Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 1 of 23
CLOSED,PROTECTIVE_ORDER
U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:17−cv−00047−jdp

J., J. et al v. Litscher, Jon et al Assigned to: District Judge James D. Peterson Referred to: Magistrate Judge Stephen L. Crocker Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/23/2017 Date Terminated: 09/21/2018 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

J. J. By and through his next friend Sakeena Jackson

represented by Emily Logan Stedman Quarles & Brady 411 E Wisconsin Ave Suite 2400 Milwaukee, WI 53202 414−277−5549 Email: emily.stedman@quarles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman Juvenile Law Center The Philadelphia Building 1315 Walnut Street 4th Floor Philadelphia, PA 19107 215−625−0551 Email: jfeierman@jlc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell Juvenile Law Center The Philadelphia Building 1315 Walnut Street 4th Floor Philadelphia, PA 19107 215−625−0551 Email: klindell@jlc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker ACLU of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202 414−272−4032 x12 Fax: 414−272−0182 Email: krotker@aclu−wi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis Aclu Of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202 414−272−4032 ext 212 Fax: 414−272−0182 Email: ldupuis@aclu−wi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Marsha L. Levick Juvenile Law Center The Philadelphia Building 1315 Walnut Street 4th Floor Philadelphia, PA 19107 215−625−0551 Email: mlevick@jlc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J. Splitek Quarles & Brady LLP 33 East Main Street, Suite 900 Madison, WI 53701 608−283−2454 Fax: 608−294−4914 Email: Matthew.Splitek@quarles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Anne Graham Quarles & Brady LLP 33 East Main Street Suite 900 Madison, WI 53703 608−283−2419 Email: rachel.graham@quarles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Asma Imtiazali Kadri American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo Street Suite 325 Milwaukee, WI 53202 414−272−4032 Email: akadri@aclu−wi.org ATTORNEY TO BE NOTICED
Katherine E. Burdick Juvenile Law Center The Philadelphia Building 1315 Walnut Street 4th Floor Philadelphia, PA 19107 215−625−0551 Email: kburdick@jlc.org ATTORNEY TO BE NOTICED
R Timothy Muth Aclu Of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202 414−272−4032 x222 Fax: 414−272−0182 Email: tmuth@aclu−wi.org ATTORNEY TO BE NOTICED
Zachary T Eastburn Quarles and Brady LLP 411 E. Wisconsin Ave. Suite 2400 Milwaukee, WI 53202 414−277−5707

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Email: zachary.eastburn@quarles.com ATTORNEY TO BE NOTICED

Plaintiff
K. D. By and through her next friends John Levy and Meranda Davis

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
C. M. By and through his next friend Toinette Ducksworth

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
R. N. By and through his next friend Gloria Norwood

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
M.S. By and through his next friend Jolene Waupekanay

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address)

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 6 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.V. By and through his next friend Veronica Rocha−Montejano

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
M.R. By and through his next friend Autumn Rodgers

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED
Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED
R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED
Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J. Splitek

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 8 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
S.K. By and through her next friend Thomas Korn

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 9 of 23

ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.P. By and through her next friend Louise Plaskey

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick

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(See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
C.B. By and through his next friend and grandmother, Flossie Johnson

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

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Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
D.P. By and through her mother and next friend, Earnestine Perry

represented by Emily Logan Stedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica R. Feierman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen U. Lindell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha L. Levick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Splitek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Anne Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asma Imtiazali Kadri (See above for address) ATTORNEY TO BE NOTICED

Katherine E. Burdick (See above for address) ATTORNEY TO BE NOTICED

R Timothy Muth (See above for address) ATTORNEY TO BE NOTICED

Zachary T Eastburn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
N. G. By and through his next friend D.B

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Plaintiff T. W. By and through his next friend L.W.

V. Defendant Jon E. Litscher Secretary, Wisconsin Department of Corrections
Defendant John D. Paquin Administrator, Juvenile Division of Corrections, WI Dept. of Corrections
Defendant Wendy A. Peterson Superintendent, Lincoln Hills School for Boys & Copper Lake School for Girls

represented by Wisconsin Department of Justice_1983 actions Email: federalorderscl@doj.state.wi.us TERMINATED: 03/30/2017 LEAD ATTORNEY
Benjamin Andrew Sparks Crivello Carlson, S.C. 710 North Plankinton Avenue Suite 500 Milwaukee, WI 53203 414−271−7722 Fax: 414−271−4438 Email: bsparks@crivellocarlson.com ATTORNEY TO BE NOTICED
Samuel C. Hall , Jr. Crivello Carlson, S.C. 710 North Plankinton Avenue Suite 500 Milwaukee, WI 53203 414−290−7587 Fax: 414−271−4438 Email: shall@crivellocarlson.com ATTORNEY TO BE NOTICED
represented by Wisconsin Department of Justice_1983 actions (See above for address) TERMINATED: 03/30/2017 LEAD ATTORNEY
Benjamin Andrew Sparks (See above for address) ATTORNEY TO BE NOTICED
Samuel C. Hall , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Wisconsin Department of Justice_1983 actions (See above for address) TERMINATED: 03/30/2017 LEAD ATTORNEY
Benjamin Andrew Sparks (See above for address) ATTORNEY TO BE NOTICED
Samuel C. Hall , Jr. (See above for address)

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ATTORNEY TO BE NOTICED

Defendant
Brian Gustke Director of Security, Lincoln Hills School for Boys & Copper Lake School for Girls

represented by Wisconsin Department of Justice_1983 actions (See above for address) TERMINATED: 03/30/2017 LEAD ATTORNEY

Benjamin Andrew Sparks (See above for address) ATTORNEY TO BE NOTICED

Samuel C. Hall , Jr. (See above for address) ATTORNEY TO BE NOTICED

Intervenor The Milwaukee Journal Sentinel

represented by Dustin Brett Brown Heinzen Law, SC P.O. Box 930370 Verona, WI 53593 608−284−2250 Email: dbrown1230@gmail.com ATTORNEY TO BE NOTICED

Intervenor The Wisconsin State Journal

represented by Dustin Brett Brown (See above for address) ATTORNEY TO BE NOTICED

Intervenor The Associated Press

represented by Dustin Brett Brown (See above for address) ATTORNEY TO BE NOTICED

Intervenor The Wisconsin Newspaper Association

represented by Dustin Brett Brown (See above for address) ATTORNEY TO BE NOTICED

Intervenor
The Wisconsin Freedom of Information Council

represented by Dustin Brett Brown (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/23/2017
01/24/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. ( Filing fee $ 400 receipt number 0758−1956798.), filed by All Plaintiffs, (Attachments: # 1 JS−44 Civil Cover Sheet, # 2 Summons − Litscher, # 3 Summons − Paquin, # 4 Summons − Peterson, # 5 Summons − Gustke) (Graham, Rachel) Modified on 1/23/2017. (lak) (Entered: 01/23/2017)
Case randomly assigned to District Judge James D. Peterson and Magistrate Judge Stephen L. Crocker. (jef),(ps) (Entered: 01/24/2017)

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01/24/2017 01/24/2017 01/24/2017
01/24/2017 01/24/2017 01/24/2017
01/24/2017 03/09/2017 03/09/2017 03/09/2017
03/09/2017
03/30/2017 03/30/2017
04/17/2017 04/17/2017 04/18/2017

2 Motion to Certify Class under Rule 23 by Plaintiffs K. D., J. J., C. M., R. N.. (Graham, Rachel),(ps) Modified text on 4/26/2017 (jef). (Entered: 01/24/2017)
3 Brief in Support of 2 Motion to Certify Class under Rule 23 by Plaintiffs K. D., J. J., C. M., R. N. (Graham, Rachel),(ps) (Entered: 01/24/2017)
4 Declaration of Laurence J. Dupuis filed by Plaintiffs K. D., J. J., C. M., R. N. re: 2 Motion to Certify Class under Rule 23, (Attachments: # 1 Exhibit A − Budget Issue Paper, # 2 Exhibit B − Letter−Open Records Request, # 3 Exhibit C − Population Breakdown Logs, # 4 Exhibit D − Monthly Reports, # 5 Exhibit E − Disciplinary Records (Page 34 is upside down.) (Graham, Rachel),(ps) Modified on 1/25/2017. (lak) (Entered: 01/24/2017)
5 Initial Order: Plaintiffs' complaint taken under advisement. Signed by Magistrate Judge Peter A. Oppeneer on 1/24/2017. (jef),(ps) Modified text on 1/24/2017 (jef). (Entered: 01/24/2017)
Screening of Complaint pursuant to 28 U.S.C. 1915A. (jef),(ps) (Entered: 01/24/2017)
6 ** TEXT ONLY ORDER ** Briefing and court action on plaintiffs' 2 motion for class certification is STAYED until the court holds the telephonic preliminary pretrial conference and sets the case schedule in consultation with both sides. Signed by Magistrate Judge Stephen L. Crocker on 1/24/2017. (nln),(ps) (Entered: 01/24/2017)
7 Notice of Appearance filed by Zachary T Eastburn for Plaintiffs K. D., J. J., C. M., R. N. (Eastburn, Zachary),(ps) (Entered: 01/24/2017)
8 Notice of Appearance filed by Benjamin Andrew Sparks for Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Sparks, Benjamin),(ps) (Entered: 03/09/2017)
9 Notice of Appearance filed by Samuel C. Hall, Jr., for Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Hall, Samuel),(ps) (Entered: 03/09/2017)
10 ORDER on Leave to Proceed: Plaintiff granted leave to proceed against Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. Summons to be issued to plaintiffs' counsel for service. Signed by District Judge James D. Peterson on 3/9/2017. (jef),(ps) (Entered: 03/09/2017)
11 Summons Issued as to Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Attachments: # 1 Summons as to John Paquin, # 2 Summons as to Wendy Peterson, # 3 Summons as to Brian Gustke) (jef),(ps) (Entered: 03/09/2017)
12 ANSWER with Jury Demand by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Hall, Samuel),(ps) (Entered: 03/30/2017)
Set Telephone Pretrial Conference: Telephone Pretrial Conference set for 4/20/2017 at 02:00 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (nln),(ps) (Entered: 03/30/2017)
13 AMENDED COMPLAINT against All Defendants, filed by All Plaintiffs. (Eastburn, Zachary),(ps) (Entered: 04/17/2017)
14 Report of Rule 26(f) Planning Meeting and Joint Discovery Plan. (Eastburn, Zachary),(ps) Modified on 4/18/2017. (lak) (Entered: 04/17/2017)
15 ** TEXT ONLY ORDER ** Plaintiffs have filed an amended complaint that adds five new plaintiffs and one new Fourth Amendment strip search claim against the existing defendants. Dkt. 13 . Plaintiffs have a right to amend under Rule 15(a)(1)(B). But the court is still required to screen the amended complaint under 28 U.S.C. § 1915A. Plaintiffs have stated a new claim for relief, and the court will grant leave to proceed. The amended complaint

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04/19/2017 04/19/2017 04/19/2017 04/19/2017
04/19/2017
04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/19/2017
04/19/2017

is accepted as the operative pleading. Signed by District Judge James D. Peterson on 4/18/2017. (jef),(ps) (Entered: 04/18/2017)
16 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K.. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
17 Brief in Support of 16 Motion for Preliminary Injunction by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
18 Proposed Findings of Fact filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
19 Declaration of Vincent Schiraldi filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction , (Attachments: # 1 Exhibit A − Schiraldi CV, # 2 Appendix B − Bibliography) (Eastburn, Zachary),(ps) Modified on 4/20/2017. (lak) (Entered: 04/19/2017)
20 Declaration of Stuart Grassian filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A − Article, Psychiatric Effects of Solitary Confinement) (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
21 Declaration of J.J. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
22 Declaration of K.D. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
23 Declaration of C.M. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
24 Declaration of R.N. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
25 Declaration of M.S. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
26 Declaration of A.V. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
27 Declaration of M.R. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
28 Declaration of S.K. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
29 Declaration of A.P. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Eastburn, Zachary),(ps) (Entered: 04/19/2017)
Set Deadlines as to 16 MOTION FOR PRELIMINARY INJUNCTION. Procedure to be followed on Motions for Injunctive Relief attached. Defendants' Brief in Opposition due 5/10/2017. Plaintiffs' Brief in Reply due 5/22/2017. Injunctive Hearing set for 6/8/2017 at 09:00 AM in Courtroom 360 before District Judge James D. Peterson. (elc),(ps) (Entered: 04/19/2017)
30 Declaration of Rachel A. Graham filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A − Transcript,

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04/20/2017 04/20/2017
04/21/2017 04/26/2017 04/26/2017
04/26/2017 04/26/2017 04/27/2017

# 2 Exhibit B − DJC PowerPoint, # 3 Exhibit C − Wis DOC Executive Leadership, # 4 Exhibit D − Wis DOC Division of Juvenile Corrections Website, # 5 Exhibit E − Lincoln Hill Website, # 6 Exhibit F − Response to Sen. Larson, # 7 Exhibit G − KD Disciplinary Records Excerpts − Redacted, # 8 Exhibit H − Youth Handbook, # 9 Exhibit I − Restrictive Housing Program, # 10 Exhibit J − Core Concepts Sept. 2014, # 11 Exhibit K − 2014 Annual Report, # 12 Exhibit L − APA Article, # 13 Exhibit M − AACAP Article, # 14 Exhibit N − NCCHC Article, # 15 Exhibit O − OJJDP Report, # 16 Exhibit P − Juvenile Justice and Delinquency Prevention Report, # 17 Exhibit Q − Juvenile Detention Facility Assessment, # 18 Exhibit R − US DOJ Report, # 19 Exhibit S − Presidential Memorandum, # 20 Exhibit T − UN Rules for the Protection of Juveniles, # 21 Exhibit U − Report of the Special Rapporteur, # 22 Exhibit V − Performance−based Standards, # 23 Exhibit W − Juvenile Justice Standards re: Corrections Admin., # 24 Exhibit X − Standard Minimum Rules for the Treatment of Prisoners, # 25 Exhibit Y − 51−Jurisdiction Survey of Juvenile Solitary Confinement Rules, # 26 Exhibit Z − Article re: Opinion Letters) (Graham, Rachel),(ps) (Entered: 04/19/2017)
Minute Entry for proceedings held before Magistrate Judge Stephen L. Crocker: Telephone Preliminary Pretrial Conference held on 4/20/2017 [:30] (cak),(ps) (Entered: 04/20/2017)
31 ** TEXT ONLY ORDER ** At the April 20, 2017 unrecorded telephonic preliminary pretrial conference, the court granted defendants' unopposed oral request to move the date of the preliminary injunction hearing. The hearing is moved to June 22, 2017 at 9:00 a.m., with June 23, 2017 reserved in the event the hearing goes long. In light of this new date, defendants' brief in opposition is due by May 24, 2017, with any reply due by June 7, 2017. Signed by Magistrate Judge Stephen L. Crocker on 4/20/2017. (elc),(ps) (Entered: 04/20/2017)
32 Notice of Appearance filed by R Timothy Muth for Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K.. (Muth, R),(ps) (Entered: 04/21/2017)
33 Standing Order Relating to the Discovery of Electronically Stored Information in a Complex Civil Lawsuit. Signed by Magistrate Judge Stephen L. Crocker on 4/26/2017. (jef),(ps) (Entered: 04/26/2017)
34 Pretrial Conference Order − Briefing on plaintiffs' motion to certify the class: Response due May 5, 2017, Reply due May 19, 2017. Dispositive Motions due 2/9/2018. Rule 26(a)(3) Disclosures and all motions in limine due 6/22/2018. Objections due 7/6/2018. Final Pretrial Conference set for 7/18/2018 at 04:00 PM. Court Trial set for 7/30/2018 at 09:00 AM. Signed by District Judge James D. Peterson on 4/26/2017. (jef),(ps) (Entered: 04/26/2017)
Set Briefing Deadlines as to Plaintiffs' 2 Motion to Certify Class under Rule 23. Defendants' Brief in Opposition due 5/5/2017. Plaintiffs' Brief in Reply due 5/19/2017. (jef),(ps) (Entered: 04/26/2017)
35 Joint Motion for Protective Order with Exhibit A Attached, by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K., (Attachments: # 1 Text of Proposed Order with Exhibit A) (Stedman, Emily),(ps) Modified on 4/27/2017: Corrected docketing event, etc. (lak) (Entered: 04/26/2017)
36 Protective Order. Signed by District Judge James D. Peterson on 4/26/2017. (jef),(ps) (Entered: 04/27/2017)

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05/01/2017 05/05/2017 05/12/2017
05/12/2017
05/12/2017 05/15/2017 05/15/2017 05/17/2017 05/19/2017 05/19/2017 05/19/2017 05/19/2017
05/26/2017 05/26/2017 05/26/2017

37 ANSWER to Amended Complaint by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Sparks, Benjamin),(ps) Modified on 5/2/2017: Corrected docketing event. (lak) (Entered: 05/01/2017)
38 Brief in Opposition by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 2 Motion to Certify Class under Rule 23 filed by C. M., K. D., R. N., J. J. (Sparks, Benjamin),(ps) (Entered: 05/05/2017)
39 Unopposed Motion to Supplement 18 Proposed Findings of Fact by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Exhibit A − Supplemented and Amended Statement, # 2 Exhibit B − Redline Supplemented and Amended Statement) (Graham, Rachel),(ps) (Entered: 05/12/2017)
40 Declaration of Laura E. Olsen Dugan filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 39 Motion to Supplement, (Attachments: # 1 Exhibit A − Case No. 79−C−2 Stipulation, # 2 Exhibit B − Case No. 79−C−2 Reivitz Memo, # 3 Exhibit C − Case No. 79−C−2 Order of Dismissal) (Graham, Rachel),(ps) (Entered: 05/12/2017)
41 Joint Motion for Extension of Time for Briefing Deadlines by Two Days by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. Motions referred to Magistrate Judge Stephen L. Crocker. (Graham, Rachel),(ps) (Entered: 05/12/2017)
42 ** TEXT ONLY ORDER ** ORDER granting 39 Unopposed Motion to Supplement 18 Proposed Findings of Fact. Signed by Magistrate Judge Stephen L. Crocker on 5/15/2017. (nln),(ps) (Entered: 05/15/2017)
43 ** TEXT ONLY ORDER ** ORDER granting 41 Motion for Extension of Time. Defendants' Brief in Opposition due 5/26/2017. Plaintiffs' Brief in Reply due 6/9/2017. Signed by Magistrate Judge Stephen L. Crocker on 5/15/2017. (nln),(ps) (Entered: 05/15/2017)
44 Plaintiffs' Supplemented and Amended Statement of Proposed Facts re: 16 Motion for Preliminary Injunction. (Exhibit A to dkt. 39 Motion to Supplement, granted on on 5/15/2017) (elc),(ps) (Entered: 05/17/2017)
45 Brief in Reply by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. in Support of 2 Motion to Certify Class under Rule 23. (Eastburn, Zachary),(ps) (Entered: 05/19/2017)
46 Disregard. See 48 . Modified on 5/22/2017. (lak) (Entered: 05/19/2017)
47 Second Declaration of J.J. filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 2 Motion to Certify Class under Rule 23. (Eastburn, Zachary),(ps) (Entered: 05/19/2017)
48 Second Declaration of Laurence J. Dupuis filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 2 Motion to Certify Class under Rule 23, (Attachments: # 1 Exhibit A − DOC Policy, # 2 Exhibit B − Redacted Strip Search Records) (Eastburn, Zachary),(ps) (Entered: 05/19/2017)
49 Brief in Opposition by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 16 Motion for Preliminary Injunction filed by M.S., K. D., A.P., M.R., J. J., C. M., S.K., R. N., A.V. (Hall, Samuel),(ps) (Entered: 05/26/2017)
50 Response to Supplemented and Amended Proposed Findings of Fact filed by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 16 Motion for Preliminary Injunction. (Sparks, Benjamin),(ps) Modified on 5/30/2017. (lak) (Entered: 05/26/2017)
51 Declaration of Megan Jones filed by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 16 Motion for Preliminary Injunction, (Attachments:

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 18 of 23

05/26/2017 05/26/2017 06/01/2017 06/09/2017
06/09/2017 06/09/2017 06/19/2017 06/20/2017 06/21/2017 06/21/2017 06/22/2017

# 1 Exhibit A − Midnight Population Breakdown, # 2 Exhibit B − Lowenstein Study) (Sparks, Benjamin),(ps) (Entered: 05/26/2017)
52 Declaration of Brian Gustke filed by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 16 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A − Mechanical Restraints Policy, # 2 Exhibit B − Use of Force Policy) (Sparks, Benjamin),(ps) (Entered: 05/26/2017)
53 Declaration of Kari Beier filed by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 16 Motion for Preliminary Injunction. (Sparks, Benjamin),(ps) (Entered: 05/26/2017)
54 Notice of Appearance filed by Katherine E. Burdick for Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Burdick, Katherine),(ps) (Entered: 06/01/2017)
55 Declaration of Laurence J. Dupuis filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A − Defendants' Responses To Plaintiffs' First Set Of Requests For Admissions, # 2 Exhibit B − Midnight Population Logs (May 2017), # 3 Exhibit C − SK Conduct Report (gummi worms), Final, # 4 Exhibit D − KD Paint Discipline, Final, # 5 Exhibit E − MS Discipline Mannequins (rev00001770), Final, # 6 Exhibit F − RHU Out Time Records, Final, # 7 Exhibit G − Krueger Post Orders, # 8 Exhibit H − JJ No Programming in RHU, Final, # 9 Exhibit I − MM Inelig for ART in RHU, Final, # 10 Exhibit J − Krueger Control Panel Exercise Room, # 11 Exhibit K − On the Belt Photos, # 12 Exhibit L − Incapacitating Agents Policy (rev00002015), # 13 Exhibit M − Pepper Spray Logs 2016−2017, Final, # 14 Exhibit N − JJ Medical Mental Health Screening, Final, # 15 Exhibit O − MR Medical Mental Health Screening, Final) (Graham, Rachel),(ps) Modified on 6/11/2017. (lak) (Entered: 06/09/2017)
56 Brief in Reply by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. in Support of 16 Motion for Preliminary Injunction. (Graham, Rachel),(ps) (Entered: 06/09/2017)
57 Reply in Support of Proposed Findings of Fact filed by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. re: 16 Motion for Preliminary Injunction. (Graham, Rachel),(ps) Modified on 6/11/2017: Corrected docket event. (lak). (Entered: 06/09/2017)
Docket Annotation: The injunctive hearing scheduled for June 22, 2017 at 09:00 AM before District Judge James D. Peterson will be held in Courtroom 260. (jef),(ps) (Entered: 06/19/2017)
58 Unopposed Motion to Close Courtroom for Display of Videos to Protect Identities of Juveniles by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Graham, Rachel),(ps) (Entered: 06/20/2017)
59 Notice of Appearance filed by Dustin Brett Brown for Intervenor Parties The Milwaukee Journal Sentinel, The Wisconsin State Journal, The Associated Press, The Wisconsin Newspaper Association, The Wisconsin Freedom of Information Council. (Brown, Dustin),(ps) Modified on 6/22/2017. (lak) (Entered: 06/21/2017)
60 Motion to Intervene and Object to Plaintiffs' "Unopposed" Motion to Close Courtroom for Display of Videos to Protect Identities of Juveniles by Intervenor Parties The Associated Press, The Milwaukee Journal Sentinel, The Wisconsin Freedom of Information Council, The Wisconsin Newspaper Association, The Wisconsin State Journal. (Brown, Dustin),(ps) (Entered: 06/21/2017)
Set/Reset Deadlines and Hearings re: 16 MOTION FOR PRELIMINARY INJUNCTION. Injunctive Hearing − Second Day set for 6/23/2017 at 9:00 AM before District Judge James D. Peterson. (arw),(ps) (Entered: 06/22/2017)

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 19 of 23

06/22/2017 06/23/2017 06/23/2017
06/23/2017 06/23/2017 06/30/2017 07/05/2017

61 Minute Entry for proceedings held before District Judge James D. Peterson: Injunctive Hearing held on 6/22/2017 re 60 Motion to Intervene and Object to Plaintiffs' "Unopposed" Motion to Close Courtroom for Display of Videos to Protect Identities of Juveniles filed by The Wisconsin State Journal, The Wisconsin Freedom of Information Council, The Associated Press, The Milwaukee Journal Sentinel, The Wisconsin Newspaper Association, 58 Unopposed Motion to Close Courtroom for Display of Videos to Protect Identities of Juveniles filed by M.S., K. D., A.P., M.R., J. J., C. M., S.K., R. N., A.V. [7:30] (Court Reporter CS / JD.) (jef),(ps) (Entered: 06/22/2017)
62 Minute Entry for proceedings held before District Judge James D. Peterson: Injunctive Hearing held on 6/23/2017 re 16 MOTION FOR PRELIMINARY INJUNCTION filed by M.S., K. D., A.P., M.R., J. J., C. M., S.K., R. N., A.V. [1:20] (Court Reporter CS.) (jef),(ps) (Entered: 06/23/2017)
63 Exhibit List by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Attachments: # 1 Plaintiffs' exhibit list) (jef),(ps) (Additional attachment(s) added on 6/26/2017: # 2 Exhibit 1 − Deposition Designations, # 3 Exhibit 2 − Vincent Schiraldi CV, # 4 Exhibit 3 − Vincent Schiraldi Declaration, # 5 Exhibits 4−6 − Map, layouts, # 6 Exhibits 7−10 − Photos, # 7 Exhibits 11a−i − Timelines, # 8 Exhibits 12−13 − Photos exercise room, High Hall showers, # 9 Exhibit 14 − Krueger post order, procedures, daily operations, # 10 Exhibit 15 − DJC Policy # 500.70.10 (Mechanical Restraints), # 11 Exhibit 16 − Krueger timout record, restraint tally April 2017, # 12 Exhibit 17 − Pepper Spray Log, # 13 Exhibit 18 − Lowenstein Report, Excerpts, # 14 Exhibit 19 − Brian Gustke Declaration, # 15 Exhibit 20 − Brian Gustke Declaration, # 16 Exhibit 21 − Incidents of harm per 100 youth at LHS/CLS, # 17 Exhibit 22 − Youth Injury Reviews, # 18 Exhibit 23 − Midnight Population Logs, # 19 Exhibit 24 − M.L. Incident report, # 20 Exhibit 25 − A. O. Incident report, # 21 Exhibits 28−61 − Session notes, reviews, assessments, other documents, # 22 Exhibit 62 − Stuart Grassian CV, # 23 Exhibit 65 − Extract of due process log, # 24 Exhibit 66 − Entire spreadsheet of log (illegible), # 25 Injunction Order, 16−0799, # 26 Cases) (jef). Exhibits 26−27 videos to be filed conventionally. (jef). (Entered: 06/23/2017)
64 Exhibit List by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Attachments: # 1 Exhibit 63 − Discipline diagram, # 2 Exhibit 64 − May−June 2016 pepper spray log) (jef),(ps) (Entered: 06/23/2017)
65 ORDER providing guidance for form of the preliminary injunction. Signed by District Judge James D. Peterson on 06/23/2017. (ejt) (Entered: 06/23/2017)
66 ** TEXT ONLY ORDER ** Plaintiffs are reminded to submit copies of the videos used at the injunction hearing. Plaintiffs should also submit redacted versions of the videos so that the court provide copies to the public on request. Both versions must be submitted to the court by July 13, 2017. Signed by District Judge James D. Peterson on 6/29/17. (jat),(ps) (Entered: 06/30/2017)
67 Transcript of second day of motion hearing, held June 23, 2017 before Judge James D. Peterson. Court Reporter: CS. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (jef),(ps) (Entered: 07/05/2017)

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 20 of 23

07/06/2017
07/07/2017 07/10/2017 07/10/2017 08/02/2017 08/02/2017
08/22/2017
08/23/2017
08/23/2017 08/25/2017
08/31/2017
09/05/2017 09/06/2017 09/11/2017

68 Clerk's Office Remark on 7/6/17: Plaintiffs conventionally filed two DVDs, marked Plaintiffs' Exs. 26 & 27, containing sealed unredacted version and redacted version of videos used at June 23 injunction hearing. DVDs maintained in clerk's office exhibit room, pro se shelf. (nln),(ps) (Entered: 07/06/2017)
69 Proposed Order on Plaintiffs' Motion for a Preliminary Injunction by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Graham, Rachel),(ps) Modified on 7/10/2017 (nln). Modified on 7/10/2017 (nln). (Entered: 07/07/2017)
70 ORDER regarding agreed−upon provisions of the preliminary injunction. Signed by District Judge James D. Peterson on 7/10/2017. (jef),(ps) (Entered: 07/10/2017)
71 PRELIMINARY INJUNCTION. Signed by District Judge James D. Peterson on 7/10/2017. (jef),(ps) (Entered: 07/10/2017)
72 Stipulation to Extend Expert Disclosure/Report Deadlines by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K. (Dupuis, Laurence),(ps) Modified on 8/3/2017. (lak) (Entered: 08/02/2017)
73 ** TEXT ONLY ORDER ** The parties' 72 Joint Stipulation to Extend Expert Disclosure/Report Deadlines is accepted and entered by the court. Signed by Magistrate Judge Stephen L. Crocker on 8/2/2017. (nln),(ps) (Entered: 08/02/2017)
74 Unopposed Motion to Supplement 13 Amended Complaint by Plaintiffs A.P., A.V., K. D., J. J., C. M., M.R., M.S., R. N., S.K.. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Exhibit A−Supplemental Complaint) (Graham, Rachel),(ps) Modified on 8/22/2017 (nln). (Entered: 08/22/2017)
75 ** TEXT ONLY ORDER ** ORDER granting 74 Unopposed Motion to Supplement Amended Complaint. Plaintiffs must file their supplemental complaint as a separate docket entry. Signed by District Judge James D. Peterson on 8/23/2017. (nln),(ps) (Entered: 08/23/2017)
76 Supplement to 13 Amended Complaint filed by C. M., K. D., R. N., J. J. (Graham, Rachel),(ps) Modified on 8/23/2017 (nln). (Entered: 08/23/2017)
77 Undated Supplement to 36 Protective Order, (Attachments: # 1 Exhibit A − Signed Protective Order, # 2 Exhibit B − PbS Non−Disclosure Agreement) (Eastburn, Zachary),(ps) Modified on 8/28/2017. (lak) (Entered: 08/25/2017)
78 Notice by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 71 Preliminary Injunction. Defendants' Report on Use of OC Spray, Pursuant to the Court's Preliminary Injunction. (Hall, Samuel),(ps) Modified on 9/1/2017. (lak) (Entered: 08/31/2017)
Set Telephone Status Conference: Telephone Status Conference set for 9/15/2017 at 10:00 AM before Judge James D. Peterson. Counsel for Plaintiffs responsible for setting up the call to chambers at (608) 264−5504. (jef),(ps) (Entered: 09/05/2017)
79 Notice by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson re: 76 Supplement. (Hall, Samuel),(ps) (Entered: 09/06/2017)
Clerk's Office Notice: Due to several requests from media to be present for the September 15, 2017 telephone status conference, the court will hold the telephonic hearing in the courtroom so that media and members of the public may listen to the conference.

The Telephone Status Conference set for 9/15/2017 at 10:00 AM before Judge James D. Peterson will be held in courtroom 260. Counsel for Plaintiffs remain responsible for setting up the call to chambers at (608) 264−5504.

09/15/2017

(jef),(ps) Modified text on 9/12/2017 (jef). (Entered: 09/11/2017)
80 Minute Entry for Proceedings held before Judge District Judge James D. Peterson: granting 2 Motion to Certify Class under Rule 23. Joint report on the status of compliance of the preliminary injunction is due within 21 days. Telephone Status

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 21 of 23

09/18/2017
10/10/2017 10/24/2017
10/24/2017 10/24/2017 10/31/2017 11/10/2017 11/10/2017 11/27/2017 12/06/2017 01/03/2018 01/12/2018 03/14/2018

Conference held on 9/15/2017 [0:30]. (Court Reporter CS.) (jef),(ps) (Entered: 09/15/2017)
81 ORDER granting 2 Motion to Certify Class under Rule 23. The following class is CERTIFIED: "All persons who are now, or in the future will be, confined at Lincoln Hills School for Boys and Copper Lake School for Girls." The issues certified for class treatment are the constitutionality of defendants' policies on the use of solitary confinement, mechanical restraints, and chemical agents. The ACLU of Wisconsin Foundation, the Juvenile Law Center, and the law firm of Quarles & Brady LLP are APPOINTED as class counsel.
The parties may have until October 10, 2017, to submit a joint report regarding defendants' compliance with the preliminary injunction. If the parties cannot agree on the all aspects of the report, they may file separate statements on points of disagreement within the report.
Signed by District Judge James D. Peterson on 9/18/2017. (jef),(ps) (Entered: 09/18/2017)
82 Joint Status Report on Preliminary Injunction Compliance by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K., (Attachments: # 1 Exhibit − Plaintiffs Appendix) (Dupuis, Laurence),(ps) Modified on 10/11/2017. (lak) (Entered: 10/10/2017)
83 ** TEXT ONLY ORDER ** In light of recent reports of assaults at Lincoln Hills and Copper Lake Schools, the parties should provide a further joint status report by November 10, 2017. If the parties cannot agree on the all aspects of the report, they may file separate statements on points of disagreement within the report. Signed by District Judge James D. Peterson on 10/24/2017. (jef),(ps) (Entered: 10/24/2017)
84 Letter to Judge Peterson from Tom Tiffany and Mary Felzkowski. (jef),(ps) (Entered: 10/24/2017)
85 Letter from Judge Peterson in response to dkt. 84 letter. (jef),(ps) (Entered: 10/24/2017)
86 Status Report On Use of OC Spray Pursuant to the Court's Preliminary Injunction by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Hall, Samuel),(ps) (Entered: 10/31/2017)
87 Status Report Relating to the Court's Preliminary Injunction by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson (Hall, Samuel),(ps) (Entered: 11/10/2017)
88 Status Report Relating to the Court's Preliminary Injunction by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Stedman, Emily),(ps) (Entered: 11/10/2017)
89 Stipulation to Modify Schedule by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Dupuis, Laurence),(ps) Modified on 11/28/2017. (lak) (Entered: 11/27/2017)
90 ** TEXT ONLY ORDER ** The Stipulation to the Modify Schedule, dkt. 89 , is APPROVED. Signed by District Judge James D. Peterson on 12/6/2017. (jef),(ps) (Entered: 12/06/2017)
91 Notice of Appearance filed by Asma Imtiazali Kadri for Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Kadri, Asma),(ps) (Entered: 01/03/2018)
92 Status Report (Joint Litigation) by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Hall, Samuel),(ps) (Entered: 01/12/2018)
Set Hearing: Settlement Conference set for 4/5/2018 at 10:00 AM in conference room 410 before Magistrate Judge Peter Oppeneer. Any submissions of the parties are due by 4/3/2018 at clerkofcourt@wiwd.uscourts.gov. (jef),(ps) (Entered: 03/14/2018)

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 22 of 23

03/20/2018
04/05/2018 04/19/2018 04/20/2018 04/23/2018 05/08/2018 06/01/2018
06/01/2018 06/01/2018
06/20/2018
08/06/2018 08/06/2018 08/06/2018

93 ** TEXT ONLY ORDER ** In anticipation of the 4/5/2018 mediation before me, the defendants should submit by 3/28/2018 a settlement proposal to clerkofcourt@wiwd.uscourts.gov with a copy to opposing counsel. Plaintiffs have by noon on 4/3/2018 to email a counter−proposal to me and defendants. Therefore, the previously−set settlement letter submission deadline of 4/3/2018 is struck as moot, as are the dates in the mediation letter sent to the parties this afternoon. Signed by Magistrate Judge Peter A. Oppeneer on 3/20/2018. (jaf),(ps) (Entered: 03/20/2018)
Minute Entry for proceedings held before Magistrate Judge Peter A. Oppeneer: Settlement Conference held on 4/5/2018 [7:30] during which the parties did not reach a final settlement. (jaf),(ps) (Entered: 04/06/2018)
94 Joint Motion to Amend Briefing Schedule by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. Motions referred to Magistrate Judge Stephen L. Crocker. (Hall, Samuel),(ps) (Entered: 04/19/2018)
95 ** TEXT ONLY ORDER ** Order granting 94 Joint Motion to Modify the Scheduling Order. Signed by District Judge James D. Peterson on 4/20/2018. (jef),(ps) (Entered: 04/20/2018)
Set Hearings: Settlement Conference set for 5/8/2018 at 10:00 AM before Magistrate Judge Peter Oppeneer in conference room 410. (jaf),(ps) (Entered: 04/23/2018)
Minute Entry for proceedings held before Magistrate Judge Peter A. Oppeneer: Settlement Conference held on 5/8/2018 [8:00] (jaf),(ps) (Entered: 05/09/2018)
96 Joint Motion for Preliminary Approval of Settlement Agreement by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K., (Attachments: # 1 Exhibit − Proposed Notice to Class, # 2 Text of Proposed Order) (Muth, R),(ps) Modified on 6/5/2018. (lak) (Entered: 06/01/2018)
97 Joint Brief in Support of 96 Motion to Approve Settlement Agreement, by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Muth, R),(ps) (Entered: 06/01/2018)
98 Declaration of R. Timothy Muth filed by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. re: 96 Motion to Approve Settlement Agreement, (Attachments: # 1 Exhibit A − Settlement Agreement with Attachments, # 2 Exhibit B − Abreu CV) (Muth, R),(ps) Modified on 6/5/2018: Changed from Affidavit to Declaration and removed duplicate text. (lak) (Entered: 06/01/2018)
99 ORDER preliminarily approving the settlement agreement, ordering notice to the class, and scheduling a fairness hearing. Plaintiffs and/or the Parties jointly shall submit a Motion for Final Approval of the Settlement within 45 days of the entry of this Order. The Court shall hold a Fairness Hearing pursuant to Fed. R. Civ. P. 23(e) (2) on September 13, 2018 at 9:00 am. Signed by District Judge James D. Peterson on 6/20/2018. (jef),(ps) (Entered: 06/20/2018)
100 Joint Motion for Final Approval of Settlement Agreement by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K., (Attachments: # 1 Text of Proposed Order) (Muth, R),(ps) (Entered: 08/06/2018)
101 Motion for Attorney Fees by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Muth, R),(ps) (Entered: 08/06/2018)
102 Second Declaration of R. Timothy Muth filed by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. re: 101 Motion for Attorney Fees, 100 Motion to Approve Settlement Agreement (Attachments: # 1 Exhibit A − Certificate of Notice to Class Members, # 2 Exhibit B − FY2018 Congressional Budget Summary re: Fee Levels, # 3 Exhibit C − Billing Summary, # 4 Exhibit D − Stipulation and Consent Decree and Permanent Injunction) (Muth, R),(ps) Modified on 8/7/2018. (lak) (Entered: 08/06/2018)

Case: 3:17-cv-47 As of: 08/01/2020 05:19 PM CDT 23 of 23

08/21/2018 09/13/2018 09/13/2018 09/21/2018
10/31/2018 12/19/2018
01/14/2019 04/17/2019 07/01/2019 10/10/2019 10/11/2019 01/08/2020
01/09/2020 03/05/2020 03/10/2020
03/11/2020 07/09/2020

103 Joint Brief in Support of 100 Motion to Approve Settlement Agreement by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Muth, R),(ps) (Entered: 08/21/2018)
104 Minute Entry for proceedings held before District Judge James D. Peterson: Settlement Approval Hearing held on 9/13/2018. (Court Reporter CS.) [:18] (nln),(ps) (Entered: 09/13/2018)
105 Stipulation and Consent Decree and Permanent Injunction, Revised per Court Hearing, by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Eastburn, Zachary),(ps) Modified on 9/14/2018. (lak) (Entered: 09/13/2018)
106 ORDER granting 100 Joint Motion for Final Approval of Settlement Agreement ; granting 101 Joint Motion for Attorney Fees. The Consent Decree and Permanent Injunction, Dkt. 105 , may be entered. The Court will retain jurisdiction over this action until all claims have been dismissed. Signed by District Judge James D. Peterson on 9/21/2018. (jef),(ps) (Entered: 09/21/2018)
107 STIPULATION AND CONSENT DECREE AND PERMANENT INJUNCTION. Signed by District Judge James D. Peterson on 10/31/2018. (jef),(ps) (Entered: 10/31/2018)
108 Transcript Excerpt of First Day of Motion hearing (testimony of Stuart Grassian), held June 22, 2017 before Judge James D. Peterson. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (jef),(ps) (Entered: 12/19/2018)
109 Expert Report (Unsigned) of Monitor Teresa Abreu by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Rotker, Karyn),(ps) Modified on 1/15/2019. (lak) (Entered: 01/14/2019)
110 Second Expert Report (Unsigned) of Teresa Abreu by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Hall, Samuel),(ps) Modified on 4/18/2019. (lak) (Entered: 04/17/2019)
111 Third Expert Report (Unsigned) of Monitor Teresa Abreu by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Rotker, Karyn),(ps) Modified on 7/2/2019. (lak) (Entered: 07/01/2019)
112 Fourth Expert Report (Unsigned) of Teresa Abreu, Monitor by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Rotker, Karyn),(ps) Modified on 10/11/2019. (lak) (Entered: 10/10/2019)
113 Fourth Expert Report of Teresa Abreu, Monitor (Signed by Monitor) by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K. (Rotker, Karyn),(ps) (Entered: 10/11/2019)
114 Stipulated Motion for Protective Order by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson. (Attachments: # 1 Text of Proposed Order Nunc Pro Tunc Protective Order) (Sparks, Benjamin),(ps) (Entered: 01/08/2020)
115 Nunc Pro Tunc Protective Order. Signed by District Judge James D. Peterson on 1/9/2020. (jef),(ps) (Entered: 01/09/2020)
116 Fifth Expert Report of Monitor Teresa Abreau by Defendants Brian Gustke, Jon E. Litscher, John D. Paquin, Wendy A. Peterson (Hall, Samuel),(ps) Modified on 3/5/2020 (jls). (Entered: 03/05/2020)
117 Stipulation to Add named Plaintiffs N.G. and T.W. by Plaintiffs A.P., A.V., C.B., K. D., D.P., J. J., C. M., M.R., M.S., R. N., S.K.. (Attachments: # 1 Text of Proposed Order Proposed Order to add named plaintiffs) (Rotker, Karyn),(ps) (Entered: 03/10/2020)
118 ORDER adopting 117 Stipulation to Add named Plaintiffs N.G. and T.W. Signed by District Judge James D. Peterson on 3/11/2020. (rks),(ps) (Entered: 03/11/2020)
119 Sixth Expert Report of Monitor by Plaintiffs A.P., A.V., C.B., K. D., D.P., N. G., J. J., C. M., M.R., M.S., R. N., S.K., T. W. (Rotker, Karyn),(ps) (Entered: 07/09/2020)

 
 Case: 3:17-cv-00047-jdp Document #: 1 Filed: 01/23/17 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson; K.D., by and through her next friends John Levy and Meranda Davis; C.M., by and through his next friend Toinette Ducksworth; R.N., by and through his next friend Gloria Norwood, for themselves and all others similarly situated,
Plaintiffs,
v.
Jon E. Litscher, in his official capacity as Secretary of the Wisconsin Department of Corrections; John D. Paquin in his official capacity as Administrator of Division of Juvenile Corrections of the Wisconsin Department of Corrections; Wendy A. Peterson in her official capacity as Superintendent of the Lincoln Hills School for Boys and the Copper Lake School for Girls; Brian Gustke, in his official capacity as Director of Security for the Lincoln Hills School for Boys and the Copper Lake School for Girls,
Defendants.

Civil Action No. 17-CV-47

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION The State of Wisconsin operates the Lincoln Hills School for Boys and the Copper Lake School for Girls, which incarcerate approximately 150-200 youth who are as young as 14 years old, in remote northern Wisconsin. The State routinely subjects these youth to unlawful solitary confinement, mechanical restraints and pepper spraying. Prior to state and federal raids on the facility at the end of 2015, staff also regularly physically abused youth in the facility. Currently, Wisconsin’s juvenile corrections officials lock up approximately 15 to 20% percent or more of the facilities’ young residents in solitary confinement cells for 22 or 23 hours per day. Many of these children are forced to spend their only free hour of time per day outside of a solitary confinement cell in handcuffs and chained to a table. Officers also repeatedly and excessively use Bear Mace and other pepper sprays against the youth, causing them excruciating pain and impairing their breathing. These practices constitute serious violations of the children’s constitutional rights, including their rights to substantive due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the United States Constitution. Plaintiffs J.J., K.D., C.M., and R.N. bring this civil rights class action lawsuit, on their own behalf and on behalf of all other children who are or will be incarcerated at Lincoln Hills and Copper Lake, to seek injunctive relief against these inhumane practices.
JURISDICTION AND VENUE 1. This action is brought under 42 U.S.C. § 1983, because Defendants, and each of them, acting under color of state law, have deprived Plaintiffs, and the members of the class of persons they represent, of rights secured under the United States Constitution.
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2. This action arises under the Eighth and Fourteenth Amendments to the United States Constitution. Accordingly, this Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 1343 (civil rights jurisdiction).
3. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the dispute occurred in this district and Defendants reside in this district.
PLAINTIFFS 4. Plaintiff J.J. is currently in custody in the Lincoln Hills School for Boys. Plaintiff J.J. is a minor child, and therefore brings this lawsuit through his next friend and mother, Sakeena Jackson. Ms. Jackson is an adult resident of Milwaukee County in the State of Wisconsin. Sakeena Jackson brings this action on Plaintiff J.J.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Sakeena Jackson is dedicated to the best interests of Plaintiff J.J. and will advocate for those best interests in this action. 5. Plaintiff K.D. is currently in custody in the Copper Lake School for Girls. Plaintiff K.D. is a minor child and therefore brings this lawsuit through her next friends, her father, John Levy, and her mother, Meranda Davis. Mr. Levy and Ms. Davis are adult residents of Milwaukee County in the State of Wisconsin. They bring this action on Plaintiff K.D.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). They are dedicated to the best interests of Plaintiff K.D. and will advocate for those best interests in this action. 6. Plaintiff C.M. is currently in custody in the Lincoln Hills School for Boys. Plaintiff C.M. is a minor child, and therefore brings this lawsuit through his next friend and mother, Toinette Ducksworth Ms. Ducksworth is an adult resident of Milwaukee County in the State of Wisconsin. Toinette Ducksworth brings this action on Plaintiff C.M.’s behalf pursuant
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to Fed R. Civ. P. 17(c)(2). Toinette Ducksworth is dedicated to the best interests of Plaintiff C.M. and will advocate for those best interests in this action.
7. Plaintiff R.N. is currently in custody of the Mendota Juvenile Treatment Center after being transferred there from Lincoln Hills School for Boys. Plaintiff R.N. is a minor child, and therefore brings this lawsuit through his next friend and adoptive mother, Gloria Norwood. Ms. Norwood is an adult resident of Milwaukee County in the State of Wisconsin. Gloria Norwood brings this action on Plaintiff R.N.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Gloria Norwood is dedicated to the best interests of Plaintiff R.N. and will advocate for those best interests in this action.
DEFENDANTS 8. Defendant Jon E. Litscher is Secretary of the Wisconsin Department of Corrections (“DOC”), the Wisconsin state agency designated to oversee correctional facilities in the State of Wisconsin including Type 1 Juvenile Correctional Facilities. Defendant Litscher is sued in his official capacity. As Secretary of DOC, Defendant Litscher is in charge of the administration and supervision of DOC, and is ultimately responsible for the administration and supervision of the Lincoln Hills School for Boys (“LHS”) and the Copper Lake School for Girls (“CLS”). 9. Defendant John D. Paquin is the Administrator of the Division of Juvenile Corrections. Defendant Paquin is sued in his official capacity. As Administrator of the Division of Juvenile Corrections, Defendant Paquin is in charge of the administration and supervision of juvenile corrections within DOC, and is responsible for the administration and supervision of LHS and CLS.
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10. Defendant Wendy A. Peterson is the Superintendent of LHS and CLS and is sued in her official capacity. As Superintendent, Defendant Peterson is also responsible for ensuring that all legal responsibilities delegated to LHS and CLS, as set forth in state statutes, state policy, and/or governmental rules and regulations, are appropriately met.
11. Defendant Brian Gustke is the Director of Security at LHS and CLS and is sued in his official capacity. As Director of Security, Defendant Gustke is responsible for the security and discipline of inmates at LHS and CLS.
FACTUAL ALLEGATIONS The Wisconsin Youth Prisons 12. Lincoln Hills School for Boys (LHS) and Copper Lake School for Girls (CLS) are located on a single property in the town of Irma in Lincoln County, Wisconsin. The LHS/CLS facility is a “secured juvenile corrections institution” operated by the Wisconsin DOC and is also referred to as Type 1 juvenile correctional facility. 13. A Type 1 juvenile correctional facility uses physical security mechanisms such as fences, barbed wire, and locked doors, in addition to control and surveillance by staff members, to restrict the liberty of youth committed to the facility by the court. 14. The Wisconsin Juvenile Code, Chapter 938, Wis. Stats., provides the legal framework for children charged with a crime under the general rubric of delinquency proceedings. Wisconsin Statutes § 938.34 lists a multitude of different programs, activities or placements a court might order, and refers to them as “[t]he dispositions under this section.” Section 938.34(4m) permits a juvenile court to order an adjudged delinquent to a “secured correctional facility” under the supervision of the DOC.
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15. Pursuant to Wisconsin Statutes § 938.505(1), the DOC has “the right and duty to protect, train, discipline, treat, and confine the juvenile and to provide food, shelter, legal services, education, and ordinary medical and dental care for the juvenile, subject to the rights, duties, and responsibilities of the guardian of the juvenile….”
16. An adjudication of delinquency is not the same as a criminal conviction. The procedural protections available to juveniles are different from the protections available to adults, and the primary goal of delinquency proceedings is the rehabilitation and treatment of the juvenile. See, e.g., Wis. Stat. § 938.01(2)(f) (juvenile code’s objectives include “respond[ing] to a juvenile offender’s needs for care and treatment, consistent with the prevention of delinquency, each juvenile’s best interest, and protection of the public, by allowing the court to utilize the most effective dispositional option”); Wis. Stat. § 938.01(2)(c) (objectives also include “development of competency in the juvenile offender, so that he or she is more capable of living productively and responsibly in the community”).
17. Juveniles may receive a correctional placement at LHS/CLS under Wis. Stat. § 938.34(4m), and such placements typically extend for one or two years. Additionally, juveniles who are adjudicated delinquent for certain serious offenses may receive a Serious Juvenile Offender (SJO) disposition order, which includes an initial placement in LHS or CLS. Most SJO orders extend for five years, although for the most serious offenses the order may extend until the juvenile reaches 25 years of age. See Wis. Stat. §§ 938.34(4h) & 938.538.
18. In addition to juveniles who are placed at LHS and CLS pursuant to dispositional orders, boys and girls under the age of 18 who have been waived into adult court and have been convicted of felonies may begin serving some or all of their adult sentences at LHS or CLS.
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19. Prior to 2011, DOC operated additional secured juvenile correction institutions. To address the declining juvenile correctional population, the State of Wisconsin consolidated juvenile correctional operations by closing two facilities in southern Wisconsin, Ethan Allen School for Boys and Southern Oaks Girls School. As of June 27, 2011, all youth from these facilities had been transferred to Lincoln Hills and Copper Lake Schools.
20. On information and belief, approximately 145 boys and 20 girls are currently being held at the LHS/CLS facility.
21. On information and belief, most of the youth held at LHS and CLS are AfricanAmerican.
22. On information and belief, most of the youth held at LHS and CLS come from Milwaukee—215 miles and 3½ hours away.
23. On information and belief, a substantial percentage of the youth held at LHS and CLS have a history of childhood trauma, mental illness, cognitive impairments, or developmental disabilities.
LHS and CLS Hold 15-20% or More of Incarcerated Youth in Solitary Confinement 24. By policy and practice, Defendants routinely use solitary confinement to
discipline and punish boys and girls at LHS and CLS for violating institutional rules. At any given time, approximately 15 to 20%—or more—of the population of LHS and CLS is held in solitary confinement, and an even larger percentage of the youth have been subjected to solitary confinement at one point or another during their incarceration at LHS and CLS.
25. The DOC uses the terms “restrictive housing,” “close confinement,” “modified confinement,” “administrative confinement,” “segregation” or “security” to refer to its practice
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of solitary confinement: confining a child alone in a locked cell for 22-23 hours per day for punishment or for discipline or for asserted security reasons.
26. LHS operates two segregation buildings: the “Krueger unit” and the “Roosevelt unit.” Each unit has two wings, and each wing consists of a corridor with about a dozen solitary confinement cells per wing. Between the wings is a guard station, offices, a small kitchen, and a common area with several metal tables.
27. CLS has a smaller population and does not have a separate segregation unit. Instead, one wing of CLS’s “Wells unit” is used for youth held in solitary confinement.
28. According to the most recent data supplied by DOC, on October 25, 2016, there were 167 youth incarcerated at LHS and CLS. Of that number, 28 youth, or nearly 17% of the population, were being held in solitary confinement on that day.
29. DOC data also show that, at any given time, the percentage of the LHS/CLS population being held in solitary confinement is between about 15 and 20%—and sometimes more.
30. A cell in the segregation units is approximately seven by ten feet. The cell is entered through a large metal door which swings out. The door has a small glass window about nose height and one or two slots through which food trays are passed. Youth extend their forearms through the door slot before and after being placed in the cell so that the guards may lock or unlock the handcuffs they must wear when they are out of their cells. The single window to the outside is covered with bars.
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31. The typical segregation cell layout is depicted below (not to scale):
32. The windows in the doors of cells in the Krueger unit have a cover which can be closed. From time to time, guards in Krueger will close those covers so a youth cannot see out of his cell into the corridor.
33. A cell in the LHS segregation units has a mattress on the floor or on a frame approximately three inches above the floor. There is a combination metal sink and toilet in the cell. Segregation cells at CLS are similar, but some have no sink or toilet in the cell, instead containing only a mattress. The cells have no other furnishings. There is no mirror or anything else on the walls. The cells have no desk or chair; youth sit on either the toilet or their mattress for 22 or 23 hours per day. Many of the cells have no call button to request attention from staff, so youth must scream or cover the surveillance cameras in their rooms to get attention.
34. A light in the segregation cell stays lit 24 hours per day. The light is dimmed from approximately 10 p.m. to 6 a.m. but is not turned off.
35. The segregation cells are dirty and smell like sweat and urine. 36. Defendants often sentence youth to solitary confinement even for infractions that do not pose a serious threat to safety, such as disrespecting staff, refusing to lock into a cell, or
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“running.” On information and belief, Defendants often sentence youth to solitary confinement for periods of 30 or 60 days for a variety of offenses—especially when youth have been disciplined previously, or for fighting regardless of whether the altercation was likely to or did result in injury. Even when youth are charged with relatively minor rule infractions, they often spend up to 14 days in segregation while they await the issuance of a conduct report and a hearing, and then frequently get a few additional days from the hearing examiner as punishment.
37. Other than a book or two, a toothbrush, and limited bedding and clothing, youth in solitary are permitted no other personal belongings, educational materials, writing or drawing utensils, computers, games, or toys. In general, a youth can only have one book at a time in his or her cell, which the youth can choose from a book cart in the segregation unit. Many youth are not permitted to have even paper in their cells.
38. Boys receive only a small amount of toilet paper and must request more when they need it. Boys also may not flush their toilets themselves, but must ask the guards to turn the toilet on to allow them to flush it. Because the girls’ solitary cells do not have a sink or toilet, the girls must push a call button and ask guards to be escorted to the bathroom. Guards sometimes take a long time to respond to requests to use the bathroom.
39. Defendants also significantly limit the education youth held in solitary confinement receive. In the general population, the youth typically receive four to five hours of education Monday-Friday. In solitary confinement, Defendants’ pattern and practice is to reduce this educational programming to a single hour outside the cell with a teacher who comes to the segregation unit and meets with about three youth at a time. During this time, they may be locked to a desk in the classroom.
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40. Defendants do not permit boys held in solitary confinement to receive phone calls for the first twenty days in security status. After twenty days, a boy can have a short phone call with his family.
41. According to Wisconsin Administrative Code § DOC 373.03(3) (for disciplinary solitary confinement) and § DOC 374.03(4) (for administrative solitary confinement), youth in segregation should have one hour of time out of the cell each day for exercise. However, the staff has a pattern and practice of frequently taking away “out time” for minor infractions.
42. Even those youth permitted “out time” are frequently kept in mechanical restraints during the limited time they are allowed out of their cells. Known as being “on the belt,” youth are handcuffed and the handcuffs are attached to a canvas belt encircling the youth’s waist. By policy and practice, LHS keeps all new male arrivals at the segregation unit “on the belt” regardless of the reason the youth was sent to segregation. Upon information and belief, at CLS, girls deemed to have exhibited some form of violent behavior are placed “on the belt” during their hour out of cell while in solitary confinement.
43. On information and belief, most youth in segregation are “on the belt” while out of their cells for the duration or a large portion of their time in solitary confinement. DOC’s regulations expressly permit the use of restraints as a matter of course for juveniles in solitary confinement. Wisconsin Administrative Code § DOC 376.09 governs use of mechanical restraints (including “handcuffs with restraining belt or chain”) and authorizes use on “a youth who is in security status while the youth is outside the place of confinement.”
44. If a youth is “on the belt,” the youth spends his or her “out time” chained to a table in the central area of the segregation unit in front of the guard station. Depending on the
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number of youth currently in the security units, there might be two or three youth chained to tables for the same hour.
45. For the girls at CLS in segregation, the hour of “out time” includes their shower, a period of time of room cleaning, and perhaps 15 minutes of exercise before they are locked back in their cells.
46. Staff in the security units review a youth’s continued status on the belt once a week. If the staff decide that the youth has been on good behavior, the youth may be allowed out of his or her cell without being in restraints.
47. If the youth is “off the belt,” the youth goes outside during his or her one hour of “out time.” “Outside” means that the youth is allowed, usually alone, into an outdoor caged area paved with concrete.
48. Youth who are “on the belt” remain in restraints during their hour of education and are not allowed to have writing instruments in their cells.
49. In addition, when Defendants put youth into segregation, they revoke access to the very programs which might help and rehabilitate the youth, such as Aggression Replacement Training (ART) and the Juvenile Cognitive Intervention Program (Phases I and II). If a youth misses more than a few sessions of any such program because he or she is in solitary confinement, Defendants require the youth to start the program over from the beginning.
50. Failure to complete these programs also results in additional punitive consequences. Defendants’ Office of Juvenile Offender Review (OJOR) considers failure to complete these programs a justification to deny a transfer out of LHS or CLS to a step down facility or to deny early release.
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Solitary Confinement Causes Serious Damage to Incarcerated Youth 51. Solitary confinement is particularly damaging to youth, who are still developing physically, psychologically, and socially. 52. Youth in segregation face a significant risk of serious mental harm. Solitary confinement negatively impacts juveniles by perpetuating, worsening, or precipitating mental health concerns, including but not limited to post-traumatic stress disorders, psychosis, anxiety disorders, major depression, hyper-vigilance, agitation, general lack of trust, suicidal ideation, suicidal intent, self-mutilation, and suicidal behavior. 53. These mental health concerns can cause long-term harm. Solitary confinement can lead to chronic conditions like depression, which, in teenagers, can manifest as anger or as self-harm. In addition, children who experience depression and anxiety in their teenage years are at higher risk of presenting with these diagnoses again. Symptoms associated with depression, such as low self-esteem, insomnia, inattention, low energy, fatigue, weight loss, and feelings of hopelessness can similarly persist into adulthood. There is a 10 to 15% mortality rate associated with depression, and solitary confinement increases the risk of suicide substantially compared to the risk in the general population. 54. Solitary confinement of youth can also lead to long-term erosion of trust with adults, resulting in paranoia, anger, and hatred. Juveniles emerging from solitary have trouble forming the therapeutic relationships necessary to address the mental health concerns resulting from solitary confinement. 55. The risk of harm from solitary is made worse by the disproportionately high incidence of preexisting trauma and mental health concerns among juveniles in the criminal justice system. Research shows that more than 60% of the youth in correctional settings have an
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underlying major mental illness. Stress from isolation can compound past trauma and exacerbate mental illnesses and disabilities.
56. For those youth with a history of trauma, mental illnesses, or developmental disabilities, the risk of harm is especially great. They already have weakened adaptive mechanisms, are at a higher risk for further mental health complications, are more susceptible to significant trauma from social isolation, and are more likely to suffer long-lasting consequences from the trauma of isolation than those without mental illnesses or disabilities.
57. Not only is it harmful to deprive a youth of meaningful social interaction or mental stimulation, it also is counterproductive to the goals of ensuring safety, security, and good order. Research shows that segregating youth results in increased agitation and an increased risk of misbehavior. Facilities that have reduced their reliance on disciplinary isolation and instead have adopted more appropriate techniques for managing juveniles have seen reductions in rates of violence and misbehavior. Most of these facilities allow for short-term separation—measured in hours, not days, weeks, or months (as is the case in LHS/CLS)—and then only as a last resort when other options fail to defuse situations that pose an acute risk of harm to the juvenile or others.
58. In a series of Eighth Amendment cases involving the death penalty and life without parole sentences, the Supreme Court has held that the Constitution requires that children not be punished like adults without first accounting for the unique traits that make them children.
59. A number of professional organizations and institutions have echoed the Supreme Court’s principle that incarcerated children cannot be treated like adults. The National Commission on Correctional Health Care (“NCCHC”), for example, issued a statement establishing that juveniles should not be placed in solitary confinement for any duration; the
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statement highlighted juveniles’ particular vulnerability to adverse reactions to isolation. The World Health Organization (“WHO”), the United Nations, and other international bodies have also recognized that solitary confinement is particularly harmful to a child’s psychological wellbeing and cognitive development. Acknowledging the high risk of mental illness as well as the higher rates of suicide and self-harm for youth in solitary confinement, the United Nation’s (U.N.) Special Rapporteur on Torture, in a 2015 report, condemned solitary confinement of children for any duration, calling it torture.
60. Similarly, in 1999, the Office of Juvenile Justice and Delinquency Prevention of the United States Department of Justice (USDOJ) commissioned “the first comprehensive effort to determine the scope and distribution of suicides by youth in our public and private juvenile facilities throughout the country.” The study found that fifty percent of victims were in isolation at the time of their suicide, and sixty-two percent of victims had a history of isolation, noting “rates of suicidal behavior appeared to be higher for youth who were isolated from their peers or assigned to single room housing.” Lindsey M. Hayes, Nat’l Ctr. on Inst. & Alternatives, Juvenile Suicide in Confinement: A National Survey 42 (2004); see also Steven H. Rosenbaum, Chief, Special Litig. Section, U.S. Dep’t of Justice, Remarks before the Fourteenth Annual National Juvenile Corrections and Detention Forum (May 16, 1999) (“The use of extended isolation as a method of behavior control, for example, is an import from the adult system that has proven both harmful and counterproductive when applied to juveniles. It too often leads to increased incidents of depression and self-mutilation among isolated juveniles, while also exacerbating their behavior problems. We know that the use of prolonged isolation leads to increased, not decreased, acting out, particularly among juveniles with mental illness.”)
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61. National and international standards governing corrections and juvenile justice uniformly condemn the use of solitary confinement in juvenile facilities and provide that where segregation is necessary in certain acutely dangerous situations, it should be as brief as possible.
62. The USDOJ’s Office of Juvenile Justice and Delinquency Prevention Standards for the Administration of Juvenile Justice (“JJDPA Standards”) provide that no juvenile should be placed in room confinement for more than twenty-four hours. Standards for the Admin. of Juvenile Justice § 4.52 (Nat’l Advisory Committee for Juvenile Justice and Delinquency Prevention 1980).
63. The Juvenile Detention Alternatives Initiative (JDAI), which has developed the most widely recognized set of national best practices on the use of solitary confinement with juvenile populations, provides that solitary confinement can never be used for purposes of punishment or discipline and must be limited to periods of less than 4 hours.
64. Having recognized in a 2012 report that “[n]owhere is the damaging impact of incarceration on vulnerable children more obvious than when it involves solitary confinement,” the USDOJ subsequently recommended that the use of solitary confinement for juveniles in federal prisons be prohibited, and President Obama adopted that recommendation in 2016.
65. The American Medical Association (“AMA”), the American Academy of Child and Adolescent Psychiatry, and the NCCHC all have called on correctional facilities to halt the use of solitary confinement of juveniles for disciplinary purposes.
66. The international community has also condemned the placement of children in solitary confinement. International law prohibits the use of isolation as a disciplinary tool. Specifically, the U.N.’s Rules for the Protection of Juveniles Deprived of their Liberty declare that “all disciplinary measures constituting cruel, inhuman or degrading treatment shall be
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strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.” G.A. Res. 45/113, Annex ¶ 67 (Dec. 14, 1990).
67. Furthermore, long-term solitary confinement can be a form of psychological torture, which international law strictly prohibits. See, e.g., United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (Dec. 10, 1984); see also Atul Gawande, Hellhole, The New Yorker, Mar. 30, 2009.
68. National and state standards and guidelines also recognize that it is essential for youth confined in juvenile justice facilities to have a meaningful opportunity to exercise every day. Standards set by various governmental and non-governmental entities, such as OJJDP, the NCCHC, the American Bar Association and the Council of Juvenile Correctional Administrators (“CJCA”), make it clear that juveniles must have at least one hour per day of actual, strenuous, large-muscle exercise, with many recommending two or more hours per day, for both physical and mental health needs. These standards also make it clear that keeping a child on the belt and handcuffed to a table does not constitute “exercise.”
69. Use of restraints is known to cause both physical and psychological harm. See Johnson, Being Restrained: A study of power and powerlessness¸ 19 ISSUES IN MENTAL HEALTH NURSING 191, 196-203 (1998); Singh, Singh, Davis, Latham & Ayers, Reconsidering the Use of Seclusion and Restraints in Inpatient Child and Adult Psychiatry, 8 J. OF CHILD & FAM. STUD. 243, 244 (1999).
70. The practice of putting youth “on the belt” in restraints for weeks and months at a time violates recognized national and international standards.
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71. The Institute of Judicial Administration - ABA Standards for Juvenile Justice,
Standards Relating to Corrections Administration, provide:
7.8 Limitations on restraints and weapons. A. Mechanical restraints. Given the small size of programs, it should not be necessary to use mechanical restraints within the facility. The program director may authorize the use of mechanical restraints during transportation only. 72. Article 64 of the U.N. Rules for the Protection of Juveniles Deprived of their
Liberty provides: “Instruments of restraint and force can only be used in exceptional cases,
where all other control methods have been exhausted and failed. . . . They should not cause
humiliation or degradation, and should be used restrictively and only for the shortest possible period of time.” G.A. Res. 45/113, U.N. GAOR, 45th Sess., Supp. No. 49A, art. 64, U.N. Doc.
A/45/49 (1990).
73. The U.N. Standard Minimum Rules for the Treatment of Prisoners (adopted by
the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663
C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977), similarly state:
33. Instruments of restraint, such as handcuffs, chains, irons and straitjackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints.
Other instruments of restraint shall not be used except in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.
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Defendants Are Aware or Should Be Aware of the Risks of Solitary Confinement and Restraints, But Have Deliberately Chosen to Ignore Those Risks
74. Defendants know or should be aware of the risks of solitary confinement for youth. President Obama’s actions to prohibit solitary confinement of juveniles in federal custody—and the research on which the prohibition was based—were widely reported in the media.
75. DOC officials are familiar with NCCHC policies and statements as a result of their efforts to achieve NCCHC accreditation of their facilities, and so should be aware of the NCCHC’s policy position advocating a ban on solitary confinement of juveniles.
76. On October 25, 2016, Defendant Litscher received correspondence advising him of the position of the AMA that solitary confinement of juveniles should be banned and of the Obama administration’s prohibition of solitary confinement of federal juvenile prisoners.
77. Defendants nonetheless continue to subject numerous youth at LHS and CLS to extended periods of solitary confinement, with deliberate indifference to the substantial risk of serious harm it creates.
78. Similarly, Defendants are or should be aware of the harm to juveniles caused by the use of restraints, such as being handcuffed to a waist belt and tethered to a table. The international law standards have been in place and research on the harm of restraints has been available for decades, and it is obvious that shackling a child to a table for the only hour he or she is allowed out of her cell is demeaning, psychologically harmful, and prevents essential large-muscle exercise.
79. Defendants nonetheless continue to routinely restrain youth in solitary confinement by placing them “on the belt” for most or significant portions of their stays in solitary, with deliberate indifference to the substantial risk of harm such restraints create.
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The Plaintiffs Have Been Subjected To Excessive and Painful Pepper Spraying 80. In addition to solitary confinement, Defendants have a pattern and practice of routinely using pepper spray to control the behavior of the youth in their custody, both while in the general population and in solitary confinement. 81. Guards at LHS and CLS have a pattern and practice of using pepper spray unnecessarily and unreasonably on youth for minor non-violent infractions, such as refusing to go into their rooms, refusing to leave their rooms, covering up the cameras in the segregation unit, and failing to follow commands. In fact, Defendants’ policy expressly permits use of pepper spray to “enforce a DOC rule, a posted policy or procedure or an order of staff member,” even without any risk of harm to staff or youth or danger to the security of the institution. DOC DJC Policy & Procedure 300.05.05 (9-28-2016). 82. According to records maintained by the Defendants, guards at LHS and CLS have used pepper spray on the youth in their care at least 198 times in the period January through October 2016. 83. Guards at LHS and CLS use several different forms of pepper spray on youth in their custody, including “Bear Mace,” which is marketed as being able to protect hikers from charging bears. Other types of pepper spray in use at LHS and CLS include Phantom and Ghost. Some pepper sprays are used to create a cloud which will fill the youth’s cell. Others are sprayed directly at the face or body of a youth. 84. Oleoresin capsicum (“OC”), the active ingredient in pepper spray, causes intense burning, coughing, and temporary blindness. 85. After youth are pepper sprayed, they are routinely locked into a cage in a shower. The effects of the spray are temporarily worsened by exposure to water and spread to sensitive
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areas such as the groin, causing intense pain. To avoid this acute increase in pain, some youth choose not to turn on the shower, but as a result the spray remains on their skin, prolonging the duration of their pain.
86. After guards use pepper spray on youth in solitary confinement, the guards remove all of the youth’s clothes and provide only a paper or cloth gown.
87. After guards use pepper spray on youth in the segregation units, the guards remove the regular mattress from the cells, providing only a rubber security mat in its place.
88. Youth at CLS and LHS have described being pepper sprayed as “feeling like you were hit a hundred times.” The effects of the spray can last for days, and are reactivated by water even days later, such as when the child washes his or her face.
89. The JDAI standards require juvenile justice facilities to strictly prohibit the use of chemical agents. Juvenile Detention Facility Assessment - Standards Instrument (2014 Update) at 104.
90. The Council of Juvenile Correctional Administrators has also declared that pepper spray use is both harmful and counter-productive:
[Pepper spray’s] use has been shunned by juvenile correctional agencies because of the harm it causes to youths and the negative impact on staff-youth relationships, the key to successful juvenile rehabilitative programming. Very few states authorize its use and in the states that allow its use in policy, most prohibit the use except as a last resort and with many conditions and few facilities put it into practice. Pepper Spray in Juvenile Facilities, CJCA, available at http://cjca.net/attachments/ article/172/ CJCA.Issue.Brief.OCSpray.pdf. Defendants Are Aware or Should Be Aware of the Risks of Harm Posed by Pepper Spray
and Have Deliberately Chosen to Ignore Those Risks 91. Defendants know or should be aware of the risk of harm to juveniles from using pepper spray and are aware that it is generally not necessary to manage juvenile misbehavior.
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92. On information and belief, Defendants are members of the CJCA, see Agency Directory, CJCA, http://cjca.net/index.php/resources/agency-directory (last visited Jan. 20, 2017), an organization that has condemned the use of pepper spray in juvenile correctional facilities.
93. Defendants nonetheless, as a matter of both practice and policy, continue to use pepper spray extensively. Indeed, Defendants’ current policy, DOC 305.05.05 (part I.H.), far from confining use of pepper spray to a last resort, expressly permits the use of pepper spray “to enforce a DOC rule, a posted policy or procedure or an order of staff member.” The Named Plaintiffs Have Repeatedly Been and are Likely in the Future To Be Subjected
to Solitary Confinement, Mechanical Restraints and Pepper Spray Plaintiff J.J.
94. Plaintiff J.J. is an African American boy from the City of Milwaukee, Wisconsin. He was first committed to LHS in 2015 at the age of 15. He was initially given a one-year correctional placement, which was extended for an additional year.
95. J.J. has spent most of his time at Lincoln Hills in solitary confinement; he has been sent to solitary on approximately ten separate occasions for a variety of reasons. Because of his time in solitary confinement, J.J. has been limited in the amount of schooling he has been able to receive and has not been able to complete programs designed for his rehabilitation.
96. According to J.J., the guards in the segregation units “treat us like dogs, in cages, causing us more trauma.”
97. J.J. believes that the guards intentionally provoke him and trigger him to react. 98. J.J. has been diagnosed with attention deficit hyperactivity disorder (ADHD). 99. When in solitary confinement, J.J. has been “on the belt” for most of the time he is allowed out of his cell. In addition, Defendants have frequently taken away J.J.’s out time.
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100. J.J. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. When he is in solitary confinement, he has trouble sleeping, he feels anxious and is easily irritated by minor things, like being ignored, and he is increasingly prone to anger. He has had episodes of sadness and restlessness while in solitary.
101. J.J. was in solitary confinement as of January 13, 2017, and was not scheduled to be released until January 21, 2017. He reasonably fears that he will be returned to solitary confinement again at LHS in the absence of injunctive relief.
102. LHS staff have also pepper-sprayed J.J. five or six times, including shooting the burning spray directly in his face. For example, on one occasion in 2016, J.J. was peppersprayed as guards were attempting to take him to segregation. After being pepper sprayed, the guards threw him into the prison van, where he was left in a cloud of mace.
103. In another incident in July 2015, J.J. asked for a supervisor and refused to go back into his cell in segregation until he talked to a supervisor about his shower. Several guards arrived and surrounded him in a circle and told him to get on the ground. He did not. The guards were preparing to pepper spray J.J. when he bolted for his cell. Although there was no threat of injury to anyone, the guards pepper-sprayed J.J. as he ran past and into his cell.
104. J.J. reasonably fears that he will again be subjected to the use of pepper spray by LHS staff in the absence of injunctive relief.
105. J.J. has filed grievances and appeals regarding Defendants’ use of solitary confinement and pepper spray pursuant to Defendants’ inmate complaint procedures and exhausted his available administrative remedies.
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Plaintiff K.D. 106. Plaintiff K.D. is an African American girl from the City of Milwaukee, Wisconsin. She was first committed to CLS in July 2016 at the age of 14 with a one-year dispositional order. 107. Since she has been at CLS, K.D. has been placed in solitary confinement on three separate occasions. Her alleged infractions included being loud and being disruptive, for which she was sent to solitary confinement for periods ranging from three to nine days. 108. K.D. has been diagnosed with ADHD. 109. K.D. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. She experienced anxiety, sadness, hopelessness, restlessness, and finds that solitary confinement makes her increasingly irritated and angry. Her sadness and hopelessness were so profound she had suicidal thoughts. 110. While Defendants were holding K.D. in solitary confinement, they used so much pepper spray on another girl in solitary confinement that spray filled the corridor. The cloud of pepper spray made K.D., and, on information and belief, other girls in the wing, cough and gag, and burned their throats. Although the guards used masks to protect themselves from the impact of the spray, they offered no protection to any of the youth in that wing, including K.D. 111. K.D. reasonably fears that she will be returned to solitary confinement again at CLS, if she is not granted injunctive relief. 112. K.D. reasonably fears that she will again be subjected to pepper spray by CLS staff in the absence of injunctive relief.
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113. K.D. has filed grievances and appeals regarding Defendants’ use of solitary confinement and pepper spray pursuant to Defendants’ inmate complaint procedures and exhausted her available administrative remedies.
Plaintiff C.M. 114. Plaintiff C.M. is an African American boy from the City of Milwaukee, Wisconsin. He was committed to LHS on November 16, 2016, and will be held there until he turns 18 in May, 2017. 115. In his first six weeks at LHS, C.M. spent more than two weeks in solitary confinement for two separate incidents. 116. Neither incident involved any violence or threat to security. 117. On his first confinement in solitary, C.M. was released after seven days. He had never received any written notice of charges against him or any type of due process hearing to justify this punishment. Defendants told him they were releasing him because no disciplinary conduct report had ever been prepared. 118. Despite the fact that C.M. had not been involved in any violent incident or threat, he was initially placed “on the belt” for multiple days, due to the LHS policy and practice of placing all new arrivals in segregation on the belt. 119. C.M. was taken to solitary the second time shortly before Christmas, 2016. The staff supervisor told C.M. that this time a conduct report would actually be prepared. He was released on or about December 29, 2016, without having received written notice of the charges against him or a due process hearing, although he was told orally he was found guilty of the misconduct.
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120. C.M. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. He was sad because he could not speak with his mother. He felt anxious and was unable to sleep. He was irritable and annoyed by the noise in the unit. He felt treated like an animal: cuffed to come out of the cell, cuffed to shower, cuffed everywhere he went. His hair started falling out.
121. C.M. has been in solitary confinement and reasonably fears that he will be kept in solitary confinement or returned to solitary confinement again at LHS if he is not granted injunctive relief.
122. C.M. has filed grievances regarding Defendants’ use of solitary confinement pursuant to Defendants’ inmate complaint procedures and exhausted his available administrative remedies.
Plaintiff R.N. 123. Plaintiff R.N. is a 14-year-old African-American boy from Milwaukee County. He arrived at LHS in April, 2016, only two months after his 14th birthday. 124. Between April 2016 and December 2016, R.N. estimates he spent only two weeks out of solitary confinement. As a result he received extremely limited educational programming and virtually no rehabilitative programming during his time at LHS. 125. R.N. has been pepper-sprayed many times by staff at LHS. Each time he has suffered an intense burning sensation over all the affected areas of his body. 126. After pepper-spraying R.N. in the solitary confinement unit, the staff would remove R.N.’s mattress from his cell and replace it with only a hard rubber security mat. On one occasion, he was forced to sleep four consecutive nights on just the security mat. On another
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occasion, the staff did not even provide a security mat, but forced R.N. to try to sleep on the cold bed frame.
127. R.N. has been diagnosed with ADHD. 128. R.N. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. R.N. has been on suicide watch. In one incident, he reached an electrical cord attached to a fan near his door, pulled it through the food tray slot, and wrapped it around his neck. Guards responding to this behavior initially pulled on the cord, leaving marks on R.N.’s neck, then fogged his room with pepper spray. 129. On December 7, 2016, R.N. was transferred to MJTC for diagnosis and treatment of mental health concerns. 130. R.N. reasonably fears that he may be returned to LHS and that he will be returned to solitary confinement again at LHS in the absence of injunctive relief. 131. R.N. reasonably fears that he may be returned to LHS and that he will again be subjected to the use of pepper spray by LHS staff in the absence of injunctive relief. 132. R.N. has filed grievances regarding Defendants’ use of solitary confinement and pepper spray pursuant to Defendants’ inmate complaint procedures and exhausted his available administrative remedies.
CLASS ACTION ALLEGATIONS 133. Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of themselves and all members of the class of persons who are now, or will be in the future, incarcerated at LHS or CLS (the “Class”). 134. Plaintiffs seek class-wide declaratory and injunctive relief pursuant to Rule 23(b)(2).
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135. The Class consists of all youth currently incarcerated at LHS and CLS and any youth who are incarcerated there in the future. The exact number of inmates currently in the Class is not known to Plaintiffs with certainty, particularly because the number of Class members fluctuates. On information and belief, the number of current Class members is approximately 165 (145 boys at LHS and 20 girls at CLS). In addition to Class members currently held at LHS and CLS, the Class consists of an unknown number of youth who will be incarcerated in those facilities in the future and, absent injunctive relief, subjected to the same treatment as youth currently incarcerated.
136. The individual Plaintiffs’ claims are typical of the claims of all members of the Class, because they have all been subjected to solitary confinement, restraints and/or the excessive use of pepper spray, and/or to the threat of being subjected to solitary confinement, restraints, or pepper spray in the future. Plaintiffs and all members of the Class have similarly suffered harm, or will suffer harm in the future, arising from Defendants’ actions and inaction.
137. Common questions of law and fact exist as to all members of the Class. These common legal and factual questions include:
a. Whether Defendants’ policy and practice of placing youth in solitary confinement for punitive or disciplinary purposes and for a period longer than a few hours violates the Eighth and/or Fourteenth Amendments to the United States Constitution.
b. Whether Defendants’ policies and practices of using mechanical restraints violates the Eighth and/or Fourteenth Amendments to the United States Constitution.
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c. Whether Defendants’ policies and practices of using pepper spray violate the Eighth and/or Fourteenth Amendments to the United States Constitution.
d. Whether Plaintiffs and other Class Members are entitled to the declaratory and injunctive relief they seek.
138. By routinely confining substantial numbers of youth in solitary confinement for relatively minor infractions and other disciplinary or punitive purposes, and by routinely using pepper spray and restraints on youth to control behavior, Defendants have acted or refused to act on grounds generally applicable to the entire Class.
139. The claims asserted herein are capable of repetition while evading review. There is a continuing and substantial public interest in these matters, justifying declaratory and injunctive relief in favor of the Plaintiffs and the Class.
140. This suit may be maintained as a class action pursuant to Rules 23(a) and (b)(2), Federal Rules of Civil Procedure, because Plaintiffs and other members of the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, commonality, typicality, and adequacy are present.
141. A class action is the best available method for adjudication of these legal issues because individual litigation of these claims would be impracticable, and individual litigation would be unduly burdensome to the courts.
142. The named Plaintiffs, their representatives, and Class counsel will fairly and adequately represent the interests of the Class. The named Plaintiffs and their representatives have no interests in this matter that are antagonistic to other Class Members. Class counsel have many years of experience in civil rights and class action litigation.
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CLAIMS FOR RELIEF Count I: Defendants’ Use of Solitary Confinement Violates the Fourteenth Amendment
Right to Rehabilitation 143. The allegations of paragraphs 1 to 142 above are incorporated herein. 144. The Fourteenth Amendment to the United States Constitution protects the substantive due process rights of the Plaintiffs, juvenile prisoners at Lincoln Hills and Copper Lake, including a right to a rehabilitative environment and rehabilitative treatment. 145. Defendants have a policy, pattern or practice of use of solitary confinement, described above, which interferes with Plaintiffs’ rehabilitation and harms Plaintiffs emotionally, psychologically, physically and educationally. 146. This use of solitary confinement deprives Plaintiffs of their substantive due process right to rehabilitative treatment and a rehabilitative environment, in violation of the Fourteenth Amendment. 147. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 148. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to harm Plaintiffs and other class members by depriving them of rehabilitation, in violation of their substantive due process rights under the Fourteenth Amendment. Count II: Defendants’ Use of Restraints Violates the Fourteenth Amendment Right to
Rehabilitation 149. The allegations of paragraphs 1 to 148 above are incorporated herein.
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150. The Fourteenth Amendment to the United States Constitution protects the substantive due process rights of the Plaintiffs, juvenile prisoners at Lincoln Hills and Copper Lake, including a right to a rehabilitative environment and rehabilitative treatment.
151. Defendants have a policy, pattern or practice of use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement, as described above, which interferes with their rehabilitation and harms Plaintiffs emotionally, psychologically, physically and educationally.
152. This use of restraints deprives Plaintiffs of their substantive due process right to rehabilitative treatment and a rehabilitative environment, in violation of the Fourteenth Amendment.
153. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
154. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to harm Plaintiffs and other class members by depriving them of rehabilitation, in violation of their substantive due process rights under the Fourteenth Amendment. Count III: Defendants’ Use of Restraints Constitutes Excessive Use of Force in Violation of
the Fourteenth Amendment 155. The allegations of paragraphs 1 to 154 above are incorporated herein. 156. The Fourteenth Amendment’s substantive due process guarantee prohibits juvenile prison officials from using objectively unreasonable force against the juvenile prisoners in their custody.
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157. As described above, Defendants have a policy, pattern or practice of excessive use of mechanical restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement.
158. Defendants’ use of restraints is intentional and objectively unreasonable, and thus deprives Plaintiffs of their substantive due process rights, in violation of the Fourteenth Amendment. This excessive use of restraints is not necessary to achieve any legitimate penological purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs.
159. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
160. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject Plaintiffs and other class members to objectively unreasonable force, in violation of their Fourteenth Amendment rights.
Count IV: Defendants’ Use of Pepper Spray Constitutes Excessive Use of Force in Violation of the Fourteenth Amendment
161. The allegations of paragraphs 1 to 160 above are incorporated herein. 162. The Fourteenth Amendment’s substantive due process guarantee prohibits juvenile prison officials from using objectively unreasonable force against the juvenile prisoners in their custody. 163. As described above, Defendants have a policy, pattern or practice of excessive use of pepper spray. 164. Defendants’ use of pepper spray is intentional and objectively unreasonable, and thus deprives Plaintiffs of their substantive due process rights, in violation of the Fourteenth
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Amendment. This use of pepper spray is not necessary to achieve any legitimate penological purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs.
165. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
166. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject Plaintiffs and other class members to objectively unreasonable force, in violation of their Fourteenth Amendment rights.
Count V: Defendants’ Failure to Protect Juveniles from Pepper Spray and Restraints Violates the Fourteenth Amendment
167. The allegations of paragraphs 1 to 166 above are incorporated herein. 168. The substantive component of the Due Process Clause of the Fourteenth Amendment requires juvenile prison officials to take reasonable measures to prevent the excessive use of force against juvenile prisoners in the officials’ care. 169. Defendants know that security staff at Lincoln Hills and Copper Lake have a policy, pattern or practice of excessive use of pepper spray and use of restraints and that such use creates a substantial risk that juvenile prisoners will be seriously harmed. 170. Defendants have failed to take reasonable measures to prevent the excessive use of pepper spray and restraints by security staff at Lincoln Hills and Copper Lake. 171. By failing to protect Plaintiffs, Defendants have deprived them of their substantive due process rights under the Fourteenth Amendment. 172. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
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173. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to fail to protect the Plaintiffs and other class members from excessive force, in violation of their Fourteenth Amendment rights.
Count VI: Defendants’ Use of Solitary Confinement Violates the Eighth Amendment 174. The allegations of paragraphs 1 to 173 above are incorporated herein. 175. The Eighth Amendment to the United States Constitution forbids state actors to
impose cruel and unusual punishment on convicted prisoners, including acting (or failing to act) with deliberate indifference to a substantial risk of serious harm to prisoners’ health or safety.
176. Defendants have a policy, pattern or practice of routine use of solitary confinement of juvenile prisoners at Lincoln Hills and Copper Lake. As described above, Defendants’ practice of solitary confinement subjects Plaintiffs to, among other harmful conditions: 22-23 hours per day in a single cell—for days, weeks or months at a time—locked behind a solid metal door, with no furniture other than a low bed and a combination toilet/sink, with constant illumination, even at night, and with extremely limited access personal property; shackling the hands of juveniles in solitary confinement to a waist belt during the limited times they are out of their cells for days and sometimes weeks at a time; lack of access to educational and rehabilitative programming while in solitary confinement; and lack of access to meaningful exercise and social interaction. This solitary confinement creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs.
177. Defendants use solitary confinement against juvenile prisoners with deliberate indifference, in that they are or should be aware of the substantial risk of serious harm to the Plaintiffs caused by excessive use of solitary confinement but continue to subject Plaintiffs to such confinement and have failed to take reasonable steps to prevent the harm.
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178. By imposing solitary confinement, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eight Amendment.
179. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
180. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to a substantial risk of serious harm, in violation of their Eighth Amendment rights.
Count VII: Defendants’ Use of Restraints Violates the Eighth Amendment 181. The allegations of paragraphs 1 to 180 above are incorporated herein. 182. The Eighth Amendment to the United States Constitution forbids state actors to impose cruel and unusual punishment on convicted prisoners, including acting (or failing to act) with deliberate indifference to a substantial risk of serious harm to prisoners’ health or safety. 183. Defendants have a policy, pattern or practice of routine and excessive use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement. This excessive solitary confinement creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs. 184. Defendants use mechanical restraints against juvenile prisoners with deliberate indifference, in that they are or should be aware of the substantial risk of serious harm to the Plaintiffs caused by excessive use of restraints but continue to subject Plaintiffs to it and have failed to take reasonable steps to prevent the harm. 185. By routinely and excessively using mechanical restraints, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eight Amendment.
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186. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
187. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to a substantial risk of serious harm, in violation of their Eighth Amendment rights. Count VIII: Defendants’ Use of Restraints Constitutes Excessive Force in Violation of the
Eighth Amendment 188. The allegations of paragraphs 1 to 187 above are incorporated herein. 189. The Eighth Amendment prohibition on cruel and unusual punishment forbids state actors to use excessive force against convicted prisoners. 190. Defendants have a policy, pattern or practice of excessive and unnecessary use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement. This excessive use of restraints is not necessary to achieve any legitimate penological purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs. 191. Defendants’ use of restraints is intentional, and Defendants know or should know that such restraints are unnecessary to and ineffective in maintaining or restoring security or discipline, and thus has the purpose and effect of harming Plaintiffs without a legitimate penological purpose. 192. By the routine and excessive use of restraints, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eighth Amendment. 193. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
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194. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to excessive force, in violation of their Eighth Amendment rights. Count IX: Defendants’ Use of Pepper Spray Constitutes Excessive Force in Violation of the
Eighth Amendment 195. The allegations of paragraphs 1 to 194 above are incorporated herein. 196. The Eighth Amendment prohibition on cruel and unusual punishment forbids state actors to use excessive force against convicted prisoners. 197. Defendants have a policy, pattern or practice of excessive use of pepper spray to punish or control the behavior of juvenile prisoners at Lincoln Hills and Copper Lake. 198. Defendants’ use of pepper spray is intentional, and Defendants know or should know that such use of pepper spray is unnecessary to and ineffective in maintaining or restoring security or discipline, and thus has the purpose and effect of harming Plaintiffs without a legitimate penological purpose. 199. By the routine and excessive use of pepper spray, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eighth Amendment. 200. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 201. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to excessive force, in violation of their Eighth Amendment rights.
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Count X: Defendants’ Failure to Protect Juveniles from Restraints and Pepper Spray Violates the Eighth Amendment
202. The allegations of paragraphs 1 to 201 above are incorporated herein. 203. The Eighth Amendment prohibition on cruel and unusual punishment requires prison officials to take reasonable measures to prevent the excessive use of force against prisoners in the officials’ care. 204. Defendants know that security staff at Lincoln Hills and Copper Lake have a policy, pattern or practice of excessive use of restraints and pepper spray and that such use creates a substantial risk that Plaintiffs will be seriously harmed. 205. Defendants have failed to take reasonable measures to prevent the excessive use of restraints and pepper spray by security staff at Lincoln Hills and Copper Lake. 206. By failing to protect Plaintiffs, Defendants have subjected to cruel and unusual punishment, in violation of the Eighth Amendment. 207. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 208. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to fail to protect the Plaintiffs and other Class members from excessive force, in violation of their Eighth Amendment rights.
WHEREFORE, Plaintiffs request that this Court: A. Issue an order certifying this action to proceed as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure and appointing the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure;
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B. Declare that Defendants’ policies and practices of: confining youth in solitary confinement for disciplinary or punitive purposes or in any case other than a rare and temporary response to avoid imminent serious physical harm to persons; routinely using mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering them to a table during their only time out of their cells; and routinely using pepper spray to punish youth and control behavior violate, on their face and as applied, the named Plaintiffs’ and class members’ rights under the Eighth and Fourteenth Amendment to the United States Constitution;
C. Grant facial and as applied temporary, preliminary, and permanent injunctive relief prohibiting Defendants from engaging in the practice of solitary confinement for disciplinary or punitive purposes or in any case other than a rare and temporary response to avoid imminent serious physical harm to persons, and prohibiting the use of mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering them to a table during their only time out of their cells, and pepper spray except in the rare occasion necessary to avoid imminent serious physical harm to persons;
D. Issue such further injunctive relief as necessary to rectify the unconstitutional use of solitary confinement, mechanical restraints and pepper spray, including appointing a monitor and requiring Defendants to report all uses of solitary confinement, restraints, and pepper spray at LHS and CLS to the monitor and to class counsel on a weekly basis;
E. Award reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and F. Grant such other relief as the Court may deem just and proper.
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Dated this 23rd day of January, 2017.

ACLU OF WISCONSIN FOUNDATION Laurence J. Dupuis, SBN 1029261 Karyn L. Rotker, SBN 1007719 R. Timothy Muth, SBN 1010710 207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202 Telephone: (414) 272-4032 Facsimile: (414) 272-0182 ldupuis@aclu-wi.org krotker@aclu-wi.org tmuth@aclu-wi.org
JUVENILE LAW CENTER Jessica Feierman Karen Lindell Marsha Levick The Philadelphia Building 1315 Walnut Street, 4th Floor Philadelphia, PA 19107 Telephone: (215) 625-0551 jfeierman@jlc.org klindell@jlc.org mlevick@jlc.org
QUARLES & BRADY LLP
s/ Rachel A. Graham
Matthew J. Splitek, SBN 1045592 Rachel A. Graham, SBN 1069214 33 East Main Street, Suite 900 Madison, WI 53703 Telephone: (608) 251-5000 matthew.splitek@quarles.com rachel.graham@quarles.com Emily L. Stedman, SBN 1095313 Zachary T. Eastburn,* SBN 1094676 411 East Wisconsin Avenue, Suite 2350 Milwaukee, WI 53202-4426 Telephone: (414) 277-5000 emily.stedman@quarles.com zachary.eastburn@quarles.com
*admission pending
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson; K.D., by and through her next friends John Levy and Meranda Davis; C.M., by and through his next friend Toinette Ducksworth; R.N., by and through his next friend Gloria Norwood; M.S., by and through his next friend Jolene Waupekanay; A.V., by and through his next friend Veronica Rocha-Montejano; M.R., by and through his next friend Autumn Rodgers; S.K., by and through her next friend, Thomas Korn; and A.P., by and through her next friend, Louise Plaskey, for themselves and all others similarly situated,

Civil Action No. 17-CV-47

Plaintiffs,

v.

Jon E. Litscher, in his official capacity as Secretary of the Wisconsin Department of Corrections; John D. Paquin in his official capacity as Administrator of Division of Juvenile Corrections of the Wisconsin Department of Corrections; Wendy A. Peterson in her official capacity as Superintendent of the Lincoln Hills School for Boys and the Copper Lake School for Girls; Brian Gustke, in his official capacity as Director of Security for the Lincoln Hills School for Boys and the Copper Lake School for Girls,

Defendants.
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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION 1. The State of Wisconsin operates the Lincoln Hills School for Boys and the Copper Lake School for Girls, which incarcerate approximately 150-200 youth who are as young as 14 years old, in remote northern Wisconsin. The State routinely subjects these youth to unlawful solitary confinement, mechanical restraints, pepper spraying, and strip searches. Prior to state and federal raids on the facility at the end of 2015, staff also regularly physically abused youth in the facility. Currently, Wisconsin’s juvenile corrections officials lock up approximately 15 to 20% or more of the facility’s young residents in solitary confinement cells for 22-23 hours per day. Many of these children are placed in handcuffs and chained to a table during the only hour each day that they are allowed out of their cells. Officers also repeatedly and excessively use pepper spray against the youth, causing them excruciating pain and impairing their breathing. Officers frequently strip search children at the facility, forcing them to remove all their clothing, inspecting their naked bodies and making them squat and cough; these strip searches occur when the child arrives at the facility, each time a family member visits, any time a child is sent to solitary confinement and during “shake downs” of living units. All of these practices constitute serious violations of the children’s constitutional rights, including their rights to substantive due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the United States Constitution. Plaintiffs J.J., K.D., C.M., R.N., M.S., A.V., M.R., S.K. and A.P. bring this civil rights class action lawsuit, on their own behalf and on behalf of all other children
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who are or will be incarcerated at Lincoln Hills and Copper Lake, to seek injunctive relief against these inhumane practices.
JURISDICTION AND VENUE 2. This action is brought under 42 U.S.C. § 1983 because Defendants, and each of them, acting under color of state law, have deprived Plaintiffs, and the members of the class of persons they represent, of rights secured under the United States Constitution. 3. This action arises under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Accordingly, this Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 1343 (civil rights jurisdiction). 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the dispute occurred in this district and Defendants reside in this district.
PLAINTIFFS 5. Plaintiff J.J. was recently in custody at the Lincoln Hills School for Boys. Plaintiff J.J. is a minor child, and therefore brings this lawsuit through his next friend and mother, Sakeena Jackson. Ms. Jackson is an adult resident of the State of Wisconsin. Sakeena Jackson brings this action on Plaintiff J.J.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Sakeena Jackson is dedicated to the best interests of Plaintiff J.J. and will advocate for those best interests in this action. 6. Plaintiff K.D. was recently in custody at the Copper Lake School for Girls. Plaintiff K.D. is a minor child and therefore brings this lawsuit through her next friends, her father, John Levy, and her mother, Meranda Davis. Mr. Levy and Ms. Davis are adult residents of the State of Wisconsin. They bring this action on Plaintiff K.D.’s behalf pursuant to Fed R.
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Civ. P. 17(c)(2). They are dedicated to the best interests of Plaintiff K.D. and will advocate for those best interests in this action.
7. Plaintiff C.M. is currently in custody at the Lincoln Hills School for Boys. Plaintiff C.M. is a minor child, and therefore brings this lawsuit through his next friend and mother, Toinette Ducksworth. Ms. Ducksworth is an adult resident of the State of Wisconsin. Toinette Ducksworth brings this action on Plaintiff C.M.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Toinette Ducksworth is dedicated to the best interests of Plaintiff C.M. and will advocate for those best interests in this action.
8. Plaintiff R.N. is currently in custody at the Mendota Juvenile Treatment Center after being transferred there from Lincoln Hills School for Boys. Plaintiff R.N. is a minor child, and therefore brings this lawsuit through his next friend and adoptive mother, Gloria Norwood. Ms. Norwood is an adult resident of the State of Wisconsin. Gloria Norwood brings this action on Plaintiff R.N.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Gloria Norwood is dedicated to the best interests of Plaintiff R.N. and will advocate for those best interests in this action.
9. Plaintiff M.S. is currently in custody at the Lincoln Hills School for Boys. Plaintiff M.S. is a minor child, and therefore brings this lawsuit through his next friend and mother, Jolene Waupekanay. Ms. Waupekanay is an adult resident of the State of Wisconsin. Jolene Waupekanay brings this action on Plaintiff M.S.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Jolene Waupekanay is dedicated to the best interests of Plaintiff M.S. and will advocate for those best interests in this action.
10. Plaintiff A.V. is currently in custody at the Lincoln Hills School for Boys. Plaintiff A.V. is a minor child, and therefore brings this lawsuit through his next friend and mother, Veronica Rocha-Montejano. Ms. Rocha-Montejano is an adult resident of the State of
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Wisconsin. Veronica Rocha-Montejano brings this action on Plaintiff A.V.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Veronica Rocha-Montejano is dedicated to the best interests of Plaintiff A.V. and will advocate for those best interests in this action.
11. Plaintiff M.R. is currently in custody at the Lincoln Hills School for Boys. Plaintiff M.R. is a minor child, and therefore brings this lawsuit through his next friend and mother, Autumn Rodgers. Ms. Rodgers is an adult resident of the State of Wisconsin. Autumn Rodgers brings this action on Plaintiff M.R.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Autumn Rodgers is dedicated to the best interests of Plaintiff M.R. and will advocate for those best interests in this action.
12. Plaintiff S.K. is currently in custody at the Copper Lake School for Girls. Plaintiff S.K. is a minor child, and therefore brings this lawsuit through her next friend and father, Thomas Korn. Mr. Korn is an adult resident of the State of Wisconsin. Thomas Korn brings this action on Plaintiff S.K.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Thomas Korn is dedicated to the best interests of Plaintiff S.K. and will advocate for those best interests in this action.
13. Plaintiff A.P. is currently in custody at the Copper Lake School for Girls. Plaintiff A.P. is a minor child, and therefore brings this lawsuit through her next friend and mother, Louise Plaskey. Ms. Plaskey is an adult resident of the State of Wisconsin. Louise Plaskey brings this action on Plaintiff A.P.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). Louise Plaskey is dedicated to the best interests of Plaintiff A.P. and will advocate for those best interests in this action.
DEFENDANTS 14. Defendant Jon E. Litscher is Secretary of the Wisconsin Department of Corrections (“DOC”), the Wisconsin state agency designated to oversee correctional facilities in
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the State of Wisconsin including Type 1 Juvenile Correctional Facilities. Defendant Litscher is sued in his official capacity. As Secretary of DOC, Defendant Litscher is in charge of the administration and supervision of DOC, and is ultimately responsible for the administration and supervision of the Lincoln Hills School for Boys (“LHS”) and the Copper Lake School for Girls (“CLS”).
15. Defendant John D. Paquin is the Administrator of the Division of Juvenile Corrections of the DOC. Defendant Paquin is sued in his official capacity. As Administrator of the Division of Juvenile Corrections, Defendant Paquin is in charge of the administration and supervision of juvenile corrections within DOC, and is responsible for the administration and supervision of LHS and CLS.
16. Defendant Wendy A. Peterson is the Superintendent of LHS and CLS and is sued in her official capacity. As Superintendent, Defendant Peterson is also responsible for ensuring that all legal responsibilities delegated to LHS and CLS, as set forth in state statutes, state policy, and/or governmental rules and regulations, are appropriately met.
17. Defendant Brian Gustke is the Director of Security at LHS and CLS and is sued in his official capacity. As Director of Security, Defendant Gustke is responsible for the security and discipline of inmates at LHS and CLS.
FACTUAL ALLEGATIONS The Wisconsin Youth Prisons 18. Lincoln Hills School for Boys (LHS) and Copper Lake School for Girls (CLS) are located on a single property in the town of Irma in Lincoln County, Wisconsin. The LHS/CLS facility is a “secured juvenile corrections institution” operated by the Wisconsin DOC and is also referred to as a Type 1 juvenile correctional facility.
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19. A Type 1 juvenile correctional facility uses physical security mechanisms such as fences, barbed wire, and locked doors, in addition to control and surveillance by staff members, to restrict the liberty of youth committed to the facility by the court.
20. The Wisconsin Juvenile Code, Chapter 938, Wis. Stats., provides the legal framework for children charged with a crime under the general rubric of delinquency proceedings. Wisconsin Stat. § 938.34 lists a multitude of different programs, activities, and placements a court might order, and refers to them as “[t]he dispositions under this section.” Section 938.34(4m) permits a juvenile court to order an adjudged delinquent to a “secured correctional facility” under the supervision of the DOC.
21. Pursuant to Wis. Stat. § 938.505(1), the DOC has “the right and duty to protect, train, discipline, treat, and confine the juvenile and to provide food, shelter, legal services, education, and ordinary medical and dental care for the juvenile, subject to the rights, duties, and responsibilities of the guardian of the juvenile….”
22. An adjudication of delinquency is not the same as a criminal conviction. The procedural protections available to juveniles are different from the protections available to adults, and the primary goal of delinquency proceedings is the rehabilitation and treatment of the juvenile. See, e.g., Wis. Stat. § 938.01(2)(f) (juvenile code’s objectives include “respond[ing] to a juvenile offender’s needs for care and treatment, consistent with the prevention of delinquency, each juvenile’s best interest, and protection of the public, by allowing the court to utilize the most effective dispositional option”); Wis. Stat. § 938.01(2)(c) (objectives also include “development of competency in the juvenile offender, so that he or she is more capable of living productively and responsibly in the community”).
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23. Juveniles may receive a correctional placement at LHS/CLS under Wis. Stat. § 938.34(4m), and such placements typically extend for one or two years. Additionally, juveniles who are adjudicated delinquent for certain serious offenses may receive a Serious Juvenile Offender (SJO) disposition order, which includes an initial placement in LHS or CLS. Most SJO orders extend for five years, although the order may extend until the juvenile reaches 25 years of age for the most serious offenses. See Wis. Stat. §§ 938.34(4h) & 938.538.
24. In addition to juveniles who are placed at LHS/CLS pursuant to dispositional orders, boys and girls under the age of 18 who have been waived into adult court and have been convicted of felonies may begin serving some or all of their adult sentences at LHS or CLS.
25. Prior to 2011, DOC operated additional secured juvenile correction institutions. To address the declining juvenile correctional population, the State of Wisconsin consolidated juvenile correctional operations by closing two facilities in southern Wisconsin, Ethan Allen School for Boys and Southern Oaks Girls School. As of June 27, 2011, all youth from these facilities had been transferred to LHS and CLS.
26. On information and belief, approximately 155 boys and 22 girls are currently being held at the LHS/CLS facility.
27. On information and belief, most of the youth held at LHS and CLS are AfricanAmerican.
28. On information and belief, most of the youth held at LHS and CLS come from Milwaukee—215 miles and 3½ hours away.
29. On information and belief, a substantial percentage of the youth held at LHS and CLS have a history of childhood trauma, mental illness, cognitive impairments, or developmental disabilities.
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LHS and CLS Hold 15-20% or More of Incarcerated Youth in Solitary Confinement 30. By policy and practice, Defendants routinely use solitary confinement to
discipline and punish boys and girls at LHS and CLS for violating institutional rules. At any given time, approximately 15 to 20%—or more—of the population of LHS and CLS is held in solitary confinement, and an even larger percentage of the youth have been subjected to solitary confinement at one point or another during their incarceration at LHS and CLS. The DOC uses the terms “restrictive housing,” “close confinement,” “modified confinement,” “administrative confinement,” “segregation” or “security” to refer to its practice of solitary confinement: confining a child alone in a locked cell for 22-23 hours per day for punishment or for discipline or for asserted security reasons.
31. LHS operates two segregation buildings: the “Krueger unit” and the “Roosevelt unit.” Each unit has two wings, and each wing consists of a corridor with approximately 12 solitary confinement cells per wing. Between the wings is a guard station, offices, a small kitchen, and a common area with several metal tables.
32. CLS has a smaller population and does not have a separate segregation building. Instead, one wing of CLS’s “Wells unit” is used for youth held in solitary confinement.
33. According to the most recent data supplied by DOC, on October 25, 2016, there were 167 youth incarcerated at LHS and CLS. Of that number, 28 youth, or nearly 17% of the population, were being held in solitary confinement on that day.
34. DOC data also show that, at any given time, the percentage of the LHS/CLS population being held in solitary confinement is between about 15 and 20%—and sometimes more.
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35. A cell in the segregation units is approximately seven by ten feet. The cell is entered through a large swinging (rather than sliding) metal door. The door has a small glass window a few feet above the floor, and one or two slots through which food trays are passed. Youth extend their forearms through the door slot before and after being placed in the cell so that the guards may lock or unlock the handcuffs they must wear when they are out of their cells. The single window to the outside may be covered with bars.
36. The typical segregation cell is depicted below (not to scale), except that not all cells have a sink/toilet and in some cells the door swings in, not out:
37. The windows in the doors of cells in the Krueger unit have a cover which can be closed. From time to time, guards in Krueger will close those covers so a youth cannot see out of his cell into the corridor.
38. A cell in the LHS segregation units has a mattress on the floor or on a frame approximately three inches above the floor. There is a combination metal sink and toilet in some of the cells, although in some or all of the “low hall” segregation cells there is no sink or toilet. Segregation cells at CLS are similar, but have no sink or toilet in the cell, instead containing only a mattress. The cells have no other furnishings. There is no mirror or anything else on the walls.
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The cells have no desk or chair; youth sit on either the toilet (if there is one) or their mattress for 22 or 23 hours per day. Many of the cells have no call button to request attention from staff, so youth must scream or cover the surveillance cameras in their rooms to get attention.
39. A light in the segregation cell stays lit 24 hours per day. The light is dimmed from approximately 10 p.m. to 6 a.m. but is not turned off.
40. The segregation cells are often dirty and smell like sweat and urine. 41. Defendants often sentence youth to solitary confinement even for infractions that do not pose a serious threat to safety, such as disrespecting staff, refusing to lock into a cell, or running. 42. On information and belief, Defendants often sentence youth to solitary confinement for periods of 30 or 60 days for a variety of offenses—especially when youth have been disciplined previously, or for fighting regardless of whether the altercation was likely to or did result in injury. 43. Even when youth are charged with relatively minor rule infractions, they often spend up to 14 days in segregation while they await the issuance of a conduct report and a hearing, and then frequently get a few additional days from the hearing examiner as punishment. 44. Youth in solitary confinement are permitted almost no belongings. Some may have a book or two which they can choose from a book cart in the segregation unit (except for youth on “book restriction”), a toothbrush (which is usually a sponge on a stick), possibly a cup, and limited bedding and clothing. Upon information and belief, youth in solitary are not allowed to have other personal belongings, educational materials, writing or drawing utensils, computers, games, or toys, and in many cases cannot even have paper in their cells.
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45. Boys who are in solitary cells with toilets receive only a small amount of toilet paper and must request more when they need it. Boys in those cells also may not flush their toilets themselves, but must ask the guards to turn the toilet on to allow them to flush it.
46. Some of the boys are confined in cells with no sinks or toilets; none of the girls’ cells have sinks or toilets. All of these youth must push a call button and ask guards to be escorted to the bathroom. Guards sometimes take a long time to respond to requests to use the bathroom, which has caused some of the youth to have accidents or to have to use items such as a cup instead of a toilet.
47. Defendants also significantly limit the amount of education youth receive in solitary confinement. In the general population, the youth typically receive four to five hours of education Monday-Friday. In solitary confinement, Defendants’ policy and practice is to reduce this educational programming to approximately one hour outside the cell with a teacher who comes to the segregation unit and meets with about three youth at a time. During this time, they may be in restraints and handcuffed to a desk in the classroom. There are also many days when no teacher comes and the youth do not receive any education.
48. In addition, when Defendants put youth into segregation, Defendants revoke access to the very programs which might help to rehabilitate the youth, such as Aggression Replacement Training (ART) and the Juvenile Cognitive Intervention Program (Phases I and II). If a youth misses more than a few sessions of any such program because he or she is in solitary confinement, Defendants require the youth to start the program over from the beginning. Failure to complete these programs also results in additional punitive consequences. Defendants’ Office of Juvenile Offender Review (OJOR) considers failure to complete these programs a justification to deny a transfer out of LHS or CLS to a step-down facility or to deny early release.
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49. Defendants do not permit boys held in solitary confinement to receive phone calls for the first 20 days in security status. After 20 days, a boy can have a short phone call with his family.
50. According to Wisconsin Administrative Code § DOC 373.03(3) (for disciplinary solitary confinement) and § DOC 374.03(4) (for administrative solitary confinement), youth in segregation should have one hour of time out of the cell each day for exercise. However, the staff has a pattern and practice of frequently taking away this “out time” for minor infractions.
51. Even those youth permitted “out time” are frequently kept in mechanical restraints during the limited time they are allowed out of their cells. Known as being “on the belt,” youth are handcuffed to a canvas belt encircling the youth’s waist. These youth are frequently kept “on the belt” even during “exercise” time, although recently Defendants have at times allowed some youth who are otherwise “on the belt” short periods of time “off the belt” to exercise.
52. By policy and practice, LHS keeps most or all new male arrivals at the segregation unit “on the belt” regardless of the reason the youth was sent to segregation. At CLS, some girls in solitary confinement are placed “on the belt” during out of cell time. On information and belief, most youth in segregation are “on the belt” while out of their cells for the duration or a large portion of their time in solitary confinement. On information and belief, most youth in segregation are “on the belt” while out of their cells for the duration or a large portion of their time in solitary confinement.
53. DOC’s regulations expressly permit the use of restraints as a matter of course for juveniles in solitary confinement. Wisconsin Administrative Code § DOC 376.09 governs use of
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mechanical restraints (including “handcuffs with restraining belt or chain”) and authorizes use on “a youth who is in security status while the youth is outside the place of confinement.”
54. If a youth is “on the belt,” the youth spends his or her “out time” chained to a table in the central area of the segregation unit in front of the guard station. Depending on the number of youth currently in the security units, there might be two or three youth chained to tables for the same hour, or the youth may be alone. For the girls at CLS in segregation, if they receive out time, the hour of “out time” includes their shower, a period of time of room cleaning, and a limited amount of exercise before they are locked back in their cells. If a girl has to go to health services or any other visit, that counts against her out time. On information and belief, recently Defendants have occasionally allowed girls in solitary to receive a small amount of additional out time, up to about three hours on those days.
55. Staff in the security units review a youth’s continued status on the belt once a week. If the staff decide that the youth has been on good behavior, the youth may be allowed out of his or her cell without being in restraints.
56. Boys “off the belt,” may go outside during their one hour of “out time.” “Outside” means that the boy is allowed, usually alone, into an outdoor caged area paved with concrete. Girls who are not on the belt usually remain indoors during their out time and may use an exercise machine.
57. Youth who are “on the belt” remain in restraints and chained to a desk or table during their hour of education, and they are not allowed to have writing instruments in their cells.
58. Youth on the belt are also handcuffed to a table or desk during any visits they receive.
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59. On information and belief, youth on the belt are also locked into the shower stall when they are permitted to shower.
Solitary Confinement Causes Serious Damage to Incarcerated Youth 60. Solitary confinement is particularly damaging to youth, who are still developing physically, psychologically, cognitively, and socially. 61. Youth in segregation face a significant risk of serious emotional and psychological harm. Solitary confinement negatively impacts juveniles by perpetuating, worsening, or precipitating mental health concerns, including but not limited to post-traumatic stress disorders, psychosis, anxiety disorders, major depression, hyper-vigilance, agitation, general lack of trust, suicidal ideation, suicidal intent, self-mutilation, and suicidal behavior. 62. These mental health concerns can cause long-term harm. Solitary confinement can lead to chronic conditions like depression which, in teenagers, can manifest as anger and/or as self-harm. In addition, children who experience depression and anxiety in their teenage years are at higher risk of presenting with these diagnoses again. Symptoms associated with depression, such as low self-esteem, insomnia, inattention, low energy, fatigue, weight loss, and feelings of hopelessness can similarly persist into adulthood. There is a 10 to 15% mortality rate associated with depression, and solitary confinement increases the risk of suicide substantially compared to the risk in the general population. 63. Solitary confinement of youth can also lead to long-term erosion of trust with adults, resulting in paranoia, anger, and hatred. Juveniles emerging from solitary have trouble forming the therapeutic relationships necessary to address the mental health concerns resulting from solitary confinement.
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64. The risk of harm from solitary confinement is made worse by the disproportionately high incidence of preexisting trauma and mental health concerns among juveniles in the justice system. Research shows that more than 60% of the youth in correctional settings have an underlying major mental illness. Stress from isolation can compound past trauma and exacerbate mental illnesses and disabilities.
65. For those youth with a history of trauma, mental illnesses, or developmental disabilities, the risk of harm from solitary confinement is especially great. They already have weakened adaptive mechanisms, are at a higher risk for further mental health complications, are more susceptible to significant trauma from social isolation, and are more likely to suffer longlasting consequences from the trauma of isolation than those without mental illnesses or disabilities.
66. Not only is it harmful to deprive a youth of meaningful social interaction or mental stimulation, it also is counterproductive to the goals of ensuring safety, security, and good order. Research shows that segregating youth results in increased agitation and an increased risk of misbehavior. Facilities that have reduced their reliance on disciplinary isolation and instead have adopted more appropriate techniques for managing juveniles have seen reductions in rates of violence and misbehavior. Most of these facilities allow for no more than very short-term separation—measured in hours, not days, weeks, or months (as is the case in LHS/CLS)—and then only as a last resort when other options fail to defuse situations that pose an acute risk of harm to the juvenile or others.
67. In a series of Eighth Amendment cases involving the death penalty and life without parole sentences, the Supreme Court has held that the distinctive developmental
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attributes of adolescence preclude punishing children in the same manner and to the same extent as adults under the Constitution.
68. A number of professional organizations and institutions have echoed the Supreme Court’s principle that children involved in the justice system, and particularly those who are incarcerated, cannot be treated like adults. The National Commission on Correctional Health Care (“NCCHC”), for example, issued a statement establishing that juveniles should not be placed in solitary confinement for any duration; the statement highlighted juveniles’ particular vulnerability to the adverse consequences of isolation. The World Health Organization (“WHO”), the United Nations, and other international bodies have also recognized that solitary confinement is particularly harmful to a child’s psychological well-being and cognitive development. Acknowledging the high risk of mental illness as well as the higher rates of suicide and self-harm for youth in solitary confinement, the United Nation’s (U.N.) Special Rapporteur on Torture, in a 2015 report, condemned solitary confinement of children for any duration, calling it torture.
69. Similarly, in 1999, the Office of Juvenile Justice and Delinquency Prevention of the United States Department of Justice (USDOJ) commissioned “the first comprehensive effort to determine the scope and distribution of suicides by youth in our public and private juvenile facilities throughout the country.” The study found that fifty percent of victims were in isolation at the time of their suicide, and sixty-two percent of victims had a history of isolation, noting “rates of suicidal behavior appeared to be higher for youth who were isolated from their peers or assigned to single room housing.” Lindsey M. Hayes, Nat’l Ctr. on Inst. & Alternatives, Juvenile Suicide in Confinement: A National Survey 42 (2004); see also Steven H. Rosenbaum, Chief, Special Litig. Section, U.S. Dep’t of Justice, Remarks before the Fourteenth Annual
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National Juvenile Corrections and Detention Forum (May 16, 1999) (“The use of extended isolation as a method of behavior control, for example, is an import from the adult system that has proven both harmful and counterproductive when applied to juveniles. It too often leads to increased incidents of depression and self-mutilation among isolated juveniles, while also exacerbating their behavior problems. We know that the use of prolonged isolation leads to increased, not decreased, acting out, particularly among juveniles with mental illness.”)
70. National and international standards governing corrections and juvenile justice uniformly condemn the use of solitary confinement in juvenile facilities and provide that where segregation is necessary in certain acutely dangerous situations, it should be as brief as possible.
71. The USDOJ’s Office of Juvenile Justice and Delinquency Prevention Standards for the Administration of Juvenile Justice (“JJDPA Standards”) provide that no juvenile should be placed in room confinement for more than twenty-four hours. Standards for the Admin. of Juvenile Justice § 4.52 (Nat’l Advisory Committee for Juvenile Justice and Delinquency Prevention 1980).
72. The Juvenile Detention Alternatives Initiative (JDAI), which has developed the most widely recognized set of national best practices on the use of solitary confinement with juvenile populations, provides that solitary confinement can never be used for purposes of punishment or discipline and must be limited to periods of less than four hours.
73. Having recognized in a 2012 report that “[n]owhere is the damaging impact of incarceration on vulnerable children more obvious than when it involves solitary confinement,” the USDOJ subsequently recommended that the use of solitary confinement for juveniles in federal prisons be prohibited, and President Obama adopted that recommendation in January 2016.
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74. The American Medical Association (“AMA”), the American Academy of Child and Adolescent Psychiatry, and the NCCHC all have called on correctional facilities to halt the use of solitary confinement of juveniles for disciplinary purposes.
75. The international community has also condemned the placement of children in solitary confinement. International law prohibits the use of isolation as a disciplinary tool. Specifically, the U.N.’s Rules for the Protection of Juveniles Deprived of their Liberty declare that “all disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.” G.A. Res. 45/113, Annex ¶ 67 (Dec. 14, 1990).
76. Furthermore, long-term solitary confinement can be a form of psychological torture, which international law strictly prohibits. See, e.g., United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (Dec. 10, 1984); see also Atul Gawande, Hellhole, The New Yorker, Mar. 30, 2009.
77. National and state standards and guidelines also recognize that it is essential for youth confined in juvenile justice facilities to have a meaningful opportunity to exercise every day. Standards set by various governmental and non-governmental entities, such as OJJDP, the NCCHC, the American Bar Association and the Council of Juvenile Correctional Administrators (“CJCA”), make it clear that juveniles must have at least one hour per day of actual, strenuous, large-muscle exercise, with many recommending two or more hours per day, for both physical and mental health needs. These standards also make it clear that keeping a child “on the belt” and handcuffed to a table does not constitute “exercise.”
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78. Use of restraints is known to cause both physical and psychological harm. See Johnson, Being Restrained: A study of power and powerlessness¸ 19 ISSUES IN MENTAL HEALTH NURSING 191, 196-203 (1998); Singh, Singh, Davis, Latham & Ayers, Reconsidering the Use of Seclusion and Restraints in Inpatient Child and Adult Psychiatry, 8 J. OF CHILD & FAM. STUD. 243, 244 (1999).
79. The practice of putting youth “on the belt” in restraints for weeks and months at a time violates recognized national and international standards.
80. The Institute of Judicial Administration - ABA Standards for Juvenile Justice, Standards Relating to Corrections Administration, provide:
7.8 Limitations on restraints and weapons. A. Mechanical restraints. Given the small size of programs, it should not be necessary to use mechanical restraints within the facility. The program director may authorize the use of mechanical restraints during transportation only. 81. Article 64 of the U.N. Rules for the Protection of Juveniles Deprived of their Liberty provides: “Instruments of restraint and force can only be used in exceptional cases, where all other control methods have been exhausted and failed. . . . They should not cause humiliation or degradation, and should be used restrictively and only for the shortest possible period of time.” G.A. Res. 45/113, U.N. GAOR, 45th Sess., Supp. No. 49A, art. 64, U.N. Doc. A/45/49 (1990). 82. The U.N. Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977), similarly state: 33. Instruments of restraint, such as handcuffs, chains, irons and straitjackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints.
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Other instruments of restraint shall not be used except in the following circumstances: (a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority; (b) On medical grounds by direction of the medical officer; (c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority. Defendants Are Aware or Should Be Aware of the Risks of Solitary Confinement and
Restraints, But Have Deliberately Chosen to Ignore Those Risks 83. Defendants know or should be aware of the risks of solitary confinement for youth. For example, President Obama’s actions to prohibit solitary confinement of juveniles in federal custody—and the research on which the prohibition was based—were widely reported in the media. 84. DOC officials are familiar with NCCHC policies and statements as a result of their efforts to achieve NCCHC accreditation of their facilities, and so are or should be aware of the NCCHC’s policy position advocating a ban on solitary confinement of juveniles. 85. On or about October 25, 2016, Defendant Litscher received correspondence advising him of the position of the AMA that solitary confinement of juveniles should be banned and of the Obama administration’s prohibition of solitary confinement of federal juvenile prisoners. 86. Defendants nonetheless continue to subject numerous youth at LHS and CLS to extended periods of solitary confinement, with deliberate indifference to the substantial risk of serious harm it creates. 87. Similarly, Defendants are or should be aware of the harm to juveniles caused by the use of restraints, such as being handcuffed to a waist belt and tethered to a table. The
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international law standards have been in place and research on the harm of restraints has been available for decades, and it is obvious that shackling a child to a table for the only time he or she is allowed out of her cell is demeaning, psychologically harmful, and prevents essential large-muscle exercise.
88. Defendants nonetheless continue to routinely restrain youth in solitary confinement by placing them “on the belt” for most or significant portions of their stays in solitary, with deliberate indifference to the substantial risk of harm such restraints create.
The Plaintiffs Have Been Subjected To Excessive and Painful Pepper Spraying 89. In addition to solitary confinement, Defendants have a pattern and practice of routinely using pepper spray to control the behavior of the youth in their custody, both while in the general population and in solitary confinement. 90. Guards at LHS and CLS have a pattern and practice of using pepper spray unnecessarily and unreasonably on youth for non-violent infractions, such as refusing to go into their rooms, refusing to leave their rooms, covering up the cameras in the segregation unit, and failing to follow commands. 91. Defendants’ policy expressly permits use of pepper spray to “enforce a DOC rule, a posted policy or procedure or an order of staff member,” even without any risk of harm to staff or youth or danger to the security of the institution. DOC DJC Policy & Procedure 300.05.05 (928-2016). 92. According to records maintained by the Defendants, guards at LHS and CLS used pepper spray on the youth in their care at least 198 times in the period January through October 2016.
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93. Guards at LHS and CLS use multiple forms of pepper spray on youth in their custody. Some pepper sprays are used to create a cloud which will fill the youth’s cell. Others are sprayed directly at the face or body of a youth.
94. Oleoresin capsicum (“OC”), the active ingredient in pepper spray, causes intense burning, coughing, and temporary blindness.
95. After youth are pepper sprayed, they are routinely locked into a cage in a shower. The effects of the spray are temporarily worsened by exposure to water and spread to sensitive areas such as the groin, causing intense pain. To avoid this acute increase in pain, some youth choose not to turn on the shower, but as a result the spray remains on their skin, prolonging the duration of their pain.
96. After guards use pepper spray on youth in solitary confinement, the guards remove all of the youth’s clothes and provide only a paper or cloth gown.
97. After guards use pepper spray on youth in solitary confinement, the guards remove the regular mattress from the cells, providing only a rubber security mat in its place.
98. Youth at CLS and LHS have described being pepper-sprayed as “feeling like you were hit a hundred times.” The effects of the spray can last for days, and are reactivated by water even days later, such as when the child washes his or her face.
99. The guards often use so much pepper spray that it fills the air and gets under doors and into other cells on the wing, causing other youth pain, coughing, and other symptoms. While the guards at times don protective gear before they pepper spray a youth, they do not provide protective gear for any of the youth, not even for those who are not the target of the pepper spray but are nevertheless exposed to the spray due to their proximity.
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100. The JDAI standards require juvenile justice facilities to strictly prohibit the use of chemical agents. Juvenile Detention Facility Assessment - Standards Instrument (2014 Update) at 104.
101. The Council of Juvenile Correctional Administrators has also declared that pepper spray use is both harmful and counter-productive:
[Pepper spray’s] use has been shunned by juvenile correctional agencies because of the harm it causes to youths and the negative impact on staff-youth relationships, the key to successful juvenile rehabilitative programming. Very few states authorize its use and in the states that allow its use in policy, most prohibit the use except as a last resort and with many conditions and few facilities put it into practice. Pepper Spray in Juvenile Facilities, CJCA, available at http://cjca.net/attachments/article/172/ CJCA.Issue.Brief.OCSpray.pdf. Defendants Are Aware or Should Be Aware of the Risks of Harm Posed by Pepper Spray
and Have Deliberately Chosen to Ignore Those Risks 102. Defendants know or should be aware of the risk of harm to juveniles from using pepper spray and are aware that it is generally not necessary to manage juvenile misbehavior. 103. On information and belief, Defendants are members of the CJCA, see Agency Directory, CJCA, http://cjca.net/index.php/resources/agency-directory (last visited April 12, 2017), an organization that has condemned the use of pepper spray in juvenile correctional facilities. Defendants nonetheless, as a matter of both practice and policy, continue to use pepper spray extensively The Plaintiffs Have Been Subjected To Excessive and Degrading Strip Searches 104. Defendants routinely subject youth at LHS and CLS to strip searches. Upon information and belief, Defendants strip search all youth upon arrival at the facility, even when they are being transported from another secure facility; when Defendants take them to solitary; after family visits; and for other reasons.
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105. Defendants conduct these strip searches even though, upon information and belief, all youth and visitors must pass through a metal detector upon entry into the prison.
106. When Defendants strip search youth, they require youth to take off all their clothes, run their hands through their hair, move their private parts, and squat and cough. At times Defendants have required youth taken to solitary confinement cells to remain squatting naked until Defendants lock the door.
107. Defendants sometimes strip search youth where other persons can see them. In the LHS solitary confinement wings, Defendants have strip searched youth where boys across the hall could see the youth being strip searched. In CLS, Defendants have strip searched youth in a room that has a mirror, so that people outside the room could see the girl being strip searched, and in a room with a camera that records video viewable by guards, including male guards.
108. Strip searches are dehumanizing, humiliating, and harmful for children and adolescents. Teenagers, who are experiencing puberty and tend to be more self-conscious of their bodies than those in other age groups, are particularly vulnerable to the harms of strip searches.
109. Due to adolescents’ heightened concern for privacy, children in this age group may experience a strip search as a form of sexual abuse. The inherent power differential between an adult authority figure and a child makes it more likely that a child will experience a strip search as an aggressive act.
110. Researchers have concluded that strip searches can lead children to experience years of anxiety, depression, loss of concentration, sleep disturbances, difficulty performing in school, phobic reactions, and lasting emotional scars.
111. The risk of lasting harm from strip searches is particularly acute for youth in the juvenile justice system, many of whom arrive burdened with histories of exposure to traumatic
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events, compounding the psychological damage from strip searches and rendering it even more devastating. Conservative estimates suggest that three out of four children in the juvenile justice system have suffered from childhood trauma.
112. The compounding effects of re-traumatization through strip searches can cause lasting harm to children, disrupting critical aspects of brain and personality development and leading to long-term health consequences.
113. The American Academy of Child and Adolescent Psychiatry (AACAP) has condemned strip searches of children, concluding that “[s]trip searches of youths have the potential to cause lasting and severe psychological harm.” Br. of American Academy of Child and Adolescent Psychiatry, J.B. v. Fassnacht, 801 F.3d 336 (3d Cir. 2015) (cert. denied). The Named Plaintiffs Have Repeatedly Been and Are Likely in the Future To Be Subjected
to Solitary Confinement, Mechanical Restraints, Pepper Spray and Strip Searches Plaintiff J.J.
114. Plaintiff J.J. is an African American boy from the City of Milwaukee, Wisconsin. He was first committed to LHS in 2015 at the age of 15. He was initially given a one-year correctional placement, which was extended for an additional year.
115. J.J. spent most of his time at Lincoln Hills in solitary confinement; he has been sent to solitary on approximately ten separate occasions for a variety of reasons. Because of his time in solitary confinement, J.J. has been limited in the amount of schooling he has been able to receive and has not been able to complete programs designed for his rehabilitation.
116. According to J.J., the guards in the segregation units “treat us like dogs, in cages, causing us more trauma.”
117. J.J. believes that the guards intentionally provoke him and trigger him to react. 118. J.J. has been diagnosed with attention deficit hyperactivity disorder (ADHD).
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119. When in solitary confinement, J.J. was “on the belt” for most of the time he was allowed out of his cell. In addition, Defendants have frequently taken away J.J.’s out time.
120. J.J. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. When he was in solitary confinement, he had trouble sleeping, he felt anxious and was easily irritated by minor things, like being ignored, and he was increasingly prone to anger. He had episodes of sadness and restlessness while in solitary.
121. Although J.J. is no longer at LHS, he remains in custody at Milwaukee County Juvenile Detention Facility, has other pending charges, and reasonably fears that he may be returned to LHS. He reasonably fears that he will be returned to solitary confinement again and put on the belt again at LHS, in the absence of injunctive relief.
122. LHS staff also pepper-sprayed J.J. five or six times, including shooting the burning spray directly in his face. For example, on one occasion in 2016, J.J. was peppersprayed as guards were attempting to take him to segregation. After being pepper sprayed, the guards threw him into the prison van, where he was left in a cloud of the spray.
123. In another incident in July 2015, J.J. asked for a supervisor and refused to go back into his cell in segregation until he talked to a supervisor about his shower. Several guards arrived and surrounded him in a circle and told him to get on the ground. He did not. The guards were preparing to pepper spray J.J. when he bolted for his cell. Although there was no threat of injury to anyone, the guards pepper-sprayed J.J. as he ran past and into his cell.
124. Guards at LHS also repeatedly strip searched J.J. after every family visit, each time he was taken to solitary confinement, and when guards did a “shake down” of his housing unit. Guards forced him to remove all of his clothing, inspected behind his ears and his genitals
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and made him squat and cough. Although the strip searches usually occurred out of the sight of other youth, they occasionally happened within sight of other youth.
125. Although J.J. is not currently at LHS, he remains in custody at the Milwaukee County Juvenile Detention Facility and has other pending charges and reasonably fears that he may be returned to LHS. J.J. reasonably fears that he will again be subjected to solitary confinement, strip searches and the use of pepper spray by LHS staff in the absence of injunctive relief.
126. J.J. has exhausted his available administrative remedies. Plaintiff K.D.
127. Plaintiff K.D. is an African American girl from the City of Milwaukee, Wisconsin. She was first committed to CLS in July 2016 at the age of 14.
128. While at CLS, K.D. was placed in solitary confinement on four separate occasions. Her alleged infractions included being loud and being disruptive and allegedly taking a tube of fabric paint from the art room, for which she was sent to solitary confinement for periods ranging from about two to nine days.
129. K.D. has been diagnosed with ADHD. 130. K.D. exhibits symptoms that are consistent with symptoms that are frequently caused by solitary confinement. She experienced anxiety, sadness, hopelessness, restlessness, and finds that solitary confinement makes her increasingly irritated and angry. Her sadness and hopelessness were so profound that she had suicidal thoughts. 131. While Defendants were holding K.D. in solitary confinement, they used so much pepper spray on another girl in solitary confinement that spray filled the corridor. The cloud of pepper spray made K.D., and, on information and belief, other girls in the wing, cough and gag,
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and burned their throats. Although the guards used masks to protect themselves from the impact of the spray, they offered no protection to any of the youth in that wing, including K.D.
132. KD was also repeatedly strip searched, including on one occasion when her unit was searched for contraband and then hours later when she was put into solitary confinement for allegedly taking a tube of fabric paint from the art room.
133. Although K.D. was released from CLS on or about March 15, 2017, she remains under supervision and could be sent back to CLS for violating the terms of her supervision. She reasonably fears that she will again be subject to solitary confinement, pepper spray and strip searches at CLS, if she is not granted injunctive relief.
134. K.D. has exhausted her available administrative remedies. Plaintiff C.M.
135. Plaintiff C.M. is an African American boy from the City of Milwaukee, Wisconsin. He was committed to LHS in November 2016 at the age of 17.
136. In his first six weeks at LHS, C.M. spent close to two weeks in solitary confinement for two separate incidents.
137. Neither incident involved any violence or threat to security. 138. On his first confinement in solitary, C.M. was released after seven days. He never received any written notice of charges against him or any type of due process hearing to justify this punishment. Defendants told him they were releasing him because no disciplinary conduct report had ever been prepared. 139. Although C.M. had not been involved in any violent incident or threat of violence, he was initially placed “on the belt” for multiple days, due to the LHS policy and practice of placing all new arrivals in segregation on the belt.
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140. C.M. was taken to solitary the second time shortly before Christmas, 2016. The staff supervisor told C.M. that this time a conduct report would actually be prepared. He was released on or about December 29, 2016, without having received written notice of the charges against him or a due process hearing, although he was told orally he was found guilty of the misconduct.
141. C.M. exhibits symptoms that are consistent with those frequently caused by solitary confinement. He was sad because he could not speak with his mother. He felt anxious and was unable to sleep. He was irritable and annoyed by the noise in the unit. He felt treated like an animal: cuffed to come out of the cell, cuffed to shower, cuffed everywhere he went. His hair started falling out.
142. C.M. has been in solitary confinement and reasonably fears that he will be kept in solitary confinement or returned to solitary confinement again at LHS if he is not granted injunctive relief.
143. C.M. has exhausted his available administrative remedies. Plaintiff R.N.
144. Plaintiff R.N. is an African American boy from the City of Milwaukee, Wisconsin. He arrived at LHS in April, 2016, just two months after his 14th birthday.
145. Between April 2016 and December 2016, or a period of approximately eight months, R.N. estimates that he spent only two weeks out of solitary confinement. As a result, he received extremely limited educational programming and virtually no rehabilitative programming during his time at LHS.
146. R.N. was pepper-sprayed many times by staff at LHS. Each time he has suffered an intense burning sensation over all the affected areas of his body.
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147. After pepper-spraying R.N. in the solitary confinement unit, the staff would remove R.N.’s mattress from his cell and replace it with only a hard rubber security mat. On one occasion, he was forced to sleep four consecutive nights on just the security mat. On another occasion, the staff did not even provide a security mat, but forced R.N. to try to sleep on the cold bed frame.
148. R.N. has been diagnosed with ADHD. 149. R.N. exhibits symptoms that are consistent with those frequently caused by solitary confinement. At LHS, R.N. has been on suicide watch. In one incident at LHS, he reached an electrical cord attached to a fan near his door, pulled it through the food tray slot, and wrapped it around his neck. Upon realizing what R.N. had done, the guards responding to his behavior initially pulled on the cord, leaving marks on R.N.’s neck, and then fogged his room with pepper spray. 150. On December 7, 2016, Defendants transferred R.N. to MJTC for diagnosis and treatment of mental health concerns. 151. R.N. reasonably fears that he may be returned to LHS and that he will be returned to solitary confinement again at LHS in the absence of injunctive relief. 152. R.N. reasonably fears that he may be returned to LHS and that he will again be subjected to the use of strip searches, physical restraints and pepper spray by LHS staff in the absence of injunctive relief. 153. R.N. has exhausted his available administrative remedies.
Plaintiff M.S. 154. Plaintiff M.S. is a Native American boy from Marathon County, Wisconsin. He arrived at LHS in August 2016 at about the time he turned 16.
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155. During his time at LHS, M.S. spent about a month in solitary confinement for violating LHS rules. He did not get a conduct report until about a week after he was sent to solitary. A few days later he had a hearing and was sentenced to 20 more days in solitary.
156. Although M.S. was placed in “low hall,” a security unit for youth who are doing well, on some days Defendants put him “on the belt.”
157. Being in solitary made M.S. feel anxious, depressed, and degraded. 158. M.S. has also been exposed to pepper spray. When he first went into solitary, the guards gave him a blanket that must have still had pepper spray on it, because his faced burned when it rubbed the blanket. On another occasion the guards used so much pepper spray on someone in the hallway that the spray came into his cell and took hours to clear away, making him cough and making his eyes water and his nose run. 159. M.S. has also been repeatedly strip searched at LHS. Among other incidents, when the guards took him to solitary they went into the cell with him, strip searched him, and made him remain squatting naked until they left the cell and closed the door. Another time, when doing a “shake down” of his general population housing unit looking for contraband, the guards took the youth living on the unit into the bathroom and strip searched them two at a time. 160. M.S. reasonably fears that he will be returned to solitary confinement again at LHS in the absence of injunctive relief. 161. M.S. reasonably fears that he will be again be put “on the belt” in the absence of injunctive relief. 162. M.S. reasonably fears that he will again be subjected or exposed to pepper spray by LHS staff in the absence of injunctive relief.
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163. M.S. reasonably fears that he will again be strip searched in the absence of injunctive relief.
164. M.S. has exhausted his available administrative remedies. Plaintiff A.V.
165. Plaintiff A.V. is a Latino boy from the City of Milwaukee, Wisconsin. He arrived at LHS in May 2016 at the age of 16.
166. During his time at LHS, A.V. has been sent to solitary confinement about four or five times—once because he was accused of stealing a muffin—and has spent more than a month in solitary confinement. On several of these occasions he did not get a conduct report for close to a week after the guards put him in solitary, and he did not get a hearing for several days after that.
167. A.V. was “on the belt” during most of his time in solitary confinement. He was kept on the belt whenever he left his cell for “out time,” for school, and for medical appointments.
168. Being in solitary made A.V. feel depressed and sleepless, and he got emotional from being there.
169. A.V. has also been exposed to pepper spray about four times, when the guards were spraying other youth. The spray made him feel like his body and eyes were burning, and made him nauseated, light-headed, and short of breath. The solitary cells also had pepper spray residue in them that burned his skin.
170. A.V. has also been repeatedly strip searched at LHS. He has been strip searched when the guards took him to solitary, after family visits, and during “shake downs” looking for contraband in the general population unit.
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171. A.V. reasonably fears that he will be returned to solitary confinement again at LHS in the absence of injunctive relief.
172. A.V. reasonably fears that he will be again be put “on the belt” in the absence of injunctive relief.
173. A.V. reasonably fears that he will again be subjected or exposed to pepper spray by LHS staff in the absence of injunctive relief.
174. A.V. reasonably fears that he will again be strip searched in the absence of injunctive relief.
175. A.V. has exhausted his available administrative remedies. Plaintiff M.R.
176. Plaintiff M.R. is an African American boy from the City of Kenosha, Wisconsin. He has been in LHS several times beginning in 2014 when he was 14 or 15, and has been continuously in LHS since 2016.
177. M.R. has been in solitary confinement continuously, or almost continuously, since late October 2016. He is repeatedly given new charges, so his sentence to solitary is repeatedly extended. He has been in solitary confinement for so long that he is starting to feel that it is normal to live that way, with 22 or 23 hours a day in a cell that has almost nothing more than a mattress in it.
178. M.R. also has been “on the belt” during most of his time in solitary confinement. He is kept “on the belt” whenever he leaves his cell for “out time,” for time with a teacher, and for any visits, including legal visits. Recently the guards have started making the handcuffs of the belt tighter around his wrists, and using a shorter “leash” to attach the cuffs to the belt around his waist.
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179. M.R. has been pepper sprayed so many times he can’t count them. He has been pepper sprayed for many reasons, even at times for not going into his cell, for covering up the camera, to make him get into the shower, or because staff said M.R. was going to harm himself.
180. On information and belief, M.R. has been diagnosed with depression and mood swings. Being in solitary at times makes M.R. feel depressed and like he wants to go to the Mendota Juvenile Treatment Center. Other times solitary makes him feel angry. Still other times he is so bored that even being pepper sprayed feels like something to fill part of his day.
181. After he is pepper sprayed, the guards have put M.R. into a shower cage, given him a paper or cloth gown instead of his clothing, and replaced the mattress in his cell with a hard rubber mat.
182. M.R. has also been repeatedly strip searched at LHS. For example, he was strip searched when he arrived at LHS, when the guards took him to solitary and after he was pepper sprayed. He has been strip searched where other youth in the wing could see him.
183. M.R. reasonably fears that he will remain in or be returned to solitary confinement again at LHS in the absence of injunctive relief.
184. M.R. reasonably fears that he will remain on or again be put “on the belt” in the absence of injunctive relief.
185. M.R. reasonably fears that he will again be subjected or exposed to pepper spray by LHS staff in the absence of injunctive relief.
186. M.R. reasonably fears that he will again be strip searched in the absence of injunctive relief.
187. M.R. has exhausted his available administrative remedies.
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Plaintiff S.K. 188. Plaintiff S.K. is a biracial girl from Winnebago County, Wisconsin. She has been in CLS several times since 2015, when she was about 15. Most recently she has been in CLS since about July 2016. 189. Plaintiff S.K. has been in solitary several times at CLS, including about 34 days in and around May 2016, and a total of about two weeks since she returned to CLS in July 2016. She has been put in solitary for such reasons as passing notes in the general population unit and for being accused of having stolen gummy worms in her cell, among other reasons. 190. When she was in solitary confinement, S.K. seldom had any educational programming. 191. Being in solitary made S.K. feel depressed. 192. S.K. has also been exposed to pepper spray, when the guards sprayed another girl in the unit with so much pepper spray that it got into S.K.’s cell and made her cough. 193. S.K. has also been repeatedly strip searched at CLS. At times she has been strip searched in a room with a mirror that meant someone walking outside the room could see her, and in a room with a camera that guards—including male guards—could use to view her. On one occasion a guard had a body camera activated during the strip search. 194. S.K. reasonably fears that she will be returned to solitary confinement again at CLS in the absence of injunctive relief. 195. S.K. reasonably fears that she will again be subjected or exposed to pepper spray by CLS staff in the absence of injunctive relief. 196. S.K. reasonably fears that she will again be strip searched in the absence of injunctive relief.
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197. S.K. has exhausted her available administrative remedies. Plaintiff A.P.
198. Plaintiff A.P. is a 15 year old Caucasian girl from Washington County, Wisconsin. She has been at CLS since about July 2016.
199. Plaintiff A.P. has often been in solitary confinement at CLS, for a total of many weeks of isolation. She has been put in solitary confinement, or her time in solitary has been extended, for reasons including cursing at staff or putting a sandwich on someone’s window. At other times she was put in solitary for observation (“OBS”).
200. When she was in solitary confinement, A.P. often was denied “out time” and spent many days without any educational programming. On most days she was in her solitary confinement cell for 22 or 23 hours a day; occasionally she was allowed out for up to three hours.
201. A.P. was “on the belt” in solitary, once for about five days and once for a week. During the time she was on the belt she did not have school, and she was chained to a table the whole time she was out of her cell. During that time, when she showered the shower was padlocked.
202. Being in solitary made A.P. feel angry and negative, and sometimes it made her want to hurt herself. She could also hear other girls banging their heads in their cells for long periods of time.
203. A.P. has also been threatened with and exposed to pepper spray. In general population, the guards threatened to pepper spray her when she did not want to go to her room, but instead took her to solitary confinement and put her “on the belt.” Another time, the guards
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pepper sprayed a girl in A.P.’s wing in solitary with so much spray it got under A.P.’s door and made her cough up blood; the guards would not let her have her inhaler.
204. A.P. has also been repeatedly strip searched at CLS, including when she was taken to solitary, after family visits, and if someone reported something missing. Having the guards stare at her naked body makes her feel dirty.
205. A.P. reasonably fears that she will be returned to solitary confinement again at CLS in the absence of injunctive relief.
206. A.P. reasonably fears that she will be put “on the belt” again at CLS in the absence of injunctive relief.
207. A.P. reasonably fears that she will again be subjected or exposed to pepper spray by CLS staff in the absence of injunctive relief.
208. A.P. reasonably fears that she will again be strip searched in the absence of injunctive relief.
209. A.P. has exhausted her available administrative remedies. CLASS ACTION ALLEGATIONS
210. Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of themselves and all members of the class of persons who are now, or will be in the future, incarcerated at LHS or CLS (the “Class”).
211. Plaintiffs seek class-wide declaratory and injunctive relief pursuant to Rule 23(b)(2).
212. The Class consists of all youth currently incarcerated at LHS and CLS and any youth who are incarcerated there in the future. The exact number of inmates currently in the Class is not known to Plaintiffs with certainty, particularly because the number of Class
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members fluctuates. On information and belief, the number of current Class members is approximately 165 (145 boys at LHS and 20 girls at CLS). In addition to Class members currently held at LHS and CLS, the Class consists of an unknown number of youth who will be incarcerated in those facilities in the future and, absent injunctive relief, subjected to the same treatment as youth currently incarcerated.
213. The individual Plaintiffs’ claims are typical of the claims of all members of the Class, because they have all been subjected to solitary confinement, restraints, the excessive use of pepper spray, strip searches, and/or to the threat of being subjected to solitary confinement, restraints, pepper spray, or strip searches in the future. Plaintiffs and all members of the Class have similarly suffered harm, or will suffer harm in the future, arising from Defendants’ actions and inaction.
214. Common questions of law and fact exist as to all members of the Class. These common legal and factual questions include:
a. Whether Defendants’ policy and practice of placing youth in solitary confinement for punitive or disciplinary purposes and for a period any longer than a few hours violates the Eighth and/or Fourteenth Amendments to the United States Constitution.
b. Whether Defendants’ policies and practices of using mechanical restraints violates the Eighth and/or Fourteenth Amendments to the United States Constitution.
c. Whether Defendants’ policies and practices of using pepper spray violate the Eighth and/or Fourteenth Amendments to the United States Constitution.
d. Whether Defendants’ policies and practices of strip searching violate the Fourth and/or Fourteenth Amendments to the United States Constitution.
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e. Whether Plaintiffs and other Class Members are entitled to the declaratory and injunctive relief they seek.
215. By confining substantial numbers of youth in solitary confinement for relatively minor infractions and for other disciplinary or punitive purposes, by routinely using restraints on youth to control behavior, by using pepper spray on youth to control behavior, and by strip searching youth, Defendants have acted or refused to act on grounds generally applicable to the entire Class.
216. The claims asserted herein are capable of repetition while evading review. There is a continuing and substantial public interest in these matters, justifying declaratory and injunctive relief in favor of the Plaintiffs and the Class.
217. This suit may be maintained as a class action pursuant to Rules 23(a) and (b)(2), Federal Rules of Civil Procedure, because Plaintiffs and other members of the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, commonality, typicality, and adequacy are present.
218. A class action is the best available method for adjudication of these legal issues because individual litigation of these claims would be impracticable, and individual litigation would be unduly burdensome to the courts.
219. The named Plaintiffs, their representatives, and Class counsel will fairly and adequately represent the interests of the Class. The named Plaintiffs and their representatives have no interests in this matter that are antagonistic to other Class Members. Class counsel have many years of experience in civil rights and class action litigation.
CLAIMS FOR RELIEF Count I: Defendants’ Use of Solitary Confinement Violates the Fourteenth Amendment Right to Rehabilitation
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220. The allegations of paragraphs 1 to 220 above are incorporated herein. 221. The Fourteenth Amendment to the United States Constitution protects the substantive due process rights of the Plaintiffs, juvenile prisoners at Lincoln Hills and Copper Lake, including a right to a rehabilitative environment and rehabilitative treatment. 222. Defendants have a policy, pattern or practice of using solitary confinement, described above, which interferes with Plaintiffs’ rehabilitation and harms Plaintiffs emotionally, psychologically, physically and educationally. 223. This use of solitary confinement deprives Plaintiffs of their substantive due process right to rehabilitative treatment and a rehabilitative environment, in violation of the Fourteenth Amendment. 224. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 225. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to harm Plaintiffs and other class members by depriving them of rehabilitation, in violation of their substantive due process rights under the Fourteenth Amendment.
Count II: Defendants’ Use of Restraints Violates the Fourteenth Amendment Right to Rehabilitation 226. The allegations of paragraphs 1 to 225 above are incorporated herein. 227. The Fourteenth Amendment to the United States Constitution protects the substantive due process rights of the Plaintiffs, juvenile prisoners at Lincoln Hills and Copper Lake, including a right to a rehabilitative environment and rehabilitative treatment.
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228. Defendants have a policy, pattern or practice of use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement, as described above, which interferes with their rehabilitation and harms Plaintiffs emotionally, psychologically, physically and educationally.
229. This use of restraints deprives Plaintiffs of their substantive due process right to rehabilitative treatment and a rehabilitative environment, in violation of the Fourteenth Amendment.
230. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
231. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to harm Plaintiffs and other class members by depriving them of rehabilitation, in violation of their substantive due process rights under the Fourteenth Amendment.
Count III: Defendants’ Use of Restraints Constitutes Excessive Use of Force in Violation of the Fourteenth Amendment
232. The allegations of paragraphs 1 to 231 above are incorporated herein. 233. The Fourteenth Amendment’s substantive due process guarantee prohibits juvenile prison officials from using objectively unreasonable force against the juvenile prisoners in their custody. 234. As described above, Defendants have a policy, pattern or practice of excessive use of mechanical restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement.
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235. Defendants’ use of restraints is intentional and objectively unreasonable, and thus deprives Plaintiffs of their substantive due process rights, in violation of the Fourteenth Amendment. This excessive use of restraints is not necessary to achieve any legitimate purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs.
236. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
237. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject Plaintiffs and other class members to objectively unreasonable force, in violation of their Fourteenth Amendment rights.
Count IV: Defendants’ Use of Pepper Spray Constitutes Excessive Use of Force in Violation of the Fourteenth Amendment
238. The allegations of paragraphs 1 to 237 above are incorporated herein. 239. The Fourteenth Amendment’s substantive due process guarantee prohibits juvenile prison officials from using objectively unreasonable force against the juvenile prisoners in their custody. 240. As described above, Defendants have a policy, pattern or practice of excessive use of pepper spray. 241. Defendants’ use of pepper spray is intentional and objectively unreasonable, and thus deprives Plaintiffs of their substantive due process rights, in violation of the Fourteenth Amendment. This use of pepper spray is not necessary to achieve any legitimate purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs. 242. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
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243. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject Plaintiffs and other class members to objectively unreasonable force, in violation of their Fourteenth Amendment rights.
Count V: Defendants’ Failure to Protect Juveniles from Pepper Spray and Restraints Violates the Fourteenth Amendment
244. The allegations of paragraphs 1 to 243 above are incorporated herein. 245. The substantive component of the Due Process Clause of the Fourteenth Amendment requires juvenile prison officials to take reasonable measures to prevent the excessive use of force against juvenile prisoners in the officials’ care. 246. Defendants know that security staff at Lincoln Hills and Copper Lake have a policy, pattern or practice of use of pepper spray and use of restraints and that such use creates a substantial risk that juvenile prisoners will be seriously harmed. 247. Defendants have failed to take reasonable measures to prevent the excessive use of pepper spray and restraints by security staff at Lincoln Hills and Copper Lake. 248. By failing to protect Plaintiffs, Defendants have deprived them of their substantive due process rights under the Fourteenth Amendment. 249. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 250. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to fail to protect the Plaintiffs and other class members from excessive force, in violation of their Fourteenth Amendment rights.
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Count VI: Defendants’ Use of Solitary Confinement Violates the Eighth Amendment 251. The allegations of paragraphs 1 to 250 above are incorporated herein. 252. The Eighth Amendment to the United States Constitution forbids state actors to
impose cruel and unusual punishment on convicted prisoners, including acting (or failing to act) with deliberate indifference to a substantial risk of serious harm to prisoners’ health or safety.
253. Defendants have a policy, pattern or practice of routinely using solitary confinement for juvenile prisoners at Lincoln Hills and Copper Lake. As described above, Defendants’ practice of solitary confinement subjects Plaintiffs to, among other harmful conditions: 22-23 hours per day in a single, small and bare cell—for days, weeks or months at a time—locked behind a solid metal door, with no furniture other than a low bed and a combination toilet/sink, with constant illumination, even at night, and with extremely limited access to personal property; shackling the hands of juveniles in solitary confinement to a waist belt during the limited times they are out of their cells for days and sometimes weeks at a time; lack of access to educational and rehabilitative programming while in solitary confinement; and lack of access to meaningful exercise and social interaction. This solitary confinement creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs.
254. Defendants use solitary confinement against juvenile prisoners with deliberate indifference, in that they are or should be aware of the substantial risk of serious harm to the Plaintiffs caused by use of solitary confinement for disciplinary or punitive purposes, but continue to subject Plaintiffs to such confinement and have failed to take reasonable steps to prevent the harm.
255. By imposing solitary confinement, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eighth Amendment.
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256. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
257. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to a substantial risk of serious harm, in violation of their Eighth Amendment rights.
Count VII: Defendants’ Use of Restraints Violates the Eighth Amendment 258. The allegations of paragraphs 1 to 257 above are incorporated herein. 259. The Eighth Amendment to the United States Constitution forbids state actors to impose cruel and unusual punishment on convicted prisoners, including acting (or failing to act) with deliberate indifference to a substantial risk of serious harm to prisoners’ health or safety. 260. Defendants have a policy, pattern or practice of routine and excessive use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement. This excessive use of restraints creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs. 261. Defendants use mechanical restraints against juvenile prisoners with deliberate indifference, in that they are or should be aware of the substantial risk of serious harm to the Plaintiffs caused by excessive use of restraints but continue to subject Plaintiffs to it and have failed to take reasonable steps to prevent the harm. 262. By routinely and excessively using mechanical restraints, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eight Amendment. 263. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
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264. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to a substantial risk of serious harm, in violation of their Eighth Amendment rights.
Count VIII: Defendants’ Use of Restraints Constitutes Excessive Force in Violation of the Eighth Amendment
265. The allegations of paragraphs 1 to 264 above are incorporated herein. 266. The Eighth Amendment prohibition on cruel and unusual punishment forbids state actors to use excessive force against convicted prisoners. 267. Defendants have a policy, pattern or practice of excessive and unnecessary use of restraints, including placing juveniles “on the belt” and tethering them to tables and desks whenever they are out of their cells in solitary confinement. This excessive use of restraints is not necessary to achieve any legitimate penological purpose and creates a substantial risk of serious emotional, psychological and physical harm to Plaintiffs. 268. Defendants’ use of restraints is intentional, and Defendants know or should know that such restraints are unnecessary to and ineffective in maintaining or restoring security or discipline, and thus has the purpose and effect of harming Plaintiffs without a legitimate penological purpose. 269. By the routine and excessive use of restraints, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eighth Amendment. 270. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 271. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless
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enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to excessive force, in violation of their Eighth Amendment rights.
Count IX: Defendants’ Use of Pepper Spray Constitutes Excessive Force in Violation of the Eighth Amendment
272. The allegations of paragraphs 1 to 271 above are incorporated herein. 273. The Eighth Amendment prohibition on cruel and unusual punishment forbids state actors to use excessive force against convicted prisoners. 274. Defendants have a policy, pattern or practice of use of pepper spray to punish or control the behavior of juvenile prisoners at Lincoln Hills and Copper Lake. 275. Defendants’ use of pepper spray is intentional, and Defendants know or should know that such use of pepper spray is unnecessary to and ineffective in maintaining or restoring security or discipline, and thus has the purpose and effect of harming Plaintiffs without a legitimate penological purpose. 276. By the use of pepper spray, Defendants have subjected Plaintiffs to cruel and unusual punishment, in violation of the Eighth Amendment. 277. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law. 278. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to excessive force, in violation of their Eighth Amendment rights. Count X: Defendants’ Failure to Protect Juveniles from Restraints and Pepper Spray
Violates the Eighth Amendment 279. The allegations of paragraphs 1 to 278 above are incorporated herein.
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280. The Eighth Amendment prohibition on cruel and unusual punishment requires prison officials to take reasonable measures to prevent the excessive use of force against prisoners in the officials’ care.
281. Defendants know that security staff at Lincoln Hills and Copper Lake have a policy, pattern or practice of excessive use of restraints and use of pepper spray, and that such use creates a substantial risk that Plaintiffs will be seriously harmed.
282. Defendants have failed to take reasonable measures to prevent the excessive use of restraints and the use of pepper spray by security staff at Lincoln Hills and Copper Lake.
283. By failing to protect Plaintiffs, Defendants have subjected to cruel and unusual punishment, in violation of the Eighth Amendment.
284. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
285. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to fail to protect the Plaintiffs and other Class members from excessive force, in violation of their Eighth Amendment rights.
Count XI: Defendants’ Use of Strip Searches Violates the Fourth and Fourteenth Amendments 286. The allegations of paragraphs 1 to 285 above are incorporated herein. 287. Defendants have a policy, pattern or practice of routinely strip searching youth, often under particularly humiliating and degrading circumstances. 288. Defendants’ use of strip searches is intentional, and Defendants know or should know that subjecting youth to strip searches is humiliating, degrading, and harmful to youth.
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289. Through their use of strip searches, Defendants have subjected Plaintiffs to unreasonable searches or seizures, in violation of the Fourth Amendment.
290. By exposing youth to humiliating, degrading, and harmful strip searches, Defendants have violated Plaintiffs’ rights under the Fourteenth Amendment.
291. Defendants, all state employees, have acted or failed to act and are continuing to act or fail to act under color of state law.
292. Plaintiffs have no adequate remedy at law to address the harms described herein. The relief sought by Plaintiffs is necessary to prevent continued and further injury. Unless enjoined by the Court, Defendants will continue to subject the Plaintiffs and other Class members to excessive force and humiliating, degrading and harmful treatment, in violation of their Fourth and Fourteenth Amendment rights.
WHEREFORE, Plaintiffs request that this Court: A. Issue an order certifying this action to proceed as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure and appointing the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure; B. Declare that Defendants’ policies and practices of: confining youth in solitary confinement for disciplinary or punitive purposes or in any case other than a rare and temporary response to avoid imminent serious physical harm to persons; routinely using mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering them to a table during their only time out of their cells; using pepper spray to punish youth and control behavior; and subjecting youth to strip searches violate, on their face and as applied, the named Plaintiffs’ and class members’ rights under the Fourth, Eighth and/or Fourteenth Amendment to the United States Constitution;
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C. Grant facial and as applied preliminary and permanent injunctive relief eliminating the use of solitary confinement for disciplinary or punitive purposes, and limiting any other use of solitary confinement to rare and temporary responses to prevent imminent and serious physical harm to persons; eliminating the routine use of mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering youth to a table during their only time out of their cells, and limiting all mechanical restraints within the institution to rare and temporary responses necessary to prevent imminent and serious physical harm to person or during transportation outside the facility; eliminating the use of pepper spray for punishment and behavior control, and limit any use of such chemical agents to rare and temporary responses necessary to prevent imminent and serious physical harm to persons; and enjoining Defendants’ policies and practices of strip searching youth.
D. Issue such further injunctive relief as necessary to rectify the unconstitutional use of solitary confinement, mechanical restraints, pepper spray, and strip searches, including appointing a monitor and requiring Defendants to report all uses of solitary confinement, restraints, pepper spray, and strip searches at LHS and CLS to the monitor and to class counsel on a weekly basis;
E. Award reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and F. Grant such other relief as the Court may deem just and proper.
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Dated this 17th day of April, 2017.

ACLU OF WISCONSIN FOUNDATION Laurence J. Dupuis, SBN 1029261 Karyn L. Rotker, SBN 1007719 R. Timothy Muth, SBN 1010710 207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202 Telephone: (414) 272-4032 Facsimile: (414) 272-0182 ldupuis@aclu-wi.org krotker@aclu-wi.org tmuth@aclu-wi.org
JUVENILE LAW CENTER Jessica Feierman Karen Lindell Marsha Levick The Philadelphia Building 1315 Walnut Street, 4th Floor Philadelphia, PA 19107 Telephone: (215) 625-0551 jfeierman@jlc.org klindell@jlc.org mlevick@jlc.org
QUARLES & BRADY LLP
s/ Zachary T Eastburn
Matthew J. Splitek, SBN 1045592 Rachel A. Graham, SBN 1069214 33 East Main Street, Suite 900 Madison, WI 53703 Telephone: (608) 251-5000 matthew.splitek@quarles.com rachel.graham@quarles.com
Emily L. Stedman, SBN 1095313 Zachary T Eastburn, SBN 1094676 411 East Wisconsin Avenue, Suite 2350 Milwaukee, WI 53202-4426 Telephone: (414) 277-5000 emily.stedman@quarles.com zachary.eastburn@quarles.com
Attorneys for Plaintiffs
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 Case: 3:17-cv-00047-jdp Document #: 71 Filed: 07/10/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend Sakeena Jackson; K.D., by and through her next friends John Levy and Meranda Davis; C.M., by and through his next friend Toinette Ducksworth; R.N., by and through his next friend Gloria Norwood; M.S., by and through his next friend Jolene Waupekanay; A.V., by and through his next friend Veronica Rocha-Montejano; M.R., by and through his next friend Autumn Rodgers; S.K., by and through her next friend Thomas Korn; and A.P., by and through her next friend Louise Plaskey,
Plaintiffs, v.

PRELIMINARY INJUNCTION 17-cv-47-jdp

JON E. LITSCHER, JOHN D. PAQUIN, WENDY A. PETERSON, and BRIAN GUSTKE,

Defendants.

Pursuant to Fed. R. Civ. P. 65(a), and for the reasons set forth in the court’s June 23, 2017 oral ruling and order, Dkt. 65:
1. The prospective relief granted by this preliminary injunction is narrowly drawn and extends no further than necessary to correct the harm to plaintiffs warranting preliminary relief.
2. The prospective relief granted by this preliminary injunction is the least intrusive means of correcting the ongoing harm to plaintiffs.
3. The court makes these findings having given substantial weight to and consideration of any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
4. The prospective relief granted by this preliminary injunction complies with the requirements of 18 U.S.C. § 3626(a)(2).

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IT IS ORDERED that: Defendants Jon E. Litscher, John D. Paquin, Wendy A. Peterson, and Brian Gustke, in their official capacities, and their officers, agents, servants, employees, and attorneys, and all those acting in concert with them, are preliminarily enjoined as follows, pending a final judgment in this matter: A. Disciplinary and punitive restrictive housing Defendants are enjoined from using disciplinary or punitive restrictive housing or any other form of disciplinary or punitive solitary confinement in any manner inconsistent with the following: 1. Defendants shall not place youth in the restrictive housing units at Lincoln Hills
School and Copper Lake School (LHS/CLS) for disciplinary or punitive purposes for minor infractions and non-violent offenses. A violent offense is an action causing or attempting to cause physical harm to another person. This provision shall go into effect as of August 14, 2017. 2. Defendants may place youth with mental health diagnoses (a mental health code designation of MH-1, MH-2a, MH-2b, or ID) in restrictive housing, but such placements will be reviewed by a PSU staff member to determine whether that placement is a contra indication to the youth’s mental health or if other options will adequately protect the youth or staff. If such a youth remains in pre-hearing security after the initial review process (described in I.3. below), and if he or she has a designated mental health code, a review as noted in this section will occur immediately by a PSU staff member. This review will be conducted in person
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unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing. 3. Effective July 21, 2017, defendants shall not confine youth in pre-hearing security (PHS) unless the youth presents an immediate and substantial risk of great bodily harm to self or others. Should defendants determine that such risk exists and that such placement is necessary, defendants shall, within four hours of such placement, conduct an initial review of each youth brought to RHU for PHS to determine whether such placement is necessary and whether release of the youth back to general population will jeopardize the safety of the youth, staff, or facility. If the decision is made to retain the youth in RHU, a second review will occur within four hours of the initial review, and release/retention will be judged by the actions and behavior of the youth since the initial review. A determination that a youth should continue in PHS for more than four hours must be approved by the superintendent or designee. 4. Effective July 21, 2017, defendants shall limit the maximum length of a disposition that includes any placement in RHU for punitive purposes to seven days. 5. Defendants shall immediately begin and, no later than July 21, 2017, shall complete a review of the placements of all youth currently held in RHU. Any youth held in such housing for reasons that violate the terms of this injunction shall be released as soon as practicable and without delay. The placements of the named plaintiffs currently held in RHU shall be the first to be reviewed.
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6. All uses of disciplinary RHU, both pre-hearing and post-hearing, shall be justified in writing and authorized by a shift supervisor, with notice to the superintendent or designee. Written notification of a youth’s placement in RHU shall be promptly provided to the youth and shall include a description of reasons for confinement and the less restrictive disciplinary measures attempted.
7. Regardless of the length of any sentence involving placement in restrictive housing for punitive purposes, there shall be a daily review of youth in RHU to determine whether that youth can be released early for positive behavior. Criteria for early release will be explained to each youth.
8. Within three months, defendants will provide to the court and counsel for the plaintiffs their Facility Improvement Plan targeting reductions in the use of restrictive housing established under the Council of Juvenile Correctional Administrators’ Performance-Based Standards.
B. Conditions of restrictive housing Defendants are ordered to ensure that the conditions of restrictive housing or any
other form of solitary confinement meet the following minimum standards: 1. Any youth placed in restrictive housing for whom there is not already a mental health evaluation on file must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in RHU. If a youth is identified with a mental health need (a mental health code designation of MH-1, MH-2a, MH-2b, or ID), placements in RHU will be reviewed by a PSU staff member to determine whether that placement is a contra indication to the best
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interests of the youth’s mental health or if other options will adequately protect the youth or staff. 2. Any youth placed in RHU for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing. This provision shall go into effect on August 31, 2017, for business days and on September 30, 2017, for holidays and weekends. 3. No later than July 21, 2017, defendants shall modify property policies to allow youth in RHU to have property items similar to or the same as those items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any property restrictions on a daily basis and document the review. 4. Youth in restrictive housing shall receive:
a. All regularly scheduled social worker visits, mental health services, and other health services, and any additional mental health services contemplated by this order. This provision shall go into effect no later than July 21, 2017.
b. Any rehabilitative programming (e.g., Aggression Replacement Training, Juvenile Cognitive Intervention Program, etc.) that was scheduled or in
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process before placement in RHU. This provision shall go into effect no later than September 30, 2017. c. Educational services. To the extent practicable, youth in restrictive housing shall receive educational services with the general population. If attending educational services with the general population proves unworkable due to an immediate and substantial threat of physical harm or an unreasonable risk of significant disruption to classroom instruction, youth in restrictive housing shall receive alternative educational services on days that the general population receives such services. Defendants shall ensure special education services for eligible youth. This provision shall go into effect no later than September 30, 2017. d. Additional “out time” for gross motor exercise and social interaction. No later than July 21, 2017, defendants shall permit youth to talk to peers during such “out time” unless such conversations pose an immediate and substantial threat of physical harm to another person. Sensory stimulation shall also be available during out time, unless such activities cause immediate and substantial disruption or risk of physical harm. This provision will go into effect no later than August 14, 2017. e. Meals out of the cell, absent an immediate and substantial threat of physical harm to another person from the youth eating that meal out of the cell. This provision shall go into effect no later than August 14, 2017. f. Minimum “out time” each day and each week. Absent an immediate and substantial threat of physical harm to another person or a direct refusal to
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come out of his or her room, youth shall receive a minimum of 15 hours per week for activities identified in paragraphs a through c and 15 hours per week for activities identified in paragraphs d and e, for a minimum of 30 hours of out time total per week; however, youth shall always receive a minimum of two hours of out time per day, absent an immediate and substantial threat of physical harm to another person or a direct refusal to come out of his or her room. 5. Effective July 21, 2017, youth shall not be placed on control status absent an immediate and substantial risk of serious physical harm to self or others. 6. Staff shall visually verify and document the safety and welfare of each youth held in RHU during the time such youth is in the cell at frequent and random intervals, and no fewer than two times per hour during daytime hours and four times per hour during evening hours. 7. Defendants shall notify all youth of all the above rights and of procedures for filing grievances and appeals at the time of each placement in RHU. C. Chemical agents Defendants are enjoined from using chemical agents in any manner that is inconsistent with the following: 1. Effective no later than July 21, 2017, defendants shall use chemical agents, including but not limited to OC or pepper spray, only when a youth is engaging in physical harm to others or to prevent the youth from causing bodily harm to another. Medical and mental health staff should be consulted as soon as practicable after the use of OC spray.
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2. Contra indications to chemical agents shall be maintained by the Health Service Unit (HSU) to comply with the Health Insurance Portability and Accountability Act. Staff must check with HSU prior to any planned use of chemical agents to determine whether any contra indications exist.
3. Defendants shall immediately begin a systematic review all instances of OC use in the first six months of 2017 to identify patterns and trends. The review will include, at a minimum, whether the use was planned or reactive, the location, the date/day/time, and other actions by the involved youth (e.g., fighting other youth, physically resisting staff, covering up windows or cameras). Defendants will also review the number of youth who were exposed versus the number of instances to identify ways to reduce and eliminate use of chemical agents, determine any training needs, and identify any alternatives that could be used on a facility-wide or individual basis. This review shall be completed and its results reported to counsel and the court no later than August 31, 2017.
4. Based on the review in the preceding paragraph, by October 31, 2017, defendants shall prepare and provide to counsel and the court a plan to further reduce or eliminate any remaining use of chemical agents.
D. Mechanical restraints Defendants are ordered to ensure that the use of mechanical restraints for any
purpose (other than documented mental health purposes as part of a plan to ensure the safety of the youth) meets the following minimum standards:
1. Defendants may restrain youth during vehicular transportation on or off site.
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2. Under all other circumstances, there is a presumption that youth, including youth in restrictive housing, shall not be mechanically restrained. Defendants may restrain a youth only after an individualized determination that the youth poses an immediate and substantial risk of physical harm to themselves or others. This provision shall go into effect no later than July 21, 2017.
3. Defendants shall not use mechanical restraints unless there is authorization as follows: a Youth Counselor, Youth Counselor Advanced, or supervisor in a living unit may approve the use of mechanical restraints for up to 45 minutes. Any use of restraints in excess of 45 minutes must be approved by the superintendent or security director or their designee. Any use of restraints in excess of 90 minutes must be authorized by the division administrator of juvenile corrections or designee. All approvals must be in writing and articulate the specific facts and circumstances justifying continued restraints. This provision shall go into effect no later than July 21, 2017.
4. Defendants shall use only the minimum level of restraints necessary to eliminate an immediate and substantial risk of physical harm to self or others. Restraints shall not include leg or ankle restraints unless the youth is presenting an active risk of physical harm to self or others arising from free movement of the legs. Youth shall not be tethered to fixed objects. This provision shall go into effect no later than July 21, 2017.
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Case: 3:17-cv-00047-jdp Document #: 71 Filed: 07/10/17 Page 10 of 10 5. Defendants shall remove restraints promptly after the youth is in a safe place or no
longer poses an immediate and substantial threat of physical harm to self or others. Entered July 10, 2017.
BY THE COURT: /s/ ________________________________________ JAMES D. PETERSON District Judge
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 Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., et. al.,
v. Jon E. Litscher, et. al.,

Plaintiffs, Defendants.

Case No. 17-CV-47

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY SETTLEMENT APPROVAL

INTRODUCTION Counsel for the Plaintiff Class and Counsel for Defendants jointly submit this memorandum of law in support of the Joint Motion for Preliminary Approval of Class Action Settlement. For the reasons set out below, the Settlement reached in this case is fair, reasonable and adequate, and therefore the parties request that the Court provide for notice to the Class and set a date for a final approval hearing on the Settlement.
Procedural History
Plaintiffs filed their complaint against Defendants in this Court on January 23, 2017 under 42 U.S.C. § 1983 for violation of the constitutional rights of youth incarcerated at Lincoln Hills School for Boys and Copper Lake School for Girls (collectively “LHS/CLS”) related to practices of solitary confinement, mechanical restraints and pepper spray. An amended complaint filed on April 19, 2017 added additional allegations of constitutional violations related to strip searches. Defendants filed answers denying the allegations of the complaints.

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After production of documents by the Defendants and certain depositions, the plaintiffs moved for a preliminary injunction on April 19, 2017. (Dkt. 17) This Court held an evidentiary hearing on the preliminary injunction motion on June 22 and 23, 2017. (Dkt. 61,62) At the conclusion of the hearing the Court ruled that the plaintiffs had shown “more than a reasonable chance” of succeeding on their claims of constitutional violations with respect to the practices of solitary confinement, pepper spray and mechanical restraints.1 (Dkt. 67)
Following the Court’s ruling and an order identifying parameters for preliminary relief (Dkt. 65), the parties submitted the terms of a preliminary injunction order consistent with the Court’s decision. After review of this submission, the Court entered a preliminary injunction order on July 10, 2017. (Dkt. 71.)
On September 18, 2017, the Court certified a class consisting of “All persons who are now, or in the future will be, confined at Lincoln Hills School for Boys and Copper Lake School for Girls.” (Dkt. 81) The issues certified for class treatment are the constitutionality of defendants’ policies and practices with regard to the use of solitary confinement, mechanical restraints, and chemical agents. The Court also appointed the ACLU of Wisconsin Foundation, the Juvenile Law Center, and the law firm of Quarles & Brady LLP as class counsel.
Settlement Negotiations
The parties began exchanging settlement proposals in September 2017 through in person negotiations, as well as exchanges of correspondence, draft proposals and phone calls. (Muth Decl., ¶ 2).
1 Plaintiffs had not included strip search practices in their motion for a preliminary injunction.
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Based on an agreement between the parties, Defendants subsequently engaged Michael Dempsey and Mark Soler, experts in juvenile corrections not previously retained by either party to the litigation, to conduct a review and make recommendations to the parties concerning needed changes related to Defendants’ use of solitary confinement, OC spray, mechanical restraints and strip searches. The parties planned to take into account those recommendations in further settlement negotiations. The experts conducted their work in the first two months of 2018 and issued a report to counsel for the parties dated February 26, 2018. (Muth Decl., ¶ 3).
While the parties were in the process of negotiating a possible settlement, the Wisconsin legislature passed a law which requires the state to establish new Type 1 secure juvenile correctional facilities and authorizes counties to establish secured residential care centers for children and youth. Act of Mar. 30, 2018, § 110(2)(a), 2017-2018 Wis. Legis. Serv. 185 (West). Pursuant to the newly enacted legislation, LHS/CLS would be converted to an adult institution and new Type 1 secure facilities will be created. (Muth Decl., ¶ 4).
The parties continued their negotiations in a mediation conducted before Magistrate Peter Oppeneer with sessions on April 5 and May 8, 2018 as well as telephonic discussions with Magistrate Oppeneer, which ultimately resulted in agreement. (Muth Decl., ¶ 5).
The parties executed the final version of the settlement on May 25, 2018. (Muth Decl., ¶ 6).
Summary of the Terms of Settlement
A. Restriction on Room Confinement The settlement calls for the complete elimination of the punitive use of room confinement within 10 months of approval of the settlement. (Settlement, §III.A.1.c). Room confinement is
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defined as confining a youth alone in room or cell outside of normal sleeping hours. (Settlement, §II.B). Effective upon approval, the settlement limits maximum terms of punitive room confinement to 10 days, declining to a maximum of 3 days seven months after approval, and completely eliminating the punitive use of room confinement after 10 months. (Settlement, §III.A.1).
The settlement limits the use of administrative room confinement to situations when a youth poses a serious risk of imminent physical harm to others, and limits such use to 4 hours, with the possibility of two 4 hour extensions. (Settlement, §III.A.2). Night time hours when youth are normally sleeping are not included in calculations of the time limits. The limits on administrative confinement commence six months after approval of the settlement. Id. The parties also agreed on clarifications of the use of room confinement for youth on observation status because of a risk of self harm. (Settlement, §III.A.3).
The settlement provides that minimum “out time” for a youth in confinement must be 30 hours per week and 3.0 hours per day. (Settlement, §III.A.4.g.vi). Youth in room confinement are to receive educational, rehabilitational, psychological and related services similar to the general population. (Settlement, §III.A.4.g). Youth are also to receive time out of their cells for exercise, for social interaction and for their meals.
B. Pepper (OC) Spray The Defendants shall continue to implement an OC-Spray reduction plan. The use of OC Spray and other chemical agents is prohibited twelve months after approval of the Settlement. (Settlement, §III.B).
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C. Mechanical Restraints Restraints may only be used by specifically trained staff, if those staff determine that restraints are the least restrictive means of addressing an imminent threat of physical harm to self or others, and restraints must be removed immediately when the youth regains control and when the threat of harm or the safety security concern has abated. (Settlement, §III.C.1). Use of mechanical restraints is limited to handcuffs except when ordered by psychology staff to prevent self-harm, or by security staff to prevent an immediate substantial threat of physical harm to others, or in some situations during transportation. Mechanical restraints may never be used for punishment or discipline, and youth may never be restrained to a fixed object, such as a bed, wall, desk, or table, unless specifically ordered by psychology staff. (Settlement, §III.C.1). Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living unit. No youth may be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director, or designee and reviewed every 45 minutes thereafter. (Settlement, §III.C.1.g). D. Strip searches The agreement limits the situations when strip searches of youth may be conducted. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means. (Settlement, §III.D.1). Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted. (Settlement, §III.D.2).
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When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device. Under no circumstance may a youth be strip searched within view of another youth. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched, unless the search is conducted by a medical professional. Strip searches must be conducted by staff trained in trauma-informed practices. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search. (Settlement, §III.D.3).
E. Monitor Under the agreement, Teresa Abreu will be appointed to monitor Defendants’ compliance with the terms of the Agreement. (Settlement, §V.C). Ms. Abreu’s qualifications are set out in her curriculum vitae attached as Exhibit B to the Declaration of R. Timothy Muth. The Monitor will conduct four site visits during the first calendar year of the Agreement and two site visits per year during the remaining time the Agreement is in place. In addition to the site visits, the Monitor will have access on request to books, records and reports from LHS/CLS. The Monitor will prepare a report after each site visit which will be filed with the Court. (Settlement, §V.C.3.e). The Monitor will also make at least one visit to each new site opened by the Defendants pursuant to 2017 Legislative Act 185 to assure that the new facility is complying with the provisions of this agreement related to room confinement, restraints, strip searches and pepper spray. (Settlement, §V.C.3.c). Defendants will pay Monitor’s reasonable fees and costs. (Settlement, §V.C.4).
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G. Administrative Code Changes Defendants will make all reasonable efforts to amend the Wisconsin administrative code within six months after entry of the Court’s order. (Settlement, §III.H). The amendments will impose restrictions on any juvenile correctional facilities operated by DOC that are consistent with the material terms of this Agreement as they relate to: (1) Room Confinement, (2) OCSpray and Other Chemical Agents, (3) Mechanical Restraints, (4) Strip Searches, and (5) Observation Status. H. Documentation and Enforcement The settlement agreement requires Defendants to maintain concurrent documentation and to produce to Class Counsel monthly reports related to the use of pepper spray, room confinement, mechanical restraints and strip searches. (Settlement, §V.D.2). On two days notice, Class Counsel will have access to living areas at LHS/CLS for inspections and to speak to Youth. (Settlement, §V.D.1). If Class Counsel believe there are violations of the settlement and are unable to resolve their concerns after meeting and conferring with Defendants, Class Counsel may move the Court for appropriate orders to enforce the terms and conditions of the settlement. (Settlement, §V.D.4). F. Termination Defendants agree not to move to terminate this agreement until a minimum of three year have passed or they have shut down LHS/CLS. (Settlement, §V.B). The agreement may then be terminated under the following conditions: a. If Defendants have closed LHS/CLS and have amended the Administrative Code, the agreement terminates after the Monitor has inspected each new Type 1 juvenile facility.
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b. If Defendants have closed LHS/CLS but have not amended the Administrative Code, the agreement terminates after each new Type 1 juvenile facility has been inspected by the Monitor twice and been found to be in compliance with the substantive terms of this Agreement.
c. If Defendants have not closed LHS/CLS, then the Agreement terminates after each new Type 1 juvenile facility and LHS/CLS has been inspected by the Monitor twice after the first 36 month of the Agreement and been found to be in compliance with the substantive terms of this Agreement.
I. Continuing Jurisdiction The Court will maintain continuing jurisdiction to enforce the terms of the Order incorporating the settlement provisions. (Settlement, §V.A).
LEGAL ARGUMENT A. The Court Should Preliminarily Approve the Proposed Settlement Agreement
The Settlement Agreement complies with the requirements of Fed. R. Civ. P. 23(e), under which the Court may grant approval of a settlement only after finding that it is “fair, reasonable, and adequate.” In determining whether to approve a settlement, the Court considers the following factors: “the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer, an assessment of the likely complexity, length and expense of the litigation, an evaluation of the amount of opposition to settlement among affected parties, the opinion of competent counsel, and the stage of the proceedings and the amount of discovery completed at the time of settlement.” Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (quoting Isby v. Bayh, 75 F.3d 1191, 1199 ((7th Cir. 1996)) (internal quotation marks omitted); see also Smoot v. Wieser Bros. Gen. Contractors, Inc., No. 15-CV424, 2016 WL 1736498, at *5 (W.D. Wis. Apr. 29, 2016). Courts have also considered the
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presence of collusion in reaching the settlement and whether the agreement promotes the public interest as relevant factors. See ACLU v. U.S. Gen. Sers Admin., 235 F. Supp. 2d 816, 818 (N.D. Ill. 2002).
The Seventh Circuit points out that “federal courts look with great favor upon the voluntary resolution of litigation through settlement” and in the class action context there is “an overriding public interest in favor of settlement.” Armstrong v. Bd. of Sch. Dirs. of Milwaukee, 616 F.2d 305, 312-13 (7th Cir. 1980), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). The Seventh Circuit has also instructed district courts "to refrain from resolving the merits of the controversy or making a precise determination of the parties' respective legal rights." and that “the Synfuel/Reynolds evaluation of potential outcomes need not always be quantified, particularly where there are other reliable indications that the settlement reasonably reflects the relative merits of the case.” Kaufman v. Am. Express Travel Related Servs. Co., 877 F.3d 276, 285 (7th Cir., 2017)(citations omitted).
Approval of a proposed settlement under Rule 23 requires two steps. First, the district court conducts a preliminary review of the settlement prior to notice being issued to the class. Second, following notification of the class, the court conducts a fairness hearing at which the opinions of class members may be heard. The court then decides whether the proposed settlement is “fair, reasonable, and adequate.” Armstrong v. Bd. of Sch. Dirs. of Milwaukee, 616 F.2d at 314.
The purpose of the preliminary review of the settlement is to “determine whether the proposed settlement is “‘within the range of possible approval’” and “to ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing.” Armstrong, 616 F.2d at 314 (quoting Manual for Complex Litigation § 1.46, at
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53-55 (1st ed. 1977)). See also Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (same). The standards for obtaining preliminary approval are less stringent than those for obtaining final approval. In re Ford Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 671, 675-76 (D. Kan. 2009). See also In re Bromine Antitrust Litig.¸ 203 F.R.D. 403, 416 (S.D. Ind. 2001) (“[t]he bar is low” for preliminary approval).
The court reviewing the proposed settlement should not make conclusions on the merits of the claims or “second guess” the settlement’s terms. Barnes v. United States, 89 Fed.Cl. 668, 670 (Fed. Cl. 2009). The settlement agreement should be analyzed in the light most favorable to the agreement as a whole rather than performing a provision-by-provision evaluation. Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996) (citing Armstrong, 616 F.2d at 315).
1. The Proposed Settlement Offers Relief Commensurate with the Strength of Plaintiffs’ Likelihood of Success on the Merits
In the case at bar, “the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement,” weighs in favor of approval. Kaufman v. Am. Express Travel Related Servs. Co., 877 F.3d 276, 284 (7th Cir., 2017) (citation omitted). See also Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (quoting In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1132 (7th Cir.1979)) (citing this factor as the most important one to consider in the context of final approval of a settlement). While the instant case seeks no monetary damages and thus is not amenable to balancing an “amount offered” against the merits of Plaintiffs’ case, it is clear that the scope and breadth of the injunctive relief provided in the Consent Decree is well-balanced against Plaintiffs’ likelihood of success on the merits. Even though Plaintiffs believe that the merits of their claims are strong, there is no guarantee that, should they prevail, the relief ordered by the Court would
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be substantially greater than the relief provided for by the Consent Decree. Ruiz v. Johnson, 154 F. Supp. 2d 975, 981 (S.D. Tex. 2001) (discussing appointment of special master to monitor consent decrees).
Similarly, injunctive cases involving conditions of confinement under section 1983 frequently result in settlements requiring specific changes to policies, as is the case with the Consent Decree. See, e.g., D.M. v. Terhune, 67 F. Supp. 2d 401, 404 (D.N.J. 1999); Stipulation of Dismissal of Actions & Order (Dkt. # 115), Valenzuela v. County of Los Angeles, No. 029092 (C.D. Cal. Mar. 16, 2007); Settlement Agreement between the United States and the Alameda County Sheriff’s Office, DOJ Complaint 204-11-290, February 4, 2010, http://www.ada.gov/alameda_county_sa.html..
The relief provided by the Consent Decree is particularly reasonable given the limits on prospective injunctive relief imposed by the Prison Litigation Reform Act (PLRA), which requires that injunctive relief should “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs …[and] that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1). In the instant case, the Parties agree that the relief set forth in the Consent Decree fully complies with the PLRA’s limitations. Likewise, Defendants have agreed not to seek termination pursuant to 18 U.S.C. § 3626(b)(1)(A), which would otherwise permit Defendants to move to terminate post-judgment relief after as little as two years. In contrast, based on its terms, the relief offered by the Consent Decree will extend until the closure of LHS/CLS, and Defendants have passed a review by the Monitor of new juvenile facilities replacing LHS/CLS
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and/or have amended the Administrative Code for the Department of Corrections to incorporate the substantive terms of the Agreement.
2. The Parties Have Conducted Extensive Discovery and Litigation More than fifteen months have elapsed from the time Plaintiffs filed their Complaint in this action. During that time, the Defendants produced in discovery more than 21,000 documents concerning incidents and operations at LHS/CLS, and receive updated productions on a bi-monthly basis. Plaintiffs worked with prominent national experts on solitary confinement and juvenile corrections who testified at the preliminary injunction hearing. Plaintiffs have conferred frequently with class members about the ongoing conditions at LHS/CLS. The fully litigated preliminary injunction hearing before the Court speaks to the Parties’ respective abilities “to make informed and reasonable assessments of their respective positions.” See Kitson v. Bank of Edwardsville, No. 08-507-GPM, 2009 WL 3066620, at *3 (S.D. Ill. Sept. 18, 2009). 3. The Proposed Settlement Will Avoid the Substantial Costs, Delay, Risk, and Uncertainty of Additional Litigation Although the Parties have already litigated this action for more than fifteen months, if the parties were to continue to litigate, years would likely pass before a decision on the merits was reached, relief ordered and implemented, and all appeals exhausted. As currently calendared, the trial of this matter would not commence until November 2018. The lengthy trial would impose significant costs on the Parties, and post-trial litigation would likely delay the implementation of relief to class members, should they prevail on the merits. While the preliminary injunction order provides certain relief to the class members, in the interim, the class members will not receive the benefit of the further reductions in the use of room confinement, pepper spray and strip searches provided in the settlement. Further, the risks associated with further litigation are
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substantial. Approval of the Consent Decree will avoid these otherwise inevitable costs, delays, and risks.
4. The Proposed Settlement is the Product of Extensive, Arm’s-Length Negotiations.
As discussed supra, the Parties negotiated the substantive terms of the Consent Decree during two mediation sessions with Judge Oppeneer, after obtaining input from independent juvenile corrections experts, and months of written correspondence and telephone calls. Each provision of the Consent Decree is the result of careful, bilateral negotiations among counsel experienced with cases of this nature. The lack of collusion is evidenced by the substantial time, costs, and effort expended by the Parties in pursuit of a final agreement. Pursuant to Fed. R. Civ. P. 23(e)(3), the Plaintiffs and Defendants have no other agreements between them other than the Stipulation for Consent Decree and Permanent Injunction. (Muth Decl., 7).¶
5. The Opinion of Competent Counsel Supports Approval of the Consent Decree.
The Court should consider the representations of counsel experienced in the litigation of cases of the type before the Court. Great Neck Capital Appreciation Inv. P'ship v. Pricewaterhousecoopers, L.L.P., 212 F.R.D. 400, 410 (E.D. Wis. 2002). Plaintiffs’ counsel includes multiple attorneys experienced in complex class action litigation and cases involving civil liberties issues. Plaintiffs’ counsel have considered myriad factors and believe that the Consent Decree is fair, reasonable, and adequate and will provide substantial benefits to the Class.
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B. The Class Notice and Manner of Dissemination Are Reasonable Before a class action may be settled, “[t]he court must direct notice in a reasonable
manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). When, as in the case at bar, class members will be bound by a settlement of injunctive claims, notice to the class should include, inter alia, the “essential” terms of the proposed settlement, including attorneys’ fees, options and procedures for objecting to the settlement, the date and time of the fairness hearing, and a procedure for making inquiries to class counsel. Manual for Complex Litigation § 21.312, at 295 (4th ed. 2004); see also Mangone v. First USA Bank, 206 F.R.D. 222, 232 (S.D. Ill. 2001). A copy of the proposed class notice is attached to the motion.
Notice to the class should “facilitate[] understanding and . . . arouse[] the interest of the reader.” F.C.V. Inc. v. Sterling Nat’l Bank, 652 F. Supp. 2d 928, 933 (N.D. Ill. 2009). In F.C.V., the notice “was eight pages long, and was simple and explicit in its explanation of the recipients’ options and the consequences of those options.” Id. at 932. This notice was held to have “sufficiently informed the recipients” of their rights and options in the settlement. Id. at 947. The proposed notice meets this standard.
The proposed notice plan also satisfies Rule 23(e) and the requirements of due process. Pursuant to this plan, notice will be distributed to all current youth at LHS/CLS, mailed to their parents or guardians, and provided to incoming youth as part of their orientation process. It will also be posted throughout LHS/CLS in conspicuous locations in the day space of general population housing units. Copies of both the notice and the Settlement will also be available in the LHS/CLS library and will be made available to youth or their parents or guardians upon request to DOC or Class Counsel.
14

Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 15 of 19
In similar cases involving prisoners and detainees, courts have held that providing notice by postings in the detention facilities, postings on government websites, and dissemination through organizations that work with class members is sufficient when supplemented by hand delivery for certain subsets of the class, and that individual mailed notice to the entire class is not required. See, e.g., VanHorn v. Trickey, 840 F.2d 604, 606 (8th Cir. 1988) (holding that flyers posted on the walls at correctional facility was sufficient notice); Hall v. County of Fresno, No. 1:11–cv–02047–LJO–BAM , 2015 WL 5916741, at *3, *8 (E.D. Cal. Oct. 7, 2015) (approving notice to prisoner class by posting notice in English and Spanish in all housing units and handdelivering to prisoners in lockdown and restricted housing units). The parties here do both: notice will be provided individually to youth and their parents or guardians, and will be posted widely at LHS/CLS. The parties propose that the deadline to issue the notice as described in the Settlement be ten business days after preliminary approval (the “Notice Deadline”), and that class members have 30 days to submit any objections to the settlement (the “Notice Period”).
The parties further request that this Court set a Final Approval Hearing as soon as possible after the close of the Notice Period; the parties will file a motion for final approval, responding to any objections, no later than seven days before the Final Approval Hearing.
15

Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 16 of 19
C. Attorney fees Class Counsel will seek reasonable attorneys’ fees and costs for work performed up to
and through the Date of Final Approval of this Agreement. The Parties will attempt to reach an agreement regarding the amount of fees and costs prior to issuing notice to the class. Plaintiffs will seek reasonable attorneys’ fees and costs for facilitating and monitoring the implementation of this Agreement for the duration of the Agreement. If the parties are unable to reach an agreement as to the amount of fees for such monitoring, Plaintiffs shall submit a fee petition to the Court for determination.
The proposed notice now states that Defendants have agreed to “pay the lawyers for the youth for their reasonable attorneys’ fees and the costs of the lawsuit.” Proposed Notice, §7. The parties will attempt in good faith to reach agreement on the amount of fees and costs to be paid prior to distributing the notice, in which case that amount will be included in the notice. Should the parties reach agreement on a negotiated amount of fees and costs after notice has been issued, they will provide supplemental notice pursuant to Rule 23(e); should they be unable to reach agreement, Plaintiffs will file a fee petition pursuant to Rules 23(h)(1) and 54(d)(2), and notice will be provided pursuant to Rule 23(h)(1).
CONCLUSION
The proposed settlement of this class action was the product of months of arms-length, good faith negotiations by the parties. For the reasons set forth above, the Court should preliminarily approve the settlement and set a date for a final approval hearing to take place after notice to the plaintiff class has been given.
16

Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 17 of 19

Dated this 1st day of June, 2018.

/s R. Timothy Muth____________ ACLU OF WISCONSIN FOUNDATION Laurence J. Dupuis (SBN 2029261) Karyn L. Rotker (SBN 1007719) R. Timothy Muth (SBN 1010710) 207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202 Telephone: (414) 272–4032 Facsimile: (414) 272–0182 ldupuis@aclu–wi.org krotker@aclu–wi.org tmuth@aclu–wi.org
JUVENILE LAW CENTER Jessica Feierman Karen Lindell Marsha Levick The Philadelphia Building 1315 Walnut Street, 4th Floor Philadelphia, PA 19107 Telephone: (215) 625–0551 jfeierman@jlc.org klindell@jlc.org mlevick@jlc.org
QUARLES & BRADY LLP Matthew J. Splitek (SBN 1045592) Rachel A. Graham (SBN 1069214) 33 East Main Street, Suite 900 Madison, WI 53703 Telephone: (608) 251–5000 matthew.splitek@quarles.com rachel.graham@quarles.com
Emily L. Stedman (SBN 1095313) Zachary T. Eastburn (SBN 1094676) 411 East Wisconsin Ave., Suite 2400 Milwaukee, WI 53202 Telephone: (414) 277–5000 emily.stedman@quarles.com zachary.eastburn@quarles.com
Attorneys for Plaintiffs

17

Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 18 of 19 s/ Samuel C. Hall, Jr. CRIVELLO CARLSON, S.C. Samuel C. Hall, Jr., WI Bar No. 1045476 shall@crivellocarlson.com Benjamin A. Sparks, WI Bar No. 1092405 bsparks@crivellocarlson.com 710 N. Plankinton Ave. Ste. 500 Milwaukee, WI 53203-2404 Tel.: (414) 290-7587 Fax: (414) 271-4438 Attorneys for Defendants Jon E. Litscher, John D. Paquin, Wendy A. Peterson, Brian Gustke
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Case: 3:17-cv-00047-jdp Document #: 97 Filed: 06/01/18 Page 19 of 19
CERTIFICATE OF SERVICE I hereby certify that on this 1st day of June, 2018, I filed the foregoing Memorandum In Support Of Joint Motion For Preliminary Settlement Approval using the CM/ECF system, which will send electronic notification of such filing to all counsel of record who are ECF participants. I further certify that on said date, paper copies were sent to those indicated as non–registered ECF participants, via First Class, United States mail, postage prepaid.

/s/

R. Timothy Muth

19

 
 EXHIBIT A

APPENDIX A

DISSEMINATION
☐ All Staff ☒ Institution ☐ Field Offices ☐ Health Services

WISCONSIN
DEPARTMENT OF CORRECTIONS
Division of Juvenile Corrections

EFFECTIVE DATE
2/1/2017
MANUAL REFERENCE
DJC POLICY #
500.70.24

PAGE NUMBER 1 of 7

☒ New ☐

Revision

Original Date: [Comments]
ORIGINATED BY John D Paquin, Administrator

Policy and Procedure

X PRIORITY

Date Signed: 2/1/2017

☐ Community Facilities
☐ Confidential-Security Related ☐ Supervisory Staff Only

☒ Policy/Directive Discuss at Staff Meeting
REPLACES POLICY N/A

☐ Information Read/Route/Post

SUBJECT: Clinical Observation

Purpose The purpose of this policy is to reduce and prevent the risk of harm to youth.
Policy The Division of Juvenile Corrections shall place youth on clinical observation status as necessary to ensure the safety of youth and others.
References DAI Policy 500.70.05 – Mental Health Treatment - Crisis Services DAI Policy 500.70.06 – Consent for Mental Health Services Wisconsin Administrative Code Ch. DOC 375 – Observation Status in Type 1 Secured Correctional Facility Wisconsin Statutes Ch. 51 – State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act
Definitions, Acronyms, and Forms ACP – Advanced Care Provider ADO – Administrative Duty Officer Clinical Observation – A non-punitive status used to ensure the safety of the youth or the safety of others. A youth may be placed in clinical observation for mental illness and dangerousness to self or others, or (when not mentally ill) for dangerousness to self.
DJC – Division of Juvenile Corrections

Clinical Observation
DOC – Department of Corrections

EFFECTIVE DATE
2/1/2017

DOC-27C – Placement/Review of Offender Mental Health Observation

DOC-112B – Observation of Offender

DOC–1846 – Incident Report -DJC

DOC-2099 – Notice of Review for Continued Observation

PAGE NUMBER
2 of 8

DOC-3035D – Youth Request for Psychological Services
HSU – Health Services Unit
Mental Illness – For the purpose of evaluating youth who have extended stays in clinical observation, mental illness is a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.
MJTC – Mendota Juvenile Treatment Center
PHI – Protected Health Information
PSU – Psychological Services Unit
PSU Staff – Employees classified as Psychologist Supervisor, Psychologist-Licensed, Psychological Associate, Crisis Intervention Worker, Psychological Services Assistant, Clinical Social Worker, or any other clinical classification that is directly supervised by Psychological Services.
State Treatment Facility – Winnebago Mental Health Institute or Mendota Juvenile Treatment Center
WMHI – Winnebago Mental Health Institute
Working Days – All days except Saturdays, Sundays and legal holidays.

Procedure
I. Initial Placement
A. Any staff member, or youth by way of self-referral, may recommend that a youth be placed in clinical observation.
B. Those authorized to place youth in clinical observation include Psychologist Supervisors, Psychologists-Licensed, Psychological Associates, Crisis Intervention Workers .
C. If the staff listed in I.B. are not immediately available for consultation or for evaluation of the youth, a Registered Nurse, ADO, Security Director, Security Supervisor or Superintendent may place a youth in clinical observation. Reasonable attempts should be made to consult PSU prior to placing a youth in clinical observation. If non-PSU staff place a youth in clinical observation, a Security Supervisor shall ensure that PSU staff are notified as soon as possible after the placement.
D. If on-site, staff authorizing the initial placement shall verbally inform the youth of the reason for placement into clinical observation at the time of placement. When the staff authorizing the initial placement is not on-site, the staff placing a youth on observation shall inform the youth of the reason for the placement.

II. PSU monitoring A. Initial Evaluation

Clinical Observation

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
3 of 8

1. When a clinical observation placement occurs during business hours, PSU staff

shall evaluate the youth face to face as soon as possible, but on the same day.

2. When a clinical observation placement occurs outside of business hours, PSU on-call staff shall be consulted via telephone by the on-site supervisor to determine appropriate level of monitoring and property allowance. PSU staff shall complete a face to face evaluation of the youth as soon as clinically appropriate, but no longer than 16 hours after initial placement.

B. Subsequent PSU evaluations shall take place at a minimum of every working day while the youth remains in clinical observation with 5, 10 or 15 minute checks. In the case of weekends or holidays the time period between PSU evaluations shall never exceed three calendar days.

C. If a youth is placed in clinical observation with constant monitoring subsequent PSU evaluations shall take place daily regardless of whether it is a weekend or holiday.

D. PSU staff shall consult with registered nursing staff as needed when any organic causes for youth’s clinical observation placement are suspected.

E. PSU staff shall instruct other DJC staff regarding the clinical management of the youth.

F. PSU staff shall verbally advise a youth of the results of the initial evaluation as soon as possible but within 24 hours of the evaluation. Youth shall be provided with written results of the evaluation within ten working days unless providing paper is clinically contraindicated. A copy of DOC-27C may serve as the written results of the evaluation.

G. For youth under age 18 placed in observation status, PSU staff shall notify the youth’s parent/guardian of the youth’s observation status.

H. Youth placed in room confinement under observation status shall be provided therapeutic activities such as counseling, meetings with PSU staff, and interactions with staff members trained to work with youth engaged in or threatening self-harm or suicide.

I. Staff making placement decisions for youth on observation status shall consider whether the youth can remain safely in observation status in general population.

III. HSU Monitoring
A. PSU staff will notify a HSU staff member whenever a youth is placed on constant monitoring, 5 minute monitoring, or 10 minute monitoring.
B. A Registered Nurse shall complete a health assessment of a youth in clinical observation status on constant monitoring, 5 minute monitoring or 10 minute monitoring, at least once per day to rule out any organic causes for youth’s clinical observation placement and to monitor youth’s well-being.
C. PSU staff will notify a HSU staff member whenever a youth is taken off constant monitoring, 5 minute monitoring, or 10 minute monitoring.
IV. Supervision
A. Assignment of supervision levels
1. PSU staff shall determine the level of supervision.
2. PSU staff shall authorize any decrease in the level of supervision.
3. If PSU staff cannot be readily consulted, staff may increase the level of supervision if circumstances indicate that the youth has an increased risk of harm to self.

Clinical Observation
B. Close observation

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
4 of 8

1. Every youth who is placed in clinical observation shall, at a minimum, be placed in close observation status.

2. Staff shall observe the activities of a youth in close observation at staggered intervals not to exceed 15 minutes. Observations checks shall take place at room-front and be recorded on DOC-112B.

3. PSU staff will assess the level of close monitoring warranted.

i. 15 minute - may be in the housing unit

ii. 10 minute - in observation room

iii. 5 minute - in observation room

C. Constant observation

1. Youth at high risk for imminent suicidal behavior and self-harm behaviors shall be placed on constant observation.

2. Constant observation involves continuous line-of-sight monitoring by a security staff whose assignment is dedicated to the monitoring and well-being of the youth. Observed self-injurious behaviors shall be immediately reported to Supervisor/designee, PSU, and HSU. Observations shall be recorded on DO112B at intervals not to exceed 15 minutes.

3. For any youth who is placed in constant observation, PSU staff shall consider and document on DOC-27C whether a transfer to a state treatment facility is appropriate.

D. A youth may require mechanical restraint while in clinical observation status.

E. Youth who have a history of suicidal thoughts or feelings may be appropriate for settings other than clinical observation, provided that there is a treatment plan, clinical follow-up by PSU staff, and periodic review at multidisciplinary meetings.

F. Closed circuit television monitoring may be used in addition to, but never a substitute for, the above monitoring levels.

G. Property Allowance

1. PSU staff shall determine a youth’s allowed property in relation to the level of risk and after consultation with a Supervisor.

2. The following items are a starting point when determining allowed property at the beginning of a clinical observation placement. PSU staff shall approve access to the following items unless there is a clinical or security reason to withhold them:

i. Suicide-resistant clothing (e.g., smock or gown).

ii. A security mat/mattress.

iii. Bar or liquid soap and a washcloth.

iv. Bag meals.

v. Toilet paper.

vi. DOC-3035 series (includes medical, psychological, and dental).

vii. Crayon for completing DOC-3035D (a pen insert may be approved by PSU staff).

Clinical Observation

viii. Shower.

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
5 of 8

ix. Oral hygiene products.

x. Security blanket.

3. If any of the above items are withheld, PSU staff shall review the restriction at each visit so that items may be allowed as soon as appropriate.

4. If there is an imminent risk to health or safety, then any staff may remove the property, and shall notify PSU staff as soon as possible, following the removal. Reasonable efforts shall be made to consult PSU staff, prior to restricting property.

5. The Superintendent, Regional Chief, Director or designee has final authority regarding the property and privileges of youth in observation.

H. Documentation

1. Staff who observe the behavior that results in observation placement shall complete a DOC-1846.

2. Non-PSU staff who increase the supervision level of or remove property from a youth in clinical observation shall immediately notify a Security Supervisor and PSU staff and document the action on DOC-112B.

3. PSU staff shall document every clinical observation placement on DOC-27C. Documentation shall include the reasons for the placement, level of supervision and the initial property allowed.

4. PSU staff shall record all subsequent evaluations on DOC-27C and include any change in the level of supervision or allowed property.

5. For placements made when PSU staff are not on-site, PSU staff shall complete the initial DOC-27C at the time of the first evaluation.

6. PSU staff shall make an entry in the visitor’s section of DOC-112B whenever they have contact with a youth. The entry shall note any change in the level of supervision or allowed property.

7. Completed DOC-27Cs shall be retained in a secure area due to the PHI included on the form. Access to the DOC-27C shall be limited to staff members who have a clearly defined job-related need to know the contents of the form.

I. Housing

1. Youth in clinical observation (constant monitoring, 5 minute or 10 minute) shall be housed in rooms designed for suicide prevention purposes. If circumstances require use of another room, the room shall be in proximity to staff and checks shall be carried out at a minimum of five-minute intervals.

2. Youth in clinical observation on 15 minute observations may be housed in a standard housing unit.

J. Follow-up

Youth who are released from clinical observation shall be interviewed by PSU staff on the next calendar day, within the seven calendar days, and at least within thirty days after release.

K. Staffing

Clinical Observation

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
6 of 8

Security staffing for housing units that contain clinical observation rooms shall be

sufficient to perform the necessary observation checks and corresponding

documentation.

L. Off-site Healthcare Facilities

1. In the event that a youth is assessed and/or admitted to an off-site healthcare facility, staff at that facility will be notified of the youth’s observation status prior to transfer to care. The particular facility’s policies and procedures regarding suicide risk assessment and prevention, rather than those of DJC, will apply for the duration of the youth’s stay.

2. When the youth returns from the off-site healthcare facility, DJC staff shall place the youth back in clinical observation status until evaluated by PSU staff.

3. PSU staff shall evaluate a youth as soon as possible, on the same day of return from the off-site healthcare facility, to evaluate risk and determine the appropriate level of supervision.

V. Extended Stays in Clinical Observation

A. If a youth approaches 14 days in clinical observation, PSU staff shall follow the procedures outlined below and described in Wisconsin Administrative Code s. DOC 375.

B. For all youth:

1. On or before the 14th day in clinical observation, PSU staff shall complete DOC-2099 and use this form to notify the youth of a Review of Need for Continued Observation.

2. Within two to five days of making this notification, PSU staff shall conduct a Review of Continued Mental Health Placement as outlined in Wisconsin Administrative Code s. DOC 375.06. The review shall be documented on DOC27C.

3. Subsequent reviews shall be conducted at least once every 7 days.

C. For youth who are in clinical observation for mental illness and who are a danger to self or others:

1. On or before the 14th day in clinical observation, PSU staff shall initiate proceedings for a Chapter 51 commitment if one has not already been obtained.

2. A referral to MJTC or WMHI shall be submitted requesting that the youth be evaluated for a Chapter 51 commitment.

D. For youth who are in clinical observation for dangerousness to self (although not mentally ill):

1. On or before the 14th day in clinical observation, PSU staff shall contact the Psychology Supervisor and Psychology Manager to initiate a Review of Dangerousness to Self.

2. The review shall be conducted by a Psychologist-Licensed or Psychological Associate from a facility other than the one in which the youth is housed and completed within 30 days of placement.

3. Results of the review shall be documented on DOC-27C. Any subsequent reviews shall be conducted at least once every 30 days.

Clinical Observation
cc: Office of the Secretary DJC Leadership Team

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
7 of 8

Division of Juvenile Corrections Facility/Region Implementation Procedure

Facility/Region:

DJC Policy Number: 500.70.24

Subject: Clinical Observation

New Effective Date: 2/1/2017

Original Effective Date: [Comments]

Will Implement:

☐ As Written

☐ With following procedures for facility implementation

Superintendent’s/Regional Chief’s Approval:

REFERENCES

DEFINITIONS, ACRONYMS, AND FORMS

FACILITY PROCEDURE I.
A. B.
1. 2.
a. b. c. 3. C.
II.
III.

Clinical Observation
RESPONSIBILITY I. Staff II. Youth III. Other

EFFECTIVE DATE
2/1/2017

PAGE NUMBER
8 of 8

APPENDIX B OC Reduction Plan

Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 1 of 10

17cv47UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Saleena Jackson, et al.,
Plaintiffs, v. JON E. LITSCHER, et al.,
Defendants.

Case No.: 17-CV-47

DEFENDANTS’ REPORT ON USE OF OC SPRAY PURSUANT TO THE COURT’S PRELIMINARY INJUNCTION

Defendants, Jon E. Litscher, John D. Paquin, Wendy A. Peterson, and Brian Gustke (collectively, “Defendants”), by their undersigned attorneys, Crivello Carlson, S.C., and pursuant to the Court’s Preliminary Injunction, hereby submit this Report on the use of OC Spray.
Injunction, Section C.4 “Based on the review in the preceding paragraph, by October 31, 2017, defendants shall prepare and provide to counsel and the court a plan to further reduce or eliminate any remaining use of chemical agents.”
Methodology The August 2017 report on the use of OC showed that OC was used in response to a variety of precipitating events, many of which have multiple components and, if not responded to appropriately, pose a significant threat to

Page 1 of 10

Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 2 of 10
youth and staff safety as well as the effective operation of the facility. DJC therefore developed a multi-faceted plan, including consideration of several types of approaches:
• Steps to reduce OC use that are directly responsive to the specific types of incidents previously identified as leading to use of OC. Note that many of these steps have already been taken in response to other requirements in the injunction.
• Steps to reduce the types of incidents that lead to the use of OC. • Steps directly related to the use of OC and the follow-up response to incidents
involving OC deployment.
For the latter two categories, DJC reviewed standards, recommendations, and options from several sources, including:
• The PbS Blueprint section on “Responses to Misbehavior: Restraints,” which includes a variety of policies and practices designed to reduce use of all types of restraints, including chemical agents.
• The LHS PbS Facility Improvement Plan for reducing use of OC, which was developed in consultation with DJC’s PbS Coach.
• A Center for Children’s Law and Policy Fact Sheet on Chemical Agents in Juvenile Facilities (published 5/14/2012).
• A plan developed by the Oklahoma Office of Juvenile Justice in 2016 to eliminate use of OC in its facilities within a 24-month period.
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 3 of 10
Plan Responses to Injunction Section C.1. of the injunction requires that as of July 21, 2017, OC be used “only when a youth is engaging in physical harm to others or to prevent the youth from causing bodily harm to another.” Several of the most common precipitating events for OC use from January – June 2017 did not necessarily meet this standard. Therefore, several changes in practice have taken place.
• The second most common precipitating event was “refusing directives to cease abusing property in an unsafe manner.” This included actions such as covering up cameras or windows, thereby preventing staff from properly performing checks to ensure youth safety. Since the injunction, this type of incident has been less common, which LHS management believes is due to youth being in RHU for shorter periods of time and having a more structured schedule of out-time while they are in RHU. When such an incident does occur, staff may need to enter the room to remove the items being mis-used. It is important to note that if the youth then responds in a physically aggressive or threatening manner, the use of OC may then be warranted.
• The third most common precipitating event was “refusing to comply with movement.” LHS staff are now directed to use a trained hands-on escort technique to achieve required movement, after attempts to gain verbal compliance are unsuccessful. Again, should the youth become physically
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 4 of 10
aggressive or resistive in a manner that presents a risk of bodily harm, OC may then be used.
• The fourth most common precipitating event was holding arms out of the trap door, preventing it from being closed and impeding unit operations. LHS management believes that the frequency of these incidents has also decreased due to youth being in RHU for shorter periods and having a more structured schedule. Staff attempt to place youth who are prone to this behavior in rooms where they will not impede operations as much. When it does occur, staff work around the behavior as much as possible, without giving undue attention to the behavior, such as by using a plastic shield to protect staff and youth when they must pass the youth’s door.
Preventing Incidents That Could Lead to Use of OC The steps outlined in this section of the plan are arguably the most important. Because OC can now be used only when a youth is engaging in physical harm to others or to prevent the youth from causing bodily harm to another, the goal of any further steps to reduce use of OC cannot simply be to reduce the number of incidents in which OC is used. Rather, it must be to reduce the use of OC while maintaining safety of youth and staff. This is primarily achieved by preventing or diffusing incidents before they reach the point of potential bodily harm. Otherwise, the harm to youth or staff resulting from not intervening in an aggressive incident, or from intervening physically without use of OC, could outweigh the effects of
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 5 of 10
using OC to prevent such injury. Maintaining a secure and orderly facility is essential to safety for both youth and staff.
Available information from multiple sources on how to prevent and diffuse potentially dangerous incidents consistently follows themes of keeping youth busy and engaged, providing effective training for staff, and providing effective services for youth. The steps outlined below are either underway or in the planning stages.
• Engaging youth in a full schedule of programming to keep youth busy: Daytime school and treatment schedules have been revised, both in general population and in restrictive housing. Additional activities such as basketball tournaments, exercise programs, and crafts have also been added, and further revisions to evening schedules are in process. Recruitment of dedicated Recreation Leader staff is nearly complete, which will offer additional resources to ensure activities and programming during the evening hours, when most OC incidents occurred.
• Ensuring staff are trained on topics such as de-escalation, crisis intervention, adolescent development, mental health, and trauma informed care: All new security staff are trained on each of these topics during the Youth Counselor Preservice Academy, and annual update training for all security staff includes de-escalation and suicide prevention. In addition, 56 CLS/LHS staff across multiple disciplines have recently been trained in the 2-day Crisis Intervention Partners training. Treatment staff have been trained in Motivational interviewing and a number of staff, including TIP unit staff, have been trained
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 6 of 10
in DBT. Future training efforts will include ethics and boundaries and additional trainings on the above-listed topics.
• Ensuring staff are trained on approved physical force techniques and appropriate use of restraints: All security staff receive initial 40-hour training in Principles of Subject Control and 8 hours of training on incapacitating agents (including exposure), with annual 4-hour update training. Non-security staff receive 24-hour training focused on verbalization skills, threat assessment, first response, and defensive techniques.
• Ensuring adequate staffing, including enough mental health professionals to respond to youths’ needs: DJC is working aggressively to recruit security staff, including by holding recruitment events throughout the state and continuing with local Youth Counselor Preservice Academies. LHS has added mental health clinicians and increased the availability of mental health services to all youth. Additional positions, including Youth Counselors, nurses, and a psychologist, were authorized through the 2017-19 biennial budget.
• A crisis response team, composed of staff highly skilled in verbal de-escalation, is called to non-emergency situations in an effort to resolve issues without the use of physical restraint: LHS is currently in the planning stages of developing these crisis response teams. A related effort has recently been implemented in the school with the creation of the “STAR” room, which stands for “Stop, Think, Act, and Review.” Youth are referred to the STAR room by teachers in the same
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 7 of 10
manner youth are referred to any school office. This resource is designed to allow youth to de-escalate or self-regulate if they become disruptive in the classroom. The STAR Room is not disciplinary in nature. It is a place for reflection, problem resolution, and at times a calm environment to complete school assignments.
• The Targeted Intervention Program (TIP) unit, which opened in October 2017, brings together several of the elements above. It is designed to serve the most challenging youth in a staff-intensive, highly structured, treatment-rich environment, including Dialectical Behavioral Therapy (DBT) which is recognized as one of the most effective interventions for individuals with personality disorders and self-harming behaviors. Youth in this unit are divided into small groups that remain together during the daily structured schedule. A Youth Counselor follows each group and attends all classes, groups and recreational activities along with the facilitators. The intent is to keep these youth actively engaged and learning pro-social skills.
• A revised incentive program has been developed to reinforce and encourage positive behaviors by youth. According to evidence-based practice, frequent reinforcement of pro-social behaviors promotes improved behavior and decreases unwanted behavior. The program is currently being implemented in the TIP unit and will be implemented in other general population housing units over the course of the next several months.
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Case: 3:17-cv-00047-jdp Document #: 86 Filed: 10/31/17 Page 8 of 10
• A Youth Advisory Council has been developed and a Family Advisory Council is being developed in order to promote youth and family voice in facility operations. Inclusion of client voice is recognized as a core principle in trauma-informed organizations. Availability, Use, and Response to OC
Another set of potential options are more specific to the use of OC, including protocols to be followed to minimize harmful effects, ensuring adequate follow-up and review, and limiting the availability of OC. • A continuum of responses to disruptions, with OC (or other restraints) used as a
last resort and de-escalating conflicts before they occur given highest priority: DJC policy clearly states that “verbal interventions/de-escalation techniques receive highest priority for resolving conflict,” and this expectation is reinforced through training, incident reviews, performance evaluation, and (when necessary) employee discipline.
• Medical staff maintain a list of contraindications and are consulted before any planned use of force. It is important to note, however, that since OC can only be used when a youth is engaging in physical harm to others or to prevent the youth from causing bodily harm to another, its use is more likely to be reactive than planned. In either case, youth are seen by medical staff following any exposure to OC.
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• When planned use of force becomes necessary, a specific protocol is followed that includes video and audio recording. Reactive use of force situations are recorded on body cameras, with handheld recording begun as soon as it can reasonably and safely be accomplished. All use of force incidents are documented on incident reports, with each involved staff person writing an individual narrative.
• Each incident involving use of OC is reviewed on multiple levels, including at the weekly management-level incident review meeting and as part of a use of force review. PbS also recommends debriefing with the youth and the involved staff, which currently occurs on a case by case and less formal basis. CLS/LHS will evaluate options for including these youth and staff debriefings on a consistent, structured basis.
• Data on use of OC is compiled and reviewed on a regular basis as part of PbS and other reporting mechanisms.
Other potential options that have been recommended elsewhere and were considered for inclusion in this plan include further limiting who can carry OC (for example, supervisors only) and storing it in a lockbox or away from the housing units. These steps were determined to not be appropriate for inclusion in the plan at this time, because they would preclude the use of OC when a youth is engaging in physical harm to others or to prevent the youth from causing bodily harm to another. As noted above, this could increase injuries to staff and youth, either through failing to prevent an assault, failure to intervene in assaultive situations,
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or through physically intervening in dangerous situations. DJC will continue to assess progress in preventing incidents and reducing OC, and we will continue to evaluate all options on a regular basis.
Dated this 31st day of October, 2017.

CRIVELLO CARLSON, S.C. Attorneys for Defendants

By: s/ Samuel C. Hall, Jr. SAMUEL C. HALL, JR. State Bar No.: 1045476 BENJAMIN A. SPARKS State Bar No.: 1092405

PO ADDRESS:

710 North Plankinton Avenue

Suite 500

Milwaukee, WI 53203

Phone: 414-271-7722

Email:

shall@crivellocarlson.com

bsparks@crivellocarlson.com

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 Case: 3:17-cv-00047-jdp Document #: 109 Filed: 01/14/19 Page 1 of 23

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

FIRST REPORT OF THE MONITOR

Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
On January 23, 2017, the Plaintiffs filed a Class Action Complaint for Declaratory and Injunctive Relief, initiating the above-captioned action under 42 U.S.C. § 1983. The claims in this action relate to the use of room confinement, chemical agents, mechanical restraints, and strip searches at Lincoln Hills School (“LHS”) and Copper Lake School (“CLS”). Various legal proceedings ensued which led to the Stipulation For Consent Decree And Permanent Injunction, filed on June 1, 2018 and entered by the Court on September 21, 2018.
The Parties agreed that Teresa Abreu would be retained to serve as the Parties ' jointly appointed Monitor. The final Monitor contract was executed on October 25, 2018. Defendants provided the Monitor with the relevant Administrative Code provisions, policies, training documentation, as well as the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz as per the court order. The Monitor requested to be included on the distribution list for all shift reports and any monthly reports that are required under the court orders in this case. The Monitor is very pleased with the level of cooperation, communication and responsiveness from the parties. Anytime the Monitor has requested documentation or explanation either prior to, during, or after the site visit, the parties have complied. Additionally, when the Monitor has made recommendations with regard to a process or procedure, document modifications, or policy changes, the Wisconsin Division of Juvenile Corrections Director and LHS/CLS Superintendent have been receptive and when possible, modified pursuant to the
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Monitor’s recommendations. Plaintiffs’ have also made themselves available to the Monitor and have shared any documentation that they believe would be helpful to the assessment. The Monitor requested a seven (7) day extension to file the draft status report as additional documentation was needed in order to complete this report.
SITE VISIT The first site visit by the Monitor took place on December 6-8, 2018. The Monitor reviewed materials provided by the parties prior to, during, and after the site visit. Materials included, but were not limited to, relevant court filings, policies, procedures, training documents, resident handbooks, room check logs, school schedules, recreation schedules, counselor logs, “Stop, Think, Act, Review,” (“STAR”) room documentation, video footage of OC spray incidents, all of the monthly data submitted to the parties per this court order, training records, work rules, position descriptions, employee leave data, grievance logs, behavior and treatment plans, mechanical restraint documentation, incident reports, restrictive housing documentation, and PbS data. The Parties were present during the site visit. Under the Consent Decree, the Monitor shall have access to LHS/CLS at any time for the inspections and site visits. Access included the ability to inspect and photograph all youth living areas, control rooms in housing units, visiting areas, areas where searches of students are conducted, any isolation or restrictive housing rooms or rooms used for such purpose, classrooms, counseling or social services rooms, and to speak with any youth in a private and confidential setting. The Monitor did take photographs, visited the above referenced areas, and interviewed youth and staff. The Monitor understands that a three-day site visit is just a snap shot overview of LHS/CLS.
In December 2017, the Wisconsin Department of Corrections (“DOC”), the Division of Juvenile Corrections (“DJC”) contracted with the Council of Juvenile Correction Administrators (“CJCA”) and the Center for Children’s Law and Policy (“CCLP”) to provide technical assistance to support their efforts in addressing the use of solitary confinement, pepper spray, mechanical restrains, and strip search policy and procedures. The Monitor was part of the team that offered technical assistance in February 2018 and thus, had the opportunity to do a site visit and assessment of LHS/CLS albeit in a different capacity. Therefore, the Monitor had familiarity with operations of LHS/CLS prior to this December site visit. The Monitor assessed compliance with the Consent Decree as well as the implementation of recommendations in the February technical assistance report.
GENERAL OBSERVATIONS
Physical Plant
The general areas of the facility were clean and orderly. LHS/CLS were decorated nicely for the holidays and the youth seemed to enjoy decorating the units. A holiday decoration contest was underway during the site visit and youth seemed highly motivated by the contest. Although the general areas were clean, the youth rooms and bathrooms were not. There needs to be a focus on youth rooms being clean and organized and the bathrooms being cleaned more regularly and
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thoroughly. There is a lot of graffiti and etching of glass throughout LHS/CLS. Efforts should be made to monitor youth more closely as well as painting over the graffiti and replacing etched glass so that visibility is improved into the youth rooms. Murals and artwork have been added to the visiting areas and a couple of the cottages. The Monitor encourages the continuation of brightening up the cottages with colorful paint, murals, and artwork to change the institutional feel as previously recommended in the February technical assistance report.
Youth Population
The average daily population is lower than it was in February by approximately 18% (dropping from 170 to 140). The Monitor did not observe any youth on living units in mechanical restraints which is a vast improvement from the February technical assistance visit. Staff should be commended for making this visible change. CLS (girls) were very talkative, active on their unit, and were actively participating in arts and crafts. The Monitor saw some staff engaging with youth, recreation was taking place, telephone calls were being made regularly, and religious volunteers were present on one of the boys’ units in which five boys were actively participating. However, there still seemed to be a lack of meaningful programming as pointed out in the February 2018 assessment report. That said, the facility has made some progress in reducing youth idleness and in-room placements but needs to continue these efforts. Recommendations were made in the February 2018 technical assistance report that should be implemented as to additional programming that would be beneficial to youth.
Staffing
Staffing problems continue to exist, and they continue to be serious, chronic, and dangerous. There are 311 total positions at LHS/CLS. Approximately 155 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”). Defendants have offered sign on bonuses as recommended in the technical assistance report which seemed to help in the filling of vacancies. Although the number of vacancies for the YC and YCA positions from February to December 2018 has significantly reduced, there are still significant staffing challenges. The teacher vacancy rate is significantly higher now than in February 2018. A focus needs to be made on recruiting teachers. Financial incentives have been added which hopefully helps with recruiting efforts. The Monitor understands that filling teacher vacancies and retention is a challenge throughout the country.

Position
Youth Counselor Youth Counselor Adv Teacher Social Worker

Vacancy Rate % as of February 20, 2018 48% (45 out of 94) 45% (27 of 60) 25% (7 of 28) 13% (2 of 15)

Vacancy Rate % as of November 28, 2018 22% (23 of 105) 18% (9 of 50) 39% (11 of 28) 14% (2 of 14)

YEAR

FMLA

FMLA 3

FMLA

FMLA/Workman’s

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2018
2017 2016 2015

Intermittent total Intermittent

Direct Care

43

34

38 29 33

Continuous Non-security 1
4 1 8

Comp Continuous Direct Care 18 (13 YC’s; 5 YCA’s) 1 0 0

In February 2018, there were approximately 48% of youth counselor positions vacant (45 of 94) and today there is about 22% vacancy (23 of 105). In February 2018, there were 45% of Youth Counselor Advanced positions vacant (27 out of 60), and today there is 18% vacancy (9 out of 50). Although the number of vacancies is reduced for direct care workers, the number of staff on leave (FMLA continuous and intermittent, Workers Comp’, and disability, etc.) are approximately 62 employees of the 311 allocated positions, which is about 20%. This number is significantly higher when looking at direct care staff (YC’s and YCA’s). Of the 155 direct care positions, 32 are vacant and another 18 are on some type of leave, which reflects a total vacancy of 32%. This does not include any benefit time the employees receive (vacation, sick, etc.) This means the number of posts needed to be covered due to vacancies is much higher than what LHS/CLS can cover. Perhaps non-traditional scheduling or scheduling changes can be created in the meantime or combining units in order to adequately supervise youth while still meeting legally mandated staffing requirements and ensuring the safety of youth and staff.

It would be very beneficial and useful for the facility to conduct a full staffing assessment to include a relief factor analysis looking at all leave types and its impact on staffing levels. A complete staffing analysis would provide the agency with an accurate relief factor based on all leave types, which would then allow for a more accurate assessment of the staffing situation. The Monitor can assist with this assessment.

In order to try and cover the posts needed, staff have been working double shifts often. The Monitor suggested tracking the number of staff working double shifts in order to better understand issues and also, to ensure that the same staff are not working double shifts consistently. It is unreasonable to expect staff to actively engage with youth, actively participate in training, understand and change the practices of the facility when they are working so many hours per week. The Monitor spoke to over 25 staff and the majority said they are tired, frustrated, and barely see their families and friends. Most staff live about 50 minutes from the facility which further exacerbates the problem. The vast majority of staff do not feel safe and do not feel they are adequately trained and prepared with the alternatives to pepper stray, confinement, and restraints. The perception from staff is no one cares about them and all the focus is on the youth. The Defendants will not be able to come into substantial compliance with the Court Order without solving the staffing issues. Staff wellness needs to be a focus moving forward. Several recommendations were made in the February 2018 technical assistance report that should be implemented.

The jurisdiction utilizes Performance Based Standards (“PbS”) which is a program for juvenile justice agencies, facilities, and residential care providers to identify, monitor, and improve conditions and services provided to youths using national standards and outcome measures. There

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are many PbS outcome measures including specific measures involving staff. PbS data, outcome measure Safety 14, reflects that 59.20% of staff report fearing for their safety at LHS and 45.95% at CLS report fear for their safety. Both rates are significantly higher compared to the 25.43% national field average. When asked “in your opinion, what would make this facility safer?”, staff responded:

LHS More staff

83 66%

Training

67 54%

Safety equipment 54 43%

Other

43 34%

Less overcrowding 16 13%

CLS More staff

24 65%

Training

23 62%

Safety equipment 15 41%

Other

11 30%

Less overcrowding 4 11%

Furthermore, when asked what training they would like to see, staff provided the following responses:
General behavior management Verbal de-escalation Gang training Adolescent development Safety and security Ethics Cultural diversity and awareness Communication Agency policies and procedures Appropriate staff/youth relationships Appropriate use of restraints Juvenile rights Use of isolation Incident reporting Aggression Replacement Therapy (ART)
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Suicide prevention Cognitive behavior programs Reporting, documenting and investigating allegations Of sexual abuse/victimization Sexual assault prevention Functional Family Therapy (FFT) LGBTQI First aid, CPR, AED Fire safety
Efforts should be made to incorporate these trainings identified by staff. For those trainings that are already implemented, perhaps the training can be offered more frequently. There are training and resource recommendations made in the February 2018 technical assistance report that need to be explored. The Monitor is happy to connect the Defendants with these resources.
In looking at the number one overall issue around the need for “more staff” and excessive overtime, recommendations for staffing could be pulling staff from other facilities and/or contracting with a private security company to supplement the staffing at LHS/CLS. The Monitor did note that the department is taking advantage of other agency staff, such as probation and parole staff to help cover posts. This was seen as a very positive approach for both facility staff and parole staff who seemed to enjoy the opportunity. Defendants are encouraged to explore increasing the use of other agency staff and ensuring that the staff meet the required training.
Recommendations for staff wellness were made in the February 2018 report and should be explored further. There were many recommendations that have not been implemented including, but not limited to more communication with staff regarding the reform effort, involving staff when developing programming and policy changes, creating policy driven staff recognition programs, and tap into staff ‘s talents, passions, and interests (artists, musicians, yoga etc.) to bring into programming. It is clear from the PbS data and interactions the Monitor had with staff that much more focus needs to be placed on staff wellness. This is a primary driver of the turnover issues and is a driving factor in the overall climate and atmosphere of the facility. Staff unhappiness and discontent is hindering any positive relationship building with the youth.
Finally, while the perceptions of staff and their fear for safety are real fears, the PbS data regarding staff assaults do not reflect that the facility or staff are less safe than they were in October of 2017. In fact, according to outcome measure, Safety 12 – Assaults on Staff, there were 50% fewer staff assaults during the October 2018 data collection cycle than there were during the October 2017 cycle at LHS. This reflected a change from eight (8) incidents down to four (4). The incident rate of assaults at LHS essentially tied the national field average rate of 0.11. This also holds true when looking at Safety 3 – Injuries to staff during the same data collection periods. Again, we see a 50% reduction in staff injuries at LHS, from eight (8) injuries in October 2017 to four (4) in October 2018. This is data that should be shared with staff.
Since PbS data collection cycles only occur twice a year, in April and October, it is recommended that the jurisdiction monitor incidents of assaults, fights, youth and staff injuries, and other critical outcomes measures on a monthly basis using the most recent PbS field averages as a guide to
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gauge the overall safety for staff and youth. The Monitor can provide an example of a monthly outcomes metrics data report that has been used in other jurisdictions if requested.
Quality Assurance
Data collection remains a significant problem at LHS/CLS. Data driven decision making is critical to the safety and quality of life of youth and staff. Data is not being accurately recorded, adequately collected or analyzed for incidents giving rise to this litigation. A quality assurance and improvement program need to be created to continuously assess not only compliance with this court order, but the quality and adequacy of the social and recreational programming provided, healthcare, education, environmental health and safety, and discipline and order. The Jurisdiction utilizes J Tracker which is a jail system that is being converted to a juvenile system. The Defendants have stated that this system can be modified to include other data measures as requested. The Monitor suggests that the Defendants work with the vendor to include other critical measures. Information put into the system is automatically generated but tracking of time is manual. Ideally, a plan should be developed for implementation of competent data collection with a focus on accuracy at the line staff level. Although many data points are collected as per the court order, the accuracy of the data is unable to be determined for several reasons i.e. lack of documentation, lack of electronic systems to automatically capture data, and lack of staff available whose sole responsibility is data collection and analysis.
LHS/CLS has become a Level 2 site for PbS. Levels of performance quantify how well a facility has mastered the basics of data collection, analysis, the processes of PbS teamwork and Facility Improvement Plan (“FIP”) monitoring. Level 2 means that there is a focus on the “Critical Outcome Measures” that PbS experts and practitioners have identified as the most important indicators of safety and order within a facility. The information about injuries, assaults, suicidal behaviors, isolation, screenings, restraints and staff and youth fear for safety that give an immediate picture of the facilities’ safety or violence. Because the facility is at a Level 2, they can now be part of the national field average. This reflects significant progress on the part of the agency/facility in quality of the data being recorded and captured for PbS data collection cycles. As stated previously, the use of a monthly outcomes metric report will greatly aid in the continued monitoring of critical outcomes measures and quality assurance practices.
Policies and Procedures
The policies and procedures that have been provided to the Monitor are Wisconsin Department of Corrections, Division of Juvenile Corrections and policies specific to LHS/CLS. DOC has identified sections of the administrative code that needs to be modified, but significant revisions have not yet occurred. The Monitor has been told implementation will take some time as it requires certain Codes to be repealed and recreated. All policies refer back to the administrative code and thus modifications to the administrative code should be a priority.
Policies are Division wide and the procedures are local. Local facilities (like LHS/CLS) can adopt the Division policy “as written” for the local procedure or create their own. If a local facility wanted to be more detailed than the Division policy, this would be done under facility and region procedures developed by DOC. Policies relevant to LHS/CLS need to be compliant with the
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federal court orders and should contain a quality assurance section for each and every policy. After review of the DOC DJC policies and procedures and local procedures, quality assurance is not part of the policies and reference to this litigation is not listed in the “references” section. Policy and procedure changes still need to be made as it relates to Youth Movement and Suspension of Movement, Use of Force (last updated 9/28/16), Searches of Youth (updated 10/16/18), Emergency Response Unit, and several others. The Monitor was pleased to see that the CARE team has been implemented as recommended in the February technical assistance report, however, a policy and procedure needs to be created which will clearly outline the mission of the CARE team, identify circumstances where CARE team will be deployed, and how staff are chosen for the CARE team. Also, many of the policies indicate “discuss at staff meeting.” Many policies and procedures replace old policies. There should be formalized training with employee sign offs acknowledging receipt and understanding. Effective proficiency testing for all training classes needs to be developed. The Monitor will continue to work with the Defendants on policy and procedure.
Youth Interviews
Plaintiffs’ counsel and the Monitor conducted several youth interviews. Approximately forty (40) youth were interviewed during the site visit. Several youths were able to identify staff that they thought were fair, consistent, and caring. There were also staff identified as being consistently disrespectful, dishonest, or manipulative. The common complaints from youth interviewed were lack of meaningful programming, delayed response to call lights (often indicated when a youth has to use the restroom because there is no toilet in their rooms), group punishment, and too much time being confined. Youth stated most staff do not interact with them other than directing them. The Monitor agrees with the youth’s assessment of staff interaction. This is not to say that there are not staff who actively engage with youth, but more staff need to engage with the youth in a productive manner. Youth also said that staff showed favoritism and points were often taken away for what they perceive as trivial reasons.
Youth found the grievance procedures confusing and did not really feel like their grievances were being heard or addressed. Several youths on RHU (Restrictive Housing Unit) admitted to being sent to the Unit because of fights with other youth, but others said they were sent for other reasons such as disrespecting staff, refusing to go into their rooms, or being in an unauthorized area or sent for a “cool off” period. When interviewing youth who have been OC sprayed, they complained that the decontamination process took over half an hour and sometimes longer. Currently, times of spray and times of decontamination are not being documented. The Monitor made a recommendation as to this documentation. All use of force incident reports should include a medical assessment form indicating the date and time of the use of force medical assessment and any injuries or medical concerns noted during the examination. This should be done for ALL use of force incidents, including physical, mechanical and chemical. This process ensures youth are assessed within reasonable time frames and documentation made of any injuries, conditions and treatments provided.
Overall, there have been significant improvements in various areas of concern, but there is still more work to do. Defendants need to revisit the February technical assistance report and develop a plan to implement the many recommendations contained within that will improve the quality of
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life and conditions for youth and staff. There needs to be more resources, specifically, dedicated staff allocated to make the necessary changes needed to improve conditions for youth and staff. Defendants also need to assess whether there is a need to bring in outside national experts on a temporary basis to assist in developing systems, programs, and assist in making the necessary changes in order to reach substantial compliance with the court order which will vastly improve the quality of life for youth and staff.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated, there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative. The Monitor will work with Defendants on this challenge.
A. Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court 's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Majority of youth are not confined in excess of seven days. However, there are challenges to reliability of documentation. The Monitor will work with Defendants on suggested form modifications and quality assurance program.
b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: N/A. It has not been seven months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: N/A. It has not been ten months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.
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2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:

COMPLIANCE STATUS: PARTIAL COMPLIANCE as to administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. There are instances where administrative confinement was used in situations where the Monitor would not consider the youth to be a risk for “imminent physical harm to others.” The Monitor will review confinement of youth with recommendations to forms/policies/procedures and incident reviews. N/A as to the remainder of the section as it has not been six months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.

a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12 hours) when:

1. A psychologist, psychology associate or psychiatrist recommends continued confinement because the youth poses a risk of imminent physical harm to others, and

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.

i i.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.

b. Administrative confinement time limits may be tolled from 8 pm to

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8 am.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. In general, time is being tolled from 8 pm to 8 am. The Monitor will review data collection, policies and procedures, forms, and quality assurance program in order to improve the current system of documentation.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a commenced plan.
COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.
d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.
COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s order. The Monitor will assess compliance at the appropriate time.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended pol icy.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Policy has been amended. However, the effective date of policy is inconsistent on each page. Training on policy changes has not occurred to date although the Monitor has been told it has been discussed in roll call. A Quality Assurance measure needs to be included in the policy.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: Non-Compliance. No room can be deemed “suicide resistant.” Most youth rooms were not clean and organized. Youth should receive hygiene items, blankets, sheets etc. Several rooms had multiple blankets/sheets covering large areas of the room making it difficult for staff to assess whether there is contraband that can be harmful to youth inside the rooms or assessing youth activity while in bed.
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Most rooms had graffiti and etching on the glass which makes it difficult for staff to clearly see the youth through the window. There are beds and screening in some rooms that create increased suicide risk. Additionally, room checks should be more frequent and accurately documented on an individual basis. The agency should consider investing in an electronic, software-based system to more effectively monitor and ensure that safety welfare checks are being completed as required. While not required by the court order, the Monitor recommends increasing the frequency of safety welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model.
b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth on Restrictive Housing Unit (“RHU”) have sinks and toilets in rooms, therefore youth have immediate access. A common complaint among youth in rooms without toilets is that staff are very slow to respond when they indicate they need to use the restroom. Several youths independently stated that they urinate and defecate in their garbage cans. Some youths believe that staff purposely delay their response. Enough youth stated this that administration needs to investigate this. There is no documentation to show whether this requirement is being met.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be modified and improved. The Monitor will work with Defendants on developing a quality assurance program.
d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed
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by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Monitor requested any documentation indicating that confinement is contraindicated. The Monitor was verbally told that at least one instance (a couple of months ago) where confinement was contraindicated for one youth. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04) Again, as with all policies, a section should be created to include quality assurance and monitored by facility administrators.
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Room check sheets are kept in the staff office and not kept on each individual door thus, contemporaneous recording is impossible. Every room should have individual room check sheets in which times are not pre-printed. A section should be included for staff to describe a youth’s activities while in room. The room checks in RHU are preprinted with times and only contain space for staff initials. Although the requirement in this court order is “at least every 30 minutes” the Monitor recommends that every youth should have a visual inspection at least every 15 minutes at staggered intervals. This is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Again, the agency should consider investing in an electronic, software-based rounds checking system to more effectively monitor and ensure that safety welfare checks are being completed as required. PSU Staff do visit youth daily.
f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. There appeared to be some rooms in RHU that were sterile. The Monitor could not confirm whether this was restricted as needed for safety. A youth in RHU should have property items similar to a youth in the general population. Documentation needs to be improved as to this requirement.

g. Youth in room confinement shall receive:

1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Social worker visits, mental health services, and other health services are provided however, there is a lack of documentation and quality of services is difficult to assess.

11. Any rehabilitative programming (e.g., Aggression Replacement Training, Juvenile Cognitive Intervention Program, etc.) that was scheduled or in process before placement in room confinement.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Programming is inconsistent. There is a lack of documentation as to specific programming that occurs on a daily basis. Also, there are occasions where staffing levels do not allow for planned programming.

111. Educational services with the general population to the extent practicable. If attending educational services with the general population proves unworkable due to an immediate and substantial threat of physical harm or an unreasonable risk of significant disruption to classroom instruction, youth in room confinement shall receive alternative educational services on days that the general population receives such services. Defendants shall ensure special education services for all eligible youth.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Educational Services for general population occur in the classrooms in the school area. Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in RHU do not receive educational services in the school area but remain on living units. Youth who are disruptive in class are referred to the STAR room in which youth are encouraged to reflect on their behavior. Youth fill out a STAR room log which asks what bothered them, where the incident happened, who bothered the youth, what they did, and asks the youth to identify what they need to be able to return to school successfully. Teachers told the Monitor most youth can return to class after their period of reflection. Some youth receive packets to be completed on the Unit. Youth are often “suspended” from school. According to PbS activity logs, youth are engaged in educational activities for 2.92

14

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hours a day at CLS and 3.33 hours per day at LHS. Youth should be engaged in educational activities as a primary program during normal school hours. This should be between 5-6 hours per school day. As reflected in the staffing section of this report, the current teacher vacancy rate of 39% (11 of 28 allocated positions) is mostly likely impacting the ability of youth to be in school for longer periods. There are approximately 12 youth who have high school diplomas or GEDs. There are classes available in welding, business class, and construction however youth do not seem to actively engage in these programs. The Monitor interviewed three graduates who indicated that they just cleaned or sat around the Unit. Staff should encourage participation and consider adding other programs that youth will participate. Educational hours need to be increased for all youth on a daily basis. The Monitor recommends that all youth regardless of status have education in the school area.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth on RHU were observed sitting in day room with no stimulation. Youth are only allowed out in groups of two in which they rotate back into room every 45 minutes. In youth interviews, youth stated they spend most of the time in their rooms and when they are out of their rooms, they can only talk with each other. No other form of entertainment or programming is offered. Recreational time is unstructured. Additionally, the PbS daily activity log reflects youth spend 5.84 hours a day at LHS and 3.29 hours a day at CLS in “other facility programs”. These programs need to be defined so that we can understand what these programs are and if these hours truly represent meaningful activities and/or programs.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

eating that meal out of the cell.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Majority of meals take place out of the room but there are occasions where youth eat meals in their rooms when there is not an immediate and substantial threat of physical harm. Should a youth eat a meal in their room, the decision by staff needs to be justified, supported by documentation, and instances need to be reviewed by facility administrators.

v1.

Minimum "out time" from the cell of at least 30 hours per

week and at least 3 hours per day. Time in general population

on a given day shall be credited to those hours.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that there are many instances where youth are not receiving 3 hours of “out time” per day and 30 hours per week. Documentation, data collection and reliability make it difficult for the Monitor to assess level of compliance.
5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth do utilize the grievance procedure. From October-November 2018, there were 41 “informal complaints”, 99 complaints dismissed, and 19 grievances affirmed. The grievance procedure is very confusing for youth and admittedly for staff. The Monitor suggests reviewing the grievance procedure with staff and youth involvement. The Monitor does suggest that a more robust tracking system be developed with a quality assurance piece that ensures grievances are being timely and appropriately addressed and communicated to youth.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation, data collection and reliability, and quality assurance needs to be improved.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Defendants need to continue to implement their OC reduction plan. There are youth still being sprayed for having their arms out of trap door, sprayed in instances where lesser means could have been used (video of several instances were watched during the site visit), and spray is being used to “prevent self-harm” when other means can be used. The OC reduction plan should involve training
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staff on a variety of de-escalation skills as well as a directive that OC should only be used in situations that present a serious life safety or threatening situation. The expanded use of CARE Teams can greatly assist in de-escalating situations and ultimately reducing the use of OC. Additionally, as recommended in the technical assistance report, a new incentive-based behavior management program that focuses on rewarding positive behavior should be created which will have a direct impact on youth behavior and thus, reduce the need for force of any kind. The following graph reflects the combined usage of OC at LHS and CLS in 2018.

25

20

15

10

9

5

0 1

LHS/CLS 2018 Combined Chemical Restraint Use

20

21

18

14

14

12

11

9

8

5

2

3

4

5

6

7

8

9

10 11 12

LHS/CLS Monthly OC Usage

2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.

COMPLIANCE STATUS: N/A. Compliance will be assessed by the Monitor at the time required under this section.
C. Mechanical Restraints. The following provision shall be effective immediately upon entry of the Court's order incorporating this Agreement: 1. Prohibition on types and uses of mechanical restraints. a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be
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improved, forms need to be modified, a quality assurance component needs to be created, and facility administrators need to monitor closely.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the youth regains control and when the threat of harm or the safety concern has abated.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraints are used much less than they were previously. There needs to be a continuous effort to monitor youth who are placed in mechanical restraints and consistent documentation.

c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

1.

Mechanical restraints may be used when ordered by PSU to

attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and a quality assurance mechanism in place.

11. Mechanical restraints may be used if the youth poses an immediate and substantial threat of physical harm to others.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and quality assurance mechanism in place.

i ii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and quality assurance mechanism in place.

d. Mechanical restraints shall never be used for punishment or 18

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discipline.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Use of mechanical restraints has been reduced significantly. Documentation needs to be improved and quality assurance mechanism needs to be in place to fully assess compliance.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate large majority of staff (over 90%) have training in physical force, restraints, and trained in proper de-escalation. However, documentation needs to be improved and a quality assurance mechanism needs to be in place.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
D. Strip Searches. The following provisions are effective immediately upon entry of
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the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although strip searches have significantly decreased, staff are doing a “hygiene” check which requires a youth to strip to underwear and bra which seems to be replacing the “strip search.” This type of search should only be used for the same reasons as a strip search (probable cause of youth possessing drugs or weapons that could not be discovered through less intrusive means).
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
3. Process for strip searches.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
d.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
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e. Strip searches must be conducted by staff trained in traumainformed practices.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that majority of staff have been trained in trauma informed care. Documentation needs to be improved as to strip searches.
f. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The majority of staff have been trained in the new MANDT training and other training which includes de-escalation skills training. The Monitor recommends increasing the training frequency for staff in order to increase their experience and skill levels in managing and de-escalating situations before they result in the use of restraint and/or isolation. Although there is a use of force review process, it needs to be thorough and comprehensive and include a corrective action plan when force was used where it could have been avoided. A review of instances where de-escalation was successful should be reviewed and used as a training tool. It is important for staff to have a variety of skills that they can rely on in these types of situations and to review actual events.
F. Programming. Immediately upon entry of the Court's order incorporating this agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many recommendations were made in the February 2018 technical assistance report that has not been implemented. The facility needs to increase meaningful program and activity hours in order to further reduce youth idleness hours. As mentioned previously, increasing education hours can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Some of the recommendations made in the February 2018 report have been implemented (hiring bonus for instance), but other recommendations have not been implemented such as creating staff recognition and wellness programs in order to retain current staff, utilizing suggested recruiting efforts, redrafting job descriptions and job postings which highlights the youth counselor aspect of position instead of “guard” or “corrections” description, rewrite position summary, reassess current staff schedules and placement, consider using ex-employees who left in good standing as contractual or part time staff to fill in the gaps, assessing and ensuring staff are working within the proper and approved staffing ratios.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
COMPLIANCES STATUS: DOC has identified sections of the administrative code that needs to be modified, but significant revisions have not yet occurred. The Monitor has been told implementation will take some time as it requires certain Codes to be repealed and recreated. All policies refer back to the administrative code and thus modifications to the administrative code should be a priority.
II. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy
22

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superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although reviews occur for most incidents, the reviews often occur well after the 24-hour timeframe. Often the “reviews” do not occur until 3-4 weeks after the incident. All staff involved are not brought together for meaningful discussions. When it has been determined lesser means could have been used, there is not a corrective action plan developed. The Monitor made suggestions to the Superintendent as to his section.
B. Quality assurance. The superintendent shall establish performance goals, including compliance with the terms of this settlement; shall analyze data on whether those goals are met; and shall put in place immediate corrective action to address goa ls that are not being met.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. (Please see the “general observations” section of this report to the court for explanation.)
CONCLUSION The Monitor hopes that her report is useful to the Court and the parties. The Monitor is happy to answer any questions or address any concerns by the Court or the parties. Respectfully Submitted, Teresa Abreu Monitor
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 Case: 3:17-cv-00047-jdp Document #: 110 Filed: 04/17/19 Page 1 of 25

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

SECOND REPORT OF THE MONITOR

Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
The First Report of the Monitor was filed with the Court on January 13, 2019. The Monitor’s second report will focus on assessing compliance with the Consent Decree, implementation of recommendations in the February 2018 technical assistance report, and comment on any observations and/or updates from the last site visit which took place December 6-8, 2018.
SITE VISIT The second site visit by the Monitor took place on March 8-11, 2019. The Monitor reviewed materials provided by the parties prior to, during, and after the site visit. Materials included, but were not limited to: policies, procedures, resident handbooks (including the pilot Krueger program), grievances, school schedules, recreation schedules, counselor logs, various staff memos and daily shift reports, video footage of use of force incidents, all of the monthly data submitted to the parties per this court order for the months of December through February, unit rules, work rules, employee leave data, employee corrective action reports, behavior and treatment plans, mechanical restraint documentation, incident reports, other housing documentation, and various proposals for capital projects such as paint, furniture, and electronic room monitoring systems. The Parties were present during the site visit. The Monitor took photographs, toured LHS/CLS, and interviewed youth and staff. Approximately thirty-four (34) youth and twenty-five (25) staff
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were interviewed by the parties.
The Monitor learned that in January of 2019, newly elected Governor Evers and Secretary Carr and other members of their staff toured LHS/CLS. Governor Evers and Secretary Carr spoke to youth and staff during this visit and spent time with the leadership team. Secretary Carr and Deputy Secretary Pechacek visited LHS/CLS on February 11, 2019 to tour and talk with youth and staff. Based on interviews with youth and staff, these visits had a positive impact as they were able to provide feedback as it relates to daily life at LHS/CLS and meet the new administration in person. Additionally, the Monitor met with Secretary Carr and members of his staff in Madison, Wisconsin after completion of the LHS/CLS site visit. The Monitor debriefed with Secretary Carr and he and his team expressed a commitment to improving conditions for youth and staff at LHS/CLS.
GENERAL OBSERVATIONS
Physical Plant
The general areas of the facility were clean, however youth living units were not as clean as the last site visit. Unfortunately, during this site visit, LHS/CLS had more of an institutional feel as the holiday decorations that were displayed during the last visit were not replaced with other decor and there did not appear to be any changes with respect to paint color, murals, furniture, etc. as recommended in the previous Monitor report and the February 2018 technical assistance report. Much of the unit signage (youth behavior expectations) were written in a negative tone with a lot of bold “DO NOT” “NOT ALLOWED” “DO NOT ENTER!!!!”. There was still a lot of graffiti and etching of glass throughout LHS/CLS. The Monitor was told that staff are working on getting the glass in the doors replaced when etching obstructs the staff’s view into the room and they were working on painting over the graffiti. Defendants informed the Monitor that there was a bid for painting the interior of the cottages and that there will be a youth program to further decorate the walls with murals and artwork once the base painting project is completed. Youth rooms and bathrooms remain unchanged in terms of cleanliness. There needs to be a continued focus on youth rooms being clean and orderly and the bathrooms being cleaned more regularly and thoroughly. Overall, there was not an improvement in the overall physical plant. Furthermore, several serious incidents occurred in which youth have used furniture and other unsecured unit equipment during unit disturbances to facilitate escapes from their housing units and used debris from these disturbances as potential weapons against staff. Safety and security searches of all buildings need to be conducted to remove excessive objects, materials, equipment, furniture, etc., to enhance the safety and security of the units/buildings. Defendants should consider replacing existing furniture with furniture that is specifically designed and engineered for secure environments. The Monitor is hopeful that there will be noticeable improvement as to cleanliness, reduced graffiti, and etched glass during the next site visit.
Living Unit/School Observations
The average daily population is 145 which is the same as that of the last site visit. Some of the
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cottages were combined due to population and staff shortages. The Monitor saw some staff engaging with youth, several youths were out cleaning, recreation was taking place, and telephone calls were being made. The Monitor did observe tournaments taking place and the volunteers in the Foster Grandparent’s program were interacting with youth. As recommended in the technical report, a youth advisory council has been implemented, however, the Monitor made some suggested modifications. The Monitor saw a significant amount of idle time for youth during the site visit. Recommendations were made in the February 2018 technical assistance report that should be implemented as to additional programming that would be beneficial to youth.
The boys’ cottages were similar to the last visit, but the Monitor observed significant differences in the girls’ cottage. All the girls were on the King unit. The girls, in general, were less jovial, less talkative, less active on their unit, were not actively engaged in programming, and seemed quite agitated. There was a noticeable difference in the attitudes of the girls during this site visit. During the last visit, the girls were laughing, making popcorn, interacting with staff and youth in a positive manner, and were doing artwork. There was no decoration or artwork in King during this visit. The Monitor asked staff for the room logs and staff could not find them (Monitor wanted to look at confinement documentation.) Everything written in the unit for the youth was written in a negative tone as described above. The girls’ mugshots were taped to the tables which is where each girl is assigned during out time. It was reported that the girls’ school and recreation activities were more limited than they were during the last site visit. It was reported that the girls were not allowed to use the main school or main gym as a consequence for passing notes to the boys. It would be helpful for the agency to utilize a consultant to focus on gender specific programming to enhance the programs and activities for the girls’ facility.
With respect the boys’ cottages, generally all the youth rooms were messy and dirty. The Monitor reviewed the “counselor logs” which document name of staff, youth safety/welfare checks, counts, and activity on each living unit and none of the documentation complied with policy/procedure, this Court Order, and/or best practices. In Curtis, 17 out of 24 youth were confined to their rooms (something that was, improperly, not documented as “room confinement”). Youth that were in the day room were playing cards. There was explicit graffiti on the walls and the living unit smelled. Staff were positioned in or near the staff office on the unit and were not in the lower day room with youth. Youth on Black Elk were out eating when the Monitor toured. Staff were not observed eating or sitting with youth but were positioned in or near the staff office on the unit. The Monitor was happy to see that all the youth were out of their rooms and the atmosphere was more relaxed than the other living units. Adams (intake unit) had a lot of graffiti on the walls. Youth rooms on Roosevelt (where the TIP program is now located) were cleaner than the other living units. Mug shots were taped on the youth doors. Staff were eating with youth and staff were engaged with the youth. On Krueger, only two youth are allowed to be in the day room at a time which means there is significant confinement on this unit. At the time of the site visit, Krueger was no longer the Restrictive Housing Unit (“RHU”) but is operating under a new “Krueger Program” which in a number of respects does operate as restrictive housing. The Krueger program includes Phases 1-3, with youth progressing from more to less restrictive situations. Youth in the Krueger Program reported that there were a lot of limitations and that the program was not run like general population. Here again, it is highly recommended that the agency hires a consultant to help with programming and activities for the boys.
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The school seemed less controlled than last visit. Some of the windows in the classrooms had paper over the windows, which is a safety concern as staff cannot see inside the rooms. Foster Grandparents were present and engaged. Teachers reported that 50% of the youth were in special education, yet there are only three special education teachers. The teachers seemed to enjoy their job, but they are struggling with staff shortages and wish there was more technology available. Some classrooms had youth actively engaged and others had several youths with heads down and/or sitting on top of desks and being disruptive with no redirection from teachers. The Defendants asked for an education consultant, and the Monitor has made recommendations.
Staffing
Staffing problems continue to exist at LHS/CLS. There are 311 total positions at LHS/CLS. Approximately 155 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”)). The Defendants have made significant progress with the number of vacancies for the Youth Counselor positions, however there are still a large number of staff on various leaves of absence (FMLA/Workers’ Comp, etc.) which contributes to the staffing shortages. Staffing challenges remain as evidenced by the number of staff working overtime/double shifts. The teacher vacancy rate remains unchanged and recruiting remains a challenge.

Position
Youth Counselor Youth Counselor Adv Teacher Social Worker

Vacancy Rate % as of February 20, 2018
48% (45 out of 94)
45% (27 of 60)
25% (7 of 28) 13% (2 of 15)

Vacancy Rate % as of November 28, 2018 22% (23 of 105)
18% (9 of 50)
39% (11 of 28) 14% (2 of 14)

Vacancy Rate % as of March 14, 2019
15% (16 out of 105)
26% (24 out of 50)
39% (11 of 28) 0% (14 of 14)

The Monitor recommended combining living units in order to adequately supervise youth while still meeting legally mandated staffing requirements and ensuring the safety of youth and staff. The Defendants have combined cottages as recommended in the technical assistance report, but non-traditional scheduling or scheduling changes have not been considered. In the last report, the Monitor recommended that the facility conduct a full staffing assessment to include a relief factor analysis looking at all leave types and its impact on staffing levels. To date, this has not occurred.
The Monitor spoke to over twenty-five (25) staff and the majority said they are tired and often work double shifts several days in a row. The vast majority of staff do not feel safe and do not feel they are adequately trained and prepared with the alternatives to OC spray and reduction/elimination of confinement. The Defendants will not be able to come into substantial compliance with the Court Order without solving the staffing issues. The Monitor cannot stress enough the need to make staff wellness a major focus moving forward. Recommendations for staff wellness were made in the February 2018 technical assistance report that should be explored further. Although there was communication with staff and youth regarding the reform effort
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(written and verbal), the Monitor recommended that the message be communicated differently, which the Monitor shared during the site visit. As recommended in the technical assistance report, staff are engaged in developing programming and policy changes. The Monitor saw that there were employees recognized as “Employees of the Month.” The Defendants should continue to create policy driven staff recognition programs, and tap into staff’s talents, passions, and interests (artists, musicians, yoga etc.) to bring into programming. Staff exhaustion, fear, and discontent are hindering any positive relationship building with the youth.
The hearing officer position has been eliminated due to the restrictive housing unit (“RHU”) being eliminated and replaced with a new pilot “Krueger Program.” The Monitor believes that there is a need for this position particularly in light of youth interviews (in more detail below). During this site visit, the Monitor spent time with the mental health staff (PSU) and the recreation staff and was very impressed with the level of energy, commitment and shared vision for what programming can look like at LHS/CLS. The Monitor suggests modifying the mental health and recreational staff work schedules to include more evening and weekend hours which is when youth idleness is at the highest. The Monitor believes this would have a huge impact on youth and staff.
Quality Assurance
Data collection continues to be a significant problem at LHS/CLS. The Monitor stressed the fact that data-driven decision making is critical to the safety and quality of life of youth and staff, as well as to ascertain compliance with the Court Order. Data continues to not be accurately recorded, adequately collected or analyzed for incidents giving rise to this litigation. Not only does there need to be additional data measures, but a plan should be developed for implementation of competent data collection with a focus on accuracy at the line staff level (i.e. safety/welfare check logs, incident reports, use of force incidents, all confinement, youth idleness, grievances, educational hours per youth, etc.).
The jurisdiction utilizes Performance Based Standards (“PbS”) which is a program for juvenile justice agencies, facilities, and residential care providers to identify, monitor, and improve conditions and services provided to youths using national standards and outcome measures. The Monitor cannot include updated outcome measures in this report because PbS data collection cycles only occur twice a year, in April and October. When it becomes available, the Monitor will update the Court.
The Monitor recommended that the jurisdiction monitor incidents of assaults, fights, youth and staff injuries, and other critical outcomes measures on a monthly basis using the most recent PbS field averages as a guide to gauge the overall safety for staff and youth. During the site visit, the Monitor met with the Department of Juvenile Corrections Program and Policy Chief in which the Monitor provided examples of a monthly outcomes metrics data report (separate from the PbS outcome measures) that would be beneficial to the overall safety and quality of life for youth and staff. The Monitor will update the Court on any data improvements in the next report.
To address the need for a quality assurance and improvement program, the Defendants have created two new positions (Quality Assurance Specialist and Program and Policy Analyst). The goal will be to continuously assess not only compliance with this Court Order, but the quality and
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adequacy of the social and recreational programming provided, healthcare, education, environmental health and safety, and discipline and order. The Monitor is happy to work with the individuals selected for these positions. It is clear from discussions with Secretary Carr and his staff that this will be priority hiring.
The Program and Policy team for the Division of Juvenile Corrections should work with the vendor (J-Tracker) to include other critical measures as described during the site visit. The Monitor continues to have difficulty assessing accuracy of the data because of the lack of documentation, lack of electronic systems to automatically capture data, and lack of staff available whose sole responsibility is data collection and analysis. To address the data issues, the Defendants have created two new positions, identified funding for experts as recommended by the Monitor, and an electronic room check system was tested recently (a module of a currently existing system) and is being piloted at LHS/CLS.
Policies and Procedures
Significant revisions to policy and procedure and Administrative Codes have not yet occurred. The Monitor does not have any updates as to when certain Codes will be repealed and recreated. All policies refer to the Administrative Code and thus modifications to the Administrative Code should be a priority as stated in the First Report of the Monitor.
Policies relevant to LHS/CLS need to be compliant with the federal court orders and should contain a quality assurance section for every policy. After review of updated DOC DJC policies and procedures and local procedures, quality assurance is still not part of the policies and reference to this litigation is not listed in the “references” section. Policy and procedure changes still need to be made as it relates to Security and Inspections, Mental Health Screening, Mechanical Restraints, Clinical Observations, Youth Movement and Suspension of Movement, Use of Force, Searches of Youth (not compliant with Court Order), Emergency Response Unit, and several others. The Monitor was pleased to see that the CARE team has been implemented and is being regularly utilized, however, a policy and procedure needs to be created which clearly outlines the mission of the CARE team, identify circumstances where CARE team will be deployed, describes how staff are chosen for the CARE team, and includes a quality assurance section. The Monitor suggests increasing the CARE team as it appears they are successful at deescalating situations and their hours of operation should be extended to evening and increased weekend hours when youth are not in school. Also, many of the policies continue to indicate “discuss at staff meeting.” There should be formalized training with employee sign offs acknowledging receipt and understanding. Effective proficiency testing for all training classes still needs to be developed. The Monitor will continue to work with the Defendants on policy and procedure.
Youth Interviews
Plaintiffs’ counsel and the Monitor conducted several youth interviews. Approximately thirty (34) youth were interviewed during the site visit (formally and informally).
Several youths were able to identify staff that they thought were caring and often interacted with them in a positive way. There were also staff identified as being consistently disrespectful, unfair,
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exhibited favoritism, and provoked youth to act out. Youth stated most staff do not interact with them other than directing them. Youth reported several inconsistencies involving staff not following the grievance procedure, program rules, phone restrictions, canteen, and inconsistencies in the staff assigned to the various living units. This is not to say that there are not staff who actively engage with youth, but more staff need to engage with the youth in a productive manner.
The common complaints from youth interviewed were that they were bored and had nothing to do (not enough programming or activities) and too much time being confined (both for misbehavior and for administrative reasons, including inadequate staffing and/or lack of other activities for them to do). Youth disliked split hallway times (half of youth locked in rooms while remainder are out in day room). Youth who spent time in RHU had the same complaints as stated in the Monitor’s last report. RHU was eliminated in January 2019 and replaced with the pilot “Krueger Program.” Youth in the “Krueger Program” reported that they are being confined alone in their cells without due process, had no television privileges except educational programs, limited education, were not offered recreation in “Phase 1” of the program, and felt it was similar to RHU.
Youth also stated that strip searches were occurring. When interviewing youth who have been OC sprayed, they complained that they were unjustly sprayed, and the decontamination process took a long time. Youth complained of delayed response to call lights (often indicated when a youth has to use the restroom because there is no toilet in their rooms).
The Monitor found that much of what youth reported was accurate. When touring the all of the living units, youth were often confined. (even youth outside of TIP and Krueger). When reviewing confinement logs, the logs did not reflect confinement time as staff believe time spent alone in a cell for “cool offs,” counts, “resets,” split hall out time, and periods of positive behavior (“PPB”) were not confinement time. Staff did not think that time spent alone in a cell by any youth not in Krueger for whatever reason, including for reasons related to a youth’s own behavior, to the behavior of other youths, to lack of activities, or for other administrative reasons was confinement time which should be documented. The Monitor observed that when youth were out of their rooms, most were not engaged in structured programming. Most (not all) staff were not engaging with youth in a positive manner but were usually standing arms crossed and verbally directing youth to do one thing or another. With respect to the youth statements regarding staff not responding to their call lights timely or at all, this was confirmed in a survey and camera review. 10 out of 10 youth reported staff not responding timely to the lights in their room.
With respect to the youths’ statements on OC usage and decontamination, the Monitor reviewed some documentation that shows the time between spray and decontamination is excessive. Also, in reviewing video of several OC spray incidents, there were lesser means available. The threat of OC Spray is made often, as documented in the daily shift reports.
The Monitor observed (and youth reported) several positive interactions between youth and staff. One youth did report that LHS is “way better than before” and was much happier. Some youth liked being in the Krueger Program and spoke positively of the staff and structure. Youth generally liked the food offered at LHS/CLS. Youth really enjoyed when staff sat with them at meals, or at the tables when the youth were conversing with friends. Youth enjoyed playing games with the staff and enjoyed the basketball and ping pong tournaments.
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The Defendants have made efforts to identify and contact community partners to increase programming at LHS/CLS such as technical schools, local colleges, Boys and Girls Club, and various ministries. Hopefully, there will be continued movement on bringing in community partners. There have been be more resources identified, specifically, positions created for dedicated staff allocated to make the necessary changes needed to improve conditions for youth and staff, funding for various capital projects and national experts on a temporary basis to assist in developing systems, programs, and assist in making the necessary changes to reach substantial compliance with the Court Order. Defendants need to continue revisiting the February technical assistance report and develop a plan to implement the recommendations contained within that will improve the quality of life and conditions for youth and staff.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated, there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative.
A. Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court 's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although the official data shows that there was not a single youth in punitive confinement in excess of seven days during this review period, however, documentation of youth time in room confinement is inconsistent and inadequate. Given the long-standing staffing deficiencies, there is an urgent need to also explore methods for promptly reducing youth populations. This might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law. During the site visit, there was much discussion on the definition of “punitive” confinement. The Defendants believe since RHU has been replaced by the Krueger Program, that there is no administrative or punitive confinement or need for due process. The Monitor deemed many instances of confinement as punitive but because staff did not view these as punitive, there is no data available to assess compliance Also, because confinement logs are not accurately recorded, the Monitor cannot assess the pre-hearing and post-hearing time. One youth (female) reported being on PPB (“Periods of Positive Behavior”) in excess of 7 days. The Monitor can say that the majority of youth are not confined in excess of seven days.
b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating
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this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: N/A. It has not been seven months after entry of the Court’s order on September 21, 2018). The Monitor will assess compliance at the appropriate time.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: N/A: It has not been ten months after entry of the Court’s order incorporating the Agreement. The Monitor will assess compliance with this section at the applicable time. However, the Monitor suggests that the parties and Monitor have a further discussion on what constitutes “punitive” confinement ahead of the established elimination timeframe because there are several types of confinement currently utilized – inside and outside the Krueger program - that the Monitor would deem “punitive.” These include (but are not necessarily limited to) PPB, Resets, Cool offs as being used at LHS/CLS, “reflection,” and times when youth are confined due to some youth acting up on a unit.
2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:
COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s September 21, 2018 Order. The Monitor will assess compliance at the appropriate time. If Defendants implement “administrative confinement” in the way it was during the visit, with PPB substituting for it, the Monitor believes this may violate this Agreement.
a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12
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hours) when:
1. A psychologist, psychology associate or psychiatrist recommends continued confinement because the youth poses a risk of imminent physical harm to others, and

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s September 21, 2018 Order. The Monitor will assess compliance at the appropriate time.

i i.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s September 21, 2018 Order. The Monitor will assess compliance at the appropriate time

b. Administrative confinement time limits may be tolled from 8 pm to 8 am.

COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Although it has not been six months after entry of the Court’s September 21, 2018 Order, time is being tolled from 8 pm to 8 am.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a
commenced plan.

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s September 21, 2018 Order. The Monitor will assess compliance at the appropriate time.

d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.

COMPLIANCE STATUS: N/A. It has not been six months after entry of the Court’s September 21, 2018 Order. The Monitor will assess compliance at the appropriate time.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended pol icy.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. DJC Clinical Observation policy 500.70.24 was updated on 9/19/18 and dates were corrected. Training on policy changes has not occurred to date although the Monitor has been told it has been discussed in roll call. The Monitor saw meeting notes reflecting the change. The Monitor suggests a more formal

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training and staff sign off reflecting they read and understand policy. Additionally, a quality assurance mechanism needs to be created.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: Non-Compliance. The Monitor would not deem any room in any facility as being “suicide resistant,” however there are safety and security measures that can be put into place to reduce the risk of suicides. With respect to youth rooms, there is no change from the last site visit. Most youth rooms were not clean and organized. Several rooms had multiple blankets/sheets covering large areas of the room making it difficult for staff to assess whether there is contraband that can be harmful to youth inside the rooms or assessing youth activity while in bed. Most rooms had graffiti and etching on the glass which makes it difficult for staff to clearly see the youth through the window. There are beds and screening in some rooms that create increased suicide risk. The Monitor has been told and shown that quotes have been received to replace the furniture in rooms and other modifications.
Room checks are not well documented and not being done on an individual basis. The Monitor personally observed that room check forms continue to be kept in the staff office. Safety/welfare documentation show that room checks are not being completed in staggered intervals and some were completed more than 30 minutes apart. The Monitor also observed staff fill in the logs well after the fact and not contemporaneous with the room check. The Monitor recognizes that an electronic system is being explored by the agency, but this will take some time. Safety/welfare checks need to be a priority and the Monitor hoped that the recommendations made would have been implemented by the time this second site visit occurred. While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model.
b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. A common complaint among youth in rooms without toilets (dry rooms) is that staff are very slow to respond when they indicate
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they need to use the restroom. Administration investigated this complaint and it was proven that this is in fact occurring frequently. There is no documentation created to show whether this requirement is being met or not. Defendants need to create a form, policy, and quality assurance measures as to this section and others. Administration needs to continue to investigate and hold staff accountable until the problem is fixed. Staff need to be held accountable should an investigation reveal the delay is purposeful.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has been improved but still needs more improvement. Time of call to PSU staff is now being documented on the incident report. This requirement should be included in the development of a quality assurance program.
d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Monitor requested any documentation indicating that confinement is contraindicated and there were no instances documented. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04) Again, as with all policies, a section should be created to include quality assurance and monitored by facility administrators.
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in
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room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor’s recommendations remain the same as the last report to the Court. Safety/welfare checks continue to be kept in the staff office and not kept on each individual door thus, contemporaneous recording is impossible. Every room should have individual room check sheets in which times are not pre-printed or pre-written. A section should be included for staff to describe a youth’s activities while in room. Although RHU no longer existed at the time of the site visit, it did exist during this reporting period. The room checks in RHU are preprinted with times and only contain space for staff initials. Review of staff discipline showed that staff were not disciplined for failure to complete these checks/falsifying. Although the requirement in this Court Order is “at least every 30 minutes” the Monitor recommends that every youth should have a visual inspection at least every 15 minutes at staggered intervals. This is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. The agency should make an electronic, software-based rounds checking system a priority. PSU staff do visit youth daily when on site.

f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Some rooms contained more property than outlined in handbooks. Some rooms had less property in their rooms (RHU, Targeted Intervention Unit (“TIP”) and Krueger Unit). Because staff do not consider “PPB,” “resets,” “reflection,” “cool offs,” or on occasions where they confine youth to their rooms if/there is a situation on the living unit involving a couple/few youth, etc. as confinement, the Monitor could not confirm whether this was restricted as needed for safety. Documentation needs to be improved as to this requirement and confinement needs to be recorded.

g. Youth in room confinement shall receive:

1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Social worker visits, mental health services, and other health services are provided, however there is a lack of

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documentation and quality of services is difficult to assess.
11. Any rehabilitative programming (e.g., Aggression Replacement Training, Juvenile Cognitive Intervention Program, etc.) that was scheduled or in process before placement in room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Programming is inconsistent. There is a lack of documentation as to specific programming that occurs daily. There does not seem to be programming when youth are on PPB or, according to the Krueger handbook, in Phase 1 of the program. Also, there are occasions where staffing levels do not allow for planned programming. In addition to the concerns about formal rehabilitative programming, there is also a significant lack of other activities for youth to engage in, resulting in excessive amounts of idle time and excessive hours of room confinement. This occurs especially, but not only, on weekends).
111. Educational services with the general population to the extent practicable. If attending educational services with the general population proves unworkable due to an immediate and substantial threat of physical harm or an unreasonable risk of significant disruption to classroom instruction, youth in room confinement shall receive alternative educational services on days that the general population receives such services. Defendants shall ensure special education services for all eligible youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Educational Services for general population occur in the classrooms in the school area. Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in RHU/Krueger do not receive educational services in the school area (except for youth on Phase 3) but remain on living units. RHU “secure treatment unit out time record” reflect less times spent in education than do the PbS activity logs, although it is unclear how accurate the RHU (Krueger) records are. Secure treatment unit out time records raise significant concerns as to what, if any education the youth in Krueger are receiving. A review of the logs in February show many days where no education is listed or only shows one period of education. The youth receive packets to be completed on the Unit. Youth continue to be “suspended” from school. PbS data is not available for this reporting period, however, it does not appear that youth are engaged in educational activities for more time than during the last visit. Youth stated in interviews that they often do not attend classes or participate in educational services. Youth should be engaged in educational activities (regardless of unit) as a primary program during normal school hours. This should be between 5-6 hours per school day. As reflected in the staffing section of this report, the current teacher vacancy rate remains at 39% (11 of 28 allocated positions) is mostly likely impacting the ability of youth to be in school for longer periods. There are classes available in welding, business class, and construction, however youth do not seem to actively engage
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in these programs. Moreover, youth who have graduated are reportedly not allowed to participate in these programs at all. Staff should encourage participation and consider adding other programs that youth will participate in. Educational hours need to be increased for all youth on a daily basis. The Monitor recommends that all youth regardless of status have education in the school area or, at a minimum, off their living unit. The Monitor also recommends culturally relevant programming/materials be offered. The Monitor has also connected the agency with an education consultant who can be used to assist in enhancing the education program.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth are only allowed out in groups of two in which they rotate back into room every 45 minutes in the new Krueger program and former RHU according to staff. In youth interviews, youth stated that they spend most of the time in their rooms and when they are out of their rooms, they do not really do anything. There is not any real programming in Phase 1 of the Krueger Program and not a lot in Phase 2. There is limited out time, limited phone calls, no or little television, youth cannot move without permission and have assigned seats, and the limited amount of recreational time is unstructured. Phase 3 has a little more sensory stimulation. The Monitor recognizes that the Krueger program is in pilot form, and will further assess at the next site visit, but the Monitor recommends that the leadership re-evaluate the program to ensure compliance with the Court Order and technical assistance report. Enhancing programs and meaningful activities for the Krueger program should have a positive impact and allow for youth to be out of their rooms for significantly longer periods of time than is now being achieved.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

eating that meal out of the cell.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Majority of meals take place out of the room but there are occasions where youth eat meals in their rooms when there is not an immediate and substantial threat of physical harm. The Monitor witnessed some youth eating in their rooms and have seen this documented in shift reports. Should a youth eat a meal in their room, the decision by staff needs to be justified, supported by documentation, and instances need to be reviewed by facility administrators.

v1.

Minimum "out time" from the cell of at least 30 hours per

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week and at least 3 hours per day. Time in general population on a given day shall be credited to those hours.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that there are many instances where youth are not receiving 3 hours of “out time” per day or 30 hours per week. This is particularly true on weekends and on other days when there is no school, and for youth in Krueger Phase I or PPB. However, actual non-compliance may be more extensive due to the failure to document many forms of room confinement throughout the facility and the lack of consistent contemporaneous documentation. Documentation, data collection and reliability make it difficult for the Monitor to assess level of compliance, and the failure to improve data collection may result in a future finding of non-compliance.
5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many youths utilize the grievance procedures. However, youth still feel the process is confusing and some reported that staff were not following the grievance procedure as required by policy. It is not clear whether youth are being told that they can grieve their placements in room confinement at all (or within 15 minutes of placement). Moreover, because staff are not considering PPB, resets, reflection, and many other forms of room confinement as confinement, the Monitor does not believe this requirement is being met in such situations (i.e. staff is not providing the required notice because they do not believe they have to do so). The Monitor does suggest that a more robust tracking system be developed with a quality assurance piece that ensures grievances are being timely and appropriately addressed and communicated to youth. The Monitor described and showed examples of quality assurance measures to create. The Court Order requires documentation of all forms of room confinement which is not being done. Documentation needs to be implemented and consistently applied to all situations, other than sleeping hours, in which youth are confined alone in their rooms, regardless of what unit they are in or the reason for the confinement. The failure to do so may result in a future finding of non-compliance.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation, data collection
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and reliability, and quality assurance needs to be improved.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Defendants need to continue to implement their OC reduction plan. On 2/1/19 Defendants moved into the second phase of OC removal from posts. Currently one person on each unit is carrying OC (the patrols/responders, and the supervisors) There are youth still being sprayed in instances where lesser means could have been used (video of several instances were viewed during the site visit), and spray is being used to “prevent self-harm” when other means could have been used. The OC reduction plan should involve training staff on a variety of de-escalation skills as well as a directive that OC should only be used in situations that present a serious life safety or threatening situation. The expanded use of CARE Teams can greatly assist in deescalating situations and ultimately reducing the use of OC. Additionally, as recommended in the technical assistance report, a new incentive-based behavior management program that focuses on rewarding positive behavior should be created which will have a direct impact on youth behavior and thus, reduce the need for force of any kind. There has been a significant decrease in the use of OC spray over the last three months (eighteen (18) incidents from December through February compared to forty (46) incidents the prior three months). There remains a need to focus on staff de-escalation training and skills development as well as a need to improve the overall atmosphere and culture of the environment in order to reduce incidents of violence. Merely reducing or modifying the intervention protocols for these types of incidents is not a sufficient response.
The below graph reflects the combined usage of OC at LHS and CLS in 2018/2019.

LHS/CLS 2018 Combined Chemical Restraint Use

25

20

21

20

18

15

10 9

9

5

14

12

11

8

5

14 10
5 3

0

Jan 18 Feb 18 Mar 18 Apr 18 May Jun 18 Jul 18 Aug 18 Sep 18 Oct 18 Nov 18 Dec 18 Jan 19 Feb 19

18

LHS/CLS Combined

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Case: 3:17-cv-00047-jdp Document #: 110 Filed: 04/17/19 Page 18 of 25

2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.
COMPLIANCE STATUS: N/A. Compliance will be assessed by the Monitor at the time required under this section.
C. Mechanical Restraints. The following provision shall be effective immediately upon entry of the Court's order incorporating this Agreement:
1. Prohibition on types and uses of mechanical restraints.
a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor did not personally see any youth in mechanical restraints during site visits, but logs show there are occasions where youth are placed in mechanical restraints and there was one instance of a youth in the belt restraint. Although documentation needs to be improved, there seems to have been considerable improvement made in this area. With better documentation, and quality assurance measure, Defendants may be close to achieving substantial compliance with this provision.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the youth regains control and when the threat of harm or the safety concern has abated.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraints are rarely used. There needs to be a continuous effort to monitor youth who are placed in mechanical restraints and consistent documentation. It is difficult to measure compliance based on lack of documentation.

c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

1.

Mechanical restraints may be used when ordered by PSU to

attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be

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improved and a quality assurance mechanism in place.
11. Mechanical restraints may be used if the youth poses an immediate and substantial threat of physical harm to others.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and quality assurance mechanism in place.
i ii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and quality assurance mechanism in place.
d. Mechanical restraints shall never be used for punishment or discipline.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Use of mechanical restraints has been reduced significantly. Documentation needs to be improved and quality assurance mechanism needs to be in place.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved and quality assurance mechanism needs to be in place.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that the large majority of staff have received training in physical force, restraints, and trained in proper de-escalation. However, de-escalation training needs to be completed more often (regular, informal, refreshers) so that staff can continue to develop this skill. Proper de-
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escalation cannot be trained only once a year. The Monitor suggested having staff who are very good at de-escalation work with staff who could use a refresher or with new staff. During the site visit, there was a unit that was out of control and when the Monitor talked with staff, they all had been at LHS/CLS for a year or less. Documentation needs to be improved and a quality assurance mechanism needs to be in place.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
D. Strip Searches. The following provisions are effective immediately upon entry of the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means.
COMPLIANCE STATUS: NON-COMPLIANCE/PARTIAL COMPLIANCE. The Monitor reported in her last report that strip searches significantly decreased. However, strip searches without probable cause were reinstituted in January 2019, including strip searching all youth at intake. On March 15, 2019, a memo was issued to staff to discontinue strip searches without probable cause. Staff are doing a “hygiene” check which requires a youth to strip to underwear and bra which seems to be replacing the “strip search.” This type of search should only be used for the same reasons as a strip search when utilized for this purpose (probable cause of youth possessing drugs or weapons that could not be discovered through less intrusive means). As previously stated, the policy for searches need to be
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amended to reflect the language in this section.
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. It does not appear that less intrusive searches are attempted before a strip search is conducted. Staff are not conducting pat down searches. This was confirmed with leadership at LHS/CLS. Additionally, hygiene checks go beyond tank top or other clothes (youth are stripped to underwear and/or bras.) Documentation needs to be improved.
3. Process for strip searches.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to how staff are ensuring that unintended individuals cannot view the search (detail the area where search is occurring, state that there are no recording devices, and document who is present in the area, etc.)
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved detailing the area where search is conducted and how other youth cannot view the youth being strip searched.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
d.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to which staff conducted the search, that the search is by staff who is of the same gender identity as the youth if the strip search is being conducted by someone other than a medical professional.
e. Strip searches must be conducted by staff trained in traumainformed practices.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that majority of staff have been trained in trauma informed care. Documentation needs to be improved as to strip searches.
f. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is told by direct care staff and mental staff that mental health is consulted. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most staff have been trained in the new MANDT training and other training which includes de-escalation skills training. The Monitor recommends increasing the training frequency for staff to increase their experience and skill levels in managing and de-escalating situations before they result in the use of restraint and/or isolation. Although there is a use of force review process, it needs to be thorough and comprehensive, include a corrective action plan when force was used where it could have been avoided, and timelier than they are being done. The Monitor recommended in instances where de-escalation was successful, they should be used as a training tool.
F. Programming. Immediately upon entry of the Court's order incorporating this agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many recommendations were made in the February 2018 technical assistance report that have not been implemented. Counselors, recreation workers, social workers, PSU staff, and volunteers can be utilized in creating and leading programming for youth. Several staff had suggestions for
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programming such as art therapy, dog therapy, increased tournaments, job readiness skills, music, balance and restorative justice, and teen court. Administration needs to increase meaningful/structured program and activity hours to further reduce youth idleness hours. As mentioned previously, increasing education hours can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming. Recreation and exercise schedules are every other day according to staff and appear to be inconsistent and often limited. Extended recreation should be considered. The volunteer coordinator has contacted several potential community partners however, the Monitor is unaware if this was successful and hopefully, continued efforts are made. The Defendants have identified funding to pay for a consultant that can assist with developing gender and culturally appropriate programming. The Monitor is working on gathering potential experts for Defendants to consider.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Some of the recommendations made in the February 2018 report have been implemented such as hiring bonuses and staff recognition. There has been a huge reduction in vacancy rates for direct care staff. There still are staffing challenges due various employee leaves. Other recommendations have not been implemented such as developing wellness programs in order to retain current staff, utilizing suggested recruiting efforts, redrafting job descriptions and job postings which highlights the youth counselor aspect of position instead of “guard” or “corrections” description, rewrite position summary, reassess current staff schedules and placement, parttime staff to fill in the gaps and/or outside security firms to supplement existing staff, or assessing and ensuring staff are not working too much overtime. Given the long-standing staffing deficiencies, there is an urgent need to also explore methods for promptly reducing youth populations. This might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
COMPLIANCES STATUS: DOC has identified sections of the Administrative Code that need to be modified, but significant revisions have not yet occurred. The Monitor has been told implementation will take some time as it requires certain Codes to be repealed and recreated. All policies refer to the Administrative Code and thus modifications to the
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Administrative Code should be a priority. Interim policies should be considered.
II. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although reviews occur for most incidents, the reviews often occur well after the 24-hour timeframe. Often, the reviews do not occur until 3-4 weeks after the incident. Staff involved are not brought together for meaningful discussions. When it has been determined lesser means could have been used, there is not a corrective action plan developed. The Monitor made suggestions to the Superintendent as to this section during the site visit utilizing specific incidents occurring during the reporting period.
B. Quality assurance. The superintendent shall establish performance goals, including compliance with the terms of this settlement; shall analyze data on whether those goals are met; and shall put in place immediate corrective action to address goa ls that are not being met.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. (Please see the “general observations” section of this report for explanation.)
CONCLUSION
The Defendants have made improvements with reducing mechanical restraints, reducing OC usage, decreasing vacancy rates for direct care staff, creating new positions to help with data collection and quality assurance, identifying funding for various outside experts and funding for physical plant improvements. Continued efforts need to be made and the Monitor is hopeful that improvements as identified in this report will be evident during the next site visit. The Monitor is
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 Case: 3:17-cv-00047-jdp Document #: 111 Filed: 07/01/19 Page 1 of 30

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

THIRD REPORT OF THE MONITOR

Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
The Second Report of the Monitor was filed with the Court on April 17, 2019. The Monitor’s third report will focus on assessing compliance with the Consent Decree, implementation of recommendations in the February 2018 technical assistance report, and comment on any observations and/or updates from the second site visit which took place March 8-11, 2019.
SITE VISIT The third site visit by the Monitor took place on May 31 through June 2, 2019. The Monitor reviewed materials provided by the parties prior to, during, and after the site visit. Materials included, but were not limited to: updated Krueger program handbook, grievances, school schedules, recreation schedules, counselor logs, staff memos, daily shift reports, video footage of use of force incidents, all of the monthly data submitted to the parties per this court order, unit rules, work rules, employee leave data, employee corrective action reports, behavior and treatment plans, mechanical restraint documentation, incident reports, other housing documentation, selfassessment report, facility enhancement report, and various meeting minutes. The Parties were present during the site visit. The Monitor took photographs, toured LHS/CLS, and interviewed youth and staff. Approximately forty-five (45) youth and thirty (30) staff were interviewed formally and informally by the parties during this site visit.
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GENERAL OBSERVATIONS
Physical Plant
There were significant improvements made throughout LHS/CLS. The general areas of the facility and living units were much cleaner than the last visit. Staff put together Spring cleaning contests with rewards for youth. The feedback has been positive from youth and staff. Many of the recommendations made in previous Monitor reports and the February 2018 technical assistance report have been implemented (described in more detail throughout this report). Youth behavior expectations were written in a positive tone versus the negative tone observed during the last two site visits. There was less graffiti and etched glass throughout the facility overall and sanding and painting have been done in several areas. Defendants need to continue to monitor and cover/replace graffiti and etched glass as there are still areas with significant graffiti/etched glass (Black Elk and TIP units).
During the last site visit, the Defendants informed the Monitor that there was a bid for painting the interior of the cottages and that there would be a youth art program to further decorate the walls with murals and artwork once the base painting project is completed. It is evident that the painting and decorating projects have begun and the Monitor has been told the work will continue throughout LHS/CLS facilities. Renovations have been completed on one of the girls’ units, although they had not yet moved into the building at the time of the site visit. The renovations are very impressive and will aid in reducing the “prison” like feel and should have a positive impact on the overall atmosphere once renovations are completed and the girls move into the cottage. There have been art supplies purchased for youth to use on the living units.
In general, youth rooms and bathrooms remain messy and dirty. There needs to be a continued focus on youth rooms being clean and orderly and the bathrooms being cleaned more regularly and thoroughly. Several maintenance issues were observed throughout the facility which needed attention such as bathroom leaks and faucets and toilets not working, etc. The Monitor recommended including incentives around the room/bathroom cleanliness in the new behavioral management system that is being developed. In the last report, the Monitor noted that there were several serious incidents in which youth used furniture and other unsecured unit equipment to facilitate escapes from their housing units and used debris from these disturbances as potential weapons against staff. Defendants have made efforts to remove and/or secure items that have been used by youth in disturbances and built barriers around areas containing these objects in order to create a safer environment. The Monitor recommended that searches of all buildings need to be conducted to remove excessive objects, materials, equipment, furniture, etc., to enhance the safety and security of the units/buildings and to maintain a more orderly and safe environment. There was clear evidence that this is being completed on a more regular and thorough basis. The Monitor recommended that Defendants should consider replacing existing furniture with furniture that is specifically designed and engineered for secure environments and the secure furniture has been piloted in a living unit. The Monitor also noted that one or more living units had security bars on the exterior windows to prevent such disturbance and reduce the likelihood of a disturbance or escape. It might be worth placing similar preventive measures on other units to deter such behavior. Defendants should be commended for vastly improving the overall atmosphere at
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LHS/CLS.
School/Living Units Observations
The Monitor visited each cottage twice during this site visit with the exception of Krueger and TIP (Monitor visited these units three times) and toured the school on Friday when school was in session. Below, are the Monitor’s observations:
The Monitor saw the majority of staff engaging with youth. Specifically, teachers engaged with youth in the classrooms. Several youths were working diligently cleaning the school area and living units. Youth attitudes overall were much improved during this site visit. The school had positive messages throughout, artwork displayed, names of youth on the honor roll were displayed, windows in classrooms were no longer covered so there was a clear unobstructed view which increases safety for staff and youth, youth were engaged in the classrooms, and the school was very clean. The Monitor observed a psychologist having a session with a youth outside of the school sitting at a table. The Monitor observed flag football tournaments taking place and there were volunteers in the Foster Grandparent’s program present. The Monitor recommended that the Defendants hire an education expert to complete an assessment of the educational programming at LHS/CLS. The Defendants retained the expert who completed the assessment prior to the Monitor’s visit. The Defendants will share the assessment with the Monitor upon completion. The teachers seemed to enjoy their job, but they are struggling with staff shortages and wish there was more technology available. There were 8 teachers absent from work on Friday.
All the girls were on the King unit. The other girls’ cottage (Wells) was being renovated. The Monitor was happy to see that there was an improvement in the overall atmosphere of the girls’ unit and improvement of youth attitudes. Staff were engaged with the youth during free time, the unit was clean, furniture had been reupholstered (youth helped), and staff were eating with youth at the tables. The Monitor asked staff for the safety/welfare check forms and there was a vast improvement of documentation. Everything written in the unit for the youth was written in a positive tone and the girls’ mugshots were no longer taped to the tables. Youth rooms were still very messy. The girls are not allowed out at the same time (high hall and low hall) and the Monitor observed five youth confined. The Monitor continues to recommend that all youth should be out at the same time engaged in programming. Staffing ratios as observed by the Monitor would support this. The Agency needs to focus on gender specific programming to enhance the programs and activities for the girls’ facility.
The girls will move to Wells upon completion of the renovation project. The new Wells cottage should be the cottage that all cottages should be modeled after. It was recommended that the institutional paint be replaced with colorful paint. The paint color on Wells is a beautiful blue and green, the décor is beautiful and soothing, the furniture is comfortable, there are motivational sayings on the wall, and the shower curtains are bright and colorful. There is a sensory room for the girls to relax in. There is chalkboard paint in the youth rooms to encourage artwork and writing (reduce graffiti). There is a “model” room with furniture that is specifically designed and engineered for secure environments (bed, desk, shelf, and chair). The Monitor believes this model room will enhance the safety and well-being of youth. The Monitor believes that the renovations to this cottage will enhance the quality of life for youth and staff as well improve the overall
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atmosphere. The Monitor looks forward to the expansion of these rooms throughout LHS and CLS.
With respect the boys’ cottages, generally, all the youth rooms were messy and dirty. The Monitor reviewed the safety/wellness documentation and it has greatly improved from the last visit. The Monitor worked with the Defendants on creating an individualized form to be used for safety/wellness checks as opposed to using one form to document all youth that was kept in the staff offices. During the last site visit, none of the documentation complied with policy and procedure. During this site visit, the Monitor observed staff doing the safety/wellness checks and the Monitor only found one entry that was not compliant with policy and procedure. Staff are doing a much better job at doing the safety/welfare observations and documenting. The Monitor made further recommendations to the forms that will make it easier for staff to complete. In previous reports, the Monitor commented on staff placement on the unit. During this site visit, staff were placed near the youth and were much more interactive with the youth. This is a vast improvement from previous visits.
In Krueger, the unit was clean, there was more artwork on the walls, mugshot pictures were removed, and youth (Levels 1 and 2) were engaged in the classrooms on the unit on Friday. Youth rooms were cleaner on Krueger than on other units. The Monitor observed two youth in their rooms but was told the youth were in the rooms at the youths’ request. Staff were appropriately engaging with youth.
In Addams, the living unit was clean, there was a beautiful mural on the wall, the graffiti was removed, and all the glass on the doors were replaced. There were some clean youth rooms on this unit. There were five youth confined, some youth were outside, and some youth were in the day room. Safety/Welfare checks were complete. Staff were appropriately engaging with youth.
In Black Elk, the unit was clean, but the hallways and rooms were not. There is a lot of graffiti on this unit. One room had a sheet up over the bed preventing staff from observing the youth, two youth were doing each other’s hair (in violation of policy), and the other youth were in the day area. The bathroom floor was very wet. Safety/Welfare checks were completed but were not staggered.
In Curtis, the unit was clean. Five youths were in their rooms (significantly less than the last site visit). Youth were very chatty on both days. Youth seemed happy. Safety/welfare checks were complete. Youth were out in living area during free time and eating at meal time. Staff were appropriately engaging with youth.
The Miller unit was generally clean but the rooms on this unit were extremely dirty. It is evident that youth have not cleaned their rooms (if at all) in several days. The youth were at the gym when the Monitor visited on the first day. Youth were in the day areas on the second day making phone calls and watching television. Staff were appropriately engaging with youth.
In Dubois, youth were just coming back from outdoor recreation. The Unit was clean and orderly. Youth were very chatty and spoke quite positively about staff. Youth rooms were messy. Safety/welfare checks were complete. Staff were appropriately engaging with youth.
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In Roosevelt (TIP unit), there were 4 rooms with so much etching on glass that you could not see into the room at all. The Monitor notified the Superintendent that the youth should be moved to different rooms until this can be fixed. This unit was by far the cleanest unit. The floors sparkled. Youth were out eating and relaxing in the day room. Staff were appropriately engaging with youth. The Monitor recommended this cottage be shut down and TIP relocated because this unit has the doors with small windows with a food tray slot. Recently, (after the site visit) the Monitor was shown sample windows (larger) that will make observations easier for staff until administration decides whether to keep youth in Roosevelt. It will be a better atmosphere in the other cottages. This was the only unit that had balls as chairs inside the youth rooms. Although there have been improvements in activities for the boys, idle time is still high. It is highly recommended that the agency hires a consultant to help with programming and activities for the boys.
In fact, the Monitor was very impressed with the number of positive comments and attitudes shared from both the staff and youth perspectives. Administration, staff and youth should be commended. During this site visit, LHS/CLS had less of an institutional feel and the overall atmosphere has vastly improved. The Monitor saw more positive interactions between staff and youth. The grass was replaced with new sod and there was new landscaping. The Monitor observed several youths riding their bikes around campus, which was something the Monitor had never seen before at any facility. This was a very positive activity to initiate.

Staffing
Direct care staffing vacancy percentage has slightly improved from the last site visit, however, staffing issues continue to exist at LHS/CLS. There are 311 total positions at LHS/CLS. Approximately 155 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”)). There are still a large number of staff on various leaves of absence (FMLA/Workers’ Comp, etc.) which contributes to the staffing shortages and mandated overtime. The teacher vacancy rate remains unchanged – and very high - and recruiting remains a challenge. This is directly impacted education for youth. The Monitor looks forward to the educational expert’s assessment/report.

Position
Youth Counselor Youth Counselor Adv Teacher Social Worker

Vacancy Rate % as of November 28, 2018 2018 22% (23 of 105)
18% (9 of 50)
39% (11 of 28) 14% (2 of 14)

Vacancy Rate % as of March 14, 2019
15% (16 out of 105)

Vacancy Rate % as of May 31, 2019
11.5% (12 out of 105)

48% (24 out of 50)

50% (25 out of 50)

39% (11 of 28) 0% (14 of 14)

43% (12 of 28) 0% (14 of 14)

In order to address staffing challenged at LHS/CLS, effective April 28, 2019, security personnel began receiving a $5.00/hour add-on for worked hours. Eligible employees are in the classifications of Correctional Officer, Correctional Sergeant, Youth Counselor and Youth
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Counselor Advanced. The effectiveness of this increase on recruiting and retention cannot be assessed at this time, but it seems that this could have had an impact on existing LHS/CLS staff’s morale.
The Monitor believes non-traditional scheduling should still be considered. In the last report, the Monitor recommended that the facility conduct a full staffing assessment to include a relief factor analysis looking at all leave types and its impact on staffing levels. Defendants should also review the staffing composition per shift/per cottage as there are a lot of new staff working together which poses additional challenges.
The Monitor spoke to over thirty staff and the majority of staff seem energetic and stated they are less tired and are working less double shifts than previously reported. The vast majority of staff want more training on alternatives to OC spray and reduction/elimination of confinement. The majority of staff also expressed the desire to have more programming for youth. Staff said they enjoy interacting with youth and are accepting of the changes that are taking place. Most staff did not have a fear that the elimination of OC Spray was coming but want more training and want alternatives to OC spray. Staff are showing much more attention to building relationships with youth and in engaging youth in a positive manner.
The Defendants have implemented many of the recommendations for staff wellness. The Monitor continues to stress the need to make staff wellness a major focus moving forward. There has been improved communication with staff and youth regarding the reform effort (written and verbal). As recommended in the technical assistance report, staff are engaged in developing programming and policy changes and are actively participating in youth and family council meetings. The Monitor saw that there were employees recognized as “Employees of the Month” and there was an ice cream social for staff during the site visit. There were reminders for staff to stay hydrated with bottles of water offered. Krueger Living Unit Program was a finalist in the SALUTE awards Team category. Each of the 17 members who are most consistently part of staffing the Krueger Unit received certificates and coffee mugs for being nominated. There is correctional officer appreciation calendar and Teachers Appreciation Month. The Defendants should continue to create policy driven staff recognition programs, and tap into staff’s talents, passions, and interests (artists, musicians, yoga etc.) to bring into programming.
As part of the agency and facility commitment to improving conditions for both staff and youth, they are engaging in the Youth in Custody Practice Model (YICPM), which will be explained in greater detail under the next section. As part of the YICPM, the agency will be using their “subject matter expert” (SME) technical assistance days to focus on programing enhancement and staff wellness. The SME TA should have a positive impact on both if these focus areas.
The Monitor continues to suggest modifying the mental health and recreational staff work schedules to include more evening and weekend hours which is when youth idleness is at the highest. The Monitor believes this would have a huge impact on youth and staff.
Quality Assurance
Data continues to be a significant problem at LHS/CLS. The Monitor continues to stress the fact that data-driven decision making is critical to the safety and quality of life of youth and staff, as
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well as to ascertain compliance with the Court Order. Data continues to not be accurately recorded, adequately collected or analyzed for incidents subject to the court order in this case. Not only do there need to be additional data measures, but a plan must be developed for implementation of competent data collection with a focus on accuracy at the line staff level (i.e. safety/welfare check logs, incident reports, use of force incidents, all confinement, youth idleness, grievances, educational hours per youth, etc.).
As mentioned previously in this report, the agency and facility have begun working with a team of experts in the Youth in Custody Practice Model (YICPM) Cohort Three. Informed by research on “what works” in serving youth in custody, as well as professional standards and the field’s preeminent thinking on best practices, the YICPM initiative is designed to assist state and county juvenile justice agencies and facility providers to implement a comprehensive and effective service delivery approach. Utilizing the YICPM monograph as a roadmap, the Council of Juvenile Correctional Administrators (CJCA), the Center for Juvenile Justice Reform at Georgetown University’s McCourt School of Public Policy (CJJR), and a team of consultants will provide participating sites with 18 months of training and technical assistance (TTA) to align core, research-based principles with everyday practice, and achieve more positive outcomes for youth, families, staff and communities.
The Youth in Custody Practice Model offers agencies and facilities guidance on essential practices in four key areas:
1. Case planning; 2. Facility-based services (e.g., education, behavioral health, behavior management,
rehabilitative programming); 3. Transition/reentry; and 4. Community-based services.
The enumerated practices stem from the view that services and approaches for system-involved youth and their families should be: research-based; developmentally appropriate; family-centered; individually focused and predicated on validated assessments; strength-based; trauma-informed; data-informed and outcome-driven; culturally responsive; and coordinated. Ultimately, the goals of the YICPM initiative are to (1) promote safe, fair and healthy environments for youth, staff and families; (2) prepare, equip, empower and support staff to provide effective services; (3) increase positive youth and family experiences and outcomes; and (4) enhance community safety. Anticipated outcomes from the effort are listed in the section below, titled “Goals, Expected Outcomes and Evaluation.”
The Monitor feels that this is a positive step and that participation in the YICPM will be extremely useful in aligning the core principles of the practice model as they relate to the areas of focus under the Monitor’s review.
The jurisdiction also utilizes the Performance Based Standards (“PbS”) which is a program for juvenile justice agencies, facilities, and residential care providers to identify, monitor, and improve conditions and services provided to youths using national standards and outcome measures. PbS is a holistic management tool. PbS standards address facility safety, security, order, programming and fairness as well as services provided to respond to youths’ needs for physical health, behavioral
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health, substance use, education, vocational education, reentry planning and connection to family and community. Performance achieving the standards is measured by both quantitative and qualitative data from administrative forms, youth records, incident reports, climate surveys of youths, staff and families and exit interviews of youths (only those leaving long-term correction facilities.) PbS trains and supports participants to collect the data, analyze the results and use them to change practices using a structured and measurable improvement planning process.
During the site visit, the Monitor spent considerable time going through the PbS April data collection report to review how the data measures can be used in making critical decisions as well as how it can be utilized for the creation of the quality assurance program. The Monitor also reviewed the report functions which will be very useful for management. The Monitor recommended that the jurisdiction monitor incidents of assaults, fights, youth and staff injuries, and other critical outcomes measures on a monthly basis using the most recent PbS field averages as a guide to gauge the overall safety for staff and youth. As a note, PbS data collection cycles occur twice annually, in April and October, however, there are ways to monitor the critical outcome measures on a monthly basis, possibly using J Tracker or another monthly metrics report which this Monitor could assist in setting up.
When looking at the PbS facility performance profiles for April 2019, we see some progress being made but improvement is needed in regard to the critical outcome measures, primarily those that relate to safety, order, security and programming. For example, Critical Outcome Performance Same/Better than the field average scores are rated at 54.55% for CLS and 51.25% at LHS. Critical Outcome Performance Better than Last Data Collection Profile Scores are 48.48% for CLS and 63.64% for LHS. What this data indicates is a need for continued focus and monitoring on critical outcome measures in order to reduce incidents effecting these outcome measures. The facility should conduct a thorough review of the April PbS data and incident reports in order to better understand the nature of these incidents, as well as any specific information around the times of day, day of week, staff involved, etc., that may provide better insight on the driving causes around the incidents and help identify strategic corrective action plans or development of the PbS Facility Improvement Plan (FIP).
To address the need for a quality assurance and improvement program, the Defendants have created two new positions (Quality Assurance Specialist and Program and Policy Analyst). The goal will be to continuously assess not only compliance with this Court Order, but the quality and adequacy of the social and recreational programming provided, healthcare, education, environmental health and safety, and discipline and order. The Monitor is happy to work with the individuals selected for these positions and already has worked with one of the individuals selected. The second individual was hired after the third site visit thus, the Monitor has not had the opportunity to meet. The Monitor is looking forward to working with this individual.
The Program and Policy team for the Division of Juvenile Corrections should continue to work with the vendor (J-Tracker) to include other critical measures as described during the site visit. The Monitor is unable to assess the accuracy of the data because of the lack of documentation and quality of documentation and the ability to track via electronic systems to automatically capture data. To address the data issues, the Defendants have created and filled two new positions, identified funding for experts as recommended by the Monitor, and is working towards developing
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an electronic room check system.
Policies and Procedures
Significant revisions to policy and procedure and Administrative Codes have not yet occurred. DJC Admin Rules Committee had its first meeting on May 30, 2019. The Monitor does not have any updates as to when certain Codes will be repealed and recreated. All policies refer to the Administrative Code and thus modifications to the Administrative Code should be a priority as stated in the First and Second Report of the Monitor.
Policies relevant to LHS/CLS need to be compliant with the federal court orders and should contain a quality assurance section for every policy. After review of some of the updated DOC DJC policies and procedures and local procedures, quality assurance is still not part of the policies and reference to this litigation is not listed in the “references” section. Policy and procedure changes still need to be made as it relates to Security and Inspections, Mechanical Restraints, Clinical Observations, Youth Movement and Suspension of Movement, Use of Force, Searches of Youth (not compliant with Court Order), Emergency Response Unit, and several others. The Monitor was pleased to see that the CARE team has been implemented and is being regularly utilized, however, a policy and procedure needs to be created which clearly outlines the mission of the CARE team, identify circumstances where CARE team will be deployed, describes how staff are chosen for the CARE team, and includes a quality assurance section. The Monitor suggests increasing the CARE team as it appears they are successful at deescalating situations and their hours of operation should be extended to evening and increased weekend hours when youth are not in school. The CARE team has an 78.5% success rate when utilized which is very good. Also, many of the policies continue to indicate “discuss at staff meeting.” There should be formalized training with employee sign offs acknowledging receipt and understanding. Effective proficiency testing for all training classes still needs to be developed. The Monitor will continue to work with the Defendants on policy and procedure.
Youth Interviews
Plaintiffs’ counsel and the Monitor conducted several youth interviews. Approximately forty-five (45) youth were interviewed during the site visit (formally and informally).
Many youths said that LHS/CLS was better today than it was a year ago. A few youths said conditions had not improved (some were at LHS/CLS less than a year). Many stated that staff interacted with them more than they used to. Most youth who participated in the Youth Advisory Council really liked it (although one youth thought it was pointless). The overwhelming majority said that they were not confined much, were not restrained, and were not strip searched (which was a huge improvement from interviews with youth during last visit). A few thought staff were “going through the motions” but wished they spent more time with them. Youth were able to identify staff they really liked and when asked why they liked them, the youth told the Monitor it was because they were fair, consistent, and cared for them. There were still a few reports by youth of concerns about some staff members. A number of youth also expressed concerns about staff not promptly intervening when fights occur. In addition, youth still thought there were several inconsistencies involving staff not following the grievance procedure, program rules, canteen, and inconsistencies in the staff assigned to the various living units. Youth really do like it when they
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have the same staff working with them.
The common complaints from youth interviewed were that they were bored and had nothing to do (not enough programming or activities) even though they admitted there is more now than before, but they still want (and could use) more activities, since too much time without activities can breed problems. Youth disliked split hallway times (half of youth locked in rooms while the remainder are out in day room). Several complained about the mosquitos and did not want to go outside because of it. Youth complained about other youth, peer pressure, and bullying and felt staff did not try and stop it. They were mad when youth would run around and not follow directives because it impacted their ability to participate in programming or would have to go to their rooms until there was control of the unit. Youth complained about two specific incidents which were being investigated at the time of the site visit.
When interviewing youth who have been OC sprayed, youth were asked if they decontaminated quickly and vast majority said yes (this is also supported by the video watched during site visit). Some youth said they chose not to get decontaminated. Youth complained that they did not feel safe because youth were not being confined anymore when they got in altercations (no consequences when they act out). A few said they were worried about staff when OC is eliminated. Youth continued to frequently complain of delayed response to call lights (often indicated when a youth has to use the restroom because there is no toilet in their rooms).
The Monitor found that much of what youth reported was accurate. When touring all of the living units, fewer youth were confined than during last site visit. Youth who were in their rooms were there because they chose to be, or due to split halls, shift change, or counts. The Monitor reported in the last report that confinement logs did not reflect confinement time as staff believed time spent alone in a cell for “cool offs,” counts, “resets,” split hall out time, and periods of positive behavior (“PPB”) were not confinement time. Staff also did not think that time spent alone in a cell by any youth not in Krueger for whatever reason, was confinement time which should be documented. After the last site visit, direction was given clearly defining “confinement” to staff and now staff are aware of what confinement is and will have to document accordingly. The Monitor anticipates documentation moving forward will be more accurate. The Monitor did observe less idle time, but there still is room for improvement. Comparing the April and October activity logs in PbS, significant improvement has been made in reducing idleness. Operational room confinement still remains significantly higher than the field as does unstructured leisure activity hours. Most staff were engaged with youth in a positive manner and were placed in the vicinity of youth (as opposed to in their offices like last visit). With respect to the youth statements regarding staff not responding to their call lights timely or at all, this was confirmed in a survey and even with the Monitor’s own eyes. Ten out of 10 youth reported staff not responding timely to the lights in their room.
With respect to the youths’ statements on OC usage and decontamination, the Monitor reviewed some documentation that shows the time between spray and decontamination has improved greatly. Also, in reviewing video of several OC spray incidents, the decontamination was soon after spray when youth wanted the decontamination. The threat of OC Spray is made often, as documented in the daily shift reports.
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The Monitor observed (and youth reported) several positive interactions between youth and staff. Youth reported that LHS is “way better than before” and were much happier and the Monitor could observe the youth and staff’s demeanor which reflect this. Youth complained about the food more during this site visit. Youth really enjoyed when staff sat with them at meals, or at the tables when the youth were conversing with friends. Youth enjoyed playing games with the staff and enjoyed the basketball, ping pong, and flag football tournaments. The Monitor observed many of these activities. Youth that sign up will participate in Spades tournament, chess/checkers, bags, Scategories, etc. Additional staff are being utilized to facilitate afternoon/evening programming. The following programming has been added for youth:
• DBT skills group for CLS youth • Debate Club – voluntary for all LHS youth • Art Therapy Group – voluntary for all LHS youth • DBT skills – voluntary/referral based for LHS youth other than TIP
and Krueger • CBT for Insomnia – voluntary for Curtis youth • Prison Preparation Group – voluntary for Curtis youth • DBT Skills group for TIP youth – referral based/voluntary for TIP • Music, Movement, Movie Group – Currently running in Krueger • DBT Skills group for Krueger youth • Journaling Group – voluntary for Krueger youth • Building Mastery – voluntary for Krueger youth • Sex Offender Treatment Programming – referral based – joint run by
treatment specialist • Yoga – voluntary for all youth • Book Club – voluntary for all youth • Biblio-therapy Group – voluntary for youth
The Monitor has been told in the future that the following will be offered:
• Music, Movement, Movie – will be offered to other LHS youth on a voluntary basis in the near future
• The Art of Storytelling – voluntary for all LHS youth • Game-Based CBT for Child Sexual Abuse Group – Referral based for
CLS
The Defendants have made efforts to identify and contact community partners to increase programming at LHS/CLS. Hopefully, there will be continued movement on bringing in community partners. As previously mentioned, there is still a need for culturally relevant programming.
There have been significantly more resources identified, specifically, positions created for dedicated staff allocated to make the necessary changes needed to improve conditions for youth and staff, funding for various capital projects and national experts on a temporary basis to assist in developing systems, programs, education, and assist in making the necessary changes to reach
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substantial compliance with the Court Order. Defendants have made significant progress in improving the quality of life for youth and staff.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated, there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative.
A. Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for seven days. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure –and if this improvement is sustained - they will reach substantial compliance.
b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for three days. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure – and if this improvement is sustained - they will reach substantial compliance.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: It has not been ten months after the entry of the Court’s order. The Monitor will assess compliance at the appropriate time. However, youth are being confined for behavior such as for “reflection”, split halls (sometimes due to behavior), and sometimes as a group when several youths engage in disruptive behavior. These actions do represent a form of confinement as defined by the court order, which needs to be documented so that compliance with section can be assessed at the appropriate time.
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2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:

COMPLIANCE STATUS: PARTIAL COMPLIANCE. For this reporting period, there were instances in which administrative confinement was being used for youth who did not pose a serious risk of imminent physical harm. It also appears that, rather than releasing youth from confinement as soon as they no longer pose a risk, Defendants are generally treating four hours as a default minimum period of time for administrative confinement. The Monitor suggested how to document this requirement in policy and in forms as well as made suggestions to place youth in the day room once they no longer pose a serious risk of imminent physical harm to others. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure. The Monitor also discussed alternatives to confinement for administrative purposes such as med pass, counts, shift change, and split hall time.

a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12 hours) when:
1. A psychologist, psychology associate or psychiatrist recommends continued confinement because the youth poses a risk of imminent physical harm to others, and
COMPLIANCE STATUS: PARTIAL COMPLIANCE. In a large number of instances, it does not seem that administrative confinement is being extended. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure.

ii.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Generally, youth who are in administrative confinement are in the Krueger program. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plan needs to be revisited should a youth not be able to return in an appropriate period of time. The Monitor spent several hours reviewing and discussing the Krueger program. The Defendants were working on updating the program. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure.
b. Administrative confinement time limits may be tolled from 8 pm to 8 am.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Time is being tolled from 8 pm to 8 am.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a commenced plan.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence that administrative confinement has been extended beyond 24 hours, and thus there have not been such transfer plans created. If Defendants improve their quality of data and documentation, and incorporate the court order into policy and procedure, they will be in substantial compliance.
d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended pol icy.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. DJC Clinical Observation policy 500.70.24 was updated on 9/19/18 and the dates contained in the policy has been corrected. The Monitor suggests a more formal training and staff sign off reflecting they read and understand policy. Additionally, a quality assurance mechanism needs to be created.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions
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shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: NON-COMPLIANCE. As previously stated, the Monitor would not deem any room in any facility as being “suicide proof,” however there are safety and security measures that can be put into place to reduce the risk of suicides and to make the rooms more suicide resistant. The Monitor recommended that Defendants replace the existing room furniture with furniture that is specifically designed and engineered for secure environments. The new replacement furniture which is in the Wells unit is consistent with what the Monitor would expect to see in a secure facility and should certainly reduce the opportunity for suicidal incidents within the youth rooms. The Defendants have a mock room with the new furniture which will be a significant improvement once completed throughout LHS/CLS.
With respect to youth rooms, there is little to no change from the last site visit. Most youth rooms were not clean or organized. Several rooms had multiple blankets/sheets covering large areas of the room making it difficult for staff to assess whether there is contraband that can be harmful to youth inside the rooms or assessing youth activity while in bed. There has been improvement on graffiti and etching on the glass which has improved staff’s ability to clearly see the youth through the window. Also, on the TIP unit, the Monitor recommended that the windows to be changed (they are very small and pretty high on the door). Post site visit, the Monitor has seen the new windows which will be installed that are much larger and will improve visibility.
Safety/Welfare checks have significantly improved and are now being done on an individual basis. Safety/welfare documentation show that room checks are being completed every 30 minutes. Staggered intervals need to be focused on. As previously mentioned in this report, The Monitor has made recommendations to the forms that will simplify the process. The Monitor recognizes that an electronic system is being explored by the agency, but this will take some time. Safety/welfare checks need to be a priority and progress needs to continue to be made. While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model.
b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth have not complained about access to water or hygiene supplies. However, a common complaint among youth in rooms without toilets (dry rooms) continues to be that staff are very slow to respond when they indicate they need to use the restroom. Administration investigated this complaint for this reporting period and the results were the same. It was proven that this is in fact occurring frequently. Further, Defendants do not document this issue. Defendants need to create a form, policy, and quality assurance measures as to this section and others. Administration needs to continue to investigate and hold staff accountable until the problem is fixed. Staff need to be held accountable should an investigation reveal the delay is purposeful.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has been improved but still needs more improvement. Time of call to PSU staff is now being documented on the incident report in most instances, but there is room for improvement. This requirement should be included in the development of a quality assurance program.
d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Monitor requested any documentation indicating that confinement is contraindicated and there were no instances documented. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04) Again, as with all policies, a section should be created to include quality assurance and monitored by facility administrators.
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and
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contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Safety/Welfare checks have significantly improved and are now being done on an individual basis. Safety/welfare documentation show that room checks are being completed every 30 minutes. Staggered intervals need to be focused on. As previously mentioned in this report, The Monitor has made recommendations to the forms that will simplify the process. The Monitor recognizes that an electronic system is being explored by the agency, but this will take some time. Safety/welfare checks need to be a priority and progress needs to continue to be made.
Defendants are holding more staff accountable for this reporting period as there were 36 “Letters of Expectation” and two staff were formally disciplined related to visual monitoring. Staff need to be held accountable for not completing checks according to policy. In addition, although the requirement in this Court Order is “at least every 30 minutes” the Monitor recommends that every youth should have a visual inspection at least every 15 minutes at staggered intervals. This is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. The agency should make an electronic, software-based rounds checking system a priority. PSU staff do visit youth daily when on site.
f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Some rooms contained more property than outlined in handbooks. Some rooms had less property in their rooms, such as Krueger and Targeted Intervention Unit (“TIP”). The Monitor could not confirm whether this was restricted as needed for safety. Documentation needs to be improved as to this requirement and confinement needs to be accurately recorded.
g. Youth in room confinement shall receive:
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1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Social worker visits, mental health services, and other health services are provided. Once documentation, quality assurance program is created, and this requirement is clearly in policy and procedure, Defendants will be in substantial compliance.

11. Any rehabilitative programming (e.g., Aggression Replacement Training, Juvenile Cognitive Intervention Program, etc.) that was scheduled or in process before placement in room confinement.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Programming is inconsistent. There is a lack of documentation as to specific programming that occurs daily. There does not seem to be programming when youth are on PPB or, according to the Krueger handbook, in Phase 1 of the program. This was discussed, and the Monitor anticipates this will change once the Krueger is updated/modified according to discussions during the site visit. Also, there are occasions where staffing levels do not allow for planned programming. There has been improvement in available programming, but there is still a lack of other activities for youth to engage in, resulting in excessive amounts of idle time and split hall time (confinement). This occurs especially, but not only, on weekends.

111. Educational services with the general population to the extent practicable. If attending educational services with the general population proves unworkable due to an immediate and substantial threat of physical harm or an unreasonable risk of significant disruption to classroom instruction, youth in room confinement shall receive alternative educational services on days that the general population receives such services. Defendants shall ensure special education services for all eligible youth.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Educational Services for general population occur in the classrooms in the school area. Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in Krueger do not receive educational services in the school area (except for youth on Phase 3) but remain on living units. Youth also continue to be “suspended” from school. PbS data is available for this reporting period, and it does appear that youth are engaged in educational activities for more time than during the last visit. As reflected in the staffing section of this report, the current teacher vacancy rate is 43% (12 of 28 allocated positions) is mostly likely impacting the ability of youth to be in school for longer periods. Educational hours need to be increased for all youth on a daily basis. The Monitor recommends that all youth regardless of status have education in the school area or, at a minimum, off their living unit. The Monitor also recommends culturally relevant programming/materials be

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offered. The Monitor has also connected the agency with an education consultant who has completed the assessment. The Monitor awaits the report. The Monitor anticipates there will be more recommendations contained in that report.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most units still have “split hall” which means a portion of youth are confined to their rooms while others are out, and they rotate. Based on the staffing numbers on the unit, there is no reason that all youth cannot be out in the day room/outside etc. The Monitor saw youth conversing with other youth and staff during out time which is an improvement from the last visit. In youth interviews, youth stated that they are not confined to their rooms “that much.” Some youth actually complained that other youth were not confined enough when they were involved in an altercation. Youth still want more activities when they are out of their rooms and feel they do not really do anything, which, as discussed elsewhere, is a significant problem. There is not any real programming in Phase 1 of the Krueger Program and not a lot in Phase 2. The Monitor has been told that the Krueger Program is changing to increase out time and youth will receive phone calls and be able to have more movement on the unit. Phase 3 has a little more sensory stimulation. The Krueger program is out of pilot form, and the leadership has re-evaluated the program to ensure compliance with the court order and technical assistance report with the Monitor’s assistance. Enhancing programs and meaningful activities for the Krueger program should have a positive impact and allow for youth to return to their home cottages quicker.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

eating that meal out of the cell.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The majority of meals take place out of the room but there are several occasions where youth eat meals in their rooms when there is not an immediate and substantial threat of physical harm. The Monitor witnessed some youth eating in their rooms and have seen this documented in shift reports. Should a youth eat a meal in their room, the decision by staff needs to be justified, supported by documentation, and instances need to be reviewed by facility administrators. Meals are not documented on living units except Krueger, but they need to be. When reviewing the Krueger documentation, a large number of youth are eating in their rooms without evidence of a threat of physical harm. Also, there are several blank entries meaning staff are not documenting whether youth are eating in rooms or not. There needs to be a

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quality assurance measure created and this requirement needs to in policy and procedure.

v1.

Minimum "out time" from the cell of at least 30 hours per

week and at least 3 hours per day. Time in general population

on a given day shall be credited to those hours.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that most youth are receiving 3 hours of “out time” per day or 30 hours per week. Documentation, data collection and reliability make it difficult for the Monitor to assess level of compliance. The Monitor made several recommendations that should be implemented as soon as possible.

5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. It is not clear whether youth are being told that they can grieve their placements in room confinement at all (or being told they can do so within 15 minutes of placement). There were 70 grievances filed by youth during this reporting period (on a variety of issues, not just placement). This indicates many youths utilize the grievance procedures. There was only one grievance related to discipline. However, youth still feel the process is confusing and some reported that staff were not following the grievance procedure as required by policy. The Monitor does suggest that a more robust tracking system be developed with a quality assurance piece that ensures grievances are being timely and appropriately addressed and communicated to youth. The Monitor made recommendations to forms which if implemented, should improve data collection.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Court Order requires documentation of all forms of room confinement, which is not being done. Documentation needs to be completed and consistently applied to all situations, other than sleeping hours, in which youth are confined alone in their rooms, regardless of what unit they are in (including not only Krueger, but all units in both LHS and CLS, and the reason for the confinement). Documentation, data collection and reliability, and quality assurance needs

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to be improved.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Defendants need to continue to implement their OC reduction plan. There are youth still being sprayed in instances where lesser means could have been used (video of instances were viewed during the site visit), and spray is being used to “prevent self-harm” when other means could have been used. The OC reduction plan should involve training staff on a variety of de-escalation skills as well as a directive that OC should only be used in situations that present a serious life safety or threatening situation. In reviewing video, it is clear that staff do not have the skills to deescalate or restrain youth. Staff are too slow to go hands on when situations require it. The Monitor made several recommendations including increased training, implementing a specialized team, and ensuring incident reviews are meaningful. The expanded use of CARE Teams can greatly assist in de-escalating situations and ultimately reducing/eliminating the use of OC. Additionally, as recommended in the technical assistance report, a new incentivebased behavior management program that focuses on rewarding positive behavior should be created which will have a direct impact on youth behavior and thus, reduce the need for force of any kind. The Monitor is told the Defendants are working on a new and improved behavior management system which the Monitor will be happy to review prior to implementation. While there continues to be a significant decrease in the use of OC spray over the last six months, there is a rise in the number of incidents during this reporting period. Continued focus on training, skills development and coaching, continued focus on overall atmosphere should have a positive impact on the number of incidents requiring this type of intervention. Merely reducing or modifying the intervention protocols for these types of incidents is not a sufficient response. The below graph reflects the combined usage of OC at LHS and CLS in 2018/2019.
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25
20 20

LHS/CLS 2018 Combined Chemical Restraint Use
21

15

14

14

12

11

10

10

8

10 8

5

5

5

3

3

0

Apr 18 May Jun 18 Jul 18 Aug 18 Sep 18 Oct 18 Nov 18 Dec 18 Jan 19 Feb 19 Mar 19 Apr 19 May

18

19

LHS/CHS OC Usage+Sheet1!$H$3

2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.
COMPLIANCE STATUS: N/A. Compliance will be assessed by the Monitor at the time required under this section.
C. Mechanical Restraints. The following provision shall be effective immediately upon entry of the Court's order incorporating this Agreement:
1. Prohibition on types and uses of mechanical restraints.
a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor did not personally see any youth in mechanical restraints during site visits, but logs show there are occasions where youth are placed in mechanical restraints – including being put “on the belt” as well as in cuffs. Data shows there were more youth mechanically restrained than during the last reporting period. With better documentation and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision if they can document and establish that there were not less restrictive means available.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the
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youth regains control and when the threat of harm or the safety concern has abated.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraints are rarely used but when they are, there is little or no documentation as to whether and how there is an imminent threat of physical hard, and when and how that process is reviewed. There needs to be a continuous effort to monitor youth who are placed in mechanical restraints and consistent documentation. With better documentation and quality assurance measures, and returning to the reduction in use of restraints that previously existed, Defendants may be close to achieving substantial compliance with this provision
c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

1.

Mechanical restraints may be used when ordered by PSU to

attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.

11. Mechanical restraints may be used if the youth poses an immediate and substantial threat of physical harm to others.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. However, when restraints have been used, there is little or no documentation of the reasons for doing so, whether and how there is an imminent threat of physical harm, and when and how that process is reviewed. With better documentation and quality assurance measures and returning to the reduction in use of restraints that previously existed, Defendants may be close to achieving substantial compliance with this provision.

i ii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving
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substantial compliance with this provision.
d. Mechanical restraints shall never be used for punishment or discipline.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is some indication that restraints may be regularly used with youth in Phase 1 at Krueger, which would be inappropriate. By ceasing this practice, and with better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence of youth being restrained to a fixed object. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that the large majority of staff have received training in physical force, restraints, and trained in proper de-escalation. However, de-escalation training needs to be completed more often (regular, informal, refreshers) so that staff can continue to develop this skill. Proper deescalation cannot be trained only once, or even only once a year. The Monitor suggested having staff who are very good at de-escalation work with staff who could use a refresher or with new staff especially since a large majority are new. During the site visit, there was a unit that was out of control and when the Monitor talked with staff, they all had been at LHS/CLS for a year or less. Documentation needs to be improved and a quality assurance mechanism needs to be in place.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
D. Strip Searches. The following provisions are effective immediately upon entry of the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that strip searching still occurs, but the Monitor cannot assess whether there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means because this is not documented. Blanket strip searches of youth at intake or returning from court has ceased, but staff are doing a “hygiene” check which requires a youth to strip to underwear and bra which is replacing the “strip search.” This type of search should only be used for the same reasons as a strip search when utilized for this purpose (probable cause of youth possessing drugs or weapons that could not be discovered through less intrusive means). As previously stated, the policy for searches need to be amended to reflect the language in this section.
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that strip searching is still occurring, but the Monitor cannot assess whether there is probable cause, whether less intrusive means were considered, or whether youth were allowed to change into a tank top or other clothing because this is not documented. Staff are doing a “hygiene” check which requires a youth to strip to underwear and bra which is replacing the “strip
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search.” This type of search should only be used for the same reasons as a strip search when utilized for this purpose. It does not appear that less intrusive searches are attempted before a strip search is conducted. Documentation shows that Staff are conducting pat down searches, but the Monitor did not see any and youth did not report this was happening. Additionally, hygiene checks go beyond tank top or other clothes (youth are stripped to underwear and/or bras.) As previously stated, the policy for searches need to be amended to reflect the language in this section. Documentation needs to be improved.
3. Process for strip searches.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to how staff are ensuring that unintended individuals cannot view the search (detail the area where search is occurring, state that there are no recording devices, and document who is present in the area, etc.) If documentation and policy revisions are made, substantial compliance can be obtained.
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved detailing the area where search is conducted and how other youth cannot view the youth being strip searched. If documentation and policy revisions are made, substantial compliance can be obtained.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
d.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to which staff conducted the search, that the search is by staff who is of the same gender identity as the youth if the strip search is being conducted by someone other than a medical professional. The Monitor recommended form changes for documentation purposes.
e. Strip searches must be conducted by staff trained in traumainformed practices.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that majority of staff have been trained in trauma informed care. Documentation needs to be improved as to strip searches.
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f. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is told by direct care staff and mental staff that mental health is consulted. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved.
E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most staff have been trained in the new MANDT training and other training which includes de-escalation skills training. The Monitor recommends increasing the training frequency for staff to increase their experience and skill levels in managing and de-escalating situations before they result in the use of restraint and/or isolation. Although there is a use of force review process, it needs to be thorough and comprehensive, include a corrective action plan when force was used where it could have been avoided, and timelier than they are being done. The Monitor recommended in instances where de-escalation was successful, those examples should be used as a training tool for other staff including having other staff view the videos.
F. Programming. Immediately upon entry of the Court's order incorporating this agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many of the recommendations that were made in the February 2018 technical assistance report have been implemented such as family events, yoga/Zumba, increased tournaments, more arts, and the additional programming listed in the narrative part of this report. Also, as recommended in the technical report, youth advisory and family councils have been implemented and the Monitor’s recommendations have been incorporated into the process (agendas, minutes, frequency, and increased staff involvement). Seven meetings took place over the last three months. The council meetings are well received by youth and staff. Although there were more activities for youth during this site visit, there is still a significant amount of idle time
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for youth. The Monitor recommended that a programming schedule be created and implemented. A draft version has been created but needs to be implemented and policy and procedure with a data measures needs to be created. The Monitor believes this will assist in reducing idle time and also will hold staff accountable.
As recommended previously, counselors, recreation workers, social workers, PSU staff, and volunteers can be utilized in creating and leading programming for youth. Several staff made suggestions for programming such as art therapy, dog therapy, increased tournaments, job readiness skills, music, balance and restorative justice, and teen court. Many of these suggestions have been implemented or will soon be implemented. During interviews with staff, staff expressed a desire to participate in activities with youth. Administration needs to increase meaningful/structured program and activity hours to further reduce youth idleness hours. As mentioned previously, increasing education hours can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming. Recreation and exercise schedules are every other day according to staff and appear to be inconsistent and often limited due to a variety of reasons. Extended recreation should be considered. The volunteer coordinator has contacted several potential community partners so hopefully this will prove beneficial. The Defendants have identified funding to pay for a consultant that can assist with developing gender and culturally appropriate programming. The Monitor provided potential experts for Defendants to consider.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Some of the recommendations made in the February 2018 report have been implemented such as hiring bonuses to obtain new staff, increased wages for current staff, staff recognition, and staff wellness initiatives. There has been a huge reduction in vacancy rates for direct care staff over the last six months. There still are major staffing challenges due various employee leaves and teacher vacancies. Other recommendations have not been implemented such as redrafting job descriptions and job postings which highlights the youth counselor aspect of position instead of “guard” or “corrections” description, rewrite position summary, reassess current staff schedules and placement, part-time staff to fill in the gaps and/or outside security firms to supplement existing staff, or assessing and ensuring staff are not working too much overtime. Given the long-standing staffing deficiencies, there is an urgent need to also explore methods for promptly reducing youth populations. This might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile
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correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
COMPLIANCES STATUS: DOC has identified sections of the Administrative Code that need to be modified, but significant revisions have not yet occurred. The Monitor has been told implementation will take some time as it requires certain Codes to be repealed and recreated. All policies refer to the Administrative Code and thus modifications to the Administrative Code should be a priority. Interim policies should be considered, and the Monitor has been told that there is a mechanism to amend policies for LHS/CLS.
II. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although reviews occur for most incidents (informally), the reviews often occur well after the 24-hour timeframe. Often, the reviews do not occur until 3-4 weeks after the incident. Timeframes have improved from previous months. Staff involved are not brought together for meaningful discussions. When it has been determined lesser means could have been used, there is not a corrective action plan developed. The Monitor made suggestions to the Superintendent as to this section during the site visit utilizing specific incidents occurring during the reporting period similar to the last visit.
B. Quality assurance. The superintendent shall establish performance goals, including compliance with the terms of this settlement; shall analyze data on whether those goals are met; and shall put in place immediate corrective action to address goa ls that are not being met.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Critical quality assurance positions are now filled and will be assisting in developing a quality assurance program. The Monitor reviewed sample performance goals, reviewed PbS in great detail, and made suggestions for monthly performance measures and how to incorporate into policy. As discussed throughout this report, data driven decisions are critical to come into compliance with this Court Order and to improve the quality of life for youth and staff.
CONCLUSION The Defendants have made significant improvements with improving staff and youth interactions, developing more programming options for youth, reducing confinement time, reducing mechanical restraints, reducing staff vacancies, developing staff wellness initiatives, filling new positions to help with data collection and quality assurance, identifying funding for various outside experts and funding for physical plant improvements, and made physical plant improvements. As a result of the progress made, it is clearly evident that these changes are having a positive impact on the overall atmosphere and culture of the facility. Staff are much more engaged with youth and building positive relationships which will ultimately have an impact on reducing incidents of violence, restraint and/or room confinement. Continued efforts need to be made with reducing teacher vacancies and increasing educational time, training in de-escalation and physical restraint techniques, amending policy and procedures, developing a quality assurance program, developing a means to monitor and track PbS critical outcome measures through a monthly metrics report or dashboard, and continuing the physical plant improvements (paint, murals, etched glass, covering graffiti, furniture in the day room and suicide “resistant furniture.” All documentation needs to improve. There should also be a focus on reducing/eliminating the confinement of youth during normal operational processes such as med pass, counts, shift change and splitting up youth in “high” and “low” halls. Although there is more work to do, the Monitor was pleased with the progress made over the last three months. The Monitor is happy to answer any questions or address any concerns by the Court or the parties. Respectfully Submitted, Teresa Abreu Monitor
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 Case: 3:17-cv-00047-jdp Document #: 113 Filed: 10/11/19 Page 1 of 28

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

FOURTH REPORT OF THE MONITOR

Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
The Third Report of the Monitor was filed with the Court on July 1, 2019. The Monitor’s fourth report will focus on assessing compliance with the Consent Decree, implementation of recommendations in the February 2018 technical assistance report, and comment on any observations and/or updates from the third site visit which took place May 31, 2019. Any documentation or updates submitted after the conclusion of the fourth site visit will be addressed in the fifth report of the Monitor.
SITE VISIT The fourth site visit by the Monitor took place on September 13 through September 15, 2019. The Monitor reviewed materials provided by the parties prior to, during, and after the site visit. Materials included, but were not limited to: updated Krueger program handbook, grievances, counselor logs, staff memos, daily shift reports, video footage of use of force incidents and activity on unit, all of the monthly data submitted to the parties per this court order, unit rules, work rules, employee leave data, employee corrective action reports, behavior and treatment plans, mechanical restraint documentation, incident reports, other housing documentation, self-assessment report and supporting documentation including policy drafts, facility enhancement report, and various meeting minutes. The Parties were present during the site visit. The Monitor took photographs,
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toured LHS/CLS, and interviewed youth and staff. Approximately thirty-two (32) youth and twenty-eight (28) staff were interviewed formally and informally by the Parties during this site visit.
GENERAL OBSERVATIONS
Physical Plant
The general areas of the facility were very clean and orderly. The atmosphere was very calm throughout LHS/CLS. Youth and staff seemed much more relaxed and happy than in previous visits. All of the landscaping has been completed and the outdoor space is very inviting. The majority of the recommendations as to physical plant modifications made in previous Monitor reports and the February 2018 technical assistance report have been implemented or are in progress (described in more detail throughout this report). The etched glass issue has been resolved by installing new windows throughout the facility. Several other physical plant improvements have been made including, but not limited to, permanently mounted security fans in living units, Hughes unit perimeter fence repaired, roof deterrent system in place, new boilers in living units, cottage exterior window replacement, and fixing of some drainage issues. Additional projects not yet completed are the camera upgrade, electronic rounds tracking system, electrical upgrade, and installing a new generator. The Monitor will continue to update the Court on physical plant improvements that increase the safety and quality of life for youth and staff. There is still a significant amount of graffiti in Addams and Black Elk. The Monitor gave suggestions for tracking, monitoring and accountability for graffiti. Defendants will need to continue to monitor and cover graffiti on an ongoing basis.
Previously, the Defendants informed the Monitor that there was a bid for painting the interior of the cottages and a youth art program to further decorate the walls with murals and artwork. There are several new beautiful murals and art projects that have been completed since the last site visit and more are currently underway throughout the facility. Renovations have been completed on one of the girls’ units (Wells), and the girls are now in the newly renovated unit as of June 6, 2019. Dubois and Miller are also in the process of being renovated and this will continue throughout the facility. The renovations to date are exceptional.
In general, youth rooms were cleaner (most beds were made) but the bathrooms remain messy and dirty. However, several maintenance issues that were observed throughout the facility during the last site visit which needed attention such as bathroom leaks, faucets running, and toilets not working, etc. have been addressed. The Monitor recommended including incentives around the room/bathroom cleanliness in the new behavioral management system. Defendants have included this in their behavior management system and Spring and Summer Clean Up contests have occurred, and other incentives are planned on a regular basis. Defendants have removed and/or secured items that have been used by youth in disturbances and built barriers around areas containing these objects in order to create a safer environment. The Monitor recommended that searches of all buildings be conducted to remove excessive objects, materials, equipment, furniture, etc., to enhance the safety and security of the units/buildings and to maintain a more orderly and safe environment. The process for area and personal searches has been updated and is being documented electronically using JTracker. The Monitor previously recommended that Defendants consider replacing existing furniture with furniture that is specifically designed and engineered for secure environments and the secure
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furniture has been piloted in a living unit. The Monitor also noted that one or more living units had security bars on the exterior windows to prevent such disturbance and reduce the likelihood of a disturbance or escape. Additional security enhancements on Krueger and other areas have been implemented. There is a schedule for the removing of existing furniture and replacement with a goal completion date of June 2020.
School/Living Units Observations
The Monitor visited each cottage and toured the school on Friday. The Monitor recommended that “split hall” time be eliminated, and youth remain out in the day room during medicine pass, counts, and shift change. As of September 3, 2019, the Defendants have ceased doing confinement for these reasons throughout LHS/CLS. Another notable change, which had been implemented starting on Sept. 3, 2019, was that the units had moved to “open dayrooms” which allowed the youth to be out of their rooms from at least 8 a.m. to 8 p.m. This change generally seemed to improve youth morale.
There was an awards assembly on Friday thus, the Monitor could not observe youth in school during this site visit. Below, are the Monitor’s observations:
The Monitor saw the majority of staff engaging with youth. As stated above, there was an awards ceremony for the “Summer Games” event that took place (which included all the boys’ units other than Krueger). Awards were given out for both LHS/CLS youth. The Monitor observed the ceremony for LHS youth. The staff were sitting with youth, youth were engaged, and it was a positive atmosphere with no incidents taking place. It was evident that this was a joyous event for staff and youth which carried into a positive atmosphere throughout the entire day. Youth attitudes overall were very good during this site visit. All the improvements in the school area made prior to the last site visit are still evident. The school had positive messages throughout, artwork displayed, names of youth on the honor roll were displayed, windows in classrooms were no longer covered so there was a clear unobstructed view which increases safety for staff and youth and the school was very clean. The Monitor previously recommended that the Defendants hire an education expert to complete an assessment of the educational programming at LHS/CLS. The expert was retained and provided initial observations. The expert plans to return in November to further assess the education department’s operations and make specific recommendations. The Defendants did move the girls’ educational programming out of the main school and into a smaller building in the Copper Lake section of the facility, with far fewer amenities and facilities than in the main school. The Monitor highly recommended that the girls return to the main school as soon as possible. Defendants have indicated they will work towards this goal. In addition, youth on levels 1 and 2 in the Krueger Program continue to attend school in classrooms on their living units. The Educational expert will make recommendations to education and specifically address education for youth on Krueger.
All the girls were back in Wells since the renovation project was completed. Staff were engaged with the youth during free time, the unit was clean, the girls had good attitudes and were very polite and somewhat chatty. The safety/welfare checks were completed and up to date and staggered. One youth was voluntarily in her room, but it was not documented. Staff on Wells need to make sure they are logging when youth voluntarily go into and exit their rooms. The Monitor recommended that the Defendants needed to focus on gender specific programming to enhance the programs and activities for the girls’ facility. A Youth In Custody Practice Model (“YICPM”) subject matter
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expert provided training to facility staff August 27-30, 2019. Administration should continue to train and utilize the training in their programming on a regular basis. Feedback from the training was very positive.
With respect the boys’ cottages, generally, all the youth rooms were cleaner than last visit. The Monitor reviewed the safety/wellness documentation and it has greatly improved from the last visit. Documentation complied with policy and procedure in 97% of the logs reviewed in LHS. Staff should be commended for the significant improvement in the safety/welfare observations and documentation. The Monitor made further recommendations to the forms that will make it easier for staff to complete and would require less staffing. In previous reports, the Monitor commented on staff placement on the unit. During this site visit, staff were placed near the youth and were much more interactive with the youth. However, now that the youth are all out of their rooms from 8 A.M. to 8 P.M. (generally speaking), staff need to consider adjusting staff placement on the unit to make sure staff are aware of which youth are in the general living space, in their rooms, restrooms, outdoor yard, etc. There were significantly less youth in their rooms during this site visit than any of the previous site visits.
In Krueger, the unit was clean. Youth rooms were messier on Krueger than during the last site visit. The Monitor observed three youth in their rooms but was told the youth were in the rooms at the youths’ request. Other youth were playing basketball, watching television, and making phone calls. Staff knew the count on the unit.
In Addams, the living unit was clean and there was a beautiful mural on the wall. There were no youth on the unit as they were at recreation. Although the graffiti was removed prior to the last visit, there was significant graffiti in the youth rooms. The bathroom was very dirty, and the faucets were on slightly. The television was on in the unit despite there being no one on the unit. Safety/Welfare checks were unavailable since the youth were not in the cottage.
In Black Elk, the unit was clean and calm. There is a lot of graffiti in the rooms as was present during the last site visit. Youth were playing cards, watching television, and braiding hair. Staff were preparing lunch for the youth. Youth were appropriately chatty with the monitoring team and staff. Four youth were in their rooms and the safety/welfare checks were completed and staggered.
In Curtis, the general area of the unit was clean and calm. Bathrooms were dirty. All youth were out of their rooms. Youth were very chatty. Youth were watching television, making phone calls, and talking with each other. Safety/welfare checks were complete and staggered. Med passes was taking place and youth were appropriately receiving medication. Some of the youth rooms were clean and some were not. Staff were appropriately engaging with youth.
The Rogers unit was generally clean and youth rooms were generally clean. The bathroom was not clean and had a strong smell of urine. Youth were watching television, playing cards, video games and talking with each other. One of the youth rooms had a strong smell of urine. Staff immediately addressed this when the Monitor brought this to their attention. A few of the youth rooms had personal pictures on their windows. The Monitor informed the staff that the windows into the youth rooms need to be unobstructed and pictures should be placed in another area of the room. Staff immediately removed the pictures. All youth were out in the day room (no one was confined). Safety/welfare checks were conducted every 30 minutes or less and staggered. Staff
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were appropriately engaging with youth.
In Hughes, the unit was clean and calm. Youth rooms were generally clean. Youth were on the telephone, talking with each other, and some youth were eating. The nurse was on the unit and engaged. Youth were very chatty and spoke quite positively about LHS. Youth rooms were messy. Safety/welfare checks were complete and staggered. Staff were appropriately engaging with youth.
The Roosevelt unit (TIP) was loud and the unit smelled. Some youth were watching television, some youth were outside, were very chatty, and staff were engaged. The glass in the youth rooms has all been changed out to bigger windows. There were three youth with phone restrictions as confirmed by staff. It is very important that youth have access to the telephone and be able to communicate with family. The Monitor suggested that phone usage should not be a restriction unless there is an extreme circumstance. While the Defendants use of phone restrictions as a sanction has decreased significantly during the reporting period, it is critical that eliminating phone restrictions except in extreme circumstances be implemented immediately.
Once all of the renovations in the cottages are completed, the Monitor believes this will enhance the safety, well-being, and quality of life for youth and staff. The Monitor looks forward to the continued expansion of the new rooms design throughout LHS and CLS.
Staff and youth continue to make positive comments and have positive attitudes. The Monitor saw the same positive interactions between staff and youth as the last visit. LHS/CLS continues to have less of an institutional feel and the overall atmosphere has vastly improved. There is a significant reduction in the number of youth confined.
Administration, staff and youth should be commended. There are still complaints from youth, however. The biggest complaints from youth were regarding the new vendor for canteen, perceived unfairness of how the new behavioral point system was applied, being bored due to lack of programs and activities, and being put on phone restrictions (which cuts them off from vital support from their families).Due to the fact that youth have more time out of their rooms, there needs to be an even bigger focus on reducing youth idleness and more structured programming should be put into place.
Staffing
In August 2019, Defendants hired a new Administrator who will oversee the Division of Juvenile Corrections. Additionally, a new Security Director for LHS/CLS was hired in July 2019. Direct care staffing vacancy percentage has improved from the last site visit, however, staffing issues continue to exist at LHS/CLS. There are 311 total positions at LHS/CLS. Approximately 155 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”). There are still a large number of staff on various leaves of absence (FMLA/Workers’ Comp, etc.) which contributes to the staffing shortages and mandated overtime. The teacher vacancy rate remains high but with slight improvement over the last three months. Recruiting is still a challenge. This is directly impacting education for youth. The Monitor looks forward to the educational expert’s assessment/report which will be available after his second site visit.
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Position

Vacancy Rate % as of Vacancy Rate % as of Vacancy Rate % as Vacancy Rate % as of

November 28, 2018 March 14, 2019

of May 31, 2019

Sept. 6, 2019

Youth Counselor

22% (23 of 105)

15% (16 out of 105) 11.5% (12 out of 105) 14% (15 out of 105)

Youth Counselor Adv.
Teacher

18% (9 of 50) 39% (11 of 28)

Social Worker 14% (2 of 14)

48% (24 out of 50) 50% (25 out of 50) 7% ( 3.5 out of 50)

39% (11 of 28) 0% (14 of 14)

43% (12 of 28) 0% (14 of 14)

36% (10 of 28) 21.5% (3 of 14)

In order to address staffing challenged at LHS/CLS, effective April 28, 2019, security personnel began receiving a $5.00/hour add-on for worked hours. Eligible employees are in the classifications of Correctional Officer, Correctional Sergeant, Youth Counselor and Youth Counselor Advanced. Additionally, most recent youth counselor academy began in August of 2019 and has 23 members. This is a considerable increase compared to the academies earlier this year. Prior to the $5.00 add-on, the vacancy rate for the Youth Counselor and Youth Counselor Advance staff was at approximately twenty percent (20%). As of August, that has fallen to ten percent (10%) which is an overall decrease of approximately fifty percent (50%). The Monitor also recommended non-traditional scheduling. LHS/CLS has decided to implement a 12-hour schedule starting in November. In the last report, the Monitor recommended that the facility conduct a full staffing assessment to include a relief factor analysis looking at all leave types and its impact on staffing levels. A staffing assessment has been completed. The Monitor made recommendations to the staffing analysis.
The Monitor spoke to over twenty-eight (28) staff and the majority of staff seem energetic despite working many double shifts. The vast majority of staff expressed the desire to have more programming for youth. The Monitor asked staff their thoughts on the new 12-hour schedule and most staff are fine with the change. In fact, more staff were concerned that they will lose overtime once the schedule changes. In response to the Monitor’s last report, the administration conducted Situational Awareness Training (a POSC update training) focused on alternative techniques to prevent and address behavioral problems provided to staff in July and August. The facility plans to continue this, and other similar trainings based on staff input going forward. Staff said they enjoy interacting with youth and are accepting of the changes that are taking place. Staff did not have a problem with youth no longer being confined during shift changes, medicine pass, or due to split hall. Most staff did not have a fear that the elimination of OC Spray was coming. Most staff continue to show more attention to building relationships with youth and in engaging youth in a positive manner.
The Defendants have implemented many of the recommendations for staff wellness. The Monitor continues to stress the need to make staff wellness a major focus moving forward. The Monitor saw that there were employees recognized as “Employees of the Month.” The Monitor also suggested creating a relaxing staff break room especially since they will be working 12-hour shifts starting in

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November. It is important that the break room is inviting and relaxing and should not have an institutional feel. The Defendants should continue to create policy driven staff recognition programs, and tap into staff’s talents, passions, and interests to bring into programming as previously recommended.
There has been improved communication with staff and youth regarding the reform effort (written and verbal). Many of the communications to staff and youth have been written a positive manner, although there is a need to ensure that new policies and instructions do not focus on the court order as reason for changes, but rather emphasize that these changes constitute proper policy and procedure. As recommended in the technical assistance report, staff are engaged in developing programming and policy changes and are actively participating in youth and family council meetings. However, staff can further be engaged in these processes. There is too much unstructured free time throughout LHS/CLS. The Monitor made recommendations of furthering meaningful staff engagement (groups on canteen issues, creating a newsletter, talent shows etc.)
As part of the agency and facility commitment to improving conditions for both staff and youth, they are continuing to engage in the Youth in Custody Practice Model (YICPM), which was explained in the previous Monitor report.
The Monitor suggested modifying the mental health (PSU) and recreational staff work schedules to include more evening and weekend hours. PSU work until at least 8 P.M. during the week and are on-call 24/7. The Defendants should continue to involve PSU staff, especially leadership, in making improvements at the facility (such as improvements to incentives, consequences, and working with the OJOR system.) Currently, there is a PSU staff member who comes in each weekend to perform rounds and will report to the facility as needed in addition to the scheduled rounds. Recreation staff are working until 9 or 10 P.M. and two new Recreation Leaders were hired in July and September. One will focus on art and the other on music.
Quality Assurance (“QA”)
To address the need for a quality assurance and improvement program, the Defendants have created and now filled both QA positions (Quality Assurance Specialist and Program and Policy Analyst). The goal is to continuously assess not only compliance with this court order, but the quality and adequacy of the social and recreational programming provided, healthcare, education, environmental health, safety, and discipline. The Monitor has begun working with the individuals selected for these positions.
Defendants have created a comprehensive quality assurance program that will greatly increase the accuracy and quality of data. Defendants have developed new systems and review processes. It is clear that the persons responsible for quality assurance are eager to make improvements. The Monitor anticipates a huge improvement in data collection in the months to come. During each site visit, the Monitor focuses on different aspects of the operation. During this site visit, the Monitor spent a lot of time going over data and discussing how data can be used in different capacities in order to make decisions impacting the lives of youth and staff. The Monitor made suggestions on forms used that will allow line staff to more easily record data that can then be collected and analyzed. The Monitor provided samples of policies which included quality assurance measures. The Defendants have created a “Quality Assurance Review” process that
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will be completed every month. The Defendants have drafted policy and procedure based on the Monitor’s suggestions. Additionally, “Incident Debrief Process” enhancements have been implemented and continue to be developed for further improvement. Visual Monitoring, youth complaints, and CARE Team quality assurance processes have been developed and implemented. Observation checks, incident debrief, and searches are the next processes to be piloted. Facility Procedures including a QA portion for eight different processes have been drafted and are in the final stages of internal approval process.
Data recording has improved in safety/security checks, incident reports, use of force reports, grievances, PSU/Medical documentation, mechanical restraints, searches, and meals in and out of room on Krueger. There needs to be a continued focus on adequacy of data collected and analysis of other subjects of the court order. Defendants need to make this is a priority.
The Monitor has discussed PbS in detail in previous reports, and thus, will not go into detail in this fourth report. Although PbS data collection cycles occur twice annually, in April and October, the Defendants are looking into ways to monitor the critical outcome measures on a monthly basis, possibly using J-Tracker. Facility Improvement Plans have been created after PbS Coach Site Visit and has been forwarded to the Monitor.
The Program and Policy team for the Division of Juvenile Corrections should continue to work with the vendor (J-Tracker) to include other critical measures as described during the site visit and continue to work towards developing an electronic room check system. A vendor has been awarded a contract for electronic room checks and additional tracking of other youth activity.
Policies and Procedures
Revisions to policy, procedure and Administrative Codes are occurring but have not been finalized. DJC Administrative Rules Committee had its first meeting on May 30, 2019. The process for amending Administrative Code DOC Chapter 376 began as of September 3, 2019. The process for amending DOC Chapter 373 will begin after public hearings on the scope statement describing changes are held on September 20. All policies refer to the Administrative Code and thus modifications to the Administrative Code should continue to be a priority. Two previously existing division policies have draft amendments and six facility procedures have been drafted including a QA portion:
Two division policies: 300.05.09 – Searches of Youth 500.70.04 – Clinical Observation
Six facility procedures: 900.04.01 – CARE Team 900.05.01 – Visual Monitoring 900.05.02 – Mechanical Restraints 900.05.03 – Administrative Confinement 900.05.04 – Rapid Response Team 900.05.05 – Incident Debrief
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Interim policies and procedures for LHS/CLS need to continue to be developed. Policies relevant to LHS/CLS need to be compliant with the federal court orders and should contain a quality assurance section for every policy. Defendants should continue to update policy and procedures because without updated policies and procedures which include quality assurance measures, substantial compliance with the court order cannot be achieved.
There should be formalized training with employee sign offs acknowledging receipt and understanding all policies and procedures. Effective proficiency testing for all training classes still needs to be developed. The Monitor will continue to work with the Defendants on policy and procedure.
Youth Interviews
Plaintiffs’ counsel and the Monitor conducted several youth interviews. Approximately thirty-two (32) youth were interviewed during the site visit (formally and informally). In previous visits, several youth wanted a more formal discussion with the ACLU attorney and/or Monitor. There were significantly less requests this visit. In general, the major complaints from youth were the new canteen vendor, perceived unfairness in how the point system was applied, being cut off from the phone—and therefore often family contact—as a punishment, and the desire to have more things to do. The overwhelming majority said that they were not confined much, if at all, were not restrained, and were not strip searched. A few youths did like when staff did unit and rooms searches. Most youth did not have complaints about staff but there were still a few youths concerned about how some staff members treated them. Most youth liked the modified behavior management program. There were a few who discussed certain situations and the Monitor and ACLU looked into the allegations during and after the site visit. Because of the new policies regarding open dayrooms (no split out time) and doors on privilege (youth can leave their rooms without permission), confinement due to split halls, counts, shift change, and medication pass is effectively ending confinement outside of administrative confinement. The Monitor believes that has had an overall positive impact.
Most staff were engaged with youth in a positive manner and were placed in the vicinity of youth. As mentioned, staff positioning probably needs to be reevaluated now that all youth are out of their rooms and have more freedom to move about.
The Monitor observed (and youth reported) several positive interactions between youth and staff. Defendants have implemented more PM programming activities. PSU has also initiated a number of additional groups and expanded the availability of these sessions to youth. Defendants continue to offer more programming however, there is still too much idle time especially during the weekend. Defendants are and should continue to identify more resources and continue to implement the programs as recommended by the experts retained. Defendants have made significant progress in improving the quality of life for youth and staff.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated,
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there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative.
Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for seven days. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure –and if this improvement is sustained - they will reach substantial compliance.
b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for three days. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure – and if this improvement is sustained - they will reach substantial compliance.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: There is no evidence in data/reports that indicate youth are being subject to punitive room confinement. During this reporting period, the Defendants have improved documentation and have issued directives and created procedures to address youth behavior. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure – and if this improvement is sustained - they will reach substantial compliance.
2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an
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initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:
COMPLIANCE STATUS: PARTIAL COMPLIANCE. During the last reporting period, there were instances in which administrative confinement was being used for youth who did not pose a serious risk of imminent physical harm. It also appeared that, rather than releasing youth from confinement as soon as they no longer pose a risk, Defendants were generally treating four hours as a default minimum period of time for administrative confinement. The Monitor suggested how to document this requirement in policy and in forms as well as made suggestions to place youth in the day room once they no longer pose a serious risk of imminent physical harm to others. Defendants have incorporated the Monitor’s suggestions. Documentation and data from July were utilized in the incident debriefing and administrative confinement process which has significantly enhanced Defendant’s ability to track administrative confinement placements. Incident Debrief and administrative confinement procedures are part of the eight procedures drafted and undergoing review prior to finalization. The Monitor suggested alternatives to confinement for administrative purposes such as med pass, counts, shift change, and split hall time. As of September 3, open dayrooms and doors on privilege have addressed many confinement issues during these periods. During the last site visit, generally, youth who were in administrative confinement were transferred to the Krueger program. This has changed in that now most youth serve the administrative confinement on their home unit. Some youth are serving their confinement on Krueger and are referred to the “Krueger Program.” The Krueger Program has been modified based on some of the Monitor’s recommendations, but there is still more refinement that needs to happen. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plan needs to be revisited with more frequency should a youth not be able to return to the home unit in an appropriate period of time. The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program as well as criteria for exiting the program. Defendants conduct training, improve their quality of data and documentation and incorporate the court order into policy and procedure – and if this improvement is sustained - they will reach substantial compliance.
a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12 hours) when:
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i.

A psychologist, psychology associate or psychiatrist

recommends continued confinement because the youth

poses a risk of imminent physical harm to others, and

COMPLIANCE STATUS: PARTIAL COMPLIANCE. In a large number of instances, it does not seem that administrative confinement is being extended. In the instances where confinement has been extended, a mental health associate (PSU) has authorized it. If Defendants improve their quality of data and documentation and incorporate the court order into policy and procedure – and if this improvement is sustained - they will reach substantial compliance.

ii.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. During the last site visit, generally, youth who were in administrative confinement were in the Krueger program. This has changed in that now most youth serve the administrative confinement on their home unit. Some youth are serving their confinement on Krueger and are referred to the “Krueger Program.” The Krueger Program has been modified based on some of the Monitor’s recommendations, but there is still more refinement that needs to happen. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plan needs to be revisited with more frequency should a youth not be able to return in an appropriate period of time. The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure and train staff accordingly.
b. Administrative confinement time limits may be tolled from 8 pm to8 am.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Time is being tolled from 8 pm to 8 am.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a commenced plan.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence that administrative confinement has been extended beyond 24 hours, and thus there have not been such transfer plans created. If Defendants improve their quality of data and documentation, and incorporate the court order into policy and procedure, they will be in substantial compliance.

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d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. If Defendants improve their quality of data and documentation, and incorporate the court order into policy and procedure, they will be in substantial compliance.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended pol icy.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. DJC Clinical Observation policy 500.70.24 was updated on 9/19/18 and the dates contained in the policy has been corrected. The Monitor suggests a more formal training and staff sign off reflecting they read and understand policy. Additionally, a quality assurance mechanism needs to be finalized.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. As previously stated, the Monitor would not deem any room in any facility as being “suicide proof,” however there are safety and security measures that can be put into place to reduce the risk of suicides and to make the rooms more suicide resistant. The Monitor recommended that Defendants replace the existing room furniture with furniture that is specifically designed and engineered for secure environments. The new replacement furniture which is in the Wells unit is consistent with what the Monitor would expect to see in a secure facility and should certainly reduce the opportunity for suicidal incidents within the youth rooms. There is a plan in place to make such changes in the rest of LHS/CLS.
With respect to youth rooms, there was some change from the last site visit. Most youth rooms had their beds made and were cleaner than last visit. The Monitor did not observe rooms with multiple blankets/sheets covering large areas of the room. Room searches are taking place more often. There has been significant improvement on graffiti and etching on the glass which has improved staff’s ability to clearly see the youth through the window. Also, on the TIP unit, the Monitor recommended that the windows to be changed
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(they were very small and pretty high on the door). These new windows have been installed.
Safety/Welfare checks have significantly improved and are now being done on an individual basis. Safety/welfare documentation show that room checks are being completed at least every 30 minutes and are staggered in the majority of cases. Defendants have provided additional personnel to ensure that the checks are being done in accordance to policy and procedure. There are also regular quality assurance reviews in order to increase compliance. As previously mentioned in this report, The Monitor has made recommendations to the forms that will simplify the process. The Monitor recognizes that an electronic system is being explored by the agency, but this will take some time. Safety/welfare checks should continue to be a priority and progress needs to continue to be made. While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks.
b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth did not complain about access to water, hygiene supplies, or night time toilet usage. This is a huge improvement from the last visit. If Defendants improve their quality of data and documentation, and incorporate the court order into policy and procedure, they will be in substantial compliance.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has been improved but still needs more improvement. Time of call to PSU staff is now being documented on the incident report in most instances, but there is room for improvement. This requirement should be included in the development of a quality assurance program.
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d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Monitor requested any documentation indicating that confinement is contraindicated and there were no instances documented during this review period. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04).
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Safety/Welfare checks have significantly improved and are now being done on an individual basis. Safety/welfare documentation show that room checks are being completed at least every 30 minutes and are staggered in the majority of cases. Defendants have provided additional personnel to ensure that the checks are being done in accordance to policy and procedure. There are also regular quality assurance reviews in order to increase compliance. As previously mentioned in this report, The Monitor has made recommendations to the forms that will simplify the process. The Monitor recognizes that an electronic system is being explored by the agency, but this will take some time. Safety/welfare checks should continue to be a priority and progress needs to continue to be made.
Defendants are holding staff accountable for this reporting period as there were 27 “Letters of Expectation” and two staff were formally disciplined related to visual monitoring. The agency is going to implement an electronic, software-based rounds checking system. PSU staff do visit youth daily when on site and have increased in-person hours on the weekend as recommended by the Monitor.
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While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks.

f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Property restrictions are most commonly applied by PSU for safety reasons, however forms and process for documenting any potential property restrictions need to be created and implemented.

g. Youth in room confinement shall receive:

1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Social worker visits, mental health services, and other health services are provided. Once documentation, the quality assurance program is finalized, and this requirement is clearly in policy and procedure, Defendants will be in substantial compliance.

ii.

Any rehabilitative programming (e.g., Aggression

Replacement Training, Juvenile Cognitive Intervention

Program, etc.) that was scheduled or in process before

placement in room confinement.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is a lack of documentation as to specific programming that occurs daily. The Monitor anticipates this will change once the Krueger Program is updated/modified according to discussions during the site visits. Also, there are occasions where staffing levels do not allow for planned programming. There has been improvement in available programming, but there is still a lack of other activities for youth to engage in resulting in excessive amounts of idle time. At the visit, it was stated that the OJOR no longer requires specific programming such as ART to be released from LHS and that the programming provided in the Krueger program (such as DBT) will suffice, but this needs to be verified, documented and included in policy and procedure.

iii.

Educational services with the general population to the

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extent practicable. If attending educational services with the general population proves unworkable due to an immediate and substantial threat of physical harm or an unreasonable risk of significant disruption to classroom instruction, youth in room confinement shall receive alternative educational services on days that the general population receives such services. Defendants shall ensure special education services for all eligible youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Educational Services for general population occur in the classrooms in the school area. Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in Krueger do not receive educational services in the school area (except for youth on Phase 3) but remain on living units. Additionally, during this reporting period, administration decided to move the girls’ educational services out of the traditional school area and into a building with far fewer amenities and facilities than the main school. The Monitor recommends that all youth regardless of status have education in the school area. The education expert will make further recommendations that should be implemented. The Defendants are working on bringing more culturally relevant program into LHS/CLS.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. “Out time” has significantly improved in the last three weeks of this reporting period. “Split hall” (which means a portion of youth are confined to their rooms while others are out, and they rotate) ceased in September. The Monitor regularly saw youth conversing with other youth and staff during out time. In youth interviews, youth stated that they are not really confined to their rooms at all. Youth still want more structured activities when they are out of their rooms and feel they do not really do anything, which, as discussed elsewhere, is a significant problem. The Krueger program is out of pilot form, and the leadership has re-evaluated the program to ensure compliance with the court order and technical assistance report with the Monitor’s assistance. More refinement to the Krueger Program needs to occur as discussed during the site visit. Enhancing programs and meaningful activities for the Krueger program should have a positive impact and allow for youth to return to their home cottages more quickly.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

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eating that meal out of the cell.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The majority of meals take place out of the room but there are several occasions where youth eat meals in their rooms when there is not an immediate and substantial threat of physical harm. The Monitor did not witness youth eating in their rooms but has reviewed documentation in which youth are eating meals in their room. Should a youth eat a meal in their room, the decision by staff needs to be justified, supported by documentation, and instances need to be reviewed by facility administrators. Meals are not documented on living units except Krueger, but they need to be. When reviewing the Krueger documentation, a large number of youth are eating in their rooms without evidence of a threat of physical harm. There are less blank entries (meaning staff is not documenting whether youth are eating in rooms or not) than during the last review period. Policy and procedure needs to incorporate this section of the court order and quality assurance measure created.

vi.

Minimum "out time" from the cell of at least 30 hours per

week and at least 3 hours per day. Time in general population

on a given day shall be credited to those hours.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that youth are receiving 3 hours of “out time” per day or 30 hours per week. This has significantly increased since confinement due to split halls, confinement for shift change, counts, and medicine pass has been discontinued. Documentation and data collection need to be improved.

5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. It is not clear whether youth are being told that they can grieve their placements in room confinement at all (or being told they can do so within 15 minutes of placement). There were 109 grievances filed by youth during this reporting period (on a variety of issues, not just placement). This indicates many youths utilize the grievance procedures. Defendants do have a robust tracking system in place. Defendants do analyze and have created measures for youth grievances. The quality assurance piece needs to ensure grievances are being timely and appropriately addressed and communicated to youth. The Monitor made recommendations to forms which if implemented, should improve data collection.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of
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room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Court Order requires documentation of all forms of room confinement, and Defendants are now documenting this more consistently. In addition to improved documentation, there are significantly fewer instances of room confinement. Documentation needs to continue to be completed and consistently applied to all situations, other than sleeping hours, in which youth are confined alone in their rooms and the reason for the confinement. Documentation, data collection and reliability, and quality assurance needs to continue to be improved. Also, documentation needs to be created that prove a youth was promptly provided with the report upon the completion of room confinement.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. OC usage has significantly been reduced during this reporting period. The Monitor made several recommendations including increased training, implementing a specialized team, and ensuring incident reviews are meaningful. Defendants have/will be implementing these recommendations. The CARE Team has been expanded and the specialized team is being created. Defendants should continue to do regular training on de-escalation. Additionally, as recommended in the technical assistance report, a new incentive-based behavior management program that focuses on rewarding positive behavior has been created which will have a direct impact on youth behavior and thus, reduce the need for force of any kind. Continued focus on training, skills development and coaching, continued focus on overall atmosphere should have a positive impact on the number of incidents requiring this type of intervention.
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The below graph reflects the combined usage of OC at LHS and CLS in 2019.

LHS/CLS 2019 Combined Chemical Restraint Use

12 10
10
8

10

8

8

6

5

4

3

3

2

1

0

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

LHS/CLS Use 2019

2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.
COMPLIANCE STATUS: N/A. It was not 12 months at the time of the site visit. Compliance will be assessed by the Monitor at the time required under this section.
C. Mechanical Restraints. The following provision shall be effective immediately upon entry of the Court's order incorporating this Agreement:
1. Prohibition on types and uses of mechanical restraints.
a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor did not personally see any youth in mechanical restraints during site visits, but logs show there are occasions where youth are placed in mechanical restraints. With better documentation and quality assurance measures, and final policy and procedure, Defendants may be close to achieving substantial compliance with this provision if they can document and establish that there were not less restrictive means available and quality assurance measures and final policy and procedure are in place.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the

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youth regains control and when the threat of harm or the safety concern has abated.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraints are rarely used. Documentation has improved over this reporting period. Documentation needs to be improved to document that an imminent threat of physical harm and when and how that process is reviewed. With better documentation and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.

c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

i. Mechanical restraints may be used when ordered by PSU to attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.

ii.

Mechanical restraints may be used if the youth poses an

immediate and substantial threat of physical harm to others.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has improved relative to when restraints have been used and rationale for usage. With better documentation and quality assurance measures and continuing to reduce the use of restraints, Defendants may be close to achieving substantial compliance with this provision.

iii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
d. Mechanical restraints shall never be used for punishment or discipline.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence of youth being restrained to a fixed object. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that the large majority of staff have received training in physical force, restraints, and trained in proper de-escalation (13 trainings June-September 2019). However, de-escalation training needs to be completed more often (regular, informal, refreshers) so that staff can continue to develop this skill. Proper de-escalation cannot be trained only once, or even only once a year. The Monitor continues to suggest having staff who are very good at de-escalation work with staff who could use a refresher or with new staff especially since a large majority are new.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time
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the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraint use has been added to the Incident Debrief process and the Incident Debrief process itself is being analyzed for improvement. New data will be available. The use of mechanical restraints has been significantly curtailed and documentation including the length of time youth spend in restraints when the use of mechanical restraints occurs is now being documented as part of the Incident Debrief process. If Defendants maintains this, they will be close to achieving substantial compliance.
D. Strip Searches. The following provisions are effective immediately upon entry of the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there are occasions where youth are strip searched, albeit at a reduced frequency. In July, there were zero strip searches with or without probable cause. Blanket strip searches of youth at intake or returning from court has ceased. Hygiene checks have been completely eliminated as of August 6, 2019. The policy for searches needs to be finalized. Defendants are close to being in substantial compliance.
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that strip searching still occurs but on a much lesser frequency. In July, there were zero strip searches with or without probable cause. Blanket strip searches of youth at intake or returning from court has ceased. Hygiene checks have been completely eliminated as of August 6, 2019. The policy for searches needs to be finalized. Defendants are close to being in substantial compliance.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to how staff are ensuring that unintended individuals cannot view the search (detail the area where search is occurring, state that there are no recording devices, and document who is present in the area, etc.) If documentation and policy revisions are made, substantial compliance can be obtained.
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved detailing the area where search is conducted and how other youth cannot view the youth being strip searched. If documentation and policy revisions are made, substantial compliance can be obtained.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to which staff conducted the search, that the search is by staff who is of the same gender identity as the youth if the strip search is being conducted by someone other than a medical professional. The Monitor previously recommended form changes for documentation purposes.
d. Strip searches must be conducted by staff trained in traumainformed practices.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Training records indicate that staff have been trained in trauma informed care.
e. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is told by direct care staff and PSU is consulted. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The process for tracking and documenting all searches including the probable cause for any necessary strip search and the weapons, drugs, or other items discovered has been incorporated into J-Tracker as of September 1, 2019. With continued practices, Defendants will be in substantial compliance.
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E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most staff have been trained in the new MANDT training and other training which includes de-escalation skills training. The Monitor recommends increasing the training frequency for staff to increase their experience and skill levels in managing and de-escalating situations before they result in the use of force, restraint and/or isolation. All staff have completed Mandt training in 2018 and it is included as a component of the Youth Counselor Academy. All staff are required to attend a Mandt refresher training in 2019. There are multiple sessions available to staff beginning in October 2019. The use of force review process has improved. It is more thorough, comprehensive, and timely. Corrective action plans when force was used where it could have been avoided are being done in most cases. The Monitor recommended in instances where de-escalation was successful, those examples should be used as a training tool for other staff including having other staff view the videos.
F. Programming. Immediately upon entry of the Court's order incorporating this agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many of the recommendations that were made in the February 2018 technical assistance report have been implemented such as family events, yoga/Zumba, increased tournaments, more arts, and the additional programming listed in the narrative part of the Third Report of the Monitor. Youth advisory and family councils have been implemented and the Monitor’s recommendations have been incorporated into the process (agendas, minutes, frequency, and increased staff involvement). Recreation leaders have been hired to focus on art and music. There have been musical instruments purchased. The Monitor witnessed youth drawing and painting during the site visit. The Monitor also saw the beautiful murals and art work of the youth and staff. The Health Services Unit (“HSU”) puts on monthly educational activities that youth can participate, and tablets have been ordered for youth. New PSU groups have been implemented (Mindfulness, Music, Movement, and Movie). PSU is also doing several groups for the CLS students involving teamwork, leadership, and cooperation. Additionally, a weekly schedule of activities has been created as recommended by the Monitor. Although there were more activities for youth during this reporting period, there is still a significant amount of idle time. Now that youth are basically out of their rooms from 8 A.M. to 8 P.M., there is a need for more activities/programming. These activities/programming should be added in addition to school, not as a substitute for education. Also, some of the youth complained about not having music accessible to them. Perhaps, MP3 players could be more widely dispersed amongst all youth.
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As recommended previously, counselors, recreation workers, social workers, PSU staff, and volunteers can be utilized in creating and leading programming for youth. Several staff made suggestions for programming such as art therapy, dog therapy, increased tournaments, job readiness skills, music, balance and restorative justice, and teen court. Many of these suggestions have been implemented. Administration needs to increase meaningful/structured program and activity hours to further reduce youth idleness hours. As mentioned previously, increasing education hours, including for youth who have obtained a diploma or HSED, can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming. The Defendants have retained a consultant that can assist with developing gender and culturally appropriate programming.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most of the recommendations made in the February 2018 report have been implemented such as conducting a staffing analysis, hiring bonuses to obtain new staff, increased wages for current staff, staff recognition, and staff wellness initiatives. There still are major staffing challenges due to various employee leaves and teacher vacancies. Job descriptions have been updated to highlight the youth counselor aspect of position instead of “guard” or “corrections” description. Defendants will be moving to a 12-hour shift starting in November with the goal of assisting with the staffing issues. The Monitor encourages the Defendants to closely monitor the impact. Given the long-standing staffing deficiencies, there is an urgent need to also explore methods for promptly reducing youth populations. This might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law. The Monitor suggests utilizing a strengthbased model and ensuring that time spent in units like Krueger is not counted against a youth who comply with the Krueger Program. The average daily population has decreased slightly, but not enough to relieve the staffing issues.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
COMPLIANCES STATUS: PARTIAL COMPLIANCE. DOC has identified sections of the Administrative Code that need to be modified, but significant revisions have not yet occurred. The process for amending Administrative Code DOC Chapter 376 began as of
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September 3. The process for amending DOC Chapter 373 will begin after public hearings on the scope statement describing changes are held on September 20. Interim policies for LHS/CLS need to be drafted while waiting for final Code revisions.

IV. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There has been an improvement in meeting the 24-hour timeline. Informal reviews occur right after an incident. An area of improvement is having staff involved brought together for meaningful discussions. When it has been determined lesser means could have been used, there is a corrective action plan developed now but quality assurance needs to be improved. There is a new QA process implemented for visual monitoring and a framework for other QA measures relating to the consent decree is being created.

B.

Quality assurance. The superintendent shall establish performance goals,

including compliance with the terms of this settlement; shall analyze data on

whether those goals are met; and shall put in place immediate corrective action to

address goa ls that are not being met.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Critical quality assurance positions are now filled and will be assisting in developing a quality assurance program. The Monitor reviewed sample performance goals, reviewed PbS in great detail, and made suggestions for monthly performance measures and how to incorporate into policy. The Monitor and the QA staff met and discussed various data points and reports. As discussed throughout this report, data driven decisions are critical to come into compliance with this Court Order and to improve the quality of life for youth and staff. The Monitor is confident that the Defendants will create a competent quality assurance program.

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CONCLUSION There have been significant improvements to the physical plant of LHS/CLS which is providing a less institutionalized feel for youth and staff. Staff and youth interactions have significantly changed for the better. The overall atmosphere today has vastly improved from a year ago. Leadership, staff, and youth should be commended because it took a lot of hard work by all to get to the place where LHS/CLS is today. Defendants have more programming for youth than LHS/CLS has ever had available to youth. Confinement time has been substantially reduced. Direct- care staff vacancies have been reduced. Critical data/quality assurance positions have been hired. As a result of the progress made, it is clearly evident that these changes are having a positive impact on the overall atmosphere and culture of the facility. Continued efforts need to be made with reducing teacher vacancies and increasing educational time and quality. Krueger Program needs to be refined. Regular training in de-escalation and physical restraint techniques need to occur. Policies and procedures for LHS/CLS need to continue to be developed. Phone sanctions must cease. Implementing the new quality assurance program needs to be a primary goal. The physical plant improvements need to continue as scheduled. Although there is more work to do, the Monitor is very pleased with the progress made over the last year. The Monitor is happy to answer any questions or address any concerns by the Court or the parties. Respectfully Submitted, /S/ Teresa Abreu Teresa Abreu Monitor
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 Case: 3:17-cv-00047-jdp Document #: 116 Filed: 03/05/20 Page 1 of 36

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

FIFTH REPORT OF THE MONITOR

Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
The Fourth Report of the Monitor was filed with the Court on October 11, 2019. The Monitor’s fifth report will focus on assessing compliance with the Consent Decree, implementation of recommendations in the February 2018 technical assistance report, and comment on any observations and/or updates from the fourth site visit which took place on September 13, 2019.
SITE VISIT The fifth site visit by the Monitor took place from February 6 through February 8, 2020. The Monitor reviewed materials provided by the parties prior to, during, and after the site visit. Materials included, but were not limited to: programming materials, staff surveys, PbS data, project plans, grievances, counselor logs, staff memos, daily shift reports, video footage of use of force incidents and activity on unit, all of the monthly data submitted to the parties per this court order, updated unit rules, work rules, employee leave data, behavior and treatment plans, mechanical restraint documentation, incident reports, other housing documentation, policy drafts, facility enhancement report, and various meeting minutes. The Parties were present during the site visit. The Monitor took photographs, toured LHS/CLS, and interviewed youth and staff. Approximately forty-four (44) youth and thirty-one (31) staff were interviewed formally and informally by the Parties during this site visit.
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Overall Quality of Life, Conditions, and Atmosphere
Introduction
While the conditions at Lincoln Hills and Copper Lake have certainly improved since a year ago, documentation and interviews indicated that there has been some regression since the September 2019 site visit, especially with respect to punitive and administrative confinement and the use of restraints. During this reporting period, Defendants have eliminated the use of OC Spray and there were significant incidents in which alternatives to OC spray had to be utilized. The response to these incidents impacted the use of confinement, restraints, programming, and PbS data. The Monitor anticipates an improvement during the next reporting period. In more detail below, are the observations and recommendations from this site visit.
Physical Plant
The general areas of the facility were very clean and orderly. It was very cold with snow on the ground but the walkways throughout the facility were shoveled nicely. The atmosphere in general was calm throughout LHS/CLS. The recommendations as to the physical plant modifications made in previous Monitor reports and the February 2018 technical assistance report have been implemented and/or are progressing. Several physical plant improvements have been completed including, but not limited to, electronic documentation and reporting system (“RFID”), Wells, Miller, Black Elk, DuBois and Curtis cottages remodeling, additional telephones installed in each of the cottages, and the new generator is complete and operational. Additional projects not yet completed are the camera upgrade, electrical upgrade, camera, the new staff break room, and remaining cottage remodels (King, Roosevelt, Krueger, and Rogers). The Monitor will continue to update the Court on physical plant improvements that increase the safety and quality of life for youth and staff.
In general, entrances into the units were very clean and orderly, the day rooms were very clean, and most of the bathrooms in the cottages were clean. The level of cleanliness of youth rooms varied throughout the cottages (described in more detail below). There were no observable maintenance issues observed during this visit. The Defendants have included the room and unit cleanliness in their behavior management system and “Clean Up” contests continue to occur, and other incentives are planned on a regular basis. Because the Defendants have removed and/or secured items that have been used by youth in disturbances and built barriers, the facility is much safer, particularly in the newly renovated living units. The Monitor recommended that searches of all buildings be conducted to remove excessive objects, materials, equipment, furniture, etc., to enhance the safety and security of the units/buildings and to maintain a more orderly and safer environment. Defendants now regularly conduct and document searches and there was no evidence of excessive objects, furniture, etc. in the living units or classrooms. This is an improvement from the last site visit. Youth and staff should be commended. The Defendants replaced existing furniture with furniture that is specifically designed and engineered for secure environments and the secure furniture are in several of the living units. There is a schedule for removing the remaining of the existing furniture and replacement with a goal completion date of August/September 2020. Defendants believe they will meet this timeline.
School/Living Units Observations
The Monitor visited each cottage and toured the school on Friday. The school continues to have
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positive messages throughout, and artwork displayed. The classrooms and the general school area were very clean. All the girls were in the school area attending class. However, many youth were not in class because five teachers were absent, and when such absences occur youth remain on their units. Youth that were in the classrooms were behaved and engaged. There were two youth in the library reading books. There was one youth in the STAR room. There is now a room designated for the Grandparents program. The youth really enjoy when the grandparents are there. There was somberness this visit as one of the grandparents experienced a serious medical condition (unrelated to her volunteer work) a day before the site visit. The music room moved to a bigger space and the youth are truly enjoying this new space. Recording studios are being developed and the youth and faculty are excited. There were several teacher absences this day so there were not many youth in class. In the afternoon, youth were filtering into the school area for “CR2EW” which is a new social emotional program cultivating resilience, responsibility, empathy, and wisdom. Small groups of youth and staff participate daily, although youth in Levels 1 and 2 on Krueger and youth who have graduated are not included in the program. There was a graduation ceremony on Friday which was very exciting for staff and youth. There is an increased use of online education in the schools. Some youth like this method of instruction, while others did not and felt they would benefit more from instruction by a teacher in the classroom.
The Monitor previously recommended that the Defendants hire an education expert to complete an assessment of the educational program at LHS/CLS. The expert was retained and provided initial observations. The expert returned in November to further assess the education department’s operations and make specific recommendations. The Monitor recommends that the Defendants engage the consultant further and work to address the concerns raised – including the need for more deep and meaningful teacher interaction with youth - and implement the recommendations made by the consultant and the Monitor with respect to staffing and the educational program for LHS/CLS. The Monitor reported last time that the Defendants moved the girls’ educational programming out of the main school and into a smaller building in the Copper Lake section of the facility, with fewer amenities and facilities than in the main school. The Monitor highly recommended that the girls return to the main school as soon as possible. Although the Monitor recommended that the girls return to the main school sooner, the Defendants did not move the girls back until February 4, 2020. Youth on levels 1 and 2 in the Krueger Program continue to attend school in classrooms on their living unit. The Defendants should consider allowing youth on Levels 1 and 2 to attend class in the main school if their behavior warrants it (similar to the TIP unit at a minimum).
There was a high number of staff at the facility, specifically on the living units during the site visit due to new staff doing on the job training (“OJT”). The Monitor saw staff engaging with youth, although less so than during the September visit. Youth attitudes overall were very good during this site visit. All the youth that the Monitor interacted with were respectful and many were very chatty. OJT staff cannot be counted towards the PREA staffing ratio, but they are able to actively engage with youth. This would have been a great opportunity for staff to sit with youth more, engage in meaningful programming with youth, and learn the day to day responsibilities of youth and staff.
Safety/welfare checks are no longer being completed on paper because the new RFID system has been implemented. The RFID system is a data driven assessment about youth observations, movement, and classification. It measures staff performance on safety/security checks in real time, which will help manage compliance with the various requirements of the Court Order and other
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standards. The Monitor could not observe whether the safety/welfare checks were completed and up to date/staggered on the units at the time of the site visit as they are still adjusting to running reports. However, the Monitor did observe the process and witnessed staff completing the rounds on all units. Subsequent to this site visit, the Monitor reviewed a random sampling of the safety/welfare check data from the electronic system. The majority of the checks were in compliance with the Court Order. Staff really like the new electronic system and seem to be adjusting well to the new system. The new system appears to work much better than the old paper system and, more importantly, staff appear to be paying much better attention to the process and youth safety. One small recommendation for the new RFID system is to change the word “inmate” to youth within the software of the programming and replace the icon with the hands in the cell image for another one (if possible).
During this site visit, the girls were split between King and Wells cottages since the renovation project that was in progress during the last visit is completed and since there was an increase in the number of girls at CLS. The atmosphere is quite different on the two girls’ units. On Wells, the girls were very chatty and respectful. They expressed how happy they are to be back in the main school. Staff were sitting with the girls at the table while they played games and were doing artwork. The girls were conversing appropriately with each other and staff. The rooms on the unit were generally clean and orderly with beds made. No one was confined to their room and youth were waiting patiently for their meal to be served. The Monitor observed staff redirecting youth appropriately and youth following staff direction. Staff were completing their safety/security rounds, engaging with youth, preparing dinner, and medicine pass was occurring. It was a very calm and happy unit.
King was less calm; staff were not sitting with youth and youth were not engaged in any activities besides sitting at the tables waiting for dinner. The rooms in general were not clean, however, the unit itself was clean and orderly. No one was confined. Youth seemed more irritable in this unit than on Wells. Inconsistency of staff could be a factor for this difference.
With respect the boys’ cottages, generally, the cottages themselves were cleaner than the last visit. The Monitor recommended during the last site visit that staff adjust their placement now that youth are all out of their rooms from 8 a.m. to 8 p.m. (generally speaking) and can more freely move around the unit. Staff were appropriately placed around the unit from a safety perspective. There were significantly less youth in their rooms during this site visit than any of the previous site visits. As previously mentioned, there were a lot of staff on the living units due to staff completing on the job training (3-5 staff per cottage) but many were standing around the youth observing youth versus sitting with them and engaging. With the number of staff on the unit, some could have placed themselves around the unit and some could have been engaged with youth. During this site visit, staff in general were not interacting with the youth as much as the Monitor observed during the last visit. Perhaps this is because most of the staff at the time the Monitor toured were very new.
In Krueger, the unit was clean. Youth rooms were dirty and had graffiti as observed during the last site visit. Six (6) youth were out in the day room eating their meals calmly and exhibited good peer relations. There were five (5) staff on the unit. Four (4) youth were in their rooms as youth on Krueger rotate in and out of their rooms for meals and programming. Staff were sitting with youth and chatting with youth. Based on staffing levels, the Monitor believes that all youth should
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have their meals at the same time in order to reduce confinement time.
The Monitor had recommended in all units that “split hall” time (which means that half the youth were confined in their rooms while the other half were out of their cells) be eliminated, and youth remain out in the day room during medicine pass, counts, and shift change thereby reducing operational room confinement significantly. As of September 3, 2019, the Defendants ceased doing confinement for these reasons throughout LHS/CLS. However, the Defendants reinstituted these types of confinements in October 2019 after some significant group disturbances, and they continued through the site visit despite the lack of any major disturbances since October. A few days after the site visit, the Monitor was told that the Defendants stopped doing these types of confinement. LHS/CLS continues to have “open dayrooms” which allow the youth to be out of their rooms from at least 8 a.m. to 8 p.m. for the majority of this reporting period. Youth are happy that they are not being confined to their rooms during these hours although they express concern about a lack of activities.
In Addams (intake unit), the living unit, bathroom, and rooms were very clean and orderly. The cottage is beautifully decorated. There were ten (10) youth on the unit and five (5) staff. Staff were engaged with youth and the youth were quite silly. There were no youth confined. There was significantly less graffiti in the youth rooms than during the last visit. The new staff stated that they were very happy and that the training they received was excellent.
In Black Elk, the unit was clean. Youth were in the day room eating and no youth were confined. Most of the rooms were clean. Youth were pretty rowdy, and it was not a calm environment.
The Rogers unit (TIP) was clean and youth rooms were not as clean as the other units. There were five (5) staff on the unit. Two (2) youth were in their rooms voluntarily. Staff were not engaged and were standing with their arms crossed. Youth were on the unit watching television, playing games, and talking with each other. The unit was calm.
The Hughes living unit was the least clean and had the most graffiti. About half of the rooms were clean and the other half were messy. Youth were out cleaning and eating lunch. There were three (3) staff on the unit. Youth were on the telephone, talking with each other, and some youth were eating. One youth was in his room at his request. We talked with one of the youth on this unit who said this was his second time being at LHS. He said he was here a few years ago and stated that the facility “is way better now than it was back then.”
The Miller unit was very clean. Youth rooms were moderately clean. Two youths were in their rooms voluntarily. Youth seemed to really get along. Youth were watching television, braiding hair, and playing foosball.
The Dubois unit was very clean. The bathroom was very dirty. Half of the rooms were clean (one side) and the other half were very messy and dirty. Youth were out in the unit reading, talking, and watching television. No youth were in their room. There were four (4) staff on the unit. Staff were very happy and said that there have been less incidents than in the past.
LHS/CLS continue to have less of an institutional feel and the overall atmosphere is as good as the last site visit. Staff and youth continue to make positive comments and have positive attitudes. The
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biggest complaint from youth this visit was the food, canteen out of stock items, and being bored. Youth did not complain to the Monitor about phone restrictions or perceived unfairness of points earned this visit. They did complain to Plaintiffs’ counsel about those staff members who were perceived as being quick to deny them points or provoking them and, as youth put it, seemed not to want the youth to succeed, while they appreciated staff who worked with them to succeed. Two new phones were installed on each of the living units which has allowed more access for youth. Defendants have done an excellent job of essentially eliminating phone restrictions as recommended. In September 2019, there were twenty-seven (27) restrictions and in November there were two (2). A year ago, there were as many as 109 phone restrictions in a month. Leadership understands the importance of family engagement in the overall well-being of youth. Youth also did not complain about the quality of canteen/prices as they did during the last visit. During the last visit, the Monitor brought up the youth complaints about the new vendor, cost of canteen, and the impact on programming. The Defendants were able to address these issues quickly and discussed canteen during four youth advisory groups (reflected in the group notes).
Although there seems to be more programming during school days and school hours, there is still a lack of structured programming in the evening and on weekends, and for youth whose classes are cancelled due to teacher absences. While youth are out of their rooms there should be engaging activities for the youth. This is extremely noticeable and needed during the weekends when school is not in session and no other programs are occurring, and staff also stated that there was no replacement programming for youth when teachers were absent. Youth are bored and while being out of their rooms is certainly an improvement, more meaningful activities and weekend programs would also help reduce the risk of youth engaging in anti-social behaviors when they have little else to do Youth need more to do than simply sitting in the dayroom area watching television or playing cards. The data shows, and the Monitor observed, a high level of self-confinement. There needs to be a bigger focus on reducing youth idleness and more structured programming should be put into place. In an effort to develop more activities, Defendants implemented a “Youth Activities Committee” in October 2019. The purpose is to develop staff-directed activities. Defendants anticipate incorporating the Committee’s suggestions into programming in the near future.
Staffing
During this reporting period, there have been a few staffing changes. As previously reported, in August 2019, Defendants hired a new Administrator to oversee the Division of Juvenile Corrections. Additionally, a new Deputy Administrator has been hired during this reporting period. The Monitor had the opportunity to meet the new music recreation worker. He is passionate about his work and the youth absolutely love working with him and enjoy the music program that is being developed. The addition of the music recreation worker is having a positive impact on programming. One of the two Psychologist Supervisors at LHS/CLS recently took a new position at another DOC facility. The Defendants are actively recruiting for her replacement.
Direct-care staffing vacancy percentage has improved from the last site visit. There have been thirty-nine (39) new direct-care staff hired during this reporting period. There are 311 total positions (“FTEs”) at LHS/CLS. Based on population, Defendants determined that they need three (3) fewer teacher FTEs and thus moved the FTEs to other critical positions. Approximately 153 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”). Through collaboration with the 12-hour committee comprised of the Security Director,
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Supervising Youth Counselors, and Youth Counselors, the Youth Counselor and Youth Counselor Advanced posts were re-evaluated. It was determined that there was a need to reallocate the number of positions in each of these two classifications (as indicated below). There is still a large number of staff on various leaves of absence (FMLA/Workers’ Comp, etc.) The teacher vacancy rate remains high but with very slight improvement over the last five months. Recruiting is still a challenge due to the location of the facility, overall teacher shortages, relatively low compensation, and the year-round school calendar. This is directly and negatively impacting education for youth. As previously mentioned, the entire educational program at LHS/CLS needs to be evaluated and improved.

Position

Vacancy Rate % as of Vacancy Rate % as Vacancy Rate % as of Vacancy Rate % as of

March 14, 2019

of May 31, 2019

Sept. 6, 2019

January 30, 2020

Youth Counselor

15% (16 out of 105) 11.5% (12 out of 105) 14% (15 out of 105) 7% (8 of 115)

Youth Counselor Adv.
Teacher

48% (24 out of 50) 50% (25 out of 50)

39% (11 of 28)

43% (12 of 28)

Social Worker 0% (14 of 14)

0% (14 of 14)

7% (3.5 out of 50)
36% (10 of 28) 21.5% (3 of 14)

15% (5.5 of 37.5)
32% (8 of 25) 21 % (3 of 14)

In order to address staffing challenges at LHS/CLS, effective April 28, 2019, security personnel began receiving a $5.00/hour add-on for worked hours and twelve (12) hour shifts were piloted in November 2019. Although there has not been a data driven analysis of the 12-hour shift, there was a very comprehensive staff survey completed. The majority of staff prefer this scheduling. Most staff feel that their quality of life has improved. Every staff person the Monitor spoke to said they absolutely love the new schedule. Staff reported that they work less hours and are not ordered to work extra shifts as much as they used to be, which has had a positive impact on their wellbeing. The Monitor made suggestions for an impact analysis of the new schedule.
The Monitor spoke to over thirty-one (31) staff and the majority of staff seem relatively energetic and happy. Many of the veteran staff stated that they believed the facility is making good progress, they are beginning to feel safer and things are improving. There were a lot of new staff shadowing on the units (on the job training). The vast majority of staff again expressed the desire to have more programming for youth. The new staff really liked their job and said it was better than they thought it would be. They all said that they felt the training they received and, most importantly, the OJT on the units, sufficiently prepared them for the work. Staff were adjusting well to the new RFID system and were very happy that they did not have to track youth movement/confinement on paper anymore. Also, staff felt they are adjusting very well to the elimination of OC spray. Staff also realize the need to continue building new skills that will help them manage and respond to youth behaviors more positively and enable them to more effectively de-escalate youth. Staff were very open to talking to the Monitor and genuinely seemed to enjoy their jobs. In response to the

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Monitor’s previous reports, the administration conducted Situational Awareness Training (a POSC update training) focused on alternative techniques to prevent and address behavioral problems provided to staff in July, August, and September. There have also been several trainings on suicide prevention and MANDT training. The facility plans to continue to focus on training. Staff are adjusting very well to the changes occurring. In the Monitor’s conversation with staff, staff did not raise issues with the elimination of punitive confinement, OC spray, and phone restrictions, or with the new RFID system, open day rooms, or the 12-hour shift.
The Defendants have implemented almost all of the recommendations for staff wellness including increased training, staff recognition program, engaging staff in developing programming and policy changes, actively participating in youth and family council meetings, reducing ordering of staff (mandated overtime), and constructing a relaxing staff lounge. The Monitor continues to stress the need to continue making staff wellness a major focus moving forward.
As part of the agency and facility’s desire to improve conditions for both staff and youth, they are continuing to engage in the Youth in Custody Practice Model (“YICPM”), which was explained in the previous Monitor reports. The third YICPM site visit took place November 14-15, 2019. DJC leadership, LHS/CLS managers, and other staff participated. The DJC/facility has finalized plans to use their remaining subject matter expert (“SME”) days on training, leadership development and staff capacity to operationalize a treatment practice environment/model. The multidisciplinary team reviewed national best practices, discussed family engagement, healthy environments, youth voiced supporting staff, addressing racial and ethnic disparities, behavior motivation, crisis intervention and management, and education. The Monitor looks forward to the agency implementing these plans to improve conditions of confinement for youth and well-being of staff.
The Defendants are also collaborating with Massachusetts Department of Youth Services to explore Dialectical Behavioral Therapy (“DBT”) as a behavior management system. Defendants also reached out to an expert on Trauma and Brain Development in order to enhance training and programming for youth and staff. In September, there was a Reentry Simulation during National Reentry Week. The program simulates the first month in the life of a youth after release from prison. The simulation is set to show the various difficulties a youth encounters post-release. The simulation also helps staff empathize with the anxiety and struggles youth experienced. There were thirty-six (36) boys and ten (10) girls that completed the whole program. The goal is to continue to do the simulations more regularly in the future since the feedback was positive from staff and youth.
The Monitor suggested modifying the mental health (PSU) and recreational staff work schedules to include more evening and weekend hours. PSU staff work until 8 p.m. during the week and are on-call 24/7. The Defendants should continue to involve PSU staff, especially leadership, in making improvements at the facility (such as improvements to incentives, consequences, and working with the OJOR system). Currently, there is a PSU staff member who comes in each weekend to perform rounds, finish notes, and intakes (four hours) and will report to the facility as needed. However, there are no groups or programming involving PSU on the weekends. Weekends are when there is the most idle time. There really is a missed opportunity for PSU involvement during this period.
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In addition, documentation indicates that there is a relatively high rate of transferring youth from LHS to Mendota Juvenile Treatment Center (MJTC). Criteria for when such transfers are deemed appropriate should be clear and written in policy and procedure. The Monitor recommends that the facility obtain a mental health expert to evaluate the programming, staffing, and services that exist at LHS/CLS, and make recommendations on how to address the issues raised and improve treatment and services for youth at LHS/CLS.
Quality Assurance (“QA”)
As previously reported, to address the need for a quality assurance and improvement program, the Defendants have created and filled both QA positions. The Monitor has had the pleasure of spending time with these individuals over the last five months. The Monitor will be focusing on assisting the team with their data collection and QA program. The goal continues to be not only assessing compliance with this Court Order, but the quality and adequacy of the social and recreational programming provided, healthcare, education, environmental health, safety, and discipline.
During this site visit, the Monitor spent a lot of time going over data including the Performance based Standards (“PbS”) from the October data collection cycle. The Defendants have created a “Quality Assurance Review” process that is completed each month. A framework for identified outcome measures was developed to align with PbS national benchmarks. In the interim, an Incident Statistics report from J-Tracker is provided to leaders to capture various types of incidents. Key monthly data is now being shared with leadership relating to youth fights/assaults, horseplay resulting in injuries, youth on staff assaults, use of force incidents, and workers’ comp injuries reported. Searches are now documented in J-Tracker and search reports are created and reviewed.
As reported in the fourth report, a vendor has been awarded a contract for an electronic rounds system (RFID). The system is up and running and a staff directive has been provided. QA and policy still need to be developed, but this electronic system will make LHS/CLS safer. Staff and youth should be commended for embracing this upgrade, which is a significant change to how safety/security checks and other youth movement and programming is and will be documented and analyzed.
PbS data collection cycles occur twice annually, in April and October. Facility Improvement Plans (“FIP”) have been created after the most recent PbS Coach Site Visit and has been forwarded to the Monitor. PbS is a continuous data-driven improvement model grounded in research that holds juvenile justice agencies, facilities and residential care providers to the highest standards for operations, programs and services. The FIPs are the vehicles for jurisdictions to continuously bring about meaningful change. They bridge the gap between understanding and actions to improve the conditions of confinement at a facility, beginning with identifying the specific outcome measure(s) a facility want to improve. The FIP process provides the facility with the ability to track progress towards identified outcome goals, and receive scores based on that performance and identified FIP goals.
FIP Action Steps PbS offers a 7-action step tool, driven by a research-informed improvement model, to support and guide PbS participating agencies and facilities as they work to achieve both incremental and
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sustainable change. The action steps entered into the PbS website make up the team's concrete plan to attain the improvement you are seeking.
1. Analysis of Performance • Pinpoint the causes of your outcome performance.
2. Creating Buy-In • Identify how you will engage those whose support you need to improve the targeted outcome or area of change.
3. Setting Outcome Measure Goal • Create short, interim & long-term goals that provide benchmarks and a vision to work toward.
4. Improvement Process Action Steps • Develop concrete, measurable actions to address the factors that contributed to your outcome performance.
5. Interim Measures • Identify how you will monitor your progress toward your goals to see what is working and adjust your strategies as necessary.
6. Sustaining Performance • Identify strategies that will support what is working to ensure sustainable change.
7. Performance Recognition • Determine how you will formally and informally recognize staff, youth and other stakeholders for their contribution to the improvement process; celebrate successes!
The following outcome measures were selected for these FIPs based on input from the PbS Coach and facility outcome:
LHS Facility Improvement Plan #1010
Outcome Measure
Safety 02 Injuries to youths per 100
person-days of youth confinement.
Safety 03 Injuries to staff per 100
staff-days of employment.
Safety 04 Injuries to youths by
other youths per 100 person-days of youth confinement.
Safety 11 Assaults and fights on
youth per 100 person-days of youth confinement.
Safety 12 Assaults on staff per 100
person-days of youth confinement.
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CLS Facility Improvement Plan # 1009
Outcome Measure
Order 08 Isolation, room
confinement, segregation/special management unit use per 100 person-days of youth confinement.

During the site visit, a thorough and in-depth review was conducted of the October PbS data collection for both LHS and CLS. During the review, outcome measure data clarification and input was sought from both the facility PbS Site Coordinator and the assigned PbS Coach. As a result of the review, the following highlights and outcomes are noted:

PbS Data Quality – Some issues were identified as to the quality of the data entered for some outcome measures, including outcomes measuring around daily activity durations. It should be noted that that both LHS and CLS chose to only record unit activity data for a period of one week, rather than for the entire month of October, thereby somewhat skewing the data. This is particularly true for this data cycle, because the one week in October during which data was collected coincided with the elimination of OC spray and several serious incidents occurred at the facility during the week in question. The facilities have not since experienced similar incidents of this magnitude. The facilities should try to follow the PbS instructions for the interactive Unit Logs which states, “Enter one Unit Log survey for each living unit in your facility. For this survey, collect and track daily hours minimally for seven consecutive days during the data collection period. Tracking hours for the entire data collection month is preferred. Report activities for what the majority of youths on the unit are participating in.”

The categories are:

Education Leisure Activity Recreation Activity

Other Facility Programs Unit in Sleeping Rooms Operational Activity

The issues with most of these data points appears to be around unit and area documentation. For example, there is a discrepancy between the education hours reflected in the PbS activity data with what the school believes should be the correct number of hours a youth is in school. The number of hours fluctuates greatly between units and between boys and girls. At LHS, the average number of education hours per day is 2.49 hours, with the highest number of hours being reported by the DuBois Unit, 4.00 hours, and the lowest reported by the Roosevelt Unit, at 1.86 hours per day. At CLS, the average number of education hours is reported at just 2.14 hours per day. The school principal stated that these hours are incorrect and do not reflect the actual hours youth are attending school. Since this continues to be a discrepancy in the data, further verification of school data is necessary.

Additionally, the unit activity record for the Krueger Unit reflects that youth are spending approximately 20.64 hours per day in their rooms (10.5 hours reflected as sleeping time and 10.14 hours reflected as “in sleeping rooms,” room confinement). The activity log for the Krueger Unit also did not reflect any hours for education. During discussion with the facility and the PbS Coach,

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it was learned that the data for the activity logs was taken as a one-week snapshot. It is possible that this particular week did not reflect a “normal” course of activity for the Krueger Unit, however, it is the data currently available through PbS and is as entered by the facility.
Finally, both sites should work closely with the PbS Coach in order to better address the required data collection for Unit logs going forward for the Interactive Reports to be useful to the sites and to the Monitor. It will take a good understanding of the definitions of each category and all program areas working together to assure comprehensive reporting and data quality. A reminder is that the Unit log looks at what the majority of the residents on each unit are doing during waking hours. The Monitor urges the facility to work more towards reporting data for the entire data collection month in order to get a clearer picture of daily activity in order to better monitor idleness issues.
Use of Restraint Outcome Measures - Both LHS and CLS show “0” incidents of use of chemical agents (Order 6) during the October 2019 data collection cycle, which is commendable and per the Settlement Agreement. However, the rate of physical restraints (Order 3 – Physical Restraint Use per 100 person days of confinement) has increased somewhat at both LHS and CLS as has the rate of mechanical restraint (Order 4 – Mechanical Restraint use per 100 person days of confinement) incidents. More remarkable is the higher rate of both Order 3 and Order 4 occurring at the CLS with the girls.
(Note: PbS defines Physical Restraints as facility authorized and trained holds used by staff to subdue an otherwise uncontrollable youth in order to prevent the youth from injuring him or herself, or others. Mechanical Restraints: Mechanical devices used to prevent an uncontrollable youth from injuring him or herself or others. Mechanical restraints may only be used for short periods of time and must be used under medical supervision.)
Also, during the discussions around the use of restraint incidents, facility staff remarked that they had reduced the use of the Care Teams during recent months and this resulted in a higher number of restraint-usage incidents. Care Teams are designed precisely to reduce the need for the use of restraints and have been effectively shown to work at facilities across the country and have been shown to be effective at LHS and CLS as well. It also appears that Administrative Confinement (AC) has increased as a result of a reduced Care Team effort. The Monitoring team reviewed several incidents in which a Care Team response would most likely have resulted in a different outcome.
The Department should more systemically implement the core principles of the Care Team model by utilizing an agency strategic plan process that involves additional staff training in de-escalation techniques; include Care Team deployment information in shift debriefings in order to review the process and provide on-going situational training for staff; implement a Care Team response incident report that also reflects the outcome of the response in order to better track outcomes from Care Team deployments; implement the S.O.D.A.S model (Situation, Options, Disadvantages, Advantages, Solution) into the Care Team model; and, finally, the facility leadership team should incorporate daily/weekly review of all use of force/restraint incidents to evaluate if and when the Care Team should have been activated to help de-escalate a situation. This should be used as a staff training and awareness process to help staff build new skills and to help change their mindsets in how they first react to certain types of youth behaviors.
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Isolation, Room Confinement and Segregation Measures – Overall, the PbS outcome measures around isolation and room confinement are improved over the April 2019 PbS data collection cycle reflecting over 83.82% of room confinements are terminated in under eight hours, and slightly fewer in under four hours, 80.15%. These are both very commendable achievements, and both are slightly better than the national field averages for these outcome measures. However, where we see an issue is around Order 13 – Isolation, Room Confinement for reasons not related to behavior. These appear to primarily be incidents where youth are refusing to participate in programs and education. As you can see from the following chart, self-requested and declined to participate in programs involves 81% of the non-behavior related confinement incidents. There were 112 (12%) recorded incidents during the month of October where youth declined programing/education.

Value

Count Percent

Self-requested

748 79%

Declined to participate in program 112 12%

Protect other youths or staff

77

8%

Consequence for rule violation

4

0%

Protect property

1

0%

Give youth time to cool off

1

0%

One youth accounted for 50 confinements and two other youth accounted for 32 confinements each during the month of October. It would seem based on the above data that the majority of these 114 confinement incidents from these three youth were self-requested and/or declined to participate in programs. Increased and more meaningful programming, less idle time, and increased involvement of mental health staff would certainly improve and help reduce incidents of self-requested and declined to participate confinement incidents.
The PbS Incident reporting data for October reflects the following important data points:
➢ 19% of the incidents occurred in the Roosevelt Unit; ➢ 17% of the incidents occurred in the Rogers Unit; ➢ 95% of all incidents occurred within a living unit; ➢ 84% of incidents involved some form of an “assault;” and ➢ 83% of incidents involved “failure to comply.”
Youth and Staff Climate Surveys – Both youth and staff appear to be more responsive in utilizing the youth and staff climate surveys. It is strongly recommended that both department and facility leadership take the time to thoroughly review the agency/jurisdiction count summaries for both the youth and staff climate surveys. The results can be very insightful and useful for leadership. Below are some of the survey results that the Monitor found most useful to be included in this report.

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Staff Climate Survey Results:

In your opinion, what would make this facility safer?

Value

Count Percent

More staff

121 78%

Safety equipment 86

55%

Training

67

43%

Other

65

42%

Less overcrowding 33

21%

In regard to the above chart, the following are the top ten most requested training that staff felt would make the facility safer:

What training would you like to see?
Value

Count Percent

Verbal de-escalation

75

48%

Safety and security

60

39%

Gang training

51

33%

Adolescent development

48

31%

General behavior management

48

31%

Agency policies and procedures

46

30%

Ethics

45

29%

Appropriate staff/youth relationships 42

27%

Communication

41

26%

Cultural diversity and awareness

41

26%

October 2019 PbS Staff Climate Survey Results: ➢ 79% of staff responses reported they fear for their safety (it is important to note here that the
staff surveys were last conducted in October 2019); ➢ 83% of responses reported they believe the facility is unsafe or very dangerous; ➢ 83% of responses indicate that staff believe they do not have authority to discipline youth
appropriately. ➢ It is important to note that the week in October during which PbS data was collected was a
temporary period in which there were several disturbances, and may not accurately reflect the current fear levels (as indicated by interviews with staff during the site visit)

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January 2020 DOC/DJC Staff Survey Results: ➢ Since switching to the 12-hour shifts, 77% of staff strongly agree, agree, or somewhat agree that health
and safety has improved for themselves and their co-workers.
➢ 82% of staff strongly agree, agree, or somewhat agree that the change has had a positive impact on their wellbeing.
➢ 78% of staff strongly agree, agree, or somewhat agree that job satisfaction has improved for themselves
and their co-workers.

Youth Climate Survey Results:

Do you fear for your safety in this facility?

Value

Count Percent

No

28

44%

Yes

28

44%

Not recorded

6

9%

Refuse to answer 2

3%

In comparison, the youth fear for safety measure, Safety 13, has steadily improved from the previous two data collection cycles. The rate still remains higher than the national field average but is improving.

Within the last six months at this facility, have you been beaten up or threatened with being beaten up?

Value

Count Percent

Yes

31

48%

No

25

39%

Not recorded

6

9%

Refuse to answer 2

3%

➢ 52% of youth responded that they do not understand their legal rights; ➢ 96% responded that they know and understand the behavior management points system and
know their levels; ➢ 55% reported have received a family visit.

There needs to be a continued focus on adequacy and quality of the data collected and analysis of other subjects of the Court Order. Defendants need to make this a priority. Defendants should also pay particular attention to each Facility Improvement Plan as each FIP includes a section for comments relating to the implementation status of each action step completed by the PbS Site Coordinator or assigned staff member. Ongoing FIP review comments are entered by Facility

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Administrators, Agency Directors and the assigned PbS Coach. This is an excellent way to for the agency and facility leadership to monitor on-going progress with each of the FIP goals and to provide input, guidance and direction during the process.
Policies and Procedures
There have not been many revisions made to policy and procedure since the last site visit. The policy for the Rapid Response Team (900.05.04) has been revised. Administrative Codes have not progressed and have not been finalized. There have been several staff directives issued including one for the new RFID system, behavior management approach, and staff check lists. All policies refer to the Administrative Code and thus modifications to the Administrative Code should continue to be a priority. Interim policies and procedures for LHS/CLS need to continue to be developed. Policies relevant to LHS/CLS need to be compliant with the federal court order and should contain a quality assurance section for every policy. Defendants should continue to update policy and procedures because without updated policies and procedures, which include quality assurance measures, substantial compliance with the court order cannot be achieved.
Competency post-tests have been created for MANDT (de-escalation), visual monitoring, and observation checks. There is now a final academy exam that requires short answer/short essay response in key areas and include scenario-based application of knowledge. All security staff receive one year of field training officer support.
There has been more formalized training that includes employee signoffs acknowledging receipt and understanding of policies and procedures. Effective proficiency testing for all training classes still needs to be developed. The Monitor will continue to work with the Defendants on policy and procedure.
Youth Interviews
Plaintiffs’ counsel and the Monitor conducted several youth interviews. Approximately forty-two (42) youth were interviewed during the site visit (formally and informally). As in the previous two visits, there were significantly less requests to talk with the Monitor, although the number of requests to speak with Plaintiffs’ counsel was higher than during the prior visit. Previously, the major complaints from youth were the new canteen vendor, perceived unfairness in how the point system was applied, being cut off from the phone—and therefore often from family contact—as a punishment, and the desire to have more things to do. During this visit, by far the biggest complaint by the youth was being bored, the quality of the food and frequency of the same meals being served. The Monitor observed the meals served during the site visit, and they did not seem as appetizing as in the past. The Defendants stated that they will address this issue and consider a 46-week menu. The second most common complaint was that when selected canteen items were unavailable, this was not communicated to the youth, which would have enabled them to pick alternative items. The Monitor suggested that LHS/CLS leadership continue to work with the vendor and the business office to fix this communication problem. The youth work hard to earn points and in turn, earn canteen privileges. Any issues with canteen should be fixed immediately. The third most common complaint was that the RFID bands were uncomfortable (they are on the thicker side). The Monitor suggested speaking with the vendor to see if there are any tweaks that can be made. It also might just take time for youth to adjust to the bands in general. The
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overwhelming majority continue to report that they are rarely confined, if at all, were not restrained that much, and were not strip searched. Youth liked that there was a single behavioral management system because it is easier to understand. Youth earn points daily and they like that aspect of it, although, as noted above, youth raised concerns with Plaintiffs’ counsel about some staff members who they felt were quick to deny points or fail to try to help them succeed. Youth reported that they had recreation often which they enjoyed. Youth also really liked the new music program and staff member. Youth did not complain about unit and room searches like they had previously.
There were a few who discussed certain situations and the Monitor investigated the allegations during and after the site visit. As evidenced by documentation and discussions with youth on Krueger, starting in October confinement was reinstituted for split halls, counts, shift change, and medication pass. The Monitor recommended that the Defendants resume open day rooms and stop confining youth for operational convenience. The Defendants assured the Monitor that they will modify the program accordingly and the Monitor will evaluate that at the next visit.
Defendants continue to offer more programming however, there is still too much idle time especially during the evenings and weekend. Defendants are and should continue to identify more resources and continue to implement the programs as recommended by the retained experts.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated, there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative.
Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for seven days. If Defendants improve their quality of data and documentation and incorporate the Court Order into policy and procedure –and if this improvement is sustained - they will reach substantial compliance.
b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
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COMPLIANCE STATUS: PARTIAL COMPLIANCE. Based on data and youth interviews, most youth are not being confined for three days, although there appear to be some isolated examples of this occurring. If Defendants improve their quality of data and documentation and incorporate the Court Order into policy and procedure – and if and if they ensure that no youth are being confined for three or more days, they will reach substantial compliance.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Although Defendants do not call it “punitive confinement” there have been instances where youth were confined for punitive reasons. There were a few significant group disturbances in early Fall of 2019 that led to the Defendants confining youth for reasons that do not meet the administrative confinement definition. in that youth were being confined after some threat or misbehavior that did not constitute (or continue to constitute) an imminent threat. The Monitor recommended creating policy which clearly outlines the criteria for administrative confinement so that staff cannot punitively confine youth.
2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:
COMPLIANCE STATUS: PARTIAL COMPLIANCE. During this reporting period, there were instances in which administrative confinement was being used for youth who did not pose a serious risk of imminent physical harm. It also appeared that, rather than releasing youth from confinement “immediately” – i.e., as soon as they no longer pose a risk Defendants are in many instances generally treating four hours as a default minimum period for administrative confinement (and in some cases quite a bit longer). The Monitor suggested how to document this requirement in policy and in forms as well as made suggestions to place youth in the day room once they no longer pose a serious risk of imminent physical harm to others. According to the data collected, administrative confinement has increased during this reporting period.
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During the last site visit, the Monitor suggested alternatives to confinement for administrative purposes such as med pass, counts, shift change, and split hall time. Most youth serve the administrative confinement on their home unit. Some youth are serving their confinement on Krueger and are referred to the “Krueger Program.” The Krueger Program has been modified based on some of the Monitor’s recommendations, but there is still more refinement that needs to happen. The Supervisor of the unit has developed a comprehensive program and is very receptive to suggested changes by the Monitor. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plans need to be revisited with more frequency should a youth not be able to return to the home unit in an appropriate period of time. The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program as well as criteria for exiting the program. The Monitor also suggested allowing youth on levels 1 and 2 to attend school in the school area and participate in other programming if their behavior warrants.
The Monitor spent time with PSU and discussed providing “intensive mental health services designed to return the youth safely to the general population.” There is a lack of documentation as to this provision making it difficult for the Monitor to fully assess compliance. Policy and procedure and a quality assurance review process needs to be implemented, and documentation needs to be streamlined and improved. The Monitor suggested that the Defendants retain a mental health expert to evaluate the program and make recommendations to, among other things, ensure these services are being provided.
Review of the sampling of reports from the new RFID system show most 30-minute checks are being completed in compliance with the Court Order.

a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12 hours) when:

i.

A psychologist, psychology associate or psychiatrist

recommends continued confinement because the youth

poses a risk of imminent physical harm to others, and

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There was a significant number of youth confined for over four (4) hours this reporting period. Specifically:

August: September: October: November: December:

4 youth 39 youth 29 youth 16 youth 16 youth.

Many of these confinements reported and documented that youth remained on AC despite

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PSU’s recommendation of removal. With this said, Defendants are now accurately capturing confinement time, number total placements, average confinement time per month, and number of days without AC placements. This is a huge improvement in data collection. Defendants now need to focus on reducing AC overall, ensuring they are following this Court Order, draft policy and procedure with AC placement criteria, and continue to QA this data.

ii.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. During the last site visit, generally, youth who were in administrative confinement were in the Krueger program. This has changed in that now most youth serve the administrative confinement on their home unit which is a positive step. Some youth are serving their confinement on Krueger and are referred to the “Krueger Program.” The Krueger Program has been modified based on some of the Monitor’s recommendations, but there is still more refinement that needs to happen. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plan needs to be revisited with more frequency should a youth not be able to return to general population promptly.
The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program. Defendants need to improve their quality of data and documentation and incorporate the court order into policy and procedure and train staff accordingly.
b. Administrative confinement time limits may be tolled from 8 pm to8 am.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Time is being tolled from 8 p.m. to 8 a.m.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a commenced plan.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There were eleven (11) youth in AC for more than 24 hours. Data shows only two (2) youth were transferred to another facility under a commenced plan which left nice (9) instances in which this provision was violated. Defendants need to develop a comprehensive plan for ensuring compliance with this provision in all cases. Defendants need to improve their quality of data and documentation with respect to the “commenced plan” and incorporate the Court Order into policy and procedure.
d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. See above.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended policy.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. DJC Clinical Observation policy 500.70.24 was updated. The plans developed are very detailed and comprehensive. A quality assurance mechanism needs to be finalized.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. As previously stated, the Monitor would not deem any room in any facility as being “suicide proof,” however there are safety and security measures that can be put into place to reduce the risk of suicides and to make the rooms more suicide resistant. The Monitor recommended that Defendants replace the existing room furniture with furniture that is specifically designed and engineered for secure environments. The Defendants have completed the renovations in five living units (Wells, Miller, Black Elk, DuBois and Curtis) with a plan for completion of the other cottages in the last quarter of the year. The new replacement furniture is consistent with what the Monitor would expect to see in a secure facility and should certainly reduce the opportunity for suicidal incidents within the youth rooms. This is a huge investment by Defendants and shows their commitment to complying with this provision.
The Monitor did not observe rooms with multiple blankets/sheets covering large areas of the room. Room searches are taking place more often and documented, and staff can clearly see the youth through the window.
Safety/welfare documentation show that room checks are being completed at least every 30 minutes and are staggered in the majority of cases. Defendants have purchased, installed, and are using the new electronic system in all the units. Staff have adjusted to the new system very well and stated that this new electronic system is much easier to use than the paper documentation. Prior to implementing the new electronic system, Defendants had to use additional personnel to ensure that the checks were being done in accordance to policy and procedure. The new system is much less staff intensive, is easily monitored, and creates a safer environment for staff and youth. Defendants need to modify their policy and procedure related to safety/welfare checks.
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As stated in every report, while not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks and for investing in the technology needed.
b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth did not complain about access to water, hygiene supplies, or nighttime toilet usage. If Defendants improve their quality of data and documentation, and incorporate the Court Order into policy and procedure, they will be in substantial compliance.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has been improved as to who from PSU was notified and time of notification. The time PSU responded and what crisis intervention technique was used should be documented. Also, since PSU staff are not physically present on weekends and some evening hours (outside of the four hours they are required to do), the Monitor is unsure how PSU staff are engaging youth in a meaningful way. A quality assurance program needs to be developed and documentation should be streamlined. As previously stated, the Monitor suggests that the Defendants consider utilizing an expert in order to further develop the mental health program at LHS/CLS.
d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed
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by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor requested any documentation indicating that confinement is contraindicated and there were no instances documented during this review period. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04).
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Safety/Welfare checks have significantly improved. Safety/welfare documentation show that room checks are being completed at least every 30 minutes and are staggered in most cases. The agency implemented an electronic, software-based rounds checking system- RFID. Prior to the new electronic system, Defendants have provided additional personnel to ensure that the checks are being done in accordance to policy and procedure and modified the documentation as suggested by the Monitor. There are also regular quality assurance reviews in order to increase compliance. Following an internal review of documentation, random days and times across all units and shifts are selected each month to perform auditing. Any discrepancies are entered into the “Accountability Tracking” spreadsheet to help identify staff who need more training/assistance/discipline.
There was no formal discipline or “Letters of Expectation” during this reporting period. There were 16 job instructions given during this reporting period. PSU staff do visit youth daily when on site and are available 24/7 if needed by phone.
While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks and for implementing the electronic
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system as quickly as they did. Staff should also be commended for embracing this new system.
f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Property restrictions are most commonly applied by PSU for safety reasons, however forms and process for documenting any potential property restrictions need to be created and implemented.

g. Youth in room confinement shall receive:

1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is a lack of documentation as to this provision. Social worker visits, mental health services, and other health services are provided in general. Documentation, quality assurance, and policy and procedure need to be improved/completed in order for the Monitor to fully assess compliance.

ii.

Any rehabilitative programming (e.g., Aggression

Replacement Training, Juvenile Cognitive Intervention

Program, etc.) that was scheduled or in process before

placement in room confinement.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth’s participation in Skills Streaming is tracked across sessions and reported to the youth’s Social Worker and OJOR for consideration, but there is an overall lack of documentation as to specific programming that occurs daily. Staff did confirm that youth in Krueger phase 1 and 2 receive PSU-led small group sessions and evidence-based cognitive behavioral treatment in the form of Skills Streaming rather than receiving the same closed group treatment programming that was scheduled or in progress on their home unit.

iii.

Educational services with the general population to the

extent practicable. If attending educational services with the

general population proves unworkable due to an immediate

and substantial threat of physical harm or an unreasonable

risk of significant disruption to classroom instruction, youth

in room confinement shall receive alternative educational

services on days that the general population receives such

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services. Defendants shall ensure special education services for all eligible youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Educational Services for general population occur in the classrooms in the school area (although there is also an increase in the use of online instruction). Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in Krueger do not receive educational services in the school area (except for youth on Phase 3) but remain on the living unit. The PbS data also showed almost no schooling for youth in Krueger, education hours varied by unit, and fewer average daily hours of instruction for girls than for boys. It is unclear whether that is a consistent pattern or only occurred because of the situation the week data was collected, but this is concerning and should be monitored and improved.
Additionally, during the last reporting period and for all but two days of this reporting period, administration decided to move the girls’ educational services out of the traditional school area and into a building with fewer amenities and facilities than the main school. The Defendants did resume the girls’ education in the main school two days before the site visit which is a positive change. The girls really enjoy getting out of their cottage and into the main school and that should be continued. The Monitor recommends that all youth regardless of status have education in the school area. The Defendants should further engage the education expert to make further recommendations that should be implemented, including an assessment of the quality and benefits of the online education system Defendants are using. Defendants should implement the recommendations made by the educational consultant, including those in the June 1, 2019 memorandum to LHS/CLS. The Defendants also need to focus on bringing more programming into LHS/CLS, especially programming culturally relevant and specific to the race and genders of the youth who are at the facility.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. “Out time” has significantly improved over the last year. In general, youth are out of their rooms from 8 a.m. to 8 p.m. (with the exceptions in Krueger discussed previously). The Monitor regularly saw youth conversing with other youth and staff during out time. In youth interviews, youth stated that they are not really confined to their rooms at all. However, the data shows that a large number of youth are self-confining. This is a concern for the Monitor. Youth still want more structured activities when they are out of their rooms and feel they do not really do anything, which continues to be a significant problem and could lead to self-confining. More refinement

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to the Krueger Program also needs to occur as discussed during the site visit, such as eliminating confinement for staff convenience (which Defendants stopped doing after the site visit) and evaluating the length youth are on Levels 1 and 2. Enhancing programs and meaningful activities for the Krueger program should have a positive impact and allow for youth to return to their home cottages more quickly.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

eating that meal out of the cell.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most meals take place out of the room. Meals are now being documented for all youth (not just youth in Krueger as during the last site visit). Staff are now able to document when the meal is eaten in their room voluntarily or staff imposed. The Monitor did not witness youth eating in their rooms but has reviewed documentation in which youth are eating meals in their room. Documentation has improved from the last site visit and will further improve with the RFID system. Policy and procedure need to incorporate this section of the Court Order.

vi.

Minimum "out time" from the cell of at least 30 hours per

week and at least 3 hours per day. Time in general population

on a given day shall be credited to those hours.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that youth are receiving 3 hours of “out time” per day or 30 hours per week in a large majority of the time. This has significantly increased since confinement due to split halls, confinement for shift change, counts, and medicine pass were discontinued (although as discussed above, the hours of confinement for youth on Krueger for these and other reasons, did increase after October and, based on the PbS data showing youth in their cells for more than 20 hours per day, which appears to have reduced out time to less than 30 hours per week on the Krueger Unit). Documentation and data collection need to be improved.

5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is now a box on the incident debriefing form that is checked if staff informed the youth of his or her rights regarding grievances and appeals and time of notification. The Monitor suggests that staff ask the youth to sign off that they were informed of their rights and were provided with written notice of his/her rights. There were 76 grievances filed by youth during the first three months of this

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reporting period (on a variety of issues, not just placement) and 9% were discipline related. This indicates youth are aware of the grievance procedure and utilize it. Defendants do have a robust tracking system in place. Defendants do analyze and have created measures for youth grievances. The quality assurance piece needs to ensure grievances are being timely and appropriately addressed and communicated to youth.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Court Order requires documentation of all forms of room confinement, and Defendants are now documenting this more consistently. Documentation needs to continue to be completed and consistently applied to all situations. Documentation, data collection and reliability, and quality assurance needs to continue to be improved. Also, documentation needs to be created that prove a youth was promptly provided with the report upon the completion of room confinement.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. OC has been completely eliminated during this reporting period. There needs to be continued focus on training, skills development and coaching, programming, and continued focus on overall atmosphere. This is a huge accomplishment by the agency and staff at LHS/CLS.
2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. OC has been eliminated during this reporting period. There needs to be continued focus on training, skills development and coaching, programming, and continued focus on overall atmosphere. This is a huge accomplishment by the agency and staff at LHS/CLS.
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C. Mechanical Restraints. The following provision shall be effective immediately upon entry of the Court's order incorporating this Agreement:
1. Prohibition on types and uses of mechanical restraints.
a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor did not personally see any youth in mechanical restraints during site visit, but data and documentation show that there was an increase in use of mechanical restraints during this reporting period. Defendants need to focus on reducing the use of mechanical restraints. Defendants need to document and establish that there were not less restrictive means available and quality assurance measures and final policy and procedure are in place.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the youth regains control and when the threat of harm or the safety concern has abated.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The use of mechanical restraints has increased during this reporting period. Documentation shows that a few times youth were restrained even when the youth were calm and compliant. Documentation needs to be improved to document that an imminent threat of physical harm existed, and when and how that decision is reviewed. If Defendants reduce the use of mechanical restraints, and develop better documentation and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.

c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

i. Mechanical restraints may be used when ordered by PSU to attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The monitor is aware that the transboard was used three times for one youth as authorized by PSU during the reporting period. With better documentation and quality assurance measures and continuing to focus on reducing the use of restraints, Defendants may be close to achieving substantial compliance with this provision.

ii.

Mechanical restraints may be used if the youth poses an

immediate and substantial threat of physical harm to others.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is aware that a wrap has been used during this reporting period three times. Note: Future use of the wrap should be monitored and documented within monthly data reports as well as in the PbS data collection cycles and, per PbS definitions, should be documented as “other” mechanical restraint usage for outcome measure Order #5 – Other Restraint Use. Documentation has improved relative to when restraints have been used and the rationale for usage. With better documentation and quality assurance measures and continuing to focus on reducing the use of restraints, Defendants may be close to achieving substantial compliance with this provision.
iii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
d. Mechanical restraints shall never be used for punishment or discipline.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. It appears that in isolated cases, restraints may have been used for discipline based on past behavior, when the youth was calm and compliant. If Defendants eliminate such uses of restraints, with better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence of youth being restrained to a fixed object. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques
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may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that the large majority of staff have received training in physical force, restraints, and trained in proper de-escalation. However, de-escalation training needs to be completed more often (regular, informal, refreshers) so that staff can continue to develop this skill. These skills are also important to help staff identify and prevent situations which might lead to disruption or altercations before such incidents occur Proper de-escalation cannot be trained only once, or even only once a year. The Monitor continues to suggest having staff who are very good at de-escalation work with staff who could use a refresher or with new staff especially since a large majority are new.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraint use has been added to the Incident Debrief process and the Incident Debrief process itself is being analyzed for improvement. New data will be available. The length of time youth spend in restraints is now being documented as part of the Incident Debrief process. If Defendants maintain this, they will be close to achieving substantial compliance.
D. Strip Searches. The following provisions are effective immediately upon entry of the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could
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not be discovered through less intrusive means.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there are very few occasions where youth are strip searched period and there is no evidence that strip searches without probable cause are being done. The policy for searches needs to be finalized and QA developed. Defendants are close to being in substantial compliance.
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that strip searching still occurs but on a much lesser frequency. Documentation shows there were less than five (5) strip searches during this reporting period. Blanket strip searches of youth at intake or returning from court and hygiene checks have been completely eliminated. The policy for searches needs to be finalized and QA developed. Defendants are close to being in substantial compliance.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved as to how staff are ensuring that unintended individuals cannot view the search (detail the area where search is occurring, state that there are no recording devices, and document who is present in the area, etc.) If documentation and policy revisions are made, substantial compliance can be obtained.
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved detailing the area where search is conducted and how other youth cannot view the youth being strip searched. If documentation and policy revisions are made, substantial compliance can be obtained.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation needs to be improved
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as to which staff conducted the search, that the search is by staff who is of the same gender identity as the youth if the strip search is being conducted by someone other than a medical professional. The Monitor previously recommended form changes for documentation purposes.
d. Strip searches must be conducted by staff trained in traumainformed practices.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Training records indicate that staff have been trained in trauma informed care.
e. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is told by direct care staff that PSU is consulted. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The process for tracking and documenting all searches including the probable cause for any necessary strip search and the weapons, drugs, or other items discovered has been incorporated into J-Tracker as of September 1, 2019. With continued practices and QA developed, Defendants will be in substantial compliance.
E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most staff have been trained in MANDT and other training which includes de-escalation skills training. Several training sessions have occurred during this reporting period. The Monitor recommends increasing the training frequency for staff to increase their experience and skill levels in managing and deescalating situations before they result in the use of force, restraint and/or isolation. The use of force review process continues to improve. It continues to be more thorough, comprehensive, and timely. Corrective action plans when force was used where it could have been avoided are being done in most cases. The Monitor recommended in instances where deescalation was successful, those examples should be used as a training tool for other staff including having other staff view the videos.
F. Programming. Immediately upon entry of the Court's order incorporating this
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agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Many of the recommendations that were made in the February 2018 technical assistance report have been implemented such as family events, yoga/Zumba, increased tournaments, dog therapy, more arts and music, writing contests, living unit decorating contests, CREW. Youth advisory and family councils have been implemented, regularly scheduled, and the Monitor’s recommendations have been incorporated into the process (agendas, minutes, frequency, and increased staff involvement). Recreation leaders have been hired to focus on art and music. There have been musical instruments purchased and music lab enhanced. Although there were more activities for youth during this reporting period, there is still a significant amount of idle time. Now that youth are basically out of their rooms from 8 a.m. to 8 p.m., there is a need for more activities/programming. These activities/programming should be in addition to school, not as a substitute for education.
As recommended previously, counselors, recreation workers, social workers, PSU staff, and volunteers can be utilized in creating and leading programming for youth. There has been an activities committee established. Administration needs to increase meaningful/structured program and activity hours to further reduce youth idleness hours. As mentioned previously, increasing education hours, including for youth who have obtained a diploma or HSED, can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most of the recommendations made in the February 2018 report have been implemented such as conducting a staffing analysis, hiring bonuses to obtain new staff, adjustment to schedules, staff break room, increased wages for current staff, staff recognition, and several staff wellness initiatives. Defendants have clearly made staff wellness a priority and this is evident in my interactions with staff. Defendants should continue to focus on training and developing staff in order for them to feel safe and actively engage with youth. There still are major staffing challenges due to various employee leaves and teacher vacancies. There is an urgent need to address the teacher vacancy rate. A plan needs to be developed that will provide mandated education to youth on a daily basis (certifying security staff, combining classrooms, increasing student ratios than currently, reducing the number of teachers on leave or vacation, reaching out to community
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schools/substitutes etc.)
Although the population is lower at LHS/CLS, the agency needs to develop meaningful methods for further reducing youth populations. This might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law. Defendants need to continue to work towards developing smaller, geographically located Type 1 facilities and also to evaluate whether there are alternative kinds of facilities and/or intensive community services to which youth could be released. In October 2019, the Agency submitted a request to the Joint Committee on Finance requesting the authority to construct two Type 1 facilities, as well as necessary funding required to construct the facilities. This needs to be an ongoing priority or Defendants will not be able to come into substantial compliance with this Court Order.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
COMPLIANCES STATUS: PARTIAL COMPLIANCE. DOC has identified sections of the Administrative Code that need to be modified, but significant revisions have not yet occurred. Defendants need to continue drafting interim policies for LHS/CLS while also developing final Code revisions.
IV. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There has been an improvement in meeting the 24-hour timeline. Informal reviews occur right after an incident in majority of
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cases. When it has been determined lesser means could have been used, there is a corrective action plan developed but follow up needs to occur to ensure the plans are completed (QA component). A framework for other QA measures relating to the consent decree is being created.

B.

Quality assurance. The superintendent shall establish performance goals,

including compliance with the terms of this settlement; shall analyze data on

whether those goals are met; and shall put in place immediate corrective action to

address goa ls that are not being met.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Critical quality assurance positions are now filled and will be assisting in developing a quality assurance program. The Monitor reviewed sample performance goals, reviewed PbS in great detail, and made suggestions for monthly performance measures and how to incorporate into policy. As discussed throughout this report, data driven decisions are critical to come into compliance with this Court Order and to improve the quality of life for youth and staff. The Monitor remains confident that the Defendants will create a competent quality assurance program especially with the addition of the new RFID system.
CONCLUSION
There have been significant improvements to the physical plant of LHS/CLS which is providing a less institutionalized feel for youth and staff. This is reflected in an improved quality of life for both youth and staff. The overall atmosphere today has vastly improved from a year ago, although there have been some setbacks since the last site visit. Eliminating OC spray and implementing the new RFID system are the two biggest accomplishments this reporting period. Leadership, staff, and youth should be commended because it took a lot of hard work and commitment by all to get to the place where LHS/CLS is today. Defendants have more programming for youth than LHS/CLS has ever had available to youth. Direct-care staff vacancies have been reduced. As a result of the progress made, it is clearly evident that these changes are having a positive impact on the overall atmosphere and culture of the facility.
The Monitor feels that the facility can benefit from and see improved outcomes from further implementation of the Care Team model. The Care Team model has shown great success in other jurisdictions in not only reducing the number of use of force/restraint and confinement instances, but also improvement to the overall atmosphere, climate and culture of a facility by improving staff and youth relationships. As noted throughout the report, the facility would also benefit from utilizing a mental health expert to evaluate the mental health program.
The facility would also benefit from an increased focus on reducing idleness and increasing meaningful activities, particularly during weekends and evening hours. The facility should continue to work on improving the behavior management system, providing improved and increased youth incentives that will help in reducing many behavioral incidents and reduce the high number of selfrequested confinements and program refusals. The agency recently reviewed a behavior management

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Case: 3:17-cv-00047-jdp Document #: 116 Filed: 03/05/20 Page 36 of 36 system being used in Utah and is working to implement a similar BMS program here. Once in place, the new system should show success in reducing these types of refusals. Continued efforts need to be made to further engage the educational expert, reduce teacher vacancies, and increase educational time and quality. Regular training in de-escalation and physical restraint techniques need to continue to occur. Policies and procedures for LHS/CLS need to continue to be developed as well as administrative code. Implementing the new quality assurance program needs to be a primary goal. The physical plant improvements need to continue as scheduled. Although there are improvements to be made, the Defendants continue to make progress. The Monitor is happy to answer any questions or address any concerns by the Court or the parties. Respectfully Submitted, /S/ Teresa Abreu Teresa Abreu Monitor
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 Case: 3:17-cv-00047-jdp Document #: 119 Filed: 07/09/20 Page 1 of 45

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J.J., by and through his next friend, Sakeena Jackson, for themselves and all others similarly situated,
Plaintiffs,
v.
JON E. LITSCHER, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al.,
Defendants.

Case No.: 17-CV-47

SIXTH REPORT OF THE MONITOR
Teresa Abreu, Monitor, hereby submits this status report.
INTRODUCTION
The Fifth Report of the Monitor was filed with the Court on March 5, 2020. The Monitor’s sixth report will focus on assessing compliance with the Consent Decree, implementation of recommendations in the February 2018 technical assistance report, and comment on any observations and/or updates from the fifth site visit which took place on February 6 through February 8, 2020.
SITE VISIT The sixth site visit by the Monitor took place on May 15, 2020. Due to the recent pandemic, the Monitor limited onsite time to one day and completed necessary interviews/information gathering via virtual meetings over the following two weeks after the site visit. The Monitor reviewed materials provided by the parties prior to and after the site visit for the reporting period ending May 31, 2020. Materials included but were not limited to: Covid-19 related memos, directives and plans, programming materials, PbS data, project plans, grievances, counselor logs, various staff memos, daily shift reports, all of the monthly data submitted to the parties per this Court Order, updated unit rules, work rules, employee leave data, behavior and treatment plans, mechanical restraint documentation, incident reports, and other housing documentation. Due to Covid-19 (reducing visitors during this time), only the monitoring team were on site during this site visit.

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Plaintiffs’ counsel conducted several youth interviews virtually (via video calls) and participated in the various virtual calls with the Agency and facility staff. The Monitor took photographs, toured LHS/CLS, and interviewed youth and staff. The Monitor had the opportunity to talk to the majority of youth and staff present during the site visit. Approximately sixty-two (62) youth and forty-one (41) staff were interviewed formally and informally by the Monitor during this site visit.
Overall Quality of Life, Conditions, and Atmosphere
Introduction
It is important to note that during most of the evaluation period, the pandemic, Covid-19, impacted the world. Just as the entire country had to make systemic changes in order to stop the spread of this infectious disease, so did correctional institutions around the country. LHS/CLS as well as other institutions developed an emergency operation plan with the goal of mitigating any potential exposures to Covid-19. The Monitor understands that the priority of the Agency was to mitigate the chances of exposure to Covid-19 (youth or staff) in LHS/CLS. LHS/CLS is fortunate to be pretty isolated geographically. The Governor put a temporary transfer hold in which LHS/CLS has not received new admissions since March 26, 2020. Not only did this mitigate any chances of outside exposures, it significantly reduced the population to the lowest the Monitor has seen (76 youth). In addition, due to a combination of not admitting new youth and working to get youth out more quickly, the total LHS/CLS population declined to below 80 youth. It is significant to note that DOC reports (and the PbS data indicate) that this decline was accompanied by a reduction in incidents and misbehavior by youth. The population reduction allowed more individualized attention, and there was more stability in the units. This positive outcome is important and something that should be addressed and continued: i.e., that having fewer youth and keeping them together with consistent and individualized staffing can reduce incidents and benefit youth and staff alike. Program modifications had to be made due to the pandemic including, but not limited to: no in person visitation (virtual visitation occurred frequently-discussed in more detail below), education moved to “e-learning” like the rest of the country, grandparents programming was halted, tournaments etc. had to change so the units did not comingle, PSU, teachers, social workers, and other staff rotated and conducted services virtually when they could not be done in-person. Overall, even during this difficult time, youth and staff had very good attitudes and adjusted to the many changes implemented during this crisis.
Physical Plant
The general areas of the facility were very clean and orderly. The atmosphere in general was very calm throughout LHS/CLS. The Monitor noted in the last report that the recommendations as to the physical plant modifications made in previous Monitor reports and the February 2018 technical assistance report have been implemented and/or were progressing. Due to Covid-19, remaining physical plant projects had to be put on hold. However, seven (7) of the twelve (12) cottages have been remodeled to date (Wells, Miller, Dubois, Curtis, King, Black Elk, Roosevelt) and the new staff breakroom has been completed. Additional projects not yet completed are the camera upgrade, electrical upgrade, and remaining cottage remodels. The Monitor will continue to update the Court on physical plant improvements that increase the safety and quality of life for youth and staff.
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The entrances into the units were very clean and orderly, the day rooms were very clean, and most of the bathrooms in the cottages were clean. The units were more orderly and cleaner in general than during the last visit. The level of cleanliness of youth rooms varied throughout the cottages (described in more detail below) but were generally cleaner than the last visit. Youth and staff should be commended.
The Monitor previously recommended that searches of all buildings be conducted to remove excessive objects, materials, equipment, furniture, etc., to enhance the safety and security of the units/buildings and to maintain a more orderly and safer environment. Defendants regularly conduct and document searches and there was no evidence of excessive objects, furniture, etc. in the living units or classrooms. However, search procedures were modified due to Covid-19 emergency procedures. The Monitor suggests that pre-Covid-19 search procedures continue.
School/Living Units Observations
The Monitor visited each cottage and toured the school during the site visit. The school continues to have positive messages through out and artwork is displayed. The classrooms and the general school area were very clean. However, it must be noted that no youth were present in school due to educational services being held virtually and on the units. On March 24, 2020, the schools began providing education on the units with most education staff working off-site, and this is ongoing. The schedule was distributed with a training brief assisting with Chromebooks and logging into Edgenuity (on-line learning tool). Teachers were on-site once a week. Music, art, and recreation still occurred. Students had Zoom meetings with teachers when needed. Teachers checked in regularly with unit staff and students and are able to monitor youth’s progress through Edgenuity. Of course, e-learning is not the preferred format for teaching, but during the pandemic, many learning institutions have taken this approach. However, a number of youth did complain to Plaintiffs’ counsel about dislike of and difficulties with this format, especially the lack of personal attention and real time feedback from teachers. The change in educational format at LHS/CLS is consistent with what many other schools throughout the country implemented during Covid-19. The Monitor spoke to the educators present during the site visit and reviewed the e-learning tool.
The Monitor previously recommended that the Defendants should retain an education expert to complete an assessment of the educational program at LHS/CLS. The expert was retained and provided initial observations. The expert returned in November to further assess the education department’s operations and make specific recommendations. The Monitor recommends that the Defendants engage the consultant further and work to address the concerns raised – including the need for more deep and meaningful teacher interaction with youth, enhancing or expanding the daily education hours, which is only about three (3) hours per day - and implement the recommendations made by the consultant and the Monitor with respect to staffing and the educational program for LHS/CLS. The Monitor was told that retaining the educational consultant has been put on hold. The Monitor encourages the Defendants to reengage.
There were more than adequate staffing levels on the living units. The Monitor saw some staff engaging with youth, although less than last visit (partly due to attempts at social distancing). Youth attitudes overall were very good during this site visit. All the youth that the Monitor interacted with were respectful and very interested in interacting with the monitoring team. The Monitor had an opportunity to talk to almost all of the youth present in the day rooms. The fact that only the
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monitoring team came onto the units was less intimidating than when facility/agency leadership are present. Due to the positive and more in-depth conversations with youth, the Monitor will continue to conduct future site visits in this manner.
Safety/welfare checks are no longer being completed on paper because the new RFID system has been implemented as of January 2020. As a reminder, the RFID system measures staff performance on safety/security checks in real time, which will help manage compliance with the various requirements of the Court Order and other standards. The Monitor observed staff completing the rounds on all units. Small recommendations made by the Monitor during the last visit were for the new RFID system to change the word “inmate” to “youth” and replace the icon with the hands in the cell image for another one (if possible). The Monitor is told that this has been communicated to the vendor and is being developed. As of April, a youth is scanned when (s)he enters and exits his/her room in an effort to align the RFID’s capabilities with DJC’s ongoing PbS data collection work. DJC continues to work on creating and refining reports regarding various outcomes including youth confinement by date, type, and youth, track length of confinement and reasons for confinement. The new RFID has many capabilities and the Monitor suggested continuing to use and develop (if needed) other measures in the system.
During this site visit, the girls were split between King and Wells cottages. Hughes cottage was being utilized as the female quarantine. One youth was on the Hughes unit as she had to go offsite previously for medical attention. The atmosphere on the girls’ units were extremely positive. This is an improvement from the last site visit. Youth were laughing with each other. On King, some of the girls were outside drawing pictures with chalk, several girls were gardening, and other youth were interacting with each other on the unit. The social worker was present on the unit and the some of the girls were going to weaving class. The girls were in very good spirits and liked having school on the units. The rooms on the unit were generally clean and orderly with beds made. No one was confined to their rooms, but one youth voluntarily was in her room sleeping. The Monitor observed staff redirecting youth appropriately and youth following staff direction. Staff were completing their safety/security rounds and observing the youth throughout the unit. It was a very calm and happy unit. Staff expressed their difficulty with managing and helping the youth with education (something that has increasingly occurred because, as noted above, the online education system has not been providing adequate support for a number of the youth).
Wells was clean and very beautifully decorated. Some girls were making Origami with staff. Two girls created a song and dance about how to stay safe during Covid-19 which they performed for the Monitor. The staff were engaged with the youth and the atmosphere was very positive. The rooms in general were clean and the unit itself was clean and orderly. Two youth were in their rooms voluntarily.
The girls were very engaged with the Monitor. The girls complained that they did not have as many paid jobs as the boys (and wanted more) and that there were phone restrictions for non-phone related behaviors. They understood the programming changes due to Covid-19. At this time, the girls liked having school on the units and were not upset about not going to the school area. Once the youth are allowed back in the regular school, it is important for the girls to also go back into the main school, which has superior facilities and resources. They liked arts and crafts and enjoyed sewing masks as a project. They also missed visitations but liked the Zoom calls with their families.
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With respect to the boys’ cottages, generally, the cottages themselves were clean. Youth told the Monitor that they had to clean due to the Monitor visit. The Monitor recommended during the last couple of site visits that staff adjust their placement since youth can more freely move around the unit (some youth in day room, outside, in and out of their rooms, and bathroom). Staff were appropriately placed around the units from a safety perspective. During this site visit, staff in general were not interacting with the youth as much as the Monitor observed in previous visits but this could be due to social distancing practices.
In Krueger, the walkway and unit were clean. Youth rooms were dirty and had graffiti as observed during the last two site visits. Nine (9) youth were out in the day room and three (3) staff were present on the unit. Youth exhibited good peer relations and were respectful to the Monitor and staff. The unit was dark for some reason. Staff were positioned around the unit. Youth were making calls and sitting on the unit talking with each other. Youth complained about wanting more activities to do (bored), wanted playing cards, wanted MP3 players, and stated there were still issues with getting canteen, and the food served is not good. On a positive note, the Monitor observed that additional phones have been installed in all of the units to make phones calls more accessible to youth.
In Addams, the living unit and bathroom was clean. There was still a lot of graffiti. Not a single youth was confined. Youth were doing homework, making telephone calls, and playing cards. Youth rooms were very clean and orderly. Unit was calm. Staff were engaged with youth and helping with schoolwork. There were nine (9) youth on the unit and three (3) staff. Youth openly talked with the Monitor. They did not like that they had to see barbed wire outside their unit which was just a constant reminder that they were “locked up.” They also said they did not like most of food served but loved the barbeque chicken. They said they would like to make masks too. They complained about having nothing to do.
In Black Elk, the youth rooms and unit were very clean. One (1) youth was confined. Eight (8) youth were out in the day room. The atmosphere was calmer than the last visit. Youth were out in the day room interacting with each other. All of the youth talked were very talkative with the Monitor. Youth talked to the Monitor about staff (ones they liked and ones they did not), discussed issues with canteen, wanting MP3 players, complained that their RFID bracelets were uncomfortable, wanting more things to do, and they missed going down to school and participating in other activities. They did enjoy Zoom calls with family but miss visitation.
The Rogers unit (TIP) was clean. Bathrooms and rooms were cleaner than last visit. All youth were out of their rooms (no confinement). Youth were about to eat lunch out in the day room. There were three (3) staff on the unit and six (6) youth. Staff were positioned around the unit. The unit was calm. Youth were very quiet and did not want to engage much with the Monitor. They did mention that there were issues with canteen, would like to make masks if offered the opportunity, and missed the teachers and going to the school area.
The Curtis Unit was clean and quiet. Half of the youth rooms were clean. There were twelve (12) youth on the unit. When asked, staff could not tell me how many youths were in their rooms (2 youth were confined). Youth were out in day room talking with each other. Youth talked with the Monitor. Youth complained about canteen and the food. They also mentioned phone restrictions and restricted out time due to Covid-19. They would like to cook more food. They did complain about one
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particular staff which the Monitor brought to management’s attention. Youth want more activities to do and more games. They would like to make masks.
The Miller unit and youth rooms was clean. Eight (8) youth were in the day room and no one was confined. Two (2) staff were working on the unit. Youth were eating lunch or doing chores. Overall, the unit was calm. All of the youth talked with the Monitor. Youth’s favorite meal is the barbeque chicken and macaroni and cheese. Their least favorite meals were Salisbury steak, meatloaf, and stir fry. They complained about the canteen. They stated they had phone restrictions. They missed going to school. They also stated that they did not get to order anything or do anything special for Mother’s Day which was disappointing. They missed the “grandma” snacks.
The Dubois unit was very clean. Some youth rooms were clean. Youth just finished eating and were cleaning up. There were fifteen (15) youth on the unit. Two youth were doing homework and one youth was in his room (voluntarily) watching a show. There was a total of five (5) staff on the unit (two nurses were on the unit providing medication to youth as needed). The Monitor spoke to 9 of the 15 youth. Youth did not complain of phone restrictions. They would like more to do and have more board games to play (some of theirs were pretty destroyed). They would like to make face masks if offered and missed being in school. They would like more bikes. Youth also wanted more assistance with note taking as e-learning and lack of in person 1 on 1 teacher support was difficult. The Monitor suggested having groups in the units on how to take effective notes.
In March, the Foster Grandparents asked if they could work with youth to make facemasks for the youth and staff at CLS/LHS. This started out as a kind gesture to provide a few masks with a group of youth that had did not have previous experience with sewing. To date the team of staff and youth have made hundreds of masks for our staff and youth. They have also taught our youth an amazing skill and the opportunity to give back to the facility and community. However, that skill and opportunity has been limited to the girls; many boys expressed interest in doing this and the opportunity should be expanded to them.
The Monitor was happy to see that the recreation schedule (Music, Art & Physical Recreation programs) were maintained to provide youth programing and activities during COVID-19. Some youth told Plaintiffs’ counsel that they did not feel they received enough of this kind of programming and would like the opportunity to have music, art and physical recreation daily, not to have to choose among those activities. Youth Activity’s Committee has started STEM projects with the youth. Youth are continuing to paint canvases to be displayed on the units.
Because in person visitation had to stop due to Covid-19, Zoom visits began March 26. As of May 11, 384 visits had been facilitated with 94 unique youth participating. All youth indicated they have been offered Zoom visits. Twenty-nine (29) Youth completed a survey and 41% of respondents indicated they had not previously received an in-person visit. Youth did tell Plaintiffs’ counsel that they would like more frequent Zoom calls.
Youth were asked what they liked about the newly instituted Zoom visits. Below are the Qualitative Highlights for “What I like about Zoom / Positive Experience with Zoom”:
“Seeing mom. They make happy and better days”
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“Seeing my dog and family at home” “Seeing my family’s faces” “It allows me to see home and how my families are living.” “See my baby brother tell me his age” “I love seeing my grandma” “I’ve been locked up 19 months and haven’t seen my family since then because they live in Texas, but Zoom let me get a visit” “I saw my nephew” “I seen my niece” “Seeing my little sister smile” “Seeing my house again” “Everything”
Due to the positive response to these Zoom calls, Defendants are going to try and keep these going even when in person visitation resumes. This will be a great addition due to visitation being difficult due to the geographic location of LHS/CLS.
There continues to be food incentives for youth. The food service department processes requests for pizza parties and incentive snacks for youth incentives almost every day most weeks and since March 1, the CLS/LHS has served a total 762 individual food incentives to youth (not including the popcorn and soda on Saturday nights for movie night, and not including the incentive food that is purchased for youth from local restaurants and stores).
DJC continues to explore and expand the use of technology, especially in light of COVID-19. Starting Friday, March 13, movies were broadcasted to every living unit and personal television at set times during the weekend. A feature movie that is brand new will be shown every Saturday night at 6:00 pm, and then that movie will be available for order from the movie library. This will give everyone an opportunity to watch the new movies at the same time. Popped popcorn will be sent down to the units on Saturday with the dinner meal to be served during the movie that evening.
Additionally, DJC is now able to use Channel 2 with a network computer connection/display. This means we are able to display a YouTube video to the entire facility at once. Implementing use of this technology, a pre-recorded religious service video on Channel 2 can be displayed on Sundays. As with movies, all living units will need to have the dayroom TVs turned on (to Channel 2) for any youth would choose to view this during this time. This is in addition to youth being able to view the same service/video from their own rooms on Channel 2 if they have a personal TV. Following the religious services videos there may also be a few other videos shown carrying positive messaging involving some well-known celebrities.
There is still a need for additional structured programming overall. The Monitor understands that Covid-19 has required some programming to change/cease, but there still could be more activities for the youth to do. While youth are out of their rooms there should be engaging activities. As previously mentioned, youth are bored and while being out of their rooms is certainly an improvement, more meaningful activities and weekend programs would also help reduce the risk of youth engaging in anti-social behaviors when they have little else to do – particularly during Covid-19 when so many interactions with other youth, family, staff, and educators are now being
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done virtually. Youth need more to do than simply sitting in the dayroom area watching television or playing cards. There needs to be a bigger focus on reducing youth idleness and more structured programming should be put into place. In response to needing more structured, gender and culturally relevant programming, Defendants have created a new position of “Program Director.” The job description is being finalized and posting and recruiting will occur soon after.
Staffing
During this reporting period, there have been a few key staffing changes. The Superintendent of LHS/CLS is transferring back to the adult system. The Monitor wants to thank the Superintendent for all of his hard work and dedication to improving the conditions for youth and staff in his care. He had an amazing rapport with staff and youth and worked diligently implementing the suggested changes made by the Monitor and this Court Order. He graciously delayed his transfer in order to ensure that LHS/CLS had consistency in leadership during the pandemic. Posting and recruiting for the Superintendent position occurred and an internal candidate has been recently selected. The Monitor looks forward to working with this individual. Additionally, one out of the two Psychologist Supervisor positions remains vacant. The Defendants are actively recruiting for her replacement. Two new Unit Supervisor positions have been created which will allow for the Unit Supervisors to supervise two units.
It is important to note that there is a hiring freeze due to budget restraints. Some positions are not able to be filled such as the Chaplain and Educational Assistant. The Monitor hopes there can be exceptions made for any key position hires at LHS/CLS in order to meet the requirements of this Court Order.
Direct-care staffing vacancy percentage significantly improved over the last year. There have been fifteen (15) new direct-care staff hired during this reporting period. There are 311 total positions (“FTEs”) at LHS/CLS. Previously, based on population, Defendants determined that they need three (3) fewer teacher FTEs and thus moved the FTEs to other critical positions. Approximately 153 of these positions are “direct-care” staff (Youth Counselor/Youth Counselor Advanced (“YC/YCA”). The teacher vacancy rate remains high (8 vacancies). Hiring has not occurred during this reporting period due to Covid-19 and education being online. The Monitor encourages continuing to recruit teachers despite the reduced population and challenges with Covid-19. Recruiting is still a challenge due to the location of the facility, overall teacher shortages, relatively low compensation, and the year-round school calendar and thus, hiring needs to continue. As previously mentioned, the entire educational program at LHS/CLS needs to be evaluated and improved.

Position
Youth Counselor

Vacancy Rate % as of Vacancy Rate % as of Vacancy Rate % as of Vacancy Rate % as of

May 31, 2019

Sept. 6, 2019

January 30, 2020

May 13, 2020

11.5% (12 out of 105) 14% (15 out of 105) 7% (8 of 115)

8.6% (10 out of 115)

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Youth Counselor Adv.
Teacher

50% (25 out of 50) 43% (12 of 28)

Social Worker 0% (14 of 14)

7% (3.5 out of 50)
36% (10 of 28) 21.5% (3 of 14)

15% (5.5 of 37.5)
32% (8 of 25) 21 % (3 of 14)

13% (5 out of 37.5)
32% (8 out of 25) 21% (3 out of 14)

There has not been a data driven analysis of the 12-hour shift (which began in Nov. 2019) to date, but now that there are six (6) months of data available, the Office of Budget and Programs will be conducting an analysis of the 12-hour shift. A second comprehensive staff survey was completed. Every staff person the Monitor spoke to said they absolutely love the new schedule except one. In the recent survey conducted, some staff reported that they work fewer hours and are not ordered to work extra shifts as much as they used to be, but this seems to be dependent on which shift and which cottage they work in. It appears that more staff than not like the schedule. However, the overall positive comments are somewhat less than in the previous survey.
The Monitor spoke to over forty-one (41) staff and the majority of staff seemed happy. The vast majority of staff again expressed the desire to have more programming for youth. Every staff person the Monitor spoke to and observed were proficient with the RFID system. Staff were not as engaged with the youth this visit (except the staff on the girls’ units). Perhaps staff were trying to social distance during Covid-19. Staff were somewhat frustrated with the lack of support with e-learning. Some had difficulty trying to assist youth while completing their other responsibilities and some had difficulty with certain subject matters. Staff were excited about the new break room. They had not used it yet due to Covid-19, but the staff break room is beautiful. The atmosphere is relaxing, and the leadership took the staff’s recommendations with respect to how they wanted the room to look and the items that they wanted in the room. The staff break room exceeded the Monitor’s expectation.
The Defendants have implemented almost all of the recommendations for staff wellness including increased training, staff recognition program, engaging staff in developing programming and policy changes, actively participating in youth and family council meetings, reducing ordering of staff (mandated overtime), and constructing a relaxing staff lounge. Other staff incentives implemented were:
- Staff recognition board - Staff have been able to wear jeans throughout COVID-19. - Staff treat bags for correctional employee appreciation week. - March - Luck of the Lincoln staff giveback for St. Patrick’s Day. Soda and candy then staff
could pick a small scratch card to see if they won an additional prize. - February - handed out granola bars and Rice-Krispies treats. - January - festive mugs with hot cocoa and candy.
The Monitor continues to stress the need to continue making staff wellness a major focus moving forward.
As part of the agency and facility’s desire to improve conditions for both staff and youth, they are
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continuing to engage in the Youth in Custody Practice Model (“YICPM”), which was explained in the previous Monitor reports. The third YICPM site visit took place November 14-15, 2019. As of April 6, 2020, DJC planned the next steps with YICPM. In place of in-person meetings during COVID-19, the plan for continued collaboration on YICPM was decided to be the following:
• YICPM consultants will record webinars on practice model content areas and forward to DJC when completed. The initial webinar will focus on the practice model content areas of Case Planning, Re-entry, and Community Supervision.
• DJC can then view each webinar either as a group or individually. • After viewing the webinar DJC will schedule Zoom meetings to discuss the webinar
content and complete associated checklists as a team. • Following internal discussion, DJC will then schedule Zoom calls with YICPM to share
our checklists and plot out next steps with them.
Since the last meeting, all new youth admitted to LHS/CLS are utilizing a new Growth Plan. The Monitor continues to look forward to the agency implementing these plans to improve conditions of confinement for youth and well-being of staff.
The Defendants are also collaborating with Massachusetts Department of Youth Services to explore Dialectical Behavioral Therapy (“DBT”) as a behavior management system. DJC has proposed hiring a DBT contractor to assist with implementation of DBT as a behavioral motivation approach. The Monitor was informed that the consultant has been retained and planning has begun. The Monitor looks forward to working with the consultant. In addition to obtaining the consultant, PSU has recently conducted a DBT readiness self-assessment. Information gathered from the selfassessment will assist the division once they begin implementing the strategic framework for DBT.
The Monitor was informed that due to Covid-19, contracting with a mental health consultant was postponed. The Monitor continues to recommend that the facility obtain a mental health expert to evaluate the programming, staffing, and services that exist at LHS/CLS – including for youth with significant mental health needs - and make recommendations on how to address the issues raised and improve treatment and services for youth at LHS/CLS.
The Monitor previously suggested modifying the mental health (PSU) and recreational staff work schedules to include more evening and weekend hours, especially given the lack of sufficient other structured activities during those times. PSU staff work until 8 P.M. during the week and are oncall 24/7. The Defendants should continue to involve PSU staff, especially leadership, in making improvements at the facility (such as improvements to incentives, consequences, and working with the OJOR system). Currently, there is a PSU staff member who comes in each weekend to perform rounds, meet with youth on AC and observation status, attend to any crises, finish notes, and intakes and will report to the facility as needed. However, there are no groups or programming involving PSU on the weekends. The Monitor recommends that scheduling of PSU be reconsidered (rotate staff if need be, alternating weekends, etc.) or if this is not possible, then hire additional PSU staff to work nights and weekends. Weekends are when there is the most idle time and need for additional meaningful programming. Adding weekend programming will also have a positive impact on reducing incidents of violence and other behavioral incidents related to
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boredom and lack of activities. There really is a missed opportunity for PSU involvement during this period and particularly during Covid-19 when engagement with family, staff, and other youth are reduced.
Quality Assurance (“QA”)
As stated in the last report, a framework for identified outcome measures was developed to align with PbS national benchmarks. PbS data collection cycles occur twice annually, and the most recent cycle was in April 2020. Facility Improvement Plans (“FIP”) have been created after the most recent PbS Coach Site Visit and has been forwarded to the Monitor. As a reminder, PbS is a continuous data-driven improvement model grounded in research that holds juvenile justice agencies, facilities and residential care providers to the highest standards for operations, programs and services. The FIPs are the vehicles for jurisdictions to continuously bring about meaningful change. They bridge the gap between understanding and actions to improve the conditions of confinement at a facility, beginning with identifying the specific outcome measure(s) a facility want to improve. The FIP process provides the facility with the ability to track progress towards identified outcome goals, and receive scores based on that performance and identified FIP goals.
Since the last reporting period, the following action steps, have been implemented to improve overall conditions of confinement, operational services, programs and/or facility culture:
1. Both schools continue to update PbS boards in the main lobby of the schools.
2. Sent in Award Applications for (LHS):
• 1 Youth for scholarship. • 1 staff Department of Education scholarship. • 4 Art Contest. • 2 Kids Got Talent (waiting on consent forms from parent/guardians). • 1 Barbara Allen Hagen Award- Removing OC.
3. Sent in Award Applications for (CLS):
• 2 Art Contests. • 2 Kids Got Talent (waiting on consent forms from parent/guardians).
4. An introduction to PbS has become a part of new staff orientations & the new Youth Counselor/Youth Counselor Advanced academy.
5. Added a Supervisor of the Month to the Employee of the Month recognitions.
6. REC schedule (Music, Art & Physical Recreation programs) maintained to provide youth programming and activities during COVID-19. Evening programming continues and is popular with youth although a number of youth requested that these opportunities be increased
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7. Youth Activity’s Committee has started STEM projects with the youth.
8. Youth continuing to paint canvases to be displayed on the units.
9. FY17-FY19 Workers Compensation claims were evaluated to look for patterns and trends.
10. Ten (10) staff completed Verbal Judo Instructor training.
11. A multi-disciplinary committee was created to review the Case Planning process.
12. School Updates: Student Honor Roll is being recognized at the school. CR2EW developed to monitor and support student progress in addition to advocating throughout academic and social circumstances.
13. HSU continues targeted monthly educational activities for the youth.
14. Began a Field Training Officer program for non-security staff.
FIP Action Steps PbS offers a 7-action step tool, driven by a research-informed improvement model, to support and guide PbS participating agencies and facilities as they work to achieve both incremental and sustainable change. The action steps entered into the PbS website make up the team's concrete plan to attain the improvement the facility is seeking.
1. Analysis of Performance • Pinpoint the causes of your outcome performance.
2. Creating Buy-In • Identify how you will engage those whose support you need to improve the targeted outcome or area of change.
3. Setting Outcome Measure Goal • Create short, interim & long-term goals that provide benchmarks and a vision to work toward.
4. Improvement Process Action Steps • Develop concrete, measurable actions to address the factors that contributed to your outcome performance.
5. Interim Measures • Identify how you will monitor your progress toward your goals to see what is working and adjust your strategies, as necessary.
6. Sustaining Performance • Identify strategies that will support what is working to ensure sustainable change.
7. Performance Recognition • Determine how you will formally and informally recognize staff, youth, and other stakeholders for their contribution to the improvement process; celebrate successes!
The following outcome measures were selected for these FIPs based on input from the PbS Coach
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and facility outcome:

LHS Facility Improvement Plan #1010
Outcome Measure
Safety 02 Injuries to youths per 100
person-days of youth confinement.

Safety 03 Injuries to staff per 100
staff-days of employment.

Safety 04 Injuries to youths by other
youths per 100 person-days of youth confinement.

Safety 11 Assaults and fights on
youth per 100 person-days of youth confinement.

Safety 12 Assaults on staff per 100
person-days of youth confinement.
Outcome Measure
Safety 02Injuries to youths per 100 person-
days of youth confinement.

Original Value Current Value Average Value Goal

64.00

53.00

18.70

48.00

Safety 03Injuries to staff per 100 staffdays of employment.

19.00

3.00

3.20

14.00

Safety 04Injuries to youths by other

youths per 100 person-days of youth

17.00

2.00

confinement.

4.29

12.00

Safety 11Assaults and fights on youth

per 100 person-days of youth

38.00

9.00

12.50

28.50

confinement.

Safety 12Assaults on staff per 100 person-days of youth confinement.

9.00

4.00

4.29

6.75

CLS Facility Improvement Plan # 1009
Outcome Measure
Order 08 Isolation, room
confinement, segregation/special management unit use per 100 person-days of youth confinement.

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Outcome Measure
Outcome Measure

Original Value Current Value Average Value Goal

Order 08

Isolation, room confinement, segregation/special management unit use per 100 person-days of youth confinement.

29.00

69.00

14.06

15.00

A thorough and in-depth review was conducted of the April 2020 PbS data collection for both LHS and CLS. During the review, outcome measure data clarification and input was sought from both the facility PbS State and Site Coordinators and the assigned PbS Coach. As a result of the review, the following highlights and outcomes are noted:
PbS Data Quality – In the previous report, some issues were identified as to the quality of the data entered for some outcome measures, including outcomes measuring around daily activity durations. Through the review of the April data reports, the Monitor is pleased to report that those issues appear to have been resolved. More importantly, the new Guardian RFID system was used to record much of the data inputted for the daily Unit Log activity data. This permitted the facility to accurately report the daily activity for all youth, including education, facility programs, recreation, leisure time, and “in sleeping rooms” (room confinement), and finally sleeping time. Using the Guardian RFID system also allowed for the tracking of daily activity over the entire data collection month, rather than a simple week snapshot that was reported during the previous report for the October date collection cycle. This allowed for much more accurate data over the course of the entire month. With the improved data collection, we can now get a better sense for the progress being made, which is commendable. Before the Monitor begins to outline areas for improvement, it is important to recognize the efforts and positive steps forward in regard to the quality of the PbS data and the overall progress in many of the outcome measures. It is important to remember that PbS is a “continuous facility improvement program”, therefore overall progress is measured over the period of years and numerous data collection cycles. The trend line of the outcome measures is what is most important as it reflects the direction of the facility over time. The April data clearly shows progress trends moving in the right direction for many of the outcome measures.
It is important to note that the April data collection took place in the middle of the pandemic, which certainly made facility operations much more challenging, particularly around the issue of reducing room confinement. In these circumstances, the easy approach would have been to put youth in their rooms as much as possible to promote social distancing and reduce the risk of infection. The Monitor is happy to report that this did NOT occur at LHS or CLS. It certainly appears that the facility made every attempt to maintain facility operations as best possible under these challenging conditions. This is highly commendable and reflects the agency and facility leadership commitment to improving conditions of confinement.

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With all that said, there are a couple of outcome measures that bear attention. First and foremost, is what is unquestionably a high rate of “self-requested” confinement, which is when youth ask to be in their rooms. The data reflects 838 incidents during the month of April for self-requested confinement, representing 76% of all confinement for the facility during the month. Second to that are 213 incidents (19% of all confinement) where youth “declined to participate in program”. Program refusals typically result in room confinement which is something not contemplated or allowed by the Court Order. These two categories alone represent 95% of all confinement for the month of April. On one hand, this is a positive as very little confinement is a result of behavior issues. On the other hand, it is also a reflection of the culture, atmosphere and environment which results in such self-selected confinement. Focusing on improvement on these particular areas of confinement will certainly have an immediate and positive impact on reducing overall confinement numbers.
It is also a positive trend that behavioral related confinement only represents 5% of all confinement (2% to “protect youth from other youth,” 2% to “give youth time to cool off,” 1% for “other response to misbehavior” and 1% “other response to misbehavior” and “not recorded”). To illustrate this point differently, at LHS, there were 1,051 incidents of confinement unrelated to behavior (838 self-requested and 213 for program refusal) compared to 46 incidents related to behavior. Similar disparity is seen at CLS, where there were 211 confinement incidents unrelated to behavior (148 self-requested and 63 for program refusal) compared to 20 behavior related incidents (11 for mental health related issues; 3 to protect other youth or staff; 2 for time to cool off; 1 medical; 1 rule violation; and 2 other). Focus on reducing these types of confinement through improving the overall atmosphere and environment as well as tying program participation into the incentive and rewards program should have a positive effect. The overall effort of the facility improvement plans as well as the focus issues of the settlement agreement should also have a positive impact on these issues.
Additionally, the previous report discussed that the unit activity record for the Krueger Unit reflected that youth were spending approximately 20.64 hours per day in their rooms (10.5 hours reflected as sleeping time and 10.14 hours reflected as “in sleeping rooms,” room confinement). The activity log for the Krueger Unit also did not reflect any hours for education. This issue seems to have been resolved. The April activity log for the Krueger Unit reflects that youth are spending 2.27 hours per day in education programing; 5.20 hours per day in leisure activity; 2.57 hours per day in operational activity; 10.73 hours per day in rooms for sleeping; 2.83 hours per day in rooms (operational confinement); with the remainder of time identified as 0.07 facility programming; and 0.33 recreation.
Finally, the Monitor encourages the facility to closely review all of the PbS data and outcome measures as a means to better understand the impacts generated from the many changes occurring within the facility. Agency and facility leadership should make it a point to review the PbS data with staff at all levels, perhaps during monthly all staff briefing meetings. This is an opportunity to show the positive outcomes being achieved through the various changes and efforts to reduce incidents of violence, confinement, and use of restraint. As a result, while much work remains to be done, the data clearly shows that trend lines are moving in the right direction and providing a safer environment for staff and youth.
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Use of Restraint Outcome Measures - Both LHS and CLS show “0” incidents of use of chemical agents (Order 6) during the April 2020 data collection cycle, which is commendable and per the Settlement Agreement. However, the rate of physical restraints (Order 3 – Physical Restraint Use per 100 person days of confinement) at LHS and CLS remains high and significantly above the national average as does the rate of mechanical restraints (Order 4 – Mechanical Restraint use per 100 person days of confinement) usage incidents. While the rate of physical and mechanical restraint use declined at CHS, it rose slightly at LHS during the April data cycle compared to the October 2019 cycle. This is very typical of a facility transition from and eliminating the use of OC (pepper spray) as staff develop new skills for de-escalation and behavior response techniques. As mentioned earlier, this is a continuous facility improvement process which involves complex operational issues. The following two charts reveal that overall, the trends lines for both physical and mechanical restraint use is on a downward trend and moving in the right direction from the April 2019 data collection cycle.
Order 03
Physical restraint use per 100 person-days of youth confinement.
(Note: PbS defines Physical Restraints as facility authorized and trained holds used by staff to subdue an otherwise uncontrollable youth in order to prevent the youth from injuring him or herself, or others.)
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Order 04
Mechanical restraint use per 100 person-days of youth confinement.
(Note: PbS defines Mechanical Restraints as Mechanical Devices (such as handcuffs) used to prevent an uncontrollable youth from injuring him or herself or others. Mechanical restraints may only be used for short periods of time and must be used under medical supervision.) The previous Monitoring report discussed issues around the reduced use of the Care Teams which resulted in a higher number of restraint-usage incidents. Care Teams are designed precisely to reduce the need for the use of restraints and have been effectively shown to work at facilities across the country and have been shown to be effective at LHS and CLS as well. A review of various incident reports shows multiple situations where use of a Care Team might well have been able to avoid escalation of the situation. The Agency and facility should continue to expand the use of the Care Team concept and ensure that direct care staff are training to properly use the Care Team as a de-escalation and use of restraint avoidance response. Unfortunately, some staff appear to incorrectly equate ‘de-escalation’ with verbally repeating the same order to a youth, rather than trying to engage the youth and resolve problems. As noted below in the PbS data, verbal deescalation is also the training most frequently requested by staff. It is critical that direct care staff develop skills around total awareness in order to recognize the early signs of pending behavior and
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incidents in order to engage the Care Team members at the earliest possible opportunity. This in turn increases the opportunities for de-escalation and resolution of situations in a more restrained and effective manner. with the use of restraint. The Department should continue to implement the core principles of the Care Team model by utilizing an agency strategic plan process that involves additional staff training in de-escalation techniques; include Care Team deployment information in shift debriefings in order to review the process and provide on-going situational training for staff; implement a Care Team response incident report that also reflects the outcome of the response in order to better track outcomes from Care Team deployments; implement the S.O.D.A.S model (Situation, Options, Disadvantages, Advantages, Solution) into the Care Team model; and, finally, the facility leadership team should incorporate daily/weekly review of all use of force/restraint incidents to evaluate if and when the Care Team should have been activated to help de-escalate a situation. This should be used as a staff training and awareness process to help staff build new skills and to help change their mindsets in how they first react to certain types of youth behaviors. Isolation, Room Confinement and Segregation Measures – Overall, the PbS outcome measures around isolation and room confinement are improved over the October 2019 PbS data collection cycle reflecting that 97.07% of room confinements are terminated in under eight hours, and slightly fewer in under four hours, 93.88%. These are both very commendable achievements, and both are slightly better than the national field averages for these outcome measures. These rates also reflect an increase from the October 2019 rates. While these rates are commendable, we continue to see a high rate of initial confinements (room confinements for self-requested, program refusal or behavior related incidents, typically ended in under four hours) reflected in Order 8, which remains significantly higher than the national field average.
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Order 08
Isolation, room confinement, segregation/special management unit use per 100 person-days of youth confinement.

There remains an issue around Order 13 – Isolation, Room Confinement for reasons not related to behavior. These appear to primarily be incidents where youth are refusing to participate in programs and education. As you can see from the following chart, self-requested and declined to participate in programs involves 95% of the non-behavior related confinement incidents at LHS and 91% of confinement incidents at CLS.

Why confinement was used Value

Lincoln Hills Count Percent

Copper Lake Count Percent

Self-requested

838

76%

148

64%

Declined to participate in program 213

19%

63

27%

Mental Health

11

5%

Protect other youths or staff

25

2%

3

1%

Give youth time to cool off

20

2%

2

1%

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Value Other response to misbehavior Not recorded

Count Percent

1

0%

1

0%

Count 2

Percent 1%

The PbS Incident reporting data for April 2020 reflects the following important data points:
➢ 25% of the incidents occurred in the DuBois Unit; ➢ 99% of all incidents occurred within a living unit; ➢ 71% of incidents involved “failure to comply.”

LHS Did the incident occur in a living unit?

Value Count Percent

Yes 876 99%

No

11

1%

CLS Did the incident occur in a living unit?
Value Count Percent

Yes 149 97%

No

4

3%

LHS Incident location (living units):

Value

Count Percent

DuBois 223 25%

Black Elk 135 15%

Miller

135 15%

Rogers 116 13%

Curtis

103 12%

Krueger 84

10%

Addams 80

9%

CLS Incident location (living units):
Value Count Percent

Wells 96

64%

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Value Count Percent

Hughes 42

28%

King 11

7%

Youth and Staff Climate Surveys – Both youth and staff appear to be more responsive in utilizing the youth and staff climate surveys. It is strongly recommended that both department and facility leadership take the time to thoroughly review the agency/jurisdiction count summaries for both the youth and staff climate surveys. The results can be very insightful and useful for leadership. Below are some of the survey results that the Monitor found most useful to be included in this report.

Staff Climate Survey Results:

In your opinion, what would make this facility safer?

Value

Count Percent

Training

49

53%

Safety equipment 45

48%

More staff

42

45%

Other

35

38%

Less overcrowding 15

16%

In regard to the above chart, the following are the top ten most requested training that staff felt would make the facility safer:

What training would you like to see?
Value

Count Percent

Verbal de-escalation

46

48%

General behavior management

36

38%

Communication

34

36%

Appropriate staff/youth relationships 31

33%

Gang training

29

31%

Safety and security

27

28%

Juvenile rights

23

24%

Cultural diversity and awareness

23

24%

Agency policies and procedures

21

22%

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Value Adolescent development

Count Percent

20

21%

April 2020 PbS Staff Climate Survey Results: ➢ 51% of staff responses reported they fear for their safety, down from 79% reported in the
October 2019 surveys; ➢ 48% of responses reported they believe the facility is unsafe or very dangerous, this too is down
from 83% reported in the October 2019 surveys; ➢ 77% of responses indicate that staff believe they do not have authority to discipline youth
appropriately, slightly better than the previous data cycle of 83%.

Youth Climate Survey Results:

Do you fear for your safety in this facility?

Value

Count Percent

No

15

48%

Yes

9

29%

Refuse to answer 4

13%

Not recorded

3

10%

In comparison, the youth fear for safety measure, Safety 13, has steadily improved from the previous data collection cycles. The rate still remains higher than the national field average but is improving.

Within the last six months at this facility, have you been beaten up or threatened with being beaten up?

Value

Count Percent

No

16

52%

Yes

10

32%

Not recorded

3

10%

Refuse to answer 2

6%

➢ 45% of youth responded that they do not understand their legal rights, which is slightly better from the previous surveys;
➢ 90% responded that they know and understand the behavior management points system and know their levels;
➢ 42% reported have received a family visit. (It should be noted that the pandemic and restrictions

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around visitation impacted these results. The facility did increase the use of technology for video visitations.)
Defendants should continue to pay particular attention to each Facility Improvement Plan as each FIP includes a section for comments relating to the implementation status of each action step completed by the PbS Site Coordinator or assigned staff member. Ongoing FIP review comments are entered by Facility Administrators, Agency Directors, and the assigned PbS Coach. This is an excellent way to for the agency and facility leadership to monitor on-going progress with each of the FIP goals and to provide input, guidance, and direction during the process.
Policies and Procedures
There have not been any revisions made to policy and procedure since the last site visit.
Youth Interviews
The Monitor conducted several youth interviews. Approximately sixty-two (62) youth were interviewed during the site visit (formally and informally). About a half-dozen youth were interviewed by Plaintiffs’ counsel by video call. There were significantly fewer requests to talk to Plaintiffs’ counsel. During the last site visit, by far the biggest complaint by the youth was being bored, the quality of the food and frequency of the same meals being served. The Defendants stated that they would address this issue and consider a 4-6-week menu. The Monitor did review the new four-week menu prepared which is consistent with the Monitor’s recommendation. Defendants have assessed the menu and added more items that the youth like such as: burritos, pizza patties, pizza, corn dogs, chicken alfredo, chili dogs, and Mexican lasagna. Staff reported that least favored items such as meatballs and gravy, chicken and gravy, turkey ala king, Salisbury steak, and meatloaf have been removed. Corn on the cob has been added to the menu and they modified the vegetables to make them more appealing. The Defendants should continue to discuss the menus in the youth advisory committees to continue to receive input from youth as most youth continue to complain.
The second most common complaint last visit was that when selected canteen items were unavailable there was no communication with or warning to the youth. Thus, the youth could not get canteen as deserved. Had communication occurred, they could have picked alternative items. The Monitor suggested that LHS/CLS leadership continue to work with the vendor and the business office to fix this communication problem and also consider an on-site mini canteen of items that youth desire should their canteen order be unavailable. The youth work hard to earn points and in turn, earn canteen privileges. The issues with canteen have been going on long enough and should be fixed immediately.
The third most common complaint last time was that the RFID bands were uncomfortable (they are on the thicker side). The Monitor suggested speaking with the vendor to see if there are any tweaks that can be made. Unfortunately, the bands cannot be changed. However, there were less complaints this visit. Perhaps the youth are adapting to the bands. The overwhelming majority continue to report that they are rarely confined, if at all, were not restrained that much, and were not strip searched.
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The biggest complaints from youth this visit was the food, canteen out of stock items, being bored, missing school, and phone restrictions. Youth in general did not frequently complain to the Monitor about confinement, restraints, being unfairly treated by staff, or feeling unsafe. Previously, defendants have done an excellent job of essentially eliminating phone restrictions as recommended but there were phone restrictions during this review period. The Monitor requested data as it relates to phone restrictions and the data shows that in CLS there were 22 one-day phone limitations in which youth could only make one phone call per day. Of the 22 youth who had restrictions, 14 of them were able to make Zoom calls. Most boys in LHS complained of having phone restrictions, yet the data does not show there were not any restrictions during this period. Previously the Monitor – and PSU staff – had recommended that phone restrictions not be used at all as a punishment except for phone-related violations, and that had improved at the last visit. It is not clear why those restrictions have been reinstated. The Monitor suggests that phone restrictions should not be used as a behavior management tool at all, and –especially now since there is limited interaction due to the pandemic.
Covid-19 required several changes to programming and the general day to day with youth; not just at LHS/CLS but in every juvenile facility. Hopefully, regular programming can resume soon, but time will tell as Covid-19 continues to impact everyone’s lives. Defendants are and should continue to identify more resources and continue to implement the programs as recommended by the retained experts. The Defendants should take advantage of the reduced population and the available staff in planning for the future and developing programs for youth and continuing to offer more creative and other activities for youth while in-person interaction is limited.
COMPLIANCE WITH THE CONSENT DECREE AND PERMANENT INJUNCTION
Below is the Monitor’s assessment of compliance with the consent decree. As previously stated, there is a challenge with adequacy of data for many areas (documentation, accuracy, consistency, and analysis) thus, some sections do not contain a detailed narrative.
Room Confinement
1. Punitive Confinement.
a. Subject to the terms and provisions of Section V(C)(3)(g) effective immediately upon entry of the Court's order incorporating this Agreement, no punitive room confinement shall exceed seven days. Defendants shall calculate the seven-day period by including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence either in data or youth interviews that indicate youth are being confined for seven days. If Defendants improve their quality of data and documentation and incorporate the Court Order into policy and procedure –and if this improvement is sustained - they will reach substantial compliance.
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b. Subject to the terms and provisions of Section V(C)(3)(g), Effective seven months after entry of the Court’s order incorporating this Agreement, punitive room confinement shall be limited to three days, including both pre-hearing and post-hearing room confinement.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Based on data and youth interviews, most youth are not being confined for three days, although there appear to be some isolated examples of this occurring. If Defendants improve their quality of data and documentation and incorporate the Court Order into policy and procedure – and if and if they ensure that no youth are being confined for three or more days, they will reach substantial compliance.
c. Subject to the terms and provisions of Section V(C) (3) (g), effective ten months after entry of the Court's order incorporating this Agreement, punitive room confinement shall be prohibited.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The data shows that there are frequent confinements for refusing to participate in programming. Those confinements do not meet the criteria for Administrative Confinement – there is no risk of imminent physical harm- and appear to impermissibly constitute punitive confinements. The Monitor recommended creating a policy which clearly outlines the criteria for administrative confinement so that staff cannot punitively confine youth. Defendants are working on said policy. Defendants also need to reconsider consequences for not participating in various programming.
2. Administrative Confinement. Administrative confinement may only be used for a youth who poses a serious risk of imminent physical harm to others. Subject to the terms and provisions of Section V(C)(3)(g), effective six months after entry of the Court's order incorporating this Agreement, an initial period of administrative confinement may not exceed four hours for a youth posing a risk of imminent physical harm to others. When the youth is in room confinement to prevent a risk of imminent physical harm to others, Defendants shall engage in visual checks at least every 30 minutes, as specified in current policy, and shall provide intensive mental health services designed to return the youth safely to the general population. If at any point the youth no longer poses a risk of imminent physical harm, he or she must be immediately returned to general population. Time in administrative confinement may exceed four hours only under the following circumstances:
COMPLIANCE STATUS: PARTIAL COMPLIANCE. During this reporting period, there were instances in which administrative confinement was being used for youth who did not pose a serious risk of imminent physical harm especially in March (see data below). The Monitor suggested how to document this requirement in policy and in forms as well as made suggestions to place youth in the day room once they no longer pose a serious risk of
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imminent physical harm to others.
February 2020 CLS: 9 uses of AC. Average of 152 Minutes. 1 youth went over four hours. LHS: 59 uses of AC. Average of 168 minutes. 2 youth over four hours.
March 2020 CLS: 7 uses of AC. Average of 175 minutes. LHS: 69 uses of AC. Average of 240 minutes. 15 youth over four hours (as high as 1300 minutes)
April 2020 CLS: 3 uses of AC. Average of 142 minutes. 1 youth over four hours LHS: 40 uses of AC: Average of 191 minutes. No youth over four hours
May 2020 CLS: 5 uses of AC. Average of 182 minutes. No youth over four hours LHS: 37 uses of AC: no youth over four hours.
As stated in the previous report, the Krueger Program (which is used for youth who are seen to have more anti-social behaviors) has been modified based on some of the Monitor’s recommendations. Since the last report, each youth who comes to Krueger and who is also enrolled in treatment programming has had a treatment specialist provide one-on-one services in order to keep them current with their assigned treatment groups. Youth at every phase of the Krueger Program are afforded these services. Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plans need to be revisited with more frequency should a youth not be able to return to the home unit in an appropriate period of time. The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program as well as criteria for exiting the program and ensure that youth clearly understand why they are being placed in Krueger and what they specifically need to do to move through the levels. The Monitor also suggested allowing youth on levels 1 and 2 to attend school in the school area (once education resumes in the school area) and participate in other programming if their behavior warrants.
Data compiled from the Krueger Living Unit continues to be requested and evaluated by Unit Managers and SYC’s. An overview of data compiled from the Krueger Living Unit during January through April shows:
Youth Referred: 124 Youth Not Placed: 70 (56%) Youth Placed: 54 (44%) Youth Placed 1 Time: 48 Youth Placed 2 Times: 5
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Youth Placed 3 Times: 1
Jan-Apr 2020 (Average Number of Days for Placed Youth) Phase 1: 15 Phase 2: 4 Phase 3: 3

The Monitor spent time (virtually) with PSU and discussed providing “intensive mental health services designed to return the youth safely to the general population.” The team did develop a detailed operational definition and the Monitor reviewed documentation of services provided. DBT groups have not been running because of Covid-19 but youth are receiving weekly individual DBT sessions. The Sex Offender Treatment group was not interrupted and is continuing. The Monitor suggested that the Defendants retain a mental health expert to evaluate the program and make recommendations to, among other things, ensure these services are being provided, including while youth are in AC. A tracking spreadsheet that identifies the treatment group that youth who enter the Krueger Program are engaged in at the time of their transfer into Krueger. The tracking sheet is updated in cooperation with all the treatment specialists to ensure the information is communicated across the different staff classifications involved. Policy and procedure and a quality assurance review process needs to be implemented, and documentation needs to be streamlined.
Due to the lack of data available, the Monitor is unable assess compliance as to the 30minute safety/security checks.

a. Administrative confinement may be extended four hours with one additional four-hour extension thereafter (for a total of up to 12 hours) when:

i.

A psychologist, psychology associate or psychiatrist

recommends continued confinement because the youth

poses a risk of imminent physical harm to others, and

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There were youth confined for over four (4) hours this reporting period however, the number of youth confined for over 4 hours is less than the last reporting period (see response in previous question). March had a significant number of youth confined over 4 hours without meeting the requirements of this section of the Consent Decree. This also occurred in other months. Some of these confinements reported and documented that youth remained on AC were not recommended by PSU, which also is a violation of the requirements.

With this said, Defendants are accurately capturing confinement time, number total placements, average confinement time per month, and number of days without AC placements. Defendants now need to continue to focus on reducing AC overall, ensuring they are following this Court Order, draft policy, and procedure with AC placement criteria, and continue to QA this data.

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ii.

A plan is commenced to either promptly return the youth to

general population or transfer the youth to another facility.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most youth serve the administrative confinement on their home unit. Some youth are serving their confinement on Krueger and are referred to the “Krueger Program.” Although youth have behavioral plans developed, the program needs to be improved to include more robust behavioral plans and the plan needs to be revisited with more frequency should a youth not be able to return to general population promptly.

The Monitor also suggested that the Defendants evaluate the length of time it takes for a youth to move through levels 1 and 2 and that the policy and procedure clearly outlines the criteria for referral into the program. Defendants’ data and documentation has improved (see above Krueger data). Defendants need to incorporate the court order into policy and procedure and train staff accordingly.
b. Administrative confinement time limits may be tolled from 8 pm to8 am.

COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Time is being tolled from 8 P.M. to 8 A.M.
c. Administrative confinement may only be extended beyond 24 hours to effectuate transfer of the youth to another facility under a commenced plan.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There were no instances in April and May of youth being confined for over 24 hours. There were two instances in March where two youths were confined beyond 24 hours. Both youth were transferred to other facilities. Defendants need to improve their quality of data and documentation with respect to the “commenced plan” and incorporate the Court Order into policy and procedure. Defendants are close to being in substantial compliance.
d. The provisions of this section shall apply to all situations involving room confinement of any youth based on the risk of harming others and shall supersede any rule or policy to the contrary.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. See above.
3. Youth at imminent risk of serious self-harm. Effective immediately Upon entry of the Court's order incorporating this Agreement, Defendants shall amend DJC Pol icy #500. 70.24 as set forth in Appendix A and shall treat youth at risk of self-harm in compliance with that amended policy.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. DJC Clinical Observation policy 500.70.24 was updated. The plans developed are very detailed and comprehensive. A quality assurance mechanism needs to be finalized.
4. Conditions of Room Confinement. Effective immediately upon entry of the Court's order incorporating this Agreement, the following conditions shall apply to youth in any form of room confinement:
a. Any cell designated to house youth in room confinement must be suicide resistant and protrusion free.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. As previously stated, the Monitor would not deem any room in any facility as being “suicide proof,” however there are safety and security measures that can be put into place to reduce the risk of suicides and to make the rooms more suicide resistant. The Monitor recommended that Defendants replace the existing room furniture with furniture that is specifically designed and engineered for secure environments. The Defendants have completed the renovations in seven living units with a plan for completion of the other cottages by July 2021. The new replacement furniture is consistent with what the Monitor would expect to see in a secure facility and should certainly reduce the opportunity for suicidal incidents within the youth rooms. This is a huge investment by Defendants and shows their commitment to complying with this provision.
The Monitor did not observe rooms with multiple blankets/sheets covering large areas of the room. Staff can clearly see the youth through the window. Room searches are not taking place as often as before due to a change in Covid-19 procedures. The Monitor recommended that searches continue to be completed and documented. There are youth who still have blankets over their heads when they nap/sleep in room and staff need to continue to redirect youth and ensure that the youth are responsive when they do their safety/welfare checks.
Due to the lack of data available, the Monitor is unable assess compliance as to the 30minute safety/security checks. Defendants have purchased, installed, and are using the new electronic system in all the units. Staff have adjusted to the new system very well. Defendants need to modify their policy and procedure related to safety/welfare checks.
As stated in every report, while not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks and for investing in the technology needed.
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b. Youth in room confinement shall have prompt access to water, toilet facilities, and hygiene supplies, either in their rooms or upon request to a staff member via intercom or some other accessible and constantly monitored form of communication within approximately 15 minutes of such request.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most youth did not complain about access to water, hygiene supplies, or nighttime toilet usage. If Defendants improve their quality of data and documentation, and incorporate the Court Order into policy and procedure, they will be in substantial compliance.
c. Staff must notify a PSU staff member as soon as possible, and no later than two hours after placement, when a youth is placed in room confinement. A youth must have access to any needed mental health treatment while in room confinement. During the time that a youth is in room confinement, staff shall engage in crisis intervention techniques designed to return the youth to general population as soon as possible. PSU interventions during this time shall not consist only of conversations with youth through a locked door.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has been improved as to who from PSU was notified and time of notification. The crisis intervention technique is being documented but when PSU responded is not documented in a way that makes it easy to assess compliance. Also, since PSU staff are not physically present on weekends and some evening hours outside of the four hours they are required to do (although they averaged around 6.6 hours on weekends this period), it is difficult for PSU staff to engage youth in a meaningful way during this time. A quality assurance program needs to be developed and documentation should be streamlined. As previously stated, the Monitor suggests that the Defendants consider utilizing an expert in order to further develop the mental health program at LHS/CLS.
d. Any youth placed in room confinement for whom there is not already a mental health evaluation must have such an evaluation as soon as possible, and in any event no later than 24 hours after being placed in room confinement. If a youth is identified with a mental health need (a mental health code designation of MH-1 , MH-2a, MH-2b, or ID), placements in room confinement will be reviewed by a PSU staff member to determine whether that placement is a contraindication to the youth 's mental health or if other options will adequately protect the youth or staff.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor requested any documentation indicating that confinement is contraindicated and there were no
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instances documented during this review period. There is a form “Psychology Input for Security Decision” which is where the contraindication would be documented and there is a policy (Policy 500.70.04).
e. Staff must visually and in person check safety of youth pursuant to current policy at least every 30 minutes in all cases, and contemporaneously record the actual time of such checks in a log kept for that purpose. Staff who fail to make such checks or who falsify such records may be subject discipline. Any youth placed in room confinement for any period in excess of 24 hours shall receive daily contact with a mental health provider. This contact shall be face-to-face unless, due to staffing limitations, no PSU staff is personally available, in which case it may occur by phone or video conferencing. COMPLIANCE STATUS: Due to the lack of data available, the Monitor is unable assess compliance as to the 30- minute safety/security checks. The agency implemented an electronic, software-based rounds checking system- RFID. There continues to be regular quality assurance reviews in order to increase compliance. Following an internal review of documentation, random days and times across all units and shifts are selected each month to perform auditing. Any discrepancies are entered into the “Accountability Tracking” spreadsheet to help identify staff who need more training/assistance/discipline. There was no formal discipline or “Letters of Expectation” during this reporting period. There were 3 job instructions (down from 16) given during this reporting period. PSU staff do visit youth daily when on site and are available 24/7 if needed by phone.
While not required by the Court Order, the Monitor continues to recommend increasing the frequency of safety/welfare checks to a minimum of every 15 minutes when youth are confined to their rooms as this is supported by JDAI standards, PREA standards, NCCHC, ACA standards, and is the Best Practice Model. Defendants should be commended for the vast improvement on these safety/welfare checks and for implementing the electronic system as quickly as they did. Staff should also be commended for embracing this new system.
f. Any youth in room confinement shall have property items similar to or the same as items allowed in general population. Specific items of property may be restricted as needed for safety of the youth and staff on a case-by-case basis. These restrictions will be temporary in nature until these items can be safely returned to the youth. A Supervising Youth Counselor or Unit Supervisor shall review any prope1ty restrictions on a daily basis and document the review.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Property restrictions are most commonly applied by PSU for safety reasons, however forms and process for documenting any potential property restrictions need to be created and implemented.
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g. Youth in room confinement shall receive:

1.

All regularly scheduled social worker visits, mental health

services, and other health services.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is a lack of documentation as to this provision. Social worker visits, mental health services, and other health services are provided in general. Documentation, quality assurance, and policy and procedure need to be improved/completed in order for the Monitor to fully assess compliance.

ii.

Any rehabilitative programming (e.g., Aggression

Replacement Training, Juvenile Cognitive Intervention

Program, etc.) that was scheduled or in process before

placement in room confinement.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Youth’s participation in Skills Streaming is tracked across sessions and reported to the youth’s Social Worker and OJOR for consideration, but there is an overall lack of documentation as to specific programming that occurs daily. Staff did confirm that youth in Krueger levels 1 and 2 do not receive rehabilitative programming that was scheduled or in process which is a violation of the Agreement. Instead, these youths are limited to PSU-led small group sessions and evidencebased cognitive behavioral treatment in the form of Skills Streaming. Skills Streaming is designed to support the youth’s ability to successfully re-engage in treatment programming while on Krueger phase 3 and subsequently complete their other assigned programs. In addition, the PbS data shows that youth in Krueger average only 0.09 hours (just a few minutes) per day in programming.

DBT groups have not been running because of Covid-19 but youth are receiving weekly individual DBT sessions. The Sex Offender Treatment group was not interrupted and is continuing. The Monitor suggested that the Defendants retain a mental health expert to evaluate the program and make recommendations to, among other things, ensure these services are being provided.

iii.

Educational services with the general population to the

extent practicable. If attending educational services with the

general population proves unworkable due to an immediate

and substantial threat of physical harm or an unreasonable

risk of significant disruption to classroom instruction, youth

in room confinement shall receive alternative educational

services on days that the general population receives such

services. Defendants shall ensure special education

services for all eligible youth.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Covid-19 has changed how the educational services are being provided to youth at LHS/CLS. During the week of March 16,

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2020, school and treatment staff began planning for virtual/on-line education services to be delivered to youth on the unit with staff working off-site. The educational format has been approved by DPI and is consistent with what other schools throughout the country have implemented during COVID-19. On March 24, the schools began providing education on the units with most education staff working off-site. The schedule has been distributed along with a training brief assisting with Chromebooks and logging into Edgenuity. Applicable staff continue to be monitoring e-mail, conducting phone calls, and performing Zoom/video calls.
In general (prior to Covid-19) educational services for general population occurred in the classrooms in the school area. Youth in the Targeted Intervention Program (“TIP”) attend classes in the school area but separate from the general population. Youth in Krueger do not receive educational services in the school area (except for youth on Phase 3) but remain on the living unit. The PbS data also showed approximately 2.27 hours of schooling for youth in Krueger, which is slightly fewer than the average daily hours of instruction for other units. Unfortunately, the average daily duration of education hours remains low for both LHS and CLS, at around 3 hours per day. The Monitor feels that the facility needs to increase the daily education hours as best possible as this will have a positive impact on meaningful programs and reduce youth idleness.
The Monitor recommends that all youth regardless of status have education in the school area. The Defendants should further engage the education expert to make further recommendations that should be implemented, including an assessment of the quality and benefits of the online education system Defendants are using. Defendants should implement the recommendations made by the educational consultant, including those in the June 1, 2019 memorandum to LHS/CLS. The Defendants also need to focus on bringing more programming into LHS/CLS, especially programming culturally relevant and specific to the race and genders of the youth who are at the facility.

iv.

Additional "out time" for gross motor exercise and social

interaction. Defendants shall permit youth to talk to peers

during such "out time" unless such conversations pose an

immediate and substantial threat of physical harm to another

person. Sensory stimulation shall also be available during

"out time," unless such activities cause immediate and

substantial disruption or risk of physical harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. “Out time” has significantly improved over the last year. In general, youth are out of their rooms from 8 A.M. to 8 P.M. (with the exceptions in Krueger discussed previously) and for youth in quarantine due to Covid-19 safety measures implemented by Defendants. The Monitor regularly saw youth conversing with other youth and staff during out time. In youth interviews, youth stated that they are not really confined to their rooms at all. Youth are self-confining at a higher rate than the Monitor would like to see. Youth still want more structured activities when they are
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out of their rooms and feel they do not really do anything, which continues to be a significant problem and could lead to self-confining. Enhancing programs and meaningful activities for the Krueger program should have a positive impact and allow for youth to return to their home cottages more quickly.

v.

Meals out of the cell, absent an immediate and substantial

threat of physical harm to another person from the youth

eating that meal out of the cell.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most meals take place out of the room. Meals are now being documented for all youth Staff are now able to document when the meal is eaten in their room voluntarily or staff imposed. The Monitor did not witness youth eating in their rooms but has reviewed documentation in which youth are eating meals in their room. Documentation has improved from the last site visit and will further improve with the RFID system. Policy and procedure need to incorporate this section of the Court Order and youth should be eating out of their rooms unless there is a substantial threat of physical harm.

vi.

Minimum "out time" from the cell of at least 30 hours per

week and at least 3 hours per day. Time in general population

on a given day shall be credited to those hours.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Logs indicate that youth are receiving much more than the 3 hours of “out time” per day or 30 hours per week in a large majority of the time. PbS Unit log data, which is now tied to the Guardian RFID system, reflects 9.85 hours of in rooms for “sleeping” time and only 1.68 hours for “in sleeping rooms” (operational confinement), leaving 12.76 hours out of room for other programs and activities. This represents a significant increase in out of room time now that room confinement for operational activities such as split halls, confinement for shift change, counts, and medicine pass were discontinued. Similar data is also reflected in the Krueger Unit, indicating that the youth assigned to the Krueger program are also spending much more time out of their rooms than in previous monitoring periods.

5. Notification of Rights. Within 15 minutes of a youth's placement in room confinement, facility staff shall orally inform the youth of his or her rights regarding grievances and appeals. Within one hour of a youth's placement in room confinement, facility staff shall provide the youth with written notice of his or her rights regarding grievances and appeals.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is a box on the incident debriefing form that is checked if staff informed the youth of his or her rights regarding grievances and appeals and time of notification. The Monitor suggested that staff ask the youth to sign off that they were informed of their rights and were provided with written

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notice of his/her rights. Youth continue to receive their notification of rights/grievance procedures when they are placed in administrative confinement. The process for obtaining a youth signature (or two staff signatures in the event of a refusal) has been proposed as a part of youth receiving PSU thinking chain reports during the first stage of the administrative confinement process. However, the process and forms need to be enacted and written into policy.
6. Documentation. Whenever a youth is placed in room confinement, facility staff shall create a written report documenting the necessity of room confinement, the less restrictive measures attempted before placement in room confinement, and the length of time the youth spent in room confinement. The youth must be promptly provided with this report immediately upon its completion.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Court Order requires documentation of all forms of room confinement, and Defendants are now documenting this more consistently. Documentation needs to continue to be completed and consistently applied to all situations. Documentation, data collection and reliability, and quality assurance needs to continue to be improved. Also, documentation needs to be created that prove a youth was promptly provided with the report upon the completion of room confinement.
B. OC-Spray and Other Chemical Agents
1. OC reduction plan. Effective immediately upon entry of the Court's order incorporating this Agreement, the Defendants shall continue to implement OCSpray reduction plans, attached, and incorporated hereto as Append ix B, as outlined in the preliminary injunction.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. OC has been completely eliminated during the previous reporting period. There needs to be continued focus on training, skills development and coaching, programming, and continued focus on overall atmosphere.
2. Prohibition on use of OC-Spray and other Chemical Agents. Subject to the terms and provisions of Section V(C) (3)(g), within twelve (12) months of entry of the Court 's order incorporating this Agreement, the use of OC spray and other chemical agents will be prohibited.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. OC has been eliminated during the previous reporting period. There needs to be continued focus on training, skills development and coaching, programming, and continued focus on overall atmosphere.
C. Mechanical Restraints. The following provision shall be effective immediately
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upon entry of the Court's order incorporating this Agreement:
1. Prohibition on types and uses of mechanical restraints.
a. Under all circumstances, there is a presumption that youth shall not be mechanically restrained.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor did not personally see any youth in mechanical restraints during site visit, but data and documentation show that there was an overall increase in use of mechanical restraints during this reporting period. Incident reports also show uses of physical restraints when alternatives, such as the use of CARE teams, may have been possible. Defendants need to focus on reducing the use of mechanical (as well as physical) restraints. Defendants need to document and establish that there were not less restrictive means available and quality assurance measures and final policy and procedure are in place.
b. Restraints may only be used if staff determine that they are the least restrictive means of addressing an imminent threat of physical harm to self or others and must be removed immediately when the youth regains control and when the threat of harm or the safety concern has abated.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The use of mechanical restraints has decreased in CLS and increased in LHS over the last four months. Population is significantly lower over the last few months (average population of LHS/CLS December of 2019 was 116.5 and in May 2020 it was 86.8)

Uses of mechanical restraints LHS:

October 2019:

36 uses

November 2019:

21 uses

December 2019:

33 uses

January 2020:

25 uses

February 2020:

37 uses

March 2020:

38 uses

April 2020:

37 uses

May 2020:

27 uses

Uses of mechanical restraints CLS

October 2019:

10 uses

November 2019:

11 uses

December 2019:

5 uses

January 2020:

8 uses

February 2020:

2 uses

March 2020:

7 uses

April 2020:

6 uses

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May 2020:

0 uses

Documentation needs to be improved to document that an imminent threat of physical harm existed, and when and how that decision is reviewed. Defendants do have critical outcome measures for restraints. Defendants need to continue to work towards reducing the use of mechanical restraints, develop better documentation and quality assurance measures.

c. No mechanical restraint device other than handcuffs may be used on youth while they are in the facility, except:

i. Mechanical restraints may be used when ordered by PSU to attempt to prevent active self-harm.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.

ii.

Mechanical restraints may be used if the youth poses an

immediate and substantial threat of physical harm to others.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation has improved relative to when restraints have been used and the rationale for usage. However, as noted above, restraints are being used more frequently than they should be. With quality assurance measures and continuing to focus on reducing the use of restraints, Defendants may be close to achieving substantial compliance with this provision.

iii. During transportation, the facility may use handcuffs and, in rare instances when necessary for articulated reasons necessary to prevent an imminent threat of harm to youth and/or staff, additional restraints such as waist chains or leg restraints. When youth are being transported for release to a non-locked environment, there shall be a presumption that restraints are not used. Restraints may be used during such transportation to prevent a threat of harm to youth and/or staff.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. With policy revisions and quality assurance measures, Defendants will be close to achieving substantial compliance with this provision.
d. Mechanical restraints shall never be used for punishment or discipline.

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COMPLIANCE STATUS: PARTIAL COMPLIANCE. With better documentation, policy revisions, and quality assurance measures, Defendants will be close to achieving substantial compliance with this provision.
e. Youth may never be restrained to a fixed object, unless specifically ordered by PSU to attempt to prevent active self-harm.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence of youth being restrained to a fixed object. With better documentation, policy revisions, and quality assurance measures, Defendants will be close to achieving substantial compliance with this provision.
f. Only staff who have been specifically trained in the use of physical force and restraints and trained on proper de-escalation techniques may place a youth in mechanical restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Training records indicate that the large majority of staff have received training in physical force, restraints, and trained in proper de-escalation. However, de-escalation training needs to be completed more often (regular, informal, refreshers) so that staff can continue to develop this skill. These skills are also important to help staff identify and prevent situations which might lead to disruption or altercations before such incidents occur Proper de-escalation cannot be trained only once, or even only once a year. The Monitor continues to suggest having staff who are very good at de-escalation work with staff who could use a refresher or with new staff especially since a large majority are new. Staff continue to want additional training on deescalation.
g. Any use of mechanical restraints, except during transportation or for mental health purposes, must be authorized by a Youth Counselor, Youth Counselor Advanced, or supervisor in a living u nit. No youth shall be left alone in restraints. Any use of mechanical restraints in excess of 45 minutes must be approved by the superintendent, security director or designee and approved by PSU staff, and reviewed every 45 minutes thereafter. As soon as possible and no later than 2 hours following, PSU staff shall evaluate and provide therapeutic interventions to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. There is no evidence that youth were placed in mechanical restraints in excess of 45 minutes during this reporting period. With policy revisions and quality assurance measures, Defendants may be close to achieving substantial compliance with this provision.
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2. Documentation. Facility staff must document all uses of restraints in the facility, including a description of the events leading up to the use of restraints, the less restrictive alternatives attempted, and the length of time the youth spent in restraints.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Mechanical restraint use has been added to the Incident Debrief process and the Incident Debrief process itself is being analyzed for improvement. The length of time youth spend in restraints is now being documented as part of the Incident Debrief process. If Defendants maintain this, they will be close to achieving substantial compliance.
D. Strip Searches. The following provisions are effective immediately upon entry of the Cou1t's order incorporating this Agreement.
1. Prohibition on strip searches without probable cause. Facility staff may not conduct a strip search of any youth unless there is probable cause to believe that the individual youth possesses drugs or weapons that could not be discovered through less intrusive means.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there were two (2) strip searches in the month of March and no strip searches in the months of April and May. The two strip searches conducted were approved by PSU for contraband/self-harm reasons. The policy for searches needs to be finalized and QA developed. Defendants are very close to being in substantial compliance.
2. Strip searches with probable cause. Less intrusive searches, including using a metal detector, pat down, or allowing the youth to change into a tank top or other clothing, must be attempted before a strip search is conducted, unless it is determined by PSU in consultation with the youth that less intrusive searches, which may include physical contact, would cause greater trauma to the youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there were two (2) strip searches in the month of March and no strip searches in the months of April and May. The two strip searches conducted were approved by PSU for contraband/self-harm reasons. The policy for searches needs to be finalized and QA developed. Defendants are very close to being in substantial compliance.
a. When a strip search is conducted, staff must ensure that no unintended individuals are able to view the search, including by video or other recording device.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there were two (2) strip searches in the month of March and no strip searches in the months of
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April and May. The two strip searches conducted were approved by PSU for contraband/self-harm reasons. Documentation needs to be improved as to how staff are ensuring that unintended individuals cannot view the search (detail the area where search is occurring, state that there are no recording devices, and document who is present in the area, etc.) If documentation and policy revisions are made, substantial compliance will be obtained.
b. Under no circumstance may a youth be strip searched within view of another youth.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there were two (2) strip searches in the month of March. Documentation needs to be improved detailing the area where search is conducted and how other youth cannot view the youth being strip searched. If documentation and policy revisions are made, substantial compliance can be obtained.
c. Strip searches may only be conducted by individuals of the same gender identity as the youth being searched unless the search is conducted by a medical professional.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Documentation shows that there were two (2) strip searches in the month of March. Documentation needs to be improved as to the gender identity of the staff conducting the search because the search is being conducted by someone other than a medical professional. The Monitor previously recommended form changes for documentation purposes.
d. Strip searches must be conducted by staff trained in traumainformed practices.
COMPLIANCE STATUS: SUBSTANTIAL COMPLIANCE. Training records indicate that staff have been trained in trauma informed care.
e. If a youth with a known or suspected mental health diagnosis or history of sexual abuse objects to a strip search, staff must consult with mental health practitioners before conducting the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor is told by direct care staff that PSU is consulted. Documentation needs to be improved.
4. Documentation. Facility staff must document all uses of strip searches, including the reason for the search and any drugs, weapons, or other items discovered through the search.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The process for tracking and
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documenting all searches including the probable cause for any necessary strip search and the weapons, drugs, or other items discovered has been incorporated into J-Tracker as of September 1, 2019. With continued practices and QA developed, Defendants will be in substantial compliance.
E. De-escalation Training. Within three months following entry of the Court's order incorporating this agreement, all staff in the facility shall receive deescalation training by a nationally recognized provider. De-escalation training shall be provided at least annually thereafter.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Most staff have been trained in MANDT and other training which includes de-escalation skills training. Several training sessions have occurred during this reporting period. The Monitor recommends increasing the training frequency for staff to increase their experience and skill levels in managing and deescalating situations before they result in the use of force, restraint and/or isolation. The use of force review process continues to improve. It continues to be more thorough, comprehensive, and timely. Corrective action plans when force was used where it could have been avoided are being done in most cases. The Monitor recommended in instances where deescalation was successful, those examples should be used as a training tool for other staff including having other staff view the videos.
F. Programming. Immediately upon entry of the Court's order incorporating this agreement, the Defendants shall request that the Monitor provide assistance and strategies to increase programming and reduce the hours of id le time in the facility to no more than the PbS field average. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor understands that changes had to be made during the pandemic. The Monitor’s recommendations are the same as last report. Many of the recommendations that were made in the February 2018 technical assistance report have been implemented such as family events, yoga/Zumba, increased tournaments, dog therapy, more arts and music, writing contests, living unit decorating contests, CREW. Youth advisory and family councils have been implemented, regularly scheduled, and the Monitor’s recommendations have been incorporated into the process (agendas, minutes, frequency, and increased staff involvement). Recreation leaders focus on art and music. There have been musical instruments purchased and music lab enhanced. Although there were more activities for youth during this reporting period, there is still a significant and excessive amount of idle time. Now that youth are basically out of their rooms from 8 a.m. to 8 p.m., there is a need for more activities/programming. These activities/programming should be in addition to school, not as a substitute for education.
As recommended previously, counselors, recreation workers, social workers, PSU staff, and volunteers can be utilized in creating and leading programming for youth. There has been an activities committee established. Administration needs to increase meaningful/structured program and activity hours to further reduce youth idleness hours. As mentioned previously,
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increasing education hours, including for youth who have obtained a diploma or HSED, can greatly assist in reducing idleness time and provide positive youth development strategies through meaningful education and vocational programming.
G. Staffing. Immediately upon entry of the Court's order incorporating this agreement, Defendants shall request that the Monitor provide assistance and strategies to improve staffing ratios, and/or use strategies identified in the February 26, 2018 report and recommendations of Mark Soler, Michael Dempsey, Teresa Abreu and Jennifer Lutz. Defendants shall make reasonable efforts to implement the recommendations.
COMPLIANCE STATUS: PARTIAL COMPLIANCE. Defendants have clearly made staff wellness a priority and this is evident in my interactions with staff. Defendants should continue to focus on training and developing staff in order for them to feel safe and actively engage with youth. Even though education had to change due to the pandemic, there is an urgent need to address the teacher vacancy rate. A plan needs to be developed that will provide mandated education to youth on a daily basis (certifying security staff, combining classrooms, increasing student ratios than currently, reducing the number of teachers on leave or vacation, reaching out to community schools/substitutes etc.)
Although the population is lower at LHS/CLS due to Covid-19, the agency needs to develop meaningful methods for reducing youth populations post-Covid-19. Even though there were no intakes during the majority of this reporting period, there was still a significant reduction in population. An analysis should be completed to understand how the population was reduced (not including lack of intakes) and determine how the Agency can continue to reduce population at LHS/CLS.
As stated in previous reports, this might include expediting the OJOR process and evaluating youth for placement under community supervision, including intensive community supervision, as permitted by state law. Defendants need to continue to work towards developing smaller, geographically located Type 1 facilities and also to evaluate whether there are alternative kinds of facilities and/or intensive community services to which youth could be released. In October 2019, the Agency submitted a request to the Joint Committee on Finance requesting the authority to construct two Type 1 facilities, as well as necessary funding required to construct the facilities. There does not seem to be any more progress made as this section. This needs to be a priority or Defendants will not be able to come into substantial compliance with this Court Order.
H. Amendments to administrative code. Defendants will make all reasonable efforts to amend the administrative code to impose restrictions on any juvenile correctional facilities operated by DOC that codify the material terms of this Agreement as they relate to: (l) Room Confinement, (2) OC-Spray and Other Chemical Agents, (3) Mechanical Restraints and (4) Strip Searches.
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COMPLIANCES STATUS: PARTIAL COMPLIANCE. There are no new updates. As previously reported, DOC has identified sections of the Administrative Code that need to be modified, but significant revisions have not yet occurred. Defendants need to continue drafting interim policies for LHS/CLS while also developing final Code revisions.

IV. DOCUMENTATION, REVIEW, AND QUALITY ASSURANCE.
A. Incident review process. Defendants will establish a review process for any incident that involved the use of force; OC spray; room confinement; or mechanical restraints used for more than 45 minutes (excluding during transportation). The review committee will include all staff directly involved in the incident, their supervisors, the social worker assigned to the youth, PSU staff who are familiar with the youth, the facility director of security, the deputy superintendent, and the superintendent. Within 24 hours, all available members of the review committee shall meet to assess whether physical force, OC spray, room confinement, or mechanical restraints were used appropriately, to discuss less restrictive alternative strategies that staff could have used, and to provide an opportunity for staff training and/or redirection if needed. If not all members of the review committee are available for the meeting within 24 hours, the full review committee shall meet or confer as soon as possible and no later than one week after the event. The review committee shall also review al l uses of strip searches weekly to ensure that all such searches were conducted only upon probable cause.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. There has been an improvement in meeting the 24-hour timeline. Informal reviews occur right after an incident in majority of cases. When it has been determined lesser means could have been used, there is a corrective action plan developed but follow up needs to occur to ensure the plans are completed (QA component). A framework for other QA measures relating to the consent decree was being created but has not been completed.

B.

Quality assurance. The superintendent shall establish performance goals,

including compliance with the terms of this settlement; shall analyze data on

whether those goals are met; and shall put in place immediate corrective action to

address goa ls that are not being met.

COMPLIANCE STATUS: PARTIAL COMPLIANCE. The Monitor reviewed sample performance goals, reviewed PbS in great detail, and made suggestions for monthly performance measures and how to incorporate into policy. As discussed throughout this report, data driven decisions are critical to come into compliance with this Court Order and to improve the quality of life for youth and staff. The Monitor remains confident that the Defendants will create a competent quality assurance program especially with the addition of the new RFID system and dedicated personnel.

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CONCLUSION
The Covid-19 pandemic has changed everyone’s daily life. LHS/CLS youth and staff are no exception. Significant emergency plans were developed and put into place in March of 2020. Education, programming, population, activities, and visitations had to drastically change due to the pandemic. Many in-person activities had to change to “virtual”. Despite the drastic changes, the youth and staff have adjusted quite well. As previously reported, the overall atmosphere today has vastly improved from a year ago. The population has significantly been reduced during this reporting period. The Monitor recognizes that some of this is due to intakes being stopped due to Covid-19, but the lack of intakes does not account for most of the reduction. The Monitor encourages the Agency to look at changes put into place due to Covid-19 to see if these population reduction measures can be continued. Agency and facility leadership are to be commended for their commitment to maintaining operational activities as best possible during the Covid-19 response and remaining focused on reducing room confinement as best possible. This obviously required increased attention on programming, social distancing and cleanliness in order to reduce risk of infection within the facility while ensuring that the answer to the operational concerns was not through the use of “room confinement”.
The Monitor feels that the facility can benefit from further implementation of the Care Team model. As noted throughout the report, the facility would also benefit from utilizing a mental health expert to evaluate the mental health program and reengaging the educational expert.
The facility would also benefit from an increased focus on reducing idleness and increasing meaningful activities, particularly during weekends and evening hours. This is even more important during the changes to daily life due to Covid-19. The facility should continue to work on improving the behavior management system, continue with their progress in implementing DBT, providing improved and increased youth incentives that will help in reducing many behavioral incidents and reduce the high number of self-requested confinements and program refusals.
Continued efforts need to be made to further engage the educational expert, reduce teacher vacancies, and increase educational time and quality. Regular training in de-escalation and physical restraint techniques need to continue to occur. Policies and procedures for LHS/CLS need to continue to be developed as well as administrative code. Continued implementation of the new quality assurance program needs to remain a primary goal. Much progress has been made with respect to data and quality assurance measures. It is clear that the PbS data much more accurately reflects the unit activities using the RFID as a means to better track these outcome measures. The RFID system has been an important facility upgrade, particularly as it relates to data measures, but more importantly, to ensuring for a verifiable and easier means of tracking the youth safety and wellness checks when youth are in their rooms. The physical plant improvements need to continue as scheduled. Although there are improvements to be made, the Defendants continue to make progress- even during this difficult time.
The Monitor is happy to answer any questions or address any concerns by the Court or the parties.
Respectfully Submitted,
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