Case 3:13-cv-00547-HTW-LRA Document 40 Filed 02/05/14 Page 1 of 12

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

JACKSON DIVISION 


Disability Rights Mississippi, Plaintiff,
v.
Mississippi Children’s Home Services, Defendant.

) ) ) ) ) CAUSE NO. 3:13-CV-547-HTW-LRA ) ) ) )

STATEMENT OF INTEREST OF THE UNITED STATES The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517,1 because this litigation involves the proper interpretation and application of federal law. As the United States has made clear in litigation across the country, it has a strong interest in the interpretation of the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI Act”), 42 U.S.C. §§ 10801–10851. See, e.g., Statement of Interest of the United States, Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., No. 1:06-cv-1816 (S.D. Ind. June 16, 2008); Brief for Intervenor United States of America, Iowa Prot. & Advocacy Servs., Inc. v.

1 Section 517 provides that the “Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. A submission by the United States pursuant to this provision does not constitute intervention under Rule 24 of the Federal Rules of Civil Procedure.

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Tanager Place, No. 04-4074 (8th Cir. May 11, 2005). Therefore, the United States offers the Court its understanding of the statute and regulations at issue in this case.2
ARGUMENT Plaintiffs, representatives of the local protection and advocacy organization, have brought this case seeking access to a psychiatric residential treatment center serving children in Mississippi. Defendants argue that the access Plaintiffs seek is not guaranteed by law. The United States Statement of Interest will establish that the PAIMI Act was intended to protect vulnerable people with disabilities by affording broad access rights to protection and advocacy organizations. A central function of these organizations is to conduct monitoring, even in the absence of abuse and neglect complaints from residents. Monitoring activities include facility visits and also unaccompanied opportunities to speak with residents of the facilities. The PAIMI Act is undermined if protection and advocacy organizations are denied these rights, or required to litigate each time they seek access to a facility and its residents. A. The PAIMI Act was Passed to Protect a Vulnerable Population Congress enacted this law because it found that “individuals with mental illness are vulnerable to abuse and serious injury,” and that “[s]tate systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate.” 42 U.S.C. § 10801. The law grew out of a congressional staff investigation that uncovered fear and intimidation at psychiatric facilities. Care of Institutionalized Mentally Disabled Persons: Joint Hearings Before the Senate Subcomms. on the Handicapped and on Labor, Health and Human Services, Education, and Related Agencies, 99th Cong. (1985). Staff visiting psychiatric facilities across the nation found evidence of physical abuse, sexual abuse, verbal
2 The United States recognizes that the Parties’ briefing on this issue has concluded and would not object if the Court wishes to offer the Parties an opportunity to respond to the United States.
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threats, regular harassment, reliance on seclusion and mechanical restraints, inadequate treatment, and indecent living conditions. Id. at 3. In one graphic example of the abuse and neglect, investigators found a patient died while tied to a bed in full restraints and was discovered soaked in her own urine. Id. at 24. Investigators reviewed existing monitoring mechanisms and determined that monitoring conducted by the states and other accreditation bodies was not sufficient to prevent and remedy the violations of law. Id. at 5, 76-114. After conducting a thorough analysis, congressional staff determined that protection and advocacy services were desperately needed. Id. at 81.
In response, Congress passed the PAIMI Act and explained that the statute’s purpose is “to ensure that the rights of individuals with mental illness are protected and to assist States to establish and operate a protection and advocacy system that will (1) protect and advocate for the rights of those individuals; and (2) investigate incidents of abuse and neglect.” H.R. Rep. 102319, November 15, 1991. To achieve this goal, the law provides funding and authority for a system of protection and advocacy organizations across the country.3
Since PAIMI was enacted nearly 30 years ago, protection and advocacy organizations have used their authority to address widespread abuse, neglect, and exploitation in psychiatric institutions around the country. A recent report on PAIMI enforcement identified the significant impact that protection and advocacy organizations have when they are able to monitor and investigate facilities on behalf of vulnerable people whose every action is controlled by their service providers. See Substance Abuse and Mental Health Services Administration, HHS Pub. No. PEP12-EVALPAIMI, Evaluation of the Protection and Advocacy for Individuals With Mental Illness
3 Congress enacted parallel legislation to protect the rights of people with developmental disabilities, 42 U.S.C. § 15041, and people with disabilities other than mental illness and developmental disabilities. 29 U.S.C. § 794e(a)(1).
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(PAIMI) Program, Phase III. Final Report. (2011). For example, the report describes how one protection and advocacy organization helped a family find a safe environment for their child after he was placed at a residential treatment facility where staff members were abusing children. See id. at 13. In another case, a man with kidney cancer who was institutionalized at a psychiatric hospital did not receive needed medical care until the protection and advocacy organization advocated on his behalf. Id. In yet another instance, a protection and advocacy organization litigated on behalf of a class of individuals with mental illness who were inappropriately discharged from a psychiatric hospital to nursing facilities where they received no mental health treatment and were subject to strict limits on their activities and movement. Id. All of these cases, and many thousands of others, demonstrate the importance of the protection and advocacy system established by the PAIMI Act.
While the Department of Justice plays a role in the enforcement of the constitution and federal law in institutional settings, see, e.g., 42 U. S.C. § 1997 et seq., the protection and advocacy system is a critical partner in that work. It is not possible for the Department of Justice to investigate all allegations of abuse and neglect and to monitor all facilities across the country. For these reasons, it is imperative that the protection and advocacy organizations are able to monitor facilities and investigate claims of abuse and neglect.
B. Monitoring is a Critical Part of Protection and Advocacy Organizations’ Mandates When establishing the protection and advocacy system, Congress wisely recognized that
protection and advocacy organizations must be empowered to regularly monitor facilities providing treatment to people with disabilities. Regular monitoring enables advocates to detect and deter abuse and neglect in facilities that might not otherwise come to the attention of the advocates. People living in psychiatric residential treatment facilities are particularly vulnerable
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to abuse because they are struggling with significant medical needs, are often isolated from their families and communities, and their ability to reach out to outside advocates is restricted. In addition, they are often unfamiliar with their rights or with the advocates available to help them. In order to successfully prevent and remedy violations of rights, the PAIMI Act provides that protection and advocacy organizations shall, “have access to facilities in the State providing care or treatment.” 42 U.S.C. § 10805. This provision stands in addition to, and independent of, the statute’s provision for conducting investigations of abuse allegations, indicating that the two afford distinct authorities.
1. PAIMI Regulations Affirm Protection and Advocacy Organization Monitoring Access Rights The regulations promulgated by the Department of Health and Human Services (“HHS”)
under the PAIMI Act carry out Congress’s design and make very clear that protection and advocacy organizations need not be conducting an investigation of a specific allegation in order to access a covered facility.4 Because these regulations by the agency entrusted to administer the PAIMI program elucidate and give force to the statute, they are afforded great deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (“We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.”).
4 Access to covered facilities was not intended to be limited to a specific group of facilities, but rather to any facilities in which people with disabilities reside and receive treatment. The Conference Committee Report on the original legislation explained that, “It is the intent of the conferees that this legislation focus on abuse and neglect of mentally ill individuals and not on the particular residential facility in which they reside. Accordingly, residential facilities could include, but need not be limited to, hospitals, nursing homes, community facilities for mentally ill individuals, and board and care homes.” H.R. Conf. Re. 99-576, May 5, 1986 (emphasis added).
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The regulations provide that for purposes of education, training, monitoring, and inspection,
a P&A system shall have reasonable unaccompanied access to facilities … and their residents at reasonable times, which at a minimum shall include normal working hours and visiting hours. Residents include adults or minors who have legal guardians or conservators. P&A activities shall be conducted so as to minimize interference with facility programs, respect residents' privacy interests, and honor a resident's request to terminate an interview. 42 C.F.R. § 51.42(c). The regulations define unaccompanied access as “the opportunity to meet and communicate privately with individuals regularly, both formally and informally, by telephone, mail and in person.” 42 C.F.R. § 51.42(d). The plain language of the regulation reaffirms that a protection and advocacy organization must be afforded reasonable unaccompanied access to facilities and residents for the purpose of monitoring and education even where there is no allegation of abuse or neglect. The text also explicitly empowers protection and advocacy organizations to meet with minors as well as with adults. Thus it is clear that Congress anticipated that protection and advocacy organizations would need to visit facilities and speak with their residents regularly, regardless of age. Such access enables these organizations to fulfill their missions of educating individuals about their rights and offering residents an opportunity to raise questions or concerns about their care with an independent advocate. 2. Federal Precedent Affirms Protection and Advocacy Monitoring Access Rights So unambiguous are the regulations that there has been little recent litigation on the simple question of access to facilities for monitoring and education. In the few decisions that touch on protection and advocacy organizations’ authority to conduct monitoring, including unaccompanied access to residents, courts have recognized that the statute unmistakably contemplates monitoring access. See, e.g., Protection & Advocacy System, Inc. v. Freudenthal, 412 F.Supp.2d 1211, 1213 (D. Wyo. 2006) (“These acts and their implementing regulations
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authorize P & A to investigate allegations of abuse and neglect; to monitor; to provide training on rights and make referrals and to pursue legal, administrative and other remedies. They also authorize P & A to obtain access to records under specific circumstances.”); Equip for Equality, Inc. v. Ingalls Memorial Hosp., 292 F.Supp.2d 1086, 1095-98, 1100 (N.D. Ill. 2003) (“A P & A system must be given the leeway to discover problems or potential problems at a facility”); Iowa Protection and Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C., 152 F.Supp.2d 1150. 1169-70 (N.D. Iowa 2001) (considering access to a psychiatric facility for youth and noting that protection and advocacy organization representatives are empowered to conduct unaccompanied interviews for monitoring purposes). Courts have explained that curtailing protection and advocacy organizations’ access would thwart the goals laid out by Congress in PAIMI. See Equip for Equality, 292 F.Supp.2d at 1099 (“requiring tours of a facility to be announced and accompanied would seriously hinder a P & A system's ability to monitor the facility for compliance with the rights and safety of the patients and would thwart the purpose of the federal and state acts.”); Robbins v. Budke, 739 F.Supp. 1479, 1487 (D.N.M. 1990) (finding hospital’s policies limiting protection and advocacy organization access to patients with mental illness thwarted PAIMI’s purpose). Protection and advocacy organizations are unquestionably authorized to conduct regular unaccompanied monitoring tours of covered facilities in addition to any investigations they conduct.
C. Reasonable Unaccompanied Access Includes Regular Opportunities to Speak with Residents The law contemplates that advocates will have regular, even “frequent,” unaccompanied
opportunities to speak with residents. See 42 C.F.R. § 51.42(c); Mississippi Protection and Advocacy System, Inc. v. Cotton, 1989 WL 224953 *9 (S.D. Miss. Aug. 7, 1989) (“Only by frequent personal contact with residents, out of the presence of Boswell staff, can MP & A
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effectively carry out its mission of pursuing remedies to protect the rights of Boswell residents and of providing the necessary information to them.”).5 Recognizing that people with disabilities may be distrustful of advocates they rarely see, courts have encouraged regular visits with protection and advocacy organization representatives. See Robbins, 739 F.Supp. at 1486. Defendants argue that the protection and advocacy organization suffers no harm when entirely precluded from conducting complete monitoring visits because it made two, unrelated visits previously. See Def.’s Resp. at 9, 18-19, Dkt. No. 20. There is no numerical limit, in statute, regulations, or precedent, on how often a protection and advocacy organization may visit a covered facility. The visits, themselves, must simply be reasonable.
In contravention of the law, facilities sometimes attempt to place significant limits on the frequency and ease with which protection and advocacy representatives can speak with residents. Of course, the regulations provide that advocates should minimize disruption of facility programs, but that obligation does not negate their right to regular, voluntary, unaccompanied interviews of residents. See 42 C.F.R. § 51.42(c). While courts have recognized the need to weigh a facility’s practical concerns, including concerns about impact on treatment, they have determined that such concerns do not preclude the protection and advocacy organizations’ access rights. See, e.g., Equip for Equality, 292 F.Supp.2d at 1100 (requiring unaccompanied access to residents with 24-hours notice); Pennsylvania Protection & Advocacy, Inc. v. Royer–Greaves School for the Blind, No. 98–3995, 1999 WL 179797, at *11–12 (E.D.Pa. Mar. 24, 1999) (same).6 The statute and its implementing regulations provide for unaccompanied access to
5 This case was filed under PAIMI’s companion legislation protecting the rights of people with developmental disabilities. 6 This case was filed under PAIMI’s companion legislation protecting the rights of people with developmental disabilities.
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residents, specifically including children; facilities cannot defeat this access by making unsupported allegations that access will be disruptive or harmful. See 42 C.F.R. § 51.42(c) (“Residents include adults or minors”); Robbins, 739 F.Supp. at 1488 (“Defendants claim that patient care and a therapeutic environment will be totally disrupted if P & A's presence at LVMC is not controlled to the extent that it is at present. I am not persuaded that this is true.”); Michigan Protection & Advocacy Service, Inc. v. Miller, 849 F.Supp. 1202, 1208 (W.D. Mich. 1994) (“defendant has failed to indicate how the access MPAS seeks would ‘substantially interfere’ with DSS programs”). Concerns about access, even well-intentioned, do not overcome the judgment Congress made when authorizing protection and advocacy organizations to conduct unaccompanied interviews.
While some courts have limited unannounced, unlimited, 24-hour access to residents of a facility, the limits imposed have been minimal. For example, a few courts have required protection and advocacy organizations seeking to meet with or interview residents to provide 24hours notice of their visit. See Equip for Equality, 292 F.Supp.2d at 1100-02; Pennsylvania Protection & Advocacy, Inc. 1999 WL 179797, at *11–12. Ideally, a protection and advocacy organization will be able to work collaboratively with the facility it plans to monitor to establish a protocol that minimizes disruption to the facility program, without overly restricting the organization’s work. Where the parties are unable to resolve the contours of an agreed on monitoring protocol, courts have found that authorizing protection and advocacy organizations broad access rights is appropriate. See id.
D. Requiring Protection and Advocacy Organizations to Seek Court Orders Each Time They Wish to Gain Access to Facilities Would Significantly Impair Their Work Requiring protection and advocacy organizations to go to court every time they seek
access afforded by the statute would frustrate the goals of PAIMI and unnecessarily burden the
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courts. See Advocacy Center v. Stalder, 128 F.Supp.2d 358, 364 (M.D. La.1999) (“it cannot be disputed that the delay in getting a court order frustrates the goal of the PAMII Act.”); Oklahoma Disability Law Center, Inc. v. Dillon Family and Youth Services, Inc., 879 F.Supp. 1110, 1112 (N.D. Okl. 1995) (“The timely access guaranteed by the Act should not be stripped of all meaning by requiring advocacy hearings to survive an application for a court order.”). The PAIMI Act does not require protection and advocacy organizations to go to court each time they wish to conduct statutorily mandated activities. As a recent evaluation of the PAIMI Act found, “[w]hen forced to litigate access issues, significant portions of [a protection and advocacy organization’s] limited resources are consumed – resources that would better be used moving the nation’s mental health system forward.” Substance Abuse and Mental Health Services Administration, HHS Pub. No. PEP12-EVALPAIMI, Evaluation of the Protection and Advocacy for Individuals With Mental Illness (PAIMI) Program, Phase III. Final Report. 87 (2011). Facilities should not be permitted to circumvent Congress’s legislation by requiring a court order before permitting meaningful access as required by law.
CONCLUSION The PAIMI Act is a critical component in the system of legal protections for people with disabilities and its words must be given full force and effect. Congress unambiguously afforded protection and advocacy organizations the authority to access facilities serving people with disabilities and to the individuals themselves. While facilities may be well-intentioned in seeking to limit access to the physical space or individuals in their care, the law requires them to permit reasonable access, including unaccompanied conversations with residents.
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Respectfully submitted, GREGORY K. DAVIS United States Attorney
__/s/ Mitzi Paige________________ MITZI D. PAIGE Assistant United States Attorney MS Bar No. 6014 United States Attorney’s Office Southern District of Mississippi 501 E. Court Street, Ste. 4.430 Jackson, MS 39201 Telephone: (601) 973-2840 Facsimile: (601) 965-4409 mitzi.paige@usdoj.gov
Dated: February 5, 2014

JOCELYN SAMUELS Acting Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
__/s/ Deena Fox___________________ JONATHAN M. SMITH, Section Chief JUDITH C. PRESTON, Deputy Chief DEENA S. FOX, Trial Attorney New York Bar Registration No. 4709655 U.S. Department of Justice 950 Pennsylvania Avenue, NW – PHB Washington, DC 20530 Telephone: 202-305-1361 deena.fox@usdoj.gov
Of Counsel:
__/s/ William B. Schultz________________ WILLIAM B. SCHULTZ General Counsel DC Bar No. 218990 Department of Health & Human Services, Office of the General Counsel 200 Independence Avenue, SW, Room 713F, Washington, DC 20201 Telephone: 202-690-7741 Facsimile: 202-690-7998

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CERTIFICATE OF SERVICE I hereby certify that on February 5, 2014 I electronically filed the United States’
Statement of Interest with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to the attorneys of record.
/s/ Deena Fox DEENA S. FOX, Trial Attorney
New York Bar Registration No. 4709655 Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW – PHB Washington, DC 20530 Telephone: 202-305-1361 deena.fox@usdoj.gov
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 7/6/2017

CM/ECF LIVE - U.S. District Court: Mississippi Southern District

CLOSED,LRA,NO_CMC

U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:13-cv-00547-HTW-LRA

Disability Rights Mississippi v. CARES, Inc. Assigned to: District Judge Henry T. Wingate Referred to: Magistrate Judge Linda R. Anderson Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff Disability Rights Mississippi

Date Filed: 09/06/2013 Date Terminated: 09/28/2015 Jury Demand: Defendant Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by Eric A. Bensky - PHV SCHULTE ROTH & ZABEL, LLP Washington 1152 15th Street, NW, Suite 850 Washington, DC 20005 202/729-7470 Fax: 202/730-4520 Email: eric.bensky@srz.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jerri Katzerman - PHV SOUTHERN POVERTY LAW CENTER Montgomery P. O. Box 2087 400 Washington Avenue (36104) Montgomery, AL 36102 334/956-8320 Fax: 334/956-8481 Email: jerri.katzerman@splcenter.org (Inactive) TERMINATED: 04/10/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jody E. Owens , II SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: jody.owens@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joi L. Owens

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CM/ECF LIVE - U.S. District Court: Mississippi Southern District
DISABILITY RIGHTS MISSISSIPPI 210 East Capitol Street, Suite 600 Jackson, MS 39201 601/968-0600 Fax: 601/968-0665 Email: jowens@drms.ms LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendy Wilson White DISABILITY RIGHTS MISSISSIPPI 210 East Capitol Street, Suite 600 Jackson, MS 39201 601/968-0600 Fax: 601/968-0665 Email: wwhite@drms.ms (Inactive) TERMINATED: 07/08/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke L. McCarthy SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: brooke.mccarthy@splcenter.org ATTORNEY TO BE NOTICED

Elissa F. Johnson SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Email: elissa.johnson@splcenter.org TERMINATED: 09/10/2015 ATTORNEY TO BE NOTICED

Frances Kay Hardage DISABILITY RIGHTS MISSISSIPPI 210 East Capitol Street, Suite 600 Jackson, MS 39201 601/968-0600 Fax: 601/968-0665 Email: khardage@drms.ms ATTORNEY TO BE NOTICED

https://ecf.mssd.uscourts.gov/cgi-bin/DktRpt.pl?327888893492574-L_1_0-1

Ira A. Burnim - PHV BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, DC 20005
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CM/ECF LIVE - U.S. District Court: Mississippi Southern District
202/467-5730 - ext 320 Fax: 202/223-0409 Email: irabster@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Andrew Canter SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: andrew.canter@splcenter.org (Inactive) TERMINATED: 08/26/2014 ATTORNEY TO BE NOTICED

V. Defendant CARES, Inc.

represented by Sheryl Bey BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC Jackson One Eastover Center 100 Vision Drive, Suite 400 P. O. Box 14167 (39236-4167) Jackson, MS 39211 601/351-2400 Email: sbey@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arin Clark Adkins CLARK & CLARK, PA - Jackson 2906 N. State Street, Suite 330 Jackson, MS 39216 601/981-1568 Fax: 601/960-1022 Email: arin@clarkatty.com (Inactive) ATTORNEY TO BE NOTICED
Ebony S. Johnson - PHV KIRKLAND & ELLIS, LLP - Washington 655 Fifteenth St., N.W., Ste. 1200 Washington, DC 20005-5793 202/879-5269 Email: ebony.johnson@kirkland.com (Inactive) PRO HAC VICE ATTORNEY TO BE NOTICED

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Counter Claimant CARES, Inc.

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
Savaria B. Harris - PHV KIRKLAND & ELLIS, LLP - Washington 655 Fifteenth St., N.W., Ste. 1200 Washington, DC 20005-5793 202/879-5215 Fax: 202/654-9643 Email: savaria.harris@kirkland.com (Inactive) TERMINATED: 08/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Sheryl Bey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arin Clark Adkins (See above for address) ATTORNEY TO BE NOTICED

Ebony S. Johnson - PHV (See above for address) ATTORNEY TO BE NOTICED

Amicus
United States Department of Justice Civil Rights Decision Special Litigation Section 950 Pennsylvania Ave Washington, DC 20530 2023051361

Savaria B. Harris - PHV (See above for address) TERMINATED: 08/21/2014 ATTORNEY TO BE NOTICED
represented by Deena Fox-Federal Gov U. S. DEPARTMENT OF JUSTICE 601 D Street NW Washington, DC 20004 202/305-1361 Email: deena.fox@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitzi Dease Paige-Federal Gov U. S. ATTORNEY'S OFFICE - Jackson 501 East Court Street Suite 4.430 Jackson, MS 39201 601/973-2840 965-4480 Fax: 601/965-4409 or 4032 Email: Mitzi.paige@usdoj.gov ATTORNEY TO BE NOTICED

Counter Defendant Disability Rights Mississippi

represented by Jerri Katzerman - PHV

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CM/ECF LIVE - U.S. District Court: Mississippi Southern District
(See above for address) TERMINATED: 04/10/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Wilson White (See above for address) TERMINATED: 07/08/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke L. McCarthy (See above for address) ATTORNEY TO BE NOTICED
Elissa F. Johnson (See above for address) TERMINATED: 09/10/2015 ATTORNEY TO BE NOTICED
Eric A. Bensky - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Andrew Canter (See above for address) TERMINATED: 08/26/2014 ATTORNEY TO BE NOTICED

Date Filed 09/06/2013
09/06/2013 09/06/2013 09/06/2013

# Docket Text
1 COMPLAINT against Mississippi Children's Home Services ( Filing fee $ 400 receipt number 34643023535), filed by Disability Rights Mississippi. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A Amended Cooperative Agreement, # 3 Exhibit B Memo, # 4 Exhibit C Preliminary Injunction Order, # 5 Order)(SEC) (Attachment 5 replaced on 9/6/2013) (SEC). (Additional attachment(s) added on 9/6/2013: # 6 Exhibit D Letter) (SEC). (Entered: 09/06/2013)
2 MOTION for Preliminary Injunction by Disability Rights Mississippi (Attachments: # 1 Exhibit A Agreement between DRMS and Southern Poverty Law Center, # 2 Exhibit B Correspondence of Counsel, # 3 Exhibit C Orders issued by Judges Jordan and Starrett, # 4 Exhibit D Defendant's Denial Letter)(Canter, Joseph) (Entered: 09/06/2013)
3 MEMORANDUM in Support re 2 MOTION for Preliminary Injunction filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 09/06/2013)
4 Summons Issued as to Mississippi Children's Home Services. (cwl) (Entered: 09/09/2013)

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09/09/2013

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
5 Summons Returned Unexecuted by Disability Rights Mississippi as to Mississippi Children's Home Services. (Canter, Joseph) (Entered: 09/09/2013)

09/09/2013

6 Summons Reissued as to Mississippi Children's Home Services. (cwl) (Entered: 09/09/2013)

09/10/2013

7 SUMMONS Returned Executed by Disability Rights Mississippi Mississippi Children's Home Services served on 9/9/2013, answer due 9/30/2013. (Canter, Joseph) (Entered: 09/10/2013)

09/13/2013

8 NOTICE of Appearance by Arin Clark Adkins on behalf of Mississippi Children's Home Services (Adkins, Arin) (Entered: 09/13/2013)

09/25/2013

9 Corporate Disclosure Statement by Mississippi Children's Home Services (Adkins, Arin) (Entered: 09/25/2013)

09/25/2013

10 First MOTION for Extension of Time to File Response/Reply to Compliant and Preliminary Injunction by Mississippi Children's Home Services (Adkins, Arin) (Entered: 09/25/2013)

09/25/2013

11 RESPONSE in Opposition re 10 First MOTION for Extension of Time to File Response/Reply to Compliant and Preliminary Injunction filed by Disability Rights Mississippi (Attachments: # 1 Exhibit A - Correspondence)(Canter, Joseph) (Entered: 09/25/2013)

09/30/2013

12 ORDER granting 10 Motion for Extension of Time to File Response/Reply re 2 MOTION for Preliminary Injunction Responses due by 10/30/2013 Signed by District Judge Henry T. Wingate on 9/30/13 (TRS) (Entered: 09/30/2013)

10/18/2013

13 NOTICE of Appearance by Sheryl Bey on behalf of Mississippi Children's Home Services (Bey, Sheryl) (Entered: 10/18/2013)

10/29/2013

14 MOTION for Savaria B. Harris to Appear Pro Hac Vice by Mississippi Children's Home Services (Attachments: # 1 Exhibit A-Certificate of Good Standing)(Bey, Sheryl) (Entered: 10/29/2013)

10/29/2013

15 MOTION for Ebony S. Johnson to Appear Pro Hac Vice by Mississippi Children's Home Services (Attachments: # 1 Exhibit A-Certificate of Good Standing)(Bey, Sheryl) (Entered: 10/29/2013)

10/29/2013

16 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, , Unopposed MOTION for Extension of Time to File Response/Reply as to 3 Memorandum in Support of Motion, 2 MOTION for Preliminary Injunction by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 10/29/2013)

10/30/2013

Pro Hac Vice fee paid by (Savaria B. Harris) $ 100, receipt number 34643024448 (cwl) (Entered: 10/30/2013)

10/30/2013

Pro Hac Vice fee paid by (Ebony S. Johnson) $ 100, receipt number 34643024449 (cwl) (Entered: 10/30/2013)

10/31/2013

TEXT-ONLY ORDER granting 14 Motion to Appear Pro Hac Vice of SAVARIA B. HARRIS; and granting 15 Motion to Appear Pro Hac Vice of EBONY S. JOHNSON. Signed by Magistrate Judge Linda R. Anderson on 10/31/2013. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 10/31/2013)

11/04/2013

TEXT ONLY ORDER granting unopposed 16 Motion for Extension of Time to Answer; Mississippi Children's Home Services answer due 11/29/2013; granting 16 Motion for Extension of Time to File Response to Motion for Preliminary Injunction 2 ; response due 11/29/2013. Good cause shown; settlement negotiations pending. NO WRITTEN ORDER

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11/26/2013 11/27/2013
12/13/2013 12/13/2013 12/13/2013 12/16/2013 12/19/2013 12/23/2013 12/23/2013 12/27/2013 12/31/2013 01/03/2014 01/03/2014 01/06/2014 01/06/2014 01/07/2014 01/07/2014

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
TO FOLLOW. Signed by Magistrate Judge Linda R. Anderson on 11/4/2013. (ACF) (Entered: 11/04/2013)
17 Unopposed MOTION for Extension of Time to File Response/Reply as to 1 Complaint, 2 MOTION for Preliminary Injunction , Unopposed MOTION for Extension of Time to File by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 11/26/2013)
TEXT-ONLY ORDER granting 17 Motion for Extension of Time to File Response/Reply re 2 MOTION for Preliminary Injunction ( Responses due by 12/13/2013) and Motion for Extension of Time to File Response to Complaint. Signed by Magistrate Judge Linda R. Anderson on 11/27/2013. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 11/27/2013)
18 ANSWER to 1 Complaint, with Jury Demand , COUNTERCLAIM against Disability Rights Mississippi by Mississippi Children's Home Services.(Bey, Sheryl) (Entered: 12/13/2013)
19 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 12/13/2013)
20 MEMORANDUM in Opposition re 2 MOTION for Preliminary Injunction filed by Mississippi Children's Home Services (Attachments: # 1 Exhibit "1" - Order, # 2 Exhibit "2" - Agreed Order)(Bey, Sheryl) (Entered: 12/13/2013)
21 Rule 16(a) Initial Order Telephonic Case Management Conference set for 1/21/2014 11:30 AM before Magistrate Judge Linda R. Anderson (WG) (Entered: 12/16/2013)
22 Unopposed MOTION for Leave to File Excess Pages by Disability Rights Mississippi (Canter, Joseph) (Entered: 12/19/2013)
23 Rebuttal re 2 MOTION for Preliminary Injunction filed by Disability Rights Mississippi (Attachments: # 1 Exhibit Bey email, # 2 Exhibit August 23 Denial Letter, # 3 Exhibit USA 8th Circuit Brief)(Canter, Joseph) (Entered: 12/23/2013)
24 MOTION to Strike by Disability Rights Mississippi (Attachments: # 1 Exhibit - Nov 26 email)(Canter, Joseph) (Entered: 12/23/2013)
25 RESPONSE in Opposition re 24 MOTION to Strike filed by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 12/27/2013)
26 ORDER granting 22 Motion for Leave to File Excess Pages Signed by District Judge Henry T. Wingate on 12/30/13 (TRS) (Entered: 12/31/2013)
27 MOTION to Dismiss Counterclaim by Disability Rights Mississippi (Canter, Joseph) (Entered: 01/03/2014)
28 MEMORANDUM in Support re 27 MOTION to Dismiss Counterclaim filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 01/03/2014)
29 MOTION for Jerri Katzerman to Appear Pro Hac Vice by Disability Rights Mississippi (Attachments: # 1 Exhibit A Certificate of Good Standing)(Canter, Joseph) (Entered: 01/06/2014)
30 Rebuttal re 24 MOTION to Strike filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 01/06/2014)
Pro Hac Vice fee paid for Jerri Katzerman receipt number 0538-2588198 $ 100 (Canter, Joseph) (Entered: 01/07/2014)
TEXT-ONLY ORDER granting 29 Motion to Appear Pro Hac Vice of JERRI

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01/14/2014 01/21/2014 01/21/2014 01/21/2014
01/21/2014 01/22/2014
01/23/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/27/2014
01/27/2014

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
KATZERMAN as co-counsel. Signed by Magistrate Judge Linda R. Anderson on 1/07/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 01/07/2014)
31 Unopposed MOTION for Extension of Time to File Responsive Pleadings to Plaintiff's Motion to Dismiss Counterclaim [Dkt. #27] by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 01/14/2014)
32 MOTION for Ira Burnim to Appear Pro Hac Vice by Disability Rights Mississippi (Attachments: # 1 Exhibit A - Burnim Certificate of Good Standing, # 2 Exhibit B - Bar Admission List)(Canter, Joseph) (Entered: 01/21/2014)
Pro Hac Vice fee paid for Ira Burnim receipt number 0538-2599515 $ 100 (Canter, Joseph) (Entered: 01/21/2014)
Minute Entry for proceedings held before Magistrate Judge Linda R. Anderson: Telephonic Case Management Conference convened on 1/21/2014. Participants: Jody Owens, II, Andrew Canter and Wendy White. Court discussed case wqith counsel. Telephonic Case Management Conference will be rescheduled for 1/27/2014 to allow counsel to confer and prepare a proposed scheduling order. (WG) (Entered: 01/21/2014)
NOTICE OF SETTING: Telephonic Case Management Conference set to reconvene on 1/27/2014 09:00 AM before Magistrate Judge Linda R. Anderson. Counsel for plaintiff to initiate conference call. Telephone number: 601-608-4440. (WG) (Entered: 01/21/2014)
TEXT-ONLY ORDER granting 32 Motion to Appear Pro Hac Vice of IRA BURNIM as co-counsel for Disability Rights Mississippi. Signed by Magistrate Judge Linda R. Anderson on 1/22/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 01/22/2014)
33 Unopposed MOTION to Amend/Correct 1 Complaint, (Correct Misnomer) by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 01/23/2014)
34 NOTICE OF CONVENTIONAL FILING filed by Disability Rights Mississippi. (RRL) (Entered: 01/24/2014)
35 STATEMENT Regarding Defendant's Requested Discovery filed by Disability Rights Mississippi. (RRL) (Entered: 01/24/2014)
36 RESPONSE in Opposition re 27 MOTION to Dismiss Counterclaim filed by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 01/24/2014)
37 MEMORANDUM in Opposition re 27 MOTION to Dismiss Counterclaim filed by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 01/24/2014)
TEXT ONLY ORDER granting Defendant's unopposed 33 Motion to Correct Misnomer. The Clerk is directed to alter the docket of this case to reflect the proper name of Defendant as "CARES, Inc." Any reference to Mississippi Children's Home Services shall be deleted; all further pleadings shall reflect the proper name of Defendant, CARES, Inc. NO WRITTEN ORDER TO FOLLOW. Signed by Magistrate Judge Linda R. Anderson on 1/27/2014. (ACF) (Entered: 01/27/2014)
Minute Entry for proceedings held before Magistrate Judge Linda R. Anderson: Telephonic Case Management Conference reconvened on 1/27/2014. Participants: Andrew Canter, Jody Owqens, Ebony Johnson and Sheryl Bey. Conference convened. Court heard arguments of counsel. Discovery will be stayed pending a ruling on the motion for injunctive relief. Any requested discovery related to injunctive relief will be addressed by the District Judge. (WG) (Entered: 01/27/2014)

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01/27/2014
01/27/2014 02/03/2014 02/05/2014 02/07/2014 02/07/2014 02/07/2014 02/11/2014 02/13/2014 02/13/2014 02/14/2014 02/18/2014 02/19/2014
02/20/2014
03/03/2014

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
ORDER STAYING DISCOVERY pending a ruling on the motion for injunctive relief. Any requested discovery related to injunctive relief will be addressed by the District Judge. Signed by Magistrate Judge Linda R. Anderson on 1/27/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 01/27/2014)
38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues by Disability Rights Mississippi (Canter, Joseph) (Entered: 01/27/2014)
39 Rebuttal re 27 MOTION to Dismiss Counterclaim filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 02/03/2014)
40 STATEMENT OF INTEREST OF THE UNITED STATES, Amicus Curiae APPEARANCE entered by Deena Fox on behalf of United States Department of Justice (Fox, Deena) Modified on 2/6/2014 (cwl). (Entered: 02/05/2014)
41 MOTION To Introduce Live Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction (Dkt. #2) re 2 MOTION for Preliminary Injunction by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 02/07/2014)
42 RESPONSE in Opposition re 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues filed by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 02/07/2014)
43 MEMORANDUM in Opposition re 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues filed by CARES, Inc.. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 02/07/2014)
44 NOTICE of Appearance by Mitzi Dease Paige on behalf of United States Department of Justice (Paige, Mitzi) (Entered: 02/11/2014)
45 Rebuttal re 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 02/13/2014)
46 RESPONSE in Opposition re 41 MOTION To Introduce Live Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction (Dkt. #2) re 2 MOTION for Preliminary Injunction filed by Disability Rights Mississippi (Canter, Joseph) (Entered: 02/13/2014)
47 MOTION to Introduce Surrebuttal Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction [Dkt. #2] by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 02/14/2014)
48 RESPONSE to Motion re 40 Amicus Curiae Appearance filed by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 02/18/2014)
49 RESPONSE in Support re 41 MOTION To Introduce Live Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction (Dkt. #2) re 2 MOTION for Preliminary Injunction filed by Mississippi Children's Home Services (Bey, Sheryl) (Entered: 02/19/2014)
NOTICE OF SETTING as to 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues . Telephonic Motion Hearing set for 3/4/2014 09:00 AM before Magistrate Judge Linda R. Anderson. Movant to initiate conference call. Telephone number: 601-608-4440. (WG) (Entered: 02/20/2014)
50 RESPONSE in Opposition re 47 MOTION to Introduce Surrebuttal Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction 2 filed by Disability Rights Mississippi (Attachments: # 1 Exhibit A - Letter from Counsel for DRMS to Court) (Canter, Joseph) (Entered: 03/03/2014)

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03/04/2014
03/12/2014 07/03/2014 07/07/2014 07/08/2014 08/12/2014
08/12/2014 08/14/2014 08/14/2014
08/19/2014 08/20/2014 08/21/2014 08/21/2014

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
Minute Entry for proceedings held before Magistrate Judge Linda R. Anderson: TelephonicMotion Hearing held on 3/4/2014 re 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues filed by Disability Rights Mississippi. Participants: Jerri Katzerman, Jody E. Owens II, Joseph Andrew Canter, Sheryl Bey, Ebony Johnson and Savaria Harris. The Magistrate Judge heard argument and finds it appropriate to defer to the Ditrict Judge to determine whether additional information via discovery is necessary to his determination of the Motion for Preliminary Injunctive Relief. (WG) (Entered: 03/04/2014)
51 RESPONSE in Support re 47 MOTION to Introduce Surrebuttal Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction [Dkt. #2] filed by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 03/12/2014)
TEXT ONLY ORDER finding as moot 31 Motion for Extension of Time to File. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. Signed by District Judge Henry T. Wingate on 7/3/14 (TRS) (Entered: 07/03/2014)
52 MOTION to Substitute Attorney by Disability Rights Mississippi (Hardage, Frances) (Entered: 07/07/2014)
53 ORDER granting 52 Motion to Substitute Attorney. Attorney Wendy Wilson White terminated. Signed by Magistrate Judge Linda R. Anderson on 7/8/2014. (WG) (Entered: 07/08/2014)
NOTICE of Hearing on Motion 41 MOTION To Introduce Live Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction (Dkt. #2) re 2 MOTION for Preliminary Injunction , 27 MOTION to Dismiss Counterclaim, 24 MOTION to Strike , 47 MOTION to Introduce Surrebuttal Testimony at the Plaintiff's Hearing on its Motion for Preliminary Injunction [Dkt. #2] , 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual Issues , 2 MOTION for Preliminary Injunction : Motion Hearing set for 8/26/2014 09:30 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate (TRS) (Entered: 08/12/2014)
54 MOTION for Resetting Hearing by CARES, Inc. (Bey, Sheryl) Modified on 7/15/2015 (cwl). (Entered: 08/12/2014)
Set Hearings: Telephone Conference set for 8/14/2014 11:00 AM before District Judge Henry T. Wingate (TRS) (Entered: 08/14/2014)
Minute Entry for proceedings held before District Judge Henry T. Wingate. VIA TELPHONE: J. Owens, J. Canter, and F. Hardage, plaintiff's counsel; S. Bey, E. Johnson, and S. Harris, defense counsel. Telephone Conference held on 8/14/2014. The Court GRANTED 54 Motion for Resetting August 26, 2014 Hearing. An order will be forthcoming. (TRS) (Entered: 08/14/2014)
55 ORDER denying 41 Motion to Present Live Testimony; finding as moot 47 Motion to Introduce Surrebuttal Testimony; granting 54 Motion for Hearing Signed by District Judge Henry T. Wingate on 8/19/14 (TRS) (Entered: 08/19/2014)
56 MOTION to Withdraw as Attorney for the Defendant by CARES, Inc. (Harris - PHV, Savaria) Modified on 7/15/2015 (cwl). (Entered: 08/20/2014)
TEXT-ONLY ORDER granting 56 Motion to Withdraw as Attorney. Attorney Savaria B. Harris - PHV terminated. Signed by Magistrate Judge Linda R. Anderson on 8/21/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 08/21/2014)
NOTICE of Hearing on Motion 27 MOTION to Dismiss Counterclaim, 24 MOTION to Strike , 38 MOTION to Deny Defendant's Request for Discovery on Undisputed Factual

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CM/ECF LIVE - U.S. District Court: Mississippi Southern District
Issues , 2 MOTION for Preliminary Injunction : Motion Hearing set for 9/18/2014 09:30 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate (TRS) (Entered: 08/21/2014)

08/25/2014

57 MOTION to Withdraw as Attorney by Disability Rights Mississippi (Canter, Joseph) (Entered: 08/25/2014)

08/26/2014

TEXT-ONLY ORDER granting 57 Motion to Withdraw as Attorney. Attorney Joseph Andrew Canter terminated. Signed by Magistrate Judge Linda R. Anderson on 8/26/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 08/26/2014)

09/02/2014

58 MOTION for Eric A. Bensky to Appear Pro Hac Vice by Disability Rights Mississippi (Attachments: # 1 Exhibit A Certificates of Good Standing)(Owens, Jody) (Entered: 09/02/2014)

09/02/2014

Pro Hac Vice fee paid for Eric A. Bensky receipt number 0538-2762547 $ 100 (Owens, Jody) (Entered: 09/02/2014)

09/03/2014

TEXT-ONLY ORDER granting 58 Motion to Appear Pro Hac Vice of ERIC A. BENSKY as co-counsel. Signed by Magistrate Judge Linda R. Anderson on 9/03/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 09/03/2014)

09/10/2014

59 NOTICE of Appearance by Joi L. Owens on behalf of Disability Rights Mississippi (Owens, Joi) (Entered: 09/10/2014)

09/17/2014

Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: Jodi Owens, plaintiff's counsel; Sheryl Bey, defense counsel.Telephone Conference held on 9/17/2014. The parties announced to the court that they have entered into a tentative working agreement to resolve this dispute, therefore, the hearing scheduled on 9/18/14 has been cancelled. Meanwhile, the court will place all pending motions on its inactive docket. If needed, the motions will be placed back on its active docket if the parties cannot come to terms with a resolution. The parties are to report back to the court in 6 months. (TRS) (Entered: 09/17/2014)

09/19/2014

60 ORDER ADOPTING TENTATIVE WORKING AGREEMENT TO RESOLVE DISPUTE. The court places on its inactive docket 24 Motion to Strike ; 27 Motion to Dismiss; 2 Motion for Preliminary Injunction; and 38 Motion to Deny Request for Discovery. Meanwhile, this lawsuit will disappear form the court's active docket and case load. Signed by District Judge Henry T. Wingate on 9/19/14 (TRS) (Entered: 09/19/2014)

04/09/2015

61 MOTION to Substitute Attorney Elissa Johnson, MOTION to Withdraw as Attorney Jerri Katzerman by Disability Rights Mississippi (Johnson, Elissa) (Entered: 04/09/2015)

04/10/2015

TEXT-ONLY ORDER granting 61 Motion to Substitute Attorney and granting 61 Motion to Withdraw as Attorney. Attorney Jerri Katzerman - PHV terminated. Signed by Magistrate Judge Linda R. Anderson on 4/10/2015. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 04/10/2015)

07/15/2015

DOCKET ANNOTATION: Pursuant to Text Only Order filed 1/27/2014 docket modified to reflect CARES, Inc. instead of Mississippi Children's Home Services. (cwl) (Entered: 07/15/2015)

09/09/2015

62 MOTION to Withdraw as Attorney Elissa Johnson, MOTION to Substitute Attorney Brooke McCarthy by Disability Rights Mississippi (Johnson, Elissa) (Entered: 09/09/2015)

09/10/2015

TEXT-ONLY ORDER granting 62 Motion to Withdraw as Attorney. Attorney Elissa F. Johnson terminated; and granting 62 Motion to Substitute Attorney. Added attorney Brooke L. McCarthy for Disability Rights Mississippi. Signed by Magistrate Judge Linda

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09/25/2015
09/25/2015 09/28/2015 09/28/2015 09/28/2015 09/28/2015

CM/ECF LIVE - U.S. District Court: Mississippi Southern District
R. Anderson on 9/10/2015. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 09/10/2015)
Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: Jody Owens, Joi Owens, and Brooke McCarthy, plaintiff's counsel; Sheryl Bey, defense counsel. Telephone Conference held on 9/25/2015. Plaintiff's counsel will file a motion to reopen the case by Monday, September 28, 2015. Thereafter, a Stipulation of Dismissal will be filed with the Settlement Agreement as an exhibit filed UNDER SEAL. (TRS) (Entered: 09/25/2015)
63 Joint MOTION to Reopen Case For The Limited Purpose of Filing Exhibit to Stipulation of Dismissal Without Prejudice Under Seal by Disability Rights Mississippi (Owens, Jody) (Entered: 09/25/2015)
64 STIPULATION of Dismissal Jointly Stipulated by CARES, Inc. (Bey, Sheryl) (Entered: 09/28/2015)
65 Sealed Document filed by Cares, Inc.. (cwl) Modified on 9/28/2015 (cwl). (Entered: 09/28/2015)
66 NOTICE OF CONVENTIONAL FILING filed by CARES, Inc, re 65 Sealed Document. (cwl) (Entered: 09/28/2015)
67 ORDER, Case reopened. Signed by District Judge Henry T. Wingate on 9/28/2015 (cwl) (Entered: 09/28/2015)

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 Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 1 of 10

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

DISABILITY RIGHTS MISSISSIPPI
v.

~ 1:'~:\!:N"TIFF ·
CAUSE NO. ~·.J~@547 HTzv-Lf2A

MISSISSIPPI CHILDREN'S HOME SERVICES

DEFENDANT

COMPLAINT Plaintiff Disability Rights Mississippi files this Complaint against Mississippi Children's Home Services to gain monitoring access to the "CARES Center," a Psychiatric Residential Treatment Facility operated by Defendant. The purpose of this action is to protect children living in the CARES Center from harm and enforce the children's federal statutory right to an effective, meaningful Protection and Advocacy ("P&A") System.
Parties 1. Plaintiff Disability Rights Mississippi ("DRMS") is a nonprofit organization with a federal mandate to protect the rights of individuals with disabilities. DRMS was formerly known as the Mississippi Protection and Advocacy System. Among other activities, DRMS and its agents travel across the State of Mississippi monitoring conditions and treatment in facilities housing individuals with disabilities. 2. Defendant Mississippi Children's Home Services is a nonprofit organization that provides psychiatric and educational services to children in Mississippi. The service relevant to this litigation is the Defendant's operation of the CARES Center, a Psychiatric Residential Treatment Facility in Jackson, Mississippi, which provides treatment to "children with severe emotional or behavioral disturbances." See CARES Center, available at

Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 2 of 10

http://www.mchscares.org/statewide-services/campus-based/cares-center/ (last accessed Aug. 22,

2013). The Defendant may be served with process via its registered agent, Sherry Rowlett, at

1900 N. West Street, Jackson MS 39202.

Jurisdiction and Venue

3. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because DRMS alleges

violations of its rights under the Protection and Advocacy for Individuals with Mental Illness Act

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

Assistance

and

Bill

of Rights

Act

of2000

(the

"PADD

Act")

1 ,

42

U.S.C.

§§

15001

et

seq.;

and

the Protection and Advocacy of Individual Rights Program (the "PAIR Act"), 29 U.S.C. §§ 794e

et seq. These three laws are collectively referred to as "the P&A Acts."

4. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Defendant

resides in this District and the acts and omissions complained of occurred in this District.

Factual Allegations

The P&A Acts

5. In the PAIMI Act, Congress recognized that "individuals with mental illness are

vulnerable to abuse and serious injury ... [and] subject to neglect, including lack of treatment,

adequate nutrition, clothing, health care, and adequate discharge planning." 42 U.S.C. §

10801(a). Congress further recognized that "State systems for monitoring compliance with

respect to the rights of individuals with mental illness vary widely and are frequently

inadequate." !d. § 10801(a)(4).

6. To address these problems, the PAIMI Act "assist[s] States to establish and

operate a protection and advocacy system for individuals with mental illness which will . . .

protect and advocate the rights of such individuals through activities to ensure the enforcement

1 This Act is sometimes referenced in case law as the "DD Act."
2

Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 3 of 10
of the Constitution and Federal and State statutes; and ... investigate incidents of abuse and neglect of individuals." /d. § 10801 (b)(2).
7. Similarly, the PADD Act authorizes the same system "to protect the legal and human rights of individuals with developmental disabilities." /d. § 15041. The PAIR Act, meanwhile, authorizes that system "to protect the legal and human rights of individuals with disabilities who" are not covered under the PAlMI or PADD Acts. 29 U.S.C. § 794e(a)(l).
8. As a result of the P&A Acts, every state has created a "Protection and Advocacy System," or "P&A." "There is a P&A/CAP agency in every state and U.S. territory as well as one serving the Native American population in the P&A/CAP network is the largest provider of legally based advocacy services to people with disabilities in the United States." National Disability Rights Network, Member Agencies, available at http://www.ndm.org/en/ndmmember-agencies.html (last accessed Aug. 22, 2013).
9. While not identical, the P&A Acts overlap in many respects. In the PAIR Act, for example, Congress gave each P&A "the same general authorities, including access to records and program income, as are set forth in" the PADD Act. 29 U.S.C. § 794e(f)(2); see, e.g., Connecticut Office ofProt. & Advocacy For Persons With Disabilities v. Hartford Bd ofEduc., 464 F.3d 229, 240 (2d Cir. 2006) (concluding that the PAlMI, PADD and PAIR Acts all granted Connecticut's P&A access to a non-residential facility providing services to individuals with emotional impairments).
10. Under federal law, each P&A "shall have the power to bring legal actions to ensure the protection of its constituents and to litigate on behalf of its constituents." Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 375 (7th Cir. 2010) (en bane); see 42 U.S.C. §§ 10805(a)(l)(B), 15043(a)(2)(A)(i).
3

Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 4 of 10
DRMS's Access Authority 11. DRMS is the P&A in Mississippi. See Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054, 1056 (5th Cir. 1991) (affirming Judge Lee's "careful and scholarly memorandum opinion" and injunction granting the Mississippi P&A access to a residential facility housing adults with intellectual disabilities). 12. In order to protect individuals with disabilities, the P&A Acts provide DRMS with physical access to facilities housing individuals with disabilities. 13. For example, the PAIMI Act states that a P&A "shall ... have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3). Similarly, the PADD Act states that a P&A "shall . . . have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual, in order to carry out the purpose of this part." !d. § 15043(a)(2)(H). The authority granted by the PAIR Act is identical to that granted by the PADD Act. See~ 9, supra. 14. More specifically, the regulations implementing the PAlMI Act state that "a P&A system shall have reasonable unaccompanied access to facilities including all areas which are used by residents, are accessible to residents, and to programs and their residents at reasonable times, which at a minimum shall include normal working hours and visiting hours. Residents include adults or minors who have legal guardians or conservators. P&A activities shall be conducted so as to minimize interference with facility programs, respect residents' privacy interests, and honor a resident's request to terminate an interview." 42 C.F.R. § 51.42(c). 15. The same regulation further provides that "[t]his access is for the purpose of: (1) Providing information and training on, and referral to programs addressing the needs of
4

Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 5 of 10
individuals with mental illness, and information and training about individual rights and the protection and advocacy services available from the P&A system, including the name, address, and telephone number of the P&A system; (2) Monitoring compliance with respect to the rights and safety of residents; and (3) Inspecting, viewing and photographing all areas of the facility which are used by residents or are accessible to residents." !d.
16. The access provisions of the PAIMI Act apply with full force to the CARES Center because it is a "public or private residential setting that provides overnight care accompanied by treatment services." 42 C.F.R. § 51.2. In short, the CARES Center is a covered entity because it "render[s] care or treatment for individuals with mental illness."2 Id. § 51.42(b).
17. The regulations implementing the PADD Act are similar. They provide that a P&A "and all of its authorized agents shall have unaccompanied access to all residents of a facility at reasonable times, which at a minimum shall include normal working hours and visiting hours, for the purpose of: (1) Providing information and training on, and referral to, programs addressing the needs of individuals with developmental disabilities, and the protection and advocacy services available from the system, including the name, address, and telephone number of the system and other information and training about individual rights; and (2) Monitoring compliance with respect to the rights and safety of service recipients." 45 C.F.R. § 1386.22(g).
18. To the extent there are residents with developmental disabilities, the access provisions of the PADD Act also apply to the CARES Center because it is a "setting that provides care, treatment, services and habilitation, even if only 'as needed' or under a contractual arrangement." 45 C.F.R. § 1386.19. In other words, the CARES Center would have to provide access because it "provide[s] services, supports, and other assistance for individuals with
2 For purposes of the P&A Acts, behavioral and emotional disorders are treated the same as mental illness. 5

Case 3:13-cv-00547-HTW-LRA Document 1 Filed 09/06/13 Page 6 of 10
developmental disabilities." /d. § 1386.22(±); see Connecticut Office of Prot. & Advocacy, 464 F.3d at 241.
19. To the extent the CARES Center does not provide care, treatment, services, or habilitation for individuals with developmental disabilities, the PAIR Act authorizes DRMS "to protect the legal and human rights of individuals with disabilities who" are not covered under the PAlMI or PADD Acts, on access terms identical to the PADD Act. 29 U.S.C. § 794e(a)(1).
20. The P&A Acts authorize DRMS "to enter into contracts with State agencies and nonprofit organizations which operate throughout the State." 42 U.S.C. § 10804(a)(l). DRMS has contracted with Southern Poverty Law Center (SPLC), a nonprofit organization, to assist in fulfilling its statutory obligations. See Exhibit A (Agreement between DRMS and SPLC).
21. The Agreement gives SPLC "access to detention centers, correctional and mental health facilities housing individuals with mental illness, developmental disabilities, and/or other disabilities under the age of 22," including monitoring authority, as authorized under the P&A Acts. !d. (citing 42 U.S.C. § 10804(a)(1)); see also 42 C.F.R. § 51.42(a) ("Access to facilities and residents shall be extended to all authorized agents of a P&A system.").
22. DRMS and SPLC currently have access to several other Psychiatric Residential Treatment Facilities across the State of Mississippi. DRMS and SPLC conduct regular monitoring visits at those facilities in accordance with the P&A Acts.
Defendant's Denial ofAccess 23. On July 30, 2013, SPLC spoke with counsel for Defendant to schedule a periodic monitoring visit to the CARES Center. See Exhibit B (Correspondence of Counsel). 24. Over the next several days, SPLC provided counsel for Defendant with citations to federal statutes, federal regulations, and federal court decisions granting P&A systems and
6

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their agents access to facilities housing individuals with disabilities. !d. Those authorities included Orders issued by Judges Jordan and Starrett of this Honorable Court, which are attached as Exhibit C.3 !d. SPLC addressed counsel's specific concerns regarding HIPAA, the type of facilities authorized under the P&A Acts, Mississippi law, and the nature of SPLC's relationship with DRMS. !d.
25. On August 2, SPLC invoked its right to a written statement of reasons from the CARES Center explaining why the CARES Center was denying DRMS and SPLC monitoring access. !d. at 7 (citing 45 C.P.R.§ 1386.22(i) and 42 C.P.R.§ 51.43). SPLC requested a response by August 9. !d.
26. On August 13, counsel for Defendant issued a written letter formally denying SPLC monitoring access to the CARES Center. See Exhibit D (Denial Letter). Counsel for Defendant concluded that "[a]ccording to my interpretation of these regulations, absent an allegation of abuse/neglect, an authorized consent or a court document is required" before DRMS or its agents may engage in monitoring at the CARES Center. !d. at 2.
27. DRMS and SPLC subsequently concluded that this dispute would not be resolved within a reasonable time. See 42 U.S.C. § 10807(a).
Cause of Action 28. DRMS incorporates the prior paragraphs as if fully realleged herein. 29. Defendant has violated DRMS's federal statutory right to timely, full, meaningful, and unaccompanied access to monitor children in the CARES Center, in violation of the P&A Acts. See id. §§ 10805(a)(3), 15043(a)(2)(H); 42 C.P.R.§ 51.42(c); 45 C.P.R.§ 1386.22(g).
3 In fact, in recent years, several other Judges in this District have issued similar Orders. See Disability Rights Mississippi v. Lauderdale Cnty., No. 4:09-cv-137-TSL-LRA (S.D. Miss. Nov. 9, 2009) (Lee, J.); Mississippi Protection & Advocacy System, Inc. v. Harrison Cnty., Miss., No. 1:09-cv-267-LG-RHN (S.D. Miss. June 11, 2009) (Guiro1a, C.J.).
7

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Necessity of Injunctive Relief 30. DRMS and the children it is charged with protecting lack an adequate remedy at law and will be irreparably harmed if Defendant is permitted to continue blocking DRMS and its agents access to monitor the children at the CARES Center. 31. Via separate motion filed this day, DRMS requests injunctive relief granting it and its agents access to monitor the children at the CARES Center.
Necessity of Costs of Court and Reasonable Attorney's Fees 32. Prior to filing this suit, DRMS and its agents sought to resolve this dispute amicably. See Exhibit B. 33. An amicable resolution could not be reached because counsel for Defendant has interposed meritless objections. Contrary to counsel's assertion, the question of access to facilities like the CARES Center is not a matter of first impression. See id. (collecting statutes, regulations, cases, and prior court orders). 34. In particular, counsel for Defendant's insistence on a separate court order granting DRMS monitoring access to each and every facility housing individuals with disabilities in Mississippi is unnecessary, inconsistent with federal law, and a waste of this Court's time. The plain language of the P&A Acts does not require DRMS to seek a court order before it may enter a facility housing individuals with disabilities. Such a requirement would have a chilling effect on the ability of DRMS -and every P&A agency nationwide- to conduct the basic and routine monitoring activities Congress expressly set forth in the P&A Acts. See Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358, 364 (M.D. La. 1999) ("it cannot be disputed that the delay in getting a court order frustrates the goal of the [PAlMI] Act."). As Judge Starrett wrote years ago, "Congress' recognition of the importance of protecting youth with disabilities would be undermined and
8

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fatally frustrated if states, localities, and institutions are permitted to enact policies that limit and restrict DRMS's access to facilities and records. The language of the federal regulations accompanying the PAIMI Act demonstrates the broad access rights that DRMS must have in accordance with federal law." Exhibit Cat 7.
35. Further, counsel for Defendant's objection on HIPAA grounds is not well-taken. DRMS and SPLC are not requesting any records at this time. If children in the CARES Center do not wish to discuss their protected health information with DRMS or SPLC, they do not have to sign up to speak with DRMS or SPLC.
36. Even if DRMS or SPLC were requesting records in accordance with the terms of the P&A Acts, however, they would be entitled to them over a HIPAA objection. See, e.g., Iowa Prot. & Advocacy Servs., Inc. v. Gerard Treatment Programs, L.L.C., 152 F. Supp. 2d 1150, 1175 (N.D. Iowa 2001) ("Nor can [defendant] realistically argue that an interest in maintaining confidentiality of the records outweighs permitting [Iowa's P&A] to have the access it seeks, even where a guardian objects, because IPAS must maintain the confidentiality of any records to the same extent [defendant] itself must.").
37. The purpose ofhaving federal statutes, regulations, and reported cases is to direct the conduct of the Nation's citizens and organizations. Individuals and organizations should need no court order directing them to comply with federal law. Just as a citizen pays taxes pursuant to the Internal Revenue Code without demanding a personal court order, Defendant should comply with federal law pursuant to the P&A Acts without demanding a personal court order.
38. For these reasons, DRMS requests that this Court award it costs and reasonable attorney's fees incurred in bringing this action, in an amount to be shown by evidence.
9

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Prayer for Relief
39. Wherefore, premises considered, DRMS prays that this Honorable Court grant:
a. A declaration that Defendant's denial of Plaintiffs access to monitor the
children in the CARES Center violates the P&A Acts;
b. A preliminary and permanent injunction requiring the Defendant, its
employees, and its agents to cease their unlawful behavior and provide DRMS
and its agent with timely, full, meaningful, and unaccompanied access to
monitor the CARES Center in accordance with the P&A Acts;
c. An award of costs and reasonable attorney's fees; and
d. Other such relief as the Court deems just.
RESPECTFULLY SUBMITTED, this the 6th day of September, 2013.
DISABILITY RIGHTS MISSISSIPPI
E. wens II, MSB # 102333 jo .owens@splcenter.org Andrew Canter, MSB # 102906 andrew. canter@splcenter.org SOUTHERN POVERTY LAW CENTER 111 East Capitol Street, Suite 280 Jackson, MS 39201 601-948-8882 (phone) 601-948-8885 (fax)
Wendy Wilson-White, MSB # 100409 wwhite@drms.ms DISABILITY RIGHTS MISSISSIPPI 210 East Capitol Street, Suite 600 Jackson, Mississippi 39201 601-968-0600 (phone) 601-968-0665 (fax)
Counsel for Plaintiff
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 Case 3:13-cv-00547-HTW-LRA Document 18 Filed 12/13/13 Page 1 of 12

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

DISABILITY RIGHTS OF MISSISSIPPI

PLAINTIFF

V.

CAUSE NO. 3:13-cv-00547-HTW-LRA

MISSISSIPPI CHILDREN'S HOME SERVICES

DEFENDANT

ANSWER AND AFFIRMATIVE DEFENSES OF CARES, INC., INCORRECTLY IDENTIFIED AS MISSISSIPPI CHILDREN'S HOME SERVICES

Defendant CARES, Inc., incorrectly identified as Mississippi Children's Home Services

("CARES") files this, its answer and affirmative defenses to the Complaint filed by Disability

Rights of Mississippi ("DRMS") as follows:

FIRST DEFENSE

The Complaint fails to state a claim or cause of action upon which any relief can be

granted. The Complaint should be dismissed pursuant to Federal Rule of Civil Procedure

12(b)(6).

SECOND DEFENSE

DRMS lacks standing.

THIRD DEFENSE

DRMS failed to exhaust all avenues available, including mediation, to resolve this

dispute through a non-adversarial process before filing suit.

FOURTH DEFENSE

This Court lacks subject matter jurisdiction over this proceeding as there is no case or

controversy.

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FIFTH DEFENSE The federal statutory mandates which provide funding for DRMS do not provide a private right of action.
SIXTH DEFENSE Plaintiff's complaint violates the Mississippi Litigation Accountability Act.
SEVENTH DEFENSE Now, answering the specific allegations of the Complaint, CARES states as follows: 1. CARES lacks knowledge or information sufficient to form a belief as to the veracity of the allegations in paragraph 1; therefore, those allegations are denied. 2. The allegations of paragraph 2 are admitted. 3. The allegations of paragraph 3 are denied. The statutes referenced do not provide federal question jurisdiction and the Plaintiff failed to exhaust appropriate administrative remedies. 4. The allegations of paragraph 4 are denied. As the Court lacks subject matter jurisdiction over this action, venue is not proper in this Court either. 5. The allegations of paragraph 5 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 5 are denied to the extent they tend to impute liability to CARES. 6. The allegations of paragraph 6 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 6 are denied to the extent they tend to impute liability to CARES.
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7. The allegations of paragraph 7 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 7 are denied to the extent they tend to impute liability to CARES.
8. The allegations of paragraph 8 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 8 are denied to the extent they tend to impute liability to CARES.
9. The allegations of paragraph 9 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 9 are denied to the extent they tend to impute liability to CARES.
10. The allegations of paragraph 10 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 10 are denied to the extent they tend to impute liability to CARES, and they are specifically denied to the extent they tend to suggest that DRMS has standing to bring a legal action against CARES for unfettered unlimited and expansive monitoring.
11. The allegations of paragraph 11 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 11 are denied to the extent they tend to impute liability to CARES, or authority to DRMS for unfettered unlimited and expansive monitoring.
12. The allegations of paragraph 12 are denied as written. 13. The allegations of paragraph 13 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 13 are denied to the extent they tend to impute liability to CARES, or authority to DRMS for unfettered unlimited and expansive monitoring.
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14. The allegations of paragraph 14 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 14 are denied to the extent they tend to impute liability to CARES, or authority to DRMS for unfettered unlimited and expansive monitoring.
15. The allegations of paragraph 15 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 15 are denied to the extent they tend to impute liability to CARES, and specifically to the extent that DRMS intends to provide informational services to the residents of CARES's Jackson facility, monitor compliance with federal and state statutes protecting the residents' rights and inspect the facility. DRMS specifically seeks access to CARES's Jackson facility to conduct an open-ended general unlimited and unfettered operational investigation with no specific target or purpose, all of which is contrary to its federal mandate and applicable regulations.
16. The allegations of paragraph 16 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 16 are denied to the extent they tend to impute liability to CARES, and specifically to the extent that DRMS intends to provide informational services to the residents of CARES's Jackson facility, monitor compliance with federal and state statutes protecting the residents' rights and inspect the facility. DRMS specifically seeks access to CARES's Jackson facility to conduct an open-ended general and unlimited and unfettered operational investigation with no specific target or purpose, all of which is contrary to its federal mandate and applicable regulations.
17. The allegations of paragraph 17 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 17 are denied to the extent they tend to impute liability to CARES, and specifically to the extent that
4
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DRMS intends to provide informational services to the residents of CARES's Jackson facility, monitor compliance with federal and state statutes protecting the residents' rights and inspect the facility. DRMS specifically seeks entry to CARES's Jackson facility to conduct an open-ended general unlimited and unfettered operational investigation with no specific target or purpose, all of which is contrary to its federal mandate and applicable regulations.
18. The allegations of paragraph 18 are denied. 19. The allegations of paragraph 19 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 19 are denied to the extent they tend to impute liability to CARES, and specifically to the extent that DRMS intends to provide informational services to the residents of CARES's Jackson facility, monitor compliance with federal and state statutes protecting the residents' rights and inspect the facility. DRMS specifically seeks access to CARES's Jackson facility to conduct an open-ended general unlimited and unfettered operational investigation with no specific target or purpose, all of which is contrary to its federal mandate and applicable regulations. 20. The allegations of paragraph 20 state conclusions of law to which no response is required; however, should this Court require a response, the allegations of paragraph 20 are denied to the extent they tend to impute liability to CARES. 21. CARES lacks knowledge or information sufficient to form a belief as to the veracity of the allegations in Paragraph 21; therefore, the allegations are denied. 22. CARES lacks knowledge or information sufficient to form a belief as to the veracity of the allegations in Paragraph 22; therefore, the allegations are denied. 23. CARES admits that Exhibit B speaks for itself, otherwise the allegations of paragraph 23 are denied.
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24. CARES admits that Exhibit B speaks for itself, otherwise the allegations of paragraph 24 are denied.
25. CARES admits that Exhibit B speaks for itself, otherwise the allegations of paragraph 25 are denied.
26. CARES admits that Exhibit D speaks for itself, otherwise the allegations of paragraph 26 are denied.
27. CARES lacks knowledge or information sufficient to form a belief as to the veracity of the allegations in paragraph 27; therefore, the allegations are denied.
28. CARES reasserts and restates as if copied herein its affirmative defenses and responses 1-27.
29. The allegations of paragraph 29 are denied. 30. The allegations of paragraph 30 are denied. 31. The allegations of paragraph 31 are denied. 32. The allegations of paragraph 32 are denied. 33. The allegations of paragraph 33 are denied. 34. The allegations of paragraph 34 are denied. 35. The allegations of paragraph 35 are denied. 36. The allegations of paragraph 36 are denied. 37. The allegations of paragraph 37 are denied. 38. The allegations of paragraph 38 are denied. 39(a-d)The allegations of paragraph 39 (a-d) are denied.
6
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WHEREFORE, having answered the complaint, CARES, Inc. requests that the Court dismiss this action with prejudice and grant it its attorneys' fees and costs and all other equitable relief to which it is entitled.
COUNTERCLAIM FOR DECLARATORY JUDGMENT AND NOW, assuming the role of counterclaimant, CARES, Inc. ("CARES") files this Counterclaim against Disability Rights Mississippi ("DRMS") for declaratory judgment pursuant to 28 U.S.C. §2201 and shows: 1. CARES is a not for profit company organized under the laws of the State of Mississippi and currently doing business in the State of Mississippi. 2. DRMS is a not for profit company organized under the laws of the State of Mississippi and is currently doing business in the State of Mississippi. 3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1983, and 28 U.S.C. § 2201. 4. Venue is proper in this Court. 5. The Protection and Advocacy System ("System") in Mississippi is the federallymandated and funded state entity created pursuant to the Developmental Disabilities Act, 42 U.S.C. § 15043. It was first organized in 1976. To avoid conflicts of interest when suing other Mississippi Departments of State Government, the System was incorporated in 1982. In 1986, it acquired the Protection and Advocacy for Individuals with Mental Illness Program, which was funded under the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801-51 (the "Act"). In 2009 the System became known as DRMS. 6. DRMS is a private entity that performs a public function and may be sued under 28 U.S.C. § 1983.
7
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7. DRMS filed suit against CARES to conduct an unlimited and unfettered openended general operational investigation of its CARES Center (the "Center"), a Residential Psychiatric Treatment Facility. Admittedly, it is not investigating abuse or neglect at the Center. In its prayer, it seeks a preliminary and permanent injunction against CARES, its employees and agents to "provide DRMS and its agent with timely, full, meaningful, and unaccompanied access to monitor the [Center]." [Compl. ¶39(b)]. What it means by "timely, full, meaningful and unaccompanied access to monitor" is neither described nor defined. DRMS contends that it has an unlimited "statutory right to monitor the children" at the Center to "ensure that all individuals are protected and housed safely at that facility." [Dkt. 3, p. 15]. DRMS fails to describe its goals and does not define the parameters of the operational investigative monitoring it contemplates at the Center. Instead, DRMS seeks to conduct an unlimited, unbounded, and unaccompanied general operational investigation of the Center, all minor residents of the Center and all staff of the Center.
8. DRMS's unfettered and general operational investigation in the Center will cause injury to CARES and the vulnerable mentally ill children who are entrusted to it for their personal care, psychiatric and psychological treatment, and education. The carefully calibrated medical treatments, personal care, meals, educational, recreational and sleep schedules of the mentally ill minor residents will be significantly disrupted, (causing damage that cannot even be measured) by the unscheduled inspections and unlimited, unaccompanied and confidential conferences between Center residents and staff with DRMS representatives day or night, without defined parameters or boundaries1. Further, psychiatric and/or psychological treatments will be compromised as well as the stability and progress made by the Center's vulnerable residents by
1 Even if made during regular business hours the scope of the contemplated general inspections will be damaging since medical treatments, meals, school classes and recreational activities all take place during regular business hours.
8
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the coercive conditions of these unscheduled, unlimited, and sweeping "conferences" sought by DRMS.
9. DRMS's statutory mandate permits it access to facilities like the Center to investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to DRMS or if there is probable cause to believe that the incidents of abuse or neglect occurred to an identifiable individual. It may also have reasonably limited access to facilities as defined under the statute and the applicable regulations; that access is not unlimited nor is it for purposes of an unlimited unfettered operational investigation as sought by DRMS.
10. The limitations imposed by the Act prevent unreasonable searches and seizures that are prohibited by the Fourth Amendment of the United States Constitution. The limitations of the Act also prevent invasions of privacy that are prohibited by the United States Constitution.
11. DRMS does not have statutory authority to seek entry into facilities like the Center for general operational investigations.
12. In its suit for an unlimited general operational investigation, DRMS is not acting on a complaint of abuse or neglect to a particular individual at the Center, nor is it acting on the suspicion of probable cause that a particular individual is subject to abuse or neglect at the Center.
13. DRMS's suit against CARES seeking an unlimited general operational investigation of the Center constitutes a violation of CARES's Fourth and Fourteenth Amendment rights under the United States Constitution. CARES and its residents are constitutionally protected against DRMS's unreasonable searches, seizures and invasions of privacy.
9
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14. Pursuant to 28 U.S.C. § 2201, CARES seeks a declaration from this Court that (1) DRMS's statutory authority granted under the Act does not extend to unlimited general operational investigations like that sought by DRMS, and (2) this suit constitutes an improper exercise of the powers granted to DRMS pursuant to the Act.
15. The issues which CARES seek addressed by this Court constitute an actual controversy between the parties, are justiciable and can be presently litigated and decided.
16. CARES has standing to pursue its declaratory judgment action because it and its residents are suffering an injury and will suffer further injury if the issues are not addressed.
WHEREFORE, CARES seeks a declaration that (1) DRMS's statutory authority does not extend to unlimited general operational investigations like that sought by DRMS, and (2) this suit constitutes an improper exercise of the powers granted to DRMS pursuant to the Act. Additionally, it seeks its attorneys' fees, interest and costs as well as other relief which this Court deems just and proper. Further, CARES reserves its right and expressly does not waive its entitlement to amend its counterclaim and to assert additional claims as they may arise.
This, the 13th day of December, 2013. Respectfully submitted, CARES, INC., INCORRECTLY IDENTIFIED AS MISSISSIPPI CHILDREN'S HOME SERVICES By Its Attorneys, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC
By: s/ Sheryl Bey SHERYL BEY
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OF COUNSEL:
Sheryl Bey (Miss. Bar No. 9484) BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, PC 4268 I-55 North Meadowbrook Office Park (39211) P.O. Box 14167 Jackson, Mississippi 39236 Telephone: (601) 351-2400 Facsimile: (601) 351-2424 E-mail: sbey@bakerdonelson.com
Savaria B. Harris (Pro Hac) Ebony S. Johnson (Pro Hac) Kirkland and Ellis, LLP 655 15th St. NW, Ste. 1200 Washington, DC 20005-5793 Telephone: (202) 879-5215 Facsimile: (202) 654-9643 E-mail: savaris.harris@kirkland.com
ebony.johnson@kirkland.com
Arin Clark Adkins (Miss. Bar No. 101831) General Counsel Mississippi Children's Home Services 1465 Lakeland Drive Jackson, Mississippi 39216 Telephone: (769) 777-1007 Facsimile: (601) 968-0021 E-mail: arin.adkins@mchscares.org
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the Clerk of the

Court using the ECF system, which sent notification of such filing to the following:

Jody E. Owens

(jody.owens@splcenter.org)

Andrew Canter

(andrew.canter@splcenter.org)

Southern Poverty Law Center

111 East Capitol Street

Suite 280

Jackson, Mississippi 39210

Wendy Wilson White (wwhite@DRMS.ms) Disability Rights Mississippi 210 East Capitol Street Suite 600 Jackson, Mississippi 39201

This, the 13th day of December, 2013.

s/ Sheryl Bey SHERYL BEY

12
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 Case 3:13-cv-00547-HTW-LRA Document 64 Filed 09/28/15 Page 1 of 1

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

DISABILITY RIGHTS MISSISSIPPI

PLAINTIFF

v.

CIVIL ACTION NO. 3:13-cv-00547-HTW-LRA

CARES, INC.

DEFENDANT

JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE

Disability Rights Mississippi and CARES, Inc. advise the Court that the parties have

finalized the settlement of this matter. Pursuant to the terms of the Settlement Agreement

("Agreement"), the parties agree that this Court shall retain jurisdiction to enforce the Agreement1 and may seek Court intervention, upon written notice to the opposing party, to

resolve any dispute related to the terms of the Agreement. The parties further advise that the

matter is hereby dismissed without prejudice, each party to bear its own costs and attorneys’

fees.

THIS, the 28th day of September, 2015.

Respectfully submitted,

DISABILITY RIGHTS MISSISSIPPI

BY: s/Jody E. Owens II Jody E. Owens II One of its Attorneys

CARES, INC.

BY: s/Sheryl Bey Sheryl Bey One of its Attorneys

1 Filed under seal pursuant to Court Order.