E. R. v. McDonnell

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JI-CO-001-001

S DISTRICT COURT FOR THE DISTRICT OF COLORADO

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Civil Action No. 94-N-2816

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E. R., a minor, by and through his Next Friend, L. R.; R. R., a minor, by^ndthroughrhis_ Next Friend, M. R.; D. L., a minor, by and through his Next Friend, B . BgyDrW.'.'tf'Hfik&j?, C by and through his Next Friend, S. W.; A. W., a minor, by and through her Ncxt-Stieni^ J. W.; and D. M., a minor, by and through Ms Next Friend, R. M.; on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

BARBARA McDONNELL, Executive Director of the Department of Human Services for the State of Colorado; F. JERALD ADAMEK, Director of the Division of Youth Services, Department of Human Services for the State of Colorado; VELVTA GARNER, Director of the Phillip B. Gilliam Youth Services Center, all in their official capacity; and SCHOOL DISTRICT NO. 1, COUNTY OF DENVER, STATE OF COLORADO,

Defendants.

FIRST AMENDED COMPLAINT (Civil Rights Claim For Declaratory, Injunctive and Other Equitable Relief)

INTRODUCTORY STATEMENT 1. This is a civil rights class action challenging conditions of confinement for children at the Phillip B. Gilliam Youth Services Center ("Gilliam"), in Denver, Colorado, and the policies and practices of defendants in confining children therein. Plaintiffs bring this action for declaratory, injunctive, and other equitable relief on behalf of themselves and all other children similarly situated who are, have been, or will be confined in Gilliam under cruel, dangerous, and illegal conditions.

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2. Plaintiffs bring this action to redress the violations by defendants, acting under color of state law, of the civil and constitutional rights of plaintiffs. The conditions in Gilliam, and the policies and practices of the defendants, endanger plaintiffs' physical health and safety; threaten plaintiffs' emotional and psychological well-being; deprive plaintiffs of adequate programming and education, including special education; and deprive plaintiffs of due process of law.
JURISDICTION 3. This court has jurisdiction of this action under Title 28, United States Code § 1343(a)(3), this being an action to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States; the Civil Rights Act, Title 42, United States Code § 1983; § 504 of the Rehabilitation Act of 1973, Title 29, United States Code §§ 794 et seq. ("§ 504"); and the Individual with Disabilities Education Act, Title 20, United States Code §§ 1401 et seg. ("IDEA"). 4. This court also has jurisdiction of this action under Title 28, United States Code §1343(a)(4), this being an action to secure declaratory, injunctive, and other equitable relief under acts of Congress providing for the protection of civil rights, specifically the Civil Rights Act, §504, and the IDEA. 5. This court also has jurisdiction of this action under Title 28, United Sates Code §1331, this being a civil action arising under the Constitution and laws of the United States. 6. This court also has jurisdiction under Title 28, United States Code §§2201 and 2202, and Federal Rules of Civil Procedure, Rules 57 and 65, since this action seeks a judgment declaring the rights of plaintiffs and injunctive and other equitable relief.

PLAINTIFFS 7. Plaintiff E. R. is twelve years old and at all relevant times has resided in Colorado. In October, 1994, he was taken into custody and incarcerated by defendants in Gilliam and at the time of the filing of the complaint or subsequent thereto he was housed therein. He brings this action by and through his mother, M. R., as Next Friend. 8. Plaintiff R. R. is seventeen years old and at all relevant times has resided in Colorado. In July, 1994, he was taken into custody and incarcerated by defendants in Gilliam and at the time of the filing of the complaint or subsequent thereto he was housed therein. He brings this action by and through his mother, L. R., as Next Friend. 9. Plaintiff D. L. is thirteen years old and at all relevant times has resided in Colorado. In September, 1994,.he was taken into custody and incarcerated by the defendants in Gilliam and at the time of the filing of the complaint or subsequent thereto plaintiff was housed therein. He brings this action by and through his mother, B. B., as Next Friend. 10. Plaintiff D. W. is fifteen years old and at all relevant times resided in the state of Colorado. At the time of the filing of the complaint or subsequent thereto he was incarcerated within Gilliam. He brings this action by and through his maternal aunt, S. W., as Next Friend. 11. Plaintiff A. W. is seventeen years old and at all relevant times resided in the state of Colorado. At the time of the filing of the complaint or subsequent thereto plaintiff was incarcerated within Gilliam. She brings this action by and through her father, J. W., as Next Friend. 12. Plaintiff D. M. is fourteen years old and at all relevant times resided in the

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state of Colorado. At the time of the filing of the complaint or subsequent thereto plaintiff was incarcerated within Gilliam. He brings this action by and through his mother, R. M., as Next Friend.
13. The defendants have subjected the plaintiffs to the unconstitutional conditions described in the amended complaint
14. Plaintiffs bring this action under pseudonyms in order to preserve confidentiality and protect themselves from embarrassment and humiliation.
DEFENDANTS 15. Defendant Barbara McDonnell is the Executive Director for the Department of Human Services for the State of Colorado. In that capacity, she is responsible for promulgating rules and regulations necessary for the care and custody of children in facilities operated by the Department of Human Services; for assuring the provision of mental health services to children in state facilities; for establishing and enforcing criteria for detention and custody; and for the supervision and control of Gilliam. Plaintiffs bring this action against this defendant in her official capacity. 16. Defendant F. Jerald Adamek is the Director of the Division of Youth Services ("DYS"), Department of Human Services, for the State of Colorado. In that capacity he is responsible for the supervision and control of Gilliam, and the health, welfare and safety of children confined in the facility. Plaintiffs bring this action against this defendant in his official capacity. 17. Defendant Velvia Garner is the Director of Gilliam. In that capacity, she is responsible for the care and custody of the children confined at the Gilliam; for establishing,

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administering and enforcing policies and procedures for Gilliam; for the maintenance and operation of the physical plant; for the hiring, firing, training and supervision of Gilliam staff; and other duties related to the maintenance and operation of Gilliam. Plaintiffs bring this action against this defendant in her official capacity.
18. Defendant School District No. 1 is the government entity responsible for providing educational services, including special education services, to children confined in Gilliam.
19. At all relevant times the defendants have acted, and continue to act, under color of state law to deprive plaintiffs and the class they represent of their rights, privileges, and immunities under the Constitution and laws of the United States.
CLASS ACTION 20. Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The class consists of all children who are currently confined, have been confined during the two years prior to the filing of the complaint, or in the future will be confined in Gilliam. 21. The members of the class are so numerous that joinder of all members is impracticable. In recent months the population of Gilliam has regularly been more than 175, and at times it has exceeded 200. In addition, there are questions of law and fact common to members of the plaintiff class regarding the defendants' policies and practices and the conditions at Gilliam. The claims of the named plaintiffs are declaratory and injunctive in nature and are typical of the claims of the members of the plaintiff class. The named plaintiffs and their next friends are committed to the prosecution of this action, and plaintiffs'

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attorneys, who are experienced in institutional class representation, will fairly and adequately protect the interests of the members of the class.
22. By their policies and practices, the defendants have acted, and continue to act, on grounds and in a manner generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
23. The injuries suffered by the named plaintiffs and the members of the plaintiff class as a result of the policies and practices of the defendants are capable of repetition, yet may evade review, thereby making class relief appropriate.
FACTUAL ALLEGATIONS A. Characteristics of the Facility and Population
24. Gilliam is a 64 room, two-story secure juvenile detention facility located at 2844 Downing Street, in the City and County of Denver, Colorado.
25. The facility has two residential wings; each wing is composed of three living areas called "pods," connected by a control center. Adjacent to the control center in each wing there are three seclusion rooms. The facility also has classrooms, a cafeteria, a gymnasium, and a small outdoor recreation area. The compound has chain-link fencing; metal poles leading to the top of the compound are greased to prevent children from escape.
26. Defendants detain male and female juveniles in Gilliam after the children are taken into custody for alleged violations of the law, or alleged probation violations. Many of the children detained in Gilliam have not been found guilty of delinquent acts, but are detained pending adjudication of the charges against them. Other children in Gilliam have been adjudicated delinquent and are awaiting placement or commitment to other Colorado

Department of Human Services institutions. Of the children awaiting placement, some are awaiting placement in foster care, non-secure group homes, or other community programs. Some children, too, have been sentenced to spend up to 45 days in Gilliam after being adjudicated delinquent Still other children are detained for purposes of evaluation. Yet other children are detained while awaiting trial after direct riling in adult court, or pending the outcome of proceedings aimed at transferring them to adult court
27. Gilliam has 64 rooms designed for single occupancy, but by designating a few slightly larger rooms as double occupancy, defendants have deemed Gilliam to have a 78 bed capacity. Population at the facility has consistently and dramatically exceeded even that number for several years. For fiscal year 1993-1994 the average daily population (through September, 1994) was 154. In October, 1994, the population was consistently above 175, and sometimes exceeded 200.
28. Length of stay at Gilliam ranges from less than a day to many months. A significant number of children spend several months confined in the facility pending adjudication, disposition and placement or commitment
29. Detained children may range from 10 to 21 years of age. Offenses for which children may be detained range from relatively minor offenses (e.g. traffic offenses or parkmunicipal misdemeanors) or violations of probation (e.g., orders to attend school or report to probation officers), to serious offenses. Children are also held at Gilliam who are dependent or neglected children, or who are runaways, on violations of court orders such as running away from placement.

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B. Impact of Overcrowding 30. Overcrowding at Gilliam has caused and continues to cause serious problems in
every aspect of the operation of the facility, resulting in inadequate educational services; inadequate monitoring and supervision of children, including those who are suicidal or undergoing emotional crises; inadequate medical and mental health services; interference with children's right to reasonable visitation and access to the courts; insufficient exercise, recreation and other program activities; and inhumane, unhealthy, unsafe living conditions.
31. Defendants confine as many as five children in rooms designed for one. In slightly larger rooms, defendants confine as many as eight children. Children are routinely required to sleep on thin mattresses on the floor and are subjected to other inadequate living conditions.
32. Defendants confine children in locked rooms for periods that are unhealthy and inhumane. Whenever population reaches 135, staff at Gilliam operate living pods on a "halfin/half-out" policy. This means that at times when the children would otherwise be allowed out of their rooms, only half the children at a time are allowed to be out. The other half remain locked in their rooms. Children who are not selected to go to school (more than half of the population) may spend twenty or more hours per day locked in their rooms, even though they are not being disciplined.
33. Defendants subject children confined in locked rooms to inhumane conditions. The only recreational items children may have during the many hours they are locked in their rooms are two books, a Bible and a deck of cards (or a specified number of letters instead of one of the books). As a consequence of lack of stimulation and sensory deprivation, many

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children sleep or simply lie on their beds for long periods during the day. 34. Defendants provide inadequate supervision and monitoring of children.
Because of understaffing and overcrowding, there is often only one staff person on duty to supervise youth in living pods, and one person at a control booth, charged with the duty of monitoring the seclusion rooms. This results in dangerously inadequate monitoring of children confined because of suicide risk, out-of-control behavior, or for disciplinary reasons.
35. Defendants have inadequate capacity to respond to emergencies such as behavioral disturbances, fires, or other situations requiring evacuation.
36. Defendants unreasonably restrict children's right to visitation with their families. Because of overcrowding and understaffing, visiting hours are severely limited and parents must set up formal appointments to see their children.
37. Defendants interfere with children's access to counsel. Children are brought out in groups for attorney interviews prior to their detention hearing; interviews occur in a public area where others are able to hear conversations between attorney and client Children's access to counsel by telephone is unreasonably restricted. Defendant also fail to provide children with meaningful access to the courts to redress complaints about conditions of their confinement C. Inadequate Living Conditions
38. Defendants cause children on the living units to sleep in small, locked rooms that are small and bare, without sinks or toilets. The rooms contain, at most, one or two metal framed beds covered with thin mattresses. In many rooms, children are forced to sleep on thin mattresses on the floor. In some of the rooms the mattresses are squeezed so closely

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together that there is barely room to walk between them or to open the door to the room. There is a small window in the door, and a frosted window to the outdoors. The only decoration, if any, consists of photographs or pictures from magazines which must be placed on a limited area on one wall of the room. Children have little or no physical space, and are constantly in the presence of several other youth. There is inadequate ventilation, heating and cooling in the rooms, and the rooms often smell of sweat and urine. The walls of some of the rooms are smeared with blood, urine, or feces.
39. Defendants fail to provide adequate staff to provide confined children with reasonable use of toilet facilities. Because all but the seclusion rooms lack toilets, children must knock on the door of their room and wait for a staff person to individually unlock it so that the child may go to the bathroom-. Because living units may have twice or three times as many children as the rated capacity, this means that children wait unreasonable amounts of time to use the toilet In some cases, children have been forced to urinate or defecate in their clothes or on the bare floor.
40. Seclusion rooms at Gilliam are furnished with toilets, but because defendants confine as many as three children in the rooms, some children are forced to sleep and sit with their head in close proximity to the toilet. Also, since there are no dividers for privacy, children must use the toilet in full view of other children.
41. Defendants fail to maintain the plumbing in Gilliam in adequate and sanitary condition. In each living unit, approximately 40 to 60 children use the bathroom; the sinks, toilets and drains are frequently stopped up or otherwise unusable. The bathrooms often have mold and human excretions on the floors, fixtures and walls.

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D. Violence and Unsafe Practices 42. Defendants fail to provide a safe environment for children in Gilliam.
Numerous assaults, sexual assaults, suicide attempts and institutional disturbances have occurred and continue to occur in the facility because of overcrowding and understaffing.
43. Defendants fail to protect children from assaults and abuse from other residents. Vulnerable children are forced to give up food or perform humiliating acts for older, more aggressive youth under the threat of physical violence. Also, children have suffered injuries as a result of assaults or fights at Gilliam. Some of these incidents resulted in broken bones, wounds requiring sutures, and other injuries necessitating medical treatment Other children have been sexually assaulted by youth at Gilliam. All of the above acts are a result of the defendants' failure to adequately supervise the children within the facility.
44. Defendants subject children who are physically out of control to dangerous and humiliating practices, including the use of mechanical restraints. Defendants fail to provide adequate mental health intervention for children placed in mechanical restraints or isolation, including children on suicide watch. Defendants fail to properly visually monitor children who are placed in mechanical restraints or isolation, including children on suicide watch. E. Inadequate Classification and Screening
45. The defendants do not adequately separate and classify children in Gilliam by offense, age, size, and temperament As a result of overcrowding and the inadequate policies and practices of the defendants, small, young, and otherwise vulnerable children in the living units are subjected to threats, intimidation, and assaults from other youngsters in the units.
46. Defendants fail to provide for appropriate seclusion of children for disciplinary
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or other purposes. Because of overcrowding, seclusion rooms have been and are used for the confinement of as many as three children. Children who are on "suicide watch" because they are suicide risks are sometimes housed with children being punished for assaultive behavior, or other rules violations; or they are housed with children who themselves have been victims of assaults.
47. When children are first admitted to Gilliam, the defendants fail to provide adequate psychological or psychiatric screening for depression, mental illness, or other psychological infirmities.
48. Defendants fail to ensure that children who are not a danger to themselves or to the community and do not need secure detention are released or placed in non-secure alternatives. Defendants fail to provide adequate alternatives to secure detention for such children. F. Inadequate Education. Recreation and Programming
49. Overcrowding and understaffing severely interfere with the provision of rehabilitative and treatment services to confined children.
50. The defendants fail to provide an adequate educational program for children at Gilliam. As a result of overcrowding and the inadequate policies and practices of the defendants,.less than half the children in Gilliam attend school on any given day. Of the children who attend school, many do not receive academic programming in conformity with state educational requirements.
51. Defendants confine a substantial number of children in Gilliam who are eligible for and require special education services. Defendants fail to provide these children with
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adequate special education services. Defendants fail to adequately identify, assess, or evaluate children to determine whether they have special needs, and how such special needs can be met. Defendants fail to develop appropriate individualized education plans for children who need special education or to ensure parental involvement or appointment of surrogate parents for these children. Defendants fail to provide related services, such as speech therapy and psychological therapy, to children with disabilities who need such services to benefit from their education. Defendants fail to obtain adequate information from schools that children attended prior to their detention at Gilliam, in order to properly ascertain the children's special education needs. Defendants fail to employ adequately trained, certified special education teachers to provide special education services to children who need these services at Gilliam.
52. Defendants fail to provide children in Gilliam with adequate recreational time. Because of overcrowding and understaffing, children receive only half the scheduled recreational time and spend the other half locked in their rooms.
53. Defendants fail to provide children with adequate outdoor and indoor exercise, including large muscle exercise. Defendants deny many children needed exercise due to overcrowding, shortage of staff, for administrative reasons, or as a method of discipline.
54. Children confined in seclusion for disciplinary or other reasons are allowed out of their rooms only for an hour per day (excluding meals), and in that time must shower, do their laundry and exercise. In addition, some of the children on disciplinary status are required to eat meals in their room. Some children are permanently confined in seclusion rooms, even though the appropriate period of punishment for specific acts has long since

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passed. 55. As a result of overcrowding and understaffing, children are subjected to
arbitrary and unfair disciplinary practices.. Staff use room confinement as the sanction for most violations of institutional rules, regardless of how minor the violation. In addition, staff sometimes inappropriately use mechanical restraints or restrain children to fixed objects. Staff also use group punishments, and other inappropriate disciplinary measures. G. Inadequate Staffing
56. Defendants fail to provide adequate staff to supervise and protect children in the facility. The facility is chronically understaffed. There are not adequate staff to make classification decisions, monitor children in the facility, protect children from violence or provide rehabilitative services. The lack of adequate staff results in many children unneccessarily suffering injuries and being locked in their rooms.
57. Overcrowding and understaffing cause defendants to curtail school or other programming. Because of crowding and inadequate staff to handle children, staff eat together in the cafeteria to provide more of a presence. This means that there are even fewer staff on the living units to monitor children left on the units, and that children often have only 15 minutes to eat their meals. Concern over potential violence causes staff to keep children locked in their rooms for many more hours than would be the case absent that concern.
58. Defendants fail to provide adequate staffing and emergency response procedures to assure the safety of children in case of fire or other institutional disturbances.
59. Defendants fail to provide adequate training to staff in safety, emergency procedures, crisis intervention, behavior management, use of'restraints and seclusion,
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childrens' rights and institutional policies and procedures. H. Medical, Dental, and Mental Health Care
60. Defendants fail to provide confined children with adequate medical, dental and mental health care. Defendants fail to provide children with adequate medical, dental and mental health screening or examination. Defendants fail to provide sufficient qualified staff to meet the medical, dental and mental health needs of confined children. Defendants fail to provide adequately for children who are suicidal or in emotional crisis. Defendants also fail to provide adequately for segregation of children suffering from contagious diseases or needing medical isolation. I. Knowledge of Overcrowding and Inadequate Conditions
61. • Defendants have long been aware of serious problems at Gilliam. In 1993 and 1994, the Colorado Department of Public Health and Environment conducted physical inspections of Gilliam and presented its reports to defendants. The 1993 report found the facility overcrowded and understaffed, with many continuing violations in "critical" areas. The 1994 report found that youths were being double and triple bunked in most of the pods throughout the facility, and that youths were even being double bunked in seclusion rooms. The reports in both years found dozens of violations of state codes, regulations, and professional standards. Violations included malfunctioning plumbing and occluded drains, filth (including blood, mucus, and other bodily fluids), dust, mold, rust and debris in various parts of the facility, fire safety hazards, inadequate sanitation and food storage, and extremes of temperature (hot and cold) in parts of the facility, inadequate lighting in showers, blockage and filth in heating, air conditioning, and ceiling vents, unrepaired damage to walls, ceilings,
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carpets and stairways, and dirty or tattered bed linens, blankets, and mattresses. 62. The 1992 Performance Audit of the Colorado Juvenile Justice System found
state-operated facilities, including detention facilities, in a near-crisis state. The Audit found that overcrowding had produced inadequate supervision of youth, backlogs of youth awaiting placement, increased employee turnover, substandard health conditions, and non-compliance with educational requirements.
63. A 1991 report to DYS on specifically addressed overcrowding in state facilities. The report documented and discussed the dangers of overcrowding for children and staff in detention centers and other state facilities, and its impact on the rehabilitative mission of the Division.
CONFINEMENT OF NAMED PLAINTIFFS 64. Prior to the filing of the complaint plaintiffs were taken into custody under the provisions of the Colorado Childrens's Code. They have been subjected to the conditions of confinement and the defendants' policies and practices complained of herein.

NO ADEQUATE REMEDY AT LAW 65. As a proximate result of the conditions of confinement and the policies, practices, acts, and omissions of defendants complained of herein, plaintiffs have suffered and continue to suffer serious and irreparable physical and psychological harm. Plaintiffs have no plain, adequate, or complete remedy at law to redress the wrongs described herein. Plaintiffs will continue to suffer irreparable injuries from the conditions of confinement in Gilliam and the policies, practices, acts, and omissions of the defendants unless this court grants the
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injunctive relief requested by plaintiffs. LEGAL CLAIMS
66. For plaintiffs' legal claims, they reallege paragraphs 1 through 60 above, as if fully set forth herein, and further allege:
FIRST CLAIM 67. The conditions of confinement in Gilliam and defendants' policies, practices, acts, and omissions complained of herein subject plaintiffs to denial of due process of law, equal protection of the law, the right to privacy, the rights to free speech and free association, and access to the courts and counsel, in violation of the First, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution.
SECOND CLAIM 68. Defendants' policies, practices, acts, and omissions complained of herein, and in particular defendants' failure to provide plaintiffs with disabilities with a free and appropriate public education, deprive plaintiffs of rights guaranteed them by §504, and the IDEA.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray that this court A. Assume jurisdiction of this action; B. Permit plaintiffs to proceed in pseudonym; C. Issue an order certifying this action to proceed as a class action pursuant to Rule 23 (a) and (b)(2) of the Federal Rules of Civil Procedure; D. Issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule
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57 of the Federal Rules of Civil Procedure, that the conditions of confinement in Gilliam and the policies, practices, acts and omissions of the defendants complained of herein:
(1) subject plaintiffs to denial of due process of law, equal protection of the law, the right to privacy, the rights to free speech and free association, and access to the courts and counsel, guaranteed by the First, Fourth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution.
(2) deprive plaintiffs with disabilities of their right to a free and appropriate public education, guaranteed by §504 and the IDEA.
E. Issue preliminary and permanent injunctions prohibiting the defendants from confining any plaintiffs in Gilliam, or, in the alternative, issue preliminary and permanent injunctions restraining and prohibiting defendants from confining any plaintiffs in Gilliam unless and until defendants provide all of the following:
(1) a population in the facility that is within the facility's approved capacity;
(2) prompt release or placement of children in non-secure facilities when appropriate;
(3) a safe environment, free from threats of physical assaults by staff or other confined youth;
(4) an adequate classification system; (5) adequate psychological or psychiatric screening for children admitted to the facility; (6) adequate medical screening for children admitted to the facility;

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(7) clean, safe and adequate living space for the children; (8) a bed and mattress for each child incarcerated in the facility; (9) adequate numbers of qualified staff to provide care and custody for children in the facility; (10) adequate monitoring of children in seclusion, and those on disciplinary or suicide status on living units; (11) an adequate educational program; (12) an adequate program of special education and related services for children with disabilities; (13) adequate medical care; (14) adequate mental health care; (15) daily opportunities for large muscle exercise and outdoor exercise when the weather is not inclement; (16) adequate, safe indoor recreation; (17) adequate training for staff with responsibility for care and custody of children in the facility; (18) ensure that children confined in the facility are not subjected to arbitrary and unfair disciplinary practices, including the inappropriate use of seclusion and mechanical restraint; (19) ensure that children confined in the facility have reasonable access to the courts and to their attorneys; (20) adequate heating, cooling, and ventilation in rooms on the living units;
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and fixtures on the living units; ..i adequate access to toilets for children in
es for fire and institutional disturbances;

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actions restraining and prohibiting defendants

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where there exist the conditions • overcrowding.

G. O d e r the ccu::::i:-.;V.f; to ^-.•;!o;- :r.i implement a comprehensive plan for

rorn: ;:;uio:i of ihi CCM:':::O::P of co:::1n:::r.^r.: ;:-.d the correction of the unlawful policies, r r a : : ; " - " . pc-s. r --^ o.r : -^ r- •^-•r^n-'-d r" ;; -rdn, and to submit this plan to the court and

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the pendency of this action.

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'.. costs of this proceeding, pursuant to 42

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:!. hisr : >:;:.;,; L ..,„, ::).'. i-: ...: :,." '. : r, \J this court seems just and proper.

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DATED: this %A~ day of February, 1995.
David H. Miller Legal Director AMERICAN CIVIL LIBERTIES UNION
OF COLORADO 400 Corona Street Denver, Colorado 80218 (303) 777-5482 Frank N. Dubofsky CANYON CENTER BUILDING 1881 9th Street, Suite 210 Boulder, CO 80302 (303) 447-0201 Susan L. BurrelT Maria F. Ramiu* Loren M. Warboys YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94104 (415) 543-3379 ATTORNEYS FOR PLAINTIFFS
'Admitted Pro Hac Vice 21

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this ^S^Ldzy of February, 1995, she did personally serve a true and correct copy of the foregoing Amended Complaint by hand delivering same to the following counsel:

Toni Jo Gray Assistant Attorney General 1525 Sherman Street, Fifth Floor Denver, CO 80202

Michael H. Jackson, Esq. 1120 Lincoln Street, Suite 1603 Denver, CO 80203

COUNSEL FOR THE INDIVIDUAL DEFENDANTS

COUNSEL FOR THE DEFENDANT SCHOOL DISTRICT

'Admitted Pro Hac Vice 22

 
 E. R. v. McDonnell

IN THE UNITED STATES DISTRICT COljRT FOR THE DISTRICT OF COLORADO
Civil Action No. 94-N-2816

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E. R., a minor, by and through his Next Friend, L. R.; and A. W.; a minor, by and through her Next Friend, J. W.; on behalf of themselves and all others simirarly~sframetba-f£'fc£*iN-

Plaintiffs, v.

2 61995

BARBARA McDONNELL, Executive Director of the Department of Human' State of Colorado; F. JERALD ADAMEK, Director of the Division of'YuuuVS1 Department of Human Services for the State of Colorado; VELVIA GARNER, Director of the Phillip B. Gilliam Youth Services Center, all in their official capacityrand SCHOOL DISTRICT NO. 1, COUNTY OF DENVER, STATE OF COLORADO,

Defendants.

SETTLEMENT AGREEMENT AND ORDER
INTRODUCTION This Settlement Agreement settles and resolves the issues in E.R.. et al., v. McDonnell, et al., Civil Action No. 94-N-2816. The case is a federal civil rights action filed December 9, 1994, on behalf of youths detained at the Phillip B. Gilliam Youth Services Center ("Gilliam"), located in Denver, Colorado. Plaintiffs' First Amended Complaint requested declaratory and injunctive relief from conditions and practices at Gilliam that have allegedly .denied them due process of law, equal protection of the law, the right to privacy, the rights to free speech and free association, and access to the courts and counsel, guaranteed by the First, Fourth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution. Plaintiffs also set forth claims for declaratory

and injunctive relief from defendants' practices that allegedly deprive plaintiffs with disabilities of their right to a free and appropriate public education, guaranteed by Section 504 of the Rehabilitation Act of 1973, and the Individuals With Disabilities Education Act (IDEA).
By a Special Order of Reference from Judge Edward W. Nottingham, dated January 3, 1995, the parties participated in settiement discussions before the Honorable Donald E. Abram, Magistrate Judge.
RECITALS AND REPRESENTATIONS 1. The parties agree that the terms of this Settlement Agreement constitute an appropriate resolution of plaintiffs' claims, and that this settiement is fair, reasonable and adequate to protect the plaintiff class within the standards of Federal Rules of Civil Procedure, Rule 23(e). 2. The parties enter into this Settiement Agreement in order to remedy conditions at Gilliam and to ensure that no youths at Gilliam will suffer deprivations of any federal rights. The terms of this Settiement Agreement extend no further than necessary to remedy the conditions at Gilliam that allegedly caused the deprivation of constitutional and statutory rights of the plaintiffs, and are the least intrusive means to remedy any violation of federal rights. The parties agree that the terms of this Settlement Agreement will not have an adverse impact on public safety or the operation of the criminal justice system. The parties also agree that the terms of this Settiement Agreement are adequate to remedy any alleged deprivation of federal rights. 3. This Settlement Agreement is entered into by plaintiffs' counsel on behalf of the named plaintiffs, by and through their next friends, and all youths who are now or will in the future be confined in Gilliam; counsel for the School District No. 1, County of Denver ("DPS Defendant") on behalf of the DPS Defendant; and the defendants Barbara McDonnell, F. Jerald

Adamek and Velvia Gamer. JURISDICTION
4. This Court has jurisdiction of this action (28 United States Code §§ 1331,"" 1343(a)(3), 1343(a)(4), 2201, 2202, F.R.C.P., Rules 57, 65) and personal jurisdiction over the defendants.
PARTIES AND THE SETTLEMENT CLASS
5. The plaintiffs in this action are the named plaintiffs, by and through their next friends, and the class of all youths who are now or will in the future be confined in Gilliam. This action is properly maintained as a class action under Federal Rules of Civil Procedure, Rule 23(a), and appropriately comes within the provisions of Federal Rules of Civil Procedure, Rule 23(b).
6. The defendants are Barbara McDonnell, in her official capacity as Director of the Colorado Department of Human Services ("DHS"); F. Jerald Adamek, in his official capacity as Director of the Division of Youth Services ("DYS"), Colorado Department of Human Services; Velvia Gamer, in her official capacity as Director of the Phillip B. Gilliam Youth Services Center ("Gilliam") (collectively, "State Defendants"); and the School District No. 1, County of Denver ("DPS Defendant").
7. This Settlement Agreement is binding on all defendants, their successors, officers, agents, employees, and all other persons acting in concert or participation with them. It applies to the named plaintiffs, and all youths who are currently or in the future may be confined in Gilliam.

NOTICE TO THE CLASS AND POSTING OF SETTLEMENT AGREEMENT 8. Pursuant to Federal Rules of Civil Procedure, Rule 23(e), the defendants shall,
within fourteen (14) days after the Court's approval of the proposed notice to the class,' post the notice in the form approved by the Court in conspicuous places in living, school, and visiting areas at Gilliam. Members of the class shall have thirty (30) days after such posting within which to submit to counsel for the plaintiffs any objections or inquiries they may have. Plaintiffs' counsel shall promptly forward copies of such objections or inquiries to defendants' counsel and to the Court On the copies submitted to the defendants, if the youths request, their names will be deleted. Following the expiration of the time fofsubmitting objections, the Court will schedule and hold a hearing to consider approval of the Settlement Agreement Within fourteen (14) days of the Court's approval of the Settlement Agreement, the defendants shall post copies of the general terms of this Settlement Agreement in housing, school and visiting areas of Gilliam. Thereafter, staff shall make reasonable, good faith efforts to maintain the posting of the Settlement Agreement in those areas for as long as it is in effect
PURPOSE STATEMENT 9. This Settlement Agreement is intended to assure that youths who need to be detained in secure confinement will be held under constitutional, safe, sanitary and humane conditions, and will receive care and treatment in accordance with their individual needs. 10. The parties accept this Settlement Agreement knowing that future federal legislation could place limitations on consent decrees in institutional litigation. The parties intend that this Settlement Agreement remain in full force and effect if such legislation is

enacted. The parties further intend that, if any provisions of this Settlement Agreement are affected by such legislation, such provisions are severable and the surviving provisions will remain in full force and effect
DEFENDANTS* OBLIGATIONS ENFORCEMENT OF POLICIES AND PROCEDURES 11. The State Defendants shall enforce compliance with all policies and procedures in the Division of Youth Services Policies and Procedures Manual and the Gilliam Implementing Procedures Manual, and any addenda thereto. Many of the issues raised in this lawsuit are already referenced in those policies. To clarify and further supplement these policies the parties agree as set out below. If any such policies and procedures are inconsistent with this Settlement Agreement, the Settlement Agreement is the controlling authority. During the term of this Settlement Agreement, those policies shall not be changed without good cause, and only in a manner consistent with this Settlement Agreement.
POPULATION AND MANAGEMENT 12. The State Defendants shall confine no more than seventy-eight (78) youths in Gilliam. The State Defendants shall have ninety (90) days after approval by the Court to implement this population limit. 13. Youths shall not be detained within Gilliam solely because they are abused or neglected. Except with respect to youths accused of violations involving the possession or use of a handgun or other deadly weapon, status offenders shall not be detained within Gilliam absent a judicial finding of violation of a valid court order. 14. Because no more than 78 Denver youths can be housed at Gilliam pursuant to
r - •

this agreement, any other youths under the jurisdiction of the Denver Juvenile Court may be placed, pursuant to court order for detention or sentence, at new facilities provided by Denver and the State Defendants.
CLASSIFICATION AND DETENTION SCREENING 15. The State Defendants shall require adherence to detention criteria at intake, as provided by C.R.S. § 19-2-1601 et se£. (Supp. 1994); and the State Defendants shall provide alternatives to secure detention for appropriate youths. 16. The State Defendants shall adhere to a classification system to meet the individual needs of confined youths, based, inter alia, on their offense, age, size7'separating violent, aggressive youths from vulnerable youth; and addressing the needs of youths with particular medical or mental health conditions, or other special housing needs.
STAFFING 17. The State Defendants shall provide staffing at a ratio of at least one (1) child careworker per nine (9) youths during waking hours, and one (1) child careworker per sixteen (16) youths during sleeping hours. At least one staff person shall be physically present in each living unit whenever children are present in the living unit.
GENERAL CONDITIONS 18. Each child confined in Gilliam shall be provided a bed off the floor. 19. The State Defendants shall allow youths to have personal items in their sleeping rooms. These items include but are not limited to photographs, writing or art materials and journals. The State Defendants shall provide youths with secure storage space in the living units to place such materials. The State Defendants may restrict the possession of certain
r •

items based on legitimate security concerns. " ~ 20. The State Defendants shall cease the use of lockdowns (including "half-in-halfout"), except as needed in emergencies where the safety and security of youths are in"J immediate jeopardy. The State Defendants shall develop and implement procedures, programming and staffing patterns to assure that youths are out of their rooms for a significant amount of time when they are not in school, eating or sleeping.
21. Any youths detained in Gilliam for more than fourteen (14) days following commitment or placement order shall immediately be provided all treatment and program services mandated for youths held within long term treatment facilities-for committed or placed youth.
22. The State Defendants shall assure that.youths in rooms lacking toilets are provided immediate access to toilet facilities upon request.
23. The State Defendants shall increase visiting hours for relatives and shall allow relatives to visit daily.
24. The State Defendants shall correct all deficiencies identified as health or sanitation priority items in inspections by the Colorado Department of Public Health and Environment (and any other agencies charged with inspecting Gilliam on health, sanitation, fire safety and emergency response). Priority (critical) items shall be corrected within thirty (30) days and non-priority item in ninety (90) days, unless the time periods are extended by the inspecting agency. Copies of all such reports or inspections issued during the jurisdictional period of this Settlement Agreement shall be sent to plaintiffs' counsel, together with reports or records of corrective action.

MEDICAL, DENTAL AND MENTAL HEALTH
25. The State Defendants agree that a medical professional or qualified health trained staff shall provide medical and dental screening for youths admitted to the facility. There shall be immediate referral for further diagnosis and treatment for medical conditions or illness discovered during screening. All screening records executed by qualified health trained staff shall be reviewed by a medical professional within twenty-four (24) hours.
26. At least one (1) time per week the supervising physician shall make a regularly scheduled on-site visit to Gilliam. The State Defendants shall provide at least sixteen (16) hours per day on-site medical coverage by trained medical professionals.
27. The State Defendants agree that a mental health professional, a medical professional trained by mental health professionals, or qualified staff trained by mental health professionals shall provide mental health, suicide risk, intoxication and withdrawal screening for youths admitted to the facility. There shall be immediate referral and provision of mental health services by qualified mental health professionals for conditions discovered during screening.
28. To meet the needs of the youths at Gilliam who require mental health services, the State Defendants shall assure that there is at least one (1) full-time psychiatric nurse, psychiatrist, psychologist, or licensed social worker provided by the community mental health center on-site. The State Defendants shall develop and implement policies and procedures specifying the responsibilities of mental health staff, including but not limited to responsibility for referral services; emergency services and ongoing treatment for youths who are suicide risks or who have mental health or emotional problems; administration and monitoring of
8
r ~

psychotropic medication (in coordination with medical staff); staff training on mental health ' issues and suicide risks; mental health aspects of crisis intervention (including approval/monitoring of restraints and monitoring of youths in isolation or transfer of'youths to mental health facilities); and the development of special programs for youths having problems in regular living unit programs.
29. The State Defendants shall develop, implement and enforce policies assuring that youths on suicide status in seclusion rooms, or youths on suicide status in living units, are monitored at least every four (4) minutes, and that youths determined to be at very high risk for suicide shall be on one-to-one supervision until they are assessecTby a mental health professional. Youths on suicide status shall immediately be evaluated by a mental health professional or a medical professional trained by a mental health professional.
30. The State Defendants shall develop, implement and enforce policies to assure that youths confined in seclusion rooms or youths confined in rooms on living units for out-ofcontrol behavior shall be monitored every 15 minutes or such lesser time as may be determined by a medical or mental health professional. Youths placed in mechanical restraints shall be monitored at least every four (4) minutes or on one-on-one supervision, as determined after consultation with a medical or mental health professional.
DISCIPLINE, SECLUSION & RESTRAINT 31. The State Defendants shall develop, implement, and enforce procedures assuring that youths will not be placed in seclusion rooms for safety and security reasons for longer than one (1) hour unless the supervisor or person in charge personally meets with the youth and assesses the need for continued seclusion. Youths in temporary seclusion shall be

monitored as directed by medical or mental health professional staff, and must be released as soon as they have regained control. The State Defendants shall provide administrative review after youths are placed in temporary seclusion for out-of-control behavior.
32. No juvenile shall be placed in seclusion as a disciplinary sanction until a due process hearing has been conducted. The hearing will be held within seven (7) days after the offense with 24 hours notice to the juvenile. The juvenile may waive the 24-hour notice requirement so that the hearing may be conducted more quickly. The maximum time a child may be confined for any single disciplinary offense shall be five (5) days; there must be supervisory review of any seclusion lasting more than a day, and youth's must receive counseling. The State Defendants shall provide all youths with a rule book describing all punishable behaviors, setting out the range of penalties for each offense.
33. The State Defendants shall not use seclusion rooms for general housing of youth. Seclusion rooms are to be used only for short term confinement of youths exhibiting out-ofcontrol behavior, or for short term disciplinary confinement, consistent with the maximum time limits imposed by institutional policies and procedures. The State Defendants agree not to use consecutive periods of confinement to extend periods of confinement beyond the maximum allowed in policies and procedures. The State Defendants shall ensure that special programs for youths having problems in the regular living units are developed with the assistance of mental health staff.
34. The State Defendants shall not permit employees to restrain youths to fixed objects.
35. The State Defendants shall enforce existing policies and procedures that govern
10

the use of mechanical restraints for out-of-control behavior, imposing strict time limits and •permitting use of restraints only as a last resort and requiring prior review and authorization by supervisory staff. The State Defendants shall impose a maximum time limit of one hour for restraint use, and shall refer for a mental health screening youths who have not regained sufficient control to be released within such time limit. Youths in restraints shall be monitored as directed by medical or mental health professional staff, and must be released as soon as they have regained control. Youths shall meet with a medical or mental health trained counselor immediately after release and shall meet with a medical or mental health professional within sixteen (16) hours after release. Restraint incidents shall be carefully reviewed by medical or mental health and. administrative staff.
ATTORNEY COMMUNICATIONS 36. Youths shall be provided with reasonable access to their attorneys and the courts, including private interview areas prior to their detention hearings. Youths shall be allowed to keep legal materials in their living units. Youths shall be permitted to complete telephone calls to their attorneys.
RECREATION AND PROGRAMMING 37. The State Defendants shall not deny youths exercise because of staff absences or youths' disciplinary status. 38. The State Defendants shall provide an on-site social services program administered and supervised by a person trained in the social or behavioral sciences. That person shall be in addition to the clinician identified in paragraph 28. The on-site program shall provide individual and group counseling; drug and alcohol services; and other supportive
11

services. TRAINING
39. Prior to posting staff on duty, all staff with responsibility for care and custody of youths in the facility (including as-needed, probationary, or temporary staff) shall receive training in safety and emergency procedures, crisis intervention, suicide risks and precautions, behavior management, use of restraints and seclusion, youths's rights, the provisions of this Settlement Agreement and the controlling policies and procedures of the Department of Human Services and the Division of Youth Services, in place of the curriculum described in DYS Policy 4.1. Curriculum subjects described in Policy 4.1 that afe-not included here will be provided during the employee's first year of service.
EDUCATION 40. The DPS Defendant, as required by law or as may be voluntarily undertaken by said defendant, shall provide all detained youths with an education program immediately following the detention hearing, but in no event later than three (3) days following the date of detention. The education program shall meet minimum state requirements for public school youths. 41. The DPS Defendant agrees that detained youths, with previously identified disabilities, shall be provided with a free appropriate public education, including special education and related services. The DPS Defendant shall meet applicable legal requirements governing assessment, identification, development or modification of Individualized Education Programs, and the provision of special education and related services to eligible youths. The DPS Defendant shall also ensure that procedural safeguards mandated by the Individuals With
12

Disabilities Education Act (IDEA) and federal regulations, are provided. 42. The State Defendants and the DPS Defendant will cooperatively develop and
implement procedures governing education services to youths at Gilliam, including, but not limited to, educational assessment at intake, facilitating access to youths by school personnel, and the provision of education services to youths on disciplinary status.
43. The DPS Defendant agrees that all education and special education obligations and responsibilities set forth in this Settlement Agreement and all necessary policies and procedures shall.be fully implemented within six (6) months from the date of the entry of the Settlement Agreement.
LIBRARY 44. The State Defendants, in consultation with the DPS Defendant shall maintain a library with a broad range of reference materials, books, and magazines, and shall assure that all detained youths have reasonable access to the library. The State Defendants shall survey detained youth about library needs at regular intervals and shall evaluate the library program on an annual basis.
ATTORNEYS' FEES 45. The parties agree that pursuant to 42 U.S.C. § 1988, 29 U.S.C. 794a, and the IDEA the State Defendants shall pay plaintiffs' attorneys' fees and costs of $80,000.00 and the DPS Defendants shall pay plaintiffs' attorneys' fees and costs of $14,000.00. The parties agree that such fees and costs are directly and reasonably incurred in proving an actual violation of plaintiffs' federal rights, and proportionally related to the relief ordered for that violation. Such fees and costs shall be paid by the defendants within fourteen (14) days of
13

the signing of this Settlement Agreement.

~

COMPLIANCE AND CONTINUING JURISDICTION

46. The defendants shall develop and implement a comprehensive plan for

remediation of the conditions of confinement and implementing the provisions of this

Settlement Agreement. Unless otherwise specified in this Settlement Agreement, the

provisions of this Settlement Agreement shall be implemented within ninety (90) days from

the date it is signed by the Court.

47. The parties recognize that the Court must approve this Settlement Agreement

before its terms become effective and binding upon any party. The "parties also acknowledge

that the State Defendants must obtain necessary funding from the State Legislature in order to

carry out the commitments specified above on or before May 31, 1995. State defendants

warrant that they shall seek the necessary funding during the 1995 legislative session.

Therefore, the parties agree that the provisions of the Settlement Agreement which require

additional funding are contingent upon the approval of the Court and the approval of any

necessary funding by the Colorado Legislature. If the Court fails to approve the Agreement

in its entirety, or if the State Legislature fails to approve any necessary funds for DYS for the

commitments specified above, upon proof thereof, no later than June 5, 1995, any party may

withdraw its consent to be bound by this Settlement Agreement. If any party exercises its

right to withdraw, this document may not be offered or received into evidence or otherwise

used in any proceeding against any party without that party's consent

48. If any of the parties withdraw from this Settlement Agreement pursuant to the

terms of paragraph 47, the parties agree to submit to the Court a proposed Scheduling and

14

Discovery Order within ten (10) days thereof. •~ 49. After court approval of this Settlement Agreement, the Court's jurisdiction over the Gilliam facility under the present proceeding, Civil Action No. 94-N-2816, shall tie" limited as set forth herein. Specifically, the Court shall retain jurisdiction only to ensure that defendants have fulfilled the obligations undertaken in this Settlement Agreement. If plaintiffs have reasonable cause to believe that defendants have failed to perform any obligation undertaken in the Settlement Agreement, after providing defendants with notice and opportunity to immediately correct the non-compliance, they may apply to the Court for a hearing regarding defendants' compliance. The Court may refer the matter to a Magistrate Judge for informal resolution or recommendation. At any hearing regarding the issue of defendants' compliance with the terms of this Settlement Agreement, plaintiffs shall have the burden of proving that defendants have failed to comply. If, after hearing, the Court finds that defendants have failed to comply, the sole remedies available to the Court shall be an order directing specific performance of the agreements herein, and, if appropriate under applicable legal principles, the issuance of contempt for failure to comply with the Court's order of specific performance. Isolated or minor incidents of noncompliance will not be regarded as a failure to comply with this Settlement Agreement for purposes of any enforcement action.
50. The State Defendants agree to hire an independent juvenile institutional expert, and DPS agrees to hire an independent education expert, both of whom shall be jointly selected by the parties to evaluate compliance with all of the terms of this Settlement Agreement. The experts shall have the right to inspect the facility, the right to interview
15

staff, subcontractors, agents, employees, youths and legal counsel privately, as needed, in order to evaluate compliance; and the right to review reports, policies, log books, files and all other relevant documents to evaluate compliance with this Settlement Agreement- Said experts shall submit compliance reports to the Court, and plaintiffs' and defendants' attorneys, in accordance with paragraph 52.
51. The defendants shall reimburse the experts for all reasonably incurred costs, including compensation for the time spent in monitoring and evaluating compliance and travel expenses.
52. The independent juvenile institutional expert shall conduct" semi-annual evaluations and compliance reviews for the first two (2) years of the terms of this Settlement Agreement. The initial review shall be accomplished within three (3) months of the Court's signing of this Settlement Agreement Thereafter the expert shall conduct annual reviews until the Settlement Agreement is terminated.
53. The independent education expert shall conduct three (3) compliance reviews, for a maximum of two (2) days per visit, during the period of the Settlement Agreement. This includes an initial, intermediate and final review.
54. Within thirty (30) days after receipt of each compliance review or evaluation (whether performed by the joint expert(s) or defendants' own staff or contractors), plaintiffs' attorneys and their representatives, together with any experts retained by plaintiffs, have the right to inspect the facility, the right to speak privately with any child, contractor or employee at the facility and the right to inspect reports, internal audits, policies, log books, files or other relevant documents to assure compliance with this Settlement Agreement. The defendants
16

shall pay for plaintiffs' reasonable attorneys fees, costs, and out-of-pocket expenses incurred

"in monitoring, evaluating or assuring, compliance with the terms of the Settlement Agreement,

55. The defendants agree that the Court will retain jurisdiction over the defendants for

a period of three (3) years after the date of approval of this Settlement Agreement. The

experts' final reports shall be prepared sufficiently before the end of the Settlement

Agreement to allow plaintiffs to move for sanctions in the event of noncompliance.

56. This Settlement Agreement is not intended to be nor will it be alleged to

constitute evidence or be an admission by any party of any liability, omission or wrongdoing

of any kind whatever, which the defendants deny.

^"

57. This Agreement sets forth all of the representations, promises, and covenants that

comprise this Agreement and there are no other representations or promises between the

parties or their counsel which have been made or have caused either party or its counsel to

enter into this Agreement, except as follows: If H.R. 667, Title HI "Stop Turning Out

Prisoners Act" (S. 400), or any similar federal legislation, becomes effective during the term

of this Settlement Agreement, in a form that would apply to this Agreement and limit or

effect its terms, the parties will amend paragraphs 2 and 56 in the form contained in the

Memorandum of Agreement to Amend Settlement Agreement executed by the parties. This

provision is material to the agreement of the parties who, upon the occurrence of the event

effectuating this contingency, here stipulate to the factual basis for the Court finding set out

in the Memorandum of Agreement.

17

Dated this - ^ " ^ day of May, 1995.

For the Plaintiffs:

Barbara McDonnell Executive Director Colorado Department of Human Services 1575 Sherman Street Denver, CO 80203 (303) 866-5800

Susan L. Burrell, Staff Attorney* Maria Ramiu, Staff Attorney* Loren M. Warboys, Executive Director* YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94194 (415) 543-3379

F. Jerald Adamek Director of Division of Youth Services 4255 S. Knox Court Denver, CO 80236 (303) 762-4695
Velvia Director, Phillip B. Gilliam
Youth Services Center 2844 Downing Street Denver, CO 80 (303) 291-8900
DEFENDANTS

David H. Miller, Legal Director AMERICAN CIVIL LIBERTIES UNION
OF COLORADO 400 Corona Street Denver, CO 80218 (303) 777-5482
-7
Frank N. Dubofsky, Es^ Q 1881 9th Street, Suite 210 Boulder, CO 80302 (303) 447-3510
ATTORNEYS FOR THE PLAINTIFFS

Admitted Pro Hac Vice 18

K
Micn^d H. Jackson, Esq Franklin A. Nachman, Es 1120 Lincoln Street, Suite 1603 Denver, CO 80203 (303) 595-0941 ATTORNEYS FOR THE SCHOOL
DISTRICT DEFENDANT
19

THE TERMS OF THIS SETTLEMENT AGREEMENT ARE APPROVED BY THE COURT, AND THE PARTIES ARE HEREBY ORDERED TO PERFORM AND COMPLY -WITH THE TERMS STATED HEREIN:

MADE AN ORDER OF COURT AND ENTERED this « _ day of

1995.

ard W. Nottingham D STATES DIS CT JUDGE

20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
"Civil Action No. 94 N 2816
CERTIFICATE OF MAILING
I hereby certify that a copy of the Settlement Agreement and Order signed by Judge Edward W. Nottingham on May 26, 1995, was mailed to the following on May 2Q 1995:
David H. Miller, Esq. Legal Director AMERICAN CIVIL LIBERTIES
UNION OF COLORADO 400 Corona Street Denver, CO 80218
Frank N. Dubofsky, Esq. CANYON CENTER BUILDING 1881 9th Street, Suite 210 Boulder, CO 80302
Susan L. Burrell, Esq. Maria F. Ramiu, Esq. YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94014
Stacy L. Worthington, Esq. Toni Jo Gray, Esq. Assistant Attorneys General Human Resources Section 1525 Sherman Street, 5th Floor Denver, CO 80203
Michael H. Jackson, Esq. 1120 Lincoln Street, Suite 1603 Denver, CO 80203
Magistrate Judge Donald E. Abram
JAMES R. MANSPEAKER, CLERK
By. I'-JJ]
Deputy Clerk

 
 E. R. v. McDonnell
; IWIIIllI
•--><••
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 94-N-2816
E. R., a minor, by and through his Next Friend, L. R.; and A. W., a minor, by and through her Next Friend, J. W.; on behalf of themselves and all others similarly situated^- Qj^

Plaintiffs,
V.

UNfTEO STATES OlSTRlCTCOURT
WNveacaa ™m
MAY 2 9 1995

BARBARA McDONNELL, Executive Director of the State of Colorado; F. JERALD ADAMEK, Director of the PivhV i »f Ynnlh iSrrrii?fll FRK Department of Human Services for the State of Colorado; VELVIA GARNER, Director of the Phillip B. Gilliam Youth Services Center, all in their official capacity; and SCHOOL DISTRICT NO. 1, COUNTY OF DENVER, STATE OF COLORADO,

Defendants.

MEMORANDUM OF AGREEMENT TO AMEND SETTLEMENT AGREEMENT
AND ORDER
INTRODUCTION This Memorandum of Agreement to Amend Settlement Agreement further states the terms and provisions which resolve the issues raised in the above captioned lawsuit For, and in consideration of, the same premises stated therein, the parties additionally agree as follows: 1. Currently pending before Congress is H.R. 667, Title III "Stop Turning Out Prisoners Act" ("STOP" or S. 400). In part, this proposed legislation would affect the settlement of lawsuits concerning prospective relief in prison conditions litigation. 2. The parties acknowledge that during the settlement of the within litigation Congress is considering different versions of STOP, and the parties do not know whether, or

in what form, STOP may be enacted into law, or limit or affect the settlement of this action.
3. Having duly considered the possible affects of STOP, such as it is currently
being considered and as it has been proposed to be amended, the parties agree that in-*the
event STOP or such similar legislation is enacted, then, to the extent such law limits or
affects the settlement of this action, the parties agree to amend paragraphs 2 and 56 of the
Settlement Agreement herein as set out below.
4. Paragraph 2 of the Settlement Agreement will be replaced with the following:
The parties enter into this Settlement Agreement in order to remedy deprivations of plaintiffs* federal rights. The terms of this Settlement Agreement extend no further than necessary to remedy the conditions at Gilliam that allegedly caused the deprivation of constitutional and statutory rights of the plaintiffs, and are the least intrusive means to remedy any violation of federal rights. The parties agree that the terms of this Settlement Agreement will not have an adverse impact on public safety or the operation of the criminal justice system. The parties also agree that the terms of this Settlement Agreement are necessary and that no other relief will remedy the deprivation of federal rights.
5. Paragraph 56 of the Settlement Agreement will be replaced with the following:
No statements contained in this Settlement Agreement may be used as evidence of any liability, omission or wrongdoing in any judicial, administrative or other legal proceeding of any kind, other than an action by plaintiffs to enforce this Settlement Agreement.
6. A new paragraph, numbered 58, will be added to the Settlement Agreement as
follows:
The parties request that the Court enter a finding as set out below (or, in the event that the language of currently proposed H.R. 667 (S. 400) is amended, or any similar federal legislation is enacted which mandates a judicial finding of a violation of federal rights to satisfy requirements in the making of a settlement of the kind previously made in this lawsuit, then, the Court shall make a finding in a form sufficient to meet that requirement):

FINDING OF VIOLATION OF FEDERAL RIGHTS The Court finds that plaintiffs' federal rights have been violated, and that the terms of this Settlement Agreement are narrowly drawn and the least intrusive means to remedy the violation of federal rights. With respect to the terms of this Settlement Agreement calling for reduction or limitation of - j population at Gilliam, the Court finds that crowding is the primary cause of the deprivation of the federal right, and no other relief shall remedy that deprivation.

THE TERMS OF THIS SETTLEMENT AGREEMENT ARE APPROVED BY THE COURT, AND THE PARTIES ARE HEREBY ORDERED TO PERFORM AND COMPLY WITH THE TERMS STATED HEREIN:

MADE AN ORDER OF COURT AND ENTERED this 1Q_ day of

1995.

Dated this Q ^ ~ ' day of May, 1995.

W. Nottingh D STATES DL ICT JUDGE
For the Plaintiffs:

Barbara McDonnell Executive Director Colorado Department of Human Services 1575 Sherman Street Denver, CO 80203 (303) 866-5800

David H. Miller Legal Director AMERICAN CIVIL LIBERTIES UNION
OF COLORADO 400 Corona Street Denver, CO 80218 (303) 777-5482

F. Jera/d Adamek Director of Division of Youth Services 4255 S. Knox Court Denver, CO 80236 (303) 762-4493
Velvia (jafner Director, Phillip B. Gilliam Youth Services Center 2844 Downing Street (303) 291-8900
DEFENDANTS

Susan L. Burrell, Staff Attorney* Maria Ramiu, Staff Attorney* Loren M. Warboys, Executive Director* YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94194 (415) 543-3379
Frank N. Dubofsky, Esq. 1881 14th Street, Suite 350 Boulder, CO 80302 (303) 447-3510
Denver, CO 80
ATTORNEYS FOR THE PLAINTIFFS

MicTtael H. Jackson, Franklin A. Nachman, 1120 Lincoln Street, Suite 1603 Denver, CO 80203 (303) 595-0941
ATTORNEYS FOR THE SCHOOL DISTRICT DEFENDANT

Admitted Pro Hac Vice

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 94 N 2816
CERTIFICATE OF MAILING
I hereby certify that a copy of the Memorandum of Agreement to Amend Settlement Agreement and Order signed by Judge Edward W. Nottingham on May Z.% 1995, was mailed to the following on May 3Q 1995:
David H. Miller, Esq. Legal Director AMERICAN CIVIL LIBERTIES
UNION OF COLORADO 400 Corona Street Denver, CO 80218
Frank N. Dubofsky, Esq. CANYON CENTER BUILDING 1881 9th Street, Suite 210 Boulder, CO 80302
Susan L. Burrell, Esq. Maria F. Ramiu, Esq. YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94014
Stacy L. Worthington, Esq. Toni Jo Gray, Esq. Assistant Attorneys General Human Resources Section 1525 Sherman Street, 5th Floor Denver, CO 80203
Michael H. Jackson, Esq. 1120 Lincoln Street, Suite 1603 Denver, CO 80203
Magistrate Judge Donald E. Abram
JAMES R. MANSPEAKER, CLERK
By. Deputy Clerk

 
 E. R. v. McDonnell
Illllllllll

J.-CO-001-006

SEP 151995

IN THE UNITED STATES DISTRICT C O U R J J A M E S R MANSPPAKFR

FOR THE DISTRICT OF COLORADO

C1FRK

Civil Action No. 94-N-2816

E.R., a minor, by and through his Next Friend, L.R.; A.W., a minor, by and through her Next Friend, J.W.; on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.
BARBARA McDONNELL, Executive Director of the Department of Human Services for the State of Colorado; F. JERALD ADAMEK, Director of the Division of Youth Services for the State of Colorado; VELVIA GARNER, Director of the Phillip B. Gilliam Youth Services Center; all in their official capacity; and SCHOOL DISTRICT NO. 1, COUNTY OF DENVER, STATE OF COLORADO,

Defendants.

ORDER APPROVING CLASS ACTION SETTLEMENT

The matter is before the Court on the parties' joint Motion For Approval Of Settlement Agreement and Memorandum Of Agreement To Amend Settlement Agreement (hereinafter "Agreement") submitted in the above captioned case. Because this case involves a certified plaintiff class, the Court must approve any resolution of the outstanding class claims under Rule 23(e) of the Federal Rules of Civil Procedure. The Court has jurisdiction under 28 U.S.C. § 1331.
INTRODUCTION The Agreement filed in this case would settle a class action lawsuit against Barbara McDonnell, F. Jerald Adamek and Velvia Garner ("State Defendants") and School District

No. 1, County of Denver, State of Colorado ("DPS Defendant"). This action challenges the conditions of confinement for children at the Phillip B. Gilliam Youth Services Center ("Gilliam"), in Denver, Colorado, and the policies and practices of State Defendants in confining juveniles therein. In return for final closure of this case, the defendants have agreed to make improvements and to undertake certain other changes at Gilliam to ensure that conditions of confinement at those facilities meet constitutional standards.
The parties submitted their joint motion for approval of the Agreement on June 15, 1995. Notice of the Agreement was prepared by the Clerk of the District Court. Defendants properly posted a copy of that Notice. Members of the class had thirty (30) days after such posting within which to submit to the Court, through counsel for the plaintiffs, any objections or inquiries they had. Following the expiration of the time for submitting objections, the Court held a hearing to consider approval of the Agreement.
Prior to the hearing on September 1, 1995, the Court reviewed the proposed Agreement. Appearing at the hearing on behalf of the plaintiff class were their attorneys of record, David H. Miller, Susan L. Burrell and Frank N. Dubofsky. The defendants were represented by their counsel of record, Thomas S. Parchman, Assistant Attorney General, on behalf of State Defendants, and Michael Jackson, on behalf of the DPS Defendants. Also present at the hearing were State Defendants F. Jerald Adamek and Velvia Garner. Ms. Sharon Johnson appeared for the DPS Defendants.
APPLICABLE STANDARD OF REVIEW Rule 23(e) of the Federal Rules of Civil Procedure provides that a class action "shall not be dismissed or compromised without the approval of the court." In addition, notice of

any proposed settlement must be given to all the class members "in such manner as the court
directs." The purpose of these requirements is to protect class members whose rights "may
not have been given adequate consideration during the settlement negotiations." In re New
Mexico Natural Gas" Antitrust Litigation. 607 F. Supp. 1491, 1497 (D. Colo. 1984). To be
approved by the Court, a class action settlement must be fair, adequate and reasonable to the
class as a whole. Id (discussing factors a court may weigh in making this determination).
See, Officers for Justice v. Civil Service Commission. 688 F.2d 615 (9th Cir. 1982). A
settlement hearing, however, is not a substitute for a trial. The Court's role is more limited.
As explained by the Ninth Circuit Court of Appeals:
[T]he court's intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole is fair, reasonable and adequate to all concerned. Therefore, the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits.
The proposed settlement is not to be judged against hypothetical or speculative measure of what might have been achieved by the negotiators.
Officers for Justice. 688 F.2d at 625.
A consensual resolution of a dispute is always preferred. Such consensus can only be
founded upon compromise. Thus, the fact that the Agreement reached does not address each
and every issue raised in the Complaint does not in and of itself give cause to question the
fairness of the Agreement or the process involved in reaching it.
With these standards in mind, the Court will assess adequacy of notice and the fairness
of the Agreement in that order.

ADEQUACY OF NOTICE Pursuant to Federal Rules of Civil Procedure, Rule 23(e), within fourteen (14) days after the Court's approval of the Notice to the class, the defendants posted that Notice in conspicuous places in living, school, and visiting areas in Gilliam at places described on their certificates of service. Additionally, counsel for the plaintiff class members in their juvenile cases were provided notice of the Agreement and copies of the Agreement were also posted within the juvenile courts of Denver, Colorado, both at Gilliam and at the City and County Building, 1437 Bannock Street, Denver, CO 80202. Members of the class had thirty (30) days after such posting within which to submit to counsel for the plaintiffs any objections or inquiries they may have had. The Court finds that no objections were filed with the Court or forwarded to counsel. The written and oral certifications of counsel addressing these issues are accepted by the Court. The Court finds that adequate notice of the settlement and the hearing has been provided to the plaintiff class and that no objections to the settlement are before the Court.
TERMS OF SETTLEMENT The Court accepts the Agreement as negotiated and written, without modification or exception. By its comments hereafter and by those comments made at the final settlement hearing the Court does not intend to modify the terms of the Agreement. The Agreement submitted in this case is a comprehensive agreement contemplating the final closure of this matter. In return for the immediate dissolution of all previous orders of the Court in this action, defendants have agreed to make improvements and undertake other steps no later than ninety (90) days from the date that the Agreement is signed by the Court,

unless otherwise specified in the Agreement. The parties acknowledge the Court must approve this Agreement before its substantive terms as stated therein become an effective and binding order of court.
After this Court Order, the Court's jurisdiction shall be limited to ensuring that defendants have fulfilled the obligations undertaken in the Agreement. If plaintiffs have reasonable cause to believe that defendants have failed to perform any obligation undertaken in the Agreement, after providing defendants with notice and opportunity to immediately correct the non-compliance, they may apply to the Court for a hearing regarding defendants' compliance. The Court may refer the matter to a Magistrate-Judge for informal resolution or recommendation. At any hearing regarding the issue of defendants' compliance with the terms of this Agreement, plaintiffs shall have the burden of proving that defendants have failed to comply. If, after hearing, the Court finds that defendants have failed to comply, the sole remedies available to the Court shall be an order directing specific performance of the agreements herein, and, if appropriate under applicable legal principles, the issuance of contempt for failure to comply with the Court's order of specific performance. Isolated or minor incidents of noncompliance will not be regarded as a failure to comply with this Agreement for purposes of any enforcement action.
For the reasons discussed below, the Court finds that the resolution of this proceeding as set forth in the Agreement is in the best interests of the class members.
This proceeding was initiated as a civil rights action challenging the conditions of confinement for juveniles at the Phillip B. Gilliam Youth Services Center in Denver, Colorado ("Gilliam") and the policies and practices of defendants in confining children therein.

The Agreement addresses many of the concerns identified by the plaintiffs. Amcng other things, the State Defendants have agreed to enforce compliance with all policies and procedures in the Division of Youth Services Policies and Procedures Manual and the Gilliam Implementing Procedures Manual and any addenda thereto, and to: confine no more than seventy-eight (78) youths in Gilliam; adhere to a classification system to meet the individual needs of confined youths; provide a staffing ratio of a least one (1) child careworker per nine (9) youths during waking hours, and one (1) child careworker per sixteen (16) youths during sleeping hours; provide each child a bed off the floor; allow youths certain personal items; cease the use of lockdowns, except as needed in emergencies; provide all treatment and service programs to any youths detained for more than fourteen (14) days; assure immediate access to toilet facilities upon request; correct all deficiencies identified as health or sanitation priority items; provide medical and dental screening upon admission by a medical professional or qualified health trained staff; provide adequate medical and mental health services; implement and enforce policies for monitoring youths on suicide status or in seclusion rooms; implement and enforce policies regarding the limited use of seclusion rooms and holding of due process hearings; prohibit the practice of restraining youths to fixed objects; enforce existing polices and procedures regarding the other use of mechanical restraints; provide youths with reasonable access to their attorneys and courts; provide on-site social services programs and counseling; provide training to staff; require the DPS Defendant to provide all youths with an education program, including special education; and require the State Defendants, in consultation with the DPS Defendant, to maintain a library.
The parties agree that pursuant to 42 U.S.C. § 1988, 29 U.S.C. 794a, and the

Individuals with Disabilities Education Act State Defendants were to pay, and have already paid, plaintiffs' attorneys' fees and costs of $80,000.00, and the DPS Defendants were to pay, and have already paid, plaintiffs' attorneys' fees and costs of $14,000.00, for work performed as of the date of the signing of the Agreement.
Additionally, the parties already have filed with the Court their Memorandum Of Agreement To Amend Settlement Agreement. That Memorandum previously has been approved by the Court. It, however, along with the Court's findings referenced therein, will become effective if and only if H.R. 667, Title III "Stop Turning Out Prisoners Act" is enacted by Congress.
CONCLUSION The Agreement provides a significant benefit to the plaintiff class and remedies a substantial portion of the plaintiffs' claims. The Court finds and concludes that the terms and conditions of the Agreement are fair, adequate and reasonable, and in the best interests of the plaintiff class as a whole. The Court further finds that the plaintiff class members have received adequate notice of the Agreement, pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure. Accordingly, the Agreement is APPROVED in its entirety and without modification in conformance with Rule 23 (e) of the Federal Rules of Civil Procedure. It is therefore ORDERED: the Settlement Agreement and the Memorandum of Agreement to Amend Settlement Agreement are approved pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure. This Order terminates the litigation between the parties on the merits and leaves nothing to be done but to ensure performance by the parties as they have agreed. The Court

retains jurisdiction over the defendants for three years for the limited purpose of monitoring compliance and ensuring they have fulfilled their obligations under the Agreement, as set forth above, but such reservation shall not affect the finality of this Order which is hereby entered on the merits under Rule 41(a)(2) of the Federal Rules of Civil Procedure.
Dated at Denver, Colorado, this ' ** day of September, 1995, mine pro tune. September 1, 1995.
BY THE COURT:

EDWARD W. NOT UNFFED STATES DI?f

JUDGE

APPROVED AS TO FORM:
For the Plaintiffs:
Aw - i W
DAVID H. MILLER, Esq. Legal Director American Civil Liberties
Union of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303)777-2490
SUSAN L. BURRELL, Staff Attorney* MARIA F. RAMIU, Staff Attorney* LOREN M. WARBOYS, Exec. Director' Youth Law Center

GALE A. NORTON Attorney General
STEPHEN K. ERKENBRACK Chief Deputy Attorney
TIMOTHY M. TYMKOVICH Solicitor General
PAUL FARLEY Deputy Attorney General

114 Sansome Street, Suite 950 San Francisco, CA 94194 Telephone: (415) 543-3379
FRANK N. DUBQFSKY, Esq. 1881 14th Street, Suite 350 Boulder, CO 80302 Telephone: (303) 447-3510
ATTORNEYS FOR PLAINTIFFS
'Admitted Pro Hac Vice

JOHN AUGUST LIZZA First Ass't. Attorney General
Thomas S. Parchman Assistant Attorney General Human Resources Section
ATTORNEYS FOR DEFENDANTS 1525 Sherman Street, 5th Fir. Denver, Colorado 80203 Telephone: (303) 866-5680 FAX: (303) 866-5671

MICHXEL H. JACKSO FRANKLIN A. NACH 1120 Lincoln Street, #1603 Denver, CO 80203 Telephone: (303) 595-0941
ATTORNEYS FOR THE SCHOOL DISTRICT DEFENDANT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 94 N 2816
CERTIFICATE OF MAILING
I hereby certify that a copy of the Order Approving Class Action Settlement signed by Judge Edward W. Nottingham on September 15, 1995, was mailed to the following on September i £ , 1995:
David H. Miller, Esq. Legal Director AMERICAN CIVIL LIBERTIES
UNION OF COLORADO 400 Corona Street Denver, CO 80218
Frank N. Dubofsky, Esq. CANYON CENTER BUILDING 1881 9th Street, Suite 210 Boulder, CO 80302
Susan L. Burrell, Esq. Maria F. Ramiu, Esq. YOUTH LAW CENTER 114 Sansome Street, Suite 950 San Francisco, CA 94014
Thomas S. Parchman, Esq. Assistant Attorney General State Services Section 1525 Sherman Street, 5th Floor Denver, CO 80203
Michael H. Jackson, Esq. 1120 Lincoln Street, Suite 1603 Denver, CO 80203
Magistrate Judge Donald E. Abram
JAMES R. MANSPEAKER, CLERK
By. Deputy Clerk

 
 YOUTH LAW CENTER

BOARD OF DIRECTORS
Chairman IIIOMAS A. WELCH Urobixk, Phleger & Harrison
Vice-chairman RUB1! I'ETERSEN-UNGER Ruby Un^er Productions
Secretary CHRISTOPHER M. MclAIN rransamerica Corporation
Treasurer VALERIE D. LEWIS Crosby. Heatey, Roach & May
kluNNFTII A. AUGUST /itfren, Grittenham & Branca
crn;K ucix Computer Consultant
Al>A ( OLE M.m-us A. Foster lAkuational Institute
MKHAhX ]. DALE Nova University
LUNA K. HENLEY Attorney at Law
M AKIA C. HERNANDEZ, Ph.I) MUM Consulting
IRIS 1\ I.ITT, M.D. Manturd University S, Inn.l ot Medicine
S I / \ \ \ F LYNN M.inpowiT Demonstration Ki'--i-.irch Corporation
t III IO I I. POINSETTE \K ki'SMin Corporation
I INDIII KCH PORTER. JR. I iltler. \li-mieUon, Fastilt, I n hs ,^ \ l a t h i a s o n
s i I Kl l \ i ; | I'EKRY) KOSS
'P.I Kl \ THOMPSON
t n ,•;- M a r t i n
ni. Mi'i.ituMi purposes o n ! \ )
S A \ FRANCISCO
/- \ c i titii'e Director •-. \ i v i M I B S H A L T T T - R
\hiuti'fin$ Director I OKI N \ l WARDOiS
"ihitT Attorneys A M I •, i; 111:1.1" M s \ \ I HL'RREI.I. M \KI \ I RAMIL .! W N A N I VVTLBER
I'arale^al M W i l l ' I! N EE
/ >t i\ctor of Development : '.'•:• ,INIA V A N / A . N U T
\tlministrative Staff
<•:>. M i : \ I ' . I S H O P
/•I ' N i ! \ HI. T i X R '•<'•' \' \ - - r o N • I : 1 N C.HI-T.FI
ii::;-.]i\r MO\TC,OMI:K'.
WASHINGTON, D.C.
I'rc-iiiicnt

TO: FROM: SUBJECT: DATE:

E. R. v. McDonnell
llllili
JI-CO-00 -004 MEMORANDUM
Board of Directors
Sue Burrell, Loren Warboys and Maria Ramiu Staff Attorneys
E.R. v. McDonnell, etal. (Denver Conditions of Confinment Litigation)
July 14, 1995

We have recently settled our lawsuit in Denver over conditions of confinement at the Phillip B. Gilliam Youth Services Center. We thought you would be interested in the enclosed description of the problems we addressed through the litigation, and the positive changes the lawsuit will bring.
We are very pleased with the results of the suit, and especially with the relatively short time frame within which improvements in the facility will be accomplished. If you have any questions or comments, please feel free to call any one of us.

SB:WZ/elg Enclosure

114 Sansome Street, Suite 930 • San Francisco, California 94104-3820 "415-543-3379 FAX 415-956-9022

 
 YOUTH LAW CENTER

BOARD OF DIRECTORS Chairman THOMAS A. WELCH lirobeck, Phleger & Harrison
Vice-Chainnan RUBY I'lTERSEN-UNGER Ruby Unger Productions
Secretary
CHRISTOPHER M. McLAIN 1 ransamerica Corporation
Treasurer
\ ALERIE D. LEWIS
Crosln, Heafey, Roach k May
M:\.\E 1"H A. AUGUST /iltren, Brittenham & Branca
rin ER BULL
Computer Consultant ADA COLE Marcus A. Foster Educational Institute
MICHAEL. J. DALE \ o \ a University
EDNA K. HENLEY Attorney at Law
MARIA G. HERNANDEZ, Ph.D. MGH Consulting
IRIS E. I.ITT, M.D. St.intord University School of Medicine
SL/AW'E LYNN Manpov\ er Demonstration K-.•search Corporation
CHLRYI. L. POINSETTE \Ukrssun Corporation
I INDIiFKCH PORTER, JR. Littler. Memlelson, Eastiff, hcln ft Mathiason
SI I R| IXC (TERRY) ROSS Kol'h it Ross
Hi M'.IRl A THOMPSON '. Mil .v Martin
\i\h.ilions listed lor :ir..,:r.,IH,n purpose^ onk
SAN FRANCISCO
/ xi'cttlive Director
•. \Ri 'I I. B SHALKFHR
\liiiui^iii^ Director
I i >KI \ \l W A R B i n s
Sfii// Attorneys
i Wli - K UEl.l' •I ^ \ \ I . BURRIT I M \RI \ I RAMIL •!l \ \ \ \ \ L. VMLBl'k
/ hrector of Development
. !!'i . i \ I A V - \ \ ZANDT
Kitministrative Staff
Ci " ! l \ lilSHOP •i ''-.I I \ HITLER
\ • .IIFI ii ^ [ ' \ r MDMi
VS \SH1NGTON, D.C.

August 10, 1995

E. R. v. McDonnell

Michael Dale Nova University Sheppard Broad Law Center 3305 College Avenue Fort Lauderdale, FL 33314

JI-CO-001-005

Dear Michael,

Thanks for your letter and words of encouragement about the forthcoming settlement in our Denver case, E.R. v. McDonnell. When I read the advance sheets and talk to colleagues around the country, I feel extremely fortunate that things have gone so well for us (so far, at least) in this case.

Here are copies of the Settlement Agreement and the Order and Memorandum of Agreement to Amend Settlement Agreement and Order. Although the Orders have been signed by the court, we are actually still in the stage of providing notice to the plaintiffs class. The hearing in final approval of the settlement is still set for September 1, 1995.

You will see some strange provisions in the Agreement having to do with contingent provisions if the federal STOP legislation passes. These provisions represent what the parties agreed upon to insulate the Agreement from being dissolved under the terms of that legislation.

Maybe I'll see you in September for the Board meeting; hope your summer is going well.

Sincerely,

Enclosures

Sue Burrell Staff Attorney

114 Snnr •

 
 E. R. v. McDonnell
III1HI1IIII1II

Case:

JI-CO 001-007 E.R. v. McDONNELL. Civil Action No. 94-N-2816

Court:

U.S. District Court, D. Colorado

Date Filed: December 8, 1994

Site:

Phillip B. Gilliam Youth Services Center, Denver

Current Status: The judge signed the Settlement Agreement on May 26, 1995. The Settlement Agreement was finally approved in September 1995, after notice to the class members of the Agreement. The Settlement Agreement will remain in effect for 3 years, with monitoring by a juvenile institutional expert and an education expert to be jointly selected by the parties.

Summary of Case: This lawsuit, on behalf of children confined in the Phillip B. Gilliam Youth Services Center against officials in the Colorado Department of Human Services, the Division of Youth Services, and the Denver Public School District, alleged unconstitutional crowding; problems with safety, health and sanitation; deficiencies in the educational services; the absence of a special education program; insufficient exercise and recreation; inadequate medical and mental health services; over-reliance on mechanical restraints and isolation; the absence of meaningful classification; and inadequate, insufficiently trained staff. Plaintiffs also alleged that children were not allowed to have writing implements or games (other than books or cards) in the rooms, so most simply languish or sleep for as long as 22 hours on thin mattresses on the floor. The week after the case was filed, there were 195 children held in the facility; the design capacity is 78.

Harms Alleged: FIRST AMENDED COMPLAINT, pp. 7-16: 27. Gilliam has 64 rooms designed for single occupancy, but by
designating a few slightly larger rooms as double occupancy, defendants have deemed Gilliam to have a 78 bed capacity. Population at the facility has consistently and dramatically exceeded even that number for several years. For fiscal year 1993-1994 the average daily population (through September, 1994) was 154. In October, 1994, the population was consistently about 175, and sometimes exceeded 200.
28. Length of stay at Gilliam ranges from less than a day to many months. A significant number of children spend several months confined in the facility pending adjudication, disposition and placement or commitment.
29. Detained children may range from 10 to 21 years of age. Offenses for which children may be detained range from relatively minor offenses (e.g., traffic offenses or park-municipal misdemeanors) or violations of probation (e.g., orders to attend school or report to probation officers), to serious offenses. Children are also held at Gilliam who are dependent or neglected children, or who are runaways, on violations of court orders such as running away from placement.

66

B. Impact of Overcrowding 30. Overcrowding at Gilliam has caused and continues to cause serious
problems in every aspect of the operation of the facility, resulting in inadequate educational services; inadequate monitoring and supervision of children, including those who are suicidal or undergoing emotional crises; inadequate medical and mental health services; interference with children's right to reasonable visitation and access to the courts; insufficient exercise, recreation and other program activities; and inhumane, unhealthy, unsafe living conditions.
31. Defendants confine as many as five children in rooms designed for one. In slightly larger rooms, defendants confine as many as eight children. Children are routinely required to sleep on thin mattresses on the floor and are subjected to other inadequate living conditions.
32. Defendants confine children in locked rooms for periods that are unhealthy and inhumane. Whenever population reaches 135, staff at Gilliam operate living pods on a "half-in/half-out" policy. This means that at times when the children would otherwise be allowed out of their rooms, only half the children at a time are allowed to be out. The other half remain locked in their rooms. Children who are not selected to go to school (more than half of the population) may spend twenty or more hours per day locked in their rooms, even thought they are not being disciplined.
33. Defendants subject children confined in locked rooms to inhumane conditions. The only recreational items children may have during the many hours they are locked in their rooms are two books, a Bible and a deck of cards (or a specified number of letters instead of one of the books.) As a consequence of lack of stimulation and sensory deprivation, many children sleep or simply lie on their beds for long periods during the day.
34. Defendants provide inadequate supervision and monitoring of children. Because of understaffing and overcrowding, there is often only one staff person on duty to supervise youth in living pods, and one person at a control booth, charged with the duty of monitoring the seclusion rooms. This results in dangerously inadequate monitoring of children confined because of suicide risk, out-of-control behavior, or for disciplinary reasons.
35. Defendants have inadequate capacity to respond to emergencies such as behavioral disturbances, fires, or other situations requiring evacuation.
36. Defendants unreasonably restrict children's right to visitation with their families. Because of overcrowding and understaffing, visiting hours are severely limited and parents must set up formal appointments to see their children.
37. Defendants interfere with children's access to counsel. Children are brought out in groups for attorney interviews prior to their detention hearing; interviews occur in a public area where others are able to hear conversations between attorney and client. Children's access to counsel by telephone is unreasonably restricted. Defendants also fail to provide children with meaningful access to the courts to redress complaints about conditions of their confinement. C. Inadequate Living Conditions
38. Defendants cause children on the living units to sleep in small, locked
67

rooms that are small and bare, without sinks or toilets. The rooms contain, at most, one or two metal framed beds covered with thin mattresses. In many rooms, children are forced to sleep on thin mattresses on the floor. In some of the rooms the mattresses are squeezed so closely together that there is barely room to walk between them or to open the door to the room. There is a small window in the door, and a frosted window to the outdoors. The only decoration, if any, consists of photographs or pictures form magazines which must be placed constantly in the presence of several other youth. There is inadequate ventilation, heating and cooling in the rooms, and the rooms often smell of sweat and urine. The walls of some of the rooms are smeared with blood, urine or feces.
39. Defendants fail to provide adequate staff to provide confined children with reasonable use of toilet facilities. Because all but the seclusion rooms lack toilets, children must knock on the door of their room and wait for a staff person to individually unlock it so that the child may go to the bathroom. Because living unites may have twice or three times as many children as the rated capacity, this means that children wait unreasonable amounts of time to use the toilet. In some cases, children have been forced to urinate or defecate in their clothes or on the bare floor.
40. Seclusion room at Gilliam are furnished with toilets, but because defendants confine as many as three children in the rooms, some children are forced to sleep and sit with their head in close proximity to the toilet. Also, since there are no dividers for privacy, children must use the toilet in full view of other children.
41. Defendants fail to maintain the plumbing in Gilliam in adequate and sanitary condition. In each living unit, approximately 40 to 60 children use the bathroom; the sinks, toilets and drains are frequently stopped up or otherwise unusable. The bathrooms often have mold and human excretions on the floors, fixtures and walls. D. Violence and Unsafe Practices
42. Defendants fail to provide a safe environment for children at Gilliam. Numerous assaults, sexual assaults, suicide attempts and institutional disturbances have occurred and continue to occur in the facility because of overcrowding and understaffmg.
43. Defendants fail to protect children from assaults and abuse from other residents. Vulnerable children are forced to give up food or perform humiliating acts for older, more aggressive youth under the threat of physical violence. Also, children have suffered injuries as a result of assaults or fights at Gilliam. Some of these incidents resulted in broken bones, wounds requiring sutures, and other injuries necessitating medical treatment. Other children have been sexually assaulted by youth at Gilliam. All of the above acts are a result of the defendants' failure to adequately supervise the children within the facility.
44. Defendants subject children who are physically out of control to dangerous and humiliating practices, including the use of mechanical restraints. Defendants fail to provide adequate mental health intervention for children placed in mechanical restraints or isolation, including children on suicide watch.
68

Defendants fail to properly visually monitor children who are placed in mechanical restraints or isolation, including children on suicide watch. E. Inadequate Classification and Screening
45. The defendants do not adequately separate and classify children in Gilliam by offense, age, size, and temperament. As a result of overcrowding and the inadequate policies and practices of the defendants, small, youth, and otherwise vulnerable children in the living units are subjected to threats, intimidation, and assaults from other youngsters in the units.
46. Defendants fail to provide for appropriate seclusion of children for disciplinary or other purposes. Because of overcrowding, seclusion rooms have been and are used for the confinement of as many as three children. Children who are on "suicide watch" because they are suicide risks are sometimes housed with children being punished for assaultive behavior, or other rules violations; or they are housed with children who themselves have been victims of assaults.
47. When children are first admitted to Gilliam, the defendants fail to provide adequate psychological or psychiatric screening for depression, mental illness, or other psychological infirmities.
48. Defendants fail to ensure that children who are not a danger to themselves or to the community and do not need secure detention are released or placed in non-secure alternatives. Defendants fail to provide adequate alternatives to secure detention for such children. F. Inadequate Education, Recreation and Programming
49. Overcrowding and understaffing severely interfere with the provision of rehabilitative and treatment services to confined children.
50. The defendants fail to provide an adequate educational program for children at Gilliam. As a result of overcrowding and the inadequate policies and practices of the defendants, less than half the children in Gilliam attend school on any given day. Of the children who attend school, many do not receive academic programming in conformity with state educational requirements.
51. Defendants confine a substantial number of children in Gilliam who are eligible for and require special education services. Defendants fail to provide these children with adequate special education services. Defendants fail to adequately identify, assess, or evaluate children to determine whether they have special needs, and how such special needs can be met. Defendants fail to develop appropriate individualized education plans for children who need special education or to ensure parental involvement or appointment of surrogate parents for these children. Defendants fail to provide related services, such as speech therapy and psychological therapy, to children with disabilities who need such services to benefit from their education. Defendants fail to obtain adequate information from schools that children attended prior to their detention at Gilliam, in order to properly ascertain the children's special education needs. Defendants fail to employ adequately trained, certified special education teachers to provide special education services to children who need these services at Gilliam.
52. Defendants fail to provide children in Gilliam with adequate recreational time. Because of overcrowding and understaffing, children receive
69

only half the scheduled recreational time and spend the other half locked in their rooms.
53. Defendants fail to provide children with adequate outdoor and indoor exercise, including large muscle exercise. Defendants deny many children needed exercise due to overcrowding, shortage of staff, for administrative reasons, or as a method of discipline.
54. Children confined in seclusion for disciplinary or other reasons are allowed out of their rooms only for an hour per day (excluding meals), and in that time must shower, do their laundry and exercise. In addition, some of the children on disciplinary status are required to eat meals in their room. Some children are permanently confined in seclusion rooms, even though the appropriate period of punishment for specific acts has long since passed.
55. As a result of overcrowding and understaffing, children are subjected to arbitrary and unfair disciplinary practices. Staff use room confinement as the sanction for most violations of institutional rules, regardless of how minor the violation. In addition, staff sometimes inappropriately use mechanical restraints or restrain children to fixed objects. Staff also use group punishments, and other inappropriate disciplinary measures. G. Inadequate Staffing
56. Defendants fail to provide adequate staff to supervise and protect children in the facility. The facility is chronically understaffed. There are not adequate staff to make classification decisions, monitor children in the facility, protect children from violence or provide rehabilitative services. The lack of adequate staff results in many children unnecessarily being locked in their rooms.
57. Overcrowding and understaffing causes defendants to curtail school or other programming. Because of crowding and inadequate staff to handle children, staff eat together in the cafeteria to provide more of a presence. This means that there are even fewer staff on the living units to monitor children left on the units. Concern over potential violence causes staff to keep children locked in their rooms for many more hours than would be the case absent that concern.
58. Defendants fail to provide adequate staffing and emergency response procedures to assure the safety of children in case of fire or other institutional disturbances.
59. Defendants fail to provide adequate training to staff in safety, emergency procedures, crisis intervention, behavior management, use of restraints and seclusion, children's rights and institutional policies and procedures. H. Medical, Dental and Mental Health Care
60. Defendants fail to provide confined children with adequate medical, dental and mental health care. Defendants fail to provide children with adequate medical, dental and mental health screening or examination. Defendants fail to provide sufficient qualified staff to meet the medical, dental and mental health needs of confine children. Defendants fail to provide adequately for children who are suicidal or in emotional crisis. Defendants also fail to provide adequately for segregation of children suffering from contagious diseases or needing medical isolation.
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I. Knowledge of Overcrowding and Inadequate Conditions 61. Defendants have long been aware of serious problems at Gilliam. In
1993 and 1994, the Colorado Department of Public Health and Environment conducted physical inspections of Gilliam and presented its reports to defendants. The 1993 report found the facility overcrowded and understaffed. The 1994 report found that youths were being double and triple bunked in most of the pods throughout the facility, and that youths were even being double bunked in seclusion rooms. The reports in both year found dozens of violations of state codes, regulations, and professional standards. Violations included malfunctioning plumbing and occluded drains, filth (including blood, mucus, and other bodily fluids), dust, mold, rust and debris in various parts of the facility, fire safety hazards, inadequate sanitation and food storage, and extremes of temperature (hot and cold) in parts of the facility, inadequate lighting in showers, blockage and filth in heating, air conditioning, and ceiling vents, unrepaired damage to walls, ceilings, carpets and stairways, and dirty or tattered bed linens, blankets, and mattresses.
62. The 1992 Performance Audit of the Colorado Juvenile Justice System found state-operated facilities, including detention facilities in a near-crisis state. The Audit found that overcrowding had produced inadequate supervision of youth, backlogs of youth awaiting placement, increased employee turnover, substandard health conditions, and non-compliance with educational requirements.
63. A 1991 report to E>YS on specifically addressed overcrowding in state facilities. The report documented and discussed the dangers of overcrowding for children and staff in detention centers and other state facilities, and its impact on the rehabilitative mission of the Division.

Type of Remedy: Screening, population cap, alternatives to detention, staffing, and no sleeping on the floor

Remedy:

SETTLEMENT AGREEMENT AND ORDER, pp. 5 - 6: POPULATION AND MANAGEMENT
12. The State Defendants shall confine no more than seventy-eight (78) youths in Gilliam. The State Defendants shall have ninety (90) days after approval by the Court to implement this population limit.
13. Youths shall not be detained within Gilliam solely because they are abused or neglected. Except with respect to youths accused of violations involving the possession or use of a handgun or other deadly weapon, status offenders shall not be detained within Gilliam absent a judicial finding of violation of a valid court order.
14. Because no more than 78 Denver youths can be housed at Gilliam pursuant to this agreement, any other youths under the jurisdiction of the Denver Juvenile Court may be placed, pursuant to court order for detention or sentence, at new facilities provided by Denver and the State Defendants.
CLASSIFICATION AND DETENTION SCREENING

71

15. The State Defendants shall require adherence to detention criteria at intake, as provided by C.R.S. § 19-2-1601 et seq. (Supp. 1994); and the State Defendants shall provide alternatives to secure detention for appropriate youths.
16. The State Defendants shall adhere to a classification system to meet the individual needs of confined youths, bases, inter alia, on their offense, age, size; separating violent, aggressive youths from vulnerable youth; and addressing the needs of youths with particular medical or mental health conditions, or special housing needs.
STAFFING 17. The State Defendants shall provide staffing at a ratio of at least one (1) child careworker per nine (9) youths during waking hours, and one (1) child careworker per sixteen (16) youths during sleeping hours. At least one staff person shall be physically present in each living unit whenever children are present in the living unit.
GENERAL CONDITIONS 18. Each child confined in Gilliam shall be provided a bed off the floor.

Contact:

Plaintiffs' counsel - Susan L. Burrell, Youth Law Center, 114 Sansome Street, Suite 950, San Francisco, CA 94101, (415) 543-3379; David H. Miller, American Civil Liberties Union of Colorado, 400 Corona Street, Denver, CO 80218, (303) 777-5482; Frank N. Dubofsky, Canyon Center Building, 1881 9th Street, Suite 210, Boulder, CO, 80302, (303) 447-0201.

Pleadings Available from YLC: First Amended Complaint, 2/3/95 Settlement Agreement and Order, 5/26/95 Memorandum of Agreement to Amend Settlement Agreement and Order, 5/29/95

72
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 Case: 1:94-cv-2816 As of: 01/27/2015 01:43 PM MST 1 of 10
CLASAC,SuppressAnsRpt,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:94−cv−02816−EWN

R., et al v. McDonnell, et al Assigned to: Judge Edward W. Nottingham Demand: $0 Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 12/09/1994 Date Terminated: 09/15/1995 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

E. R. a minor, by and through his next friend next friend L. R.

represented by David H. Miller Sawaya Law Firm 1600 Ogden Street Denver, CO 80218 303−839−1650 Fax: 303−720−1650 Email: dmiller@sawayalaw.com TERMINATED: 02/08/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank Neal Dubofsky Dubofsky Law Firm 1000 Rosehill Dr. Boulder, CO 80302 303−447−0201 Email: frankdubofsky@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loren M. Warboys Youth Law Center 417 Montgomery Street #900 San Francisco, CA 94104 415−543−3379 Fax: 956−9022 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Silverstein American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan L. Burrell Youth Law Center 417 Montgomery Street #900 San Francisco, CA 94104 415−543−3379 Fax: 956−9022 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
R. R. a minor, by and through his next friend; on behalf of themselveees and all others similarly situated TERMINATED: 05/18/1995 next friend M. R.

represented by David H. Miller (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Neal Dubofsky (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loren M. Warboys (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan L. Burrell (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
D. L. a minor, by and through his Next Friend, B.B. TERMINATED: 05/18/1995

represented by David H. Miller (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank Neal Dubofsky (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loren M. Warboys (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
D. W. a minor, by and through his Next Friend, S.W. TERMINATED: 05/18/1995

represented by David H. Miller (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank Neal Dubofsky (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loren M. Warboys (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff A. W. a minor, by and through her Next Friend, J.W.
Plaintiff D. M. a minor, by and through his Next Friend, R.M. on behalf of themselves and all others similarly situated TERMINATED: 05/18/1995

represented by David H. Miller (See above for address) TERMINATED: 02/08/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Neal Dubofsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren M. Warboys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Miller (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Neal Dubofsky (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren M. Warboys (See above for address) TERMINATED: 05/18/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Barbara McDonnell Executive Director of the Department of Human Services for the State of Colorado

represented by Stacy L. Worthington Attorney General's Office−CO Tort Litigation Tort Litigation Section 1525 Sherman Street, 5th Floor DC Box 20 Denver, CO 80203 303−866−5241 Fax: 866−5443 TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas S. Parchman Attorney General's Office−CO Human Resources Section Human Resources Section 1525 Sherman Street, 5th Floor

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DC Box 20 Denver, CO 80203 303−866−5660 Fax: LEAD ATTORNEY ATTORNEY TO BE NOTICED

Toni Jo Gray Boulder County Attorney's Office P.O. Box 471 1325 Pearl Street 5th floor Boulder, CO 80306 303−441−3190 Fax: 303−441−1656 Email: tgray@bouldercounty.org TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
F. Jerald Adamek Director of the Division of Youth Services, Department of Human Services for the State of Colorado

represented by Stacy L. Worthington (See above for address) TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas S. Parchman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Toni Jo Gray (See above for address) TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Velvia Garner Director of the Phillip B. Gilliam Youth Services Center

represented by Stacy L. Worthington (See above for address) TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas S. Parchman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Toni Jo Gray (See above for address) TERMINATED: 08/11/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Irving Moskowitz Superintendent of the Denver Public School District; all in their official capacity TERMINATED: 02/03/1995

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Defendant
Denver Public Schools actually named as: Denver School District No. 1, County of Denver, State of Colorado

represented by Franklin A. Nachman Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332 720−913−3100 Fax: 720−913−3182 Email: dlefiling.litigation@denvergov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Hodges Jackson Denver Public Schools General Counsel 900 Grant Street Denver, CO 80203 303−764−3390 Fax: LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/09/1994 12/09/1994 12/09/1994 12/09/1994 12/09/1994 01/03/1995 01/03/1995
01/03/1995 01/06/1995 01/19/1995 01/19/1995 01/19/1995

# Docket Text
1 COMPLAINT (Civil Rights Claim for Declaratory, Injunctive and Other Equitable Relief) (Summons(es) issued) (former empl) (Entered: 12/12/1994)
FILING FEE PAID: on 12/9/94 in the amount of $ 120.00, receipt # 168656. (former empl) (Entered: 12/12/1994)
2 MOTION by plaintiff for attorneys Susan L. Burrell and Maria F. Rramiu to appear pro hac vice (former empl) (Entered: 12/12/1994)
3 MOTION by plaintiffs for leave to proceed in pseudonym (former empl) (Entered: 12/12/1994)
4 Memorandum (BRIEF) by plaintiff in support of motion for leave to proceed in pseudonym [3−1] (former empl) (Entered: 12/12/1994)
5 MINUTE ORDER : by Judge Edward W. Nottingham granting motion for attorneys Susan L. Burrell and Maria F. Rramiu to appear pro hac vice [2−1] (cc: all counsel) ; entry date : 1/5/95 (former empl) (Entered: 01/05/1995)
6 ORDER FOR RULE 16 CONFERENCE by Judge Edward W. Nottingham ; Rule 16 conference set for 2:00 2/17/95 ; Discovery ddl set for 6/26/95 ;Dispo Motion ddl set 7/5/95 ; Prel pretrial conference set for 8:00 5/4/95 ; Pretrial Conference set for 2:00 9/8/95 (cc: all counsel) (former empl) (Entered: 01/06/1995)
7 SPECIAL ORDER OF REFERENCE by Judge Edward W. Nottingham to Magistrate Judge Donald E. Abram for settlement conf (cc: to counsel) (former empl) (Entered: 01/06/1995)
8 ORDER by Magistrate Judge Donald E. Abram ; mag conference set for 9:00 3/1/95 , ; settlement conf set for 3:00 9/14/95 (cc: all counsel) ; entry date : 1/6/95 (former empl) (Entered: 01/06/1995)
9 RETURN OF SERVICE of Summons and Complaint upon Ivan Tate, Asst Dir Div of Youth Svc defendant F. Jerald Adamek on 1/18/95 (former empl) (Entered: 01/20/1995)
10 RETURN OF SERVICE of Summons and Complaint upon Kathy Huskey, Admin Program Spec II for defendant Barbara McDonnell on 1/18/95 (former empl) (Entered: 01/20/1995)
11 RETURN OF SERVICE of Summons and Complaint upon / by defendant Velvia Garner on 1/18/95 (former empl) (Entered: 01/20/1995)

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01/19/1995 01/19/1995 02/03/1995 02/03/1995 02/03/1995 02/08/1995 02/09/1995 02/09/1995 02/13/1995 02/13/1995 02/13/1995 02/13/1995 02/17/1995 02/17/1995
03/02/1995 03/03/1995 03/06/1995 03/06/1995 03/06/1995

12 RETURN OF SERVICE of SCto CO Atty General thru Theodore Hill l/l7/95 (former empl) (Entered: 01/20/1995)
13 ACCEPTANCE OF SERVICE by defendant Irving Moskowitz signed on 1/17/95 ; signed Michael Jackson, Atty (former empl) (Entered: 01/20/1995)
14 MOTION by plaintiff E. R., plaintiff R. R. to continue discovery and sched conference (former empl) (Entered: 02/06/1995)
15 NOTICE OF DISMISSAL as to party Irving Moskowitz ; entry date : 2/6/95 (former empl) (Entered: 02/06/1995)
16 FIRST AMENDED COMPLAINT [1−1] by plaintiff; adding D. L., D. W., A. W., D. M., Denver Sch Dist No 1 (former empl) (Entered: 02/06/1995)
17 MOTION by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner, defendant Denver Sch Dist No 1 to continue sched conference (former empl) (Entered: 02/09/1995)
18 MINUTE ORDER : by Judge Edward W. Nottingham denying motion to continue sched conference [17−1] (cc: all counsel) ; entry date : 2/10/95 (former empl) (Entered: 02/10/1995)
19 Return and ACCEPTANCE OF SERVICE by defendant Denver Sch Dist No 1 signed by Michael Jackson, atty,on 2/3/95 (former empl) (Entered: 02/10/1995)
20 Motion by defendant Denver Sch Dist No 1 to dismiss first amended complaint before Judge Edward W. Nottingham (former empl) (Entered: 02/14/1995)
21 ATTORNEY APPEARANCE for defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner by Toni Jo Gray (former empl) (Entered: 02/14/1995)
22 Motion by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner to dismiss before Judge Edward W. Nottingham (former empl) (Entered: 02/14/1995)
23 BRIEF by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner in support of motion to dismiss before Judge Edward W. Nottingham [22−1] (former empl) (Entered: 02/14/1995)
24 COURTROOM MINUTES by Judge Edward W. Nottingham ; rule 16 conference cont'd to 8:00 3/9/95 ; entry date : 2/21/95 (former empl) (Entered: 02/21/1995)
25 AMENDED COURTROOM MINUTES by Judge Edward W. Nottingham sched conf held 2/l7/95; regarding [22−1] motion to dismiss before Judge Edward W. Nottingham, regarding [20−1] motion to dismiss first amended complaint before Judge Edward W. Nottingham ; responses due within l5 days; reply due ll days thereafter entry date : 3/1/95 (former empl) Modified on 03/01/1995 (Entered: 03/01/1995)
26 MINUTE ORDER : by Magistrate Judge Donald E. Abram ; addl mag conference set for 4:00 3/13/95 , 3/2l/95 at 4:00 adn 4/l4/95 at ll:30 (cc: all counsel) ; entry date : 3/2/95 (former empl) (Entered: 03/02/1995)
27 MOTION by plaintiff E. R., plaintiff R. R., plaintiff D. L., plaintiff D. W., plaintiff A. W., plaintiff D. M. for attorney Loren Warboys to appear pro hac vice (former empl) (Entered: 03/03/1995)
28 SUGGESTED SCHEDULING AND DISCOVERY ORDER of def Sch Dist l in Denver (cc: all counsel) (former empl) (Entered: 03/07/1995)
29 RESPONSE by plaintiff, defendant, plaintiff to motion to dismiss before Judge Edward W. Nottingham [22−1] and for more definite statement (former empl) (Entered: 03/07/1995)
30 RESPONSE by plaintiff to motion to dismiss before Judge Edward W. Nottingham [22−1] (former empl) (Entered: 03/07/1995)

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03/06/1995 03/09/1995 03/09/1995 03/09/1995 03/09/1995 03/09/1995 03/10/1995 03/10/1995 03/10/1995 03/14/1995 03/16/1995 03/17/1995 03/20/1995 03/21/1995
03/23/1995
03/23/1995
03/23/1995 03/23/1995

31 MINUTE ORDER : by Judge Edward W. Nottingham granting motion for attorney Loren Warboys to appear pro hac vice [27−1] (cc: all counsel) ; entry date : 3/8/95 (gms) (Entered: 03/08/1995)
32 COURTROOM MINUTES by Judge Edward W. Nottingham ; rule 16 conf held on 3/9/95 ; entry date : 3/10/95 (former empl) (Entered: 03/10/1995)
Tendered proposed sched order submitted by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner, defendant Denver Sch Dist No 1 rejected by court (former empl) (Entered: 03/10/1995)
33 STIPULATED SCHEDULING AND DISCOVERY ORDER Judge Edward W. Nottingham (cc: all counsel) (former empl) (Entered: 03/10/1995)
34 SUPPLEMENT TO STIPULATED SCHEDULING AND DISCOVERY ORDER Judge Edward W. Nottingham (cc: all counsel) (former empl) (Entered: 03/10/1995)
35 PROTECTIVE ORDER by Judge Edward W. Nottingham : granting motion for leave to proceed in pseudonym [3−1] (cc: all counsel) (former empl) (Entered: 03/10/1995)
36 ATTORNEY APPEARANCE for defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner by Stacy L. Worthington (former empl) (Entered: 03/13/1995)
37 MOTION by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner to extend time to file initial disclosure (former empl) (Entered: 03/13/1995)
38 Envelope w/confidential information (STATEMENT) submitted by plaintiff (?) FILED UNDER SEAL, PLACED IN SECURED AREA (former empl) (Entered: 03/13/1995)
39 MEMORANDUM by Magistrate Judge Donald E. Abram ; mag conference held 3/13/95 (former empl) (Entered: 03/14/1995)
40 RESPONSE by plaintiff E. R., plaintiff R. R., plaintiff D. L., plaintiff D. W., plaintiff A. W., plaintiff D. M. to motion to extend time to file initial disclosure [37−1] (former empl) (Entered: 03/17/1995)
41 REPLY by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner to response to motion to dismiss before Judge Edward W. Nottingham [22−1] (former empl) (Entered: 03/20/1995)
42 REPLY by defendant Denver Sch Dist No 1 to response to motion to dismiss first amended complaint before Judge Edward W. Nottingham [20−1] (former empl) (Entered: 03/21/1995)
43 MOTION by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner to withdraw motion to extend time to file initial disclosure [37−1] , and to extend time to serve interrogs and req for prod (former empl) (Entered: 03/22/1995)
44 MINUTE ORDER : by Judge Edward W. Nottingham granting motion to withdraw motion to extend time to file initial disclosure [37−1] [43−1], withdrawing motion to extend time to file initial disclosure [37−1] (cc: all counsel) ; entry date : 3/23/95 (former empl) (Entered: 03/23/1995)
45 ORDER by Judge Edward W. Nottingham , CASE STAYED until further order of court to facilitate settlement ; all dates set in orders of 3/9/95 and l/3/95 are vacated; status conf set for 2:30 5/19/95 (cc: all counsel) ; entry date : 3/23/95 (former empl) (Entered: 03/23/1995)
46 MEMORANDUM by Magistrate Judge Donald E. Abram settlement conf held 3/2l/95 and 3/22/95 (former empl) (Entered: 03/23/1995)
47 PROTECTIVE ORDER by Magistrate Judge Donald E. Abram re: disclosure of juvenile records in discovery : (cc: all counsel) (former empl) (Entered: 03/24/1995)

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03/28/1995 04/05/1995 04/07/1995
04/10/1995 04/11/1995 04/14/1995 04/14/1995 04/18/1995 04/28/1995
05/18/1995 05/18/1995
05/26/1995 05/29/1995
06/15/1995 06/15/1995 06/15/1995 06/27/1995

48 MOTION by plaintiff E. R., plaintiff R. R., plaintiff D. L., plaintiff D. W., plaintiff A. W., plaintiff D. M. for reconsideration of stay of proceedings order [45−3] (former empl) (Entered: 03/29/1995)
49 MINUTE ORDER : by Magistrate Judge Donald E. Abram ; further mag conference set for 10:30 4/7/95 (cc: all counsel) ; entry date : 4/6/95 (former empl) (Entered: 04/06/1995)
50 ORDER by Judge Edward W. Nottingham granting motion for reconsideration of stay of proceedings order [45−3] [48−1], terminating stay; order staying proceedings is vacated; all prior scheduing deadlines are reinstated ; discovery ddl set 6/26/95 ; disp mtn ddl set 7/5/95 ; prel pretrial conf set for 8:00 5/4/95 ; pretrial conf set for 2:00 9/8/95 (cc: all counsel) ; entry date : 4/10/95 (former empl) (Entered: 04/10/1995)
51 MINUTE ORDER : by Magistrate Judge Donald E. Abram ; mag conference held 4/10/95 ; dsm papers ddl set for 5/8/95 (cc: all counsel) ; entry date : 4/10/95 (former empl) (Entered: 04/10/1995)
52 MINUTE ORDER : by Magistrate Judge Donald E. Abram ; mag conference set for 11:30 4/14/95 (cc: all counsel) ; entry date : 4/11/95 (former empl) (Entered: 04/11/1995)
53 STIPULATION by plaintiff, defendant, to stay discovery (former empl) (Entered: 04/17/1995)
54 STIPULATION by plaintiff, defendant, plaintiff, defendant to stay discovery (former empl) (Entered: 04/17/1995)
55 STIPULATION (sic) signed by plaintiffs to stay discovery (former empl) (Entered: 04/18/1995)
56 MINUTE ORDER : by Judge Edward W. Nottingham granting stipulation motion to stay discovery [53−1], granting stipulation motion to stay discovery [54−1], granting stipulation motion to stay discovery [55−1]. Discovery is stayed until 6/5/95 and all ddls are vacated. , ; discovery ddl satisfied 4/28/95 ; disp mtn ddl satisfied 4/28/95 (cc: all counsel) ; entry date : 5/1/95 (gms) (Entered: 05/01/1995)
57 Motion by plaintiff R. R., plaintiff D. L., plaintiff D. W., plaintiff D. M. to dismiss certain plaintiffs before Judge Edward W. Nottingham , and to amend caption before Judge Edward W. Nottingham (former empl) (Entered: 05/22/1995)
58 ORDER by Judge Edward W. Nottingham granting motion to dismiss certain plaintiffs before Judge Edward W. Nottingham [57−1], granting motion to amend caption before Judge Edward W. Nottingham [57−2] dismissing party D. M., party D. W., party D. L., party R. R. (cc: all counsel) ; entry date : 5/22/95 (former empl) (Entered: 05/22/1995)
59 Settlement Agreement and ORDER by Judge Edward W. Nottingham terms of settlement agreement approved, parties to comply w/terms as stated (cc: all counsel) ; entry date : 5/30/95 (former empl) (Entered: 05/30/1995)
60 Memorandum of Agreement to Amend Settlement Agreement and ORDER by Judge Edward W. Nottingham terminating case ; terms of settlement are approved by court (cc: all counsel) ; entry date : 5/30/95 (former empl) (Entered: 05/30/1995)
61 MOTION by plaintiff A. W. to certify class action (former empl) (Entered: 06/16/1995)
62 MOTION by plaintiff A. W. for final approval of settlement agreement and memo of agreement to amend settlement agreement (former empl) (Entered: 06/16/1995)
Tendered notice of settlement submitted by plaintiff A. W. w/motion to certify class action [61−1] (former empl) (Entered: 06/16/1995)
63 ORDER by Judge Edward W. Nottingham granting motion to certify class action [61−1]; order to certify class to issue; Case reopened (cc: all counsel) ; entry date : 6/28/95 (former empl) (Entered: 06/28/1995)

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06/27/1995 06/27/1995 06/27/1995 08/11/1995
09/01/1995 09/01/1995 09/15/1995
01/30/1996 06/13/1996 06/24/1996 06/24/1996 07/03/1996
07/15/1996 07/15/1996 07/15/1996 07/19/1996

64 ORDER by Judge Edward W. Nottingham regarding [63−2] order Clk of Court to execute ntc to plf;defs to post as set forth in order; (cc: all counsel) ; entry date : 6/28/95 (former empl) (Entered: 06/28/1995)
65 NOTICE of settlement under Rule 23 by plaintiff (former empl) (Entered: 06/28/1995)
66 ORDER by Judge Edward W. Nottingham granting motion for final approval of settlement agreement [62−1]; hearing on final approval set 9/l/95 at 2:30 (cc: all counsel) ; entry date : 6/28/95 (former empl) (Entered: 06/28/1995)
67 Entry of Appearance and ATTORNEY SUBSTITUTION: terminating attorney Stacy L. Worthington for Velvia Garner, attorney Toni Jo Gray for Velvia Garner, attorney Stacy L. Worthington for F. Jerald Adamek, attorney Toni Jo Gray for F. Jerald Adamek, attorney Stacy L. Worthington for Barbara McDonnell, attorney Toni Jo Gray for Barbara McDonnell and substituting attorney Thomas S. Parchman (former empl) (Entered: 08/14/1995)
68 NOTICE of Compliance with Posting and Notice Requirements of Order for Notice to Plaintiff Class by defendant Barbara McDonnell, defendant F. Jerald Adamek, defendant Velvia Garner (former empl) (Entered: 09/06/1995)
70 COURTROOM MINUTES by Judge Edward W. Nottingham order of 6/27/95 is vacated; parties have complied w/Rule 26; ntc has been adequate; settlement agreement approved ; entry date : 9/20/95 (former empl) (Entered: 09/20/1995)
69 ORDER Approving Class Action Settlement and Memorandum of Agreement to Amend Settlement Agreement are approved and order terminates litigation between parties; court retains jurisdiction over dfts for 3 yrs of monitoring complaince under agreement; by Judge Edward W. Nottingham regarding [65−1] notice terminating case dated nunc pro tunc of 9/1/95 (cc: all counsel) ; entry date : 9/18/95 (former empl) (Entered: 09/18/1995)
71 REPORT of Expert Russ Van Vleet (former empl) (Entered: 01/31/1996)
72 MOTION by plas E. R., A. W. for attorney fees and costs (former empl) (Entered: 06/17/1996)
73 MOTION by dfts Barbara McDonnell, F. Jerald Adamek, Velvia Garner to extend time to file response to request for attys' fees to 7/15/96 (former empl) (Entered: 06/25/1996)
74 MOTION by dfts Barbara McDonnell, F. Jerald Adamek, Velvia Garner for referral to a Mag Judge of pla's request for attys' fees (former empl) (Entered: 06/25/1996)
75 ORDER by Judge Edward W. Nottingham granting motion for referral to a Mag Judge of pla's request for attys' fees [74−1], granting motion to extend time to file response to request for attys' fees to 7/15/96 [73−1], regarding [72−1] motion for attorney fees and costs, magistrate judge Abram to make recommendation (cc: all counsel) ; entry date : 7/9/96 (former empl) (Entered: 07/09/1996)
76 Initial RESPONSE by state dfts Barbara McDonnell, F. Jerald Adamek, Velvia Garner to motion for attorney fees and costs [72−1] (former empl) (Entered: 07/17/1996)
77 RESPONSE by dft Denver Sch Dist No 1 to motion for attorney fees and costs [72−1] (former empl) (Entered: 07/17/1996)
78 MINUTE ORDER : by Magistrate Judge Donald E. Abram setting hearing on motion for attorney fees and costs [72−1] 9:00 7/23/96 in Room C−504 (cc: all counsel) ; entry date : 7/17/96 (former empl) (Entered: 07/17/1996)
79 Joint MOTION by plas E. R., A. W., dfts Barbara McDonnell, F. Jerald Adamek, Velvia Garner, Denver Sch Dist No 1 for order of all parties to utilize 7/23 hrg date as stlmt conf while re−setting hrg date for date certain before 9/16/96 and request for lv to allow San Francisco cnsl to appear by telephone (former empl) (Entered: 07/22/1996)

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07/19/1996
07/24/1996 07/25/1996 07/25/1996
07/26/1996 07/29/1996
12/27/1996 12/30/1996 01/13/1997 07/01/1997 08/25/1998 08/28/1998 08/31/1998 09/23/1998 09/23/1998 02/08/1999
09/01/1999 12/10/1999 07/26/2001 07/26/2001

79 MOTION by plas E. R., A. W., dfts Barbara McDonnell, F. Jerald Adamek, Velvia Garner, Denver Sch Dist No 1 for leave to allow San Francisco cnsl appear by telephone (former empl) (Entered: 07/22/1996)
82 NOTICE by plas E. R., A. W. of withdrawal of motion for attorney fees and costs [72−1] (former empl) (Entered: 07/26/1996)
80 MEMORANDUM by Magistrate Judge Donald E. Abram...settlement conf held 7/23/96 (former empl) (Entered: 07/26/1996)
81 MINUTE ORDER : by Magistrate Judge Donald E. Abram granting motion for order of all parties to utilize 7/23 hrg date as stlmt conf while re−setting hrg date for date certain before 9/16/96 [79−1]; motion for attorney fees and costs [72−1] ; hearing reset as settlement conf 7/23/96 (cc: all counsel) ; entry date : 7/26/96 (former empl) (Entered: 07/26/1996)
83 REPORT of Expert Rus Van Vleet (former empl) (Entered: 07/29/1996)
84 MINUTE ORDER : by Magistrate Judge Donald E. Abram granting [82−1] document withdraw...withdrawing motion for attorney fees and costs [72−1] (cc: all counsel) ; entry date : 7/30/96 (former empl) (Entered: 07/30/1996)
85 REPORT of Expert Russ Van Vleet (former empl) (Entered: 12/30/1996)
86 3rd Semi−Annual REPORT by Russell K. Van Vleet (former empl) (Entered: 01/02/1997)
87 NOTICE by dft Denver Sch Dist No 1 of attorney withdrawal from law firm, change of address and telephone number (former empl) (Entered: 01/14/1997)
88 REPORT of Expert Russ Van Vleet (former empl) (Entered: 07/02/1997)
89 REPORT of Expert Russ Van Vleet by plaintiff, defendant (former empl) (Entered: 08/25/1998)
90 Entry of Appearance and MOTION by plaintiff to substitute attorney Mark Silverstein in place of David Miller (former empl) (Entered: 08/31/1998)
91 NOTICE of Amd of Stlmt Agreement by State defendants (former empl) (Entered: 09/01/1998)
92 REPORT of Expert Robert B. Rutherford, Jr. (former empl) (Entered: 09/24/1998)
93 LETTER to court from Robert B. Rutherford Jr., PhD, Professor and Court Monitor (former empl) (Entered: 10/02/1998)
94 MINUTE ORDER : by Judge Edward W. Nottingham granting motion to substitute attorney Mark Silverstein in place of David Miller [90−1] attorney David H. Miller for A. W., attorney David H. Miller for E. R. and substituting attorney Mark Silverstein (cc: all counsel) ; entry date : 2/9/99 (former empl) (Entered: 02/09/1999)
95 NOTICE by plaintiff of Second Amendment to stlmt agreement (former empl) (Entered: 09/02/1999)
96 NOTICE of Change of Address of Youth Law Center by plaintiff E. R., plaintiff A. W. (former empl) (Entered: 12/13/1999)
97 NOTICE of third amended settlement agreement by Department Human Svc, and the Pla Class re: order [69−2] (pap) (Entered: 07/27/2001)
98 Third AMENDed Settlement Agreement by Department Human Svc, and the pla class to order [69−2] (pap) (Entered: 07/27/2001)