IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
THE STATE OF INDIANA, Mitchell E. Daniels,Jr., Governor, THE INDIANA DEPARTMENT OF CORRECTIONS, J. David Donahue, Commissioner, Kellie Whitcomb, Superintendent, Logansport Juvenile Intake/Diagnostic Facility; Dawn Buss, Superintendent, South Bend Juvenile Correctional Facility
Defendants.

) ) ) ) ) ) Civil Action No. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT Plaintiff, the United States of America, by its undersigned attorneys, for its complaint alleges: 1. This action is brought by the Attorney General, on behalf of the United States, pursuant the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the State of Indiana from depriving youth confined in the Logansport Juvenile Intake/Diagnostic Facility (“Logansport”) in Logansport, Indiana

and the South Bend Juvenile Correctional Facility (“South Bend”) in South Bend, Indiana, of rights, privileges or immunities secured or protected by the Constitution and laws of the United States.
JURISDICTION, STANDING AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 4. Venue in the Southern District of Indiana is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in this Complaint arose in this District.
DEFENDANTS 5. Defendant STATE OF INDIANA ("State") is responsible for the administration of juvenile justice in the State, including the operation of certain secure juvenile correctional facilities. This action concerns the administration of two secure juvenile facilities: Logansport and South Bend (collectively, “the facilities”). 6. Defendant Mitchell E. Daniels, Jr., is the Governor of Indiana, and in this capacity heads the executive branch of Indiana’s government. The Governor of Indiana, as chief of the
2

executive branch, has the duty to ensure that the departments that compose the executive branch of Indiana government guarantee the federal constitutional and statutory rights of all of the citizens of Indiana, including the youth confined in the facilities.
7. Defendant Indiana Department of Correction (“IDOC”) is a department of the executive branch of Indiana government and is the state agency responsible for the care and custody of youth confined at the facilities by the Indiana juvenile courts.
8. Defendant J. David Donahue is the Commissioner of the Indiana Department of Correction and, in this capacity, exercises administrative control of, and responsibility for Logansport and South Bend.
9. Defendant Kellie Whitcomb is the Superintendent of Logansport and is responsible for the administration and day-today operations of Logansport.
10. Defendant Dawn Buss is the Superintendent of South Bend and is responsible for the administration and day-to-day operations of South Bend.
11. The individual Defendants named in paragraphs 6-10 above are officers of the Executive Branch of the State of Indiana and are sued in their official capacities.
12. Defendants are legally responsible, in whole or in
3

part, for the operation of and conditions at the facilities; for ensuring the safety and security of youth; for ensuring that youth are adequately protected from harm; for ensuring that youth receive appropriate treatment, rehabilitation, and education commensurate with their needs and abilities; for ensuring that youth are provided due process of law; for ensuring that youth receive adequate mental health care; and for ensuring that programs for youth are consistent with the IDOC’s mission to provide opportunities for the treatment and rehabilitation of youth.
13. All relevant acts or omissions described below have been undertaken by the State, a political subdivision of the State, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 14. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice within the meaning of 42 U.S.C. § 14141. 15. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at South Bend are adequately protected from harm and from undue risk of harm. 16. Defendants have engaged, and continue to engage, in a
4

pattern or practice of failing to ensure that youth at Logansport and South Bend receive adequate mental health care and rehabilitative treatment.
17. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that eligible youth with disabilities at South Bend receive adequate special education services.
18. The youth residing at South Bend include youth with mental illness, mental retardation, and other learning disabilities who fall within the meaning of “children with disabilities” as defined in the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 (a)(1) and "individual[s] with a disability" as defined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20).
VIOLATIONS ALLEGED 19. Through the acts, practices, and omissions alleged in paragraphs 14-18, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at Logansport and South Bend of rights, privileges, or immunities secured by the Constitution of the United States, including the Eighth and Fourteenth Amendments, and in violation of 42 U.S.C. § 14141(a). 20. Through the acts, practices and omissions alleged in
5

paragraph 17, Defendants have engaged, and continue to engage in a pattern or practice of failing to comply with the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. § 1401 et seq., and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a).
21. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 14-18 that deprive youth confined at Logansport and South Bend of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF 22. The Attorney General is authorized under 42 U.S.C. § 14141 to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, contractors and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 14-18, above, and to require Defendants to take such action as will provide legal and constitutional conditions of care to youth confined at Logansport and South Bend and any other secure facility to which Defendants transfer youth confined at
6

Logansport and South Bend during the pendency of this action. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
7

Respectfully submitted,

/s/ Susan W. Brooks
SUSAN W. BROOKS United States Attorney 10 West Market Street Indianapolis, Indiana 46204 (317)226-6333

_/s_/_W_a_n_J_._K_i_m _____________ WAN J. KIM Assistant Attorney General Civil Rights Division
_/s_/_B_r_a_dl_e_y _J_._S_ch_l_o_zm_a_n ______ BRADLEY J. SCHLOZMAN Principal Deputy Assistant Attorney General Civil Rights Division

Date: February 8, 2006

_/s_/_S_h_an_e_t_ta__Y.__Cu_t_la_r________ SHANETTA Y. CUTLAR Chief Special Litigation Section
_/s_/_D_a_ni_e_l_H_._W_e_is_s__________ DANIEL H. WEISS Deputy Chief Special Litigation Section
/s/ Beth Hansher /s/ Jacqueline Cuncannan
JACQUELINE CUNCANNAN BETH HANSHER Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Jacqueline.Cuncannan@usdoj.gov Beth.Hansher@usdoj.gov (202) 616-2556 (202) 514-6273 (fax)
8

 
 Case 1:06-cv-00201-RLY-TAB Document 9 Filed 02/03/09 Page 1 of 2 PageID #: 62

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA

)

)

Plaintiff,

)

)

vs.

)

)

)

THE STATE OF INDIANA, et al.,

)

)

Defendants.

)

)

)

___________________________________)

Civil No. 1:06-cv-00201-RLY-TAB
AMENDED ORDER OF CONDITIONAL DISMISSAL

Plaintiff, the United States of America, and Defendants, the State of Indiana, et al., entered into a settlement agreement (“Settlement Agreement”) in this case on February 8, 2006, to expire three (3) years from its effective date. On February 14, 2006, this Court signed an Order of Conditional Dismissal pursuant to Fed. R. Civ. P. 41(a)(2) ordering that: (1) this matter be placed on the Court’s inactive docket; (2) this matter be dismissed with prejudice three (3) years from the date of filing or the State’s earlier substantial compliance with the terms of the Settlement Agreement; and (3) jurisdiction be retained in the Court over the case until three (3) years have passed or an earlier final dismissal with prejudice is entered. Upon consideration of the Parties’ Joint Motion to Amend the Order of Conditional Dismissal and for good cause shown;

Case 1:06-cv-00201-RLY-TAB Document 9 Filed 02/03/09 Page 2 of 2 PageID #: 63
IT IS HEREBY ORDERED that this case shall remain on this Court’s inactive docket for a period of one year; this case shall be dismissed with prejudice on February 8, 2010 or the State’s earlier substantial compliance with the Settlement Agreement; and this Court will retain jurisdiction over the case until February 8, 2010, or an earlier dismissal with prejudice is entered.
IT IS SO ORDERED t0h2/i0s3/2_0_0_9 day of ____________, 2009.
_______________________ Richard L. Young, Judge United S_t_a_t__e_s___D__i_s_t__r_i__c_t___C_o__u_r__t___ SouthernRIDCiHsAtRrDiLc. tYOoUfNGI, JnUdDiGaEna
United States District Court Southern District of Indiana
Copies to: Jacqueline Cuncannan Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 jacqueline.cuncannan@usdoj.gov Thomas D. Quigley Deputy Attorney General Special Counsel to the Commissioner 302 West Washington Street Indianapolis, IN 46204 Tquigley@idoc.in.gov
-2-

 
 September 9, 2005

The Honorable Mitch Daniels Governor, State of Indiana Office of the Governor State House, Room 206 Indianapolis, IN 46204-2797
Re: Investigation of the Logansport Juvenile
 Intake/Diagnostic Facility, Indiana 

Dear Governor Daniels:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions at the Logansport Juvenile Intake/Diagnostic Facility (“Logansport”), located in Logansport, Indiana. On February 10, 2004, we notified you of our intent to conduct investigations of Logansport and two other juvenile correctional facilities, the South Bend Juvenile Correctional Facility (“South Bend”) and the Plainfield Juvenile Correctional Facility (“Plainfield”), pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), and the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141").1 At that time, we informed you that our investigation of Logansport would focus on the provision of mental health care. As we noted, both CRIPA and Section 14141 give the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
On May 10-11, 2004, we conducted an on-site inspection of Logansport, accompanied by an expert consultant in mental health care. We interviewed mental health providers and other staff, youth residents, and facility administrators. Before, during, and after our visit, we reviewed an extensive number of documents, including policies and procedures, mental health records, youth detention records, unit logs, and orientation

1

Our findings regarding South Bend and Plainfield are

provided separately, but are referenced in this letter.

- 2 -

materials. Consistent with our commitment to provide technical assistance and conduct a transparent investigation, at the conclusion of our tour, we conducted an exit conference with facility staff and Indiana Department of Correction (“IDOC”) officials, during which our expert consultant conveyed his initial impressions and concerns.
At the outset, we commend the staff of Logansport for their helpful, courteous, and professional conduct throughout the course of this investigation. We also wish to express our appreciation for the cooperation of IDOC officials and staff.
Consistent with our statutory obligation under CRIPA, we now write to advise you of the results of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. As described below, and in the findings letters also issued today in regard to South Bend and Plainfield, we conclude that youths confined within these facilities suffer harm or the risk of harm from constitutional deficiencies in the system’s mental health services.
I. BACKGROUND
Logansport is an 84-bed maximum security facility which serves as the IDOC’s intake facility for all males between the ages of 12 and 18 who are committed to IDOC’s Juvenile Services Division. The facility is comprised of one self-contained building with an average daily population of 59 youths. Generally, juveniles received at Logansport undergo a 13-day intake process. According to Logansport officials, during this intake period each youth undergoes a physical examination; dental, vision and hearing screenings; an intellectual and educational assessment; a risk and needs assessment; a substance use assessment; a crimino-psychosocial history; and, if deemed necessary, is referred to a psychiatrist and/or psychologist. At the conclusion of the 13-day intake process, juveniles are classified and transferred to one of seven IDOC-operated juvenile treatment facilities, including South Bend or Plainfield, or to one of four privately-operated facilities.
II. FINDINGS
As a general matter, States must provide confined juveniles with reasonably safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307 (1982); Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974). Such constitutionally mandated conditions include the right to adequate mental health care. Youngberg,

- 3 -

457 U.S. at 323, n.30; Nelson, 491 F.2d at 360. See also A.M. v. Luzerne Cty. Juvenile Detention Ctr, 372 F.3d 572, 585 n.3 (3rd Cir. 2004). Neither the Supreme Court2 nor the Seventh Circuit3 has determined definitively whether the Eighth Amendment or the Fourteenth Amendment provides the governing constitutional standard for conditions in juvenile facilities. For purposes of this letter, we need not resolve which standard governs because we find that the mental health care at Logansport is so egregious that it violates even the more stringent Eighth Amendment standard.
Logansport’s mental health services focus primarily on initial screening and assessment to identify emergent mental health issues and psychopharmacological treatment needs.4 Because of the short duration of stay at Logansport, treatment, monitoring, and follow-up assessment for mental health issues identified at Logansport must occur at the youths’ treatment facility. Based on our review of mental health care at Logansport, and our review of follow-up care at South Bend and Plainfield, we find that certain aspects of the care provided at Logansport are constitutionally inadequate. Specifically, we find that Logansport fails to provide adequate psychopharmacological services. Additionally, while Logansport’s mental health screening and assessment services meet minimum constitutional standards of care, we note here the need for systemwide coordination of services to ensure that required additional screening and assessment occurs at the youths’ treatment facility.
A. Psychopharmacological Services

2

See Ingraham v. Wright, 430 U.S. 651, 669 n.37 (1977)

(Although holding that the Eighth Amendment is inapplicable to

the paddling of schoolchildren, the Court declines to consider

whether the Eighth Amendment applies to conditions in juvenile

institutions).

3

In Nelson, the Seventh Circuit held that the State

violated the Eighth Amendment rights of confined juveniles by

administering abusive corporal punishment and forced

tranquilizing medication, but violated their Fourteenth Amendment

rights by failing to provide them with minimally acceptable

rehabilitative treatment. 491 F.2d at 357; 360.

4

Psychopharmacological treatment refers to the use of

psychotropic medications to control symptoms of mental illness.

- 4 -

When a youth is admitted to Logansport and reports that he is currently receiving psychopharmacological treatment, he is typically permitted to finish whatever medication he has with him at the time of intake. If the youth reports that he is currently receiving psychopharmacological treatment but does not have any medication with him, then the intake nurse will refer him to the psychiatrist, who will meet with the youth within seven days. In either scenario, however, unless the youth is overtly exhibiting the symptoms the medication purports to treat, medication is automatically discontinued once the youth’s personal supply has been exhausted.5 Logansport’s psychiatrist reports that the purpose of this discontinuation practice is to institute a “washout” period. A wash-out period is a medication-free time during which, in theory, the mental health professional will monitor the youth’s behavior and assess whether any psychopharmacological treatment is appropriate.
A wash-out period, if implemented appropriately, can be a useful diagnostic tool for ensuring the appropriate use of psychotropic medications. However, in order to meet generally accepted professional standards of care,6 a youth who undergoes a wash-out period must be carefully monitored and assessed by a qualified mental health clinician before, during, and after discontinuation of the medication in order to determine whether a return to medication is warranted. Without adequate monitoring and assessment throughout this time, youths are exposed to a number of potential harms. Most obviously, youths whose mental health needs are not adequately identified and treated may suffer mental distress and anguish, as well as an increased risk of suicidality. Additionally, the youths are less likely to be able to successfully complete the rehabilitation program, a requirement for release from the treatment facility. Moreover, youths with unmet mental health needs are more likely to

5

In interviews during our visit, Logansport’s

psychiatrist stated that it was his understanding that the

discontinuation of psychotropic medications once a youth exhausts

his personal supply is mandated by IDOC policy. IDOC’s medical

director, however, stated that no such policy exists. Thus, the

origin of this practice remains unclear.

6

In assessing the constitutional adequacy of mental

health care practices at Logansport, we must consider whether

professional decisions substantially depart from accepted

professional judgment. See Youngberg, 457 U.S. at 323; Estate of

Cole v. Fromm, 94 F.3d 254, 262-63 (7th Cir. 1996) (deriving the

standard for assessing the adequacy of mental health care

provided to pretrial detainee from Youngberg).

- 5 -

demonstrate unacceptable behaviors that elicit punitive responses from staff.
We find that Logansport’s wash-out practice, as implemented across the treatment facilities we investigated (Plainfield and South Bend), is constitutionally inadequate. Specifically, youths whose medications are discontinued at Logansport are not adequately monitored and assessed after the medication is discontinued to determine whether there is a need to resume the psychopharmacological treatment. Because residents are transferred out of Logansport shortly following the discontinuation of medication7, the bulk of the requisite monitoring and assessment would occur at the treatment facilities to which the youths are transferred. In our concurrent investigations of South Bend and Plainfield, we find that such monitoring and assessment generally fail to occur. See South Bend Findings Letter at 11 and Plainfield Findings Letter at 14.
B. Mental Health Screening and Assessment
We also find that although Logansport adequately identifies juveniles who are overtly suicidal, its screening and assessment practices are not comprehensive or sensitive enough to identify a number of other serious mental health issues. In particular, Logansport’s screening and assessment services fail to identify juveniles with internalized symptoms of mental illness such as juveniles with depression who are not actively suicidal, those with post-traumatic stress disorder, and some youths with psychoses.
In light of the short duration of stay at Logansport, the facility’s practice of screening for only the most emergent mental health needs is minimally adequate. However, once the

7

We also find the characterization of IDOC’s medication

discontinuation policy as a diagnostic wash-out period to be

problematic. The fact that youths entering Logansport are

permitted to finish whatever quantity of medication they may

happen to bring in with them before the prescription is

discontinued suggests that the subsequent discontinuation is not

driven by medical considerations. Indeed, if the driving force

for discontinuing a medication is truly a lack of need for that

medication, then it should be discontinued regardless of whether

the juvenile brought in a supply of his own. And, in fact, when

we asked Logansport’s psychiatrist what the rationale is for

permitting residents to finish medications they have with them,

he stated that it was to avoid the medication going to waste.

- 6 -

youth is transferred to his treatment facility, more comprehensive screening and assessment services are required. Unfortunately, as we discuss in our findings letter issued in regard to Plainfield, we find that these treatment facilities fail to provide such services. See Plainfield Findings Letter at 12-13. We note this issue here because systemwide coordination is needed to ensure that comprehensive screening and assessment is conducted.
III. REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of juveniles confined at Logansport, IDOC should implement, at a minimum, the following remedial measures:
1. Provide adequate psychopharmacological treatment to youths. If a wash-out period is implemented for youths who enter Logansport on psychotropic medication, IDOC should:
a. Conduct an adequate baseline assessment of the youths and ensure adequate documentation of the baseline;
b. Provide adequate monitoring during the wash-out period;
c. Provide timely follow-up assessments to determine whether a return to treatment with medication is warranted; and
d. Ensure that psychopharmacological treatment is promptly resumed when necessary.
2. Provide adequate screening and assessment services to identify youths with serious mental health needs. At a minimum, all youths should receive a comprehensive mental health screening and assessment, either during their stay at Logansport or immediately after admittance to their treatment facility.
* * *
As stated above, we appreciate the cooperation we have received from IDOC officials and facility staff throughout this investigation. We hope to be able to continue working with the State in an amicable and cooperative fashion to resolve the deficiencies found in IDOC’s provision of mental health services. Provided that our cooperative relationship continues, we will forward our expert consultant’s report under separate cover.

- 7 -

Although this report is the consultant’s work – and does not necessarily reflect the official conclusions of the Department of Justice – the observations, analyses, and recommendations contained in the report provide further elaboration of the issues discussed in this letter and offer practical assistance in addressing them.
In the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct the deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a)(1).
We would prefer, however, to resolve this matter by working cooperatively with you. We have every confidence that we will be able to do so in this case. The lawyers assigned to this matter will be contacting your attorneys to discuss this matter in further detail. If you have any questions regarding this letter, please contact Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Bradley J. Schlozman
Bradley J. Schlozman Acting Assistant Attorney General
cc: The Honorable Steve Carter Office of the Indiana Attorney General
J. David Donahue, Commissioner Indiana Department of Correction

Dawn Buss, Superintendent
 South Bend Juvenile Correctional Facility

Curtis Correll, Superintendent
 Plainfield Juvenile Correctional Facility

Kellie Whitcomb, Superintendent
 Logansport Juvenile Intake/Diagnostic Facility

The Honorable Joseph S. Van Bokkelen
 United States Attorney
 Northern District of Indiana


- 8 -
The Honorable Susan W. Brooks United States Attorney Southern District of Indiana
John H. Hager Assistant Secretary Office of Special Education and Rehabilitative Services United States Department of Education
Troy Justeson Acting Director Office of Special Education Programs United States Department of Education

 
 September 9, 2005

The Honorable Mitch Daniels Governor, State of Indiana Office of the Governor State House, Room 206 Indianapolis, IN 46204-2797
Re: Investigation of the South Bend Juvenile
 Correctional Facility, Indiana 

Dear Governor Daniels:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions at the South Bend Juvenile Correctional Facility (“South Bend”) in South Bend, Indiana. On February 10, 2004, we notified you of our intent to conduct investigations of South Bend and two other juvenile correctional facilities, the Logansport Juvenile Diagnostic/Intake Facility (“Logansport”) and the Plainfield Juvenile Correctional Facility (“Plainfield”), pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”) and the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141").1 As we noted, both CRIPA and Section 14141 give the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
On May 12-14, 2004, we conducted an on-site inspection of South Bend. We were accompanied by expert consultants in mental health care, juvenile justice, and special education. We interviewed staff members, youth residents, mental health care providers, teachers, and administrators. Before, during, and after our visit, we reviewed an extensive number of documents, including policies and procedures, incident reports, youth detention records, mental health records, grievances from youth residents, unit logs, orientation materials, staff training materials, and school records. Consistent with our commitment to

1

Our findings regarding Logansport and Plainfield are

provided by separate letters, but are referenced here.

- 2 -

provide technical assistance and conduct a transparent investigation, at the conclusion of our tour, we conducted an exit conference with facility and Indiana Department of Correction (“IDOC”) officials, during which our consultants conveyed their initial impressions and concerns.
At the outset, we commend the staff of South Bend for their helpful, courteous, and professional conduct throughout the course of the investigation. We also wish to express our appreciation for the cooperation of IDOC officials.
Consistent with our statutory obligation under CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. As described more fully below, and in the findings letters also issued today in regard to Logansport and Plainfield, we conclude that certain deficiencies at South Bend violate the constitutional and federal statutory rights of the youth residents.
I. BACKGROUND
South Bend is a 138-bed facility for boys from ages 12 to 18. Although a juvenile correctional facility has existed at the same site since 1980, the current South Bend facility opened in March 2002. South Bend reports that the average length of stay for youths is six months. The residents of South Bend are housed in eight 16-bed dormitory units, which open into two large day rooms. There is also a ten-bed transitional unit for youths who are approaching release from the facility.
South Bend is a minimum security facility housing low-risk to medium-risk juveniles. At the time of our tour of South Bend, approximately 8 percent of its residents were “status offenders.”2
South Bend utilizes a level program that is mandated by the IDOC as part of its comprehensive case management system. The program consists of several levels that a youth is required to complete in order to qualify for release. A youth’s progress through the levels is measured against his “Individual Growth Plan,” which is a set of long-term and short-term cognitive and behavioral goals specifically designed for the youth by his

2

Status offenders are juveniles adjudged to have

committed an act that would not be a crime if committed by an

adult (for example, truancy from school or alcohol consumption).

- 3 -

interdisciplinary treatment team, as well as interventions to be utilized to achieve those goals. The youth’s treatment team, which includes custody, mental health, and educational professionals, decides when a youth has successfully completed a level. Unanimous approval by the team is required for a youth to move to the next level.
All male juveniles entering the IDOC, including those who ultimately are committed to South Bend, are initially sent to Logansport for a 13-day intake period. According to Logansport officials, during this intake period each youth undergoes a physical examination; dental, vision and hearing screenings; an intellectual and educational assessment; a risk and needs assessment; a substance use assessment; a crimino-psychosocial history; and, if deemed necessary, is referred to a psychiatrist and/or psychologist. See Logansport Findings Letter at 2. At the conclusion of the 13-day intake process, juveniles are classified and transferred to one of seven IDOC operated juvenile treatment facilities (which include South Bend), or to one of four privately-operated facilities.
II. FINDINGS
We find that South Bend fails to adequately protect the juveniles in its care from harm. We also find constitutional deficiencies in the facility’s mental health care. Finally, South Bend fails to provide juveniles with disabilities education services required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401.
A. PROTECTION FROM HARM
As a general matter, the State must provide confined juveniles with reasonably safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307 (1982); Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974). Such constitutionally mandated conditions include the right to be free from undue restraint and the use of excessive force by staff. Youngberg, 457 U.S. at 31516; Nelson, 491 F.2d at 356. Juveniles in state custody also have a constitutional right to be reasonably protected from harm inflicted by third parties. K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). Neither the Supreme Court3 nor the Seventh

3

See Ingraham v. Wright, 430 U.S. 651, 669 n.37 (1977)

(Although holding that the Eighth Amendment is inapplicable to

the paddling of schoolchildren, the Court declines to consider

(continued...)

- 4 -

Circuit4 has determined definitively whether the Eighth Amendment or the Fourteenth Amendment provides the governing constitutional standard for conditions in juvenile facilities. For purposes of this letter, we need not resolve which standard governs because we find that the conditions at South Bend violate even the more stringent Eighth Amendment standard.
1. Youth Violence
Juveniles in institutions have a constitutional right to be reasonably safe from harm inflicted by other juveniles in the facility. K.H. at 851; see also A.M. v. Luzerne Cty. Juvenile Detention Ctr, 372 F.3d 572, 585 n.3 (3rd Cir. 2004). We find that there is an unacceptably high rate of youth violence at South Bend. The atmosphere at South Bend is chaotic and dangerous. Youths frequently fight with each other without detection or intervention by staff. Often, staff only become aware of an assault after the fact, when a youth comes forward for medical attention or staff review a video surveillance tape. Moreover, as discussed below, staff members and youths agree that staff members are unable to control the situation due to inadequate staffing. The following are examples of incidents of youth-on-youth assaults, as reported in facility investigative reports:
• On May 9, 2004, a youth attacked another youth in the shower area, breaking the victim’s nose. The victim also received stitches to close another wound. No staff reported observing the incident. Initially, the victim reported that he was injured when he slipped in the shower. Only after the facility nurse determined the injury to be the result of a direct blow to the nose did the victim acknowledge that he had been attacked.
• On March 30, 2004, a video surveillance camera filmed a youth beating another youth without detection by staff.

3(...continued) whether the Eighth Amendment applies to conditions in juvenile institutions).

4

In Nelson, the Seventh Circuit held that the State

violated the Eighth Amendment rights of confined juveniles by

administering abusive corporal punishment and forced

tranquilizing medication, but violated their Fourteenth Amendment

rights by failing to provide them with minimally acceptable

rehabilitative treatment. 491 F.2d at 357; 360.

- 5 -

Only after the victim reported the assault and the tape was reviewed did this incident come to light. • On March 25, 2004, staff observed one youth hitting another youth in his dormitory bed “constantly,” until staff restrained the aggressor and took him to segregation.
• On March 21, 2004, two youths on Treatment Unit East were observed punching each other with closed fists numerous times, leaving bruises and scrapes on one of the two youths.
• On March 2, 2004, two residents of Treatment Unit East were filmed by the dormitory surveillance camera hitting another youth “multiple times in his body with closed fists, and then [running] back to their beds.” Later that same evening, the same two residents assaulted the same youth again, hitting him multiple times as he lay in his bed. These attacks went undetected by the staff on duty at the time. A report was not written until more than a week later. The victim sustained bruises across his body.
• On February 25, 2004, a youth in the recreation area emerged from the rest room and began striking a peer “with closed fists numerous times in the face area.” The victim was treated for injuries to his face.
• On February 22, 2004, two separate fist fights on Treatment Unit West were reported. In one of the fights, staff observed the aggressor strike the victim with a closed fist several times, leaving him with a bloody nose and other injuries.
Moreover, the actual number of youth assaults is likely much higher than what is reported. During our tour, youths consistently reported that there are numerous incidents of youthon-youth violence about which staff are unaware. The youths explained that because they sleep in large dormitories with minimal monitoring by staff, there are ample opportunities for fights to occur without staff’s knowledge. Moreover, although South Bend recently installed cameras to monitor the dormitories, youths are able to avoid being recorded by fighting in the cameras’ “blind spots.” Likewise, youths report that because the shower areas are not adequately supervised by staff, youth assaults commonly occur there without staff interference. Thus, in light of the high potential for undetected and unreported youth violence, the amount of violence is likely much higher than what the facility documents.
The most obvious and glaring reason for the frequency of violence among youths in this minimum security facility is that

- 6 -

there are not enough staff to supervise the youths adequately. Constitutional standards require that juvenile facilities have a sufficient number of adequately trained staff members to ensure the safety and security of its juvenile residents. Without an adequate number of officers on duty, existing staff cannot respond in a safe and timely manner when violence and other crises do occur. Moreover, without adequate numbers of qualified staff, correctional officers do not have the time to build the relationships with youths that are necessary to identify when trouble is brewing on their unit and prevent incidents from occurring.
At South Bend, there are rarely more than two staff assigned to supervise as many as 64 youths. This ratio places the youths – as well as staff – at significant risk of serious harm. Moreover, the facility’s large day rooms and open sleeping dormitories permit significant numbers of residents to congregate in largely unstructured settings, increasing the potential for serious problems to develop among the youths. Our observations during our tour underscore this point. During one afternoon, we observed a day room filled with youths who did not appear to be engaged in any programming. There was one staff present. He explained that it was “Team Day,” i.e., the day youths meet with their treatment team to discuss their progress in the treatment program and, consequently, the youths did not have to attend school. The atmosphere in this day room was particularly chaotic and unstructured; many youths were congregating in groups, some were watching TV, some were sleeping on the floor, and others were sitting idly. Large groups of idle juveniles can be very dangerous when adequate staffing is not provided. Juveniles who are not engaged in structured activities are more likely to engage in mischief which, if adequate staffing is not provided, has the potential to spiral into fighting, assaults and other dangerous activities.
We also repeatedly observed residents in the transition unit without any staff present. When we inquired about this, staff reported that these youths were being monitored via the control room. Camera surveillance can enhance security by providing for a faster response to calls for back-up staff as well as facilitating the identification and prosecution of aggressors. However, cameras cannot ensure a timely response to crises if no staff are present to intervene, nor can they identify potential crises and prevent youth attacks from occurring. It is dangerous and unacceptable for any group of incarcerated juveniles to be without direct staff supervision.

- 7 -

Our findings regarding the inadequate number of staff at South Bend are not likely to surprise its staff or residents. During our tour, staff readily acknowledged that there are not enough of them to safely supervise the youths in their care. As one correctional officer informed us, “We need more people. We can’t do what we need to be doing.” The residents echoed these sentiments to us. One youth summed the situation up by stating, “With two staff to 64 kids, no way staff can control it.”
2. Use of Lethal Force
Juveniles at South Bend have a right to be free from unnecessary restraint and the use of excessive force. Youngberg, 457 U.S. at 315-16; Nelson, 491 F.2d at 356. See also H.C. v. Jarrad, 786 F.2d 1080, 1089 (11th Cir. 1986); Milonas v. Williams, 691 F.2d 931, 942 (10th Cir. 1982). IDOC’s use of physical force policy includes a provision regarding “Lethal Physical Intervention.” The provision appears in a section entitled, “Juvenile Facilities Step Definitions,” and appears to be the final measure in a series of graduated steps to be taken by staff in the event of an incident that might result in the use of force on a youth. “Lethal Physical Intervention” is not defined in this policy, although a separate definition section of the policy includes “deadly force,” which is defined as “any force which creates a substantial risk of serious bodily injury or death or which the person using the force reasonably believes creates a substantial risk of causing serious bodily harm or death.” In any case, the policy includes no guidelines or limits as to when the use of lethal force is permissible. A policy that permits the use of lethal force, in any setting but particularly in a juvenile facility, without clear limits and guidelines places juveniles at significant risk of serious harm or death.
3. Grievances
The dysfunctional grievance system at South Bend contributes to the State’s failure to ensure a reasonably safe environment. An adequately functioning grievance system ensures that youths have an avenue for bringing serious allegations of abuse and other complaints to the attention of the administration. It also provides an important tool in evaluating the culture at the facility, and alerting the administration about dangers and other problems in the facility’s operations.
Our investigation revealed a number of encouraging aspects to South Bend’s grievance system. For example, we were pleased to find that South Bend provides grievance forms and locked grievance boxes on the units, and that a grievance specialist

- 8 -

checks the boxes on a daily basis. The residents are aware of the grievance process and know the identity of the grievance process manager. In fact, the youths regularly utilize the grievance system at South Bend.
Nevertheless, we find that South Bend’s grievance system to be inadequate. In many other cases, grievance reviewers appeared to ignore the substantive allegations made by the youths, even when the grievance contained serious allegations of deprivations of rights and/or abusive or inappropriate conduct by staff. The following examples are illustrative:
• On May 10, 2004, a youth filed a grievance stating that he had been in the segregation unit for five days and could not get a grievance form. He also wrote that he was not issued a toothbrush or toothpaste for three days. The May 13 response said only, “The forms are replenished on the units weekly.”
• A youth filed an undated grievance alleging that a staff member had made sexually graphic comments about his mother and sister, and called him a “fool” and “ignorant.” The youth requested that the staff member be told to stop name calling and “putting us students down.” The grievance was filed on the wrong form. The April 29, 2004 response stated only, “You must use a Step 1 Grievance. See attached.”5
• A grievance was filed by another youth on April 11, 2004, alleging that a staff person called a different resident profane names and threatened to have the resident reclassified. The grieving resident suggested that the incident should be “looked into.” The April 16 response stated, “You cannot file a grievance for another student.”
• On April 5, 2004, a youth filed a grievance alleging that a staff person “has disrespected me by saying shut up and she don’t give a f--- what I think [expletive deleted].” The youth suggested that the staff person be “written up.” The May 4 response said, “You cannot suggest punishment for staff.”

5

“Complaint Step 1" refers to a specific form that

residents must first submit, notifying the Grievance Specialist

of his desire to file Grievance, which is defined in IDOC’s

policy as “a legible, formalized version of a complaint...that

has been signed and dated by a student and the Grievance

Specialist.”

- 9 -

South Bend’s grievance process policy also provides that a youth’s access to the grievance process may be denied if it is determined that the youth is “attempting to flood the procedure with frivolous complaints.” See Section XX of South Bend’s “Offender Grievance Process.” Access to the mechanism through which youths can communicate serious allegations and concerns to the administration is a critical element of ensuring that youths’ rights are protected. We acknowledge that certain limitations may be imposed on repetitive and frivolous filings. But the mere existence of this provision, without appropriate guidance for staff, may inhibit the filing of grievances and, therefore, undermines the purpose and effectiveness of the process.
B. MENTAL HEALTH CARE
The Constitution requires that youths in juvenile justice institutions receive adequate mental health care. Youngberg, 457 U.S. at 323, n.30.; Nelson, 491 F.2d at 360; see also K.H., 914 F.2d at 851; A.M., 372 F.3d at 585 n.3. We find that certain aspects of the mental health care at South Bend are constitutionally inadequate. Specifically, we find that South Bend fails to provide adequate psychopharmacological services.
As noted above, youths placed at South Bend first spend thirteen days at Logansport, purportedly for evaluation and assessment. And, as we explain in our letter issued today regarding mental health services at Logansport, when a youth is admitted to Logansport and reports that he is currently receiving psychopharmacological treatment,6 he is typically permitted to finish whatever medication he has with him at the time of intake. If the youth reports that he is currently receiving psychopharmacological treatment but does not have any medication with him, then Logansport’s intake nurse will refer him to the psychiatrist, who will meet with the youth within seven days. In either scenario, however, unless the youth is overtly exhibiting the symptoms the medication purports to treat, medication is automatically discontinued once the youth’s personal supply has been exhausted.7 Logansport’s psychiatrist reports that the

6

Psychopharmacological treatment refers to the use of

psychotropic medications to control symptoms of mental illness.

7

In interviews during our visit, Logansport’s

psychiatrist stated that it was his understanding that the

discontinuation of psychotropic medications once a youth exhausts

his personal supply is mandated by IDOC policy. IDOC’s medical

director, however, stated that no such policy exists. Thus, the

(continued...)

- 10 -

purpose of this discontinuation practice is to institute a “washout” period. A wash-out period is a medication-free time during which, in theory, the mental health professional will monitor the youth’s behavior and assess whether any psychopharmacological treatment is appropriate.
A wash-out period, if implemented appropriately, can be a useful diagnostic tool for ensuring the appropriate use of psychotropic medications. However, in order to meet generally accepted professional standards of care,8 a youth who undergoes a wash-out period must be carefully monitored and assessed by a qualified mental health clinician before, during, and after discontinuation of the medication in order to determine whether a return to medication is warranted. Without adequate monitoring and assessment throughout this time, youths are exposed to a number of potential harms. Most obviously, youths whose mental health needs are not adequately identified and treated may suffer mental distress and anguish, as well as an increased risk of suicidality. Additionally, the youths are less likely to be able to successfully complete the rehabilitation program, a requirement for release from the treatment facility. Moreover, juveniles with unmet mental health needs are more likely to demonstrate unacceptable behaviors that elicit punitive responses from staff.
Because residents are transferred out of Logansport shortly following the discontinuation of medication,9 the bulk of the

7(...continued) origin of this practice remains unclear.

8

In assessing the constitutional adequacy of mental

health care practices at South Bend, we must consider whether

professional decisions substantially depart from accepted

professional judgment. See Youngberg, 457 U.S. at 323; Estate

of Cole v. Fromm, 94 F.3d 254, 262-63 (7th Cir. 1996) (deriving

the standard for assessing the adequacy of mental health care

provided to pretrial detainee from Youngberg).

9

We also find the characterization of IDOC’s medication

discontinuation policy as a diagnostic wash-out period to be

problematic. The fact that youths entering Logansport are

permitted to finish whatever quantity of medication they may

happen to bring in with them before the prescription is

discontinued suggests that the subsequent discontinuation is not

driven by medical considerations. Indeed, if the driving force

for discontinuing a medication is truly a lack of need for that

(continued...)

- 11 -

requisite monitoring and assessment should occur at the treatment facility to which a youth is transferred, in this case, at South Bend. In our review of South Bend’s mental health services, however, we found that youths whose medications are discontinued at Logansport are not provided with adequate monitoring and assessment at South Bend to determine whether there is a need to resume the psychopharmacological treatment.
We found that the failure to reassess juveniles after medication is discontinued at Logansport occurs most frequently with youths who had been taking medication to treat Attention Deficit/Hyperactivity Disorder (“ADHD”). ADHD is one of the most common of the psychiatric disorders that appears in childhood and is characterized by problems with inattentiveness, over-activity, impulsivity, or some combination of these symptoms. A youth with untreated ADHD can exhibit a variety of behaviors such as being unable to sit still, talking excessively, interrupting and intruding on others, failing to pay attention in school and on the unit, failing to listen and follow directions, and having difficulty engaging in activities that require sustained cognitive effort. Most medications that are prescribed to treat ADHD are short-acting. That is, within a day or two of discontinuing the medication, a youth will return to his unmedicated baseline status.
Over one third of the juveniles whose mental health records we reviewed had entered South Bend with an order from Logansport for an ADHD evaluation. For 80 percent of these youths, their evaluations were significantly delayed. Some of the youths had to wait for two months to be assessed. Many others were still waiting to be assessed even though they had entered the IDOC several weeks prior to the time of our tour. These delays expose juveniles to the serious and potentially harmful consequences identified above, including unnecessary suffering, risk of suicidality, and interference with a youth’s ability to be successful in South Bend’s rehabilitation program as well as in school. Moreover, given that South Bend’s rehabilitation program focuses on cognitive and behavioral improvements, precisely the areas that treatment for ADHD addresses, delaying ADHD assessments for several months is a particularly troublesome practice.
9(...continued) medication, then it should be discontinued regardless of whether the juvenile brought in a supply of his own. And, in fact, when we asked Logansport’s psychiatrist what the rationale is for permitting residents to finish medications they have with them, he stated that it was to avoid the medication going to waste.

- 12 -

C. SPECIAL EDUCATION SERVICES
South Bend violates the federal statutory rights of students with disabilities by failing to provide adequate special education in its school program,10 in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1401 et seq.11 At the time of our tour, approximately 40 percent of all South Bend residents had been identified as qualifying for special education services under the IDEA.
At the outset, we note that there are several positive aspects of the educational program at South Bend. For example, we were impressed with the enthusiasm of the teaching staff at South Bend. Additionally, the school publishes a literary magazine which is an excellent vehicle for student expression and recognition. The utilization of university students to tutor South Bend students is a laudable effort to provide positive role models to students. We were also pleased to see that students with disabilities spend most of their school day in general education classes, as envisioned under the IDEA. 34 C.F.R. § 300.550(b)(1)(requiring that “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled”). Nevertheless, we find that South Bend fails to provide special education services to juveniles with disabilities as required under the IDEA.
1. IEPs
The IDEA requires that each student with a disability have an Individualized Education Program (“IEP”), and describes the IEP components required to ensure that each student receives adequate special education services. 34 C.F.R. §§ 300.346, 300.347. The IEPs developed at South Bend, however, give us great pause as to whether students with disabilities receive required special education services.
Specifically, we are concerned whether the IEPs developed by South Bend are not sufficiently individualized to meet the unique
10 South Bend’s school program is called the Council Oaks Jr./Sr. High School.
11 We note that the IDEA was reauthorized and amended by the Individuals with Disabilities Education Improvement Act of 2004, PUB. L. NO. 108-446, 118 Stat. 2647 (2004), effective July 1, 2005. The IDEA provisions cited herein are substantively the same as those in force at the time of our tour.

- 13 -

needs of each student with a disability, as required under the IDEA. 34 C.F.R. §§ 300.346, 300.347. The vast majority of IEPs we reviewed contained “boilerplate” language regarding the amount of special education services a student needs. For example, all of the 18 randomly-selected IEPs we reviewed provided that either 13 percent or 8.5 percent of the students’ instruction should be comprised of direct special education services. If South Bend’s IEPs were truly based on the individual needs of the student, it is highly unlikely that such a large percentage of its students with disabilities would require identical levels of direct special education services.
We also found several instances where a youth’s direct special education services were dramatically lower than what he had received in his previous educational setting without adequate justification. In two of the IEPs we reviewed, for example, the youths’ daily special education services were reduced from 100 percent at their previous schools to 13 percent at South Bend. Two other youths’ special education services were reduced from 100 per cent to 8.5 percent daily. These drastic reductions in services without adequate justification, as well as the boilerplate language used in many of its students’ IEPs, suggest that South Bend is tailoring IEPs to what is available, rather than to the students’ individualized needs.
2. Instructional Services for Students 
 with Disabilities

a. Individualized Instruction
The IDEA requires that students with disabilities receive specially designed instruction in which the content, method, and/or delivery of instruction is adapted as necessary to meet the unique needs of the student, and to ensure his access to the general curriculum. 34 C.F.R. § 300.26(a)(3). For example, a student with disabilities may require a seating change, more time on written assignments, oral testing, specific instructional cues, etc. The general education teacher typically is responsible for implementing the instructional adaptations identified in the IEP. South Bend fails to provide special education students with modified instruction as required by their IEPs. In fact, during our tour, we observed no individualized instructional adaptations or assessment accommodations in any of our classroom observations.
South Bend’s provision of insufficiently individualized instructional services to students with disabilities appears to result from several factors. First, some of South Bend’s general

- 14 -

education teachers are teaching subjects in which they are not licensed. This further inhibits their ability to provide appropriate individualized instructional adaptations in those subjects. Additionally, the absence of a system for obtaining qualified substitute teachers, coupled with a high rate of teacher absences, further reduces the amount and quality of individualized instruction provided to students with disabilities.
Finally, at the time of our tour, South Bend did not have a principal to administer the school, nor are we aware of any plan in effect to recruit a school principal. The lack of a school principal contributes to the inadequate instructional services provided by the school’s education staff. Without a school principal, there is not adequate oversight of the timely provision of adequate and appropriate special education services, or evaluation of teacher performance.
b. Curriculum
The IDEA provides that all students with disabilities are guaranteed a free and appropriate public education which meets the standard of the State education agency. 20 U.S.C. §§ 1401(9)(b); 1412(a)(1)(A). See also 34 C.F.R. § 300.600(a)(2)(ii). South Bend fails to provide special education students the curriculum necessary to meet State standards. For instance, it does not offer classes in physical education, health, foreign language or elective courses. All of these are required courses for completion of secondary studies in Indiana public schools.12
The IDEA further requires that students with disabilities receive instruction that is specially designed to meet the students’ unique needs, including instruction in vocational education13 when necessary to meet the students’ unique needs. 34 C.F.R. § 300.26(a)(2)(iii). No vocational education services are offered to South Bend students. Curiously, in the sample of
12 511 IN. ADMIN. CODE § 6.1-5-4(c).
13 “Vocational education” means “organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.” 34 C.F.R. § 300.26(b)(5).

- 15 -
IEPs we reviewed, not one student was identified as needing vocational education even though several IEPs identified needs for vocational rehabilitation after students leave South Bend. Again, this suggests that these students’ IEPs were developed based on the courses available at South Bend, rather than on the students’ individual needs.
c. Access to Instruction
The IDEA requires that students with disabilities have access to free and appropriate public education services which comport with the standards of the State education agency. 20 U.S.C. §§ 1401(9)(b); 1412(a)(1)(A). See also 34 C.F.R. § 300.600(a)(2)(ii). It is critical that students with disabilities have access to sufficient instructional time in order to access the general education curriculum and achieve academic success. South Bend unacceptably limits access to instructional time in three significant ways.
First, South Bend only provides class instruction four days per week. On Wednesdays, no students attend classes. Instead, multi-disciplinary team conferences are held with certain students to discuss the student’s progress in the facility’s rehabilitation program. Students who are not attending team conferences that day are sent to “study hall” for the entire day, during which time they receive no instructional services and rarely even have school work to complete. While we appreciate South Bend’s dedication to implementation of its rehabilitation program, this progress review cannot be at the expense of required education services to students with disabilities.
Second, South Bend’s policy regarding student orientation unnecessarily restricts access to special education services for juveniles with disabilities. Upon arrival at South Bend, all students spend approximately two weeks in “orientation” before they are enrolled in school. During this time, they are given a packet of facility information to review. Once the student is finished with the packet (an exercise that takes no more than a few hours to complete), he essentially sits in study hall with nothing to do for the remainder of the two weeks. Significantly, this two-week delay in school enrollment follows the student’s 13-day stay at Logansport, during which time no special education services are provided. Thus, youths with disabilities spend

- 16 -

their four weeks in the IDOC without access to any special education services.14
Third, segregated students with disabilities do not have adequate access to special education services. Although educational packets are provided to students in segregation, the materials do not relate to current class work and, consequently, do not allow the student to continue access to appropriate instruction. This practice has the potential to severely limit the progress of students with disabilities.
III. REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of juveniles confined at South Bend, IDOC should implement, at a minimum, the following remedial measures:
1. Ensure that youths are adequately protected from physical violence by other youths;
2. Ensure that there is sufficient, adequately trained staff to safely supervise the residents at all times;
3. Develop and implement a use of force policy that provides clear guidelines and appropriate limits on the use of force;
4. Provide adequate training and supervision to correctional staff regarding safe and appropriate use of force and physical restraint;
5. Develop and implement a grievance system that ensures resident access to a functional and responsive grievance process;
6. Provide adequate psychopharmacological treatment to youths. If a wash-out period is implemented for youths who enter Logansport on psychotropic medication, IDOC should:
a. Conduct an adequate baseline assessment of the youths and ensure adequate documentation of the baseline;
b. Provide adequate monitoring during the wash-out period;
14 Given that some youths at South Bend are status offenders who have been incarcerated for truancy, denying access to education services is particularly inappropriate and ironic.

- 17 -

c. Provide timely follow-up assessments to determine whether a return to treatment with medication is warranted; and
d. Ensure that psychopharmacological treatment is promptly resumed when necessary;
7. Develop and implement adequate IEPs to students with disabilities;
8. Provide individualized instructional services to students with disabilities in accordance with the IDEA;
9. Ensure students with disabilities have sufficient access to an adequate curriculum; and
10. Ensure students with disabilities have sufficient access to instructional services.
* * *
As stated above, we appreciate the cooperation we have received from IDOC officials and facility staff throughout this investigation. We hope to be able to continue working with the State in an amicable and cooperative fashion to resolve the deficiencies found in the operation of this facility. Provided that our cooperative relationship continues, we will forward our expert consultants’ reports under separate cover. Although the reports are the consultants’ work – and do not necessarily reflect the official conclusions of the Department of Justice – the observations, analyses, and recommendations contained in the reports provide further elaboration of the issues discussed in this letter and offer practical assistance in addressing them.
In the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct the deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a)(1).
We would prefer, however, to resolve this matter by working cooperatively with you. We have every confidence that we will be able to do so in this case. The lawyers assigned to this matter will be contacting your attorneys to discuss this matter in further detail. If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.

- 18 -
Sincerely,
/s/ Bradley J. Schlozman
Bradley J. Schlozman Acting Assistant Attorney General
cc: The Honorable Steve Carter Office of the Indiana Attorney General
J. David Donahue, Commissioner Indiana Department of Correction

Dawn Buss, Superintendent
 South Bend Juvenile Correctional Facility

Curtis Correll, Superintendent
 Plainfield Juvenile Correctional Facility

Kellie Whitcomb, Superintendent
 Logansport Juvenile Intake/Diagnostic Facility

The Honorable Joseph S. Van Bokkelen
 United States Attorney
 Northern District of Indiana

The Honorable Susan W. Brooks
 United States Attorney
 Southern District of Indiana

John H. Hager Assistant Secretary Office of Special Education and Rehabilitative Services United States Department of Education
Troy Justeson
 Acting Director
 Office of Special Education Programs
 United States Department of Education


 
 SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES DEPARTMENT OF
 JUSTICE AND THE STATE OF INDIANA CONCERNING THE LOGANSPORT
 INTAKE/DIAGNOSTIC FACILITY AND THE SOUTH BEND JUVENILE
 CORRECTIONAL FACILITY


I. INTRODUCTION
A. On February 10, 2004, the United States notified State of Indiana officials in the administration of Joseph E. Kernan, Governor of Indiana, of its intent to investigate conditions of confinement at the Logansport Juvenile Intake/Diagnostic Facility in Logansport, Indiana (“Logansport”), the South Bend Juvenile Correctional Facility in South Bend, Indiana (“South Bend”), and the Plainfield Juvenile Correctional Facility in Plainfield, Indiana (“Plainfield”), pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 (“CRIPA”), and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14141 (“Section 14141").
B. In May 2004, the United States toured Logansport with a consultant in the field of mental health care, and toured South Bend with consultants in the fields of juvenile justice, mental health care, and education. In June and July 2004, the United States toured Plainfield with consultants in the fields of juvenile justice, mental health care, education, and sanitation.
C. On November 2, 2004, Mitchell E. Daniels, Jr. was elected Governor of Indiana. He was sworn into office on January 10, 2005. State officials in the new administration were notified of the investigation in January 2005.
D. Beginning January 11, 2005, the newly appointed Commissioner of the Indiana Department of Correction, J. David Donahue, began his own independent review of operations at juvenile facilities throughout the state, and on his own initiative, began implementing changes to improve the quality of confinement, training of staff, and medical care and educational services provided in each of these facilities.
E. Throughout the course of the investigation, the United States received complete cooperation from the State. The State permitted access to the facilities and provided requested documents.
F. On September 9, 2005, the United States issued findings letters pursuant to 42 U.S.C. 1997(a)(1), which concluded that conditions at Logansport, South Bend, and Plainfield in 2004 violated the constitutional and federal statutory rights of juveniles confined in the facilities.
G. On October 10, 2005, the Indiana Department of Correction closed the Plainfield facility for use by juveniles and began a transition process to reopen the facility as an adult re-entry unit; the juveniles housed at Plainfield
1


were either released as their obligations were satisfied before Plainfield closed or transferred to various juvenile facilities throughout the DOC system.
H. On December 14, 2005, in a letter attached hereto as Exhibit A, IDOC Commissioner J. David Donahue detailed the responsive measures he voluntarily implemented in all juvenile facilities in the IDOC system prior to the execution of this Agreement, including implementation of Indiana Department of Education approved processes for developing and monitoring each student’s IEP, provision of comprehensive mental health services to meet the needs of youth, and implementation of a revised and updated grievance process for all offenders.
I. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. § 14141. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
J. The parties to this Agreement are the United States, represented by the United States Department of Justice, and the State of Indiana, represented by Mitchell E. Daniels, Jr., Governor of Indiana, J. David Donahue, Commissioner of the Indiana Department of Correction, Stephen Carter, Attorney General of Indiana, acting through Deputy Attorney General, Richard Bramer, and their successors, contractors, and agents. The State shall ensure that all State agencies and departments take any actions necessary to comply with the provisions of this Agreement.
K. The State of Indiana enters into this Agreement because it is firmly committed to remedying the deficiencies identified in the United States’ letter of findings and providing legally adequate conditions, by instituting the substantive provisions required by this Agreement.
L. This Agreement does not constitute an admission of liability by the State.
M. This Agreement is not intended to have any preclusive effect except between the parties. Should the issue of the preclusive effect of this Agreement be raised in any proceeding other than this civil action, the parties agree to certify that this Agreement was intended to have no such preclusive effect.
N. This Agreement shall not be used against the State in any proceeding other than a proceeding between the United States and the State.
2


O. Nothing in this Agreement shall prevent the State from modifying, moving, or closing Logansport or South Bend, or developing alternative community placements for the youth currently in these facilities.
P. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. This Agreement is not intended to impair or expand the right of any person or organization to seek relief against the State or its officials, employees, or agents for their conduct; accordingly, the Agreement does not alter legal standards governing any such claims, including those under Indiana law.
II. DEFINITIONS
A. “Logansport” means the Logansport Juvenile Intake/Diagnostic Facility in Logansport, Indiana and any facility(ies) that may replace or supplement that facility.
B. “DOJ” means the United States Department of Justice, which represents the United States of America in this matter.
C. “Effective Date” means the date the Agreement is filed with the Court.
D. “The facilities” means Logansport and South Bend, collectively.
E. “IEP” means Individualized Education Program as defined by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1490, and the regulations promulgated thereunder.
F. “IDOC” means the Indiana Department of Correction.
G. “ILP” means Individual Learning Plan as defined by the No Child Left Behind Act of 2001 (Public Law 107-110) and the regulations promulgated thereunder.
H. “Include” or “including” means include, but not limited to or including, but not limited to.
I. “Implement” means to give practical effect and to achieve actual fulfillment by concrete measures, including appropriate training of relevant staff.
3

J. “Progress” means adequate yearly progress as defined by the No Child Left Behind Act of 2001(Public Law 107-110) and the regulations promulgated thereunder.
K. “Qualified mental health professional” means a mental health care provider licensed and sufficiently trained pursuant to the laws of the State of Indiana to provide the services he or she undertakes to provide.
L. “State” means the State of Indiana and IDOC, and their successors, contractors, and agents.
M. “South Bend” means the South Bend Juvenile Correctional Facility in South Bend, Indiana and any facility(ies) that may replace or supplement that facility.
N. “Train” means sufficiently instruct in the skills addressed, including ongoing assessment of the level of aptitude for instructional material that is required for compliance with the laws of the State of Indiana.
O. “Youth” means any juvenile or juveniles residing at the facilities during the operation of this Agreement.
III. CARE REQUIRED BY THE CONSTITUTION AND FEDERAL STATUTE
The purpose of this Agreement is to protect the constitutional rights of youth committed to the facilities. The terms and requirements of this Agreement shall be interpreted to be consistent with the measures necessary to protect the constitutional rights of the youth.
IV. THE STATE’S VOLUNTARY MEASURES TO ENSURE THE PROTECTION OF THE CONSTITUTIONAL RIGHTS OF ALL JUVENILES IN ITS CUSTODY
The State recognizes that the Department of Justice’s investigation was confined to the facilities identified in the DOJ’s September 9, 2005 findings. In recognition of those deficiencies and in the interest of adequately protecting the constitutional rights of all juveniles confined in the IDOC system, the State voluntarily agrees to implement the substantive remedial measures contained throughout this document, where appropriate, at all juvenile facilities operated by IDOC. The State further agrees to provide periodic, voluntary reports to DOJ regarding the progress of those improvements at facilities that are not the subject of this Agreement, including regular reports resulting from a partnership with IDOC and the Indiana Juvenile Justice Task Force. To facilitate comprehensive monitoring of IDOC’s compliance with this provision, the State will provide full access to all of its juvenile facilities at the
4


request of those monitors identified through a process agreed upon with the Indiana Juvenile Justice Task Force.
V. SUBSTANTIVE PROVISIONS
A. MENTAL HEALTH CARE
The following substantive provisions are intended to address the findings of the United States in connection with its investigation of, and apply only to, South Bend and Logansport.
1. The State shall ensure that adequate mental health care and treatment services are provided to youth in the facilities.
2. The State shall develop and implement policies and procedures, and practices to ensure that all youth admitted to the facilities are comprehensively screened by qualified mental health professionals in a timely manner utilizing reliable and valid measures. All youth committed to the State’s care shall receive a comprehensive mental health screen. Additional mental health services will be available by qualified mental health professionals to all youth needing such care. Available Mental Health Staff will include psychiatrists, psychologists, licensed clinical social workers, and licensed mental health counselors. Staffing patterns will be consistently assessed to assure appropriate numbers of staff at all facilities.
3. The State shall ensure that youth whose mental health screens indicate the possible need for mental health services receive timely, comprehensive, and appropriate assessments by qualified mental health professionals. Assessments shall be updated as new diagnostic and treatment information becomes available. An initial mental health screening will occur within the first 24 hours of entry to a juvenile facility. The screening will include an initial intake, medication review, and needs assessment. A follow-up mental health assessment and, if indicated, a psychiatric referral will occur within the first seven days of entry to a juvenile facility.
4. The State shall develop and implement policies and procedures to assure appropriate action when an intake screening indicates that a youth is taking, or prior to admission may have been prescribed, psychotropic medications. This shall include appropriate steps to contact the prescribing psychiatrist when necessary and referral to the facility’s psychiatrist for evaluation. A psychiatrist will be available to intake staff on a
5


twenty-four hour basis. Psychiatric referrals shall be made based on the intake assessment and whenever the youth has been treated with psychotropic medication within the past sixty days.
5. Each youth in need of psychiatric services, including monitoring of the use or discontinuation of psychotropic medications, shall be under the care of a licensed psychiatrist. The State shall maintain in its employ, and/or by contract, sufficient psychiatric services to fulfill the following functions:
a. Conduct needed psychiatric evaluations prior to placing a youth on, or discontinuing, psychotropic medications;
b. Monitor, as appropriate but at least monthly, all youth prescribed psychotropic medications for the efficacy and the side effects thereof. The psychiatrist shall consult with facility medical, counseling, and security staff;
c. Monitor youth whose psychotropic medications have been discontinued, and provide timely follow-up assessments to determine whether a return to treatment with psychotropic medications is appropriate;
d. Collaborate with treatment teams regarding youth under the psychiatrist’s care;
e. Provide individual counseling and psychotherapy when needed, in coordination with facility psychologists;
f. Evaluate and treat in a timely manner all youths referred as possibly needing psychiatric services; and
g. Provide adequate documentation of treatment in the facility medical records.
B. PROTECTION FROM HARM
The following substantive provisions are intended to address the findings of the United States in connection with its investigation of, and apply only to, South Bend.
1. The State shall, at all times, provide youth in the facility with reasonably safe conditions of confinement.
2. The State shall take reasonable measures, including those required by Indiana Code 16-21-8-5 and 31-33-5-4, to
6


protect youth in the facilities from physical harm and sexual abuse while those youth are in the State’s custody.
3. The State shall take reasonable measures to provide safe and appropriate housing for youth, including sex offenders.
4. The State shall ensure that there are sufficient numbers of adequately trained direct care and supervisory staff to supervise youth safely and to protect youth from harm.
5. The State shall implement comprehensive policies, procedures, and practices governing uses of force, ensuring that excessive force is not used on youth, taking into account the safety of staff, youth residents, and visitors.
6. The State shall develop and implement an adequate system for management review and, when deemed appropriate by management, investigation by senior management of uses of force, alleged child abuse, youth-on-youth violence, and alleged sexual contacts.
7. The State shall provide appropriate competency-based training to staff in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth.
8. The State shall implement policies, procedures, and practices to ensure that South Bend has a functional and responsive grievance system that ensures that youth have a reasonably safe environment.
C. SPECIAL EDUCATION
The following substantive provisions are intended to address the findings of the United States in connection with its investigation of, and apply only to, South Bend.
1. The State shall, at all times, provide all qualified youth with adequate special education in compliance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400, et seq., and regulations promulgated thereunder, and this Agreement.
2. The State shall designate a Director of Education to oversee the special education programs at South Bend. The Director shall meet minimum standards as specified by the State. The State shall provide the Director with sufficient staff and resources to perform the tasks
7


required by this Agreement, including:
a. Overseeing the special education programming at South Bend, including the development and implementation of policies, procedural manuals, and training programs;
b. Monitoring whether special education staffing and resources are sufficient to provide adequate special education services to youth at South Bend and to ensure compliance with this Agreement;
c. Developing and implementing a quality assurance program for special education services;
d. Developing and implementing an adequate vocational education program for youth with disabilities;
e. Developing and implementing a curriculum for special education instruction at South Bend;
f. Ensuring that special education teachers are appropriately licensed to teach assigned courses by requiring that all licensed teachers at the facility obtain certification in special education by the Indiana Department of Education within 180 days of the date of this Agreement;
g. Ensuring that all teachers at the facility obtain the status of “highly qualified” within their instructional area from the Indiana Department of Education by July 1, 2006;
h. Ensuring that all teachers at the facility develop and implement appropriate lesson plans for each student;
i. Ensuring that the appropriate facility supervisors at the facility regularly perform classroom observations; and
j. Ensuring that teachers at the facility who do not develop and implement appropriate lesson plans for each student are subjected to appropriate and regular performance reviews which may result in termination of employment.
3. The State shall ensure that all students who qualify for special education services receive such services within a reasonable time following intake.
4. The State shall develop and implement an education
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staffing plan to ensure adequate staff to comply with the terms of this Agreement. This plan shall provide for:
a. Sufficient access to instructional services by certified special education teachers and staff to provide all youth with the opportunity to attend school full-time and to obtain adequate educational services, and to provide teachers with sufficient time to plan lessons, grade assignments, and participate in special education meetings;
b. Sufficient psychologist services to provide psychologist participation in the development of IEPs, administration of psycho-educational assessments, consultation with teachers and staff, and individual counseling related specifically to issues in youth’s IEPs; and
c. Sufficient services of speech and language professionals, audiologists, and other specialized professionals to meet the related services needs specified in the IEPs.
5. Consistent with federal regulations, the State shall provide prompt and adequate screening of youth for special education needs and shall identify youth who are receiving special education in their home school districts or who may be eligible to receive special education services but have not been so identified in the past. Such services shall include:
a. Guidelines for interviewing youth upon admission to determine past receipt of special education services;
b. Protocols developed in conjunction with local school districts and the State Department of Education for expedited reporting of special education status of students entering South Bend, conducting adequate testing of youths’ substantive educational knowledge, and performing necessary vision and hearing tests;
c. Procedures identifying criteria under which staff or teachers must refer a student for evaluation for special education eligibility, including identifying criteria under which youth whose behavior has led to repeated exclusion from class must be referred for evaluation;
d. Policies describing the required activities of Student Support Team pre-referral and support team
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functions;
e. Policies describing the requirements for comprehensive evaluation procedures to determine eligibility for special education services; and
f. Policies describing the criteria for multidisciplinary team decision-making regarding eligibility for special education.
6. Individual Education Programs
a. The State shall, in a reasonable time period, create and/or implement an Individual Education Program (IEP), as defined in 34 C.F.R. 300.340, for each youth who qualifies for an IEP. As part of satisfying this requirement, the State shall conduct required annual reviews of IEPs, adequately document the provision of special education services, and comply with the requirements regarding parent, surrogate, and student participation in the IEP process. The State shall hold team meetings once per week or more often, if necessary, to develop or review IEPs for qualified special education students in accordance with federal regulations.
b. In developing or modifying the IEP, the State shall ensure that the IEP reflects the individualized needs of the youth and that services are provided accordingly. When the nature or severity of a youth’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily, the State shall provide an appropriate alternate education setting.
c. The State shall ensure that each developed or modified IEP include documentation of the team’s consideration of the youth’s need for related services and transition services. Nothing in this Agreement shall require the State to provide educational services to the youth after discharge from South Bend.
d. The State shall assess each child for necessary related services, address these needs in the IEP, and provide these services as often as determined necessary by the IEP team.
e. The State shall ensure that teachers follow each student’s IEP and, as applicable, his ILP and that each student shall demonstrate progress toward the
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benchmarks delineated within that individual student’s IEP and, as applicable, his ILP.
f. The State shall ensure that teachers who do not follow each student’s IEP and, as applicable, his ILP are subjected to appropriate and regular performance reviews that may result in termination of employment.
g. The State shall ensure that teachers whose student(s) do(es) not demonstrate progress toward(s) the benchmarks delineated within each student’s IEP and, as applicable, his ILP shall be subjected to appropriate and regular performance reviews that may result in termination of employment.
7. The State shall develop and implement adequate vocational education services for youth with disabilities.
8. Training and Quality Assurance
a. The Director shall design and implement annual inservice training requirements for special education staff of not less than four days per year, to enhance their ability to implement their duties under the provisions of this Agreement.
b. The Director shall be charged with quality assurance of all special education services at South Bend. The State shall develop and implement a written quality assurance and student performance assessment program. This program shall include a system of ongoing review of at least a representative sample of IEPs developed or modified at South Bend to monitor quality and assure compliance with the requirements of school policies and the IDEA.
c. The Director shall ensure that all special education teachers take the required steps to keep their educator licenses current and appropriate to the courses they are required to teach.
d. The Director shall ensure that an appropriate and regular employment evaluation process is in place to evaluate teachers whose students do not meet reasonable student performance goals.
VI. COMPLIANCE AND QUALITY ASSURANCE
A. The State shall maintain, revise and/or develop policies, procedures, protocols, training curricula, and practices as necessary to make them compliant with the provisions
11


of this Agreement. The State shall revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreement.
B. Written State policies, procedures and protocols that address the provisions of this Agreement regarding the following topics shall be submitted to DOJ for review within ninety calendar days of the execution of this Agreement: use of force/crisis management; minimum staffing ratios; investigations; housing of sex offenders; grievances; mental health screening and assessment; psychotropic medication management and monitoring; and special education services. DOJ shall approve and/or suggest revisions to these policies, procedures, and protocols within thirty days of receipt, unless a longer period is agreed upon by the parties.
C. The State shall develop and implement quality assurance programs for protection from harm, mental health care, and special education services.
D. The State shall develop and implement policies and procedures as necessary to address problems that are uncovered during the course of its quality assurance activities. The State shall develop and implement corrective action plans to address these problems.
VII. DOJ MONITORING AND ENFORCEMENT
A. DOJ shall have full and complete access to the facilities including facility records, staff, staff records, youth, youth records, meetings, meeting notes, and any such other information necessary for DOJ to fully evaluate the State’s compliance with the requirements of this Agreement. DOJ shall make periodic site visits to the facilities with appropriate notice to counsel for the State, and shall also have the right to conduct unannounced visits to the facilities. DOJ shall have the right to conduct confidential interviews with staff, youth, and former residents. DOJ shall routinely report its evaluation of the State’s compliance with the requirements of this Agreement. Neither the evaluations nor any confidential information or documents obtained pursuant to this paragraph shall be disseminated to any person not a party (or an employee or contractor of a party) to this Agreement, including the media, unless consented to by the parties or otherwise required by law. DOJ shall adhere to the requirements of federal law governing disclosure of confidential information by a government agency, department or employee including the Privacy Act, 5 U.S.C. § 552a, and the Freedom of
12


Information Act (“FOIA”), 5 U.S.C. § 552. In the event of a request for materials pursuant to FOIA, DOJ shall notify the State of all such requests prior to the release of all materials and agrees to assert all applicable exemptions in protecting materials in this matter. Such information may, however, be used in any proceedings to enforce the requirements of this Agreement.
B. DOJ shall, at its discretion, hire subject-matter consultants to assist in compliance review, including onsite tours. DOJ shall consult with the State prior to the selection of the subject-matter consultants and will give the State the opportunity to propose alternative subject-matter consultants prior to their selection, if necessary. DOJ will work with the State to address any concerns that the State may have regarding subject-matter consultants.
C. Within a reasonable time following receipt of written questions from the DOJ concerning the State’s compliance with this Agreement, IDOC shall provide the DOJ with written answers and any requested documents regarding the State’s compliance with the requirements of this Agreement.
D. The State shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The State shall also maintain (as long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
E. The State agrees that, within sixty days of the date of this Agreement, the State will provide the DOJ with a status report, including any supporting documentation, delineating all steps taken during the reporting period to comply with each substantive provision of this Agreement. The report shall also include a status report regarding: 1) youth arriving at the facilities with prescriptions for psychotropic medications and a summary of the evaluation, monitoring, and medication status of each youth; 2) progress reports on the hiring of personnel and summary of current staffing ratios; 3) incidents involving uses of force; 4) incidents involving assaults on youth; 5) a summary of submission and resolution of grievances; 6) a summary of completion and implementation of all IEPs; 7) copies of all quality assurance reports and analyses over the preceding sixty days. Thereafter, for the duration of the first year of this Agreement, the State will send a status report every sixty days to the DOJ. Thereafter, for the duration of the second year of this Agreement, the State will send a
13


status report every ninety days to the DOJ. Thereafter, for the duration of the third year of this Agreement, the State will send a status report every one hundred twenty days to the DOJ.
VIII. IMPLEMENTATION AND TERMINATION
A. The State shall provide information and training so that all current and future employees at the facilities understand and implement the terms of this Agreement.
B. The State shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement.
C. This Agreement shall constitute the entire integrated Agreement of the parties. With the exception of DOJ’s findings letter referenced in Section I.F of the Introduction hereof, and any DOJ technical assistance recommendations, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding.
D. This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors.
E. Upon execution of this Agreement, the DOJ shall file a complaint in the United States District Court for the Southern District of Indiana, and file contemporaneously a Joint Motion for Conditional Dismissal of the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the complaint upon the passage of three (3) years from the date of its filing or the State’s earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until three (3) years have passed or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision.
F. If the DOJ believes that the State has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to instituting judicial action to enforce the terms of this Agreement, give written notice of the failure to the State. The State shall have sixty days from the date of such notice to cure the failure, or such
14


additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, in the event that the DOJ determines that the failure has not been cured, the DOJ may institute judicial action without further notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States will notify the State, and the cure period described herein will be truncated to forty-eight (48) hours, before instituting judicial action. The DOJ commits to work in good faith with the State to avoid enforcement actions.
G. If the United States institutes judicial enforcement of this Agreement, the State reserves the right to raise as a defense exigent circumstances in the State, including, but not limited to: economic recession, necessary diversion of resources and personnel in the event of widespread threat to public health, or act of war.
H. Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that any defense raised by the State relieves the State of its obligation under this Agreement.
I. This Agreement resolves the United States’ current investigation of the Logansport, South Bend, and Plainfield pursuant to CRIPA and Section 14141. The United States shall not seek additional measures or requirements in enforcing this Agreement.
J. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement.
K. To the extent that the State’s implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), shall be applied.
L. The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
M. This Agreement shall terminate definitively and unconditionally no later than three years from the effective date.
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1. The Agreement may end on a section-by-section, and facility-by-facility basis earlier than three years from the effective date if the State has substantially complied with the provisions of that section of the Agreement at a facility for at least twelve months.
2. The burden shall be on the State to demonstrate that it has complied substantially with the Agreement. A finding of substantial compliance may not be unreasonably withheld.
3. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
4. The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute. The State’s unilateral implementation of best practices will not modify the standard.
N. The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court may be sought.
O. If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within a reasonable time after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under this Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
P. No person reporting conditions which may constitute a violation of laws or the Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting. See 42 U.S.C. 1997d.
Q. All subheadings in this Agreement are written for convenience of locating individual provisions. If
16


questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision. R. In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
17


FOR THE UNITED STATES:

/_s_/_W_a_n _J_. _K_im______________ WAN J. KIM Assistant Attorney General Civil Rights Division
_/_s/__Br_a_dl_e_y_J_._S_c_hl_o_zm_a_n______ BRADLEY J. SCHLOZMAN Principal Deputy Assistant Attorney General Civil Rights Division
_/_s_/ _S_ha_n_et_t_a_Y_._C_u_tl_a_r_______ SHANETTA Y. CUTLAR Chief Special Litigation Section
_/_s/__Da_n_ie_l_H_.__We_i_ss__________ DANIEL H. WEISS Deputy Chief Special Litigation Section
/s/ Jacqueline Cuncannan /s/ Beth Hansher
JACQUELINE CUNCANNAN BETH HANSHER Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530

18


FOR THE STATE OF INDIANA:
_/_s/__Mi_t_ch_e_l_l _E_. _D_an_i_el_s_,_J_r_. ___ MITCHELL E. DANIELS, Jr. Governor
_/_s/__J.__Da_v_i_d _D_on_a_hu_e_________ J. DAVID DONAHUE Commissioner Indiana Department of Correction

Date: February 8, 2006

For Form and Legality:
/s/ Stephen Carter
_______________________ (for) STEPHEN CARTER, Attorney General

19


 
 Case: 1:06-cv-201 As of: 08/02/2013 06:02 PM EDT 1 of 2
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:06−cv−00201−RLY−TAB

CLOSED

UNITED STATES OF AMERICA v. STATE OF INDIANA et al Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Tim A. Baker Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/08/2006 Date Terminated: 02/14/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by Amin Aminfar U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 305−3347 Fax: (202) 514−2012 Email: amin.aminfar@usdoj.gov ATTORNEY TO BE NOTICED

Jacqueline Cuncannan UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 616−2556 Fax: (202) 514−4883 Email: jacqueline.cuncannan@usdoj.gov ATTORNEY TO BE NOTICED

Susan W. Brooks IVY TECH COMMUNITY COLLEGE 50 W. Fall Creek Parkway North Drive Indianapolis, IN 46208 ATTORNEY TO BE NOTICED

V. Defendant STATE OF INDIANA
Defendant MITCHELL E. DANIELS, JR. Governor Defendant INDIANA DEPARTMENT OF CORRECTIONS

represented by Thomas D. Quigley OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317)233−3645 Fax: (317)233−4948 Email: tquigley@idoc.in.gov ATTORNEY TO BE NOTICED
represented by Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-201 As of: 08/02/2013 06:02 PM EDT 2 of 2

Defendant J. DAVID DONAHUE Commissioner
Defendant KELLIE WHITCOMB Superintendent, Logansport Juvenile Intake/Diagnostic Facility
Defendant DAWN BUSS Superintendent, South Bend Juvenile Correctional Facility

represented by Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas D. Quigley (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/08/2006 02/08/2006 02/08/2006 02/08/2006 02/14/2006 02/14/2006
01/30/2009
02/02/2009 02/02/2009 02/03/2009 02/17/2011 02/18/2011

# Docket Text
1 COMPLAINT against all defendants, filed by Plaintiff, UNITED STATES OF AMERICA.(SDP, ) (Entered: 02/08/2006)
2 CIVIL COVER SHEET filed by Plaintiff, UNITED STATES OF AMERICA. (SDP, ) (Entered: 02/08/2006)
3 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (SDP, ) (Entered: 02/08/2006)
4 JOINT MOTION FOR CONDITIONAL DISMISSAL, filed by all parties. (Attachments: # 1 Text of Proposed Order)(SDP, ) Additional attachment(s) added on 2/8/2006 (SDP, ). (Entered: 02/08/2006)
5 ORDER granting 4 Motion to Dismiss . Signed by Judge Richard L. Young on 2/14/06. (CLL, ) (Entered: 02/14/2006)
CLOSED DISMISSED administratively without prejudice upon the passage of 3 years from the date of its filing or the State's earlier substantial compliance with the terms of the Settlement Agreement. Signed by Judge Richard L. Young on 2/14/06. (CLL, ) (Entered: 02/14/2006)
6 NOTICE of Appearance by Thomas D. Quigley on behalf of Defendants DAWN BUSS, STATE OF INDIANA, MITCHELL E. DANIELS, JR, INDIANA DEPARTMENT OF CORRECTIONS, J. DAVID DONAHUE, KELLIE WHITCOMB. (Quigley, Thomas) (Entered: 01/30/2009)
7 NOTICE of Appearance by Amin Aminfar on behalf of Plaintiff UNITED STATES OF AMERICA. (Aminfar, Amin) (Entered: 02/02/2009)
8 Joint MOTION to Amend/Correct Order of Conditional Dismissal, filed by Plaintiff UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(Cuncannan, Jacqueline) (Entered: 02/02/2009)
9 ORDER granting 8 Motion to Amend/Correct. Amended Order of Conditional Dismissal entered. Signed by Judge Richard L. Young on 02/03/2009. (PG) (Entered: 02/04/2009)
10 ENTRY and Order Directing Dismissal of Action. Signed by Judge Richard L. Young on 2/17/2011.(PG) (Entered: 02/18/2011)
11 JUDGMENT. This cause of action is dismissed with prejudice. Signed by Judge Richard L. Young on 2/18/2011.(PG) (Entered: 02/18/2011)

Case #: 1:06−cv−00201−RLY−TAB