Case 1:07-cv-00276-LY Document 4
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Filed 04/13/2007 Page 1 of 34

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UNITED STATES DISTRICT COURT

FILED.

WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

JOSEPH GALLOWAY, individually and

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APR 13 2007
CLERK. u.s. DISTRICT COURT
:V&$'t~T OF TEXAS

on behalf of all those similarly situated,

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DEPUTY CLERK

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Plaintiff

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v.

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CIVIL ACTION NO.

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STACEY DELGADO, individually and in her official capacity,

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A07cA276 LY

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MRS. HENRY, in her capacity as executor of §

the estate of Mr. Henry,

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MR. WILLIAMS, individually and in

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his official capacity,

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MR. SHACKLEFIELD, individually and

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in his official capacity,

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MR. RANGEL, individually and in his

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official capacity,

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COMPLAINT

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MR. TREVINO, individually and in his

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official capacity,

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MANUEL TORRES, individually and in his

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official capacity,

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MR. BRIGGS, individually and in his

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official capacity,

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MR. WATSON, individually and in his

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official capacity,

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ROBERT McQUEEN, individually and

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in his official capacity,

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VERONICA GAGNE, individually and

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in her official capacity,

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DON BRANTLEY, individually and in

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his official capacity,

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LINDA REYES, individually,

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DWAYNE HARRIS, individually and in

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his official capacity,

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DWIGHT HARRIS, individually,

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BART CALDWELL, individually and in

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his official capacity,

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J. McDANIELS, individually and in her

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official capacity,

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MS. KITCHENS, individually and in her

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official capacity,

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TERI WILSON, individually and in her

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official capacity,

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GERALDO PENUELAS, individually

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and in his official capacity,

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DON FREEMAN, individually and in his

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official capacity,

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BLU NICHOLSON, individually and in

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his official capacity;

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JEROME PARSEE, individually,

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LYDIA BERNARD, individually and in

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her official capacity,

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CHESTER CLAY, individually and in his

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official capacity,

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KERRI DAVIDSON, individually and in

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her official capacity,

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ED OWENS, in his official

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capacity,

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UNKNOWN TYC STAFF, in their official and §

individual capacities; and,

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TEXAS YOUTH COMMISSION,

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Defendants

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COMPLAINT Plaintiff Joseph Galloway, individually and on behalf of those similarly situated who were, are, and will be incarcerated in the facilities of Defendant Texas Youth Commission, files this suit against the Defendants and would show:
STATEMENT OF THE CASE 1. Plaintiff Joseph Galloway, individually and on behalf of those similarly-situated, complains that the Texas Youth Commission ("TYC") and its current and former staff routinely and daily violated the federal statutory and constitutional rights of children incarcerated in TYC facilities, and, in short, relegated their youthful lives to a living hell. 2. Defendants routinely denied Joseph and other children with qualified disabilities the reasonable accommodations to which they are entitled under Chapter 121 of the Texas Human Resources Code ("Chapter 121"), Tex. Hum. Res. Code Ann. § 121.001 et seq., Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, resulting in physical injuries and continued incarceration. 3. TYC employees, through custom, policy, and individual action, routinely physically and sexually assaulted, and allowed other inmates to assault, Joseph and other children, denied them due process of law under the Fourteenth Amendment to the United States Constitution, denied their right to access to the courts under the First, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Texas Constitution, subjected them to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Texas Constitution, compelled them to bear witness against themselves in violation of the Fifth and Fourteenth Amendments of the
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United States Constitution and Article 1, Section 10 of the Texas Constitution, and retaliated against them for speaking about the problems in TYC in violation of the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 8 ofthe Texas Constitution. These claims are brought through 42 U.S.C. § 1983.
4. Defendants Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes conspired for years to suppress reports ofthe violations of Joseph and other children's statutory and constitutional rights. These claims are brought pursuant to 42 U.S.C. § 1985(2).
JURISDICTION AND VENUE 5. This Court has jurisdiction over Plaintiffs claims under 28 U.S.C. §§1331, 2201. 6. Venue is proper in this Court under 28 U.S.C. §1391(a)(I) & (2) because TYC's central office and operational, decision-making center is located in this judicial district, because some of the Defendants reside in this district, and because incidents at bar took place within this judicial district. Plaintiff further invokes supplemental jurisdiction of this Court pursuant to 28 U.S.C. § 1367(a) to consider his state law claims.
PARTIES 7. At the time of the below-described incidents, Joseph was an inmate in TYC custody. Similarly situated-children remain in TYC custody, although Joseph has been released and now resides in Houston County, Texas. 8. Defendant TYC is an agency ofthe State of Texas. 9. In all actions described herein, Defendants Delgado, Williams, Shacklefield, Rangel, Trevifio, Torres, McQueen, Briggs, Watson, Gagne, Brantley, Reyes, Dwayne Harris, Dwight Harris, Caldwell, McDaniels, Kitchens, Wilson, Penuelas, Freeman, Nicholson, Parsee,
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Bernard, Clay, and Davidson each were acting under color oflaw and pursuant to legal authority. Each was an employee or contractor of TYC and, as such, were responsible for upholding the laws of the United States and the State of Texas. They each are sued for damages, injunctive, and declaratory relief.
10. Defendant Owens is the executive director for TYC. He is sued for injunctive and declaratory relief only. He can be served at TYC's central offices, 4900 N. Lamar Blvd., Austin, IX 78751.
11. Mr. Henry died shortly after committing the violations of Joseph's rights alleged below. Mr. Henry's wife, Mrs. Henry, is the executor of his estate. See Tex. Probate Code § 77(b). Joseph may "enforce the payment [of a claim] by suit against the independent executor" pursuant to Texas Probate Code § 147. Mrs. Henry may be served at the Giddings State School, 2261 James Turman Rd., Giddings, IX 78942.
12. Defendant Stacey Delgado is an employee of TYC. She can be served at the Giddings State School.
13. Defendant Williams is an employee of TYC. He can be served at the Marlin Orientation and Assessment Unit, 2893 State Highway 6, Marlin, IX 76661-6558.
14. Defendant Shacklefield is an employee of TYC. He can be served at the Marlin Orientation and Assessment Unit.
15. Defendant Rangel is an employee of TYC, and can be served at the Giddings State School.
16. Defendant Trevino is an employee of TYC. He can be served at the Evins State School, 3801 East Monte Cristo Rd., Edinburg, TX 78541.
17. Defendant Manuel Torres is an employee of TYC. He can be served at the Evins
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State School. 18. Defendant Robert McQueen is an employee of TYC. He can be served at the
Crockett State School, 1701 S.W. Loop 304, Crockett, TX 75835. 19. Defendant Veronica Gagne is an employee of the University of Texas Medical
Branch ("UTMB"), which contracts with TYC to provide medical care to incarcerated children. She can be served at the Crockett State School.
20. Defendant Mr. Briggs is an employee of TYC. He can be served at the Crockett State School.
21. Defendant Mr. Watson is an employee of TYC. He can be served at the Crockett State School.
22. Defendant Don Brantley is an employee of TYC. He can be served at TYC's central offices, 4900 N. Lamar Blvd., Austin, TX 78751.
23. Defendant Linda Reyes can be served at 706 S. McCarty Ave, Apt. B, Eagle Lake, TX 77434-3212.
24. Defendant Dwayne Harris is an employee of TYC, and can be served at TYC's central offices.
25. Defendant Dwight Harris can be served at 2606 Waterwell Ln., Austin, TX 787284420.
26. Defendant Bart Caldwell is an employee of TYC, and can be served at the Evins State School.
27. Defendant J. McDaniels is an employee of UTMB. She can be served at the Crockett State School.
28. Defendant Ms. Kitchens is an employee of UTMB. She can be served at the
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Crockett State School. 29. Defendant Teri Wilson is an employee of TYC. She can be served at the Crockett
State School. 30. Defendant Geraldo Penuelas is an employee ofTYC. He can be served at the Evins
State School. 31. Defendant Don Freeman is an employee of TYC. He can be served at the Crockett
State School. 32. Defendant Blu Nicholson is an employee of TYC. He can be served at the Crockett
State School,. 33. Defendant Jerome Parsee can be served at 1410 Lorene Ln., Marlin, IX 76661-
9764. 34. Defendant Lydia Bernard is an employee of TYC and can be served at TYC's
central offices. 35. Defendant Chester Clay is an employee ofTYC and can be served at TYC's central
offices in Austin. 36. Defendant Kerri Davidson is an employee of TYC and can be served at Tye's
central offices in Austin. CLASS ACTION
37. Joseph and the similarly-situated class members comprise a class of approximately 4,700 individuals who are currently or were recently in TYC custody.
38. Joseph and the class members meet all the prerequisites for a class action as provided under Federal Rule of Civil Procedure 23 for injunctive and declaratory relief.
39. The class for which Joseph and the class members comprise is so numerous that
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joinder of class members is impracticable. 40. Questions of law and fact are common to this class, namely: a. TYC denies them due process of law through its indeterminate sentencing scheme; b. TYC denies them access to courts through its policies and procedures; c. TYC violates their protections against self incrimination by requiring confessions as part of their "therapy;" d. TYC fails to protect them from harm, in violation of their Eighth and Fourteenth Amendment rights; and, e. Defendants Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes conspired to suppress reports of physical and sexual abuse occurring in TYC facilities. 41. Joseph and the class member's claims as described herein are typical of the claims
of the class. Together, Joseph and the class members support their theories for injunctive and declaratory relief on the same legal theories alleged in this case.
42. Joseph and his counsel will fairly and adequately protect the interests of the other class members. Joseph's counsel, James C. Harrington, Wayne Krause, Sheri Tolliver, and Scott Medlock, are capable of zealously representing class interests and are qualified to litigate this type of action. Joseph and his counsel will adequately assert and support the legal claims that form the basis of this action. Joseph and the students will benefit equally by virtue of this action ifthe Court recognizes and vindicates their federal statutory and constitutional rights.
43. This class action may be properly maintained under the Federal Rules of Civil Procedure 23(b)(2) because Defendants' conduct pursuant to their procedures, policies, and/or practices denied Joseph and the class members their constitutional rights and final declaratory relief will settle the legality of the Defendants' challenged procedures, policies, and actions for the class as a whole.
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44. Joseph also brings his own claim for damages as an individual for the physical and sexual abuse he individually suffered while in TYC custody, separate from his claims as class representative for injunctive and declaratory relief. He seeks no damages for the class.
FACTS 45. Joseph is nineteen years old and has been in TYC since he was fifteen. When he was eight years old, he spent time in a state mental hospital, where he was treated for bipolar disorder. Joseph is a thin teenager and also has Tourette's Syndrome and Attention DeficitIHyperactivity Disorder (ADHD). 46. Tourette's Syndrome is characterized by a collection of symptoms, including involuntary movements and sounds and involuntary compulsive rituals and behaviors. People with Tourette's Syndrome experience obsessions, compulsions, inattention, impulsivity and mood variability. The disability can cause people to involuntarily move, make loud noises, blink, nod, shake, and curse, and may manifest itself more acutely during adolescence. Tourette's Syndrome is a mental impairment that substantially limits one or more major life activities. 47. Joseph has been taking some form of medication for his disabilities since he was five years old. He currently takes Clonidine to control his Tourette's Syndrome. Clonidine is a powerful drug that can cause drowsiness and dizziness. 48. Joseph has been incarcerated in four different TYC facilities: Marlin Orientation and Assessment Unit ("Marlin"), Giddings State School ("Giddings"), Evins State School ("Evins") and Crockett State School ("Crockett"). He was most recently incarcerated in Crockett. 49. When children enter TYC, they are initially processed through Marlin. Most
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children spend about two months in Marlin before they are sent to other facilities. Joseph spent approximately forty-five days at Marlin.
50. During their time at Marlin, children are supposed to be tested and evaluated to determine how they will be rehabilitated. Children are provided with an "individualized case plan," or ICP.
51. TYC assembled Joseph's ICP without input from him or his parents. In order to formulate his ICP, it limited all its testing and assessment on Joseph to his responses to a computer program. He and his parents never spoke with a TYC counselor or caseworker about the ICP, and TYC only tested Joseph to see if he had a learning disability or was mentally retarded. The ICP did not consider Joseph's existing disabilities.
52. Most children in TYC are incarcerated for an indeterminate sentence. Theoretically, children are only incarcerated until they are rehabilitated. To be paroled, a child has to complete their "phases" in TYC's "Resocialization©" program. There are five phases (04), and each phase has three components (Academic, Behavior, and Correctional). A child can complete one of their phases, and not advance in the others. A child could succeed academically but remain in TYC, ifTYC officials arbitrarily determine the child has a "behavior problem."
53. Defendants Brantley and Reyes developed the "Resocialization©" program, and retain proprietary rights in the program. Brantley and Reyes personally profit from TYC's decision to use the "Resocialization©" program, and have a personal financial interest in its continued use.
54. A disciplinary action against a youth is a "225," named for the number of the form completed. A 225 can be either a "category 1" or "category 2." Category 1 is "major," and would include assaulting a fellow student or an officer. A "category 2" is "minor," and would
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include using foul language. 55. Tye intentionally discriminates against children with disabilities by assigning them
225s for manifestations oftheir disability. Tye has given Joseph disciplinary actions for: a. Falling asleep after talcing his medication which makes him drowsy; b. Playing with a banana; c. Sitting in the wrong seat during church; d. Wearing his socks pulled down; e. Wearing pants that were too large, although Tye provided the pants to him; f. Wearing an extra shirt when he was cold; g. Wearing a long sleeve shirt when he was cold; h. "Acting out" because of his disability; i. Having cornflakes in his bowl ofmilk when he was on a "soft food" diet; j. Looking out the window during class; and, k. Shalcing hands with another child.
56. To complete the "B" phase, children must pass through four levels. To achieve the "B-1" phase, a child cannot have more than seven "category 2"s and no "category 1"s in a month. To achieve the "B-2" phase, a child cannot have more than five "category 2"s in a month and no "category 1"s. To achieve the "B-3" phase, a child cannot have more than three "category 2"s, and no more than one "category 2" to achieve the "B-4" phase. The "B" phase is reviewed every 30 days, and each month's number of 225s determines "graduation" to the next phase. A child can only be promoted through one "phase" each month, so it will take a child a minimum of four months to be promoted through the "B" component. Tye refused to promote Joseph through his "B" phase for being "playful and immature," even though Joseph's disability
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and age contributed to his "playful and immature" behavior. 57. ro complete the "C" phase, a child must identify the "errors in [their] thinking".
Completion of the "C" phase does not constitute actual mental health therapy because ryC "therapists" only require students to memorize and recite a "script." ryc "therapists" are not credentialed to provide mental health therapy or trained to recognize children's mental disabilities.
58. "C-l" requires memorizing "nine thinking errors." "C-2" requires a child to write and memorize their "life story." "C-3" requires a child to talk about their "offense." This involves other children ridiculing the student during group therapy. The ''therapist'' reads the group the police investigation statements and victim impact statements from the student's offense, although these documents are confidential under rexas Government Code § 508.313. The other members of the group then "make fun" of the student, and a child advances to the next phase only when they show sufficient "empathy," as arbitrarily determined by ryc. "C-4" requires developing a "success plan," which outlines what the child will do when they leave ryc custody. Despite requiring children to formulate "success plans," ryc provides children with no support once they leave prison.
59. ryC requires children to "confess" to elements of their offenses that were not the subject of fmdings by the trial court. In some cases, these "confessions" are later used against the child or the child's parents in Child Protective Services investigations or future criminal proceedings. If a child's confession does not satisfy rYC, the sentence can be extended. A child will only be released when ryc is satisfied the child has fully "confessed," even if this means admitting things that are not true, were not found by the family court that sentenced the child, and could subject the child or parents to future legal consequences.
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60. Due to the discrimination against Joseph's disability and violations of his due process rights, Joseph should have been released years earlier. Instead, ryc illegally held him captive in its hellish system, thereby depriving him of his youth and subjecting him to abuse by its employees and detainees.
61. Joseph completed his "phases" in 2006 but his caseworker, Defendant Penuelas, admitted that Defendants "never put it in the computer system." ryC does not have centralized record keeping or data collection indicating what phases have been completed. ryc only keeps centralized records of the number of 225s a student has accumulated. When children are transferred between ryc facilities, their records do not always transfer with them. ryc keeps the records in a physical file that guards are required to move with the child during transport. Records are frequently lost because of this system. rransfer between facilities can dramatically extend a child's incarceration. This basic record keeping failure requires children to complete their "phases" multiple times and delays their release from ryc. ryc should have released Joseph long ago. But even by its own discriminatory practices, the latest release date would have been October 26,2006. ryc failed to release him until AprilS, 2007.
62. When Joseph arrived at Crockett, he told officials he had completed his "phases" and should be released. The finals steps of Joseph's "reintegration" had already been completed. Defendants told Joseph he was "making excuses" for why he had not been released and that it was his fault he was still in ryc.
63. ryc has taken Joseph's "phases" away without due process. Removing his phases was arbitrary and capricious. Joseph once went from B-4 to B-1 without due process, even though it originally had taken him fourteen months to achieve B-1. When a "phase" is taken away, there is usually no due process hearing. Joseph was never provided with counsel for a
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hearing, and, when he was a minor his parents were never informed ofthe hearings.
64. rye only provides a due process hearing when a student is given a "category 1"
225, even though "category 2" 225s are frequently used to extend a child's sentence. When a "level 2" hearing is held for a "category 1" 225, the decision-makers are the superintendent, program associates, and caseworker at the facility. These individuals are not impartial, and
frequently are the same rye officials whose allegations form the basis of the complaint. When
hearings are held, staff frequently refuse to allow witnesses to be called who would support a child's position.
65. Most children are told they will receive nine months in rye custody when a judge sentences them. When children arrive in rye custody, rye staff uniformly tell them they will
serve at least two years. When a child complains that a judge only sentenced him to nine
months, rye staff have responded, "Judges don't make rules for rye. rye makes its own
rules." 66. While he was at Marlin, Joseph was sent to security for "disrespecting staff' in
Spring 2003. Disturbed by the combination of his incarceration, difficult past, disabilities, and changed circumstances, he had been reduced to beating on the wall in his cell. The security director at the prison taunted Joseph, cajoling him to "keep standing up" and "keep beating on that."
67. Defendants Shacklefield and Williams were called to take Joseph out of his cell. They came in the cell and hit Joseph in the face with their riot shield, breaking his nose and causing serious physical injury. Defendants knocked Joseph unconscious. He woke up in a pool of his own blood, with more running down his face and allover his shirt. Defendants carried him out ofthe cell in leather restraints to the infirmary.
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68. In the infirmary, TYC nurses told Joseph his nose was broken, but only gave him toilet paper to stop the bleeding. When he was taken back to his cell, he saw in the mirror his nose was crooked and continuing to bleed. Defendants having been deliberately indifferent to his injuries, Joseph had to pop his nose back into place himself. TYC videotaped this incident.
69. Because of this incident, Joseph was placed on "BMP," the "Behavior Management Program." BMP is "isolation"-students are taken out of the "dorm" and placed in segregation cells. Students are only supposed to spend two weeks in BMP. Joseph was in BMP for almost three weeks. Children have to "eam their way out" of BMP, as arbitrarily determined by TYC. Only a "level 2" hearing takes place before children are put in BMP. TYC fails to provide parents notice of their children's hearings, and students are not provided counsel before entering BMP. Shacklefield told Joseph he was kept on BMP so long because the "paperwork was lost."
70. Joseph was transferred to Giddings after he left Marlin. He spent approximately three years and three months at Giddings, from mid-2003 until April 2006.
71. When Joseph was first at Giddings, he was living in Dorm 8. Female staffworked in the dorm. Joseph had ajob as a "kitchen boy," and would clean up the kitchen, buff the floors and launder clothes from the kitchen.
72. Joseph was putting clothes in the washer when Defendant Delgado approached him. She told him, "It's my turn to touch you." She grabbed his crotch and felt his penis. She started squeezing his penis through his clothes. Delgado deliberately and intentionally performed oral sex on Joseph, even though he was underage and in custody. Delgado intentionally violated Texas Penal Code §§ 21.11 (indecency with a child) and 39.04(a)(2) (improper sexual activity with person in custody).
73. Delgado told Joseph not to tell anyone about what happened. She never worked in
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Donn 8 again after it happened. She had sex with other male inmates at Giddings.
74. Around December 2003, rye allowed another inmate to rape Joseph at Giddings.
Mr. Henry escorted Joseph back to the single cells. When Henry took Joseph to the cells, they were all filled with other detainees. Some inmates were yelling to Henry, "Put him in with me!" and "I want a piece of ass!" Henry chose to put Joseph in a cell with a large, older inmate named Steven, in spite of the fact that Steven yelled at Henry he that planned to rape Joseph.
75. Henry put Joseph in the cell, and made Joseph take offhis clothes for a strip search in front of the threatening rapist. Henry forced Joseph to strip and bend over in full view of Steven. Then Henry deserted Joseph while he was putting his clothes back on in the cell.
76. Steven told Joseph to take his clothes back off. Joseph refused. Steven punched Joseph twice in the head. Joseph fell down. Joseph tried to fight back, but Steven was much larger and stronger. Steven turned Joseph around and took offhis pants. Joseph told him, "Stop, don't do it." Steven continued punching Joseph. Joseph told him to stop, but Steven sodomized him multiple times, causing serious physical injury.
77. Steven told Joseph, "Don't worry, 1 won't tell anyone." Joseph was afraid to report
what Steven did to him because he would be considered a "snitch," and rye guards would not
protect him from further assault. Joseph spent the next twenty-four hours in the same cell with his rapist.
78. rye guards, including Henry, are supposed to check the cells every fifteen minutes.
Many guards forge their log sheets and only actually perfonn checks every hour. While Joseph
was being raped, rye guards failed to check his hallway and failed to protect him. Henry was
in another hall between two solid doors. Despite knowing Steven planned to rape Joseph, Henry placed Joseph in the cell and left the area. Henry was deliberately indifferent to Joseph's right to

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be protected from rape. 79. The same night, a few hours later, Henry took Joseph out of the cell to shower. He
saw Joseph's underwear was covered in blood, and asked him, "What's wrong with your ass?" Henry did not report that Joseph may have been sexually assaulted to anyone, even though he had obvious cause to believe Joseph had been raped and even though he had an obligation to report the sexual assault pursuant to Texas Family Code § 261.101. After Joseph showered, Henry returned him to the cell with Steven for another fifteen hours.
80. Steven took Joseph's food that night, so Joseph did not get to eat. Larger, stronger inmates frequently steal food from smaller, weaker students. TYC guards know this takes place, but are deliberately indifferent to it.
81. A few weeks later, Joseph went to the infirmary after complaining of blood in his stool. The nurses failed to report that Joseph may have been sexually assaulted, even though they had cause to believe he was a victim of sexual assault and were required to report suspected child abuse pursuant to Texas Family Code § 261.101. No forensic rape examination was done, and Joseph was only given Metamucil for "constipation."
82. Joseph continues to suffer a serious ongoing physical injury because of Henry's deliberate indifference. A few weeks after Joseph was raped, Henry committed suicide.
83. Records indicate Joseph was also sexually abused by TYC staff during transport between TYC facilities in the back of a van.
84. In February 2006, Joseph attempted suicide twice at Giddings. He was depressed, dwelling on what had happened to him in the hands of Defendants. TYC had caused Joseph to lose his phase and once again did not allow him to go home. He had to call his parents and tell them he would not be coming home again. Joseph felt that he would never get out of TYC.
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85. During the ftrst suicide attempt, Joseph cut his wrists several times, causing a physical injury. A guard, Defendant Rangel, found him. Rangel refused to take him to the inftrmary. Rangel told Joseph the wounds were "not bad." That night, when the pill call nurse came by, Joseph showed her the wounds were "green," and he was belatedly taken to the inftrmary. Joseph still has scars on his wrists from this suicide attempt.
86. During the second attempt, Joseph tried to hang himself. He had taken threads from his mattress and braided them together into a two-foot rope. He tied the rope around his neck, and passed out, causing physical injury. Defendant Dwayne Harris, the security director at Giddings, responded to the celL He told the guards and nurses Joseph was "faking" and ''there's nothing wrong." This time, the nurses took Joseph to the inftrmary anyway.
87. ryC does not classify children according to offense or propensity for violence. ryc houses physically small and vulnerable children as young as ten years old in the same "dorms" as much older, larger children, some of whom are twenty years old. ryc houses children accused of non-violent offenses, like graffiti or theft, with others who have been involved in murder or sexual assault.
88. ryc transferred Joseph to its Evins facility in Spring of 2006. ryc moved Joseph to Evins, far away from his family, after Joseph's mother began to complain about the conditions in ryc facilities. Because ryC retaliated against Joseph, his family was not able to see him as frequently as when ryC housed Joseph at Giddings. ryc retaliated against Joseph because he and his family exercised their free speech and expression rights.
89. Most of the students at Evins are members of racial minority groups. Joseph is Caucasian. When Joseph fIrst arrived at Evins, he was placed in protective custody, but then was kicked out by a guard who did not like him.
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90. At Evins, TYC staff encouraged students to fight. You have to "prove you are not a
bitch." The United States Department of Justice issued a finding letter in 2007 concluding,
"Conditions at Evins violate the constitutional rights of the youth residents .... Children at Evins
are not adequately protected from harm." The Department of Justice wrote:
"Our investigation revealed an unacceptably high rate of youth violence at Evins. The atmosphere at Evins is chaotic and dangerous. Youths frequently fight with each other without detection or intervention by staff. Staff members and youths we interviewed consistently reported that staff members are unable to manage youths' behavior due to inadequate staffing. According to information provided by TYC, there were 1,025 reported youth-on-youth assaults at Evins in 2005, an avemge of 2.8 per day. For the first six months of 2006, there were 568 reported youth-on-youth assaults, an average of 3.1 per day. This frequency of assaults is a substantial departure from generally acceptable professional standards. Nationally, facilities compamble to Evins typically report an average of .241 youth on youth assaults per 100 days of confinement which, for Evins, correlates to 1.235 assaults per 100 days of confmement. Thus, the average rate of assaults at Evins is approximately five times the national avemge."
Defendant Caldwell is the superintendent at Evins, and is delibemtely indifferent to these
conditions. 91. At Giddings, TYC guards encourage children to participate in "Gladiator Night."
TYC guards encourage children to tie a sock around their ankles, fight and physically injure
other children who try to take the sock off. TYC guards allow inmates to assault and physically
injure students who refuse to participate in Gladiator Night. Defendants are deliberately
indifferent to children's rights to be protected from harm.
92. Children in TYC rarely get in trouble for fighting. Joseph recalls the kitchen at
Giddings was "like a boxing ring." Joseph estimates he has been in 60 fights since coming into
TYC's custody. Students are frequently physically injured because of fights in TYC facilities.
93. Joseph has gone to the infirmary many times for black eyes and broken noses from
these fights. He has always told the nurses he "fell in the shower" or "ran into my bunk" because
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he did not want to be a "snitch." Nurses failed to question these stories typical of abuse victims, and these incidents were never investigated or reported, even though nurses had a legal obligation to report the incidents under Texas Family Code § 261.101.
94. Staff searched the bunks of Joseph and another child at Evins. Defendant Trevino found a poem with racially charged words in the other child's bunk. Trevino read the poem aloud to the minority students, intending to incite them to attack Joseph. Trevino threatened Joseph, telling him "you're public enemy number one" and ''this is campus wide."
95. TYC failed to place Joseph in protective custody, despite the guards' knowledge threats were made against him. Defendants were deliberately indifferent to Joseph's right to be protected from harm.
96. That next morning, six unknown assailants attacked Joseph and the other child. One of the assailants was an inmate who was much larger than Joseph. Joseph's head was smashed on the concrete and he blacked out, suffering a physical injury. He woke up soon, and saw the other student being assaulted. He tried to help him, and was beaten more. He was kicked in the head and mouth, suffering serious physical injuries. When the beating was over, a guard, Defendant Torres, told Joseph, "That's what you get for writing racist shit." Trevino and Torres encouraged the other students to assault Joseph, and were deliberately indifferent to Joseph's right to be protected from physical injury.
97. Joseph suffered physical injuries from the beating-the orbiter bone under his eye was bruised, his jaw was broken, and he suffered a concussion. Yet TYC guards failed to immediately take Joseph or the other child, who also suffered physical injuries, to the infirmary.
98. When Joseph tried to eat breakfast the next morning, he could not do so because of terrible pain in his jaw. His friend had to call security for him, and forty-five minutes later the
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Case 1:07-cv-00276-LY Document 4 Filed 04/13/2007 Page 21 of 34
nurses responded and took him to the infirmary. Forty-five minutes after that, he was taken to the emergency room in an ambulance, where his jaw was wired shut.
99. Joseph's mother reported the incident to TYC and several law enforcement agencies. 100. A few days after this incident, Joseph was transferred from Evins to Crockett, which is nearer his parent's home. 101. Joseph began feeling nauseous at Crockett. Wire cutters had been given to the security staff in Joseph's part of the prison by the infirmary to cut the wires holding his jaw shut if he needed to vomit, because nausea is a common side effect of the pain medication. Joseph was unable to eat because of the wires, which increased his nausea. When Joseph told the guard he needed to vomit, the guard called Defendant McDaniels in the infirmary. McDaniels told the guard that when Joseph needed to vomit, Joseph did not need to have the wires cut-Joseph could just "hang his head upside down over the toilet, and let the vomit drip out." Joseph had to hold his fingers down his throat to prevent himself from vomiting, because he believed if he did so he would inhale the vomit and die. 102. Joseph ripped the wires out because they were so painful and he was afraid he could inhale his own vomit. TYC nurses Defendants Kitchens and Gagne refused to give him his prescribed painkillers on the prescribed schedule and were deliberately indifferent to his painful physical injury. TYC gave Joseph three disciplinary actions for this incident, which extended his incarceration. Defendants failed to provide Joseph with due process. 103. Joseph was eventually sent to UTMB in Galveston, where a doctor told him the wires were put in improperly. It took two hours to rewire his jaw. At Evins, he was prescribed Tylenol 3, which contains codeine, and told to take it every three to four hours, or as needed. When he was transferred to Crockett, he was told he could only take it three times a day, and
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Case 1:07-cv-00276-LY Document 4 Filed 04/13/2007 Page 22 of 34
then was only given half doses. Defendants McDaniels and Gagne refused to give him the medication, despite knowing Joseph was in obvious pain. McDaniels and Gagne were deliberately indifferent to Joseph's serious physical needs.
104. When Joseph was transported to UTMB in Galveston, Defendants Briggs and Watson tightly shackled his legs. The shackles cut deeply into Joseph's legs, and his socks became very bloody. Joseph still has scars on his ankles from these physical injuries.
105. ryC refused to house Joseph in the infirmary while his jaw was wired shut, where he could have been under constant supervision by medical staff. Defendants Gagne, Kitchens and McDaniels were deliberately indifferent to Joseph's serious medical problems by refusing to house him in the infirmary and refusing to cut the wires when he began to vomit.
106. During his incarceration in rye's custody, some of Joseph's adult teeth grew into his mouth. One tooth came out crooked, and emerged through the gum improperly. rye knew the tooth needed medical attention, and knew it caused Joseph physical pain and injury. rye deliberately refused to fix Joseph's tooth.
107. Days before Joseph was released, Defendant McQueen struck Joseph in the jaw. Joseph had picked up a tray to eat out of turn, acting impulsively because of his disability. Rather than follow rye policy, which requires an attempt at a non-violent de-escalation of a situation, McQueen struck Joseph in the face. Attempting to de-escalate the situation is a reasonable accommodation for Joseph's disability. Joseph suffered further physical injury to his jaw, and was taken to the hospital for testing. Joseph was given three 225s for this incident.
108. After the assault, Joseph asked to speak with his mother and his attorneys. Defendant Wilson told Joseph he would not be allowed to contact his mother or attorney. Wilson threatened Joseph that he would not be released from ryC if he reported this incident.
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109. Defendants Freeman and Nicholson put a "hit" out on Joseph shortly before he was released. Freeman and Nicholson told ryc guards and inmates they could assault Joseph without consequence.
110. When Joseph began to discuss what happened to him in ryc with his attorneys, Defendant Wilson refused to allow him to have a confidential attorney/client phone call with his lawyer. Despite requests from his counsel to Defendants Freeman and Wilson for rYC's policies and procedures related to attorney/client visits and phone calls, these policies were not provided. The first time Joseph's attorney attempted to speak with him on the telephone, Wilson refused to leave the room and would not allow Joseph to confer with his attorney in private.
111. Joseph's attorneys mailed him confidential legal documents. Unknown ryc staff opened this mail outside Joseph's presence, and read the confidential and privileged documents inside. The envelope containing the documents was clearly marked "legal mail" on the front and back, but ryc staff deliberately disregarded these labels.
112. When Joseph told Defendant Wilson he wanted to report this abuse to the ryC hotline, she told him he could not call the hotline. Wilson told Joseph if he reported his abuse, ryc would extend his incarceration.
113. Defendants Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes conspired to suppress reports of abuse and civil rights violations in ryc for years. Parsee was arrested for obstruction of justice for his role in this conspiracy. Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley and Reyes were deliberately indifferent to the conditions in ryC that violate children's statutory and constitutional rights, including Plaintiff s.
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CAUSES OF ACTION I. DUE PROCESS OF LAW 114. TYC and Defendant Owens routinely deprive children in TYC custody of their "phases" without affording them due process of law, as required by the Fourteenth Amendment to the United States Constitution. Assigning a child a 225 will extend the child's sentence because it prevents them from achieving "phase" "B-4". "Category 2" 225s are routinely and arbitrarily given to children for trivial "offenses," which extend the child's imprisonment. 115. TYC and Defendant Owens routinely deprive students of earned "phases" without due process. Depriving students oftheir "phases" increases their incarceration in TYC facilities. 116. Any prison disciplinary action which would extend a child's sentence must be accompanied by due process. Children are entitled to due process when a prison disciplinary action would extend the length oftheir sentence by any amount oftime. 117. For "category I" 225s and placement in BMP, a due process hearing is held. Children, however, must represent themselves at these proceedings. Parents are not infonned these proceedings are taking place, or that these proceedings could extend the child's incarceration. Because the children are minors, they are legally incapable of representing themselves in any proceeding that would alter any legal relationship. TYC and Defendant Owens fail to infonn parents ofthese proceedings and appoint counsel to represent the children. 118. Defendant Owens admits in the "TYC Rehabilitation Plan," which he authored, that "lack of standardized procedures" results in "extending a youth's period of incarceration." Owens admits these extensions "could be viewed as subjective and unnecessarily punitive." 119. Joseph brings these due process claims on behalf of the class members against Defendant Owens in his official capacity for injunctive and declaratory relief only. Defendant
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Owens admits "approximately 190" children in TYC's custody have "satisfactorily completed their program requirements, but remain confined in TYC institutions."
120. Joseph brings these due process claims in his individual capacity against Defendants Wilson and Penuelas. Wilson and Penuelas refused to process the documents demonstrating Joseph had completed his "phases," which would allow him his release. Wilson and Penuelas were deliberately indifferent to Joseph's due process rights, and intentionally and maliciously deprived him of due process to extend his incarceration. Joseph brings this claim in his individual capacity for damages, injunctive and declaratory relief against Wilson and Penuelas in their individual and official capacities as TYC caseworkers.
II. ACCESS TO COURTS 121. TYC and Defendant Owens fail to provide children in their custody with meaningful access to courts and counsel, as required by the First, Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 13 of the Texas Constitution. TYC and Defendant Owens refuse to make policies and procedures for visitation and telephone calls available on request to children's attorneys. 122. TYC routinely reads confidential and privileged attorney/client mail, even when the correspondence is clearly marked "legal mail." TYC does not open the privileged mail only in the child's presence, as required by the United States Constitution. 123. TYC denies children the ability to confer in private with their attorneys. TYC does not allow children to make telephone calls to their attorneys, and requires a caseworker to "sit in" on attorney/client phone calls, even when the phone call was scheduled a week in advance and confirmed by correspondence. 124. Joseph brings these access-to-courts claims on behalf of the class members against
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Case 1:07-cv-00276-LY Document 4 Filed 04/13/2007 Page 26 of 34
Defendant Owens in his official capacity for injunctive and declaratory relief only. 125. Joseph also brings these access-to-courts claims in his individual capacity against
Defendant Wilson. Wilson refused to allow Joseph to speak with his attorney in private. III. SELF-INCRIMINATION
126. TYC and Defendant Owens require children to confess to facts that were not adjudicated by their trial court as part of the "therapy" they receive while in TYC's custody. These "confessions" are required before students can be promoted through the "correctional" "phase" component. The "confessions" are made without consultation with counselor the child's parents. These confessions are involuntary as they are coerced with the threat of continued incarceration, in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 10 ofthe Texas Constitution.
127. These "confessions" are frequently untrue, and can be used against children or their parents in future legal proceedings.
128. Joseph brings these claims on behalf of the class members against Defendant Owens in his official capacity for injunctive and declaratory relief only.
129. Joseph also brings these claims in his individual capacity against Defendants Wilson and Penuelas. Wilson and Penuelas forced Joseph to admit to elements of his offense that were not found by the trial court, and were untrue.
IV. FAILURE TO PROTECT 130. TYC and Defendant Owens do not employ a classification system to protect children in their custody from harm. Children are not separated according to age, stature, offense, or propensity for violence. Young, small, vulnerable children are routinely housed with older, larger, more dangerous children. TYC and Defendant Owens have created an atmosphere
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where children are routinely assaulted by staff and other students, causing physical injuries to the students. These conditions violate children's Eighth and Fourteenth Amendment rights under the United States Constitution to be protected from harm, as well as the children's rights under Article 1, Section 13 of the Texas Constitution. TYC and Owens are deliberately indifferent to these conditions.
131. Defendant Owens admits in "TYC's Rehabilitation Plan," which he drafted, that ''the problems at TYC are not isolated events, but are entrenched in every vessel that channels to the core of the agency's very existence." Owens describes TYC as "in a crisis state" and concedes ''the safety and well-being of the children who are in our custody are at stake."
132. Defendant Caldwell is the superintendent of the Evins State School, where the U.S. Department of Justice recently found students' constitutional right under the Eighth Amendment to be protected from harm was routinely violated during the period Joseph was incarcerated there. Defendant Caldwell is deliberately indifferent to these conditions.
133. Students at Evins and other TYC facilities frequently suffer physical injuries because ofthese conditions.
134. Joseph brings these failure to protect claims against TYC and Owens on behalf of class members who would benefit from TYC employing a classification system for injunctive and declaratory relief.
135. Joseph brings these failure to protect claims in his individual capacity against Defendant Henry, Defendant Mr. Trevino, and Defendant Torres. Mr. Henry was deliberately indifferent to the obvious risks associated with placing Joseph in the same cell as an inmate clamoring to rape Joseph. Trevmo and Torres knew other inmates were threatening Joseph, but failed to place him in protective custody and failed to protect him from harm. Trevino and
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Torres were deliberately indifferent to Joseph's rights. V. CONSPIRACY TO VIOLATE CIVIL RIGHTS
136. Defendants Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes (hereinafter ''the conspirators") conspired to impede, hinder, obstruct and defeat Joseph and the class members from seeking the due course of justice. The conspirators intimidated children and their parents to prevent them from reporting the civil rights abuses taking place inside TYC facilities, and impeded state and federal law enforcement investigations into conditions inside TYC facilities. This claim is brought pursuant to 42 U.S.C. § 1985(2).
137. Defendant Owens admits children in TYC custody ''may fall victim to retaliation or unwarranted extended placements."
138. The conspirators instructed their subordinates to carry out the conspiracy in order to deprive Joseph and the class members of their rights under the law and to impede, hinder, instruct and defeat Joseph and the class members from seeking the due course ofjustice.
VI. AMERICANS WITH DISABILITIES ACT, SECTION 504, AND CHAPTER 121 139. Defendant TYC failed to provide Joseph with reasonable accommodations for his
mental disabilities. Though TYC was aware of Joseph's disabilities, TYC intentionally and purposefully denied him reasonable accommodations.
140. TYC's denial of reasonable accommodations resulted in: a. Lengthening Joseph's incarceration in TYC's custody because due to his disability he was unable to complete TYC's "Resocialization©" plan timely; b. Joseph being raped by another inmate because he was placed in a single cell with the other inmate due to his disability; c. Joseph being sexually assaulted by TYC's staff because of the vulnerabilities created because of his disability; and,
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d. Excessive force being used against Joseph by TYC staff due to behavior caused by his disability.
141. Defendant Owens admits "numerous assessments" of TYC' s training for new staff have shown the training provided is "inadequate." TYC does not provide reasonable staff training on accommodating children with disabilities.
I
142. TYC receives federal funding, and therefore is required to provide reasonable accommodations under Section 504.
143. TYC is a public entity and therefore required to comply with Title II of the ADA. 144. Joseph brings these claims only in his individual capacity.
VII. SEXUAL ASSAULT 145. Defendant Delgado intentionally and deliberately engaged in a deliberate and outrageous invasion of Joseph's bodily integrity that shocks the conscience in violation of his Eighth and Fourteenth Amendment rights. 141. Delgado misused and abused official power granted to her by the state In performance of her official duties thereby causing harm to Joseph. 142. Delgado engaged in this conduct with deliberate indifference to the constitutional rights of Joseph, and in violation of the criminal laws of the State of Texas. 143. Joseph brings these claims only in his individual capacity, under 42 U.S.C. § 1983.
VIII. EXCESSIVE FORCE 144. Defendants Shacklefield, Williams, McQueen, Briggs and Watson used excessive force causing bodily injury to Joseph, in violation of Joseph's Eighth and Fourteenth Amendment rights. Shacklefield, Williams, McQueen Briggs and Watson deliberately and indifferently used excessive force against Joseph during his incarceration in a TYC facility. 145. Joseph brings these claims only in his individual capacity, under 42 U.S.C. § 1983.
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IX. FAILURE TO PROVIDE MEDICAL ATTENTION 146. Defendants Rangel, Gagne, McDaniels, and Kitchens were deliberately indifferent to Joseph's serious medical needs. They violated his right to medical care. 147. Rangel refused to escort Joseph to the infirmary when he discovered Joseph bleeding from his arms after he attempted suicide. Rangel told Joseph his condition was "not serious," even though Joseph suffered permanent physical scars from the incident. 148. Defendant Dwayne Harris refused to escort Joseph to the inftrmary when he was discovered unconscious after attempting to commit suicide. Harris told nurses attempting to aid Joseph not to provide him with medical attention because Joseph was "faking." 149. Defendant McDaniels refused to provide Joseph treatment while he was vomiting due to the nausea created by medication for the pain in his jaw. McDaniels was deliberately indifferent to Joseph's Eighth Amendment right to receive medical care for serious medical problems, telling him to vomit into his mouth and let the vomit run through the wires holding his jaw shut, even though this put Joseph at serious risk of suffocating on his own vomit. 150. Defendants McDaniels, Kitchens and Gagne refused to provide Joseph with prescribed painkillers. Kitchens and Gagne were deliberately indifferent to Joseph's serious medical need, causing him severe physical pain and injury. 151. Joseph brings these claims in his individual capacity only, under 42 U.S.C. § 1983.
X. FREE SPEECH AND EXRPRESSION - RETALIATION 152. Defendants Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes retaliated against Joseph by transferring him between TYC facilities because of complaints he and his family raised about conditions in TYC facilities, in violation of the First and Fourteenth Amendments to the United States Constitution and Article
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1, Section 8 of the Texas Constitution. These transfers placed Joseph farther away from his family, decreasing their ability to visit him. The transfers also prolonged Joseph's incarceration due to TYC's refusal to transfer his records. The purpose of these transfers was solely retaliatory, and done with deliberate indifference to Joseph's rights to free speech and expression.
XI. ASSAULT AND BATTERY 153. Defendants Delgado, Williams, Shacklefield, Briggs, and Watson intentionally caused hannful contacts with Joseph. Delgado intentionally forced Joseph to perform sexual acts with her. Defendants Williams and Shacklefield intentionally struck Joseph in the face with their riot shield, breaking his nose. Defendants Briggs and Watson intentionally shackled Joseph so tightly that the leg irons cut into his ankles and caused him to bleed. 154. Defendants Delgago, Williams, Shacklefield, Briggs, and Watson caused Joseph imminent apprehension by intending to cause him a hannful contact. 155. Joseph brings these claims only in his individual capacity, and not as a class representative.
CAUSES OF ACTION - SUMMARY 156. Joseph brings the following claims both in his individual capacity and as the representative of the class members:
a. Due process, against Defendants TYC and Owens; b. Access to Courts, against Defendants TYC and Owens; c. Self Incrimination, against Defendants TYC and Owens; d. Failure to Protect, against Defendants TYC, Owens and Caldwell; and, e. Conspiracy to Violate Civil Rights, against Dwight Harris, Freeman,
Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes.
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158. Joseph brings the following claims in his individual capacity only: a. Due process, against Defendants Penuelas and Wilson; b. Access to Courts, against Defendant Wilson; c. Self Incrimination, against Defendants Penuelas and Wilson; d. Failure to Protect, against Defendants Henry, Trevino and Torres; e. ADA and Section 504, against Defendant TYC; f. Sexual Assault, against Defendant Delgado; g. Excessive Force, against Defendants Shacklefield, Williams, McQueen, Briggs and Watson; h. Failure to Provide Medical Attention, against Defendants Rangel, Dwayne Harris, Gagne, McDaniels and Kitchens; 1. Free Speech and Expression Retaliation, against Dwight Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, and Reyes; and, j. Assault and Battery, against Defendants Delgado, Williams, Shacklefield, Briggs and Watson. DECLARATORY RELIEF
159. Joseph and the class members seek declaratory relief that Defendants conspired to, and did, and continue to, violate their rights under the Constitution of the United States, as described above and summarized in the penultimate paragraph.
160. Joseph also seeks declaratory relief that Defendants did violate his own, individual statutory rights under the ADA and Rehabilitation Act, as well as under the Constitution of the United States, as described above and summarized in the penultimate paragraph.
INJUNCTIVE RELIEF 161. Joseph and the class members seek injunctive relief to correct the deficiencies regarding due process, access to Courts, self-incrimination, and failure to protect, as outlined
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above. These deficiencies are quantifiable, and thus damages are not an appropriate remedy.
However, the deficiencies cause real and lasting injury to the class members. ATTORNEYS' FEES
162. Joseph is entitled to recover attorneys' fees and costs to enforce his constitutional
and statutory rights, pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12205. PRAYER FOR RELIEF
THEREFORE, Joseph respectfully requests that the Court:
A. Award punitive damages for himself individually against all individual Defendants, as appropriate and as allowed by law;
B. Award compensatory damages for himself individually against all Defendants, jointly and severally, as allowed by law;
C. Grant declaratory and injunctive relief for himself and the class, under federal law, as set out in this Complaint;
D. Grant reasonable attorneys' fees, litigation expenses and court costs; and,
E. Grant such other and further relief as appears reasonable and just, to which Plaintiff may be entitled.
Date: April 10, 2007. Respectfully Submitted,
Sc edlock Texas Bar No. 24044783 James C. Harrington Texas Bar No. 09048500 Wayne Krause Texas Bar No. 24032644 Sheri Tolliver State Bar No. 24028050
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, IX 78741
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(512) 474-5073 [phone] (512) 474-0726 [fax] ATTORNEYS FOR PLAINTIFF
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 Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 1 of 15

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

JOSEPH GALLOWAY, individually,

§

§

DANA BROCKWAY, as next friend of ERIC B., §

on behalf of all those similarly situated,

§

§

JOHN HALT, as next friend of DANIEL H.,

§

on behalf of all those similarly situated,

§

§

Plaintiffs

§

v.

§

§

STACEY DELGADO, individually and

§

in her official capacity,

§

§

MRS. HENRY, in her capacity as executor of

§

the estate of Mr. Henry,

§

§

MR. WILLIAMS, individually and in

§

his official capacity,

§

§

MR. SHACKLEFIELD, individually and

§

in his official capacity,

§

§

MR. RANGEL, individually and in his

§

official capacity,

§

§

MR. TREVIÑO, individually and in his

§

official capacity,

§

§

MANUEL TORRES, individually and in his

§

official capacity,

§

§

MR. BRIGGS, individually and in his

§

official capacity,

§

§

MR. WATSON, individually and in his

§

official capacity,

§

§

ROBERT McQUEEN, individually and

§

in his official capacity,

§

§

VERONICA GAGNE, individually and

§

in her official capacity,

§

§

DON BRANTLEY, individually and in

§

CIVIL ACTION NO. 1:07-CV-276 (LY)
PLAINTIFF BROCKWAY’S MOTION FOR PRELIMINARY INJUNCTION

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 2 of 15

his official capacity,

§

§

LINDA REYES, individually,

§

§

DWAYNE HARRIS, individually and in

§

his official capacity,

§

§

DWIGHT HARRIS, individually,

§

§

BART CALDWELL, individually and in

§

his official capacity,

§

§

JOYCE McDANIELS, individually and in her §

official capacity,

§

§

VENUS KITCHENS, individually and in her

§

official capacity,

§

§

TERI WILSON, individually and in her

§

official capacity,

§

§

GERALDO PENUELAS, individually

§

and in his official capacity,

§

§

DON FREEMAN, individually and in his

§

official capacity,

§

§

BLU NICHOLSON, individually and in

§

his official capacity;

§

§

JEROME PARSEE, individually,

§

§

LYDIA BERNARD, individually and in

§

her official capacity,

§

§

CHESTER CLAY, individually and in his

§

official capacity,

§

§

KERRI DAVIDSON, individually and in

§

her official capacity,

§

§

ED OWENS, in his official

§

capacity as Executive Director of the Texas

§

Youth Commission,

§

§

JUAN S. MUNOZ, individually and in his

§

official capacity as a member of the Board of

§

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2

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 3 of 15

the Texas Youth Commission,

§

§

DON BETHEL, individually and in his

§

official capacity as a member of the Board of

§

the Texas Youth Commission,

§

§

STEVE FRYAR, individually and in his

§

official capacity as a member of the Board of

§

the Texas Youth Commission,

§

§

PATSY REED GUEST, individually and in her §

official capacity as a member of the Board of

§

the Texas Youth Commission,

§

§

BILL MAHOMES, JR., individually and in his §

official capacity as a member of the Board of

§

the Texas Youth Commission,

§

§

GOGI DICKSON, individually and in her

§

official capacity as a member of the Board of

§

the Texas Youth Commission,

§

§

UNKNOWN TYC STAFF, in their official and §

individual capacities; and,

§

§

TEXAS YOUTH COMMISSION,

§

§

Defendants.

§

PLAINTIFF DANA BROCKWAY’S MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Dana Brockway, as the next friend of her minor child, A.B., respectfully files

this Motion for a Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65, and

requests this Court enter a preliminary injunction to enjoin the Texas Youth Commission (TYC) from violating A.B.’s constitutional rights.1

The injunction seeks to prohibit TYC from interfering with A.B.’s rights under the Fifth

and Fourteenth Amendments to the United States Constitution. TYC denies A.B. parole and

admission to treatment programs because he is asserting his constitutional protections against

1 In Plaintiffs’ Amended Complaint, A.B. is incorrectly identified as “Eric B.” Pursuant to this Court’s standing Privacy Policy and Public Access to Electonic Files, A.B. is appropriately identified by his initials, not a pseudonym.
3

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self-incrimination. Ms. Brockway requests TYC be prohibited from conditioning A.B.’s parole on surrendering his Fifth Amendment protections, and requests A.B. be allowed to complete treatment in a less restrictive setting.
In support, Ms. Brockway will show: FACTS
A.B. is a sixteen-year-old child currently held in the custody of the Texas Youth Commission (“TYC”) at the McClennan County State Juvenile Correctional Facility II, in Mart, TX (“Mart”). Defendant Ed Owens is TYC’s Conservator.2 A.B. arrived in TYC custody on November 6, 2006. Exhibit 1, Monthly Individual Case Plan, July 17, 2007. A.B. was adjudicated delinquent in the juvenile court in Collin County, TX, on November 2, 2006, for the offense of attempted sexual assault. Exhibit 2, Order of Disposition with TYC Commitment. A.B. has appealed his adjudication to the Texas Fifth Court of Appeals, challenging, inter alia, the sufficiency of the evidence presented and the failure of the trial court to allow the jury to consider the lesser included offense of assault. See Brief for Appellant, A.E.B. v. State, No. 0506-1536-CV (Tex. App.—Dallas filed March 14, 2007). A.B. denies he committed the charged offense, and refuses to answer questions about it on advice of counsel.
Pending the resolution of his appeal, A.B. was sentenced to TYC custody for the purpose of rehabilitation. See Exhibit 2 (“the child is in need of rehabilitation”). TYC’s statutory purpose is “to provide a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged delinquent.” TEX. HUM. RES. CODE ANN. § 61.002 (Vernon 2001). To fulfill this statutory mandate, TYC has created the “Resocialization©” program. To be released from a secure TYC facility to a less restrictive setting (such as a halfway house or their parents’ custody), a child has to complete their “phases”
2 When Plaintiffs filed their Amended Complaint, Owens was TYC’s Acting Executive Director. Owens has since been made the conservator, and Dimitria Pope has been appointed Acting Executive Director.
4

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 5 of 15
in the “Resocialization©” program and complete their “Minimum Length of Stay” in TYC’s secure facilities custody.3 The secure facilities are prison-like. There are five phases (0-4) to the program, and each phase has three components (Academic, Behavior, and Correctional, or A, B, C). A child can complete one of their phases, and not advance in the others. After A.B. completes all three components, TYC’s Sex Offender Treatment Program, and serves one year in TYC custody, he will be paroled and released from TYC’s custody. 37 TEX. ADMIN. CODE § 85.59(d)(2) (2007).
To complete the “Correctional Therapy,” or “C” phase, a child must identify the “errors in [their] thinking.” “C-1” requires memorizing “nine thinking errors.” “C-2” requires a child to write and memorize their “life story.” “C-3” requires a child to talk about their “offense.” “C-4” requires developing a “success plan,” which outlines what the child will do when they leave TYC custody. See 37 TEX. ADMIN. CODE § 87.3(d)(3).
Because he was adjudicated for committing a sex offense, A.B. is also required to complete TYC’s Sex Offender Treatment Program before he can be released from a secure facility to a less restrictive setting. 37 TEX. ADMIN. CODE § 85.51(15); Exhibit 1. Like “Correctional Therapy,” sex offender treatment also requires the child discuss the charged offense. TYC will not even allow A.B. to enroll in the program because he will not admit he committed the offense. Exhibit 4, Affidavit of A.B.
TYC refuses to allow A.B. to participate in “Correctional Therapy” and sex offender treatment because he is asserting his rights under the Fifth Amendment of the United States Constitution. Participation in both the “Correctional Therapy” program and TYC’s Sex Offender Treatment Program require children to forego their Fifth Amendment rights to enter the program. TYC does not grant children immunity for statements made during “Correctional Therapy” or
3 The Minimum Length of Stay is determined according to TYC policy. 37 TEX. ADMIN. CODE § 85.25 (2007). A.B. completed his minimum sentence on November 6, 2007. See Exhibit 1; Exhibit 3, Correspondence between TYC and Scott Medlock, counsel for A.B.
5

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 6 of 15
sex offender treatment, and the communications are not privileged or confidential. Because he cannot discuss the offense he was adjudicated of committing until his appeal is resolved, A.B. cannot progress beyond phase “C-2” in the “Correctional Therapy” component, and TYC will not even allow him to enroll in the Sex Offender Treatment Program.
A.B. has successfully completed the “A” and “B” components of TYC’s rehabilitation program. A.B. earned his G.E.D. to complete the “A,” or “Academic” component, and was the valedictorian of his class in TYC. See Exhibit 1 (“[A.B.] has achieved his G.E.D. His teachers commented he works hard in class…”); Exhibit 4. TYC will not allow A.B. to take college-level coursework while he remains incarcerated. See Exhibit 4; Exhibit 5, Youth Complaint Resolution Form (“College classes will not be offered for the fall semester”). A.B. has not committed any major disciplinary violations in TYC custody, allowing him to obtain phase “B4” in the “Behavior” component. See Exhibit 1. A.B. is frequently asked by TYC staff to assist with work in the facility, such as serving other children food. A.B. was even designated by TYC to distribute grievance forms to other children, an important position of trust. See Exhibit 4.
On November 1, 2007, TYC convened a panel of its staff to consider releasing A.B. on parole. See Exhibit 4. On November 5, 2007, TYC told A.B. he would be released to parole on November 14, 2007. TYC had A.B. sign documents related to his sex offender registration, which indicate he would be released on November 14, 2007. See Exhibit 6, Pre-Release Notification Form (“Not later than the 7th day after 11-14-07 (date of release/placement on community supervision or juvenile probation), I must personally appear at the following local law enforcement authority to verify and complete my registration…”). While on parole, A.B. would be required to attend out-patient sex offender treatment therapy, see his parole officer regularly, obey various parole conditions, and register as a sex offender. TYC will not allow
6

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 7 of 15
A.B. to participate further in its rehabilitation programs because he is asserting his Fifth Amendment rights. As such, the plans for release were cancelled.
A.B. has attempted to resolve these issues through TYC’s internal grievance procedure. See Exhibit 7, Correspondence from Dana Brockway to TYC, February 5, 2007; Exhibit 8, Correspondence from TYC to Dana Brockway, February 5, 2007; Exhibit 9, Correspondence from Dana Brockway to TYC, March 20, 2007; Exhibit 10, Correspondence from Ed Owens to Dana Brockway, April 16, 2007.
ARGUMENT A federal court should grant a preliminary injunction when the movant has clearly carried the burden of persuasion on all four of the following prerequisites: (1) a substantial threat that Plaintiff will suffer irreparable injury if the injunction is not granted, (2) a substantial likelihood that Plaintiff will prevail on the merits, (3) the threatened injury to Plaintiff outweighs the threatened harm to the Defendants, and (4) granting the preliminary injunction will not disserve the public interest. See Mississippi Women’s Med. Clinic v. McMillan, 866 F.2d 788, 790 (5th Cir. 1989). Because the Defendants are public institutions, the third and fourth elements are properly considered together. See Spiegel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. 1981). A.B. satisfies each element necessary for a preliminary injunction. 1. Plaintiff Will Suffer Irreparable Injury if the Court Does Not Enjoin Defendants from Enforcing Their Unconstitutional Policy A.B. will suffer immediate and irreparable injury, for which he has no adequate remedy at law, if this Court does not immediately prevent Defendants from enforcing their unconstitutional policy. TYC’s policy both prohibits A.B. from being paroled and denies him access to the treatment guaranteed by the Constitution. The requested injunction is necessary to protect A.B.’s constitutional right not to be compelled to be a witness against himself, and his right to receive treatment in TYC’s facilities. “Violation[s] of constitutional rights constitute[]
7

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 8 of 15
irreparable harm as a matter of law.” Cohen v. Coahoma Co., 1992 U.S. Dist. LEXIS 20844, *24 (N.D. Miss. 1992) (citing Elrod v. Burns, 427 U.S. 347, 373-74 (1976)). “Irreparable injury is established upon movants showing constitutionally protected rights have been violated.” See Murillo v. Musegades, 809 F.Supp. 487, 497 (W.D. Tex. 1992) (citing Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984); Mendoza v. INS, 559 F.Supp. 842, 850 (W.D. Tex. 1982)). 2. Plaintiff Will Prevail on the Merits Because TYC Violates A.B.’s Fifth and Fourteenth
Amendment Rights A.B. is protected by the Fifth Amendment from TYC compelling him to make incriminating admissions. TYC’s treatment program requires him to make such statements despite the fact he has an active appeal of the adjudication in his criminal case. If A.B. were to make the statements TYC requires, they could be used against him in his challenge to the criminal adjudication. Moreover, because he is asserting his Fifth Amendment rights, TYC denies A.B. the opportunity to participate in “correctional therapy” and sex offender treatment. TYC is constitutionally required to provide A.B. access to its rehabilitative programs. TYC’s refusal to do so violates A.B.’s rights under the Fourteenth Amendment. a. TYC Policy Violates A.B.’s Fifth Amendment Rights The Fifth Amendment states “no person … shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. It was applied against the states through the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1 (1964), where the privilege to remain silent was recognized as an independent liberty interest. The Supreme Court has extended this protection to a number of situations where incriminating statements could be used against a person in future criminal proceedings. “The Amendment not only protects the individual being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v.
8

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 9 of 15
Turley, 414 U.S. 70, 76 (1973). See also Uniformed Sanitation Men Ass’n. v. Comm’r of Sanitation, 392 U.S. 280 (1968) (loss of employment); Spevack v. Klein, 385 U.S. 511 (1967) (disbarment). A.B.’s Fifth Amendment rights extend after his adjudication. The State cannot “call for answers that would incriminate him in a pending or later criminal prosecution.” Minnesota v. Murphy, 465 U.S. 420, 435 (1984). The Supreme Court has clearly stated “the privilege against self-incrimination does not terminate at the jailhouse door.” McKune v. Lile, 536 U.S. 24, 36 (2002) (Kennedy, J., for plurality).
TYC has placed A.B. in a classic “speak or be punished” situation. See Chapman v. State, 115 S.W.3d 1 (Tex. Crim. App. 2003). A person cannot be compelled to bear witness against themselves when doing so results in an automatic penalty. Id. “A command to speak, under the threat of loss of liberty, implicitly forecloses the option of remaining silent.” Montana v. Fuller, 915 P.2d 809 (Mont. 1996). “[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Minnesota v. Murphy, 465 U.S. 420, 429 (1984) (citing Lefkowitz, 414 U.S. at 805). The Supreme Court has held “If [a person] asserts the privilege, he ‘may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him’ in subsequent criminal proceedings.” Murphy, 465 U.S. at 429 (emphasis in original) (citing Maness v. Meyers, 419 US 449, 473 (1975)).
The Supreme Court directly addressed the question of whether an adult inmate can be compelled to participate in sex offender treatment therapy when doing so would require making damaging admissions that could be used against him in subsequent criminal proceedings. In McKune v. Lile, 536 U.S. 24 (2002), a plurality of four justices determined an adult inmate could be compelled to participate in sex offender treatment programs by restricting his access to prison
9

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 10 of 15
privileges, such as “visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges.” McKune, 536 U.S. at 31. The plurality determined denying an inmate these minor privileges was not a deprivation of liberty under the Sandin v. Connor, 515 U.S. 472 (1995), “atypical and significant hardship” standard. The Court would, however, likely rule differently in this case. Justice Kennedy’s opinion for the plurality specifically states “respondent’s decision not to participate in the [program] did not extend his term of incarceration. Nor did his decision affect his eligibility for good-time credits or parole.” McKune, 536 U.S. at 38 (Kennedy, J., emphasis added). Justice O’Connor agreed with the plurality that the loss of privileges in McKune was not enough to constitute compulsion, noting, however, that “some penalties are so great as to ‘compel’ such testimony, while others do not rise to that level.” McKune, 536 U.S. at 49 (O’Connor, J., concurring in the result). Justice O’Connor specifically noted if the penalty was “longer incarceration” then the statements would be “compelled.” Id. at 52. A four justice minority argued in dissent that even denying the inmate access to those minimal privileges violated his Fifth Amendment rights. McKune, 536 U.S. at 49 (Stevens, J., dissenting).
State supreme courts that have considered the issue have determined extending an adult inmate’s incarceration because he or she refuses to make incriminating statements in sex offender treatment programs is unconstitutional. Johnson v. Fabian, 735 N.W.2d 295 (Minn. 2007); Montana v. Fuller, 915 P.2d 809 (Mont. 1996). Other federal courts have come to the same conclusion. See United States v. Antelope, 395 F.3d 1128 (9th Cir. 2004) (extending inmate’s sentence for refusal to participate in sex offender treatment unconstitutional); Donhauser v. Goord, 314 F.Supp.2d 219 (N.D. N.Y. 2004) (sex offender treatment program unconstitutional when failure to participate forfeits “good time” credits toward parole), remanded for further proceedings at 181 Fed. Appx. 11 (2d Cir. 2006). Unlike the adult inmate
10

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 11 of 15
in McKune, A.B. is not being denied a television in his cell—he is being denied release to parole and access to TYC’s rehabilitation programs.
b. TYC Policy Violates A.B.’s Fourteenth Amendment Rights to Rehabilitation TYC is required to provide A.B. appropriate treatment as a condition of his incarceration. TYC’s statutory purpose is “to provide a program of constructive training aimed at rehabilitation and re-establishment in society of children adjudged delinquent by the courts of this state.” TEX. HUM. RES. CODE ANN. § 61.002 (Vernon 2007). Because TYC’s purpose is to rehabilitate children like A.B., and not to punish them, A.B. has a Fourteenth Amendment right to receive treatment during his incarceration. TYC cannot force A.B. to surrender his Fifth Amendment rights in order to receive treatment. Unlike adult inmates in the adult prison system, children held in TYC custody have a right to receive rehabilitative services. “[A]n institutionalized juvenile in Texas has a constitutional and statutory right to receive effective and adequate treatment.” Morales v. Turman, 383 F.Supp. 53, 118 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd per curiam, 430 U.S. 322, (1977). “Juvenile courts were created for treatment and rehabilitation of juvenile offenders and this focus on the best interest of the child through treatment sets juveniles apart from regular criminal courts which directed their efforts at punishing the offender.” In the matter of J.S.S., 20 S.W.3d 837 (Tex. App. – El Paso 2000). TYC violates children’s constitutional rights when it does not provide them required treatment. “Where the State, as parens patriae, imposes such detention, it can meet the Constitution’s requirement of due process and prohibition of cruel and unusual punishment if, and only if, it furnishes adequate treatment to the detainee.” Morgan v. Sproat, 432 F.Supp. 1130, 1136 (N.D. Miss. 1977) (citing Martarella v. Kelley, 349 F.Supp. 575, 585 (S.D. N.Y. 1972)).
11

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 12 of 15
The federal courts have previously required TYC to provide treatment to the children in its custody. “The basis for commitment [to TYC custody]—to rehabilitate and re-establish the juvenile in society—is clearly grounded in a parens patriae rationale. Thus, under the parens patriae theory, the juvenile must be given treatment lest the involuntary commitment amount to an arbitrary exercise of governmental power proscribed by the due process clause.” Morales, 383 F.Supp. at 71. “Appropriate treatment is essential to the validity of juvenile custody, and therefore that a juvenile may challenge the validity of his custody on the ground that he is not in fact receiving any special treatment.” Id. (citing In re Gault, 387 US 1, 22 (1967)).
Furthermore, A.B. is entitled to be held in the least restrictive setting possible while receiving the treatment because he was civilly committed to TYC to receive rehabilitation, not criminally convicted to be punished. The Supreme Court held in Youngberg v. Romeo, 457 U.S. 307, 324 (1982), that civilly committed persons “thus [enjoy] constitutionally protected interests in conditions of reasonable care and safety, reasonably non-restrictive confinement conditions, and such training as may be required by these interests.” A secure facility, such as where A.B. is currently held, is not the appropriate least restrictive setting for him to receive treatment. “When the state chooses, for the most humane motives, to offer or require institutional confinement of a person, it must consider means that are capable of achieving its purposes in ways that are least stifling to personal liberty, and it must offer a therapeutic consideration, a quid pro quo, for the deprivation.” Gary W. v. Louisiana, 437 F.Supp. 1209, 1217 (E.D. La. 1976). Ms. Brockway has arranged for A.B. to see a respected sex offender treatment professional in the community should he be released. Exhibit 11, Affidavit of Dana Brockway. A.B.’s progress in the other aspects of TYC’s treatment program demonstrate he does not need to be held in a secure facility during the completion of his treatment.
12

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 13 of 15
3. Protection of A.B.’s Rights Serves the Public Interest, and Outweighs Any Harm to TYC The public interest is always served by the protection of constitutional rights. See, e.g.,
Cohen v. Coahoma Co., 1992 U.S. Dist. LEXIS 208044, *25 (N.D. Miss. 1992) (rights of prisoners); Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992) (Fifth Amendment rights) (citing Electronic Data Sys. Corp. Iran v. Social Sec. Org. of Gov’t of Iran, 508 F.Supp. 1350, 1358 (N.D. Tex. 1981)). It is further in the public interest to assure individuals such as A.B. are returned “to society as good citizens living life on the right side of the law.” Ferguson v. Ashcroft, 248 F.Supp.2d 547, 556 (M.D. La. 2003). Continuing to incarcerate A.B. without providing him the rehabilitative services required by the Fourteenth Amendment disserves the public interest.
Any interest TYC has in continuing to incarcerate A.B. does not outweigh the protection of the rights afforded him under the Constitution. Continuing to house him in a secure facility, as opposed to a less restrictive facility, places A.B. in ongoing physical danger. TYC does not employ a custodial classification system to separate low-risk children, such as A.B., from highrisk, violent children. See, e.g., Exhibit 12, Texas State Auditor’s Office, An Investigative Report on the Texas Youth Commission, at 1 (March 16, 2007) (“As many as 24 youths of various ages and levels of offenses sleep in the same room”). A.B. has been assaulted on multiple occasions in TYC’s facilities, suffering physical injuries. Exhibit 4.
Moreover, TYC will, in some situations, waive the requirement that children receive treatment before they can be released on parole. 37 TEX. ADMIN. CODE § 87.55 (2007) (waiving treatment requirements when “due to staff vacancies, program closures, or insufficient agency resources, participation in the program will extend the youth’s length of stay” or if “the youth is unable to participate in specialized treatment due to a medical, mental health, or mental retardation condition”). Though this waiver policy does not apply by its terms to A.B., its
13

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 14 of 15
existence demonstrates that continuing to incarcerate all children who have completed all but sex offender treatment is unnecessary.
Granting Plaintiff Dana Brockway’s Motion for a Preliminary Injunction will serve the public interest and the benefits to A.B. outweigh any imagined harm to TYC.
CONCLUSION Therefore, Plaintiff Dana Brockway pleads the Court set her Motion for a Preliminary Injunction for an evidentiary hearing, and after the hearing, issue an injunction against Defendant Owens and TYC prohibiting Defendants from: 1. Considering A.B.’s assertion of his Fifth Amendment rights when making
decisions about releasing him on parole; 2. Denying A.B. participation in TYC’s correctional therapy program and sex
offender treatment program; and, 3. Housing A.B. in a secure facility during the completion of the treatment
programs. Dated: November 19, 2007.
Geoffrey Neil Courtney Texas Bar. No. 00790514 CLEMENS & SPENCER, P.C. 112 E. Pecan, Ste. 1300 San Antonio, Texas 78205
(210) 227-7121 [phone] (512) 227-0732 [fax] ATTORNEY FOR PLAINTIFF CLASS
14

Case 1:07-cv-00276-LY Document 67 Filed 11/19/2007 Page 15 of 15 CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with counsel regarding the filing of this matter. Dated: November 19, 2007.
Geoffrey Neil Courtney Texas Bar. No. 00790514 CERTIFICATE OF SERVICE I hereby certify that all counsel of record have been served via the CM/ECF system. Dated: November 19, 2007. Geoffrey Neil Courtney Texas Bar. No. 00790514
15

 
 Case 1:07-cv-00276-LY Document 129 Filed 02/05/08 Page 1 of 3

r: H C
IN THE UNITED STATES DISTRICT COURT ~ 1',-
FOR THE WESTERN DISTRICT OF TEWES -5 ~M 8: 53

AUSTIN DIVISION

JOSEPH GALLOWAY,

§

INDIVIDUALLY; DANA BROCKAWAY, AS NEXT FRIEND OF

§ §

, . . ,cOURT

.

, .

(1F TEXA'~'

BY -

i-'-'~C-"

,",.~[-/ ,#/ _.,.-".
''',:,

HER MINOR CHILD, A.B., ON BEHALF §

OF ALL THOSE SIMILARLY

§

SITUATED; GLORIA WASHINGTON, §

AS NEXT FRIEND OF HER MINOR

§

CHILD, J.W., ON BEHALF OF ALL

§

THOSE SIMILARLY SITUATED; AND §

LINDA THOMAS, AS NEXT FRIEND §

OF lA., ON BEHALF OF ALL THOSE §

SIMILARLY SITUATED,

§

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. A-07-CA-422-LY

§

§

DIMITRIA POPE, IN HER OFFICIAL §

CAPACITY AS ACTING EXECUTIVE §

DIRECTOR OF THE TEXAS YOUTH §

COMMISSION, AND THE TEXAS

§

YOUTH COMMISSION; ALEXANDRA §

WARMKE; MARY HENRY, AS

§

EXECUTOR OF THE ESTATE OF MR. §

HENRY; JOHN WILLIAMS; BRADLEY §

SHACKLEFORD; CHRISTOPHER

§

TREVINO; MANUEL TORRES;

§

RICHARD BRIGGS; PHILIP WATSON; §

ROBERT MCQUEEN; DON

§

BRANTLEY; LINDA REYES; DWIGHT §

HARRIS; BART CALDWELL; JOYCE §

MCDANIELS; TERI WILSON;

§

GERALDO PENUELAS; EDUARDO

§

MARTINEZ; JOHN DOE; BELYNDA §

BENNETT; ALAN WALTERS; MS.

§

WOTER; MS. LEWIS; MR. SOTO;

§

SHIRLEY BUSH; DON FREEMAN;

§

§

Case 1:07-cv-00276-LY Document 129 Filed 02/05/08 Page 2 of 3

BLU NICHOLSON; JEROME PARSEE; §

LYDIA BERNARD; CHESTER CLAY; §

DON BETHEL; STEVE FRYAR; PATSY §

REED GUEST; BILL MAHOMES, JR.; §

GOGI DICKSON; AND ROSS

§

ROBINSON, INDIVIDUALLY,

§

§

DEFENDANTS. §

ORDER IT IS ORDERED that the following pending motions are DISMISSED WITHOUT PREJUDICE: Plaintiffs' Motion for Leave to File Their Third Amended Complaint (Clerk's

Document 115); Defendants Trevino, Torres, and Henry's Unopposed Motion for Leave to File First

Amended Answer to Plaintiffs' Second Amended Complaint (Clerk's Document 116); Defendant

Briggs, Watson, and McQueen's Rule 12(b)(3) Motion to Dismiss for Improper Venue, or

Alternative Rule 21 Motion to Sever and 28 U.S.C. § 1406 Motion to Transfer Venue (Clerk's

Document 106); Defendant Briggs, Watson, and McQueen's Motion to Dismiss Pursuant to Rule

12(b)(6) (Clerk's Document 108); Defendant Shackleford and Williams' Motion to Dismiss Pursuant

to Rule 12(b)(6) (Clerk's Document 109); Motion to Dismiss all Claims Asserted in Plaintiffs'

Second Amended Complaint Against Defendants Brantley, Reyes, Harris, Davidson, Munoz, Bethel,

Fryar, Guest, Mahomes, Dickson, Pope, and TYC (Clerk's Document 113); Motion to Dismiss all

Claims Asserted in Plaintiffs' Second Amended Complaint Against Defendants Bernard and Clay

(Clerk's Document 118); Plaintiffs Unopposed Motion to Extend Deadline to Respond to

Defendants' Motions to Dismiss from Defendants Texas Youth Commission, Don Brantley, Linda

Reyes, Dwight Harris, Kerri Davidson, Ed Owens, Dr. Juan S. Munoz, Don Bethel, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr., Dr. Gogi Dickson, Lydia Bernard and Chester Clay (Clerk's

2

Case 1:07-cv-00276-LY Document 129 Filed 02/05/08 Page 3 of 3

Document 126); and PlaintiffBrockway'sMotion for Preliminary Injunction (Clerk's Document 67).

IT IS FURTHER ORDERED that Plaintiffs file a third amended complaint on or before

February 15, 2008.

IT IS FURTHER ORDERED that all Defendants respond to Plaintiffs' third amended

complaint on or before March 17, 2008.

IT IS FINALLY ORDERED that in all other respects, this cause is stayed pending further

order of the Court.

!/lit- SIGNED this

day of February, 2008.

3

 
 Case 1:07-cv-00276-LY Document 132 Filed 02/20/08 Page 1 of 38

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

JOSEPH GALLOWAY, individually,

§

§

DANA BROCKWAY, as next friend of her

§

minor child, A.B., on behalf of all those similarly §

situated,

§

§

GLORIA WASHINGTON, as next friend of her §

minor child, lW., on behalf of all those similarly §

situated,

§

§

LINDA THOMAS, as next friend of J.A., on

§

behalf of all those similarly situated,

§

§

v.

§

§

TEXAS YOUTH COMMISSION, RICHARD §

NEDLEKOFF, in his official capacity as

§

Conservator of the Texas Youth Commission, §

ALEXANDRA WARMKE, MARY HENRY, as §

Executor of the Estate of James Henry, JOHN §

WILLIAMS, BRADLEY SHACKLEFORD,

§

CHRISTOPHER TREVINO, MANUEL

§

TORRES, RICHARD BRIGGS, PHILIP

§

WATSON, ROBERT McQUEEN, DON

§

BRANTLEY, LINDA REYES, DWIGHT

§

HARRIS, BART CALDWELL, JOYCE

§

McDANIELS, TERI WILSON, GERALDO

§

PENUELAS, EDUARDO MARTINEZ,

§

JEROME WILLIAMS, BEL YNDA BENNETT, §

ALAN WALTERS, SHlREE N. WOODEN,

§

JACQUELINE LEWIS, FRANK SOTO,

§

SHIRLEY BUSH, DON FREEMAN, BLU

§

NICHOLSON, JEROME PARSEE, LYDIA

§

BERNARD, CHESTER CLAY, KERRI

§

DAVIDSON, JUAN S. MUNOZ, DON

§

BETHEL, STEVE FRYAR, PATSY REED

§

GUEST, BILL MAHOMES, JR., GOGI

§

DICKSON and ROSS ROBINSON,

§

individually.

§

f\LEO
rEB 101008
CLERK\,.U.S. DIST WESTE\'f\N
BY
CIVIL ACTION NO. 1:07-CV-276 (LY)

Case 1:07-cv-00276-LY Document 132 Filed 02/20/08 Page 2 of 38
PLAINTIFFS' THIRD AMENDED COMPLAINT Plaintiff Joseph Galloway, individually, and Plaintiffs Dana Brockway (on behalf of her minor son, A.B.), Gloria Washington (on behalf of her minor son, lW.) and Linda Thomas (on behalf of her minor grandson, J.A.), individually and on behalf of those similarly situated who are and will be incarcerated in the facilities of the Texas Youth Commission, file this suit against the Defendants and would show:
STATEMENT OF THE CASE 1. Plaintiffs Joseph Galloway, A.B. (through his next friend, Dana Brockway), lW. (through his next friend, Gloria Washington), and lA. (through his next friend, Linda Thomas), complain that the Texas Youth Commission ("TYC") and its current and former staff routinely and daily violate the federal statutory and constitutional rights of children incarcerated in TYC facilities, and, in short, relegate their youthful lives to a living hell. TYC's own former conservator, Jay Kimbrough, describing TYC's "systemic problems," stated it is "a juvenile justice system in disarray." 2. Defendants routinely denied Joseph, A.B., J.W., J.A., and other children with qualified disabilities the reasonable accommodations to which they are entitled under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, resulting in physical injuries, denial of access to programs and services, and continued incarceration in extremely restrictive settings. 3. TYC employees and Board members, through custom, policy, and individual action, routinely physically and sexually assaulted, and/or allowed other inmates and TYC staff to assault, Joseph, A.B., J.W., J.A. and other children, denied them due process of law under the Fourteenth Amendment to the United States Constitution, denied their right to access to counsel under the First, Sixth and Fourteenth Amendments to the United States Constitution, subjected

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them to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, compelled them to bear witness against themselves in violation of the Fifth and Fourteenth Amendments of the United States Constitution, and retaliated against them for speaking about the problems in TYC in violation of the First and Fourteenth Amendments to the United States Constitution. These claims are brought through 42 U.S.C. § 1983.
4. Defendants Harris, Freeman, Nicholson, Parsee, Caldwell, Bernard, Clay, Davidson, Brantley, Reyes, Munoz, Bethel, Fryar, Guest, Mahomes, Dickson, Robinson, Walters and Martinez had knowledge of the deplorable, unconstitutional conditions in TYC's facilities and failed to correct them. As a result of these Defendants' inaction and dereliction of their legal duties, Plaintiffs suffered serious physical injuries and other violations of their constitutional and statutory rights.
JURISDICTION AND VENUE 5. This Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. §§ 1331,2201. 6. Venue is proper in this Court under 28 U.S.C. § 1391(a)(l) and (2) because TYC's central office and operational, decision-making center is located in this judicial district, because some of the Defendants reside in this district, and because incidents at bar took place within this judicial district. Plaintiffs further invoke the supplemental jurisdiction of this Court pursuant to 28 U.S.c. § 1367(a) to consider their state law claims.
PARTIES 7. At the time of the below-described incidents, Joseph Galloway was an inmate in TYC custody. Joseph has been released and now resides with his family in Houston County, Texas; During all relevant times, Joseph's family resided in Crockett, Texas in Houston County.
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8. Plaintiff Dana Brockway is the natural mother and legal guardian of her minor son, A.B. A.B. is currently incarcerated in TYC custody, and resides at the McLennan County State Juvenile Correctional Facility ("Mart") in Mart, Texas. Similarly situated children are also in TYC custody. Ms. Brockway resides in Grayson County, Texas.
9. Plaintiff Gloria Washington is the natural mother and legal guardian of her minor son, lW. J.W. is currently incarcerated in TYC custody, and resides at Mart. Similarly situated children are also in TYC custody. Ms. Washington resides in Bastrop County, Texas.
10. Plaintiff Linda Thomas is the grandmother and legal guardian of her minor grandson, J.A. lA. is currently incarcerated in TYC custody, and resides at the Crockett State School ("Crockett") in Crockett, Texas in Houston County. Similarly situated children are also in TYC custody. Ms. Thomas currently resides in Houston, in Harris County, Texas.
11. TYC is the State's juvenile correctional system. TYC's statutory purpose is "to provide a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged delinquent." Tex. Human Resources Code § 61.002. The agency has been served through its counsel.
12. In all actions described herein, Defendants Nedlekoff, Warmke, Williams, Henry, Shackleford, Trevino, Torres, McQueen, Briggs, Watson, Brantley, Reyes, Harris, Caldwell, McDaniels, Williams, Penuelas, Bennett, Freeman, Nicholson, Parsee, Bernard, Clay, Davidson, Owens, Munoz, Bethel, Fryar, Guest, Mahomes, Dickson, Walters, Wooden, Wilson, Martinez, Lewis, Bush, Robinson and Soto, each were acting under color of law and pursuant to legal authority. Each was an employee or contractor of TYC and, as such, were responsible for upholding the laws of the United States and the State of Texas.

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13. Defendant Nedlekoff is the Conservator of TYC. He is sued for injunctive and declaratory relief only. He can be served at TYC's central offices, 4900 N. Lamar Blvd., Austin, TX 78751.
14. James Henry, a former TYC guard acting under color of law, died shortly after committing the violations of Joseph's rights alleged below. Henry's wife, Mary Henry, is the executor of his estate. See Tex. Probate Code § 77(b). Joseph may "enforce the payment [of a claim] by suit against the independent executor" pursuant to Texas Probate Code § 147. Mrs. Henry has been served with process and appeared in this litigation.
15. Defendant Alexandra Warmke is a TYC guard. Pursuant to the agreement with Defense counsel, she is considered served and will be represented by one of Defendants' counsel.
16. Defendant John Williams is a TYC guard. He resides in Georgetown, Texas in the Western District of Texas. Pursuant to an agreement with counsel is considered served.
17. Defendant Bradley Shackleford is a TYC guard. He has been served with process and appeared in this litigation.
18. Defendant Christopher Trevino is a TYC guard. He has been served with process and appeared in this litigation.
19. Defendant Manuel Torres is a TYC guard. He has been served with process and appeared in this litigation.
20. Defendant Robert McQueen is a TYC guard. He has been served with process and appeared in this litigation.
21. Defendant Richard Briggs is a TYC guard. He has been served with process and appeared in this litigation.

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22. Defendant Philip Watson is a TYC guard. He has been served with process and appeared in this litigation.
23. Defendant Don Brantley is a fonner executive employee of TYC. He served as TYC's executive director for juvenile corrections during much of Joseph's incarceration. He was fired by TYC in the spring of 2007. He has been served with process and appeared in this litigation.
24. Defendant Linda Reyes is a former executive employee of TYC. She served as deputy executive director during much of Joseph's incarceration. She was forced to resign in the spring of 2007. She has been served with process and appeared in this litigation.
25. Defendant Dwight Harris was TYC's executive director during much of Joseph's incarceration. He has been served with process and appeared in this litigation.
26. Defendant Bart Caldwell was the superintendent of Evins during Joseph's incarceration there. He has been served with process and appeared in this litigation.
27. Defendant Joyce McDaniels is an employee of the University of Texas Medical Branch (UTMB), and a nurse in TYC facilities. She has been served with process and entered a special appearance in this litigation.
28. Defendant Teri Wilson is a TYC caseworker. She has been served with process and appeared in this litigation.
29. Defendant Geraldo Penuelas was a TYC caseworker. He has been served with process and appeared in this litigation.
30. Defendant Belynda Bennett was a TYC caseworker at Giddings. She can be served with process at 4700 FM 2502 Rd., Burton, TX 77835.
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31. Defendant Eduardo Martinez was the Superintendent at Giddings during most of lA.' s incarceration. He resigned in the spring of 2007. Counsel are working out an agreement to serve him.
32. Defendant Alan Walters was the superintendent of TYC's McLennan County State Juvenile Correctional Facility ("Mart") in Mart, Texas, at all relevant times. He is currently the superintendent ofTYC's Giddings State School ("Giddings") in Giddings, Texas in Lee County. He can be served at Giddings at 2261 James Turman Rd., Giddings, TX 78942.
33. Defendant Shiree N. Wooden is a security guard at TYC's Mart facility. She can be served at Mart at 116 Burleson Rd., Mart, TX 76664.
34. Defendant Jacqueline Lewis is a TYC guard. She was in charge of supervising the children in A.B.'s dorm when another child assaulted and injured A.B. She can be served with process at Giddings, 4700 FM 2502 Rd., Burton, TX 77835.
35. Defendant Shirley Bush is a TYC caseworker. She can be served at the Mart facility, 116 Burleson Rd., Mart, TX 76664.
36. Defendant Jerome Williams was a juvenile correctional officer at Giddings. Williams was the guard on duty when lA. was violently raped who failed to protect lA. from the assault. Counsel are in the process of identifying him.
37. Defendant Don Freeman was the superintendent of the Crockett State School during Joseph's incarceration there. He was fired in the spring of 2007. He has been served with process and appeared in this litigation.
38. Defendant Blu Nicholson was the assistant superintendent of the Crockett State School during Joseph's incarceration there. He was fired in the summer of 2007. He has been served with process and appeared in this litigation.

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39. Defendant Jerome Parsee was the superintendent of the Marlin facility during Joseph's incarceration there. He was fired in the spring of 2007. He has been served with process and appeared in this litigation.
40. Defendant Lydia Bernard is TYC's former director of juvenile corrections. She was fired in the spring of 2007. She has been served with process and appeared in this litigation.
41. Defendant Chester Clay is TYC's former assistant deputy executive director for juvenile corrections. He served in this position for most of Joseph's incarceration, and can be served at TYC's central offices in Austin. He has been served with process and appeared in this litigation.
42. Defendant Kerri Davidson is TYC's former chief of staff. She served in that position during most of Joseph's incarceration. She was fired in the spring of 2007. She has been served with process and appeared in this litigation.
43. Defendant Juan S. Munoz was a member of TYC's board during Joseph's incarceration. He resigned in the spring of 2007. He has been served with process and appeared in this litigation.
44. Defendant Don Bethel was a member ofTYC's board during Joseph's incarceration. He resigned in the spring of 2007. He has been served with process and appeared in this litigation.
45. Defendant Steve Fryar was a member ofTYC's board during Joseph's incarceration. He resigned in the spring of 2007. He has been served with process and appeared in this litigation.
46. Defendant Patsy Reed Guest was a member of TYC's board during Joseph's incarceration. She resigned in the spring of 2007. She has been served with process and appeared in this litigation.
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47. Defendant Bill Mahomes, Jr. was a member of T~rc's board during Joseph's incarceration. He resigned in the spring of 2007. He has been served with process and appeared in this litigation.
48. Defendant Gogi Dickson was a member of TYC's board during Joseph's incarceration. She resigned in the spring of 2007. She has been served with process and appeared in this litigation.
49. Defendant Ross Robinson was the superintendant at Giddings during Joseph's incarceration there. He can be served with process at 1016 Private Road 2262, Apt. 6, Giddings, TX 78942-6076.
50. Defendant Frank Soto was a TYC guard at the Giddings facility and may be served at Giddings, 4700 FM 2502 Road, Barton, Texas 77835.
51. Collectively, Defendants Munoz, Bethel, Fryar, Guest, Mahomes and Dickson are hereinafter referred to as "the Board." The Board is charged with "adopt[ing] policies and mak[ing] rules necessary to the proper accomplishment of [TYC's] functions."
52. Collectively, Defendants Clay, Bernard, Harris, Brantley, Reyes, and Davidson are hereinafter referred to as "the Executives."
53. Collectively, Defendants Wilson, Bennett, Penuelas and Bush are hereinafter referred to as "the Caseworkers."
54. Collectively, Defendants Caldwell, Nicholson, Freeman, Robinson, Martinez and Parsee, are hereinafter referred to as "the Superintendants."
CLASS ACTION 55. A.B., J.W., J.A. and the similarly-situated class members comprise a class of approximately 4,700 individuals who are currently, or will in the future be, in TYC custody.
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56. A.B., J.W., J.A., and the class members meet all the prerequisites for a class action as provided under Federal Rule of Civil Procedure 23 for injunctive and declaratory relief.
57. The class which A.B., J.W., J.A., and the class members comprise is so numerous that joinder of class members is impracticable.
58. Questions of law and fact are common to this class, namely: a. TYC fails to provide reasonable accommodations to qualified individuals with disabilities to enable these individuals to have meaningful access to the programs, services and activities ofTYC; b. TYC fails to provide reasonable accommodations to qualified individuals with disabilities to enable these individuals to be free from restraint and remain in the least restrictive setting; c. TYC fails to provide the care and treatment to qualified individuals with disabilities requested by TYC's own treating professionals; d. TYC denies individuals due process of law through its indeterminate sentencing scheme; e. TYC denies individuals access to counsel through its policies, practices and procedures; f. TYC violates individual protections against self incrimination by requiring confessions as part of their "therapy;" g. TYC fails to provide treatment and rehabilitation services to individuals as required by the U.S. Constitution and Texas statutes; and, h. TYC fails to protect individuals from harm, in violation of their Eighth and Fourteenth Amendment rights.
59. A.B., J.W., lA., and the class members' claims as described herein are typical of the claims of the class. Together, A.B., J.W., lA., and the class members support their theories for injunctive and declaratory relief on the same legal theories alleged in this case.
60. A.B., J.W., lA., and their counsel will fairly and adequately protect the interests of the other class members. Class counsel, Geoffrey N. Courtney, has been class counsel in numerous other class actions involving the rights of minors and persons with disabilities. His
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representation has been noted with approval by courts in this district. See Neff v. VIA Metropolitan Transit Authority and the City of San Antonio, 179 F.R.D. 185, 194 (W.D. Tex. 1998). Where an attorney has been found to be adequate in the past, it is persuasive evidence that they will be adequate again. Beckless v. Heckler, 622 F. Supp. 715, 721 (N.D. Ill. 1985). Moreover, Plaintiffs' counsel believe that their resources are more than adequate to represent the class competently and that they have no other professional commitments which are antagonistic to, or which would detract from, their efforts to secure a favorable decision for the class in this case. A.B., lW., lA., and their counsel will adequately assert and support the legal claims that form the basis of this action. A.B., J.W., lA., and the children will benefit equally by virtue of this action if the Court recognizes and vindicates their federal statutory and constitutional rights.
61. This class action may be properly maintained under the Federal Rules of Civil Procedure 23(b)(2) because Defendants' conduct pursuant to their procedures, policies, and/or practices denied A.B., J.W., J.A., and the class members their constitutional rights and final declaratory relief will settle the legality of the Defendants' challenged procedures, policies, and actions for the class as a whole.
62. Joseph brings his own claim for damages as an individual for the physical and sexual abuse he individually suffered while in TYC custody, separate from A.B., J.W. and lA.'s claims on behalf of the class for injunctive and declaratory relief. A.B., lW. and J.A. seek no damages for the class, but do seek damages incidental to class relief.
FACTS A. TYC Operations 63. When children enter TYC, beginning in the fall of 2007, they will be initially processed through the McLennan County State Juvenile Correctional Facility in Mart, TX (hereinafter "Mart"). Prior to the fall of 2007, children were initially processed through TYC's
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Marlin Orientation and Assessment Unit in Marlin, TX (hereinafter "Marlin"). Most children spend about two months being initially processed before they are sent to other facilities. Joseph, A.B., lW. and lA. each spent between forty-five and sixty days at Marlin.
64. Children in TYC custody are subject to transfer between TYC units at any time. After arriving at TYC's Giddings State School ("Giddings"), A.B. was later transferred to Mart, then briefly to the Gainesville State School, then back to Mart. lW. was initially transferred to Mart, and then spent several months in TYC's Corsicana Residential Treatment Center facility ("Corsicana"), and was recently told he would be transferred to TYC's Al Price Juvenile Correctional facility in Beaumont, TX. lA. was initially placed at Giddings, then transferred to Corsicana, then to Crockett. Following Marlin, Joseph was placed at Giddings, then moved to the Evins State School ("Evins"), then was finally released from Crockett.
65. During their time at Mart (and previously at Marlin), children are supposed to be tested and evaluated to determine how they will be rehabilitated. Children are provided with an "individualized case plan," or ICP.
66. TYC assembles children's ICPs without input from them or their parents. In order to formulate their ICPs, TYC limits all its testing and assessment to children's responses to a computer program. Plaintiffs never spoke with a TYC counselor or caseworker about the ICP, and TYC only tested them to see if they had a learning disability or were mentally retarded. The ICP does not make accommodations for mental disabilities, or even consider such known disabilities as Attention Deficit/Hyperactivity Disorder ("ADHD"). In fact, former TYC Conservator Kimbrough writes "all but two [TYC] facilities lack academic counselors to develop appropriate schedules for students."
67. Most children in TYC are incarcerated for an indeterminate sentence. A child has a minimum sentence set by the family court that committed them to TYC custody. The child

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serves that minimum, plus only the additional time until they are rehabilitated and released to a less restrictive setting, such as a halfway house or their parents' home. When children are released to this setting, they have certain conditions they must abide by, or they can be returned to TYC custody.
68. To be released to this less restrictive setting, a child has to complete their "phases" in TYC's "Resocialization©" program. There are five phases (0-4), and each phase has three components (Academic, Behavior, and Correctional, or A, B, C). See 37 Tex. Admin. Code § 87.3. A child can complete one of their phases, and not advance in the others. A child could succeed academically but remain in TYC, for example, if TYC officials arbitrarily determine the child has a "behavior problem."
69. The "Resocialization©" program is a total failure. TYC Conservator Kimbrough notes it has a "50 percent recidivism rate." Though TYC has promised for months it will abandon "Resocialization©", it has yet to do so.
70. As part of the "Resocialization©" program, children are required to "check and confront" their peers. "Checking and confronting" requires children to correct other children's misbehavior-essentially delegating TYC's security responsibilities to the children. As part of "checking and confronting," children are required to break up fights and police the actions of other children. Part of this process involves calling "huddle ups," where children assemble their peer group and confront misbehaving children. "Checking and confronting" and "huddle ].IpS" create a dangerous atmosphere, because children are expected to "snitch" on their peers. Refusal to "check and confront" other children prevents children from advancing in the "Resocialization©" program and can delay their release from TYC custody.
71. A disciplinary action against a youth is a "225," named for the number of the form completed. A 225 can be either a "category 1" or "category 2." Category 1 is "major," and

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would include assaulting a fellow student or a guard. A "category 2" is "minor," and would include using foul language or violating Tye's dress code.
n. Tye intentionally discriminates against children with disabilities, including but not
limited to Plaintiffs, by assigning them 225s for manifestations of their disabilities. 73. Children are frequently given 225s without any notice or opportunity to respond.
Children, including Plaintiffs, may not even know Tye gave them a 225 until weeks later. 74. Former Tye Conservator Kimbrough noted "correctional officers used disciplinary
reports [225s] against [children] as a way to retaliate against youths who attempted to report problems. The disciplinary reports can and do cause [a child's] confinement to be extended. That makes them a powerful tool for correctional officers and one that can be subject to abuse."
75. To complete the "Behavioral" or "B" phase, children must pass through four levels. To achieve the "B-1" phase, a child cannot have more than seven "category 2"s and no "category 1"s in a month. To achieve the "B-2" phase, a child cannot have more than five "category 2"s in a month and no "category 1"s. To achieve the "B-3" phase, a child cannot have more than three "category 2"s, and no more than one "category 2"s to achieve the "B-4" phase. The "B" phase is reviewed every 30 days, and each month's number of 225s automatically determines "graduation" to the next phase. A child can only be promoted through one "phase" each month, so it will take a child a minimum of four months to be promoted through the "B" component.
76. To complete the "Correctional Therapy", or "e" phase, a child must identify the "errors in [their] thinking". Completion of the "C" phase does not constitute actual mental health therapy because TYC "therapists" only require students to memorize and recite a "script". TYC "therapists" are not credentialed to provide mental health therapy or trained to recognize children's mental disabilities. Though TYe's statutory purpose is to rehabilitate students, TYC routinely denies children the opportunities to participate in its "rehabilitative" programs.
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77. "C-l" requires memorizing "nine thinking errors." "C-2" requires a child to write and memorize their "life story." "C-3" requires a child to talk about their "offense." This involves other children ridiculing the student during group therapy. The "therapist" reads the group the police investigation statements and victim impact statements from the student's offense, although these documents are confidential under Texas Government Code § 508.313. The other members of the group then "make fun" of the student, and a child advances to the next phase only when they show sufficient "empathy," as arbitrarily determined by TYe. "C-4" requires developing a "success plan," which outlines what the child will do when they leave TYC custody. Lengthy delays in completing "success plans" result in extended incarceration for these children, through no fault of their own. Despite requiring children to formulate "success plans" before they can leave TYC custody, TYC provides children with no support once they leave.
78. TYC requires children to "confess" to elements of their offenses that were not the
subject of findings by the family court as part of the "c" phase. In some cases, these
"confessions" are later used against the child or the child's parents in Child Protective Services investigations or future criminal proceedings. In other cases, TYC's demands that children confess to something that is not true substantially extends their incarceration. Though the children are in TYC's custody, TYC does not advise the children that statements they make to "therapists" could be used against them in future legal proceedings. If a child's confession does not satisfy TYC, the sentence will be extended because the child cannot complete the "C" phase without making a full "confession." A child will only be released when ryC is satisfied the child has fully "confessed," even if this means admitting things that are not true, were not found by the family court that sentenced the child, and could subject the child or parents to future legal consequences. Children are not given a Miranda warning or the opportunity to consult with
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counsel before these "confessions." A.B. and Joseph were threatened with continued incarceration if they did not confess to things they did not do. Thus, Joseph confessed to things that were not true, although these confessions prejudiced his legal rights. A.B. continues to refuse to confess to things that are not true, and his sentence has been extended as a result.
79. TYC forces students to confess to violations ofTYC rules during their "correctional therapy" as well. Although these children are in TYC's custody, they are not provided with a Miranda warning or the opportunity to consult with counsel before making these "confessions." These confessions are used to assign disciplinary 225s to students, which result in extended sentences.
80. TYC has taken Joseph, A.B., J.W., lA., and other children's "phases" away without due process. Demoting them was arbitrary and capricious. Joseph once went from B-4 to B-1 without due process, even though it originally had taken him fourteen months to achieve B-1. A.B. was demoted from B-4 to B-3 despite his counsel requesting a hearing before A.B. was demoted. When a "phase" is taken away, there is usually no due process hearing where the child can be represented by counsel, present evidence, cross examine witnesses, and present arguments to a neutral decision maker. Joseph, A.B., J.W. and J.A. were never provided with counsel for a hearing, and their parents were never informed of the hearings.
81. TYC only provides a due process hearing when a student is given a "category 1" 225, even though accumulated "category 2" 225s are frequently used to extend a child's sentence. When a "level 2" hearing is held fora "category 1" 225, the decision-makers are the superintendent, program associates, and caseworker at the facility. These individuals are not impartial, and frequently are the same TYC officials whose allegations form the basis of the disciplinary action. Likewise, they are the same officials who knowingly permitted children in TYC to be endangered through inadequate staffing, permitting and even hiding allegations of
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sexual assaults, inadequate supervision and condoning violence and abuse of the children to whom they were entrusted. When hearings are held, TYC staff frequently refuse to allow witnesses to be called who would support a child's position, and do not allow children to crossexamine their accusers. Children sentenced to placement in TYC, including Joseph, A.B., lW., and J.A., are not provided a meaningful opportunity to be heard when they are assigned 225s. Accumulation of 225s results in automatic extensions of children's sentences without due process.
82. TYC does not arrange for juveniles to have access to counsel to assist them when they are given a 225, and does not even inform the children's parents they have been given a 225. Children in TYC custody frequently do not understand the disciplinary processes TYC utilizes to extend their sentences. Most children sentenced to TYC custody are indigent, including lA. and J.W., and cannot afford private counsel.
83. No objective guidelines or criteria exist governing when a child will be given a 225. Children are frequently given 225s for arbitrary and capricious reasons, similar to instances when Joseph, A.B., J.W., and lA. were assigned the 225s discussed below.
84. Children in TYC rarely get in trouble for fighting. Joseph recalls the kitchen at Giddings was "like a boxing ring." Joseph estimates he was in 60 fights during his time in TYC's custody, and was frequently physically injured. A.B., J.W. and J.A. have all been injured on multiple occasions when other students assaulted them. Students are frequently physically injured because of fights in TYC facilities.
85. TYC does not employ a custodial classification system to separate children according to offense, propensity for violence or known danger and/or to protect the children in this case. In fact, TYC houses physically small and vulnerable children as young as ten years old in the same "dorms" as much older, larger children, some of whom are eighteen years old. Many
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children in TYC custody sleep in "open bay" style donns, where as many as 25 students sleep in a single room with little or no adult supervision. Tye houses children accused of non-violent offenses, like graffiti or theft, with others who have been involved in murder or violent crime. The Executive, Board and Superintendent Defendants each knew TYC did not employ a custodial classification system, such as the systems that are employed in virtually every adult correctional facility, knew TYC housed children in "open bay" donns, knew this made the facilities dangerous, and knew children were left unprotected.
86. TYC does not employ sufficient security staff to ensure children are not assaulted by other inmates. The Texas State Auditor's Office found officer to child ratios as high as 1 to 25. Tye has extremely high staff turnover, and is forced to operate with few, poorly trained, correctional staff. The Executive, Board and Superintendent Defendants knew about these staffing problems, knew that it was placing individuals at Tye facilities, including but not limited to Plaintiffs, at great risk of abuse and/or assault, but took no action to remedy the conditions to protect the children in their custody.
87. The fact that TYC staff take workers compensation at much higher rates than other state employees, including employees in the adult prison system, further evidences the dangerous conditions in TYC facilities. The Executive, Board and Superintendent Defendants knew about these conditions as well.
88. Joseph, A.B., lA., J.W., and similarly-situated children have gone to the infinnary many times for black eyes or broken noses from these fights. Joseph would tell the nurses he "fell in the shower" or "ran into my bunk" because he did not want to be a "snitch." When both sides of J.W.'s jaw were fractured, nurses in the TYC infirmary appear to have accepted the unlikely explanation that he "fell off the bunk." Upon infonnation and belief, nurses and Tye officials are not trained to and routinely fail to question these stories typical of abuse victims,
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and/or investigate or report them, even though nurses had a legal obligation to report the incidents under Texas Family Code § 261.101.
89. Tye staff also regularly verbally abuse children with disabilities. A.B., lW., J.A., and Joseph were all called "stupid" and various obscenities because of their disabilities and suffered harm.
90. The Executive, Board and Superintendent Defendants knew of these policies and conditions discussed in this complaint, but did nothing to remedy them. They knew Tye was not only operating its facilities dangerously below accepted professional standards - they were deliberately indifferent to these conditions. They knew these conditions violated the clearly established constitutional rights of Joseph, A.B., lW., J.A. and many other children yet chose not to remedy them and leave Tye children, including but not limited to Plaintiffs, in danger. Among other things, they knew but failed to act to remedy:
a. The failures of Tye's "Resocialization©" program, which they knew resulted in children being denied rehabilitation and being incarcerated in extremely restrictive settings for periods much longer than the sentencing juvenile courts intended;
b. The dangerous conditions in Tye's facilities, which resulted in physical injuries to Plaintiffs, as well as dangers caused by, among other things,: i. Tye's failure to hire appropriate levels of security staff; ii. Tye's failure to train and supervise the limited staff they chose to hire; iii. TYe's use of facilities with "open bay" dorms; iv. TYe's condoning andlor permitting assaults; and v. Tye's failure to utilize a custodial classification system to separate vulnerable children from older, larger, more violent inmates.
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91. The Caseworker Defendants also knew of these policies but continued to enforce them. The Caseworker Defendants knew the "Resocialization©" program resulted in children being incarcerated for additional periods of time in more restrictive settings, but were deliberately indifferent to these policies. They knew they were delaying children's release to less restrictive settings and denying children rehabilitative treatment, in violation of appropriate professional standards, but were deliberately indifferent to the effects of these policies on Plaintiffs.
92. In addition, the Superintendent Defendants also were aware of these conditions and policies described herein but were deliberately indifferent to them. The Superintendent Defendants knew of the extremely high rates of violence in TYC facilities, generally and dangers at the facilities they supervised, but took no action to remedy these obvious problems. They too knew of TYC's staffing, training and supervision problems, use of "open bay" dorms, failure to utilize a custodial classification system, and condoned dangerous behavior. They also knew the "Resocialization©" program resulted in children being incarcerated for additional periods of time in more restrictive settings, but were deliberately indifferent to these policies. And as a result, Plaintiffs were harmed.
B. Joseph Galloway 93. Joseph is twenty years old and was released from TYC custody in April 2007, after being incarcerated for four years. When he was eight years old, he spent time in a state mental hospital, where he was treated for bipolar disorder. Joseph is a thin teenager and also has Tourette's Syndrome and Attention Deficit/Hyperactivity Disorder (ADHD). 94; Tourette's Syndrome is characterized by a collection of symptoms, including involuntary movements and sounds and involuntary compUlsive rituals and behaviors. People with Tourette's Syndrome experience obsessions, compulsions, inattention, impulsivity and
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mood variability. The disability can cause people to involuntarily move, make loud noises, blink, nod, shake, and curse, and may manifest itself more acutely during adolescence. Tourette's Syndrome is a mental impairment that substantially limits one or more major life activities.
95. Bipolar disorder is characterized by extreme mood swings, from mania to depression. Bipolar disorder can result in risky behavior, including inappropriate sexual behavior and even suicidal tendencies. Symptoms of bipolar disorder can include excessive talking, unusual energy, reckless pursuit of gratification (including promiscuous sex), hallucinations or delusions, depressed mood, low self-esteem, poor concentration, and suicidal thoughts and feelings. Bipolar disorder is a mental impairment that substantially limits one or more major life activities.
96. ADHD prevents sufferers from paying attention and causes difficulty focusing. The most common symptoms of ADHD are difficulty paying attention, acting impulsively, and hyperactivity. ADHD is a mental impairment that substantially limits one or more major life activities.
97. Joseph has been taking some form of medication for his disabilities since he was fivc years old. He currently takes Clonidine to control his Tourette's Syndrome. Clonidine is a powerful drug that can cause drowsiness and dizziness.
98. Joseph was incarcerated in four different TYC facilities: Marlin, Giddings, Evins and Crockett. He was most recently incarcerated in Crockett.
99. TYC officials gave Joseph disciplinary actions for: a. Falling asleep after taking his medication which makes him drowsy; b. Playing with a banana; c. Sitting in the wrong seat during church; ??

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d. Wearing his socks pulled down; e. Wearing pants that were too large, although TYC provided the pants to him; f. Wearing an extra shirt when he was cold; g. Wearing a long sleeve shirt when he was cold; h. "Acting out" because of his disability; 1. Having cornflakes in his bowl of milk when he was on a "soft food" diet; j. Looking out the window during class; k. Shaking hands with another child; and, 1. Being "playful and immature." 100. Due to the discrimination against Joseph because of his disability and violations of his due process rights, Joseph should have been released years earlier. Instead, TYC illegally held him captive in its hellish system, thereby depriving him of his youth and subjecting him to abuse by its employees and detainees. 101. Beginning in March 2005, Joseph had completed the minimum length of sentence assigned by him by TYC. In March 2005, Defendant Bennett extended Joseph's sentence because he had only reached phase A-4, B-4, C-2. Bennett checked a box on his March ICP report indicating "the results of this Phase assessment have extended the earliest projected release date." Joseph was not provided any due process before Bennett made this decision to extend his incarceration. Joseph would spend more than two additional years in TYC custody as Bennett and his subsequent caseworkers (including Defendants Penuelas and Wilson) extended his incarceration. 102. Joseph completed his "phases" in 2006 but his caseworker, Defendant Penuelas, admitted that he "never put it in the computer system." TYC does not have centralized record keeping or data collection indicating what phases have been completed. Kimbrough describes

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TYC's "20 different databases that collect information, but none [that] talk to each other... , There is no one central data warehouse or integrated system that allows the agency to get a complete picture of any given youth's record." TYC only keeps centralized records of the number of 225s a student has accumulated. When children are transferred between TYC facilities, their records do not always transfer with them. TYC keeps the records in a physical file that guards are required to move with the child during transport. Records are frequently lost because of this system. This basic record keeping failure requires children to complete their "phases" multiple times and delays their release from TYC. The Executive, Board, Superintendent and Caseworker Defendants were all aware of this and the effects it had on children like Joseph but failed to remedy the problems. TYC should have released Joseph long ago. But even by its own discriminatory practices, the latest release date would have been October 26,2006. TYC failed to release him until AprilS, 2007.
103. Transfer between facilities can dramatically extend a child's incarceration. When Joseph arrived at Crockett, Wilson sent his parents a letter telling them that even though Joseph had a "tentative release date" he could not be released until he "demonstrate[ed] his knowledge and ability to follow the Resocialization Program" even though she knew Joseph had already done this at the previous facilities.
104. When Joseph arrived at Crockett, he told Defendants Wilson, Freeman and Nicholson he had completed his "phases" and should be released. The finals steps of Joseph's "reintegration" had already been completed. Wilson told Joseph he was making excuses for why he had not been released, that he "had no proof' and that it was his fault he was still in TYC. Defendants Penuelas, Wilson, Nicholson and Freeman knew Joseph should have been released sooner to a less restrictive setting because he had completed TYC's rehabilitation program, but
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were deliberately indifferent to his extended incarceration. In fact, under the provisions of the applicable code, these Defendants had no discretion not to release him.
105. While Joseph was in TYC custody, the Caseworker Defendants also coerced him to confess to crimes he did not admit. The Caseworker Defendants told Joseph he needed to admit to committing sexual acts with his younger brother that did not take place. Joseph refused to make these admissions for six months. Joseph could not progress through the "C" phase during these six months. Finally, Joseph confessed to showing his brother pornography, although this also did not take place, in order to satisfy his caseworkers.
106. While he was at Marlin, Joseph was sent to security for "disrespecting staff' in Spring 2003. Disturbed by the combination of his incarceration, difficult past, disabilities, and changed circumstances,. he was reduced to beating on the wall in his cell. The security director at the facility taunted Joseph, cajoling him to "keep standing up" and "keep beating on that."
107. Defendants Shackleford and Williams were called to take Joseph out of his cell. They came in the cell and hit Joseph in the face with their riot shield, breaking his nose and causing serious physical injury. Defendants knocked Joseph unconscious. He woke up in a pool of his own blood, with more blood running down his face and all over his shirt. Defendants carried him out of the cell in leather restraints to the infirmary.
108. In the infirmary, TYC nurses told Joseph his nose was broken, but only gave him toilet paper to stop the bleeding. When he was taken back to his cell, he saw in the mirror his nose was crooked and continuing to bleed. The care Joseph purportedly received was so derelict that Joseph had to pop his nock back into place himself.
109. Because of this incident, Joseph was placed on "BMP," the "Behavior Management Program." BMP is "isolation"-students are taken out of the "dorm" and placed in segregation cells. According to TYC policies/practices students are only supposed to spend two weeks in

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BMP, however, Joseph was in BMP for almost three weeks. Children have to "earn their way out" of BMP, as arbitrarily determined by TYC. Only a "level 2" hearing takes place before children are put in BMP. TYC fails to provide parents notice of their children's hearings, and students are not provided counsel before entering BMP. BMP is a highly restrictive setting and fails to provide rehabilitative treatment. Shackleford told Joseph he was kept on BMP so long because "paperwork was lost."
110. Joseph was transferred to Giddings after he left Marlin. He spent approximately three years and three months at Giddings, from mid-2003 until April 2006.
111. When Joseph was first at Giddings, he was living in Dorm 8. Female staff worked in the dorm. Joseph had a job as a "kitchen boy," and would clean up the kitchen, buff the floors and launder clothes from the kitchen.
112. Joseph was putting clothes in the washer when Defendant Warmke approached him. She told him, "It's my tum to touch you." She grabbed his crotch and felt his penis. She started squeezing his penis through his clothes. Defendant Warmke deliberately and intentionally performed oral sex on Joseph, even though he was underage and in custody. Warmke intentionally violated Texas Penal Code §§ 21.11 (indecency with a child), 22.011(a)(2)(C) (sexual assault with a child) and 39.04(a)(2) (improper sexual activity with a person in custody).
113. Warmke told Joseph not to tell anyone about what happened. Though she did not work with Joseph following the incident, she did have sexual relations with other minors at Giddings.
114. Around December 2003, TYC caused another inmate to rape Joseph at Giddings. In particular, James Henry, a correctional officer entrusted to supervise and protect children at TYC, escorted Joseph back to the single cells. When Henry took Joseph to the cells, they were
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all filled with other detainees. Some inmates were yelling to Henry, "Put him in with me!" and "I want a piece of ass!" Henry chose to put Joseph in a cell with a large, older inmate named Steven, in spite of the fact that Steven had yelled to Henry that he planned to rape Joseph.
115. Then, not only did Henry put Joseph in the cell, he made Joseph take offhis clothes for a strip search in front of the threatening rapist. He forced Joseph to strip and bend over in full view of Steven, and then Henry deserted Joseph while he was putting his clothes back on in the cell.
116. Steven told Joseph to take his clothes back off. Joseph refused. Steven punched Joseph twice in the head. Joseph fell down. Joseph tried to fight back, but Steven was much larger and stronger. Steven turned Joseph around and took off his pants. Joseph told him, "Stop, don't do it." Steven continued punching Joseph. Joseph told him to stop, but Steven sodomized him multiple times, causing Joseph serious physical injury.
117. Steven told Joseph, "Don't worry, I won't tell anyone." Joseph was afraid to report what Steven did to him because he would be considered a "snitch," and because Tye guards would not protect him from further assault. Joseph spent the next twenty-four hours terrified in the same cell with his rapist.
118. Although Tye guards, including Henry, are supposed to check the cells every fifteen minutes, upon information and belief, many guards only perform checks every hour. While Joseph was being raped, no Tye guard was there to protect him, and Henry was in another hall between two solid doors. Despite knowing Steven planned to rape Joseph, Henry placed Joseph in the cell and left the area. Accordingly, Henry was deliberately indifferent to Joseph's right to be protected from rape. The Executive, Board, and Superintendent Defendants knew Tye did not have sufficient staff to monitor the cells, knew the existing staff was poorly
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trained and inadequately supervised, and knew that these deficiencies would lead to constitutional violations like those alleged herein.
119. The same night, a few hours later, Henry took Joseph out of the cell to shower. He saw Joseph's underwear was covered in blood, and sarcastically asked him, "What's wrong with your ass?" Henry did not report that Joseph may have been sexually assaulted to anyone, although Henry knew Joseph had been raped and exhibited obvious symptoms of being raped, and even though Henry had an obligation to report the sexual assault pursuant to Texas Family Code § 261.101. After Joseph showered, Henry returned him to the cell with Steven for another fear-filled fifteen hours.
120. Steven took Joseph's food that night, so Joseph did not get to eat. Larger, stronger inmates frequently steal food from smaller, weaker students. TYC guards know this takes place, but are deliberately indifferent to it.
121. A few weeks later, Joseph went to the infirmary after complaining of blood in his stool. The nurses also failed to report Joseph may have been sexually assaulted, even though they had cause to believe he was a victim of sexual assault and were required to report suspected child abuse pursuant to Texas Family Code § 261.101. No forensic rape examination was done, and Joseph was only given Metamucil for "constipation."
122. Joseph continues to suffer a serious ongoing physical injury because of Henry's deliberate indifference. And a few weeks after Joseph was raped, Henry was presumably unable to live with his actions and committed suicide.
123. By February 2006, Joseph was so distraught that he attempted suicide twice at Giddings. Depressed, dwelling on what had happened to him at the hands of Defendants, TYC officials had caused Joseph to lose his phase and once again did not allow him to go home. He
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had to call his parents and tell them he would not be coming home again. As a consequence, Joseph felt that he would never get out ofTYC.
124. During the first suicide attempt, Joseph cut his wrists several times, causing a physical injury. A guard, Mr. Rangel, found him. Rangel refused to take him to the infirmary. Rangel told Joseph the wounds were "not bad." That night, when the pill call nurse came by, Joseph showed her the wounds were "green," and he was belatedly taken to the infirmary. Joseph still has scars on his wrists from this suicide attempt. Of equal significance, neither Rangel, his supervisors or the nursing staff placed Joseph on suicide watch or sent him for specific counseling related to the attempt.
125. During the second attempt, Joseph tried to hang himself. He had taken threads from his mattress and braided them together into a two-foot rope. He tied the rope around his neck, and passed out, causing physical injury. Dwain Harris, the security director at Giddings, responded to the cell. Rather than helping him, Dwain Harris told the guards and nurses Joseph was "faking" and "there's nothing wrong." While he was taken to the infirmary, Joseph's suicidal tendencies remained unaddressed.
126. At Giddings, it was also well known (by the Superintendent and Executive Defendants) that TYC officials routinely and regularly encouraged children to participate in an event dubbed "Gladiator Night." Likewise, similarly dangerous and improper fights routinely went on at Mart. TYC guards encourage children to tie a sock around their ankles, fight and physically injure other children who try to take the sock off. And TYC officials allowed inmates to assault and physically injure students who refuse to participate in Gladiator Night. Allowing Gladiator Night or similarly dangerous fighting events to take place is not only a gross departure from acceptable professional standards, it evidences deliberate indifference to children's rights to be protected from harm and these Defendants failure to remedy and/or eliminate the event caused
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children at Giddings and Mart to be needlessly harmed, viewed as having no rights, and unprotected.
127. In the spring of 2006, TYC transferred Joseph to Evins in Edinburg, Texas, a notoriously dangerous facility hundreds of miles from Joseph's family. TYC moved Joseph to Evins, far away from his family after Joseph's mother was complaining about the conditions in TYC facilities.
128. In late 2005, Joseph's mother wrote a letter to Texas Governor Rick Perry complaining about the conditions in TYC facilities. The letter was referred to Defendants Harris and Robinson, and Harris wrote a lengthy response to Joseph's mother saying "Joseph could be considered for release by this coming spring." Defendants Clay and Bernard were also aware of these complaints and others made by Joseph's mother.
129. Despite the assurance from Harris, shortly after receiving the response, Joseph was transferred to Evins where he remained until February 2007. The Executives, Robinson, and Caldwell were aware of the complaints in this letter, and fearful of being further exposed, approved andlor authorized the transfer to a location far from Joseph's mother. In fact, a guard at Giddings specifically told Joseph they were "glad to get rid of him" because he filed so many grievances. When Harris later saw Joseph at Evins, he sarcastically asked him "what are you still doing here?"
130. Moreover, the Executive and Superintendent Defendants knew not only that Evins would make it more difficult for Joseph to see his family, they knew, as did the Board defendants, that Evins would be dangerous for Joseph. In 2004, a major riot occurred at the facility. Officers from other facilities were called to Evins to help quell the rioting. In early summer 2006, Texas Governor Rick Perry (who appoints the Board), TYC, Harris, and Caldwell were informed in writing that the U.S. Department of Justice was investigating conditions at the
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facility. Defendant Bernard was at the facility during the rioting, and also knew about the investigation as did Defendant Clay. TYC investigators found many constitutional violations
occurring at Evins after the riots, yet no Defendants acted to correct the problems. As a result,
TYC children remained in significant danger. 131. Because TYC retaliated against Joseph by sending him hundreds of miles away to
a dangerous facility, his family was not able to see him as frequently as when TYC housed
Joseph at Giddings. Moreover, Joseph was placed in danger at Evins. And with limited family involvement, which is critical for any rehabilitative program to be successful, Joseph's move to Evins, also lacked a legitimate penological purpose. Rather, TYC, the Executives, Robinson,
and Caldwell retaliated against Joseph because he and his family exercised their free speech and
expression rights by complaining about conditions in TYC. 132. Most of the students at Evins are members of racial minority groups. Joseph is
Caucasian. However, Joseph was subsequently removed from protective custody.
133. Moreover, at Evins, TYC staff encouraged students to fight and told Joseph to
"prove you are not a bitch." The United States Department of Justice issued a finding letter in 2007 concluding, "Conditions at Evins violate the constitutional rights of the youth residents ....
Children at Evins are not adequately protected from harm." The Department of Justice wro,te: "Our investigation revealed an unacceptably high rate of youth violence at Evins. The atmosphere at Evins is chaotic and dangerous. Youths frequently fight with each other without detection or intervention by staff. Staff members and youths we interviewed consistently reported that staff members are unable to manage youths' behavior due to inadequate staffing. According to information provided by TYC, there were 1,025 reported youth-on-youth assaults at Evins in 2005, an average of 2.8 per day. For the first six months of 2006, there were 568 reported youth-on-youth assaults, an average of 3.1 per day. This frequency of assaults is a substantial departure from generally acceptable professional standards. Nationally, facilities comparable to Evins typically report an average of .241 youth on youth assaults per 100 days of confinement which, for Evins, correlates to 1.235 assaults per 100 days of confinement. Thus, the average rate of assaults at Evins is approximately five times the national average."
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Defendant Caldwell was the superintendent at Evins during Joseph's incarceration there, and was aware of and deliberately indifferent to these conditions. The Executive and Board Defendants were aware of these conditions and also were deliberately indifferent to them.
134. In fact, the Department of Justice concluded following their investigation that there was a pattern or practice of failing to ensure that the youth at Evins are adequately protected from harm and that such children were at undue risk of harm from staff assault and youth-on-youth assault. Moreover, the Department of Justice further concluded that there was a pattern or practice of failing to provide youth at Evins adequate due process and adequate rehabilitative treatment.
135. Nor did TYC contest these conclusions when the government sued TYC. Rather, TYC agreed that policies needed to be instituted to correct these deficiencies, including but not limited to establishing mandatory post coverage, mandatory staffing requirements, additional training and the implementation of a custodial classification system.
136. In addition to Evins, eleven other TYC facilities also had dangerously high numbers of reported safety complaints - all of which was known by the Board and Executive Defendants, and never remedied.
137. While at Evins, TYC staff searched the bunks of Joseph and another child. Defendant Trevino found a poem with racially charged words in the other child's bunk. Shockingly, Trevino read the poem aloud to the minority students, intending to incite them to attack Joseph. Then, Trevino threatened Joseph, telling him "you're public enemy number one" and "this is campus wide." Defendant Torres was also aware that Joseph and the other child were in grave danger.

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138. Despite the obvious danger facing Joseph and his friend, Defendants Trevii'io and Torres failed to place Joseph in protective custody. Thus, Defendants were deliberately indifferent to Joseph's right to be protected from harm.
139. As Defendants expected, and as the Department of Justice found to be all too common and TYC acknowledged, early the next morning, six unknown assailants attacked Joseph and the other child. One of the assailants, an inmate who was much larger than Joseph, smashed Joseph's head on the concrete and Joseph blacked out. He woke up soon thereafter, and saw the other student being assaulted. When he tried to help him, Joseph was beaten. He was kicked in the head and mouth, suffering serious physical injuries. When the beating was over, a guard, Defendant Torres, told Joseph, "That's what you get for writing racist shit." Trevino and Torres encouraged the other students to assault Joseph, and were deliberately indifferent to Joseph's right to be protected from physical injury.
140. Joseph suffered a broken jaw, a concussion and bruised orbiter bone. Despite the obvious injuries, TYC guards failed to immediately take Joseph or the other child, who also suffered physical injuries, to the infirmary.
141. Joseph tried to eat breakfast after the attack, but could not do so because of terrible pain in his jaw. His friend had to call security for him, and forty-five minutes later the nurses responded and took him to the infirmary. Forty-five minutes after that, he was taken to the emergency room in an ambulance, where his jaw was wired shut.
142. Joseph's mother was terrified for her son and reported the incident to TYC officials and several law enforcement agencies.
143. A few days after this incident, Joseph. was transferred from Evins to Crockett, which is nearer his parent's home. Defendant Caldwell asked his mother "are you happy now?" after informing her Joseph was leaving his facility.

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144. Because Joseph's jaw had been wired shut, wire cutters had been provided to the security staff in Joseph's part of the Crockett facility. As nausea is a common side effect of the pain medication, Joseph and staff had been instructed that they may have to cut the wires if he needed to vomit. Unfortunately, Joseph became nauseous. When Joseph told the guard he needed to vomit and asked a guard to cut the wires, the guard called Defendant McDaniels in the infirmary. Defendant McDaniels refused the request and told the guard that when Joseph needed to vomit, Joseph did not need to have the wires cut. McDaniels said that Joseph could just "hang his head upside down over the toilet, and let the vomit drip out. "
145. Nauseous and terrified that he would suffocate on his own vomit, Joseph ripped the wires out himself. All in all, Joseph pulled more than twenty wires out of his gums, and each pull was excruciating. TYC nurses also refused to give him his prescribed painkillers on the prescribed schedule even though they knew he needed them and he was in pain. Rather than discipline the nursing staff, TYC gave Joseph three disciplinary actions and extended his . incarceration without due process because of this incident.
146. When Joseph was transported to UTMB in Galveston, Defendants Briggs and Watson tightly shackled his legs. The shackles cut deeply into Joseph's legs, and his socks became very bloody. Joseph told Briggs and Watson the shackles were hurting him and cutting into his skin, and asked them to loosen the leg~irons. Briggs and Watson refused, despite knowing Joseph was in pain. Joseph still has scars on his ankles from these physical injuries.
147. Moreover, the abuse Joseph faced continued until his final days in Tye custody. Days before Joseph was released, Defendant McQueen, a correctional officer, struck Joseph in the jaw for no reason. Joseph had impulsively picked up a tray to eat out of tum and McQueen, without any justifications, struck Joseph in the face. As a result, Joseph suffered further physical injury to his jaw, and was taken to the hospital for testing. Incredibly, but in keeping with
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TYC's practice of no accountability, lack of supervision and outright condoning of abuse and assault of the children entrusted to its care, Joseph, and not Defendant McQueen, was disciplined.
148. After the assault, Joseph asked to speak with his mother and his attorneys. Defendant Wilson told Joseph he would not be allowed to contact his mother or attorney. In fact, Wilson threatened Joseph that he would not be released from Tye if he reported this incident.
149. When Joseph began to discuss what happened to him in Tye with his attorneys, Defendant Wilson refused to allow him to have a confidential attorney/client phone call with his lawyer. Despite requests from his counsel to Defendants Freeman and Wilson for Tye's policies and procedures related to attorney/client visits and phone calls, these policies were not provided. The first time Joseph's attorney attempted to speak with him on the telephone, Wilson refused to leave the room and would not allow Joseph to confer with his attorney in private.
150. Joseph's attorneys mailed him confidential legal documents. Unknown Tye staff opened this mail outside Joseph's presence, and read the confidential and privileged documents inside. The envelope containing the documents was clearly marked "legal mail" on the front and back, but Tye staff deliberately disregarded these labels. Upon information and belief, the Executive Defendants, and Defendants Freeman and Nicholson were aware of this practice.
151. When Joseph told Defendant Wilson he wanted to report this abuse to the Tye abuse hotline, she told him he could not call the hotline. Again, Wilson told Joseph if he reported his abuse, Tye would extend his incarceration.
C. A.B.. 152. A.B. is sixteen years old and has been incarcerated in Tye facilities since he was fifteen. A.B. has a six year determinate sentence, with a one year minimum sentence to Tye

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custody. He has served over one year in TYC custody. He is now eligible to be released from TYC custody to a less restrictive setting. If he were to violate the conditions of his parole, he could return to TYC. He is slight and thin, and has Obsessive Compulsive Disorder (OCD).
153. Obsessive Compulsive Disorder is an anxiety disorder characterized by recurrent, unwanted thoughts and/or repetitive behaviors. People with OCD suffer persistent, unwanted thoughts or images, and need to repeat behaviors over and over. OCD is a mental impairment that substantially limits one or more major life activities.
154. A.B. has been incarcerated in four different TYC facilities: Marlin, Giddings, Gainesville, and Mart.
155. TYC has given A.B. disciplinary actions for: a. Breaking up a confrontation between other students; b. Uncontrollable laughing; c. Having newspaper articles about abuses at TYC in his possession; d. "Failure to be observant"; e. "Failure to correct peers"; f. "Failure to call 'huddle-ups"'; g. Talking to his mother on the phone; h. Not marching properly; 1. Refusing to leave protective custody; and j. Another child ripping out the tongues of his shoes.
156. Some of the above behaviors TYC has disciplined A.B. for are caused by his disability. For example, because of his OCD, he feels compelled to call his mother at the same time every evening. TYC has disciplined A.B. when he is unable to call his mother.

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157. TYC staff intentionally discriminate against A.B. because of his disability, calling him "stupid" and "slow."
158. A.B. contends he was wrongfully convicted and did not commit the offense that resulted in his incarceration in TYC's facilities. A.B.'s criminal case is currently on appeal before the Texas Fifth Court of Appeals. Despite this, TYC will not allow him to progress
through the "c" phase because he will not confess to a crime he did not commit and is therefore
"not accepting responsibility for his offense." TYC staff tell A.B. he needs to "give up the appeal," that he "can't win" the appeal and "can't beat the courts." Though A.B. has achieved Phases A-4 and B-4, he cannot progress any farther through the "Resocialization©" program because he, at the advise of counsel, refuses to confess to a crime he did not commit. TYC staff continues to coerce A.B. to confess, even though they know he is represented by counsel. If A.B. were to confess, it would prejudice his appeal.
159. Defendant Bush was A.B.'s caseworker during this period. She administered the Resocialization© program with him, and refused to allow him to progress through the program because he would not confess to the crime he did not commit. Bush's actions extended A.B.'s incarceration because she refused to approve him for release to a less restrictive setting when he would not give up his Fifth Amendment rights.
160. On November 1, 2007, TYC convened a panel of its staff, including Defendant Bush, to consider releasing A.B. on parole. On November 5, 2007, TYC and Defendant Bush told A.B. he would be released to parole on November 14,2007. TYC and Defendant Bush had A.B. sign documents related to his sex offender registration, which indicated he would be released on November 14,2007. While on parole, A.B. would be required to attend out-patient sex offender treatment therapy, see his parole officer regularly, obey various parole conditions, and register as a sex offender.

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161. TYC, however, denied A.B. release to a less restrictive setting. TYC and Bush would not allow A.B. to participate further in its rehabilitation programs because he is asserting his Fifth Amendment rights. The fact that A.B. is unable to complete the "C" phase due to his appeal of his conviction is explicitly noted on Monthly Individual Case Plans completed by Bush.
162. In failing to allow A.B. to progress in the "Resocialization©" program due to his refusal to admit to a crime that he did not commit and in so doing prejudice his appeal, TYC has extended the length of A.B.'s confinement. A.B. would otherwise have been eligible for parole on November 6,2007.
163. A.B .. has been physically abused by other inmates on multiple occasions while in TYC custody, causing physical injuries.
164. A.B. "checks and confronts" children or refers them to "huddle ups" to attempt to advance in TYC's "Resocialization©" program. Children A.B. has "checked and confronted" or referred to a "huddle up" later assault him because participation in "checking and confronting" and "huddle ups" transform A.B. into a "snitch." Children assaulting A.B. frequently tell him "snitches get stitches." As one would expect, A.B. is fearful of additional harm. A.B. now refuses to "check and confront" other children, which could result in disciplinary action against him and delay his release from TYC custody to a less restrictive setting.
165. On one occasion at Giddings, A.B.'s front teeth were chipped when other inmates, including S.L., savagely beat him in the head, permanently damaging and disfiguring his teeth/mouth. S.L. had previously stolen A.B.'s pants, so A.B. called a "huddle up" to "check and confront" S.L. Defendant Lewis supervised the "huddle up," and knew A.B. had "confronted" S.L. about S.L.'s misbehavior. Afterwards, Lewis knew S.L. told A.B. "snitches get stitches."

Case 1:07-cv-00276-LY Document 132 Filed 02/20/08 Page 38 of 38
166. Though Lewis knew S.L. considered A.B. a "snitch," and knew about the specific threat made against him, she did nothing to protect A.B. from S.L. Soon after the "huddle up," A.B. was sitting down, tying his shoes. S.L. came up to A.B. and kicked him in the face, breaking A.B.'s front teeth.
167. Other inmates frequently punch A.B. at night when he is asleep, and on one occasion several inmates urinated on his bed. Because of these almost daily assaults, A.B. has referred himself to "security," and refused to leave on multiple occasions. Other students have also refused to leave security because they fear for their safety. In fact, A.B.'s plight is so well known that Giddings' Tye staff refer to this phenomenon as "pulling an [A.B.]"
168. A.B. has been forced to participate in fights with other children in Tye, causing physical injuries. Because Tye staff does not properly supervise the children, employs inadequate staff, and does not employ a custodial classification system, A.B. is frequently forced to defend himself when he is alone with other children. Tye is deliberately indifferent to these fights. For example, one child punched A.B. in the groin, told him "I'll beat your bitch ass," and boast he would rape A.B.'s mother. Other children attack A.B. in the hallways and on the dorms to "punk" him. This is the environment the Executive, Board, and Superintendent Defendants created, fostered, and condoned.
169. Defendant Eduardo Martinez was the Superintendent of Giddings State School during this time. He was aware that dangerous inmates were being housed with smaller children and was deliberately indifferent to these conditions. Martinez knew A.B. and other children were housed in dangerous "open bay" dorms. Martinez knew there was inadequate security staff to protect inmates like A.B., and was specifically informed of dangers to A.B. by the principal of the education programs at Giddings on the day of the assault described above yet took no steps to

 
 Case 1:07-cv-00276-LY Document 135 Filed 04/11/08 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

JOSEPH GALLOWAY, individually,

§

§

DANA BROCKWAY, as next friend of her §

minor child, A.B., on behalf of all those §

similarly situated,

§

§

GLORIA WASHINGTON, as next friend of §

her minor child, J.W., on behalf of all those §

similarly situated,

§

§

LINDA THOMAS, as next friend of J.A., on §

behalf of all those similarly situated,

§

§

V.

§

§

TEXAS YOUTH COMMISSION,

§

RICHARD NEDLEKOFF, in his official §

capacity as Conservator of the Texas Youth §

Commission, ALEXANDRA WARMKE, §

MARY HENRY, as Executor of the Estate §

of James Henry, JOHN WILLIAMS,

§

BRADLEYSHACKLEFORD,

§

CHRISTOPHER TREVINO, MANUEL §

TORRES, RICHARD BRIGGS, PHILIP §

WATSON, ROBERT McQUEEN, DON §

BRANTLEY, LINDA REYES, DWIGHT §

HARRIS, BART CALDWELL, JOYCE §

McDANIELS, TERI WILSON, GERALDO §

PENUELAS, EDUARDO MARTINEZ, §

JEROME WILLIAMS, BELYNDA

§

BENNETT, ALAN WALTERS, SHIREE N. §

WOODEN, JACQUELINE LEWIS,

§

FRANK SOTO, SHIRLEY BUSH, DON §

FREEMAN, BLU NICHOLSON, JEROME §

PARSEE, LYDIA BERNARD, CHESTER §

CLAY, KERRI DAVIDSON, JUANS.

§

MUNOZ, DON BETHEL, STEVE FRYAR, §

PATSY REED GUEST, BILL MAHOMES, §

JR., GOGI DICKSON and ROSS

§

ROBINSON, Individually

§

CIVIL ACTION NO. 07-CA-276-LY

Case 1:07-cv-00276-LY Document 135 Filed 04/11/08 Page 2 of 5
NOTICE OF SETTLEMENT, AND JOINT MOTION OF ALL PLAINTIFFS AND DEFENDANT TEXAS YOUTH COMMISSION TO REMOVE PENDING DEADLINE,
EXTENDTHESTAY,ANDSCHEDULESTATUSCONFERENCE COME NOW all Plaintiffs and Defendant Texas Youth Commission ("TYC"), and respectfully show as follows: The parties have reached a complete settlement of this case at mediation. The settlement is subject to the approval of the Governor's Office and the Comptroller's Office. The parties anticipate that the settlement will likely take approximately 120 days to be approved and funded by the State of Texas. Once the settlement funds are made available to Plaintiffs, this lawsuit will be dismissed as to all Defendants. Because one or more of the Plaintiffs are minors appearing through a "next friend," the settlement will require the approval of this Court. The Defendants currently have a deadline of April 17, 2008 for filing their answers or motions to dismiss in response to the Plaintiffs' Third Amended Complaint. In light of the settlement, all parties agree that no resources should be expended in preparing these pleadings. The parties therefore respectfully request that the Court remove the April 17, 2008 deadline and that the Court extend the stay currently in effect for this case until further order of the Court. The parties also respectfully request that the Court schedule a status conference in approximately 120 days (i.e., early August) so that the parties can either present dismissal papers or apprise the Court of the status of finalizing the settlement. The parties have conferred with counsel for all other Defendants, and the relief requested in this Motion is unopposed.
[SIGNATURE BLOCK TO FOLLOW ON NEXT PAGE]
2

Case 1:07-cv-00276-LY Document 135 Filed 04/11/08 Page 3 of 5
R spectfully submitted,
~""'H-~___::___:::.=.-->.....:~~'-J~~+-c.J;~ (>t/..4"1'* ,..,,..0~
Scott Ozmun State Bar No. 15392740 WHITEHURST, HARKNESS, OZMUN & BREES 1122 Colorado, 24th Floor P.O. Box 1802 Austin, Texas 78767 (512) 476-4346 (phone) (512) 476-4400 (fax)
Lead Counsel for PlaintiffJoseph Galloway, Linda Thomas (for damages), and Gloria Washington (for damages)
~ 1}f~~.~rtjw:~ ftrM;,s;o:)
Scott Medlock State Bar No. 24044783 James C. Harrington State Bar No. 09048500 Sheri Tolliver State Bar No. 24028050 Wayne Krause State Bar No. 24032644 Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741 (512) 474-5073 (phone) (512) 474-0726 (fax)
Counsel for PlaintiffS Galloway, Thomas (for damages), Washington (for damages), and Brockway (for damages)
3

Case 1:07-cv-00276-LY Document 135 Filed 04/11/08 Page 4 of 5

~!Jih~~~\

State Bar No. 00790514

7

Clemens & Spencer, P.C.

112 E Pecan, Suite 1300

San Antonio, Texas 78205

(210) 227-7121 (phone)

(210) 227-0732 (fax)

Counsel for PlaintiffPutative Class

GRAVES DOUGHERTY HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701 (512) 480-5680 Telephone (512) 480-5880 Telecopier
ATTORNEYS FOR DEFENDANT TEXAS YOUTH COMMISSION, AS WELL AS DEFENDANTS DON BRANTLEY, LINDA REYES, DWIGHT HARRIS, KERR! DAVIDSON, DR. JUANS. MUNOZ, DON BETHEL, STEVE FRYAR, PATSY REED GUEST, BILLMAHOMES, JR., DR. GOG/ DICKSON, AND RICHARD NEDELKOFF

4

Case 1:07-cv-00276-LY Document 135 Filed 04/11/08 Page 5 of 5

CERTIFICATE OF SERVICE
I hereby certify that on the })+h day of April, 2008, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:

Lars Hagen TEXAS ATTORNEY GENERAL'S OFFICE Civil Litigation Division P.O. Box 12548 Capitol Station Austin, Texas 78711-2548

James C. Harrington Scott Medlock Sheri JoyNasya Tolliver Wayne Krause Texas Civil Rights Project 1405 Montopolis Drive Austin, Texas 78741

Geoffrey N. Courtney 3700 Enfield Road Austin, Texas 78703

Richard W. Alexander Amy Welborn CANTEY HANGER, LLP 400 West Fifteenth Street, Suite 200 Austin, Texas 78701

Lori K. Erwin Kevin F. Lee THOMPSON, COE, COUSINS & IRONS, L.L.P. 701 Brazos, Suite 1500 Austin, Texas 78701

Scott Ozmun Jeff Edwards WHITEHURST, HARKNESS, OZMUN & BREES 1122 Colorado, 24th Floor P.O. Box 1802 Austin, Texas 78767

JoAnn Merica MERICA & BOURLAND, P.C. 400 West 15th Street, Suite 900 Wells Fargo Tower Austin, Texas 78701

Joshua D. Saegert Jodi Callaway Cole Randall Huntsinger SAEGERT & COLE, P.L.L.C. 609 West 9th Street Austin, Texas 78701

895752vl 4/9/2008
5

 
 Case 1:07-cv-00276-LY Document 154 Filed 11/04/08 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FH.,E
!188NOY -4 PM 2: 57

JOSEPH GALLOWAY, INDIVIDUALLY; DANA BROCKWAY, AS NEXT FRIEND OF HER MINOR CHILD, A.B., ON BEHALF OF ALL THOSE SIMILARLY SITUATED; GLORIA WASHINGTON, AS NEXT FRIEND OF HER MINOR CHILD, J.W., ON BEHALF OF ALL THOSE SIMILARLY SITUATED; AND LINDA THOMAS, AS NEXT FRIEND OF J.A., ON BEHALF OF ALL THOSE SIMILARLY SITUATED,
PLAINTIFFS,
v.
THE TEXAS YOUTH COMMISSION; RICHARD NEDLEKOFF, IN HIS OFFICIAL CAPACITY AS CONSERVATOR OF THE TEXAS YOUTH COMMISSION; ALEXANDRA WARMKE; MARY HENRY, AS EXECUTOR OF THE ESTATE OF JAMES HENRY; JOHN WILLIAMS; BRADLEY SHACKLEFORD; CHRISTOPHER TREVINO; MANUEL TORRES; RICHARD BRIGGS; PHILIP WATSON; ROBERT MCQUEEN; DON BRANTLEY; LINDA REYES; DWIGHT HARRIS; BART CALDWELL; JOYCE MCDANIELS; TERI WILSON; GERALDO PENUELAS; EDUARDO MARTINEZ; JEROME WILLIAMS; BELYNDA BENNETT; ALAN WALTERS; SHIREEN. WOODEN; JACQUELINE LEWIS; FRANK SOTO; SHIRLEY BUSH; DON FREEMAN;

§ § § § § § § § § § § § § § § § CAUSE NO. A-07-CA-276-LY § § § § § § § § § § § § § § § § § § § § § § §

Case 1:07-cv-00276-LY Document 154 Filed 11/04/08 Page 2 of 2

BLU NICHOLSON; JEROME PARSEE; §

LYDIA BERNARD; CHESTER CLAY; §

KERRI DAVIDSON; JUANS. MUNOZ; §

DON BETHEL; STEVE FRYAR; PATSY §

REED GUEST; BILL MAHOMES, JR.; §

GOGI DICKSON; AND ROSS

§

ROBINSON, INDIVIDUALLY,

§

§

DEFENDANTS. §

FINAL JUDGMENT

Before the Court is the above-entitled and numbered cause. The parties have fully settled all

claims asserted in this cause. Today the Court rendered an order dismissing all claims for damages

with prejudice and all claims for injunctive, declaratory, and other relief without prejudice pursuant

to the parties' Settlement Agreement. Seeing that no matters remain pending in this cause, the Court

renders the following final judgment pursuant to Federal Rule of Civil Procedure 58.

IT IS ORDERED that all relief not expressly granted is DENIED.

IT IS ORDERED that this cause is CLOSED.

this~ SIGNED

day of November, 2008.

2

 
 ""·

• • Case 1:07-cv-00276-LY Document 160 Filed 01/26/09 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CAUSE

2009 JAN 26 AH II: 16

JOSEPH GALLOWAY, INDIVIDUALLY, §

s

§

DANA BROCKWAY, AS NEXT FRIEND §

OF HER MINOR CHILD, A.B., ON BEHALF §

OF ALL THOSE SIMILARLY SITUATED, § §

GLORIA WASHINGTON, AS NEXT

§

FRIEND OF HER MINOR CHILD, J.W.,

§

ON BEHALF OF ALL THOSE SIMILARLY §

SITUATED,

§

§

§

LINDA THOMAS, AS NEXT FRIEND OF §

J.A., ON BEHALF OF ALL THOSE

§

SIMILARILY SITUATED,

§

§

CIVIL ACTION NO. 1:07·CV-276 (LY)

Plaintiffs,

§

§

v.

§

§

TEXAS YOUTH COMMISSION,

§

RICHARD NEDLEKOFF, IN HIS OFFICIAL §

CAPACITY AS CONSERVATOR OF THE §

TEXAS YOUTH COMMISSION,

§

ALEXANDRA WARMKE, ET AL

§

§

Defendants

§

On this day, after reviewing the motion, the Court finds that A.B. is entitled to receive all funds from the Registry of the Court for his use and benefit.
After reviewing the file, the Court finds that A.B. has turned eighteen (18) years of age and is entitled to receive all funds being held in the Registry of the Court for his use and benefit.

"'· "'

Case 1:07-cv-00276-LY
Order Allowing Withdraw.Funds Page 2 of2

Document 160

•Filed 01/26/09

Page 2 of 2

IT ORDERED, that the Clerk of the Court will deduct a registry fee authorized

by the Judicial Conference Schedule of Fees implemented by the Administrative

Office of the United States Court effective February 3, 1992 for the handling and servicing of interest bearing accounts deposited to financial institutions pursuant to 28 U.S.C. 2041 and Rule 67 of the Federal Rules of Civil Procedure. The amount of the fee shall be equal to ten percent (10%) of al income earned during the first five years,

seven and half percent (7.5%) of all income earned during years six through ten, five

percent (5%) of all income earned during years eleven through fifteen, and two and half percent (2.5%) of all income earned after fifteen ·years while funds are held in the

Court's registry. The Court ORDERS that the clerk make the check payable to said minor.

The Court ORDERS that the check be mailed to Dana Brockway. Her address is on

file with the Court.

o.f~ SIGNED THisM- day

2009.

 
 Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 1 of 24
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:07−cv−00276−LY

CLOSED

Galloway v. Delgado et al Assigned to: Judge Lee Yeakel Cause: 42:1983 Civil Rights Act
Plaintiff Joseph Galloway Individually and on behalf of all those similarly situated

Date Filed: 04/10/2007 Date Terminated: 11/04/2008 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Geoffrey N. Courtney Clemens &Spencer 112 E. Pecan − Ste. 1300 San Antonio, TX 78205 210/227−7121 Fax: 210/227−0732 Email: G.N.Courtney@Alumni.ND.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Harrington Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: jch@mail.utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Edwards Edwards Law 1101 E. 11th St. Austin, TX 78702 (512) 623−7727 Fax: (512) 623−7729 Email: jeff@edwards−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Medlock Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 (512) 474−5073 Fax: 512/474−0726 Email: scott@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Ozmun Whitehurst, Harkness, Ozmun &Brees P.O. Box 1802 Austin, TX 78767 (512) 476−4346 Fax: 512/476−4400 Email: sozmun@whoalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheri Joy Nasya Tolliver

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 2 of 24

Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: stolliver@sdlcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: waynekrause@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Dana Brockway as next friend of Eric B., on behalf of those similarly situated

represented by Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Medlock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheri Joy Nasya Tolliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Halt as next friend of Daniel H., on behalf of all those similarly situated

represented by Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Medlock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheri Joy Nasya Tolliver (See above for address) LEAD ATTORNEY

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 3 of 24

ATTORNEY TO BE NOTICED

Wayne Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Gloria Washington as next friend of her minor child, J.W., on behalf of all those similarly situated

represented by Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Medlock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheri Joy Nasya Tolliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Linda Thomas as next friend of J.A., on behalf of all those similarly situated

represented by Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Medlock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheri Joy Nasya Tolliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 4 of 24

Stacey Delgado individually and in her official capacity

Defendant
Mary Henry in her capacity as executor of the estate of Mr. Henry

represented by Jay W. Brown Winstead, PC 1100 JPMorgan Chase Tower 600 Travis St. Houston, TX 77002 (713)650−8400 Fax: 713/650−2400 Email: jbrown@winstead.com TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin F. Lee The Law Office of Kevin F. Lee 9600 Great Hills Trail, Suite 150W Austin, TX 78759 (512) 782−9910 Email: kevin@kfllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori K. Erwin Thompson, Coe, Cousins &Irons, LLP 701 Brazos Suite 1500 Austin, TX 78701−1254 (512) 708−8200 Fax: 512/708−8777 Email: lerwin@thompsoncoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynette Kay Fons Beirne, Maynard &Parsons, L.L.P. 1300 Post Oak Blvd. 25th Floor Houston, TX 77056 (713) 623−0887 Fax: 713/960−1527 Email: lfons@bmpllp.com TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Williams, . individually and in his official capacity

represented by Jodi Callaway Cole Law Office of Jodi Callaway Cole 502 West 30th Street Austin, TX 78705 (512) 926−5634 Fax: (512) 692−2575 Email: jcole@jodicole.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua D. Saegert Law Office of Joshua D. Saegert 609 West 9th Street Austin, TX 78701 (512) 371−3477

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 5 of 24

Email: saegertlaw@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bradley Shackelford individually and in his official capacity

represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jodi Callaway Cole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua D. Saegert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Huntsinger Huntsinger Law Offices, PLLC Post Office Box 2327 Austin, TX 78768−2327 5127079900 Fax: 5127079901 Email: rch@randallhuntsinger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mr. FNU Rangel individually and in his official capacity

Defendant
Christopher Trevino individually and in his official capacity

represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin F. Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori K. Erwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 6 of 24

Defendant Manuel Torres individually and in his official capacity
Defendant Richard Briggs individually and in his official capacity
Defendant Philip Watson individually and in his official capacity

represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin F. Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori K. Erwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jodi Callaway Cole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua D. Saegert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Huntsinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jodi Callaway Cole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 7 of 24

Defendant Robert McQueen individually and in his official capacity
Defendant Veronica Gagne individually and in her official capacity Defendant Don Brantley individually and in his official capacity

Joshua D. Saegert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Huntsinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jay W. Brown (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jodi Callaway Cole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua D. Saegert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynette Kay Fons (See above for address) TERMINATED: 12/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Huntsinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Boyce Cabaniss Graves Dougherty Hearon &Moody, PC 401 Congress Ave., Suite 2200 Austin, TX 78701 (512)480−5660 Fax: (512)480−5860 Email: bcabaniss@gdhm.com TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
G. Douglas Kilday Graves Dougherty Hearon &Moody

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 8 of 24

401 Congress Avenue Suite 2200 Austin, TX 78701 (512) 480−5600 Fax: (512) 480−5880 Email: dkilday@gdhm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans Graves, Dougherty, Hearon and Moody 401 Congress Ave. Suite 2200 Austin, TX 78701 (512) 480−5645 Fax: 512/480−5845 Email: ryeomans@gdhm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Linda Reyes individually

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dwayne Harris individually and in his official capacity

represented by Amy Catherine Welborn Kelly Hart &Hallman LLP 301 Congress Avenue, Suite 2000 Austin, TX 78701 (512) 495−6400 Fax: (512) 495−6401 Email: amy.welborn@kellyhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander Alexander Law Firm 1505 West Sixth St. Austin, TX 78703 (512) 482−9500 Fax: (512) 472−4013 Email: ralexander@alexanderatty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dwight Harris individually

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 9 of 24

ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bart Caldwell individually and in his official capacity

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
J. McDaniels individually and in her official capacity

represented by Lars Hagen Texas Attorney General's Office General Litigation Division P.O. Box 12548 Capitol Station Austin, TX 78711−2548 (512) 463−2120 Fax: (512) 320−0667 Email: Lars.Hagen@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ms. FNU Kitchens individually and in her official capacity

represented by Lars Hagen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Teri Wilson individually and in her official capacity

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Geraldo Penuelsa individually and in his official capacity

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 10 of 24

ATTORNEY TO BE NOTICED

Defendant
Don Freeman individually and in his official capacity

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Blu Nicholson individually and in his official capacity

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jerome Parsee individually

represented by Amy Catherine Welborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard W. Alexander (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lydia Bernard individually and in her official capacity

represented by Jo Ann Merica Sedgwick, LLP 919 Congress Avenue Suite 1250 Austin, TX 78701 (512) 481−8400 Fax: (512) 481−8444 Email: joann.merica@sedgwicklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Superintendent Chester Clay individually and in his official capacity

represented by Jo Ann Merica (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kerri Davidson individually and in her official capacity

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 11 of 24

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ed Owens in his official capacity TERMINATED: 12/21/2007

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Unknown TYC Staff in their official and individual capacities

Defendant Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Don Bethel individually and in his official capacity as a member of the Board of the Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 12 of 24

ATTORNEY TO BE NOTICED

Defendant
Gogi Dickson individually and in her official capacity as a member of the Board of the Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steve Fryar individually and in his official capacity as a member of the Board of the Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Patsy Reed Guest individually and inher official capacity as a member of the Board of the Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bill Mahomes, Jr. individually and in his official capacity as a member of the Board of the Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 13 of 24

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Juan S. Munoz individually and in his official capacity as a member of the Board of Texas Youth Commission

represented by Boyce Cabaniss (See above for address) TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard D. Yeomans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Dimitria Pope

represented by G. Douglas Kilday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Alexandra Warmke

Defendant Eduardo Martinez

Defendant Jerome Williams

Defendant Belynda Bennett

Defendant Alan Walters

Defendant Shiree N. Wooden

Defendant Jacqueline Lewis

Defendant Frank Soto

Defendant Shirley Bush

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 14 of 24

Defendant Ross Robinson

Attorney/Guardian ad litem Will Coates

represented by Will Coates Attorney &Mediator Commissioners House at Heritage Square 2901 Bee Caves Rd., Box C Austin, TX 78746 (512) 499−0458 Fax: (512) 457−8032 Email: will@willcoates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/10/2007 04/10/2007 04/13/2007 04/13/2007 04/13/2007 04/16/2007 04/17/2007
05/04/2007 05/04/2007
05/30/2007 06/04/2007 06/04/2007 06/04/2007

# Docket Text
1 MOTION to Proceed in forma pauperis by Joseph Galloway. Complaint received (copies of complaint for service on shelf.) (tdk, ) (Entered: 04/10/2007)
MOTION REFERRED: referred 1 MOTION to Proceed in forma pauperis to Judge Pitman. (tdk, ) (Entered: 04/11/2007)
2 ORDER granting 1 Motion for Leave to Proceed in forma pauperis and directing service. Signed by Judge Robert Pitman. (mh, ) (Entered: 04/13/2007)
Motions No Longer Referred: 1 MOTION to Proceed in forma pauperis (mh, ) (Entered: 04/13/2007)
4 COMPLAINT filed by Joseph Galloway.(dm, ) (Entered: 04/17/2007)
3 NOTICE of Attorney Appearance by Scott Medlock on behalf of Joseph Galloway (Medlock, Scott) (Entered: 04/16/2007)
5 Summons Issued as to FNU Shacklefield, FNU Rangel, FNU Trevino, Manuel Torres, FNU Briggs, FNU Watson, Robert McQueen, Veronica Gagne, Don Brantley, Linda Reyes, Dwayne Harris, Dwight Harris, Bart Caldwell, J. McDaniels, FNUq Kitchens, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee, Lydia Bernard, Chester Clay, Kerri Davidson, Ed Owens, Stacey Delgado, FNU Henry, FNU Williams. (dm, ) (Entered: 04/18/2007)
6 MOTION to Sever by Joseph Galloway. (Attachments: # 1 # 2 # 3)(Medlock, Scott) (Entered: 05/04/2007)
7 AMENDED COMPLAINT against Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz, FNU Shacklefield, FNU Rangel, FNU Trevino, Manuel Torres, FNU Briggs, FNU Watson, Robert McQueen, Veronica Gagne, Don Brantley, Linda Reyes, Dwayne Harris, Dwight Harris, Bart Caldwell, J. McDaniels, FNUq Kitchens, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee, Lydia Bernard, Chester Clay, Kerri Davidson, Ed Owens, Unknown TYC Staff, Texas Youth Commission, Stacey Delgado, FNU Henry, FNU Williams amending 4 Complaint., filed by Dana Brockway, John Halt, Joseph Galloway.(dm, ) (Entered: 05/07/2007)
8 NOTICE of Rule 11 Agreement by Joseph Galloway, Dana Brockway, John Halt (Attachments: # 1)(Medlock, Scott) (Entered: 05/30/2007)
9 NOTICE of Filing Request for U.S. Marshals Service Expenses in Pauper Case (dm, ) (Entered: 06/05/2007)
10 Summons Returned Unexecuted by Joseph Galloway as to Dwight Harris. (dm, ) Modified on 6/5/2007 to correct filers (dm, ). (Entered: 06/05/2007)
11 SUMMONS Returned Executed by Joseph Galloway. Don Brantley served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 15 of 24

06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007

Notice of Correction: re 10 Summons Returned Unexecuted. Text modified to correct filers. (dm, ) (Entered: 06/05/2007)
12 SUMMONS Returned Executed by Joseph Galloway. Jerome Parsee served on 4/27/2007, answer due 5/17/2007. (dm, ) (Entered: 06/05/2007)
13 SUMMONS Returned Executed by Joseph Galloway. FNU Trevino served on 4/24/2007, answer due 5/14/2007. (dm, ) (Entered: 06/05/2007)
14 SUMMONS Returned Executed by Joseph Galloway. Bart Caldwell served on 4/23/2007, answer due 5/14/2007. (dm, ) (Entered: 06/05/2007)
15 SUMMONS Returned Executed by Joseph Galloway. Teri Wilson served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
16 SUMMONS Returned Executed by Joseph Galloway. Manuel Torres served on 4/23/2007, answer due 5/14/2007. (dm, ) (Entered: 06/05/2007)
17 SUMMONS Returned Executed by Joseph Galloway. Geraldo Penuelsa served on 4/23/2007, answer due 5/14/2007. (dm, ) (Entered: 06/05/2007)
18 SUMMONS Returned Executed by Joseph Galloway. FNU Rangel served on 4/23/2007, answer due 5/14/2007. (dm, ) (Entered: 06/05/2007)
19 SUMMONS Returned Executed by Joseph Galloway. FNU Henry served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
20 SUMMONS Returned Executed by Joseph Galloway. Stacey Delgado served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
21 SUMMONS Returned Executed by Joseph Galloway. Lydia Bernard served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
22 SUMMONS Returned Executed by Joseph Galloway. Chester Clay served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
23 SUMMONS Returned Executed by Joseph Galloway. Ed Owens served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
24 SUMMONS Returned Executed by Joseph Galloway. FNU Briggs served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
25 SUMMONS Returned Executed by Joseph Galloway. Kerri Davidson served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
26 SUMMONS Returned Executed by Joseph Galloway. FNU Williams served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
27 SUMMONS Returned Executed by Joseph Galloway. FNU Shacklefield served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
28 SUMMONS Returned Executed by Joseph Galloway. Dwayne Harris served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
29 SUMMONS Returned Executed by Joseph Galloway. Linda Reyes served on 4/19/2007, answer due 5/9/2007. (dm, ) (Entered: 06/05/2007)
30 SUMMONS Returned Executed by Joseph Galloway. Blu Nicholson served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
31 SUMMONS Returned Executed by Joseph Galloway. FNU Watson served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
32 SUMMONS Returned Executed by Joseph Galloway. Don Freeman served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
33 SUMMONS Returned Executed by Joseph Galloway. J. McDaniels served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
34 SUMMONS Returned Executed by Joseph Galloway. Veronica Gagne served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 16 of 24

06/04/2007 06/04/2007 06/05/2007 06/19/2007 07/18/2007 07/18/2007 09/08/2007 09/10/2007
09/10/2007
09/10/2007 09/10/2007 09/10/2007 09/10/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007
09/11/2007

35 SUMMONS Returned Executed by Joseph Galloway. FNU Kitchens served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
36 SUMMONS Returned Executed by Joseph Galloway. Robert McQueen served on 4/20/2007, answer due 5/10/2007. (dm, ) (Entered: 06/05/2007)
37 ORDER denying 6 Motion to Sever Signed by Judge Lee Yeakel. (dm, ) (Entered: 06/05/2007)
38 NOTICE of Vacation by Joseph Galloway (Medlock, Scott) (Entered: 06/19/2007)
39 NOTICE of Attorney Appearance by Jeffrey S. Edwards on behalf of Joseph Galloway Plaintiff's Notice of Appearance of Counsel (Edwards, Jeffrey) (Entered: 07/18/2007)
40 NOTICE of Rule 11 Agreement by Joseph Galloway, Dana Brockway, John Halt (Attachments: # 1)(Medlock, Scott) (Entered: 07/18/2007)
41 MOTION to Dismiss by FNU Shacklefield, FNU Trevino, Manuel Torres, FNU Briggs, FNU Watson, Robert McQueen, FNU Henry. (Attachments: # 1 Proposed Order)(Fons, Lynette) (Entered: 09/08/2007)
42 Unopposed MOTION for Leave to Exceed Page Limitation by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Ed Owens, Texas Youth Commission, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz. (Attachments: # 1 Proposed Order Order on Motion for Leave to Exceed the Court's Page Limit)(Kilday, G.) (Entered: 09/10/2007)
43 MOTION to Dismiss all Claims Against Defendants by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Ed Owens, Texas Youth Commission, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz. (Attachments: # 1 Proposed Order Order on Motion to Dismiss)(Kilday, G.) (Entered: 09/10/2007)
44 MOTION for Leave to Exceed Page Limitation for Motion to Dismiss by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 09/10/2007)
45 MOTION to Dismiss All Claims by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 09/10/2007)
46 MOTION to Dismiss by Dwayne Harris, Bart Caldwell, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee. (Attachments: # 1)(Alexander, Richard) (Entered: 09/10/2007)
56 ANSWER to Amended Complaint by FNU Shacklefield, FNU Trevino, Manuel Torres, FNU Briggs, FNU Watson, Robert McQueen, FNU Henry.(td, ) (Entered: 09/11/2007)
47 DEFICIENCY NOTICE to G. Douglas Kilday: re 42 Unopposed MOTION for Leave to Exceed Page Limitation (td, ) (Entered: 09/11/2007)
48 DEFICIENCY NOTICE to Jo Ann Merica: re 44 MOTION for Leave to Exceed Page Limitation for Motion to Dismiss (td, ) (Entered: 09/11/2007)
49 DEFICIENCY NOTICE to Jo Ann America: re 45 MOTION to Dismiss All Claims (td, ) (Entered: 09/11/2007)
50 DEFICIENCY NOTICE to Richard W. Alexander: re 46 MOTION to Dismiss (td, ) (Entered: 09/11/2007)
51 CERTIFICATE OF SERVICE by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Ed Owens, Texas Youth Commission, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz Amended and Corrected Certificate of Service 42 Unopposed MOTION for Leave to Exceed Page Limitation, 43 MOTION to Dismiss all Claims Against Defendants (Kilday, G.) (Entered: 09/11/2007)
52 ATTACHMENT Corrected Certificate of Service to 46 MOTION to Dismiss by Dwayne Harris, Bart Caldwell, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee. (Alexander, Richard) (Entered: 09/11/2007)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 17 of 24

09/11/2007
09/11/2007 09/11/2007 09/14/2007 09/14/2007 09/18/2007
09/19/2007 09/25/2007 09/25/2007 09/25/2007 09/25/2007 10/24/2007 11/07/2007 11/19/2007 11/19/2007 11/19/2007 11/20/2007 11/21/2007 11/28/2007

53 Unopposed MOTION for Leave to Exceed Page Limitation for Motion to Dismiss by Dwayne Harris, Bart Caldwell, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee. (Attachments: # 1)(Alexander, Richard) (Entered: 09/11/2007)
54 ATTACHMENT Amended and Corrected Certificate of Service to 44 MOTION for Leave to Exceed Page Limitation for Motion to Dismiss by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 09/11/2007)
55 ATTACHMENT Amended and Corrected Certificate of Service to 45 MOTION to Dismiss All Claims by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 09/11/2007)
57 Unopposed MOTION for Extension of Time to File Response/Reply Plaintiff by Joseph Galloway. (Attachments: # 1 Proposed Order Mtn to Extend Deadlines to Respond)(Edwards, Jeffrey) (Entered: 09/14/2007)
58 Letter/Correspondence advising attorney Boyce Cabaniss of admission status. (dm, ) (Entered: 09/14/2007)
59 Unopposed MOTION to Withdraw as Attorney by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Ed Owens, Texas Youth Commission, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz. (Kilday, G.) (Entered: 09/18/2007)
60 ORDER granting 57 Motion for Extension of Time to File Response Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/19/2007)
61 ORDER granting 59 Motion to Withdraw as Attorney. Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/25/2007)
62 ORDER granting 44 Motion for Leave to File Excess Pages Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/25/2007)
63 ORDER granting 53 Motion for Leave to File Excess Pages Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/25/2007)
64 ORDER granting 42 Motion for Leave to File Excess Pages Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/25/2007)
65 Agreed MOTION for Extension of Time to File Motion for Class Certification by Dana Brockway, John Halt. (Attachments: # 1 Proposed Order)(Courtney, Geoffrey) (Entered: 10/24/2007)
66 ORDER granting in part and denying in part 65 Motion for Extension of Time to File Signed by Judge Lee Yeakel. (dm, ) (Entered: 11/07/2007)
67 MOTION for Preliminary Injunction by Dana Brockway. (Attachments: # 1 Proposed Order)(Courtney, Geoffrey) (Entered: 11/19/2007)
68 Unopposed MOTION to Seal re 67 MOTION for Preliminary Injunction by Dana Brockway. (Attachments: # 1 Proposed Order)(Courtney, Geoffrey) (Entered: 11/19/2007)
69 Unopposed MOTION for Extension of Time to File Response/Reply UNOPPOSED MOTION TO EXTEND THEIR DEADLINES by Joseph Galloway. (Attachments: # 1)(Edwards, Jeffrey) (Entered: 11/19/2007)
70 REDACTED EXHIBITS to # 67 Motion for Preliminary Injunction by Dana Brockway. (Attachments: # 1 Exhibit)(dm, ) (Entered: 11/21/2007)
71 MOTION to Dismiss by J. McDaniels, FNU Kitchens. (dm, ) (Entered: 11/21/2007)
72 Unopposed MOTION for Extension of Time to File Response/Reply Plaintiff's Unopposed Motion to Extend Their Deadline to Respond to Defendants' Kitchen and McDaniel's Special Appearance by Joseph Galloway. (Attachments: # 1)(Edwards, Jeffrey) (Entered: 11/28/2007)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 18 of 24

11/29/2007 12/04/2007 12/05/2007 12/06/2007 12/06/2007 12/06/2007 12/07/2007 12/10/2007 12/10/2007
12/10/2007
12/10/2007
12/12/2007 12/12/2007

73 Unopposed MOTION for Extension of Time to File Response/Reply as to 67 MOTION for Preliminary Injunction to Plaintiff Dana Brockway's Motion for Preliminary Injunction by Texas Youth Commission. (Kilday, G.) (Entered: 11/29/2007)
74 ORDER granting 73 Motion for Extension of Time to File Response/Reply Signed by Judge Lee Yeakel. (jg3, ) (Entered: 12/04/2007)
75 ORDER granting 72 Motion for Extension of Time to File Response/Reply Signed by Judge Lee Yeakel. (jg3, ) (Entered: 12/05/2007)
76 Unopposed MOTION for Leave to File Plaintiffs' Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismiss without Prejudice by Joseph Galloway. (Attachments: # 1 # 2)(Edwards, Jeffrey) (Entered: 12/06/2007)
77 Unopposed MOTION for Leave to File Plaintiffs' Corrected Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismissal without Prejudice of Class Representative, John Halt, As Next Friend of D.H. by Joseph Galloway. (Attachments: # 1 # 2)(Edwards, Jeffrey) (Entered: 12/06/2007)
78 ORDER granting 69 Motion for Extension of Time to File Response/Reply Signed by Judge Lee Yeakel. (td, ) (Entered: 12/06/2007)
79 Agreed MOTION to Dismiss Plaintiffs and Defendants Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer for File Motions Pursuant to Rule 12 (b) by Joseph Galloway. (Attachments: # 1)(Edwards, Jeffrey) (Entered: 12/07/2007)
80 Unopposed MOTION to Substitute Attorney by FNU Trevino, Manuel Torres, FNU Henry. (Attachments: # 1 Proposed Order Granting Motion to Substitute)(Lee, Kevin) (Entered: 12/10/2007)
81 Agreed MOTION to Withdraw Plaintiffs and Defendants Lydia Bernard and Chester Clay's Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer or File Motions Pursuant to Rule 12 (b) by Joseph Galloway. (Attachments: # 1)(Edwards, Jeffrey) (Entered: 12/10/2007)
82 Unopposed MOTION for Leave to Exceed Page Limitation Plaintiffs' Unopposed Motion for Leave to Exceed Page Limit in Their Response to Defendants Shackelford, Trevino, Torres, Briggs, Watson, Hengry and McQueen's Motion to Dismiss Pursuant to 12(b)(6) by Joseph Galloway. (Attachments: # 1)(Edwards, Jeffrey) (Entered: 12/10/2007)
83 RESPONSE to Motion, filed by Joseph Galloway, re 41 MOTION to Dismiss filed by Defendant Manuel Torres, Defendant Robert McQueen, Defendant FNU Henry, Defendant FNU Watson, Defendant FNU Briggs, Defendant FNU Trevino, Defendant FNU Shacklefield Plaintiff Joseph Galloway's Response to Defendants' Shackelford, Trevino, Torres, Briggs, Watson, Henry and McQeen's Motion to Dismiss Pursuant to Rule 12(b)(6) (Attachments: # 1 # 2)(Edwards, Jeffrey) (Entered: 12/10/2007)
84 ORDER granting 82 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm, ) (Entered: 12/12/2007)
85 ORDER Setting Hearing on 77 Unopposed MOTION for Leave to File Plaintiffs' Corrected Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismissal without Prejudice of Class Representative, John Halt, As Next Friend of D.H., 79 Agreed MOTION to Dismiss Plaintiffs and Defendants Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer for File Motions Pursuant to Rule 12 (b)Agreed MOTION to Dismiss Plaintiffs and Defendants Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer for File Motions Pursuant to Rule 12 (b), 76 Unopposed MOTION for Leave to File Plaintiffs' Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismiss without Prejudice, 80 Unopposed MOTION to Substitute Attorney, 81 Agreed MOTION to Withdraw Plaintiffs and Defendants Lydia Bernard and Chester Clay's Joint Agreed Motion

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 19 of 24

12/12/2007 12/12/2007 12/12/2007 12/12/2007 12/17/2007 12/17/2007 12/17/2007 12/20/2007
12/21/2007
12/21/2007

for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer or File Motions Pursuant to Ru : Motion Hearing set for 12/20/2007 10:30 AM before Honorable Lee Yeakel. Signed by Judge Lee Yeakel. (dm, ) (Entered: 12/12/2007)
86 MOTION to Substitute Attorney Joshua Saegert and Jodi Cole by FNU Briggs. (Cole, Jodi) (Entered: 12/12/2007)
87 MOTION to Substitute Attorney Joshua Saegert and Jodi Cole by FNU Shacklefield. (Cole, Jodi) (Entered: 12/12/2007)
88 MOTION to Substitute Attorney Joshua Saegert and Jodi Cole by Robert McQueen. (Cole, Jodi) (Entered: 12/12/2007)
89 MOTION to Substitute Josh Saegert and Jodi Cole by FNU Watson. (Cole, Jodi) (Entered: 12/12/2007)
90 NOTICE TO THE COURT BY UTMB DEFENDANTS by J. McDaniels, FNUq Kitchens (Hagen, Lars) (Entered: 12/17/2007)
91 RESPONSE to Motion, filed by Joseph Galloway, re 71 MOTION to Dismiss filed by Defendant FNUq Kitchens, Defendant J. McDaniels (Attachments: # 1 Exhibit Exhibits to Response to Defendants Kitchens' and McDaniels' Special Appearance and Motion to Dismiss for Lack of Service# 2 Proposed Order Order)(Edwards, Jeffrey) (Entered: 12/17/2007)
92 RESPONSE to Motion, filed by Joseph Galloway, re 71 MOTION to Dismiss filed by Defendant FNUq Kitchens, Defendant J. McDaniels (Attachments: # 1 Exhibit Exhibits to Response to Defendants Kitchens' and McDaniels' Special Appearance and Motion to Dismiss for Lack of Service)(Edwards, Jeffrey) (Entered: 12/17/2007)
93 Minute Entry for proceedings held before Judge Lee Yeakel : Motion Hearing held on 12/20/2007 re 76 Unopposed MOTION for Leave to File Plaintiffs' Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismiss without Prejudice filed by Joseph Galloway, 80 Unopposed MOTION to Substitute Attorney filed by Manuel Torres, FNU Henry, FNU Trevino, 81 Agreed MOTION to Withdraw Plaintiffs and Defendants Lydia Bernard and Chester Clay's Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer or File Motions Pursuant to Ru filed by Joseph Galloway, 79 Agreed MOTION to Dismiss Plaintiffs and Defendants Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer for File Motions Pursuant to Rule 12 (b)Agreed MOTION to Dismiss Plaintiffs and Defendants Joint Agreed Motion for Defendants to Withdraw Their Motions to Dismiss All Claims for Mootness and to Clarify Deadline to Answer for File Motions Pursuant to Rule 12 (b) filed by Joseph Galloway, 77 Unopposed MOTION for Leave to File Plaintiffs' Corrected Unopposed Motion for Leave to File Thier Second Amended Complaint and For Dismissal without Prejudice of Class Representative, John Halt, As Next Friend of D.H. filed by Joseph Galloway (Minute entry documents are not available electronically.). (Court Reporter Kathy Carroll.)(dm, ) (Entered: 12/20/2007)
94 ORDER withdrawing 41 Motion to Dismiss ; withdrawing 43 Motion to Dismiss ; withdrawing 45 Motion to Dismiss ; withdrawing 46 Motion to Dismiss ; withdrawing 71 Motion to Dismiss ; granting 76 Motion for Leave to File; granting 77 Motion for Leave to File; granting 79 Motion to Dismiss ; granting 80 Motion to Substitute Attorney. ; granting 81 Motion to Withdraw ; granting 86 Motion to Substitute Attorney. ; granting 87 Motion to Substitute Attorney. ; granting 88 Motion to Substitute Attorney. ; granting 89 Motion to Substitute. Signed by Judge Lee Yeakel. (dm, ) (Entered: 12/21/2007)
95 Response in Opposition to Motion, filed by Texas Youth Commission, re 67 MOTION for Preliminary Injunction filed by Plaintiff Dana Brockway (Attachments: # 1 Exhibit Exhibits 1−4# 2 Proposed Order Order)(Kilday, G.) (Entered: 12/21/2007)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 20 of 24

12/21/2007 12/31/2007 01/02/2008 01/08/2008 01/08/2008 01/08/2008 01/15/2008 01/18/2008 01/18/2008 01/22/2008 01/22/2008
01/22/2008
01/22/2008
01/22/2008
01/22/2008
01/22/2008
01/22/2008

96 SECOND AMENDED COMPLAINT against all defendants amending, filed by Gloria Washington, Linda Thomas, Joseph Galloway, Dana Brockway.(jg3, ) (Entered: 12/26/2007)
97 Unopposed MOTION for Extension of Time to File Reply Concerning Preliminary Injunction by Dana Brockway. (Attachments: # 1 Proposed Order)(Courtney, Geoffrey) (Entered: 12/31/2007)
98 ORDER granting 97 Motion for Extension of Time to File. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/03/2008)
99 MOTION for Leave to Exceed Page Limitation by Dana Brockway. (dm, ) (Entered: 01/09/2008)
100 MOTION to Seal Exhibits in Support of Reply to Response to Motion for Preliminary Injunction by Dana Brockway. (dm, ) (Entered: 01/09/2008)
101 (REDACTED) REPLY to Response to Motion, filed by Dana Brockway, re 67 MOTION for Preliminary Injunction filed by Plaintiff Dana Brockway. (Attachments: # 1 Exhibit)(dm, ) (Entered: 01/09/2008)
102 ORDER granting 68 Motion to Seal Documents. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/15/2008)
103 ORDER GRANTING 99 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/18/2008)
104 ORDER GRANTING 100 Motion to Seal. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/18/2008)
105 MOTION for Leave to Exceed Page Limitation by FNU Shacklefield, FNU Briggs, FNU Watson, Robert McQueen, FNU Williams. (Attachments: # 1 Proposed Order for motion to exeed page limits)(Cole, Jodi) (Entered: 01/22/2008)
106 MOTION to Dismiss for Improper Venue and/or Sever, MOTION to Dismiss for Lack of Jurisdiction by FNU Briggs, FNU Watson, Robert McQueen. (Attachments: # 1 Exhibit A, B, and C, # 2 Proposed Order)(Cole, Jodi) (Entered: 01/22/2008)
107 MOTION to Sever pursuant to Rule 21, MOTION to Transfer Case pursuant to 28 U.S.C. Sections 1404 and 1406 by FNU Shacklefield, FNU Williams. (Attachments: # 1 Exhibit A and B, # 2 Proposed Order)(Cole, Jodi) (Entered: 01/22/2008)
108 MOTION to Dismiss Pursuant to Rule 12(b)(6) by FNU Briggs, Robert McQueen, FNU Watson. (Attachments: # 1 Proposed Order for Defendants Briggs, Watson, and McQueen's Motion to Dismiss Pursuant to Rule 12(b)(6))(Cole, Jodi) Modified on 1/22/2008 to correct filers(dm, ). (Entered: 01/22/2008)
109 MOTION to Dismiss Pursuant to Rule 12(b)(6) by FNU Shacklefield, FNU Williams. (Attachments: # 1 Proposed Order for Defendants Shackelford and Williams' Motion to Dismiss Pursuant to Rule 12(b)(6))(Cole, Jodi) (Entered: 01/22/2008)
110 MOTION for More Definite Statement in Response to a Motion for Reply Pursuant to a Rule 7(a) by FNU Shacklefield, FNU Williams. (Attachments: # 1 Proposed Order for Defendants Shackelford and Williams' Motion for Rule 7(a) Reply)(Cole, Jodi) (Entered: 01/22/2008)
111 MOTION for More Definite Statement to Defendants Briggs, Watson, and McQueen's Motion for a Reply Pursuant to Rule 7(a) by FNU Briggs, FNU Watson, Robert McQueen. (Attachments: # 1 Proposed Order for Defendants Briggs, Watson, and McQueen's Motion for Rule 7(a) Reply)(Cole, Jodi) (Entered: 01/22/2008)
112 Unopposed MOTION for Leave to Exceed Page Limitation for Motion to Dismiss All Claims Asserted in Plaintiffs' Second Amended Complaint by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Texas Youth Commission, Dimitria Pope, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes,

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 21 of 24

01/22/2008
01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/24/2008 01/24/2008 01/24/2008 01/28/2008 01/29/2008 01/29/2008 01/29/2008 02/01/2008 02/01/2008
02/01/2008 02/05/2008

Jr, Juan S. Munoz. (Kilday, G.) (Entered: 01/22/2008)
113 MOTION to Dismiss All Claims Asserted in Plaintiffs' Second Amended Complaint Against Defendants Brantley, Reyes, Dwight Harris, Davidson, Munoz, Bethel, Fryar, Guest, Mahomes, Dickson, Pope and TYC by Don Brantley, Linda Reyes, Dwight Harris, Kerri Davidson, Texas Youth Commission, Dimitria Pope, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz. (Attachments: # 1 Proposed Order Order on Motion to Dismiss All Claims Asserted in Plaintiffs' Second Amended Complaint)(Kilday, G.) (Entered: 01/22/2008)
114 Opposed MOTION to Sever by J. McDaniels, FNU Kitchens. (Attachments: # 1 Proposed Order)(Hagen, Lars) (Entered: 01/22/2008)
115 MOTION for Leave to File Plaintiffs' Motion for Leave to File Their third Amended Complaint by Joseph Galloway. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Edwards, Jeffrey) (Entered: 01/22/2008)
116 Unopposed MOTION for Leave to File Motion for Leave to File First Amended Answer by FNU Trevino, Manuel Torres, FNU Henry. (Attachments: # 1 Proposed Order)(Lee, Kevin) (Entered: 01/22/2008)
117 MOTION for Leave to Exceed Page Limitation by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 01/22/2008)
118 MOTION to Dismiss All Claims Asserted in Plaintiff's Second Amended Complaint Against Defendants Lydia Bernard and Chester Clay by Lydia Bernard, Chester Clay. (Merica, Jo) (Entered: 01/22/2008)
119 Notice of Waiver of Service, ANSWER to 96 Seconded Amended Complaint with Jury Demand, by John Williams.(dm, ) (Entered: 01/25/2008)
120 ANSWER to 96 Second Amended Complaint with Jury Demand by Bradley Shackelford.(dm, ) (Entered: 01/25/2008)
121 ANSWER to 96 Second Amended Complaint with Jury Demand by Richard Briggs, Philip Watson, Robert McQueen.(dm, ) (Entered: 01/25/2008)
122 ORDER Setting Hearing on 115 MOTION for Leave to File Third Amended Complaint : Motion Hearing set for 2/1/2008 03:00 PM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/28/2008)
123 ORDER granting 117 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/29/2008)
124 ORDER granting 105 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/29/2008)
125 ORDER granting 112 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm, ) (Entered: 01/29/2008)
126 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by Joseph Galloway. (Attachments: # 1 Proposed Order Granting Plaintiff's Motion)(Edwards, Jeffrey) (Entered: 02/01/2008)
127 Minute Entry for proceedings held before Judge Lee Yeakel: Motion Hearing held on 2/1/2008 re 115 MOTION for Leave to File Plaintiffs' Third Amended Complaint filed by Joseph Galloway (Minute entry documents are not available electronically.). (Court Reporter Kathy Carroll.)(dm, ) (Entered: 02/04/2008)
128 AMENDED Minute entry. Amendment to 127 Minutes of Civil Proceedings to Motion Hearing. (dm, ) (Entered: 02/04/2008)
129 ORDER dismissing 67 Motion for Preliminary Injunction; dismissing 106 Motion to Dismiss ; dismissing 106 Motion to Dismiss for Lack of Jurisdiction ; dismissing 108 Motion to Dismiss ; dismissing 109 Motion to Dismiss ; dismissing 113 Motion to Dismiss ; dismissing 115 Motion for Leave to File; dismissing 116 Motion for Leave to File; dismissing 118 Motion to Dismiss ; dismissing 126 Motion for Extension of Time to File Response/Reply. Signed by Judge Lee

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 22 of 24

02/05/2008 02/15/2008 02/20/2008 02/20/2008
03/06/2008 03/10/2008 04/11/2008 04/11/2008
04/15/2008
05/27/2008 08/08/2008 08/27/2008

Yeakel. (dm, ) (Entered: 02/05/2008)
Case Stayed pending further order of the court, Set Deadlines: ( Amended Complaint due by 2/15/2008. Response to Third Amended Complaint due by 3/17/2008). (dm, ) (Entered: 02/05/2008)
130 MOTION for Leave to File Motion for Leave Plaintiffs' Motion for Leave to File Their Third Amended Complaint by Joseph Galloway. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Edwards, Jeffrey) (Entered: 02/15/2008)
131 ORDER granting 130 Motion for Leave to File Third Amended Complaint. Signed by Judge Lee Yeakel. (dm, ) (Entered: 02/20/2008)
132 THIRD AMENDED COMPLAINT against Alexandra Warmke, Eduardo Martinez, Jerome Williams, Belynda Bennett, Alan Walters, Shiree N. Wooden, Jacqueline Lewis, Frank Soto, Shirley Bush, Ross Robinson, Bradley Shackelford, Christopher Trevino, Manuel Torres, Richard Briggs, Philip Watson, Robert McQueen, Don Brantley, Linda Reyes, Dwight Harris, Bart Caldwell, J. McDaniels, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee, Lydia Bernard, Chester Clay, Kerri Davidson, Texas Youth Commission, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz, Mary Henry, John Williams amending 96 Amended Complaint., filed by Joseph Galloway, Gloria Washington, Linda Thomas, Dana Brockway. (Attachments: # 1 Amended Complaint continued)(dm, ) (Entered: 02/25/2008)
133 Unopposed MOTION to Continue Plaintiffs' Unopposed Motion to Continue Stay Pending Mediation by Joseph Galloway. (Attachments: # 1 Proposed Order)(Edwards, Jeffrey) (Entered: 03/06/2008)
134 ORDER GRANTING 133 Motion to Continue. Signed by Judge Lee Yeakel. (dm, ) (Entered: 03/11/2008)
135 NOTICE of Settlement , And Joint Motion of all Plaintiffs and Defendant Texas Youth Commission to Remove Pending Deadline, Extend the Stay, and Schedule Status Conference by Texas Youth Commission (Attachments: # 1 Proposed Order)(Kilday, G.) (Entered: 04/11/2008)
MOTION to Remove Pending Deadline, MOTION to Extend the Stay, MOTION to Schedule Status Conference (MOTIONS CONTAINED IN DOC. # 135 ). by Bradley Shackelford, FNU Rangel, Christopher Trevino, Manuel Torres, Richard Briggs, Philip Watson, Robert McQueen, Veronica Gagne, Don Brantley, Linda Reyes, Dwayne Harris, Dwight Harris, Bart Caldwell, J. McDaniels, FNU Kitchens, Teri Wilson, Geraldo Penuelsa, Don Freeman, Blu Nicholson, Jerome Parsee, Joseph Galloway, Lydia Bernard, Chester Clay, Kerri Davidson, Unknown TYC Staff, Texas Youth Commission, Dimitria Pope, Gloria Washington, Linda Thomas, Alexandra Warmke, Eduardo Martinez, Jerome Williams, Belynda Bennett, Alan Walters, Shiree N. Wooden, Jacqueline Lewis, Frank Soto, Shirley Bush, Ross Robinson, Dana Brockway, John Halt, Don Bethel, Gogi Dickson, Steve Fryar, Patsy Reed Guest, Bill Mahomes, Jr, Juan S. Munoz, Stacey Delgado, Mary Henry, John Williams. (dm, ) (Entered: 04/14/2008)
136 ORDER DISMISSING 107 Motion to Sever; DISMISSING 107 Motion to Transfer Case; DISMISSING 110 Motion for More Definite Statement; DISMISSING 111 Motion for More Definite Statement; DISMISSING 114 Motion to Sever; GRANTING 135 Motion to Remove Pending Deadline; GRANTING 135 Motion to Stay; GRANTING 135 Motion for Hearing( Status Conference set for 8/22/2008 10:00 AM before Judge Lee Yeakel.) Signed by Judge Lee Yeakel. (dm, ) (Entered: 04/17/2008)
137 ORDER, ( Status Conference reset for 8/28/2008 10:00 AM before Judge Lee Yeakel.). Signed by Judge Lee Yeakel. (dm, ) (Entered: 05/28/2008)
138 NOTICE of Vacation by Joseph Galloway, Gloria Washington, Linda Thomas, John Halt (Medlock, Scott) (Entered: 08/08/2008)
139 *Unopposed MOTION to Appoint Guardian/Attorney ad Litem by Texas Youth Commission. (Kilday, G.) (Entered: 08/27/2008)

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08/28/2008
08/28/2008
09/02/2008 09/25/2008
09/25/2008 10/08/2008
10/09/2008 10/09/2008
10/09/2008 10/24/2008
10/24/2008
11/04/2008 11/04/2008 11/04/2008 11/04/2008 11/04/2008 01/13/2009 01/13/2009
01/13/2009 01/13/2009
01/21/2009

140 Minute Entry for proceedings held before Judge Lee Yeakel: Status Conference held on 8/28/2008. (Minute entry documents are not available electronically.). (Court Reporter Kathy Carroll.)(dm, ) (Entered: 08/28/2008)
141 ORDER GRANTING 139 Motion to Appoint Guardian/Attorney ad Litem. Added Guardian ad litem Will Coates. Signed by Judge Lee Yeakel. (dm, ) (Entered: 08/28/2008)
142 ORDER, ( Telephone Conference set for 9/25/2008 09:00 AM before Judge Lee Yeakel.). Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/02/2008)
143 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held on 9/25/2008. (Minute entry documents are not available electronically.). (Court Reporter Kathy Carroll.)(dm, ) (Entered: 09/25/2008)
144 ORDER, ( Status Report regarding settlement due by 10/10/2008.). Signed by Judge Lee Yeakel. (dm, ) (Entered: 09/25/2008)
145 ADVISORY TO THE COURT by Will Coates GUARDIAN AD LITEM RECOMMENDATION TO THE COURT THAT THE ABOVE CASE BE SETTLED ON BEHALF OF A.B., A MINOR. (Coates, Will) (Entered: 10/08/2008)
146 * MOTION to Deposit Funds Into the Registry of the Court by Will Coates. (Attachments: # 1 Proposed Order)(Coates, Will) (Entered: 10/09/2008)
147 Minute Entry for proceedings held before Judge Lee Yeakel: Friendly Suit Hearing held on 10/9/2008. (Minute entry documents are not available electronically.). (Court Reporter Julie Goodwin.)(dm, ) (Entered: 10/09/2008)
148 Witness List by Joseph Galloway, Gloria Washington, Linda Thomas, Dana Brockway, John Halt. (dm, ) (Entered: 10/09/2008)
149 *Amended MOTION to Deposit Funds Into the Registry of the Court by Will Coates. (Attachments: # 1 Proposed Order Order to Deposit Funds Into the Registry of the Court)(Coates, Will) (Entered: 10/24/2008)
150 MOTION for Release of Funds From the Registry of the Court by Will Coates. (Attachments: # 1 Proposed Order Order Allowing Partial Withdrawal of Funds from the Registry of the Court)(Coates, Will) (Entered: 10/24/2008)
151 ORDER GRANTING 149 Motion to Deposit Funds. Signed by Judge Lee Yeakel. (dm, ) (Entered: 11/05/2008)
152 ORDER GRANTING 150 Motion for Release of Funds. Signed by Judge Lee Yeakel. (dm, ) (Entered: 11/05/2008)
153 AGREED ORDER OF DISMISSAL. Signed by Judge Lee Yeakel. (dm, ) (Entered: 11/05/2008)
154 FINAL JUDGMENT. Signed by Judge Lee Yeakel. (dm, ) (Entered: 11/05/2008)
Case No Longer Stayed. (dm, ) (Entered: 11/05/2008)
155 MOTION for Disbursement of Funds by Will Coates. (Attachments: # 1 Proposed Order Allowing Withdrawal of Funds)(Coates, Will) (Entered: 01/13/2009)
156 SUPPLEMENT to 155 MOTION for Disbursement of Funds Amended Proposed Order Allowing Withdrawal of Funds from the Registry of the Court by Will Coates. (Coates, Will) (Entered: 01/13/2009)
157 DEFICIENCY NOTICE: re 155 MOTION for Disbursement of Funds. (dm,) (Entered: 01/13/2009)
158 Amended MOTION for Disbursement of Funds by Will Coates. (Attachments: # 1 Proposed Order Amended Proposed Order Allowing Withdrawal of Funds from the Registry of the Court)(Coates, Will) (Entered: 01/13/2009)
159 AMENDED ORDER TO DEPOSIT FUNDS INTO THE REGISTRY OF THE COURT Signed by Judge Lee Yeakel. (dm) Modified on 1/23/2009 to correct order. (dm, ). (Entered: 01/21/2009)

Case: 1:07-cv-276 As of: 05/09/2013 02:07 PM CDT 24 of 24

01/23/2009
01/26/2009 12/30/2010

Notice of Correction: re 159 Order on Motion for Disbursement of Funds, 158 Amended MOTION for Disbursement of Funds. ***Please Note that Document #159 was docketed incorrectly. The Amended Motion (DOC. #158) is still pending and has not yet been granted. Document #159 is an AMENDED ORDER TO DEPOSIT FUNDS INTO THE REGISTRY OF THE COURT. (dm) (Entered: 01/23/2009)
160 ORDER GRANTING 158 Motion for Disbursement of Funds. Signed by Judge Lee Yeakel. (dm) (Entered: 01/26/2009)
161 Letter/Correspondence regarding disposition of case. (dm, ) (Entered: 12/30/2010)