Case 1:09-cv-00267-LG-RHW Document 15 Filed 06/11/09 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

D.W., by and through his next friend,
Devonsha Fairley; K.V., by and through her next friend Sina Matheny; AR., by and through her next friend Laura Reed; J,P" by and through his next friend Theresa Pope; A.B., by and through her next friend Bernadette Brassett; W.R. by and through his next friend, Calista Blackmon; on behalf of
themselves and all persons similarly situated;
MISSISSIPPI PROTECTION AND ADVOCACY SYSTEM, INC.,
Plaintiffs,
HARRISON COUNTY, MISSISSIPPI,
Defendant.

) ) ) ) ) ) ) ) ) ) ) ) Case No.1 :09 cv 267 LG-RHN
) ) ) )

AGREED ORDER On April 20, 2009, Plaintiff Mississippi Protection and Advocacy (MPAS) filed this litigation against Harrison County seeking to enforce what it contends are its access rights to the Harrison County Juvenile Detention Center pursuant to the Protection and Advocacy for Individuals with Mental lIIness Act of 1986 ("PAlMI Act"), 42 U.S.C. §§I0801 et. seq.; the Developmental Disability Assistance and Bill of Rights Act of 2000 ("DO Act"), 42 U.S.C.
§§lSOOl, et. §~; Protection and Advocacy of Individual Rights Program ("PAIR Act"), 29
U.S.C. §§794e, et. ~ After negotiation among the parties, the Defendant and the plaintiffs have agreed that the
Court may order a tentative plan of access until the parties can further investigate this case, and attempt to negotiate a pemanent resolution or obtain a ruling from the Court on any disputed

Case 1:09-cv-00267-LG-RHW Document 15 Filed 06/11/09 Page 2 of 4
issues, including any jurisdictional issues and any other defenses, which are preserved by the Defendant.
Accordingly. with the agreement of the parties and pending further order of the Court, it is hereby ordered that Harrison County shall:
1. Allow MPAS andlor its contractor (the Mississippi Youth Justice Project) to conduct confidential visits with any resident who requests a confidential visit, to detennine whether that resident is eligible for MPAS services. MPAS will provide residents with instructions about how to request a confidential visit by announcing its presence in the facility during its monitoring visits.
2. Allow MPAS and/or its contractor to conduct confidential visits with any eligible resident who requests to speak with MPAS. MPAS will provide residents with instructions
about how to request a confidential visit by announcing its presence in the facility during its
monitoring visits. 3. Allow MPAS and/or its contractor to conduct confidential visits with any resident
or who alleges that he or she may have knowledge of alleged abuse or neglect of any resident eligible [or MPAS services.
4. Allow MPAS to establish a daily call in time between the hours of 4:00 p.m. and 9:00 p.m. daily. During this time residents shall have the opportunity to conununicate confidentially with MPAS. The County shall insure that residents are infonned of the call in time, and provide them with confidential access to the telephone. Allow any resident to contact MPAS andlor its contractor through confidential letters, and allow MPAS to prepare and post notices throughout the juvenile detention center, in the visitation room, and in the resident's living quarters, that infonn residents of their rights to contact MPAS.

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5, Allow access to all relevant records (including videos, incident reports, grievances, staff logs, personnel records excluding staff protected health information under H1PAA, population logs, recordings) upon the written request of MPAS when the MPAS believes there is probable cause to investigate a potential incident of abuse or neglect of eligible residents. MPAS agrees to obtain a valid release from the facility resident and hislher guardian before requesting that individual resident's medical, mental health, educational, or youth court records. The release MPAS obtains will include a provision that releases and holds hannless the County and the County's contractor for the release of the resident's records. However, releases shall not be required when MPAS requests facility records such as those enumerated in the first sentence of this paragraph, despite the fact that they may contain otherwise confidential information related to individual facility residents
6. Allow any resident to meet confidentially with any attorney or a member of the attorney's staff, who has a retainer agreement from the resident, or the resident's parent or guardian, authorizing the attorney to represent the resident regarding any legal matter, including, but not limited, to youth court matters or condition of confinement.
7. Anow MPAS and/or its contractor reasonable access to view and photograph all areas of the detention center that are used by residents or that might be accessible to them, however no photographs of any residents will be allowed unless MPAS obtains a valid release from the resident or the resident's guardian.

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8. MPAS and its contractors will provide the Defendant and its contractor two (2)
hours notice for confidential visits and tours. Record reviews will only occur during the
facility'S regular business hours.
SO ORDERED, this II~ay Of-fN~~=---~--~' 2009.

~GREE~.
Sheila A!f#.
Vanessa Carroll Counsel for Plaintiffs

Kay Hardage

a I

Counsel for Mississippi Protection and Advocacy

Q-Jd,~

Jos h Meadows Counsel for Defendant

JUDGE

 
 Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

____________________________________

)

D.W., by and through his next friend;

)

Devonsha Fairley, K.V. by and through her )

next friend Sina Matheny; A.R., by

)

and through her next friend Laura Reed; )

J.P., by and through his next friend Theresa )

Pope; A.B., by and through her

)

next friend Bernadette Brossett; W.R. by )

and through his next friend, Calister

)

Blackmon; on behalf of themselves and all )

persons similarly situated; MISSISSIPPI )

PROTECTION AND ADVOCACY

)

SYSTEM, INC.,

)

)

Plaintiffs,

)

)

Case No. 1:09 cv 267 LG-RHN

v.

)

)

AMENDED COMPLAINT

)

HARRISON COUNTY, MISSISSIPPI, )

)

Defendant.

)

____________________________________)

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1. This is a civil action pursuant to 42 U.S.C. § 1983 to vindicate the rights of children

imprisoned in the Harrison County Juvenile Detention Center (“Juvenile Detention Center”)

under the Eighth and Fourteenth Amendments to the United States Constitution. The Plaintiffs

represent a class of children who have suffered horrific physical and mental abuse and live in

dangerously unsafe and unsanitary conditions at the Juvenile Detention Center. The abusive

conditions at the Juvenile Detention Center include punitive shackling, staff-on-youth assaults,

22-24 hour a day lock-down in filthy jail cells, unsanitary conditions resulting in widespread

contraction of scabies and staph infections, dangerous overcrowding that forces many youth to

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sleep on the concrete floor, and inadequate mental health care. Harrison County has contracted with the Mississippi Security Police to operate the Juvenile Detention Center. Mississippi Security Police is a for-profit, private corporation with headquarters in Pascagoula, Mississippi. In exchange for operating this facility, Mississippi Security Police receives over $1.6 million per year in County funds. 2. On behalf of themselves and all similarly situated children, the named Plaintiffs seek declaratory, preliminary and permanent injunctive relief ordering the Defendant to cease all unconstitutional policies and practices at the Juvenile Detention Center and to provide class members with constitutionally required care and living conditions. The children are joined in this action by the Mississippi Protection & Advocacy System, Inc. (“MPAS”), a non-profit agency with a federal mandate to protect the rights of children with disabilities who are confined in the Juvenile Detention Center. MPAS asserts its right to meet with children who are confined inside the Juvenile Detention Center and to conduct regular monitoring of the facility. Plaintiff MPAS seeks declaratory, preliminary and permanent injunctive relief preventing the Defendant from denying MPAS, as authorized by its federal enabling statutes, full, complete, timely and unaccompanied access to the children detained at the Juvenile Detention Center, Juvenile Detention Center facilities, facility staff, as well as full, complete, timely access to records.
PARTIES 3. Plaintiff D.W. is a seventeen year-old male currently imprisoned in the Juvenile Detention Center. On behalf of himself and all similarly situated children, he brings this action by and through his next friend and mother, Devonsha Fairley. He is confined at the Juvenile Detention Center while he waits for his disposition before the Harrison County Youth Court. For almost two months, D.W. has been held at the Juvenile Detention Center, where he has endured a
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brutal physical assault from adult staff members, spent 23 hours a day locked in a filthy vermininfested jail cell, and been forced to sleep on the floor of an overcrowded cell with only a thin mat that smells of urine. Unsurprisingly, during D.W.’s imprisonment, his mental health has deteriorated rapidly. He tried to commit suicide by hanging himself in his cell, yet he has received no mental health treatment or counseling. These conditions are neither isolated incidents nor restricted to D.W. 4. Plaintiff K.V. is a sixteen-year-old girl who is currently imprisoned in the Harrison County Juvenile Detention Center. On behalf of herself and all similarly situated children, she brings this action by and through her next friend and mother, Sina Matheny. She is confined at the Juvenile Detention Center while she waits for her delinquency proceedings before the Harrison County Youth Court. For the past month and a half, K.V. has been confined to her cell for 23 hours a day, and denied all access to physical exercise, educational services or rehabilitative services. 5. Plaintiff A.R. is a seventeen-year old girl who is currently imprisoned in the Harrison County Juvenile Detention Center. On behalf of herself and all similarly situated children, she brings this action by and through her next friend, grandmother, and guardian Laura Reed. She is confined at the Juvenile Detention Center while she waits for her delinquency proceedings before the Harrison County Youth Court. A.R.’s serious mental illness was recently exacerbated by her mother’s unexpected death in December 2009. During the two weeks she has been confined at the Juvenile Detention Center, she has not received adequate mental health care. She is confined to her cell for 23 hours a day, and is denied all access to physical exercise, educational services or rehabilitative services.
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6. Plaintiff J.P. is a sixteen-year old male who is currently imprisoned in the Harrison County Juvenile Detention Center. On behalf of himself and all similarly situated children, he brings this action by and through his next friend, and mother, Theresa Pope. J.P. lives with a serious mental illness, and his symptoms have worsened since his detention. He is confined at the Juvenile Detention Center while he waits for his delinquency proceedings before the Harrison County Youth Court. He is confined to his cell for 23 hours a day, and is denied all access to physical exercise, educational services or rehabilitative services. 7. Plaintiff A.B. is a fifteen-year-old girl who is currently imprisoned in the Harrison County Juvenile Detention Center. On behalf of herself and all similarly situated children, she brings this action by and through her next friend, and mother, Bernadette Brossett. A.B. lives with Bipolar Disorder, Attention Deficit Hyperactivity Disorder, and Depression. She is confined at the Juvenile Detention Center while she waits for her delinquency proceedings before the Harrison County Youth Court. She is confined to her cell for 23 hours a day, and is denied all access to physical exercise, educational services or rehabilitative services. 8. Plaintiff W.R. is a seventeen-year-old male, who is currently imprisoned in the Harrison County Juvenile Detention Center. On behalf of himself, and all similarly situated children, he brings this action by and through his next friend and mother, Calister Blackmon. He has been confined at the Juvenile Detention Center for the past two months while he waits for his delinquency proceedings before the Harrison County Youth Court. Upon information and belief, he is confined to his cell for 23 hours a day, and is denied all access to physical exercise, educational services or rehabilitative services. Plaintiff W.R.’s rights were further violated when Juvenile Detention Staff denied his request to meet with the attorney whom his mother and
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guardian had retained to represent him in connection with his conditions of confinement at the Juvenile Detention Center. 9. The Plaintiffs’ plight echoes the stories of over thirty youth interviewed by attorneys. All of these children uniformly describe the Juvenile Detention Center as a squalid, over-crowded facility that is infested with insects, where jail officials frequently resort to violence and the inappropriate use of restraints. These conditions violate the constitutional rights of the named Plaintiffs and all similarly situated children, all of whom are entitled to reasonably safe and sanitary conditions of confinement, freedom from unreasonable bodily restraint, and protection from harm. 10. Plaintiff Mississippi Protection & Advocacy System, Inc. (“MPAS”) is a nonprofit organization with a federal mandate to protect and advocate for the rights of persons with disabilities in Mississippi. Federal law extends this mandate to children with disabilities who are confined to juvenile detention centers. Through a contracted agent, MPAS devotes considerable resources to investigating conditions of confinement and advocating on behalf of youth housed in juvenile facilities across the state of Mississippi. MPAS and its contracted agent have made numerous efforts to gain access to the children with disabilities who are confined at the Juvenile Detention Center. Despite the Plaintiff’s federal right to access the Juvenile Detention Center and its residents and Plaintiff’s good faith efforts to reach an agreement on access with the individuals responsible for operating the Juvenile Detention Center, the Defendant refuses to grant MPAS access. The Defendant’s actions prevent MPAS from fulfilling its federal mandate to protect and advocate for the civil rights of youth with disabilities confined to the Juvenile Detention Center. This violates Plaintiff’s right to function as an effective protection and advocacy system for the State of Mississippi and also violates the rights of youth with disabilities
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at the Juvenile Detention Center who are entitled to receive protection and advocacy services. MPAS files this complaint in its own name to redress injuries to itself and on behalf of its clients. 11. Defendant Harrison County is the governmental entity with the responsibility to “establish and maintain detention facilities, shelter facilities . . . or any other facility necessary to carry on the work of the youth court.” Miss. Code Ann. § 43-21-109. Under the terms of a contract executed by Harrison County, Mississippi Security Police, a private, for-profit company is responsible for the daily operations of the Juvenile Detention Center. But Harrison County is the entity with ultimate responsibility to protect and secure the rights of children detained in the Juvenile Detention Center. 12. The Defendant ignores well-established law and acts with deliberate indifference by subjecting the named Plaintiffs and all similarly situated children to shockingly inhumane conditions of confinement, physical abuse, and inadequate mental health care.
JURISDICTION AND VENUE 13. The named Plaintiffs’ cause of action arises under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. 14. Plaintiff MPAS’s cause of action arises under the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. §§10801 et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. §§15001, et. seq.; the Protection and Advocacy of Individual Rights Program (“PAIR Act”), 29 U.S.C., §§794e, et. seq.; and 42 U.S.C. §1983. 15. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331 and venue is proper under 28 U.S.C. 1391(b).
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CLASS ACTION ALLEGATIONS 16. The named Plaintiffs bring this suit on their own behalf and on behalf of all children who are or who will in the future be incarcerated at the Harrison County Juvenile Detention Center. 17. The class is so numerous that joinder of all members is impractical. The Juvenile Detention Center has the capacity to house 48 youth, and the population often exceeds the maximum capacity. Children remain in the Juvenile Detention Center for varying lengths of time, and the population changes on a daily basis. The class also includes future members whose names are not known. Fed. R. Civ. P. 23(a)(1). 18. There are questions of law and fact common to all class members, including but not limited to the Defendant’s failure to protect class members from harm, the Defendant’s failure to provide class members with constitutionally safe and humane conditions of confinement and the Defendant’s failure to ensure class members’ meaningful, effective and adequate access to the courts . Fed. R. Civ. P. 23(a)(3). 19. Because the policies, practices, and customs challenged in this Complaint apply with equal force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general. Fed. R. Civ. P. 23(a)(3). 20. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action litigation in federal court. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4).
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21. The Defendant has acted and refused to act on grounds generally applicable to the class in that Defendant’s policies and practices of violating the Plaintiffs’ constitutional rights has affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
STATEMENT OF FACTS 22. The Harrison County Juvenile Detention Center houses children awaiting adjudication and disposition before the Harrison County Youth Court. Although the majority of children housed at this facility are awaiting their court appearances, state law allows juvenile detention centers to house children for 90 days as a post-adjudication disposition. Miss. Code Ann. § 4321-605(1)(k). 23. The contract between Harrison County and the Mississippi Security Police requires that Mississippi Security Police “…house and feed up to 48 juveniles in a secure detention facility pursuant to the laws of the state of Mississippi and of the United States and regulations for juvenile detention facilities as set forth by the United States Department of Justice.” (See Exhibit 2). Despite the clear terms of this contract, the Defendant has allowed Mississippi Security Police to violate federal and state law by subjecting the children housed in the Juvenile Detention Center to unconstitutional violations.
Protection from Harm Violations: Physical and Psychological Abuse by Staff 24. Defendant has a custom and/or practice of failing to protect children at the Juvenile Detention Center from unconstitutionally malicious and sadistic physical abuse and assaults. 25. On or about March 23, 2009, Plaintiff D.W. was assaulted by two guards while he was in his cell. Guard 1 placed D.W. in a chokehold, slammed him to the ground, and placed him in handcuffs. Once D.W. was lying on the ground restrained with handcuffs, Guard 2 joined in the
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assault and one of the Guards pressed his knee into D.W.’s back while the other Guard pushed on D.W.’s neck. These brutal actions crushed D.W.’s face into the concrete floor of his cell, making it difficult for him to breathe and causing him to gasp for air. 26. D.W. sought medical attention for the injuries he suffered as a result of this incident. When his mother visited him, she noticed bruising around his wrists where the guards had tightened the handcuffs in an attempt to deliberately cause D.W. unnecessary pain. 27. Upon information and belief, and based on interviews with over thirty youths who were recently held in the Juvenile Detention Center, such physical abuse is also inflicted with regularity on other putative class members.
Protection from Harm Violations: Inadequate Mental Health Treatment 28. Defendant has a custom and/or practice of being deliberately indifferent to the serious mental health needs of youth confined at the Juvenile Detention Center. 29. At the end of his first week in detention, D.W.’s mental health declined so dramatically that he attempted to kill himself by tying a sheet around his neck and hanging himself on a light fixture in his cell. A staff member intervened before D.W. could cause himself serious harm. However, D.W. has been denied all access to adequate, ongoing mental health treatment. 30. Instead of providing D.W. with adequate mental health services, staff at the Juvenile Detention Center taunted and harassed D.W. by telling him that his mother no longer cared for him and would not come to visit him any more. Staff threatened D.W. that without his mother around, they could do anything to him and get away with it. 31. Plaintiffs A.R., A.B. and J.P. live with serious mental illness. Each child has been denied adequate mental health treatment during his or her confinement in the Juvenile Detention Center. These children are denied access to mental health counseling, and the staff fail to distribute and
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monitor the children’s medications in compliance with professionally accepted standards of care. Plaintiff A.B. waited nearly two weeks in detention before receiving her prescribed psychotropic medications.
Protection from Harm Violations: Dangerous and Unsanitary Conditions 32. The Defendant has a custom and/or practice of failing to provide sanitary facilities for the children in its care. Toilets and walls are covered with mold, rust, and excrement. Insects have infested the facility, and the Plaintiffs frequently wake up covered by bug bites. The smell of human excrement permeates the children’s living quarters. The Plaintiffs frequently have to sleep on thin mats that smell of urine and mold. 33. The Defendant has a custom and/or practice of failing to provide for the appropriate hygiene for the children in its custody. The staff do not provide children with adequate personal hygiene items. The staff often deny female detainees access to feminine hygiene products. When feminine hygiene products are provided, the staff frequently deny female detainees a means to properly dispose of used feminine hygiene products—forcing girls to keep piles of used maxi-pads in their cells for days at a time. The staff often deny girls the ability to shower regularly when they are menstruating. The staff frequently deny all children the ability to shower and clean themselves on a regular basis.
Protection from Harm Violations: Overcrowded Living Conditions 34. The Defendant has a custom and/or practice of allowing the Juvenile Detention Center to become dangerously and unconstitutionally overcrowded. Upon information and belief, the facility has a capacity to house 48 children, and at times holds as many as 60 youth. As a result, some children are forced to sleep on the floor, pressed up against other youth, with nothing but a
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thin, filthy mat separating the child from the concrete. Plaintiffs have frequently been forced to sleep on the floor on a thin mat that smells like urine.
Protection from Harm Violations: Excessive Room Confinement 35. The Defendant has a custom and/or practice of confining children to their cells for as long as 22-24 hours a day and of failing to provide children with access to regular physical exercise, recreation or any other rehabilitative programming. The Plaintiffs spend most of their days locked in their cells for 22-24 hours a day.
Protection from Harm Violations: Inadequate Training and Supervision of Staff 36. The Defendant has a custom and/or practice of failing to ensure the proper training and supervision of Juvenile Detention Center staff. Consequently, the safety and security of youth at the Juvenile Detention Center is constantly threatened by the extreme incompetence of staff and the lack of adequate supervision and oversight. Staff frequently resort to physical violence and respond to youths’ requests for help or assistance with taunts, profanity, and indifference.
Due Process Violations: Arbitrary and Punitive Disciplinary Practices 37. The Defendant has a custom and/or practice of subjecting youth to arbitrary and excessive discipline that is designed to punish and cause discomfort rather than maintain and restore discipline. Rule violations are punished by placement in “lockdown” for periods ranging from three days to an entire week. While on “lockdown,” youth spend 23 to 24 hours per day in their cells. Youth are not permitted to attend school, exercise, bathe regularly, or have any reading or writing materials. 38. The use of lockdown is purely punitive and arbitrary. Youth do not receive any form of due process hearing prior to their placement on lockdown, and the duration of lockdown is not
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tailored to respond to the alleged rule violation nor limited to the length of time necessary to restore or maintain order. 39. The Defendant does not make any effort to ensure that prolonged periods of room confinement do not induce any dangerous psychological consequences on youth. 40. The Defendant placed D.W. on lockdown for seven consecutive days for allegedly refusing a staff directive. D.W. did not receive any form of due process prior to being placed on lockdown, and he was only permitted to shower two times during this period. With the exception of the two times D.W. took a shower, D.W. spent 24 hours in his cell each day with absolutely nothing to do.
Due Process Violations: Interference with Children’s Ability to Access the Courts 41. The Defendant has a custom and/or practice of failing to provide the Plaintiffs’ with meaningful, effective and adequate access to the courts. 42. The Defendant has a custom and/or practice of refusing to allow Plaintiffs to meet with their attorneys unless those attorneys are counsel of record in the Harrison County Youth Court. However, the children in the detention center have a right to meet with attorneys even if those attorneys are not counsel of record in the youth court. 42. The Defendant fails to educate the children about their rights to contact the counsel of their choice for assistance with matters related to their conditions of confinement. The Defendant further fails to provide children with any assistance in contacting counsel for assistance with matters related to their conditions of confinement. 43. On April 26, 2009, Plaintiff W.R. retained Attorneys Vanessa Carroll and Sheila Bedi to represent him in connection with his conditions of confinement. Shortly after executing a valid retainer on behalf of W.R. for this representation, W.R.’s guardian called the Juvenile Detention
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Center and informed MSP staff that Attorney Vanessa Carroll was W.R.’s counsel, and that she would be conducting a confidential legal visit with W.R. later that evening. MSP told W.R.’s guardian that Attorney Carroll would be barred from conducting a legal visit with W.H. without the permission of the Harrison County Youth Court. 44. Later that same day, Attorney Carroll went to the Juvenile Detention Center in an attempt to visit with her client, W.R. MSP staff reiterated that children are barred from meeting with their attorneys, in the absence of an order from the Harrison County Youth Court. MSP staff refused to allow Attorney Carroll to meet with her client.
Plaintiff MPAS’s Access Authority 45. Congress established protection and advocacy (“P&A”) systems in the Developmental Disabilities Assistance and Bill of Rights Act of 1975 (“PADD Act”) to protect and advocate for the rights of persons with developmental disabilities. Congress provided P&As with the authority to investigate incidents of abuse and neglect against individuals with disabilities and pursue legal, administrative, and other remedies on their behalf. 42 U.S.C. § 15043(a). Congress has since expanded the scope of the P&A system to provide protection and advocacy services to all persons with disabilities. The Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI Act”) provides for the protection of rights of individuals with mental illness, 42 U.S.C. §§ 10801 et seq.; and the Protection and Advocacy of Individual Rights Program of 1973 (“PAIR Program”) was created to protect the rights of all other individuals with disabilities who are not covered under the PADD and PAIMI Acts. 29 U.S.C. § 794e. Pursuant to federal law MPAS has rights to:
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a. reasonable unaccompanied access, for monitoring and investigatory purposes, to public and private areas of the Juvenile Detention Center facilities. 42 C.F.R. § 51.42(b); 42 C.F.R. § 51.42 (c); 45 C.F.R. § 1386.22(f); 45 C.F.R. § 1386.22(g).
b. interview facility service recipients, staff and other persons as part of an abuse and neglect investigation when MPAS determines it has probable cause to believe an incident has occurred. 42 C.F.R. § 51.42(b).
c. provide information and training on individual rights and services provided by the P&A system. 42 C.F.R. § 51.42 (c) and 45 C.F.R. § 1386.22(g).
d. communicate privately with facility residents. 42 C.F.R. § 51.42 (d) and 45 C.F.R. § 1386.22(h).
e. access to records of facility residents. 42 C.F.R. § 51.41 and 45 C.F.R. § 1386.22. f. access to facility incident reports and investigatory findings. 42 C.F.R. § 51.41(c)(2). 46. To receive federal funding under the PADD, PAIMI, and PAIR Acts, states must have an effective P&A system. MPAS is designated as Mississippi’s P&A System. See Mississippi Protection & Advocacy v. Cotten 1989 U.S. Dist. LEXIS 17075 at *3 (S.D. Miss. 1989). Federal law permits MPAS to designate agents with whom it contracts to assist in carrying out its responsibilities under federal law. 42 U.S.C. § 10801(b); § 10805(a)(1); 42 C.F.R. § 51.42. 47. In order to carry out the Congressional mandate to protect and advocate for the rights of individuals with disabilities, the P&A Acts require that the P&A and its authorized agents have physical access to individuals with disabilities, access to individuals’ records, and physical access to the facilities housing these individuals. 42 U.S.C.§15043(a)(2); 42 U.S.C. § 10805(a)(3); 45 C.F.R. § 1386.22(g)-(h); 42 C.F.R. § 51.42(a)-(c). This access includes the right
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“to meet and communicate privately” with residents “both formally and informally, by telephone, mail and in person.” 45 C.F.R. § 1386.22(2). 48. Under the PAIMI Act, “any public or private residential setting that provides overnight care accompanied by treatment services” is a facility which a P&A is authorized to access and monitor. “Facilities include, but are not limited to the following: General and psychiatric hospitals, nursing homes, board and care homes, community housing, juvenile detention facilities, homeless shelters, and jails and prisons, including all general areas as well as special mental health or forensic units.” 42 C.F.R. § 51.2 (emphasis added). See also 45 C.F.R. § 1386.19. 49. The Harrison County Juvenile Detention Center is a covered “facility” as defined under the PAIMI Act and the DD Act. 42 U.S.C. 10802(2); 42 C.F.R. 51.2; 45 C.F.R. § 1386.19. 50. Under the PADD, PAIMI, and PAIR Acts, Congress designated two distinct bases for access to facilities and residents: (1) access for the purpose of investigating allegations of abuse and/or neglect, 42 U.S.C. § 15043(a)(2)(B), 42 U.S.C. § 10805(a)(1)(A), 45 C.F.R. § 1386.22(f), 42 C.F.R. § 52.42(b); and (2) access for the purpose of monitoring the facility and the treatment of its residents, 42 U.S.C. § 15043(a)(2)(H), 42 U.S.C. § 10805(a)(3), 45 C.F.R. § 1386.22(g), 42 C.F.R. § 51.42(c). 51. To carry out its mandate to investigate incidents of abuse and neglect, MPAS is entitled to “reasonable unaccompanied access . . . to all areas of the facility which are used by residents or are accessible to residents . . . [and] shall have reasonable unaccompanied access to residents at all times necessary to conduct a full investigation of an incident of abuse or neglect.” 42 C.F.R. § 51.42(b).
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52. To carry out its monitoring duties, MPAS is entitled to reasonable unaccompanied access to all residents of a facility at reasonable times to provide P&A services and contact information, rights information, monitor compliance with respect to the rights and safety of service recipients, and to view and photograph all areas of the facility which are used by residents or are accessible to residents. 42 C.F.R. § 51.42(c); 45 C.F.R. § 1386.22(g). 53. The PAIMI Act states that MPAS has the right of access to all residents of a facility “despite the existence of any State or local laws or regulations which restrict informal access to minors and adults with legal guardians or conservators.” 42 C.F.R. § 51.42(e). 54. The PAIMI and PADD Acts also authorize MPAS to prompt access to all records of any individual who is a client of the system if the individual, or his legal guardian, conservator, or other legal representative, has authorized MPAS to have such access. 42 C.F.R.§ 51.41(b)(1); 45 C.F.R. §1386.22(a)(1). 55. The PAIMI and PADD Acts provide MPAS with access to records of individuals who are in the custody of the state and with respect to whom a complaint has been received by MPAS or with respect to whom there is probable cause to believe that such individual has been subjected to abuse or neglect. 42 C.F.R. § 51.41(b)(2)(ii)-(iii); 45 C.F.R. § 1386.22(a)(2)(ii)(iii). 56. The PAIMI regulations also require the Defendant to provide MPAS:
Reports prepared by an agency charged with investigating abuse, neglect, or injury occurring at a facility rendering care or treatment, or by or for the facility itself, that describe any or all of the following: (i) Abuse, neglect, or injury occurring at the facility; (ii) The steps taken to investigate the incidents; (iii) Reports and records, including personnel records, prepared or maintained by the facility, in connection with such reports of incidents; or (iv) Supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect or injury such as records which describe persons
16

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 17 of 22
who were interviewed, physical and documentary evidence that was reviewed, and the related investigative findings. 42 C.F.R. § 51.41(c)(2). 57. The access provisions of the PADD, PAIMI, and PAIR Acts are interrelated and it is clear that Congress intended for the provisions to be applied in a consistent manner, and the PAIR Act expressly incorporates by reference, at 42 U.S.C. § 794e (f), the authority regarding access to facilities and records set forth in the PADD Act.
Denial of Access 58. From September 11, 2008 until March 26, 2009, MPAS and its contractor sent eight letters to Harrison County officials and/or contractors informing them of MPAS’s federal access rights and requesting the right to exercise these rights at the Juvenile Detention Center. (See Exhibit 1). 59. The Defendant responded to each of Plaintiff’s requests with an effective denial. The Defendant therefore unlawfully denied MPAS the right to exercise its federal authority and denied children with disabilities detained at the Juvenile Detention Center the right to access MPAS services.
Necessity for Injunctive Relief 60. The Defendant has acted and continues to act in violation of the law as explained above. The named Plaintiffs and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendant, the named Plaintiffs, and the class they seek to represent, have suffered and continue to suffer serious, imminent, and irreparable physical, mental and emotional injuries. 61. Plaintiff MPAS does not have an adequate remedy at law and will be irreparably harmed if the Defendant is permitted to continue prohibiting MPAS and its agents from:
17

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 18 of 22
a) having reasonable unaccompanied access, for monitoring and investigatory purposes, to public and private areas of the Juvenile Detention Center;
b) interviewing youth, staff and other persons as part of its duty to monitor the facility and investigate incidents of abuse and neglect;
c) providing information and training on individual rights and services provided by the P&A system;
d) communicating privately with facility residents; e) accessing facility incident reports and investigatory findings; f) accessing residents’ records.
EXHAUSTION 62. The named Plaintiffs have exhausted all available administrative remedies.
CAUSES OF ACTION 63. Plaintiffs incorporate by reference all of the above factual allegations to support the following claims:
Count I 64. The conditions of confinement at the Juvenile Detention Center and the Defendant’s deliberate indifference to those conditions, considered both individually and in their totality, constitute cruel and unusual punishment and a denial of due process in violation of Plaintiffs’ rights under the Eighth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
Count II 65. Defendant’s refusal to protect children from harm, otherwise keep them physically safe and secure and free from unconstitutional practices like excessive room confinement, excessive use of force, arbitrary and punitive disciplinary practices and excessive use of restraints violates
18

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 19 of 22

Plaintiffs’ constitutional rights under the Eighth Amendment and the Fourteenth Amendment to

the United States Constitution, as enforced through 42 U.S.C. § 1983.

Count III

66. Defendant’s deliberate indifference to the children’s serious mental health needs violates

Plaintiffs’ constitutional rights under the Eighth and Fourteenth Amendments to the United

States Constitution, as enforced through 42 U.S.C. § 1983.

Count IV

67.

Defendants refusal to allow Plaintiffs to meet with their counsel and otherwise

facilitate meaningful, effective, and adequate access to the courts, violates the Plaintiffs’ First

and Fourteenth Amendment rights to free speech and due process of law, as enforced through 42

U.S.C. § 1983.

Count V

68. The policies, procedures, regulations, practices and customs of the Defendant violate and

continue to violate the rights of the Plaintiff MPAS to full, complete, timely and meaningful

access to the Juvenile Detention Center, staff, residents and their records, in violation of the

PAIMI, PADD and PAIR Acts, Protection and Advocacy for Individuals with Mental Illness Act

of 1986 (“PAIMI Act”), 42 U.S.C. §§10801 et seq.; the Developmental Disabilities Assistance

and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. §§15001, et. seq.; Protection and

Advocacy of Individual Rights Program (“PAIR Act”), 29 U.S.C., §§794e, et. seq.; and 42

U.S.C. §1983.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray that this Honorable Court grant the following relief:

a.

Declare that the acts and omissions of the Defendant violate the

Constitution and federal law;

19

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 20 of 22

b.

Enter a preliminary and permanent injunction requiring the Defendant, its

agents, employees and all persons acting in concert with them to cease their

unconstitutional and unlawful practices;

c.

Grant injunctive relief enjoining the Defendant and its agents and

employees from denying MPAS and its contracted agent immediate, full,

complete, meaningful and unaccompanied access to the staff, residents,

records and facilities at the Harrison County Juvenile Detention Center to

conduct monitoring activities and abuse and neglect investigations without

advance notice and at any reasonable time, including business and visiting

hours, in violation of the PAIMI, PADD and PAIR Acts;

d.

Issue a declaratory judgment that the Defendant’s polices, regulations, and

practices of denying MPAS and its contracted agent immediate, full,

complete, meaningful, and unaccompanied access to the staff, residents,

records and facilities at the Harrison County Juvenile Detention Center to

monitor and to conduct abuse and neglect investigations, without advance

notice and at any reasonable time, including during business and visiting

hours, violate the PAIMI, PADD and PAIR Acts;

e.

Award to the Plaintiffs reasonable costs and attorney’s fees; and

f.

Grant the Plaintiffs such other relief as the Court deems just.

Respectfully submitted,
s/ Vanessa Carroll, Miss. Bar No. 102736 Sheila A. Bedi, Miss. Bar. No. 101652 Mississippi Youth Justice Project A Project of the Southern Poverty Law Center 921 North President Street Suite B Jackson, Mississippi 39202 601-948-8882 ( phone) 601-948-8885 (fax)
Robert B. McDuff, Miss. Bar. No. 2532 767 North Congress Street Jackson, Mississippi 39202 601-969-0802 (phone) 601-969-0804 (fax)
20

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 21 of 22 Counsel for Plaintiffs Kay Hardage, Miss. Bar No. 3061 Mississippi Protection and Advocacy Systems, Inc. 5305 Executive Place Jackson, Mississippi 39206 601-981-8207 (voice) 601-981-8313 (fax) Of Counsel for Mississippi Protection and Advocacy Systems, Inc.
21

Case 1:09-cv-00267-LG-RHW Document 5 Filed 04/27/09 Page 22 of 22
Certificate of Service I hereby certify that on April 27, 2009, a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by email to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

Dated: April 27, 2009

/s/ Sheila A. Bedi, Miss. Bar. No. 101652 Mississippi Youth Justice Project A Project of the Southern Poverty Law Center 921 N. President St., Suite B Jackson, Mississippi 39202 601-948-8882 (phone) 601-948-8885 (fax)

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 Case 1:09-cv-00267-LG-RHW Document 21 Filed 10/13/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

____________________________________

)

D.W., by and through his next friend

)

Devonsha Fairley; K.V. by and through her )

next friend Sina Matheny; A.R., by

)

and through her next friend Laura Reed; )

J.P., by and through his next friend Theresa )

Pope; A.B., by and through her

)

next friend Bernadette Brossett; W.R. by )

and through his next friend, Calista

)

Blackmon; on behalf of themselves and all )

persons similarly situated; MISSISSIPPI

)

PROTECTION AND ADVOCACY

)

SYSTEM, INC.,

)

)

Plaintiffs,

)

Case No. 1:09 cv 267 LG-RHN

)

)

V.

)

)

HARRISON COUNTY, MISSISSIPPI,

)

)

Defendant.

)

____________________________________)

ORDER GRANTING APPROVAL OF AMENDED SETTLEMENT AGREEMENT, CERTIFYING A SETTLEMENT CLASS AND ORDER OF DISMISSAL Upon consideration of the Parties’ Joint Motion requesting approval of their proposed
Settlement Agreement, certification of a settlement class, and dismissal of this matter, it is hereby
ordered that the motion is GRANTED. The Court finds that the parties have met the
requirements of Fed. R. Civ. P. 23, and that the proposed settlement is a product of serious,
informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant
preferential treatment to class representatives or segments of the class, and falls within the range

Case 1:09-cv-00267-LG-RHW Document 21 Filed 10/13/09 Page 2 of 2
of possible relief. Approval of this Agreement will spare both the Court and the parties from expensive and protracted litigation. Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). Further, the agreement does not adversely affect the rights of putative class members to bring individual legal actions against the Defendant. Each future class member will be informed of his or her right to opt of out the enforcement and monitoring of the Settlement Agreement. Approval of the proposed Settlement Agreement is therefore granted.
Class certification is granted for settlement purposes only. The Settlement Class shall be comprised of all children who are currently, or who will in the future, be confined at the Harrison County Juvenile Detention Center.
This matter is therefore DISMISSED WITHOUT PREJUDICE. SO ORDERED AND ADJUDGED, this the 13th day of October 2009.
s/ Louis Guirola, Jr. United States District Judge

 
 Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

____________________________________

)

D.W., by and through his next friend

)

Devonsha Fairley; K.V. by and through her )

next friend Sina Matheny; A.R., by

)

and through her next friend Laura Reed; )

J.P., by and through his next friend Theresa )

Pope; A.B., by and through her

)

next friend Bernadette Brossett; W.R. by )

and through his next friend, Calista

)

Blackmon; on behalf of themselves and all )

persons similarly situated; MISSISSIPPI )

PROTECTION AND ADVOCACY

)

SYSTEM, INC.,

)

)

Plaintiffs,

)

Case No. 1:09 cv 267 LG-RHN

)

)

v.

)

)

HARRISON COUNTY, MISSISSIPPI, )

)

Defendant.

)

____________________________________)

AMENDED JOINT MOTION FOR APPROVAL OF PROPOSED AMENDED SETTLEMENT AGREEMENT The Parties file this Amended Motion seeking approval of the attached Settlement Agreement which the Parties modified after a conference with the Court. Pursuant to Federal Rule of Civil Procedure 23(e), the Plaintiffs and Defendant jointly move the Court to issue an order approving the attached settlement agreement, certifying the class for settlement and monitoring purposes, and dismissing this litigation without prejudice.
1. The Settlement Agreement requires the Harrison County Juvenile Detention Center to reform its practices and procedures. The Agreement is the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly

Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 2 of 6
grant preferential treatment to class representatives or segments of the class, and falls within the range of possible relief. Approval of this agreement will spare both the Court and the parties from expensive and protracted litigation. See Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). On August 17, 2009 the parties filed a Proposed Settlement Agreement that was executed on August 10, 2009. At the Court’s request, the Parties have modified the Proposed Settlement Agreement to clarify certain provisions regarding monitoring, enforcement, and class members’ right to decline to participate in the monitoring and enforcement of this agreement. (See Exhibit 1, Amended Settlement Agreement ¶ 14.1, ¶14.5, ¶14.7). The substantive provisions of the Settlement Agreement remain identical to those contained in the Agreement executed on August 10, 2009.
2. The Parties did not reach this agreement lightly. On June 11, 2009 this Court entered an Agreed Order proposed by the Parties that allowed Plaintiffs’ counsel to access the Juvenile Detention Center. Pursuant to this order, counsel has interviewed youth at the detention center on an almost daily basis since this date. Also pursuant to this order, the Defendants have allowed Plaintiffs’ counsel to examine all written policies and procedures, and hundreds of pages of incident reports and grievances collected by detention center staff over the past two years. On a regular basis, Plaintiffs’ counsel view video tape of incidents that occur inside the detention center and review relevant records. In crafting the proposed settlement agreement, the Parties were guided by this information. The Parties were further guided by experts retained by the Plaintiffs. Paul DeMuro, a nationally renowned juvenile justice expert with experience working on juvenile facility conditions litigation in Mississippi, spent 48 hours advising Plaintiffs and the Defendant on the terms of the settlement agreement. Mr. Demuro’s time included approximately 10 hours inside the detention center examining the facility and meeting with youth, 8 hours reviewing records, 4 hours facilitating a negotiation session
2

Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 3 of 6
between the Plaintiffs’ counsel and the current county contractor who operates the juvenile detention center and 5 hours reviewing and editing the proposed settlement agreement. Additionally, Plaintiffs retained James Balsomo, Jr. an expert on environmental health, safety and sanitation. Mr. Balsomo spent approximately 10 hours examining the detention center, meeting with staff and reviewing relevant policies and procedures. (See Exhibit 2, Paul Demuro Curriculum Vitiate and Invoice and Exhibit 3, James Balsomo Curriculum Vitiate). 3. The Settlement Agreement resulted from no less than four formal negotiation sessions. Participating in the negotiations were representatives from the county, the county contractor who provides medical and mental health care at the juvenile detention center, the county contractor who operates the juvenile detention center, and Plaintiffs’ counsel, who spend approximately 20-30 hours inside the juvenile detention center on a weekly basis. After extensive fact-finding and negotiation, the Parties agree that the Proposed Amended Settlement Agreement will spare the parties and the court from extensive litigation, and best serve the interests of the putative class. 4. The parties have distributed notice to class members in the following manner:
a. Since August 20, 2009, a notice describing the substantive provisions of the Settlement Agreement has been posted in the visitation room and on the living units of the Harrison County Juvenile Detention Center. Plaintiffs’ counsel provided residents in isolation cells an individual copy of the notice and/or verbally explained the settlement to residents in isolation. (See Exhibit 4, Previously Posted Notice). At this Honorable Court’s request, Counsel have recently posted an expanded posting that includes the terms of the amended settlement agreement and a more detailed description of the substantive terms of the settlement. (See Exhibit 5, Amended Current Notice)
b. In order to accommodate varying literacy levels of the class members, Plaintiffs’ Counsel met individually with all youth who were detained in the facility on August 27, 2009 and thoroughly explained the settlement agreement to each youth. Counsel then documented any concerns, questions or objections expressed by the youth.
3

Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 4 of 6
c. In order to protect the rights of future class members, the Parties propose to provide each youth who enters the detention center and his or her guardian with a notice that summarizes the proposed Settlement Agreement and provides information regarding how the youth and/or his or her guardian may decline to participate in the monitoring and enforcement of this agreement. The Detention Center will include this notice in the resident’s orientation packets and will mail a copy to each residents’ parents and/or guardians. (See Exhibit 6, Proposed Notice to Future Class Members).
d. During the past few months, approximately 22 youth have been detained in the juvenile detention center at any one time. Plaintiffs’ counsel received 21 written responses from detained youth. (See Exhibit 7, Class Member Responses). All of the responses indicated approval of the agreement. Three responses concerned the quantity of the food provided to the detained youth—an issue that was not raised in Plaintiffs’ complaint. 5. Both the notice to the class and the means of distributing the notice are adequate to inform all the interested parties about the provisions of the settlement. See, e.g., Austin v. Hopper, 15 F.Supp.2d 1210, 1219 (M.D.Ala. 1998) (approving similar notice to class and means of distributing notice in prison conditions litigation). The Parties thus respectfully submit that the requirements of Fed. R. Civ. P. 23 have been met. 6. At the pleasure of the Court, the Parties are prepared to proceed with a fairness hearing. But the Parties respectfully suggest that a fairness hearing is not necessary here. Fed. R. Civ. P. 23 (e)(2) only requires a fairness hearing “if the proposal would bind class members.” The proposed agreement merely requires that the Harrison County Juvenile Detention Center comply with federal law—the agreement in no way affects the rights of individual youth and/or their guardians to pursue claims arising from a youth’s detention in any forum. Therefore, the settlement does not bind any class members. See also Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)(“The growing rule is that the trial court may limit its proceeding to whatever is necessary to aid it in reaching an informed, just and reasoned decision.”); Malchman v. Davis, 706 F.2d 426, 434 (2nd Cir. 1983)( “If the record is adequate, an evidentiary hearing is not
4

Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 5 of 6

required unless the objectors raise “cogent factual objections to the settlement.”); Officers for Justice v. Civil Service Comm'n of City and County of San Francisco, 688 F.2d 615, 624-25 (9th Cir. 1982). Further, for the duration of the agreement the Parties will provide notice to all future class members and ensure that they have the opportunity to decline to participate in the monitoring and enforcement of the agreement. For these reasons, the Parties respectfully request that the Court enter an order 1) Certifying the class for settlement and monitoring purposes; 2) Approving the proposed settlement; and 3) Dismissing this matter without prejudice.

Date: October 2, 2009

Respectfully submitted,
s/Sheila A. Bedi, Miss. Bar No. 101652 Sheila A. Bedi, Miss. Bar No. 101652 Vanessa Carroll, Miss. Bar No. 102736 Mississippi Youth Justice Project A Project of the Southern Poverty Law Center 921 N. President St. Suite B Jackson, Mississippi 39202 601-948-8882 (phone) 601-948-8885 (fax)
Robert B. McDuff, Miss. Bar. No. 2532 767 North Congress Street Jackson, Mississippi 39202 601-969-0802 (phone) 601-969-0804 (fax) Attorneys for Plaintiffs
s/Tim C. Holleman, Miss. Bar. No.2526 Tim C. Holleman, Miss. Bar. No.2526 Boyce Holleman & Associates 1720 23rd Avenue/Boyce Holleman Blvd Gulfport, Ms 39501 (228) 863-3142 phone (228) 863-9829 fax Attorney for Defendant

5

Case 1:09-cv-00267-LG-RHW Document 20 Filed 10/02/09 Page 6 of 6
Certificate of Service I hereby certify that on October 2, 2009, a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by email to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

Dated: October 2, 2009

/s/ Sheila A. Bedi Sheila A. Bedi

 
 Case 1:09-cv-00267-LG-RHW Document 21 Filed 10/13/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

____________________________________

)

D.W., by and through his next friend

)

Devonsha Fairley; K.V. by and through her )

next friend Sina Matheny; A.R., by

)

and through her next friend Laura Reed; )

J.P., by and through his next friend Theresa )

Pope; A.B., by and through her

)

next friend Bernadette Brossett; W.R. by )

and through his next friend, Calista

)

Blackmon; on behalf of themselves and all )

persons similarly situated; MISSISSIPPI

)

PROTECTION AND ADVOCACY

)

SYSTEM, INC.,

)

)

Plaintiffs,

)

Case No. 1:09 cv 267 LG-RHN

)

)

V.

)

)

HARRISON COUNTY, MISSISSIPPI,

)

)

Defendant.

)

____________________________________)

ORDER GRANTING APPROVAL OF AMENDED SETTLEMENT AGREEMENT, CERTIFYING A SETTLEMENT CLASS AND ORDER OF DISMISSAL Upon consideration of the Parties’ Joint Motion requesting approval of their proposed
Settlement Agreement, certification of a settlement class, and dismissal of this matter, it is hereby
ordered that the motion is GRANTED. The Court finds that the parties have met the
requirements of Fed. R. Civ. P. 23, and that the proposed settlement is a product of serious,
informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant
preferential treatment to class representatives or segments of the class, and falls within the range

Case 1:09-cv-00267-LG-RHW Document 21 Filed 10/13/09 Page 2 of 2
of possible relief. Approval of this Agreement will spare both the Court and the parties from expensive and protracted litigation. Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). Further, the agreement does not adversely affect the rights of putative class members to bring individual legal actions against the Defendant. Each future class member will be informed of his or her right to opt of out the enforcement and monitoring of the Settlement Agreement. Approval of the proposed Settlement Agreement is therefore granted.
Class certification is granted for settlement purposes only. The Settlement Class shall be comprised of all children who are currently, or who will in the future, be confined at the Harrison County Juvenile Detention Center.
This matter is therefore DISMISSED WITHOUT PREJUDICE. SO ORDERED AND ADJUDGED, this the 13th day of October 2009.
s/ Louis Guirola, Jr. United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

)

D.W., by and through his next friend;

)

Devonsha Fairley, K.V. by and through her )

next friend Sina Matheny; A.R., by

)

and through her next friend Laura Reed; )

J.P., by and through his next friend Theresa )

Pope; A.B., by and through her

)

next friend Bernadette Brossett; W.R. by )

and through his next friend, Calista

)

Blackmon; on behalf of themselves and all )

persons similarly situated; MISSISSIPPI )

PROTECTION AND ADVOCACY

)

SYSTEM, INC.,

)

)

Plaintiffs,

)

)

)

HARRISON COUNTY, MISSISSIPPI, )

)

Defendant.

)

Case No. 1:09 cv 267 LG-RHN

MEMORANDUM OF AGREEMENT On April 20, 2009 Plaintiffs filed this litigation against Harrison County seeking to protect the federal right of youth detained at the Harrison County Juvenile Detention Center ("Juvenile Detention Center"). On June 11, 2009, the Court entered the first Agreed Order between the parties, which among other provisious, granted Plaintiff Mississippi Protection and Advocacy, Inc. access to the residents and records of the Juvenile Detention Center. Since that date the parties, including the contractor for Harrison County, Mississippi, Mississippi Security Police (hereinafter MSP), have worked collaboratively in an attempt to ensure the well-being of youth detained at the

Juvenile Detention Center. The Plaintiff and MSP have agreed to the following, until the parties can further investigate this case and attempt to negotiate a pennanent resolution or obtain a ruling from the Court on any disputed issues, including any jurisdictional issues and any other defenses which are preserved by the Defendant. Counsel for the County and the Mississippi Security Police (MSP) agree to meet with counsel for Plaintiffs and a juvenile justice expert during the week of July 13, 2009 with the goal of crafting a comprehensive settlement agreement that will resolve any outstanding claims. Accordingly, the MSP, as a contractor of the Defendant, and the Plaintiffs agree to the following.
OVERCROWDING 1. MSP agrees to operate the Harrison County Youth Detention Center with a staff to youth ratio of 1:8 from the hours of 6:00 am until 10:00 pm and 1: 10 from the hours of 10:00 pm to 6:00 am for any Youth detained by an order of the Harrison County Youth Court. 2. If the Harrison County Juvenile Detention Facility exceeds 90% of its full capacity for longer than 4 days MSP shall immediately identify youth accused of nonviolent offenses who are eligible for less restrictive alternatives to secure detention and request from the Youth Court an emergency release for eligible youth. Full capacity shall be calculated by detennining how many youth can be housed in a facility when two youth are assigned to each cell. This calculation shall not include cells that are regularly used for intake or observation, nor shall it include beds that are placed in common areas, like day rooms.

3. MSP agrees that it shall not allow more than two youths share a cell at any time. 4. MSP agrees that no youth shall be forced sleep on the floor.
CELL CONFINEMENT 5. MSP agrees that no youth shall be locked in a cell during the hours of 6:00 am to 10:00pm. However, MSP shall grant any youth's request to spend time in his or her unlocked cell during the hours of 6:00 am to 10:00 pm. 6. MSP may use 24 hour cell confinement to discipline youth who pose a serious risk bodily injury to staff or other youth. Youth who are placed on 24-hour cell confinement shall be released from their cells daily to maintain appropriate personal hygiene and to engage in one hour of large muscle exercise. Staff must perform visual checks on youth who are subject to 24 hour cell confinement every 15 minutes. Confinement for over 24 hours will be reviewed and authorized every 24 hours by Tony Best. No youth shall be subject to cell confinement for longer than 72 hours.
USE OF RESTRAINTS 7. MSP agrees that mechanical and/or chemical restraints shall not be used to punish youth or for the convenience of staff. Restraints shall only be used when a resident presents a threat of serious bodily injury to others. Restraints shall be removed from a restrained youth as soon as the threat has deescalated. No resident shall be subject to restraints until staff have first attempted verbal de-escalation techniques. Nothing in this provision shall prohibit restraints from being placed on youth during transportation, if staff have reason to believe that a youth presents a flight risk or will engage in violent behavior during transport.

8. MSP agrees that no restraints shall be placed on youth engaging in self-injurious or suicidal behavior unless restraints are ordered by a licensed mental health professional. If a licensed mental health professional deems restraints necessary to prevent a youth from harming his or herself, that youth shall be immediately transported to a mental health facility or to the emergency room of a local hospital. 9. MSP agrees that no restraints shall be placed on youth who is alone inside a cell.
USE OF FORCE 10. MSP agrees that physical force shall not be used to punish youth. Staff supervising youth who are detained by an order of the Harrison County Youth Court shall not "slam," "take down" or "secure youth to the floor" as a form of control or a control technique. MSP Staff shall only use physical force to stop youth from causing serious physical injury to self or others. If physical force is necessary, staff must use the minimum amount required to safely contain the youth. No youth shall be subject to physical force until staff have first attempted verbal de-escalation techniques.
SUICIDE PREVENTION II. Youth who exhibit suicidal ideation for longer than 24 hours shall be transported to a mental health facility or to the emergency room of a local hospital for evaluation and/or treatment at the mental health facility or hospital.
HYGINE AND SANITATION 12. MSP agrees Youth shall be provided with the means to maintain appropriate hygiene, including soap and shampoo for showers, which will occur at least once daily, soap for washing hands after each time the youth use the toilet, and tooth paste and a tooth brush for tooth brushing, which will occur at least twice daily.

13. MSP agrees Youth shall be provided with sleeping mats and blankets that are clean and odorless, and that have no visible stains.. 14. Under no circumstances shall youth be deprived of mats and blankets as a punishment. 15. MSP shall provide all detained youth with a clean, sanitary environment, and shall perform an environmental assessment of the youth's living areas to ensure that youth are not exposed to toxic substances while detained at the detention Center.
MISCELLANEOUS PROVISIONS 16. Male and female youth shall be provided with equal access to educational services, medical care, and indoor and outdoor recreation. 17. MSP staff are prohibited from having inappropriate contact with youth. Inappropriate contact includes, but is not limited to conversations of a sexual nature, verbal sexual harassment, dissemination of sexually explicit materials inside the detention center, and sexual acts or touching. 18. MSP will collaborate with the Plaintiffs to develop a comprehensive policy that will address cross-gender supervision, sexual harassment and gender discrimination.
19. All youth shall have the opportunity to engage in at least one hour oflarge
muscle exercise a day.
STAFF TRAINING 20. MSP shall work with Plaintiffs to design and implement a comprehensive training for detention center staff. Training shall include, but are not limited to the mandatory reporting requirements for direct care workers, the requirements of the Prison Rape

Elimination Act, verbal de-escalation teclmiques, adolescent brain development, and best practices for detention center administration.

cW :'3J<-..7JD""J".,-:-;-,;-:_:24_',_20_0_9_

Vanessa Carroll

~TO~~- - - - Counsel for Plaintiffs

--_.-..... .

Chief ()perating Officer Mississir. i Security Police
ciIL--
ynn Clark, by Tim C. Holleman with his permission, Counsel for MSP

receipt of this agreement between MSP and the Plaintiffs:

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIP I
SOUTHERN DIVISION

APR 20 2009

)

D.W., by and through his next friend,

)

Devonsha Fairley on behalf of himself and )

all persons similarly situated; MISSISSIPPI )

PROTECTION AND ADVOCACY

)

SYSTEM, INC,

)

)

Plaintiffs,

)

)

)

HARRISON COUNTY, MISSISSIPPI, )

)

Defendant.

)

)

J. T. NOBLIN, CleRK

BY

DEPUTY

wm Case No. r01(V 2Ji7
COMPLAINT

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

I. This is a civil action pursuant to 42 U.S.C. § 1983 to vindicate the rights of children

imprisoned in the Harrison County Juvenile Detention Center ("Juvenile Detention Center")

under the Eighth and Fourteenth Amendments to the United States Constitution. The Plaintiff

represents a class of children who have suffered horrific physical and mental abuse and live in

dangerously unsafe and unsanitary conditions at the Juvenile Detention Center. The abusive

conditions at the Juvenile Detention Center include punitive shackling, staff-on-youth assaults,

23-hour a day lock-down in filthy jail cells, unsanitary conditions resulting in widespread

contraction of scabies and staph infections, dangerous overcrowding that forces many youth to

sleep on the concrete floor, and inadequate mental health care. Harrison County has contracted

with the Mississippi Security Police to operate the Juvenile Detention Center. Mississippi

Security Police is a for-profit, private corporation with headquarters in Pascagoula, Mississippi.

In exchange for operating this facility, Mississippi Security Police receives over $1.6 million per

year in County funds.

I

2. On behalf of himself and all similarly situated children, D.W. seeks declaratory, preliminary and permanent injunctive relief ordering the Defendant to cease all unconstitutional policies and practices at the Juvenile Detention Center and to provide class members with constitutionally required care and living conditions. The children are joined in this action by the Mississippi Protection & Advocacy System, Inc. ("MPAS"), a non-profit agency with a federal mandate to protect the rights of children with disabilities who are confined in the Juvenile Detention Center. MPAS asserts its right to meet with children who are confined inside the Juvenile Detention Center and to conduct regular monitoring of the facility. Plaintiff MPAS seeks declaratory, preliminary and permanent injunctive relief preventing the Defendant from denying MPAS, as authorized by its federal enabling statutes, full, complete, timely and unaccompanied access to the children detained at the Juvenile Detention Center, Juvenile Detention Center facilities, facility staff, as well as full, complete, timely access to records.
PARTIES 3. Plaintiff D.W. is a seventeen year-old male currently imprisoned in the Juvenile Detention Center. On behalf of himself and all similarly situated children, he brings this action by and through his next friend and mother, Devonsha Fairley. He is confined at the Juvenile Detention Center while he waits for his disposition before the Harrison County Youth Court. For almost two months, D.W. has been held at the Juvenile Detention Center, where he has endured a brutal physical assault from adult staff members, spent 23 hours a day locked in a filthy vermininfested jail cell, and been forced to sleep on the floor of an overcrowded cell with only a thin mat that smells of urine. Unsurprisingly, during D.W.'s imprisonment, his mental health has deteriorated rapidly. He tried to commit suicide by hanging himself in his cell, yet he has received no mental health treatment or counseling. These conditions are neither isolated
2

incidents nor restricted to D.W. Indeed, D.W.'s plight echoes the stories of over thirty youth interviewed by attorneys. All of these children uniformly describe the Juvenile Detention Center as a squalid, over-crowded facility that is infested with insects, where jail officials frequently resort to violence and the inappropriate use of restraints. These conditions violate the constitutional rights of D.W. and all similarly situated children, all of whom are entitled to reasonably safe and sanitary conditions of confinement, freedom from unreasonable bodily restraint, and protection from harm. 4. Plaintiff Mississippi Protection & Advocacy System, Inc. ("MPAS") is a nonprofit organization with a federal mandate to protect and advocate for the rights of persons with disabilities in Mississippi. Federal law extends this mandate to children with disabilities who are confined to juvenile detention centers. Through a contracted agent, MPAS devotes considerable resources to investigating conditions of confinement and advocating on behalf of youth housed in juvenile facilities across the state of Mississippi. MPAS and its contracted agent have made numerous efforts to gain access to the children with disabilities who are confined at the Juvenile Detention Center. Despite the Plaintiff's federal right to access the Juvenile Detention Center and its residents and Plaintiff's good faith efforts to reach an agreement on access with the individuals responsible for operating the Juvenile Detention Center, the Defendant refuses to grant MPAS access. The Defendant's actions prevent MPAS from fulfilling its federal mandate to protect and advocate for the civil rights of youth with disabilities confined to the Juvenile Detention Center. This violates Plaintiff's right to function as an effective protection and advocacy system for the State of Mississippi and also violates the rights of youth with disabilities at the Juvenile Detention Center who are entitled to receive protection and advocacy services. MPAS files this complaint in its own name to redress injuries to itself and on behalfof its clients.
3

5. Defendant Harrison County is the governmental entity with the responsibility to "establish and maintain detention facilities, shelter facilities ... or any other facility necessary to carryon the work of the youth court." Miss. Code Ann. § 43-21-109. Under the terms of a contract executed by Harrison County, Mississippi Security Police, a private, for-profit company is responsible for the daily operations of the Juvenile Detention Center. But Harrison County is the entity with ultimate responsibility to protect and secure the rights of children detained in the Juvenile Detention Center. 6. The Defendant ignores well-established law and acts with deliberate indifference by subjecting D.W. and all similarly situated children to shockingly inhumane conditions of confinement, physical abuse, and inadequate mental health care.
JURISDICTION AND VENUE 7. Plaintiff D.W.'s cause of action arises under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. S. Plaintiff MPAS's cause of action arises under the Protection and Advocacy for Individuals with Mental Illness Act of 1986 ("PAlMI Act"), 42 U.S.C. §§10S01 et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act"), 42 U.S.C. §§1500l, et. seq.; the Protection and Advocacy of Individual Rights Program ("PAIR Act"), 29 U.S.C., §§794e, et. seq.; and 42 U.S.C. §1983. 9. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § l331.
4

CLASS ACTION ALLEGATIONS 10. PlaintiffD.W. brings this suit on his own behalf and on behalf of all children who are or who will in the future be incarcerated at the Harrison County Juvenile Detention Center. 11. The class is so numerous that joinder of all members is impractical. The Juvenile Detention Center has the capacity to house 48 youth, and the population often exceeds the maximum capacity. Children remain in the Juvenile Detention Center for varying lengths of time, and the population changes on a daily basis. The class also includes future members whose names are not known. Fed. R. Civ. P. 23(a)(1). 12. There are questions of law and fact common to all class members, including but not limited to the Defendant's failure to protect class members from harm and the Defendant's failure to provide class members with constitutionally safe and humane conditions of confinement. Fed. R. Civ. P. 23(a)(3). 13. Because the policies, practices, and customs challenged in this Complaint apply with equal force to the named Plaintiff and the other members of the class, the claims of the named Plaintiff are typical of the class in general. Fed. R. Civ. P. 23(a)(3). 14. The named Plaintiff, D.W. will fairly and adequately represent the interests of the class. D. W. possesses a strong personal interest in the subject matter of the lawsuit and is represented by experienced counsel with expertise in class action litigation in federal court. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). IS. The Defendant has acted and refused to act on grounds generally applicable to the class in that Defendant's policies and practices of violating the Plaintiffs constitutional rights has
5

affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
STATEMENT OF FACTS 16. The Harrison County Juvenile Detention Center houses children awaiting adjudication and disposition before the Harrison County Youth Court. Although the majority of children housed at this facility are awaiting their court appearances, state law allows juvenile detention centers to house children for 90 days as a post-adjudication disposition. Miss. Code Ann. § 4321-605(1 )(k). 17. The contract between Harrison County and the Mississippi Security Police requires that Mississippi Security Police" ...house and feed up to 48 juveniles in a secure detention facility pursuant to the laws of the state of Mississippi and of the United States and regulations for juvenile detention facilities as set forth by the United States Department of Justice." (See Exhibit 2) Despite the clear terms of this contract, the Defendant has allowed Mississippi Security Police to violate federal and state law by subjecting the children housed in the Juvenile Detention Center to unconstitutional violations.
Protection from Harm Violations: Physical and Psychological Abuse by Staff 18. Defendant has a custom and/or practice of failing to protect children at the Juvenile Detention Center from unconstitutionally malicious and sadistic physical abuse and assaults. 19. On or about March 23, 2009, PlaintiffD.W. was assaulted by two guards while he was in his cell. Guard 1 placed D.W. in a chokehold, slammed him to the ground, and placed him in handcuffs. Once D.W. was lying on the ground restrained with handcuffs, Guard 2 joined in the assault and one of the Guards pressed his knee into D.W.'s back while the other Guard pushed
6

on D.W.'s neck. These brutal actions crushed D.W.'s face into the concrete floor of his cell, making it difficult for him to breathe and causing him to gasp for air. 20. D.W. sought medical attention for the injuries he suffered as a result of this incident. When his mother visited him, she noticed bruising around his wrists where the guards had tightened the handcuffs in an attempt to deliberately cause D.W. unnecessary pain. 21. Upon information and belief, and based on interviews with over thirty youths who were recently held in the Juvenile Detention Center, such physical abuse is also inflicted with regularity on other putative class members.
Protection from Harm Violations: Inadequate Mental Health Treatment 22. Defendant has a custom and/or practice of being deliberately indifferent to the serious mental health needs of youth confined at the Juvenile Detention Center. 23. At the end of his first week in detention, D.W.'s mental health declined so dramatically that he attempted to kill himself by tying a sheet around his neck and hanging himself on a light fixture in his cell. A staff member intervened before D.W. could cause himself serious harm. However, D.W. has been denied all access to adequate, ongoing mental health treatment. 24. Instead of providing D. W. with adequate mental health services, staff at the Juvenile Detention Center taunted and harassed D.W. by telling him that his mother no longer cared for him and would not come to visit him any more. Staff threatened D. W. that without his mother around, they could do anything to him and get away with it.
Protection from Harm Violations: Dangerous and Unsanitary Conditions 25. The Defendant has a custom and/or practice of failing to provide sanitary facilities for the children in its care. Toilets and walls are covered with mold, rust, and excrement. Insects have infested the facility, and D.W. frequently wakes up covered by bug bites. The smell of human
7

excrement permeates the children's living quarters. D.W. and the other children at the facility frequently have to sleep on thin mats that smell of urine and mold. The Defendant does not provide children with adequate personal hygiene items.
Protection from Harm Violations: Overcrowded Living Conditions 26. The Defendant has a custom and/or practice of allowing the Juvenile Detention Center to become dangerously and unconstitutionally overcrowded. Upon information and belief, the facility has a capacity to house 48 children, and at times holds as many as 60 youth. As a result, some children are forced to sleep on the floor, pressed up against other youth, with nothing but a thin, filthy mat separating the child from the concrete. PlaintiffD.W. has frequently been forced to sleep on the floor on a thin mat that smells like urine.
Protection from Harm Violations: Excessive Room Confinement 27. The Defendant has a custom and/or practice of confining children to their cells for as long as 23 hours a day and of failing to provide children with access to regular physical exercise, recreation or any other rehabilitative programming. PlaintiffD.W. has spent the past two months locked in his cell for 23 hours a day.
Protection from Harm Violations: Inadequate Training and Supervision of Staff 28. The Defendant has a custom and/or practice of failing to ensure the proper training and supervision of Juvenile Detention Center staff. Consequently, the safety and security of youth at the Juvenile Detention Center is constantly threatened by the extreme incompetence of staff and the lack of adequate supervision and oversight. Staff frequently resort to physical violence and respond to youths' requests for help or assistance with taunts, profanity, and indifference.
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Due Process Violations: Arbitrary and Punitive Disciplinary Practices 29. The Defendant has a custom andlor practice of subjecting youth to arbitrary and excessive discipline that is designed to punish and cause discomfort rather than maintain and restore discipline. Rule violations are punished by placement in "lockdown" for periods ranging from three days to an entire week. While on "lockdown," youth spend 23 to 24 hours per day in their cells. Youth are not permitted to attend school, exercise, or have any reading or writing materials. 30. The use of lockdown is purely punitive and arbitrary. Youth do not receive any fonn of due process hearing prior to their placement on lockdown, and the duration of lockdown is not tailored to respond to the alleged rule violation nor limited to the length of time necessary to restore or maintain order. 31. The Defendant does not make any effort to ensure that prolonged periods of room confinement do not induce any dangerous psychological consequences on youth. 32. The Defendant placed D.W. on lockdown for seven consecutive days for allegedly refusing a staff directive. D.W. did not receive any fonn of due process prior to being placed on lockdown, and he was only pennitted to shower two times during this period. With the exception of the two times D.W. took a shower, D.W. spent 24 hours in his cell each day with absolutely nothing to do.
Plaintiff MPAS's Access Authority 33. Congress established protection and advocacy ("P&A") systems in the Developmental Disabilities Assistance and Bill of Rights Act of 1975 ("PADD Act") to protect and advocate for the rights of persons with developmental disabilities. Congress provided P&As with the authority to investigate incidents of abuse and neglect against individuals with disabilities and
9

,---------- ----------------------
pursue legal, administrative, and other remedies on their behalf. 42 U.S.C. § 15043(a). Congress has since expanded the scope of the P&A system to provide protection and advocacy services to all persons with disabilities. The Protection and Advocacy for Individuals with Mental Illness Act of 1986 ("PAlMI Act") provides for the protection of rights of individuals with mental illness, 42 U.S.C. §§ to801 et seq.; and the Protection and Advocacy of Individual Rights Program of 1973 ("PAIR Program") was created to protect the rights of all other individuals with disabilities who are not covered under the PADD and PAlMI Acts. 29 U.S.C. § 794e. Pursuant to federal law MPAS has rights to:
a. reasonable unaccompanied access, for monitoring and investigatory purposes, to public and private areas of the Juvenile Detention Center facilities. 42 C.F.R. § 51.42(b); 42 C.F.R. § 51.42 (c); 45 C.F.R. § 1386.22(f); 45 C.F.R. § 1386.22(g).
b. interview facility service recipients, staff and other persons as part of an abuse and neglect investigation when MPAS determines it has probable cause to believe an incident has occurred. 42 C.F.R. § 51.42(b).
c. provide information and training on individual rights and services provided by the P&A system. 42 C.F.R. § 51.42 (c) and 45 C.F.R. § 1386.22(g).
d. communicate privately with facility residents. 42 C.F.R. § 51.42 (d) and 45 C.F.R. § 1386.22(h).
e. access to records of facility residents. 42 C.F.R. § 51.41 and 45 C.F.R. § 1386.22. f. access to facility incident reports and investigatory findings. 42 C.F.R. § 51.41(c)(2). 34. To receive federal funding under the PADD, PAlMI, and PAIR Acts, states must have an effective P&A system. MPAS is designated as Mississippi's P&A System. See Mississippi Protection & Advocacy v. Cotten, 1989 U.S. Dist. LEXIS 17075 at *3 (S.D. Miss. 1989).
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Federallaw permits MPAS to designate agents with whom it contracts to assist in carrying out its responsibilities under federal law. 42 U.S.C. § 10801(b); § 10805(a)(I); 42 C.F.R. § 51.42. 35. In order to carry out the Congressional mandate to protect and advocate for the rights of individuals with disabilities, the P&A Acts require that the P&A and its authorized agents have physical access to individuals with disabilities, access to individuals' records, and physical access to the facilities housing these individuals. 42 U.S.C.§15043(a)(2); 42 U.S.C. § 10805(a)(3); 45 C.F.R. § 1386.22(g)-(h); 42 C.F.R. § 51.42(a)-(c). This access includes the right "to meet and communicate privately" with residents "both formally and informally, by telephone, mail and in person." 45 C.F.R. § 1386.22(2). 36. Under the PAlMI Act, "any public or private residential setting that provides overnight care accompanied by treatment services" is a facility which a P&A is authorized to access and monitor. "Facilities include, but are not limited to the following: General and psychiatric hospitals, nursing homes, board and care homes, community housing, juvenile detention facilities, homeless shelters, and jails and prisons, including all general areas as well as special mental health or forensic units. 42 C.F.R. § 51.2 (emphasis added). See also 45 C.F.R. § 1386.19. 37. The Harrison County Juvenile Detention Center is a covered "facility" as defined under the PAlMI Act and the DD Act. 42 U.S.C. 10802(2); 42 C.F.R. 51.2; 45 C.F.R. § 1386.19. 38. Under the PADD, PAlMI, and PAIR Acts, Congress designated two distinct bases for access to facilities and residents: (I) access for the purpose of investigating allegations of abuse and/or neglect, 42 U.S.C. § 15043(a)(2)(B), 42 U.S.C. § 10805(a)(I)(A), 45 C.F.R. § 1386.22(f), 42 C.F.R. § 52.42(b); and (2) access for the purpose of monitoring the facility and the treatment
11

of its residents, 42 U.S.c. § 15043(a)(2)(H), 42 U.S.C. § 10805(a)(3), 45 C.F.R. § I386.22(g), 42 C.F.R. § 51.42(c). 39. To carry out its mandate to investigate incidents of abuse and neglect, MPAS is entitled to "reasonable unaccompanied access ... to all areas of the facility which are used by residents or are accessible to residents ... [and] shall have reasonable unaccompanied access to residents at all times necessary to conduct a full investigation of an incident of abuse or neglect." 42 C.F.R. § 51.42(b). 40. To carry out its monitoring duties, MPAS is entitled to reasonable unaccompanied access to all residents of a facility at reasonable times to provide P&A services and contact information, rights information, monitor compliance with respect to the rights and safety of service recipients, and to view and photograph all areas of the facility which are used by residents or are accessible to residents. 42 C.F.R. § 51.42(c); 45 C.F.R. § 1386.22(g). 41. The PAlMI Act states that MPAS has the right to access all residents of a facility "despite the existence of any State or local laws or regulations which restrict informal access to minors and adults with legal guardians or conservators." 42 C.F.R. § 51.42(e). 42. The PAlMI and PADD Acts also authorize MPAS to prompt access to all records of any individual who is a client of the system if the individual, or his legal guardian, conservator, or other legal representative, has authorized the system to have such access. 42 C.F.R.§ 51.41(b)(l); 45 C.F.R. §1386.22(a)(1). 43. The PAlMI and PADD Acts provide MPAS with access to records of individuals who are in the custody of the state and with respect to whom a complaint has been received by the system or with respect to whom there is probable cause to believe that such individual has been
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subjected to abuse or neglect 42 C.F.R. § 51.41(b)(2)(ii)-(iii); 45 C.F.R. § 1386.22(a)(2)(ii)-
(iii).
44. The PAlMI regulations also require the Defendant to provide MPAS:
Reports prepared by an agency charged with investigating abuse, neglect, or injury occurring at a facility rendering care or treatment, or by or for the facility itself, that describe any or all of the following: (i) Abuse, neglect, or injury occurring at the facility; (ii) The steps taken to investigate the incidents; (iii) Reports and records, including personnel records, prepared or maintained by the facility, in connection with such reports of incidents; or (iv) Supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect or injury such as records which describe persons who were interviewed, physical and documentary evidence that was reviewed, and the related investigative fmdings.
42 C.F.R. § 51.41(c)(2).
45. The access provisions of the PADD, PAlMI, and PAIR Acts are interrelated and it is
clear that Congress intended for the provisions to be applied in a consistent manner, and the
PAIR Act expressly incorporates by reference, at 42 U.S.C. § 794e (t), the authority regarding
access to facilities and records set forth in the PADD Act.
Denial of Access
46. From September II, 2008 until March 26, 2009, MPAS and its contractor sent eight
letters to Harrison County officials and/or contractors informing them of MPAS's federal access
rights and requesting the right to exercise these rights at the Juvenile Detention Center. (See
Exhibit I).
47. The Defendant responded to each of Plaintiff's requests with an effective denial. The
Defendant therefore unlawfully denied MPAS the right to exercise its federal authority and
denied children with disabilities detained at the Juvenile Detention Center the right to access
MPAS services.
13

Necessity for Injunctive Relief 48. The Defendant has acted and continues to act in violation of the law as explained above. Plaintiff D.W. and the class he seeks to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendant, PlaintiffD.W. and the class of children he seeks to represent, have suffered and continue to suffer serious, imminent, and irreparable physical, mental and emotional injuries. 49. Plaintiff MPAS does not have an adequate remedy at law and will be irreparably harmed if the Defendant is permitted to continue prohibiting MPAS and its agents from:
a) having reasonable unaccompanied access, for monitoring and investigatory purposes, to public and private areas of the Juvenile Detention Center;
b) interviewing youth, staff and other persons as part of its duty to monitor the facility and investigate incidents of abuse and neglect;
c) providing information and training on individual rights and services provided by the P&A system;
d) communicating privately with facility residents; e) accessing facility incident reports and investigatory findings; f) accessing residents' records.
EXHAUSTION 50. The named Plaintiff, D.W., has exhausted all available administrative remedies.
14

CAUSES OF ACTION 51. Plaintiffs incorporate by reference all of the above factual allegations to support the following claims:
COUNT I 52. The conditions of confinement at the Juvenile Detention Center and the Defendant's deliberate indifference to those conditions, considered both individually and in their totality, constitute cruel and unusual punishment and a denial of due process in violation of Plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
Count II 53. Defendant's refusal to protect children from harm, otherwise keep them physically safe and secure and free from unconstitutional practices like excessive room confinement, excessive use of force, arbitrary and punitive disciplinary practices and excessive use of restraints violates Plaintiffs' constitutional rights under the Eighth Amendment and the Fourteenth Amendment to the United States Constitution, as enforced through 42 U.S.C. § 1983.
Count III 54. Defendant's deliberate indifference to the children's serious mental health needs violates Plaintiffs' constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
Count IV 55. The policies, procedures, regulations, practices and customs of the Defendant violate and continue to violate the rights of the Plaintiff MPAS to full, complete, timely and meaningful
15

access to the Juvenile Detention Center, staff, residents and their records, in violation of the

PAlMI, PADD and PAIR Acts, Protection and Advocacy for Individuals with Mental Illness Act

of 1986 ("PAlMI Act"), 42 U.S.C. §§10801 et seq.; the Developmental Disabilities Assistance

and Bill of Rights Act of 2000 ("DD Act"), 42 U.s.C. §§15001, et. seq.; Protection and

Advocacy of Individual Rights Program ("PAIR Act"), 29 U.S.C., §§794e, et. seq.; and 42

U.S.C. §1983.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray that this Honorable Court grant the following relief:

a.

Declare that the acts and omissions of the Defendant violate the

Constitution and federal law;

b.

Enter a preliminary and permanent injunction requiring the Defendant, its

agents, employees and all persons acting in concert with them to cease their

unconstitutional and unlawful practices;

c.

Grant injunctive relief enjoining the Defendant and its agents and

employees from denying MPAS and its contracted agent immediate, full,

complete, meaningful and unaccompanied access to the staff, residents,

records and facilities at the Harrison County Juvenile Detention Center to

conduct monitoring activities and abuse and neglect investigations without

advance notice and at any reasonable time, including business and visiting

hours, in violation of the PAlMI, PADD and PAIR Acts;

d.

Issue a declaratory judgment that the Defendant's polices, regulations, and

practices of denying MPAS and its contracted agent immediate, full,

complete, meaningful, and unaccompanied access to the staff, residents,

records and facilities at the Harrison County Juvenile Detention Center to

monitor and to conduct abuse and neglect investigations, without advance

notice and at any reasonable time, including during business and visiting

hours, violate the PAlMI, PADD and PAIR Acts;

e.

Award to the Plaintiffs reasonable costs and attorney's fees; and

f.

Grant the Plaintiffs such other relief as the Court deems just.

16

Respectfully submitted,
Vanessa Carroll, Miss. Bar No. 102736 Sheila A. Bedi, Miss. Bar. No.1 01652 Mississippi Youth Justice Project A Project of the Southern Poverty Law Center 921 North President Street Suite B Jackson, Mississippi 39202 601-948-8882 (voice) 601-948-8885 (fax)
Kay Hardage, Miss. Bar No. 3061 Mississippi Protection and Advocacy Systems, Inc. 5305 Executive Place Jackson, Mississippi 39206 601-981-8207 (voice) 601-981-8313 (fax) Of Counsel for Mississippi Protection and Advocacy Systems, Inc.
17

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been
served by hand delivery on: Attorney Joe Meadows Harrison County Board Attorney Meadows Law Firm 1902 21" Avenue Gulfport, MS 39501
This 20'h day of April, 2009.

 
 Case: 1:09-cv-267 As of: 09/19/2012 05:41 PM CDT 1 of 4
CLOSED, RHW
U.S. District Court Southern District of Mississippi (Southern) CIVIL DOCKET FOR CASE #: 1:09−cv−00267−LG −RHW

D.W. et al v. Harrison County, Mississippi Assigned to: Chief District Judge Louis Guirola, Jr Referred to: Magistrate Judge Robert H. Walker Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/20/2009 Date Terminated: 10/13/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

D.W. by and through his next friend, Devonsha Fairley on behalf of himself and all persons similarly situated

represented by Sheila A. Bedi SOUTHERN POVERTY LAW CENTER − Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948−8882 Fax: 601/948−8885 Email: sheila.a.bedi@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff ROBERT B. MCDUFF, ATTORNEY 767 North Congress St. Jackson, MS 39202 (601) 969−0802 Email: RBM@McDuffLaw.com ATTORNEY TO BE NOTICED

Plaintiff
Mississippi Protection and Advocacy System, Inc.

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
K.V. by and through her next friend Sina Matheny

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.R. by and through her next friend Laura Reed

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-267 As of: 09/19/2012 05:41 PM CDT 2 of 4

Plaintiff
J.P. by and through his next friend Theresa Pope

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.B. by and through her next friend Bernadette Brossett

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
W.R. by and through his next friend, Calister Blackmon

represented by Sheila A. Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Harrison County, Mississippi

represented by Tim C. Holleman BOYCE HOLLEMAN AND ASSOCIATES, P.A. 1720 23rd Avenue Gulfport, MS 39501 228/863−3142 Fax: 228/863−9829 Email: tim@boyceholleman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Jobe Young MEADOWS LAW FIRM P. O. Box 1076 Gulfport, MS 39502 228/868−7717 Fax: 228/868−7715 Email: kyoung@datasync.com TERMINATED: 07/01/2009

Date Filed 04/20/2009

# Docket Text
1 REDACTED COMPLAINT against Harrison County, Mississippi (Filing fee $ 350; receipt number B029671), filed by D.W., Mississippi Protection and Advocacy System, Inc. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1−2)(JCH) (Entered: 04/20/2009)

Case: 1:09-cv-267 As of: 09/19/2012 05:41 PM CDT 3 of 4

04/20/2009 04/20/2009 04/20/2009 04/27/2009 04/27/2009 04/27/2009
04/27/2009 04/28/2009
04/28/2009 04/28/2009 04/29/2009 04/29/2009 05/01/2009 05/06/2009 05/06/2009 05/08/2009

2 MOTION to Certify Class by D.W., Mississippi Protection and Advocacy System, Inc. (JCH) (Entered: 04/20/2009)
3 MEMORANDUM in Support re 2 MOTION to Certify Class filed by D.W., Mississippi Protection and Advocacy System, Inc. (Attachments: # 1 Affidavit)(JCH) (Entered: 04/20/2009)
4 Summons Issued as to Harrison County, Mississippi (c/o Attorney Joe Meadows and c/o John McAdams, Chancery Clerk). (JCH) (Entered: 04/20/2009)
5 AMENDED COMPLAINT against Harrison County, Mississippi, filed by D.W.. (Attachments: # 1 Exhibit one, # 2 Exhibit two)(Bedi, Sheila) (Entered: 04/27/2009)
6 **NOTE: FILED INCORRECTLY. Amended MOTION to Certify Class, MOTION to Amend/Correct 2 MOTION to Certify Class, 3 Memorandum in Support of Motion by D.W. (Bedi, Sheila); Modified to add docket text on 4/28/2009 (JCH). (Entered: 04/27/2009)
7 **NOTE: FILED INCORRECTLY. AMENDED DOCUMENT by D.W.. Amendment to 6 Amended MOTION to Certify Class MOTION to Amend/Correct 2 MOTION to Certify Class, 3 Memorandum in Support of Motion Amended Declaration (Bedi, Sheila); Modified to add docket text on 4/28/2009 (JCH). (Entered: 04/27/2009)
8 **NOTE: FILED INCORRECTLY. AMENDED DOCUMENT by D.W.. Amendment to 7 Amended Document Exhibit One (Bedi, Sheila); Modified to add docket text on 4/28/2009 (JCH). (Entered: 04/27/2009)
DOCKET ANNOTATION as to # 6 − # 8. Attorney's office is advised that all of these documents were filed incorrectly. Document # 6 should be re−filed as a Motion to Certify Class only, the word "Amended" can be text in. Also, a Memorandum should not be attached to the Motion, it should be filed as a separate document, the correct event can be found under the "Responses and Replies" category. Also, documents # 7 and # 8 are not amended documents, they are exhibits to document # 6 and should be attached as exhibits to the Amended Motion to Certify Class, which can all be docketed in the same entry. (JCH) (Entered: 04/28/2009)
9 Amended MOTION to Certify Class by A.B. (Attachments: # 1 Exhibit one, # 2 Affidavit)(Bedi, Sheila) (Entered: 04/28/2009)
10 **NOTE: FILED INCORRECTLY. MEMORANDUM in Support re Amended MOTION to Certify Class filed by D.W., K.V., A.R., J.P., A.B., W.R. (Attachments: # 1 Exhibit One, # 2 Affidavit)(Bedi, Sheila); Modified to delete link and add docket text on 4/29/2009 (JCH). (Entered: 04/28/2009)
DOCKET ANNOTATION as to # 10. Attorney's office is advised that the wrong document was scanned in. The correct memorandum should be re−filed and linked to document 9 . (JCH) (Entered: 04/29/2009)
11 MEMORANDUM in Support re 9 Amended MOTION to Certify Class filed by D.W., K.V., A.R., J.P., A.B., W.R. (Attachments: # 1 Exhibit One, # 2 Affidavit)(Bedi, Sheila) (Entered: 04/29/2009)
12 NOTICE of Appearance by Robert B. McDuff on behalf of all plaintiffs (McDuff, Robert) (Entered: 05/01/2009)
13 MOTION for Extension of Time to File Answer re 9 Amended MOTION to Certify Class by Harrison County, Mississippi (Young, Karen) (Entered: 05/06/2009)
14 MOTION for Extension of Time to File Answer re 5 Amended Complaint by Harrison County, Mississippi (Young, Karen) (Entered: 05/06/2009)
TEXT ONLY ORDER granting 14 Motion for Extension of Time to Answer re 5 Amended Complaint. Harrison County, Mississippi answer due 6/9/2009. No further written order will issue from the Court. Signed by Magistrate Judge Robert H. Walker on May 8, 2009 (King, Steve) (Entered: 05/08/2009)

Case: 1:09-cv-267 As of: 09/19/2012 05:41 PM CDT 4 of 4

05/08/2009 06/11/2009 06/30/2009 07/01/2009
08/18/2009 08/18/2009 08/19/2009 08/21/2009 09/03/2009
10/02/2009
10/13/2009

TEXT ONLY ORDER granting 13 Motion for Extension of Time to Respond to 9 Amended MOTION to Certify Class. The Response is due June 9, 2009. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THIS COURT. Signed by District Judge Louis Guirola, Jr., on 5/8/2009. (BR) (Entered: 05/08/2009)
15 AGREED ORDER signed by District Judge Louis Guirola, Jr., on 6/11/2009. (CG) (Entered: 06/11/2009)
16 MOTION to Substitute Attorney by Harrison County, Mississippi (Young, Karen) (Entered: 06/30/2009)
TEXT ONLY ORDER granting 16 Motion to Substitute Attorney. Added attorney Tim C. Holleman for Harrison County, Mississippi. Attorney Karen Jobe Young terminated. No further written order will issue from the Court. Signed by Magistrate Judge Robert H. Walker on July 1, 2009 (King, Steve) (Entered: 07/01/2009)
17 Joint MOTION for Settlement Approval by D.W., K.V., A.R., J.P., A.B., W.R., Harrison County, Mississippi (Attachments: # 1 Signed Settlement Agreement, # 2 Proposed Notice to Class)(Bedi, Sheila) (Entered: 08/18/2009)
18 NOTICE of Endorsement by Harrison County, Mississippi re 17 Joint MOTION for Settlement Approval (Holleman, Tim) (Entered: 08/18/2009)
DOCKET ANNOTATION as to # 17. Attorney's office is advised that all proposed orders should be submitted to the judge via email and not filed with the document. (JCH) (Entered: 08/19/2009)
19 NOTICE of Hearing:IN PERSON Status Conference set for 9/3/2009 01:30 PM before District Judge Louis Guirola Jr. and Magistrate Judge Robert H. Walker.(JR) (Entered: 08/21/2009)
Minute Entry for proceedings held before District Judge Louis Guirola, Jr. and Magistrate Judge Robert H. Walker: Status Conference held on 9/3/2009. Counsel for all parties were present and discussed issues related to the proposed settlement agreement. The parties will file an amended motion for preliminary approval of the settlement agreement and submit an amended proposed order approving same to the Court. (Whitsitt, K) (Entered: 09/03/2009)
20 MOTION to Amend/Correct FOR APPROVAL OF PROPOSED AMENDED SETTLEMENT AGREEMENT by D.W., K.V., A.R., Mississippi Protection and Advocacy System, Inc., J.P., A.B., W.R. (Attachments: # 1 Exhibit One−Amended Settlement Agreement, # 2 Exhibit Two−Demuro CV/Invoice, # 3 Exhibit three−Balsamo CV, # 4 Exhibit 4−previously posted notice, # 5 Exhibit 5−amended notice, # 6 Exhibit 6−notice to future class members, # 7 Exhibit 7−class member statements)(Bedi, Sheila) (Entered: 10/02/2009)
21 ORDER granting 20 Amended Joint Motion for Approval of Proposed Amended Settlement Agreement; finding as moot 2 Motion to Certify Class; granting 9 Amended Motion to Certify Class; finding as moot 17 Joint Motion for Settlement Approval. This matter is dismissed without prejudice. Signed by District Judge Louis Guirola, Jr. on 10/13/09. (RLW) (Entered: 10/13/2009)