regulations when a protected liberty interest exists if the "officials' belief as to the need for the regulation is unreasonable, or [if] the officials have exaggerated their response to an otherwise legitimate penological objective." Hill v. Blackwell, 774 F.2d 338, 343 (8th Cir.1985). A district court has a constitutional obligation to conduct this inquiry. The defendants' suggestion that the courts "defer to professional judgment" negates this essential duty.
In determining whether a response is excessive, a court must weigh the infringement resulting from the response on the individual's liberty against the state's interest. The greater the infringement, the greater the state's interest must be to uphold the infringement. See, e.g., Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2571, 57 1438 L.Ed.2d 522 (1978) (courts must consider duration of confinement in deciding *1438 whether conditions meet constitutional standards); cf. Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir.1982) (Hoptowit I) (Eighth Amendment requires balancing, and therefore permits greater restrictions on inmates' rights during prison emergency). This weighing process properly rests with the prison officials, see Block v. Rutherford, 468 U.S. 576, 589, 104 S.Ct. 3227, 3234, 82 L.Ed.2d 438 (1984), and a court may not substitute its views for prison officials' "sound discretion," id.; see also id. (district court's "further balancing resulted in an impermissible substitution of its views on the proper administration of Central Jail for that of the experienced administrators of that facility") (emphasis added).
However, a court undergoes a similar process to determine whether the officials in fact made a reasonable and sound decision. See Hill, 774 F.2d at 342 ("[T]he district court must necessarily balance the need for the particular regulation against the invasion of religious freedom that the restriction entails."); Milonas, 691 F.2d at 942 (Due process requires a "balancing process to determine whether the challenged disciplinary practices were so onerous as to overcome the legitimate administrative and security interests of the school.").
Defendants contend that the district court erred by balancing the intrusion on the juveniles' rights against the state's interests when it limited the use of D-1 to those situations in which "`less restrictive measures' were unavailable." Yet, the district court derived its standard from the state's own administrative rules governing MacLaren. Or.Admin. (Children's Services Division) [hereafter "Or.Admin."] R. XXX-XX-XXX, § 40(A)(2)(a) ("Detention Committee must consider whether alternative consequences would be more appropriate in light of the student's conduct and his rehabilitation program."). To the extent that professional judgment deserves deference, the formulation found in the regulation limiting use of D-1 represents that professional judgment. That the MacLaren staff ignored its own regulations represents a sufficiently "substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982).
In sum, the district court "balanced" the intrusion of each condition at MacLaren against the state interest only as necessary to determine whether the defendants actually exercised professional judgment. See Santana v. Collazo (Santana II), 793 F.2d 41, 45 (1st Cir.1986) (Youngberg establishes "that if the need for restraints, in this case the need for extended isolation, can be significantly reduced or eliminated by other equally effective but less confining methods requiring relatively minimal additional effort, it is unreasonable not to use them") (emphasis in original); Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir.1985) ("We are satisfied that ... the prison authorities have devised the least intrusive means to serve the state's interest in prison security.") (emphasis added); Wells

v. Franzen, 777 F.2d 1258, 1261-62 (7th Cir.1985) ("[I]t is the duty of a court to ensure that professional judgment in fact was exercised."). These decisions recognize that such balancing is essential. Only when the court begins to substitute its own judgment for that of the officials does it ignore its responsibility under the Due Process Clause. The district court did not substitute its judgment because it found that no legitimate state interest justified the conditions.[4]
Nor did the district court err in considering the testimony of experts in determining whether conditions at MacLaren violated due process. A court must use objective standards in concluding that a practice violates the Constitution. The Supreme Court has cautioned that "`Eighth Amendment judgments should neither be nor 1439 appear to be merely the subjective views' of judges." Rhodes v. Chapman, 452 U.S. 337, 346, 101 *1439 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoting Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382 (1980)).
The district court followed this rule when it based its conclusions on an examination of case law, Oregon statutes and MacLaren regulations, the testimony of the experts, and juvenile justice standards. The court recognized that national standards "do not have the force of law," but that they do provide objective guidance from "juvenile corrections administrative experts whose advice is to be given presumptive validity by the courts." Opinion at 16 (citing Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462, and Bell v. Wolfish, 441 U.S. at 544, 99 S.Ct. at 1877).
Defendants contend that the experts testified as to what would be appropriate treatment, not as to whether the practices at D-1 were reasonably related to reform and discipline. This argument mischaracterizes the district court's use of the experts' testimony. That part of the expert testimony on which the district court relied concerned the effects of the challenged practices on the juveniles, both psychologically and physically. This testimony supports the district court's conclusions that "students are assigned to D-1 for punishment," that "long-term confinement to D-1 has been devastating," and that "[t]he absence of an adequate recreational program has a seriously debilitating impact on the D-1 students." Moreover, the district court used MacLaren's administrative rules and national institution standards in determining whether the practices at MacLaren were constitutional.
I believe therefore that the district court's use of expert testimony, Oregon's administrative rules, and national standards fully complied with the constitutional analysis required. See Wells, 777 F.2d at 1262 ("due process standards [for using restraints] is based on norms set by the mental health professionals"). I concur in the majority's conclusion that the district court correctly found that conditions at MacLaren violated the juveniles' rights to due process. Where we part company is over the question of whether the district court abused its discretion in entering an extremely detailed remedial order as final judgment in this case.
As the majority correctly states, we review the scope of an injunction for an abuse of discretion. Hoptowit I, 682 F.2d at 1245-46. The majority concludes that the district court abused its discretion because the relief ordered against the state was broader than necessary to remedy the constitutional violations. However, this court will not "review an issue not raised below unless necessary to prevent manifest injustice." International Union of Bricklayers Local Union No. 20 v. Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). We have previously noted that "[i]n Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976), the Court suggested such cases be restricted to those where the proper resolution is beyond doubt or where injustice would otherwise result." Lien Ho Hsing Steel Enter. Co. v. Weihtag, 738 F.2d 1455, 1461 (9th Cir.1984). Other circuits have held that this general rule applies to scope of injunction arguments. See, e.g., Pawlak v. Greenawalt, 628 F.2d 826, 831 n. 5 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). Consequently, objections to injunctions generally must be first made to the district court prior to appellate review. The state is thus precluded from objecting to the scope of this injunction on appeal because it did not raise any argument as to the scope before the district court. When the defendants lead the district court "down the primrose path," as they did here, they cannot later complain that the district court's order was improper.
The district court, in its opinion filed in December 1984, ordered the parties to submit proposals "as to how relief should be fashioned." Opinion at 40. After several weeks of negotiations, the parties submitted the proposed order, which the district court adopted. The state claims that it only assisted with the "form of the judgment." However, from the correspondence contained in the Appellee's Motion to Supplement the Record, I conclude that 1440 the actions were true negotiations. Such actions *1440 constitute a waiver as to the scope of the injunction.[5]

Moreover, even if these negotiations are not, in themselves, a waiver, the state failed to raise any objections to the scope of the order in the district court.
If the defendants believed that the court abused its discretion by issuing an order that went beyond the constitutionally required minima, they should have raised the issue below. In light of their failure to do so, and the egregious constitutional violations that resulted from conditions at MacLaren, I cannot agree with the majority that the district court judge abused his discretion.
Nevertheless, I am concerned that the detailed requirements of the district court's order may place an unmanageable burden of oversight and enforcement on the federal courts. Thus, I would rely on the supervisory power of this court to vacate and remand for further proceedings. This court has previously held that the judiciary may use its supervisory power to maintain its own institutional integrity. United States v. Gonsalves, 691 F.2d 1310, 1319 (9th Cir.1982). This court has also held, quoting the Supreme Court's opinion in La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77 S.Ct. 309, 315-16, 1 L.Ed.2d 290 (1957), that "supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system," Burton v. United States, 483 F.2d 1182, 1187 (9th Cir.1973). A detailed remedial order such as the one at issue here may present intractable problems of enforcement, and may blur the boundary between the duty to ensure compliance with constitutional mandates and an overly intrusive intervention in the day-to-day management of a state facility. In such cases, I believe that deference to the concerns of federalism, and the need to preserve the integrity of the federal judicial system require us to use our supervisory power to vacate the district court's remedial order, although that court did not abuse its discretion in entering the order, and despite the defendant's failure to challenge the scope of the order in the district court.[6]
On remand, I urge the defendants to take heed that this court found no error in the district court's findings of fact nor in its conclusions as to the substantial constitutional violations arising from conditions at MacLaren. While the federal courts are properly mindful of the integrity of state management processes, they will not tolerate continuing constitutional abuses.
[1] Defendants apparently agree with the district court's legal conclusions regarding this issue. See Appellant's Opening Brief at 23 n. 6.
[2] Despite the court's finding that the defendants had not provided any drug and alcohol treatment programs, the order fashioned by the parties contains no mention of such programs.
[3] The distinction between the two constitutional protections would not affect my conclusions in this case. With a few exceptions, application of either Eighth Amendment requirements or higher Due Process Clause requirements supports the district court's conclusions. Even if the Eighth Amendment applies, the level of care required here must account for the fact that those housed in MacLaren are juveniles. The "evolving standards of decency" against which courts evaluate the constitutionality of the conditions certainly provide greater protection for juveniles than for adults. See Santana I, 714 F.2d at 1179 ("It would not be unreasonable to assume that society's conscience might be shocked by the conditions of confinement imposed on a juvenile in an isolation cell, when it would be unwilling to label the same treatment, given to an adult, cruel and unusual.").
[4] Defendants' position on this appeal is seriously undercut by their briefs' failure to present to this court a legitimate state interest for any of the practices the district court found unconstitutional.
[5] Thus, the plaintiffs likewise are precluded from challenging the injunction because it does not include any provisions for drug and alcohol treatment even though the district court made findings on that issue.
[6] The supervisory power more frequently arises in the context of criminal proceedings rather than civil suits. See Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum.L.Rev. 1433 (1984). Where the institutional integrity of the federal judicial system is implicated, as here, the same policy concerns that underlie the resort to the supervisory power in criminal proceedings apply with equal force in the civil context.

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