IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)CIVIL ACTION NO:

)06-CV-673-TCK-FHM

1. THE STATE OF OKLAHOMA;

)

2. THE HONORABLE BRAD HENRY,

)

Governor of the State of Oklahoma,

)

in his official capacity only;

)

3. THE OKLAHOMA OFFICE OF

)

JUVENILE AFFAIRS;

)

4. ROBERT E. CHRISTIAN, Executive Director )

of the Oklahoma Office of

)

Juvenile Affairs, in his official )

capacity only;

)

5. THE OKLAHOMA BOARD OF JUVENILE AFFAIRS; )

6. LONELIA L. SIMMONS, Chairperson of the )

Oklahoma Board of

)

Juvenile Affairs, in her

)

official capacity only; and

)

7. JIMMY MARTIN, Superintendent of

)

the L.E. Rader Center,

)

in his official capacity only,

)

)

Defendants.

)

)

COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA (“Plaintiff”), by

its undersigned attorneys, hereby alleges upon information and

belief:

1. The Attorney General files this Complaint on behalf of

the United States, pursuant to the pattern or practice provision

of the Violent Crime Control and Law Enforcement Act of 1994,

42 U.S.C. § 14141, to enjoin the named Defendants from depriving

youths confined in Oklahoma’s L.E. Rader Center in Sand Springs, Oklahoma (“Rader”) 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 pursuant to 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 United States District Court for the Northern District of Oklahoma is proper pursuant to 28 U.S.C. § 1391.
Defendants 5. Defendant State of Oklahoma (“State”) is responsible for the administration of juvenile justice in the State and operates, or contracts for the operation of, all secure juvenile justice facilities in the State. This action concerns the administration of Rader, which houses youth in State custody who are confined for periods of time established by the juvenile and district courts. 6. Defendant Brad Henry is the Governor of the State of Oklahoma, and, in that capacity, has responsibility for the operation of Rader. 7. Defendant Oklahoma Office of Juvenile Affairs (“OJA”) establishes the general policy to be followed by its juvenile institutions and contractors; provides leadership in developing
- 2 -

programs to rehabilitate youth committed to State custody; and is responsible for the promulgation of all rules and regulations necessary and appropriate to the administration and operation of Rader.
8. Defendant Robert E. Christian is the Executive Director of OJA, which has responsibility for overseeing the operation of Rader.
9. Defendant Oklahoma Board of Juvenile Affairs acts as the governing board for OJA to implement and direct the mandates of the Oklahoma Legislature with respect to the custody, care, and supervision of juveniles adjudicated to be delinquent or in need of supervision.
10. Defendant Lonelia L. Simmons is the Chairperson of the Oklahoma Board of Juvenile Affairs, which has responsibility for overseeing the operation of Rader.
11. Defendant Jimmy Martin is the Superintendent of Rader and is responsible for the administration and day-to-day operations of Rader.
12. The individual Defendants named in paragraphs 6, 8, 10, and 11 above are officers of the State of Oklahoma and are sued in their official capacity only.
Factual Allegations 13. Defendants are legally responsible, in whole or in part, for the operation of Rader and for the health and safety of the youths confined at Rader.
- 3 -

14. Defendants are governmental authorities with responsibility for the administration of juvenile justice or the incarceration of juveniles within the meaning of 42 U.S.C. § 14141.
15. Defendants are obligated to operate Rader in a manner that does not infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of individuals confined at Rader.
16. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
17. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at Rader are adequately protected from harm and from undue risk of harm in the following specific respects, among others:
a. protection from staff abuse; b. protection from abuse by other youths at Rader; c. protection from harm and serious risk of harm
caused by sexually inappropriate conduct and sexually inappropriate relationships between staff and youth and among youth at Rader; d. protection from self-injurious behavior; and e. protection from harm and serious risk of harm caused by inadequate management of psychotropic medications at Rader.
- 4 -

18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide adequate mental health care and services to youth at Rader in the following specific respects, among others:
a. the provision of adequate screening and assessments;
b. the provision of adequate treatment planning; c. the provision of adequate psychiatric services; d. the provision of adequate psychological services;
and e. the provision of adequate transition planning.
Violations Alleged 19. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 18 as fully set forth herein. 20. The acts and omissions alleged in paragraphs 17 and 18 constitute a pattern or practice of conduct that violates the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of youths confined at Rader. 21. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in paragraphs 17 and 18 that deprive youths confined at Rader of rights, privileges, or immunities secured or protected by the
- 5 -

Constitution of the United States and federal law, and will cause irreparable harm to these youths.
PRAYER FOR RELIEF 22. The Attorney General is authorized, pursuant to 42 U.S.C. § 14141, to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order: a. Declaring that the acts, omissions, and practices of Defendants set forth in paragraphs 17 and 18 above constitute a pattern or practice of conduct that deprives Rader’s youths of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States; b. Permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 17 and 18 above, and requiring Defendants to take such actions as will ensure that lawful conditions of confinement are afforded to youths at Rader; and c. Granting such other and further equitable relief as the Court may deem just and proper.
- 6 -

Respectfully submitted,

/s/ David E. O’Meilia DAVID E. O’MEILIA United States Attorney Northern District of Oklahoma Attorney for Plaintiff

/s/ Wan J. Kim WAN J. KIM Assistant Attorney General Civil Rights Division Attorney for Plaintiff (Signed by Filing Attorney with permission of Wan J. Kim)

/s/ Wyn Dee Baker

/s/ Shanetta Y. Cutlar

WYN DEE BAKER, OBA No. 465 SHANETTA Y. CUTLAR

Assistant United States

Chief

Attorney

Special Litigation Section

Attorney for Plaintiff

Attorney for Plaintiff

United States

(Signed by Filing Attorney with

Attorney’s Office

permission of Shanetta Y. Cutlar)

Northern District of Oklahoma

110 West 7th Street

Suite 300

/s/ Judy C. Preston

Tulsa, Oklahoma 74119

JUDY C. PRESTON

(918) 382-2700

Deputy Chief

(Signed by Filing Attorney Special Litigation Section

with permission of

Attorney for Plaintiff

Wyn Dee Baker)

(Signed by Filing Attorney with

permission of Judy C. Preston)

Date: December 15, 2006

/s/ Laura L. Coon LAURA L. COON FORTUNE A. GLASSE JE YON JUNG Trial Attorneys Attorneys for Plaintiff U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255

- 7 -

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)CIVIL ACTION NO:

)06-CV-673-GKF-FHM

1. THE STATE OF OKLAHOMA;

)

2. THE HONORABLE BRAD HENRY,

)

Governor of the State of Oklahoma,

)

in his official capacity only;

)

3. THE OKLAHOMA OFFICE OF

)

JUVENILE AFFAIRS;

)

4. ROBERT E. CHRISTIAN, Executive Director )

of the Oklahoma Office of

)

Juvenile Affairs, in his official )

capacity only;

)

5. THE OKLAHOMA BOARD OF JUVENILE AFFAIRS; )

6. LONELIA L. SIMMONS, Chairperson of the )

Oklahoma Board of

)

Juvenile Affairs, in her

)

official capacity only; and

)

7. JIMMY MARTIN, Superintendent of

)

the L.E. Rader Center,

)

in his official capacity only,

)

)

Defendants.

)

)

AMENDED COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA (“Plaintiff”), by

its undersigned attorneys, hereby alleges upon information and

belief:

1. The Attorney General files this Complaint on behalf of

the United States, pursuant to the pattern or practice provision

of the Violent Crime Control and Law Enforcement Act of 1994,

42 U.S.C. § 14141, to enjoin the named Defendants from depriving

youths confined in Oklahoma’s L.E. Rader Center in Sand Springs, Oklahoma (“Rader”) 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 pursuant to 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 United States District Court for the Northern District of Oklahoma is proper pursuant to 28 U.S.C. § 1391.
Defendants 5. Defendant State of Oklahoma (“State”) is responsible for the administration of juvenile justice in the State and operates, or contracts for the operation of, all secure juvenile justice facilities in the State. This action concerns the administration of Rader, which houses youths in State custody who are confined for periods of time established by the juvenile and district courts. 6. Defendant Brad Henry is the Governor of the State of Oklahoma, and, in that capacity, has responsibility for the operation of Rader. 7. Defendant Oklahoma Office of Juvenile Affairs (“OJA”) establishes the general policy to be followed by its juvenile
- 2 -

institutions and contractors; provides leadership in developing programs to rehabilitate youths committed to State custody; and is responsible for the promulgation of all rules and regulations necessary and appropriate to the administration and operation of Rader.
8. Defendant Robert E. Christian is the Executive Director of OJA, which has responsibility for overseeing the operation of Rader.
9. Defendant Oklahoma Board of Juvenile Affairs acts as the governing board for OJA to implement and direct the mandates of the Oklahoma Legislature with respect to the custody, care, and supervision of juveniles adjudicated to be delinquent or in need of supervision.
10. Defendant Lonelia L. Simmons is the Chairperson of the Oklahoma Board of Juvenile Affairs, which has responsibility for overseeing the operation of Rader.
11. Defendant Jimmy Martin is the Superintendent of Rader and is responsible for the administration and day-to-day operations of Rader.
12. The individual Defendants named in paragraphs 6, 8, 10, and 11 above are officers of the State of Oklahoma and are sued in their official capacity only.
- 3 -

Factual Allegations 13. Defendants are legally responsible, in whole or in part, for the operation of Rader and for the health and safety of the youths confined at Rader. 14. Defendants are governmental authorities with responsibility for the administration of juvenile justice or the incarceration of juveniles within the meaning of 42 U.S.C. § 14141. 15. Defendants are obligated to operate Rader in a manner that does not infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of individuals confined at Rader. 16. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law. 17. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youths at Rader are adequately protected from harm and from undue risk of harm in the following specific respects, among others:
a. protection from staff abuse; b. protection from abuse by other youths at Rader; c. protection from harm and serious risk of harm
caused by sexually inappropriate conduct and sexually inappropriate relationships between staff and youths and among youths at Rader;
- 4 -

d. protection from self-injurious behavior; and e. protection from harm and serious risk of harm
caused by inadequate management of psychotropic medications at Rader. 18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide adequate mental health care and services to youths at Rader in the following specific respects, among others: a. the provision of adequate screening and assessments; b. the provision of adequate treatment planning; c. the provision of adequate psychiatric services; d. the provision of adequate psychological services; and e. the provision of adequate transition planning. 19. Defendants are legally responsible, in whole or in part, for ensuring that youths confined at Rader receive an education commensurate with their needs and abilities. 20. Defendants receive federal financial assistance and, as such, are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504"), and the regulations promulgated thereunder. 21. Youths confined at Rader include youths with specific learning disabilities who fall within the meaning of “child with
- 5 -

a disability” as defined in the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1401(3)(A), and “individual with a disability,” as defined in Section 504, 29 U.S.C. § 705(20).
22. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide qualified youths confined at Rader with access to adequate special education and related services pursuant to the IDEA, 20 U.S.C. § 1401, and Section 504, 29 U.S.C. § 794.
Violations Alleged 23. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 22 as fully set forth herein. 24. The acts and omissions alleged in paragraphs 17 and 18 constitute a pattern or practice of conduct that violates the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of youths confined at Rader. 25. The acts and omissions alleged in paragraphs 19 and 21-22 constitute a pattern or practice of conduct that violates the federal rights, as protected by the IDEA, 20 U.S.C. § 1401, et seq., and the regulations promulgated thereunder, of youths confined at Rader.
- 6 -

26. The acts and omissions alleged in paragraphs 19-22 constitute a pattern or practice of conduct that violates the federal rights, as protected by Section 504, 29 U.S.C. § 794, et seq., and the regulations promulgated thereunder, of youths confined at Rader.
27. Unless restrained by this Court, Defendants will continue to engage in the acts and omissions set forth in paragraphs 17-22 that deprive youths confined at Rader of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these youths.
PRAYER FOR RELIEF 28. The Attorney General is authorized, pursuant to 42 U.S.C. § 14141, to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order: a. Declaring that the acts, omissions, and practices of Defendants set forth in paragraphs 17-22 above constitute a pattern or practice of conduct that deprives Rader’s youths of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States;
- 7 -

b. Permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 17-22 above, and requiring Defendants to take such actions as will ensure that lawful conditions of confinement are afforded to youths at Rader; and
c. Granting such other and further equitable relief as the Court may deem just and proper.
Respectfully submitted,

DAVID E. O’MEILIA United States Attorney Northern District of Oklahoma Attorney for Plaintiff

s/ Wan J. Kim WAN J. KIM Assistant Attorney General Civil Rights Division Attorney for Plaintiff (Signed by Filing Attorney with permission of Wan J. Kim)

s/ Wyn Dee Baker

s/ Shanetta Y. Cutlar

WYN DEE BAKER, OBA No. 465 SHANETTA Y. CUTLAR

Assistant United States

Chief

Attorney

Special Litigation Section

Attorney for Plaintiff

Attorney for Plaintiff

United States

(Signed by Filing Attorney with

Attorney’s Office

permission of Shanetta Y. Cutlar)

Northern District of Oklahoma

110 West 7th Street

s/ Judy C. Preston

Suite 300

JUDY C. PRESTON

Tulsa, Oklahoma 74119

Deputy Chief

(918) 382-2700

Special Litigation Section

(Signed by Filing Attorney Attorney for Plaintiff

with permission of

(Signed by Filing Attorney with

Wyn Dee Baker)

permission of Judy C. Preston)

s/ Laura L. Coon LAURA L. COON

- 8 -

JE YON JUNG STACEY K. GRIGSBY Trial Attorneys Attorneys for Plaintiff U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255
- 9 -

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA,
Plaintiff,
vs.
THE STATE OF OKLAHOMA; THE HONORABLE BRAD HENRY, Governor of the State of Oklahoma, in his official capacity only; THE OKLAHOMA OFFICE OF JUVENILE AFFAIRS; ROBERT E. CHRISTIAN, Executive Director of the Oklahoma Office of Juvenile Affairs, in his official capacity only; THE OKLAHOMA BOARD OF JUVENILE AFFAIRS; LONELLIA L. SIMMONS, Chairperson of the Oklahoma Board of Juvenile Affairs, in her official capacity only; and JIMMY MARTIN, Superintendent of the L.E. Rader Center, in his official capacity only,
Defendants.

Case No. 06-CV-673-GKF-FHM

PROTECTIVE ORDER Pursuant to the Federal Rules of Civil Procedure, and for purposes of protecting the rights of privacy of certain individuals against unreasonable disclosure of information pertaining to them, IT IS HEREBY ORDERED as follows: 1. The parties hereto shall adhere to this Protective Order t o protect the confidentiality and privacy interests of ce rtain current and former State employ ees’ identifying information and certain information identifying current or former residents of Rader. This Protective Order binds only the parties to this litigation and other persons or entities who receive materials protected by the Protective Order as authorized herein in the course of the litigation. This Protective Order is not intended to expand the access of

persons to information to which they would not otherwise have access to under law, or to restrict the access of persons to information to which they otherwise would properly have legal access.
2. Names, social security numbers, addresses, photographs or electronic images and any other information that would personally identify current or former residents of Rader shall be subject to the conditions set forth in this Protective Order.
3. Information included in ¶¶ 1 and 2 above shall be treated as confidential by the parties, and shall not, except as provided below or with the consent of the parties , consent of the subject former or current State employee, consent of the subject current or former resident, if capable of providing cons ent, or consent of the current or former resident’s parent or guardian, or by Court or der, be shared with any entities except the following: (a) the parties and officers and employees of the parties; (b) the parties’ counsel and employees assisting counsel in this case ; (c) consultants, experts, or other persons retained in good faith to assist the parties or the parties’ counsel in this case; (d) court reporters recording testimony at trial or in any deposition in this case; (e) persons noticed for depositions or potential witnesses to the extent reasonably necessary in preparing to testify in this case; (f) the Court, as part otfhe proceedings in this case; and (g) any person designated by the Court in theinterests of justice, upon such terms as the Court may deem proper.
4. Should any party desire to disclose confidential information to agencies, entities or persons not listed herein, and be unable to obtain consent of the other parties, the party seeking disclosure may por ceed by motion to obtain a Court Order for

such disclosure. The motion should advisewhether expedited treatment of the request to disclose confidential information is required.
5. Defendants shall be responsible for placing upon any documents that they believe contain confidential information a header at the top of the document and a footer at the bottom of the documentwith the following language: “Designated Confidential by the State of Oklahoma - FOR USE ONLY IN USA v. Oklahoma, State of et al CIV 06-673 1USvOK000001.”
6. Documents exchanged in this case which have been erroneously marked with a confidential information header and footer bearing the case number CIV 06-579 shall be subject to the terms of this Protective Order.
7. The United States shall adhere to the requirements ofFederal law, including the Freedom of Information Act (“FOIA”), 5 U.S. C. § 552. In the event of a request pursuant to FOIA for documents containing conidf ential materials, the United States agrees to assert all applicable exemptions in protecting any such confidential materials, including 5 U.S.C. § 552(b)(7)(A), (b)(6), (b)(7C), and (b)(7)(D).
8. If any information included in ¶ 2 is used as an ex hibit to a court filing or admitted into evidence as an exhibit at trial, the parties shall either redact or otherwise obscure the name or names of the individual(s) and substitute a pseudonym and/or other code, or file the material under seal of the Court.
9. The parties shall ensure thatthe provisions of thisProtective Order are made known to all individuals involved in this case and all authorized individuals who receive protected information. The attorneys of record are responsible for employing reasonable

measures to control, consistent with this Order, duplication of, access to, and distribution of protected information.
10. Any party to this Protec tive Order may challenge any designation as “confidential” by filing a motion seeking to have the protected material made public. Each party reserves the right to move to modify the terms of this Protective Order at any time, and each party reserves the right to oppose any m otion to modify the terms of this Protective Order.
11. Except for the limitations outlined in ¶ 3 above, it is further ordered that confidential information shall be used solely for this case and no other purpose without leave of Court and notice to the party w ho produced the document and designated it as confidential.
SO ORDERED this 1st day of June, 2007.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA,
Plaintiff,
vs.
THE STATE OF OKLAHOMA; THE HONORABLE BRAD HENRY, Governor of the State of Oklahoma, in his official capacity only; THE OKLAHOMA OFFICE OF JUVENILE AFFAIRS; ROBERT E. CHRISTIAN, Executive Director of the Oklahoma Office of Juvenile Affairs, in his official capacity only; THE OKLAHOMA BOARD OF JUVENILE AFFAIRS; LONELLIA L. SIMMONS, Chairperson of the Oklahoma Board of Juvenile Affairs, in her official capacity only; and JIMMY MARTIN, Superintendent of the L.E. Rader Center, in his official capacity only,
Defendants.

Case No. 06-CV-673-GKF-FHM

ORDER The United States’ Motion to Compel Entry Upon Land [Dkt. 68] and the S tate of Oklahoma’s Motion for A Protective Order [Dkt. 86] are before the undersigned United States Magistrate Judge for decision. On June 20, 2007, a hearing was held to address the issues raised by these motions. The motions relate to the United States’ request to “inspect” the L.E. Rader Center. The inspections are to be conducted by the United States’ experts and are to include ex parte interviews with Rader Center staff and residents. The State of Oklahoma does not object to the “inspection” but s eeks the c ourt’s protection regarding aspects of the inspection. Prior to the hearing counsel were able to resolve many of the issues relating

to the inspection. Given the somewhat unusual nature of this case, such communication and cooperation between counsel is essential and commended by the Court.
At the hearing counsel for ht e parties represented that ht e following issues remained unresolved: 1) whether the USA would be permitted to conduct one or two inspections of the Rader Center; 2) whether the USA would be required to record interviews of staff and residents conducted during the inspection; and 3) whether the USA would be required to pay the Rader Center’s cost of providing escorts for the various groups participating in the inspection.1
Pursuant to Fed.R.Civ.P. 26(c)(2) t he court may make any order which justice requires to protect a party or person fr om undue burden or expense, including that discovery may be had only on specified termsand conditions. The undersigned makes the following order to govern the United States’ inspection of the Rader Center.
Number of Inspections of the Rader Center The United States repres ented that it has engaged seven different experts to participate in the inspection of the Rader Center. However, only five experts are available to participate during the week of July 16, 2007. The other two expertsare available during the week of August 2, 2007. There is no week when all seven experts are available. The United States represented that the experts operate independently and will address different areas of the Rader Center operation. The State of Oklahoma objects to accommodating
1 There are also unresolved issues concerning the scheduling logistics of the inspections and interviews of youth represented by private counsel. Counsel indicated that those issues would likely be resolved between the parties without court intervention.
2

more than one inspection, citing the cost of the additional inspection and disruption to the operation of the institution.
Although it presents a closecase, based on the information presented the Court will permit the United States to conduct two inspectoi ns. In reaching this conclusion the Court accepts the representations by Plaintiff’s counsel that they used their best efforts to avoid the need for multiple inspe ctions and that t hey will continue to use their best efforts to reduce the burden and expense of the inspecti ons on the Rader Center. The Court has also considered the importance of the inspections to the United States’ case.
The United States will be p ermitted to c onduct inspections of the Rader Center during the week of July 16, 2007, and during the week of August 2, 2007, under the terms set out herein or otherwise negotiated by the parties. Asrepresented by the United States at the hearing, the August 2 visit will invo lve only two experts and will be condu cted as expeditiously as possible and with as little overlap of the earlier visit as possible.
Recording of Interviews The parties have agreed that the United States’ experts will conduct interviews of Rader Center residents and staff in order toenable them to form their opinions. The State of Oklahoma has requested that all interviewsconducted during the inspection be recorded. The State reasons that the substantive content of interviews will become discoverable in the event that the interviews form the basisof an opinion offered byan expert. The United States objects to recording the interviews and argues that there is no legal basis for requiring it to create work product. The United States points outhat the State of Oklahoma can obtain the same information by interviewing the witnesses itself and that the experts’ notes and recollection of the interviews at deposition will provide a sufficient record.
3

The inspection is being conducted under the authority of Fed.R.Civ.P. 34 which

does not specifically address whether ex parte interviews are permitted under the rule or

if permitted whether they should be recorded. These issues are wit hin the court’s

discretion. The United States’ inspection and ex parte interviews with staff and residents

are being permitted because, as a practical matter, the inspection is a reasonable use of

the parties’ time and resources to obtain information relevant to the c ase in a manner

consistent with the needs of the case, the importance of theissues at stake in the litigation

and the importance of the pr oposed discovery in resolving the issues. Fed.R.Civ.P.26

(b)(2)(C)(iii). In the same vein, in view of

the fact that the interviews are being

accommodated by the State of Oklahoma and in view of the likelihood that some of those

interviews will become discoverable to the extent they form the basis of expert opinions,

the Court sees recording the interviews as a reasonable use of the parties’ res ources to

ensure that the s ubstance of the interviews is accurately preserved. 2 Furthermore, the

recording of interviews will not result in anyinvasion of attorney thought processes or work

product because the only way a recorded interview will become discoverable is if the

interview is relied on by an expert to form the basis of an opinion offered in this case.

There is, therefore, no reasonable basis for t he United States to object to recording the

Rader Center interviews. There is no potential for prejudice to the United States’ case in

preserving an accurate record of ht e interviews to aid in the seacrh for the truth in this case.

2 The Court views the expert interv iews with Rader Center staff and residents to be conceptually similar to other examinations or testing performed on the subject of a lawsuit by experts. In such situations the court has the discretion to require the testing tobe recorded, or to have anopponent’s expert or attorney present. Requiring the United States to record the Rader Center interviews is minimally intrusi ve and burdensome yet serves the truth-finding role of this litigation.
4

The United States is hereby directed to electronically record all interviews of Rader Center staff and residents conducted during the inspections authorized by this Order.
Reimbursement for Cost of Escorts During Inspections The United States’ July discovery visitwill involve approximately twelve people who will divide up into five groups to conduct interviwe s and inspect the facility. The August visit will involve two such groups. The Court is persuaded that since the Rader Center is a maximum security facility, it will be necessaryfor each group to be escorted throughout the time spent at the facility. The State has represented that it intends to u se police or personnel not otherwise scheduled to serve as escorts at a cost of $10 to $12 per hour. The Court finds that the cost of the escorts is a necessary expense, but an undue burden for the State of Oklahoma to bear to accommodate the discover y needs of the United States. Given the numberof groups visiting the facility and the duration of the visits it is appropriate to shift the cost of providing escorts at the rate of $10 to $12 per hour to the groups visiting the Rader Center on behalf of the United States as permitted by this Order.
CONCLUSION The United States’ Motion to Compel En try Upon Land [Dkt. 68] and the State of Oklahoma’s Motion for A Protective Order [Dkt. 86] are GRANTED in PART and DENIED in PART, as specified herein. SO ORDERED this 22nd day of June, 2007.
5

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

~

)

)

STATE OF OKLAHOMA, et al. )

)

Defendants.

)

06-CV-673-GKF-FHM

CONSENT DECREE
I. INTRODUCTION
1. This Consent Decree ("Consent Decree") resolves litigation concerning protection from hann, prevention of suicide and self-hann, mental health care, and special education services in United States v. State of Oklahoma, et aI., 06-cv-673-GKF-FHM (N.D. Okla. 2006). This litigation concerns conditions of confinement at the L.E. Rader Center ("Rader") in Sand Springs, Oklahoma, and was brought pursuant to the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141 ("Section 14141").
2. On March 31, 2004, the United States notified State of Oklahoma ("State") officials of its intent to investigate conditions of confinement at Rader pursuant to the Civil Rights ofInstitutionalized Persons Act ("CRlPA"), 42 U.S.C. § 1997, and Section 14141.
3. On June 8, 2005, the United States issued a findings letter pursuant to 42 U.S.C. § 1997(a)(I), which alleged that certain conditions at Rader violated the constitutional rights ofjuveniles confmed at Rader.
4. The purpose of this Consent Decree is to resolve the protection from hann, prevention of suicide and self-hann, mental health care, and special education claims in this litigation.

5. The Defendants in this action are the State of Oklahoma; the Oklahoma Office of Juvenile Affairs ("OJA"); the Oklahoma Board of Juvenile Affairs; Brad Henry, Governor of Oklahoma; Robert E. Christian, Executive Director of the Office of Juvenile Affairs; Charlie Jackson, Chainnan of the Oklahoma Board of Juvenile Affairs; Everett Gomez, Superintendent ofthe L.E. Rader Center; and their successors, contractors and agents.
6. This Consent Decree is between the Plaintiff and two of the Defendants, the State of Oklahoma and the Office of Juvenile Affairs (collectively "Parties"). All remaining Defendants are not parties to this Consent Decree and no finding by the Court in relation to this Consent Decree shall be construed as a finding against the Defendants, except the State of Oklahoma and the Office of Juvenile Affairs.
7. For the purposes of the Consent Decree only and in order to settle this matter, the Parties stipulate that this Consent Decree complies in all respects with the provisions ofthe Prison Litigation Reform Act, 18 U.S.C.§3626(a) ("Stipulation").
8. The issue ofliability has not been litigated and in the event that this Consent Decree is terminated prior to completion, the Plaintiff and all Defendants agree that the issues regarding the alleged violations will be litigated in full and that this Consent Decree is not binding on the Court with regard to those issues.
9. This Consent Decree and Stipulation is not intended to have any preclusive effect except between the Parties during the term of the Consent Decree. Should the issue of the preclusive effect of this Consent Decree be raised, the Parties agree to certify that this Consent Decree was intended to have no such preclusive effect.
10. The United States and the State of Oklahoma stipulate and agree that all of the prospective relief in this Consent Decree is narrowly drawn and extends no further than necessary.
11. No person or entity is intended to be a third-party beneficiary of the provisions of this Consent Decree for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or
2

right as a beneficiary or protected class under this Consent Decree. This Consent Decree is not intended to impair or expand the right of any person or organization to seek relief against the State, OJA, or State officials, employees, or agents for their conduct or the conduct of OJA employees; accordingly, this Consent Decree does not alter legal standards governing any such claims, including those under Oklahoma law.
12. Nothing in this Consent Decree shall prevent the State from modifying or closing Rader, or developing alternative placements for the youth currently in the facility.
13. The United States does not concede that the use of the words "continue to" in this Consent Decree implies that the State has already been meeting the needs of the youth in each area.
14. The parties to the Consent Decree are the United States Department of Justice and the State of Oklahoma and the Oklahoma Office of Juvenile Affairs, their successors, contractors and agents. While not named in this Consent Decree, the parties recognize that the cooperation of other state agencies will be required to comply with this Consent Decree.
II. DEFINITIONS
In this Consent Decree, the following definitions apply:
15. "Arms Length" means documented continuous, direct, uninterrupted, one-on-one supervision, within three feet of the youth, who is placed in the crisis management unit.
16. "Close Observation" means a systematic documented visual observation of youth at all hours and interaction with youth during waking hours periodically, but at least every ten minutes around the clock.
17. "Constant Observation" means documented continuous staff observation of a youth, or line of sight supervision.
3

18. "Direct Care Staff' means staff members who have routine contact with youth, including youth care staff, security staff, teachers, nurses, and food care workers who supervise youth.
19. "DOJ" means the United States Department of Justice, which represents the United States in this matter.
20. "Effective Date" means the date the Consent Decree is signed by the Court.
21. "Implement" means to give practical effect and ensure actual fulfillment by concrete measures.
22. "Include" or "including" means "include, but not be limited to" or "including, but not limited to."
23. "Isolation" means placement of a youth alone in a locked room. The term isolation does not apply to locking a youth in a room during the hours of9:30 p.m. to 5:30 a.m. or a similar eight-hour period for sleep.
24. "OJA" means the Oklahoma Office of Juvenile Affairs that is responsible for the care, treatment, and rehabilitation of youth confined at the L.E. Rader Center.
25. "Qualified medical professional" means a physician, nurse or other medical provider authorized and sufficiently trained to provide the services he or she undertakes to provide.
26. "Qualified mental health professional" means an authorized mental health care provider authorized and sufficiently trained to provide the services he or she undertakes to provide.
27. "Rader" means the L.E. Rader Center, located at 13323 W. Highway 51, Sand Springs, Oklahoma or any secure facility that is used to replace Rader, but does not include any separate youthful offender facility the State may operate.
4

28. "Serious mental illness" means a disorder diagnosed by a licensed psychologist or licensed psychiatrist and in which a patient's perception ofreality is impaired, his thinking process is disorganized, or his mood is so depressed, elated, or unstable as to put his safety or the safety of others at risk, and/or to significantly interfere with his capacity to succeed in completing the standard rehabilitative programming provided in the facility.
29. "Staff' includes salaried and hourly employees and contractual employees providing services at Rader.
30. "State" means the State of Oklahoma and the Office of Juvenile Affairs.
31. "Suicide Precautions" means any level of direct monitoring by staff, close watch, observation, or structured and periodically documented staff measures to prevent suicide or self-harm.
32. "Train" means to instruct in the skills addressed, including ongoing assessment of mastery of instructional material. Training shall be competency based and shall incorporate testing and instructional methods that establish minimal standards for defining staff competency.
33. "Use of Force" means any of the following actions taken by staff or a security officer: any physical contact that intentionally restricts the movement of a youth, including a physical restraint.
34. "Youth" means any person committed by a court to OJA and who is residing at Rader.
III. SUBSTANTIVE REMEDIAL MEASURES
A. Protection From Harm
35. Safe Living Conditions While the State cannot absolutely guarantee the safety ofjuveniles at Rader, the State agrees to provide safe living conditions consistent with the provisions as set forth herein.
5

36. Safe Housing and Supervision In order to provide safe housing, OJA will ensure that:
a. within one year ofthe effective date ofthe Consent Decree, a tracking system shall be installed and thereafter utilized, in order to detect unauthorized movement, to prevent youth access in areas that cannot be monitored visually or via stationary security camera, and to monitor access and egress to sleeping quarters, bathrooms, showers and other areas outside of staff line of sight;
b. room checks will be completed and documented by staffpatrols at staggered order and times; and,
c. OJA shall monitor the activities of all youth. OJA shall provide differential supervision based on the identified needs of the youth.
37. Inappropriate Relationships Between Staffand Youth OJA shall maintain appropriate policies, procedures, and practices prohibiting and sanctioning inappropriate relationships between staff and youth.
38. Reporting of Possible Abuse, Neglect and Caretaker Misconduct OJA will continue to enforce its policies, procedures, and practices to ensure that incidents of possible abuse, neglect and caretaker misconduct are reported to the Oklahoma Office of Client Advocacy (OCA). OJA will continue to enable the use of a direct reporting system by any person that does not require permission or involvement by any other person, via the toll-free hotline to the OCA. OJA will require its staff, volunteers and interns to report to the Rader Superintendent or hislher designee any alleged, suspected or observed abuse, neglect or misconduct.
39. Documenting Misconduct and Other Serious Incidents OJA will continue to ensure that all incidents of staff-on-youth and youth-on-youth violence, use of force, inappropriate staff relationships with youth, and sexual misconduct between youth are documented and reported, with sufficient detail, including the facts of the incident and any physical injury that occurred as a result of the incident. For purposes of this paragraph, the term "staff' shall include volunteers and interns.
40. Non-Contact Status The Rader Superintendent or hislher designee shall promptly evaluate allegations of staff abuse or misconduct to make a
6

detennination as to the appropriate level of contact between the staff, interns and volunteers, and youth(s) and document the decision.
41. Reporting Possible Criminal Violations OJA will continue to enforce its rule which clearly defines those circumstances in which staff must report possible criminal violations to law enforcement. OJA will continue to ensure that specific facility staff are trained and designated as responsible for preservation of evidence and are trained in and implement appropriate steps for preservation of evidence.
42. Review of Incidents by Senior Management OJA has been accepted for Performance Based Standards (PbS) and will implement PbS practices that require OJA to track and review all incidents of excessive force, staff-on-youth and youth-on-youth violence, inappropriate staff relationships with youth, and sexual misconduct between youth. OJA will, utilizing the PbS criteria, provide a report for the Rader Superintendent on a monthly basis to allow the superintendent to target problem areas in the facility and formulate documented plans of action to address such conditions.
43. Health Care Inquiries Regarding Injurv OJA will continue to ensure that staff from the medical department see all youth known to have been involved in assaults, restraints, or incidents of self-harm. A nurse or other health care provider will question each such youth, outside the hearing of other staff or other youth regarding the cause of any injury and related medical issues, unless such privacy will subject the youth, staff or facility to risk of harm. If a private interview is not feasible, and the health care provider deems follow-up is necessary, the health care provider will follow up with the youth in a manner consistent with medical protocols. As soon as practical, the health care provider also will:
a. photograph any injury and preserve other physical evidence; b. document the matter in the youth's medical record; and, c. complete a medical report.
44. Review of Use of Force Techniques The Rader Superintendent or his designee, and a Care and Custody Management System (CCMS) qualified trainer will conduct weekly reviews of the use of force reports and video taped
7

incidents involving restraints to evaluate proper techniques. Upon this review, staff who exhibit deficiencies in restraint techniques shall receive documented counseling and/or instruction on the proper techniques prior to resuming direct contact with youth.
45. Staff Training in Behavior Management, De-Escalation and Crisis Intervention To ensure the least amount of force necessary is utilized to protect the safety of youth and staff, OJA will provide 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.
46. Youth on Youth Restraints OJA will establish/modify and implement a written policy that prohibits staff from requesting youth to restrain another youth.
47. Medical and Mental Health Involvement in Uses of Force Medical and mental health staff shall be present for planned uses of force, if such staff are present on campus when a planned use of force is executed. Ifrelaxed prone restraints continue to be used, trained staff shall monitor youth periodically during relaxed prone restraints for signs of abnormal physical distress and whether the youth can speak.
48. Communication of Medical Alerts, Serious Medication Side Effects, and Recreation Restrictions OJA shall ensure that the Rader medical and mental health departments screen all youth for medical and mental health conditions that could result in a medical emergency involving the youth, including potential risk from restraints ("medical alerts") and any health conditions that could affect a youth's ability to participate in physical activity ("recreation restrictions"). Medical alerts, recreation restrictions, and potentially serious side effects of youth medications shall be circulated to residential, security, mental health, recreation, and education staff on a daily basis.
49. Mechanical Restraints In the event that DOJ and the State agree that the limitations contained in the Terry D. Legacy order regarding mechanical restraint are inconsistent with current standards regarding such restraints and that certain restraints currently prohibited will provide a safer environment for youth
8

at Rader, DOJ and the State will work together to seek an appropriate amendment to the Terry D. Legacy order to allow such mechanical restraints. Should this not be successful, this paragraph will not affect any other requirement of this Consent Decree.
50. Differential Staffing OJA will continue to comply with its licensing agency (DHS) standards regarding staffing ratios. OJA shall conduct a yearly staffing analysis to ensure there are sufficient numbers of adequately trained direct care, mental health care, and supervisory staff to supervise youth safely, protect youth from harm, reduce incidences of violence and injuries to youth and staff, and allow youth reasonable access to medical and mental health services, education, recreation, and adequate time spent in structured activities. OJA must use its best efforts to implement all reasonably possible measures to obtain adequate staffing.
51. Special Housing Units Youth who are placed in a special management unit for severe (arms length) suicide precautions, shall not be placed with youth who may disrupt the youth's treatment or harm the youth's physical or mental health. Treatment plans shall be re-evaluated and updated, as necessary, upon a youth's placement in the Crisis Management Center or within one week thereafter. OJA shall ensure that youth who are on special housing units for more than 24 hours shall be reviewed by the Superintendent or his designee to determine whether cause exists for any continued confinement.
52. Internal Classification and Unit Transfers OJA shall develop and implement an internal classification system that places youth appropriately and safely within the facility, and provides for documented reclassification in appropriate circumstances, which takes into account the youth's safety and treatment needs. The internal classification system shall be based upon relevant issues such as the youth's age, sexual predatory behavior, sexual victimization, and mental health needs.
53. Orientation Within six months of the effective date of the Consent Decree, each youth entering the facility shall receive a written and video orientation that shall include simple directions for reporting abuse and making grievances, instructions regarding facility rules and regulations, the disciplinary and levels systems, and assurance of youth's right to be protected from harm and
9

from retaliation for reporting allegations of abuse. Orientation also shall explain how to access medical and mental health care and the grievance system, and provide other information pertinent to the youth's participation in facility programs.
54. Grievances OlA shall ensure that Rader has an adequate grievance system that provides youth with access to grievances by contacting any staff, including medical, educational, and custodial staff, and that ensures confidentiality of grievance submissions and staff assistance in the preparation of grievances upon youth request. In addition, grievance boxes and blank grievance forms shall be placed in the housing units, cafeteria and schools. Staff who are assigned to resolve grievances shall receive written guidelines and training and shall meet required standards and timelines for resolution of grievances.
55. Retaliation and Intimidation OlA will implement a written policy which prohibits staff from intimidating or retaliating against youth who file or seek to file grievances against staff members, volunteers, or other contractual employees. Institutional training curricula will address this prohibition.
56. Employment Practices OlA will perform annual FBUOSBI fingerprint checks for all Rader direct care employees, starting in the calendar year following the effective date ofthis Consent Decree unless and until OlA is authorized to conduct NCIC background checks, at which point NCIC checks will be used in lieu of the fingerprint checks. OlA shall implement a policy to require all current and future Rader staffto immediately report any arrest, criminal charge, or criminal conviction other than a minor traffic violation; any protective order entered against the employee; and any confirmed finding of abuse, neglect, or caretaker misconduct, if such finding occurs outside the scope of their employment with OlA. OlA will continue to conduct a state criminal background check and FBI fingerprint check on all new Rader employees.
57. Contraband Management OlA shall develop and implement policies, procedures and practices to establish a consistent, orderly contraband management program, including:
10

a. initial and annual search training for staff responsible for preventing and detecting contraband;
b. conducting and documenting unannounced random searches of youth and youth living and activity areas by trained staff;
c. utilizing metal detectors, documenting of major contraband discovered, and proper secure storage and disposal of major contraband;
d. implementing adequate search procedures for youth returning from vocational programs, visits, off campus activities, and other areas in which youth may come into contact with contraband;
e. implementing adequate search procedures for youth in specialized programs who are returning to their units from education and other areas in which those youth may come into contact with contraband;
f. implementing random and targeted drug testing procedures for youth and direct care staff; and
g. establishing and documenting regular inspection mechanisms to monitor the proper management by staff of tools, hazardous chemicals and cleaning agents, and inventories.
58. Incentives and Consequences OJA shall maintain a system of incentive and consequences as a part of Rader's treatment program. OJA shall monitor the system to assure its efficacy.
59. Safe Housing OJA shall conduct a survey of all housing at Rader for suicide hazards (e.g., protrusions, grating, conduit piping, broken tiles, etc.). OJA shall then develop and implement policies, procedures, and practices to ensure that all housing for youth on suicide precautions or youth at heightened risk of suicide or self-harm is free of any protrusions and other hazards that would allow youth to hang themselves or commit other acts of self-harm. In the alternative, such youth shall be adequately supervised to prevent their access to suicide hazards. OJA shall also perform routine and periodic inspections of housing units to identify potential suicide hazards.
60. Access to Emergency Equipment OJA shall ensure that each housing unit contain, and all housing unit staff have immediate access to, appropriate equipment to intervene in the event of an attempted suicide, including cut-down tools, CPR microshields, and first aid kits. Medical first
11

responders shall have available filled oxygen tanks. OJA shall conduct a periodic survey of all emergency and rescue tools and equipment for each unit and ensure adequate tools and equipment for each unit. OJA shall conduct periodic drills to ensure that staff respond appropriately to suicide attempts.
B. Mental Health Care, Including Prevention of Suicide and Self-Harm
61. Rehabilitation OJA shall ensure that each youth in residence at Rader has an individualized rehabilitation treatment plan. This plan shall include general goals, specific measurable objectives and target dates by which they should be expected to be achieved, and specific interventions to be included in the youth's rehabilitation. OJA shall make documented, good faith efforts to include parents or guardians in the creation and revision of such plans, unless a qualified mental health professional determines that parent or guardian participation is likely to be clinically harmful. Any determination that parent or guardian participation is likely to be clinically harmful shall be documented, based on explicit data and reasoning, in a progress note. Plans shall reflect appropriate coordination of mental health and substance abuse treatment services.
62. Rehabilitation Updates The overall rehabilitation treatment plan shall be reviewed monthly by the youth's unit treatment team. Goals, objectives, and planned interventions shall be adjusted as a result of this review, to take account of new information regarding the youth. This information may include information regarding the youth's treatment progress, response to behavior management program, other information regarding the youth's functioning in the facility, information regarding the youth's family or community that may be expected to affect the youth's functioning, or newly available historical information (e.g., from newly received records, or from information newly provided by the youth and/or his family). Such plans will be reviewed by the unit treatment team at its next meeting, in response to suicide precautions and assessments, or other acute changes in the youth's functioning in the facility and updated accordingly.
63. Development and Implementation of Policies and Procedures OJA will implement policies and procedures regarding mental health care, suicide
12

prevention, intervention, supervision of suicidal youth and substance abuse treatment consistent with the provisions herein.
64. Mental Health, Suicide and Substance Abuse Screening OJA shall continue to ensure that all youth admitted to Rader are screened for mental disorders, risk of suicide and substance abuse in a timely manner. The process of this screening will include the following:
a review of available records; b. any observations of the transporting officer, transferring agency,
court or similar individuals regarding the youth's potential suicide risk, mental health needs, and substance abuse issues; c. interview of available family members regarding the same; d. administration of validated screening tools for the same (e.g., MAYSI, SASSI) by personnel qualified to administer; e. direct inquiry of newly arrived youth regarding: 1. past suicidal ideation and/or attempts, 11. current ideation, threat, or plan, 111. prior mental health treatment including counseling,
medication or hospitalization, IV. recent significant loss, such as the death ofa family member
or close friend, v. history of suicidal behavior by family members and close
friends, VI. suicide risk during any prior confinement, and vii. substance abuse history; and f. review and interpretation of the tools and other information accumulated by a qualified mental health professional for the purpose of determining need for suicide precaution, and further mental health and/or substance abuse assessment.
65. Suicide Precautions Youth identified as being at risk for suicide shall be placed on suicide precautions until they can be assessed by qualified mental health staff. Youth at risk of suicide include, but are not limited to, youth who are actively suicidal, youth who are not actively suicidal, but express suicidal ideation (e.g., expressing a wish to die without a specific threat or plan) or have a recent prior history of self-harming behavior; and youth who deny
13

suicidal ideation or do not threaten suicide, but demonstrate other behavior (through actions, current circumstances, or recent history) indicating the potential for self-harm. OJA shall ensure that youth placed on suicide precautions are not downgraded and/or discontinued from suicide precautions without an assessment by a qualified mental health professional. OJA shall ensure that staffing levels are maintained based upon the results of the suicide precaution.
66. Communication among Staff regarding Suicidal Youth OJA will continue to implement policies and procedures pertaining to the communication among all staff regarding the treatment and management needs of suicidal youth, and specifically:
a. require that a roster listing all youth on suicide precautions be maintained and updated daily;
b. require staff on each shift responsible for supervision and observation of youth on suicide precautions to document their review of all relevant suicide observations and their responsibilities regarding suicide observations (e.g., shower and bathroom supervision); and
c. require that direct care staff have clear notice of all youth on suicide precautions and each youth's level.
67. Suicide Risk Assessments OJA will continue to implement policies, procedures, and practices to ensure that qualified mental health professionals conduct timely suicide risk assessments which may include use of valid assessment instruments, review of available youth files/records, and structured clinical interviews for youth exhibiting suicidal, or other self-harming behavior, within 24 hours ofthe initiation of suicide precautions.
68. Mental Health Response to Youth at Risk of Suicide or Self-Harm Where a determination is made that a youth represents a continuing risk to himself, the qualified mental health professional will include in the youth's individualized treatment plan a plan for monitoring, intervention and care, and re-evaluation of the youth. The plan will address ways to help youth develop skills to reduce their suicidal ideations or behaviors, and will provide that youth discharged from suicide precautions receive follow-up treatment within the
14

facility, according to the clinicaljudgrnent ofthe qualified mental health professional.
69. No Punishment for Youth Engaging in Suicidal or SelfInjurious Behavior The Administrators of Programs shall screen proposed disciplinary actions to assure that youth are not punished for suicidal or self injurious behavior. In instances where it appears that proposed disciplinary action is in response to suicidal and/or self injurious behavior, those actions will be reviewed and addressed by the Institutional Treatment Team, who shall determine the appropriate, clinical response to the conduct.
70. Implementation of Policy Regarding Youth at Risk of Suicide or Self Harm OJA shall implement policies, procedures and practices to ensure that staff sufficiently supervise and interact on a daily basis with all youth on suicide precautions and document the type and frequency of supervision. OJA will ensure that any direct care staff member who identifies a youth as suicidal or at risk of self-harm immediately will place the youth on constant observation and refer the youth to the supervisor in charge, who will place the youth on suicide precautions, document the reason for placement on suicide precautions and the level of precautions, and refer the youth to a qualified mental health professional for assessment.
71. Documentation of Youth on Suicide Precautions OJA will continue to develop and implement policies, procedures, and practices to ensure that direct care staff who supervise a youth on suicide precautions systematically document the following information:
a. the times youth are placed on and removed from precautions; b. the levels of precautions on which youth are maintained; c. the housing location of youth on precautions; d. the conditions of the precautions; and e. the times and circumstances of all observations by staff monitoring
the youth.
Unit managers will conduct daily reviews of the Suicide Precaution Observations Record (SPOR) and sign off on such daily reviews.
15

72. Access to Programs and Services by Youth on Suicide Precautions OJA will continue to develop policies, procedures, and practices to ensure that youth on suicide precautions continue to receive programs and services, in accordance with safety and security needs, and in accordance with the clinical judgment of a qualified mental health professional. If programs and/or services are modified as a result of the placement on suicide precautions, the qualified mental health professional will document the change and reason for change III the SPOR.
73. Step-Down and Follow-up Assessments Only a qualified mental health professional shall be able to modify a youth's suicide precaution level. Such modification shall be documented. At a minimum, all youth who have been discharged from suicide precautions shall be assessed by a qualified mental health professional within three (3) day of discharge to determine and document current level of risk and need for further follow-up and/or ongoing treatment, except in instances in which the qualified mental professional has determined and documented that no need for follow-up exists.
74. Critical Incident Review OJA will develop and implement policies, procedures, and practices to ensure that a multi-disciplinary review team is established to review all suicides and serious suicide attempts for policy and training implications. Reviews will include all components identified in Rader's policy regarding Suicide Prevention and Intervention Program. At a minimum, the review will include:
a. critical review of the circumstances surrounding the incident; b. critical review of procedures relevant to the incident; c. synopsis of all relevant training received by involved staff; d. pertinent medical and mental health services/reports involving the
victim; e. possible precipitating factors leading to the suicide or attempt; and f. recommendations, if any, for changes in policy, training, physical
plant, medical or mental health services, and operational procedures.
75. Staff Training OJA will continue to conduct suicide prevention training for all staff who have regular direct contact with youth. This training will stress juvenile suicide research, potential predisposing factors to self harm, high-risk suicide periods, and warning signs and symptoms. Within six months
16

of the effective date ofthis Consent Decree, OJA will ensure that all existing and newly hired staff who have direct contact with youth receive an initial eight-hour training. Following completion of the initial training, OJA will ensure that such staff complete an additional two hours of refresher training each year. At a minimum, the suicide prevention training curriculum will include the following topics:
a. a suicide prevention policy consistent with this Consent Decree; b. juvenile suicide research; c. ways in which facility environments may contribute to suicidal
behavior; d. potential predisposing factors to suicide; e. high risk suicide periods; f. warning signs and symptoms of suicidal behavior; g. identifying suicide risk despite the denial of risk; h. case studies of recent suicides and serious suicide attempts; 1. strategies for de-escalating youth engaging in self-harming
behaviors; and j. the proper role of medical and other staff in responding to a suicide
attempt by youth, including mock demonstrations and proper use of emergency equipment.
76. Mental Health Assessment OJA shall implement policies to ensure that youth whose mental health screens, placement on suicide precautions or conduct (i.e. placement within BMU, CMC or MHSU units or failure to progress within normally expected time-frames) indicates a possible serious mental illness which may require mental health services beyond the general rehabilitative treatment program shall be assessed by a qualified mental health professional. The assessment shall be completed within three (3) weeks ofthe triggering event. The assessment techniques shall include:
a. review of all available previous mental health records, b. consultation with the unit treatment team, c. diagnostic interview with the youth, d. interview with family members, as possible, and e. other specialized diagnostic consultation, as indicated.
17

The assessment content shall include:
a. family history of mental illness and substance abuse, b. developmental history, c. family relationships, d. school and work history, e. peer functioning and interests, f. substance abuse, g. conduct problems, h. trauma exposure and responses, I. history of mental health symptoms and treatment, J. mental status, k. results of any specialized consultation,
1. diagnostic formulation by a licensed psychologist or licensed
psychiatrist, and m. recommended mental health interventions.
77. Mental Health Record System/Communication For the youths previously diagnosed as having serious mental illness, OJA shall develop and implement policies, procedures and practices to ensure that such youth's most relevant current information is provided to the psychiatrist by the psychological clinicians on the day of such youth's appointment with the psychiatrist for review and entry into the youth's medical record. Additionally, for the safety of such youth, OJA shall develop and implement policies, procedures and practices to ensure that information from such youth's visit with the psychiatrist, including any referrals for medications and their side effects, or other treatment interventions, are communicated to the psychological clinicians, who shall communicate this information to the unit managers to share with appropriate Youth Guidance Specialist (YGS) staff and to share with staff at Unit Treatment Team meetings.
78. Duties of the Psychiatrist Each youth whose serious mental illness requires psychiatric services, including monitoring ofthe use of psychotropic medications, shall be under the care of a licensed psychiatrist. OJA shall employ or contract for sufficient psychiatric services to treat youths with serious mental illness. The psychiatrist also shall be involved in the psychopharmacology screening process of such youth.
18

79. Dispensing of Mental Health Medications OJA shall develop and implement policies, procedures, and practices to ensure that psychotropic medications are prescribed, distributed, and monitored properly and safely. OJA shall ensure that all psychotropic medications are dispensed by appropriately trained medical care staff who consistently implement adequate policies and procedures to prevent cheeking and/or hoarding of medications.
80. Clinical Oversight OJA shall provide formal clinical oversight/supervision ofthe mental health professionals providing services to youths with serious mental illness, based upon their experience and skill.
81. Staff Training OJA shall develop and implement training for all medical staff at Rader responsible for medication administration on current issues in psychopharmacological treatment, including information necessary to monitor for side effects and efficacy, to prevent medication discontinuity.
82. Transition Planning OJA shall ensure that appropriate staff create transition plans for youth with serious mental illness before leaving Rader. Plans shall include providing the youth and his parents or guardian with information regarding mental health resources available in the youth's home community; making referrals to such services when appropriate; and supplying appropriate psychiatric medications upon release from the facility, when feasible.
C. Special Education
83. Provision of Services The State shall continue to provide all youth confined at Rader with the special education services it is legally mandated to provide by the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504") and regulations promulgated under those sections.
84. Education Coordinator OJA shall appoint a qualified education coordinator within OJA whose duties in relation to Rader shall include:
a. monitoring the special education and related programming in the facility, including development and implementation ofpolicies and training programs;
19

b. monitoring whether special education staffing and resources are sufficient to provide adequate special education services to youth at the facility and to ensure compliance with this Consent Decree;
c. ensuring that an adequate vocational education program is available for youth with disabilities at Rader;
d. ensuring that annual in-service training for education staff to enhance their ability to implement their duties under the provisions of this Consent Decree is provided; and
e. ensuring that a policy and procedures manual for implementation of services at Rader pursuant to the IDEA and Section 504 is developed and implemented.
85. Identification of Youth Previously Determined Eligible for Services The State shall promptly determine if admitted youth were previously eligible for special education services upon their admission. This shall include ensuring that documented prompt and periodic requests for school records from the previous school district are made to confirm eligibility and to learn what services the student was receiving. This prompt request shall occur, absent exceptional, documented circumstances, within three (3) business days of the student's admission to Rader. If records are not received within ten (10) business days from the date of the request, the State shall ensure that procedures with the Oklahoma State Department of Education to address any barriers to receipt of the requested materials are initiated. The State shall ensure that documented good faith efforts to obtain these records are continued until received or determined unrecoverable.
86. Identification of Potentially Eligible Youth Consistent with federal regulations, the State shall ensure prompt and adequate screening of youth who may be eligible to receive special education services but have not been so identified in the past. Such screenings shall include:
a. interviewing youth upon enrollment to determine past receipt of special education services, reviewing education records and courtordered assessments, and observing classroom performance. Such review should occur, absent exceptional, documented circumstances, within five (5) business days ofthe receipt of records or, in the case where no records have been received or receipt of
20

records is delayed, within ten (10) business days of the student's admission to Rader; b. adequate observation and assessment ofa youth's substantive educational knowledge, and performing necessary vision and hearing tests. Results of vision and hearing tests will be shared with the school personnel; and, c. implementing an Intervention Team to perform pre-referral functions, including implementation of written criteria under which staff or teachers must refer a student for review, frequency at which interventions must be reviewed, and procedures for referral for comprehensive evaluation if interventions are unsuccessful.
87. Eligibility Determinations The State shall ensure that all students referred for eligibility assessment receive comprehensive evaluations for all suspected disability categories and related services needs. This includes:
a. ensuring that all required education and psychological tests, behavioral observations, functional assessments, and social and school history information are compiled and reviewed for each student and that said review is documented; and
b. implementing policies describing the criteria for multi-disciplinary team decision-making regarding eligibility for special education; and reviewing existing data to determine continued eligibility as needed.
88. IEP Development The State shall ensure that IEPs for eligible youth at Rader satisfy the requirements of the IDEA. This includes:
a. fully completing each required section ofthe IEP to reflect the youth's individual needs;
b. fully justifying the placement in the Least Restrictive Environment and utilizing a range of service delivery options within Rader as appropriate, to the extent that it does not require a placement outside the Rader campus; and
c. ensuring the provision oftraining on IEP development to educational staff responsible for writing IEPs, including dissemination of concrete examples.
21

89. IEP Implementation The State shall ensure that all eligible students receive special education instruction and all related and transitional services required by their IEP. The State shall ensure that youth requiring special education services at Rader receive services within the Rader School that meets their needs. If a special education student is assigned to a specialized unit for longer than ten (10) school days and such assignment changes his educational service delivery, the IEP team will convene to determine whether the current IEP is sufficient to meet the youth's educational needs.
90. Parental Involvement The State shall ensure that parents/guardians are sent all required notifications and progress reports regarding special education services as appropriate. The State shall also ensure that parents are given opportunities to participate in the special education decision making process, including eligibility determinations and transition planning.
91. Section 504 Plans The State shall ensure that appropriate Section 504 plans are developed and implemented for youth referred for 504 accommodations by the Intervention Team.
92. Length of School Day Beginning with the 2008 Fall session, the State shall ensure that youth at Rader who are receiving special education services are provided with the number of instructional hours required by the Oklahoma State Department of Education's rules. As of the effective date ofthis Consent Decree, special education students assigned for more than a total of ten (10) school days during a school year to a specialized housing unit will receive the same number of instructional hours as those students in the general Rader education program unless the IEP team makes a determination that the student should receive less than a full day of instruction.
IV. INVESTIGATIONS AND QUALITY ASSURANCE
93. Investigations OJA shall institute policies, procedures, and practices for prompt, adequate investigations and review by Rader's senior management of all incidents involving:
a. those that cause serious harm or threat of serious harm to youth, including but not limited to, rape, sexual assaults, sexual
22

relationships, uses of force, restraints, serious injuries, assaults, and self-harm; b. the presence of major contraband; c. incidents of violence, regardless of whether such incidents resulted in serious injuries; and d. uses of force resulting in an injury to a youth, uses of force for which there has been an allegation of excessive use of force, and uses of force for which evidence (i.e., a videotape) indicates possible excessive use of force.
OJA shall adopt and implement standards for investigation of incidents, with the first priority being criminal violations, second priority being violations of OJNRader policy and procedures, and final priority being a trend analysis that is necessary to ensure that systematic corrective action may be taken in a effort to prevent future incidents. It is preferred that the investigator conducting the adequate investigations be Counsel on Law Enforcement Education and Training (CLEET) certified with limited jurisdiction and an employee of OJA.
94. Ouality Assurance Programs and Action Plans The State shall develop and implement Quality Assurance programs for each discipline addressed in this Consent Decree. Each program shall include the following:
a. inspection of a sample of all documents used by Rader to document compliance with the relevant standard, including institutional, medical, educational and mental health records;
b. interviews of facility administrators, staff, youth, and parents, as appropriate; and
c. observations offacility operations and inspections of the physical plant.
95. Quality Assurance Team There shall be a Quality Assurance Team, the leader of which shall report directly to the OJA Executive Director. The Quality Assurance Team shall conduct audits and issue reports documenting the status of compliance using the above methodologies. The Quality Assurance Team shall conduct targeted reviews as necessary in between these audits to assess progress in addressing areas in which standards are not being met. OJA management staff shall review the audits and reviews to determine progress and compliance.
23

96. DOJ Review ofOuality Assurance Program Quality Assurance Programs shall be submitted to the Department of Justice for review within one hundred twenty (120) calendar days of the effective date ofthis Consent Decree. The Department of Justice shall provide written guidance to the State, including specific explanations as to how the Quality Assurance Program(s) is inconsistent with the terms of the Consent Decree, and shall suggest revisions in writing, if any, within forty-five (45) days of receipt of any such Quality Assurance Program affecting this Consent Decree.
97. Long Term Plan of Action While not mandatory for compliance, it would be highly beneficial for OJA to create a long term plan of action in conjunction with outside expertise for each discipline addressed in this Consent Decree (protection from harm, mental health and special education) as well as in other areas to ensure continuous improvement of services provided to youth at Rader.
v. COMPLIANCE
98. Document Development and Revision Within ninety (90) calendar days of the effective date of this Consent Decree, OJA will provide DOJ with copies of OJA and Rader policies and procedures, forms, screening tools, blank log forms, and any proposed revisions to these materials that it will rely on to implement the provisions of this Consent Decree.
99. DOJ Review of Materials Within ninety (90) calendar days of its receipt of these policies and procedures, DOJ shall provide in writing any concerns or objections it has to the policies and procedures, including proposed revisions and specific explanations as to how the plan is inconsistent with the terms of the Consent Decree. DOJ's failure to respond will be deemed an approval of the policies and procedures. In the event that DOJ asserts that policies, procedures, and other written documents are not in compliance with the terms of this Consent Decree, the parties will agree to a schedule for OJA to submit revisions. Upon request, DOJ will provide technical assistance regarding revisions to bring materials into compliance.
24

100. Training OJA shall provide and document initial and refresher training to all facility staff with respect to newly implemented or revised policies and procedures.
101. Technical Assistance by DOJ In the event that the State and/or OJA requests reasonable technical assistance from DOJ, DOJ will provide the State and/or OJA with such technical assistance as requested by the State, including assistance in the development ofpolicies and procedures required to effectuate the terms of this Consent Decree. DOJ also will assist the State in identifying additional financial or technical resources to supplement those resources currently allocated to the facility.
VI. OVERSIGHT AND ENFORCEMENT
102. Expert Selection DOJ has designated John Platt (protection from hannlsuicide); Richard Barnum (mental health/suicide); and Kelly Dedel (special education, suicide and quality assurance/investigations) to provide oversight and confirmation that the State and OJA are complying with the terms of this Consent Decree in their respective areas of expertise. Should any expert be unable to provide this service, DOJ has the right to designate another expert with comparable experience and expertise in their stead. DOJ shall pay all fees and expenses incurred by its experts. DOJ also shall pay any costs related to copying documents DOJ or its experts may request that exceed $500.00 per visit.
103. DOJ and Expert Access DOJ and its experts shall be allowed full and complete access to Rader, all facility and OJA records related to Rader and this Consent Decree, and staff once every six (6) months for a period of reasonable number days not to exceed four (4) days, during the term of this Consent Decree. DOJ and its experts' access to residents shall be limited to times when the residents' counsel is present, unless the right to counsel has been waived. DOJ and its experts shall be entitled to conduct interviews of youths outside of the presence of the Defendants. DOJ and its experts shall be entitled to additional access to Rader or OJA records upon agreement of OJA's Executive Director. DOJ and its experts shall provide OJA with a minimum of thirty (30) calendar days notice of the intended visit. OJA has the option of providing its own experts and attorneys to accompany DOJ and its experts on any site visit. OJA shall direct all employees to cooperate fully with the experts.
25

All non-public infonnation obtained by DOJ and its experts shall be maintained in a confidential manner.
104. Limitations on Public Disclosures by All Experts Except as required or authorized by the tenns of this Consent Decree or the parties acting together, the parties' expert shall not: make any public statements (at a conference or otherwise) or issue findings with regard to any act or omission of the State or its agents, representatives or employees, or disclose non-public infonnation provided to the experts pursuant to this Consent Decree. Any press statement made by the experts regarding his or her employment must first be approved in writing by both parties. The experts shall not testify in any other litigation or proceeding with regard to any act or omission of the State, OJA or any of their agents, representatives, or employees related to this Consent Decree, nor testify regarding any matter or subject that he or she may have learned as a result of his or her perfonnance under this Consent Decree. Reports issued by DOJ's experts shall not be admissible against the State in any proceeding other than a proceeding related to the enforcement of the State's Consent Decree with DOJ. Unless such conflict is waived by the parties, the experts shall not accept employment or provide consulting services that would present a conflict of interest with the experts' responsibilities under this Consent Decree, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or claimant's attorney, in connection with a claim or suit against the State or its departments, officers, agents or employees. The experts are not a State or local agency or an agent thereof, and accordingly the records maintained by the experts shall not be deemed public records subject to public inspection.
105. DOJ Expert Reports Within sixty (60) days of any inspection, DOJ's experts shall prepare and provide the parties with reports describing the steps taken by the State and OJA to implement this Consent Decree and evaluate the extent to which the State has complied with each substantive provision of the Consent Decree. The expert shall express his or her opinion, paragraph by paragraph, regarding whether the State and OJA have complied with each paragraph of their respective sections of this Consent Decree. In each report, the Expert shall evaluate the status of compliance for each provision of the Consent Decree using the following standards: (1) substantial compliance, (2) partial compliance, and (3) non-compliance. These reports shall be written with due regard for the privacy interests of individual youth and staff and the interest of
26

the State in protecting against disclosure of non-public information. Each expert's report shall describe the steps taken to analyze conditions and assess compliance, including documents reviewed and individuals interviewed, and the factual basis for each ofthe expert's opinions. The State and/or OJA shall have the option to submit a written response to the reports within sixty (60) days from OJA's receipt of the report.
106. Technical Assistance by the DOJ Experts DOJ's experts shall provide the State with reasonable technical assistance as requested by the State.
VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
107. State Documentation of Compliance The State shall maintain sufficient records to document its compliance with all of the requirements ofthis Consent Decree. The State also shall maintain (so long as this Consent Decree remains in effect) any and all records required by or developed under this Consent Decree.
108. State Reporting Requirements OJA shall send to DOJ Rader's superintendents' report monthly.
109. Privileges This Consent Decree shall not be deemed to waive the attorney/client, attorney work product, deliberative process, or executive privileges. The State shall not assert physician/patient or psychotherapist/patient privileges with respect to the monitoring ofthis Consent Decree by DOJ and its experts.
VIII. IMPLEMENTATION AND TERMINATION
110. Information to Employees The State shall provide information to all current and future relevant State employees about the terms of this Consent Decree to the extent necessary to carry out their job duties and responsibilities in relation to the terms of this Consent Decree.
111. Implementation Except as otherwise noted, the State shall implement all reforms necessary to comply with this Consent Decree within one (1) year of the signing of this Consent Decree. Minor, inconsequential, sporadic, unintentional or isolated harmless instances of noncompliance with the Consent
27

Decree shall not be a basis for enforcement, provided they do not affect a substantial interest ofthe youth.
112. Enforcement IfDOJ believes that the State has failed to substantially comply with any obligation under this Consent Decree, DOJ will, prior to seeking judicial action to enforce the terms of this Consent Decree, give written notice ofthe failure to the State. The parties shall conduct good-faith discussions to resolve the dispute. The parties shall attempt in good faith to resolve the dispute for a minimum of 30 days prior to initiating any court action. DOJ commits to work in good faith with the State to avoid enforcement actions. However, in cases of emergency posing an immediate threat to the health or safety of youth, DOJ shall give the State notice but will not be required to comply with the 30-day good faith discussion requirement.
113. Compliance Coordinator OJA shall designate a person to serve as a Compliance Coordinator to coordinate and oversee compliance with this Consent Decree.
114. Termination This Consent Decree shall terminate three (3) years from the date it is ordered by the Court. There are three substantive sections of this Consent Decree - protection from harm, mental health care, and special education. The Consent Decree, or any substantive portion of the Consent Decree, may end earlier than three (3) years from the date it is ordered by the Court if the State has substantially complied with each ofthe provisions ofthe Consent Decree or a substantive section of the Consent Decree, and has maintained substantial compliance for at least one (1) year. The burden shall be on the State to demonstrate this level of compliance. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance. Under no circumstances will this Consent Decree be extended beyond the three (3) year period, unless by agreement\ of the parties and the Court that some portion of the Consent Decree needs to be extended for compliance.
115. Dismissal of All Defendants Upon completion ofthis Consent Decree as discussed in paragraph 115, the parties will jointly move, pursuant to Fed. R. Civ. P. 4I(a)(2), for entry of an order dismissing this action with
28

prejudice as to all Defendants named in the complaint or subsequently added thereto. The Court shall retain jurisdiction over the case until a final dismissal is entered.
116. Successors This Consent Decree shall be binding on all successors, assignees, employees, agents and all those working for or on behalf of the State.
117. No Waiver for Failure to Enforce Failure by either party to enforce this entire Consent Decree or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines or provisions of this Consent Decree.
118. Notice ''Notice'' under this Consent Decree shall be provided by courier or overnight delivery and shall be provided to the Governor ofthe State and to the Attorney General of the State.
119. Unforeseen Delay If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Consent Decree, the State shall notify the DO] in writing within twenty (20) calendar days of the time that the State becomes aware ofthe unforeseen circumstance and its impact on the State's ability to perform under the Consent Decree. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure.
120. Subheadings All subheadings in this Consent Decree are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
121. Severability In the event any provision of this Consent Decree is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Consent Decree.
122. Attorney's Fees and Expenses Each party shall bear the cost of their fees and expenses incurred in connection with this cause.
29

Q~b DAVID~ .
United States Attorney Northern District of Oklahoma Attorney fi .Plaintiff

FOR THE UNITED STATES:
~~~ CiC~BECKER
Acting Assistant Attorney General Civil Rights Division Att ey for Plaintiff

BAKER, OBA No. 465 Assistant United States Attorney Attorney for Plaintiff United States Attorney's Office Northern District of Oklahoma 110 West 7th Street Suite 300 Tulsa, Oklahoma 74119 (918) 382-2700

ANETTA Y. CUTLAR Chief Special Litigation Section Attorney for P . tiff
RESTON Deputy Chief Special Litigation Section Attorney for Plaintiff

LAURA L. COON JE YON JUNG STACEY K. GRIGSBY SHAHEENA AHMAD SIMONS Trial Attorneys Attorneys for Plaintiff U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255

30

FOR THE STATE and OlA:
~-:'Q
TOM GRUBER First Assistant Attorney General State of Oklahoma
SO ORDERED, this 9th day of September, 2008,
~Gre~g~~~ ~.ll~'-.:~3 ee
United States District Judge Northern District of Oklahoma

" •

31

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

1. THE STATE OF OKLAHOMA;

)

2. THE HONORABLE BRAD HENRY,

)

Governor of the State of Oklahoma,

)

in his official capacity only;

)

3. THE OKLAHOMA OFFICE OF

)

JUVENILE AFFAIRS;

)

4. ROBERT E. CHRISTIAN, Executive Director )

of the Oklahoma Office of

)

Juvenile Affairs, in his official

)

capacity only;

)

5. THE OKLAHOMA BOARD

)

OF JUVENILE AFFAIRS;

)

6. LONELIA L. SIMMONS, Chairperson of the )

Oklahoma Board of

)

Juvenile Affairs, in her

)

official capacity only; and

)

7. JIMMY MARTIN, Superintendent of

)

the L.E. Rader Center,

)

in his official capacity only,

)

)

Defendants.

)

)

CIVIL ACTION NO: 06-CV-673-GKF-FHM

UNITED STATES’ MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS
I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. LEGAL STANDARD FOR A PRELIMINARY INJUNCTION . . . . . . . . . . . . . . . . . 5
III. LIKELIHOOD OF SUCCESS ON THE MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Serious Injuries, and Risk of Serious Injuries, from Sexual Assaults by Other Youths at Rader. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Youth-on-Youth Sexual Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Unsupervised Sexual Misconduct among Rader Youths . . . . . . . . . . . . 10
3. Sexual Relationships between Rader Staff and Youths . . . . . . . . . . . . . . 12
B. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Youth-on-Youth Assaults, Excessive Use of Force, and Improper Restraints, Resulting in Serious Injuries. Similarly, Defendants’ Failure to Protect Youths from Dangerous Contraband Also Causes Serious Harm and Risk of Serious Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. Youth-on-Youth Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. Excessive Use of Force and Improper Restraints of Youths . . . . . . . . . . 22
3. Dangerous Contraband . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Serious Harm and Risk of Serious Harm Resulting from Youths Attempting Suicide and Harming Themselves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
IV. IRREPARABLE INJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
V. REQUESTED RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
VI. BALANCE OF HARMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
VII. PUBLIC INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
i

TABLE OF AUTHORITIES

CASES:

PAGE

A.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572 (3d Cir. 2004) . . . . . . . . . . . . . . . . 26

Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255 (10th Cir. 1981) . . . . . . . . . . 31

Barrie v. Grand County, 119 F.3d 862 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Berry v. Muskogee, 900 F.2d 1489 (10th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Coker v. Georgia, 433 U.S. 584 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 37

Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fisher v. Goord, 981 F. Supp. 140 (W.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Goka v. Bobbitt, 862 F.2d 646 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hadix v. Caruso, 461 F. Supp. 2d 574 (W.D. Mich. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Hellig v. McKinney, 509 U.S. 25 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Hobock v. Grant County, 216 F.3d 1087, 2000 WL 807225 (10th Cir. June 23, 2000) . . . . . . . 7

Hott v. Hennepin County, 260 F.3d 901 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jaffee v. Redmond, 518 U.S. 1 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

National Ass’n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33 (D.D.C. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

ii

CASES (continued):

PAGE

Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

R.G. v. Koller, 415 F. Supp. 2d 1129 (D. Haw. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 37, 38

Schrier v. Univ. of Colorado, 427 F.3d 1253 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Smith v. Cochran, 339 F.3d 1205 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . . passim

Tri-State Generation & Transmission Assoc. v. Shoshone River Power, Inc., 874 F.2d 1346 (10th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Raines, 362 U.S. 17 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Von Colln v. County of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999) . . . . . . . . . . . . . . . . . . . . . . 32

Youngberg v. Romeo, 457 U.S. 307 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14

Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883 (10th Cir. 1992) . . . . . . . 7, 14

STATUTES: Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 . . . . . . . 3, 31, 38

RULES: Fed. R. Civ. P. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

iii

Pursuant to Fed. R. Civ. P. 65, the United States moves the Court for a preliminary injunction based upon the current and ongoing serious harm and risk of serious harm to youth confined at the L.E. Rader Center (“Rader”). Incidents of rape, sexual assault, youth-on-youth violence, excessive force, improper restraint, contraband, attempted suicide, and youth selfharm, are all combining to result in dangerous and life-threatening conditions in the facility.
Harmful and dangerous incidents at Rader continue to occur two years after the United States first brought similar incidents to the State’s attention in June 2005. See Letter from R. Alexander Acosta, Assistant Attorney General, Department of Justice, Civil Rights Division, to Governor Brad Henry (June 8, 2005) (United States’ “Findings Letter”) (Attachment A). Defendants’ reactive and piecemeal approach to the dangers, terminating individual staff and disciplining youth for harming other youths, staff, and themselves, has failed to address the ongoing risk of serious harm to youth at the facility. Instead, Defendants continue to expose youth to an ongoing serious risk of harm resulting, in significant part, from the facility’s lack of sufficient numbers of appropriately trained direct care staff to adequately supervise youth.
This motion is based entirely on documents produced by Defendants in response to the United States’ First Request for Production of Documents (“First Request”). The documents referenced throughout this motion include investigations conducted by the Sand Springs Police Department, by Oklahoma State agencies, and by Rader itself, as well as incident reports prepared by Rader staff.1
For the reasons set forth below, the United States respectfully requests an order:

1

All of the names in this Motion are pseudonyms to protect the privacy of youth

and staff at Rader. A key to the actual names of the youth and staff is attached, under seal, at

Attachment B.

2

(1) granting a preliminary injunction against Defendants’ ongoing failure to protect youth from harm resulting from rapes, sexual assaults, youth-on-youth violence, excessive force, improper restraints, contraband, attempted suicides, and youth self-harm; and (2) ordering Defendants to refrain from exposing youths to serious harm resulting from inadequate supervision of youth by insufficient numbers of inappropriately trained staff. I. BACKGROUND
The United States brought this suit under 42 U.S.C. § 14141 (“Section 14141”), following a multi-year investigation into the conditions at Rader and subsequent unsuccessful efforts to amicably resolve the United States’ findings of unconstitutional conditions. The United States seeks injunctive relief to eliminate Defendants’ “pattern or practice of conduct” that deprives juveniles at Rader of “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141. The United States’ amended complaint alleges that Defendants have engaged, and continue to engage, in a pattern or practice of failing to: (1) ensure that youth are adequately protected from harm and from undue risk of harm; (2) implement an adequate system to prevent youth from attempting suicide and engaging in self-harm; (3) provide adequate mental health care to youth; and (4) provide qualified youth with adequate special education and related services.
The United States’ multi-year investigation commenced on March 31, 2004, when the Justice Department notified Defendant Henry by letter that it would conduct an investigation of Rader focused on protecting residents from harm. During the pre-litigation investigation, the United States requested documents and access to the facility, staff, and youth. The State produced some of the documents requested, including incident reports, youth grievances,
3

disciplinary reports, and abuse investigations. Defendants refused the United States’ May 2004 request, and repeated subsequent requests, for access to the facility, staff, and youth. Despite Defendants’ lack of cooperation, the United States gathered sufficient evidence, based on the pre-litigation documents provided by the State, to issue a 16-page findings letter on June 8, 2005, which detailed how the conditions of confinement violated the constitutional rights of youth.
The United States requested a meeting with Oklahoma officials to try to produce a mutually agreeable resolution to the investigation. The State responded with a letter on July 22, 2005, in which it reported the results of individual investigations into the representative incidents set forth in the United States’ Findings Letter, yet failed to propose how the State would prevent such incidents in the future. See Letter from E. Clyde Kirk, Oklahoma Assistant Attorney General, to Bradley J. Schlozman, Acting Assistant Attorney General, Department of Justice, Civil Rights Division (July 22, 2005) (State’s “Response Letter”) (Attachment C). In its Response Letter, the State also solicited financial aid and technical assistance from the United States. At a September 16, 2005 meeting, the State finally agreed to permit the United States and its consultants access to Rader to review documents and interview staff and youth.
Between November 14 and 17, 2005, the United States and its consultants inspected Rader, which included on-site review of documents, interviews with staff, and interviews of youth confined at Rader. During this tour of Rader, the United States not only confirmed the findings set forth in the United States’ Findings Letter, but also found additional ongoing deficiencies regarding Rader’s provision of mental health care. The United States conveyed these findings to Defendants during a multi-hour exit briefing with State officials at Rader on November 17, 2005. After the United States unsuccessfully attempted to negotiate with the State
4

following the inspection, it filed the instant suit on December 15, 2006. On May 4, 2007, the United States amended its complaint with education claims.
On February 7, 2007, the United States served upon Defendants the United States’ First Request for Production of Documents (“United States’ First Request”). Defendants’ first production in response to this request occurred on April 6, 2007, when Defendants produced documents dated through February 1, 2007, maintained by Defendant Oklahoma Office of Juvenile Affairs (OJA). The United States recently received supplemental documents covering incidents occurring through June 2007. A preliminary review of these documents reveals a continued dangerous pattern of youth suffering serious injuries and being exposed to risk of serious injury at Rader, as described below in further detail.
At this stage of discovery, Defendants have already produced documents showing that Defendants have failed and continue to fail to protect youth at Rader from serious injuries and risk of serious injuries from: (1) rape and sexual assaults; (2) youth-on-youth assaults; (3) excessive use of force and inappropriate restraints; (4) youth’s possession of dangerous contraband; and (5) suicide and self-harm. The United States seeks a preliminary injunction to prevent harm and to decrease the imminent risk of harm resulting from these incidents. II. LEGAL STANDARD FOR A PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65, to obtain a preliminary injunction, the United States must prove: (1) irreparable injury unless the injunction issues; (2) that the threatened injury outweighs whatever damage the proposed injunction may cause Defendants; (3) that the injunction would not be adverse to the public interest; and (4) a substantial likelihood of success on the merits. Summum v. Pleasant Grove City, 483 F.3d 1044, 1048 (10th Cir. 2007) (quoting
5

Schrier v. Univ. of Colorado, 427 F.3d 1253, 1258 (10th Cir. 2005)). When a preliminary injunction alters the status quo, is mandatory, or affords all the relief that the movant could recover at the conclusion of a full trial on the merits, the movant must make “a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Summum, 483 F.3d 1048-49 (citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004) (en banc)). “An injunction alters the status quo when it changes the ‘last peaceable uncontested status existing between the parties before the dispute developed.’” Summum, 483 F.3d at 1049 (quoting Schrier, 427 F.3d at 1260). An injunction is mandatory if it “affirmatively require[s] the nonmovant to act in a particular way, and . . . place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” Schrier, 427 F.3d at 1261 (quoting O Centro, 389 F.3d at 979).
As detailed below, this Court should enter an order preliminarily enjoining Defendants from continuing to subject the youth at Rader to an imminent risk of irreparable physical harm. Sections III through VII below analyze the four preliminary injunction factors. Section III relies on Defendants’ documents2 as evidence of the likelihood of success on the merits that Defendants systematically continue to fail to protect youths from unconstitutional: Sec. III.A, rapes and sexual assaults; Sec. III.B, youth assaults, excessive force, improper restraints, and contraband; and Sec. III.C, attempted suicides and self-harm. Section IV explains why these unconstitutional conditions are causing imminent and ongoing irreparable harm. Section V

2

Defendants’ documents cited throughout this motion as examples of the ongoing

pattern or practice of harm and risk of harm are attached in numerical Bates number order

(Attachment D) (under seal because the documents include confidential information).

6

requests minimal injunctive measures to lower the high rate of these irreparable injuries. Section VI balances the harms, and explains how these severe irreparable injuries heavily outweigh the cost to Defendants of remedying the unsafe conditions. Finally, Section VII shows that the preliminary injunction will serve the public’s interest in enforcing these constitutional rights and protecting youths from unsafe conditions.
III. LIKELIHOOD OF SUCCESS ON THE MERITS
A. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Serious Injuries, and Risk of Serious Injuries, from Sexual Assaults by Other Youths at Rader.
The Fourteenth Amendment gives juveniles taken into State custody right to reasonably safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (holding that Due Process mandates that State has “the unquestioned duty to provide reasonable safety for all residents and personnel within the institution.”); Yvonne L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992). This right includes a freedom from a substantial risk of sexual assault by staff or other youths. See, e.g., Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (affirming that an inmate’s “constitutional right to be secure in [his] bodily integrity” includes the right to be free from sexual abuse) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)); Hobock v. Grant County, 216 F.3d 1087, No. 99-2194, 2000 WL 807225, at *2 (10th Cir. June 23, 2000) (table) (finding that youths in custody at a juvenile detention facility have a right under the Fourteenth Amendment to be free from physical and sexual assaults by other youths). Thus, the Constitution mandates that the State must provide adequate supervision and monitoring to ensure reasonably safe conditions, including the absence of sexual assaults.
7

As exemplified below, Defendants’ own documents reveal a pattern of rape and sexual assault at Rader. This pattern has continued even after the United States notified Defendants of this problem in 2005. Youth-on-youth sexual assaults often occur in areas lacking adequate supervision, such as the unit bedrooms and bathrooms, and involve serious injuries and risk of serious injuries to youths when aggressors use a common mode of attack - “choking out” the victim until he is unconscious and helpless to the ensuing sexual assault.
Defendants’ documents also reveal sexual relationships between Rader staff and youths. Given the staff’s position of power over the youths, it is doubtful that these youths can truly consent to sexual relationships with the staff. Regardless, these sexual relationships show a lack of supervision and compromised facility security. See Fisher v. Goord, 981 F. Supp. 140, 175 (W.D.N.Y. 1997) (“Sexual interactions between correction officers and inmates, no matter how voluntary, are totally incompatible with the order and discipline required in a prison setting. Further, the Court is disturbed by the notion that an inmate might feel compelled to perform sexual favors for correction officers in order to be on the officer’s “good side.” Such quid pro quo behavior is inappropriate, despicable and serves no legitimate penological purpose.”). For example, these improper relationships introduce contraband when staff bring items for the youths with whom they are involved, such as money, drugs, and cell phones. Defendants’ documents illustrate that these items can cause fights and sexual misconduct among youths as well.
1. Youth-on-Youth Sexual Assaults The following examples show a pattern of incidents of youth-on-youth sexual assaults that, according to Defendants’ own documents, have continued to occur at Rader since the United States notified Defendants of this problem in 2005:
8

•

On July 13, 2006, youth Oz Thibault alleged that he was physically and sexually

assaulted by four other unidentified youths. Thibault alleged that he was choked from

behind when he was in the shower area of his unit. Thibault lost consciousness and when

he awoke, he was bleeding from his rectum. Thibault stated that he reported the rape to

medical staff on July 14, 2006, and he was sent to the hospital for a rape exam. The rape

exam results are not known. Despite Thibault’s statements that he was threatened with

another assault if he reported the incident, the case was closed without further testing of

DNA evidence because Thibault recanted. A report by the Sexual Assault Nurse

Examiner, Anna Smith R.N., noted that Thibault had numerous visible abrasions on his

penis, head, neck, and elbow, bruises on his arm, and contusions on his shoulders.

1USvOK077552-077570.

•

On May 15, 2006, youth Neil Smoot assaulted youth Tomas Benitez in the bathroom.

Smoot hit Benitez in the face and threatened him with more physical violence if youth

Benitez did not perform oral sex on Smoot. The youths had been permitted to enter the

bathroom unsupervised. 1USvOK095015-095020.

•

On April 28, 2006, youth Timothy French allegedly physically and sexually assaulted

youth Cameron Bell by choking Bell until he passed out and then sexually assaulting him

in youth French’s room. Staff were unaware that the youths were in the rooms. The

youths gained access to the room because the lock was not functioning.

1USvOK094895-094900.

•

On Thursday April 27, 2006, youth Darius Foster reported to staff that youth Walker

Orwell had threatened to beat Foster up if Foster did not let Orwell put his penis in

Foster’s rectum. Under this duress, Foster allegedly allowed Orwell to penetrate him

with his penis. 1USvOK037158-037159. According to facility documents, youth Foster

has mental retardation and an IQ of 55. 1USvOK037160-037161. Rader did not report

the alleged rape to police or other authorities until the following Monday, May 1, 2006.

1USvOK077302-077316, 1USvOK037160-037161. As Rader’s Superintendent noted, a

rape examination could not be completed because more than 72 hours had lapsed since

the rape. 1USvOK037160-037161. Foster further reported to the police that Orwell

demanded that Foster perform oral sex or Orwell would beat him and that Foster

complied and performed oral sex on Orwell. Rader failed to preserve any potential

physical evidence, such as Orwell’s semen, which Foster stated he spat in a trash can.

Sand Springs Police Report 06-006665, 1USvOK037150-037153. Besides the pattern of

serious harm to youths resulting from inadequate supervision, this incident illustrates

clear deficiencies in staff training regarding appropriate responses to rape and other

criminal allegations. Police noted that Defendants’ failure to promptly report this

incident and to promptly provide the youth with medical attention significantly

compromised the criminal case. 1USvOK037150-037153.

•

On April 3, 2006, at approximately 8:30 p.m., youth Romeo Keishon entered his room

with youths Oz Thibault and Porter Griggs. Keishon had been arguing with the other

9

two, and they went to the room in order to fight. Upon entering, Thibault allegedy grabbed Keishon around the neck and began choking him until Keison passed out. When Romeo Keishon regained consciousness, his pants and underwear were at his ankles and he felt a wet substance in his anal area. One of the alleged suspects confessed to the Rader Deputy Superintendent that he had choked Keishon to unconsciousness and raped him and that, when Keishon began to regain consciousness, the other suspect choked Keishon into unconsciousness and then also raped Keishon. A medical examination of Romeo Keishon confirmed anal penetration, and Keishon had several scratches and a large bruise on his face and neck. It is unclear how staff on the unit were unaware of the sexual assault, and apparently no report was completed until Keishon told a psychological clinician the following day that he feared for his safety on the unit. 1USvOK077155-077173 and 1USvOK036853-036922.

•

On September 10, 2005, youth Dominic Isaiah called youth Tracy Jenner into youth

Willis Nevins’ room. When Tracy Jenner entered, Dominic Isaiah grabbed Jenner’s butt

and called him girls’ names. Willis Nevins then blocked the entrance so that Jenner

could not leave. Tracy Jenner performed oral sex when Isaiah demanded it because

Isaiah’s criminal record intimidated him. Isaiah also penetrated Jenner’s anus. Staff

Xandra Atkinson and Emily Gumbel eventually interrupted after seeing Willis Nevins

continually looking outside his door every time somebody passed by, but not until after

these sexual acts. LER-00379 to 00380, LER-33011 to 33012, LERC000574-000575.

•

Sometime in March 2005, the document contains conflicting dates, youth Byron Teacher

complained that youth Dominic Isaiah asked “if he could feel on him or the other way

around.” After Byron Teacher refused, Isaiah anally penetrated Teacher with his penis in

the shower. Dominic Isaiah then threatened to hurt Teacher if he did not perform oral

sex. Youth Terrence Owens walked in on the oral sex coerced by Isaiah. LER-00256.

2. Unsupervised Sexual Misconduct among Rader Youths

In addition to allowing sexual assaults perpetrated by other youths with violence or threat

of assault, staff have left youths unsupervised, permitting them to engage in sexual misconduct

with each other. Investigations of such sexual misconduct have been terminated prematurely

because investigators deemed the sexual misconduct to be “consensual,” despite the uniquely

coercive environment of a juvenile correctional facility. For example, in December 2004, youths

Armando Cornsilk and Mike Lowell engaged in sexual activity on five to seven occasions,

including oral sex, anal sex, and masturbation. The original call to the police was for a possible

10

rape of a 17-year-old. This allegation was not pursued as a criminal investigation, as the youths

allegedly “consented.” The police report stated, however, that it is “disturbing that the RADER

staff doesn’t appear to have a clue as to what the inmates are doing at any particular time. If any

crime happened it would be failure to protect by the RADER staff and facility management.”

LER-00164, LER-32974, LERC000537. Each of the following incidents of sexual misconduct

illustrate the unsupervised environment, which enables other acts of violence against youths such

as the sexual and physical assaults described in other sections of this motion:

•

On February 6, 2007, youth Ben Kane admitted to staff Natasha Lee that he had oral sex

with youth Hakeem Masterson on January 19, 2007. At a disciplinary hearing Kane was

found guilty of sexual misconduct. There is no indication that any staff was investigated

and/or disciplined regarding the supervision failure that allowed two youths to engage in

sexual activity on the unit housing sexual offenders. 1USvOK103099-103107.

•

Rader staff reported on February 5, 2007, several youths were involved in ongoing sexual

relationships manifested during lapses in supervision. Youths Tracy Jenner and Pierce

Hall exchanged oral sex. In addition, the youths reported that other youths Carmello

Noble, Robert Flick, and Craig Igsby have engaged in oral sex and that youths Ben Kane

and Hakeem Masterson have exchanged oral sex. 1USvOK103754-103755.

•

Police investigated one of the above incidents reported on February 5, 2007, involving

alleged oral sex between youths Tracy Jenner and youth Pierce Hall. Both youths

admitted to engaging in oral sex in a bedroom during a shift when youths were

unsupervised because staff member Jodie Cooper was sleeping and staff member Thomas

Dimple was doing laundry. According to Pierce Hall, the youth waited for the “perfect

night” to act because they knew that “some staff check the rooms every few minutes.”

Sand Springs Police Report 07-001820, 1USvOK038301-038315;

1USvOK103746-103767; USvOK104159-104182.

•

On October 14, 2006, youth Tucker Long was allegedly sexually assaulted by youth

Wallace Thatcher. Tucker Long made inconsistent statements and recanted his rape

allegation. Accordingly, rape examinations were not conducted. The police closed the

case as consensual sex between the youths. The validity of the finding of “consensual”

sex is questionable, given the predatory and threatening environment at Rader. An

internal Investigative Report noted that videos revealed that only one staff member was

on duty for the unit on that night, that the staff member left the unit at times, and that bed

checks were not completed as documented in the logs. 1USvOK077795-077807.

11

•

On September 19, 2006, Youth Willis Nevins admitted to the police that he offered youth

Miguel Gonzalez pornographic material in exchange for touching Nevins’ penis. He

further admitted that he exposed his penis to youth Gonzalez on September 16, 2006,

while the youths from the unit were outside the unit. Finally, youth Willis Nevins wrote

that he had asked Miguel Gonzalez to “leave his door unlocked” because Nevins planned

to jam the lock on his cell door with tissue and enter Gonzalez’s unit at night to have anal

and oral intercourse with Gonzalez in exchange for the pornographic material. Willis

Nevins stated that he had also attempted to initiate a sexual relationship with Youth

Tucker Long in exchange for giving pornographic materials to Long. In a written

statement, Gonzalez stated that Willis Nevins had also grabbed him in a sexual manner

and that he had never told anyone because he “felt threatened by [Nevins’s] size.” Sand

Springs Police Report 06-014662, 1USvOK037706-037731.

•

As reported in August 2006, youths Tracy Jenner, Darnell Lambert, and Ben Kane

admitted to ongoing sexual activity with each other in the sex offender unit while staff

were not watching. Reportedly, reflective security mirrors were installed to assist

monitoring the residents. Regardless, the sexual continued. 1USvOK095477-095481.

•

On May 6, 2006, youth Wallace Thatcher and youth Dominic Isaiah engaged in sexual

activity in Isaiah’s bedroom. Video confirms that Thatcher was in Isaiah’s room and

another youth, Vincent Dennison, reported sexual activity between Thatcher and Isaiah.

Video also confirmed that the assigned staff, Amie Robbins, was completing paperwork

and did not look up from the desk to notice Thatcher entering Isaiah’s room or other

youths going in and out of the bathroom without logging into the bathroom. Neither

youth was given a medical examination after the allegation. 1USvOK077343-077353.

3. Sexual Relationships between Rader Staff and Youths

In addition to allowing youth-on-youth sexual assaults and youth sexual activity, Rader

staff have themselves engaged in inappropriate sexual relationships with youths. These sexual

relationships show a lack of supervision and compromised facility security. The following

examples show a pattern of incidents of intimate relationships between Rader staff and youths

and among Rader youths that, according to Defendants’ documents, continues to occur at Rader

even though the United States notified Defendants of this problem in 2005:

•

On December 23, 2006, youth Tyrone Green reported to staff Dina Jameson that staff

Ariel Gold had performed oral sex on him. This youth stated to the police in early

January 2007 that Ariel Gold had performed oral sex on him on at least six occasions.

Tyrone Green further stated to police that he had maintained a sexual relationship with

12

Ariel Gold for the past few months. In addition to the sexual relationship, Green reported that Gold periodically brought him cash and, in December 2006, a cell phone. Other staff became aware of the cell phone and the alleged relationship, but did not report the misconduct. Gold admitted to bringing a cell phone into the facility and allowing the youth to use it. Sand Spring Police Report 07-00180, 1USvOK038219-038225.

•

On November 27, 2006, staff Kristin Jarvis wrote a statement to the police stating that,

since August 28, 2006, she had maintained a sexual relationship with youth Damien

Moser from the sex offender unit. Staff Jarvis stated that the relationship involved

kissing on multiple occasions and mutual sexual touching. 1USvOK038065-038066.

She also admitted to bringing youth Moser contraband, including money and a cell

phone. 1USvOK038072. Moser provided a written statement to The police on

November 28, 2006, confirming his “boyfriend, girlfriend type” relationship with staff

Jarvis. Damien Moser further stated that he used the money Kristin Jarvis brought him to

purchase other contraband in the facility, including pornographic photos depicting sexual

acts, and tobacco. Sand Springs Police Report 06-018517, 1USvOK038061-038123. A

letter written by staff Jarvis to youth Moser was discovered, which led to Jarvis’ forced

resignation in December 2006. 1USvOK077855-077868.

•

On January 25, 2006, staff Patrice Ericson admitted to The police that she had an intimate

relationship with youth Arlen Fuller. Their sexual contact included hugging and kissing.

Sand Spring Police Report 06-001477, 1USvOK036562-036568. Staff Ericson admitted

to kissing youth Fuller on at least three occasions and hugging him on at least two

occasions when they were alone in his room. A letter written by Ericson to youth Fuller

expressing her desire to have sex with him was discovered, which led to Ericson’s

termination on January 27, 2006. 1USvOK076871-076880.

Although staff involved in the above-cited incidents were terminated, asked to resign,

and/or criminally charged, this after-the-fact response fails to prevent the unsafe conditions for

the youths. Moreover, such a response does nothing to address the systemic failures that allowed

these relationships to occur in the first place, and continue to occur for, at least, a twelve-month

period after notification of the first incident in January 2006. For example, although individual

staff were terminated and/or asked to resign, there was no review of the supervisory and

oversight systems at Rader, nor was there a review of the circumstances that allowed for staff to

engage in intimate physical contact with youths, on multiple occasions, undetected or

unreported.

13

B. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Youth-on-Youth Assaults, Excessive Use of Force, and Improper Restraints, Resulting in Serious Injuries. Similarly, Defendants’ Failure to Protect Youths from Dangerous Contraband Also Causes Serious Harm and Risk of Serious Harm.
Juveniles taken into custody by the State, like Rader youths, have a Fourteenth Amendment right to reasonably safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (holding that Due Process mandates that State has “the unquestioned duty to provide reasonable safety for all residents and personnel within the institution.”); Yvonne L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883, 893-94 (10th Cir. 1992) (holding that youths involuntarily in state custody are “‘entitled to more considerate treatment and conditions’ than criminals”) (quoting Youngberg, 457 U.S. at 321-22). At Rader, however, youths are repeatedly assaulted by other youths. Moreover, youths routinely suffer serious injuries from these assaults requiring significant medical treatment and oftentimes emergency room and hospital visits.
Additionally, Rader staff frequently physically restrain youths, employ force that is disproportionate to the threat posed by youths, and, in a gross departure from professional standards, engage other youths to perform restraints on youths. Although staff legally may employ physical force when youths pose an immediate risk of harm either to themselves or to others, the amount of force used must be the least amount necessary to control the situation and prevent injury to staff and youths. Youngberg, 457 U.S. at 324 (stating that staff may restrain residents of a state rehabilitative facility only to the extent necessary to ensure safety or provide needed training); Yvonne L., 959 F.2d at 893 (applying Youngberg standard to Fourteenth Amendment “failure to protect” claims by foster children in custody of the state); Milonas v. Williams, 691 F.2d 931, 942-43 (10th Cir. 1982) (invalidating use of undue physical force).
14

As part of reasonably safe conditions, the State must also provide adequate supervision

and monitoring to ensure the absence of dangerous contraband that could result in serious

injuries to youths at Rader. See Berry v. Muskogee, 900 F.2d 1489, 1498 (10th Cir. 1990)

(noting that prison’s failure to enforce contraband policy in the face of known and pervasive

risks may constitute deliberate indifference to inmate’s safety in violation of minimum

constitutional standards) (citing Goka v. Bobbitt, 862 F.2d 646, 651-52 (7th Cir. 1988)).

As set forth in the examples below, Defendants’ documents reveal that they continually

fail to protect youths from physical assaults by other youths, from excessive use of force and

improper restraints by Rader staff on youths, and from introduction of dangerous contraband.

1. Youth-on-Youth Assaults

Youths at Rader have suffered serious injuries requiring hospitalization because of

rampant youth-on-youth violence occurring at the facility. Injuries include broken jaws,

lacerations, black eyes, and contusions. Youths also have been knocked and choked unconscious

from assaults by other youths. This violence occurs regularly at the facility, sometimes after

staff have been made aware of threats of violence against the victim and the victim is

nonetheless later attacked by multiple youths. There are also documented examples of youth-on-

youth assaults in which staff allegedly have paid youths in cigarettes, cash, or candy to assault

other youths, or in which staff have seen assaults, yet neglected to make any attempt to stop the

assaults. The following examples illustrate the pervasive harm and the ongoing threat of serious

harm:

•

On February 5, 2007, youth Wendell Richards attacked youth Ned Evans, punching him

in the face until Evans fell unconscious. When Evans regained consciousness, his left eye

was swollen shut, his nose was bleeding, and he felt sick to his stomach. His injuries

required treatment at the hospital. The police investigation was closed as “mutual

15

combat.” According to the police , this “mutual combat” spanned at least two days, involved pushing and shoving, and culminated in the above attack, occurring when the youths were unsupervised. Evans reported to police that he felt he had no choice but to fight Richards, because otherwise he would have been attacked by 4 other people at once. Sand Springs Police Department Complaint 07-001833 and 1USvOK038314-038351.

•

On January 25, 2007, youth Oliver Nifong attacked youth Sergio Walker, reportedly

because a staff member confiscated a lighter from youth Walker that youth Nifong had

loaned to Walker. It was the only lighter available on the unit at the time (lighters are

contraband at Rader). During the assault, Nifong punched Walker in the face with a

closed fist, knocking Walker to the ground. Nifong then kicked and stomped Walker in

the face and head. Walker received bruising to his face (including a black eye), neck,

back, and chest. 1USvOK038286-038300.

•

On December 10, 2006, youth Christopher Copeland allegedly assaulted youth Marc

Teborek in the bathroom. Teborek sustained a laceration on his head and was sent to the

emergency room, where he received four sutures to close the wound. He also had two

black eyes and a laceration on his chin because of the assault. Staff Emily Gumbel stated

that she heard a commotion in the bathroom and she tried to enter, but someone was

holding the door shut. Teborek exited the bathroom with blood all over him. The police

reviewed videotape of the incident, but the video skipped between residents and could

not be used as evidence. 1USvOK095979-095982.

•

On November 18, 2006, youth Pierce Hall was told by two other youths that they were

going to “beat him in” as a member of their gang. Both then beat Hall in the face and

head with closed fists, knocking him to the ground. The assault occurred out of the view

of the unit’s security cameras. Hall sustained a black eye and multiple knots on his head.

When staff found Pierce Hall after the attack, Hall stated that he had fallen and had hit

his head. Hall later confessed that he was afraid to report the incident for fear of

reprisals. Sand Springs Police Department Complaint 06-018209, 1USvOK038044-

038060.

•

On October 16, 2006, youth Sean Cregg assaulted youth Ayashe Huritt, lacerating and

breaking Huritt's nose. While on the floor, Huritt was unresponsive to the first responder,

staff person Evan Hastert. Huritt was taken to St. John Hospital where he received

stitches and was diagnosed with a broken nose. According to Huritt, earlier in the day,

Sean Cregg had shoved an object into Huritt’s ear, knowing that Huritt is partially deaf.

Sand Springs Police Department Complaint 06-016278, 1USvOK037941-037961.

•

On September 24, 2006, youth Patton Paulwood told youth Oz Thibault to come to his

room. Thibault entered Paulwood’s room, and Paulwood punched him in the face and

head. Thibault was knocked to the floor and could not move. Then Paulwood jumped in

the air and stomped on Thibault’s head with his foot at least twice. At that point,

Thibault lost consciousness. Police collected Paulwood’s shoes, which had blood on

16

them. Thibault required stitches in his head. Sand Springs Police Report 06-015132, 1USvOK037815-037846. A few days after this fight, youth Peter Donnelly stated to Rader staff that Thibault was assaulted in retaliation for an assault by Thibault on youth Shawn Unger earlier that same day. Allegedly, as stated by multiple youths, Thibault assaulted Unger because Rader security staff put a “hit” on Unger in retaliation for Unger alleging that he had been slapped in his bedroom by security staff Kaleolani Oates. This “hit” on Unger involved Rader security staff giving Thibault a pack of cigarettes to assault Unger. Thibault also claimed that staff had a “hit” on Unger, but that he had not attacked Unger. Following the assault by Thibault on Unger, staff person Pavel Ivanko reportedly noticed that Unger was crying and that there was blood on Unger’s toilet and hands, but staff Ivanko failed to make a report. 1USvOK037844-037845.

•

On September 24, 2006, youth Yancy Abrams assaulted youth Oz Thibault in the

dayroom while Thibault was watching television. Video confirmed that Abrams punched

Thibault in the jaw. Minutes before this incident, Thibault was assaulted by another

unidentified youth. Staff Uma Winter and Leah Oliphant were on the unit at the time, but

neither staff was aware of the assaults when they happened. The police investigation

stated that, contrary to a directive from Rader Superintendent Martin, residents’ doors

were not locked and residents were allowed to move freely and unsupervised into each

other’s rooms. Also, despite a group of youths congregating in one area, staff did not

respond. 1USvOK095777-095781. Incidentally, staff Uma Winter was involved in

another incident with youth Yancy Abrams on October 7, 2006. Abrams alleged that

staff Winter threatened to stab him in the eye with her pen. Another staff, Olivia

O’Toole, confirmed that Staff Winter threatened several times that she was going to “take

Abrams out.” Staff O’Toole had to call security to have staff Winter removed from the

unit “so that things would calm down.” Staff Winter resigned. Misconduct was

confirmed as to staff Winter. 1USvOK095826-095829.

•

On July 11, 2006, youth Lindsay Leland was discovered lying face down on his right

cheek, unconscious, and with a puddle of blood coming from his mouth. No further

details regarding the cause of Leland’s injuries appeared in Defendants’ documents.

Security and medical staff were apparently called, but the facility report does not indicate

how Leland was so seriously injured or if it was investigated. 1USvOK164394-164409.

•

On June 4, 2006, youth Rory Paloma’s linens and pillow were contaminated by human

feces, but it is not clear who did it. In a facility multipurpose report relating to this

incident, staff Rajon Jordan expressed her concern that if Rader does not move Paloma

off of the unit, he will continue to be seriously hurt by the other youths. She stated that

Paloma has suffered a broken finger, a broken nose, and bruised arms and legs.

1USvOK163383-163388.

•

On April 29, 2006, youth Timothy French called out to youth Cameron Bell to come to

his room. When youth Bell entered, French put his arms around Bell’s neck and choked

him until he lost consciousness. When Cameron Bell regained consciousness, he was on

17

his stomach and French was on top of him. Sand Springs Police Report 06-006633, 1USvOK037123-037149. In a written statement provided to staff at Rader, Bell stated that, prior to this attack, French was trying to get Bell to fight him but that Bell had refused. 1USvOK037126. Cameron Bell continued to be afraid that Timothy French or one of French’s acquaintances was going to choke him to unconsciousness again and sexually assault him while unconscious because Bell refused to fight. 1USvOK037126. Apparently believing that he had no other options, Bell wrote in his statement that Rader staff should let him fight French instead of facing the alternative of being choked into unconsciousness and sexually assaulted. 1USvOK037126. Unit rosters for the two weeks following the choking incident indicate that Rader failed to separate Bell and French. 1USvOK002565 (unit roster for May 1, 2006); 1USvOK002579 (unit roster for May 8, 2006); and 1USvOK002591 (unit roster for May 12, 2006) (all showing youth Bell and French remaining together on the same unit).

•

On April 28, 2006, youth Hiram Ottowa entered his bedroom at approximately 9:35 a.m.

and found that his room had been torn up, and several other youths were standing nearby.

As he started to clean the room, an unknown youth came up behind him and started to

choke him. As he struggled to get free, he lost consciousness. Another youth kicked him

in the head as he lay on the floor, and this blow “jarred him awake.” A staff person

arrived, finding Ottowa unresponsive on his bedroom floor. Ottowa was then transported

to the emergency room, where he received three stitches between his eyes. Sand Springs

Police Report 06-006642, 1USvOK037172-037183.

•

On April 22, 2006, youth Vernon Cole suffered lacerations requiring stitches on his head

while he was in the unit bathroom. Youth Cole reported that he slipped to one staff

member, and told another that he was injured while “horse playing in the shower.”

Youth Lawrence King received a major rule violation for assaulting another youth due to

this incident. Video confirmed that Cole entered the bathroom without staff supervision

when Lawrence King was already in the bathroom. 1USvOK094845-094850.

•

On April 1, 2006, youths from one of the Rader housing units were lining up in the

dayroom of the unit to go to dinner, when youth Sean Cregg put his arm around youth

Tracy Jenner’s neck and pulled him down a hallway and out of sight of the staff and other

youths in the dayroom. Tracy Jenner stated to police that he lost consciousness. Staff

reported that by the time they realized that Cregg was choking Jenner, Jenner’s face had

turned purple and his eyes were rolling into the back of his head. In a report, staff who

pulled Cregg away from Tracy Jenner noted in capital letters that youth Cregg has a

“history of choking out peers.” 1USvOK036844-036846. Despite Sean Cregg’s attack

on Jenner, the youths were not separated and just over an hour later, when the youths had

returned to the unit from dinner, Sean Cregg ran into Jenner’s room and beat him in the

face and head. Only at that point was Cregg removed from the unit. Sand Springs Police

Report 06-005201, 1USvOK036842-036852. Cregg threatened that he would continue

beating youths until he was moved off the unit. 1USvOK094713-094718;

1USvOK079089-079098; 1USvOK109011-109020; and 1USvOK160858-160864.

18

•

On February 28, 2006, youth Sammy Ackland informed staff that other youths informed

him that he was going to get “beat down.” Staff’s response was to change Ackland’s

bedroom to a room near the staff desk in a single youth per bedroom unit. During the

evening showers, consistent with the earlier warning given to Ackland and reported to

staff, four youths attacked Ackland in the showers, with one youth holding Ackland’s

hands down, one youth kicking Ackland in the ribs and back, and the other two youths

punching him in the face and upper body. Ackland was taken to the hospital emergency

room. Ackland informed police that the assault had likely occurred as retaliation because

he had reported that a youth had stolen cigarettes (contraband at Rader) from another

youth. Sand Springs Police Report 06-003558, 1USvOK036805-036817.

•

On February 24, 2006, known rival gang members, youth Tyrone Green and youth Greg

Mercury, were arguing over a basketball game while supervised by staff member Brenda

Lumley. At some point following the argument, Mercury hit Green in the jaw, breaking

Green’s jaw and requiring Green’s hospitalization. 1USvOK094484-094489.

•

On February 11, 2006, youth DeShawn Anderson was sent to the emergency room for

internal bleeding and he was given a blood transfusion of four pints of blood. Anderson

was reportedly jumped, kicked, and choked by other youths approximately a week prior

to his emergency room treatment. Before he went to the hospital, Anderson complained

of dizziness, vomiting, and nausea, rib and back pain, and that he had not urinated for a

day and a half. Anderson alleged that staff failed to take his complaints seriously, instead

accusing him of faking his illness. Anderson was eventually sent to the emergency room

after his pulse became elevated and his blood pressure dropped. 1USvOK076931-

076939.

•

On February 3, 2006, youth Paul Barry was “choked out” by youth Elmer Banks until he

became unconscious. Elmer Banks stated that this is an ongoing “game” that youths have

at Rader. This occurred in the office of staff Margie Ellington, who was present and on

the phone with another staff member. There was no medical report. Staff Ellington was

orally counseled for not having the youth checked by medical after the incident.

However, she was not disciplined for lack of supervision. 1USvOK094407-094410.

•

On January 3, 2005, youth Aaron Ziegler attacked youth Ted East with a broom. Youth

Mitchell Kelvin tried to stop the fight. Youth Axel Estes entered the room and joined the

fight, punching East in the face. The staff broke up the fight but Ted East suffered a

broken nose that required a pin to realign. East’s neck required rehabilitative exercises,

and he suffered defensive wounds on his hands. One week after this serious altercation,

Aaron Ziegler and East were still housed together in the same unit. Ziegler came up

behind Ted East and squeezed East’s neck until East passed out. According to East, he

and Ziegler are members of rival gangs. Despite the rival gang membership, and the first

serious assault, Rader failed to separate these youths. LER-00148 and LER-00162.

19

See also 1USvOK036284-036314 (youth knocked unconscious); LER-00359 (fight); LER-00324

(eye injury and split lip).

Even when Rader has a policy intended to prevent youths from assaulting other youths in

unsupervised areas such as bathrooms, the policy is not adequately implemented, if at all. The

following examples show that Rader staff’s failure to follow policies results in harm and an

imminent risk of physical harm to youths:

•

On February 28, 2006, youth Sammy Ackland was assaulted by youth Oz Thibault, youth

Martell Howry, and youth Marcell Yardley in the bathroom. Ackland suffered a golf ball

size bruise on his forehead and a bruise near his right eye. He was sent to the emergency

room. Sammy Ackland had notified staff Randy Gomez earlier that day that he was

afraid of being assaulted. Staff Henry Iverson observed Thibault and Howry entering the

bathroom and, instead of following the youths and/or redirecting them away from the

bathroom, he proceeded to write disciplinary documents for the two youths. Ackland

was assaulted while staff filled out the documents. 1USvOK076954-076973.

•

On November 14, 2005, youth Tyrese Kuhn suffered a broken jaw when he was in the

bathroom. It was rumored that youth Lawrence King assaulted him, although Kuhn

denied this and claimed not to know what happened. According to policy, multiple

youths are not allowed in the bathrooms at the same time. Bathroom log sheets could not

be located and the video camera monitoring the bathroom area and entry was not

functioning. Staff Brian Richardson, was disciplined for failing to provide Tyrese Kuhn

with immediate medical care for his jaw, when medical care was delayed for thirty

minutes. Kuhn was not sent to the hospital for approximately three hours. Staff

supervising the unit during the incident were not disciplined. 1USvOK076769-076784.

Rader has failed to implement systemic corrective actions following incidents involving

serious harm to youths to prevent similar harm to youths in the future. For example, on February

5, 2006, youth Travis Hawley and youth Cameron Bell were involved in a physical altercation in

Hawley’s bedroom. Bell suffered a broken nose. An investigation found that youths were

allowed to go unsupervised into each other’s rooms. In response to the investigation, on May

10, 2006, Rader indicated that the doors to youths’ bedrooms were kept locked and only

unlocked for appropriate youths to enter at appropriate times. 1USvOK076890-076892. Despite

20

this, the following assaults occurred in youths’ bedrooms after this alleged policy as youths

continued to enter bedrooms to inflict serious harm on their peers:

•

On March 4, 2006, youths Hamilton Pitt and Brett Wynn were involved in an altercation

in Wynn’s bedroom. Hamilton Pitt suffered a broken nose. Other youths restrained

Wynn before staff arrived. 1USvOK076993-076999.

•

On March 31, 2006, youth Curtis Jackson entered youth Ricky Dawson’s room, where

youth Tindall Stevens was braiding Dawson’s hair. Curtis Jackson verbally assaulted

Stevens and then left the room. Jackson returned wearing gloves and punched Tindall

Stevens in the face. The two exchanged blows, and Curtis Jackson punched Stevens in

the face a second time, with enough force to knock out two of Stevens’ teeth. Stevens

stated his belief to the police that Jackson had concealed a hard object in his hand on the

second punch. There is no indication that staff made any effort to intervene, either after

the verbal assault or before Curtis Jackson returned wearing gloves, or after Jackson

threw the initial punch. Police file photographs illustrate how two of Stevens’ teeth were

knocked out at the root. 1USvOK077135-0771154, Sand Springs Police Report 06-

005181, 1USvOK036833-036841.

•

On May 15, 2006, youth Lawrence King attacked youth Marcos Santiago in Santiago’s

bedroom. During the assault, King choked Santiago until he lost consciousness. Upon

regaining consciousness, Santiago’s roommate, a witness to the attack, informed Santiago

that King had kicked Santiago the head while Santiago was laying on the floor

unconscious. It is unclear where staff were at the time of the assault. Following the

assault, Marcos Santiago complained of a severe headache, so he was taken to the

hospital, where he was diagnosed with a concussion. 1USvOK077373-077405, Sand

Springs Police Report 06-007617, 1USvOK037306-037311.

•

On June 25, 2006, youth Nelson Ramirez assaulted youth Rich Eula in his bedroom.

Ramirez was waiting for Eula in Eula’s bedroom and Ramirez hit Eula several times in

the face. Rich Eula was sent to the emergency room, where it was confirmed that he had

sustained a broken nose from the assault. 1USvOK095366-095371.

•

On August 12, 2006, youth Sean Cregg was assaulted in his bedroom by several

unidentified youths. Cregg refused to provide the identity of his attackers and stated that

he did not yell because one of his attackers was choking him. Cregg was removed from

the unit after he informed staff that he had been attacked. He was also then checked by a

nurse, who noted that he had a goose egg bruise on top of his head. At some point after

the assault, security was called to Sean Cregg’s room because he was suicidal. Video

confirmed that, at the time of the attack, youths were allowed to enter into each other’s

rooms freely and unsupervised. Sean Cregg’s room is approximately five feet from staff

Randy Gomez’s desk, and video confirms that staff Gomez was sitting at his desk while

youths entered each other’s rooms. As a result of the attack on Cregg, staff Gomez

21

received a written reprimand and a “Corrective Action Plan.” 1USvOK095541-095545.

•

On August 24, 2006, youth Tomas Benitez was allegedly assaulted in his bedroom by

youth Christopher Copeland. Benitez sustained a laceration under his eye and a black

eye. During the incident, staff Ray Ahmed was on the unit but was in his office speaking

with other youths. Video confirms that youths were left in the dayroom unsupervised by

staff Ahmed. 1USvOK095494-095499.

At the time of all the above assaults, and contrary to the newly-promulgated policy, youths could

move freely and unsupervised into each other’s rooms.

2. Excessive Use of Force and Improper Restraints of Youths

The following examples document the widespread improper and excessive use of force

by Rader staff when restraining youths. These improper restraints pose a significant imminent

risk of physical harm to the youths:

•

On September 28, 2006, staff member Brad Nolan allegedly improperly and dangerously

restrained youth Pedro Fernandez. Fernandez claims that Nolan picked him up and threw

him to the ground, elbowing Fernandez in the back of the head three times. Staff member

Pavel Ivanko was restraining another youth nearby, and claimed that he did not witness

exactly what happened. Ivanko did admit to hearing a loud “smack” that caught his

attention. When Ivanko looked over, Brad Nolan had Pedro Fernandez on the ground in

an unapproved restraint: Nolan’s forearm was across the back of Fernandez’s neck.

Fernandez suffered abrasions on his forehead. 1USvOK120668-120674.

•

On August 18, 2006, staff Raleigh Nork allegedly physically assaulted youth Arthur Yu.

Staff Nork improperly and dangerously restrained Arthur Yu when he laid on top of

youth Yu, causing him difficulty in breathing and eventually causing him to go into a

seizure. Yu was sent to the emergency room. 1USvOK077684-077685.

•

On July 22, 2006, as youth William Potter attempted to exit his unit in response to a call

for him to obtain his medication, security officer Harvey Hixon pushed him against the

wall and told him to stay inside. William Potter stated that he had been called for his

medication and, after he turned to leave, officer Hixon pushed him against the wall again.

Another security officer intervened, but after Potter obtained his medication Hixon struck

Potter in the chest, grabbed him by the throat, and pinched his nipple area. When youth

Patrick Culver attempted to help youth Potter, Hixon punched Culver twice and then

choked him. 1USvOK120553-120559, and 1USvOK120567-120575. An examination of

youth Culver revealed red marks on both sides of his neck and on his chest.

1USvOK037786-037787; Sand Springs Police Report 06-011438/06-011439,

22

1USvOK037542-037550; and 1USvOK037542-037550. Youth Potter sustained red hand print marks on his neck and redness to his nipple area. This incident occurred outside of video camera range. Two other staff and two other youths confirmed the excessive use of force. Staff Hixon was terminated on July 24, 2006. 1USvOK120548-120555.

•

On March 15, 2006, staff Fred Upton and staff Bryant Velazquez restrained youth Joakim

Edison and moved him to the crisis unit. Edison alleges that he lost consciousness during

the first restraint when Fred Upton held him by the neck. Edison also maintains that he

sustained injuries to his eye and elbow during a second restraint. Upton and Velazquez

denied that Edison lost consciousness or that there was a second restraint at all. The

video cameras could not provide any information because the restraint occurred in areas

out of view. 1USvOK077013-077032.

•

On January 26, 2006, youth Greg Mercury was restrained in a standing wrap followed by

a blend takedown and three-person relax prone restraint.3 Youth Mercury was restrained

for approximately one hour in a dangerous prone restraint for “counseling and de-

escalation.” 1USvOK130106-130107.

Beyond the illegal uses of force and dangerous restraints employed Rader staff, on

numerous occasions, staff have instructed or permitted youths to restrain other youths.

Restraints performed by youths constitute a gross and dangerous departure from professional

standards. Youth-on-youth restraints at Rader have resulted in severe injuries or risk of severe

injuries to both the youth performing the restraint and the youth being restrained:

•

On October 30, 2006, staff Barbara Madison instructed youth Corey Marshall to “take

down” youth Colin Lopez. Marshall sprained his shoulder. 1USvOK077829-077830.

•

On August 13, 2006, multiple youths participated in the restraint of two youths who had

been fighting, youths Delonte Hart and Everett Chapman. Youths Malik Fender, Greg

Mercury, and Terrence Owens admitted to participating in the restraint. Police stated that

video confirmed “residents running all over the place” and incident reports confirmed

that “things got completely out of control.” 1USvOK095534-095539.

•

On October 16, 2005, youth Lawrence King aided in restraining youth Stefan Young

after Young threw a VCR and several tapes against a wall. During this youth-on-youth

restraint, Stefan Young bit Lawrence King several times. LER-00413.

3

The facility uses a “blend takedown” to physically take a youth down to the floor

and a three-person “relax” prone restraint to hold the youth face-down on the floor until the staff

involved believe that the youth is calm and ready to be released.

23

3. Dangerous Contraband

Numerous items of contraband, including drugs, are entering the facility. Between

December 28, 2006, and January 3, 2007, Rader administered drug tests revealed at least seven

youths testing positive for marijuana, and another youth testing positive for methamphetamines.

1USvOK103488-103500 and 1USvOK104013-104023. Many youths have histories of

substance abuse, and they are readily able to obtain various types of drugs and other chemicals to

get “high” while at Rader. The following examples show that easy access to such contraband is

not abating:

•

On January 13, 2007, youth Ryan Hooper tested positive for methamphetamines.

1USvOK129120-129129.

•

On May 17, 2006, at least three youths from a housing unit – Lincoln Tinsley, Zach

Sizemore, and William Potter– tested positive for THC, the main psychoactive substance

in marijuana. In addition, staff reported that youths on that unit had been “acting high.”

1USvOK095073-095075.

•

On April 28, 2006, an empty bottle of Everclear liquor was found in a unit trash can.

Prior to its discovery, youths on the unit had been “out of control” and “glassy eyed.”

Staff on the unit alleged that staff April Brewer had brought the liquor inside Rader and

gave it to the youths. Staff Brewer was terminated on May 8, 2006, for bringing

cigarettes into Rader. 1USvOK120784-120809.

•

On January 15, 2006, a search of a housing unit was conducted after youth Nick

DeMarco and youth Ralph Cicilline were discovered in a smoke filled bathroom. The

search recovered various items throughout the unit and in multiple youths’ rooms and the

bathroom, including various colored pills; three razors; three socks with crushed soap;

and a rolled up piece of paper with one end burned. Although no tobacco was recovered,

staff noted their belief that the smoke came from an “exposed light” that was likely used

to light the cigarettes. 1USvOK115178-115191 and 1USvOK157294-157305.

•

On October 25, 2005, seven youths on a housing unit tested positive for THC. Six more

refused to take the test, or submitted a sample that had been tampered with. LER-18450

to 18454.

•

On October 16, 2005, youth Arlen Fuller obtained eight pills of prescription medication.

24

Fuller tested positive for amphetamines and methadone. Documentation indicated that the medical clinic at Rader could not identify the medication as any type of medication kept at Rader. LER-18624 to 18632.

Many youths have also been discovered with homemade weapons or shanks. Because

many youths fear assaults from other youths, they reported that they must protect themselves

with homemade weapons:

•

On September 21, 2006, youth Greg Mercury told staff Tammy Iglesias that youth Marc

Teborek had threatened him with a shank. The shank was a toothbrush with a sharpened

end, and it was discovered in the trash can. Youth Vernon Cole also reported to staff

Glenda Sands that Teborek threatened to shank him. 1USvOK124727-124733.

•

On August 6, 2006, youth Marc Teborek had two metal shanks that he had made from

breaking his eyeglasses. He had removed the plastic surrounding the metal ear pieces of

the eyeglasses, exposing the sharp metal pieces. 1USvOK122761-122763.

•

On April 25, 2006, youth Oz Thibault alleged that he was jumped by three other youths:

Timothy French, Martell Howry, and Stuart Tilley. He also told staff that, for his

protection, he had hidden a shank in his room. He then retrieved a “long piece of pointed

metal” from his clothing shelf and provided it to staff. 1USvOK161751-161753.

•

On April 25, 2006, youth Deangelo Everett possessed two pieces of his eyeglasses that

were sharpened into a weapon. 1USvOK115290-115295 and 1USvOK161780-161782.

•

On February 12, 2006, youth Jefferson Springfield was discovered with a shank, a

sharpened end of a fork or a spoon, in his room. 1USvOK158655-158657.

•

On October 22, 2005, a shank made out of the sharpened end of plastic silverware was

confiscated from youth Eric Fletcher’s room. LER-14483 to 14487.

C. Defendants Have Failed and Continue to Fail to Protect Youths at Rader from Serious Harm and Risk of Serious Harm Resulting from Youths Attempting Suicide and Harming Themselves.

Defendants have failed to ensure that youths receive adequate mental health treatment

and suicide prevention measures, including adequate supervision in hazard-free environments

and, as a result, Defendants have exposed youths at Rader to serious harm and serious risk of

harm from self-injury. The Constitution requires that confined juveniles receive adequate mental

25

health treatment and suicide prevention measures. See Barrie v. Grand County, 119 F.3d 862,

867 (10th Cir. 1997) (applying the Eighth Amendment Estelle v. Gamble, 429 U.S. 97 (1976),

standard for medical care in prisons to Fourteenth Amendment claim regarding inadequate

suicide prevention in pretrial detention facility); A.M. v. Luzerne County Juvenile Det. Ctr., 372

F.3d 572, 580, 584-85 (3d Cir. 2004) (holding that juvenile detention facility’s lack of policies to

address mental health of residents gives rise to a claim under the Due Process Clause); Hott v.

Hennepin County, 260 F.3d 901, 905 (8th Cir. 2001) (inadequate suicide prevention program

equivalent to inadequate medical care). For juvenile offenders, adequate mental health care

includes individualized treatment and rehabilitation based on a youth’s strengths and needs. See

Nelson v. Heyne, 491 F.2d 352, 358-60 (7th Cir. 1974) (holding that youths in juvenile detention

facility have a constitutional right to rehabilitative treatment that includes individualized care).

Defendants have failed to ensure that youths receive adequate mental health treatment

and suicide prevention measures, including adequate supervision in hazard-free environments.

As a result, Defendants have exposed youths to serious harm and serious risk of harm from self-

injury at Rader. In many incidents, Defendants’ documents also indicate that, in a gross

departure from professional mental health care standards, mentally ill youths have been punished

for harming themselves. Moreover, Defendants’ documents do not provide any indication that

they were referred to or seen by a mental health clinician, which, unlike punishment, is the

appropriate response. The following incidents demonstrate a pattern of such violations:

•

On January 23, 2007, youth Ryan Hooper, who has a history of self-harming behavior as

described below, obtained a ruler from the staff’s desk cut his arm in his bedroom.

Youth Hooper was sent to the emergency room for medical treatment. 1USvOK077905.

•

On January 13, 2007, the medical area was left unlocked during pill call. Nurse Crystal

Foley had left her bottle of blood pressure medicine containing approximately 40 pills on

26

the desk in the medical area. Six hours later, the pills were noticed missing. A search recovered 15 pills from youth Ryan Hooper’s room. Youth Hooper was taken to the hospital, and he tested positive for methamphetamines. 1USvOK129120-129129.

•

On November 6, 2006, youth Verlin Boxer was on medium suicide watch when he broke

a mechanical pencil and swallowed it. Medium suicide watch requires line-of-sight

observation, but the unit log stated that he was on mild watch. Boxer had made threats

earlier that day that he would find a way to get on severe suicide watch, but his suicide

status was unchanged when he swallowed the pencil. Boxer had surgery to recover the

pencil, which also recovered 23 staples and a key that he had obtained from a sleeping

hospital security guard. An internal investigation found that staff had “sufficiently

supervised” him and given adequate medical care. 1USvOK120694-120703.

•

On October 27, 2006, youth Sean Cregg drank two full caps of cleaning fluid. Earlier

that day Cregg reported to staff that he was going to do something to get moved to the

Crisis Unit. Cregg was sent to the hospital and treated. 1USvOK077813-077814.

•

On October 24, 2006, youth Romeo Keishon told staff Manny Wilson that he did not

want to go back to his unit because of threats of physical assault from other unit youths.

He stated that he would continue to harm himself if he had to go back to the unit.

Keishon was placed in solitary confinement for one hour and fifteen minutes, and then

sent back to the crisis unit. At the crisis unit a nurse treated three self-inflicted wounds:

two scratches on his wrists, one that was 2 inches long and the other 1.5 inches long, and

a bite mark on the back of his hand. Both scratches were shallow. When the nurse came

to check his scratches, youth Keishon took the antibiotic ointment tube and ate

approximately three inches of ointment. He was placed on medium suicide watch. After

the incident, he continued to make suicidal comments and asked youth Verlin Boxer,

“what is the easiest way to kill myself? I am tired of my fucking life.” Keishon was

investigated for the “offense of attempting to harm himself.” 1USvOK102105-102118.

•

On October 5, 2006, youth Caleb Kingfisher attempted to commit suicide by making a

rope from his bed sheet and tying it around his neck. At the time of the incident,

Kingfisher was in the crisis unit on “normal fifteen minute watch.” Staff Orenthal Prince

heard choking noises coming from youth Kingfisher’s room. Kingfisher vomited shortly

after the attempt. 1USvOK095849-095853.

•

On September 14, 2006, youth Verlin Boxer was on suicide watch when he cut his neck

with a piece of a calculator. 1USvOK124412-124420. Another youth, Christian

Graham, had taken the calculator from Rachelle Obinakeze’s classroom and given it to

Boxer. 1USvOK095642-095645. A pencil, and pieces of tile, metal, pointed glass, and a

broken calculator were also recovered from Boxer that same day. 1USvOK124412-

124420.

•

On July 30, 2006, youths Nick DeMarco and Delonte Hart were alone in their unit

27

dayroom. They removed a large roll of toilet paper from an unlocked supply closet. They had made a four foot braided rope that youth DeMarco said he was going to use to kill himself before staff came into the room and confiscated the rope. DeMarco was disciplined for his self-injurious behavior. 1USvOK115235-115241.

•

On June 28, 2006, youth Ivan Velleques, while on “medium suicide watch,” went into the

bathroom unsupervised and used a broken piece of glass to cut his wrist. Velleques

stated that he was attempting suicide. Velleques went to the emergency room for the

three-inch laceration and sterile strips were used to close the laceration.

1USvOK095391-095395.

•

On May 1, 2006, youth Timothy French attempted suicide by tying one leg of his sweat

pants around his neck and the other leg around a bar on the ceiling. Another youth found

French. French was allowed to enter his room unsupervised, and, contrary to Rader’s

ratio policy, there was only one staff for 12 youths on the unit. 1USvOK077318-077327.

•

On April 26, 2006, youth Verlin Boxer wished to remove stitches from his toe. When the

medical staff refused and called for mittens so that he could not pull them out by hand, he

began to bite the stitches out. Security responded with the mittens and stopped Boxer.

Boxer was charged with self-mutilation and interfering with unit operations and punished

by being dropped in the Rader level system and assigned to early bedtime for one week.

1USvOK114212-114220.

•

On April 24, 2006, youth Steven Vincent was supposed to be on one-to-one supervision

when he took screws out of the wall. One report states that the youth swallowed three

screws, but in another he claims he did not. Staff Stan Donaldson denied that he was

aware that Steven Vincent was on any suicide precautions at the time. Records, however,

confirm that Vincent was on suicide watch. An internal investigation found that “these

allegations do not rise to the level of misconduct.” 1USvOK094858-094863.

•

On April 7, 2006, youth Verlin Boxer started twisting a blanket around, said he was

going to hang himself, and put the blanket around his neck. Boxer was disciplined for his

behavior. 1USvOK114166-114173; 1USvOK160902-160905.

•

On March 9, 2006, youth Verlin Boxer wrote “fuck you” in his own blood on the wall.

He had reopened an old wound. Boxer was placed on suicide precautions and was

disciplined for his behavior. 1USvOK114147-114153.

•

On March 8, 2006, youth Matt Nocioni told staff Leo Moskowitz that if he had a gun he

would kill himself. He was placed in the crisis unit for de-escalation but not suicide

watch, despite his statements to staff Moskowitz. In the crisis unit, he obtained a staple

on the bathroom floor, which he was allowed to enter unsupervised. Nocioni inserted the

staple into his hand. Medical saw him, but he was not scheduled to see the doctor to have

it removed until two days later on March 10, 2006. Youth Nocioni removed the staple

28

himself on March 9, 2006. An internal investigation found that there was insufficient evidence to prove staff neglect. 1USvOK077000-077012.

•

On February 24, 2006, youth Verlin Boxer put a piece of broom straw into his arm

through an opening from an older injury. Boxer was disciplined for this behavior.

1USvOK114142-114146.

•

On January 28, 2006, youth Verlin Boxer was observed with blood on his t-shirt and his

towel. When asked about the blood, he stated that it came from his toe. Eventually, he

was asked to lift up his t-shirt and staff observed number of cuts that were bleeding on

his stomach. Boxer stated that he had inflicted the scratches with a razor that he flushed

down the toilet. A search was conducted and he was disciplined for his self-harming

behavior. 1USvOK114103-114113.

•

On January 26, 2006, youth Sean Cregg offered to give pills he had hidden to staff. He

led staff into the bathroom, but when staff entered he was putting water in his mouth.

Another youth was in the bathroom at the time, and reported that Cregg swallowed at

least five pills. Just before this incident, youth Cregg and youth Kalon Morris admitted

that they received pills from youth Ryan Hooper. Hooper admitted that he had cheeked

his pills. 1USvOK109282-109291; 1USvOK109643-109650.

•

On January 2, 2006, youth Verlin Boxer was eating breakfast when he broke the spoon

and swallowed a piece of it. Boxer was placed on suicide watch and prohibited from

using utensils. Boxer was disciplined for this behavior. 1USvOK114062-114066.

In a series of troubling incidents of serious self-harming by three youths, Rader staff

failed to take basic measures to provide adequate supervision to prevent the youths from cutting

themselves to the point where hospitalization and stitches were required, failed to fix broken tiles

that the youths repeatedly used to seriously harm themselves, and failed to prevent the youths

from entering the area with broken tiles unsupervised. This series of events occurred as follows:

•

On May 4, 2006, youth Ryan Hooper self-mutilated with pieces of bathroom tile,

requiring a trip to the emergency room. Because of this, Hooper was punished with four

days of early bedtime and four days of extra detail. 1USvOK112308-112314.

•

Eleven days after youth Ryan Hooper mutilated himself with a broken bathroom tile, on

May 15, 2006, Hooper again self-mutilated with pieces of bathroom tile, again requiring

a trip to the emergency room. Preventive measures, such as repairing the bathroom,

apparently were not taken. Ryan Hooper was again punished for his self-harming

behavior. 1USvOK112264-112270 and 1USvOK112308-112314.

29

•

Astoundingly, on May 16, 2006, at 10:05 p.m., approximately an hour and 20 minutes

after youth Verlin Boxer had mutilated himself with broken bathroom tiles (see write-up

below), youth Ryan Hooper was on the Mental Health Stabilization Unit on suicide

watch when he went into the bathroom unsupervised and emerged with a bleeding arm.

He initially reported that he had cut himself with a piece of broken bathroom tile, but he

later reported that he had accidentally opened an old wound. He sustained two cuts to his

left arm and the one was approximately three inches long and 1/4 inch deep. He was

taken to the emergency room again and the lacerations were closed with medical glue. It

is not a surprise that after being disciplined twice in the previous two weeks for cutting

himself, Ryan Hooper reported that this was an accident. 1USvOK077437-077442.

•

On May 6, 2006, youth Matt Nocioni was on suicide watch when he cut his wrists with a

piece of tile while he was in the bathroom unsupervised. Youth Nocioni stated that he

received the tile from youth Ryan Hooper. 1USvOK095028-095033 and

1USvOK112287-112293.

•

On May 8, 2006, youth Verlin Boxer was in isolation in the crisis unit, when he was

observed bleeding from his left hand. When staff requested him to open up his hand, he

resisted but then eventually opened his hand and he was bleeding from his wrist. Staff

observed that he had put the object into his mouth. He eventually spit out a piece of

plastic. Youth Boxer was disciplined for his behavior. 1USvOK114240-114250.

•

On that same day, May 8, 2006, youth Verlin Boxer was on suicide watch when he used

a “piece of plastic (one report suggested it was part of a coke can)” to cut his upper wrist

area. Youth Boxer was taken to the emergency room three hours after the incident and

received seven stitches.4 1USvOK077354-077355.

•

On May 16, 2006, at 8:45 p.m., youth Verlin Boxer was on “severe” suicide watch in the

crisis unit, which requires one-to-one supervision. At this time, Boxer was also wearing

hand mitts to “redirect his self-abusive behaviors.” Although staff Cindy Henderson was

assigned to provide the one-to-one supervision, Boxer was able to turn his back to staff

Henderson and cut his hand with bathroom tile, requiring a trip to the emergency room

and four stitches. The entries during staff Henderson’s supervision are all missing from

the observation log. An internal review found that Henderson did not fail to give the

required level of supervision. 1USvOK077406-077436.

In sum, at this early stage in the litigation, Defendants have already produced documents

4

The May 8, 2006, incidents are listed as separate incidents because there are

multiple incident reports for two apparently different incidents. Due to the poor quality of the

report writing, however, it is possible that this incident is actually the same as the one that

precedes it.

30

showing a strong likelihood of success on the merits that Defendants have failed and continue to fail to protect youths at Rader from serious injuries and risk of serious injuries from: (1) rape and sexual assaults; (2) youth-on-youth assaults; (3) excessive use of force and inappropriate restraints; (4) youths’ possession of dangerous contraband; and (5) suicide and self-harm. IV. IRREPARABLE INJURY
Beyond the likelihood of success on the merits, this Court should consider whether irreparable injury will occur without the preliminary injunction. Summum, 483 F.3d at 1048. The above examples show that Defendants do not adequately protect youths from irreparable injuries, and the overwhelming number of incidents in this pattern shows that these injuries will continue without systemic changes.
“A plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (citing Tri-State Generation & Transmission Assoc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1354 (10th Cir. 1989)). When, as here, “an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura, 242 F.3d at 963 (quoting 11A Charles Alan Wright, et. al., Federal Practice and Procedure § 2948.1 (2d ed. 1995)). Moreover, because the United States is proceeding under Section 14141, which specifically authorizes injunctive relief, this Court should presume irreparable injury. See Kikumura, 242 F.3d at 963 (“When the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown.”) (quoting Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981)). Even without these
31

presumptions, the injuries are irreparable standing alone. The rapes and sexual assaults cause physical and possibly permanent mental damage that
money cannot effectively remedy. See Coker v. Georgia, 433 U.S. 584, 611-12 (1977) (Burger, C.J., dissenting) (finding that rape causes serious psychological and physical harm, and likely has an irreparable long range effect).
Similarly, the pain and suffering from the assaults and the danger from the excessive uses of force, improper restraints, and contraband constitute irreparable harm. See Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (holding that “pain, suffering and the risk of death” constitute irreparable harm sufficient to support a preliminary injunction in prison cases) (citing Von Colln v. County of Ventura, 189 F.R.D. 583, 598 (C.D. Cal. 1999) (“Defendants do not argue that pain and suffering is not irreparable harm, nor could they.”)). The above examples of youth-on-youth assaults, and excessive force and improper restraints by staff or other youths have resulted in grave physical harm in the form of contusions, lacerations, broken bones, unconsciousness, and emergency room visits, that likely could cause permanent damage or even death. Moreover, many of the above examples of illegal restraints involved choking, asphyxiation, and seizures that could have resulted in death. See Duran v. Anaya, 642 F. Supp. 510, 526-27 (D.N.M. 1986) (preliminarily enjoining prison from cutting security staff because resulting increased rates of physical assault, rape, and other forms of violence constitute irreparable harm). The inherent safety risks of youths participating in restraints of other youths, as evidenced above, may cause serious injuries to both youths involved in the restraint.
Regarding self-harm and attempted suicide, the above examples show that conditions present a continuing imminent risk of this physical harm to the youths. The repeated attempts of several youths to commit suicide and Defendants’ failure to decrease the imminent risks of
32

suicide notwithstanding, thankfully, there has not yet been a successful suicide at Rader. As depicted above, this self-injurious and suicidal behavior often ends in large cuts, stitches, emergency room visits, and even surgery. See Duran, 642 F. Supp. at 526-27 (preliminarily enjoining prison from reducing medical and mental health care staff because resulting deaths, extreme pain, and self-mutilation constitute irreparable harm). These repeated serious suicide attempts show that, if no action is taken, in addition to the serious injuries from suicide attempts, strong likelihood exists that a youth may successfully kill himself before the trial in April 2008.
This Court should order the remedies below to prevent future irreparable harms. See Hellig v. McKinney, 509 U.S. 25, 33-34 (1993) (holding that an inmate need not wait until after a tragic event occurs to seek an injunction to remedy unsafe prison conditions); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980) (finding that a prisoner need not wait until he is actually assaulted before obtaining injunctive relief remedying unsafe conditions). V. REQUESTED RELIEF
To remedy the risk of future unconstitutional rapes and sexual assaults, the United States requests, at a minimum, that the Defendants:
a. provide increased staff supervision and higher levels of supervision for youths with sexual offenses, predatory behavior, and other high-risk youths;
b. control access and egress to sleeping quarters, including an alarm system to detect unauthorized movement and staggering the times for staff patrols;
c. strictly monitor access to all bathrooms, showers, and other areas outside of staff line of sight; 33

d. institute policies and procedures for prompt, adequate investigations of rape, sexual assaults, and inappropriate sexual relationships, irrespective of youth recantations;
e. perform adequate background checks of staff, beyond the current intrastate database, to include a full NCIC check;
f. define guidelines for inappropriate relationships between staff and youths, and institute clear guidelines for staff punishment;
g. institute an adequate confidential reporting system for staff to report sexual misconduct by other staff;
h. institute a toll-free hotline for youths, their parents or guardians, and/or their attorneys to contact and report allegations of sexual misconduct; and
i. institute a system to analyze data to target problem areas to prevent future occurrences.
To remedy the unconstitutional risk of future harm from youth assaults, excessive uses of force and improper restraints, and contraband, the United States requests that the Defendants institute, at a minimum, the following measures:
a. provide increased staff supervision and higher levels of supervision for youths with predatory behavior and other high-risk youths;
b. control access and egress to sleeping quarters, including an alarm system to detect unauthorized movement and staggering the times for staff patrols;
c. strictly monitor access to all bathrooms, showers, and other areas outside of staff line of sight; 34

d. institute policies and procedures for prompt, adequate investigations of assaults and contraband;
e. immediately, and periodically, provide adequate competency-based training for all staff on the proper use of force and acceptable restraints;
f. adequately investigate all incidents of violence, use of force, restraints, and serious injuries, and take appropriate corrective action in response to findings;
g. immediately cease youth-on-youth restraints; h. institute a system to analyze data to target problem areas to prevent future
occurrences; i. institute a toll-free hotline for youths, their parents or guardians, and/or
their attorneys to contact and report allegations of assaults; j. conduct and document unannounced random searches of both youths and
facility units; k. implement adequate search procedures for youths returning from
vocational programs, visits, and off campus activities; l. establish and document regular inspection mechanisms to monitor the
proper management by staff of tools, hazardous chemicals and cleaning agents, and inventories; m. review contraband incidents and establish corrective actions including staff training and accountability for complying with required security practices; and n. institute a system of review to analyze data to target problem areas to
35

prevent future occurrences. To remedy the risk of future unconstitutional suicides and self-harm, the United States requests, at a minimum, that the Defendants:
a. immediately, and periodically, provide all direct care, medical, and mental health care staff with adequate suicide and self-harm prevention training, which stresses juvenile suicide research, potential predisposing factors to self harm, high-risk suicide periods, and warning signs and symptoms;
b. increase communication and documentation between staff regarding youths on suicide precautions;
c. perform routine inspections to ensure that suicidal youths are housed in suicide-resistant rooms and do not have access to suicide hazards such as broken tiles;
d. ensure that mental health staff perform daily assessments of youths on suicide precautions;
e. require unit managers to closely review Suicide Precaution Observation Records to ensure that direct care staff are observing suicidal youths as required;
f. require mental health care staff to review proposed youth disciplinary measures and cease punishing youths for attempted suicide, self-harm, and other indicators of mental health problems; and
g. ensure that youths who indicate they may engage in self-harm receive prompt and adequate treatment from a qualified mental health professional. 36

As the Defendants’ documents show above, youths at Rader are subjected to irreparable harm and risk of harm daily. This pattern of harm continues, and in some cases increased, despite the United States’ notification to Defendants of similar egregious incidents and systemic failures and minimal remedial measures in June 2005. Accordingly, this Court should order such equitable relief as necessary to enforce all remedies, e.g., direct periodic reporting to the Court and appointment of a neutral third-party to review and verify implementation of necessary remedies. VI. BALANCE OF HARMS
This Court must next determine whether the above threatened irreparable injuries outweigh whatever damage the proposed injunction may cause the Defendants. Summum, 483 F.3d at 1048. The severe injuries exemplified above all heavily outweigh the costs to the Defendants of remedying the unsafe conditions.
These injuries include rape, which “[s]hort of homicide, [ ] is the ultimate violation of self.” Coker, 433 U.S. at 597 (plurality) (internal quotation marks omitted); id. at 612 (Burger, C.J., dissenting). Beyond the rapes, the youth assaults, staff excessive force and improper restraints, and contraband cause severe physical injuries, including lacerations, broken bones, asphyxiation, seizures, contusions, unconsciousness, and emergency room visits. The attempted suicides and self-harm cause large cuts, stitches, emergency room visits, and even surgery - and possibly death.
Conversely, the requested relief will only cause the Defendants the minimal additional administrative costs necessary to ensure the safety of the youths. The physical and emotional damage to the youths, however, drastically outweighs these administrative costs. Ramos, 639 F.2d at 574 n.19 (“The lack of funding is no excuse for depriving inmates of their constitutional
37

rights.”); R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006) (granting preliminary injunction because, “[w]hile requiring defendants to adopt polices, procedures, and training so as to provide . . . a reasonably safe environment . . . may impose some administrative inconvenience, any burden on the defendants is minimal when viewed in light of defendants’ legal responsibility to provide a safe environment.”); see also Hadix v. Caruso, 461 F. Supp. 2d 574, 596-98 (W.D. Mich. 2006) (ordering, because of prison’s inadequate mental health care, a preliminary injunction that required increased staff, training, staff rounds, mental health protocols, and meetings).
Moreover, increased youth supervision, fewer youth assaults, and the decrease in contraband will increase the safety of Rader staff, which could significantly help to address the facility’s understaffing problem. Therefore, the balance tips decidedly in favor of reducing the unconstitutionally unsafe conditions. VII. PUBLIC INTEREST
Last, this Court must determine that the preliminary injunction would not be adverse to the public interest. Summum, 483 F.3d at 1048. This factor weighs unquestionably in favor of the preliminary injunction, because “there is the highest public interest in the due observance of all the constitutional guarantees.” United States v. Raines, 362 U.S. 17, 27 (1960). Beyond the Constitution, Congress highlighted the public interest in protecting juveniles from these types of harms when it enacted 42 U.S.C. § 14141.
A safe environment serves the public interest in protecting and rehabilitating its youths. The above remedies will provide a safer environment by helping protect youths from physical assaults and physical harm, including rapes, assaults, excessive force, self harm, and suicides. It is axiomatic that the public has no interest in seeing its youths raped, physically assaulted, or
38

physically harmed. While the public has an interest in confining and rehabilitating these youths, that interest is only served when the State uses proper force and restraints, and maintains a safe environment for the youths. See National Ass’n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33, 45 (D.D.C. 2000) (finding public interest served by reducing inappropriate restraints because they cause severe psychological and physical injuries). The above remedies will also help serve the public interest by improving both the mental and physical well being of the youths. Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (“The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.”). Thus, the public interest strongly supports the protection of the youths from the unsafe conditions caused by rape, youth assaults, excessive use of force and improper restraints, dangerous contraband, and attempted suicide and self harm. VII. CONCLUSION
Defendants’ own documents show an immediate and on going pattern or practice of harm and imminent risk of harm at Rader. These documents show that Defendants continually subject youths at Rader to risk of serious injuries from: (1) rape and sexual assaults; (2) assaults by other youths; (3) excessive use of force and inappropriate restraints by staff; (4) youths’ possession of dangerous contraband; and (5) suicide and self-harm. The balance of the equities strongly supports a preliminary injunction to decrease the imminent risk of these harms. Accordingly, the United States respectfully moves this Court to enter a preliminary order requiring the above requested remedies.
39

DAVID E. O’MEILIA United States Attorney Northern District of Oklahoma Attorney for Plaintiff
WYN DEE BAKER, OBA No. 465 Assistant United States Attorney Attorney for Plaintiff United States Attorney’s Office Northern District of Oklahoma 110 West 7th Street Suite 300 Tulsa, Oklahoma 74119 (918) 382-2700

Respectfully submitted,
WAN J. KIM Assistant Attorney General Civil Rights Division Attorney for Plaintiff
SHANETTA Y. CUTLAR Chief Special Litigation Section Attorney for Plaintiff
JUDY C. PRESTON Deputy Chief Special Litigation Section Attorney for Plaintiff
s/ Stacey K. Grigsby LAURA L. COON JE YON JUNG STACEY K. GRIGSBY SHAHEENA AHMAD SIMONS Trial Attorneys Attorneys for Plaintiff U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255

40

CERTIFICATE OF SERVICE
I hereby certify that today I caused a copy of the UNITED STATES’ MOTION FOR
PRELIMINARY INJUNCTION in United States of America v. State of Oklahoma, et al., Civil
Action No. 06-CV-673-GKF-FHM, to be served to the following individuals via electronic
filing:
Kindy Jones Assistant Attorney General Counsel for the State Defendants kindanne_jones@oag.state.ok.us
Richard Mann Assistant Attorney General Counsel for the State Defendants richard_mann@oag.state.ok.us
Jill Tsiakilos Assistant Attorney General Counsel for the State Defendants jill_tsiakilos@oag.state.ok.us
M. Daniel Weitman Assistant Attorney General Counsel for the State Defendants
Dated this 15th day of August, 2007.
s/ Stacey K. Grigsby STACEY K. GRIGSBY, ESQ.

 
 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA

The United States of America,

Plaintiff(s),

vs.

Case Number: 06-cv-673-GKF-FHM

The State of Oklahoma, et al,

Defendant(s).

ADMINISTRATIVE CLOSING ORDER
The Parties having entered into a Consent Decree, it is hereby ordered that the Clerk administratively terminate this action in his records, without prejudice to the rights of the parties to reopen the proceedings for good cause shown, including enforcement of the Consent Decree, for the entry of stipulation or order, or for any other purpose required to obtain a final determination of the litigation.
If, by March 09th, 2012, the Parties have not reopened this action, it shall be deemed dismissed with prejudice.
IT IS SO ORDERED this 10th day of September , 2008

 
 Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,

v.

)

STATE OF OKLAHOMA, et al.

Defendants.

) ) ) )
06-CV-673-GKF-FHM ) ) ) ) )

UNITED STATES’ EMERGENCY MOTION TO ENFORCE CONSENT DECREE, MOTION TO MODIFY CONSENT DECREE
AND INCORPORATED MEMORANDUM OF LAW The United States of America moves pursuant to Federal Rule of Civil Procedure 60(b)(5) and the Court’s inherent judicial powers for entry of an Order requiring Defendants to comply with the Consent Decree entered in this action on September 9, 2008 (Doc. 258) and to extend the term of the Consent Decree beyond the three-year term to which the parties had agreed in order to permit Defendants to comply with the Consent Decree. Defendants, through the Oklahoma Office of Juvenile Affairs (“OJA”), have refused to provide the United States with access to records regarding a recent incident of youth-on-youth violence between youth recently transferred from the L.E. Rader Center to one of its replacements, the Central Oklahoma Juvenile Center (“COJC”). This serious incident reportedly resulted in one youth’s emergency hospitalization for severe brain injury. Defendants also have refused the United States access to records and onsite inspection of COJC and the Southwest Oklahoma Juvenile Center (“SWOJC”), the two secure facilities that have been used to replace the L.E. Rader Center and to which most youth formerly held at the L.E. Rader Center have been transferred since April 2011.

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 2 of 18
Defendants’ actions violate Paragraph 103 of the Consent Decree, which guarantees the United States “full and complete access” to the L.E. Rader Center and any secure facility used to replace Rader. More importantly, Defendants’ denial of access to information regarding the transfer of youth from the L.E. Rader Center to its two replacement facilities and regarding youth who have been harmed at those facilities poses an immediate threat to the health and safety of youth in OJA’s custody, and will continue to do so in the absence of intervention by this Court. In support of this Motion, the United States provides as follows:
I. Factual and Procedural Background
1. The United States brought this action on December 15, 2006, pursuant to the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin Defendants from depriving youth confined at the L.E. Rader Center of the rights, privileges, or immunities secured to them under the Constitution or laws of the United States. In its Amended Complaint, the United States alleged, among other things, that Defendants engaged in a pattern or practice of failing to ensure that youth at the L.E. Rader Center are adequately protected from harm and from undue risk of harm, including abuse by other youth at Rader. (See Doc. 65 ¶ 17).
2. The United States entered into a Consent Decree with Defendants that was entered as an Order of this Court on September 9, 2008. (See Doc. 258).
3. The Consent Decree requires Defendants to implement remedial measures in the areas of Protection from Harm (Doc. 258 ¶¶ 35–60); Mental Health Care, Including Prevention of Suicide and Self-Harm (id. ¶¶ 61–82); Special Education (id. ¶¶ 83–92); and Investigations and Quality Assurance (id. ¶¶ 93–97).
2

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 3 of 18
4. The Consent Decree applies to youth housed at “Rader,” defined as “the L.E. Rader Center located at 13323 W. Highway 51, Sand Springs Oklahoma, or any secure facility that is used to replace Rader.” (Id. ¶ 27) (emphasis added).
5. The Consent Decree also provides that “DOJ and its experts shall be allowed full and complete access to Rader, all facility and OJA records related to Rader and this Consent Decree once every six (6) months.” (Id. ¶ 103).
6. Pursuant to its right of access per Paragraph 103, the United States requested records and noticed an onsite inspection of the L.E. Rader Center for February 2–3, 2011. See Ex. A at 2–6 (Letter from Shaheena Ahmad Simons to Dorothy Brown (December 30, 2010)). Due to a winter storm, the parties by mutual agreement cancelled the February inspection. See id. at 7 (Email from Dorothy Brown to Shaheena Ahmad Simons (January 31, 2011)). The United States informed the State of its intent to reschedule the inspection during the spring or early summer 2011. Id.
7. On April 14, 2011, the United States learned through news media reports of OJA’s plan to close the L.E. Rader Center by September 30, 2011. See Associated Press, Rader Center for Juvenile Offenders to Close, Apr. 14, 2011, http://muskogeephoenix.com/statenews/x325990815/Rader-center-for-juvenile-offenders-toclose (attached as Ex. B). OJA Executive Director Gene Christian reportedly stated that “the 50 juveniles at Rader will be transferred to other juvenile centers in the State.” Id.
8. The State informed the United States of the Rader Center’s anticipated closure by email on April 18, 2011. See Ex. A at 8–10 (Email from Dorothy Brown to Shaheena Ahmad Simons (Apr. 18, 2011)).
3

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 4 of 18
9. On April 19, 2011, the United States requested information regarding OJA’s plans for transferring youth and programs from the L.E. Rader Center in light of its anticipated closure. See id. at 11–14 (Email from Shaheena Ahmad Simons to Dorothy Brown (Apr. 19, 2011)).
10. During a conference call on May 3, 2011, the United States inquired as to the State’s plans for transferring youth from the L.E. Rader Center. OJA suggested that it may use the Tulsa Jail or another adult facility as a Behavioral Management Unit (“BMU”). The United States expressed concern about this suggested transfer and again requested that OJA produce its transition plan for the United States to review and to provide technical assistance to ensure the safe transfer of youth from the L.E. Rader Center.
11. On May 19, 2011, the United States learned through news media reports that OJA requested legislation that would allow OJA to contract with the Tulsa Jail to house violent juvenile offenders. See Barbara Hoberock, OJA-Tulsa Jail Bill is Advanced, Tulsa World, May 19, 2011, http://www.tulsaworld.com/news/article.aspx?subjectid=504&articleid=2011051 9_16_A11_OKLAHO782808 (attached as Ex. C). See also Gavin Off, Some Rader Youths Could Land in Tulsa Jail After Center Closes, Tulsa World, May 22, 2011, http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20110522_11_A1_TheTu l99232 (attached as Ex. D); Randy Krehbiel, Bill Curbing Uninsured Accident Victims Goes to Governor: Juvenile Offenders, Tulsa World, May 20, 2011, http://www.tulsaworld.com/news/art icle.aspx?subjectid=16&articleid=20110520_16_A7_OKLAHO414125 (attached at Ex. E) (“The bill is in response to the expected closing this fall of the L.E. Rader Center in Sand Springs. Rader has the state’s only maximum-security juvenile unit.”).
4

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 5 of 18
12. On May 23, 2011, the United States again asked OJA to provide a copy of the State’s post-L.E. Rader transition plan. See Ex. A at 15 (Email from Shaheena Ahmad Simons to Dorothy Brown (May 23, 2011)).
13. Having received no response from the State regarding the transition plan, the United States once again requested a copy of the plan on June 1, 2011. At that time, the United States again expressed concern with news media reports of the State’s plans to use adult jail facilities to house violent juvenile offenders. See id. at 16–17 (Email from Shaheena Ahmad Simons to Dorothy Brown (June 1, 2011)).
14. On June 2, 2011, OJA finally produced a draft copy of its post-L.E. Rader transition plan. See id. at 18–19 (Email from Dorothy Brown to Shaheena Ahmad Simons (June 2, 2011)).
15. By letter to the State on June 8, 2011, the United States provided feedback on the proposed post-L.E. Rader transition plan. Specifically, the United States advised that the proposed plan did not in any detail consider the need to increase staffing at COJC or SWOJC to adequately serve youth with more intensive treatment and supervision needs. The United States expressed concern that the proposed transition plan did not in any way address how OJA would accommodate youth who were in special programs, such as Rader’s Intensive Treatment Program (“ITP”) and Sex Offender Treatment Program, in the medium or low security placements at COJC or SWOJC. In light of these and other concerns, the United States warned that a failure to plan adequately for these elements of the transition would place transferred youth at risk of harm and endanger degradation of conditions at COJC or SWOJC. In order to ensure that the transfer of youth from the L.E. Rader Center to COJC or SWOJC would be accomplished without compromising overall youth safety, the United States offered to provide
5

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 6 of 18
OJA with technical assistance with its transition plan and asked that OJA provide more comprehensive details on the mental health and educational services that would be provided to youth, transferred together with recent Performance-Based Standards data and monthly reports from COJC and SWOJC. See id. at 20– 21 (Letter from Shaheena Ahmad Simons to Dorothy Brown (June 8, 2011)).
16. On June 9, 2011, the United States advised the State that because OJA had already begun transferring youth from the L.E. Rader Center in accordance with its plan to shut down the facility by September 30th, the physical on-site inspection of the Center that was to be rescheduled for summer 2011 would no longer be an efficient use of the Government’s resources or serve the purposes of comprehensive compliance review under the Consent Decree. To better utilize the Government’s resources and the expert consultants’ time, the United States requested to conduct an on-site inspection of COJC and any part of the Tulsa Jail that might be used as a BMU for youth transferred from the L.E. Rader Center. See id. at 22–24 (Email from Shaheena Ahmad Simons to Dorothy Brown (June 9, 2011)).
17. Having received no response from the State regarding the requests to access COJC and the Tulsa Jail, see id. at 25–28 (Email from Dorothy Brown to Laura L. Coon (June 16, 2011) (advising that the State Attorney General had not responded to the United States’ requests for access)), the United States wrote the State on June 22, 2011, reiterating its requests from the June 8th letter and asking for additional documentation of the State’s level of compliance under the Consent Decree. See id. at 29–32 (Letter from Shaheena Ahmad Simons to Dorothy Brown (June 22, 2011)). Once again, the United States offered to provide technical assistance on the transitioning of youth from the L.E. Rader Center to prevent erosion of the
6

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 7 of 18
tenuous improvements made at the L.E. Rader Center and to ensure the safety of youth in OJA’s custody when transferred to replacement juvenile facilities. See id.
18. The State produced most of the requested compliance documents on July 22, 2011. The State did not, however, provide any of the policies, procedures, and forms for the Diagnostic and Evaluation (“D&E”) Program at the L.E. Rader Center, as the State had already terminated that program and resumed its use of the mobile assessments that were in place at the time the Consent Decree was entered in 2008. The State also declined the United States’ offer of technical assistance in that regard. See Ex. A at 33–35 (Letter from Dorothy Brown to Shaheena Ahmad Simons (July 22, 2011)).
19. By the same letter, the State also advised that it would not produce any of the requested Performance-Based Standards data and monthly reports from COJC and SWOJC, stating that this information falls outside the parameters of the Consent Decree. See id.
20. On August 1, 2011, the United States learned through news media reports that the last youth had been transferred from the L.E. Rader Center, the State’s only maximum-security juvenile facility. See Barbara Hoberock, Last Juvenile Transferred from Rader, Tulsa World, Aug. 1, 2011, http://www.tulsaworld.com/news/article.aspx?subjectid=326&articleid= 20110801_326_0_OKLAHO614139 (attached as Ex. F); Associated Press, The Last of the Juvenile Offenders Housed at the LE Rader Center Leave, Facility to be Razed, The Republic, Aug. 2, 2011,http://www.therepublic.com/view/story/c94d6c19f2db480f841be8aea890c57d/OK-Rader-Closing/ (attached as Ex. G).
21. On August 11, 2011, the United States learned through news media reports that, during the prior week, a boy transferred from the L.E. Rader Center to COJC as part of the Rader closing plan was severely beaten by another youth in a vicious attack that left the boy with a
7

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 8 of 18
serious brain injury. See Randy Ellis, Oklahoma Agency Denies Facilities are Ill-Equipped to Handle Violent Youths, NewsOk, Aug. 11, 2011, http://newsok.com/oklahoma-agency-deniesfacilities-are-ill-equipped-to-handle-violent-youths/article/3593405?custom_click=rss (attached as Ex. H). According to the report, a Rader employee who asked to remain anonymous advised that COJC and SWOJC are not well equipped to handle the extremely violent juveniles and juvenile sex offenders who have been transferred there during the last several weeks. Id. That employee also reportedly advised that other “[e]mployees at Rader have been getting ‘desperate calls’ from employees of the other institutions [COJC and SWOJC] asking how to deal with transferred juveniles.” Id.
22. Immediately upon learning of these reports, the United States contacted the State on August 11, 2011, and requested details regarding the circumstances of the injury and an update on the injured child’s condition. See Ex. A at 36 (Email from Shaheena Ahmad Simons to Dorothy Brown (Aug.11, 2011)).
23. The United States followed up with a letter to the State on August 15, 2011, reiterating its request for details about the youth-on-youth altercation and again expressing concerns that OJA has not adequately planned for the management of Rader youth—many of whom have intensive mental health and security needs—at medium-secure facilities like COJC and SWOJC. The United States asked that the State reconsider its refusal to provide documents or allow access to the facilities where youth transferred from the L.E. Rader Center have been placed, emphasizing that such review and inspection serves the parties’ shared interest in ensuring the safety of youth in OJA’s care. See id. at 37–38 (Letter from Laura L. Coon to Dorothy Brown (Aug. 15, 2011)).
8

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 9 of 18
24. On August 23, 2011, the State responded in no uncertain terms that it would not reconsider the United States’ request to inspect the facilities where youth from the L.E. Rader Center have been transferred and would not provide any information regarding the injured youth who was the subject of the August 11th news report or regarding any other incidents occurring at other OJA facilities to which Rader youth have been transferred. See Ex. A at 39–40 (Letter from Dorothy Brown to Laura L. Coon (Aug. 23, 2011)).
25. On August 29, 2011, the United States learned from news media reports that the two juveniles involved in the youth-on-youth altercation reported August 11th were in the sleeping rooms at the medium-security COJC. See Randy Ellis, Nighttime Attack Exposes Security Weakness in Oklahoma’s Juvenile Detention System, NewsOk, Aug. 29, 2011, http://newsok.com/nighttime-attack-exposes-security-weakness-in-oklahomas-juveniledetention-system/article/3599254 (attached as Ex. I). Unlike the ITP Unit that previously existed at the L.E. Rader Center, according to the Executive Director of OJA, the sleeping rooms at COJC “are cubbyholes off a large community room. . . . [that] do not have doors and can’t be locked.” Id. State legislative leaders are also reportedly “concerned about the incident and whether a situation exists that endangers the safety of state juveniles and employees,” but the OJA Executive Director reportedly said that “juvenile and medical confidentiality laws prevent him from releasing any information about the names or ages of the two boys or the extent of the victim’s injuries or current condition.” Id.
26. According to most recent news media reports, the OJA Executive Director— contrary to OJA’s previous representations made to the United States—now “believes serious consideration should be given to isolating a section of an adult jail, like the Tulsa jail, and staffing it with juvenile staff members and juvenile programs to handle violent adult youth.” Id.
9

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 10 of 18
II. Argument
The terms contained in the Consent Decree (Doc. 258) are incorporated into this Court’s Order of September 9, 2008, and thus are fully enforceable through the equitable powers and authority vested in this Court. See Frew v. Hawkins, 540 U.S. 431, 441 (2004) (“When a federal court has entered a consent decree under Ex parte Young, the law’s primary response to these concerns has its source . . . in the court’s equitable powers and the direction given by the Federal Rules of Civil Procedure.”); Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 378 (1992) (“A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.”) See also Floyd v. Ortiz, 300 F.3d 1223, 1226 (10th Cir. 2002) (“A trial court retains jurisdiction to enforce consent decrees”).
The scope of the district court’s equitable powers under the Consent Decree extends not only to enforce the Consent Decree’s terms, but also to modify material provisions of the decree if changed circumstances warrant such modification. See David C. v. Leavitt, 242 F.3d 1206, 1210 (10th Cir. 2001) (“[A] court’s equitable power to modify its own order in the face of changed circumstances is an inherent judicial power that cannot be limited simply because an agreement by the parties purports to do so.”).
This equitable power is reflected in Federal Rule of Civil Procedure 60(b)(5), which provides that a court may relieve a party from an order when applying it prospectively is no longer equitable. See Rufo, 502 U.S. at 380–81, 112 S. Ct. at 758–59 (explaining that Rule 60(b)(5) “permits a less stringent, more flexible standard” and that the approach taken by the
10

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 11 of 18
federal courts “in implementing and modifying such decrees has demonstrated that a flexible approach is often essential to achieving the goals of reform litigation”).
The Tenth Circuit has recognized that in exercising its broad powers to modify its own orders, a Court “is not limited to modification of ambiguous provisions,” but may modify even bright-line termination dates where additional time is necessary to affect the goals of the decree. David C. v. Leavitt, 242 F.3d at 1211. See also South v. Rowe, 759 F.2d 610, 613 (7th Cir. 1985) (“Of course, the parties could not agree to restrict the court’s equitable powers to modify its judgment enforcing the consent decree, including the two-year limitation period, in light of ‘changed circumstances.’”).
Here, the Consent Decree guarantees the United States “full and complete access to Rader.” (Doc. 258 ¶103). “Rader” is defined in the Consent Decree as “the L.E. Rader Center located at 13323 W. Highway 51, Sand Springs Oklahoma, or any secure facility that is used to replace Rader.” (Id. ¶ 27) (emphasis added). “Replace” means “to assume the former role, position, or function of; substitute for (a person or thing).” Replace Definition, Dictionary.com, http://dictionary.reference.com/browse/replace (last visited Aug. 29, 2011). The juvenile facilities to which the State of Oklahoma has transferred youth formerly housed at the L.E. Rader Center—particularly COJC and SWOJC—are secure facilities that have been used to “replace” Rader. Therefore, United States’ right of access to “Rader” pursuant to the Consent Decree extends to these and any other facilities that the State has used to transfer youth from Rader since it announced its intent to close that facility in April 2011. The State’s refusal to allow the United States to access records or to inspect these facilities violates Paragraph 103 of the Consent Decree.
11

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 12 of 18
The State’s denial of access has not been without consequence. While the United States has been seeking access to the other facilities to which youth have been transferred, youth have been transferred without adequate implementation of a plan to ensure the safety and security of youth and facility staff at the Rader replacement facilities. Indeed, a youth recently transferred from Rader to COJC has reportedly suffered a severe brain injury as a result of a violent assault by another youth, who reportedly had assaulted that youth while the two were housed at Rader. Notwithstanding the Consent Decree’s terms providing for the protection of youth from violence by other youth and the right of the United States and its expert consultants to access records regarding such incidents at Rader—which by definition includes COJC—the State has unequivocally refused the United States’ requests for documentation related to this incident and to any other incident that may have occurred at the facilities. Indeed, in the absence of a court order to produce this information, the United States is forced to rely on news media reports and confidential sources for information as to what is occurring at the Rader replacement facilities. Without this information and details regarding the transfer of youth to other state facilities, the United States is unable to assess the safety of transferred youth, who appear to be at serious risk of harm. As one of the United States’expert consultants advised in her most recent compliance report:
Due to the unique delinquency histories and clinical needs of many Rader youth, such as sex offending behavior, it must be stressed that the practices implemented at Rader under this provision [III. A. 36. Safe Housing and Supervision] should be continued wherever those youth are subsequently placed in order to ensure the safety of the Rader youth being transferred and other youth housed with them. Because COJC and SWOJC lack maximum security features, staffing will likely need to be enhanced to ensure the safety of residents at those facilities. Anne M. Nelsen, Monitoring Compliance Report: Protection from Harm 5 (Aug. 30, 2011) (attached as Ex. J). Throughout the three-year term of the Consent Decree, the State has never
12

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 13 of 18
achieved substantial compliance with the terms of the Safe Housing and Supervision provision. See id. at 3–4 (documenting State’s level of compliance throughout the Consent Decree).1 Nor
has the State ever achieved substantial compliance with the terms of the Internal Classification
and Unit Transfers Provision (III. A. 52). Id. at 4. Indeed, in Ms. Nelsen’s latest report, she
explained how the State has failed to implement her recommendations made in previous
compliance reports related to initial screening decisions and classification:
In my previous reports, I did recommend that the initial placement decision be made earlier than the two weeks after admission as allowed in the Rader procedure. I still believe that Rader, and presumably, other OJA facilities, have sufficient information, as indicated by the extensive screening that is required by procedure, to make initial classification decisions as part of the admissions process, and should not need to wait two weeks. Prompt classification decisions would help to achieve safety in placement.
Id. at 19–20.
In the area of mental health services, the State has likewise failed to achieve substantial
compliance with important provisions of the Consent Decree designed to ensure that youth with
serious mental illness and at risk of suicide are adequately assessed. As Dr. DePrato explained
with respect to the State’s failure to achieve substantial compliance with Paragraph 76 (Mental
Health Assessment), “there is no evidence of a mental health assessment format, procedure, or
report that is consistent with this provision.” Debra K. DePrato, Mental Health Compliance
Report 26–27 (Aug. 30, 2011) (attached as Ex. K).
Psychological testing is one possible component of a mental health assessment, not a stand alone, as outlined in the materials sent by Rader. This has been noted on each and every site visit, with recommendations made and technical assistance offered each visit. I
1 A “Substantial Compliance” (SC) rating means that the “State is complying with all major components of the provision. The facility’s practices address the requirements of the provision for most of the youth, most of the time. Policies are comprehensive and appropriately detailed and staff consistently implements them. The facility quickly rectifies episodic problems and minimizes program disruption. Isolated incidents of non-compliance do not preclude a finding of substantial compliance. At the same time, temporary compliance during a period of sustained non-compliance does not constitute substantial compliance.” Ex. J at 3.
13

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 14 of 18
requested a format and example of a Mental Health Assessment, but none was offered in the materials. This is an essential process for mental health clinicians to perform at any institution whether upon intake or at any time during the youth’s stay. Id. at 27. Furthermore, the United States is concerned about the State’s reported intent to send some juvenile delinquents to adult jail facilities, notwithstanding representations made in its June 2, 2011 email. News reports since that time indicate that the OJA Executive Director has advocated for the use of the Tulsa Jail as a collocated facility, and legislation lobbied for by OJA was enacted this spring that would permit the transfer of youth to adult facilities. As the United States has informed the State, research shows that youth housed in adult correctional facilities have the highest suicide rates of all inmates in jails: those juveniles are 36 times more likely to commit suicide in adult jail than in a juvenile detention facility. See Federal Advisory Committee on Juvenile Justice, 2008 Annual Report 10, available at http://www.facjj.org/annualreports/FACJJ%20Annual%20Report%2008.pdf. Research also indicates that “transferring youth to the adult criminal justice system typically increases rather than decreases rates of violence among transferred youth.” Id. The United States files this Emergency Motion for Access because it cannot allow youth to remain under the risk of imminent harm while attempting to persuade the State to comply with the terms of the Consent Decree and provide information about the facilities to which youth have been transferred. “Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced. Frew, 540 U.S. at 440. The United States also requests that the Court modify the Consent Decree to extend its term beyond the three-year termination date provided in Paragraph 114. As explained above, the United States has not been able to access records or information related to the transfer of youth
14

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 15 of 18
from the L.E. Rader Center to other state facilities despite its attempts over the last several months. The L.E. Rader Center contained the State’s only maximum-security beds for juveniles, and the United States has not been provided with details about the policies and procedures implemented at COJC and SWOJC to address the mass transfer of youth with intensive needs from the L.E. Rader Center. It is impossible that the United States would receive this information and be able to provide any assessment or technical assistance by September 9, 2011, which is the current termination date. In addition, the review conducted by the United States’ expert consultants of Rader compliance documents submitted on July 22, 2011 indicate many areas where the State remains non-compliant—areas in which the State has never achieved substantial compliance throughout the three-year term of the Consent Decree. See Kelly Dedel, Fifth Compliance Report: Investigations, Suicide Precautions, Quality Assurance 3 (Aug. 30, 2011) (attached as Ex. L) (recording State’s level of compliance during Consent Decree’s term and showing ratings of non-compliance (NC) with Paragraph 93 (Investigations) for 3/5 rating periods, Paragraph 94 (Quality Assurance Programs and Action Plans) for 4/5 rating periods, and Paragraph 95 (Quality Assurance Team) for 4/5 rating periods); Anne M. Nelsen, Monitoring Compliance Report: Protection from Harm 5 (Aug. 30, 2011) (attached as Ex. J) (recording the State’s level of compliance with Paragraph 52 (Internal Classification and Unit Transfers) during entirety of Consent Decree’s term at only Partial Compliance). See also Debra K. DePrato, Mental Health Compliance Report 7–8 (Aug. 30, 2011) (attached as Ex. K) (finding that, by the end of the Consent Decree’s term, the State achieved only partial compliance with 14/20 provisions.).
The State’s continued non-compliance with these terms, coupled with the events that have transpired over the last several months constitute sufficiently changed circumstances that
15

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 16 of 18

warrant equitable modification of the Consent Decree to extend the three-year expiration date. See David C. v. Leavitt, 242 F.3d at 1212–13 (affirming the district court’s exercise of its equitable power to modify the termination provision of the consent decree due to the State’s failure to achieve substantial compliance with several provisions of the decree at the end of the four-year period).

WHEREFORE, the United States respectfully requests that this Court grant this Emergency Motion to Enforce the Consent Decree and Motion to Modify Consent Decree and enter an Order:
1. Directing Defendants to produce comprehensive details on the mental health and educational services provided to youth transferred from the L.E. Rader Center to COJC, SWOJC, or any other secure facilities used to “replace” Rader, as well as plans for staffing and supervision of these youth;
2. Directing Defendants to produce recent Performance-Based Standards data and monthly reports from COJC and SWOJC; and
3. Directing Defendants to allow the United States and its expert consultants full and complete access to Rader, as defined in the Consent Decree, and all facility and OJA records related to Rader and this Consent Decree, including but not limited to all records regarding the youth involved in the youth-on-youth assault at COJC reported on August 11, 2011.

DATED Washington,

this 1st day of September, 2011 District of Columbia

16

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 17 of 18

Respectfully submitted, FOR THE UNITED STATES:

THOMAS SCOTT WOODWARD United States Attorney Northern District of Oklahoma

THOMAS Assistan
Civil

E. PEREZ t Attorney General Rights Division

WYN DEE BAKER, OBA No. 465

Assistant United States Attorney

Chief

Special

United States Attorney’s Office

Northern District of Oklahoma

110 West 7th Street, Suite 300

Tulsa, Oklahoma 74119

LAURA

(918) 382-2700

Special

JONATHAN M. SMITH
Litigation Section
s/Laura L. Coon L. COON
Counsel Special Litigation Section

SHAHEENA
U.S. Civil Special 950 Washington, (202)

AHMAD SIMONS MARLYSHA MYRTHIL Trial Attorneys
Department of Justice Rights Division
Litigation Section Pennsylvania Avenue, N.W.
D.C. 20530 514-6255

17

Case 4:06-cv-00673-GKF-FHM Document 260 Filed in USDC ND/OK on 09/01/11 Page 18 of 18
CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing Emergency Motion to Enforce Consent Decree and Motion to Modify Consent Decree was electronically filed with the Clerk of the United States District Court for the Northern District of Oklahoma on this 1st day of September, 2011, using the CM/ECF System, which will provide notice of such filing to all parties.

s/Laura
U.S. Civil Special 950 Washington, (202)

L. Coon LAURA L. COON Special Counsel Special Litigation Section
Department of Justice Rights Division
Litigation Section Pennsylvania Avenue, N.W.
D.C. 20530 514-6255 laura.coon@usdoj.gov

18

 
 Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA Plaintiff,
vs.
STATE OF OKLAHOMA; et al. Defendants.

)

)

)

)

Case No. 06-CV-673-GKF-FHM

)

)

)

DEFENDANTS’OBJECTION TO PLAINTIFF’S MOTION TO ENFORCE CONSENT DECREE, MOTION TO MODIFY AND BRIEF IN SUPPORT

Defendants, State of Oklahoma and the Office of Juvenile Affairs, object to Plaintiff’s Motion to Enforce Consent Decree, Motion to Modify Consent Decree and Incorporated Memorandum of Law. [Dkt. 260 & 261]. In support of their objection, Defendants show the Court as follows:
STATEMENT OF THE CASE

In 2004, Plaintiff notified the State of Oklahoma of its intent to investigate the conditions of confinement at the L.E. Rader Center (Rader) located in Sand Springs, Oklahoma. See Consent Decree at ¶ 1& 2. [Dkt. 258]. In 2005, Plaintiff issued a finding letter alleging that certain conditions at Rader violated the constitutional rights of juveniles confined at Rader. See Consent Decree at ¶ 3. [Dkt. 258]. In 2006, Plaintiff filed this action, concerning the conditions of confinement at Rader. See Consent Decree at ¶ 1. [Dkt. 258]; see also Amended Complaint at ¶ 1, 5, 15 & 17. [Dkt. 65]. After extensive litigation, Plaintiff, the State of Oklahoma and the Office of Juvenile Affairs, entered into a three (3) year consent decree, which is to end September 9, 2011. See Consent Decree at ¶ 114. [Dkt. 258]. In doing so, the parties agreed that the Consent Decree was governed by the Prison Litigation Reform Act, 18 U.S.C. §3626, and that for purposes of the Consent Decree and to settle this matter, it complied in all respects with the provisions of the PLRA. See Consent Decree at ¶ 7. [Dkt. 258]. Specifically, the parties to the Consent Decree stipulated that the Consent Decree was

1

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 2 of 16
“narrowly drawn and extends no further than necessary.” See Consent Decree at ¶ 10. [Dkt. 258].
Despite many disingenuous statements made by Plaintiff, it concedes that there are no youth currently residing at Rader and that the facility is being closed. [Dkt. 260 at ¶ 20]. Rather than conceding this effectively ends this litigation, Plaintiff seeks to dramatically expand the Consent Decree in time and scope into parameters never contemplated by the parties and certainly not permitted by the PLRA. The State of Oklahoma and the Office of Juvenile Affairs (collectively referred to as OJA)1 object. OJA requests this Court deny Plaintiff’s request. Defendants anticipate filing a motion to dismiss for many of the same reasons set forth herein.
RESPONSE TO PLAINTIFF’S FACTUAL AND PROCEDURAL BACKGROUND 1. OJA admits that Plaintiff filed this action against all Defendants regarding the treatment of the youth confined at Rader. At all times relevant to this action and before, OJA has operated two (2) other institutions: Central Oklahoma Juvenile Center (COJC) located in Tecumseh, Oklahoma and Southwest Oklahoma Juvenile Center (SWOJC) in Manitou, Oklahoma. Both of these institutions precede the existence of Plaintiff’s 2004 investigation.2 (See Plaintiff’s Exhibit B). 2. OJA admits that OJA entered into a three (3) year consent decree, which is to end September 9, 2011. The parties agreed “[under no circumstances will this Consent Decree be extended beyond
1 The only named Defendants to the Consent Decree are the State of Oklahoma and the Office of Juvenile Affairs. See Consent Decree at ¶ 6. [Dkt. 258].
2 In light of the shortened time frame for response, OJA was not able to provide affidavits regarding the length of operations of these two (2) facilities. However, it appears the legal existence of COJC has been statutorily recognized since 1968. 10A O.S. § 2-7-606. SWOJC was authorized in 1995. 10 O.S. § 2-7-608B. There are other facts asserted in OJA’s response that are also not supported by admissible evidence. If this Court is inclined to conduct a hearing on Plaintiff’s motion, OJA recognizes its obligation to present proper evidence to support these contentions.
2

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 3 of 16
the three (3) year period unless by agreement of the parties and the Court that some portion of the Consent Decree needs to be extended for compliance.” See Consent Decree at ¶ 114. The parties to the Consent Decree also stipulated the applicability of the PLRA. A reality, Plaintiff does not address and clearly, would rather this Court disregard. See Consent Decree at ¶ 7. [Dkt. 258] 3. Plaintiff misstates the terms of the Consent Decree. The Consent Decree provided for substantive remedial measures in three areas: Protection from Harm (¶ 35 - 60); Mental Health Care, Including Prevention of Suicide and Self-Harm3 (¶ 61 - 82); and Special Education4 ( ¶ 83 - 92). [Dkt. 258]. Investigations and Quality Assurance are not a substantive remedial measure. They are simply tools to be used by OJA and Plaintiff to track and document progress and compliance. Investigations and Quality Assurance (¶ 93 - 101). [Dkt. 258]. 4. OJA admits the wording of the Consent Decree, however, OJA has not replaced Rader. As Plaintiff repeatedly points out, Rader was OJA’s only maximum secure facility. See Plaintiff’s Motion at ¶ 11, 20, p. 12, 15. [Dkt. 260]. For a variety of reasons, including the closure of Rader, OJA has transferred youth from Rader to several different placements, including its two other institutions COJC located in Tecumseh, Oklahoma and SWOJC in Manitou, Oklahoma. Throughout its history, OJA has transferred youth between its institutions. This is not a new practice. This is not an uncommon occurrence and and has occurred throughout the Consent Decree. Plaintiff is aware of this practice. These institutions do not replace Rader. OJA had three institutions. Now it has two. (See Affidavit of Elizabeth Stewart attached as Exhibit 1). This action has never focused on the terms
3 While not at issue at this time, OJA is pleased to advise the Court, that throughout its forty year history, no youth at Rader committed suicide.
4 Plaintiff fails to advise the Court that OJA has been in substantial compliance with the Special Education Provision since July 2010.
3

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 4 of 16
and conditions of COJC or SWOJC. The closure of Rader does not justify expansion of this case into other judicial districts and other institutions which were in existence, which Plaintiff did not deem necessary to investigate or include in this action. 5. As is evidenced in Exhibits J through L to Plaintiff’s Motion, throughout the term of this Consent Decree, OJA has fully cooperated in making Rader, its staff, the youth at Rader, its policies and any other documents related to the Consent Decree available to Plaintiff and their experts. However, Plaintiff has failed to uphold its end of the agreement, and now claims an emergency regarding certain facts it has been well aware of for a significant period of time. For example, in February of 2010, OJA wrote to Plaintiff advising that it was very possible that Rader would be closed and asked Plaintiff to provide its view of the applicability of the Consent Decree in the event that youth at Rader were transferred to OJA’s current facilities. (See February 1, 2010 Letter from Dorothy Brown to Laura Coon attached as Exhibit 2). Rather than candidly engaging in a discussion of the issue and perhaps engaging in the good faith negotiations anticipated by the Consent Decree, [Dkt. 258 at ¶ 112], Plaintiff claimed to need more facts to express even a preliminary view on the matter and indicated any recommendations they made would be subject to “review and approval by the appropriate decisionmakers (sic) within the Department of Justice.” (See February 4, 2010 Letter from Laura Coon to Dorothy Brown attached as Exhibit 3). During the July 2010 site visit, OJA advised Plaintiff that Rader would be closing in the next two (2) years. (See Report of Debra K. Deprado attached as Plaintiff’s Exhibit K at p. 4) [Dkt. # 260-11, at p. 7]. Plaintiff made no further inquiries into this decision or the transition process until Spring 2011. 6. OJA agrees that the parties had agreed on a site visit for February 2011 that was cancelled due to weather. Pursuant to Plaintiff’s request, OJA had provided Plaintiff and their experts with substantial documentation to prepare for the site visit. Even though Plaintiff was well aware of OJA’s
4

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 5 of 16
plans to close Rader, it not only failed to reschedule the site visit, but declined to provide expert reports or a compliance report, as envisioned by the Consent Decree. [Dkt. 258, ¶¶ 98 - 109]. (See Plaintiff’s Exhibit A at p. 25) [Dkt. 260-1]. 7. While OJA does not doubt that Plaintiff’s did read the public announcement regarding the closure of Rader, as set forth above, Plaintiff knew of OJA’s plan to close Rader well before this date. The public announcement was made April 14, 2011. OJA is quite aware that Plaintiff monitors the newspapers for any word of Rader and OJA. Even if the Court is inclined to accept Plaintiff’s implication that this was the date it first became aware of OJA’s decision to close Rader, it still had months to come to Rader and discuss OJA’s plans regarding the closure and transition of youth from Rader to its other facilities. 8. Plaintiff misstates the purpose of this communication. In the communication OJA is simply advising Plaintiff that OJA has “publically announced the closure of Rader.” (Plaintiff’s Exhibit A at p. 8) [Dkt. 260-1]. 9. Plaintiff overstates its April 19, 2011 inquiry. In her email, Plaintiff’s attorney simply asks that OJA “keep us posted on transition plans, especially where the youth are headed. We should talk at some point soon.” This was not the primary purpose of the email. The primary purpose of the email was to attempt to schedule a conference call scheduled for May 2 or 3, 2011, and confirm the site visit for the week of June 27, 2011. (Plaintiff’s Exhibit A at p. 11) [Dkt. 260-1]. 10. OJA admits that it engaged in a conference call with Plaintiff and its mental health expert on May 3, 2011 regarding the expert’s review of documents OJA had produced in anticipation of the February 2011 site visit and OJA’s progress towards bringing Rader into compliance with the Consent Decree. Plaintiff has attached no evidence to document concerns it expressed during this conversation regarding transfers of the Rader youth to adult facilities. In fact, Plaintiff has no
5

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 6 of 16
evidence that OJA has transferred Rader youth to any adult facilities or has plans to transfer any such youth to adult facilities as a part of its plan to close Rader. This is because no such evidence exist. 11. OJA does not dispute said legislation was enacted this year by the Oklahoma Leglislature, which expands legal placement options of certain youth in its custody. However, as Plaintiff acknowledged in their June 8, 2011 letter to OJA, on June 2, 2011 and thereafter, OJA repeatedly assured Plaintiff OJA has no plans to place Rader youth in “collocated adult facilities pursuant to recently enacted legislation.” (See Plaintiff’s Exhibit A at p. 20 & 23.) [Dkt. 260-1].
The fact that there is legislation that allows OJA to place youth in collocated adult facilities has no bearing on this case. Plaintiff has no evidence and has been repeatedly assured that there are no plans to place youth who have been at Rader in these types of facilities (if one is even created).5 This case is about the constitutional rights of youth at Rader, not what OJA might or might not do with other youth in its care at some point in the future. On a side note, Plaintiff provides no authority that the “collocated facility” envisioned in the new legislation is per se unconstitutional and suggests that this case is now a challenge of that statute. 12/13. On May 23, 2011, Plaintiff made its first written request to OJA for the “plan you submitted board regarding what will happen to youth upon Rader’s closure.” Even though Plaintiff was aware Rader would be closing since at least July 2010, and OJA had questioned Plaintiff regarding its position on transfers in February 2010, Plaintiff made no prior written request for documents regarding OJA’s plans regarding the transfer of youth who were currently housed at Rader until May
5 While most of the information provided by Plaintiff is not relevant to the matters before the Court, OJA does object to Plaintiff’s use of newspaper articles for evidence to support their motion. The newspaper articles attached by Plaintiff to its motion(s) are hearsay under F.R.Civ.P. 801 & 802 and not admissible to prove the facts asserted therein. Miles v. Ramsey, 31 F.Supp.2d 869 (D.Colo. 1998); Abruzzi Foods, Inc. V. Pasta & Cheese, Inc., 986 F.2d 605 (1st Cir. 1993); In re Columbia Sec. Litig., 155 F.R.D. 466 (S.D.N.Y. 1984).
6

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 7 of 16
23, 2011. 14. On June 2, 2011, OJA provided the draft Transition Plan and explained to Plaintiff that it had not been presented to the board for approval. In providing the plan, OJA assured there was no plan to place Rader youth in a collocated secure facility and told Plaintiff “when you come for your site visit we will be happy to discuss any questions you have regarding the transition of Rader youth upon the closure of Rader.” (See Plaintiff’s Exhibit A at p. 18) [Dkt. 260-1]. A copy of the Transition Plan is attached for the Court’s review, attached as Exhibit 4. 15/16. On June 8, 2011, rather than focusing on Rader’s closure or the end of the Consent Decree, Plaintiff began its effort to access OJA’s other facilities and clearly articulated its decision it no longer felt that it would be a good use of its resources to visit Rader. On June 9, 2011 and thereafter, OJA urged Plaintiff to follow through with the site visit scheduled for the week of June 27, 2011 and pointed out to Plaintiff, it had not been on site since July 2010. Despite OJA’s sincere requests that Plaintiff and its experts come for the site visit planned for the week of June 27, 2011, Plaintiff elected not to come for a site visit. (See Plaintiff’s Exhibit A at pp. 25-26). [Dkt. 260-1]. 17. OJA disputes it did not respond to Plaintiff’s decision not to conduct its site visit of Rader. As set forth above, OJA encouraged Plaintiff to come to Rader, review Rader/OJA documents and discuss its concerns regarding transition and the closure of Rader. 18. Consistent with the terms of the Consent Decree and regardless of Plaintiff’s decision not to conduct a site visit, on July 22, 2011, OJA timely provided all documents requested to Plaintiff which were within the parameters of the Consent Decree. OJA also requested an expedited review so that this matter could be resolved within the time frame of the Consent Decree. Also at that time, OJA provided another copy of the transition plan and specified where in the plan OJA addresses Plaintiff’s concerns regarding youth’s treatment needs. (See Plaintiff’s Exhibit A at p. 33-35) [Dkt. 260-1].
7

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 8 of 16
19/23/24. OJA does not dispute that it has declined Plaintiff’s “request” for information regarding its other facilities (COJC and SWOJC) under the terms of the Consent Decree. The Consent Decree applies to Rader. It does not apply to OJA’s other facilities. As previously discussed, both facilities had been in operation prior to Plaintiff’s investigation and resulting litigation. There is no Rader replacement facility. 20. Regardless of the admissibility of Plaintiff’s evidence, OJA does not dispute that there are no youth at Rader and have not been since before August 1, 2011. (See Affidavit of Elizabeth Stewart, Exhibit 1) 21/22/23/25/26. Unless otherwise directed by the Court, OJA will not address Plaintiff’s allegations regarding circumstances and situations related to COJC and SWOJC. Plaintiff’s allegations are based upon hearsay and are not the subject of this litigation or the Consent Decree. 24. OJA does not dispute that is has not requested technical assistance regarding its other facilities. There is no requirement under the Consent Decree for OJA to seek technical assistance from Plaintiff or Plaintiff’s experts at all, much less on matters other than Rader. [Dkt. 258, ¶¶101 & 106].
ARGUMENTS AND AUTHORITIES Introduction
When OJA entered into this Consent Decree, it gave itself three (3) years to either fix Rader or close it. The decision to close Rader has been a long and thoughtful process. Over the past three years and after devoting extensive time and resources, it has become obvious that reaching compliance with all aspects of the Consent Decree is not possible. Even Plaintiff’s experts agree:
As discussed in previous reports, Rader’s physical plant has many flaws, which do not lend themselves to renovations to adequately meet juveniles’ needs for treatment and safety. Costs of renovation would be prohibitive. OJA recognizes those limitations and has chosen to close Rader rather that (sic) attempt to renovate the facility. (See Report of Anne M. Nelson at p. 29, Plaintiff’s Exhibit J) [Dkt. 260-10, p. 32].
8

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 9 of 16
This decision did not come quickly, so that OJA could simply avoid the Consent Decree. The timing of the closing of Rader, coincides with specified end of the Consent Decree. It cannot be said OJA closed Rader to avoid this decree. However, rather than applauding the decision to close a facility which its experts agree cannot be fixed, Plaintiff asks this Court to “enforce” and “modify” the decree so that it can gain access to other records and facilities beyond Rader. Plaintiff attempts to create an “emergency” situation which simply does not exist. Plaintiff has been well aware of OJA’s plan for months, if not years. It has not visited Rader for more than a year. It declined OJA’s repeated requests to come for a final site visit. It has not provided a compliance review since September 2010. It ignored OJA’s assurance that documents regarding each youth’s transition would be made available at Rader at the site visit. In fact, Plaintiff did not even request the individualized transition plans for the youth at Rader, which were being conducted during June 2011. Plaintiff was so anxious to extend its reach beyond the parameters of the Consent Decree, it chose not to spend its resources on the task at hand, and now at the eleventh hour claims there is an emergency because OJA refuses to provide information regarding facilities other than Rader.
PROPOSITION I Plaintiff’s Reliance on David C. v. Leavitt is Misplaced Plaintiff relies on David C. v. Leavitt, 242 F.3d 1206, (10th Cir. 2001) to support its motion. However, the facts upon which Plaintiff relies in this case are completely distinguishable from those in Leavitt. In Leavitt, the State of Utah settled a class action with a 48-month consent decree. Leavitt, 242 F.3d at 1208. Plaintiffs filed a motion to enforce the settlement agreement alleging Utah was either unable or unwilling to fulfill the obligations under the agreement based upon monitoring reports, each of which found Utah in non-compliance with a majority of the provisions of the agreement. Plaintiffs also alleged that Utah was engaged in a bad faith attempt to try to outlast the four-year term of the consent decree. Id. The district court found Utah in non-compliance with the
9

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 10 of 16
consent decree and ordered a new corrective action plan. Id. Two months later, Plaintiffs filed a motion to extend the term of the settlement agreement that was then due to expire in three months. Id. at 1209. Ultimately, the court granted the motion and Utah appealed claiming that the court’s modification power is circumscribed and cannot be exercised to substantially alter an unambiguous provision that is material to the parties agreement, specifically a clear termination date. On appeal, the Tenth Circuit found that:
…a court’s equitable power to modify its own order in the face of changed circumstances is an inherent judicial power that cannot be limited simply because an agreement by the parties purports to do so. Id. at 1211. Having found that the district court had the equitable power to modify the termination provision of the consent decree, the Court concluded that Utah’s significant non-compliance with the terms of the settlement agreement constituted “a changed circumstance that supports equitable modification.” Id. at 1212. Accordingly, even where modification of a clear termination date is sought pursuant to the court’s equitable powers, the facts must show significant non-compliance with the provisions of a consent decree. Contrary to the facts in Leavitt, no such changed circumstance, based upon “significant noncompliance” or any alleged bad faith, is found in this case. Indeed, no non-compliance finding is made by DOJ experts in this case. (See Plaintiff’s Exhibit’s J - L) [Dkt. 260-10, 11 & 12]. The facts alleged by Plaintiff based upon its experts’ findings in this case do not come close to supporting a claim of changed circumstance, such that the court has any reason to invoke its equitable powers to extend the termination date. In fact, absent those structural issues which all parties concede cannot realistically be fixed at Rader (and which played a significant factor in the decision to close Rader), OJA made remarkable progress on the Consent Degree. OJA has maintained substantial compliance with the Special Education section of the Consent Decree for well over a year which should have
10

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 11 of 16
resulted in an early dismissal of that section of the Consent Decree, not an extension as sought by Plaintiff. Plaintiff’s experts have found OJA to be in substantial compliance with the vast majority of the substantive provisions regarding Protection From Harm section of the Consent Decree. While the experts found that some provisions were no longer applicable, there were no findings of noncompliance by Plaintiff’s experts in the area of Protection from Harm. In almost every instance where Plaintiff’s experts did not find substantial compliance, partial compliance was found. (See Plaintiff’s Exhibits J & L) [Dkt. 260-10 & 12]. With regard to the Mental Health section of the Consent Decree, no findings of actual non-compliance are noted and six areas are fully compliant. (See Plaintiff’s Exhibit K) [Dkt. 260-11]. Importantly, to this date, Plaintiff has issued no compliance report addressing its experts’ findings, as had been the DOJ practice throughout the duration of the Consent Decree (at least until September 2010). Therefore, even if Rader were still open, the facts and experts’ reports actually support an outright dismissal of the case and a termination of the Consent Decree by its terms.
PROPOSITION II The Prison Litigation Reform Act Precludes the Extension of the Consent Decree as
Requested by Plaintiff under the Circumstances Set Forth in Plaintiff’s Motion The Consent Decree entered into by the parties provides that it complies in all respects with the Prison Litigation Reform Act, 18 U.S.C. § 3626(a). [Dkt. 258 at ¶ 7]. Specifically, the Consent Decree provides that all prospective relief in the Consent Decree is narrowly drawn and extends no further than necessary. [Dkt. 258 at ¶ 10]. However, despite these stipulations, Plaintiff makes no mention of the requirements of the PLRA in its motion to modify and extend the Consent Decree. The PLRA specifically mandates the following: (1) Prospective relief.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends
11

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 12 of 16
no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1). In addition, the PLRA provides for the following with respect to termination
of prospective relief:
(b)(1) Termination of prospective relief.—(A) In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervener—
(i) 2 years after the date the court granted or approved the prospective relief; (ii) 1 year after the date the court has entered an order denying termination of prospective relief under this paragraph; or
(iii) in the case of an order issued on or before the date of enactment of the Prison Litigation Reform Act, 2 years after such date of enactment.
Id. at (b)(1). Further, the PLRA provides for immediate termination of prospective relief in the
following circumstances:
(2) Immediate termination of prospective relief.—In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
(3) Limitation.—Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
Id. at (b)(2) and (3). Hence, even where the court has inherent equitable powers to extend the
termination date of a consent decree where significant non-compliance is found, it cannot be so
extended unless the court also finds under the PLRA that the relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and is the least intrusive means
12

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 13 of 16
necessary to correct the violation of the Federal right. Moreover, a court may continue the relief only if it supportably finds that there are ongoing constitutional violations. Morales Feliciano v. Rullan, 378 F.3d 42, 52 (1st Cir. 2004).
The PLRA mandates the termination of consent decrees altogether unless the district court makes the specific findings that are necessary to keep a particular decree alive. Id. at 54. Therefore, in addition to finding ongoing constitutional violations, the findings must include a finding that ordered relief satisfies the statutory narrowness-need-intrusiveness criteria. Id. A “current and ongoing” violation as required under the PLRA to extend a consent decree means a presently existing violation, not a potential, or even likely, future violation. Cason v. Seckinger, 231 F.3d 777, 783 (11th Cir. 2000).
In this case, Plaintiff alleges no current and ongoing violations of any Federal rights to support its motion , but rather bases its motion on speculation, newspaper articles, and unnamed sources’ fears of what might occur at facilities other than Rader. By its terms, the Consent Decree terminates on September 9, 2011. It may not be extended under the PLRA without a finding by this Court of current and ongoing violations of a Federal right and the narrowness-need-intrusiveness criteria. No evidence has been submitted by the Plaintiff to support such a violation and no such violation is claimed or can be claimed - Rader is closed. With no constitutional violation claimed or supported by evidence, the requisite PLRA findings cannot be made by this Court. Accordingly, Plaintiff’s request for an extension of the termination date of the Consent Decree must be denied.
PROPOSITION III Rader Has Not Been Replaced There is no case law the parties can point to regarding the term “replace” in the context of this case. However, Courts have had to grapple with the issue of “replacement” versus “elimination” in the employment law arena for years and have established an analysis that is appropriate in this
13

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 14 of 16
situation. In many instances, an employee claiming to be wronged under an employment law, might be arguing that he was terminated and“replaced” by a person not in his protected class. Miller v. Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005); Reeves v. Sanderson Plumbing Prods., Inc., 530 133, 142, 120 S.Ct. 2097, 147 L.Ed.2w 105 (2000). In response, an employer might argue, the employee was not replaced but in fact, his position was eliminated. Miller, 530 F.3d at 112. When pressed to determine whether a position has been eliminated (as opposed to replaced) the Court considers whether the job remained a single, distinct position. Id. “The test for position elimination is not whether the responsibilities were still performed, but rather whether the responsibilities still constituted a single, distinct position.” Furr v. Seagate Technology, Inc., 82 F.3d 980 (10th Cir. 1996). “To reassign the responsibilities of a position to a number of other individuals is to eliminate the position.” Hare v. Denver Merchandise Mart, Inc., 255 Fed.Appx. 298, 2007 WL 3230907 (10th Cir. 2007). These same principles apply in this instance.
The undisputed evidence establishes that Rader has not been replaced. Rader has been closed. No new facility has been opened to replace it. The youth that were housed at Rader and who still require a secure facility have now been transferred to OJA’s other facilities, which have been in existence for years. Other youth have been transferred to less secure environments. There is no “one” place the final residents of Rader were sent. Hence, Rader has been eliminated and its responsibilities distributed throughout OJA. None of institutions are located in the Northern District of Oklahoma and certainly none are subject to the Consent Decree.
CONCLUSION Clearly, Plaintiff does not know when to call it a day. While OJA cannot and will not represent to the Court that it was able to substantially comply with all terms of the Consent Decree, during the course of the decree and while it was operational Rader come into compliance with most
14

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 15 of 16
provisions of the Consent Decree. Now, the Consent Decree has ended. Rader has been closed. It is time for this case to be dismissed, not expanded to jurisdictions beyond this Court.
If Plaintiff has concerns regarding conditions of confinement at COJC or SWOJC, it claims it has the authority to take specific actions under 42 U.S.C. §14141 and 42 U.S.C. §1997a & a-1. Plaintiff’s implication that expansion of the Consent Decree in this matter is their only avenue to address their purported concerns regarding OJA’s other facilities is simply false. As set forth in the Consent Decree, Plaintiff utilized its authority under these statutes to investigate and litigate this action regarding Rader. [Dkt. 258 at ¶¶1 - 3]. Plaintiff has the same purported authority to take the same steps, if deemed necessary, against OJA’s other facilities, but this is not the case and this Consent Decree is not the vehicle to take such action. To do so, would simply allow Plaintiff to impose the terms of an expired Consent Decree on facilities which are not a part of the decree. There is absolutely no basis for this Court to make findings that Plaintiff’s proposed enforcement or modifications are narrowly drawn and extend no further than necessary, and OJA will not so stipulate. [Dkt. 258 at ¶10]. This case should be dismissed. There is no justification to extend the Consent Decree and there is nothing to enforce. For these reasons, OJA objects to Plaintiff’s motion.
Respectfully submitted, s/ Kindanne C. Jones KINDANNE C. JONES, OBA # 11374 Assistant Attorney General Oklahoma Attorney General’s Office Litigation Section 313 N. E. 21st Street Oklahoma City, Oklahoma 73105 Tele: (405) 521-2920 Fax: (405) 521-4518 Kindanne.Jones@oag.ok.gov Attorney for Defendants
15

Case 4:06-cv-00673-GKF-FHM Document 264 Filed in USDC ND/OK on 09/09/11 Page 16 of 16

CERTIFICATE OF SERVICE

I hereby certify that on September 9, 2011, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

Wyn Dee Baker wyndee.baker@usdoj.gov.

Je Yon Jung jeyon.jung@usdoj.gov

Laura Lee Coon, Laura.Coon@usdoj.gov,

Kenyan Renard McDuffie kenyan.mcduffie@usdoj.gov

Marlysha Myrthil marlysha.myrthil@usdog.gov

Judy C. Preston judy.preston@usdoj.gov

Matthew J. Donnelly matthew.donnelly@usdoj.gov

Shehenna Ahmad Simons shaheena.simons@usdoj.gov

Stacey Kamya Grigsby stacey.grigsby@usdoj.gov

s/ Kindanne C. Jones Kindanne C. Jones

16

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

)

)

Pl

aintiff,

)

)

v.

)

Case No. 06-CV-673-GKF-FHM

)

STATE OF OKLAHOMA;

)

MARY FALLIN, Governor of the State of

)

Oklahoma, in her official capacity only;

)

THE OKLAHOMA OFFICE OF

)

JUVENILE AFFAIRS;

)

ROBERT E. CHRISTIAN, Executive

)

Director of the Oklahoma Office of

)

Juvenile Affairs, in his official capacity

)

only; THE OKLAHOMA BOARD OF

)

JUVENILE AFFAIRS;

)

T. HASTINGS SIEGFRIED, Chairman of

)

the Oklahoma Board of Juvenile Affairs, in

)

his official capacity only; and

)

CATHY OLBERDING, Superintendent of

)

the L.E. Rader Center, in her official

)

capacity only,

)

)

Defendants.

)

OPINION AND ORDER This matter comes before the Court on plai ntiff United States of Am erica’s Emergency Motion to Enforce Consent Decree and Motion to Modify Consent Decree (Dkt. 260 and 261). The plaintiff filed its m otions on September 1, 2011, eight days before the Consent Decree was set to expire. Defendants responded on September 9th, and plaintiff replied on September 13th. On September 9, 2008, this Court entered a C onsent Decree concerning the conditions of confinement at the L.E. Rader Center (“Rader”), a secure juvenile tre atment center in Sand Springs, Oklahoma. The Consent Decree estab lished remedial measures in three areas :

Protection from Harm (including youth-on-youth violence, inappropriate staff relationships with youth, sexual misconduct between youth, and excessive force by staff on youth), Mental Health Care Including Prevention of Su icide and Self-Harm , and Special Ed ucation. T he Consent Decree expired by its own terms on September 9, 2011.
On April 13, 2011, the Oklahoma Office of Juvenile Affairs (the “OJA”) publicly announced the closure of the Rader facility as of September 30, 2011. By August 1, 2011, the last youths in custody at Rader had been m oved to the Central Oklahom a Juvenile Center (“COJC”) in Tecum seh, Oklahoma, the South west Oklahoma Juvenile Center (“SW OJC”) in Manitou, Oklahoma, or to other placements.
In its m otion, the United States asks this Court to extend the duration of the Cons ent Decree, and to order the defendants 1 to 1) provide com prehensive details on the mental health and educational services provided to youth transf erred from Rader to COJC, SWOJ C, or other facilities; 2) produce recent Pe rformance-Based Standards data and monthly reports from COJC and SWOJC; and 3) direct the defendants to allo w the United States an d its expert consultants full and complete access to COJC and SWOJC, including but not lim ited to a youth-on-you th assault reported to have occurred at COJC on August 11, 2011.
For the reas ons set f orth below, this Court declines to extend the term of the Consent Decree beyond its stated term ination date, and declines to ex tend the scope of the Consent Decree to the separate, pre-existing juvenile centers located in Tecumseh and Manitou.
1 Pursuant to Fed.R.Civ.P. 25(d), Mary Fallin is hereby substituted as Governor of the State of Oklahoma, T. Hastings Siegfried is hereby substituted as Chairman of the Oklahoma Board of Juvenile Affairs, and Cathy Olberding is substituted as Superintendent of the L.E. Rader Center.
- 2 -

II. Discussion “Consent decrees have elements of both contracts and judicial decrees. A consent decree ‘embodies an agreem ent of the parties’ and is also ‘an agreem ent that the parties desire and expect will be reflected in, and be enforceable as , a judicial decree th at is subject to the rules generally applicable to other judgments and decrees.’” Frew ex rel. Frew v. Hawkins , 540 U.S. 431, 437 (2004), quoting Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367, 378 (1992). Among other things, the parties to the Consent Decree agreed to the following:  “Termination. This Consent Decre e shall te rminate three (3) years f rom the date it is ordered by the Court. . . . Under no circum stances will this Consent Decree be extended beyond the three (3) year period, unless by agr eement of the parties and the Court that some portion of the Consent Decree needs to be extended for compliance.” (¶ 114).  “Nothing in this Consent Decree shall pr event the State from modifying or closing Rader, or developing alternative placements for the youth currently in the facility.” (¶12).  “‘Rader’ means the L.E. Rader Center, located at 13323 W . Highway 51, Sand Springs, Oklahoma or any secu re facility that is us ed to replace Rad er, but does not include any separate youthful offender facility the State may operate.” 2 (¶ 27). This last-mentioned provision – the definition of “Rader” – figures prominently in the br iefing. The United States argu es that COJC and SWOJ C “replace” Rader, and therefore this Court should order the State to provide information from, and access to, those facilities under the terms of the Consent Decree. The St ate argues that the Consent Decree does not apply to COJC and SWOJC because they did not “replace” Rader.
2 Under Oklahoma law, a “youthful offender” is a juvenile charged with certain serious, statutorily-listed crimes set forth in OKLA. STAT. tit. 10A, §§ 2-5-202, 2-5-205 and 2-206. The State of Oklahoma does not operate any “separate youthful offender facility,” therefore neither party argues the exclusionary clause applies.
- 3 -

In its 2010 session, the Oklahom a Legislature directed the OJA to “initiate a request for proposals for the construction of a suitable facil ity to house juveniles within its custody to replace a facility with capacity in excess of one hundred twenty-five (125) available secure beds.” OKLA. STAT. tit. 10A, § 2-2-806(A). A lthough Rader was not nam ed in the legislation, “the legislative intent . . . is that the new f acility replaces Rader.” Okla. Atty. Gen. Op. 2011-9, p. 3. No such replacement facility has yet been built.3
COJC and SWOJC both pre-existed this Court’s Consent Decree. See OKLA. STAT. tit. 10A, § 2-7- 606 [COJC]; O KLA. STAT. tit. 10A, § 2-7-608(B) [SWO JC]. OJA a rgues that, throughout its history, and throughout the term of the Consent Decree, it has transf erred youth between its institutions. It has now transferred all youth out of Rader and into other placements, including COJC and SWOJC.
“Replace” has been defined as: “To place again, to res tore to a fo rmer condition. [citation omitted]. Term, given its plain, ordinary meaning, means to supplant with substitute or equivalent. [citation omitted]. To take the place of.” B LACK’S LAW DICTIONARY (Fifth Edition, 1979). It cannot reasonably be said that COJC a nd/or SWOCJ “take the pl ace of,” or “supplant [as] substitute[s] or equivalent[s]” of Rader. OJA previously had three institutions. Now it h as two. Rader was OJA’s only “m aximum secure” fac ility. It has closed and has not yet been replaced. C OJC and SWOCJ are pre-ex isting “medium secure” facilities. Thus, COJC and SWOCJ are not b eing “used to replace Rader” as contemplated by the Court and the parties to the Consent Decree. This Court therefore concludes the language defining “Rader” in Paragraph 27 of the Consent Decree does not support granting plaintiff’s motions.
Plaintiff also argues that dev elopments over the las t several months constitute substantially changed circum stances justifying modification of the Consent Decree. A federal
3 On February 25, 2011, the OJA scrapped its plans to build a new juvenile detention center in Ada, Oklahoma.
- 4 -

court has the equitable power to modify material provisions in its own consent decree in the face of changed circum stances. David C. v. Leavitt , 242 F.3d 1206, 1210 (10th Cir. 2001). That power is “an inheren t judicial power and cann ot be limited simply because an agreement by the parties purports to do so.” Id. Thus, the language in Paragraph 144 of the Consent Decree, set forth above, which if literally applied would limit the Court’s power to extend th e Consent Decree absent the agreement of the parties, is not binding on the court.
“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circum stances warrants revision of the decree.” Rufo, 502 U.S. at 383. If the m oving party m eets its burden, the c ourt should consider “w hether the proposed modification is suitably tailored to the change d circumstance.” Id. “Ordinarily, however, modification should not be granted where a pa rty relies upon events that actually were anticipated at the time it entered into a decree.” Id. at 385.
Here, the Consent Decree itself indicates th e parties foresaw the closure of Rader and the transfer of youth out of the Ra der facility: “Nothing in th is Consent Decree shall p revent the State from modifying or clos ing Rader, or d eveloping alternative placements for the you th currently in the facility.” Consent Decree at ¶ 12. In record hearings before this Court in 2007, defendants’ representatives testified that Rade r would lik ely be closed because the physical structure could not be renovated to rectify a number of serious deficiencies. Those deficiencies included, but were not lim ited to: areas outs ide of staff line of site which accomm odated rapes of 13 year old m ales by 19 year old m ales, and exposed pipes below the ce ilings in the m ental health unit, on which youth at ri sk of suicide had attempted to hang themselves. The plaintiff
- 5 -

concurs that Rader’s closure was warranted, telling the Court it “ does not fault the State for its
decision to close [Rader].”4
The closure and the transfer of youth from Rader are ev ents actually anticipated at the
time the plaintiff signed the Consen t Decree. T he decree d oes not extend federal o versight to
youth transferred from Rader to ot her OJA facilities, or to youth in those pre-existing separate
juvenile facilities, either before or after the stated termination date. The Consent Decree was
“narrowly drawn and extends no further than nece ssary” to correct the vi olation of the Federal
right of juveniles confined at Ra der, as required by federal law. See Prison Litigation Reform
Act, 18 U.S.C. §3626(a)(1). The Court finds and concludes that plaintiff has not m et its burden
of establishing a significant change in circum stances not actua lly anticipated at the tim e it
entered the decree. Th erefore, the curren t situation does not warrant re vision of the Consent
Decree.5
4 Plaintiff’s expert agrees: “As discussed in previous reports, Rader’s physical plant has many flaws, which do not lend themselves to renovations to adequately meet juveniles’ needs for treatment and safety. Costs of renovation would be prohibitive. OJA recognizes those limitations and has chosen to close Rader rather than attempt to renovate the facility.” Report of Anne M. Nelson, Dkt. 260-10, p.32. 5 The C ourt notes that the action brought by the United States and t he consequent Consent Decree improved the conditions of confinement of juveniles at Rader. The State made progress in implementing the agreed-to reforms. In order to convey a general sense of the progress made, the Court highlights the following items contained in the most recent reports of the federal monitors, dated August 30, 2011:
 “Superintendent Olberding is to be commended for the considerable progress in achieving compliance with the Consent Decree in the area of Protection from Harm under very challenging circumstances.” Report of Anne M. Nelson, MSW, MPA, expert consultant in the area of Protection from Harm, Dkt. 260-10, p. 5. In her final report, Ms. Nelson found Rader to be in su bstantial compliance with 17 provisions relating to Protection from Harm, and in partial compliance with 7 provisions. Id. at pp. 6-7.
 “Rader under the direction of the new facility director and newly created mental health clinical director position were b eginning to make great strides. Th ese were becoming particularly evident in the admission/intake screening process, the suicide screening process, appropriate treatment planning, and improved communication between psychology/psychiatry/nursing/mental health professionals/line staff.” Report of Debra K. DePrato, M.D., expert consultant in the area o f Mental Health Care, Including Prevention of Suicide and Self-Harm, Dkt. 260-11, p. 9. DePrato found Rader to be in compliance with 6 provisions relating to Mental Health Care, Including Prevention of Suicide and Self-Harm, and in partial compliance with 14 provisions.
 Kelly Dedel, Ph.D., expert consultant in the areas of Investigations, Suicide Preventions, and Quality Assurance, found Rader to be in substantial compliance with 1 of 6 provisions of the Consent Decree, in partial compliance with 4 provisions, and reported that insufficient documentation was available to rate the facility’s level of compliance in 1 provision.
- 6 -

For the reasons set forth above, the Em ergency Motion to Enforce Consent Decree and Motion to Modify Consent Decree (Dkt. 260 a nd 261) are denied. The Court Clerk is hereby directed to substitute Mary Fallin as Governor of the State of Oklahoma, in her official capacity only, T. Hastings Siegf ried as Chairm an of th e Oklahoma Board of J uvenile Affairs, in his official capacity only, and Cathy Ol berding as Superintendent of the L.E. Rader Center, in her official capacity only.
IT IS SO ORDERED this 21st day of September, 2011.
- 7 -

 
 Case 4:06-cv-00673-GKF-FHM Document 272 Filed in USDC ND/OK on 10/07/11 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA Plaintiff,
vs. STATE OF OKLAHOMA; et al.
Defendants.

)

)

)

)

)

Case No. 06-CV-673-GKF-FHM

)

)

)

)

DEFENDANTS’ MOTION TO DISMISS AND BRIEF IN SUPPORT

In accordance with the Consent Decree [Dkt. # 258] entered by Court on September 9, 2008,

and this Court’s September 21, 2011, Order and Opinion [Dkt. # 271], Defendants request this Court

dismiss this case with prejudice. In support of this motion, Defendants show the Court as follows:

STATEMENT OF THE CASE

Plaintiff filed this action regarding the conditions of confinement at the L.E. Rader Center

(Rader). See Consent Decree at ¶ 1. [Dkt. 258]; see also Amended Complaint at ¶ 1, 5, 15 & 17.

[Dkt. 65]. After extensive litigation, Plaintiff, the State of Oklahoma and the Office of Juvenile

Affairs, entered into a three (3) year consent decree. See Consent Decree at ¶ 114. [Dkt. 258]. The

consent decree is a final order. (See Plaintiff’s Motion to Enforce, at p. 1, citing to F.R.Civ.P.

60(b)(5) - Grounds for Relief From a Final Order or Proceeding) [Dkt. 260]. The parties to the

Consent Decree agreed, and this Court ordered that the Consent Decree would terminate three (3)

years from the date it was ordered by the Court (September 9, 2008). See Consent Decree at ¶ 114.

[Dkt. 258]. On September 21, 2011, this Court denied Plaintiff’s Emergency Motion to Enforce

Consent Decree and Motion to Modify Consent Decree, finding that the Consent Decree expired by

Case 4:06-cv-00673-GKF-FHM Document 272 Filed in USDC ND/OK on 10/07/11 Page 2 of 4
its own terms on September 9, 2011 and that the decree did “not extend federal oversight to youth transferred from Rader to other OJA facilities, or to youth in those pre-existing separate juvenile facilities, either before or after the stated termination date.” [Dkt. # 271].
The Consent Decree also provided: Dismissal of All Defendants Upon completion of this Consent Decree as discussed in paragraph [114], the parties will jointly move, pursuant to Fed. R. Civ. P. 41(a)(2), for entry of an order dismissing this action with prejudice as to all Defendants named in the complaint or subsequently added thereto. See Consent Decree at ¶ 115. [Dkt. 258].
After receiving the Court’s Order and Opinion, counsel for Defendants contacted Plaintiff to discuss the Joint Stipulation of Dismissal with Prejudice contemplated by the Consent Decree. While Plaintiff is not willing to sign off on a Joint Stipulation of Dismissal, counsel for Defendants is authorized to state that in light of the Court’s Order and Opinion [Dkt. # 271], Plaintiff takes no position with regard to this Court entering an order dismissing this case with prejudice and does not plan to file a brief in response to this Motion.
Pursuant to the terms of the Consent Decree, Defendants move this Court to dismiss this case as originally contemplated by the decree.
ARGUMENTS AND AUTHORITIES The Court should exercise its authority under F.R.Cv.P. 60(b)(5) as well as the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b) to dismiss this case. This case and the Consent Decree related to the conditions of youth at Rader. The terms of the Consent Decree lapsed on September 9, 2011. Prior to its lapse, OJA ceased using Rader to house any youth under its care. The facility is in the process of being permanently closed. This Court denied Plaintiff’s effort to extend the
2

Case 4:06-cv-00673-GKF-FHM Document 272 Filed in USDC ND/OK on 10/07/11 Page 3 of 4
Consent Decree, finding the Consent Decree expired on September 9, 2011 and it did “not extend federal oversight to youth transferred from Rader to other OJA facilities, or to youth in those preexisting separate juvenile facilities, either before or after the stated termination date.” [Dkt. # 271].
F.R.Cv.P. 60(b)(5) permits this Court to relieve a party from a final judgment “when the judgment has been satisfied.” Defendants have satisfied the final judgment. Plaintiff takes no position with regard to this Motion. It is time for this case to be dismissed with prejudice, as envisioned by the Consent Decree. [Dkt. # 258, ¶ 115].
CONCLUSION All Defendants therefore request this Court dismiss this case with prejudice.
Respectfully submitted, s/ Kindanne C. Jones KINDANNE C. JONES, OBA #11374 Assistant Attorney General Oklahoma Attorney General’s Office Litigation Section 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 Tele: (405) 522-2920 Fax: (405) 521-4518 Kindanne.Jones@oag.ok.gov Attorney for Defendants
3

Case 4:06-cv-00673-GKF-FHM Document 272 Filed in USDC ND/OK on 10/07/11 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on October 7, 2011, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to all counsel who are presently receiving any and all said filings in this case, including but not limited to: Wyn Dee Baker wyndee.baker@usdoj.gov Laura Lee Coon, Laura.Coon@usdoj.gov Marlysha Myrthil marlysha.myrthil@usdog.gov Stacey Kamya Grigsby stacey.grigsby@usdoj.gov Je Yon Jung jeyon.jung@usdoj.gov Judy C. Preston judy.preston@usdoj.gov Shehenna Ahmad Simons shaheena.simons@usdoj.gov
s/ Kindanne C. Jones Kindanne C. Jones
4

 
 Case 4:06-cv-00673-GKF-FHM Document 273 Filed in USDC ND/OK on 11/18/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF OKLAHOMA, et al.,
Defendants.

)

)

)

)

)

Case No. 06-CV-673-GKF-FHM

)

)

)

)

ORDER This matter comes before the court upon the Motion to Dismiss (Dkt. #272) of the defendants. The plaintiff has not responded to the Motion to Dismiss. Normally, under Local Rule 7.2(f) the plaintiff would be given an additional fourteen days to respond to this dispositive motion before it was deemed confessed. However, counsel for the plaintiff has indicated that although they are not willing to sign off on a joint stipulation of dismissal, they take no position on the motion to dismiss and do not plan to file a response to the motion. (Dkt. #272, p.2). By its terms, the Consent Decree (Dkt. #258) ended three years after entry by the court. (Dkt. #258, p.28, ¶114). The Consent Decree thus expired on September 9, 2011. The Consent Decree further states that “[u]nder no circumstances will this Consent Decree be extended beyond the three (3) year period, unless by agreement of the parties and the Court that some portion of the Consent Decree needs to be extended for compliance.” Id. By its Opinion and Order of September 21, 2011, the court declined to extend the consent decree. (Dkt. #271).

Case 4:06-cv-00673-GKF-FHM Document 273 Filed in USDC ND/OK on 11/18/11 Page 2 of 2 Because the Consent Decree has expired, and the defendants have satisfied the judgment,
the case is dismissed with prejudice. WHEREFORE, the Motion to Dismiss (Dkt. #272) is granted. DATED this 18th day of November, 2011.
- 2 -

 
 U.S. v. Oklahoma, Not Reported in F.Supp.2d (2007)
2007 WL 1662770 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
The UNITED STATES of America, Plaintiff, v.
The State of OKLAHOMA; The Honorable Brad Henry, Governor of the State of Oklahoma, in his
official capacity only; The Oklahoma Office of Juvenile Affairs; Robert E. Christian, Executive
Director of the Oklahoma Office of Juvenile Affairs, in his official capacity only; The Oklahoma
Board of Juvenile Affairs; Lonellia L. Simmons, Chairperson of the Oklahoma Board of Juvenile Affairs, in her official capacity only; and Jimmy Martin, Superintendent of the L.E. Rader Center,
in his official capacity only, Defendants.
No. 06-CV-673-GKF-FHM. | June 4, 2007.
Attorneys and Law Firms
Je Yon Jung, Judy C. Preston, Laura Lee Coon, Shanetta Y. Cutlar, Wan J. Kim, Stacey Kamya Grigsby, U.S. Department of Justice (Civil Rts Div), Washington, DC, Wyn Dee Baker, United States Attorney’s Office, Tulsa, OK, for Plaintiff.
Jill Christine Tsiakilos, Kindanne Carole Jones, Richard Neal Mann, Office of the Attorney General, Oklahoma City, OK, for Defendants.
Opinion
ORDER
FRANK H. McCARTHY, United States Magistrate Judge.
*1 Defendants’ Motion for Protective Order [Dkt. 44] and Amended Motion1 for Protective Order [Dkt. 45] are before the undersigned United States Magistrate Judge for decision. In addition, to raising questions about the wording of a joint protective order, the briefing addresses the confidentiality marking to be placed on documents. The Motions [Dkt. 44, 45] are GRANTED in PART and DENIED in PART.
Protective Order Wording [Dkt. 44]

The parties have agreed on most aspects of the wording of a joint protective order. However, the United States wants to include the following provision:
Nothing in this Joint Protective Order should be construed to limit disclosure of protected information to any law enforcement agency or peace officer to be used in the interests of justice, for official governmental purposes, and for derivative use in investigations beyond this case.
[Dkt. 51, p. 3]. Oklahoma objects to this provision, arguing that it would provide an unfettered opportunity for counsel to make decisions concerning the disclosure of private information without any safeguards.
Oklahoma proposes the following language:
In the event that either party determines that the disclosure of protected information to a law enforcement agency or other governmental entity is required, and cannot obtain consent from the other party, the party seeking disclosure is entitled to seek the Court’s permission to disclose the information for that purpose. Upon proper showing, the Court shall authorize such limited disclosure.
[Dkt. 51, p. 3]. The USA argues this procedure is unduly cumbersome and that prosecution of a crime should not be delayed while the Court decides whether a “proper showing” has been made. The USA states it is “most concerned with reporting serious criminal incidents such as staff physical abuse of youths at Rader and sexual misconduct involving staff and youths.” [Dkt. 51, p. 5].
The USA’s proposal to permit disclosure of confidential documents “to be used in the interests of justice” is rejected as so broadly worded that virtually limitless disclosure is permitted. Furthermore, the documents at issue were produced for use in this civil litigation. They are historical records, and no argument has been made that the documents disclose an emergent situation, or ongoing criminal conduct. The protective order does not prevent law enforcement from obtaining access to the documents from sources not subject to the Protective Order in ths case in the usual course of investigation. Moreover, the Court has no evidence before it that Oklahoma has failed to properly fulfill its law enforcement obligations. In view of these factors, the
1

U.S. v. Oklahoma, Not Reported in F.Supp.2d (2007)

undersigned finds that requiring the United States to seek Defendants’ consent or to apply for court approval of disclosure of confidential materials would not conflict with its duty to promptly report evidence of a potential crime to the appropriate law enforcement officials. Therefore, the Protective Order will contain the following language:
*2 Should any party desire to disclose confidential information to agencies, entities or persons not listed herein, and be unable to obtain consent of the other parties, the party seeking disclosure may proceed by motion to obtain a Court Order for such disclosure. The motion should advise whether expedited treatment of the request to disclose confidential information is required.
The United States also seeks to include a provision whereby personal identifier information of current or former employees and residents of the Rader Center need not be treated as confidential if appropriate consent is obtained from the subject, or his/her parent or guardian. The United States asserts that it seeks to permit waiver of confidential treatment of identifying information of consenting individuals, not waiver of the confidentiality of any document produced by Oklahoma. Oklahoma has no specific objection, as long as the documents retain confidential treatment. The undersigned rejects Oklahoma’s suggestion that the Protective Order should contain a requirement that consent be obtained from counsel if the subject is represented. The undersigned presumes that all parties will adhere to their ethical obligations concerning contact with represented parties and need not burden the Protective Order with such a requirement.

Marking of Confidential Documents [Dkt. 45]
At an expedited telephone hearing held on April 13, 2007, the undersigned resolved the parties’ dispute about the manner in which confidential documents are to be marked. Attorney Mann was instructed to prepare a proposed order for the court’s signature. [Dkt. 50]. The proposed order was submitted on May 2, 2007, as an attachment to one of Defendants’ briefs. [Dkt. 61-2]. The proposed order indicates that the confidential designation shall include the case number CIV 06-579, which is not the number for this case. Id. at p. 2. According to the parties, a confidential designation with the wrong case number, CIV 06-579, has been placed on some number of documents produced by Oklahoma. That fact has been noted in the Protective Order issued this date. The parties have not demonstrated a need for either party to expend the funds to correct the use of the wrong case number. Therefore, to the extent Defendant’s Amended Motion for Protective Order [Dkt. 45] seeks an order requiring the confidential designation be corrected, the motion is denied.
The undersigned is issuing a Protective Order herewith which addresses the confidential designation of documents as well as the protections afforded those documents. Oklahoma has not demonstrated that the issuance of one order addressing both issues is inappropriate.
CONCLUSION
Defendants’ Motion for Protective Order [Dkt. 44] and Amended Motion for Protective Order [Dkt. 45] are GRANTED in PART and DENIED in PART, as provided herein. A Protective Order is being issued herewith.
SO ORDERED this 1st day of June, 2007.

	  

Footnotes

1

Defendant’s “Amended Motion” is actually a new motion as it raises entirely different issues.

	  

2

 
 June 8, 2005
The Honorable Brad Henry Governor State of Oklahoma State Capitol Building 2300 N. Lincoln Blvd., Room 212 Oklahoma City, OK 73105
Re: Investigation of the L. E. Rader Center,
 Sand Springs, Oklahoma 

Dear Governor Henry:
I write to report the findings of the Civil Rights Division’s investigation of conditions at the L. E. Rader Center (“Rader”) in Sand Springs, Oklahoma. On March 31, 2004, we notified you of our intent to conduct an investigation of Rader pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). As we noted, both CRIPA and Section 14141 give the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
The level of cooperation from the Office of Attorney General (“OAG”) has been mixed. The OAG provided the United States with some of the documents we requested. Specifically, the OAG provided us with incident reports, youth grievances, disciplinary reports, and abuse investigations from January 1, 2003 to May 30, 2004. The OAG would not, however, produce the medical reports that the facility generated during the same time period. The lack of medical reports severely limited our ability to assess the number and severity of injuries that youth at Rader suffered following juvenile assaults, staff abuse, and incidents of self-injurious behavior.
More importantly, the OAG refused to allow the United States the opportunity to tour the Rader facility to observe operations and interview staff and residents. From April 2004 to February 2005, the United States attempted to work with the OAG to address any concerns and ensure that our tour would not disrupt operations at Rader. The OAG repeatedly refused to permit the United States to tour the facility. This lack of cooperation severely impeded our investigation.

By law, our investigation must proceed regardless of whether officials choose to cooperate fully. Indeed, when CRIPA was enacted, lawmakers considered the possibility that state and local officials might not cooperate in our federal investigation. See H.R. CONF. REP. 96-897, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 836. Such non-cooperation is a factor that may be considered adversely when drawing conclusions about a facility. See id. We now draw such an adverse conclusion.1

Consistent with the statutory requirements of CRIPA, I now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial measures that are necessary to address the deficiencies we have identified. As described more fully below, we conclude that the conditions of confinement violate the constitutional rights of youth confined at Rader. In particular, we find that, based on constitutionally deficient practices, Rader fails to protect children from harm or the risk of harm.

I. BACKGROUND

The State of Oklahoma (“State”), through its Office of Juvenile Affairs (“OJA”), operates Rader, the largest secure juvenile justice facility in the State. Rader has bed space for approximately 215 juveniles who have been adjudicated delinquent and are 19 years of age or younger. Although Rader housed both male and female youth at the inception of our investigation, recent news reports indicate that OJA removed all girls from the facility in February 2005.

II.

FINDINGS

As a general matter, States must provide confined juveniles with reasonably safe conditions of confinement. See Youngberg v. Romeo, 457 U.S. 307, 315-24 (1982); Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979). As the Tenth Circuit stated in Yvonne L. v. New Mexico Dept. of Human Serv., 959 F.2d 883 (10th Cir. 1992), “juveniles involuntarily placed in a private school by state agencies or a court [have] liberty interests protected by the Fourteenth Amendment; specifically, ‘[s]uch [a] person has the right to reasonably safe conditions of confinement.’” Id. at 893-94 (quoting Milonas v. Williams, 691 F.2d 931, 942 (10th Cir. 1982)). As described below, the State has fallen far short of this constitutional obligation.

Our investigation revealed that the State fails to protect youth confined at Rader from harm due to constitutionally deficient practices. Specifically, the State fails to

1

The State’s non-cooperation constitutes only one factor that we consider in

preparing our statutory findings and recommendations. We also have considered the

documentation provided by the State, reports issued by the American Correctional

Association (“ACA”), news articles, and interviews with private attorneys, public

defenders, and local law enforcement officers.

- 2 -

protect youth from: (1) sexually inappropriate relationships with staff and other
juveniles; (2) juvenile-on-juvenile violence; (3) self-injurious behavior; (4) inadequate management of psychotropic medication; and (5) excessive use of force by staff.2

A. Sexually Inappropriate Relations

Contrary to its legal obligations, the State fails to provide adequate supervision and monitoring to ensure that juveniles at Rader are not subjected to inappropriate sexual relationships with staff or other residents. See Youngberg, 457 U.S. at 324; Yvonne L., 959 F.2d at 893.

1. Sexual Relationships Between Staff and Youth

Documents produced by the State indicated that numerous sexual relationships developed between female staff members and male youth. It appears that in some instances other staff members were aware of these relationships and brought them to the attention of supervisors and administrators. However, administrators and supervisors failed to take prompt, appropriate action. Examples of inappropriate sexual relationships between staff and youth include:

•

On May 31, 2004, a male youth reported to a client advocate at Rader that

a female staff member permitted a youth to carry her into his room and

place her on his bed where the youth and others fondled her.3 The youth

reported that the female staff member previously spoke in a sexual

manner with youth and permitted them to touch her in inappropriate ways.

The documents we received from the State did not indicate whether an

internal investigation substantiated the youth’s claims regarding the

alleged sexual contact, and if so, whether any disciplinary action was

taken.

2

Except where specifically noted, internal Rader investigations and/or

investigations conducted by the Office of Client Advocacy (“OCA”) of the Oklahoma

Department of Human Services provide the basis for all allegations set forth in this

letter.

3

A “client advocate” is a staff member at Rader who refers allegations of

misconduct to administrators, assists youth with grievances, and represents youth in

discipline hearings.

- 3 -

•

In the Fall of 2003, female staff member A.W.4 and a male youth engaged

in a sexual relationship. Rader staff found correspondence between the

two that confirmed the relationship.5

•

In September 2003, female staff member N.R. engaged in a sexual

relationship with male youth J.J., who was classified as a sex offender.

Staff member N.R. and youth J.J. twice engaged in oral sex and digital

penetration in the linen closet of the mental health stabilization unit. Staff

member N.R. also permitted a different youth, D.Q., to fondle her in front

of other youth on the unit. Youth J.J. became very territorial of the staff

member and had numerous physical altercations with other youth over

her.6 At least eight staff members voiced their concerns to staff member

N.R. and to supervisors about staff member N.R.’s behavior. Indeed, one

staff member stated that he considered the female staff member to be a

“sexual predator.” Documents provided by the State indicate that OCA

confirmed sexual abuse by staff member N.R.7 We requested but were

not provided documentation regarding any discipline or corrective action

taken by the State following this incident.

•

Between July 2003 and October 2003, female staff member B.K. and a

male youth engaged in inappropriate sexual relations. Staff observed staff

member B.K. use her foot to rub the inner thigh of the youth while the two

were seated in the day room of the unit. Staff also noted that staff

member B.K. spent a great deal of time in the youth’s bedroom. Indeed,

one staff observed staff member B.K. lying on the youth’s bed. Staff

reportedly noted the inappropriate relationship early on, yet failed to report

it to administrators. Administrators took action to address the relationship

after a security staff member intercepted a letter from staff member B.K. to

the youth. The letter contained sexually explicit language and included the

4

In this letter, we use pseudonym initials of youth and staff in order to protect their

identities and privacy.

5

The OJA Office of Public Integrity (“OPI”) conducted an investigation of staff A.W.

and found the letters in the course of that investigation. The State did not provide

documents from the OPI investigation, so we do not know what action, if any, was taken

by the State.

6

For example, youth J.J. noticed youth L.M. staring at the female staff. Youth J.J.

leaped on to a table and kicked youth L.M. in the face.

7

OJA refers many allegations of staff misconduct to the OCA. The OCA either

conducts its own investigation or sends the matter back to OJA for Rader staff to

investigate.

- 4 -

female staff member’s home phone number. Documents provided by the State indicate that OCA confirmed sexual abuse by staff member B.K. Staff member B.K. resigned her employment on October 8, 2003.

•

From September 2002 through February 2003, a male youth and female

staff member R.G. engaged in a sexual relationship. During this six month

period, there was abundant indicia of inappropriate behavior. For

example: the female staff member frequently shared her food with the

youth; she brought him electronic games and other “goodies;” the youth

sent letters to the female staff member at her home address; the female

staff member mailed Valentine’s Day cards to the youth at Rader; she

gave the youth photos of herself; she brought him into the supply closet

with her; she entered the youth’s room after lights out; she permitted the

youth to stay up after hours and spend time with her; she permitted the

youth to wear her clothes and shoes; she allowed the youth to place his

hand on her thigh in front of other youth; and the female staff member and

the youth engaged in horseplay such as swatting and slapping. During

this time, three different staff members spoke with the female staff

member and other employees wrote memoranda setting forth their

concerns about her behavior. Nevertheless, it took six months for

administrators to address the relationship. Documents provided by the

State indicate that OCA confirmed a finding of sexual abuse against the

female staff member. The State terminated staff R.G.’s employment on

February 20, 2003.

2. Sexual Relationships Between Youth

Examples of inappropriate sexual relationships between youth include:

•

On April 3 and 4, 2004, two male youth reportedly engaged in mutual

masturbation while housed on the unit for sex offenders. One of the youth

reported that he participated because he feared the other youth would

harm him.8

•

On January 29, 2004, an 18-year-old male youth engaged in anal sex with

a 14-year-old male in the restroom of the gym while two staff supervised

13 other youth. The incident occurred while one of the youth was on

8

We did not receive a final investigation report from the State regarding this

incident. The documents we received indicate that an investigation of this incident was

ongoing and that investigators had not reached a final conclusion as to whether the

conduct occurred.

- 5 -

“close observation” which required staff to know of his whereabouts at all times.9

•

In August 2003, two female youth engaged in sexual activity in their

dormitory on at least one occasion. The two youth were able to engage in

sexual activity because there was only one staff member monitoring the

housing unit. The other staff member had left the unit to take a smoking

break, in contravention of facility rules. Documents provided by the State

indicate that OCA substantiated a finding of caretaker misconduct on the

staff member who was derelict from duty. Rader suspended the staff

member for three days without pay.

•

From at least May 2003 through June 2003, two male youth engaged in a

sexual relationship while housed on the sex offender unit. The two youth

regularly paired off and engaged in mutual masturbation and oral sex

while staff were preoccupied with other youth. Documents provided by the

State indicate that OCA substantiated a finding of neglect against one staff

member. Rader suspended the staff member for three days without pay.

•

On January 26, 2003, two youth classified as sexual offenders left the day

room of their unit and entered one of the bathrooms. The two youth then

engaged in oral and anal sex. Although three staff were on duty, two staff

were dealing with a youth who was acting out in his room and the third

staff was monitoring the day room. OCA investigated the incident and did

not confirm caretaker misconduct, but did confirm sexual activity.

B. Youth-on-Youth Violence

The State must provide youth confined at juvenile justice facilities with reasonably safe conditions including protection from assault by other youth. See Youngberg, 457 U.S. at 324; Yvonne L., 959 F.2d at 893. Incident reports provided by the State between January 1, 2003 and May 30, 2004, demonstrated that a significant number of juveniles were involved in youth-on-youth violence.10 Many of the assaults

9

Documents provided by the State indicate that OCA did not confirm any

allegations of neglect against the staff members charged with supervising the youth, but

did confirm that sexual activity had occurred.

10 We are aware that the ACA reaccredited Rader in September 2003. We are also aware that the ACA conducted one-day monitoring tours of Rader in September 2004 and March 2005 in response to problems identified in a report by the Oklahoma Commission on Children and Youth. Following the March 2005 tour, the ACA issued a report in which it noted a downward trend in the level of violence at Rader. Without touring the facility, however, we are unable to verify whether a meaningful reduction in

- 6 -


and injuries at Rader occurred because staff failed to adequately supervise youth. Other assaults and injuries occurred because staff lacked the knowledge and/or training to safely intervene once fights occurred. Except where indicated, the following examples are taken from the documents provided by the State:

•

On June 18, 2004, a local newspaper reported that a brawl broke out

among seven youth who were members of rival gangs. One youth

suffered a broken jaw and another youth suffered a broken arm. Five

other residents were injured. Ten staff members were taken to a local

hospital to treat injuries they suffered.

•

On May 16, 2004, youth T.E. and youth G.L. argued at the gym. In

response, staff sent the two youth back to the dorm. Inexplicably, staff

sent them to the dorm unescorted. When they arrived at the dorm, youth

G.L. attacked youth T.E. The one staff person on duty in the dorm refused

to break up the fight. Instead, she ordered other juveniles to intervene.

Youth T.E. received a bruised left eye from this incident. Documents

provided by the State indicate that OCA requested that Rader officials

investigate the incident. To the extent that an internal Rader investigation

exists, the State did not provide us with a copy.

•

On May 14, 2004, youth F.D. and youth P.Z. fought for several minutes in

youth P.Z.’s bedroom. The fight continued until another youth, M.B.,

broke it up. Youth F.D. suffered two black eyes from the incident. Staff

were unaware that the fight had occurred. Documents provided by the

State indicate that OCA requested that Rader officials investigate the

incident. To the extent that an internal Rader investigation exists, the

State did not provide us with a copy.

•

On May 8, 2004, youth E.N. and youth G.L. entered the bathroom and

began to fight. Staff were not aware that the fight had occurred until other

youth told staff that youth G.L. was in the bathroom and that his nose was

bleeding. Rader staff transported youth G.L. to the emergency room

where medical personnel determined that he had a broken nose.

Documents provided by the State indicate that OCA would conduct an

investigation. To the extent that OCA did conduct an investigation, the

State did not provide us with a copy.

•

On May 7, 2004, youth H.R. approached youth P.Z. from behind, choked

him, and slammed him to the ground. Youth P.Z. claimed that there were

staff in the room, but they did not intervene. Instead, another youth

eventually broke up the fight. Youth P.Z. suffered a black eye from the

violence has occurred. - 7 -

incident. Documents provided by the State indicate that OCA requested that Rader officials investigate the incident. To the extent that an internal Rader investigation exists, the State did not provide us with a copy.

•

On April 29, 2004, a series of youth-on-youth assaults occurred on the

Mental Health Stabilization Unit (“MHSU”). Staff stated in incident reports

that: “We did not/do not believe that we can keep juveniles on this unit

safe.”

•

On January 17, 2004, youth A.C. claimed that three youth entered his

room and assaulted him. Youth A.C. claimed that several minutes passed

before staff realized what was happening and responded to the incident.

Youth A.C. suffered an abrasion above his right eye from the incident.

Documents provided by the State indicate that OCA requested that Rader

officials investigate the incident. To the extent that an internal Rader

investigation exists, the State did not provide us with a copy.

•

On November 24, 2003, youth V.S. assaulted youth J.J. in the shower.

The OCA investigated the incident and confirmed that inadequate staff

supervision made it possible for the assault to occur. Rader staff took

youth J.J. to the emergency room where he received treatment for bruises

to his body. OCA confirmed a charge of caretaker misconduct against

staff D.U., and staff D.U. received a written reprimand and a corrective

action plan.

•

On July 30, 2003, youth K.V. assaulted youth I.O. while staff W.T. and

staff C.X. were on duty. Staff W.T. intervened and all three fell to the floor.

Staff W.T. restrained youth K.V. and released youth I.O. Several

residents kicked youth K.V. and staff W.T. while they lay on the floor.

Documents produced by the State indicate that staff C.X. did not attempt

to assist staff W.T. or protect youth K.V. OCA confirmed a charge of

neglect against staff C.X., and staff C.X. received a three-day suspension

without pay and a corrective action plan.

Disturbingly, and in a gross departure from sound practices, it appears that in some cases the staff either actively encouraged a fight to occur or had knowledge that a fight would occur and allowed it to happen. For example:

•

On April 16, 2004, youth Y.A. assaulted youth O.U. in the kitchen area

while four other youth watched. Youth O.U. suffered facial bruises, a

bloody nose and mouth, and a cut on his neck. The youth claimed that a

staff member, who was seated only a few feet away when the fight

occurred, permitted the fight to continue. Documents provided by the

state indicate that OCA confirmed staff neglect and inadequate

supervision of youth. The documents also indicate that the staff member

- 8 -


is no longer employed at Rader. It is unclear from the documents, however, whether Rader terminated the staff member as a result of this incident or whether he left employment voluntarily.

•

On February 14, 2004, a staff member verbally encouraged youth J.J. and

youth B.G. to settle their differences by going into their cells and fighting.

The staff member stood outside the locked cell door and watched as the

two youth fought. The staff member did not unlock the door and intervene

until after youth B.G. grabbed youth J.J.’s head and brought it down on his

knee.11 Rader staff transported youth J.J. to the emergency where

medical staff diagnosed him with a broken nose and a closed head injury

with a bruise to his left eye and forehead. Documents provided by the

State indicate that OCA confirmed the allegation of abuse with injury. In

addition, the OCA investigation indicated that the staff member verbally

encouraged the alteration and observed part of the fight. We requested

but were not provided documentation regarding any discipline or

corrective action taken by the State following this incident.

There are other indications that the State fails to properly supervise youth at Rader. A local newspaper reported on October 24, 2004 that 15 youth had escaped from Rader or gone AWOL. Indeed, the article stated that on October 16, 2004 two youth escaped from Rader by prying open a locked door and scaling the facility’s perimeter security fence. Most recently, the newspaper reported that on March 13, 2005, two 14-year-old youth escaped from Rader by overpowering a staff member, stealing her keys, and scaling two different fences.

Finally, the lack of adequate supervision makes it possible for an excessive quantity of contraband to be introduced into the facility. The failure to adequately control contraband places both staff and youth at risk of harm. See LaMarca v. Turner, 995 F.2d 1526, 1532-37 (11th Cir. 1992) (finding that excessive contraband contributes to an unsafe environment for inmates). In an institutional setting, contraband is often used either as a weapon or as currency. According to documents provided by the State, contraband appears to be readily accessible to juveniles at Rader, and is regularly used as a weapon, potential weapon, or currency in the facility. For example:

•

On September 19, 2004, a youth attacked another youth and a staff

member with a four-foot long piece of metal.

•

In May 2004, staff searched a youth’s room and found a metal rod hidden

in his mattress.

11 Youth also reported that the staff members on duty spoke about reporting the incident as either horseplay or an accident in the shower. Neither staff member filed reports about the incidents although they were required to by facility rules.
- 9 -

•

In October 2003, staff searched the girls’ unit and found drugs and drug

paraphernalia.

•

In June 2003, staff searched a youth’s room after he had taken a

psychotropic medication intended for another youth. In his room, they

found, among other things, batteries and bleach.12

•

In May 2003, three youths tested positive for marijuana. A search of a

youth’s room uncovered marijuana and a lighter.

•

In April 2003, staff found a razor blade hidden in a vent in a youth’s cell.

•

On January 6, 2003, staff searched the room of a male youth and found

money, rolling papers, cigarettes, a lighter, pornography, materials used in

making tattoos (including a bloody rag), and pills.

C. Self-Injurious and Suicidal Behavior

The State also fails to protect youth at Rader who engage in suicidal and selfinjurious behavior. See Youngberg, 457 U.S. at 324; Yvonne L., 959 F.2d at 893.

1. Suicide

In 2003 and 2004, youth at Rader made at least 12 suicide attempts at the facility. In each case, staff failed to take adequate precautions to protect the youth from harm. For example:

•

On March 21, 2004, a youth cut his wrist with the metal from a pencil

eraser and pulled out stitches previously sutured. With the blood from his

wounds, the youth wrote the words “with pain” and “die” on the wall over

his bed. The youth then used a rope made from a towel and his shirt and

tried to strangle himself. OCA investigated the incident and did not

confirm neglect by the staff members supervising the youth.13

12 A youth could make a weapon by placing the batteries in a sock and swinging the batteries at an individual. Further, a youth easily could harm himself or others by swallowing or hurling bleach. Indeed, one youth attempted to poison a staff member by pouring bleach into the beverage of a staff member.
13 The OCA investigators accepted the staff members’ representations that they checked on the youth every 15 minutes. However, the staff members failed to document these checks. Indeed, they claimed that they were not required to document the checks even though facility policy explicitly requires staff to do so.
- 10 -

•

On February 24, 2004, a youth went to his room, closed the door, tied his

belt around his neck, and tried to hang himself. Staff did not realize that

the youth was attempting suicide until he fell to the ground and yelled out

in pain, as he had chipped a bone in his ankle. An internal investigation

confirmed that staff failed to properly supervise the youth. We requested

but were not provided documentation regarding any discipline or

corrective action taken by the State following this incident.

•

On August 19, 2003, a youth on the MHSU cut himself and staff placed

him on suicide watch. On August 20, 2003, the youth, who was on “close

observation,” went to his room without supervision and closed the door.

Once alone, he tore up his shirt, fashioned the strips into a noose, and tied

it around his neck. Staff found the youth lying on the floor of his room with

red marks around his neck.14 OCA investigated the incident and did not

confirm neglect by the staff members supervising the youth.

•

On April 10, 2003, staff discovered that a youth had tried to commit

suicide by tying a string about his neck. At the time, the youth was on

suicide watch and wearing a helmet and suicide smock to prevent acts of

self harm. The youth had tied a string to his helmet, wound it around his

neck, and tied the string to his toe. Staff discovered the youth while

distributing medication. A staff member was unable to untie the string

and, instead, burned the string with a lighter he was carrying. Documents

provided by the State do not indicate whether either OCA or Rader

officials investigated the incident.

Two months earlier, on February 8, 2003, staff found the same youth underneath the desk in his cell. Staff initially thought that he was sleeping. However, he would not respond to verbal commands to wake up. Staff soon realized that the youth was unconscious and had wrapped a shoelace around his neck and attached it to his toe. A staff member used a lighter to burn the shoelace. Documents provided by the State do not indicate whether either OCA or Rader officials investigated the incident.

•

On January 16, 2003, a youth cut both his wrists with a piece of metal.

Staff placed the youth in the day room for closer observation. An hour

later, the youth tried to strangle himself by tying his pillow case around his

neck and strangling himself. Documents provided by the State do not

indicate whether either OCA or Rader officials investigated the incident.

14 At the time of the incidents, the mental health stabilization unit did not have policies or procedures governing its operations.
- 11 -

2. Self-Injurious Behavior

In addition to the attempted suicides, we found many examples of youth who engaged in self-injurious behaviors. From January 1, 2003 to May 30, 2004, there were over 35 documented reports of youths punching walls or furniture, banging their heads against floors and windows, or beating themselves with objects. In most cases, it appears that staff at Rader are not monitoring adequately children who have a repeated history of engaging in self-abusive behaviors. The injuries ranged from bruises and scratches to fractures.15 For example:

•

On May 28, 2004, a male youth on close supervision managed to wander

into an unauthorized area. The youth became upset and struck a window.

Rader transferred the youth to the hospital where medical staff stitched

the wound.16 In the 18 months prior to this incident, the youth repeatedly

engaged in self-injurious behavior. Incident reports document seven

instances where the youth struck an inanimate object; five instances

where the youth inserted metal into his skin and/or used metal to cut

himself, and one instance where he swallowed ink.

•

On May 5, 2004, a male youth inserted a two-inch section of paper clip

into his left forearm. Staff did not realize this until three days later.17 Staff

should have been more vigilant to prevent the youth from hurting himself

given that the youth had harmed himself numerous times before. In the

nine months prior to this incident, the youth twice punched out the

windows in doors and at least five times either cut himself or inserted

metal into his skin. During one incident, staff heard the youth singing “cut,

cut, cut!” in his room. Staff entered the room and found that he had cut a

“gaping hole” in his arm. At the time, the youth was supposed to be on

close observation because of an incident earlier in the day in which he

was sent to the hospital after inserting a paper clip under the skin in his

arm.

15 Youth appear to have engaged in these behaviors either to hurt themselves or to vent their frustrations. For example, on May 1, 2004, when staff asked a youth about a bruise on his head, he stated that he had beaten his head against the wall in order to relieve stress.
16 Documents provided by the State indicate that OCA requested that Rader officials investigate this incident. To the extent that an internal Rader investigation exists, the State did not provide us with a copy.
17 Documents provided by the State indicate that OCA requested that Rader officials investigate this incident. To the extent that an internal Rader investigation exists, the State did not provide us with a copy.
- 12 -

D. Failure to Safely Distribute Psychotropic Medication

The State fails to monitor adequately the distribution of psychotropic medication to mentally ill youth at Rader. See Youngberg, 457 U.S. at 324. See also Coleman v. Wilson, 912 F.Supp. 1282, 1309-10 (E.D. Ca. 1995) (finding defendants' system of medication management unconstitutional based, in part, on their failure to monitor adequately the hoarding of psychotropic medication). Based on a review of documents produced by the State, we found that students regularly hoard medication and either share it with or sell it to other youth. In addition, the nursing staff, at times, appear to provide youth with the inappropriate type or dosage of medication. For example:

•

In April 2004, staff found a male youth sitting in a chair in his room. The

youth was non-responsive to verbal commands. The staff shook him, but

he would not respond. Rader staff transported the youth to the hospital.

Documents provided by the State indicate that the youth had consumed

seven pills of prescription medication prescribed to another youth.

•

In September 2003, a youth provided two pills of a psychotropic

medication and two pills of an anti-depressant to two other youth who

crushed the pills and snorted them.

•

On August 11, 2003, a male youth swallowed eight pills during medication

distribution. Over a two-week-period the youth had “cheeked” some of his

own medication and had received prescription medication from other

youth.18 The youth hid the medication in his room.

•

On July 20, 2003, a male youth provided 13 pills to three other youth. The

three youth took the pills without knowing what they were. One youth,

with slurred speech, informed staff that he wanted to fly like Superman.

•

On June 17, 2003, a male youth took a psychotropic mediation that was

meant for another youth. He was taken to the hospital for detox.

•

On May 3, 2003, a nurse gave a male youth the wrong medication during

pill distribution. The youth informed the nurse that it was the wrong

medication, but the nurse insisted that it was correct. The nurse later

realized that the youth had, in fact, received the wrong medication.

E. Excessive Force by Staff

18 A youth “cheeks” oral medications by hiding the medication either in the cheek or under their tongue to prevent swallowing. The youth later spits out the medication and either hides it, gives it away, or sells it to another youth.
- 13 -

Staff at Rader physically restrain youth with great frequency. Staff legally are permitted to employ physical force when youth pose an immediate risk of harm either to themselves or to others. See Youngberg, 457 U.S. at 324; Yvonne L., 959 F.2d at 893; Milonas, 691 F.2d at 942-43. The amount or level of force used, however, should be the least amount necessary to control the situation and prevent injury to staff and youth. Our review of documents produced by the State indicates that Rader staff employed force that was disproportionate to the threat posed by the youth. The following examples are illustrative:

•

On March 15, 2004, in response to male youth R.W. trying to push past

him, staff E.V. picked him up and threw him to the ground on his back.

The youth, who is six inches shorter and weighs 100 pounds less than the

staff member, suffered a one-inch cut over his eye that required three

sutures to close as well as bruises and abrasions. An OCA investigation

confirmed staff misconduct by staff E.V. We requested but were not

provided documentation regarding any discipline or corrective action taken

by the State following this incident.

•

On December 12, 2003, a female staff member and a male youth argued

over the placement of his bed in the day room. At one point, the staff

member called the youth a “bad ass bastard” and told the youth that he

would die while incarcerated. The staff member walked over to the youth

and slapped a cup out of his hand. In the process, the staff member

struck the youth in the face. Other staff approached and restrained the

staff member. The staff member attempted to break free and attack the

youth. Security staff arrived on the unit and placed the staff member in

another room where she proceeded to curse, pace, and verbally threaten

to harm the youth. Security staff reported that the staff member called the

youth a “bitch ass nigger” and challenged him to “do something or shut

up.” An OCA investigation confirmed abuse by the female staff member.

She resigned her position in lieu of termination.

•

On November 9, 2003, staff E.V. grabbed youth B.G. by the wrist and

threw him to the floor after youth B.G. refused a direct order. The youth

suffered swelling and redness to the temple area. The OCA investigation

confirmed that the staff member used excessive force and that the youth

did not pose a risk to anyone at the time that force was used. We

requested but were not provided documentation regarding any discipline

or corrective action taken by the State following this incident.

•

On May 10, 2003, youth C.P. repeatedly requested a snack from staff T.B.

Staff T.B. became angry and lunged at youth C.P., pushing the youth

backwards towards the kitchen door. Staff T.B. then picked up youth C.P.

and tried to throw him over his shoulder. Staff T.B. and youth C.P. fell to

- 14 -


the floor where staff T.B. struck youth C.P. in the head and ribs. Staff M.Q. responded to the altercation and made repeated attempts to strike youth C.P. with his forearm. At the same time, staff T.B. exerted pressure to youth C.P.’s throat. Security staff arrived and attempted to intervene. Staff T.B. and staff M.Q. pushed security staff away and continued to try to fight youth C.P. even though youth C.P. was not fighting back. At one point, staff M.Q. attempted to strike youth C.P. but, instead, hit security staff K.O. in the jaw. An OCA investigation confirmed abuse by staff M.Q. and staff T.B. Staff D.O. resigned in lieu of termination and Rader terminated the employment of staff T.B.
III. REMEDIAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional rights of youth confined at Rader, the State should implement, at a minimum, the following remedial measures:
1. Ensure that youth are adequately protected from inappropriate sexual interaction with staff and other youth.
2. Ensure that youth are adequately protected from physical violence committed by staff and other youth.
3. Ensure that there are sufficient, adequately trained staff to safely supervise youth.
4. Ensure that staff are adequately trained in safe restraint practices and that restraints are used only in appropriate circumstances.
5. Ensure that staff adequately and promptly report incidents of violence and misconduct.
6. Ensure that all incidents of violence, use of force, or serious injury are adequately investigated and that appropriate personnel actions are taken in response to substantiated findings.
7. Develop and implement adequate policies and procedures to ensure that youth who are at risk of suicide and youth who are at risk of engaging in self-injurious behavior are properly identified, supervised, and treated.
8. Develop and implement adequate policies and procedures to ensure that medication is safely distributed and administered to youth.
9. Develop and implement adequate policies and procedures to prevent the introduction of contraband into the facility.
- 15 -


* * * * * * * * * * *
I invite the State to discuss with us the remedial recommendations, with the goal of remedying the identified deficiencies without resort to litigation. In the 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 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 contact 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.
Sincerely,
/s/ R. Alexander Acosta
R. Alexander Acosta Assistant Attorney General
cc: The Honorable Drew Edmondson Oklahoma Attorney General Office of the Oklahoma Attorney General
Charles N. Nobles
 Chairman
 Board of Juvenile Affairs

Richard DeLaughter Executive Director Office of Juvenile Affairs
Jimmy Martin Superintendent L.E. Rader Center
The Honorable David E. O’Meilia
 United States Attorney
 Northern District of Oklahoma

- 16 -


 
 USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 1 of 25
ADMINCLOSE, CLOSED, DISCREF, LC−1, PROTO, STAYED
U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa)
CIVIL DOCKET FOR CASE #: 4:06−cv−00673−GKF−FHM

USA v. Oklahoma, State of et al Assigned to: Chief Judge Gregory K Frizzell Referred to: Magistrate Judge Frank H McCarthy Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 12/14/2006 Date Terminated: 09/10/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

USA

represented by Fortune A Glasse US Department of Justice (Civil Rts Div) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−6255 Email: fortune.glasse@usdoj.gov TERMINATED: 03/08/2007 LEAD ATTORNEY

Je Yon Jung US Department of Justice (Civil Rts Div) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−6255 Email: jeyon.jung@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy C Preston US Department of Justice (Civil Rts Div) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−6255 Fax: 202−514−0212 Email: judy.preston@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenyan Renard McDuffie US Department of Justice (PHB Rm 5915B) 950 PENNSYLVANIA AVE NW PHB RM 5915B WASHINGTON, DC 20530 202−305−1025 Fax: 202−514−6903 Email: kenyan.mcduffie@usdoj.gov TERMINATED: 09/19/2011 LEAD ATTORNEY

Laura Lee Coon US Department of Justice (Civil Rts Div) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−6255 Email: Laura.Coon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlysha Myrthil US Department of Justice (Civil Rts Div)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 2 of 25
950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−305−3454 Fax: 202−514−4883 Email: marlysha.myrthil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Donnelly US Department of Justice Civil Rights Div (950 Penn) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−305−1502 Fax: 202−514−4883 Email: matthew.donnelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shanetta Y Cutlar US Department of Justice (Civil Rts Div) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−6255 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wan J Kim address unknown LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wyn Dee Baker United States Attorney's Office (Tulsa) 110 W 7TH ST STE 300 TULSA, OK 74119−1013 918−382−2700 Fax: 918−560−7939 Email: wyndee.baker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaheena Ahmad Simons US Department of Justice Civil Rights Div (950 Penn) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−305−3364 Fax: 202−514−4883 Email: shaheena.simons@usdoj.gov ATTORNEY TO BE NOTICED
Stacey Kamya Grigsby US Department of Justice Civil Rights Div (950 Penn) 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−514−4151 Fax: 202−514−4883 Email: stacey.grigsby@usdoj.gov ATTORNEY TO BE NOTICED
V.

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 3 of 25

Defendant Oklahoma, State of

represented by Jill Christine Tsiakilos Tsiakilos Law PLLC 3325 FRENCH PARK DR STE 5 EDMOND, OK 73034 405−513−8564 Email: jill@tsiakiloslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kindanne Carole Jones Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−4274 Fax: 405−528−1867 Email: kindanne.jones@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−522−4274 Fax: 405−522−0669 Email: Dan.Weitman@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann Richard N Mann PC 3325 FRENCH PARK DR STE 5 EDMOND, OK 73034 405−509−6835 Email: mannlaw@coxinet.net LEAD ATTORNEY

Defendant
Brad Henry sued as: The Honorable Brad Henry, Governor of the State of Oklahoma, in his official capacity only TERMINATED: 09/21/2011

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) LEAD ATTORNEY

Defendant

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 4 of 25

Juvenile Affairs, Office of sued as: The Oklahoma Office of Juvenile Affairs

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) LEAD ATTORNEY

Defendant
Robert E Christian Executive Director of the Oklahoma Office of Juvenile Affairs, in his official capacity only

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) LEAD ATTORNEY

Defendant
Oklahoma Board of Juvenile Affairs, The

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address)

Defendant
Lonelia L Simmons Chairperson of the Oklahoma Board of Juvenile Affairs, in her official capacity only

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 5 of 25

TERMINATED: 09/21/2011

Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) LEAD ATTORNEY

Defendant
Jimmy Martin Superintendent of the L. E. Rader Center, in his official capacity only TERMINATED: 09/21/2011

represented by Jill Christine Tsiakilos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) LEAD ATTORNEY

Defendant
Mary Fallin Governor of the State of Oklahoma, in her official capacity only

represented by Jill Christine Tsiakilos (See above for address) ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) ATTORNEY TO BE NOTICED

Defendant
T Hastings Siegfried Chairperson of the Oklahoma Board ofJuvenile Affairs, in his official capacity only

represented by Jill Christine Tsiakilos (See above for address) ATTORNEY TO BE NOTICED
Kindanne Carole Jones (See above for address) ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 6 of 25

ATTORNEY TO BE NOTICED

Defendant
Cathy Olberding Superintendent of the L.E. Rader Center, in her official capacity only

represented by Jill Christine Tsiakilos (See above for address) ATTORNEY TO BE NOTICED

Kindanne Carole Jones (See above for address) ATTORNEY TO BE NOTICED

M Daniel Weitman (See above for address) ATTORNEY TO BE NOTICED

Richard Neal Mann (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/15/2006 12/15/2006 12/15/2006
12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006
12/20/2006 12/20/2006
12/21/2006
12/21/2006
12/21/2006
12/21/2006

# Docket Text
1 CIVIL COVER SHEET by USA (Coon, Laura) Modified on 12/18/2006 to correct title of event (lml, Dpty Clk). (Entered: 12/15/2006)
2 COMPLAINT against all defendants by USA (Coon, Laura) (Entered: 12/15/2006)
3 SUMMONS Issued by Court Clerk as to Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (s−kjp, Dpty Clk) (Entered: 12/15/2006)
4 ATTORNEY APPEARANCE by Je Yon Jung on behalf of USA (Jung, Je Yon) (Entered: 12/18/2006)
5 ATTORNEY APPEARANCE by Laura Lee Coon on behalf of USA (Coon, Laura) (Entered: 12/18/2006)
6 ATTORNEY APPEARANCE by Fortune A Glasse on behalf of USA (Glasse, Fortune) (Entered: 12/18/2006)
7 ATTORNEY APPEARANCE by Wyn Dee Baker on behalf of USA (Baker, Wyn) (Entered: 12/18/2006)
NOTICE of Docket Entry Modification; Error: This was e−filed using the incorrect event (Complaint); Correction: Edited docket text to reflect correct event (Civil Cover Sheet) (Re: 1 Complaint) (lml, Dpty Clk) (Entered: 12/18/2006)
8 SUMMONS Returned Executed re: Brad Henry − Served on 12/18/2006. certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/20/2006)
9 SUMMONS Returned Executed re: Jimmy Martin − Served on 12/19/2006. certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/20/2006)
10 SUMMONS Returned Executed re: Lonelia L Simmons − Served on 12/18/2006. Certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/21/2006)
11 SUMMONS Returned Executed re: Juvenile Affairs, Office of − Served on 12/18/2006. Certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/21/2006)
12 SUMMONS Returned Executed re: Oklahoma, State of − Served on 12/18/2006. Certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/21/2006)
13 SUMMONS Returned Executed re: Robert E Christian − Served on 12/18/2006. Certified mail; return receipt requested by USA (Baker, Wyn) (Entered:

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 7 of 25

12/21/2006 01/05/2007 01/05/2007 01/08/2007
01/12/2007 01/22/2007 02/06/2007 02/07/2007 02/07/2007 02/08/2007 02/12/2007 02/13/2007 02/26/2007

12/21/2006)
14 SUMMONS Returned Executed re: Oklahoma Board of Juvenile Affairs, The − Served on 12/18/2006. Certified mail; return receipt requested by USA (Baker, Wyn) (Entered: 12/21/2006)
15 ATTORNEY APPEARANCE by Kindanne Carole Jones on behalf of Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/05/2007)
16 MOTION for Extension of Time to Answer (Re: 2 Complaint) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/05/2007)
17 MINUTE ORDER by Judge Terence Kern, granting 16 Motion for Extension of Time to Answer, setting/resetting/terminating answer deadline(s): Oklahoma, State of answer due on 2/7/2007; Brad Henry answer due on 2/7/2007; Juvenile Affairs, Office of answer due on 2/7/2007; Robert E Christian answer due on 2/7/2007; Oklahoma Board of Juvenile Affairs, The answer due on 2/7/2007; Lonelia L Simmons answer due on 2/7/2007; Jimmy Martin answer due on 2/7/2007 (Re: 2 Complaint) (JLW, Chambers) (Entered: 01/08/2007)
18 ORDER by Judge Terence Kern, directing parties to file joint status report, Status Report due by 2/12/2007 (cds, Dpty Clk) (Entered: 01/12/2007)
19 ATTORNEY APPEARANCE by Stacey Kamya Grigsby on behalf of USA (Grigsby, Stacey) (Entered: 01/22/2007)
20 MINUTE ORDER by Court Clerk per General Order 07−2, reassigning case to Judge Gregory K Frizzell, Judge Terence Kern no longer assigned to case, changing case number to 06−CV−673−GKF−FHM (lml, Dpty Clk) (Entered: 02/06/2007)
21 MOTION to Dismiss and Brief in Support by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) Modified on 2/8/2007 to show this is a multi−part motion, see Doc #22 for other motion part and to remove duplicative text (lml, Dpty Clk). (Entered: 02/07/2007)
22 MOTION for More Definite Statement (Submitted as Doc # 21 ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (lml, Dpty Clk) (Entered: 02/08/2007)
NOTICE of Docket Entry Modification; Error: This is a multi−part motion, but only one part was e−filed (Motion to Dismiss); Correction: Clerk's office filed the second motion part (Motion for More Definite Statement) as Document No. 22 (Re: 21 MOTION to Dismiss and Brief in Support) (lml, Dpty Clk) (Entered: 02/08/2007)
23 JOINT STATUS REPORT by USA, Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons (Coon, Laura) Modified on 2/13/2007 to add filers (lml, Dpty Clk). (Entered: 02/12/2007)
NOTICE of Docket Entry Modification; Error: All filers were not selected when e−filed; Correction: Edited docket text and added Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons as filers to document (Re: 23 Joint Status Report per Local Rule 16.1, ) (lml, Dpty Clk) (Entered: 02/13/2007)
24 RESPONSE in Opposition to Motion (Re: 22 MOTION for More Definite Statement (Submitted as Doc # 21 ), 21 MOTION to Dismiss and Brief in Support) by USA ; (With attachments) (Coon, Laura) (Entered: 02/26/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 8 of 25

03/06/2007 03/08/2007 03/09/2007 03/12/2007 03/12/2007 03/15/2007 03/16/2007 03/16/2007 03/16/2007 03/16/2007
03/16/2007 03/19/2007 03/19/2007 03/19/2007 03/19/2007 03/19/2007

25 MOTION to Withdraw Attorney(s) Fortune A. Glasse by USA (Grigsby, Stacey) (Entered: 03/06/2007)
26 ORDER by Judge Gregory K Frizzell, granting 25 Motion to Withdraw Attorney(s), terminating attorney Fortune A Glasse (hbo, Dpty Clk) (Entered: 03/09/2007)
27 MOTION extension of time to respond to production request by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 03/09/2007)
28 ORDER by Magistrate Judge Frank H McCarthy, granting 27 Motion for Miscellaneous Relief, setting/resetting deadline(s)/hearing(s):, Miscellaneous Deadline set for 3/19/2007 (Re: 27 MOTION extension of time to respond to production request) (jcm, Dpty Clk) (Entered: 03/12/2007)
29 REPLY to Response to Motion (Re: 21 MOTION to Dismiss and Brief in Support) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Mann, Richard) (Entered: 03/12/2007)
30 Unopposed MOTION for Leave to File United States' Supplemental Memorandum in Opposition to Defendants' Motion to Dismiss (Re: 22 MOTION for More Definite Statement (Submitted as Doc # 21 ), 21 MOTION to Dismiss and Brief in Support) by USA (With attachments) (Jung, Je Yon) (Entered: 03/15/2007)
31 Unopposed MOTION for Production of Certain State Employee Information by USA (Jung, Je Yon) (Entered: 03/16/2007)
32 ERRATA/CORRECTION (Re: 31 Unopposed MOTION for Production of Certain State Employee Information) by USA (With attachments) (Jung, Je Yon) (Entered: 03/16/2007)
33 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): Parties may request to attend by phone by advising the deputy Clerk, Status Hearing set for 4/5/2007 at 11:00 AM before Judge Gregory K Frizzell (hbo, Dpty Clk) (Entered: 03/16/2007)
34 Second MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Respond to Requests for Production of Documents by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 03/16/2007)
***Motion(s) Referred to Magistrate McCarthy (Re: 34 Second MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Respond to Requests for Production of Documents) (sac, Dpty Clk) (Entered: 03/19/2007)
35 ORDER by Judge Gregory K Frizzell unopposed motion, granting 30 Motion for Leave to File Document(s) (GKF1, Chambers) (Entered: 03/19/2007)
36 ORDER by Judge Gregory K Frizzell unopposed motion, granting 31 Motion for Production (GKF1, Chambers) (Entered: 03/19/2007)
37 SURREPLY to Motion (Re: 22 MOTION for More Definite Statement (Submitted as Doc # 21 ), 21 MOTION to Dismiss and Brief in Support) by USA ; (Jung, Je Yon) (Entered: 03/19/2007)
38 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): Out of town counsel may attend by phone by advising the Deputy Clerk, Status Hearing set for 4/5/2007 at 02:30 PM before Judge Gregory K Frizzell (hbo, Dpty Clk) (Entered: 03/19/2007)
39 RESPONSE in Opposition to Motion (Re: 34 Second MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Respond to Requests for Production of Documents) by USA ; (With attachments) (Jung, Je Yon) (Entered: 03/19/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 9 of 25

03/22/2007 04/05/2007
04/05/2007
04/09/2007 04/09/2007 04/10/2007 04/10/2007 04/12/2007
04/12/2007 04/13/2007 04/13/2007 04/13/2007 04/13/2007 04/16/2007

40 OPINION AND ORDER by Magistrate Judge Frank H McCarthy, granting 34 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), setting/resetting deadline(s)/hearing(s): Plaintiff's production of documents, Miscellaneous Deadline set for 4/2/2007 (FHM1, Chambers) (Entered: 03/22/2007)
41 MINUTES of Proceedings − held before Judge Gregory K Frizzell : Status Hearing held on 4/5/2007, Scheduling Conference held on 4/5/2007, denying 21 Motion to Dismiss, denying 22 Motion for More Definite Statement, striking/terminating deadline(s)/Hearing(s) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 04/05/2007)
42 SCHEDULING ORDER by Judge Gregory K Frizzell, setting/resetting scheduling order date(s):, Discovery due by 1/3/2008, Dispositive Motions due by 1/22/2008, Proposed Pretrial Order due by 3/10/2008, Pretrial Conference set for 3/13/2008 at 10:30 AM before Judge Gregory K Frizzell, Nonjury Trial set for 4/21/2008 at 09:30 AM before Judge Gregory K Frizzell (hbo, Dpty Clk) (Entered: 04/05/2007)
43 SETTLEMENT CONFERENCE ORDER by Magistrate Judge Paul J Cleary, setting/resetting deadline(s)/hearing(s):, Settlement Conference set for 1/8/2008 at 09:30 AM before Magistrate Judge Paul J Cleary (jcm, Dpty Clk) (Entered: 04/09/2007)
44 MOTION for Protective Order and Brief in Support by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 04/09/2007)
45 Amended MOTION for Protective Order by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Mann, Richard) (Entered: 04/10/2007)
46 RESPONSE in Opposition to Motion (Re: 45 Amended MOTION for Protective Order) by USA ; (With attachments) (Jung, Je Yon) (Entered: 04/10/2007)
47 REPLY to Response to Motion (Re: 45 Amended MOTION for Protective Order) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Mann, Richard) Modified on 4/13/2007−This is a multi−event document; See Doc # 48 for second event (lml, Dpty Clk). (Entered: 04/12/2007)
48 MOTION for Hearing (Submitted as Doc # 47 ) (Re: 45 Amended MOTION for Protective Order) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (lml, Dpty Clk) (Entered: 04/13/2007)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 48 MOTION for Hearing EXPEDITED (Submitted as Doc # 47 )) (lml, Dpty Clk) (Entered: 04/13/2007)
NOTICE of Docket Entry Modification; Error: This is a multi−event document, but only one event was e−filed (Reply to Response to Motion); Correction: Clerk's office filed the second event (Motion for Hearing (expedited) as Document No. 48 (Re: 47 Reply to Response to Motion, ) (lml, Dpty Clk) (Entered: 04/13/2007)
49 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Miscellaneous Hearing held on 4/13/2007, granting 48 Motion for Hearing (Court Reporter: 07FHM02A) (jcm, Dpty Clk) (Entered: 04/13/2007)
50 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Miscellaneous Hearing held on 4/13/2007 (Court Reporter: 07FHM02A) (jcm, Dpty Clk) (Entered: 04/13/2007)
51 RESPONSE in Opposition to Motion (Re: 44 MOTION for Protective Order and Brief in Support) by USA ; (With attachments) (Coon, Laura) (Entered: 04/16/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 10 of 25

04/18/2007
04/19/2007 04/19/2007 04/20/2007 04/24/2007
04/25/2007 04/25/2007
04/26/2007 04/26/2007 05/02/2007 05/02/2007 05/03/2007 05/03/2007 05/04/2007

52 REPLY to Response to Motion (Re: 45 Amended MOTION for Protective Order, 44 MOTION for Protective Order and Brief in Support) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Mann, Richard) (Entered: 04/18/2007)
53 MOTION for Leave to File Supplemental Memorandum in Opposition to Defendants Motion for Protective Order (Re: 45 Amended MOTION for Protective Order, 52 Reply to Response to Motion,, 44 MOTION for Protective Order and Brief in Support) by USA (With attachments) (Coon, Laura) (Entered: 04/19/2007)
54 ANSWER to Complaint (Re: 2 Complaint) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 04/19/2007)
55 ORDER by Magistrate Judge Frank H McCarthy, granting 53 Motion for Leave to File Document(s) (jcm, Dpty Clk) (Entered: 04/20/2007)
56 REPLY to Response to Motion (Re: 45 Amended MOTION for Protective Order) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Mann, Richard) Modified on 4/25/2007; THIS ENTRY MADE IN ERROR − wrong event − counsel notified to REFILE using the correct event (Motion for Leave to File Document(s)) (sac, Dpty Clk). (Entered: 04/24/2007)
NOTICE of Docket Entry Modification; Error: efiled using the wrong event (Reply to Response to Motion); Correction: notified counsel to REFILE using correct event (Motion for Leave to File Document(s)) within 24 hours (Re: 56 Reply to Response to Motion, ) (sac, Dpty Clk) (Entered: 04/25/2007)
57 MOTION for Leave to File A Reply to Plaintiff's Supplemental Memorandum in Opposition to Defendants' Motion for Protective Order (Re: 44 MOTION for Protective Order, 45 Amended MOTION for Protective Order) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) Modified on 4/26/2007 to create links to Doc. Nos. 44 &45 (lml, Dpty Clk). (Entered: 04/25/2007)
58 ORDER by Magistrate Judge Frank H McCarthy, granting 57 Motion for Leave to File Document(s), setting/resetting deadline(s)/hearing(s):, Miscellaneous Deadline set for 5/2/2007 (jcm, Dpty Clk) (Entered: 04/26/2007)
59 SURREPLY to Motion (Re: 45 Amended MOTION for Protective Order, 44 MOTION for Protective Order and Brief in Support) by USA ; (With attachments) (Coon, Laura) (Entered: 04/26/2007)
60 Unopposed MOTION to Amend Complaint (Re: 2 Complaint) by USA (With attachments) (Coon, Laura) (Entered: 05/02/2007)
61 REPLY to Response to Motion (Re: 45 Amended MOTION for Protective Order) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Mann, Richard) (Entered: 05/02/2007)
62 Unopposed MOTION for Leave to File Motion for Leave to File Supplemental Memorandum (Re: 45 Amended MOTION for Protective Order, 61 Reply to Response to Motion, ) by USA (With attachments) (Coon, Laura) (Entered: 05/03/2007)
63 ORDER by Judge Gregory K Frizzell, granting 60 Motion to Amend (GKF1, Chambers) (Entered: 05/03/2007)
64 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 62 Unopposed MOTION for Leave to File Motion for Leave to File Supplemental Memorandum) (GKF1, Chambers) (Entered: 05/04/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 11 of 25

05/04/2007 05/04/2007 05/04/2007 05/08/2007 05/18/2007
05/29/2007
05/31/2007
05/31/2007 06/01/2007 06/01/2007
06/01/2007
06/04/2007 06/04/2007 06/05/2007
06/06/2007
06/06/2007 06/07/2007

65 AMENDED COMPLAINT against all defendants (Re: 2 Complaint) by USA (Coon, Laura) (Entered: 05/04/2007)
66 ORDER by Magistrate Judge Frank H McCarthy, granting 62 Motion for Leave to File Document(s) (MLC, Chambers) (Entered: 05/04/2007)
67 Supplemental RESPONSE in Opposition to Motion (Re: 45 Amended MOTION for Protective Order) by USA ; (With attachments) (Coon, Laura) (Entered: 05/04/2007)
68 MOTION to Compel Entry Upon Land by USA (With attachments) (Coon, Laura) (Entered: 05/08/2007)
69 ANSWER to Amended Complaint (Re: 65 Amended Complaint ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 05/18/2007)
70 RESPONSE in Opposition to Motion (Re: 68 MOTION to Compel Entry Upon Land ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Jones, Kindanne) (Entered: 05/29/2007)
71 REPLY to Response to Motion (Re: 68 MOTION to Compel Entry Upon Land ) by USA ; (With attachments) (Coon, Laura) Modified on 6/1/2007, this is a multi−event document, but only 1 part was filed; Clerk's Office filed 2nd part (Motion to Expedite Ruling) as 72 (crp, Dpty Clk). (Entered: 05/31/2007)
72 MOTION to Expedite Ruling (Submitted as part of 71 ) (Re: 68 MOTION to Compel Entry Upon Land ) by USA (crp, Dpty Clk) (Entered: 06/01/2007)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 72 MOTION to Expedite Ruling (Submitted as part of 71 ) ) (crp, Dpty Clk) (Entered: 06/01/2007)
NOTICE of Docket Entry Modification; Error: Document No. 71 is a multi−event document, but only 1 part was filed (Reply to Response to Motion); Correction: Clerk's Office filed 2nd part (Motion to Expedite Ruling) as 72 (Re: 71 Reply to Response to Motion, 72 MOTION to Expedite Ruling (Submitted as part of 71 ) ) (crp, Dpty Clk) (Entered: 06/01/2007)
73 ATTORNEY APPEARANCE by Jill Christine Tsiakilos on behalf of Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Tsiakilos, Jill) (Entered: 06/01/2007)
74 OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 44 Motion for Protective Order; granting in part and denying in part 45 Motion for Protective Order (FHM1, Chambers) (Entered: 06/04/2007)
75 PROTECTIVE ORDER by Magistrate Judge Frank H McCarthy (FHM1, Chambers) (Entered: 06/04/2007)
76 MOTION for Leave to File Sur−Reply by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Tsiakilos, Jill) (Entered: 06/05/2007)
77 ORDER by Magistrate Judge Frank H McCarthy, setting/resetting deadline(s)/hearing(s):, Motion Hearing set for 6/20/2007 at 01:30 PM before Magistrate Judge Frank H McCarthy (Re: 68 MOTION to Compel Entry Upon Land ) (jcm, Dpty Clk) (Entered: 06/06/2007)
78 ORDER by Magistrate Judge Frank H McCarthy ; setting/resetting deadline(s)/hearing(s): ; granting 76 Motion for Leave to File Document(s), Miscellaneous Deadline set for 6/11/2007 (jcm, Dpty Clk) (Entered: 06/06/2007)
79 Unopposed MOTION for Production and Order Authorizing Production by USA (With attachments) (Coon, Laura) (Entered: 06/07/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 12 of 25

06/11/2007 06/11/2007 06/13/2007
06/13/2007 06/14/2007 06/14/2007 06/14/2007
06/14/2007 06/19/2007 06/20/2007 06/20/2007
06/22/2007 07/13/2007 07/17/2007 07/17/2007

80 ORDER by Magistrate Judge Frank H McCarthy ; granting 79 Motion for Production (MLC, Chambers) (Entered: 06/11/2007)
81 SURREPLY to Motion (Re: 68 MOTION to Compel Entry Upon Land ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Jones, Kindanne) (Entered: 06/11/2007)
82 MOTION to Reconsider (Re: 74 Opinion and Order, Ruling on Motion for Protective Order, 75 Protective Order ) by USA (Coon, Laura) Modified on 6/14/2007 this is a multi−part motion, but only 1 part was filed; Clerk's Office filed 2nd part (Motion to Clarify) and 3rd part (Motion to Expedite Ruling) as 84 (crp, Dpty Clk). (Entered: 06/13/2007)
84 MOTION to Clarify, MOTION to Expedite Ruling (Submitted as part of 82 ) (Re: 74 Opinion and Order, Ruling on Motion for Protective Order, 75 Protective Order, 82 MOTION to Reconsider ) by USA (crp, Dpty Clk) (Entered: 06/14/2007)
83 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 82 MOTION to Reconsider ) (GKF1, Chambers) (Entered: 06/14/2007)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 84 MOTION to Clarify MOTION to Expedite Ruling (Submitted as part of 82 ) ) (crp, Dpty Clk) (Entered: 06/14/2007)
NOTICE of Docket Entry Modification; Error: Document No. 82 is a multi−part motion, but only 1 part was filed (Motion to Reconsider); Correction: Clerk's Office filed 2nd part (Motion to Clarify) and 3rd part (Motion to Expedite Ruling) as 84 (Re: 84 MOTION to Clarify MOTION to Expedite Ruling (Submitted as part of 82 ), 82 MOTION to Reconsider ) (crp, Dpty Clk) (Entered: 06/14/2007)
85 APPEAL of the Magistrate Judge's Order (Re: 74 Opinion and Order, Ruling on Motion for Protective Order, 75 Protective Order ) by USA (Coon, Laura) (Entered: 06/14/2007)
86 MOTION for Protective Order and Brief in Support by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Tsiakilos, Jill) (Entered: 06/19/2007)
87 ATTORNEY APPEARANCE by M Daniel Weitman on behalf of Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Weitman, M) (Entered: 06/20/2007)
88 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Motion Hearing held on 6/20/2007, taking motion(s) under advisement (Re: 68 MOTION to Compel Entry Upon Land, 72 MOTION to Expedite Ruling (Submitted as part of 71 ) ) (Court Reporter: C2) (jcm, Dpty Clk) (Entered: 06/20/2007)
89 ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 68 Motion to Compel; granting in part and denying in part 86 Motion for Protective Order (jcm, Dpty Clk) (Entered: 06/22/2007)
90 RESPONSE in Opposition to Motion (Re: 82 MOTION to Reconsider ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Mann, Richard) (Entered: 07/13/2007)
91 Oral MOTION to allow food to be brought onto the grounds at the Rader facility by USA (jcm, Dpty Clk) (Entered: 07/17/2007)
92 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Motion Hearing held on 7/17/2007 ; denying 91 Motion for Miscellaneous Relief (Re: 91 Oral MOTION to allow food to be brought onto the grounds at the Rader facility ) (Court Reporter: 07−FHM−02B) (jcm, Dpty Clk) (Entered: 07/17/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 13 of 25

07/19/2007
07/25/2007 07/26/2007 07/31/2007 08/10/2007 08/14/2007 08/15/2007 08/15/2007 08/15/2007 08/15/2007 08/16/2007 08/17/2007
09/07/2007 09/10/2007
09/12/2007
09/13/2007 09/14/2007 09/14/2007 09/17/2007

93 REPLY to Response to Motion (Re: 84 MOTION to Clarify MOTION to Expedite Ruling (Submitted as part of 82 ), 72 MOTION to Expedite Ruling (Submitted as part of 71 ), 82 MOTION to Reconsider ) by USA ; (With attachments) (Coon, Laura) (Entered: 07/19/2007)
94 Unopposed MOTION for Discovery by USA (With attachments) (Coon, Laura) (Entered: 07/25/2007)
95 ORDER by Magistrate Judge Frank H McCarthy ; granting 94 Motion for Discovery (jcm, Dpty Clk) (Entered: 07/26/2007)
96 ATTORNEY APPEARANCE by Shaheena Ahmad Simons on behalf of USA (Simons, Shaheena) (Entered: 07/31/2007)
97 Unopposed MOTION for Leave to Exceed Page Limitation by USA (Grigsby, Stacey) (Entered: 08/10/2007)
98 ORDER by Judge Gregory K Frizzell brief not to exceed 40 pages ; granting in part and denying in part 97 Motion for Leave to Exceed Page Limitation (GKF1, Chambers) (Entered: 08/14/2007)
99 MOTION for Preliminary Injunction by USA (With attachments) (Grigsby, Stacey) (Entered: 08/15/2007)
100 MOTION to Seal Document Attachments B and D (Re: 99 MOTION for Preliminary Injunction ) by USA (Grigsby, Stacey) (Entered: 08/15/2007)
101 SEALED DOCUMENT (Grigsby, Stacey) (Entered: 08/15/2007)
102 SEALED DOCUMENT (Grigsby, Stacey) (Entered: 08/15/2007)
103 ORDER by Judge Gregory K Frizzell ; sealing document(s); granting 100 Motion to Seal Document(s) (Re: 101 Sealed Document, 102 Sealed Document ) (hbo, Dpty Clk) (Entered: 08/16/2007)
104 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s):, Responses due by 9/17/2007, Replies due by 10/1/2007, Motion Hearing set for 10/5/2007 at 09:30 AM before Judge Gregory K Frizzell (Re: 99 MOTION for Preliminary Injunction ) (hbo, Dpty Clk) (Entered: 08/17/2007)
105 ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 82 Motion to Reconsider (Re: 74 Opinion and Order, Ruling on Motion for Protective Order, 75 Protective Order ) (jcm, Dpty Clk) (Entered: 09/07/2007)
106 MINUTE ORDER by Magistrate Judge Frank H McCarthy as per Order 105 ; finding as moot 72 Motion to Expedite Ruling; granting 84 Motion to Clarify; finding as moot 84 Motion to Expedite Ruling (jcm, Dpty Clk) (Entered: 09/10/2007)
107 MOTION for Leave to File Defendant's Motion to File Oversized Response Brief (Re: 99 MOTION for Preliminary Injunction ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 09/12/2007)
108 ORDER by Judge Gregory K Frizzell response brief not to exceed 40 pages ; granting 107 Motion for Leave to File Document(s) (GKF1, Chambers) (Entered: 09/13/2007)
109 MOTION to Seal Document by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 09/14/2007)
110 ORDER by Judge Gregory K Frizzell ; granting 109 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 09/14/2007)
111 MOTION to File Defendants' Application to Submit Exhibit Out of Time by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 14 of 25

09/17/2007
09/17/2007
09/17/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/02/2007 10/05/2007 10/05/2007
10/12/2007 10/12/2007

(Jones, Kindanne) (Entered: 09/17/2007)
112 ORDER by Judge Gregory K Frizzell Defendant may file Exhibit 8 to their Response to the Motion for Preliminary Injunction on or before 5:00 p.m. September 19, 2007 ; granting 111 Motion to File Document Out of Time (Re: 99 MOTION for Preliminary Injunction ) (GKF1, Chambers) (Entered: 09/17/2007)
113 RESPONSE in Opposition to Motion (Re: 99 MOTION for Preliminary Injunction ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Jones, Kindanne) (Entered: 09/17/2007)
114 SEALED DOCUMENT (Jones, Kindanne) (Entered: 09/17/2007)
115 SEALED ADDITIONAL ATTACHMENT(S) Exhibit 8 Part 1 to sealed document 113 exceeding the 20 megabyte file size limitation per docket entry (Jones, Kindanne) (Entered: 09/19/2007)
116 SEALED ADDITIONAL ATTACHMENT(S) Exhibit 8 Part 2 to sealed document 113 exceeding the 20 megabyte file size limitation per docket entry (Jones, Kindanne) (Entered: 09/19/2007)
117 SEALED ADDITIONAL ATTACHMENT(S) Exhibit 8 Part 3 to sealed document 113 exceeding the 20 megabyte file size limitation per docket entry (Jones, Kindanne) (Entered: 09/19/2007)
118 SEALED ADDITIONAL ATTACHMENT(S) Exhibit 8 Part 4 to sealed document 113 exceeding the 20 megabyte file size limitation per docket entry (Jones, Kindanne) (Entered: 09/19/2007)
119 ORDER by Judge Gregory K Frizzell ; denying 85 Appeal of Magistrate Judge's Order (Re: 105 Order,, Ruling on Motion to Reconsider, 75 Protective Order ) (GKF1, Chambers) (Entered: 10/01/2007)
120 REPLY to Response to Motion (Re: 99 MOTION for Preliminary Injunction ) by USA ; (With attachments) (Coon, Laura) (Entered: 10/01/2007)
121 MOTION to Seal Document Attachments B−I &K−L (Re: 120 Reply to Response to Motion ) by USA (Coon, Laura) (Entered: 10/01/2007)
122 SEALED DOCUMENT (Coon, Laura) (Entered: 10/01/2007)
123 SEALED DOCUMENT (Coon, Laura) (Entered: 10/01/2007)
124 SEALED DOCUMENT (Coon, Laura) (Entered: 10/01/2007)
125 SEALED DOCUMENT (Coon, Laura) (Entered: 10/01/2007)
126 ORDER by Judge Gregory K Frizzell ; granting 121 Motion to Seal Document(s) (Re: 122 Sealed Document, 124 Sealed Document, 123 Sealed Document, 125 Sealed Document ) (hbo, Dpty Clk) (Entered: 10/02/2007)
127 MOTION for Protective Order Precluding Defendants' 30(b)(6) Depositions by USA (With attachments) (Grigsby, Stacey) (Entered: 10/05/2007)
128 MINUTES of Proceedings − held before Judge Gregory K Frizzell : Motion Hearing held on 10/5/2007 (see minute for additional schedule), Evidentiary Hearing held on 10/5/2007, setting/resetting deadline(s)/hearing(s):, Motion Hearing set for 11/1/2007 at 09:30 AM before Judge Gregory K Frizzell (Re: 99 MOTION for Preliminary Injunction ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 10/05/2007)
129 MOTION to Seal Document Witness and Exhibit List for PI Hearing by USA (Jung, Je Yon) (Entered: 10/12/2007)
130 WITNESS LIST by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 10/12/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 15 of 25

10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/12/2007 10/15/2007 10/15/2007 10/15/2007 10/16/2007
10/16/2007
10/17/2007
10/17/2007 10/17/2007
10/17/2007
10/17/2007

131 SEALED DOCUMENT (Jung, Je Yon) Modified on 10/15/2007 to correct title of event (lml, Dpty Clk). (Entered: 10/12/2007)
132 SEALED ADDITIONAL ATTACHMENT(S) Exhibits 5−16 to sealed document 131 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 10/12/2007)
133 SEALED ADDITIONAL ATTACHMENT(S) Exhibits 17a−29 to sealed document 131 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 10/12/2007)
134 SEALED ADDITIONAL ATTACHMENT(S) Exhibits 31−45 to sealed document 131 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 10/12/2007)
135 SEALED ADDITIONAL ATTACHMENT(S) Exhibits 45−65 to sealed document 131 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 10/12/2007)
136 SEALED ADDITIONAL ATTACHMENT(S) Exhibits 66−106 to sealed document 131 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 10/12/2007)
137 SEALED DOCUMENT (Jung, Je Yon) (Entered: 10/12/2007)
138 ORDER by Judge Gregory K Frizzell ; granting 129 Motion to Seal Document(s) (hbo, Dpty Clk) (Entered: 10/15/2007)
139 Initial EXHIBIT LIST by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 10/15/2007)
140 MOTION for Protective Order by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Mann, Richard) (Entered: 10/15/2007)
141 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Expert Reports by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 10/16/2007)
142 RESPONSE in Opposition to Motion (Re: 127 MOTION for Protective Order Precluding Defendants' 30(b)(6) Depositions ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Jones, Kindanne) Modified on 10/17/2007; this entry has the wrong PDF attached − counsel notified to file an Errata/Correction (sac, Dpty Clk). (Entered: 10/16/2007)
143 RESPONSE in Opposition to Motion (Re: 140 MOTION for Protective Order ) by USA ; (Simons, Shaheena) Modified on 10/18/2007 this is a multi−event document, but only 1 part was filed; see 146 for 2nd part of this multi−event document (crp, Dpty Clk). (Entered: 10/17/2007)
NOTICE of Docket Entry Modification; Error: wrong PDF attached; Correction: notifed filer to file an Errata/Correction with the correct PDF attached (Re: 142 Response in Opposition to Motion, ) (sac, Dpty Clk) (Entered: 10/17/2007)
144 RESPONSE in Opposition to Motion (Re: 141 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Expert Reports MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Expert Reports ) by USA ; (Jung, Je Yon) (Entered: 10/17/2007)
145 MOTION to Expedite Ruling (Re: 141 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Expert Reports MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Expert Reports ) by USA (Jung, Je Yon) (Entered: 10/17/2007)
146 MOTION to Expedite Ruling (Re: 140 MOTION for Protective Order ) by USA (Simons, Shaheena) Modified on 10/18/2007 this is a multi−part motion, but only 1

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 16 of 25

10/17/2007 10/17/2007 10/18/2007 10/18/2007
10/19/2007 10/22/2007 10/22/2007 10/22/2007 10/22/2007 10/22/2007 10/22/2007
10/23/2007
10/23/2007
10/23/2007 10/24/2007

part was filed; Clerk's Office filed 2nd part (Motion to Compel), as 148 (crp, Dpty Clk). (Entered: 10/17/2007)
147 ERRATA/CORRECTION (Re: 142 Response in Opposition to Motion, ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 10/17/2007)
148 MOTION to Compel (Submitted as part of 146 ) by USA (crp, Dpty Clk) (Entered: 10/18/2007)
***Motion(s) Referred to Magistrate Judge McCarthy (Re: 146 MOTION to Expedite Ruling ) (crp, Dpty Clk) (Entered: 10/18/2007)
NOTICE of Docket Entry Modification; Error: Document No. 146 is a multi−part motion, but only 1 part was filed (Motion to Expedite Ruling); Correction: Clerk's Office filed 2nd part (Motion to Compel), as 148 (Re: 146 MOTION to Expedite Ruling, 148 MOTION to Compel (Submitted as part of 146 ) ) (crp, Dpty Clk) (Entered: 10/18/2007)
149 MINUTE ORDER by Magistrate Judge Frank H McCarthy based on Defendant withdrawing deposition notice ; finding as moot 127 Motion for Protective Order (jcm, Dpty Clk) (Entered: 10/19/2007)
150 MOTION to Seal Document Exhibits 108 − 117 by USA (Coon, Laura) (Entered: 10/22/2007)
151 EXHIBIT LIST by USA (With attachments) (Coon, Laura) (Entered: 10/22/2007)
152 SEALED DOCUMENT (Coon, Laura) (Entered: 10/22/2007)
153 REPLY to Response to Motion (Re: 145 MOTION to Expedite Ruling ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Jones, Kindanne) (Entered: 10/22/2007)
154 NOTICE Correction due to Clerical Error by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 10/22/2007)
155 REPLY to Response to Motion (Re: 145 MOTION to Expedite Ruling ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Jones, Kindanne) Modified on 10/23/2007; THIS ENTRY MADE IN ERROR − wrong PDF attached − see 155 (sac, Dpty Clk). (Entered: 10/22/2007)
156 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Motion Hearing held on 10/23/2007 by telephone ; denying 140 Motion for Protective Order; granting 148 Motion to Compel (Re: 140 MOTION for Protective Order, 148 MOTION to Compel (Submitted as part of 146 ) ) (Court Reporter: 07−FHM−02B) (jcm, Dpty Clk) (Entered: 10/23/2007)
157 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): defendants' expert report deadline extended to January 1, 2008 ; setting/resetting scheduling order date(s): Plaintiff may depose defendants' experts up to January 31, 2008; Plaintiff may file Daubert motions and motions in limine on defendants' experts up to February 14, 2008 ; granting 141 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); granting 145 Motion to Expedite Ruling (GKF1, Chambers) (Entered: 10/23/2007)
158 MINUTE ORDER by Magistrate Judge Frank H McCarthy ; granting 146 Motion to Expedite Ruling (jcm, Dpty Clk) (Entered: 10/23/2007)
159 OBJECTION to Exhibits Preliminary Injunction Exhibits by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) Modified on 10/25/2007 ENTERED IN ERROR − WRONG PDF ATTACHED;

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 17 of 25

10/24/2007 10/24/2007
10/24/2007 10/24/2007 10/24/2007 10/25/2007 10/25/2007 10/25/2007 10/25/2007
10/25/2007 10/25/2007 10/25/2007 10/25/2007 10/29/2007
10/29/2007
10/29/2007
10/29/2007
10/29/2007
10/29/2007 10/29/2007
10/30/2007

SEE ERRATA/CORRECTION 161 FOR CORRECT PDF (crp, Dpty Clk). (Entered: 10/24/2007)
160 OBJECTION to Defendants' Preliminary Hearing Witness and Exhibit List (Re: 130 Witness List ) by USA (Grigsby, Stacey) (Entered: 10/24/2007)
161 ERRATA/CORRECTION (Re: 159 OBJECTION to Exhibits Preliminary Injunction Exhibits ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 10/24/2007)
162 MOTION to Seal Document Petition for Writ and Cons Witness/Exh List by USA (Coon, Laura) (Entered: 10/24/2007)
163 SEALED DOCUMENT (Coon, Laura) (Entered: 10/24/2007)
164 SEALED MOTION (Coon, Laura) (Entered: 10/24/2007)
165 SEALED ORDER (s−tjc, Dpty Clk) (Entered: 10/25/2007)
166 SEALED DOCUMENT (hbo, Dpty Clk) (Entered: 10/25/2007)
167 MOTION to Seal Document by USA (Grigsby, Stacey) (Entered: 10/25/2007)
168 ERRATA/CORRECTION (Re: 131 Sealed Additional Attachment(s) to Sealed Document Exceeding 20 Megabytes, 120 Reply to Response to Motion ) by USA (Grigsby, Stacey) (Entered: 10/25/2007)
169 SEALED DOCUMENT (Grigsby, Stacey) (Entered: 10/25/2007)
170 ORDER by Judge Gregory K Frizzell ; granting 150 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 10/25/2007)
171 ORDER by Judge Gregory K Frizzell ; granting 162 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 10/25/2007)
172 ORDER by Judge Gregory K Frizzell ; granting 167 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 10/25/2007)
173 MOTION to Seal Document by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 10/29/2007)
174 OBJECTION to Defendants' Supplemental Exhibits, Preliminary Injunction Hearing (Re: 139 Exhibit List, 130 Witness List ) by USA (Simons, Shaheena) (Entered: 10/29/2007)
175 OBJECTION (Re: 152 SEALED DOCUMENT) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) Modified on 10/30/2007 to correct title of event and create link to Doc # 152 (lml, Dpty Clk). (Entered: 10/29/2007)
176 ORDER by Judge Gregory K Frizzell granting motion to file exhibits under seal ; granting 173 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 10/29/2007)
177 SUPPLEMENT (Re: 139 Exhibit List ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Jones, Kindanne) (Entered: 10/29/2007)
178 SEALED DOCUMENT (Jones, Kindanne) (Entered: 10/29/2007)
179 ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s):, Status Hearing set for 10/30/2007 at 03:00 PM before Judge Gregory K Frizzell (hbo, Dpty Clk) (Entered: 10/29/2007)
NOTICE of Docket Entry Modification; Error: This was e−filed using the incorrect event (Objection to Exhibits) and was not linked to Document No. 152; Correction:

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 18 of 25

10/30/2007 10/30/2007 10/30/2007 10/30/2007 10/30/2007 10/31/2007 11/01/2007
11/02/2007 11/14/2007
11/14/2007
11/14/2007
11/15/2007 11/15/2007
11/15/2007

Edited docket text to reflect correct event (Objection) and created link to Document No. 152 (Re: 175 OBJECTION to Exhibits ) (lml, Dpty Clk) (Entered: 10/30/2007)
180 ERRATA/CORRECTION (Re: 152 Sealed Document, 131 Sealed Additional Attachment(s) to Sealed Document Exceeding 20 Megabytes ) by USA (Simons, Shaheena) (Entered: 10/30/2007)
181 MOTION to Seal Document (Re: 131 Sealed Additional Attachment(s) to Sealed Document Exceeding 20 Megabytes, 180 Errata/Correction to Document ) by USA (Simons, Shaheena) (Entered: 10/30/2007)
182 SEALED DOCUMENT (Simons, Shaheena) (Entered: 10/30/2007)
183 MINUTE ORDER by Judge Gregory K Frizzell ; granting 181 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 10/30/2007)
185 MINUTES of Proceedings − held before Judge Gregory K Frizzell : Status Hearing held on 10/30/2007, setting/resetting deadline(s)/hearing(s):, Miscellaneous Deadline set for 11/19/2007 (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 10/31/2007)
184 ATTORNEY APPEARANCE by Matthew J Donnelly on behalf of USA (s−kjp, Dpty Clk) (Entered: 10/31/2007)
186 MINUTES of Proceedings − held before Judge Gregory K Frizzell : Evidentiary Hearing held on 11/1/2007, Motion Hearing held on 11/1/2007, setting/resetting deadline(s)/hearing(s):, Motion Hearing set for 11/2/2007 at 09:00 AM before Judge Gregory K Frizzell (Re: 99 MOTION for Preliminary Injunction ) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 11/02/2007)
187 MINUTES of Proceedings − held before Judge Gregory K Frizzell : Evidentiary Hearing held on 11/2/2007, striking/terminating deadline(s)/Hearing(s) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 11/02/2007)
188 SEALED TRANSCRIPT of Proceedings of Sealed Hearing held on 11/01/2007 (Court Reporter: Glen Dorrough) (Pages: 1−63) (Re: 186 Minutes of Evidentiary Hearing,, Minutes of Motion Hearing,, Setting/Resetting Motion and RRDeadline(s)/Hearing(s), Setting/Resetting Motion and RRDeadline(s)/Hearing(s) ) (grd, Crt Rptr) (Entered: 11/14/2007)
189 TRANSCRIPT of Proceedings of hearing on preliminary injunction held on 11/01/2007 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−231) (Re: 186 Minutes of Evidentiary Hearing,, Minutes of Motion Hearing,, Setting/Resetting Motion and RRDeadline(s)/Hearing(s), Setting/Resetting Motion and RRDeadline(s)/Hearing(s) ) (grd, Crt Rptr) (Entered: 11/14/2007)
190 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Submit Proposed Findings of Fact and Conclusion of Law by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 11/14/2007)
191 TRANSCRIPT of Proceedings of hearing on preliminary injunction held on 11/02/2007 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 232−378) (Re: 187 Minutes of Evidentiary Hearing, Striking/Terminating Deadline(s)/Hearing(s) ) (grd, Crt Rptr) (Entered: 11/15/2007)
192 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): Findings of Fact and Conclusions of Law due November 27, 2007 ; granting 190 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), Miscellaneous Deadline set for 11/27/2007 (Re: 99 MOTION for Preliminary Injunction ) (GKF1, Chambers) (Entered: 11/15/2007)
193 MINUTE ORDER by Magistrate Judge Paul J Cleary, setting/resetting deadline(s)/hearing(s): resetting settlement conference, Settlement Conference set for 1/15/2008 at 09:30 AM before Magistrate Judge Paul J Cleary (sjm, Dpty Clk) (Entered: 11/15/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 19 of 25

11/27/2007 11/27/2007
11/27/2007 11/28/2007 12/04/2007
12/13/2007
12/13/2007 12/13/2007 12/13/2007 12/14/2007
12/17/2007 12/17/2007

194 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Jones, Kindanne) (Entered: 11/27/2007)
195 EXHIBIT(S) (Transcript of Deposition of Robert E. Christian) (Re: 99 MOTION for Preliminary Injunction ) by USA (With attachments) (Coon, Laura) Modified on 11/28/2007; THIS ENTRY WAS MADE IN ERROR − depositions are not to be filed of record (sac, Dpty Clk). Modified on 11/29/2007 to seal the entry at the request of the Office of the AG − if the document should have been filed, it should have been filed under seal (sac, Dpty Clk). (Entered: 11/27/2007)
196 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by USA (Coon, Laura) (Entered: 11/27/2007)
NOTICE of Docket Entry Modification; Error: deposition was filed as an exhibit; Correction: notified counsel that depositions are not filed of record (Re: 195 Exhibit(s) in Support of Document(s), Exhibit(s) in Support of Document(s) ) (sac, Dpty Clk) (Entered: 11/28/2007)
197 TRANSCRIPT of Proceedings of status/scheduling conference held on 04/05/2007 before Judge Gregory K Frizzell (Court Reporter: Glen Dorrough) (Pages: 1−13) (Re: 41 Minutes of Status Hearing,, Minutes of Settlement Conference,, Ruling on Motion to Dismiss,, Ruling on Motion for More Definite Statement,, Conference Held,, Hearing Held,, Striking/Terminating Deadline(s)/Hearing(s), Striking/Terminating Deadline(s)/Hearing(s) ) (grd, Crt Rptr) (Entered: 12/04/2007)
198 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION TO EXTEND FACT DEPOSITION DISCOVERY END DATE by USA, Robert F Christian, Brad Henry, Office of Juvenile Affairs, Jimmy Martin, Oklahoma Board of Juvenile Affairs, State of Oklahoma, Lonelia L Simmons (Coon, Laura) Modified on 12/14/2007 to add defendants as filers (sac, Dpty Clk). (Entered: 12/13/2007)
199 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION TO EXTEND DISPOSITIVE MOTION END DATE by USA (Coon, Laura) (Entered: 12/13/2007)
200 Unopposed MOTION for Hearing FOR STATUS CONFERENCE REGARDING TRIAL WITNESSES by USA (Coon, Laura) Modified on 12/14/2007 to change text to reflect correct event (sac, Dpty Clk). Modified on 12/17/2007; this document contains discovery issues − at the request of chambers an additional Motion for Hearing has been efiled − see 203 (sac, Dpty Clk). (Entered: 12/13/2007)
203 MOTION for Hearing re number of depositions per party (submitted as part of 200 ) by USA (sac, Dpty Clk) Modified on 12/20/2007; this entry is STRICKEN − see 207 (sac, Dpty Clk). (Entered: 12/17/2007)
NOTICE of Docket Entry Modification; Error: document 198 not all filers were selected; document 200 wrong event selected (Motion to Clarify); Correction: document 198 added defendants as filers; document 200 changed text to reflect correct event (Motion for Hearing) (Re: 200 MOTION for Hearing, 198 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION TO EXTEND FACT DEPOSITION DISCOVERY END DATEJoint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) MOTION TO EXTEND FACT DEPOSITION DISCOVERY END DATE ) (sac, Dpty Clk) (Entered: 12/14/2007)
201 MINUTE ORDER by Judge Gregory K Frizzell Plaintiff's Motion to Extend Dispositive Motion End Date must be denied, as it does not afford sufficient time for briefing and consideration of such motion sprior to the Final Pretrial Conference ; denying 199 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (GKF1, Chambers) (Entered: 12/17/2007)
202 ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ; granting 198 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), Miscellaneous Deadline set for 1/11/2008 (GKF1, Chambers) (Entered: 12/17/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 20 of 25

12/17/2007 12/17/2007
12/18/2007 12/19/2007
12/19/2007 12/20/2007 12/20/2007 12/20/2007 12/21/2007
12/21/2007
12/26/2007 12/26/2007
12/27/2007
12/27/2007

204 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 203 MOTION for Hearing re number of depositions per party (submitted as part of 200 ) ) (GKF1, Chambers) (Entered: 12/17/2007)
205 MINUTE ORDER by Judge Gregory K Frizzell the US' motion for status conference regarding trial witnesses (Docket No. 200) is denied. Either party may reassert the motion, but the parties should brief the issue. The parties are additionally advised that neither party is currently limited to a specific number of wintesses at trial ; denying 200 Motion for Hearing (GKF1, Chambers) (Entered: 12/17/2007)
206 MOTION to Withdraw Document(s) (Re: 203 MOTION for Hearing re number of depositions per party (submitted as part of 200 ) ) by USA (Jung, Je Yon) (Entered: 12/18/2007)
207 ORDER by Magistrate Judge Frank H McCarthy ; striking/withdrawing document(s); granting 206 Motion to Withdraw Documents(s) (Re: 203 MOTION for Hearing re number of depositions per party (submitted as part of 200 ) ) (Documents Terminated: 203 MOTION for Hearing re number of depositions per party (submitted as part of 200 ) ) (jcm, Dpty Clk) (Entered: 12/19/2007)
208 MOTION to Seal Document by USA (Coon, Laura) (Entered: 12/19/2007)
209 ERRATA/CORRECTION (Re: 137 Sealed Document ) by USA (Coon, Laura) (Entered: 12/20/2007)
210 SEALED DOCUMENT (Coon, Laura) (Entered: 12/20/2007)
211 ORDER by Judge Gregory K Frizzell ; granting 208 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 12/20/2007)
212 MOTION to Strike Plaintiff's Expert Report by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) Modified on 12/26/2007; this is a two−part motion of which only one part was efiled − see 213 for Motion to Accelerate/Extend/Reset Hearings/Deadlines (sac, Dpty Clk). (Entered: 12/21/2007)
213 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) alternatively, to submit rebuttal report (submitted as part of 212 ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (sac, Dpty Clk) (Entered: 12/26/2007)
NOTICE of Docket Entry Modification; Error: this is a two−part motion of which only one part was efiled; Correction: efiled Motion to Accelerate/Extend/Reset Hearings/Deadlines − see 213 (Re: 212 MOTION to Strike Plaintiff's Expert Report ) (sac, Dpty Clk) (Entered: 12/26/2007)
214 RESPONSE in Opposition to Motion (Re: 212 MOTION to Strike Plaintiff's Expert Report, 213 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) alternatively, to submit rebuttal report (submitted as part of 212 ) MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) alternatively, to submit rebuttal report (submitted as part of 212 ) ) by USA ; (Jung, Je Yon) (Entered: 12/26/2007)
215 MINUTE ORDER by Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): Defendants' Motion to Strike Plaintiff's Amended Expert Report [Docket No. 212] is denied; Defendants' Alternative Motion to Extend Deadline for Defendants to submit their rebuttal report [Docket No. 213] is granted, until February 4, 2008 ; denying 212 Motion to Strike; granting 213 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), Miscellaneous Deadline set for 2/4/2008 (GKF1, Chambers) (Entered: 12/27/2007)
216 MOTION for Leave to Appear at Settlement Conference with Representatives with Limited Settlement Authority by USA (Jung, Je Yon) Modified on 12/28/2007 to correct title to reflect correct event title (crp, Dpty Clk). (Entered: 12/27/2007)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 21 of 25

12/28/2007 12/28/2007 01/02/2008 01/02/2008 01/03/2008
01/07/2008 01/07/2008 01/09/2008
01/09/2008 01/10/2008 01/17/2008 01/22/2008
01/22/2008 01/22/2008

NOTICE of Docket Entry Modification; Error: This document was filed using the incorrect event (Motion for Miscellaneous Relief); Correction: Corrected title to reflect correct event title (Motion for Leave to Appear) (Re: 216 MOTION for Leave to Appear ) (crp, Dpty Clk) (Entered: 12/28/2007)
***Motion(s) Referred to Magistrate Judge Cleary (Re: 216 MOTION for Leave to Appear ) (crp, Dpty Clk) (Entered: 12/28/2007)
217 RESPONSE in Opposition to Motion (Re: 216 MOTION for Leave to Appear ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (Mann, Richard) (Entered: 01/02/2008)
218 MOTION to Clarify Deadline for Deposition of Defendants' Protection from Harm Expert by USA (Coon, Laura) (Entered: 01/02/2008)
219 RESPONSE in Opposition to Motion (Re: 218 MOTION to Clarify Deadline for Deposition of Defendants' Protection from Harm Expert ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin ; (With attachments) (Mann, Richard) (Entered: 01/03/2008)
220 MINUTE ORDER by Magistrate Judge Paul J Cleary ; based on conversation with counsel the court is ; granting 216 Motion for Leave to Appear (sjm, Dpty Clk) (Entered: 01/07/2008)
221 MINUTE ORDER by Judge Gregory K Frizzell, referring motion(s) to Magistrate Judge McCarthy (Re: 218 MOTION to Clarify Deadline for Deposition of Defendants' Protection from Harm Expert ) (GKF1, Chambers) (Entered: 01/07/2008)
222 MINUTES of Proceedings − held before Magistrate Judge Frank H McCarthy : Motion Hearing held on 1/9/2008 ; setting/resetting deadline(s)/hearing(s): ; granting 218 Motion to Clarify, Miscellaneous Deadline set for 3/4/2008 (Re: 218 MOTION to Clarify Deadline for Deposition of Defendants' Protection from Harm Expert ) (Court Reporter: 07−FHM−04A) (jcm, Dpty Clk) (Entered: 01/09/2008)
223 Unopposed MOTION for Leave to Exceed Page Limitation for Summary Judgment Motion by USA (Coon, Laura) (Entered: 01/09/2008)
224 MINUTE ORDER by Judge Gregory K Frizzell Plaintiff may file a motion for summary judgment brief not to exceed 35 pages; Defendant may file a response brief not to exceed 35 pages ; granting in part and denying in part 223 Motion for Leave to Exceed Page Limitation (GKF1, Chambers) (Entered: 01/10/2008)
225 SETTLEMENT CONFERENCE REPORT by Magistrate Judge Paul J Cleary advising settlement negotiations continue, striking/terminating deadline(s)/Hearing(s) (sjm, Dpty Clk) (Entered: 01/17/2008)
226 MOTION to Exclude Testimony of Kelly Dedel on the Issues of Special Education and Brief in Support Thereof by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Jones, Kindanne) Modified on 1/22/2008 to seal PDF of Attachment; Attorney will file Motion to Seal (crp, Dpty Clk). (Entered: 01/22/2008)
227 MOTION in Limine and Brief in Support by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/22/2008)
228 MOTION to Seal Document (Re: 226 MOTION to Exclude Testimony of Kelly Dedel on the Issues of Special Education and Brief in Support Thereof ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/22/2008)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 22 of 25

01/22/2008 01/22/2008
01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/23/2008 01/23/2008 01/23/2008 01/25/2008 01/28/2008
01/29/2008
02/13/2008 02/14/2008
06/13/2008
06/16/2008

229 MOTION to Seal Document by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/22/2008)
230 MOTION to Exclude Testimony of Dedel on the Issues of Protection from harm by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/22/2008)
231 MOTION to Seal Document by USA (Jung, Je Yon) (Entered: 01/22/2008)
232 MOTION in Limine by USA (With attachments) (Jung, Je Yon) (Entered: 01/22/2008)
233 SEALED ADDITIONAL ATTACHMENT(S) to sealed document 232 exceeding the 20 megabyte file size limitation per docket entry (Jung, Je Yon) (Entered: 01/22/2008)
234 MOTION for Summary Judgment by USA (With attachments) (Jung, Je Yon) (Entered: 01/22/2008)
235 SEALED DOCUMENT (Jung, Je Yon) (Entered: 01/22/2008)
236 ORDER by Judge Gregory K Frizzell ; granting 231 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 01/23/2008)
237 ORDER by Judge Gregory K Frizzell ; granting 228 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 01/23/2008)
238 ORDER by Judge Gregory K Frizzell ; granting 229 Motion to Seal Document(s) (GKF1, Chambers) (Entered: 01/23/2008)
239 SEALED DOCUMENT (Jones, Kindanne) (Entered: 01/25/2008)
240 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 01/28/2008)
241 SCHEDULING ORDER by Judge Gregory K Frizzell (Amended)(Stayed for 20 days) ; staying case; setting/resetting scheduling order date(s): ( Dispositive Motions due by 3/5/2008, Proposed Pretrial Order due by 3/10/2008); granting 240 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (hbo, Dpty Clk) (Entered: 01/29/2008)
242 Unopposed MOTION to Stay by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (Jones, Kindanne) (Entered: 02/13/2008)
243 ORDER by Judge Gregory K Frizzell ; staying case; setting/resetting deadline(s)/hearing(s): ( Status Report due by 6/23/2008); finding as moot 99 Motion for Preliminary Injunction; finding as moot 226 Motion to Exclude; finding as moot 227 Motion in Limine; finding as moot 230 Motion to Exclude; finding as moot 232 Motion in Limine; finding as moot 234 Motion for Summary Judgment; granting 242 Motion to Stay (hbo, Dpty Clk) Modified on 2/15/2008 correct granting or #242(hbo, Dpty Clk). (Entered: 02/14/2008)
244 Joint MOTION Entry of Settlement Agreement by USA, Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons (With attachments) (Simons, Shaheena) Modified on 6/16/2008 to add filers (lml, Dpty Clk). (Entered: 06/13/2008)
NOTICE of Docket Entry Modification; Error: All filers were not selected when e−filed; Correction: Edited docket text and added defendants as filers to document (Re: 244 Joint MOTION Entry of Settlement Agreement ) (lml, Dpty Clk) (Entered: 06/16/2008)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 23 of 25

06/16/2008 06/24/2008 07/22/2008 07/23/2008 07/31/2008 08/01/2008 08/06/2008 08/06/2008 08/07/2008 08/07/2008
08/08/2008 08/08/2008 09/08/2008
09/09/2008
09/09/2008 09/09/2008

245 ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 6/24/2008) (Re: 244 Joint MOTION Entry of Settlement Agreement ) (hbo, Dpty Clk) (Entered: 06/16/2008)
246 BRIEF Regarding the Court's PLRA Concerns (Re: 245 Order, Setting/Resetting Deadline(s)/Hearing(s), ) by USA (With attachments) (Donnelly, Matthew) (Entered: 06/24/2008)
247 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): (Order to follow, parties to be present for hearing) ( Miscellaneous Hearing set for 8/8/2008 at 09:30 AM before Judge Gregory K Frizzell) (hbo, Dpty Clk) (Entered: 07/22/2008)
248 ORDER by Judge Gregory K Frizzell (Re: 247 Minute Order, Setting/Resetting Deadline(s)/Hearing(s), 244 Joint MOTION Entry of Settlement Agreement ) (hbo, Dpty Clk) (Entered: 07/23/2008)
249 MOTION to be Excused from the Hearing on Joint Motion of Settlement set on August 8, 2008 by Brad Henry (Jones, Kindanne) (Entered: 07/31/2008)
250 ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 249 Motion to be Excused from Hearing (JLE, Chambers) (Entered: 08/01/2008)
251 ATTORNEY APPEARANCE by Judy C Preston on behalf of USA (s−tjc, Dpty Clk) (Entered: 08/06/2008)
252 BRIEF Directed by the Court's July 23, 2008 Order (Re: 248 Order, ) by USA (With attachments) (Coon, Laura) (Entered: 08/06/2008)
253 ATTORNEY APPEARANCE by Kenyan Renard McDuffie on behalf of USA (McDuffie, Kenyan) (Entered: 08/07/2008)
254 RESPONSE to Court's Orders of July 23 and August 1, 2008 (Re: 248 Order, 250 Order, Ruling on Motion to be Excused from Hearing ) by Oklahoma, State of, Brad Henry, Juvenile Affairs, Office of, Robert E Christian, Oklahoma Board of Juvenile Affairs, The, Lonelia L Simmons, Jimmy Martin (With attachments) (Jones, Kindanne) Modified on 8/8/2008 to change text to reflect correct event (sac, Dpty Clk). (Entered: 08/07/2008)
NOTICE of Docket Entry Modification; Error: wrong event selected (Notice); Correction: changed event to reflect correct event (Response) (Re: 254 Notice (Other), Notice (Other) ) (sac, Dpty Clk) (Entered: 08/08/2008)
255 MINUTES of Proceedings − held before Judge Gregory K Frizzell: Miscellaneous Hearing held on 8/8/2008, striking/terminating deadline(s)/Hearing(s) (Court Reporter: Glen Dorrough) (hbo, Dpty Clk) (Entered: 08/08/2008)
256 Joint MOTION FOR ENTRY OF CONSENT DECREE (renewed) (Re: 244 Joint MOTION Entry of Settlement Agreement ) by USA, Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons (With attachments) (Donnelly, Matthew) Modified on 9/9/2008 to add filers (lml, Dpty Clk). (Entered: 09/08/2008)
NOTICE of Docket Entry Modification; Error: Not all filers were selected when filed; Correction: Edited docket text and added Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons as filers (Re: 256 Joint MOTION FOR ENTRY OF CONSENT DECREE (renewed)Joint MOTION FOR ENTRY OF CONSENT DECREE (renewed) ) (lml, Dpty Clk) (Entered: 09/09/2008)
257 ORDER by Judge Gregory K Frizzell ; finding as moot 244 Motion for Miscellaneous Relief; granting 256 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 09/09/2008)
258 OPINION AND ORDER by Judge Gregory K Frizzell (CONSENT DECREE) (Re: 257 Order, Ruling on Motion for Miscellaneous Relief, 256 Joint MOTION FOR ENTRY OF CONSENT DECREE (renewed)Joint MOTION FOR ENTRY OF CONSENT DECREE (renewed) ) (hbo, Dpty Clk) (Entered: 09/09/2008)

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 24 of 25

09/10/2008 09/10/2008 09/01/2011 09/01/2011 09/02/2011
09/02/2011 09/08/2011
09/09/2011
09/09/2011
09/09/2011 09/10/2011 09/12/2011 09/13/2011 09/16/2011 09/19/2011 09/21/2011

259 ORDER by Judge Gregory K Frizzell, administratively closing the case (terminates case) (hbo, Dpty Clk) (Entered: 09/10/2008)
***Civil Case Terminated (see document number 259 ) (lml, Dpty Clk) (Entered: 09/11/2008)
260 MOTION to Enforce Consent Decree, and Incorporated Memorandum of Law (Emergency Motion) by USA (With attachments) (Coon, Laura) Modified on 9/2/2011 to remove text re: second motion part; See Doc #261 for second motion part (lml, Dpty Clk). (Entered: 09/01/2011)
261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) by USA (lml, Dpty Clk) (Entered: 09/02/2011)
NOTICE of Docket Entry Modification; Error: Document No. 260 is a multi−part motion, but only one part was filed; Correction: Filed the second motion part as Document No. 261 (Re: 260 MOTION to Enforce Consent Decree and Incorporated Memorandum of Law (Emergency Motion), 261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) ) (lml, Dpty Clk) (Entered: 09/02/2011)
262 ATTORNEY APPEARANCE by Marlysha Myrthil on behalf of USA (Myrthil, Marlysha) (Entered: 09/02/2011)
263 MINUTE ORDER by Judge Gregory K Frizzell, setting/resetting deadline(s)/hearing(s): ( Responses due by 9/9/2011, Replies due by 9/23/2011) (Re: 260 MOTION to Enforce Consent Decree and Incorporated Memorandum of Law (Emergency Motion), 261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) ) (hbo, Dpty Clk) (Entered: 09/08/2011)
264 RESPONSE in Opposition to Motion (Re: 260 MOTION to Enforce Consent Decree and Incorporated Memorandum of Law (Emergency Motion), 261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) ) by Juvenile Affairs, Office of, Oklahoma, State of ; (With attachments) (Jones, Kindanne) (Entered: 09/09/2011)
265 MINUTE ORDER by Judge Gregory K Frizzell; setting/resetting deadline(s)/hearing(s): Replies due by 9/13/2011 (Re: 260 MOTION to Enforce Consent Decree and Incorporated Memorandum of Law (Emergency Motion), 261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) ) (GKF1, Chambers) Modified on 9/12/2011 to add event text (sac, Dpty Clk). (Entered: 09/09/2011)
266 MOTION to Withdraw Attorney(s) Richard Mann by Robert E Christian, Brad Henry, Juvenile Affairs, Office of, Jimmy Martin, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Lonelia L Simmons (Jones, Kindanne) (Entered: 09/09/2011)
267 MINUTE ORDER by Judge Gregory K Frizzell ; granting 266 Motion to Withdraw Attorney(s) (GKFJ, Judge) (Entered: 09/10/2011)
NOTICE of Docket Entry Modification; Error: event was not selected; Correction: added Minute Order event text (Re: 265 Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s) ) (sac, Dpty Clk) (Entered: 09/12/2011)
268 REPLY to Response to Motion (Re: 260 MOTION to Enforce Consent Decree and Incorporated Memorandum of Law (Emergency Motion), 261 MOTION to Modify Consent Decree (SUBMITTED AS DOC # 260 ) ) by USA ; (Coon, Laura) (Entered: 09/13/2011)
269 MOTION to Withdraw Attorney(s) Kenyan McDuffie by USA (Myrthil, Marlysha) (Entered: 09/16/2011)
270 MINUTE ORDER by Judge Gregory K Frizzell ; terminating attorney Kenyan Renard McDuffie ; granting 269 Motion to Withdraw Attorney(s) (hbo, Dpty Clk) (Entered: 09/19/2011)
271 OPINION AND ORDER by Judge Gregory K Frizzell ; adding party Mary Fallin, T Hastings Siegfried and Cathy Olberding terminating party Lonelia L Simmons,

USDC ND/OK Case: 4:06-cv-673 As of: 07/27/2012 01:10 PM CDT Page 25 of 25

10/05/2011 10/07/2011 11/18/2011 11/18/2011

Brad Henry and Jimmy Martin ; denying 260 Motion to Enforce; denying 261 Motion for Miscellaneous Relief (hbo, Dpty Clk) (Entered: 09/21/2011)
MAIL to Wan J Kim, US Department of Justice (Civil Rts Div), 950 PENNSYLVANIA AVE NW, WASHINGTON, DC 20530 Returned − marked return to sender − attempted not known − address changed to address unknown. (Re: 263 Minute Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s) ) (s−srt, Dpty Clk) (Entered: 10/05/2011)
272 MOTION to Dismiss and Brief in Support by Robert E Christian, Mary Fallin, Juvenile Affairs, Office of, Oklahoma Board of Juvenile Affairs, The, Oklahoma, State of, Cathy Olberding, T Hastings Siegfried (Jones, Kindanne) (Entered: 10/07/2011)
273 ORDER by Judge Gregory K Frizzell Dismissing with Prejudice ; dismissing/terminating case (terminates case) ; granting 272 Motion to Dismiss (Re: 258 Opinion and Order,,, 271 Opinion and Order, Adding/Terminating Party(ies), Ruling on Motion to Enforce, Ruling on Motion for Miscellaneous Relief,, Adding/Terminating Party(ies),, ) (Documents Terminated: 272 MOTION to Dismiss and Brief in Support ) (cds, Dpty Clk) (Entered: 11/18/2011)
274 JUDGMENT by Judge Gregory K Frizzell, entering judgment in favor of Plaintiff against Defendants State of Oklahoma and Office of Juvenile Affairs (terminates case) (Re: 258 Opinion and Order,,, ) (cds, Dpty Clk) (Entered: 11/18/2011)