o

o

1

2

THE HONORABLE ROBERT J. BRYAN

3 Horton v. Williams
4

5

• ™* >>VH • •

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•

JI-WA-0002-0001

6

•` FILED -LODGED
AÜß ;

7

8

DEPUTY

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, JAMES BARNHART, )

JEROME PAYTON, J.B., through his ) CLASS ACTION 12 next friend, LORANE WEST, and K.M., )

13 through his mother DEBBIE MOORE, on ) No. C94-5428 RJB behalf of themselves and all others

14 similarly situated,

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE

15

Plaintiffs,

RELIEF

16 vs.

17

BOB WILLIAMS, in his official capacity

18 as Superintendent of Green Hill School;

JEAN SOLIZ, in her official capacity as 19 Secretary of the Department of Social and )

20 Health Services; SID SIDOROWICZ, in ) his official capacity as Assistant Secretary )

21 of the Department of Social and Health

Services for the Juvenile Rehabilitation 22 Administration; and the Chehalis School

23 District.

Defendants.

24

25

I. INTRODUCTION

26

1. This is a class action concerning Green Hill School (GHS), an institution for

27
delinquent youth in Chehalis, Washington. Defendants, acting under color of state law, have
28
subjected Plaintiffs, all of whom are confined at GHS, to unlawful policies, practices and

EVERGREEN LEGAL SERVICES INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY. SUITE 301 SEATTLE. WASHINGTON 98104
(206)461-0838.

o

1 conditions of confinement, thereby causing them physical, psychological, and emotional

harm. Plaintiffs seek declaratory and injunctive relief barring Defendants from subjecting

3
them, and the class they represent, to conditions at GHS which violate rights afforded by the
4
Washington and United States Constitutions and laws of the United States and Washington. 5
II. JURISDICTION 6

7

2. This Court has jurisdiction of this action under 28 U.S.C. Sections 1343(3)

8 and (4); 28 U.S.C. Section l33l(a); 28 U.S.C. Sections 2201 and 2202; 20 U.S.C. Section

9 1401 et seq. and regulations promulgated thereunder; and Federal Rules of Civil Procedure

57 and 65. This Court has jurisdiction over Plaintiffs' pendant State law claims under 28
11
U.S.C. §1367. Plaintiffs' claims for relief are authorized by 42 U.S.C. Section 1983 which 12
provides for redress of deprivations under color of state law for rights guaranteed by the

1 4 Constitution and laws of the United States.

15

III. PLAINTIFFS

16

3. Plaintiffs J.B. and K.M. have not yet reached their eighteenth birthdays. J.B.

brings this action by and through his next friend, Lorane West. Lorane West is a citizen of
18 the United States, over eighteen, and bilingual. Plaintiff K.M. brings this action by and
19 through his mother, Debbie Moore. Plaintiffs James Horton, James Barnhart, and Jerome
20

2 1 Payton are over eighteen years old.

22

4. All Plaintiffs and their next friends are residents of the State of Washington.

23 The Plaintiffs are all currently confined at GHS and are subject to the practices of

Defendants and conditions of confinement complained of herein.
25 5. Plaintiffs James Horton and K.M. have been sprayed with aerosol oleoresin
26
capsicum (OC) by staff at GHS. They have been placed in shackles and handcuffs, confined 27
28

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 2

(206) 464-0838

¡. )

1 in disciplinary confinement and had their sentences lengthened without due process.

2
6. Plaintiffs James Barnhart and Jerome Payton have been denied educational, 3
health, and rehabilitative services at GHS. Jerome Payton has been denied special education
4
services for which he is eligible. 5
7. Plaintiff J.B. does not speak or understand English well enough to comprehend
6
7 the rules, policies, and services available at GHS and he is not provided with Spanish-

8 speaking interpreters.

9

IV. DEFENDANTS

8. Defendant Bob Williams is the Superintendent at GHS. In that capacity he is
11 responsible for the day-to-day administration and management of GHS. He is responsible for
12 formulating, implementing, and approving policies and decisions affecting youth confined at
13
14 GHS, and for training, directing, and supervising staff at GHS responsible for the care and

15 custody of Plaintiffs. He is sued in his official capacity.

16

9. Defendant Jean Soliz is the Secretary of the Department of Social and Health

Services. In this capacity she is responsible for developing effective standards for the
18 operation of GHS and for insuring that GHS provides the treatment, supervision, and custody
19 of juvenile offenders as required by RCW 13.40.010. She is sued in her official capacity.

21

10. Defendant Sid Sidorowicz is the Assistant Secretary of the Department of

22 Social and Health Services for the Juvenile Rehabilitation Administration. In that capacity he

23 is responsible for the general supervision and management of juvenile institutions in

Washington, including GHS, and for implementing applicable regulations, rules, and policies
25
affecting youths confined at GHS. He is sued in his official capacity.1
26

27 1 Defendants Williams, Soliz and Sidorowicz are referred to as the GHS
28 Defendants herein.

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 3

(206) 464-0838

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1

11. Defendant Chehalis School District No. 302 contracts with the Department of

2 Social and Health Services to provide educational services to youth detained at GHS.

V. CLASS ACTION
4 12. Plaintiffs bring this action on their own behalf and on behalf of all similarly
5
situated youth pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 6

7 The class Plaintiffs seek to represent consists of all juveniles who are now or who in the

8 future will be confined at GHS.

9

13. The members of the class are so numerous that joinder of all members is

impractical. On July 26, 1994, there were 193 youths confined at GHS and additional
11
youths are brought regularly into the institution. There are questions of law and fact 12
common to the members of the plaintiff class regarding practices of the Defendants, and the 13
14 claims of the named Plaintiffs are typical of the claims of the members of the plaintiff class.
15 The named Plaintiffs and Plaintiffs' counsel will fairly and adequately protect the interests of

16 the members of the class.

14. By their policies and practices, Defendants have acted and continue to act on
18 grounds and in a manner generally applicable to the class, thereby making appropriate final
19 injunctive relief or corresponding declaratory relief with respect to the class as a whole.
20

21

15. The injuries suffered by the named Plaintiffs and the members of the plaintiff

22 class as a result of the policies and practices of Defendants are capable of repetition, yet may

23 evade review, thereby making class relief appropriate.

24
25 A.
26
27
28

VI. FACTUAL ALLEGATIONS Physical Plant 16. Green Hill School is located on a 27 acre site in the city of Chehalis,

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 4

s¦f¿
(206) 464-0838

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Washington. The complex is situated on a flood plain and consists of 26 buildings, including

2 residential cottages, a school, a recreation building, administrative offices, maintenance
3|
shops, and a steam plant. It has a rated-bed capacity of 80.
4
17. GHS opened in 1891 as the Washington State Reform School. Many of the
5
buildings at GHS are in a state of extreme disrepair. The GHS Defendants have failed to
6
7 properly maintain and repair these buildings, thereby subjecting Plaintiffs to punitive
8 conditions which jeopardize their health and safety.

9

18. The GHS Defendants have failed to maintain the residential cottages at GHS in

10 a safe and sanitary condition. These cottages, which were built between 1957 and 1959, are
11
dilapidated, unclean, and unsanitary. They are inadequately heated and cooled, and 12
improperly ventilated. These cottages do not comply with current building code standards
1 O
14 and requirements.

15

19. The residential cottages at GHS are overcrowded. Defendants' failure to

16 maintain the population at GHS within its designed capacity has burdened recreational,

educational, health, and food preparation and service facilities beyond their capacities,
18 resulting in punitive and unsafe conditions of confinement.
19 20. The GHS Defendants subject Plaintiffs to punitive and dangerous conditions in
20
other buildings at GHS. Interior walls of the administration and hospital buildings contain

numerous cracks, and the exterior walls of the kitchen and dining hall are inadequately 23 secured to the roof and floor diaphragms, compromising their lateral stability as shear walls.

Such structural deficiencies make these buildings unsafe and subject to severe damage or

collapse during seismic activity. The Commissary, built in 1908, as well as the Laundry, 26
Carpenter Shop and Auto Shop, all built in 1932, are also unsafe and subject to severe 2
2

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 5

(206) 464-0838

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1 damage or collapse during seismic activity.
2
21. The GHS Defendants have failed to address and correct problems caused by 3
water seepage and drainage throughout GHS, thereby subjecting Plaintiffs to punitive
4
conditions and increased risks of injury and disease. For example, there is severe water
5
leakage in the Intensive Treatment Unit during rain storms. The building is settling and has
6
7 numerous shrinkage cracks. The gym often has standing water on the floor and in the crawl
8 space. The kitchen and dining hall have water problems caused by leaks and condensation.

9

22. The GHS Defendants have failed to maintain kitchen and food service facilities

at GHS in a condition which complies with applicable health and safety regulations, rules,

11
and standards. As a result, plaintiff have been, and will continue to be, subjected to punitive
12
conditions, including increased risks of food-borne illnesses.
13 I

14

23. The GHS Defendants have failed to protect the safety of Plaintiffs in the event

15 of fire or other disaster. No buildings at GHS, including the residential cottages, are

16 equipped with fire sprinkler systems. These Defendants have failed to prepare and

implement adequate emergency preparedness and evacuation plans, have failed to properly
18 train staff concerning their responsibilities in the event of fire or other disaster, and have
19
failed to conduct sufficient fire or disaster drills for residents and staff.
20
21 B. Disciplinary Practices

22

a. Use of the Chemical Agent Oleoresin Capsicum

23

24. The GHS Defendants authorize staff at GHS to spray Plaintiffs with aerosol

oleoresin capsicum (OC). This chemical agent causes severe inflammation of mucous
25
membranes and upper respiratory systems, severe irritation and spasmodic contraction of the
26
eyes, and an acute burning sensation and redness of the skin. It causes loss of upper body
27
28

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 6

(206) 464-0838

motor control and temporary paralysis of the larynx, and induces nausea, gasping, retching,

o
1 and uncontrollable coughing. 3
25. Staff at GHS routinely spray OC in the faces of residents as punishment for 4
violations of institutional rules. For example, residents are sprayed for such infractions as 5|
swearing at staff, failing to follow staff directives, and creating a disturbance, even though 6
7 the residents, at the time they are sprayed, do not pose a danger to themselves or others and

8 less restrictive means of addressing the behavior are available.

9

26. Staff at GHS have sprayed residents .who were restrained in handcuffs and leg

shackles, who were locked in their cells, who were sitting passively, and who otherwise
11 I
posed no risk to their own safety or to the safety of other residents or staff.
12
27. Although the GHS Defendants maintain supplies of 5% OC and 10% OC at

14 GHS, they have no written guidelines or policies governing when either concentration is to 15 be used. As a result, staff arbitrarily and capriciously select the concentration of OC with

16 which they spray residents.

17

28. The GHS Defendants have failed to adequately train staff at GHS in the use of

18 less restrictive alternatives to OC to diffuse crises and address disruptive behavior. Instead,
19 their policies and procedures permit, and even encourage, staff to administer OC as
20

2 1 punishment for residents who are disruptive or unruly.

29. The GHS Defendants and their agents regularly authorize the use of OC by

23 telephone with no on-site evaluation to determine if its use is warranted.

30. The GHS Defendants place some residents on a "spray program" which
25 permits staff to spray these residents with OC at staff discretion without further
26
authorization.
27
28

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 7

(206) 464-0838

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31. Staff threaten residents with OC by brandishing canisters on which they have

written residents' names.
3 32. The GHS Defendants authorize staff at GHS to spray residents with OC
4 without consulting medical or psychological staff or other mental health professionals.
5
33. The GHS Defendants have failed to provide psychological counseling or other
6
7 mental health services to residents sprayed with OC.

8

34. As a direct result of the GHS Defendants' policies and practices governing the

9 use of OC, Plaintiffs have suffered, and will continue to suffer, severe physical,
10 psychological and emotional injury.
11
b. Use of Handcuffs and Shackles
12
35. The GHS Defendants place residents of GHS in metal, police-style handcuffs

14 and leg shackles for violations of institutional rules.

15

36. Any member of the staff at GHS is authorized to summon security staff to

16 handcuff and shackle residents for transportation to a disciplinary cottage.

37. Residents who refuse to be handcuffed and shackled, although otherwise in
18 control, are forcibly restrained and shackled.
19 38. Security staff are not adequately trained in the use of handcuffs and shackles
20
21 and apply them in a manner which causes unnecessary pain and injury.

22

c. Confinement in Disciplinary Cottages

23

39. The GHS Defendants punish residents who have emotional and behavioral

24 problems by confining them in disciplinary cottages for indeterminate periods of time.
25 40. The GHS Defendants fail to provide residents in the disciplinary cottages with
26
educational, recreational, and other treatment services that are appropriate to their needs.
27

28

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 8

(206) 464-0838

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41. The GHS Defendants punish residents for rule violations by confining them in

2 disciplinary cottages for indeterminate periods of time without affording them with adequate
3 process.
4 42. The GHS Defendants punish residents of the disciplinary cottages by
5
increasing their lengths of confinement in GHS. 6

7

43. The GHS Defendants fail to release residents from the disciplinary cottages

solely because GHS is overcrowded and beds in other residential cottages are unavailable.

C. Education, Treatment, and Rehabilitative Services

10

a. Education

11
44. Defendants have failed to properly evaluate residents of GHS for eligibility for
12
special education and related services.
13

14

45. Defendants have failed to develop and implement appropriate individualized

15 education plans for residents who are eligible for special education and related services.

16

46. Defendants have failed to provide an appropriate process by which residents of

GHS, and their parents or surrogates, may participate in the development of individual
18 education plans.
19 47. Defendants fail to provide educational services to residents of GHS which are
20
21 equivalent to the educational services available to youths who are not confined at GHS.

2;

48. Defendants exclude youth from educational services without adequate

justification and for violations of institutional rules without affording them any process.

Defendants fail to provide these residents with alternative educational programs.

b. Treatment and Other Rehabilitative Services 26
49. Defendants have failed to adequately evaluate Plaintiffs' educational, 2¯
2

FIRST AMENDED COMPLAINT FOR DECLARATORY

& iMiTT\Tr`Tníc n r r i r e

n

r>

INJUNCTIVE RELIEF - Page 9

,NsmuV7o‰ ŒGAL SERVSIS PROJECT
101 YESSLERR WAY.. SSUUITE 301 E. WASHINGTO
SEATTLE(.20W6)AS4H64IN-0G8T38ON

{ ì

1 vocational, psychological, health, and other treatment needs.

2

50. Defendants have failed to develop and implement individual treatment plans for

3 residents of GHS which identify their treatment needs and direct appropriate educational and
4 treatment services.
5

51. Defendants fail to provide adequate treatment for residents of GHS.

7 .

52. Defendants have failed to provide appropriate mental health, counseling, and

8 social services for residents of GHS.

9

53. Defendants have failed to provide transition services for residents at GHS who

are nearing release. As a result, residents are often released from the most secure and
11
restrictive environment at GHS directly to non-secure placements with no intervening
12
services or assistance. 13

14

54. Although some residents at GHS speak only Spanish, Defendants have failed to

15 provide sufficient Spanish-speaking staff who can communicate with these residents. As a

16 result, Defendants have failed to meet the educational, treatment, and security needs of these
1 7 Spanish-speaking residents. 18
55. The GHS Defendants have failed to provide rehabilitative services and 19
treatment to Plaintiffs in the least restrictive environment appropriate to their needs. 20
56. The GHS Defendants have failed to hire, train, and supervise a sufficient

22 number of properly trained staff to protect residents at GHS from assault and injury.

23

VII. LEGAL CLAIMS

2 4 First Claim
25 The GHS Defendants' use of aerosol OC, handcuffs, shackles, and disciplinary
26 cottages as described herein violates rights guaranteed to Plaintiffs by the Fourteenth
27 28

FIRST AMENDED COMPLAINT FOR DECLARATORY
& INJUNCTIVE RELIEF - Page 10

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
«>i YESLER WAY. SU.TE so,
SEATTLE. WASHINGTON 96104 (206) 464-0838

o ¯

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Amendment to the United States Constitution and 42 U.S.C. Section 1983.
o
Second Claim 3
The GHS Defendants' failure to provide adequate procedural protections prior to the
4
infliction of harsh and cruel punishments, their failure to protect Plaintiffs from harm while 5
in state custody, and their failure to provide adequate and appropriate health care, 6 7 educational programs, rehabilitative treatment, classification, evaluation, supervision and
placement as described herein, violate rights guaranteed Plaintiffs by the Due Process Clause
of the Fourteenth Amendment to the United States Constitution, RCW 13.40 et seq., and 42
1 0 U.S.C. Section 1983.
11
Third Claim 12
Defendants' failure to provide adequate educational services for residents of GHS as 13 14 described herein violate rights guaranteed Plaintiffs by Article 9, Section 1, of the
15 Washington State Constitution, the Due Process and Equal Protection Clauses of the
16 Fourteenth Amendment of the United States Constitution, RCW 28A. 190.010 - .050, and 42
17 U.S.C. Section 1983. 18
Fourth Claim 19
Defendants' failure to properly evaluate Plaintiffs for handicapping conditions and
20
21 provide special education and related services as described herein, violates Plaintiffs' rights
22 guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. Section 1401 et
23 seq., RCW 28A. 155.010 - .100, and Article 9, Section 1 of the Washington State
Constitution.
VIII. NO ADEQUATE REMEDY AT LAW 26
As a proximate result of the Defendants' policies, practices, acts, and omissions
27
28

FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 11

(2O«) 464-0838

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complained of herein, Plaintiffs have suffered, do suffer, and will continue to suffer

2 immediate and irreparable injury. Plaintiffs have no plain, adequate, or complete remedy at
3 law to redress the wrongs described herein, and they will continue to be irreparably injured
4
by the policies, practices, acts, and omissions of Defendants unless this Court grants the 5
injunctive relief which Plaintiffs seek.
6

7

IX. PRAYER FOR RELIEF

8

WHEREFORE Plaintiffs, on their own behalf and on behalf of all others similarly

situated, pray that this Court:
A. Assume jurisdiction of this action;
11
B. Issue a judgment, pursuant to 28 U.S.C. Sections 2201 and 2202 and Rule 57
12
of the Federal Rules of Civil Procedure, declaring that the Defendants have violated rights
1 O
14 guaranteed Plaintiffs by the Fourteenth Amendment to the United States Constitution, Article
15 9, Section 1 of the Washington State Constitution, RCW 13.40, RCW 28A, and the
16 Individuals with Disabilities Education Act, 20 U.S.C. Section 1401 et seq., by subjecting

Plaintiffs to the conditions of confinement described herein;
18 C. Issue preliminary and permanent injunctions enjoining the Defendants, their
19 agents, assigns, employees, and successors in office, from engaging in the unconstitutional
20
21 and unlawful acts described herein;

22

D. Retain jurisdiction over the Defendants until such time as the Court is satisfied

23 that the unlawful policies, practices, acts, and omissions complained of herein no longer exist

24 and will not recur;
25

26

27

28
FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 12

.N^fí^ffîL¿f°œ^lls P¿SJEECT
(206) 464-0838

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1

E. Award Plaintiffs the costs of this proceeding, attorneys fees pursuant to 42*

2 U.S.C. Section 1988, and such other and further relief as this Court deems just and proper. 3

4

DATED:

7 ii.

5

6

Respectfully submitted,

7 EVERGREEN LEGAL SERVICES

8

Institutional Legal Services Project

101 Yesler Way, Suite 301

9

Seattle, WA 98104

10

(206)464-0838

11
PATRICIA J/ÁRTHUR, WSBA #13769

12

ROBERT A½TALKER, JR., WSBA #13650

13

14
NATIONAL CENTER FOR YOUTH LAW

15

114 Sansome Street, Suite 900

San Francisco, CA 94117

16!

(415) 543-3307

17

18

DAVID LAMBERT*

XT

19

20
* Mr. Lambert's application to participate in this case was filed on August 17, 1994.
21

22

23

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26

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FIRST AMENDED COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF - Page 13

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY. SUITE 301 SEATTLE. WASHINGTON 98104 (206) 464-0838

..—!

 
 Horton v. Williams

1

JI-WA-0002-0Õ02 \ \

2

FILED

LODGED

RECEIVED

3 AUG 1 7 1994
4

5 DEPUTV

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

8

9
JAMES HORTON, etal..
10
Plaintiff,
11
v.
12
BOB WILLIAMS, etal..
13

CASENO.C94-5428RJB
MINUTE ORDER REGARDING DISCOVERY AND DEPOSITIONS

14

Defendants.

15

It is ORDERED that:

16

1. DISCOVERY. All discovery matters should be resolved by agreement if

17 possible. If a ruling is needed on any discovery question, and counsel wish to avoid the time

18 and expense of a written motion, they may obtain an expedited ruling through a telephone

19 conference call to the court at (206) 383-7919.

20

2. DEPOSITIONS. Depositions will be conducted in compliance with the following

21 rules:

22

(a) Examination. If there are multiple parties, each side should ordinarily

23 designate one attorney to conduct the main examination of the deponent, and any questioning

24 by other counsel on that side should be limited to matters not previously covered.

25

(b) Objections. The only objections that should be raised at the deposition

26 are those involving a privilege against disclosure, or some matter that may be remedied if

27

28 ORDER REGARDING DISCOVERY AND DEPOSITIONS - 1 [Form: AA I6/93]J

1 presented at the time (such as the form of the question or the responsiveness of the answer), or

2 that the question seeks information beyond the scope of discovery. Objections on other grounds

3 are unnecessary and should be avoided. All objections should be concise and must not suggest

4 answers to, or otherwise coach, the deponent. Argumentative interruptions will not be

5 permitted.

6

(c) Directions Not to Answer. Directions to the deponent not to answer are

7 improper. Advice not to answer may be appropriate on the ground of privilege or to enable a

8 party or deponent to present a motion to the court or special master for termination of the

9 deposition on the ground that it is being conducted in bad faith or in such a manner as

1 0 unreasonably to annoy, embarrass or oppress the party or the deponent, or for appropriate

1 1 limitations upon the scope of the deposition (e.g., on the ground that the line or inquiry is not

1 2 relevant nor reasonably calculated to lead to the discovery of admissible evidence). When a

1 3 privilege is claimed, the witness should nevertheless answer questions relevant to the existence,

1 4 extent or waiver of the privilege, such as the date of the communication, who made the

1 5 statement in question, to whom and in whose presence the statement was made, other persons

1 6 to whom the contents of the statement have been disclosed, and the general subject matter of the

17 statement.

18

(d) Responsiveness. Witnesses will be expected to answer all questions

1 9 directly and without evasion, to the extent of their testimonial knowledge, unless they choose

2 0 to follow the advice of counsel not to answer.

21

(e) Private Consultation. Private conferences between deponents and their

2 2 attorneys during the actual taking of the deposition are improper, except for the purpose of

2 3 determining whether a privilege should be asserted. Unless prohibited by the court for good

2 4 cause shown, such conferences may, however, be held during normal recesses and adjournments.

25

26

27 28

ORDER REGARDING DISCOVERY AND DEPOSITIONS · 2 [Form: AA (8/93])

1

(f) Conduct of Examining Counsel. Examining counsel will refrain from

2 asking questions he or she knows to be beyond the legitimate scope of discovery, and from

3 undue repetition.

4

(g) Courtroom Standard. All counsel and parties should conduct themselves

5 in depositions with the same courtesy and respect for the rules that are required in the courtroom

6 during trial.

7

3. RESPONSIBILITY OF PLAINTIFF'S COUNSEL. This order is issued at the

8 outset of the case, and a copy is delivered by the clerk to counsel for plaintiff. Plaintiffs

9 counsel (or plaintiff, if pro sé) is directed to deliver a copy of this order to each other party

1 0 within ten (10) days after receiving notice of that party's appearance.

1 1

DATED this / *] day of

¿X¿¾_

, 19 V J .

12

1 3

The foregoing Minute Order entered by {_ ¡Jf-^> (/¿&fri*`—TPeputy Clerk, BY

1 4 THE DIRECTION OF THE HONORABLE ROBERT J. BRYAN, UNITED STATES

1 5 DISTRICT JUDGE.

16

17

18

19

20

21

22

23

24

25

26

27

ORDER REGARDING DISCOVERY AND DEPOSITIONS - 3 [Form: AA (6/93|J

`?

1

2

3
j
4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT TACOMA

8
JAMES HORTON, etal..
9
Plaintiff,
10
v.
11
BOB WILLIAMS,
12

CASE NO.C94-5428RJB
MINUTE ORDER REQUIRING JOINT STATUS REPORT

13

Defendants.

14

It is ORDERED that:

15

All parties are directed to confer and provide the Court with a Joint Status Report within

16 seventy-five (75) days of the date of entry of this order. The Joint Status Report shall contain

17 the following information:

18

1. The nature of the case;

19

2. The status of the case including hearings, motions, and discovery;

20

3. Whether the case or portions of it should be referred to a Special Master;

21

4. Whether the case is appropriate for mediation under Local Rule 39.1;

22

5. Whether the parties agree that a full-time magistrate judge may conduct all

23 proceedings under Local Rule MJR 13;

24

6. The date the case will be ready for trial, considering Local Rule 16 deadlines;

25

7. Whether the trial is jury or non-jury;

26

8. The number of trial days required;

27

9. The names of trial counsel;

28

1

10. The dates on which trial counsel are unavailable and any other complications to be

2 considered in setting a trial date;

3

11. Suggestions for shortening trial.

4

It is the responsibility of plaintiff's counsel to serve a copy of this order upon all parties

5 who may appear after this Order is filed within ten (10) days of receipt of service of an

6 appearance. It is also the responsibility of plaintiff's counsel to initiate the communication

7 necessary to prepare this Joint Status Report.

8

If counsel are unable to agree upon the content of any part of the status report, they may

9 respond in separate paragraphs. Separate status reports are not to be filed.

10

If on the due date of the Joint Status Report, all defendant(s) or respondent(s) have not

1 1 been served, counsel for the plaintiff shall advise the Court in an independent status report when

1 2 service will be effected and why service has not been previously accomplished.

13

If on the due date the defendant(s) or respondents(s) have been served and no answer or

1 4 appearance has been filed, counsel for the plaintiff shall file an independent status report setting

1 5 forth the above information in items 1 through 10 to the extent possible. This report shall also

1 6 include the current status of the non-appearing parties.

1 7

Failure to respond to this Order pursuant to its terms may result in the impositions of

1 8 sanctions by the Court.

1 9

The Clerk of this Court is instructed to send uncertified copies of this Order to all

2 0 counsel of record.

21

DATED this ¡f

day of

^ ¿V¿¿/7 . ^ ^

, 19 ' 7 .

22

The Foregoing Minute Order entered by C /JJ-¿L¿L/¦H>-\ _ . Deputy Clerk,

2 3 BY THE DIRECTION OF THE HONORABLE ROBERT J. BRYAN, UNITED STATES

2 4 DISTRICT JUDGE.
25
26 27 28 Order Requiring Joint Status Report-2

 
 • • • Horton v. Williams
JI-WA-0002-0003 THE HONORABLE ROBERT J. BRYAN

r
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CO
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to
36
7

\\ FILED LODGED

. ENTERED .RECEIVED

\ ?

8

AT SEATTLE

r> Phfc VJ S DISTRICT COURT

9

UNITED STATES DISTWCT*fi&¾I¾¥^* ^ ~"¯^ " WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, JAMES BARNHART, ) JEROME PAYTON, J.B., through his )

12 next friend, LORANE WEST, and K.M., )

through his mother DEBBIE MOORE, on ) No. C94-5428 RJB 13 behalf of themselves and all others

14 similarly situated,

MOTION FOR CLASS CERTIFICATION

15

Plaintiffs,

16

vs.

17 BOB WILLIAMS, in his official capacity

18 as Superintendent of Green Hill School;

JEAN SOLIZ, in her official capacity as

19 Secretary of the Department of Social and )

Health Services; SID SIDOROWICZ, in ) 20 his official capacity as Assistant Secretary )

21 of the Department of Social and Health ) Services for the Juvenile Rehabilitation )

22 Administration; and the Chehalis School )

District.

)

23

)

24

Defendants.

)

Note on Motion Calendar: Friday, September 2, 1994

25 The named plaintiffs, by and through their counsel, hereby move this court for an
26

order certifying this case as a class action pursuant to Fed. R. Civ. P. 23.

\\

27

28

The proposed class is as follows: All juveniles currently, or in the future, confined at

Green Hill School.

EVERGREEN LEGAL SERVICES INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

1

This motion is supported by the accompanying Memorandum In Support of Motion

2 For Class Certification.
3 DATED this Y) day of
4

(JjMll$C

, 1994.

5

6

PATRICIA J/ARTHUR, WSBA #13769 ROBERT A.(STALKER, JR., WSBA # 13650

7

Attorneys for Plaintiffs

8

EVERGREEN LEGAL SERVICES

Institutional Legal Services Project

9

101 Yesler Way, Suite 301

10

Seattle, WA 98104 (206) 464-0838

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MOTION FOR CLASS CERTIFICATION - Page 2

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY. SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

 
 Horton v. Williams

1

2

cr>

3

CD

CO

4

5

I WA-0002-0004 THE HONORABLE ROBERT J. BRYAN

6

- ENTERED

-RECEIVED 7

AUG 1 7 1994

8

UNITED STATES DISTRICT COURT

9

WESTERN

DISTRICT

OF

WASHINGTONLERK

AT
US

SEATTLE
DÏSYR,CT

COURT

A. T TA. COMA.

WESTERN BY

D[¯I>SI¾TTRQICIÍ`TT

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WlAA.·S`VHrIyN"GLTON

DEPUTY

10

JAMES HORTON, JAMES BARHART,

11 JEROME PAYTON, J.B., through his

No. C94-5428 RJB

next friend, LORANE WEST, and K.M., 12 through his mother DEBBIE MOORE, on

MEMORANDUM IN SUPPORT OF

13 behalf of themselves and all others similarly situated,

MOTION FOR CLASS CERTIFICATION

14 Plaintiffs,
15

16

vs.

17 BOB WILLIAMS, in his official capacity as Superintendent of Green Hill School;
18 JEAN SOLIZ, in her official capacity as
Secretary of the Department of Social and 19 Health Services; SID SIDOROWICZ, in
20 his official capacity as Assistant Secretary of the Department of Social and Health
21 Services for the Juvenile Rehabilitation Administration; and the Chehalis School
22 District,
Defendants. 23

24

I. INTRODUCTION

25

Plaintiffs and the class they seek to represent are youth incarcerated at Green Hill

26 School (GHS) in Chehalis, Washington. They have brought this action to redress the

27 violation of their rights and to ask this Court to enjoin unconstitutional practices at GHS.

28

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIONPage 1

EVERGREEN LEGAL SERVICES

INSTITUTIONAL LEGAL SERVICES PROJECT,

101 YESLER WAY, SUITE 301

í¡\

SEATTLE, WASHINGTON 98104 v \

(206) 464-0838

\

This case was filed as a class action. By this motion, plaintiffs ask this Court to

2 certify the class.
3

II. PROPOSED CLASS

4

5

Plaintiffs seek certification of one class: All juveniles currently, or in the future,

6 incarcerated at GHS.

7

III. STATEMENT OF FACTS

o
This lawsuit is brought by juveniles confined at GHS whose statutory and 9
constitutional rights have been and, without relief from this court, will continue to be denied 10
by defendants.2 Plaintiffs have been denied educational, vocational and rehabilitational
11
services at GHS, subjected to punishment without adequate due process and forced to live in
12

13 conditions that are unsafe and unsanitary.

14

As shown below, there are questions of fact and law common to the class of plaintiffs,

15 and the other prerequisites of class certification have been met.
anu me uuici Jj1c1c4u1sn.es ui (~iasa w

16

IV. ARGUMENT

17
A. 18

GENERAL PRINCIPLES APPLICABLE TO CLASS CERTIFICATION.

In order to be certified, a class action must meet the following four prerequisites of 19

20 Fed. R. Civ. P. 23(a):

21

1. The class is so numerous that joinder of all members is impracticable;

22

23

V The court must take plaintiffs' allegations as true, Blackie v. Barrack, 524 F.2d 891,

901 (9th Cir. 1975), cert, denied, 429 U.S. 816 (1976), and may not consider the merits of

plaintiffs' action when determining class certification. Eisen v. Carlisle & Jacquelin, 417

25 U.S. 156 (1974). Plaintiffs' factual allegations are summarized in this section.

26

2/ The defendants are Bob Williams, the Superintendent at GHS, Jean Soliz, the

Secretary of the Department of Social and Health Services, Sid Sidorowicz, Assistant

27 Secretary of the Department of Social and Health Services for the Juvenile Rehabilitation

Administration, and the Chehalis School District. 28

MEMORANDUM IN SUPPORT OF
M O T T D N F O R TT A<sS r F R T T F T C A T T O N -
IVlUllUiN r U K l^LAOJ L-ßI\.J.iri\^/\l·lWIN

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1

2. There are questions of fact or law common to the class;

2

3. The claims of the representative parties are typical of the claims of the class;

3

and

4

4. The representative parties will fairly and adequately protect the interests of the

5

class.

6 Additionally, the class must meet the requirements of one of the three subsections of Fed. R.

7 Civ. P. 23(b). Subsection (b)(2), pertinent here, requires that:

8

The party opposing the class has acted or refused to act on grounds generally

9

applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole.

10

See generally. H. Newberg, Newberg on Class Actions §§ 3.01-3.29 (2d ed. 1985); 334
11

12 (1972).

13

In general, Fed. R. Civ. P. 23 should be liberally construed to favor class

14 maintenance. Neelv v. United States, 546 F.2d 1059, 1071 (3rd Cir. 1976) ("'Rule 23, like

15 other procedural rules, was written to further, not defeat, the ends of justice.'") (quoting
16 Surowitz v. Hilton Hotels Corp.. 383 U.S. 363, 373, 86 S.Ct. 845, 851 (1966)). Class
17
actions are particularly appropriate where, as here, injunctive or declaratory relief is sought.
18
Class actions avoid problems of mootness, inconsistent results from multiple proceedings,
19
20 uncertainty as to scope of judgment, implementation of judgment, and ineffective
21 representation in individual claims.

22

Furthermore, "[c]lass action status is particularly suitable in civil rights actions." 3B

23 J. Moore, Federal Practice. §23.02 [2. - 6], at 23-43 (2d ed. 1987). "Rule 23(b)(2) was
24
enacted in part for the specific purpose of assuring that the class action device would be
25
available as a means of enforcing the civil rights statutes." Id. at 23-44. See also "Notes of
26
27 Advisory Committee on Rules," 1966 Amendment, Rule 23(b)(2), 28 U.S.C.A., pp. 298-

28
MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIONPage 3

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

1 299. Therefore, Fed. R. Civ. P. 23(b)(2) is particularly suited to civil rights actions
2 challenging institutional conditions and practices, for the rule is "an effective weapon for an
3
across-the-board attack against systematic abuse." Jones v. Diamond. 519 F.2d 1090, 1100
4
5 (5th Cir. 1975).

6

When determining whether to certify a class the court should employ a presumption

7

in favor of and not against the maintenance of the class action, for it is always

subject to modification should later developments during the course of the trial

8

so require.

9 Brown v. Brown, 6 Wn. App. 249, 257, 492 P.2d 581 (1971) (citing Esplin v. Hirschi. 402
10
F.2d 94, 99 (10th Cir. 1968)). As demonstrated below, the plaintiff class proposed in this
11
12 action meets the requirements of Fed. R. Civ. P. 23(a).

13 B. THE REQUIREMENTS OF RULE 23(a) ARE MET HERE.

14

1. Numerositv - 23(a~)(l).

15

Because "numerosity" is tied to the "impracticability" of joinder under specific

16
circumstances, there is no set number that satisfies this requirement. "Impracticability" does
17
not mean "impossibility;" it is sufficient to show that it is very difficult or inconvenient to
18
join all members of the class. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909,
19

20 913-914 (9th Cir. 1964).

21

"[W]hile there are exceptions, numbers in excess of forty, particularly those

22 exceeding one hundred or one thousand have sustained the requirement." 3B J. Moore,
23
Federal Practice. § 23.O5[l] at 23-144-145 (2d Ed. 1987) (footnotes omitted). See, e.g.,
24
Langlev v. Coughlin, 715 F.Supp. 522, 553 (S.D.N.Y. 1989) (Subclass between thirty and
25
fifty inmates and another of one hundred inmates "meet numerosity requirements."); Gay v.
26
27 Waiters & Dairy Lunchmen's Union. 549 F.2d 1330 (9th Cir. 1977) (appellate court

28
MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATLONPage 4

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104 (206) 464-0838

1 reversed as an abuse of discretion trial court's denial of certification of class numbered 184
2
in an employment discrimination lawsuit); Weinberger v. Thornton, 114 F.R.D. 599, 602
3
(S.D. Cal. 1986) (numerosity requirement satisfied where general knowledge and common
4
sense indicate that, even if the exact number is unknown, class is large). Additionally, Fed.
5
6 R. Civ. P. 23(a)(l) should be read liberally in the context of civil rights suits. See Ahrens
7 v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978); Jones v. Diamond. 519 F.2d at 1099-1100.

8

There are approximately 200 youth confined at GHS. The actual composition of the

9
class is in constant flux as new residents are admitted to GHS as other current residents are
10 released. In addition, juveniles who are still under the jurisdiction of the Juvenile
11
Rehabilitation Administration but do not currently reside at GHS— for example, those who
12

13 are at a Group Home or another state juvenile facility — may be returned or transferred to

14 GHS at any time before the expiration of their sentence. This is a substantial number of

15 juveniles, joinder of all of whom is impracticable. See, Mead v. Parker, 464 F.2d 1108 (9th

16 Cir. 1972) and Walters v. Thompson. 615 F.Supp. 330 (N.D. 111. 1985).

17
2. Common Questions of Law or Fact - 23(a^)(2~).
18

This express provision seems unnecessary, since in addition to the

19

prerequisites of subdivision (a), an action can be maintained as a class action

20

under Rule 23 only if it also satisfies the requirements of at least one of the

three types of class actions provided for by subdivision (b) and a finding that

21

common questions exist is implicitly required by a finding under either

subdivisions (b)(l), (b)(2), or (b)(3).
22

23 3B J. Moore, Federal Practice, § 23.06-1 at 23-157 (2d Ed. 1987) (footnotes omitted).

24 Thus, the current trend of decisions appears to be that the commonality requirement is

25 subsumed within the requirement of Fed. R. Civ. P. 23(b)(2). See Harris v. Pan American

26 World Airways. Inc.. 74 F.R.D. 24, 25 (N.D. Cal. 1977); Wofford v. Safeway Stores. Inc..

27
88 F.R.D. 460 (N.E. Cal. 1978).
28
MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIONPage 5

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY. SUITE 301 SEATTLE. WASHINGTON 98104
(206) 464-0838

1

In the instant case, plaintiffs have pleaded causes of action for deprivations of

2 constitutional rights common to all members of the class.3 These deprivations of
3 constitutional rights are carried on by the defendants and affect all members of the class.
4
Additionally, the causes of action in this lawsuit have one factual base — namely, defendants' 5

6 policies and practices at GHS. Finally, as explained in section C, infra, a class action is

7 appropriate because the type of remedial relief sought from this court is injunctive and

8 declaratory. See, Mead v. Parker. 464 F.2d 1108 (9th Cir. 1972) and Walters v. Thompson.

9 615 F.Supp. 330 (N.D. 111. 1985).
10
3. Typicality - Rule 23(a)(3).
11

12

[T]here appears to be little or no need for this clause, since all meanings

attributable to it duplicate requirements prescribed in other provisions in Rule

13

23.

14 3B J. Moore, Federal Practice. § 23.06-2 at 23-168. See also Piva v. Xerox. 70 F.R.D. 378

15 (N.D. Cal. 1976). To satisfy this requirement the plaintiffs need only show that the class
16
members' claims are based on the same legal or remedial theories; their individual factual
17
patterns may contain some variations. Penn v. San Juan Hospital. Inc.. 528 F.2d 1181,
18
1188-89 (10th Cir. 1975); Wehner v. SvntexCorp.. 117 F.R.D. 641 (N.D. Cal. 1987). See
19
20 also General Tel. Co. v. Falcon. 457 U.S. 147, 157 n.13, 102 S. Ct. 2364, 72 L. Ed. 2d

21 740 (1981).

22

23
3/ Plaintiffs' claims are: (1) Defendants fail to provide adequate educational, treatment 24 and rehabilitative services to youth at GHS in violation of the Fourteenth Amendment of the
United States Constitution, the Individuals with Disabilities Education Act, and state law; (2) 25 Defendants punish juveniles at GHS by spraying them with aerosol oleoresin capsicum,
26 shackling them, and placing them in disciplinary cottages without affording them sufficient due process in violation of the Fourteenth Amendment of the United States Constitution, and
27 (3) Defendants fail to protect Plaintiffs from harm while in state custody in violation of the
Fourteenth Amendment of the United States Constitution.
28

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIONPage 6

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104
(206) 464-0838

1
In the instant case, the claims of the representatives are sufficiently "typical". The
2
claims of the named plaintiffs are all based on the defendants' policies and practices at GHS.
3
Additionally, as explained in section B.2, above, the injunctive remedies sought by this
4
5 lawsuit — to prevent defendants violating the constitutional rights of juveniles confined at
6 GHS—are necessarily applicable to the class as a whole. Thus, the typicality requirement for

7 a class action is satisfied by the named representatives. See, Walters v. Thompson, 615

8 F.Supp. 330 (N.D. 111. 1985).
9
4. Adequacy of Representation - Fed. R. Civ. P. 23(aX4).
10
Adequacy of representation is a two part test: (i) Counsel for the representative
11
12 parties are qualified, experienced, and generally able to conduct the litigation; and (ii) The
13 suit is not collusive and there is no antagonism between the plaintiffs' interests and the

14 remainder of the class. Lerwill v. Inflight Motion Pictures. Inc.. 582 F.2d 507, 512 (9th
15 Cir. 1978).
16
The affidavits of counsel representing the class members establish that the attorneys
17
who represent the named plaintiffs are well qualified and have adequate resources to conduct
18
19 the litigation. (Declarations of Patricia J. Arthur and Robert A. Stalker Jr. attached to this
20 memorandum. See also, the application of David Lambert of the National Center For Youth

21 Law to participate in this case as co-counsel, filed on August 17, 1994.) Additionally, the

22 named plaintiffs do not have any antagonistic or conflicting interests with their respective

23
unnamed class members, and there is no suggestion of collusion.
24
C. Fed. R. Civ. P. 23(b)(2) - FINAL INJUNCTIVE RELIEF IS APPROPRIATE.
25

26

Once the prerequisites to a class action under Fed. R. Civ. P. 23(a) have been

27 satisfied, this Court must determine what type of class action is appropriate. We ask for

28
MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIQNPage 7

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY. SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1
certification under Rule 23(b)(2). The intent of Fed. R. Civ. P. 23(b)(2) is "to focus the
2
court and attorney on an appraisal of the utility of shaping a class-wide equitable decree or
3
declaratory judgment." 3B J. Moore, Federal Practice. § 23.4O[2] at 23-263 (2d Ed. 1987).
4
5 "The emphasis under (b)(2) is therefore upon the general application to the class of the
6 alleged action or inaction of the defendant...." ¡çL, § 23.4O[l] at 23-258.

7

In this instance, the defendants have acted or refused to act on grounds generally

8 applicable to the class. All grievances arise out of defendants' policies and practices and
9
conditions at GHS. Final injunctive relief to the class as a whole is appropriate. See, Mead
10
v. Parker. 464 F. 2d 1108 (9th Cir. 1972) and Walters v. Thompson. 615 F. supp. 330
11
12 (N.D. 111. 1985).

13

V. CONCLUSION

14

The class proposed in this lawsuit meets the requirements set out in Fed. R. Civ. P.

15 23(a)(l)-(4) and 23(b)(2). Therefore this court should enter an order certifying that this

16
lawsuit may be maintained as a class action.
17 DATED this l l day of
18

, 1994.

19

20

SATRICIA J.y\RTHUR, WSBA #13769

ROBERT A. STALKER, JR., WSBA #13650

21

Of Attorneys for Plaintiffs

22

EVERGREEN LEGAL SERVICES

23

Institutional Legal Services Project

101 Yesler Way, Suite 301

24

Seattle, WA 98104

(206) 464-0838

25

26

27

28
MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATIONPage 8

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

 
 Horton v. Williams

•• • •

HH

BH

H^

H

H

l-WA-0002-0005

•A
LODGED RECEIVED
Q 7 199½

LJLJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT TACOMA

JAMES HORTON, JAMES BARNHART,

CLASS ACTION

JEROME PAYTON, J.B., through his

CJ>

next friend, LORRAINE WEST, and K.M., through his mother DEBBIE

NO. C94-5428 RJB

MOORE, on behalf of themselves

and all others similarly situated, )

10

)

Plaintiffs,

11

STATE DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

vs.
12
BOB WILLIAMS, in his official
13 capacity as Superintendent of
Green Hill School; JEAN SOLIZ,
14 in her official capacity as Secretary of the Department of
15 Social and Health Services; and SID SIDOROWICZ, in his official
16 capacity as Assistant Secretary of the Juvenile Rehabilitation
17 Administration; and the Chehalis School District,

18

Defendants.

19

20

COMES NOW Defendants Bob Williams, Jean Soliz, and Sid

21 Sidorowicz (state defendants), through their undersigned counsel,

22 and in answer to the First Amended Complaint For Injunctive and

23 Declaratory Relief, admit, deny, and allege as follows:

24

Answering paragraph 1, state defendants admit that Green Hill

25 School (Green Hill) is an institution for juvenile offenders in 26

STATE DEFENDANTS' ANSWER - 1

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Otymp¡a, WA 985044)124 CM) 459-6558

Chehalis, Washington, and that plaintiffs seek declaratory and

injunctive relief. State defendants deny remainder of said

paragraph.

4

Answering paragraph 2, state defendants deny the same.

5

Answering paragraph 3, state defendants admit that J.B. and

K.M. are under age 18, and that plaintiffs Horton, Barnhart, and

Payton are over age 18. State defendants deny remainder of said

paragraph for lack of knowledge.

Answering paragraph 4, state defendants admit that plaintiffs

10 are residents of Washington. State defendants deny for lack of 11 knowledge that plaintiffs' next friends are residents of 12 Washington. State defendants deny remainder of said paragraph.

13

Answering paragraph 5, state defendants admit that plaintiffs

14 Horton and K.M. were sprayed with aerosol oleoresin capsicum (OC)

15 by staff at Green Hill, and that they have been handcuffed.

16 State defendants deny remainder of said paragraph.

17

Answering paragraphs 6 and 7, state defendants deny the same.

18

Answering paragraphs 8 through 12, state defendants admit the

19 same.

20

Answering paragraphs 13 through 15, state defendants deny the

21 same.

22

Answering paragraph 16, state defendants admit that Green

23 Hill is located in Chehalis, Washington, and that there are

24 approximately 26 buildings, including those listed in said

25 paragraph. Defendants deny remainder of said paragraph. 26

STATE DEFENDANTS' ANSWER - 2

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

Answering paragraph 17, state defendants admit that what is now Green Hill opened in 1891 as the Washington State Reform School. State defendants deny remainder of said paragraph.
Answering paragraph 18 and 19, state defendants deny the

same. Answering paragraph 20, state defendants deny for lack of

knowledge that damage would incur to Green Hill buildings in event

of a seismic activity. State defendants deny remainder of said

paragraph.

10

Answering paragraphs 21 and 22, state defendants deny the

11 same.

12

Answering paragraph 23, state defendants admit that there are

13 no fire sprinkler systems at Green Hill. State defendants deny

14 remainder of said paragraph.

15

Answering paragraph 24, state defendants admit that they

16 authorize Green Hill staff to use OC, and that one or more of the

17 alleged effects temporarily may occur.

18

Answering paragraph 25, state defendants deny the same.

19

Answering paragraph 26, state defendants deny that any of the

20 named plaintiffs were sprayed with OC in the manner alleged in

21 said paragraph.

22

Answering paragraph 27, state defendants admit Green Hill

23 maintains supplies of 5% and 10% OC, and that there are no written

24 guidelines on what OC concentration to use. State defendants deny

25 remainder of said paragraph. 26
Answering paragraph 28, state defendants deny the same.

STATE DEFENDANTS' ANSWER - 3

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Otvmpia, WA 98504-0124
(2O6)459-«58

1

Answering paragraph 29, state defendants admit the same.

2

Answering paragraph 30, state defendants deny that any of the

named defendants have been on a spray program. State defendants

admit that a very limited number of residents are on spray

programs, in which use of OC is pre-authorized by state defendant

Williams in the event of certain prescribed conduct by the

resident when such conduct jeopardizes institutional security.

8

Answering paragraph 31, state defendants admit that a

limited number of residents have had their names placed on a OC

10 canister.

11

Answering paragraph 32, state defendants admit that Green

12 Hill medical, psychological, or mental health staff is not

13 consulted just prior to OC spraying of a resident. State

14 defendants allege that such staff was consulted prior to

15 implementation of the OC policy.

16

Answering paragraph 33 and 34, state defendants deny the

17 same.

18

Answering paragraph 35, state defendants deny the same.

19

Answering paragraph 36, state defendants deny the same.

20

Answering paragraph 37, state defendants authorize use of

21 force when handcuffing and shackling a resisting resident if

22 necessary for institutional security. State defendants allege

23 that they are not aware of an instance where this has been

24 necessary.

25

Answering paragraph 38, state defendants deny the same.

26

STATE DEFENDANTS' ANSWER - 4

ATTORNEY GENERAL OF WASHINGTON 670 Woodlmd Square Loop SE PO BOX 40124 OtympU,WA 98504-0124 (206) 459-6558

Answering paragraph 39, state defendants deny the same. State alleges that what plaintiffs term "disciplinary cottages", state defendants term "intensive management units" (IMUs).
Answering paragraphs 40 through 42, state defendants deny the

same. Answering paragraph 43, state defendants admit that in a

limited number of cases residents are retained temporarily in IMU

8 because no outside beds are available. State defendants deny

remainder of said paragraph.

10

Answering paragraphs 44 to 48, state defendants deny for lack

11 of knowledge. State defendants allege that education programs are

12 the legal responsibility of defendant Chehalis School District.

13

Answering paragraphs 49 to 56, state defendants deny the

14 same.

15

Answering section Vii, state defendants deny each and every

16 allegation in the first, second, third, and fourth claim

17

Answering section VIII, state defendants deny the same.

18

Answering section IX, state defendants deny the same.

19

Answering paragraph VII, state defendants deny the same.

20

State defendants further deny each and every allegation

21 contained in Plaintiffs' First Amended Complain For Declaratory

22 and Injunctive Relief not otherwise admitted or denied.

23

BY WAY OF FURTHER ANSWER AND AFFIRMATIVE DEFENSES, state

24 defendants affirmatively allege:

25 26

STATE DEFENDANTS' ANSWER - 5

ATTORNEY GENERAL OF WASHINOTON
670 WoodUnd Square Loop SE PO BOX 40124
Otymp¡a, WA 98504-0124 (206) 459-6S5»

.. -I

1

1. Plaintiffs fail to allege facts that rise to the level of

2 a civil rights violation, and therefore fail to state a claim upon

3 which relief may be granted;

4

2. Plaintiffs fail to establish federal subject matter

5 jurisdiction, and therefore their claims should be dismissed for

6 lack of subject matter jurisdiction;

7

3. Plaintiff failed to exhaust administrative remedies or

8 remedies in other forums, and therefore jurisdiction does not lie;

9

4. The Eleventh Amendment precludes jurisdiction over

10 pendant state claims;

11

5. State defendants are not liable for acts of their

12 superiors or subordinates in which state defendants did not

13 personally participate;

14

6. Any injury suffered by the plaintiffs was the result of

15 reasonable conduct by state defendants and was justified under the

16 circumstances;

17

7. Any injury suffered by plaintiffs was caused or provoked

18 by the conduct of the plaintiffs;

19

8. Conduct of the state defendants alleged in the complaint

20 was grounded in good faith and were discretionary acts, and

21 therefore state defendants are entitled to qualified immunity.

22

WHEREFORE, having fully answered the First Amended Complaint

23 and having stated affirmative defenses, state defendants pray for

24 judgment dismissing the Complaint and action with prejudice,

25 directing plaintiffs take nothing thereby, and awarding state 26

STATE DEFENDANTS' ANSWER - 6

ATTORNEY GENERAL OF WASHINGTON 670 Woodlind Square Loop SB PO BOX 40124 Oiympia, WA 98304-0124 (206) 459-6558

defendants costs and reasonable attorneys' fees incurred in

defending against this action.

3

DATED this

4

5

day of September, 1994.
CHRISTINE 0. GREGOIRE Attorney^General

6

1/ iA

RICHARD K. McCARTAN, WSBA #8323

7

Assistant Attorney General

8

9

CAROL A. MURPHY, WSBA <fel244

10

Assistant Attorney General

Attorneys for Defendants

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25 26

STATE DEFENDANTS' ANSWER - 7

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Sqiure Loop SB PO BOX 40124 Olympiâ, WA 98304-0124 (206) 459-«58

 
 Horton v. Williams

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1

UNITED STATES DISTRICT

WESTERN DISTRICT OF WA£ INGT¢¾i^^

2

AT TACOMA

WESTBif( CS¾¾CT CF » i ¾ > AXT WCOW

ay

t

3 JAMES HORTON, JAMES BARNHART,

) CLASS ACTION

JEROME PAYTON, J.B., through his )

4 next friend, LORRAINE WEST, and

)

K.M., through his mother DEBBIE )

5 MOORE, on behalf of themselves

)

and all others similarly situated, )
6

Plaintiffs,

NO. C94-5428 RJB
MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(B)(6)

7

vs.
8
BOB WILLIAMS, in his official 9 capacity as Superintendent of
Green Hill School; JEAN SOLIZ,

MOTION NOTED FOR OCTOBER 28, 1994

10 in her official capacity as

Secretary of the Department of

1 1 Social and Health Services; and

SID SIDOROWICZ, in his official 12 capacity as Assistant Secretary
of the Juvenile Rehabilitation 13 Administration; and the Chehalis )

School District,
14

Defendants.
15

16

COMES NOW Defendants Williams, Soliz, and Sidorowicz, through

17 their undersigned counsel, and move under Fed. R. Civ. P. 12 (b) (6)

18 to partially dismiss claims for failure to state on claim upon

19 which relief may be granted. This motion is based on the

20 complaint, and on the memorandum of counsel.

21

DATED this Q-\£r~day of September, 1994.

22

CHRISTINE O. GREGOIRE

Attorney General

23

24 RICHA£0?'A. McCARTAN, WSBA #8323 Assistant Attorney General
25 Attorneys for Defendants

CAROL A. MURPHY, WSBA <*2I244 Assistant Attorney General

26

MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12 (B) (6)' - 1

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

 
 o=:
CD
l-i_l
CO

Horton v. Williams

tt>

JI-WA-0002-ÓÔÓ7

-FiLED.

.LODGED RECEIVED

1

SEP 2 7 1334

2 UNITED STATES DISTRTICCT COURTS* us· DiSTS!CT °¾`H- ™MM

3

WESTERN DISTRICT OF WASHINGTON

E½'Ü.,

AT TACOMA

4

5 JAMES HORTON, JAMES BARNHART, JEROME PAYTON, J.B., through his
6 next friend, LORRAINE WEST, and K.M., through his mother DEBBIE
7 MOORE, on behalf of themselves and all others similarly situated,
8 Plaintiffs,
9
vs. 10
BOB WILLIAMS, in his official 11 capacity as Superintendent of
Green Hill School; JEAN SOLIZ, 12 in her official capacity as
Secretary of the Department of 13 Social and Health Services; and
SID SIDOROWICZ, in his official 14 capacity as Assistant Secretary
of the Juvenile Rehabilitation 15 Administration; and the Chehalis
School District,
16 Defendants.
17

CLASS ACTION
NO. C94-5428 RJB
STATE DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(B)(6)

18 This memorandum is filed on behalf of defendants Williams,
19
Soliz, and Sidorowicz (the state) in support of a motion pursuant 20
to Fed. R. Civ. P. 12 (b) (6) to partially dismiss claims for 21
failure to state a claim upon which relief may be granted. 22
This lawsuit is a class action, seeking declaratory and 23
injunctive relief, brought under 42 USC § 1983 by residents 24
challenging certain conditions of confinement at Green Hill 25

26

STATE DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE l2(b)(6) %- 1

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Square Loop SE PO BOX 40124 Olympu, WA 98SO4-0124 (205) 459-45558

1 School, which is an institution for juvenile offenders operated by

2 the State of Washington.

3

Plaintiffs' claims are set out on pages 10 and 11 of the

4 complaint. The factual allegations in support of these claims are

5 set out on pages 1 through 10 of the complaint.

6

I. ARGUMENT

7

When a suit challenges conditions of confinement, to grant

8 relief, a court must identify a specific condition that allegedly

9 violates the constitution, rather than taking into consideration

10 to "totality of conditions." Hoptowit v. Rav. 682 F.2d 1237, 1247

11 (9th Cir. 1982). A claim, therefore, should be dismissed if the

12 specific allegations on which the claim is based are insufficient.

13 Since plaintiffs' claims are worded to incorporate by reference

14 each factual allegation, each factual allegation on which a claim

15 is based must be non-conclusory and supported by specific facts,

16 as well as alleging an injury and a cognizable constitutional

17 violation.

18

A. Conclusory allegations unsupported by specific facts, or

19 which do not allege an injury, are insufficient to state a cause

20 of action.

21

The level of specificity required in pleading a cause of

22 action is regulated by Fed. R. Civ. P. 8(a)(2), which requires a

23 "short and plain statement of the claim showing the pleader is

24 entitled to relief." Conclusory allegations unsupported by

25 specific facts are not sufficient. McCarthy v. Mayo. 827 F.2d

26 1310, 1316 (9th Cir. 1987). A claim must provide sufficient

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE l2(b)(6)`- 2

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Square Loop SE PO BOX 40124 Olympìâ, WA 98504-0124 (206) 459-6558

notice of the nature of the claim and the facts which underlie the

claim, so the defendant may assess the initial strength of the

claim, preserve relevant evidence, and identify related counter-

claims and cross claims. Grid Systems Corp. v. Texas Instruments

Inc. . 771 F. Supp. 1033, 1037 (N.D.Cal. 1991). Conclusory

allegations are not sufficient to state a claim under 42 USC S

1983. Kennedy v. H & M Landing Inc.. 529 F.2d 987, 989 (9th Cir.

8 1976); Bergquist v. Cochise County, 806 F.2d. 1364, 1367 (9th

Cir. 1986).

10

What is required is an allegation of "specific, narrowly-

11 defined conduct" on the part of defendant. Gibson v. United

12 States. 781 F.2d 1334, 1341 (9th Cir. 1986), quoting Kadar Corp.

13 v. Milburv. 549 F.2d 230, 234 (1st cir. 1977). Any claim under 42

14 USC § 1983 must be supported by "particularized facts"

15 demonstrating a constitutional deprivation. Cohen v. Illinois

16 Institute of Technology 581 F.2d 658 (7th Cir. 1978). A liberal

17 reading of a civil rights complaint may not supply essential

18 elements of a complaint that were not initially pled. Ivey v.

19 Board of Regents. 673 F.2d 266, 268 (9th Cir.1982). When

20 plaintiffs, as here, are represented by experienced counsel, their

21 complaint must be more strictly construed. Benson v. Cady. 761

22 F.2d 335, 339 (7th cir. 1985); Balistreri v. Pacifica Police

23 Dep_t. , 901 F.2d 696, 699 (9th Cir. 1990); Ferdik v. Bonzelet. 963

24 F.2d 1258 (9th Cir. 1992).

25

The requirement for a non-conclusory complaint, supported by

26 specific facts, prevents plaintiffs from proceeding with an action

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE l2(b)(6) `- 3

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

in which they may not know what the issues are, what they hope to

prove, or what they hope to gain from the action. Plaintiffs

cannot proceed on the basis of vague allegations in hopes that at

some point in the litigation they may discover some specific

ground on which they are entitled to relief. Proceeding in such

a manner is not a proper use of the courts. That is precisely the

danger when plaintiffs, as in this case, are allowed to proceed on

8 such vague allegations as failure to provide such things as

adequate "educational, recreational, and other treatment

10 services", "social services", "transition services", "treatment in

11 the least restrictive environment", "numbers of properly trained

12 staff", "educational, treatment, and security needs of Spanish-

13 speaking resident", "identification of treatment needs",

14 "alternative education programs", "unburdened facilities",

15 "dangerous conditions", and "safe and sanitary conditions".

16 Plaintiffs' complaint is riddled with this type of general

17 allegation.

18

In addition to making specific allegations, a plaintiff must

19 demonstrate an actual injury in fact stemming from the allegedly

20 illegal conduct. O'Shea v. Littleton. 414 U.S. 488, 494 (1973);

21 Casey v. Lewis. 4 F.3d 1516, 1519 (9th Cir. 1993).

22

Many cases have dismissed § 1983 claims for making

23 insufficient conclusory allegations. For example, Swoboda v.

24 Dubach. 992 F.2d 286 (10th Cir. 1993), involved the following

25 claims by an inmate:

26

STATE DEFENDANTS' MOTION TO PARTIALLY D I S M I S S C L A I M S UNDER R U L E 1 2 ( b ) ( 6 ) •> 4

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
oiympüi WA 9«soloi24 (206) 45<MS558

1

a) conditions, restrictions, and constraints placed on

pretrial detainees amounted to punishment, b) pretrial

2

detainees were limited in their preparation of a legal

defense by their inability to post bail, c) oppressive jail

3

conditions limited inmates' ability to prepare or assist in

their legal defense, d) restrictions placed on inmates'

4

communications and access to law books amounted to a denial

of access to the courts and counsel, e) conditions at the

5

jail constituted cruel and unusual punishment, f) inmates

received inadequate medical care, g) lack of access to

6

exercise and recreation, h) lack of access to reading

material, i) inadequate diet at jail, j) the jail's housing

7

conditions, heating, ventilation and cooling, fire alarm,

plumbing and lighting systems were inadequate and posed

8

health threats to inmates, k) failure to provide regular

bathing, cleaning, and laundry services, 1) denial of right

9

to vote, m) denial of the right to exercise religious

freedom, n) failure to train and staff the jail to insure

10

inmates' safety, and o) failure to protect inmates privacy.

11 992 F.2d at 289. In dismissing the claim, the court held:

12

He stated no specific facts connecting the allegedly

unconstitutional conditions with his own experiences at [the

13

jail], or indicating how the conditions caused him injury.

Without such facts, these claims are little more than

14

conclusory allegations, which are insufficient to state a

claim.

15

Id. In Lowe v. Board of Commissioners,. 750 F. Supp. 697, 700

16

(M.D.Pa. 1990), the court found conclusory an allegation that

17

defendants "chose and pursued a policy of administration of 18

medical care which was grossly inadequate to meet the needs of 19

plaintiff," and "acted pursuant to a policy approved, encouraged, 20

and acquiesced in" by the county and the warden. 21

A complaint that a prison failed to treat sex offenders until 22

near their release failed to state a claim when there was no 23

allegation of deliberate indifference or of what the serious 24

medical needs were. Patterson v. Webster. 760 F. Supp. 150, 153 25

(E.D.Mo. 1991). A prisoner's claim of deprivation of property was 26

STATE DEFENDANTS' MOTION TO. PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 5

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympi«, WA 98504-0124 (206) 459-6J58

properly dismissed when he failed to allege what property had been

taken. Gucrlielmo v. Cunningham. 811 F. Supp. 31, 33 (D.N.H.

1993) . Similarly, a prisoner's claim of racial discrimination was

dismissed when the complaint did not state what action or omission

gave rise to the complaint. Johnson v. KSIR. 804 F. Supp. 173,

179 (D.Kan. 1992).

Because "complaints relying on civil rights statutes are

insufficient unless they contain some specific allegation of fact

indicating a deprivation of rights, instead of a litany of general

10 conclusions that shock but have no meaning," claims such as

11 "denial of proper health and safety care" must be dismissed.

12 Smith v. State. 764 F. Supp. 260, 261 (E.D.N.Y. 1991).

13

A claim that a prisoner is kept in administrative segregation

14 without reason is not sufficient without allegations that he was

15 denied the right to a hearing, or that administrative segregation

16 is used as a pretext for indefinite confinement. Williams v. ICC

17 Committee. 812 F. Supp. 1029, 1033 (N.D.Cal. 1992). A prisoner

18 claiming "medical indifference" due to denial of crutches, to

19 avoid dismissal, must allege how treatment of the injury was

20 inadequate. Davis v. Hall. 992 F.2d 151, 153 (8th Cir. 1993).

21 Since a prisoner has the right to "outdoor" exercise, a complaint

22 alleging inadequate exercise space must make clear whether the

23 allotted space is outside or not. Cooper v. Sumner. 672 F. Supp.

24 1363, 1366 (D.Nev. 1987). A claim of denial of "religious

25 privileges" is insufficient without indicating what specific

26

STATE DEFENDANTS' MOTION TO- PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 6

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OlympU, WA 98504-0124 (206) 459-<5558

1.

privileges were denied. Adams v. O'Leary. 659 F. Supp. 736, 739

(N.D.I1. 1987).

Claim that a prisoner's health deteriorated in segregation

must specify a illness or medical condition. Lewis v. Woods. 848

F.2d 649, 653 (5th Cir. 1988). A claim that prisoner was given

job transfers to "punish and harass" him is conclusory. Gill v.

Mooney. 824 F.2d 192, 194 (2nd Cir. 1987). Also conclusory are

8 claims that health care is "inadequate", and standards within a

unit are "below... adequate". Martin v. Sargent. 780 F.2d 1334

10 (8th Cir. 1985).

11

Based on these cases, the plaintiffs' claims below must be

12 dismissed because they are conclusory and not supported by

13 specific facts, or fail to allege an injury.

14

1. Plaintiffs claim what they call "disciplinary cottages"

15 are used in violation of their Fourteenth Amendment rights (page

16 10, line 26) because residents are not provided "educational,

17 recreation, and other treatment services that are appropriate to

18 their needs" (page 8, line 40). This totally conclusory claim

19 fails to list any specific program which plaintiffs believe is

20 unconstitutionally denied them. It fails to identify what

21 plaintiffs' needs are, what services would be appropriate to meet

22 those needs, or how they are injured by the level of services

2 3 currently offered.

24

2. Plaintiffs claim they are denied "adequate procedural

25 protection prior to the infliction of harsh and cruel punishment"

26 in violation of due process (page 11, lines 4-5) . This claim

STATE DEFENDANTS' MOTION TO PARTIALLY D I S M I S S CLAIMS UNDER RULE 12 ( b ) ( 6 ) `- 7

ATTORNEY GENERAL OF WASHINGTON
670 WoodUutd Square Loop SB PO BOX 4ÛI2¿4
oiympU WA 985O4-oi24

appears to be based on allegations that plaintiffs are denied due

process when placed in a "disciplinary cottage" (page 9, lines 1-

3) and when excluded from educational services (page 9, lines 22-

23) This claim completely fails to specify what procedural

protections plaintiffs are entitled to, how they are denied, or

how plaintiffs are injured. Moreover, nowhere in the complaint do

plaintiffs allege they are subject to "harsh and cruel punishment"

in violation of the Eighth Amendment. Thus, the allegation that

they are denied procedural protections prior to infliction of such

10 punishment, has no factual basis.

11

3. Plaintiffs claim they are not "protected... from harm in

12 the state's custody" in violation of due process (page 11, lines

13 5-6). This claim apparently is based on an allegation that there

14 are insufficient number of properly-trained staff to protect

15 residents from assault or injury (page 10, lines 21-22). This

16 allegation is conclusory and not supported by sufficient facts.

17 For example, there are no facts to support an allegation that

18 residents are subject to undue risk of assault or injury, or in

19 fact are assaulted or injured in undue numbers. Nor are there

20 alleged facts regarding why assaults or injuries are caused by

21 insufficient numbers of properly-trained staff.

22

4. Plaintiffs claim they are not provided "adequate and

23 appropriate health care in violation of due process" (page 11,

24 line 6 ) . This claim apparently is based on the allegation that

25 overcrowding has burdened health facilities beyond their

26 capacities (page 5, lines 15-19). This allegation is not

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6)`- 8

ATTORNEY GENERAL OF WASHINOTON 670 WoodUnd Square Loop SB PO BOX 40124 Olympu, WA 98504-0124 (206) 459-6558

sufficient because it does not provide specific facts showing why

health care is inadequate, what health care is being denied, what

pain or injury is resulting, or describing how alleged

overcrowding makes the health care inadequate.

5. Plaintiffs claim they are not provided adequate

"education programs" in violation of due process (page 11, line 7)

and equal protection (page 11, line 15). The allegations in

8 support of this claim include that plaintiffs are not provided

educational services equivalent to what is provided youths outside

10 the institution (page 9, lines 20-21). This allegation fails to

11 give any indication of what those services are. Another

12 allegation is that plaintiffs are excluded from educational

13 services without "process" and are not given "alternative

14 educational programs" (page 9, lines 22-24). This allegation

15 fails to specify what education is being denied, what process is

16 being denied, and what alternative program is denied.

17

6. Plaintiffs claim they are not provided adequate

18 "rehabilitative treatment" in violation of due process (page 11,

19 line 7) . The allegations on which this claim is based include

20 that plaintiffs do not receive either "adequate treatment" (page

21 10, line 6 ) , or "appropriate mental health, counseling, and social

22 services" (page 11, lines 7-8). These allegations are conclusory

23 and unsupported by facts. They are couched in only the most

24 generic terms. They fail to specify, for example, what plaintiffs

25 currently receive for treatment, why the treatment is inadequate,

26

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12 (b) (6) - 9

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SB
oiymju V?A ‰ (206)459-6558

1.

what the needs are, what the injuries are, or what the appropriate

level of treatment is.

7. Plaintiffs claim they receive no "classification" in

violation of due process (page 11, line 7 ) . It is not clear what

is meant by "classification". There are no specific facts related

to that term.

8.

Plaintiffs claim they do not receive adequate

8 "supervision" in violation of due process (page 11, line 7) . This

claim apparently is based on the allegation that there are

10 insufficient numbers of properly-trained staff to protect

11 residents from assault or injury (page 10, lines 21-22). This

12 allegation is conclusory and not supported by sufficient facts.

13 For example, there are no facts to support an allegation that

14 residents are subject to undue risk of assault or injury, or in

15 fact are assaulted or injured in undue numbers. Nor are there

16 facts alleged supporting a contention that the reason for assaults

17 or injuries is an insufficient number of untrained staff.

18

9. Plaintiffs claim they were denied adequate "educational

19 services11 (page 11, lines 12-18) . This claim apparently is based

20 upon several allegations, at least two of which, as explained

21 above, are conclusory and not supported by specific facts; that

22 plaintiffs are excluded from services without process, and are not

23 offered "alternative education programs" (page 9, lines 48-51).

24

B.

There must be a provable set of facts entitling

25 plaintiffs to relief.

26

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 10

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SB PO BOX 40124 Olympia, WA 985OM)I24 (206) 459-6558

A court may grant a motion to dismiss for failure to state a

set of facts that would entitle plaintiff to recover. Keniston v.

Roberts. 717 F.2d 1295 (9th Cir. 1983), quoting Conlev v. Gibson.

335 U.S. 41, 45-46 (1957). A claim under 42 U.S.C. S 1983,

therefore, must allege facts which, if true, amount to a

constitutional violation. The threshold question is whether

plaintiff has been denied a right of constitutional significance.

8 Parratt v. Taylor. 451 U.S. 527, 532 (1981). For example, while

9 prison officials may not show "deliberately indifference" to a

10 prisoner's medical needs, an allegation of delay in allowing a

11 prisoner to see a doctor is an allegation of mere negligence which

12 does not rise to the level of a constitutional violation. Franklin

13 v. State. 662 F.2d 1337 (9th Cir. 1981).

14

Federal courts, moreover, lack the power to interfere with

15 decisions made by state prison officials, except when there are

16 constitutional violations. Bell v. Wolfish, 441 U.S. 520, 562

17 (1979). A remedy should do no more than correct a particular

18 constitutional violation. Swann v. Charlotte-Mecklenburg Bd. of

19 Ed. , 402 U.S. 1, 16 (1972). In particular, injunctive relief

20 should be no broader than necessary to remedy the constitutional

21 violation. Toussaint v. McCarthy. 801 F.2d 1080, 1086 (9th Cir.

22 1986).

23

Based on these principles, the claims below must be

24 dismissed.

25

26

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 11

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympii, WA 98504-0124 (206) 459-6558

x...

1. Plaintiffs allege the use of aerosol restraint violates

due process (page 10, line 26) in several respects, including the

following:

(a) The spray concentration is arbitrarily selected (page 7,

lines 13-17);

(b) The person giving final approval for use of aerosol

restraint is not always on-site (page 7, lines 22-23);

(c) A "spray program" allows spraying by staff without

further authorization (page 7, lines 25-27); and

10

(d) Staff threatens residents by putting their names on

11 aerosol restraint canisters (page 8, lines 1-2).

12

In Washington, juvenile offenders do not stand convicted of

13

'crime' RCW 13.04.240. Thus, juvenile offenders, like a

14 civilly-committed person, have a due process right to be free from

15 restraints that are not reasonably related to legitimate

16 government objectives. Youncrbercr v. Romeo. 457 U.S, 307, 320

17 (1982); Gary H. v. Heqstrom. 831 F.2d 1430, 1432 (9th Cir. 1987).

18 One of the issues in this case, therefore, is whether use of

19 aerosol restraint is reasonably related to a legitimate government

20 interest in maintaining institutional security. If so, the

21 practice is constitutionally-permissible.

22

There is, however, no constitutional right, as plaintiffs

23 allege, to have any particular person approve the use of aerosol

24 restraint, or in the process by which the aerosol concentration is

25 selected. Nor is it a constitutional violation to place a name on

26 a canister of aerosol restraint since such an act in itself is not

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12 (b) (6) `- 12

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 OlympU,WA 98504-0124 (206) 459-6558

a form of restraint. Even if, as alleged, putting the name on the

canister is a threat, a mere threat is not a constitutional

violation. Gaut v. Sunn. 810 F.2d 923, 925 (9th Cir. 1987).

Thus, these claims must be dismissed because they do not rise

to the level of a constitutional violation on which relief may be

granted.

2. Plaintiff allege they are denied due process by not

receiving "adequate and appropriate health care" (page 11, line 6)

because of overburdened health facilities (page 5, lines 16-17).

10 An allegation of overcrowding, without more, does not state a

11 claim under the Eighth Amendment. Hoptowit v. Ray. 682 F.2d 1237,

12 1249 (9th. Cir. 1982); Akao v. Shimoda. 832 F.2d 119, 120 (9th

13 Cir. 1987). Under the due process clause, persons involuntarily

14 confined, like plaintiffs, are entitled to safe conditions of

15 confinement. Younqbercr v. Romero, 457 U.S. 307, 315 (1982). No

16 court holds that overcrowding, without more, is a due process

17 violation. There is no allegation, for example, that the

18 overcrowding is causing unsafe conditions by delaying the time in

19 which residents are treated for serious medical problems.

20

3. Plaintiffs allege their due process rights are violated

21 by failure to provide "rehabilitative treatment" (page 11, line 7)

22 and education programs (pages 11, lines 7, 13-24). Specifically,

23 plaintiffs allege inadequate education evaluation (page 9, lines

24 11-15), lack of parental participation in education (page 9, lines

2 5 16-18), lack of education services comparable to non-committed

26 juveniles (page 9, lines 20-21), exclusion from education for

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE l2(b)(6)`- 13

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Squire Loop SB PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

violating rules (page 9, lines 22-23), lack of alternative

education programs (page 9, line 24), inadequate evaluation of

treatment needs (page 9, line 27), inadequate treatment (page 10,

line 6 ) , lack of appropriate counseling and social services (page

10, lines 7-8), no transition services (page 10, lines 9-10),

insufficient Spanish interpreters (page 10, lines 14-15), and

failure to treat in the least restrictive environment (page 10,

lines 19-20).

The state has

statutory obligation to provide

10 rehabilitative services to plaintiffs. RCW 13.40.010(2)(f), RCW

11 72.05.13 0. The state operates a residential school at Green Hill.

12 RCW 28A.190.030. State defendants are complying with these state

13 statutes by providing the required rehabilitation and education.

14 The sole issue in this case, however, is whether plaintiffs have

15 a constitutional right to the identified services. They do not.

16

While some courts may grant juvenile offenders a

17 constitutional right to rehabilitation, the Ninth Circuit in Gary

18 H. v. Heastrom. 831 F.2d 1430, 1432 (9th Cir. 1987), adopted the

19 approach of Santana v. Collazo, 714 F.2d 1172, 1177 (1st Cir.

20 1983), which expressly rejected that right. Instead, Gary H.

21 adopted the following test for treatment of juvenile offender:

22

The Constitution requires only minimally adequate training,

and a reasonable balance between liberty interests and the

23

institution's operational needs. (Emphasis added.)

24 831 F.2d at 1432, citing Younqberg v. Romero. 457 U.S. at 822-23.

25 In Youngberq. the court held that a civilly-committed person has

2 6

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) `- 14

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

a due process right to "minimally adequate training" necessary to

be free from unreasonable physical restraints. 457 U.S. 822.

Plaintiffs request various treatments not related to freedom

from physical restraints; that is, they have not stated or even

implied that failure to provide these treatments (e.g., an

education evaluation) results in undue use of restraints such as

aerosol restraint, handcuffs, or isolation. Instead, the

identified treatment needs relate simply to general rehabilitation

and education of all residents, without regard to whether

10 residents are subject to restraint. (Indeed, plaintiff class is

11 comprised of all residents, and not just those subject to physical

12 restraint.) Even if the allegations are related to freedom from

13 physical restraints, or if there is a general right to treatment,

14 the allegations do not even approach failure to provide "minimally

15 adequate training." Plaintiffs' claims, therefore, simply do not

16 rise to the level of a constitutional violation. Indeed, there

17 are no cases, to the state's knowledge, that grant incarcerated

18 juvenile offenders a constitutional right to such things as

19 education evaluations, parental participation in education, an

20 education comparable to that provided outside the institution, to

21 attend school when rules are violated, treatment evaluations,

22 social services, transition programs, and a certain number of

23 language interpreters.

24

C. Claims related to the phsyical plant should be dismissed.

25

This subsection addresses specifically plaintiffs' numerous

26 allegations regarding the condition of the physical plant at Green

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 15

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OlympU, WA 985OM)I24 (206) 459-6558

1 Hill School (pages 4-6). There is no legal claim that any of

2 these alleged conditions actually violate plaintiffs'

3 constitutional rights (pages 10-11). Allegations under 42 U.S.C.

4 § 1983 not tied to a constitutional violation should be dismissed.

5 Franklin v. State. 662 F.2d 1337, 1338 (9th Cir.1981). Thus, any

6 claim related to the physical plant allegations should be

7 dismissed. Because no constitutional claim is asserted, there is

8 no need for further inquiry into these matters.

9

If, however, for the sake of argument, the allegations do

10 constitute claims, most of them should be dismissed as conclusory

11 or failing to allege an injury or a constitutional violation.

12

The claims below are conclusory and fail to allege an injury.

13

1. Plaintiffs allege buildings are in "extreme disrepair",

14 subjecting them to "punitive conditions which jeopardize their

15 health and safety" (page 5, lines 5-8). This claim is conclusory

16 because it does not specific what buildings are in disrepair, what

17 are the conditions of disrepair, how these conditions jeopardize

18 health, and safety, or what the injury is.

19

2. Plaintiffs allege residential cottages are not maintained

20 in a "safe and sanitary condition", are "dilapidated, unclean, and

21 unsanitary", and are not in compliance with "building code

22 standards and requirement" (page 5, lines 9-11). These claims are

23 conclusory because they do not give any specific indication of how

2 4 the cottages are substandard. Nor do they allege an injury.

25

3. Plaintiffs allege residential cottages are "overcrowded"

2 6 (page 5, line 1 5 ) . This claim is conclusory because it does not

STATE DEFENDANTS' MOTION TO. PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 16

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympii, WA 98504-0124 (206) 459-6558

indicate how the appropriate number of residents in a cottage, the

actual number of residents in a cottage, or how cottages are

overcrowded. Nor is an injury alleged.

4. Plaintiffs allege that, because of overcrowding, certain

facilities are "burdened... beyond their capacities", resulting in

"unsafe and punitive conditions" (page 5, lines 15-18). This

claim is conclusory because it does not indicate a single specific

service that is denied or delayed because of the alleged

overcrowding. No specific injury is alleged.

10

5. Plaintiffs allege that walls are "cracked" (page 5, line

11 22). No injury is demonstrated.

12

6. Plaintiffs allege that the kitchen and food service have

13 not been maintained in a condition which complies with "applicable

14 health and safety regulations, rules, and standards" (page 6,

15 lines 9-11). This claim is conclusory because it does not state

16 any specific rule that is violated. Nor does it claim that any

17 injury has resulted.

18

The claims below fail to rise to the level of

19 constitutional violation.

20

1. Plaintiffs allege that residential cottages do not meet

21 building codes (page 5, lines 13-14), and the kitchen does not

22 meet health and safety regulations (page 6, lines 9-11). Besides

23 being conclusory, these claims fail to allege a constitutional

24 violation. While juvenile offenders have a right to safe

25 conditions of confinement, Youncrbercr v. Romero. 457 U.S. at 315,

26

STATE DEFENDANTS' MOTION TQ. PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 17

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

compliance with safety codes is not required by the constitution.

As stated in Ruiz v. Estelle. 679 F.2d 1115, 1153 (5th Cir.1982):

3

Moreover, although the standards set by private

organizations' safety codes may be instructive in certain

4

cases, they simply do not establish the constitutional

minima; rather they establish goals recommended by the

5

organization in question.

6

2.

Plaintiffs allege that residential cottages are

"overcrowded" (page 5, lines 15-19). Besides being conclusory,

this claim does not rise to the level of a constitutional

violation. Under the Eighth Amendment, overcrowding is not a

10 constitutional violation, unless it results in deprivation of some

11 Eighth Amendment right, such as the right to shelter that is fit

12 for human habitation. Hoptowit v. Ray. 682 F.2d at 249. A due

13 process analysis should be the same. In this case, therefore, the

14 mere allegation, of overcrowding in residential cottages is

15 insufficient because there is no allegation that the overcrowding

16 is responsible for deprivation of some constitutional right.

17

D. Recovery under 42 U.S.C. 1983 is not available for

18 violation of state law.

19

Plaintiffs claim that failure to provide "adequate

20 educational services" violates due process, equal protection, the

21 Washington State Constitution (Article 9, § 1), and Washington

22 State statutes (RCW 28A.190.010-050) (page 11, lines 13-17).

23

As stated, the due process claims must be dismissed because

24 they do not allege deficiencies that would constitute a failure to

25 provide the "minimally adequate" treatment guaranteed by the

26 constitution. The equal protection claim is based on the

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 18

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olymp¡a, WA 98504-0124
(206) 459-6558

allegation that plaintiffs do not receive an education equivalent

to that received by youths outside the institution (page 9, lines

20-21). As stated, this claim is conclusory.

Article 9, § 1 of the State Constitution, and RCW

28A.190.010-050 entitle Green Hill residents to an education. A

claim that these laws have been violated is a state claim that is

barred in § 1983 suits. Pennhurst State School & Hosp. v.

Halderman. 465 U.S. 89, 121, (1984); Connor v. Sakia. 994 F.2d

1408 (9th Cir. 1993).

10

II. CONCLUSION

11

Based on the foregoing, the state respectfully submits that

12 plaintiffs' claims should be dismissed on grounds summarized

13 below.

14

l. claim: Fourteenth Amendment violated by not providing

15 residents in "disciplinary cottages" with "educational,

16 recreation, and other treatment services appropriate to their

17 needs." Grounds: Conclusory, no constitutional violation.

18

2. Claim: Due process violated by no "adequate procedural

19 protection prior to infliction of harsh and cruel punishment."

20 Grounds: Conclusory, no allegation of harsh and cruel punishment.

21

3. Claim: Due process violated by not protecting residents

22 from "harm while in the state's custody" and not providing

23 adequate "supervision" due to "insufficient numbers of properly-

24 trained staff" to protect residents from injury. Grounds:

25 Conclusory.

26

STATE DEFENDANTS' MOTION TO. PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 19

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

.__ I.

4.

Claim;

Due process violated by not providing

"appropriate health care" due to the fact that facilities are

"burdened... beyond their capacities." Grounds: Conclusory, no

injury, no constitutional violation.

5. Claim: Due process violated by not providing adequate

"education programs" that are equivalent to what is provided

outside the institution or "alternative education programs".

Grounds; Conclusory, no constitutional violation.

6. Claim: Equal protection violated by failure to provide

10 an education program equivalent to what is available outside the

11 institution. Grounds: Conclusory.

12

7. Claim: Due process violated by failure to provide

13 "rehabilitative treatment" based on "inadequate treatment" and

14 lack of "appropriate mental health, counseling, and social

15 services." Grounds: Conclusory, no constitutional violation.

16

8. Claim: Due process violated by lack of "classification".

17 Grounds: Conclusory, no constitutional violation.

18

9. Claim: Fourteenth Amendment violated by (1) the manner

19 in which the concentration of OC spray is selected for use, (2)

20 the fact that no person gives final approval to staff before OC

21 spray is used, and (3) a resident's name may be put on OC spray

22 canisters. Grounds: No constitutional violation.

23

10. Claim: Due process violated by failure to provide

24 "rehabilitative treatment" or adequate "education" based on

25 inadequate evaluations, parental participation, exclusion from

26

STATE DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 20

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-4558

1 school for violating rules, lack of alternative education

2 programs, inadequate treatment, lack of counseling and social

3 services, no transition services, insufficient Spanish

4 interpreters, and failure to treat in least restrictive

5 environment. Grounds: Conclusory, no constitutional violation.

6

11. Claim: Numerous allegations related to physical plant.

7 Grounds: No constitutional violation even alleged. (In the

8 alternative, see Nos. 12 to 17.)

9

12. Claim: Buildings in disrepair. Grounds: Conclusory.

10

13. Claim: Residential cottages not "safe and sanitary",

11 and "dilapidated, unclean, and unsanitary." Grounds: Conclusory.

12

14. Claim: Residential cottages not in compliance with

13 building codes. Grounds: Conclusory, no constitutional

14 violation.

15

15. Claim: Residential cottages are overcrowded. Grounds:

16 Conclusory, no constitutional violation.

17

16. Claim: Facilities burdened beyond capacity. Grounds:

18 Conclusory.

19

17. Claim: Walls are cracked. Grounds: No injury, no

20 constitutional violation.

21

18. Claim: Food service not in compliance with health and

22 safety code. Grounds: Conclusory, no constitutional violation.

23

19. Claim: Article 9, § 1 of Washington State Constitution,

24 and RCW 28A.190.010-050, violated by failure to provide "adequate

25 educational services." Grounds: Conclusory, state claim.

26

STATE DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 21

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

1

DATED this '2.% day of September, 1994.

2

CHRISTINE 0. GREGOIRE

Attorney General 3

4

5

RICHARD A. McCARTAN, WSBA #8323

Assistant Attorney General

6

7

f

8

CAROL A. MURPHY, WSBA ØT21244

Assistant Attorney General

9

Attorneys for Defendants

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STATE DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(b)(6) - 22

ATTORNEY GENERAL OF WASHDÍOTON 670 Woodland Square Loop SE PO BOX 40124 Olymp¡a, WA 9S5O*-0124 (206) 459-6558

 
 1

2

E HONORABLE ROBERT J. BRYAN

3
C
4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

JAMES HORTON, JAMES BARNHART, ) 11 JEROME PAYTON, J.B., through his ) CLASS ACTION

next friend, LORANE WEST, and K.M., ) 12 through his mother DEBBIE MOORE, on ) No. C94-5428 RJB

13 behalf of themselves and all others similarly situated,

STIPULATED AGREEMENT AND ORDER

14

RE: CLASS CERTIFICATION

I 15

Plaintiffs,

a 16

vs.

8

17 BOB WILLIAMS, in his official capacity as Superintendent of Green Hill School;

18 JEAN SOLIZ, in her official capacity as

19

Secretary of the Department of Social and ) Health Services; SID SIDOROWICZ, in )

20 his official capacity as Assistant Secretary ) of the Department of Social and Health )

21 Services for the Juvenile Rehabilitation )

Administration; and the Chehalis School )

22 District.

)

23

Defendants.

)

24 COME NOW the parties, Plaintiffs James Horton, James Barnhart, Jerome Payton,
25 26 J.B., through his next friend, Lorane West, and K.M., through his mother, Debbie Moore,
27 and through their counsel, Patricia Arthur, Robert A. Stalker, Jr. and David Lambert, and

28 STIPULATED AGREEMENT & ORDER RE: CLASS CERTIFICATIONPage 1

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

the State Defendants, Sid Sidorowicz, Jean Soliz and Bob Williams, through their counsel of

record, Richard McCartan, and the Chehalis School District Defendants, through their

counsel of record, Brian Baker, and stipulate to the certification of this cause as a class

action meeting the necessary requirments of Fed. R. Civ. P. 23. In particular, the parties

stipulate that the prerequisites listed in Fed. R. Civ. P. 23(a) and (b)(2) are satisfied and that

the court is hereby respectfully requested by both Defendants and Plaintiffs to issue an order

as required by Fed. R. Civ. P. 23(c) that this cause be maintained as a class action with the

class consisting of all juveniles currently or in the future incarcerated at Green Hill School.

10 This stipulated Order does not prejudice any defenses which Defendants may have on the
11 merits. The order agreed to by both parties is set forth below and shall be entered subject to
12
the approval of the court. 13

14

DATED this _2->^cIay of September, 1994.

15

16
17 ATRICIA J./ARTHUR, WSBA #13769 Of Attorneys (for Plaintiffs
18 EVERGREEN LEGAL SERVICES
19 Institutional Legal Services Project 101 Yesler Way, Suite 301
20 Seattle, WA 98104 21 (206)

RICHARD MCCARTAN, WSBA #8123 Attorney for State Defendants
OFFICE OF THE ATTORNEY GENERAL, Social & Health Services Div. P.O. Box 40124 Olympia, WA 98504-0124 (206) 459-6558

22

23

M. BAKER/WSBA #3442

Attorney for Defendant Chehalis

School District

25
919 Lakeridge Way S.W.
26 Olympia, WA 98502
(206) 352-4558
27

28
STIPULATED AGREEMENT & ORDER RE: CLASS CERTIFICATIONPage 2

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104
(206) 464-0838

1

ORDER

2

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

3 Having reviewed the stipulated agreement between Plaintiffs and Defendants regarding
4 class certification, the court does hereby ORDER that this cause be maintained as a class
5
action with the class defined as all juveniles currently or in the future incarcerated at Green 6

7 Hill School. This Order does not prejudice any defenses which Defendants may have on the

8 merits.

9

All requirements of Fed. R. Civ. P. 23(a) and (b)(2) are hereby deemed satisfied.

10 DATED this C7[ day of September, 1994.
11

12

Ji fAI /I A/\ X/17^ / / ) _ .y/^^y

13

TheTlonorable Robert J. Bryar

14

United States Di^nct Court Juage

15 16 17
18 19 20 21 22 23 24
25 26 27 28
STIPULATED AGREEMENT & ORDER RE: CLASS CERTIFICATION-
o
3

101 YESLER WAY. SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

Horton v. Williams l-WA-002-008
~wn

 
 Horton v. Williams

•/,k

1
JI-WA-0002-0010

2

THE tííONORABLE ROBERT J. BRYAN

3

^.. /

4

5

6

AT ?¿.·.¯.-ii -• WESTCLHRK U.3 !;;M`;i`;-¯,

BY

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10
JAMES HORTON, etal.,
11
Plaintiffs,
12

13

vs.

14 BOB WILLIAMS, etal.,

No. C94-5428 RJB
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE l2(b)(6)

15

Defendants.

16

17
INTRODUCTION
18

19

Defendants Williams, Soliz and Sidorowicz (hereafter the State defendants) move to

20 dismiss some of plaintiffs' claims on the grounds that plaintiffs have failed to allege a

21 constitutional violation and/or have made conclusory allegations.1 For the reasons below,

22 defendants' Motion to Dismiss should be denied.
23

24

25

26

V Although the State defendants purport to seek dismissal of only a portion of plaintiffs'

claims, it is not clear which claims they exempt from their Motion to Dismiss. The 27 defendants' Motion appears to encompass all of the claims for relief set forth at pp. 10-11 of

28 plaintiffs' First Amended Complaint.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS^ Page 1

1

STANDARD OF REVIEW

2
In considering a motion to dismiss brought under Fed. R. Civ. P. l2(b)(6), the court
3 must accept plaintiffs' allegations as true and construe them in a light most favorable to
4

them. Abrahamson v. Brownstein. 897 F.2d 389, 391 (9th Cir. 1990). Dismissal is
5
6 improper unless it appears beyond doubt that the plaintiffs cannot prove any set of facts in

7 support of their claims. Abrahamson, 897 F.2d at 391.

Q
Plaintiffs need not plead facts with great specificity. "Notice pleading" suffices:

9

The Federal Rules of Civil Procedure do not require a claimant to set out in

10

detail the facts upon which the claim is based. To the contrary, all the rules

require is 'a short and plain statement of the claim' that will give the

11

defendant fair notice of what the plaintiff's claim is and the grounds upon

2

which it rests.

13 Conley v. Gibson, 355 U.S. 41, 47 (1975), citing Fed. R. Civ. P. 8(a)(2). Moreover, in an

injunctive suit alleging liability under 42 U.S.C. §1983 a federal court may not apply a

pleading standard more stringent than the notice pleading required by Fed. R. Civ. P. 8(a).

16

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,

U.S.

17
, 113 S.Ct. 1160, 1163 (1993).2 18

19

While conclusory allegations unsupported by any specific facts are not

sufficient, McCarthy v. Mavo, 827 F.2d 1310, 1316 (9th Cir. 1987), plaintiffs

20

are not required to plead all their evidence in order to avoid dismissal under

Rule 12. Under Rule 8, a claim will be sufficiently plead where it provides

21

22
2/ Citing cases which stand for the proposition that pro se litigants are held to a lower 23 standard than attorneys, defendants incorrectly state that a stricter standard applies to civil
rights cases filed by experienced attorneys. Defendants' Memorandum at 3, citing, Benson 2 4 v. Cadv. 761 F.2d 335, 339 (7th Cir. 1985); Balistretri v. Pacifica Police Dept., 901 F.2d 25 696, 699 (9th Cir. 1990); and Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992). While the
cases cited by defendants may apply a stricter standard to experienced counsel as compared 26 to pro se litigants, they cannot be read to impose a stricter standard on experienced counsel
than on less experienced attorneys, nor can these cases be read to require a "heightened 2 7 pleading" standard for civil rights litigants because the United States Supreme Court has 2 8 expressly rejected such a standard. Leatherman, 113 S.Ct. at 1162 (1993).
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 2

¯¯ "~

`¯"~¯

^¯^¯¯

¯ T

fair notice of the nature of the claim and the facts which underlie the claim.

2

In re Genentech, Inc. Securities Litigation, Fed.Sec.L.Rep. (CCH) ¶ 94,960,

1989 WL 201577 (N.D. Cal. 1989); Wright & Miller, Federal Prac. & P r o c :

3

Civil § 1215, pp. 109-110 (1969 ed.)· Effective notice pleading should

provide the defendant with a basis for assessing the initial strength of the

4

plaintiff's claim, for preserving relevant evidence, for identifying any related

counter- or cross-claims, and for preparing an appropriate answer.

6 Grid Systems Corp. v. Texas Instruments Inc.. 771 F.Supp. 1033, 1037 (N.D. Cal. 1991),

7 cited by defendants at p. 3 of their Memorandum.
O
Under this standard, plaintiffs' First Amended Complaint (hereafter Complaint) 9
certainly provides the State defendants with fair notice of our claims. Indeed, on September
10
6, 1994, defendants filed an Answer to the Complaint which variously admits and denies
1 2 plaintiffs' allegations and includes eight affirmative defenses. As evidenced by this Answer,
13 which does not include denials based on lack of information or the need for a statement of
14 more particularized fact, defendants have shown they are able to frame an appropriate answer

to the Complaint and to identify related affirmative defenses. Moreover, defendants have
16 also stipulated to class certification in this case which indicates that they are able to
17
understand plaintiffs' claims sufficiently to know that they meet the typicality and 18
1 9 commonality requirements of class certification. See, Stipulated Agreement and Order Re:

20 Class Certification, filed on September 27, 1994.3 Thus, plaintiffs' Complaint should not be

2 1 dismissed as it gives defendants fair and adequate notice of plaintiffs' claims.
22

23

3/ ¶`he cases relied upon by defendants in support of their argument that plaintiffs'

complaint should be dismissed on the grounds that our allegations are "conclusory"

(Defendants' Memorandum at pp. 4-7) are not persuasive. First, none of the cases cited by

25 defendants were decided by the Ninth Circuit Court of Appeals and, thus, are not controlling

here. More importantly, however, many of the cases relied upon by defendants involved

26 requests for dismissal that were reviewed under a "heightened pleading" standard which was

rejected by the United States Supreme Court in Leather-man. See, e.g., Lewis v. Wood, 848 2 7 F.2d 649, 653 (5th Cir. 1988), citing Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985),

which was expressly overruled in Leatherman, 113 S.Ct. at 163.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 3

1
2 I.
3
4

ARGUMENT PLAINTIFFS HAVE PLEADED SUFFICIENT FACTS TO SUPPORT THEIR 42 U.S.C. §1983 AND FEDERAL EDUCATION CLAIMS. A. 42 U.S.C. §1983 Claims

A plaintiff bringing an action based on 42 U.S.C. §1983 must show that the conduct 6
being complained of was committed by a person acting under color of state law, and that the 7
conduct deprived the plaintiff of a constitutional right. Balistretri v. Pacifica Police 8
9 Department, 901 F.2d at 699. As shown below, plaintiffs have met the pleading

10 requirements for their Fourteenth Amendment claims brought under 42 U.S.C. §1983.

11

1. Plaintiffs Have Pleaded Sufficient Facts To Show That The State

2

Defendants Violate Plaintiffs' Fourteenth Amendment Rights By Failing

To Provide Reasonably Safe And Sanitary Conditions Of Confinement.

13

Plaintiffs have alleged that the physical plant at Green Hill School (GHS) is in such

14

disrepair, the ventilation, fire safety, and food service systems are so inadequate, and the

10

16 facility is so filthy that plaintiffs are not provided a reasonably safe and sanitary

17 environment, thus violating their rights under the Fourteenth Amendment. Plaintiffs also

1 8 allege that these conditions subject them to an unreasonable risk of harm. Complaint, ¶¶ 16-

19
23. Each of these conditions separately, and considered in light of each other, violate
20 plaintiffs' substantive due process rights.4
21 22
4/ Relying on an Eighth Amendment case dealing with adult prisoners, defendants assert

23 that this court may not consider the "totality of conditions" to assess whether plaintiffs have

pleaded sufficient facts to state a claim regarding physical plant conditions at GHS. 2 4 Defendants' Memorandum at 2, citing Hoptowit v. Rav. 682 F.2d 1237, 1247 (9th Cir.

25 1982). However, plaintiffs' physical plant and conditions claims should be measured against

substantive due process, not Eighth Amendment standards. Gary H. v. Hegstrom, 831 F.2d 26 1430 (9th Cir. 1987). Thus, a "totality of conditions" approach may be appropriate under

this more forgiving analysis. Moreover, even though a "totality of conditions" analysis may

2 7 be improper under the Eighth Amendment, "each condition can be considered in light of

28

(continued...)

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS^ Page 4

1

People who are involuntarily incarcerated in state facilities are constitutionally entitled

2
to be free from unreasonable risks of harm, and they have a right to personal safety.
3
Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982). This includes juveniles confined in
4

state correctional institutions. See, Gary H. v. Hegstrom. 831 F.2d at 1433.

6

The Supreme Court explains the underlying rationale of this principle as follows:

7

[W]hen the State takes a person into its custody and holds him there against

his will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being. ... The rationale for this

principle is simple enough: when the State by affirmative exercise of its power

so restrains an individual's liberty that it renders him unable to care for

10

himself, and at the same time fails to provide for his basic human needs - e.g.,

food, clothing, shelter, medical care, and reasonable safety - it transgresses the

11

substantive limits on state action ...

DeShaney v. Winnebago County Dept. of Social Services. 489 U.S. 189, 199-200 (1989),

13
quoted in Helling v. McKinnev.
14

U.S. , 113 S.Ct. 2475, 2480 (1993), citing

Youngberg, 457 U.S. at 315-316 (1982).
1D

16

Each of the unsafe and unsanitary conditions referred to by plaintiffs in their

17 Complaint and delineated below — taken together and standing alone — create an

1 8 unreasonable risk of harm to plaintiffs confined at GHS. As the United States Supreme
19 Court has recently held, conditions that create unreasonable risks of harm may form the basis
20 of a constitutional challenge to institutional conditions of confinement. Helling v.
21 McKinney, 113 S.Ct. at 2481 (deliberate exposure to second-hand smoke may violate the

23

24

25

26

4(... continued)

other conditions." Hoptowit v. Spellman. (Hoptowit II) 753 F.2d 779, 783 (9th Cir. 1995), 2 7 citing Hoptowit v. Ray, (Hoptowit I), 682 F.2d at 1256. Nevertheless, plaintiffs state a

separate Fourteenth Amendment claim with respect to each condition of confinement.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-. Page 5

Eighth Amendment if it poses an unreasonable risk of harm).5 Thus, contrary to defendants'
2 assertions in their Motion to Dismiss, plaintiffs have adequately stated a claim that conditions
3 at GHS violate plaintiffs' constitutional rights.
4
a. Physical Plant Conditions.

6

Plaintiffs make numerous factual assertions about the dilapidated conditions of many

7 of the buildings at GHS which give rise to a constitutional claim. Specifically, plaintiffs
8 allege that buildings at GHS are in an extreme state of disrepair (Complaint, ¶I7); are unsafe 9
and dilapidated (Complaint, ¶I8); are so overcrowded as to impermissibly and unsafely 10
burden recreational, educational, health and food services (Complaint, ¶I9), and are
11
dangerous due to significant structural deficiencies (Complaint, ¶2O). Importantly, plaintiffs

13 allege these conditions present unreasonable risks of harm to juveniles at GHS. Complaint,

¶I7, 19, 21, and 22. Thus, plaintiffs have sufficiently alleged facts to show that certain

physical plant conditions at GHS are unsafe in violation of plaintiffs' right to a safe facility. 16
See, Youngberg v. Romeo, 457 U.S. at 316 (involuntarily confined mental patients have an 17
"historic liberty interest" to safe conditions of confinement protected by the Due Process 18
clause).

20

b. Sanitation

21

Plaintiffs make several factual allegations about the lack of sanitation at GHS.

22 Specifically, plaintiffs allege that: (1) the residential cottages are "unclean and unsanitary"
23 24

25

5/ Throughout their Motion to Dismiss defendants protest that plaintiffs have not stated a

claim regarding physical plant conditions because they have not alleged actual harm. See,

26 e.g.. Defendants' Motion at pp. 2 and 16. However, under Helling, actual harm is not an
element of plaintiffs' claims concerning the environmental conditions at GHS. Plaintiffs need 2 7 only allege that the conditions under defendants' control subject them to an unreasonable risk
2 8 of harm.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 6

1 (Complaint, ¶I8); (2) "the gym has standing water on the floor" (Complaint, ¶2l), and (3)
2 food service facilities at GHS are unsanitary (Complaint, ¶22). These allegations sufficiently
3 state a constitutional claim since people who are incarcerated are constitutionally entitled to
4
sanitary conditions of confinement. Hoptowit v. Ray, 682 F.2d at 1256 (the Eighth
0
6 Amendment entitles adult prisoners to sanitary conditions), on appeal after remand, Hoptowit

7 v. Spellman, 753 F. 2d at 783-84. See a¡so, Gary H. v. Hegstrom, 831 F.2d at 1433
Q
(sanitary conditions in a juvenile facility challenged on Fourteenth Amendment grounds). 9
Similarly, unsanitary food preparation areas have been held unconstitutional. Leeds v. 10
Watson, 630 F.2d 674 (9th Cir. 1980); Ramos v. Lamm. 639 F.2d 559 (10th Cir. 1980),
11
12 çert. denied, 450 U.S. 1041 (1981); Jones v. Diamond. 636 F.2d 1364 (5th Cir. 1981).

13

c. Fire Safety

14

Plaintiffs allege that defendants have failed to implement appropriate fire safety

measures at GHS placing juveniles at significant risk of serious injury or death. Complaint, 16
¶23. Indeed, defendants admit in their Answer to plaintiffs' Complaint that there are no fire
17
sprinkler systems at GHS. Defendants' Answer at 3. Courts analyzing the constitutionality 18
1 9 of conditions in adult prisons and jails have recognized that such deficient firefighting

20 measures may constitute a constitutional violation. Gates v. Collier. 501 F.2d 1291 (5th Cir.
2 1 1974); Hoptowit v. Spellman. 753 F.2d at 783-4; Leeds v. Watson. 630 F.2d at 675-6. 22
d. Inadequate Heating And Ventilation 23
The denial of adequate heating and ventilation to people in institutions is 24
unconstitutional. Hoptowit v. Spellman. 753 F.2d at 784; Ramos v. Lamm, 639 F.2d at 25 2 6 569. Plaintiffs here have pleaded facts sufficient to show that the State defendants have

27 violated this constitutional guarantee. Complaint, ¶I8. Specifically, plaintiffs allege that the
28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 7

' ¯~

T ¯¯¯

living units at GHS are inadequately heated and cooled, and improperly ventilated. They

2 further allege that these conditions subject them to an unreasonable risk of harm. Complaint,
3 ¶¶ 15, 17.
4

2. Plaintiffs Have Pleaded Sufficient Facts To Show That The State

Defendants' Disciplinary Practices Violate Plaintiffs' Rights Guaranteed

6

By The Fourteenth Amendment.

7

Juveniles confined in state correctional facilities have a liberty interest in freedom

from restraint and arbitrary punishment that is protected by the due process clause of the
9 Fourteenth Amendment of the United States Constitution. H.C. by Hewett v. Jarrard, 786
10 F.2d 1080 (11th Cir. 1986); ÇJ\ Youngberg v. Romeo. 457 U.S. 307 (1982); Bell v.
11
12 Wolfish. 441 U.S. 520 (1979); Wolff v. McDonnell. 418 U.S. 539 (1974). This includes

13 the right to be free from bodily and chemical restraint, as well as the right to be free from

1 4 arbitrary confinement in isolation. Youngberg; Wolff. See also, D.B. v. Tewksbury. 545

1 5 F.Supp. 896 (D. Or. 1982).
16 Plaintiffs make numerous allegations concerning defendants' disciplinary practices at
17
GHS. Complaint, ¶¶ 24-43. Plaintiffs' allegations generally concern the State defendants' 18

1 9 use of the chemical agent oleoresin capsicum on youth to punish them for violating

20 institutional rules or to coerce their compliance with staff directives (Complaint, ¶¶ 24-34);

2 1 defendants' use of handcuffs and shackles for disciplinary reasons on youth who are not out-

22 of-control (Complaint ¶¶ 35-38), and defendants' use of disciplinary cottages to punish youth
23 (Complaint, ¶¶ 39-43).
24 a. Physical and Chemical Restraint
25

26

The United States Supreme Court held in Youngberg that '"liberty from bodily

27 restraint always has been recognized as the core of the liberty protected by the Due Process
28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS^ Page 8

Clause from arbitrary governmental action'" Youngberg v. Romeo, 457 U.S. at 317, quoting
2 Greenholz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (l979)(Powell, J., concurring in part
3 and dissenting in part). Juveniles therefore have a due process right to be free from physical
4 o restraint and it is also unconstitutional for juvenile corrections officials to use unnecessary
6 force to punish youth.

7

Courts have consistently found due process violations in the use of corporal

Q
punishment to punish juveniles in institutions. Nelson v. Heyne, 355 F.Supp. 451 (N.D.

Ind. 1972), affd, 491 F.2d 352 (7th Cir. 1973), çert. denied, 417 U.S. 976 (1974) (use of
10 thick board to punish); Morales v. Turman, 383 F.Supp. 53 (E.D. Tex. 1974), rev'd on
11

12 other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded. 430 U.S. 322, remanded

13 on rehearing, 562 F.2d 993 (5th Cir. 1977) (physical beatings and use of tear gas); Santana

14 v. Collazo, 533 F.Supp. 966 (D.P.R. 1982), af£d hi part, 714 F.2d 1172 (1st Cir. 1983),
1 5 çert. denied. 466 U.S. 974 (1978) (physical beatings); Milonas v. Williams. 691 F.2d 931 16
(10th Cir. 1982), çert. denied. 460 U.S. 1069 (1983) (grabbing youth by the hair and
17
flinging them against the wall), and H.C. v. Jarrard. 786 F.2d 1080 (11th Cir. 1986)
18
1Q (superintendent shoved juvenile detainees).6

20

At GHS, plaintiffs allege that defendants spray youth with a chemical agent - aerosol

oleoresin capsicum - and use physical restraints to punish youth in a manner that causes
22
unnecessary pain and injury. At ¶¶ 24-34 of their Complaint, plaintiffs allege that the
23

24

6/ The United States Supreme Court has also held that even in the absence of serious

25 injury the use of excessive force on prisoners may constitute cruel and unusual punishment

under the Eighth Amendment. Hudson v. McMillan.

U.S. , 112 S.Ct. 995 (1992),

26 citing Whitlev v. Albers, 475 U.S. 312 (1986). While the Eighth Amendment standard in

these excessive force cases do not govern plaintiffs' corporal punishment claim brought under 2 7 the Fourteenth Amendment, these cases may be relied upon for the proposition that plaintiffs

need not plead facts showing that defendants' disciplinary practices result in serious injury.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-. Page 9

chemical spray used to punish juveniles at GHS causes loss of upper body control, paralysis 2
of the larynx, nausea, and coughing. Plaintiffs further allege that defendants are responsible 3
for developing the policies and supervising the practices that result in such punitive and
4
5 painful uses of restraint. Complaint, ¶¶ 8, 9, 10, 24-43. The use of restraint as alleged by
6 plaintiffs thus constitutes impermissible corporal punishment and the facts alleged by
7 plaintiffs state a claim under the authority cited above.7

b. Disciplinary Cottages 9
Plaintiffs allege that defendants punish youth at GHS by confining them for indefinite 10
periods of time without due process in disciplinary cottages where education and treatment is
12 denied.8 Complaint, ¶¶ 39-43. Youth who are placed in these restrictive, punitive cells are

13 subject to increased terms of confinement. Complaint, ¶ 42. Release from disciplinary

14 confinement is arbitrarily determined. Complaint, ¶¶ 41, 43.

15

In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States Supreme Court

16
established basic standards of due process for adult prisoners who face placement in

17
segregation and loss of good time credits. The Court held that prisoners facing punishment
18

or discipline must be given a hearing before an impartial hearing examiner, 24 hour notice in

20 advance of the hearing, must be allowed to call witnesses and present evidence, and be given
2 1 a written statement by the fact-finders as to the evidence relied on at the hearing and reasons
22
7/ Because juvenile delinquent offenders in Washington have not been convicted of a 2 4 crime, whether defendants' restraint practices are unconstitutional turns on whether or not the
restraint is to punish, i.e., "reasonably related to a legitimate governmental purpose" and not 25 excessive. Youngberg, 457 U.S. at 321. Plaintiffs have adequately pleaded facts that show
that defendants' restraint practices are punitive and excessive. Complaint, ¶¶ 25-38.
26
8/ "Behavioral cottages", called "intensive management units" by defendants (Defendants' Answer at 5), are isolation or segregation units used to punish youth for 23 violating institutional rules. Complaint, ¶¶ 39-43.
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-> Page 10

1 for any disciplinary action taken. Courts have similarly held that juveniles are entitled to
2 procedural protections prior to being isolated for punitive reasons. H.C. by Hewett v.
3 Jarrard, 786 F.2d 1080 (11th Cir. 1986) (damages awarded for the imposition of isolation
4
without procedural due process). Under the reasoning of these cases, the facts plaintiffs have

6 alleged sufficiently state a claim.

7

3. Plaintiffs Have Pleaded Sufficient Facts To Show That the State

Defendants Violate Plaintiffs' Fourteenth Amendment Rights By Failing

To Provide Adequate Treatment And Rehabilitative Services In The

9

Least Restrictive Setting.

10

As defendants concede, under the Juvenile Justice Act of 1977, RCW 13.04 et seq.,

11 juvenile offenders in Washington are not convicted of "crimes". Defendants' Memorandum

12

at 12. Commitment to a juvenile institution, like GHS, is primarily for rehabilitation

13 purposes:

14

Commitment of a juvenile to an institution is still limited to juvenile facilities

15

established pursuant to RCW 72.05 and 72.16 through 72.20. RCW

16

13.40.020(9). Looking at those referenced statutes we find again emphasis

upon the interest, welfare and rehabilitation of the individual child. For

17

example, RCW 72.05.010 refers to providing certain facilities and services

which best serve the welfare of the child and society. RCW 72.0.130 refers to

programs for treatment, guidance and rehabilitation. Likewise, RCW

72.19.060 establishes a policy of reformation, training and rehabilitation.

20 State v. Lawley, 91 Wn.2d 654, 657-658, 591 P.2d 772 (1979). Thus, the Washington

21 Supreme Court has repeatedly held rehabilitation, not punishment, is the paramount goal of

2 2 the juvenile delinquency system. Id; State v. Schaaf. 109 Wn.2d 1, 743 P.2d 240 (1987),
23 State v. Rice, 948 Wn.2d 384, 655 P.2d 1145 (1982).9 Indeed, it is because of the more
24

25

V In State v. Rice, 98 Wn.2d at 392-93 the Washington Supreme Court compared

26 relevant provisions of the Juvenile Justice Act and the Sentencing Reform Act of 1981

governing adult crimes to show the difference in the purposes of the adult and juvenile 2 7 systems. Based on this statutory comparison, the Rice court justified the incarceration of

28

(continued...)

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS. Page 11

benevolent rehabilitative purpose of the juvenile justice system that some of the usual
2 procedures required in an adult prosecution may be relaxed without offending the
3 constitution. State v. Schaaf, 109 Wn.2d at 13 (juveniles in Washington do not have a right
4
to a jury trial).

6

Over twenty-five years ago the United States Supreme Court set forth why such a

7 different system of justice - one which emphasizes rehabilitation and treatment - evolved for

Q
juvenile offenders:

9 The early reformers were appalled by adult procedures and penalties, and by

10

the fact that children could be given long prison sentences and mixed in jails

with hardened criminals. They were profoundly convinced that society's duty

11

to the child could not be confined by the concept of justice alone. They

2

believed that society's role was not to ascertain whether the child was "guilty"

or "innocent," but "What is he, how has he become what he is, and what had

13

best be done in his interest and in the interest of the state to save him from a

downward career." The child - essentially good, as they saw it - was to be

¯`4

made "to feel that he is the object of [the state's] care and solicitude," not that

he was under arrest or on trial. The rules of criminal procedure were

therefore altogether inapplicable. The apparent rigidities, technicalities, and

ig

harshness which they observed in both substantive and procedural criminal law

were therefore to be discarded. The idea of crime and punishment was to be

17

abandoned. The child was to be "treated" and "rehabilitated" and the

procedures, from apprehension through institutionalization, were to be

18

"clinical" rather than punitive.

19
In re Gault, 387 U.S. 1, 15-16 (1967) (emphasis added)(footnotes omitted).
20 Thus, as our state and federal juvenile justice jurisprudence has evolved, courts have
21

approved a different system of justice for juveniles, permitting the denial of constitutional

23 rights afforded adults precisely on the ground that juveniles will not be imprisoned in

24
25 9(... continued)
26 juveniles for longer periods than adults committing the same offense on the ground that one of the important purposes of the juvenile system is rehabilitation or, in the language of RCW
2 7 13.40.010(2), "responding to the needs of the offender," whereas the adult system "...does 2 8 not place such an importance on rehabilitation." 98 Wn.2d at 392-393.
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 12

punitive adult prisons but rather in rehabilitative facilities for juveniles. This analysis has 2
been described as the quid pro quo theory of the juvenile justice system: basic due process 3
protections - such as the right to be tried by a jury -– are dispensed with in exchange for 4
5 treatment in a juvenile facility. See, e.g., Morgan v. Sproat, 432 F.Supp. 1130, 1136 (S.D.
6 Miss. 1977); Inmates of Boys' Training School v. Affleck. 344 F.Supp 1354, 1364 (D.R.I.
7 1972) ("Thus, the constitutional validity of present procedural safeguards in juvenile g
adjudications, which do not embrace all of the rigorous safeguards of criminal court 9
adjudications, appears to rest on the adherence of the juvenile system to rehabilitation rather 10
than penal goals ... Rehabilitation ... is the interest which the State has defined as being the
12 purpose of confinement of juveniles ... Thus due process in the juvenile justice system
13 requires that the post-adjudicative stage of institutionalization further this goal of
14 rehabilitation.")

Since the juvenile system in Washington, like those in other states, is premised
16 primarily upon the right to treatment, and because juveniles sacrifice significant constitutional
17
rights in exchange for the promise of treatment, juvenile delinquents in this state have a 18

1 9 liberty interest in treatment protected by the due process clause of the Fourteenth

20 Amendment. State v. S.H., 75 Wn. App. 1, 19 P.2d

(1994); see also Nelson v.

21 Hevne. 491 F.2d at 358-360. ££., J.W. v. City of Tacoma, Washington. 720 F.2d 1126

22

(9th Cir. 1983) (former mental patients have due process right to rehabilitative services),

23

relying on Youngberg v. Romeo, supra.

24

25

Defendants are wrong in their assertion that the Ninth Circuit in Gary H. v. Hegstrom

26 determined that juveniles do not have a constitutionally protected right to treatment.

27 Defendants' Memorandum at 14. Gary H. simply does not so hold. The only holding in

28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-. Page 13

¯¯

"

"` ¯¯ "" "

¯

~~~

1

Gary H. relevant to the right to treatment question is the Court's rejection of the notion that
2 "any treatment falling short of standards adopted by various professional associations" falls
3 below what is constitutionally required. 831 F.2d at 1432. Contrary to defendants' reading
4
of this case, the implication of the court's holding is that juveniles have a constitutionally

6 based right to treatment, even though the scope of the right may be somewhat limited.

7

Moreover, although the Ninth Circuit has not addressed the question, several lower

courts have held that juveniles' right to treatment encompasses the right to be treated in the 9
least restrictive setting. Johnson v. Solomon, 484 F. Supp. 278 (D. Md. 1979); Gary W. v. 10
Louisiana. 437 F. Supp. 1209 (E.D. La. 1976); Morales v. Turman. 383 F. Supp. 53 (E.D.

12 Tex. 1974, rev'd on other grounds and remanded, 562 F.2d 993 (5th Cir. 1977); Inmates of 13 Boys Training School v. Affleck, 346 F. Supp. 1369 (D.R.I. 1972). This right has its

14 source in the principle that:

Even though the governmental purpose be legitimate and substantial, that

16

purpose cannot be pursued by means that broadly stifle fundamental personal

liberties when the end can be more narrowly achieved. The breadth of

17

legislative abridgment must be viewed in the light of less drastic means for

achieving the same basic purpose. [Footnotes omitted]

18

1 9 Shelton v. Tucker, 364 U.S. 479, 488 (1960). Thus, when the State interferes with a

20 person's constitutional rights, it must do so in the least burdensome or intrusive manner

21 possible. But see, Society For Good Will To Retarded Children Inc. v. Cuomo, 737 F.2d

2 2 1239, 1248 (2d Cir. 1984); Phillips v. Thompson. 715 F.2d 365, 368 (7th Cir. 1983); S.H.
23 v. Edwards. 860 F.2d 1045, 1051 (11th Cir. 1988); Jackson v. Fort Stanton Hosp. &
24 Training School. 964 F.2d 980, 992 (10th Cir. 1992) (state may consider cost limitations and
25
2ß availability of resources in meeting its obligation to provide treatment).

27

Plaintiffs here have pleaded facts that show that defendants fail to provide youth at

28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-* Page 14

GHS with adequate treatment and rehabilitative services in the least restrictive setting.
2 Complaint, ¶¶ 49-53 and ¶55. Plaintiffs specifically allege that defendants fail to adequately
3 evaluate plaintiffs' treatment needs (¶49); fail to develop individual treatment plans (¶5O);
4
fail to provide adequate treatment (¶5l); fail to provide mental health counseling (¶52); fail

6 to provide release transition services (¶53); and fail to provide treatment services in the least

7 restrictive environment (¶55). We further allege that plaintiffs James Barnhart and Jerome

8 Payton have been denied adequate rehabilitative services. Complaint, ¶6. Plaintiffs,

9

therefore, state a claim that defendants, acting under color of state law, have deprived them
10 of their constitutionally protected right to rehabilitation in the least restrictive setting.
11

4. Plaintiffs Have Pleaded Sufficient Facts That The State Defendants Fail

To Adequately Train And Supervise Staff At GHS To Ensure The

13

Safety Of Residents In Violation Of The Fourteenth Amendment To

The United States Constitution.

14

Plaintiffs allege that they are injured by the inadequate training and supervision given

16 to staff at GHS. Complaint, ¶56. Plaintiffs further allege that juveniles at GHS are not
17 adequately protected from harm in the state's custody. Complaint, p. 11. This is a
1 8 constitutionally cognizable claim. 19
In Youneberg v. Romeo. 457 U.S. 307 (1982), the U.S. Supreme Court held that
20
"minimally adequate or reasonable training to ensure safety and freedom from restraint" is 21
constitutionally required. Youngberg, 457 U.S. at 319. And, in City of Canton v. Harris,

23 489 U.S. 381 (1989), the Supreme Court held that inadequate training on the use of force

24 can constitute deliberate indifference for purposes of stating an Eighth Amendment claim.

2 5 See a¡so Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), çert. denied.

U.S.

26

, 112 S.Ct. 275 (1991). The facts plaintiffs allege state a claim under the rationale of
27 these cases.
28
PLAINTIFFS' RESPONSE TO DEFENDANTS'

MOTION TO PARTIALLY DISMISS-.

Page 15

1

5. Plaintiffs Have Pleaded Sufficient Facts To Show That The State

2

Defendants Violate Plaintiffs' Right To Health Care Guaranteed By The

Fourteenth Amendment.

3

Plaintiffs make several allegations concerning the inadequacy of health care, including
4

medical, dental and mental health services, at GHS. Plaintiffs allege that plaintiffs Barnhart

6 and Payton have been denied health care (Complaint ¶6) and that the overcrowding at GHS

7 significantly burdens the health care system at GHS, compromising the personal safety of

8 youth there. (Complaint, ¶¶ 13, 16, and 19).10 Plaintiffs further assert that defendants fail 9
to adequately evaluate plaintiffs' health care needs (Complaint, ¶49), and that defendants fail 10
to provide appropriate mental health services to youth (Complaint, ¶52). Finally, we allege

that defendants chemically restrain youth without providing necessary medical and mental

13 health care (Complaint, ¶¶32, 33). Plaintiffs do not, as defendants assert, make only one

1 4 factual allegation regarding health care services at GHS. Defendants' Memorandum at 13.

As defendants acknowledge, the denial of appropriate health care services to 16
incarcerated juveniles may create unsafe living conditions which give rise to a due process 17
claim under Youngberg v. Romeo. 457 U.S. 307 (1982). Defendants' Memorandum at 13. 18
1Q Under a due process analysis, plaintiffs have pleaded facts which, taken as true, are enough

20 to show that the health care system at GHS violates plaintiffs' due process rights.

21

Under the Eighth Amendment, the United States Supreme Court has held that it is

22
constitutionally impermissible for prison officials to be deliberately indifferent to the serious
23
medical needs of prisoners. Estelle v. Gamble. 429 U.S. 97, 104-06 (1976). Here, again,
24
however, an Eighth Amendment analysis does not control since this case involves juveniles 25
26

27

10/ There are almost 200 youth confined in the facility with a capacity of 80. Complaint,

2 8 ¶¶ 13 and 16.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS. Page 16

who have not been convicted of criminal offense; rather, a more protective due process
2 standard applies.11 Gary H. v. Hegstrom. 831 F.2d at 1432. Nevertheless, Eighth
3 Amendment standards may inform the court's due process analysis. Bell v. Wolfish, 441
4
U.S. at 1877. Even under the Eighth Amendment, plaintiffs have pleaded facts sufficient to
0
6 show deliberate indifference.

7

Plaintiffs' allegation that overcrowding at GHS so burdens the health care system as

to render the health care system unsafe (Complaint, ¶I9) demonstrates deliberate indifference

9
even under an Eighth Amendment analysis. Courts have found that prison officials
10
demonstrate deliberate indifference by permitting systemic deficiencies in health care:
11

12

. . .[T]he Constitution does not stand in the way of a broader attack on the

adequacy of an institute's entire health care system which threatens the well-

13

being of many individuals. And while a single instance of medical care denied

or delayed, viewed in isolation, may appear to be the product of mere

negligence, repeated examples of such treatment bespeak a deliberate

indifference by prison authorities to the agony engendered by haphazard and

ill-conceived procedures. Indeed, it is well-settled in this circuit that 'a series

16

of incidents closely related in time . . . may disclose a pattern of conduct

amounting to deliberate indifference to the medical needs of prisoners.' When

17

systematic deficiencies in staffing, facilities or procedures make unnecessary

suffering inevitable, a court will not hesitate to use its injunctive powers.
18

1 9 Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. l977)(citations omitted). These are exactly the

20 kinds of systemic deficiencies that plaintiffs here allege exist at GHS. Thus, plaintiffs have

2 1 stated a claim. 22

23

24

25

26

u / Plaintiffs' medical care claim as pleaded under the Fourteenth Amendment does not,

therefore, require facts showing deliberate indifference or a subjective state of mind element,

2 7 as required under the Eighth Amendment. See, Estelle v. Gamble. 429 U.S. 97 (1976), and

2 8 Wilson v. Seiter. 501 U.S. 294 (1991).

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-. Page 17

1

6. Plaintiffs Have Pleaded Sufficient Facts To Show That The State

2

Defendants Violate The Constitutional Rights Of Spanish-Speaking

Youth By Failing To Provide Language Interpreters.

3

Plaintiffs allege that defendants violate due process by failing to provide interpretive
4

o services to Spanish-speaking juveniles who do not understand English, and that one of the

6 named plaintiffs does not comprehend the rules, policies and services at GHS due to the lack

7 of Spanish-speaking interpreters there. Complaint, ¶¶ 54, 7.
o
As explained above, the state defendants have a constitutional obligation to ensure that 9
those in their custody are afforded necessary health care and are provided a reasonably safe 10
environment. See, Sections I.A.I, and I.A.4. above. They further have an obligation to
11
provide youth with notice of institutional rules and the potential disciplinary consequences of

13 violating those rules. Wolff v. McDonnell, 418 at 539. It is axiomatic that defendants 14 cannot fulfill these constitutional obligations if they cannot speak to or understand the

juveniles in their charge. Juveniles who do not speak English and who are not provided with
16 language interpreters cannot be adequately informed of institutional rules, cannot understand
17 or talk to health care providers, and are unable to participate meaningfully in the educational
18
1 9 and other programs available at GHS. Thus, defendants fail to satisfy their constitutional

20 obligations to these non-English speaking residents.

21

7. Plaintiffs Have Pleaded Sufficient Facts To Show That The State

Defendants Violate The Fourteenth Amendment By Excluding Youth

2

From The Education Program At GHS

23 Plaintiffs allege that defendants exclude juveniles from the education program at GHS
24
arbitrarily and for violations of institutional rules without affording them any due process 25

2 6 (Complaint ¶ 48); that residents are not afforded an equivalent education to that given to non-

27 institutionalized youth (Complaint ¶ 47), and that these practices violate the due process and
28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-Page 18

equal protection clauses of the United States Constitution (Complaint, p. 11, Third Claim).
2 In Inmates of Bovs Training School v. Affleck. 346 F. Supp. 1354 (D.R.I. 1972), the
3 Rhode Island District Court determined that it was illegal to provide dorm-based instruction
4
to juveniles held in a disciplinary unit for behavioral reasons that was not equivalent to that

6 provided to juveniles in the regular population. Under this reasoning, plaintiffs state a 7 cognizable constitutional claim with respect to their education claims.12

B. Plaintiffs' Federal Education Claims 9
Plaintiffs claim the educational services provided to youth at GHS violate the rights of 10
plaintiffs guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et
seq. As shown below, plaintiffs have met the pleading requirements for these claims.

13

The Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq.,

14 mandates that children with disabilities shall be provided an appropriate education which emphasizes special education and related services.13 20 U.S.C. §l4OO(c). This general
16

17

18

12/ Under Washington law, school age children have a right to education while detained

in detention facilities. Tommy P. v. Board of Commissioners. 97 Wn.2d 385, 386, 645

19 P.2d (1982). This right derives from RCW Tiles 13 (the Juvenile Justice Act) and RCW

28A, as well as Article 9, Section 1 of the Washington State Constitution. Under Article 9,

Section 1 of the Washington Constitution, the duty to provide an education to all children in

21 Washington state is mandatory and paramount. Seattle School District v. State, 90 Wn.2d

476, 499, 585 P.2d 71 (1978).

22

While plaintiffs concede that Pennhurst v. State School & Hospital v. Halderman, 465

U.S. 89 (1984), cited by defendants at p. 19 of their Memorandum, may preclude this Court 2 3 from deciding plaintiffs' education claims brought under state law, state law may help to

2 4 inform plaintiffs' equal protection claim in that it establishes the minimum level of educational services provided to non-institutionalized youth in the State which plaintiffs allege

25 are denied to youth at GHS. See, Cassidv v. Adams, 872 F.2d 729 (6th Cir. 1989)

(Eleventh Amendment does not bar resolution of state law questions that are prerequisites to

2 6 determinations of Federal and constitutional questions).

2

13/ The IDEA applies to juveniles incarcerated in state correctional facilities. See,

2 8 Green v. Johnson. 513 F. Supp. 965 (D.Ma.)

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISSPage 19

mandate includes the specific requirement that children with disabilities will be identified and 2
evaluated for special educational needs and provided individualized educational plans (IEPs) 3
appropriate to each child's needs. §§ 1401(19), l4l4(a)(5). The IDEA also requires the 4
participation of parents or surrogate parents in the development of IEPs. §§ l4OO(c),
6 1401(19), 1412(7), l4l5(b)(l)(A),(C),(D),(E) and l4l5(b)(2). See also, Honig v. Doe. 484
7 U.S. 305, 309-312 (1988).
In this case, plaintiffs allege that one of the named plaintiffs, Jerome Payton, is 9
eligible to receive special education services and has been denied them by defendants. 10
Complaint ¶ 6. Plaintiffs further allege that defendants fail to evaluate youth for eligibility
11
1 2 for special education and related services (Complaint ¶ 44), that youth are not afforded
13 individualized education plans, and that there is not a process by which juveniles and their
¯>4 parents or surrogate parents may become involved in the IEP process (Complaint ¶¶ 45, 46).
These facts state a claim under the IDEA. 16
II. CONCLUSION 17
Plaintiffs have alleged sufficient facts in support of their claims. That the State 18 1 9 defendants have filed an Answer which includes their affirmative defenses and does not assert
20 a need for a more particularized statement of the facts, and that defendants have stipulated to
21 class certification, shows that Plaintiffs' Complaint is sufficiently specific to give fair notice 22
23
24
25
26
27
28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS-. Page 20

of plaintiffs' claims. Defendant's Motion to Dismiss therefore should be denied.
2 Respectfully submitted this 24th day of October, 1994.
3

4

EVERGREEN LEGAL SERVICES

Institutional Legal Services Project

101 Yesler Way, Suite 301

6

Seattle, WA 98104

J2O6)^464-O838

8

PATRICIA/J/ ARTHUR, WSBÀ`TO769

9

ROBERT K. STALKER, JR., WSBA #13650

10

11

NATIONAL CENTER FOR YOUTH LAW

12

114 Sansome Street, Suite 900

San Francisco, CA 94117

13

(415) 543-3307

14

10

DAVID LAMBERT

` v ;/

16

17

18

19

20

21

22

23

24

25

26

27

28
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO PARTIALLY DISMISS- . Page 21

 
 Horton v. Williams

THE HONORABLE ROBERT J. BRYAN

JI-WA-0002-0013

3

-t·¯¡Ltü

.ENTERED

4

-LODGCD

-RECEIVED

5

OCT 2 7 1994

6

CLERK U.S. D!STRICl COURT

WESTERN DISTRICT OF WASHINGTON

BY_—

DEPUTY

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON AT TACOMA

10

JAMES HORTON, et al., on behalf of )

11 themselves and all others similarly

)

situated,
12

) No. C94-5428 RJB )

13

Plaintiffs,

) MOTION FOR PRELIMINARY ) INJUNCTION RE: PEPPER SPRAY

14

vs.

)

)

15 BOB WILLIAMS, et al.,

) ORAL ARGUMENT REQUESTED

16

)

Defendants.

)

17

-)

18

19
This motion is brought pursuant to Fed. R. Civ. P. 65(a). Plaintiffs seek preliminary
20
relief to protect the juveniles incarcerated at Green Hill School from the punitive use of
21
aerosol oleoresin capsicum. We ask this court to preliminarily enjoin the harmful and
22
23 punitive use of this chemical agent on youth by the state defendants.

24

Plaintiffs seek this injunction because juveniles at Green Hill School have been, and

25 will continue to be, harmed by the state defendants' use of aerosol restraint if action is not
26 taken by this court.
27
This motion is supported by the accompanying memorandum, declarations and
28

MOTION FOR PRELIMINARY INJUNCTIONPage 1

T¯

1

exhibits filed herewith.
2

3

Respectfully submitted this ü v day of October, 1994.

4

5

EVERGREEN LEGAL SERVICES

Institutional Legal Services Project

101 Yesler Way, Suite 301

7

Seattle, WA 98104

(2Q6)464-0838

.. . ÆC/A j\ÍÂXÅÀÅA

·

9

PATRICIA J./ARTHUR, WSBA #13769

10

ROBERT A. -STALKER, JR., WSBA #13650

11

NATIONAL CENTER FOR YOUTH LAW

114 Sansome Street, Suite 900

12

San Francisco, CA 94117

(415) 543-3307

DAVID LAMBERT
15
16 17 18 19 20 21 22 23 24 25 26 27 28
MOTION FOR PRELIMINARY INJUNCTIONPage 2
¯r

 
 • H i l l Horton v. Williams

•\r sv

JI-WA-0002-0014

1

THE HONORABLE ROBERT J. BRYAN

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

11 JAMES HORTON, et al., on behalf of

themselves and all others similarly

)

situated,

)

No. C94-5428 RJB

13

)

Plaintiffs..

)

DECLARATION OF

14

)

PAUL DEMURO

15

16 BOB WILLIAMS, etal.,

)

)

17

Defendants.

)

ia

__

)

19

I. My name is Paul DeMuro. My address is 82 Essex Avenue, Montclair. New

Jersey 07042. 1 have been asked by attorneys for the plaintiffs in this case to comment on
21 the use of pepper spray at Green Hill School in Chehalis, Washington.
22 2. My entire professional career, spanning over twenty-five years, has pertained
23
to troubled youth. 1 have been superintendent of a large, secure urban detention center, as

25 well as superintendent of a large secure institution for delinquent youth. I have served as

Assistant Commissioner of the Massachusetts Department of Youtli Services, as well as

j Commissioner of Children and Youth in Pennsylvania. In the latter capacity, I supervised

2 the superintendents of the state's secure institutions for delinquent youth, and I was
o
responsible for developing regulations for the couuty-run, secure detention centers. 4
3. I am knowledgeable about contemporary juvenile justice standards and 5
practices in a number of other jurisdictions as well. As the former federal court monitor in
6
7 Florida and the present Federal Court monitor in Oklahoma. I oversee the programs,

8 including matters pertaining to discipline and control, in the secure institutions for delinquent
9
youth in those states. As a private consultant, 1 routinely evaluate juvenile justice systems 10
for a variety of jurisdictions. In the last two years, for example, I have reviewed secure 11
institutional programs for youth in Iowa, Missouri, and New Jersey. My resume, which sets

13 out more fully my education and employment history, is attached as Exhibit 1.

14

4. Attorneys for the plaintiffs in this case asked me to view six videotapes

containing 25 separate incidents in which staff at Green Hill School sprayed youth with
16 pepper spray. These incidents took place from 1/17/91 to 12/25/93 and involved 12
17 individual youth. (Two youth [JP and TE] were sprayed 5 separate times, one youth [LM]
18
19 was sprayed 3 limes.) They also provided me with written documentation (incident reports

20 and scripts) prepared by Green Hill staff contemporaneously with the incidents, a
21 transcription of portions of the videotapes, and the policies governing the use of pepper spray
22 at Green Hill from October, 1991 to the present.
23 5. After viewing the videotapes, accompanying documentation, and policies, it

25 is my opinion mat staff at Green Hill use pepper spray to punish youth. This practice is not

26

2

j only dangerous, it promotes a culture of violence within the institution which "models"

2 aggressi ve behavior for youths and reinforces their feelings of anger, alienation, and hostility.

My report, which contains a more complete description of ray observations and conclusions,
4 is attached as Exhibit 2.
5 6. It has been my experience that well-run and well-managed juvenile
6
y institutions need not rely upon use of chemical agents to maintain order. For example, I know

8 from my experience as a court monitor in Florida and Oklahoma that juvenile institutions in
9 these states are prohibited both by state regulations and the current federal consent decrees
10 from using pepper spray or other chemical agents. Similarly, juvenile institutions in Iowa,
11
Missouri and New Jersey do not use pepper spray. The fact that security staff at Green Hill

23 have requested permission to use pepper spray hundreds of times and have actually used it

14 over 110 times since October, 1990 is a strong indication that Green Hill School is not a

well-run and properly managed institution in which staff are properly trained and supervised.
16 7. It has been my experience that well-run institutions which provide adequate
17 staff training as well as appropriate education, recreation, social, and mental health services,
18
19 rarely need to resort to the use of force to maintain order. It has also been my experience

20 that institutions which rely upon extended confinement in disciplinary cottages or behavioral

21

management units, and upon locked room confinement and early bed times to maintain order

22

within these units, experience a greater frequency of incidents requiring the use of force.

23

24

8. It is my understanding that Green Hill School maintains a behavioral

25 management or disciplinary unit containing 32 cells and that youths are confined to this unit

26

3

T¯

for periods ranging from a few days to several months. It is also my understanding that staff

2 within these units rely upon locked room confinement to maintain order in these units. From

the videotapes and accompanying documentation, it appears that this practice precipitates
4 many of the incidents which ultimately result in the use of pepper spray. Thus, it appears
5 that institutional practices concerning the use of the disciplinary units, together with the use
6
7 of room confinement within these units, contributes significantly to the frequent use of

8 pepper spray at Green Hill School. Less dangerous and painful methods are available to
Q
respond to each of the incidents on the videotapes, and the use of the spray perpetuates a 10
culture of violence within the institution. 11
9. in my opinion, the "spray program," in which staff are instructed by the

13 Superintendent to spray youth for minor misbehavior, is clearly outside the scope of 14 professionally accepted minimum standards of practice. Moreover, from my review of the

videotapes and accompanying documentation, as well as my knowledge of institutional

16 practices in a number of other jurisdictions, it is my opinion that the use of pepper spray

lo

generally at Green Hill School is a substantial departure from prevailing standards of

19 professional practice.

I declare under penalty of perjury that the foregoing is true and correct to the best of 21
my knowledge, information, and belief.
22 23 24
25 26

<iciiulO2l.d¢c

 
 Horton v. Williams

•

HH

»

H»

HW

H

•

JI-WA-0002-00 5

1

2

3

4

y}i

.RLED.

.LODGED

RECEIVED

OCT 2 7 1394

CliñK U.Î. DBTWCT ¢¢tKÏ

WESIHW DSWCT Of VWSWKCTOH AT TACOUA

BY

OEPWY

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT TACOMA

7 JAMES HORTON, JAMES BARNHART,

)

JEROME PAYTON, J.B., through his ) 8 next friend, LORRAINE WEST, and )

K.M., through his mother DEBBIE )

9 MOORE, on behalf of themselves

)

and all others similarly situated, )

10

Plaintiffs,

11

12

vs.

BOB WILLIAMS, in his official 13 capacity as Superintendent of
Green Hill School; JEAN SOLIZ, 14 in her official capacity as
Secretary of the Department of 15 Social and Health Services; and
SID SIDOROWICZ, in his official 16 capacity as Assistant Secretary
of the Juvenile Rehabilitation 17 Administration; and the Chehalis
School District, 18

Defendants. 19

CLASS ACTION
NO. C94-5428 RJB
STATE DEFENDANT'S REPLY BRIEF

20

This reply brief is filed on behalf of defendants Williams,

21 Soliz, and Sidorowicz (the state) in support of its motion to

22 dismiss under Fed. R. Civ. P. 12(b)(6).

23

1. Conclusory allegations should be dismissed.

24

The state's motion is based in part on contentions that many

25 of the claims are conclusory. In its answer, the state asserted

26 by way of affirmative defense that plaintiffs had failed to state

STATE DEFENDANT'S REPLY BRIEF - 1

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

Olymp¡a, WA 98504-0124

· ,

(206)459-6558

;'

/'

a claim upon which relief may be granted. Nevertheless, plaintiffs argue that the contentions are not conclusory because

the state was able to file an answer, in which many of the claims were admitted or denied. PI. Brief at 3. Plaintiffs cite no case

law in support of their argument. Indeed, enabling defendants to file an answer is just one reason why conclusory allegations are prohibited. Other reasons include providing notice of the facts

which underlie the claim, and giving an opportunity for defendants to assess the strength of the case and preserve relevant evidence.

10 Gird Systems Corp. v. Texas Instruments Inc.. 771 F.Supp. 1033, 11 1037 (N.D. Cal. 1991).

12

In this case, the state in its answer denied many of the

13 conclusory allegations based on its belief there is no truth to

14 them. These allegations, for examples, include such things as

15 failure to provide "treatment services", "social services", 16 "appropriate health care", treatment in the "less restrictive

17 environment", "numbers of properly-trained staff", "alternative

18 education programs", "adequate supervision", "unburdened 19 facilities", "dangerous conditions", "unsafe and unsanitary

20 conditions". Although the state believes it is not deficient in

21 these areas, and therefore denies the allegations, it is totally 22 unclear what plaintiffs believe the problems are. For example,

23 what treatment or social services are lacking? How is the

24 supervision inadequate? Why is the health care inappropriate?

25 How are facilities overburdened? What alternative education 26
programs are being denied? How are cottages unsanitary? Because

STATE DEFENDANT'S REPLY BRIEF - 2

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 985OMH24 (206) 459-6558

these questions are unanswered, plaintiffs have failed to

sufficiently set out facts which underlie their claims; hence, the

claims are conclusory and should be dismissed.

The real danger of allowing a plaintiff to proceed under such

conclusory allegations is that litigation becomes a "fishing

expedition" in which the discovery process improperly is used to

attempt to develop some theory of recovery that is unknown at the

time the lawsuit is filed.

In their brief, plaintiffs repeatedly argue that the

10 allegations are sufficient because a constitutional right is at

11 stake. According to plaintiffs, alleging, for example, that Green

12 Hill is "overcrowded as to impermissibly and unsafely burden

13 recreational, educational, and food service," is sufficient

14 because plaintiffs have the right to a "safe facility". Pi. Brief

15 at 6. Plaintiffs miss the point. The state does not contest their

16 right to safety; it contests only their right to claim a

17 constitutional violation based on conclusory allegations.

18

Conclusory allegations in fact may be dismissed under Fed. R.

19 Civ. P. 12(b)(6). McCarthy v. Mavo. 827 F.2d 1310, 1313 (9th Cir.

20 1987). When faced with conclusory allegations, a defendant may

21 either move for dismissal for failure to state a claim, or file an

22 answer and move for judgment on the pleadings. Gutierrez v.

23 Municipal Court. 838 F.2d 1031, 1052 (9th Cir. 1988). The court

24 has may treat the state's motion as a motion for judgment on the

25 pleadings, if necessary to decide the issues. Id. 26

STATE DEFENDANT'S REPLY BRIEF - 3

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OtympU, WA 98504-0124 (206) 439-6558

In its opening brief, the state cites numerous cases in which

courts dismissed a prisoner's conclusory complaint. The vague

allegations in these complaints bear striking similarities to

plaintiffs' allegations. Plaintiffs do not attempt to factually

distinguish these cases; instead, they simply argue generally that

courts in these cases imposed a heightened pleading standard for

civil rights complaints, adopted in the Fifth Circuit, that later

was struck down in Leatherman v. Tarant County. 507 U.S.

122

L.Ed 517, 113 S.C. 1162 (1973). While the state recognizes that

10 a heightened pleading standard is not permissible, there is no

11 suggestion in any of these cases that the court applied such a

12 standard.

13

Finally, contrary to plaintiffs' argument, the state's

14 stipulation on class certification does not mean that the

15 allegations are non-conelusory. PI. Brief at 3. Plaintiff cite

16 no support for their argument. The elements for certification do

17 not go to the merits of a claim, and in fact the court expressly

18 so stated in its certification order.

19

2. Allegations on which no claim is made should be

20 dismissed.

21

In its opening brief, the state argues that plaintiffs'

22 physical plant allegations should be dismissed because there is no 23 claim based on the allegations. Franklin v. State. 662 F.2d 1337,

24 1338 (9th Cir. 1981). Plaintiffs in their brief now argue these
25 allegations amount to Fourteenth Amendment violations. Pi. Brief 26
at 4. The fact remains, however, that the complaint itself (pages

STATE DEFENDANT'S REPLY BRIEF - 4

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olymp¡a, WA 98504-0124 GOð) 459-6558

10-11) does not contain any claim or theory of recovery related to

the physical plant allegations.

3

3. Injury must be shown.

4

Plaintiffs mischaracterize the state's position as being that

they must show actual harm, as opposed to potential harm. PI.

Brief at 6. The state recognizes that plaintiff are entitled to

safe conditions of confinement. Plaintiffs must demonstrate,

8 however, that an alleged condition at least threatens their

safety. Helling v. McKinnev. 509 U.S. , 125 L.Ed 22, 113 S.Ct.

10 2481 (1993). In fact, the state acknowledges that most of the 11 allegations do allege an injury. Several do not, however. These

12 include allegations on "burdened facilities", "overcrowding", and 13 buildings in "disrepair". There is no allegation on how these 14 alleged conditions are causing or threatening injury to

15 plaintiffs. This argument, of course, is related closely to the 16 argument on conclusory allegations.

17

4. The allegations must amount to a constitutional

18 violation.

19

In their brief, plaintiffs do not contest the fact that an

20 allegation to be actionable must rise to the level of a

21 constitutional violation. For example, while a prisoner has the

22 right to freedom of religion, this right is not violated by

23 refusing to provide a prisoner with a minister of his faith.

24 Swoboda v. Dubach. 992 F.2d 286, 290 (10th Cir. 1993).

25

In its opening brief, the state pointed out numerous

26

instances in which an allegation in the complaint fails to rise to

STATE DEFENDANT'S REPLY BRIEF - 5

ATTORNEY GENERAL OF WASHDíOTON 670 Woodland Square Loop SE PO BOX 40124 Olymp¡», WA 98504-0124
(2Oð)459-6558

the level of a constitutional violation. This failure is closely

tied to the issue of conclusory allegations which simply do not

provide sufficient facts.

The issue of right to treatment deserves further reply. The

state's position in this case is that under state law plaintiffs

have a right to treatment and are receiving it. The contested

issue is to what extent treatment is a constitutional right.

As pointed out in the state's opening brief, Younaberg v.

Romero. 457 U.S. 307 (1982), held that involuntarily-committed

10 mental patients had a right to "minimally adequate training" to be

11 free from physical restraints. This holding was applied to

12 incarcerated juvenile offenders in Gary H. v. Heastromf 831 F.2d 13 1430, 1431 (9th Cir. 1987). What this means is that officials at

14 juvenile institutions must take certain minimum steps to reduce

15 the need to use physical restraints on residents. The Ninth

16 Circuit has not adopted a Fourteenth Amendment "right to

17 rehabilitation", and in fact this right was expressly rejected in

18 Santana v. Collazo. 714 F.2d 1172, 1176-77 (1st Cir. 1983), a case

19 cited with approval in Gary H.. 831 F.2d at 1431.

20

Plaintiffs argue that the "implication of the court's holding

21 (in Gary H.) is that juveniles have a constitutionally based right

22 to treatment, even if the scope of that right may be somewhat

23 limited." PI. Brief at 14. What plaintiffs seem to concede is

24 that at most they have the right to only "minimally adequate"

25 treatment under the Younqberq standard. 26

STATE DEFENDANT'S REPLY BRIEF - 6

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympii, WA 98304-0124 006) 459-6558

Recognizing the limits of this right, plaintiffs also argue

that the alleged lack of treatment violates their right to be treated in the "least restrictive setting". PI. Br. at 14-15. In support of this argument, plaintiffs cite two cases involving the

holding of civil committees. Johnson v. Soloman. 484 F.Supp. 278, 305 (D.C.Md. 1979), Gary W. v. Louisiana. 437 F.Supp. 1209, 1217

(E.D.La. 1976). A third case, Morales v. Truman. 383 F.Supp. 53 8 (E.D.Tex. 1974), did involve juvenile offenders, but simply did
not hold they had the right to be treated in the least restrictive

10 environment. Plaintiffs claim this right stems from Shelton v.

11 Tucker. 464 U.S. 479, 488 (I960), a case holding that a statute

12 allowing inquiry into the organizational relationships of teachers 13 must be drawn as narrowly as possible. There simply is no support 14 for the proposition that juvenile offenders have the right to be

15 treated in the least restrictive environment, or that alleged lack 16 of certain treatment programs is a denial of this right.

17

Based on the foregoing, the state requests that the

18 allegations on "education, treatment, and rehabilitative services"

19 (page 9-10) be dismissed either because (1) there is no

20 constitutional right to treatment, or (2) plaintiffs fail to

21 allege sufficient facts to show they are not receiving "minimally

22 adequate" training.

23

5. Educational claims not related to special education

24 should be dismissed.

25

The state recognizes that 20 U.S.C. §l4OO(c) provide certain

26

rights to special education students, and is not moving to dismiss

STATE DEFENDANT'S REPLY BRIEF - 7

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympia, WA 98504-0124
¢2O6) 459-«58

I

,„ „„__™_ .-_„..

1 those claims. PI. Brief 19-20. Several of the education 2 allegations however, appear to relate to non-special education

3 students, and these allegations should be dismissed either as

4 conclusory or not rising to the level of a constitutional

5 violation. These include that educational services are not

6 equivalent to those outside the institution; that educational

7 services are denied for violating rules; that alternative

8 education programs are not provided; that educational needs are

9 not evaluated; and that appropriate educational services are not

10 developed and implemented.

11

Respectfully submitted this O^f day of October, 1994.

12

CHRISTINE 0. GREGOIRE

Attorney General

13

14

15

RICHARLVA. McCARTAN, WSBA #8323

Assistant Attorney General

16

17

18

19

20

21

22

23

24

25 26

STATE DEFENDANT'S REPLY BRIEF - 8

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-655S

 
 Horton v. Williams

1

JI-WA-002-016

2 6 en 3
4 c CD 5

THE HONORABLE ROBERT J. BRYAN

6

7

8

9

UNITED STATES DISTRICT COURT

10

WESTERN DISTRICT OF WASHINGTON

AT TACOMA 11

12 JAMES HORTON, etal.,
13
Plaintiffs, 14

@

15

vs.

16 BOB WILLIAMS, etal.,

NO. C94-5428 RJB JOINT STATUS REPORT

17

Defendants.

18

19

The parties hereby file the following Joint Status Report in compliance with the Court's

20 Minute Order dated August 17, 1994.

21 1. The Nature of the Case

22

This is a civil rights class action challenging a number of physical plant conditions and

23 a variety of practices at Green Hill School (GHS) located in Chehalis, Washington. Plaintiffs
24
are juveniles confined at GHS and defendants include officials in charge of the administration 25

26 of that facility (State defendants) and the Chehalis School District. Plaintiffs assert claims

27 related to the lack of adequate treatment and education services, defendants' disciplinary

28
JOINT STATUS REPORT PAGE 1

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY. SUITE 301 SEATTLE, WASHINGTON 98104 f x "

1 practices, the lack of interpreters for non-English speaking residents, and the physical plant

2
conditions at GHS.
3

2.
4

The Status of the Case

5

The case has been certified as a class action by Order entered September 29, 1994. The

6 State defendants' Motion to Dismiss is pending. Plaintiffs' Motion for a Preliminary Injunction

7 regarding the use of aerosol oleoresin capsicum (pepper spray) is also pending.

8

Plaintiffs have conducted a few depositions and received responses to one production of

g
document request relating to their pepper spray claim. All parties expect to conduct extensive 10
discovery. The State defendants expect to file a motion for Summary Judgment.
11

12 3. Special Master

13

A special master may be appropriate for enforcement purposes if relief is granted to the

14 plaintiffs.

15 4.

Mediation

16
Mediation is not appropriate under Ix>cal Rule 39.1 at this stage. After resolution of
17

preliminary motions, mediation may be appropriate.
18

19 5. Full-Time Magistrate Judge

20

Not all parties agree that a full-time Magistrate Judge may conduct all proceedings under

21 Local Rule MJR 13.
22
6. Trial Date
23
Due to the many claims brought by the plaintiffs, and anticipated discovery, this case is
24
not likely to be ready for trial until late 1995 or early 1996.
25
26 7. Trial by Jury or Non-jury

27

A non-jury trial would be conducted.

28
JOINT STATUS REPORT PAGE 2

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

i r

1 8.
2 3
9. 4 5 6 7 8 9

Number of Trial Days
The number of trial days is unknown at this time.
Names of Trial Counsel
For the plaintiffs: Patricia J. Arthur David Lambert Robert A. Stalker, Jr.
For the State defendants: Richard McCartan Carol Murphy

10 11 12 10. 13

For the Chehalis School District: Brian Baker
Scheduling Conflicts:
There are no dates in 1996 which present a complication for scheduling this trial.

14 11. Suggestion for Shortening Trial:

15 The parties have no suggestions at this time given the uncertainty of the length of trial

16 and issues to be heard at trial.
17

Respectfully submitted this 3 1 " " day of J C S ^ A - ^

1994.

18

19
20 Patricia J. Arthur
21 Of Counsel /for the Plaintiffs 22
23

'• ,1
Richard McCartan Carol Murphy Of Counsel for State Defendants (Telephonic Approval for Signature Given)

24

25 Brian Baker
26 For the Chehalis School District (Telephonic Approval for
27 Signature Given)

28
JOINT STATUS REPORT PAGE 3

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301
SEATTLE, WASHINGTON 98104
(206) 464-0838

 
 fiNTERED ON DOCKET
1
NOV 0.8 1994
2
By Deputy .
3

NOV 0 8

4

WESTERN

Horton v. Williams
5

6
JI-WA-002-017
7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

11 JAMES HORTON; JAMES BARNHART;
JEROME PAYTON; J.B., through his next

12

friend, LORRAINE WEST; and K.M., through his mother DEBBIE MOORE, on behalf of

13 themselves and all others similarly situated,

14

Plaintiffs,

15

v.

CASE NO. C94-5428 RJB
ORDER DENYING MOTION TO PARTIALLY DISMISS CLAIMS UNDER RULE 12(B)(6)

16

BOB WILLIAMS, in his official capacity as Superintendent of Green Hill School; JEAN

17

SOLIZ, in her official capacity as Secretary of the Department of Social and Health

18

Services; and SID SIDOROWICZ, in his official capacity as Assistant Secretary of

19

the Juvenile Rehabilitation Administration; and the CHEHALIS SCHOOL DISTRICT,

20

Defendants.

21
THIS MATTER comes before the court on the above-entitled motion. The court has
22
considered the records and files herein and documents filed in support of and in opposition to
23
the motion. Defendants claim that in some particulars the plaintiffs have failed to state a claim
24
upon which relief may be granted in plaintiffs' First Amended Complaint. Defendants respond
25 that their First Amended Complaint is adequate. It should be noted that plaintiffs' Response to

26

27

28 ORDER•1

1 Defendants' Motion effectively supplements and fleshes out plaintiffs' theory of the four claims

2 made in the First Amended Complaint.

3

The defendants' motion should be denied. The plaintiffs' First Amended Complaint has

4 stated four claims upon which relief may be granted and has sufficiently set forth non-conclusory

5 and specific facts supporting those claims. It would serve no purpose to strike from the

6 complaint supportive statements that are purely conclusory. Plaintiffs' First Amended Complaint,

7 particularly as further explained by plaintiffs' Response to Defendants' Motion, sufficiently advised

8 the defendants of the nature of plaintiffs' claims and the facts which underlie them. The

9 defendants have sufficient information to assess the initial strength of the claims, to preserve

10 relevant evidence and to identify related counter-claims and cross-claims, all as suggested by

11 Grid Systems Corporation v. Texas Instruments, Inc., 771 F. Supp. 1033, 1037 (N.D.Cal. 1991).

12 If, after further careful consideration of Plaintiffs' First Amended Complaint and Plaintiffs'

13 Response to Defendants' Motion, defendants still do not understand the nature of any of

14 plaintiffs' claims or the facts which underlie them, defendants can, of course, seek discovery

15 under Fed. R. Civ. P. 26-37.

16

"All pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f).

17 Justice would not be served by dismissal of any of the plaintiffs' four claims at this stage of the

18 litigation.

19

Fed. R. Civ. P. 12(b) suggests that a Fed. R. Civ. P. 12(b)(6) motion shall be made before

20 pleading if a further pleading is permitted. Defendants' motion is also late.

21

The court notes that plaintiffs' second, third and fourth claims include state claims

22 brought under the court's supplemental jurisdiction, 28 U.S.C. § 1367. The pleading standards

23 for such claims are somewhat different than claims brought under 42 U.S.C. § 1983.

24

The court further notes that apparently plaintiffs' "physical plant allegations" are intended

25 to support the second claim that the defendants "failed to protect plaintiffs from harm while in

26 state custody."

27

28 ORDER - 2

1

It remains to be seen whether plaintiffs can prove any of their claims. Their pleading,

2 however, is sufficient to commence the litigation process on each of the four claims specified in

3 the First Amended Complaint.

4

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

5 of record and to any party appearing pro se a\ said party's last known address^

6

DATED this / day of

§v (J " ^\ A

19_

7

8

Robert J. Bryan \ 7 /

9

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER - 3

 
 Horton v. Williams

JI-WA-0002-0021

The Honorable Robert J. Bryan

ORIGINAL.

UNITED STATES DISTRICT COURT

4

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

5

6 JAMES HORTON, JAMES BARNHART,

)

JEROME PAYTON, J.B. , through his )

7 next friend, LORRAINE WEST, and ) K.M., through his mother DEBBIE )

8 MOORE, on behalf of themselves

)

and all others similarly situated, )

9 Plaintiffs,

10

VS.

11 BOB WILLIAMS, in his official

12 capacity as Superintendent of Green Hill School; JEAN SOLIZ,

13 in her official capacity as Secretary of the Department of

14 Social and Health Services; and SID SIDOROWICZ, in his official

15 capacity as Assistant Secretary of the Juvenile Rehabilitation

16 Administration; and the Chehalis School District,

17

Defendants.

18

CLASS ACTION NO. C94-5428 RJB

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION

'1.

// J

.LODGED

.RECEIVED

NOV 2 1 1994

WESTERN DISTRICT¾F°WASHÍNGTON AT TACOMA

BY

DEPUTY

19

This memorandum is filed by defendants Williams, Soliz, and

20 Sidorowicz (state defendants) in opposition to plaintiffs' motion

21 for preliminary injunction to prevent them from authorizing the

22 use of pepper spray on residents at Green Hill School.

23

I. FACTS

24

Green Hill is the state institution which houses the oldest

25 and most violent juvenile offenders in Washington. Att. 1 at 2. 26 In such an institution, it is inevitable that some residents will

MEMORANDUM OPPOSING MOTION.FOR PRELIMINARY INJUNCTION - 1

ATTORNEY GENERAL OF WASHINOTON

670 Woodland Square Loop SE

FO BOX 40124

^-,

Olymp¡», WA 98504-0124

^)

(206) 459-6558

^<

1 engage in threatening and violent behavior. Att. 2 at 2-5. In

2 October 1990 Green Hill instituted a policy allowing the use of

3 pepper spray against threatening residents. Att. 1 at 2-4. Many

4 law enforcement agencies and correctional facilities use it. Att.

5 1 at 4. Pepper spray temporarily incapacitates the person

6 sprayed. The point of using the spray is to take control of a

7 defiant and threatening resident without the need to physically

8 subdue the resident which creates a serious risk of injury to both

9 the resident and staff. Att. 1 at 4. The numbers of assaults and

10 injuries at Green Hill in fact is down since the introduction of

11 pepper spray. Att. 1 at 4. Spraying has occurred 103 times or

12 about twice per month, and about six percent of the residents have

13 been sprayed. Att 1 at 4.

14

Oleoresin capsicum (pepper spray) is a naturally occurring

15 substance found in the oily resin of cayenne and other varieties

16 of pepper. Att. 3 at 2-3.

Pepper spray temporarily

17 incapacitates a person by inducing an almost immediate burning

18 sensation of the skin, and a burning, tearing, and swelling of the

19 eyes. Att. 3 at 3. These sensations quickly diminish, and

20 generally disappear completely within 15 to 45 minutes once a

21 person receives fresh air, and showers to flush the eyes and skin

22 with soap and water. Att. 3 at 3. Oleoresin capsicum, moreover,

23 is biodegradable and, unlike chemical irritants, does not linger

24 in ventilated affected areas or in clothing. Att. 3 at 4-5.

25 Studies have discovered no known long-term health risks or deaths

26 caused by exposure to pepper spray. Att. 3.

MEMORANDUM OPPOSING MOTION .FOR PRELIMINARY INJUNCTION - 2

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olymp¡*,WA 98504-0124 (206) 459-6558

At Green Hill, residents generally are showered within 10 to

15 minutes of being sprayed (Att. 1 at 18), and receive prompt

medical attention. Att. 4 at 2-3. Residents have experienced no

medical problems caused by being sprayed. Att. 4.

After this lawsuit was filed, Green Hill modified its pepper

spray policy to address plaintiffs' concerns. Most importantly,

the new policy more exactly defines the situations in which pepper

8 spray more be used.

9

[1] The resident fails to follow a staff directive, and use

of other physical restraint methods to gain compliance,

10

without the use of pepper spray, likely would result in

bodily injury to resident, staff, and others.

11

[2] The resident is engaging in disruptive behavior in his

12

room which creates a serious disturbance and threatens

institutional security by inciting serious misbehavior by

13

other residents.

14 Att. 1 at 5-7. The new policy also more exactly prescribes

15 warnings given prior to use (Att. 1 at 7) ; does away with spraying

16 "pre-authorized" by the superintendent (Att. 1 at 7-8) the

17 training of staff authorized to use pepper spray (Att. 1 at 9-10);

18 and requires administrative reviews of all pepper spray incidents

19 (Att. 1 at 9) . Green Hill also now uses only the 5% spray

20 concentration, as opposed to the 10% that plaintiffs believe is

21 more potent. Att. 1 at 7.

22

Since the new policy was implemented on October 1, 1994,

23 pepper spray has been used at Green Hill in two incidents

24 involving a total of three residents. Att. 1 at 18-24.

25

By no means does Green Hill rely on the use of pepper spray

26 to control the behavior of residents. Instead, there is a "point"

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 3

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympu, WA 98504-0124 (206) 459-6558

1 system to reward good behavior by granting special privileges.

2 Att. 1 at 13-14. Room confinement for limited periods is used as

3 a consequence for misbehaving. Att. 1 at 14. Residents who

4 engage in serious misbehavior are placed in an "intensive

5 management unit" (IMU) to provide them more intensive supervision

6 and programming designed to correct their behavior. Att. 1 at 14,

7 Att. 2. In addition, behavior is managed through extensive mental

8 health services, counseling, and group therapy. Att. 1 at 11-13,

9 Att. 2.

10

While plaintiffs believe the use of pepper spray is

11 emotionally damaging and harms the rehabilitative environment,

12 Green Hill's experienced psychologist and psychiatrist believe the

13 use of pepper spray is a much better alternative to using physical

14 force on a resident, and actually results in a better treatment

15 environment by removing the risk of injury and discouraging

16 assaultive behavior. Att 2.

17

Staff views Green Hill as a dangerous place to work, and

18 believes pepper spray in an essential tool in avoiding physical

19 confrontations that too often insult in injury. They believe

20 pepper spray is safe, effective, and does not harm the treatment

21 environment. Att. 5.

22

II. ARGUMENT

23

To obtain a preliminary injunction, a party must show either

24 (1) likelihood of success on the merits and the possibility of

25 irreparable injury, and (2) the existence of serious questions

26 going to the merit, tipping the balance of hardships in favor of

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 4

ATTORNEY GENERAL OF WASHDíOTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

the moving party. Diamondinev v. Bora. 918 F.2d 793, 795 (9th

Cir. 1990). A preliminary injunction is an extraordinary remedy,

and the burden is on the moving party to make a clear showing that

money damages of other remedies are not adequate under the

circumstances. Earth Island Institute v. Mosbacher. 785 F.Supp.

826, 831 (N.D.Cal. 1992).

A. Use of pepper spray under the new policy is a legitimate

8 tool for maintaining institutional security.

9

In that case, plaintiff who was shot by a policeman argued

10 the city was negligent in failing to use pepper mace to avoid the

11 need to use deadly force.1

12

There are no state or federal decisions on the

13 constitutionality of using pepper spray on a threatening suspect

14 or inmate. (Footnote 1 - see above) However, in Youngberg v.

15 Romero. 457 U.S. 307 (1982), involving the use of restraints

16 against a person civilly-committed to a mental institution, the

17 court set out the following test:

18

In determining whether a substantive right protected by the

due process clause has been violated, it is necessary to

19

balance `the liberty interest of the individual' and the

`demands of an organized society... In seeking this balance

20

21

1 To the state's knowledge, there is only one decision

(unreported) in which pepper spray is discussed. Roy v. City

22 of Lewiston. 1994 WL 129774 (D.Me.) In that case, plaintiff

who was shot by a policeman argued the city was negligent in

23 failing to use pepper mace to avoid the need to use deadly

force. Plaintiff contended that in 1991, when the shooting 24 occurred, the city should have known about a 1989 FBI study

which found pepper spray to be safe and effective in

25 incapacitating threatening suspects. In finding for the city,

the court held that not knowing about pepper spray did not

26 constitute "deliberate indifference".

MEMORANDUM OPPOSING MOTION -FOR PRELIMINARY INJUNCTION - 5

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Squire Loop SB PO BOX 40124 Olympi», WA 98SO4-0124 (206) 459-6558

1

in other cases, the Court has weighed an individual's

interest in liberty against the state's asserted reasons for

2

restraining the individual.

3 id. at 320. In applying this test, the court ruled that it will

4 uphold:

5

those restrictions on liberty that were reasonably related to

legitimate government objectives, and not tantamount to

6

punishment.

7 2d. The Youngberg test applies to challenges to conditions of

8 confinement of juvenile offenders who, as in Washington, have not

9 been convicted of a crime. Gary H. v. Heastrom, 831 F.2d 1430,

10 1432 (9th Cir. 1987) . In this case, therefore, use of pepper spray

11 at Green Hill under the terms of the new policy must be upheld if

12 it is (1) reasonably related to legitimate government objectives,

13 and (2) not tantamount to punishment.

14

1. The new policy is related to legitimate government

15 objectives.

16

Maintaining the security of an institution is a legitimate

17 government objective. Bell v. Wolfish. 441 U.S. 520 (1979). In

18 pursuing this objective, prison officials may use tear gas. Spain

19 v. Procunier. 600 F.2d 189 (9th Cir. 1979). There, the court

20 noted:

21

We think the record further indicates, however, that use of

the substance in small amounts may be a necessary prison

22

technique if a prisoner refuses after adequate warning to

move from a cell or upon other provocation presenting a

23

reasonable possibility that slight force will be required.

24 Xd. at 195. The court further held:

25

where there are safeguards to insure that tear gas is not

used in dangerous quantities, we think use can be justified

26

MEMORANDUM OPPOSING MOTION -FOR PRELIMINARY INJUNCTION - 6

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Oiymp¡a, WA 98504-0124 (206) 459-655«

1

in situations which are reasonably likely to result in injury

to persons or a substantial amount of valuable property.

2

Id. at 196.2 In a later case, Michenfelder v. Sumner.

3

860 F.2d 328 (9th Cir. 1988), the court upheld the use of a taser

4

gun in potentially dangerous prison situations because:

5

The taser was used to enforce compliance with a search that

6

had a reasonable security purpose, not as punishment. The

legitimate intended result of shooting is incapacitation of

7

a dangerous person...

8 Id. at 335. Use of the taser gun, the court held, was not

enjoinable because, while it may produce nausea and headaches, the

10 prisoner failed to meet his burden of showing that there were

11 adverse long-term health effects. Id. at 336. The

12 appropriateness of its use, the court concluded, depends on the

13 facts and circumstances of the particular case. Id.

14

Although Procunier and Michenfelder were decided under the

15 Eighth Amendment, they are relevant. That is because in judging

16 conditions of confinement at a juvenile institution, a court must

17 apply "the due process clause which implicitly incorporates the

18 (Eighth Amendment) cruel and unusual clause standards as a

19 constitutional minimum." Gary H. v. Heastrom. 831 F.2d at 1432.

20 The differences between adult and juvenile institutions "should be

21 accounted for in the liability stage, not the remedy stage." Id.

22

Indeed, when it comes to the need to prevent injury and

23 maintain institutional security, there cannot be a lesser standard

24
2 The court in Procunier was concerned that "small" amounts 25 be used because tear gas can be "extremely dangerous". 600 F.2d
at 195. There is no evidence, on the other hand, that pepper 26 spray is dangerous.

MEMORANDUM OPPOSING MOTION JFOR PRELIMINARY INJUNCTION - 7

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB
oiympia, WA 985oloi24 (206) 45ÍM¡558

1 of safety in a juvenile institution than in an adult institution.

2 Those who work and reside in a juvenile institution are entitled

3 to the same level of safety.

4

Under the cases discussed above, Green Hill's new pepper

5 spray policy is constitutionally-permissible because it reasonably 6 related to a legitimate government objective.3 This conclusion is

7 supported by the following:

8

1. Pepper spray is effective in incapacitating a residents

to allow staff to safely take control of him.

9

2. Use of pepper spray is appropriate only in two

10

situations. First, it may be used when necessary to take

control of a resident, and failure to use pepper spray likely

11

would result in injury. Second, it may be used when a

resident's conduct in his room causes residents causes a

12

serious disturbance outside the room.

These two

13

14 6

3 Plaintiffs misleadingly cite to the dispositions of staff

members in an attempt to discredit how pepper spray was used 15 under the former policy. For example, while cursing could lead

to spraying of a resident, there also had to be a security 16 threat. Beaver Dep., p. 116, 1. 13-17. While on-the-job

experience taught staff de-escalation skills, there also was 17 formal training on this subject. Beaver Dep., p 133, 1. 10-11.

In singling out an incident in which they felt an allegedly

18 disturbed resident should not have been sprayed, plaintiffs fail

to mention he had a claw hammer. Beaver Dep., pp. 106-108.

19 Plaintiffs quote staff as saying incident reports on spraying

often are not filed, when in fact this failure very rarely

20 occurs. Beaver Dept. p. 36, 1. 5.

21

In fact deposed staff agreed that pepper spray was needed

22

only a small percentage of the (Beaver Dept. p. 135-36, Eberle

time when a disturbance occurs Dep., p 97-98, Rondo Dept., p.

23

101); that the purpose of pepper spray (Beaver Dep. p. 134, 1. 14-17, Eberle

is to prevent in injury Dept., p. 96-97, Ronda

24

Dept., p. 100, 1. 19-20); that staff's goal is having to use peppery spray as little as possible (Beaver Dept., p. 133, 2. 13-

25

19, and

Eberle Dep., p. 97, 1. 12, Rondo Dept., p. 102, 1. 14-17); that peppery spray is an important tool in preventing injury

26

to p.

staff and residents 98, 1. 14-25, Ronda

(Beaver Dep., p. 136, Dept., p. 101, 1. 13.

1.

4,

Eberle

Dep.,

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 8

ATTORNEY GENERAL OF WASHINOTON 670 Woodland Square Loop SB PO BOX 40124 O(ymp¡a,WA 98504-0124 (206) 459-6558

1

circumstances both are directly related to preventing injury

and maintaining security.

2

3. Staff receives training on de-escalation skills, and how

3

to properly use pepper spray.

4

4. Prior to using spray, staff is required to attempt

to resolve the situation verbally, and to give advance

5

warnings, in a process that generally continues for 30

minutes.

6

5. Although pepper spray, in incapacitating an individual

7

causes discomfort for 30 to 45 minutes, it does not have any

long-term effects.

8

6. Sprayed residents receive prompt medical attention to

9

alleviate the symptoms.

10

7. Green Hill does not rely on pepper spray to control the

behavior of residents. Instead, there is an incentive

11

program for good behavior, room confinement, counseling, and

sundry special programs.

12

Plaintiffs seek to prohibit altogether the use of pepper

13

spray at Green Hill. Except to recommend that staff become better

14

at verbal de-escalation, they offer no alternative method of

15

safely controlling a threatening resident. Their leading

16

behavioral expert, Mr. DeMuro, also criticizes both "room

17

confinement" as a punishment for misbehavior, and "intensive

18

management units" to treat residents with serious behavior

19

problems. He claims there are better methods of controlling

20

threatening residents, but fails to say what they are. The

21

weakness of plaintiffs' position is exposed by their inability to

22

offer specific alternative methods for controlling threatening

23

residents.

24

2. Pepper sr>rav is not used as punishment. 25

26

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 9

ATTORNEY GENERAL OF WASHINGTON 670 Woodlmd Square Loop SB PO BOX 40124 Olympi», WA 98501-0124 (206) 459-6558

1

The second part of the Younqbera test is that the restraint

2 not be used as punishment. As stated in Michenfelder. 860 F.2d at

3 336.

4

A legitimate prison policy of carrying teasers to enforce

discipline and security would not warrant their use when

5

unnecessary, or 'for the role purpose of punishment or

infliction of pain.'

6

In that case, the court held that use of a taser gun to

7

enforce a requirement that inmates submit to a security search was

8

permissible, because the use had a legitimate security objective,

9

and was not used merely to inflict pain or punishment. By

10

contrast, a stun gun may not be used as punishment for an inmate

11

failing to sweep out his cell. Hickey v. Reeder. 12 F.3d 754 (8th

12

Cir. 1993).

13

Plaintiffs repeatedly allege pepper spray is used at Green

14

Hill simply to punish non-compliance with a staff directive.

15

Certainly, every spray incident begins with a resident failing to

16

follow a staff directive. There must be more, however: there must

17

to threat to security, which is defined in the pepper spray

18

policy. Under the reasoning in Procunier and Michenfelder, the

19

policy is constitutional because spraying has a security objective

20 (i.e., preventing injury), and therefore is not punishment. 4

21

Plaintiffs contend that using pepper spray is improper

22

because there are no mental health services provided. The point

23

24
4 By contrast, under Green Hill procedures, when a resident 2 5 simply fails to follow a staff directive, and security is not
threatened, staff may "punish" the resident by taking away 26 privileges or imposing temporary room confinement.

MEMORANDUM O P P O S I N G MOTION -FOR PRELIMINARY INJUNCTION - 1 0

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO T¾OY 4 ß i *ÌÁ
oiym£ WA 985OM)i24 Qas> 459-<s558

1 of pepper spray is to prevent injury and maintain security. When

2 an incident is occurring, the policy is to diffuse the situation

3 as quickly as possible through verbal negotiation. An array of

4 services to address mental health issues is available at Green

5 Hill. Plaintiffs also contend that using pepper spray is improper

6 because it harms the treatment environment. Even if such harm did

7 occur, it would not prohibit the use of pepper spray; an

8 institution may take steps to prevent injury and maintain

9 security, regarding of their effects on the treatment environment.

10 Green Hill, however, is convinced that use of pepper spray

11 actually improves the treatment environment by reducing the risk

12 of injury, and by discouraging threatening behavior.

13

B. Cases cited by plaintiffs are do not support their

14 argument.

15

Plaintiffs cite a host of cases in support of their request

16 for a complete ban on the use of pepper spray at Green Hill. PI.

17 Brief at 18-19. These cases do not support their argument.

18

In several of the cases, harsh disciplinary practices were

19 held unconstitutional. Stewart v. Rhodes. 473 F.Supp. 1185, 1193

20 (S.D.Ohio 1979) ("acting out" is not grounds for putting a

21 prisoner in a "four-point" restraint in which he is chained on his

22 back to a metal bed frame by means of handcuffs and leg irons);

23 Hickey v. Reeder. 12 F.3d 754 (8th Cir. 1993) (prisoner who failed

24 to sweep out his cell may not be shot with a stun gun); Nelson v.

25 Hevne. 355 F.Supp. 451, 454 (N.D.Ind. 1972)(a juvenile offender

26 may not receive "beating by use of a thick board" for violating

MEMORANDUM OPPOSING MOTION.FOR PRELIMINARY INJUNCTION - 11

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olymp¡a, WA 98304-0124 (206) 459-6558

institutional rules); Morales v. Turtnan. 364 F.Supp. 166, 173

(E.D.Tex. 1973)( struck down "widespread practices of beating,

slapping, kicking, and otherwise physically abusing juveniles

inmates, in the absence of any exigent circumstances"); Milonas v.

Williams. 691 F.2d 931, 942 (10 Cir. 1982) ("hair dances", whereby

juveniles were restrained by the hair, may not be used where

"physical violence" or "physical control" is not at issue). These

8 cases involved situations in which force was applied without a

showing of any legitimate security objective. By contrast, under

10 Green Hill's policy, pepper spray may be used only in two specific

11 circumstances when necessary to prevent injury and maintain

12 institutional security.

13

The other cases cited by plaintiffs involved the use of tear

14 gas. Soto v. Cady, 566 F.Supp. 773, 779 (E.D.Wisc. 1983) (tear gas

15 may be used "to subdue an inmate who poses an immediate threat of

16 injury" which means at least "making physically threatening 17 gestures11); Greear v. Loving. 538 F.2d 578, 579 (4th Cir.

18 1978)(summary judgment against plaintiff improper when he alleges

19 tear gas was used to punish him for destroying property) ; McCargo

20 v. Mister. 462 F.Supp. 813, 819 (D.Md. 1978)(because tear gas is

21 potentially dangerous, and effects persons who are not targets, it

22 may be used only in situations posing the utmost degree of danger

23 and loss of control); Morris v. Travisono. 528 F.2d 856, 858 (1st

24 Cir. 1976) (tear gas may not be used to punish non-threatening

25 behavior). These cases hold that there must be security reasons

26 for using tear gas. The courts are especially cautious about

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 12

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Square Loop SE
ojymp? w ? 985otoi24 <2¿6) 459-655»

approving the use of tear gas because it is a potentially

dangerous substance. Spain v. Procunierr 600 F.2d at 194. What plaintiff request is a complete ban on the use of pepper

spray. Cases cited by plaintiffs underscore the fact there is

simply no precedence for banning a substance, such as pepper

spray, which is non-dangerous and can control a threatening

person.

8

C. The Court must show deference to the Green Hill policy.

9

In Ruiz v. Estelle. 679 F.2d 1115, 1126 (5th Cir. 1982), the

10 court noted the limited role of the judiciary in challenges to

11 prison conditions:

12

The duty to protect inmates' constitutional rights does not

confer the power to manage prisons, for which courts are ill-

13

equipped, or the capacity to second-guess prison

administrators. Federal courts should not, in the name of the

14

constitution, become enmeshed in the minutiae of prison

operations. Our task is limited to enforcing constitutional

15

standards and does not embrace superintending prison

administration.

16 The court stated further:

17

As a matter of respect for the state's role and for the

18

allocation of functions in our federal system, as well as

comity towards the state, the relief ordered by the federal

19

court must be consistent with the policy of minimum intrusion

into the affairs of state prison administration...

20 Id. The Ninth Circuit expressly adopts the Ruiz view of the

21 limited role of the federal judiciary. Toussaint v. McCarthy. 801

22 F.2d 1080, 1088 (9th Cir. 1986). This deference extends to with

23 special force to security matters. A prison's "internal security

24 is peculiarly a matter normally left to the discretion of prison

25 administrators." Rhodes v. Chapman,. 452 U.S. 337, 349 (1981).

26

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 13

ATTORNEY GENERAL OP WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OtympU, WA 98504-0124 (206) 459-6558

Prison administrators "should be accorded wide-ranging deference

in the adoption and execution of policies and practice that in

their judgment are needed to preserve internal order and to

maintain institutional security." Bell v. Wolfish. 441 U.S. at

547.

This deference applies to juvenile institutions as well as

adult prisons. As stated in a juvenile institution case, Gary H.

8 v. Hecrstad. 831 F.2d at 1433:

9

The court should defer to the policy choices made by prison

officials and order a remedy consistent with the basic

10

approach taken by prison officials, unless that approach

itself is inconsistent with the Eighth Amendment.

11 Quoting Hoptowit v. Rav. 682 F.2d 1237, 1247 (9th Cir.1982).

12 Younqbercr v. Romero. 407 U.S. at 324, held:

13

Decisions made by the appropriate professionals are entitled

14

to a presumption of correctness. Such a presumption is

necessary to enable institutions of this type — often,

15

unfortunately overcrowded and understaffed — to continue to

function.

16 Based on these cases, Green Hill's pepper spray policy is

17 entitled to deference by the court, and to a presumption of

18 correctness. Deference is due because it was formulated by

19 professionals at Green Hill, who are best equipped to judge

20 security needs of the institution. For reasons discussed in

21 Section II(A) of this memorandum, the pepper spray policy should

22 be upheld, and the security decisions of Green Hill officials

23 should not be second-guessed. Plaintiffs have not overcome the

24 presumption of correctness that attaches to the policy. Granting

25

26

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 14

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SE PO BOX 40124 Olympi», WA 98504-0124 (206) 459-6558

the injunction would be an impermissible intrusion into the

internal security affairs of a state correctional institution.

D. The current pepper spray policy does not warrant the

court granting a preliminary injunction.

Plaintiffs' expert, Dr. Milan, offers conclusory opinions

that many of the prior sprays were of residents who presented no

immediate danger. Green Hill disputes this conclusion, although

admits two sprays were improper because the residents were

handcuffed at the time. While the number of inappropriate past

10 sprays is in dispute, the fact is that since the time this lawsuit

11 was filed, Green Hill adopted a new pepper spray policy that

12 addresses all plaintiffs' concerns. Infra, at 2-3.

13

Regardless of what allegedly happened in the past, a

14 plaintiff must demonstrate a "credible threat" of specific injury.

15 Kolender v. Lawson. 461 U.S. 352, 355 (1983). There must be an

16 individualized showing of a "very significant possibility" that

17 future harm will incur. Nelson v. King Cy.. 895 F.2d 1248, 1950

18 (9th Cir. 1990) . Past exposure to harm is largely irrelevant when

19 ruling on injunctive relief predicated on the threat of future

20 harm, if unaccompanied on any continuing, present adverse effects.

21 O'Shea v. Littleton. 414 U.S. 488, 495-96 (1974). In denying a

22 claim for injunctive relief, the court in Rodriguez v. Kincheloe.

23 763 F.Supp. 463, 468 (E.D.Wash. 1991) held:

24

Mr. Rodriguez has presented no evidence of continuing,

present adverse effects from the alleged unconstitutional

25

conduct. Thus, he must show a threat of future harm. `The

burden (of) showing a likelihood of recurrence (is) firmly on

26

the plaintiff.'

MEMORANDUM OPPOSING MOTION .FOR PRELIMINARY INJUNCTION - 15

ATTORNEY GENERAL OF WASHINGTON 670 Woodln>d Square Loop SB PO BOX 40124 Olympi», WA 98504-0124 (206) 459-6558

1

On October 1, 1994, Green Hill implemented a new pepper spray

2 policy. Since that time, pepper spray has been used three times,

3 and clearly was justified in each circumstance. There is

4 absolutely no reason to believe that the policy will not be

5 followed in the future. Green Hill's willingness to adopt a new

6 policy addressing all of plaintiffs' concerns, and its record of

7 adhering to that policy, demonstrate plaintiffs cannot meet their

8 burden of showing a very significant probability of future harm.

9

For the sake of argument, if Green Hill in the future uses

10 spray in violation of the policy, plaintiffs may have a claim for

11 damages under 42 U.S.C. § 1983. They also may have a claim for

12 injunctive relief if they can show a very significant probability

13 of additional violations in the future. However, under the

14 current situation, there are no grounds for injunctive relief

15 because Green Hill has adopted a constitutional policy for using

16 pepper spray, is abiding by it, and intends to keep abiding by it.

17

III. CONCLUSION

18

Based on the foregoing, the state defendants respectively

19 request that plaintiffs' motion for preliminary injunction be

20 denied.

21

DATED this A¡ day of November, 1994.

22

CHRISTINE O. GREGOIRE

Att

oS

23

24

RICHARDS. McCARTAN, WSBA #8323

Assistant Attorney General

25

Attorneys for Defendants

26

MEMORANDUM OPPOSING MOTION JOR PRELIMINARY INJUNCTION - 16

ATTORNEY GENERAL OF WASHINGTON 670 Woodlind Square Loop SB PO BOX 40124 Otympú, WA 98504-0124 (206)459-6358

 
 1 2 3
CD
la GO CO `¾ 6 7 8 9 10 I 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

THE >NORABLE ROBERT J. BRYAN
Horton v. Williams J WA-0002-0Ô25

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT TACOMA

JAMES HORTON, et al., on behalf of themselves and all others similarly situated,

No. C94-5428 RJB

Plaintiffs, vs.

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION

BOB WILLIAMS, et al.,

Defendants.

I. INTRODUCTION There appears to be no disagreement between plaintiffs and the State defendants concerning the legal framework to be applied to determine whether defendants should be preliminarily enjoined from using pepper spray on youth incarcerated at Green Hill School (GHS). The parties agree upon the controlling preliminary injunction standard and upon the critical issues which must be resolved under the applicable Fourteenth Amendment analysis: (1) whether defendants' use of pepper spray is punitive, and (2) whether defendants' use of pepper spray is reasonably related to the state's interests in maintaining institutional security

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 1

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101 YESLER WAY, SUITE 301 /^ ; \i

SEATTLE, WASHINGTON 98104

k\

(206) 464-0838

1 and staff safety. Applying this analytical framework, defendants fail to rebut plaintiffs'

2 showing that pepper spray is used at GHS to punish youth, that defendants' use of pepper
3
spray is not reasonably related to the purpose that defendants maintain it serves, and that
4
there exists more moderate and constitutionally acceptable methods of maintaining discipline
5
and order at GHS. Most importantly, defendants fail to refute plaintiffs' showing that, under
6
7 the standards governing the issuance of preliminary injunctions, the balance of hardships here
8 tip in plaintiffs' favor and that a serious question exists about the constitutionality of

9 defendants' pepper spray policies and practices, thus making the issuance of a preliminary
10 injunction appropriate.
11
For the reasons previously set forth in plaintiffs' Memorandum In Support of their
12
Motion for a Preliminary Injunction, and based also on the showing below, plaintiffs
13
14 respectfully ask this Court to enjoin defendants' use of pepper spray at GHS.

15

II. ARGUMENT

16 A. Defendants Use Of Pepper Spray Is Punitive.
17
Defendants assert that staff at GHS do not use pepper spray to punish youth. Rather,
18
defendants claim, pepper spray is used to maintain institutional security and for the purpose
19
of reducing injuries to staff and residents. See Williams Declaration, defendants' Attachment
20
21 1, pp. 4-6; defendants' Memorandum Opposing Motion For Preliminary Injunction (hereafter

22 defendants' Memorandum) at pp. 5-10. The essence of defendants' argument is that the use

23 of pepper spray is constitutional because "spraying has a security objective (i.e., preventing
24 injury), and therefore is not punishment." Defendants' Memorandum at 10. Defendants'
25
argument is unpersuasive for at least the following reasons.
26
Under defendants' reasoning, pain inflicted upon incarcerated youth could never
27

28
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1 constitute unconstitutional "punishment" so long as the state asserted a security purpose for

2 it. This rationale would permit state officials to inflict pain or use physical force on
3 incarcerated youth for any reason and in any manner whenever youth violate institutional
4
rules provided it is done in the name of "institutional security." Indeed, defendants
5
repeatedly assert that it would always be a breach of institutional security if juveniles were
6
7 not forced either by "physical engagement" or through the use of pepper spray to follow staff

8 directives. Apperson and Dubey Declaration, defendants' Attachment 2 at 4; Williams

9 Declaration, defendants' Attachment 1, at 6. As defendant Williams claims:

10 [Whenever a juvenile refuses to go to his room], staff must require him to go.

11

Otherwise, staff loses control, and the residents are the ones in charge.

Residents must know for certain there are consequences for misobeying

12

directives. Thus, [the juvenile] may go to his room voluntarily, or be forced

to go with the assistance of staff either by physical apprehension or by the use

13

of pepper spray.

14

Id.1

15

Defendants' attempt to shield their pepper spray practices from constitutional scrutiny
16

17 by chanting the mantra of institutional security should be rejected. Courts may not permit a

18 pain-inflicting measure simply because it has a security objective:

19

... none of the Eighth Amendment cases decided by the Supreme Court, this

circuit, or any other court of appeals has upheld a pain-inflicting measure

20

simply because prison officials implemented the policy to "address" a

21

legitimate government interest.

22 Jordan v. Gardner. 986 F.2d 1521 (9th Cir. 1993).2

23

24

V Staff at GHS operate under this same overly-broad definition of what constitutes a

breach of institutional order sufficient to warrant the use of pepper spray. See, footnote 5 at

25 p. 4 of Plaintiffs' Memorandum In Support Of Preliminary Injunction and the record

references therein.

26

21 In their submissions defendants seriously minimize the degree of pain inflicted on 27 juveniles when they are sprayed with oleoresin capsicum. While there is a dispute between

28

(continued...)

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 3

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1

Defendants' rationale that the infliction of pain can never constitute punishment

2 provided it serves the purpose of maintaining institutional order simply does not square with
3 the relevant legal authority. Defendants' reliance on Spain v. Procunier. 600 F.2d 189 (9th
4 Cir. 1979) and Michenfelder v. Sumner. 860 F.2d 328 (9th Cir. 1988) to support this broad
5 position is misplaced. First, as defendants' recognize, both Spain and Michenfelder are adult
6
7 prison cases decided under the Eighth Amendment and, as such, are distinguishable from the
8 Fourteenth Amendment juvenile cases relied upon by plaintiffs. Secondly, both the Spain

9 and Michenfelder decisions recognize that the use of substances such as tear gas and taser
10 guns may violate the Eighth Amendment. Spain. 600 F.2d at 196; Michenfelder. 860 F.2d 11
at 336. Both of these cases strongly suggest that it may indeed violate the Eighth 12
Amendment to use such painful substances for punishment or to permit their use in less than 13 14 "narrowly defined circumstances" when there is not an immediate threat of injury or
15 substantial property damage. As explained by the Court in Spain:

16

We think it makes little sense to say that use of tear gas can never be a

17

violation of the eighth amendment. In Estelle v. Gamble. 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court stated the eighth amendment

18

prohibits those punishments which "are incompatible with 'the evolving

standards of decency that mark the progress of a maturing society,'" id. at

19

102, 97 S.Ct. at 290 (quoting Trop v. Dulles. 356 U.S. 86, 101, 78 S.Ct.

590, 2 L.Ed.2d 630 (1958)), or which '"involve the unnecessary and wanton

20

infliction of pain,'" 429 U.S. at 103, 97 S.Ct. at 290 (quoting Gregg v.

21

Georgia. 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). We

agree with the trial court that use of potentially dangerous quantities of the

22

substance is justified only under narrowly defined circumstances, but we

further conclude that use of nondangerous quantities of the substance in order

23

to prevent a perceived future danger does not violate 'evolving standards of

24

decency' or constitute an 'unnecessary and wanton infliction of pain.'

25 2(... continued)
26 the parties about the long-lasting effects of pepper spray, it unquestionably causes excruciating pain at least for a period of time. It results in gagging, coughing, gasping for
27 breath, loss of upper body control, paralysis of the larynx, inflammation of the respiratory 28 tract and extreme burning of the skin.

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 4

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1

Therefore, where there are safeguards to insure that tear gas is not used in

dangerous quantities we think its use can be justified in situations which are

2

reasonably likely to result in injury to persons or a substantial amount of

3

valuable property, and that use of potentially dangerous quantities is

appropriately reserved for the circumstances narrowly defined by the district

4

court in its opinion.

5 Spain. 600 F.2d at 196 (emphasis added).

6

Contrary to the facts presented to the Court in Spain, in this case there are not

7
sufficient controls or safeguards on the use of pepper spray at GHS to insure that it is used
8
only in narrowly defined emergency situations. Indeed, plaintiffs have made a significant
9

10 showing in support of their preliminary injunction — and will further show at trial on the

11 merits — that GHS staff use pepper spray in unnecessary and unwarranted situations when

12 there is not an immediate threat of injury to persons or to a substantial amount of valuable

13 property.
14
Likewise, the Court in Michenfelder reiterated the constitutional limitations which
15
must be placed on the use of taser guns on adult prisoners, and recognized that the use of
16
such devices may violate the Eighth Amendment when there exists a pattern of unwarranted
17
18 use "as a matter of practice":

19

A finding that the taser gun is not per se unconstitutional would not validate

its unrestricted use. "[T]he appropriateness of the use must be determined by

20

the facts and circumstances of the case." Soto v. Dickey. 744 F.2d [1260,

21

(7th Cir. 1984)] at 1270. A legitimate prison policy of carrying tasers to

enforce discipline and security would not warrant their use when unnecessary

22

or "for the sole purpose of punishment or the infliction of pain." Id. at 1270.

Overall, the evidence does not establish "unwarranted use of this painful and

23

dangerous [device] as a matter of practice." See Spain v. Procunier, 600 F.2d

24

at 195.

25 Michenfelder, 860 F.2d at 336. By contrast in this case, plaintiffs have presented ample

26

27

28
PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 5

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1 evidence of defendants' continuing practice of unwarranted uses of pepper spray.3

2

Defendants attempt to bolster the importance of Spain and Michenfelder in their

3 analysis by claiming that the juvenile corporal punishment and restraint cases cited by
4 plaintiffs are distinguishable since, defendants maintain, they do not involve situations where
5
a legitimate security objective was advanced in support of the restraint or punishment 6

7 inflicted. Defendants, however, misread these cases, just as they have misplaced reliance on

8 Spain and Michenfelder. The purpose of the beatings and tear gas used by institutional staff

9 in Morales v. Thurman, 364 F. Supp. 166 (E.D. Tex. 1973), was obviously to punish youth
10 and maintain institutional order. The purpose advanced by correctional officials for the hair
11
holds used at Provo Canyon School, at issue in Milonas v. Williams. 691 F.2d 931, 942
12
(10th Cir. 1982), was to manage belligerent students (in other words, to maintain institutional
13
14 order). Defendants are simply mistaken in their perception that the relevant juvenile corporal
15 punishment cases cited by plaintiffs are different from this case because no security objective

16 was advanced in support of the challenged practice.

17

Finally, defendants fail to recognize that the infliction of pain, even if for the

18

19

3/ The overwhelming amount of evidence before this Court in support of plaintiffs'

Motion for Preliminary Injunction shows that staff at GHS use pepper spray to punish youth 20 and, in most instances, when there is no imminent threat of injury or substantial property

21 damage. Plaintiffs' independent experts, having reviewed approximately 25 instances when staff used pepper spray on juveniles at GHS, all conclude that it is used for punitive reasons

22 and not to control an imminently dangerous situation. By contrast, defendants' expert,

Richard Lipsey, reviewed only four instances of pepper spray use, all of which were

23 presumably hand-selected by defendants for Dr. Lipsey's review. In their Declarations,

neither Defendant Williams nor other GHS staff indicate that they have personally reviewed 24 the examples of pepper spraying relied upon by plaintiffs to show a pattern of unwarranted

25 and punitive use, nor do they even attempt to specifically refute why the use of pepper spray in those circumstances was appropriate. These declarants simply draw the conclusion that

26 pepper spray is not used to punish and used only when warranted. These self-serving and

unsupported conclusions should weigh lightly in the balance of evidence being considered by 27 this Court.

28

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 6

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1 legitimate goal of maintaining institutional order, is unconstitutional if it is excessive or not

2 reasonably related to the purpose it purports to serve. As shown in the following section, the

3
use of pepper spray on youth at GHS does not, in fact, serve its intended purpose.

4

B. Defendants' Use Of Pepper Spray Is Not Reasonably Related To Its Purported

5

Purpose.

6

Defendants maintain pepper spray is necessary to force juveniles to comply with staff

7
orders because it results in fewer physical injuries to staff than if physical force were used by
8
staff to exert their control.4 As evidenced by the most recent use of pepper spray on
9

10 juveniles at GHS, as well as by the other incidents previously discussed by plaintiffs in their

11 opening submissions, staff, in fact, do not use pepper spray as an alternative to "physically

12 engaging" a resident. Rather, pepper spray is used after a juvenile has been either forcibly

13 subdued or voluntarily calmed down. For example, in the incident which occurred on
14 November 13, 1994, involving Joshua Howell, Kevin Moore and Brian Emmons (described
15 at pp. 19-22 of the Williams Declaration), staff "physically engaged" the juveniles who were
16 17 acting out and only used pepper spray after the use of physical force when the juveniles were
18 locked in their cells. Williams Declaration, Defendants' Attachment 1 at 19-21; Howell

19 Declaration, attached. Staff ultimately used pepper spray not to avoid a physical "take

20 down" situation but to force one of the juveniles, Joshua Howell, to stop banging on his cell
21
door.
22

23

4/ Defendants continuously maintain that whenever a juvenile refuses to follow a staff

order, such as one directing a juvenile to stop banging on his cell at night or to move to 24 another location, the only two alternatives staff have to deal with the situation is to spray the

25 juvenile with pepper spray or to "physically engage" (fight) the juvenile to force compliance. Williams Declaration, Attachment 1; Defendants' Memorandum at 4. These are not the only

26 alternatives. Staff could exercise other disciplinary measures such as good time loss or

privilege reductions, they could provide intensive crisis intervention counseling to de-escalate 27 a volatile situation, or have the juvenile seen by mental health professionals. The

28 possibilities are not only limited to the use of force.

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 7

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1

The use of pepper spray on Joshua was not necessary to avert the imminent threat of

2 injury or to stop the destruction of property of significant value; he was confined alone in a
3 locked room. Spraying Joshua did not serve the state's purported purpose of avoiding
4 physical confrontations between staff and non-compliant youth because a "physical
5 engagement" between Joshua and staff had already occurred before he was sprayed.
6
7 Spraying Joshua did not even help to stop his banging because after he had been subjected to
8 pepper spray he continued banging in his cell. Howell Declaration, attached.

9

While the state has a legitimate objective in maintaining institutional order, it can and

10
must, consistent with the due process clause of the United States Constitution, be served by
11
less intrusive means than the unnecessary infliction of pain. In Joshua's case, there were
12
other means to address his behavior. Joshua could have been provided intensive crisis-
13

14 counseling by qualified professionals well trained in intervention techniques and/or removed

15 from his cell and taken to another location where he would not bother other youth by his

16 banging.5 Staff might also have sanctioned his behavior with other disciplinary measures
17 such as good-time loss or limitation of privileges, thus providing a deterrent to such conduct
18
in the future. In sum, the use of pepper spray in Joshua's case, as in many other instances at
19
GHS, was neither necessary nor did it serve defendants' purported purpose of avoiding a
20
21 situation in which staff "physically engage" youth.

22

23

24

25

51 Joshua was, in fact, moved to another cell later the same night he was sprayed.

Joshua was moved to a suicide cell in another unit because, after he was sprayed, he

26 threatened to "cut on himself". Howell Declaration, attached as Exhibit 1. Thus,

defendants' assertion that staff do not have the option of moving youth to another location

27 when they are disruptive in their cells at night in IMU is not true. See, Williams

28 Declaration, Attachment 1, at 24.

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION- 8

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1 C. Defendants' New Policy Does Not Provide Sufficient Safeguards To Prevent The

Unwarranted Use Of Pepper Spray That Plaintiffs Have Shown Frequently Occurs At

2

GHS.

3 Plaintiffs seek to preliminarily enjoin defendants' use of pepper spray because, as the
4 evidence shows, staff at GHS have so repeatedly used it in unwarranted situations and to
5 punish youth for not complying with staff orders that a broad restraint on the practice is
6
7 justified, at least until defendants are able to establish that they have developed sufficient

8 safeguards to insure that pepper spray will be used only in circumstances when there exists

9 an imminent threat of physical injury and when no other less restrictive means exist to
10 address the youth's dangerous behavior. The policy promulgated by defendants after this
11
litigation was filed (Attachment B. to defendants' Memorandum), does not provide sufficient
12
safeguards to insure that pepper spray will only be used in these narrowly defined
13
14 circumstances.6

15

GHS Policy #4, effective October 1, 1994, permits the use of pepper spray in non-

16 emergency situations. It also maintains the superintendent's authority to approve the use of
17 pepper spray even though defendant Williams has repeatedly approved the use of pepper
18
spray in many inappropriate and unnecessary circumstances in the past. The policy does not
19
insure the use of alternative intervention techniques; it does not prohibit the use of pepper
20

21

22

6/ Defendants maintain that whatever problems existed in the past with respect to the use

of pepper spray have now been cured by the promulgation of a new policy. However, as

23 plaintiffs show above, defendants' new policy does not insure that the unwarranted use of

pepper spray at GHS will not continue in the future.

24

Furthermore, defendants' request that this policy should be accorded absolute

25 deference should be rejected. When, as here, it is shown that defendants exaggerate their response to security considerations, deference to their expert judgment should not be

26 accorded. Tribble v. Gardner. 860 F.2d 321, 327 n.9 (9th Cir. 1988), çert. denied, 490

U.S. 1075 (1989) ("In view of the substantial evidence that ... defendants have exaggerated

27 their response to purported security considerations, we do not defer to their expert judgment

in these matters.").
28

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-1

— _

1 spray to coerce compliance with institutional rules (in fact it permits its use for this purpose),

2 and it does not limit the circumstances when pepper spray may be used to ones where there
3
exists an imminent danger of serious injury to persons or a substantial amount of valuable
4
property. Thus, defendants' new policy does not adequately define the extremely narrow
5
emergency circumstances when pepper spray may be appropriately used by staff at GHS, and
6
7 it does not provide sufficient safeguards to prevent future abuses like those that have been

8 widespread in the past. Since defendants' new policy does not eliminate the danger of

9 unwarranted uses of pepper spray it should not defeat plaintiffs' request for a preliminary

10 injunction.

11
III. CONCLUSION 12

13

Plaintiffs respectfully ask this Court to preliminarily enjoin defendants from

14 authorizing the use of pepper spray on juveniles at GHS.

15

Respectfully submitted this 2 3 ¢ i a y of November, 1994.

16

17 EVERGREEN LEGAL SERVICES

18

Institutional Legal Services Project

101 Yesler Way, Suite 301

19

Seattle, WA 98104

s464-0838
20

21
TATRICIA J/A'RTHUR,~WSBÃ``?îm9^

22

ROBERT A¿STALKER, JR., WSBA #13650

23

NATIONAL CENTER FOR YOUTH LAW

24

114 Sansome Street, Suite 900

San Francisco, CA 94117

25

(4151543-3307

26
DAVID LAMBERT
27

28
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 Horton v. Williams

„FILED !i

LODGLD

`2^==ž.- R¯ICEiVED

I • • ! • • VH

W I * • • II* ·

JI-WA-0002-0026

DEC - 1 1994

The Honorable Robert J. Bryan

2

CLERK U.S. DISTRICT COURT

3

I DISTRICT OF 'A'ASHiNGÍüîl AT

BY

OCfJ1!rY

"UNTIED STATES DISTRICT COURT

4

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

5

6 JAMES HORTON, JAMES BARNHART,

)

JEROME PAYTON, J.B., through his )

7 next friend, LORRAINE WEST, and )

K.M., through his mother DEBBIE )

8 MOORE, on behalf of themselves

)

and all others similarly situated, )

9

)

Plaintiffs,

)

10

)

vs.

)

11

)

BOB WILLIAMS, in his official

)

12 capacity as Superintendent of

)

Green Hill School; JEAN SOLIZ, )

13 in her official capacity as

)

Secretary of the Department of

)

14 Social and Health Services; and )

SID SIDOROWICZ, in his official ) 15 capacity as Assistant Secretary )

of the Juvenile Rehabilitation

)

16 Administration; and the Chehalis )

School District,

)

17

)

Defendants.

)

18

CLASS ACTION
NO. C94-5428 RJB
AMENDED MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION

19

This memorandum is filed by defendants Williams, Soliz, and

20 Sidorowicz (state defendants) in opposition to plaintiffs' motion

21 for preliminary injunction to prevent them from authorizing the

22 use of pepper spray on residents at Green Hill School.

23

I. FACTS

24

Green Hill is the state institution which houses the oldest

25 and most violent juvenile offenders in Washington. Att. 1 at 2.

26 In such an institution, it is inevitable that some residents will

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 1

ATTORNEY GENERAL OF WASHINGTON 670 Woodhod Square Loop SB PO BOX 40124 Olymp¡â, WA 98504-0124 (206) 459-6558

engage in threatening and violent behavior. Att. 2 at 2-5. In

October 1990 Green Hill instituted a policy allowing the use of

pepper spray against threatening residents. Att. 1 at 2-4. Many

law enforcement agencies and correctional facilities use it. Att.

1 at 4. Pepper spray temporarily incapacitates the person

sprayed. The point of using the spray is to take control of a

defiant and threatening resident without the need to physically

8 subdue the resident which creates a serious risk of injury to both

the resident and staff. Att. 1 at 4. The numbers of assaults and

10 injuries at Green Hill in fact is down since the introduction of

11 pepper spray. Att. 1 at 4. Spraying has occurred 103 times or

12 about twice per month, and about six percent of the residents have

13 been sprayed. Att 1 at 4.

14

Oleoresin capsicum (pepper spray) is a naturally occurring

15 substance found in the oily resin of cayenne and other varieties

16 of pepper. Att.

at 2-3.

Pepper spray temporarily

17 incapacitates a person by inducing an almost immediate burning

18 sensation of the skin, and a burning, tearing, and swelling of the

19 eyes. Att. 3 at 3. These sensations quickly diminish, and

20 generally disappear completely within 15 to 45 minutes once a

21 person receives fresh air, and showers to flush the eyes and skin

22 with soap and water. Att. 3 at 3. Oleoresin capsicum, moreover,

23 is biodegradable and, unlike chemical irritants, does not linger

24 in ventilated affected areas or in clothing. Att. 3 at 4-5.

25 Studies have discovered no known long-term health risks or deaths

26 caused by exposure to pepper spray. Att. 3.

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 2

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympia, WA 98304-0124 (206) 459-6558

1

At Green Hill, residents generally are showered within 10 to

2 15 minutes of being sprayed (Att. 1 at 18) , and receive prompt

3 medical attention. Att. 4 at 2-3. Residents have experienced no

4 medical problems caused by being sprayed. Att. 4.

5

After this lawsuit was filed, Green Hill modified its pepper

6 spray policy to address plaintiffs' concerns. Most importantly,

7 the new policy more exactly defines the situations in which pepper

8 spray may be used.

9

[1] The resident fails to follow a staff directive, and use

of other physical restraint methods to gain compliance,

10

without the use of pepper spray, likely would result in

bodily injury to resident, staff, and others.

11

[2] The resident is engaging in disruptive behavior in his

12

room which creates a serious disturbance and threatens

institutional security by inciting serious misbehavior by

13

other residents.

14 Att. 1 at 5-7. The new policy also more exactly prescribes

15 warnings given prior to use (Att. 1 at 7) ; does away with spraying

16 "pre-authorized" by the superintendent (Att. 1 at 7-8); enhances

17 the training of staff authorized to use pepper spray (Att. 1 at 9-

18 10); and requires administrative reviews of all pepper spray

19 incidents (Att. 1 at 9) . Green Hill also now uses only the 5%

20 spray concentration, as opposed to the 10% that plaintiffs believe

21 is more potent. Att. 1 at 7.

22

Since the new policy was implemented on October 1, 1994,

23 pepper spray has been used at Green Hill in two incidents

24 involving a total of three residents. Att. 1 at 18-24.

25

By no means does Green Hill rely on the use of pepper spray

26 to control the behavior of residents. Instead, there is a "point"

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 3

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 OlympU, WA 98504-0124 006) 459-6558

1

1 system to reward good behavior by granting special privileges.

2 Att. 1 at 13-14. Room confinement for limited periods is used as

3 a consequence for misbehaving. Att. 1 at 14. Residents who

4 engage in serious misbehavior are placed in an "intensive

5 management unit" (IMU) to provide them more intensive supervision

6 and programming designed to correct their behavior. Att. 1 at 14,

7 Att. 2. In addition, behavior is managed through extensive mental

8 health services, counseling, and group therapy. Att. 1 at 11-13,

9 Att. 2.

10

While plaintiffs believe the use of pepper spray is

11 emotionally damaging and harms the rehabilitative environment,

12 Green Hill's experienced psychologist and psychiatrist believe the

13 use of pepper spray is a much better alternative to using physical

14 force on a resident, and actually results in a better treatment

15 environment by removing the risk of injury and discouraging

16 assaultive behavior. Att 2.

17

Staff views Green Hill as a dangerous place to work, and

18 believes pepper spray in an essential tool in avoiding physical

19 confrontations that too often result in injury. They believe

20 pepper spray is safe, effective, and does not harm the treatment

21 environment. Att. 5.

22

II. ARGUMENT

23

To obtain a preliminary injunction, a party must show either

24 (1) likelihood of success on the merits and the possibility of

25 irreparable injury, or (2) the existence of serious questions

26 going to the merits, tipping the balance of hardships in favor of

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 4

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Otymp¡a, WA 98504-0124 (206) 459-6558

the moving party. Diamondinev v. Borg. 918 F.2d 793, 795 (9th

Cir. 1990). A preliminary injunction is an extraordinary remedy,

and the burden is on the moving party to make a clear showing that

money damages or other remedies are not adequate under the

circumstances. Earth Island Institute v. Mosbacherf 785 F.Supp. 826, 831 (N.D.Cal. 1992).

A. Use of pepper spray under the new policy is a legitimate

8 tool for maintaining institutional security.

There are no state or federal decisions on the 10 constitutionality of using pepper spray on a threatening suspect 11 or inmate.1 However, in Youngberg v. Romero, 457 U.S. 307

12 (1982), involving the use of restraints against a person civilly-

13 committed to a mental institution, the court set out the following

14 test:

15

In determining whether a substantive right protected by the

due process clause has been violated, it is necessary to

16

balance `the liberty interest of the individual' and the

`demands of an organized society'... In seeking this balance

17

in other cases, the Court has weighed an individual's

interest in liberty against the state's asserted reasons for

18

restraining the individual.

19 Id. at 320. In applying this test, the court ruled that it will

20 uphold:

1 To the state's knowledge, there is only one decision 22 (unreported) in which pepper spray is discussed. Roy v. City of
Lewiston. 1994 WL 129774 (D.Me.) In that case, plaintiff who was 23 shot by a policeman argued the city was negligent in failing to
use pepper mace to avoid the need to use deadly force. Plaintiff 24 contended that in 1991, when the shooting occurred, the city
should have known about a 1989 FBI study which found pepper spray 25 to be safe and effective in incapacitating threatening suspects.
In finding for the city, the court held that not knowing about 26 pepper spray did not constitute "deliberate indifference".

MEMORANDUM OPPOSING MOTION- FOR PRELIMINARY INJUNCTION - 5

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympu, WA 98504-0124 (206) 459-6558

1

those restrictions on liberty that were reasonably related to

legitimate government objectives, and not tantamount to

2

punishment.

3 Id. The Youngberg test applies to challenges to conditions of

4 confinement of juvenile offenders who, as in Washington, have not

5 been convicted of a crime. Gary H. v. Hectstrom. 831 F.2d 1430,

6 1432 (9th Cir. 1987) . In this case, therefore, use of pepper spray

7 at Green Hill under the terms of the new policy must be upheld if

8 it is (1) reasonably related to legitimate government objectives,

9 and (2) not tantamount to punishment.

10

1. The new policy is related to legitimate government

11 objectives.

12

Maintaining the security of an institution is a legitimate

13 government objective. Bell v. Wolfish. 441 U.S. 520 (1979). In

14 pursuing this objective, prison officials may use tear gas. Spain

15 v. Procunier, 600 F.2d 189 (9th Cir. 1979). There, the court

16 noted:

17

We think the record further indicates, however, that use of

the substance in small amounts may be a necessary prison

18

technique if a prisoner refuses after adequate warning to

move from a cell or upon other provocation presenting a

19

reasonable possibility that slight force will be required.

20 Id. at 195. The court further held:

21

where there are safeguards to insure that tear gas is not

used in dangerous quantities, we think use can be justified

22

in situations which are reasonably likely to result in injury

to persons or a substantial amount of valuable property.

23

Id. at 196.2 In a later case, Michenfelder v. Sumner. 860 F.2d 24

25 2 The court in Procunier was concerned that "small" amounts be
used because tear gas can be "extremely dangerous". 600 F.2d at There is no evidence, on the other hand, that pepper spray is

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 6

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympi»,WA 98504-0124 (206) 459-6558

1..

1 328 (9th Cir. 1988) , the court upheld the use of a taser gun in

2 potentially dangerous prison situations because:

3

The taser was used to enforce compliance with a search that

had a reasonable security purpose, not as punishment. The

4

legitimate intended result of shooting is incapacitation of

a dangerous person...

5

Id. at 335. Use of the taser gun, the court held, was not

6

enjoinable because, while it may produce nausea and headaches, the

7

prisoner failed to meet his burden of showing that there were

8

adverse long-term health effects.

Id. at 336.

The

9

appropriateness of its use, the court concluded, depends on the

10

facts and circumstances of the particular case. Id.

11

Although Procunier and Michenfelder were decided under the

12

Eighth Amendment, they are relevant. That is because in judging

13

conditions of confinement at a juvenile institution, a court must

14

apply "the due process clause which implicitly incorporates the

15

(Eighth Amendment) cruel and unusual clause standards as a

16

constitutional minimum." Gary H. v. Hecrstrom. 831 F.2d at 1432.

17

The differences between adult and juvenile institutions "should be

18

accounted for in the liability stage, not the remedy stage." Id.

19

Indeed, when it comes to the need to prevent injury and 20

maintain institutional security, there cannot be a lesser standard 21

of safety in a juvenile institution than in an adult institution. 22

Those who work and reside in a juvenile institution are entitled 23

to the same level of safety. 24

25

daRf ferous.
MEMORANDUM OPPOSING MOTION. FOR PRELIMINARY INJUNCTION - 7

ATTORNEY OENERAL OF WASHINOTON 670 Woodland Square Loop SB PO BOX 40124 Otymp¡a, WA 98504-0124 (206) 459-6558

Under the cases discussed above, Green Hill's new pepper

spray policy is constitutionally-permissible because it is reasonably related to a legitimate government objective.3 This

conclusion is supported by the following:

5

1. Pepper spray is effective in incapacitating a resident to

allow staff to safely take control of him.

6 2. Use of pepper spray is appropriate only in two

7

situations. First, it may be used when necessary to take

control of a resident, and failure to use pepper spray likely

8

would result in injury. Second, it may be used when a

resident's conduct in his room causes a serious disturbance

9

outside the room. These two circumstances both are directly

related to preventing injury and maintaining security.

10

3. Staff receives training on de-escalation skills, and how

to properly use pepper spray.

11

4. Prior to using spray, staff is required to attempt to

12

resolve the situation verbally, and to give advance warnings,

in a process that generally continues for 30 minutes.

13

14

3 Plaintiffs misleadingly cite to the dispositions of staff

members in an attempt to discredit how pepper spray was used

15 under the former policy. For example, while cursing could lead

to spraying of a resident, there also had to be a security

16 threat. Beaver Dep., p. 116, 1. 13-17. While on-the-job

experience taught staff de-escalation skills, there also was

17 formal training on this subject. Beaver Dep., p 133, 1. 10-11.

In singling out an incident in which they felt an allegedly

18 disturbed resident should not have been sprayed, plaintiffs fail

to mention he had a claw hammer. Beaver Dep., pp. 106-108.

19 Plaintiffs quote staff as saying incident reports on spraying

often are not filed, when in fact this failure very rarely

20 occurs. Beaver Dep. p. 36, 1. 5.

21

In fact deposed staff agreed that pepper spray was needed

only a small percentage of the time when a disturbance occurs

22 (Beaver Dep. p. 135-36, Eberle Dep., p 97-98, Rondo Dep., p.

101); that the purpose of pepper spray is to prevent injury

23 (Beaver Dep. p. 134, 1. 14-17, Eberle Dep., p. 96-97, Rondo Dep.,

p. 100, 1. 19-20); that staff's goal is having to use peppery

24 spray as little as possible (Beaver Dep., p. 133, 2. 13-19,

Eberle Dep., p. 97, 1. 12, Rondo Dep., p. 102, 1. 14-17); and

25 that pepper spray is an important tool in preventing injury to

staff and residents (Beaver Dep., p. 136, 1. 4, Eberle Dep., p.

26 98, 1. 14-25, Rondo Dep., p. 101, 1. 13.)

MEMORANDUM OPPOSING MOTION-FOR PRELIMINARY INJUNCTION - 8

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olymp¡», WA 98504-0124 (206) 459-6558

1

5. Although pepper spray, in incapacitating an individual,

causes discomfort for 30 to 45 minutes, it does not have any

2

long-term effects.

3

6. Sprayed residents receive prompt medical attention to

alleviate the symptoms.

4

7. Green Hill does not rely on pepper spray to control the

5

behavior of residents. Instead, there is an incentive

program for good behavior, room confinement, counseling, and

6

sundry special programs.

7

Plaintiffs seek to prohibit altogether the use of pepper

spray at Green Hill. Except to recommend that staff become better

at verbal de-escalation, they offer no alternative method of

10 safely controlling a threatening resident. Their leading

11 behavioral expert, Mr. DeMuro, also criticizes both "room

12 confinement" as a punishment for misbehavior, and "intensive

13 management units" to treat residents with serious behavior

14 problems. He claims there are better methods of controlling

15 threatening residents, but fails to say what they are. The

16 weakness of plaintiffs' position is exposed by their inability to

17 offer specific alternative methods for controlling threatening

18 residents.

19

2. Pepper spray is not used as punishment.

20

The second part of the Youngberq test is that the restraint

21 not be used as punishment. As stated in Michenfelder. 860 F.2d at

22 336.

23

A legitimate prison policy of carrying tasers to enforce

discipline and security would not warrant their use when

24

unnecessary; or 'for the role purpose of punishment or

infliction of pain.'

25

In that case, the court held that use of a taser gun to 26

MEMORANDUM OPPOSING MOTION.FOR PRELIMINARY INJUNCTION - 9

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB K» BOX 40124 Olympia,WA 98504-0124 (206) 459-655»

discipline and security would not warrant their use when unnecessary, or 'for the role purpose of punishment or infliction of pain.'

In that case, the court held that use of a taser gun to

enforce a requirement that inmates submit to a security search was

permissible, because the use had a legitimate security objective,

and was not used merely to inflict pain or punishment. By

contrast, a stun gun may not be used as punishment for an inmate

failing to sweep out his cell. Hickey v. Reeder. 12 F.3d 754 (8th

Cir. 1993) .

10

Plaintiffs repeatedly allege pepper spray is used at Green

11 Hill simply to punish non-compliance with a staff directive.

12 Certainly, every spray incident begins with a resident failing to

13 follow a staff directive. There must be more, however: there must

14 a threat to security, which is defined in the pepper spray policy.

15 Under the reasoning in Procunier and Michenfelder. the policy is

16 constitutional because spraying has a security objective (i.e., 17 preventing injury), and therefore is not punishment. 4

18

Plaintiffs contend that using pepper spray is improper

19 because there are no mental health services provided. The point

20 of pepper spray is to prevent injury and maintain security. When

21 an incident is occurring, the policy is to diffuse the situation

22 as quickly as possible through verbal negotiation. An array of

23 services to address mental health issues is available at Green

4 By contrast, under Green Hill procedures, when a resident 25 simply fails to follow a staff directive, and security is not
threatened, staff may "punish" the resident by taking away 26 privileges or imposing temporary room confinement.

MEMORANDUM OPPOSING MOTION .FOR PRELIMINARY INJUNCTION - 10

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB
¿

1 institution may take steps to prevent injury and maintain

2 security, regardless of their effects on the treatment

3 environment. Green Hill, however, is convinced that use of pepper

4 spray actually improves the treatment environment by reducing the

5 risk of injury, and by discouraging threatening behavior.

6

B. Cases cited bv plaintiffs do not support their argument.

7

Plaintiffs cite a host of cases in support of their request

8 for a complete ban on the use of pepper spray at Green Hill. PI.

9 Brief at 18-19. These cases do not support their argument.

10

In several of the cases, harsh disciplinary practices were

11 held unconstitutional. Stewart v. Rhodes. 473 F.Supp. 1185, 1193

12 (S.D.Ohio 1979) ("acting out" is not grounds for putting a

13 prisoner in a "four-point" restraint in which he is chained on his

14 back to a metal bed frame by means of handcuffs and leg irons);

15 Hickev v. Reeder. 12 F.3d 754 (8th Cir. 1993) (prisoner who failed

16 to sweep out his cell may not be shot with a stun gun); Nelson v.

17 Heyne. 355 F.Supp. 451, 454 (N.D.Ind. 1972)(a juvenile offender

18 may not receive "beating by use of a thick board" for violating

19 institutional rules); Morales v. Turman. 364 F.Supp. 166, 173

20 (E.D.Tex. 1973)( struck down "widespread practices of beating,

21 slapping, kicking, and otherwise physically abusing juvenile

22 inmates, in the absence of any exigent circumstances"); Milonas v.

23 Williams. 691 F.2d 931, 942 (10 Cir. 1982) ("hair dances", whereby

24 juveniles were restrained by the hair, may not be used where

25 "physical violence" or "physical control" is not at issue). These

26 cases involved situations in which force was applied without a

MEMORANDUM OPPOSING MOTION. FOR PRELIMINARY INJUNCTION - 11

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-655»

showing of any legitimate security objective. By contrast, under

Green Hill's policy, pepper spray may be used only in two specific

circumstances when necessary to prevent injury and maintain

institutional security.

The other cases cited by plaintiffs involved the use of tear

gas. Soto v. Cadv. 566 F.Supp. 773, 779 (E.D.Wisc. 1983) (tear gas

may be used "to subdue an inmate who poses an immediate threat of

8 injury" which means at least "making physically threatening

gestures"); Greear v. Loving. 538 F.2d 578, 579 (4th Cir.

10 1978)(summary judgment against plaintiff improper when he alleges

11 tear gas was used to punish him for destroying property) ; McCargo

12 v. Mister, 462 F.Supp. 813, 819 (D.Md. 1978)(because tear gas is

13 potentially dangerous, and affects persons who are not targets, it

14 may be used only in situations posing the utmost degree of danger

15 and loss of control); Morris v. Travisono. 528 F.2d 856, 858 (1st

16 Cir. 1976) (tear gas may not be used to punish non-threatening

17 behavior). These cases hold that there must be security reasons

18 for using tear gas. The courts are especially cautious about

19 approving the use of tear gas because it is a potentially

20 dangerous substance. Spain v. Procunier. 600 F.2d at 194,

21

What plaintiffs request is a complete ban on the use of

22 pepper spray. Cases cited by plaintiffs underscore the fact there

23 is simply no precedence for banning a substance, such as pepper

24 spray, which is non-dangerous and can control a threatening

25 person.

26

C. The Court must show deference to the Green Hill policy.

MEMORANDUM OPPOSING MOTION. FOR PRELIMINARY INJUNCTION - 12

ATTORNEY GENERAL OF WASHINCITON 670 Woodltn4 Square Loop SE PO BOX 40124 OlympU, WA 985OU)I24 (206) 459-6558

In Ruiz v. Estelle. 679 F.2d 1115, 1126 (5th Cir. 1982), the

court noted the limited role of the judiciary in challenges to

prison conditions:

4

The duty to protect inmates' constitutional rights does not

confer the power to manage prisons, for which courts are ill-

5

equipped, or the capacity to second-guess prison

administrators. Federal courts should not, in the name of the

6

constitution, become enmeshed in the minutiae of prison

operations. Our task is limited to enforcing constitutional

7

standards and does not embrace superintending prison

administration.

8 The court stated further:

9

As a matter of respect for the state's role and for the

10

allocation of function's in our federal system, as well as

comity towards the state, the relief ordered by the federal

11

court must be consistent with the policy of minimum intrusion

into the affairs of state prison administration...

12 Id. The Ninth Circuit expressly adopts the Ruiz view of the

13 limited role of the federal judiciary. Toussaint v. McCarthy. 801

14 F.2d 1080, 1088 (9th cir. 1986). This deference extends with
15 special force to security matters. A prison's "internal security

16 is peculiarly a matter normally left to the discretion of prison
17 administrators." Rhodes v. Chapman,. 452 U.S. 337, 349 (1981).
18 Prison administrators "should be accorded wide-ranging deference
19 in the adoption and execution of policies and practice that in
20 their judgment are needed to preserve internal order and to
21
maintain institutional security." Bell v. Wolfish. 441 U.S. at 22

547. 23

This deference applies to juvenile institutions as well as 24

adult prisons. As stated in a juvenile institution case, Gary H. 25

v. Heastad. 831 F.2d at 1433: 26

MEMORANDUM OPPOSING MOTION FOR PRELIMINARY INJUNCTION - 13

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB K> BOX 40124 OlympU, WA 98504-0124 (205) 459-6558

1

The court should defer to the policy choices made by prison

officials and order a remedy consistent with the basic

2

approach taken by prison officials, unless that approach

itself is inconsistent with the Eighth Amendment.

3

Quoting Hoptowit V. Rav. 682 F.2d 1237, 1247 (9th Cir.1982).

4

Youngberg v. Romero. 407 U.S. at 324, held:

5

Decisions made by the appropriate professionals are entitled

6

to a presumption of correctness. Such a presumption is

necessary to enable institutions of this type — often,

7

unfortunately overcrowded and understaffed — to continue to

function. 8

Based on these cases, Green Hill's pepper spray policy is

9

entitled to deference by the court, and to a presumption of

10

correctness. Deference is due because it was formulated by

11

professionals at Green Hill, who are best equipped to judge

12

security needs of the institution. For reasons discussed in

13

Section II(A) of this memorandum, the pepper spray policy should

14

be upheld, and the security decisions of Green Hill officials

15

should not be second-guessed. Plaintiffs have not overcome the

16

presumption of correctness that attaches to the policy. Granting

17

the injunction would be an impermissible intrusion into the

18

internal security affairs of a state correctional institution.

19

D. The current pepper spray policy does not warrant the 20

court granting a preliminary injunction. 21

Plaintiffs' expert, Dr. Milan, offers conclusory opinions 22

that many of the prior sprays were of residents who presented no 23

immediate danger. Green Hill disputes this conclusion, although 24

admits two sprays were improper because the residents were 25

handcuffed at the time. While the number of inappropriate past 26

MEMORANDUM OPPOSING MOTION. FOR PRELIMINARY INJUNCTION - 14

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SB PO BOX 40124 Otympia, WA 98504-0124 (206) 459-6558

sprays is in dispute, the fact is that since the time this lawsuit

was filed, Green Hill adopted a new pepper spray policy that

addresses all plaintiffs' concerns. Infra, at 2-3.

Regardless of what allegedly happened in the past, a

plaintiff must demonstrate a "credible threat" of specific injury.

Kolender v. Lawson. 461 U.S. 352, 355 (1983). There must be an

individualized showing of a "very significant possibility" that

8 future harm will incur. Nelson v. King Cy.. 895 F.2d 1248, 1950

(9th Cir. 1990) . Past exposure to harm is largely irrelevant when

10 ruling on injunctive relief predicated on the threat of future

11 harm, if unaccompanied by any continuing, present adverse effects.

12 O'Shea v. Littleton. 414 U.S. 488, 495-96 (1974). In denying a

13 claim for injunctive relief, the court in Rodriguez v. Kincheloe.

14 763 F.Supp. 463, 468 (E.D.Wash. 1991) held:

15

Mr. Rodriguez has presented no evidence of continuing,

present adverse effects from the alleged unconstitutional

16

conduct. Thus, he must show a threat of future harm. `The

burden (of) showing a likelihood of recurrence (is) firmly on

17

the plaintiff.'

18

On October 1, 1994, Green Hill implemented a new pepper spray

19 policy. Since that time, pepper spray has been used three times,

20 and clearly was justified in each circumstance. There is

21 absolutely no reason to believe that the policy will not be

22 followed in the future. Green Hill's willingness to adopt a new

23 policy addressing all of plaintiffs' concerns, and its record of

24 adhering to that policy, demonstrate plaintiffs cannot meet their

25 burden of showing a very significant probability of future harm.

26

MEMORANDUM OPPOSING MOTION. FOR PRELIMINARY INJUNCTION - 15

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Olympia, WA 985OUH24 (206) 459-6558

1

For the sake of argument, if Green Hill in the future uses

2 spray in violation of the policy, plaintiffs may have a claim for

3 damages under 42 U.S.C. § 1983. They also may have a claim for

4 injunctive relief if they can show a very significant probability

5 of additional violations in the future. However, under the

6 current situation, there are no grounds for injunctive relief

7 because Green Hill has adopted a constitutional policy for using

8 pepper spray, is abiding by it, and intends to keep abiding by it.

9

III. CONCLUSION

10

Based on the foregoing, the state defendants respectively

11 request that plaintiffs' motion for preliminary injunction be

12 denied.

13

DATED this 'I day of November, 1994.

14

CHRISTINE O. GREGOIRE

Attorney,General

15

16

RICHARD A. McCARTAN, WSBA #8323

Assistant Attorney General

17

Attorneys for Defendants

18

19

20

21

22

23

24

25

26

MEMORANDUM OPPOSING MOTION .FOR PRELIMINARY INJUNCTION - 16

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SB PO BOX 40124 OlympU, WA 98504-0124 (206) 459-6558

 
 Horton v. Williams

1
JI-WA-0002-0027
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

11

JAMES HORTON; JAMES BARNHART; JEROME PAYTON; J.B., through his next

12

friend, LORRAINE WEST; and K.M., through his mother DEBBIE MOORE, on behalf of

13 themselves and all others similarly situated,

14

Plaintiffs,

15

v.

CASE NO. C94-5428 RJ3
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PRELIMINARY INJUNCTION RE PEPPER SPRAY

16 BOB WILLIAMS, in his official capacity as
Superintendent of Green Hill School; JEAN

17 SOLIZ, in her official capacity as Secretary

¡¡:

of the Department of Social and Health Services; and SID SIDOROWICZ, in his

1official capacity as Assistant Secretary of

181 the Juvenile Rehabilitation Administration;

i19 and the CHEHAL!S SCHOOL D!STRICT,

20

Defendants.

21

THIS MATTER comes before the court on plaintiffs' Motion for Preliminary Injunction Re

22 Pepper Spray. The court has considered the records and files herejn and all documents filed

23 in support of and in opposition to the motion. On 5 December 1994 the court heard the

24 argument of counsel and supplemented the record by the addition of Exhibit 1. On 6 December
25 |;
1994 the court orally ruled and said oral ruling is by this reference made a part of this order. The
25 I court being full aav¡sed it is now ORDERED as follows:
27 \

2 r` I ORCEF GRANTING IN PART AND DENYING IN PART MOTION FOR PRELIMINARY INJUNCTION RE PEPPER S¤RAY . 1

1

The Motion for Preliminary Injection Re Pepper Spray is GRANTED in part and DENIED

2 in part as follows: Pepper spray may only be used on students at Green Hill School in situations

3 which are reasonably likely to result in injury to persons or injury to a substantial amount of

4 valuaole property. Implicit in this ruling is the following: 1) there must be a credible threat of a

5 specific injury; 2) the only legitimate intended result of a pepper spray use is the incapacitation

5 of a dangerous person and not the infliction of pain; 3) that pepper spray£haJ! not be used for

7 punishment and shall be used only in furtherance of legitimate pricofì interest which, in this

8 situation, means the incapacitation of a dangerous person; 4) pepper spray should only be used

9 when absolutely necessary, which means that it should be used only if there is a threat of equal

10 or greater harm to others or to a substantial amount of valuable property than the pain and

11 ¡ danger of harm that the use of pepper spray presents. The defendants are hereby enjoined from

12 ! any use of pepper spray on students at Green Hill School except as may be consistent with this

13 order.

14 ;

This order shall remain in effect until further order of the court or final judgment of this

15 case.

15 |

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

17 of record and to any party appearing pro se at said party's last known address.

18

DATED this 0 " day of

/QfC€íuk<a,'

,19

20

/> I

Robert j/Bryar/

21

United States p¡strict Judge

22

23

24

25

26

27

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PRELIMINARY INJUNCTION Rt PEPPER SPRAY · 2

 
 Horton v. Williams l/>

ORIGINAL

J WA-0Ò02-0Ò28

48

-FILED.

1

UNITED STATES DISTRICT COURT_

.RECEIVED

WESTERN DISTRICT OF WASHINGTON

2

AT TACOMA

2 7 1994

3
4 JAMES HORTON, et al., on behalf of themselves and all others
5 similarly situated,

CLERK U.S. DISTRICT COURT

BY

OISÌRICT OF WASHINGTON AT TACOMA
DEP!'¦

Docket No. C94-5428 RJB

6

Plaintiffs,

Tacoma, Washington

December 6, 1994

7

v.

9:30 a.m.

8 BOB WILLIAMS, et al.,

9

Defendants.

10

11

VOLUME II

TRANSCRIPT OF MOTION FOR PRELIMINARY INJUNCTION

12

BEFORE THE HONORABLE ROBERT J. BRYAN

UNITED STATES DISTRICT JUDGE.

13

APPEARANCES:

14

For the Plaintiffs: 15

PATRICIA J. ARTHUR ROBERT STALKER

Evergreen Legal Services

16

101 Yesler Way, Suite 301

Seattle, Washington 98104

17

For the Defendants 18

CAROL A. MURPHY RICHARD A. MCCARTAN

Assistant Attorneys General

19

670 Woodland Square Loop SE

P.O. Box 40124

20

Olympia, Washington 98504-0124

21 Court Reporter:
22
23

Julaine V. Ryen Post Office Box 885 Tacoma, Washington 98401-0885 (206) 383-7919

24 Proceedings recorded by mechanical stenography, transcript
25 produced by Reporter on computer.

. 1

49

1

THE COURT: This is Horton versus Williams, 94-5428,

2 and comes on this morning for a ruling on the motion for

3 preliminary injunction regarding pepper spray. This T.s going

4 to take me some time to explain the legal reasons for my

5 ruling, and so I hope you will bear with me. In some ways it

6 would be better to delay this to write an oral opinion — I

7 mean to write a written opinion, but I would prefer to lay the

8 matter to rest at this stage and not delay it. I think I can

9 cover the necessary issues orally and accurately.

10

First, I think this question has resolved itself into

11 the issue of the propriety, the constitutional propriety of

12 the 1 October 1994 policy for Green Hill School in regard to

13 the use of pepper spray, or, as the policy is called, the use

14 of physical restraint and restraint devices. The subject part

15 of the policy is under number 4 and indicates in two paragraphs

16 what the current policy is for the use of pepper spray, and it

17 reads as follows:

18

"The use of physical restraint and/or restraint devices,

19 excluding aerosol, is appropriate when a resident fails to

20 comply with a staff directive and presents an immediate danger

21 to self, others, property, or the security of the institution,

22 and other means of control or attempts at verbal de-escalation

23 have been unsuccessful."

24

Then a separate paragraph for the use of aerosol, that

25 "Aerosol may be used when a resident fails to comply with a

.1

50

1 staff directive and:

2

"a. the use of other physical restraint measures to gain

3 compliance, without the use of aerosol, likely wouTd result in

4 bodily injury to the resident, staff, or others; or

5

"b. the resident is engaging in disruptive behavior in his

6 room which creates a serious disturbance and threatens

7 institutional security by inciting serious misbehavior by other

8 residents."

9

It is my conclusion that that policy is constitutionally

10 over broad and therefore not permissible. However, that's not

11 to say that the motion should be granted as made or granted in

12 all respects prohibiting the use of pepper spray.

13

Now, let me wander through legal analysis that leads me to

14 that conclusion and also that will lead to a specific ruling as

15 to the propriety of the use of pepper spray.

16

First, I think we need to have some understanding of some

17 terms that are used and kind of thrown around here. This

18 pepper spray is referred to in the policy as a restraint. It

19 is the only restraint referred to in the state's policy that is

20 also a weapon. A weapon is "an instrument of offensive or

21 defensive combat"; it is "something to fight with"; and it is

22 something that is "used in destroying, defeating, or physically

23 injuring an enemy," according to the dictionary. So, arguably,

24 pepper spray can be a restraint device because it does

25 effectively disable people and thereby restrains them. But it

-1

51

1 is also a weapon, unlike such things as handcuffs, leg cuffs,

2 waist chains, soft cuffs, plexiglass shields, and mattresses

3 with hand holds referred to in the policy. This pëpp¾r spray

4 alone of the restraint devices indicated is a weapon as well as

5 a restraint device.

6

The definition of weapon includes the word combat, and a

7 combat is "a fight, encounter, or contest between individuals,"

8 of course.

9

We also are dealing here with a concept of punishment, and

10 whether the use of this pepper spray under the current policy

11 is or can be used for punishment. Again, according to the

12 dictionary, to punish is "to impose a penalty (as of pain,

13 suffering, shame, strict restraint, or loss) upon for some

14 fault, offense, or violation." It can also mean, to punish, it

15 can be "to deal with roughly or harshly."

16

We have a question here, as we will see, as to whether the

17 use of this pepper spray under the current policy is and can be

18 used as punishment as opposed to something that is necessary

19 for restraint. Restraint means, according to the dictionary,

20 restraint is "a means, force, or agency that restrains, checks

21 free activity, or otherwise controls." We see from this

22 analysis that, I think, clearly pepper spray is both a weapon

23 and a restraint.

24

The question of security has also come up and I have

25 looked at that. Because the policy speaks to institutional

52

1 security, and a problem with that term is that it is a somewhat

2 general term that does not have a very specific meaning.

3 Again, under the dictionary, security is "the qualfty¯ or state

4 of being secure: as (a) freedom from danger," but it also

5 includes "freedom from fear, anxiety, or care," and "freedom

6 from uncertainty or doubt." In other words, security does not

7 necessarily just mean security from specific dangers, but can

8 also be read much more broadly than that.

9

Now, that's sort of a glossary of terms that are in issue

10 here.

11

I should make some specific findings, and there are not

12 very many that need to be made here. But pepper spray is a

13 substance that, when applied, causes substantial pain to the

14 skin and eyes and respiratory system that can make it difficult

15 to breathe for a short period and that causes tearing and

16 momentary blindness and substantial pain that essentially

17 incapacitates the person against whom it is used. It is not

18 known to be dangerous in the long term or to cause serious

19 injuries, although it appears to me from what has been

20 submitted that there is a potential for long-term injury,

21 particularly to specifically susceptible individuals, that has

22 not been clearly determined by the scientific community. But

23 as we know it and understand it, it is short-term painful and

24 incapacitating. It is long-term not dangerous.

25

We know, also, from the record in this case, that this

53

1 substance has been used at Green Hill in ways to gain and keep

2 control over individuals that amounts to pain compliance

3 methods and that it has been used in emergency, dangerous

4 situations, and it has also been used in nondangerous

5 situations in order to gain compliance or control over

6 students. It has been used, as Exhibit 1 shows us, in that way

7 under part (b) of the policy when there is no likelihood of

8 bodily injury to anyone and no likelihood of serious or

9 substantial injury to valuable property.

10

One thing that the record in this case tells us is that

11 pepper spray, if not controlled, is a weapon that can be used

12 for punishment and can be used, as some of the cases say,

13 sadistically and maliciously by staff inappropriately, and it

14 is therefore of critical importance to be sure that its use is

15 limited to proper constitutional uses under the law and not for

16 purposes that are beyond what is constitutionally permissible.

17 So there is a factual framework for the court to examine into

18 this issue and to determine whether the policy now in effect is

19 constitutionally permissible and appropriate.

20

With that, we turn to the constitutional underpinnings of

21 this issue, and we know that this is, as applied to juveniles

22 in a juvenile institution in this state, a fourteenth amendment

23 due process issue. But we also know that the due process

24 clause implicitly incorporates the eighth amendment prohibition

25 against cruel and unusual punishment as a constitutional

54

1 minimum. We know that from the Gary H. v. Heqstrom case in 831

2 F.2d 1430, and also, for that matter, from the Younqberq case,

3 from the Supreme Court, found at 457 U.S. 307. We know from

4 those cases that the due process standard is more protective of

5 unconvicted juveniles. They're theoretically not convicted of

6 criminal acts, although they are found to have committed acts

7 that would be criminal if they were adults. But the due

8 process is more protective of those individuals than the cruel

9 and unusual punishment standard. We understand that these

10 individuals are not only prisoners, but are wards of the

11 juvenile court and state and are entitled to more protection

12 than convicted adult criminals. But it's my view in this

13 analysis that the cruel and unusual punishment standard,

14 because it does apply through the due process clause here,

15 gives us a good foundation in law to analyze what is and is not

16 permissible under the circumstances here.

17

It's important to note here that both parties to this case

18 have agreed that pepper spray is not constitutionally

19 appropriate or permissible when used as punishment, and we will

20 discuss here the question of what is punishment and what is

21 not, I suppose. But that is also sort of a baseline that we

22 start with in this analysis, is that pepper spray is not to be

23 used as punishment and that both parties agree to that, I

24 think.

25

Younqberq also stands for the proposition that before the

55

1 court can involve itself in orders that change what the state

2 is doing in some way, the court must identify some

3 constitutional predicate for the imposition of a dú^ty^ on the

4 state. That is an important concept, and it seems to me that

5 the constitutional predicate that we are here discussing is the

6 eighth amendment as applied here through the fourteenth.

7

Youngberq also stands for the proposition that the court

8 must give deference to appropriate state professionals, and I'm

9 going to talk some more about that, but that is a very

10 important concept here because there is a presumption of

11 correctness in the decisions made by state officials.

12

We know, also, from Youngberq, however, that juveniles are

13 entitled to be free from undue restraint. They have a liberty

14 interest in being free from undue restraints, and it's the job

15 of the court, as well as the staff at Green Hill, to balance

16 the liberty of the individual and the demands of an organized

17 society. In other words, those liberty interests have to be

18 balanced against state interests.

19

The bottom line of -– well, I should say a little bit more

20 about Younqberg, which also stands for the proposition in

21 speaking to the issue of deference. Younqberg stands for the

22 proposition that decisions of an appropriate professional are

23 entitled to a presumption of correctness and validity, and they

24 should be overturned only if the professional's decision is

25 "such a substantial departure from accepted professional

56

1 judgment, practice, or standards" as to show that the person

2 responsible did not base the decision on such a judgment.

3

I think that' s a quote.

¯¯ ^

4

What that means, however, is not that professionals at

5 Green Hill have the last word, but that they should have the

6 professional last word, provided that it is a responsible last

7 word. But if their decision violates the constitution, then

8 the presumption of correctness and validity in their decisions

9 is certainly rebuttable.

10

The final rule of the Youngberq case, as I read it, is

11 this: The court should uphold those restrictions on liberty

12 that are reasonably related to legitimate government objectives

13 and not tantamount to punishment.

14

I next want to turn our attention to two cases that I

15 think are available that give us the most guidance in the

16 eighth amendment questions presented here, again through the

17 fourteenth, and that are factually related. The first of those

18 is Spain v. Procunier, 600 F.2d 189, a 1979 Ninth Circuit case

19 involving tear gas; and Michenfelder v. Sumner, 860 F.2d 328,

20 also a Ninth Circuit case, 1988, involving taser guns, or

21 whatever you -– tasers. Those cases, in my view, have to be

22 read together.

23

Spain was written by a judge, now Justice Kennedy, and

24 does, I think, an excellent job of putting this deference to

25 appropriate state professionals' decisions in the correct

57

1 context. And I'm going to quote from page 193.

2

"The federal courts should use great restraint before

3

issuing orders based on the finding that the state has

4

followed unlawful procedures in discharging the

5

unenviable task of keeping dangerous men in safe

6

custody under humane conditions. This said, it must

7

also be remembered that enforcement of the eighth

8

amendment is not always consistent with allowing

9

complete deference to all administrative

10

determinations by prison officials. Whatever rights

11

one may lose at the prison gates . . . the full

12

protections of the eighth amendment most certainly

13

remain in force. The whole point of the amendment is

14

to protect persons convicted of crimes. Eighth

15

amendment protections are not forfeited by one's prior

16

acts. Mechanical deference to the findings of state

17

prison officials in the context of the eighth

18

amendment would reduce that provision to a nullity in

19

precisely the context where it is most necessary. The

20

ultimate duty of the federal court to order that

21

conditions of state confinement be altered where

22

necessary to eliminate cruel and unusual punishments

23

is well established. . . . In this regard we

24

recognize that an equatable decree should not go

25

further than necessary to eliminate the particular

58

1

constitutional violation which prompted judicial

2

intervention in the first instance."

3

One should not paraphrase another judge's language, but I

4 think that quotation fairly explains the tensions that exist

5 between the presumption of correctness of professionals'

6 opinions and constitutional decisions made on the basis of the

7 eighth amendment.

8

It is clear from Spain that the danger presented by a

9 substance is an important consideration, and in Spain, as I

10 read it, the tear gas used there was available for use in not

11 dangerous quantities. I have been in tear gas chambers in the

12 Army, and the tear gas that I have been exposed to is very

13 similar to what I have heard pepper spray described as. I

14 think Spain gives us a benchmark when, in that decision, Judge

15 Kennedy said that "Therefore . . . we think [tear gas] use can

16 be justified in situations which are reasonably likely to

17 result in injury to persons or a substantial amount of valuable

18 property. . ." It seems to me that that is the benchmark

19 minimum standard for use of pepper spray in the institution at

20 Green Hill. The policy here that is in issue goes beyond that

21 limit.

22

There are some other things that we learn from the

23 explanation of the Spain case that is found in Michenfelder.

24 Also I would refer to Kolender, in 461 U.S. 352, which speaks

25 of the necessity for a credible threat of specific injury.

59

1 Michenfelder, in discussing this problem, only tasers as

2 opposed to tear gas or pepper spray — again in an adult prison

3 setting discussing eighth amendment issues -– indicated at page

4 335, that the legitimate intended result of a shooting, that is

5 with a taser, is incapacitation of a dangerous person, not the

6 infliction of pain.

7

I think that directly applies to the Spain minimum

8 standard and to this case. The legitimate — and this means to

9 me the only legitimate — intended result of the use of such a

10 substance is incapacitation of a dangerous person, and

11 certainly not the infliction of pain.

12

Now, there's another very important concept in

13 Michenfelder that applies here, and at page 335, again, the

14 court in Michenfelder — I didn't look to see who wrote this.

15

Judge Fletcher from Seattle.

16

She said this:

17

"In Spain v. Procunier . . . in which we found

18

that limited use of a demonstrably dangerous and

19

painful substance, tear gas, did not violate the

20

eighth amendment when used to contain disturbances

21

that threatened an equal or greater harm. . . .

22

Implicit in the court's holding is the requirement

23

that the instrumentality not be used for punishment

24

and be used in furtherance of a legitimate prison

25

interest only when absolutely necessary."

60

1

She further said that "The infliction of pain and the

2 danger of serious bodily harm may be necessary if there is a

3 threat of an equal or greater harm to others. . ." ¯¯ ^

4

She went on to say, at page 336, again referring to taser

5 guns, but I think it applies here:

6

"A finding that the taser gun is not per se

7

unconstitutional would not validate its unrestricted

8

use. '[T]he appropriateness of the use must be

9

determined by the facts and circumstances of the

10

case.' . . . A legitimate prison policy of carrying

11

tasers to enforce discipline and security would not

12

warrant their use when unnecessary or 'for the sole

13

purpose of punishment or the infliction of pain."1

14

Clearly, what that means to me is that the use of pepper

15 spray is not unconstitutional. The inappropriate use of pepper

16 spray is.

17

That case, Michenfelder, turns us directly to the common

18 law of the use of force and when it is and when it is not

19 appropriate, because Michenfelder clearly indicates that in

20 determining whether use is proper, there must be a balancing

21 between the harm and pain and danger of its use with the threat

22 of an equal or greater harm to others. So, in other words, the

23 harm that you are trying to prevent must be equal or greater

24 than the force used to prevent that harm.

25

We don't have to go very far to find the standards for the

61

1 use of reasonable force. An easy way to get into the law is to

2 look at pattern jury instructions, model jury instructions. In

3 this state, Washington Pattern Jury Instructions, criminal,

4 17.01, .02, and .04 and .05 all speak to this issue. The Ninth

5 Circuit Model Jury Instruction 605 in the criminal set speaks

6 to it. In the civil area, Ninth Circuit Model Jury Instruction

7 11.01.02 speaks to this issue.

8

The guiding standard for the use of force, as applied to

9 law enforcement officers, is that they have the right to use -–

10 or, for that matter, correction officers — such force as is

11 reasonably necessary under the circumstances to make a lawful

12 arrest or, for that matter, to enforce the rules of the

13 institution here, but they cannot use excessive force.

14 Excessive force is measured by the force a reasonable and

15 prudent officer would use under the circumstances.

16

All I'm saying is that the balancing test found in

17 Michenfelder is the same test that we use in matters of

18 self-defense in criminal law, that we use in matters relating

19 to the use of force in civil cases, as well as in criminal

20 cases, and it is a balancing test where one has to balance the

21 danger and harm and pain of the use of force against a threat

22 of equal or greater harm. That concept is entirely missing

23 from the policy here.

24

I mentioned the civil law that we find in excessive force

25 civil cases under section 1983. There is a fairly recent case,

62

1 Hudson v. McMillian — the cite I have is 117 L.Ed.2d 156, a

2 1992 case written by Justice O'Connor — that speaks to this

3 question of what is punishment in a prison setting "and what is

4 proper control. She indicates that the test is whether the

5 force was applied in a good-faith effort to maintain or restore

6 discipline, or maliciously and sadistically to cause harm.

7

The problem with that test is rather obvious to me, and it

8 is that there is sort of a sliding scale between a good faith

9 effort to maintain or restore discipline, on the one hand, and

10 malicious and sadistic efforts to cause harm on the other. The

11 point of that comment, I guess, is that Hudson does not really

12 give us a bright line test, as it purports to do for civil

13 liability, for the use of force, but it clearly indicates, as

14 the parties agreed here, that the use of force for punishment

15 is not appropriate.

16

Now, where does that get us when we apply those rules of

17 law that I just enumerated that I think are a base line to the

18 policy here in issue? Where it gets us is that the policy in

19 part (a) is not sufficiently clear or definitive for when it's

20 proper to use aerosol spray, and the policy in part (b) is, in

21 my view, clearly outside of what is permissible under the Spain

22 and Michenfelder standards, as well as Youngberq.

23

I will try and bring this to a conclusion, but what is

24 difficult here is formulating a policy that will really address

25 this issue of controlling residents in a fair and effective way

63

1 and, at the same time, in a constitutional way which will limit

2 the use to those circumstances — that have to be determined on

3 a case-by-case basis -– where there is, in fact, a "reasonable

4 likelihood that there will be an injury to persons or injury to

5 a substantial amount of valuable property. How does one limit

6 the use to avoid the use of it for punishment but to make it

7 available for necessary emergency, self-defense, or law

8 enforcement type purposes? It's difficult to do. It certainly

9 is difficult for the management at Green Hill. But what is

10 inherent in this, in the law, as I see it, and the prohibition

11 against cruel and unusual punishment is that it is not

12 appropriate to routinely use pain to gain compliance with staff

13 directives.

14

Before I conclude on that issue, let me address for a

15 minute the requirements for a preliminary injunction.

16

To obtain a preliminary injunction, a party must show

17 either a likelihood of success on the merits and the

18 possibility of irreparable injury or the existence of serious

19 questions going to the merits and the balance of hardships

20 tipping in the movant's favor. Those are points on a sliding

21 scale in which the required degree of irreparable harm

22 increases as the probability of success decreases.

23

First, it's my opinion that the infliction of pain and

24 injury, even though it may be limited in duration, on Green

25 Hill students from the use of pepper spray is an example of

64

1 irreparable harm. The fact that one can get money damages if

2 it's done inappropriately will not make the students whole. In

3 my judgment, if the policy is allowed to stand in rts^present

4 form, the facts presented here show a strong threat of the kind

5 of irreparable injury that the court should properly address.

6

Second, I am satisfied from the showing that there is a

7 strong likelihood of partial success on the merits of this for

8 the plaintiffs, on this issue, for the reasons that I have just

9 enumerated. Therefore, I think a partial injunction is

10 appropriate.

11

Before I conclude this, let me address one specific

12 situation. I think each situation, as the case law indicates,

13 has to rise or fall on the circumstances presented. When a

14 student is making a disturbance in his room and is threatened

15 with the use of pepper spray and after a period of time

16 continues to make noise, but then the pepper spray is used

17 while the student is not making noise but in a defensive

18 posture, it seems to me that we are over the line into

19 punishment at that point. All that we're doing at that point

20 is using pain and injury and disability to get that person to

21 comply with a staff directive, and that is beyond the

22 appropriate use of pepper spray as defined for tear gas in the

23 Spain case. It may be that those same circumstances in some

24 situations will present a likelihood of a real credible threat

25 indicating a likelihood of injury. It may be that because of

65

1 what the student has done in his room that that situation may

2 also be likely to result in an injury to a substantial amount

3 of valuable property, but not in every case. When "the pepper

4 spray is simply used to gain compliance with a staff directive,

5 because a staff member or members, including the

6 superintendent, feels that there is some unspecified threat to

7 institutional security -– whatever that means -– that simply is

8 not an appropriate standard.

9

It is my judgment that this injunction requested should be

10 granted in part and denied in part, for the reasons I have

11 indicated, as follows:

12

Pepper spray may only be used on students at Green Hill

13 School in situations which are reasonably likely to result in

14 injury to persons or injury to a substantial amount of valuable

15 property. That is the basic standard out of Spain that I think

16 clearly is a minimum standard to apply here. Use beyond that,

17 it seems to me, is clearly outside the limits of the

18 constitution and therefore the court should not defer to the

19 judgment of staff or professional staff in allowing the current

20 standards to continue.

21

Now, implicit in this ruling are some things that are, I

22 think, most important:

23

One, there must be a credible threat of a specific injury.

24

Two, the only legitimate intended result of a pepper spray

25 use is the incapacitation of a dangerous person and not the

66

1 infliction of pain. A dangerous person, of course, is one that

2 is showing a likelihood that he will cause injury, as I have

3 indicated.

¯¯ ^

4

Third, pepper spray should not be used for punishment and

5 shall be used only in furtherance of a legitimate institutional

6 interest, which in this situation means the incapacitation of a

7 dangerous person. It's not appropriate to use that pepper

8 spray except when its necessary to incapacitate someone who

9 presents a danger.

10

Fourth, pepper spray should only be used when absolutely

11 necessary, which means that it should be used only if there is

12 a threat of equal or greater harm to others, or to a

13 substantial amount of valuable property, than the pain and

14 danger of harm that the use of pepper spray presents. In other

15 words, there is the same balancing test required that Judge

16 Fletcher spoke to in Michenfelder and that the law of excessive

17 force requires in any use of force by law enforcement.

18

It's my judgment that the defendant should be enjoined

19 from any use of pepper spray on students at Green Hill School

20 except as may be consistent with the order that I have here

21 verbalized, that I also have written out in the form of an

22 order.

23

It is important in these things to make as narrow a ruling

24 as is possible and not to go beyond what is required. This

25 ruling reflects my belief that pepper spray has its proper use

67

1 in this setting, but it is limited in proper use, as I have

2 indicated. I think it would be a bad mistake to enjoin its use

3 entirely because it is a tool or a weapon in the arsenal that

4 should be available to security staff for use in appropriate

5 circumstances, and it is a far better tool to use in

6 appropriate circumstances than other means of gaining

7 compliance to appropriate staff directives where some force is

8 required.

9

Also, I have not taken the invitation of the plaintiffs to

10 require the state to redraft their policies and to bring those

11 policies back to court for further approval. There are many

12 safeguards written into the policy as it now exists involving

13 cleanup, showers, medical care, and so forth. I see no need to

14 address those things. If policies are not followed, there can

15 be harm done, but I should, and here do, only address that

16 portion of the existing policy that in my view does not pass

17 constitutional muster. So I have not, in other words,

18 attempted to rewrite policy, but by this order am only limiting

19 that portion of the policy that I think is not consistent with

20 the federal constitution.

21

I have prepared an Order Granting in Part and Denying in

22 Part Motion for Preliminary Injunction Re Pepper Spray, and it

23 more succinctly than I have stated here says what I mean.

24

I see one error in it that I am changing, and I will give

25 you copies of this.

68

1

What clearly remains is case-by-case decisions that must

2 be made by institution staff and professionals within the

3 limits that I have indicated here.

¯¯ ~

4

I clearly have not tried to designate specific factual

5 circumstances in which it is proper or not proper to use pepper

6 spray, but hopefully this ruling will give sufficient guidance

7 so that the future uses of pepper spray, if any, will be within

8 the confines of the eighth amendment and the fourteenth

9 amendment.

10

I have just made some copies so you can see that, and I

11 will file the order at this time.

12

That's all.

13

(Above hearing concluded at 10:30 a.m.)

14

15

16

17

CERTIFICATE

18

19

I certify that the foregoing is a correct transcript from

20 the record of proceedings in the above-entitled matter.

21

22

23
JULAINE V. ÉÍYEN
24

25

, LODGED1 RECEIVED

1

UNITED STATES DISTRICT COU WESTERN DISTRICT OF WASHING1

2 7 1994

2

AT TACOMA

TACOMA

3

DEPUTY

4 JAMES HORTON, et al., on behalf of themselves and all others
5 similarly situated,

Docket No. C94-5428 RJB

6

Plaintiffs,

Tacoma, Washington

December 5, 1994

7

v.

9:30 a.m.

8 BOB WILLIAMS, et al.,

9

Defendants.

10

11

VOLUME I

TRANSCRIPT OF MOTION FOR PRELIMINARY INJUNCTION

12

BEFORE THE HONORABLE ROBERT J. BRYAN

UNITED STATES DISTRICT JUDGE.

13

APPEARANCES:

14

For the Plaintiffs:

PATRICIA J. ARTHUR

15

ROBERT STALKER

Evergreen Legal Services

16

101 Yesler Way, Suite 301

Seattle, Washington 98104

17

For the Defendants

CAROL A. MURPHY

18

RICHARD A. McCARTAN

Assistant Attorneys General

19

670 Woodland Square Loop SE

P.O. Box 40124

20

Olympia, Washington 98504-0124

21 Court Reporter:
22
23

Julaine V. Ryen Post Office Box 885 Tacoma, Washington 98401-0885 (206) 383-7919

24 Proceedings recorded by mechanical stenography, transcript
25 produced by Reporter on computer.

1

THE COURT: This is Cause No. 94-5428, Horton and

2 others versus Williams and others, and it comes on today for

3 oral argument on plaintiffs' motion for a preliminary"

4 injunction.

5

If you will make your appearances.

6

For the plaintiff.

7

MS. ARTHUR: Your Honor, I'm Pat Arthur, for the

8 plaintiff, and with me is Bob Stalker.

9

THE COURT: Okay.

10

For the defense.

11

MS. MURPHY: Your Honor, I'm Carol Murphy, Assistant

12 Attorney General, representing the state defendants in this

13 action. With me is Richard McCartan, my cocounsel, and Bob

14 Williams, superintendent of Green Hill School.

15

THE COURT: A couple of preliminary questions.

16

Well, one preliminary question.

17

Now that the state has adopted a new policy effective 1

18 October, does that make the question here really whether that

19 policy meets constitutional muster, or do we go behind that to

20 the situation as it used to be?

21

I guess that's my only question. You can address that as

22 part of the argument, if you wish, Ms. Arthur, and also Ms.

2 3 Murphy.

24

So the floor is yours, Ms. Arthur.

25

MS. ARTHUR: Thank you, Your Honor.

1

The new policy, we believe, does not meet constitutional

2 muster. I also don't think that that's the only question

3 either, however. I believe that the practices of €he^

4 defendants before the new policy was implemented is something

5 that the court needs to address and look at in order to

6 understand the degree to which they have abused and misused

7 pepper gas inappropriately and in violation of the youths'

8 constitutional rights in the past. But more importantly, in

9 addressing your question, and also on practice, I think the

10 court needs to look at the practices since the policy. Not

11 only is the question whether the policy meets constitutional

12 muster important, which we believe it doesn't, but I think it

13 is very relevant for the court to look at the practices since

14 the time the policy was implemented.

15

In that regard, if I may, Your Honor, I would like to

16 approach the bench and offer incident reports that I received

17 on Friday, which were produced by the defendants, and these

18 incident reports and major incident reviews look at the five

19 incidents that have occurred of pepper gas use since the new

20 policy. Actually these new pepper gas sprayings occurred since

21 November 13th, and there were five, Your Honor, in 23 days

22 since November 13th.

23

If I may, I would like to introduce them to supplement the

24 record.

25

THE COURT: Hand them up to the clerk.

1

Do you have objection to these, counsel?

2

MS. MURPHY: Your Honor, we do. We were given copies

3 of these documents just before this proceeding started this

4 morning. However, we're not prepared to respond to the

5 specific statements made in them at this time.

6

THE COURT: I thought they were your records?

7

MS. MURPHY: They are one of several records kept by

8 the institution, that's correct. However, I have not had time

9 to review these with my client and am not prepared to base

10 argument on these documents at this time.

11

THE COURT: Have you had a chance to read them?

12

MS. MURPHY: No, Your Honor. As you know, the

13 documents in this motion alone are extremely voluminous.

14

THE COURT: I know. I've been reading them all

15 weekend.

16

MS. MURPHY: Right. I'm sure you have. I have not

17 had an opportunity at all to look at the documents that

18 plaintiff is attempting to introduce this morning.

19

THE COURT: Well, the answer to that, I think, is

20 that this is an appropriate exhibit if it comes from the

21 defendants' records. You will have an opportunity to read them

22 before you have to comment on them this morning. After you

23 have read them and have had a chance to discuss them with your

24 client, if there's something unfair about the court considering

25 them, I will hear that.

1

Go ahead, Ms. Arthur.

2

MS. ARTHUR: If I may just comment on a couple of

3 things about the instances that have occurred in th¯e last 23

4 days before I look at the policy, before I address the question

5 about the new policy.

6

There were five sprayings since the new policy. Two

7 occurred just on the 27th of November. If the court would look

8 and counsel would look at page 7 of 36 in the packet that I

9 just prepared, this is an atypical example of someone who was

10 sprayed. Out of the five juveniles who were sprayed, four were

11 sprayed for banging in their cells. Four were locked in their

12 cells posing no threat of injury to anyone by their behavior.

13 The only behavior that they were engaged in was banging in a

14 locked cell.

15

Mr. Iniquez, who is discussed in this major incident

16 review at page 7 of 36, was one such individual who was sprayed

17 for banging in his cell. I want to point the court's attention

18 to this incident in particular. If you look at the bottom of

19 that page, it indicates that after he was sprayed, he hit his

20 head on the exit door. Staff were escorting him to the shower.

21 Again, one of the things that our experts have indicated, not

22 only does the pepper spray itself cause excruciating pain to

23 these juveniles and debilitating, incapacitating pain for a

24 period of time, but it also, because they're temporarily

25 blinded after the spraying, it causes them to be unable to walk

1 safely, and as we've noted in our papers, that's one of the

2 harms that these juveniles are subjected to, and, in fact, in

3 one of these instances that just happened recently "the juvenile

4 was injured.

5

All the other incidents -– there were four, as I say, who

6 were banging on their cells. The other juvenile was sprayed

7 for refusing to go to his room, even though he was not

8 presenting any kind of threatening or violent behavior. There

9 was no threat of injury to individuals.

10

In our opinion, Your Honor, as we have set forth in our

11 submissions, it is constitutionally impermissible for the state

12 to inflict this kind of unnecessary pain on juveniles who do

13 not pose an immediate threat of injury. As evidenced even by

14 the examples of use of spray after the new policy, they

15 continue to use pepper spray when kids do not exhibit immediate

16 threat of injury. Juveniles who are locked in their cells,

17 threatening harm to no one, are merely banging on their cell -–

18 and causing disruption, for sure. In our opinion, Your Honor,

19 there are less intrusive means of addressing that behavior.

20 The juvenile could be moved, the juvenile could be counseled, a

21 team trained in crisis intervention techniques could come and

22 address the situation.

23

The defendants, however, believe they only have two

24 alternatives. One is to spray the juvenile with pepper spray;

25 two is to take them to the ground or physically fight him to

1 stop him from the behavior, the problem behavior.

2

Looking at the policy, Your Honor, I don't believe the

3 policy cuts constitutional muster. We believe that" under the

4 due process clause, which is the applicable constitutional

5 principle that applies here, juveniles -– unnecessary pain

6 cannot be inflicted on juveniles, and juveniles have a right to

7 be free from unnecessary restraint. In this case the restraint

8 is chemical, but it is a restraint, a painful one, nonetheless.

9

THE COURT: Are the standards really different for

10 juveniles than they are in an adult institution in this regard?

11

MS. ARTHUR: Yes, Your Honor, I believe they are.

12 The Ninth Circuit has held in Gary H. v. Heqstrom that though

13 the eighth amendment principles are incorporated as a

14 constitutional minimum into the fourteenth amendment, the

15 fourteenth amendment does provide greater protection. In the

16 Milonas v. Williams case, which is a Tenth Circuit case from

17 1982, the case that dealt with the Provo Canyon in Utah

18 facility where the issue was the hair holds of the juveniles,

19 in that case I believe that the due process clause relied upon

20 there by the court provided greater protection than an eighth

21 amendment analysis would for a prisoner in an adult facility.

22 Remember, juveniles have not been convicted of crimes and

23 therefore do have greater protection under the fourteenth

24 amendment.

25

THE COURT: I understand that. Isn't that really a

8

1 distinction without a difference as applied to grading?

2

MS. ARTHUR: I don't think so, Your Honor, in terms

3 of the constitution.

¯" ^

4

THE COURT: You can analyze these things until you

5 are blue in the face, but what we are really dealing with here

6 is, isn't it, a prison setting with people convicted of

7 committing criminal acts, even though technically they're

8 called something else?

9

MS. ARTHUR: That's true, Your Honor, but the

10 constitution has held that when a juvenile has not been

11 convicted of a crime — which is true at Green Hill, even

12 though there's no doubt about it, it looks like a prison, it

13 feels like a prison, there is very little treatment that

14 actually goes on there for juveniles — the courts have held

15 that for constitutional purposes, if you have not been

16 convicted of a crime, that you are entitled to the broader

17 protections of the due process clause, which includes in this

18 context a right to be free from physical restraints. And at

19 least minimally the eighth amendment would afford the right to

20 be free from the infliction of unnecessary pain, and that's

21 what we think happens here.

22

THE COURT: Let me ask you a couple of other

23 questions along that line.

24

Isn't that essentially the same standard that adult

25 prisoners enjoy?

1

MS. ARTHUR: No, Your Honor, it's not. I think that

2 there's a greater protection under the due process clause,

3 and —

4

THE COURT: As a practical matter, how does it apply?

5 What's the greater protection?

6

MS. ARTHUR: The protection is — I think that there

7 is a different standard under the eighth amendment. I think

8 under the eighth amendment, in order to show that the

9 infliction of pain was unconstitutional, you would not only

10 have to show that it was punitive, which we do in this case,

11 but you would have to show an intent element, a subjective

12 element, which that standard has not been applied in the

13 context of juvenile cases. So the standard is, I believe,

14 different.

15

But, Your Honor, even under an eighth amendment standard,

16 even with the application of a subjective element that would

17 apply in an eighth amendment analysis, I believe that the

18 plaintiffs would prevail in these circumstances. I believe

19 that the infliction of the pain on these youths at Green Hill

20 School would still be unconstitutional, and that's because

21 these defendants are knowingly, knowingly using pepper gas,

22 which they know causes pain, to coerce these juveniles to

23 comply with institutional rules. They are doing it in the name

24 of the security of the institution, but it is unnecessary.

25 There are other less painful, less intrusive ways of dealing

10

1 with the behavior.

2

One of our experts said 74 percent of the instances that

3 he reviewed, when he looked at the 27 tapes of instances that

4 he reviewed, in 74 percent there was absolutely no problem at

5 all with the kid, that the juvenile was exhibiting. They were

6 quiet, they were calm, there was no danger whatsoever of injury

7 to the juvenile.

8

So I think the eighth amendment is a different standard,

9 but even if we were looking at the eighth amendment, because it

10 is a knowing infliction of unnecessary pain — and the policy,

11 going back to the policy, Your Honor, the policy permits it,

12 and that itself, I think, would satisfied an eighth amendment

13 standard, although I think it is a different standard.

14

THE COURT: You think the policy is appropriate

15 insofar as it allows the use of pepper spray when there is an

16 immediate danger to self, others, or property?

17

MS. ARTHUR: Almost. Almost, it's okay. The problem

18 with that is that it allows -– it allows threat to property,

19 whereas the cases Michenfelder and Spain, even in the adult

20 context, say it has to be substantial property of value — of

21 substantial valuable property. So there's a problem with that.

22

The other thing I have to say with regard to that is that

23 the policy on its face, if it were to just permit pepper spray

24 in that circumstance, where there is immediate threat of injury

25 to self or others or substantial valuable property, I think

11

1 would be appropriate, but that's where it's very important for

2 the court to look at the history of what has been going on for

3 the last three years at Green Hill School. And I tfhiñk, as we

4 proposed in our proposed preliminary injunction, which I

5 submitted to court and opposing counsel this morning, I think

6 that they have so demonstrated at Green Hill School their

7 inability to use pepper gas only in narrowly described — in

8 those narrowly described circumstances, that there needs to be

9 a plan of -– a new policy that limits it just to those narrowly

10 defined circumstances, and a plan to implement that policy in a

11 way that staff can understand it.

12

Your Honor, in the depositions that we took of three

13 people before filing this motion, three staff members

14 responsible for implementing the policy at Green Hill School,

15 two didn't even know which policy was in effect at the time

16 that they were providing testimony. They were actually

17 operating on the policy that had been superseded a year or so

18 before. The staff there are incapable and have demonstrated

19 their inability to limit their use of pepper spray to only the

20 emergency kind of circumstances that the constitution would

21 permit.

22

And for this reason, Your Honor, we have presented a

23 somewhat unusual proposal in terms of the injunction that we

24 are seeking. We are asking you to enjoin them from using it

25 period, because they are not able to at this point use it

12

1 within the confines of the constitutional rights of the

2 juveniles, but afford them an opportunity, because it is proper

3 for them to devise a policy that would meet the coñstfìtutional

4 limits that apply, and to develop a plan that will help train

5 their staff to abide by that policy that limits the use of

6 pepper gas only to very narrow emergency circumstances.

7

If I might -–

8

THE COURT: Do you think that standard, the

9 appropriate standard, is set out in Spain? Do you think that's

10 the test?

11

MS. ARTHUR: I think the Spain standard is an eighth

12 amendment standard, Your Honor, and I think the appropriate

13 standard is the Milonas v. Williams, which is a due process

14 juvenile case, which is a Tenth Circuit case.

15

THE COURT: What was the standard in Milonas?

16

MS. ARTHUR: Milonas says that it violates the

17 fourteenth amendment to inflict unnecessary pain unless there's

18 violence — a threat of violence. It doesn't talk about

19 property, and it's not all that clear, Your Honor. But my

20 reading of Milonas is that it would be inappropriate to use any

21 kind of force. In that case, it was simply -– I think it was

22 called Indian hair holds or something. It was they used hair

23 holds on juveniles to manage them when they were disruptive or

24 difficult. In that case, the court said unless there's a

25 threat of violence, that kind of — that kind of punishment is

13

1 what is prescribed, that kind of force is not permissible. And

2 it doesn't talk about the —

3

THE COURT: I'm under the impression thaC the state

4 agrees that pepper spray may not be used for punishment

5 purposes.

6

MS. ARTHUR: Indeed, Your Honor. Not only do they

7 believe that that's the legal standard, but their declarations

8 that they have submitted in fact support our position. If you

9 recall the declaration of Craig Apperson and Dr. Dubeyƒ the two 10 mental health people whose declarations were submitted in

11 support of the defendants' papers, those two individuals -–

12 who, by the way, it never indicates in their declaration and

13 their joint declaration that they looked at one videotape or

14 reviewed one incident report of any actual use of pepper spray,

15 and there's been over a hundred, over a hundred incidents. So

16 I think what they say in terms of what the practice is at Green

17 Hill Schools needs to be scrutinized because they didn't, as

18 far as the papers reveal, review any incident of the use of

19 pepper spray.

20

But regardless of that, they start out their declaration

21 by saying, to use pepper spray as punishment would be

22 inappropriate. In their professional judgment, it is

23 inappropriate, which is the position that our experts take,

24 which is the position that we maintain as well. The question

25 is, is banging on -– is a juvenile locked in a cell banging on

14

1 the door necessary? Is that punishment? We believe because it

2 is not necessary and there are other less painful intrusive

3 ways with dealing with that circumstance, it is punis¯ìiment.

4

If I may say one other thing about the policy as it is

5 written — I'm not sure if this is necessary — but on page 3

6 of the current policy, I think this is where the problem with

7 this policy —

8

THE COURT: Wait a minute. Wait a minute. I don't

9 see on your copy of the policy -–

10

MS. ARTHUR: It's on the top of the page.

11

THE COURT: It's — okay. So it's —

12

MS. ARTHUR: It's "Green Hill School Policy/Procedure

13 #4."

14

THE COURT: Okay. All right.

15

MS. ARTHUR: The page number is on the top of the

16 page. The third paragraph down is what I want to talk about in

17 that, where it starts "Aerosol may be used when a resident

18 fails to comply with" -–

19

THE COURT: Now, wait a minute. Wait a minute.

20 We're not in the same place.

21

MS. ARTHUR: We're not at the same policy. Are you

22 looking -– are you looking at the Green Hill School Policy/

23 Procedure #4?

24

THE COURT: Yes. But up at the top, the page stamp

25 is 004, in what you gave me.

15

1

MS. ARTHUR: Your Honor, I actually took this copy -–

2

THE COURT: I think it's the third page.

3

MS. ARTHUR: I think it is, too. I took¯¯th¯ìs copy

4 out of the defendants' submissions.

5

THE COURT: So it's the paragraph beginning "Aerosol

6 may be used"?

7

MS. ARTHUR: That's correct, Your Honor.

8

THE COURT: Okay.

9

MS. ARTHUR: That, I think, is the key paragraph and

10 one of the key problems with this policy. It clearly permits,

11 under that paragraph, aerosol restraints to be used whenever a

12 juvenile fails with a staff directive and other physical

13 restraint measures to gain compliance without the use of

14 aerosol likely would result in bodily injury to the resident,

15 staff, or others.

16

Let me tell you what's wrong with that paragraph before I

17 go on to the next.

18

The problem with that paragraph, Your Honor, is that, as

19 we see from the submissions of Mr. Williams and other staff

20 people, and also the depositions we took of the staff members,

21 the staff at Green Hill School interpret that whenever a

22 juvenile violates a rule — if they don't stop banging their

23 cell, for example — that the only alternative that they have

24 is to fight that juvenile, therefore risking injury, or to

25 spray him. And that's the construct that they've created to

16

1 suggest that bodily injury would result if they don't use

2 pepper spray. Therefore, any time a juvenile breaks a rule,

3 they can justify using pepper spray because the staff would

4 have to take them down.

5

Now, what that does is, number one, it defines the

6 constitutionality of the use of pepper spray in terms not of

7 the juvenile's behavior. It doesn't define in terms of whether

8 the juvenile himself is presenting a danger or is exhibiting

9 conduct that is violent, but rather it defines the need for

10 pepper spray in terms of the guard's behavior. It suggests

11 that if the guard would have to fight the juvenile, and

12 therefore it's the guard's behavior that is going to cause the

13 risk of injury, that therefore, whenever there's a rule

14 violation, we can use pepper spray. And that's exactly how

15 they interpret it. That's why they can broadly — that's why

16 the staff broadly used pepper spray in any instance when a

17 juvenile has failed to comply with the rule.

18

And going on to the second paragraph, Your Honor, the

19 second clearly is inappropriate because it allows the resident

20 to be sprayed who fails to follow staff directive and engages

21 in disruptive behavior which creates a serious disturbance and

22 threatens institutional security by inciting serious

23 misbehavior by other residents. There is no suggestion in that

24 portion of the policy that there even needs to be a threat of

25 physical or emergency of a physical harm.

17

1

That's the key of, I think, what's wrong with this policy,

2 Your Honor.

3

So in answer to your question, I think the policy is

4 constitutionally infirm. I think their practices as they have

5 existed prior to the implementation, and even after the

6 implementation, of the policy inflict unnecessary pain on these

7 juveniles, cause them to be subject to restraint, unlawful

8 chemical restraint, in violation of the Constitution.

9

That answers your question about the policy, I think, Your

10 Honor.

11

THE COURT: Let me — I have so many papers here I

12 can't find what I'm looking for.

13

Here it is.

14

I don't want to blind side you all with a different

15 approach, so let me suggest it and see if you have comments on

16 it.

17

Under the law, the juvenile officers — whatever you call

18 them — in an institution have a right to use reasonable force

19 to gain compliance with lawful objectives. Right?

20

MS. MURPHY: Yes, that's right.

21

THE COURT: Reasonable force is ordinarily defined in

22 some way as what is necessary under the same or similar

23 circumstances. There are some other things about that, that if

24 you are in a lawful place, you need not retreat and you don't

25 have to wait for actual force if there is a threatened use of

18

1 force. You can consider that and respond with the force that

2 is reasonable under the circumstances. The reasonable person

3 test, the reasonably prudent person test.

~ ~

4

Under that -– and the same thing is true if it's

5 self-defense, you can use reasonable force under the

6 circumstances to defend yourself or others. All of the use of

7 force by officers and, for that matter, by other people is

8 governed by the reasonable person standard.

9

Does that apply here? And if so, is that one of the

10 things we are looking at, is the reasonableness of the use of

11 this particular force in these particular circumstances?

12

MS. ARTHUR: I would like an opportunity to think

13 about it more, Your Honor, and brief it, if you think it is

14 necessary, but I have an initial response to it as well.

15

My instinct about it is that a reasonable force standard

16 is not one that has been applied under the due process analyses

17 of other courts in analyzing whether force has been

18 constitutional in an institutional setting. And I think that

19 the reason that it may not be appropriate, it's not comparable

20 to a situation where you get someone who is defending

21 themselves, for example, and I don't think it's comparable to a

22 situation of a police officer on the street responding to an

23 individual, because these are juveniles who have been taken

24 into the custody of the state, and as a result of that unique

25 relationship between the state and the juvenile, which is by

19

1 law clear, creates or gives rise to certain constitutional

2 rights that the juvenile has in that circumstance that may not

3 make that analysis appropriate.

4

I don't know -–

5

THE COURT: Let's aim at it from a different

6 direction. Part of this case are section 1983 claims.

7

MS. ARTHUR: Uh-huh.

8

THE COURT: Isn't that the standard that would be

9 applied on claims for money damages?

10

MS. MURPHY: There are no claims —

11

THE COURT: Section 4 standard.

12

MS. MURPHY: There are no claims for money damages in

13 this case, but again, I don't believe that that would be the

14 standard with regard to this circumstance where you have

15 juveniles who are detained by the state, presumably for

16 purposes of providing treatment — or at least the fiction is

17 legally that's what is to occur. And there are unique —

18 because of that unique circumstance, there are different

19 standards. I think that that would apply on the damages issue

20 as well.

21

THE COURT: Let's just take a for instance, that some

22 young man is banging on the bars creating a disturbance. Staff

23 determines that it is threatening institutional security —

24 whatever that means — so they zap the guy with spray and he's

25 injured by this, in whatever way, and he sues the state and the

20

1 officer for money damages because they used more force than is

2 reasonably necessary under the circumstances.

3

Aren't you right into an excessive force analysis?

4

MS. ARTHUR: It is an excessive force analysis in

5 some of the fourteenth amendment cases, to the extent that the

6 cases say — and I think Younqberq v. Romero says this -– that

7 an action becomes punitive if it's excessive. It gets you back

8 into the reasonableness standard in that way.

9

So I think certainly reasonableness, the reasonableness of

10 the actions is a very important critical factor that the court

11 needs to analyze. I would look at it a little differently as

12 it — because I think it comes into play, that analysis comes

13 into play on the question of whether or not the infliction of

14 pain or the use of force is excessive or reasonable under the

15 circumstances, because if it's not, it's punitive.

16

THE COURT: Okay.

17

Thank you, Ms. Arthur.

18

Ms. Murphy, let's take a minute to read this exhibit. If

19 you need more time, why, let me know.

20

MS. MURPHY: Your Honor, I'm prepared to start at

21 this point, if that's okay with you.

22

THE COURT: Pardon me?

23

MS. MURPHY: I'm prepared to start at this point, if

24 that's okay with you.

25

THE COURT: I'm not. Let me finish this.

21

1

Okay , Ms. Murphy.

2

MS. MURPHY: Thank you for that opportunity, Your

3 Honor.

¯* ~

4

I would just like to start by talking about the

5 population, briefly, at Green Hill.

6

Of all juvenile offenders in the State of Washington,

7 those housed at Green Hill are older, mostly repeat offenders,

8 and the majority have committed violent crimes. Most have been

9 found by the court to have committed offenses equivalent to

10 felonies in adult courts.

11

Some residents come to Green Hill from other institutions,

12 juvenile institutions, in the state when they become too

13 difficult to handle at other juvenile institutions. Despite

14 this challenging population, and contrary to the picture that's

15 painted by the plaintiffs, pepper spray is actually used very

16 seldom. In over the last four years, it's used about 106

17 times.

18

THE COURT: What's the population there generally?

19

MS. MURPHY: The population is between 170 and 190

20 over the last calendar year, with a staff of approximately 200.

21 This is a challenging institution, at best. The residents only

22 come there after showing that they do not behave in regular

23 society.

24

As I said, pepper spray is not used routinely. In fact,

25 over the last four years, only 105 times. That's an average of

22

1 about two a month.

2

Now, interestingly enough, that statistic has gone up

3 since this lawsuit has been instituted. But only ãbo¯üt 94 —

4 excuse me -– 94 percent of the residents at Green Hill have not

5 been sprayed with pepper spray, so it's not a common

6 occurrence.

7

The plaintiffs have said that Green Hill looks and feels

8 like a prison, and maybe that's true because of the population

9 and the residents there. However, the staff at Green Hill have

10 an even more challenging responsibility than prison officials

11 because in addition to having to maintain an orderly

12 institution, the safety and the security of residents there, as

13 well as staff, the administrators there also have a

14 responsibility to send these residents to school every morning,

15 to engage them in programming, and this applies no matter what

16 type of disciplinary sanction applies to the resident. So it's

17 even more difficult than a prison setting because the

18 administrators do not have all the tools available in a prison

19 setting, rather, because of the fourteenth amendment standard,

20 the burden on administrators is much higher on maintaining a

21 safe and secure institution as well as maintaining the

22 programming and education, and that requires that the residents

23 get a decent sleep at night so that they can get up at 6:30 in

24 the morning and go to school.

25

The plaintiffs are asking this court to ban pepper spray

23

1 from Green Hill School. This is an outrageous request and not

2 done by any court in this country. The plaintiffs have

3 submitted to us only this morning their actual request for

4 relief. However, that order is extremely far-reaching and

5 clearly beyond the constitutional minimum.

6

There are no pepper spray uses at issue before us today.

7 This is a request for injunctive relief, and the only

8 consideration is what is going to happen in the future.

9

The plaintiffs face a difficult burden in this stage.

10 They must show the likelihood of prevailing on the merits of

11 this case as well as a significant risk of irreparable injury.

12 Because plaintiffs' submissions have shown neither, they are

13 not entitled to injunctive relief.

14

In order to prevail on the merits of their fourteenth

15 amendment claim, as was mentioned earlier, the standard is that

16 the plaintiffs must show that the current pepper spray policy

17 is not reasonably related to legitimate government objectives,

18 and also that the use of pepper spray constitutes punishment.

19 And as was alluded to earlier, that's the difference between

20 the eighth amendment standard and the fourteenth amendment

21 standard. The standards come from the Gary H. case and the

22 Younqberq case, and it's very similar to the eighth amendment

23 standard which applies to the prison setting, which is that a

24 reasonably related government objective will justify

25 infringements on a person's liberty.

24

1

The plaintiffs' submissions show that pepper spray is not

2 used in the institution as punishment, and I will get to that

3 later. The cases in this area speak to taser guns/¯ tear gas,

4 and other substances that were known by the court to cause harm

5 at the time that the court decided those cases. Despite that,

6 those courts did not completely ban those substances from the

7 institution, whether it be a juvenile institution or a prison.

8 Those cases found that the substances may only be used in

9 specifically subscribed circumstances, and that's exactly what

10 we have here.

11

Another distinction between the case — the published

12 cases that we have regarding taser guns, tear gas, and other

13 substances is that what is at issue here is pepper gas, which

14 has not been shown to cause any long-term effects whatsoever.

15 That's a major difference that -–

16

THE COURT: But it causes short-term pain.

17

MS. MURPHY: Short-term discomfort, that's correct.

18 The defendants do not dispute that.

19

THE COURT: You choose to use "discomfort" rather

20 than "pain"?

21

MS. MURPHY: It's been described various ways, Your

22 Honor. But our experts agree that it does cause burning of the

23 eyes and difficulty in breathing, all short term. And no

24 long-term effects have been shown to result from the use of

25 pepper spray.

25

1

Once again, this is a distinction between the other

2 published cases regarding chemical restraints.

3

Since the pepper spray policy was first utilized"-- since

4 pepper spray was first utilized at Green Hill in 1990, staff

5 has continually been updating their training and improving

6 their policy. The latest of those is represented in the

7 current policy that went into effect on October 1st of 1994.

8

Once again, that is the issue before this court, is the

9 current policy. The officials at Green Hill should be given at

10 least the opportunity to correct any alleged improprieties in

11 the use of pepper spray, and staff have done that. They have

12 taken the opportunity to draft a policy which specifically

13 subscribes the points at which pepper spray may be used. It

14 may only be used when the superintendent has authorized it

15 under the specific criteria mentioned in the policy. And the

16 policy also mentions specific factors.

17

Unlike the picture that the plaintiff would like to paint

18 regarding the institution, the restraint policy and pepper

19 spray are but one tool used by staff when difficult situations

20 arise. As shown in the defendants' submissions in this motion,

21 Green Hill School manages staff behavior through extensive

22 positive reinforcement, including mental health services and

23 other positive reinforcement techniques. Good behavior is

24 rewarded with privileges, and that is the basis for behavior

25 modification at Green Hill School.

26

1

In terms of their recent sprays and the submissions by the

2 plaintiffs today, it is inappropriate to at this point second-

3 guess those uses. It is appropriate to look and consider

4 whether the pepper spray was used in accordance with the

5 policy, and it is clear that it was.

6

Plaintiffs summarily state that residents who were

7 involved in these incidents posed no threat or risk of injury.

8 However, several staff members found that there was a risk or a

9 threat of injury, and that's reflected in the reports. It's

10 easy with a cold record after the fact and outside the

11 institution to look at these documents and say these people did

12 not present a risk of harm. However, officials at Green Hill

13 at the time dealing with a situation which was escalated to the

14 point of having to restrain a resident decided to deal with the

15 situation in that way. And I think that this court cannot find

16 that that was a clearly unreasonable response to the situation.

17

In addition, plaintiffs fail to point out that the use of

18 pepper spray has been averted in two out of three times for

19 which it has been authorized. The use of pepper spray has been

20 authorized by the superintendent approximately 330 times since

21 the pepper spray use went into effect at Green Hill School.

22 However, it's only been used a little over a hundred times.

23 This demonstrates the de-escalation techniques utilized by

24 staff at Green Hill. Unlike plaintiffs' contention that staff

25 at Green Hill utilized pepper spray in any difficult situation,

27

1 that simply is not the case. In fact, staff de-escalate the

2 situation in the majority of the cases.

3

Appropriate use of pepper spray has been shown €ò

4 significantly reduce injuries to staff and residents. As the

5 record indicates, the number of injuries in the year prior to

6 the implementation of the pepper spray policy is equal,

7 approximately, to the number of all injuries since then, in the

8 four years since then. Therefore, this record clearly

9 indicates that there's been a decrease in injuries both to

10 staff and to residents, and in fact that is the reason for the

11 policy.

12

Decreasing physical combat also decreases potential

13 exposure to blood form pathogens, including HIV, and that's

14 shown in the submissions of the state defendants.

15

Green Hill School staff psychologist and contract

16 psychiatrists agree that the use of pepper spray results in a

17 better treatment environment by removing the risk of injury and

18 discouraging assaultive behavior.

19

THE COURT: Do you think the use of pepper spray is

20 combat?

21

MS. MURPHY: It's not physical combat. It is a

22 chemical restraint, so in that context, I suppose it does

23 restrain the person. That is the intent of the chemical.

24 However, it is intended to avoid combat, and that is physical

25 confrontation. And as the staff psychologist at Green Hill, as

28

1 well as a psychiatrist stated, that avoiding that physical

2 confrontation, that actual hand-to-hand combat, reduces

3 injuries as well as increasing the rehabilitative efforts at

4 Green Hill School.

5

Now, the plaintiffs' experts would claim that pepper

6 spray, and in fact any combative behavior whatsoever, would be

7 contrary to rehabilitative efforts. Perhaps that's true, but

8 plaintiffs offer no alternatives. Absolutely none. No

9 alternatives offered when a resident is completely out of

10 control. And as I stated before, Green Hill School

11 administrators have a difficult job. They have to control

12 these residents, and not allow the residents to control the

13 institution. The plaintiffs' experts offer absolutely no

14 alternative rather than counseling, and counseling is already

15 utilized by Green Hill staff. In fact, it's required to be

16 utilized by Green Hill staff to de-escalate any situation. As

17 our statistics show, counseling has been utilized successfully

18 to de-escalate those situations where pepper spray has been

19 authorized. Pepper spray is only used when all other methods

20 of negotiation have proved unsuccessful. That's not contested.

21

Staff at Green Hill School who are familiar with the

22 environment and the population believe that pepper spray is an

23 essential tool to minimize staff injuries and retain control

24 over unruly inmates. Although plaintiffs' experts somehow

25 believe that counseling will stop a resident who is unruly,

.1

29

1 that simply is not the case. In fact, accepted principles of

2 juvenile rehabilitation state that certain combative techniques

3 are appropriate, and the pepper spray policy at Gréen¯ Hill is

4 specifically intended to avoid combative type of behavior.

5

THE COURT: Don't you think it is combative behavior

6 on the part of staff when they use it? You want to talk about

7 it as restraint, but —

8

MS. MURPHY: That's right.

9

THE COURT: — it's really a weapon, isn't it?

10

MS. MURPHY: Excuse me?

11

THE COURT: It's really a weapon, isn't it?

12

MS. MURPHY: It could be termed as a weapon, and some

13 courts have seen it that way. However -–

14

THE COURT: It's the only restraint listed in your

15 policy that is usable for combat or that inflicts pain by its

16 nature.

17

MS. MURPHY: It would be the state's position that

18 physical confrontation automatically inflicts pain, and it is

19 the purpose of the pepper spray policy to avoid that injury

20 because there is no long-term effects whatsoever of pepper

21 spray. So unlike any other method -–

22

THE COURT: Why don't you — just as a for instance:

23 How about electric shock, a cattle prod that is toned down for

24 human use. Anything wrong with that?

25

MS. MURPHY: Let's talk about the cases that have

30

1 decided issues like that, and there have been cases dealing -–

2 that's exactly what a taser gun is. A taser gun is a low-

3 level shock applied to a resident. The cases that "have dealt

4 with taser guns have not shown that taser guns need to be

5 banned from institutions. None of them have shown that.

6

THE COURT: Their use has to be —

7

MS. MURPHY: Limited, exactly.

8

THE COURT: To what extent?

9

MS. MURPHY: The state would agree that even the use

10 of pepper spray should be limited, even though it is different

11 from the use of a taser gun in that there is no long-term

12 effect whatsoever. Taser guns, as well as tear gas, if used in

13 high concentrations, can be lethal. This is not true of pepper

14 spray. There is no lethal amount.

15

THE COURT: Do you think it would be constitutionally

16 permissible to use a taser that is toned down so that it will

17 not create long-term harm, and to use it in the same way as

18 pepper spray is used?

19

MS. MURPHY: In fact the cases have shown that taser

20 guns can be used appropriately, and as long as -–

21

THE COURT: I guess what I'm asking you is, what is

22 appropriately?

23

MS. MURPHY: The cases state that when there is a

24 threat of harm that it is appropriate use to engage in the use

25 of chemical restraints, as well as taser guns.

31

1

THE COURT: We're not talking about that necessarily

2 here, a threat of harm, are we?

3

MS. MURPHY: I believe that we are, Your Honor. I

4 believe that we are. And in order to show that, why don't I go

5 through what the new policy is and the significant test that is

6 listed on the new policy.

7

The new policy specifies the reasons for, the warnings

8 prior to use, and requires that the superintendent authorize

9 each use. The current policy test is that pepper spray may

10 only be used when a resident fails to comply with a staff

11 directive and one of the two following applies.

12

a. the use of other physical restraint measures to gain

13 compliance without use of pepper spray likely would result in

14 bodily injury to the resident, staff, or others. Clearly, that

15 means that without the use of pepper spray, there is a threat

16 of physical bodily harm to resident, staff, or others if it is

17 not used.

18

THE COURT: By whom?

19

MS. MURPHY: Excuse me?

20

THE COURT: Threat by whom?

21

MS. MURPHY: A threat by the resident.

22

The resident's failure to comply with the directive -–

23

THE COURT: It doesn't really say that it has to be a

24 threat of violence by the resident, though.

25

MS. MURPHY: No. What has to happen is that the

32

1 resident fails to comply with a directive, and staff, in

2 enforcing compliance with the directive, if having to use

3 physical restraint measures in order to do that, would result

4 in injury.

5

So the appropriate instance in this case would be when a

6 resident is out in a common area and creating a disturbance,

7 not complying with a staff directive, and the only alternative

8 that the staff has is to physically engage the resident in

9 order to make them comply with the directive.

10

Now, plaintiffs claim that the state defendants misstate

11 their choices at this point. However, all of the choices are

12 in the resident's court. The resident is the one that chooses

13 to disobey the order, and the resident is the one that chooses

14 after ten minutes of being warned that they would rather be

15 sprayed with pepper spray than comply with the order. The

16 staff has already issued possible decisions to the resident.

17 "Do you want to comply with the order?" Counseling to the

18 resident.

19

THE COURT: Let's take some for instances here.

20

Suppose the staff says, you know, for a ridiculous

21 example, part your hair on the left instead of on the right,

22 and the guy says no. So they talk to him about that for ten

23 minutes and warn him and everything else, and he says, "No, I'm

24 not going to part my hair on the other side," and in order to

25 get compliance, they are going to have to take him down and

33

1 part his hair themselves. Would that give them grounds to use

2 pepper spray?

3

MS. MURPHY: No, Your Honor, and that is~c<5ïnpletely

4 distinguished with what we have before this court today. The

5 plaintiffs do not dispute whatsoever that the orders and the

6 directives that have been issued by staff and disobeyed by the

7 residents in each of these instances have been reasonable

8 orders. There is no question as to that.

9

THE COURT: The point of my question is that, unless

10 I missed it, "staff directive," as used in the policy, is not

11 defined.

12

MS. MURPHY: Correct, and I think there is an

13 assumption that it would be a legitimate staff directive, and

14 there has been no showing whatsoever that staff have abused

15 that.

16

The law is clear in that first instance that the use of

17 other physical restraint measures would likely result in bodily

18 injury. The Spain and Michenfeider cases indicate that that

19 standard is met in this policy.

20

The second reason it can be used is under (b), and I don't

21 know if you're following along with the policy here.

22

THE COURT: Yes. I've got it.

23

MS. MURPHY: "The resident is engaging in disruptive

24 behavior in his room which creates a serious disturbance and

25 threatens institutional security by inciting serious

34

1 misbehavior by other residents." So once again, we do have

2 threatening behavior. We have threatening behavior in each

3 instance that pepper spray is used.

¯¯ ~

4

THE COURT: There is no threatening behavior in the

5 second one. It is disruptive.

6

MS. MURPHY: And threatens institutional security.

7

THE COURT: But the resident doesn't have to threaten

8 institutional security

9

MS. MURPHY: No.

10

THE COURT: The situation has to threaten

11 institutional security.

12

MS. MURPHY: Exactly.

13

THE COURT: By inciting serious misbehavior by other

14 residents. So you have a situation where one resident may be

15 creating a fuss in his room and the staff may be worried that

16 others will join in, in some way, and so they can conclude,

17 well, he's, by this noise, he's inciting others. And what is

18 institutional security?

19

MS. MURPHY: Your Honor, in each of the instances

20 that it has been used under the new policy, inciting serious

21 misbehavior in other residents is not just a likelihood that it

22 will happen, but actually other residents banging and

23 continuing with that same sort of behavior. So it's not just a

24 likelihood that it will incite other residents.

25

THE COURT: We're talking about your policy.

35

1

MS. MURPHY: That's correct.

2

THE COURT: The policy says "by inciting serious

3 misbehavior."

¯" ~

4

MS. MURPHY: Inciting, not threatening to incite. So

5 the behavior of the resident has to actually incite others.

6

THE COURT: I don't think that's what this says.

7

MS. MURPHY: At any rate, the —

8

THE COURT: I think to get it to mean what you just

9 suggested the word would be "incites" serious misbehavior. In

10 other words, the act of inciting doesn't require that you

11 incite anyone actually. It refers to an attempt or actions

12 that may incite.

13

One thing that troubles me about this, Ms. Murphy, is what

14 is institutional security?

15

MS. MURPHY: It's true that it's not a well-defined

16 term, and it's not a well-defined term in the law, either. As

17 this court is well aware, that's a term that's used fairly

18 frequently in the prison context, in the state of the law

19 regarding prison policies. There is no clear-cut standard on

20 exactly what institutional security is. There are many

21 policies in prisons and juvenile institutions which are there

22 for the purpose of institutional security. However, it's the

23 purview of the court to look at the policies and only find them

24 to be unconstitutional if they are clearly unreasonable in

25 light of the standard. And the standard is reasonably related

36

1 to legitimate government objectives.

2

As I indicated to you before, Green Hill administrators

3 have not only an objective to keep residents safe from harm,

4 but also to -– the rehabilitative efforts of the school are

5 very important as well. The school administrators are required

6 to allow an environment whereby the students can get up in the

7 morning and go to school, and many of these instances that

8 we're speaking of that have occurred recently occur at all

9 hours of the night and involve several residents.

10

Now, when you're looking at alternatives, let's look at

11 what the administrators at Green Hill School are left with.

12 They're left with the possibility of removing that student in

13 order to allow the other residents to be quiet and calm down;

14 allowing that resident to go on, uncontrolled banging, yelling,

15 screaming, inciting others to do the same, and the whole unit

16 doesn't sleep that night, and could cause a real disturbance in

17 their cell, causing a staff member or several staff members to

18 have to go in and restrain them. These are the types of things

19 that happen when a situation like that is allowed to escalate.

20

Green Hill School administrators dealing with the

21 population that they have, with the experience that they have,

22 have determined that the pepper spray policy and the restraint

23 policy in effect is an effective way of responding to the

24 legitimate objectives that they have before them. Unless this

25 court, the plaintiffs, or somebody else comes back with a

37

1 better alternative, that's what the Green Hill officials have

2 decided to do. And there is no better alternative given by the

3 plaintiffs in that situation.

" ¯¯¯

4

The plaintiffs' experts are also opposed to isolation

5 cells. So what are we left with? Are there no tools that

6 Green Hill administrators can use in order to control that

7 behavior? Is it supposed to go on unchecked?

8

THE COURT: Do the adult prisons in this state have a

9 pepper spray policy?

10

MS. MURPHY: Yes, they do, Your Honor. Every

11 institution does.

12

THE COURT: What is the criteria for use in the adult

13 setting?

14

MS. MURPHY: In the adult setting, it's -– obviously

15 this is not in the record. However, in the adult setting it's

16 a little bit different, and the reason for that is in the adult

17 setting, the IMUs, or intensive management units, are

18 completely segregated, isolation cells in which the inmates

19 reside there for 23 hours a day at least. So that is an option

20 in the prison system. That is not an option in the juvenile

21 rehabilitation system. So the standard is different. But in

22 the case of an inmate in the correctional facility who refuses

23 to obey a staff order and must be physically restrained in

24 order to comply with that order, pepper spray is appropriate.

25 And, in fact, the correctional officers have been used in past

38

1 to train Green Hill staff, and the training is definitely

2 adequate, although the standard used at Green Hill is very

3 different than the correctional standard, as I said¯, Because of

4 the alternatives available in the prison setting, and those

5 alternatives are simply not available in the juvenile setting.

6

All of this, of course, is not in the record in this case.

7

THE COURT: I understand.

8

MS. MURPHY: Besides listing those two specific

9 instances, in accordance with the Michenfelder and Spain case,

10 the policy requires staff to attempt to gain compliance.

11

THE COURT: Wait a minute. Wait a minute. Spain

12 doesn't say anything about institutional security, does it?

13

MS. MURPHY: No, Your Honor. I was talking about the

14 standard with regard to responding to legitimate governmental

15 objectives.

16

The staff policy requires staff to gain compliance through

17 verbal instruction and negotiation which shall continue up to

18 the time that pepper spray is used, and in fact that has been

19 done in every single instance, and plaintiffs do not claim that

20 it hasn't been used. Up until the time pepper spray is used,

21 the resident has always been given an opportunity to comply

22 with the staff directive.

23

Now, this --

24

THE COURT: If it's used because somebody is making

25 noise in his room or cell, at the time it's used, there is

39

1 almost always at that moment compliance, is there not?

2

MS. MURPHY: Usually, yes. For a very short period

3 of time. But, Your Honor, to say that is to say th¯at^ if a

4 resident, when, after refusing the instruction and after given

5 a ten-minute warning period still refuses the instruction,

6 holds up their hands in front of their face, does that mean

7 that they are complying with the order and therefore should not

8 be sprayed?

9

Once again, these are difficult decisions, and it's

10 extremely difficult to look at a cold record in this courtroom

11 rather than at the institution where staff are dealing with

12 these issues and say, "No, that situation is over; that

13 situation has de-escalated and that resident will comply," when

14 in fact the actions of the resident indicate that they will not

15 comply. And that ten-minute waiting period is very important

16 because the resident is given every opportunity to comply with

17 the instruction.

18

Now, it often happens, and it is in the submissions and

19 affidavits of the defendants, that a resident will play a game

20 with the staff.

21

THE COURT: Sure.

22

MS. MURPHY: And that's a difficult situation, as

23 well. We have attempted to interpret the policy and to draft a

24 policy.

25

THE COURT: I think it's fair to say that many of

40

1 these young men are manipulative.

2

MS. MURPHY: I think that would be fair to say, Your

3 Honor.

¯* ^

4

The plaintiffs claim that the application of this policy

5 is broadly interpreted by staff. However, that is contrary to

6 the statistics shown that conflict is resolved prior to use of

7 pepper spray. Once again, in only one out of three cases that

8 it's been approved is it actually used.

9

THE COURT: I want to ask you to wind up here. We're

10 way over time, Ms. Murphy.

11

MS. MURPHY: Okay.

12

Let me just get briefly to the weighing of the

13 alternatives and the risk of irreparable injury.

14

Staff at Green Hill are required every day to deal with

15 almost intolerable decisions. These decisions are in regard to

16 controlling inmate behavior when they are, by definition, out

17 of control. Juvenile rehabilitation is not a perfect science.

18 How staff should respond to serious misconduct is not an easily

19 answered question. It's a difficult question, but it can be

20 answered by stating the law. Unless it's shown to be

21 unreasonable, we must rely on the professionals in the

22 executive branch of government charged with the duty of

23 overseeing such matters.

24

Pepper spray is not tantamount to punishment. The simple

25 reason why the use of pepper spray at Green Hill is not

41

1 punishment is because it is not used based upon what the

2 resident has done, but rather what the resident will do if

3 action is not taken. And this distinguishes the Green Hill

4 case from the corporal punishment cases cited by the

5 plaintiffs.

6

Green Hill School officials have made a judgment based on

7 the ever present risk of harm. There is a risk of harm

8 whenever a resident is out of control. The only question is

9 how severe, how long, how many people it will involve. The

10 risk of irreparable injury with pepper spray is no more than a

11 risk of irreparable injury suffered by staff and residents when

12 physical force must be used to control a resident. Banning

13 pepper spray will not decrease the risk of harm. In fact, the

14 risk of harm will be increased, and that's shown by the record.

15

The state defendants respectfully request that this motion

16 be denied at this time.

17

THE COURT: Thank you.

18

We're going to take ten, and I will give you an

19 opportunity for brief rebuttal, Ms. Arthur.

20

MS. ARTHUR: Thank you, Your Honor.

21

THE COURT: We will reconvene at 11:00 o'clock.

22

(Recess.)

23

THE COURT: Ms. Arthur.

24

MS. ARTHUR: Thank you, Your Honor.

25

MS. ARTHUR: I will be brief, Your Honor. I would

42

1 just like to make two points in response to what the state has

2 said. I could say a lot, but I will refrain from taking up the

3 court's time, but I do want to respond to two thing's.^

4

First of all, the state claims that they used pepper spray

5 infrequently at Green Hill School and it's not used very much

6 and it's only used in rare circumstances. The record just does

7 not support that. That's only the record on this preliminary

8 showing. Of course, we would be able to show more on trial on

9 the merits.

10

In the last 23 days, in the last couple of weeks, at the

11 Green Hill School they have used pepper spray on five different

12 juveniles. It's not used at the other juvenile institutions in

13 this state like it is at Green Hill, even though juveniles at

14 Maple Lane are very similar to the juveniles who are confined

15 to Green Hill School.

16

I thought it was intriguing that Your Honor asked about

17 the prisons because in the institutions, in the adult

18 institutions, we receive very few complaints about its use

19 there. And I also think that adults who are confined in

20 intensive management units in the prison are as capable of

21 banging on doors, for example, as juveniles at Green Hill

22 School. But in comparison to the other juvenile facilities in

23 the state where the same problems exist, it's just used

24 exorbitantly much at Green Hill School.

25

Besides that point, I also wanted to respond to the point

43

1 that the defendants made that there are no alternatives; we

2 have presented no alternatives. I think part of the problem

3 here is that the defendants see that only two alternatives

4 exist when a student is misbehaving or a resident at the

5 institution is misbehaving. They only see the alternative of

6 fighting or physically confronting the juvenile or spraying

7 them.

8

We have suggested in the papers that we have given the

9 court that there are other alternatives. They could move the

10 juvenile who is banging to another cell. In fact, that's what

11 they did in Joshua Howell's situation, one of the juveniles who

12 was sprayed since the implementation of the new policy, and

13 continued to bang after he was sprayed. They ultimately just

14 moved him to a different unit. They could, at the time of the

15 incident, bring in people who are trained in crisis counseling.

16 That does not happen now, Your Honor. Even though there's

17 counselors -– quote — counselors available at Green Hill

18 School, people with mental health training are not available at

19 night when these incidents are happening. The only people who

20 are in to address the circumstances are the security staff, and

21 those are the people who actually ultimately end up downing the

22 protective gear to spray the juveniles with pepper spray.

23

Our experts have suggested that there is training

24 available beyond what is given currently to staff at Green Hill

25 School so that a crisis team could be trained to intervene in

44

1 these kind of circumstances/ physically, if necessary, in a

2 manner that would not cause harm, and preferably through

3 counseling and de-escalation techniques. That does riot happen

4 right now at the time of the crisis.

5

One of the juveniles who was sprayed, the man who had cut

6 on himself and sprayed ketchup out the window and was acting

7 very bizarrely during the course of the day that he was

8 sprayed, there was never a mental health person who saw him

9 during that incident. None of these juveniles are seen by

10 people who are truly trained, even though there may be

11 counselors available during the day for the youth to talk to

12 about their release plans or other things like that.

13

So those are the two points I would like to make, Your

14 Honor.

15

We urge you to grant our motion for preliminary

16 injunction, and thank you for taking the time to hear us today.

17

THE COURT: On a question that is not part of this

18 case, but I am curious about. I have been reading in the past

19 about closing Green Hill. What is the status of that?

20

MS. MURPHY: Green Hill is not scheduled to be

21 closed.

22

THE COURT: There was a lot of talk about that at one

23 point.

24

MS. MURPHY: Right. There are currently efforts

25 underway to rebuild portions of the institution, in fact.

.~L

45

1

THE COURT: I get the impression from this case and

2 the additional exhibit filed this morning that this — and I

3 guess, also, I must say, from just general knowledge," that this

4 problem is exacerbated by the facility. The problem of control

5 at Green Hill is exacerbated because it is an outdated

6 facility. In reading Exhibit 1 this morning, what I read was

7 an indication of a facility that is out of control or not in

8 the kind of control one would hope for. Those events happen in

9 juvenile and adult institutions, but it seems like, for

10 whatever reason, they're happening more than one would hope.

11 That doesn't tell us a lot in regard to this issue, perhaps,

12 but that's my impression from what I read, you know. For

13 whatever reason, there is not the appropriate level of control

14 there that there should be.

15

I've got to do some more work on this before I rule.

16 People like to know where their judge is coming from sometimes.

17 You should -– well, maybe you should or shouldn't know. I was

18 going to say you should know, but maybe you shouldn't know.

19 It's a matter of public record, I guess. I have worked in a

20 juvenile facility, the King County detention facility, years

21 ago. The population was somewhat different. I worked in the

22 junior unit, which was basically junior high age, and the

23 senior unit, which was senior high age, and in the security

24 unit at that facility on and off for a year or so while I was

25 in law school. As a superior court judge for 17 years, I was a

-1

46

1 juvenile court judge and responsible with the other judges for

2 our facility, building a new facility in Kitsap County, which

3 is now obsolete and they are talking about building" a¯new one.

4 I sent a lot of kids into the state facility at Green Hill, as

5 well as other state facilities, in years past. I have spent

6 quite a bit of time in years past around adult institutions

7 here and in other states.

8

That experience may be just enough personal experience in

9 the juvenile system to make me dangerous because it was a long

10 time in the past, but I have had some personal experience with

11 big, strong male juveniles acting out in an institutional

12 setting. You can't always talk sense to them, although

13 sometimes you can. Some staff in those situations are much

14 quicker to anger than other staff, much quicker to react. Some

15 staff can take it when the inmates or residents or students —

16 whatever you want to call them -– curse you personally and the

17 like; others react inappropriately to such things. There is a

18 great difference in the way that individuals handle the kinds

19 of situations that are described, particularly in Exhibit 1

20 that was filed this morning. Those differences make it all the

21 more important to have a policy that is workable, as well as a

22 policy that meets constitutional requirements.

23

Those are all preliminary comments that don't really have

24 much to do with the specifics of this case.

25

I don't want to get into decision making here, but I can

-_l

47

1 tell you this much: I think the question in this case is

2 really the state's policy as it now exists. What has gone on

3 before, the history that's gone on before, is of some"value in

4 determining the legal questions to be resolved that surround

5 the present policy. What's happened there is of some interest,

6 perhaps, and tells us some things, but the real question in my

7 mind is the question of whether the current policy is

8 appropriate.

9

I will address that. I don't want to spend a long time on

10 this. I think it should be resolved immediately.

11

What do I have tomorrow morning at 9:00 o'clock or so,

12 Jean?

13

THE CLERK: A plea.

14

THE COURT: I think I will be able to give you an

15 oral ruling tomorrow at 9:30. That will give me the rest of

16 today to do what I have to do, and that should be ample time.

17 I've read, I think, everything that you have filed. I just

18 have to think it through and consider it. If you want to come

19 back tomorrow at 9:30, I will resolve this issue.

20

MS. MURPHY: Thank you, Your Honor.

21

MS. ARTHUR: Thank you, Your Honor.

22

(Above hearing recessed at 11:15 a.m.)

23

CERTIFICATE

I certify that the foregoing is a correct transcript from

24 the record of proceedings in the above-entitled matter.

Q J ^ . . i/¾ll· ,

/?-3»r- 9y

25

n JULAINE V. <«YEN

Date

 
 Horton v. Williams

1
JI-WA-0002-0Ò34

2

"" :¯;Ì

r,XHE HONORABLE ROBERT J. BRYAN

3

4

5
¡HD
6

7

Aüû Ü 1 1835

8

9

É^ UNITED STATES DISTRICT Ç¾ _

f*J‰ \

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, et al.,

12 Plaintiffs,
13 vs.
14 BOB WILLIAMS, etal.,
15

16

Defendants.

CLASS ACTION
No. C94-5428 RJB
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT

17 IMPORTANT NOTICE TO ALL RESIDENTS OF GREEN HILL SCHOOL:
18

19

On July 26, 1995, a proposed settlement of plaintiffs' claims for declaratory and

20 injunctive relief brought in this lawsuit was filed with this Court. The proposed settlement is

21 called a "Stipulation and Judgment." This Notice is to advise you about the terms of the

22 Stipulation and Judgment and to explain how to file written objections to it, if you have any.

23 Final approval of the settlement by the Court is required and will be subject to the Court's
24 review of objections filed by residents of Green Hill School (GHS).
25

26

This Notice only summarizes the terms of the proposed settlement. A complete copy

27 of the proposed settlement is available upon request in all of the living units at GHS and in

28 the school library.

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT- Page 1

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INSTITUTIONAL LEGAL SERVICES PROJECT

101 YESLER WAY, SUITE 301

SEATTLE, WASHINGTON 98104

(206) 464-0838

P

-_J_

1
I. WHO IS AFFECTED BY THIS NOTICE
2 The lawsuit and the proposed agreed court order affect all youth housed at GHS, now
3
or in the future.
4
5 II. HOW TO FILE OBJECTIONS WITH THE COURT

6

Any resident may file objections to the proposed settlement by mailing written

7 objections to Clerk of the Court at: U.S. Courthouse, Union Station, 1717 Pacific Avenue,
8 Room 3100, Tacoma, WA 98402-3200. These objections must be mailed by August 31, 9
1995, and should reference the case number, USDC-WD No. 5428 RJB. After reviewing
10
any objections filed by residents, the Court will determine whether to accept the proposed
11
12 settlement.

13 III. SUMMARY OF THE PROPOSED SETTLEMENT

14

1. The legislature has directed, and made appropriations for, the redevelopment

15 of GHS. Under the agreement, the State defendants will implement said legislative
16
appropriation, subject to any future legislative determinations. Any such redevelopment of
17
the physical plant at GHS will meet at least minimum constitutional standards. The State
18
19 defendants have further agreed to quarterly brief plaintiffs' attorneys on the progress of any

20 such development.

21

2. The agreement requires the State defendants to implement new policies

22 governing the use of restraints, pepper spray, transfers to IMU and sentence reductions.

23
3. The settlement states that the State defendants shall not use pepper spray
24
except in emergency situations to control a truly dangerous youth.
25

26

4. It requires the State to hold due process hearings concerning transfers to IMU

27 and whenever a youth is denied good conduct credit to reduce his maximum sentence.

28

5. The settlement requires the Chehalis School District to provide individualized

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT- Page 2

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INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301
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x_.

1
educational services and special education to eligible youth. 2
6. It requires GHS to give all youth, including those in lock-up, access to 3
4 educational services, although it allows GHS to keep a youth out of school for up to 72 hours
5 when first placed in IMU. Youth cannot otherwise be denied access to educational services

6 unless suspended or expelled after the legally required hearings and process.

7

7. Under the agreement the State defendants shall permit only qualified medical

8 personnel to administer medications to youth, as required by law.
9 8. It also requires the State to provide language translation services to youth
10

unable to understand English and to translate policies governing youth behavior, activities

1 2 and services into Spanish.

13

9. Under the agreement the State defendants are required to implement changes in

1 4 the following programs: intake and orientation procedures; individual treatment plans; use of
15
intensive management unit; individual counseling; vocational opportunities; de-escalation 16
skills; treatment of violent offenders; life skills programs, and health care services.
17

10. An independent monitor will help the plaintiffs' attorneys make sure that the

1 9 defendants do what they are supposed to do under the terms of the settlement.

20

11. The court will maintain jurisdiction over the case for four years to make sure

the defendants meet their obligations under the Stipulation.
22 12. The settlement provides that the amount of attorneys fees to be awarded
23 plaintiffs' counsel will be determined by separate agreement or court order.
24
25 **********
26
**********

28

**********

OT PROPOSF^> SFTTT F M F N T OF rAUrV7JL·U JL·l IL·L·lYlL·l`(i WI
A f ` T T O N T AWSTTTT Paae ^ /\^IIU»IN L·ƒ\WOUH- rdgC O

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE301 SEATTLE, WASHINGTON 98104
(206)464-0838

L

1
YOU MAY DIRECT QUESTIONS ABOUT THIS CASE TO PLAINTIFFS' COUNSEL
2
PATRICIA ARTHUR AT: EVERGREEN LEGAL SERVICES, INSTITUTIONAL LEGAL
3
SERVICES PROJECT, 101 YESLER WAY, SUITE 301, SEATTLE, WA 98104;
4

5

(206)382-3399 ( C O L L E C T T L I N E ) .

6

DATED this

day of

sL·¢

7

8

^£-¿tL·

9

THE HONORABLE^¿ROBERT //BRYAN

United States District Court Judge

10

11 Agreed To By: 12

13

14

PATRICIAƒ ARTHUR, WSBA #13769 ROBERT ½. STALKER, JR., WSBA #13650

15 Of Attorneys for Plaintiffs

16 4<ßd?i
17 RICHARD X· McCARTAN, WSBA #8323

18

Assistant Attorney General Attorney for State Defendants

19

20
BRIAN M. BA^ER, WSBA #3442 2 1 ì( Attorney for Defendant 22 Chehalis School District

23

24

25

26

27

28

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT- Page 4

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SEATTLE, WASHINGTON 98104 (206) 484-0838

 
 •V

1

2

3

Horton v. Williams (3-
JI-WA-0002-0035 THE HONORABLE ROBERT J. BRYAN

4

5

6

- 2 6 Î995

7

8

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, etal.,

12 Plaintiffs,
13 vs.
14 15 BOB WILLIAMS, etal.,

16

Defendants.

CLASS ACTION
No. C94-5428 RJB
STIPULATION & JUDGMENT RESOLVING CERTAIN CLAIMS AND CONTINUING TRIAL ON THE REMAINING ONES

17 STIPULATION
18

19

The parties, plaintiffs James Horton, James Barnhart, Jerome Payton, J.B., through

20 his next friend, Lorane West, and K.M., through his mother Debbie Moore, through their

21 counsel of record Patricia J. Arthur, David Lambert, Robert A. Stalker, Jr. and Katrin E.
22 Frank, and the State defendants, Bob Williams, Jean Soliz, and Sid Sidorowicz, through their
23 counsel, Richard McCartan and Carol Murphy, and the Chehalis School District through
24 counsel Brian Baker, hereby agree that the following Judgment shall be entered, subject to
25
26 approval of the court and notice to class members. This Stipulation and Judgment is entered

27 to finally resolve some of plaintiffs' claims for injunctive and declaratory relief in the above-

28

STIPULATION & JUDGMENT RESOLVING CERTAIN CLAIMS & CONTINUING TRIAL ON THE REMAINING ONES- Page 1

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ír;Û
' / /)

1 captioned lawsuit and to postpone the trial of plaintiffs' remaining claims in order to afford
2 the State defendants the opportunity to implement, under the direction of a new
3 Superintendent, new programs and policies that are likely to finally resolve plaintiffs'
4
5 remaining claims. This Stipulation does not involve and therefore does not preclude any
6 class member from filing a claim for damages. This Stipulation and Judgment is not an

7 admission by the defendants that their past policies and actions violated the rights of the

8 plaintiffs. The parties enter into the Stipulation for purposes of settling disputed contentions

9

and controversies arising from this equitable action.

10

it

DATED this ZL day of \¡MKM/
11

1995.

12

13 PATRICIA J. ARTHUR

WSBA #(3769 14 ROBERT A. STALKER, JR.

15

WSBA #13650 Attorneys for Plaintiffs

16
Evergreen Legal Services

17 Institutional Legal Services Project

101 Yesler Way, Suite 301 18 Seattle, WA 98104

19 (206) 464-0838

20

Í

KATRIN E. FRANK, WSBA #14786

21 Of Attorneys for Plaintiffs

22 MacDonald, Hoague & Bayless
23 1500 Hoge Building, 705-2nd Avenue Seattle, WA 98104
24 (206) 622-1604

RICHARD X. McCARTAN WSBA #,8323 CAROL A. MURPHY WSBA #21244 Attorneys for State Defendants
Office Of The Attorney General P.O. Box 40124 Olympia, WA 98504-0124 (360) 459-6558
Department of Social & Health Services P.O. Box 45010 Olympia, WA 98504-5010

25

26

27

28
STIPULATION & JUDGMENT RESOLVING CERTAIN CLAIMS & CONTINUING TRIAL ON THE REMAINING ONES- Page 2

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1

2 DAVID LAMBERT, Pro Xice7
3 Of Attorneys for Plaintiffs
4 National Center For Youth Law 5 114 Sansome Street
San Francisco, CA 94104 6 (415) 543-3307

/BRIAN M. BAKER, WSBA #3442 / Attorney for ßefendant
Chehalis School District
919 Lakeridge Way S.W. Olympia, WA 98502 (360) 352-4558

7

8

JUDGMENT

9

This matter having been heard by the Honorable Robert J. Bryan, United States

10 District Court Judge, the parties having stipulated to the entry of this Judgment, notice to

11 class members having been issued, and all comments from class members considered by the
12
court, the court approves and enters the following Judgment.
13
I. BACKGROUND AND DEFINITIONS
14
A. The Complaint in this action was filed on August 11, 1994, on behalf of the named
15
16 plaintiffs, and all others similarly situated, against defendants Bob Williams, Superintendent

17 of Green Hill School (GHS), Jean Soliz, Secretary of the Department of Social & Health

18 Services (DSHS), and Sid Sidorowicz, Assistant Secretary of DSHS, and their officers,
19 agents, employees, and successors (the State defendants). Plaintiffs filed their First 20
Amended Complaint on August 17, 1994, adding the Chehalis School District as a defendant.
21
22 B. The State defendants moved to dismiss this case on September 26, 1994. On
23 November 8, 1994, District Court Judge Robert J. Bryan denied defendants' Motion to

24 Dismiss.

25 C. This case was certified as a class action by Stipulated Order filed on September 30,

26
1994. The class is defined as "All juveniles currently or in the future incarcerated at Green
27
Hill School."
28

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1 2 3 //A

D. On December 6, 1994, the court granted in part plaintiffs' Motion For A Preliminary Injunction regarding defendants' use of pepper spray at GHS. E. Effective February 1, 1995, defendant Bob Williams resigned his position as

Superintendent of GHS.

<

5

6 F. On June 1, 1995, Art Schmidt began his employment as the new Superintendent at

GHS.
8
G. This Judgment is fair, reasonable, and adequate to protect the class in accordance
9
with the standards of Fed. R. Civ. P. 23(e). 10 11 H. This Court has jurisdiction of the subject matter of this action and personal
12 jurisdiction over the defendants.

13 I. For purposes of this Judgment, the following definitions shall apply.

14

1. Documents: The term "documents" as used herein includes, without

15 limitation, correspondence, telegrams, cables, teletype messages, videotapes, mailgrams,
16 reports, records, schedules, diaries, court dockets, court files and papers found therein,
17
18 notes, logs, summaries, memoranda, memoranda of telephone conversations, photographs,

19 depictions, sketches, renderings, mechanical and electronic records of conversations or of ¯

20 statements or of telephone conversations, and all other printed, typewritten, written records,

21 or taped matter of any kind of description. The term "documents" does not include materials
22
subject to the attorney/client privilege or any other privilege pursuant to federal or state laws.
23
2. Defendants: Defendants include the named defendants in this action and then-
24
25 supervisors, officers, agents, successors, employees and assigns. The "State defendants" as
26 used herein refers to Jean Soliz, Sid Sidorowicz and Bob Williams. The "District" refers to

27 the Chehalis School District.

28
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1 3. Health Care: "Health care" records and services as referred to herein include
2 medical, mental health, and dental records and services.
3
4. Crisis: The term "crisis" means a conflict between residents and/or with staff 4
5 which threatens the security or order of the institution.

6

5. Mechanical Restraints: "Mechanical Restraints" includes handcuffs, leg

7 shackles and leg braces.

8 6. Lock-up: "Lock-up" or "lock-up unit" includes the IMU now in Fir and
9 Poplar cottages and any successor unit intended to house youth with disciplinary and/or
10
behavioral problems. 11

12

H. OBLIGATIONS OF DEFENDANTS

13 A. PHYSICAL PLANT

14

1. The legislature has directed, and made appropriations for, the redevelopment

15
of GHS. The State defendants will implement said legislative appropriation, subject to any
16
future legislative determinations. Any such redevelopment of the physical plant at GHS will 17
meet at least minimum constitutional standards. The State defendants further agree to 18

19 quarterly brief plaintiffs' attorneys on the progress of any such redevelopment.

20

2. The State defendants will maintain the present facility in a safe and sanitary

21 condition, and will adequately heat, cool, and ventilate all structures. This provision shall
22 not be construed to require capital improvements in existing structures, other than as planned
23
in reconstruction, absent a condition that adversely affects the health or safety of residents.
24

25

26

27

28
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1 B.
2
3
4

DISCIPLINARY PRACTICES 1. Aerosol Restraint
(a) The State defendants shall not use aerosol oleoresin capsicum (pepper

5 spray) on youth except in rare, emergency circumstances to prevent serious injury to a

6 person or to a substantial amount of valuable property. The State defendants shall only use

7 pepper spray under the following circumstances and conditions: 1) there must be a credible
8 threat of a specific serious injury; 2) the only legitimate intended result of pepper spray use
9 is the incapacitation of a dangerous person and not the infliction of pain; 3) the spray shall
10
not be used for punishment; 4) pepper spray shall only be used when absolutely necessary,
11
12 which means that it shall not be used unless there exists an imminent risk of harm to others
13 or to a substantial amount of valuable property that is equal to or greater than the pain and

14 risk of the harm that the use of the spray presents to the youth sprayed.

15

(b) The State defendants shall never use pepper spray as punishment or to

16
manage suicidal behavior and the State defendants shall only use pepper spray as a last resort
17
after all other intervention attempts and crisis management techniques have failed.
18

19

(c) The State defendants agree not to "pre-authorize" the use of pepper ¯

20 spray and to evaluate on a case-by-case basis under the standards and criteria in paragraph

21 II. B.I (a) above whether the use of pepper spray in any given situation is absolutely
22 necessary.
23
(d) Pepper spray shall never be used on youth who are in restraints.
24
(e) The State defendants agree to make written and videotaped
25
26 documentation of every incident involving the use, or threatened use, of pepper spray, and to

27 provide plaintiffs' counsel copies of all documentation, including videotapes of incidents

28
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1 involving the use and threatened use of pepper spray, during the duration of this Judgment.
2 (f) The parties agree that the attached JRA Bulletin No. 2 and GHS Policy
3 No. 4, attached as Exhibits 1 and 2 and incorporated herein by reference, comport with the
4
5 requirements of this Judgment and the State defendants agree to abide by the terms and
6 conditions of these policies.

7

2. Mechanical Restraints

8 (a) Defendants shall not use mechanical restraints unless a juvenile is
9 uncontrollable and constitutes a serious and imminent danger to himself or to others, or
10
during transportation outside the facility when necessary for public safety. The State
11

12 defendants shall not routinely handcuff or restrain youth during transport between cottages

13 and lock-up. When in restraints, a juvenile shall not be attached to any furniture or fixture

14 except in the case of emergency. Only those restraint devices necessary to address the

15 specific threat posed shall be used.
16
(b) The State defendants agree to provide plaintiffs' counsel and the
17
Monitor copies of all documentation relating to any use of physical restraint at Green Hill
18
19 School during the duration of this Judgment.

20

(c) The parties agree that the attached JRA Bulletin No. 2 and GHS Policy

21 No. 4 comport with the requirements of this Judgment and the State defendants agree to
22 abide by the terms and conditions of these policies.
23
3. Disciplinary Procedures
24
(a) The State defendants shall not transfer a juvenile to lock-up or deny a
25
26 youth a sentence reduction for misbehavior unless the youth is provided with constitutionally
27 adequate due process.

28
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1 (b) The State defendants' agree by October 1, 1995, to abide by the terms
2 and conditions of the attached two policies governing: (1) placements in the Intensive
3 Management Unit or any successor lock-up unit and (2) sentence reductions for good
4
5 behavior. The parties agree that these policies, attached as Exhibits 3 and 4 and incorporated
6 herein by reference, provide constitutionally adequate due process to youth transferred to

7 lock-up or denied a sentence reduction for misconduct. The provision in each policy relating

8 to a youth's right to appeal to the Superintendent may be eliminated or modified at the

9 discretion of the State defendants.
10
C. EDUCATION, HEALTH AND REHABILITATIVE SERVICES
11

12

1. Education

13

(a) The Chehalis School District (the District defendants) agree at all times

14 in the future to comply with all applicable state and federal laws and regulations governing

15 the provision of educational services, including special education ahd related services, at

16
GHS.
17
18

(b) The District defendants agree to employ sufficient numbers of staff

19 including endorsed special education teachers, teachers, education assistants, psychologists, ¯

20 clerical and other staff necessary to comply with the requirements of the law in identifying,

21 assessing, and reassessing youth at GHS for disabilities and in providing special education,
22 related, and transitional services to such disabled youth.
23
(c) The District defendants shall implement as written any existing
24
individualized education plan (IEP) developed outside of the institution that is current or
25
26 modify the IEP through the appropriate process required by law. Students who are currently

27 eligible for special education services shall not be determined ineligible for, or not in need

28
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1
of, special education services at GHS unless they are formally reassessed and exited from
2
special education under appropriate procedures required by law. The District defendants
3
shall take all necessary and appropriate steps to evaluate or re-evaluate students with IEP's
4
5 that are out of date.

6

(d) The District defendants shall ensure timely, multidisciplinary

7 assessments of youth who are suspected of being in need of special education and related

8 services in accordance with applicable Washington statutes and the Individuals with

9
Disabilities Education Act (IDEA), 20 U.S.C. §§1400, et seg. This assessment shall:

10

(1) provide timely notice and meaningful involvement of parents

11

and surrogate parents;

12
(2) require that, to the extent possible, prior education records of

13

youth be obtained, particularly those relating to evaluation and

eligibility for special education services;

14

15

(3) be conducted by a multidisciplinary team, including persons specified in regulations promulgated by the Office of the

16

Superintendent of Public Instruction, and when appropriate,

members of the students' individual treatment team;

17

(4) involve students in planning their educational program as

18

required by state and federal law;

19
(5) utilize, to the extent valid instruments are available, curriculum-

20

referenced assessments to assist in the placement of students

eligible for special education services; and

21

22

(6) include assessment of social skills and vocational interests of referred students as required by law.

23
(e) The District defendants agree to provide appropriate placement options
24
and services for students eligible for special education and related services as necessary to
25

26 accommodate the individualized special education needs of all disabled youth at GHS.

27 Appropriate services shall include:

28
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1

(1) a continuum of treatment options for students enrolled in special

2

education;

3

(2) services to meet the special education needs of identified

students including implementation of a curriculum in basic

4

skills, vocational skills, and life skills;

5 (3) an appropriate mix of individual and group instruction for

6

students enrolled in special education programs, based on the

students' individual needs; 7

8

(4) coordinating students' individualized education programs with regular education programs and activities and their individual

9

treatment plans developed by GHS staff;

10

(5) conducting assessments and providing notices and consent

forms in students' native languages unless it is clearly not

11

feasible to do so;

12 (6) language services to meet the educational needs of limited

13

English proficient students;

14

(7) provision for a full day of instruction in accordance with state

law;
15

16

(8) vocational services for all eligible youth;

17

(9) services that enable students to achieve the goals and objectives

specified in their individualized education programs. 18

19

(10) transition planning that involves reviewing IEP goals and

objectives and assisting the transition of all eligible students into

20

the community;

21

(f) The District defendants shall provide on-going training to education

22 staff to assure the proper identification of students with disabilities and the provision of
23 special education and related services.
24 (g) The State and District defendants agree to ensure the availability of
25

26 appropriate educational services to all youth incarcerated at GHS as required by law. The

27 District shall not take any action to deny services for behavioral or disciplinary reasons

28
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1
unless the same disciplinary standards, sanctions, and procedures for suspension and 2
expulsion as are generally employed within the Chehalis School District are invoked. The 3
4 State defendants shall provide all juveniles at GHS, including youth confined in any lock-up
5 unit or who are on room confinement, with access to appropriate educational services unless

6 the youth has been suspended or expelled under appropriate procedures or a security

7 emergency exists. Such access shall be compatible with the District defendants' service

8 delivery capability. The State defendants may withhold access to educational services to a
9 resident entering IMU for not longer than 72 hours to stabilize the resident's behavior.
10
2. Health And Rehabilitative Services 11

12

(a) The State defendants shall permit only qualified medical personnel to

13 administer medications to youth, as required by law.

14

(b) The State defendants agree to implement within six months following

15 entry of this Stipulation and Judgment changes in the following program areas to address the
16 health and rehabilitative needs of youth at GHS:
17
(1) intake and orientation procedures;
18

19

(2) individual treatment plans;

20

(3) use of intensive management unit;

21

(4) individual counseling;

22
(5) vocational opportunities;
23
(6) de-escalation skills;
24
(7) treatment of violent offenders;
25

26

(8) life skills programs, and

27

(9) health care services.

28
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1 (c) The State defendants agree to provide plaintiffs' attorneys with all
2 documents relating to the new programs and/or policies developed in the areas listed in
3
4 Il.C.2(b)(l)-(9) above.

5

(d) The parties agree to stay all formal discovery related to defendants'

6 practices in the program areas listed in Il.C.2(b)(l)-(9) for six months following the entry of

7 this Stipulation and Judgment in order to afford the new Superintendent at GHS the
8 opportunity to make program changes to meet the health and rehabilitative needs of youth. 9
The Monitor referred to in section II.F.2 below shall have no responsibility to monitor the
10
development of programs listed in Il.C.2(b)(l)-(9) above unless otherwise agreed by the
11
12 parties at the end of the six month implementation period.

13 D. TRANSLATION SERVICES

14

1. The State defendants agree to make all reasonable efforts to provide language

15 translation services to all youth at GHS who are unable to speak of understand the English
16
language. All written policies at GHS governing youth behavior, activities and services shall 17
be translated into Spanish by no later than January 1, 1996, unless otherwise agreed by the 18
19 parties due to unforeseen delay.

20

2. The State defendants agree to employ at least one staff person who is qualified

21 to translate between Spanish and English who has met reasonable testing and qualification

22 criteria established by the Juvenile Rehabilitation Administration.
23
3. The State defendants agree to provide translation services to all juveniles who
24
are unable to speak or understand English during the delivery of health care services, and for
25
26 all disciplinary, classification, grievance, "review board" or other hearings, procedures, or

27 meetings conducted at GHS involving the youth.

28
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1 E. GRIEVANCE PROCEDURES
2 1. The State defendants agree to abide by JRA Bulletin No. 13, relating to Youth
3
Complaints, a copy of which is attached as Exhibit 5 and incorporated herein by reference. 4
5 The State defendants may modify this policy only consistent with constitutional requirements.

6 F. IMPLEMENTATION, MONITORING, AND REPORT REQUIREMENTS

7

1. Subject to the limitations in Il.C.2(d), during the duration of this Stipulation

8 and Judgment, plaintiffs' attorneys, plaintiffs' experts, and the Monitor shall have reasonable
9 on-site access to GHS residents and staff, and to all discoverable documents of the
10
defendants.
11

12

2. Plaintiffs' counsel and the State defendants shall select a Monitor with

13 expertise in the field of juvenile corrections to assist with the implementation of all sections

14 of this Stipulation & Judgment involving the responsibilities of the State defendants, except
15 those specified in paragraph Il.C.2(b)(l)-(9) above unless later otherwise agreed. If
16
agreement cannot be reached by September 1, 1995, concerning who the Monitor will be, the
17
Court shall appoint the Monitor. The Monitor shall consult with defendants as requested and
18
19 may assist in mediating disputes between the plaintiffs and the State defendants.

20

3. The State defendants agree to submit every six months a written report to

21 Plaintiffs' attorney and the Monitor outlining the steps taken to comply with this Stipulation
22 and Judgment.
23
4. The Monitor shall inspect GHS at least once every six months for the duration
24
of Court jurisdiction over this matter, but may inspect more often with the agreement of the
25
26 defendants, which shall not be unreasonably withheld, or to assist defendants in resolving

27 problems as requested by the defendants. The Monitor need not inspect every six months if

28
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1
the Monitor, plaintiffs' counsel, and the State defendants agree that such inspections are not 2
necessary. 3
5. The Monitor shall issue a written report within 30 days of any inspection 4
5 describing the State defendants' progress in achieving compliance with this Stipulation &

6 Judgment and its implementation plans, and whether the State defendants are complying with

7 this Stipulation and Judgment. The Monitor shall provide copies of its report to the Court

8 and the parties. Plaintiffs and the State defendants may respond to any report filed by the

9 Monitor.
10 6.
11

The parties will attempt to resolve any dispute arising under this Stipulation

12 and Judgment informally through their attorneys. If these efforts fail, paragraphs ET.F.7 and

13 II.F.8 shall be used to resolve disputes between the parties.

14

7. Both the State defendants and plaintiffs may raise questions of compliance with

15 this Stipulation & Judgment concerning the obligations of the State defendants with the 16
Monitor, except for the obligations specified in paragraph Il.C.2(b)(l)-(9) above, unless 17
otherwise later agreed by the parties. The Monitor shall attempt to informally resolve any 18
19 questions raised. If the Monitor is unable to resolve any question informally, either party

20 may ask the Monitor to make formal findings of fact and recommendations to resolve the

21 question. Whenever requested to do so, the Monitor shall make findings of fact and
22 recommendations as requested. Either party may respond to the Monitor's findings of fact. 23
8. If plaintiffs' counsel and the State defendants are unable to resolve disputes 24
regarding compliance with this Stipulation and Judgment with the Monitor in the manner 25
26 provided in the preceding paragraph, they may seek Court review of the compliance issue.

27 A party may seek Court review, without complying with paragraph II.F.7, if compliance

28
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1 would cause undue delay or threaten imminent harm to a party.
2 9. The State of Washington acting on behalf of the State defendants shall be
3
responsible for the reasonable expenses of the Monitor. 4

5

10. Compliance by the District defendants with the terms of this Stipulation and

6 Judgment will be monitored by experts selected by plaintiffs' counsel at no cost to the State

7 defendants.

8 11. If there is a dispute with respect to facts relating to a possible violation of this
9 Stipulation and Judgment by any party, the Federal Civil Rules of discovery shall apply.
10
G. DAMAGES AND ATTORNEYS' FEES.
11

12

1. This Stipulation and Judgment does not resolve, adjudicate or bar damages

13 claims of any plaintiffs or class members. Plaintiffs' claims for costs and attorneys' fees are

14 reserved for determination by the court at a later date.
15 H. TERMINATION OF FEDERAL COURT JURISDICTION `
16
1. This Court has continuing jurisdiction to enforce the terms of this Stipulation
17
and Judgment for four years following the date of its entry by this Court. At the conclusion
18
19 of this period the Court's jurisdiction shall terminate, this Stipulation and Judgment shall be

20 vacated, and this case shall be dismissed.

21 I.

MODIFICATION

22
1. The court may modify this Stipulation and Judgment only upon (1) the
23
agreement of the parties with the approval of the Court; (2) or upon a motion to modify
24
provided that the party seeking the modification demonstrates that a significant and
25
26 unforeseen or unforeseeable change in the law or in the facts warrants revision of this

27 Stipulation and Judgment, and that the proposed modification is suitably tailored to the

28
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1 changed circumstances.

2
J. 3

CONTINUANCE OF TRIAL DATE ON CLAIMS NOT FINALLY RESOLVED BY THIS STIPULATION AND JUDGMENT

4

1. This Stipulation and Judgment resolves all Plaintiffs' physical plant claims,

5 claims related to the disciplinary practices of the State defendants, claims relating to the
6
educational services provided to youth, and claims regarding language interpretation services. 7

8

2. The State defendants and plaintiffs agree to a continuance of the trial of

9 plaintiffs' remaining treatment and health care claims to afford the State defendants the

10 opportunity during the next six months to implement program changes in the areas listed in

11 section Il.C.2(b)(l)-(9) above. The court shall set a status conference to be held six months

12 following entry of this Stipulation and Judgment to determine the need for a new trial date on

13

these claims.

jjL

14

DATED this / / day of > * 2 / ^ '

l£?5.

15

16

17
18 19 Copy Received; Approved for Entry

THE HONORABLB¾OBERT/ÍT BRYAN United States District Court Judge
Approved as^te form, pn ,tion waived:

20

½¿¿c/

PATRICIA//. ARTHUR 21 WSBA # $ 7 6 9

22 ROBERT A. STALKER, JR. WSBA #13650

23 Of Attorneys for Plainti

RICHARD A. McpÃ¾TAN, WSBA #8323 CAROL A. MURPHY, WSBA #21244 Assistant Attorneys General Attorneys for State Defendants

24

KATRIN E. FRANK. WSBA #14786 m i AN M. BAKER, WSBA #3442

25 Of Attorneys for Plaintiffs

Attorney for Defendant Chehalis School

26

District

27 DAVID LAMBERT, Pro"Hac Vice j Of Attorneys for Plaintiffs
28
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ADMINISTRATIVE POLICY

JRA BULLETIN NO. 2

SUBJECT:

Use of Physical Restraint Measures with JRA Youth

INFORMATION CONTACT:

Pamela Shotwell 1509 California St. Everett, WA. 98201 MS: L31-8

AUTHORIZING SOURCE:

RCW 13.40.010

EFFECTIVE DATE:

APPROVED BY:

Assistant Secretary, Juvenile Rehabilitation Administration

SUNSET REVIEW DATE:

02-100 02-200 02-300

PURPOSE
This bulletin establishes policies and procedures governing the use of restraint measures, including the use of physical force.
SCOPE
This policy applies to all JRA operated and contracted organizational units.
DEFINITIONS:
1. Physical Restraint - Any physical intervention or force used by staff members to control a youth.
2. Restraint Device - Devices used to assist in controlling youth. This includes, but is not limited to handcuffs, leg irons, leg braces, waist chains, leather cuffs, PADS (special leather locking restraints) or other hospital type

EXHIBIT 1

Page 2 of 6, JRA Bulletin No. 2; Use of Physical Restraint with JRA Youth.

02-400

restraints, plexiglass shields, or mattresses with hand holds, and does not include aerosol.
3. Aerosol - An approved aerosol propellant agent containing Oleoresin Capsicum used to assist in controlling youth.
POLICY
1. Within the scope of their job performance, staff shall take reasonable precautions to prevent physically dangerous situations. Safety of staff members, youths, and the public is of paramount importance. Staff shall use the minimum amount of force necessary.
Physical restraint, restraint devices, and aerosol are to be used as a means of control. They shall not be used for the purpose of punishment, inflicting pain, or as a means of degradation. Only those restraint devices necessary to address the specific threat posed shall be used.
2. Staff are authorized to use physical restraint and restraint devices which are dictated by specific guidelines.
A. The use of physical restraint and restraint devices are authorized when all of the following conditions apply:
1. Youth fails to follow a staff directive;
2. Youth presents an immediate danger to self, others, or to property, or to escape, or is out of control; and
3. All reasonable means of control or verbal de-escalation have been unsuccessful.
Use of physical restraint or restraint devices may persist for only the period of time necessary to ensure that the youth is no longer a danger to self, others, or to property, or to escape, or is no longer out of control.
B. Use of restraint devices is authorized when transporting youth in the community. They may be used at staff discretion, unless specified otherwise by security classification requirements in JRA Bulletin #5, Security Standards. JRA Transportation Unit staff are authorized to

Page 3 of 6, JRA Bulletin No. 2; Use of Physical Restraint with JRA Youth.
use restraint devices in compliance with the Unit's procedures.
Restraint devices may be used to transport a youth on institutional grounds only when the youth presents an immediate danger to self, others, or to property; is a risk to escape; is out of control; or if there has not been adequate time to assess the youth's risk to escape or assault due to the youth's recent arrival to the institution.
C. With the superintendent or designee's daily approval, a youth may be placed on a program which requires the youth to wear restraint devices during specified activities and/or movement.
The superintendent or designee shall specify in writing findings to support the reasons for placing a youth on a restraint program and specify what the youth must do to be removed from the program.
Treatment staff may terminate the program at any time. The superintendent or designee and the youth shall be notified of the program's completion.
If the program continues beyond thirty (30) consecutive days, it shall be approved by the Office Chief.
This program may only be utilized for youths who:
1. Are high escape risks who have recently or continue to verbalize plans and/or give other strong indications of attempting to escape; or
2. Have demonstrated a frequent and consistent pattern of physically assaultive and/or destructive behavior, and have not responded to other means of intervention.
3. Aerosol use is dictated by specific guidelines. It may be used only to incapacitate a dangerous youth, and may not be used for the purpose of punishing, inflicting pain, or as a means of degradation.
A. Aerosol may only be used when:
1. All other reasonable actions to force compliance with a staff directive fail; and

Page 4 of 6, JRA Bulletin No. 2; Use of Physical Restraint with JRA Youth.
2. In situations which are reasonably likely to result in physical injury to a person(s) or damage to a substantial amount of valuable property.
In determining whether there is a credible threat of injury, staff may consider whether:
a. The youth has a history of assaultive behavior or attempting to assault others;
b. The youth is seriously threatening verbally to cause injury; or
c. The demeanor of the youth indicates he/she is willing and capable of inflicting injury.
B. Use of aerosol by staff requires the authorization of the regional administrator, superintendent or designee.
C. Staff who have received authorization shall inform the youth that failure to comply will result in exposure to aerosol. After this warning, the youth shall be given at least two (2) minutes to comply with the staff directive unless immediate action is required and the above conditions are met (02-400 3A).
D. Staff shall continually evaluate whether the conditions leading to consideration of use of aerosol still exist. Staff shall not use aerosol if these conditions no longer exist or the youth complies with the directive.
E. If the conditions no longer exist after a warning, but there is a reescalation of behavior that is an extension of the same incident, an additional two (2) minute warning need not be given so long as the previously mentioned conditions still exist and at least two (2) minutes have expired since the original warning.
F. Aerosol shall be used only for the period of time necessary to ensure the youth is no longer likely to cause physical injury to a person or damage to a substantial amount of valuable property.
G. Only staff trained in aerosol use are authorized to apply the substance to a youth(s). A listing of staff trained and authorized will be

Page 5 of 6, JRA Bulletin No. 2; Use of Physical Restraint with JRA Youth.
maintained by the regional administrator, superintendent or designee.
H. A youth shall not be exposed to aerosol if JRA medical staff determine the youth should not be exposed for medical reasons.
4. Medical staff shall examine youth who have been exposed to aerosol as soon as possible.
If medical staff are not on shift when the use of aerosol occurs, the youth will be examined when medical staff return on shift. If there is a medical need, a medical examination will be arranged immediately.
5. Certain physical restraint measures are prohibited.
Choke holds, sleeper holds, hog tying or other dangerous holds out of compliance with JRA guidelines shall not be used during physical restraint situations. All restraint methods must be applied so that the application is not intended to cause serious harm or injury. When in restraints, a youth shall not be attached to any furniture or fixture unless there is an emergency requiring such use of restraint.
6. Written documentation is required of all physical restraints, uses of aerosol, and use of all restraint devices excluding routine transportation.
Written documentation, including Incident Reports, shall be completed by the involved staff member(s) immediately following the incident if possible. If the documentation isn't done immediately, it shall be completed before the staff leave shift. Such documentation shall be kept in an administrative file.
7. Training programs are required.
A. Each residential facility, contracted program, and regional office shall provide a training program consistent with the recommendations of the JRA Training Committee and local needs. Training shall be documented in staff records.
B. Staff trained in the use.of aerosol will be required to attend annual training in the following areas:
1. Crisis intervention and verbal de-escalation skills;
2. Interpretation of JRA and local policies pertaining to the use

Page 6 of 6, JRA Bulletin No. 2; Use of Physical Restraint with JRA Youth.
of physical restraint, restraint devices, and aerosol;
3. Proper techniques for application of aerosol;
4. Video-taping techniques;
5. Proper de-contamination techniques;
6. Effects of aerosol.
8. Regional Administrators and Superintendents are responsible for establishing local policy and procedure for the use of physical restraint, restraint devices, and aerosol.
Local policies and procedures around the use of aerosol shall include:
A. Persons authorized to carry and administer the aerosol;
B. Training required prior to authorization to carry and administer the aerosol;
C. Authorization procedure required prior to use of aerosol;
D. An administrative review following each use of aerosol;
E. A formal written record of each use of the aerosol, which includes documentation of injury, provision of medical assistance to the youth, documentation of other less intrusive methods of intervention attempted, and a detailed description of events leading up to and following the use of the aerosol; and
F. A requirement for videotaped recording of uses of aerosol beginning at the time authorization is requested, whenever possible.

GREEN HILL SCHOOL POLICY #4

SUBJECT:
AUTHORIZING SOURCE: EFFECTIVE DATE: APPROVED BY:
SUNSET REVIEW DATE:

USE OF PHYSICAL RESTRAINT MEASURES WITH GHS RESIDENTS RCW 13.40.010, JRA Bulletin #2 JULY 19,1995
Superintendent, Green Hill School JULY 19,1997

04-100 PURPOSE

To establish local policy and procedures to comply with the guidelines instituted by Juvenile Rehabilitation Administration Bulletin #2, "Use of Physical Restraint Measures with JRA Youth".

04-200 SCOPE

This policy applies to all areas under the jurisdiction of Green Hill School.

04-300

DEFINITIONS:

1. Physical Restraint - Any physical intervention or force used by staff members to control a resident.

2. Restraint Device - Devices used to assist in controlling residents. This includes, but is not limited to handcuffs, leg irons, leg braces, waist chains, leather cuffs, PADS (special leather locking restraints) or other hospital type restraints, plexiglass shields, or mattresses with hand holds and does not include aerosol.

3. Aerosol - An approved aerosol propellant agent containing Oleoresin Capsicum used to assist in controlling youth.

04-400

POLICY 1. Within the scope of their job performance, staff shall take reasonable
EXHIBIT 2

Page 2 of 10, Green Hill School Policy # 04.
precautions to prevent physically dangerous situations. Safety of staff members, residents, and the public is of paramount importance. Staff shall use the minimum amount of force necessary.
Physical restraint, restraint devices and aerosol are to be used as a means of control. They shall not be used for the purpose of punishment, inflicting pain, or as a means of degradation. Only those restraint devices necessary to address the specific threat posed shall be used.
2. Staff are authorized to use physical restraint and restraint devices which are dictated by specific guidelines.
A. The use of physical restraint and restraint devices are authorized when all of the following conditions apply:
1. Resident fails to follow a staff directive;
2. Resident presents an immediate danger to self, others, or to property, or to escape, or is out of control; and
3. All reasonable means of control or verbal de-escalation have been unsuccessful.
Use of physical restraint or restraint devices may persist for only the period of time necessary to ensure that the resident is no longer a danger to self, others, or to property, or to escape, or is no longer out of control.
B. Use of restraint devices is authorized when transporting residents in the community. They may be used at staff discretion unless specified otherwise by security classification requirements in JRA Bulletin #5 and GHS Policy #14, Security Standards.
Restraint devices may be used to transport a resident on institutional grounds only when the resident presents an immediate danger to self, others, or to property; is a risk to escape; is out of control; or if there has not been adequate time to assess the resident's risk to escape or assault due to the resident's recent arrival to the institution.
C. With the superintendent or designee's daily approval, a youth may be placed on a program which requires the youth to wear restraint devices during specified activities and/or movement.

Page 3 of 10, Green Hill School Policy # 04.
The superintendent or designee shall specify in writing findings to support the reasons for placing a youth on a restraint program and specify what the youth must do to be removed from the program.
Treatment staff may terminate the program at any time. The superintendent or designee and the youth shall be notified of the program's completion.
If the program continues beyond thirty (30) consecutive days, it shall be approved by the Office Chief.
This program may only be utilized for residents who:
1. Are high escape risks who have recently or continue to verbalize plans and/or give other strong indications of attempting to escape; or
2. Have demonstrated a frequent and consistent pattern of physically assaultive and/or destructive behavior, and have not responded to other means of intervention.
3. Aerosol use is dictated by specific guidelines. It may be used only to incapacitate a dangerous resident, and may not be used for the purpose of punishing, inflicting pain, or as a means of degradation.
A. Aerosol may only be used when:
1. All other reasonable actions to force compliance with a staff directive fail; and
2. In situations which are reasonably likely to result in physical injury to a person(s) or damage to a substantial amount of valuable property.
In determining whether there is a credible threat of injury, staff may consider whether:
a. The resident has a history of assaultive behavior or attempts to assault;
b. The resident is seriously threatening verbally to cause injury; or

Page 4 of 10, Green Hill School Policy # 04.
c. The demeanor of the resident indicates he is willing and capable of inflicting injury.
B. Use of aerosol by staff requires the authorization of the Superintendent or designee. When the use of aerosol is being considered, the on-shift Security Supervisor or designee shall contact the Superintendent or designee in person or by telephone to request authorization for aerosol use.
C. Staff who have received authorization shall inform the resident that failure to comply will result in exposure to aerosol. After this warning, the resident shall be given at least two (2) minutes to comply with the staff directive unless immediate action is required and the above conditions are met (04-400, 3A).
D. Staff shall continually evaluate whether the conditions leading to consideration of use of aerosol still exist. Staff shall not use aerosol if these conditions no longer exist or the resident complies with the directive.
E. If the conditions no longer exist after a warning, but there is a reescalation of behavior that is an extension of the same incident, an additional two (2) minute warning need not be given so long as the previously mentioned conditions still exist and at least two (2) minutes have expired since the original warning.
F. Aerosol shall be used only for the period of time necessary to ensure the resident is no longer likely to cause physical injury to a person or damage to a substantial amount of valuable property.
G. Only staff trained in aerosol use are authorized to carry and apply the substance to a resident(s). A listing of staff trained and authorized will be maintained by the designated Security Supervisor.
H. A resident shall not be exposed to aerosol if JRA medical staff determine the resident should not be exposed for medical reasons.
4. Medical staff will examine each resident who has been exposed to aerosol as soon as possible.
If medical staff are not on shift when the use of aerosol occurs, the resident(s) will be examined when medical staff return on shift. If there is a medical

Page 5 of JO, Green Hill School Policy # 04.
need, a medical examination will be arranged immediately. The examining staff will submit a report identifying any injuries and/or medical action taken.
5. Use of aerosol shall be recorded on video tape whenever possible.
A. At the time authorization for the use of aerosol is being requested, staff shall begin and continue to video tape the resident's behavior whenever possible. Exceptions to this include situations in which a video recorder is not available, there is not time to assemble equipment, the equipment malfunctions, there are technical difficulties, or camera operation would cause unreasonable risk to staff.
B. When possible, the camera shall be located to ensure a complete view of the incident at wide angle, including staff involved in the incident. The camera operator will ensure the date and time are present in the lower left hand corner of the view finder.
C. The camera will record the entire incident until the resident is placed in his final destination.
D. Staff intervention with volatile residents during incidents where aerosol is not being considered or authorized may be video taped at staff discretion.
E. These video tapes are confidential and are to be disclosed only consistent with Washington Public Disclosure Laws or other applicable laws or regulations. They shall be reviewed by staff on a need-to-know basis to provide staff with feedback, debriefing, and/or training.
F. Video tapes that record the use of aerosol will be secured in the Security Office and an inventory of these tapes will be maintained. These video tapes will be kept for at least one (1) year or until the resident leaves GHS, whichever is the longer period of time. The area Associate Superintendent shall ensure limited access to these tapes. Video tapes that don't have a recording of aerosol use may be erased and reused with the approval of the designated Security Supervisor.

Page 6 of JO, Green Hill School Policy # 04.
6. Documentation is required of all physical restraints, uses of aerosol, and use of all restraint devices excluding routine transportation.
A. Written documentation, including incident reports (Attachment A), shall be completed by the involved staff member(s) immediately following the incident when possible. Ifnot immediately possible, the documentation shall be completed prior to the staff member(s) leaving shift.
1. When a restraint device(s) is used a Use of Restraint Device Incident Report (Attachment B) will be completed in lieu of a standard incident report.
2. Incident reports and Use of Restraint Device Incident Reports shall be kept in the resident's case file, treatment file, and an administrative file.
3. When aerosol has been used, the Security Supervisor or designee involved in the use shall complete a Use of Aerosol Report prior to leaving shift. These reports will be filed with the appropriate video tape and a copy will be given to the Associate Superintendent in charge of Security for filing.
4. Medical reports on the incident shall only be kept in the resident's medical file. A copy of the report may be provided to law enforcement.
5. If a law violation (assault, escape, attempted escape, property damage, etc.) occurs in the process of the incident, all involved staff shall complete a Chehalis Police Victim/Witness Report (Attachment D) prior to leaving shift. Involved residents are to be given the opportunity to complete this report. A copy of each of the reports shall be forwarded to the Court Liaison.
B. The incident report(s) must include:
1. Detailed description of the entire incident including the sequence of events leading to and following the use of physical restraint, restraint devices, and/or aerosol, injury to staff and/or the resident(s), provision of medical assistance to the resident(s), and the less intrusive methods of intervention attempted.

Page 7 of 10, Green Hill School Policy # 04.
2. Reason physical restraint, restraint devices, and/or aerosol were used.
3. Actual staff directive to resident(s).
4. Names of all staff and residents involved.
5. Detailed description of any physical evidence recovered and the steps taken to secure it in the Security Office and/or the Court Liaison's office. The integrity of the Chain of evidence for any physical evidence recovered shall be maintained.
C. A photograph of any staff or resident injuries or property damage shall be taken as soon as possible, and attached to the appropriate incident report.
D. In accordance with 04-400, 5, a video tape shall be taken of each incident involving the use of aerosol and secured.
7. A spray review will be conducted following each incident requiring the use of aerosol.
An initial review will be held by the Associate Superintendent in charge of Security along with the staff members involved in the use of aerosol.
All available documentation, including videos, log entries, and incident reports, shall be reviewed.
The chairperson of this review shall complete the Aerosol Use Review Worksheet (Attachment E).
The Superintendent shall review every Worksheet and shall initiate a Major Incident Review in the event of staff and/or resident injury, significant property damage, or potential policy/procedure violations.
8. Certain physical restraint measures are prohibited. Choke holds, sleeper holds, hog tying or other dangerous holds out of compliance with JRA guidelines shall not be used during physical restraint situations. All restraint methods must be applied so that the application is not intended to cause serious harm or injury. When in restraints, a resident shall not be attached to any furniture or fixture unless there is an emergency

.. .-i.

Page 8 of 10, Green Hill School Policy # 04.

4-500

requiring such restraint.
9. Training programs are required.
A. Staff who are expected to use necessary physical restraint, restraint devices, and/or aerosol shall be adequately trained in crisis intervention techniques and in accordance with established JRA guidelines. Training shall be documented in staff records.
B. Staff trained in the use of aerosol will be required to attend annual training in the following areas:
1. Crisis intervention and verbal de-escalation skills;
2. Interpretation of JRA Bulletin #2 and GHS Policy #4 pertaining to the use ofphysical restraint, restraint devices, and aerosol;
3. Proper techniques for application of aerosol;
4. Video-taping techniques;
5. Proper de-contamination techniques;
6. Effects of aerosol.
PROCEDURES
1. Guidelines for use of physical restraint and use of aerosol.
Staff shall use the following guidelines for the use of physical restraint and/or the use of aerosol:
A. Away from incident site (pre-script) when possible:
At the time authorization for the use of aerosol is being requested, staff shall begin and continue to video tape the resident's behavior until the resident is placed in his final destination, whenever possible.
The Security staff in charge will brief staff on the resident(s) involved, sequence of events justifying the use of physical restraint or use of aerosol. Include the name of person authorizing the use of the physical

Page 9 of JO, Green Hill School Policy # 04.
restraint and/or aerosol.
B. At the incident site:
1) Verbally direct the resident to comply. 2) If non compliant, direct approved staff to apply the
determined method of physical restraint (i.e. aerosol, physical force). 3) Record the showering of resident(s) exposed to aerosol, if applicable. (The video camera will be directed from the waist up). 4) Record the medical examination of the resident and a brief description of his condition. 5) Record the final placement of the resident(s) in the room if aerosol was used.
C. Away from incident site (post-script):
1) Debrief staff involved. 2) Complete all necessary documentation, route it, and secure
physical evidence and, when aerosol is used, the video tape.
2. Restraint Device/Aerosol Inventory and Storage:
A. Aerosol:
An appropriate variety of dissemination methods and quantities shall be available. The security supervisor is responsible for ensuring that only approved aerosol is authorized for purchase, storage and use.
All aerosol shall be stored in a secure method that will prevent residents from having access to it. The locked cabinet is the storage room outside of the Intensive Management Units is designated as the storage area for the primary stock of aerosol.
A master perpetual inventory shall ensure an accurate record on the disposition of all aerosol containers. When aerosol containers are unaccounted for, the following will occur:
1. A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.

Page 10 of 10, Green Hill School Policy # 04. .
2. The area Associate Superintendent shall assign an investigator to determine the disposition of the missing aerosol.
B. Restraint Devices:
The Security Supervisor shall oversee the purchase and dissemination of hand cuffs, leg cuffs, leg braces, waist chains, soft cuffs, plexiglass shields and mattresses with hand holds. An inventory of all restraint devices shall be maintained separate from the inventory of aerosol. Restraint devices will be stored to ensure that residents do not have access to them.
Security staff will issue cottage staff approved non aerosol restraint devices when needed for transporting/movement or a leg brace program. A check-out system will be used to track the use of these devices. The cottage directors are responsible to ensure that these devices are returned in proper working order upon completion of use.
Security staff are authorized to carry hand cuffs and hand cuff keys on their person during their shift to allow for ready use.
In the event that a restraint device is unaccounted for, the following will occur:
1. A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.
2. The area Associate Superintendent shall assign an investigator to determine the disposition of the missing restraint device.

Attachment A

INCIDENT REPORT

THIS REPORT MUST BE SUBMITTED BEFORE LEAVING YOUR SHIFT

TO:

DATE: MONTH, DAY, YEAR

REPORTING PERSON:

LOCATION OF INCIDENT:

PERSONS INVOLVED:

COTTAGE OR DEPARTMENT:

INCIDENT:

COMMENTS AND RECOMMENDATION OF DEPARTMENT HEAD OR SUPERVISOR: SIGNATURE OF DEPARTMENT HEAD OR SUPERVISOR:

Attachment B GREEN HILL SCHOOL
USE OF RESTRAINT DEVICE INCIDENT REPORT
THIS REPORT MUST BE SUBMITTED BEFORE LEAVING

To: Reporting Person: Tvpe of Restraint Deviceísì Used:

Date:

Time:

Location of Incident:

Time In:

Out:

PERSONS INVOLVED COTTAGE OR DEPARTMENT

Incident

Comments and Recommendations of Department Head or Supervisor:
Signature of Department Head or Supervisor cc: Superintendent, Treatment/Case File

ATTACHME1 £ :

USE OF AEROSOL REPORT

My name is:

Today's Date is:

The time is:

The Video Camera operators name is:

The following resident(s) are involved: (Give names and JRA Numbers)

JRA NUMBER: JRA NUMBER: JRA NUMBER:

What led to decision to use aerosol restraint?

The sequence of events that led to the decision to use aerosol are as follows: (Chronological order of reasons and action that was taken prior to making the decision to use aerosol.)

Less intrusive methods of intervention attempted: Staff involved:

I gave the following instructions to staff:.

Were there injuries?

Was medical assistance provided?.

Where the resident(s) is now and what is his behavior?

cc: Video tape file Security Associate Superintendent

ATTACHMENT D:

Date:

;

Name:

Address:

CHEHALIS POLICE DEPARTMENT

WITNESS-VICTIM STATEMENT

Time:

Case Number:

DOB:

Phone Number: I,

hereby make the following statement:

I HAVE READ THE ABOVE STATEMENT AND IT IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE.

WITNESS:

SIGNED

IMU DUE PROCESS POLICY
(1) A youth may be placed in IMU if he: (a) Presents a threat of physical harm to self, others,
property, or to escape, if not placed in IMU; or (b) Commits a rule violation warranting placement in
IMU in accordance of the Standard Rules of Conduct. The Standard Rules of Conduct shall generally describe the prohibited conduct and prescribe the maximum number of days of IMU confinement for engaging in the conduct. Youth shall be given advance notice of the Standard Rules of Conduct. (2) Before a youth is transferred to IMU under section (1)(a), whenever possible consistent with institutional security, the youth shall be told why he is being transferred, and be given the opportunity to explain to the cottage director or designee why he should not be transferred. As soon as possible after the youth is transferred to IMU, he shall be given a written statement of the reasons for the transfer. (3) A youth transferred to IMU under section (1) (a) may be released from IMU at any time prior to the expiration of 72 hours at the discretion of the superintendent or designee. If the youth is held in IMU longer than 72 hours, he shall be given a hearing under section (5) . (4) If placement of a youth in IMU is sought under section 1(b), prior to transfer, the youth shall be given notice of the charges against him, and a hearing under section (5) not less than twenty-four (24) hours after notice is given. (5) An IMU placement hearing shall be conducted by an
EXHIBIT 3

impartial hearings officer appointed by the superintendent or designee. A youth shall have the right to:
(a) Appear before the hearings officer and present oral or written statements on his own behalf; (b) Call witnesses unless the hearings officer finds that the testimony of the witness would be irrelevant, repetitive, unnecessary, or would disrupt the orderly administration of institution; and (c) Appointment of a staff advocate if the hearings officer finds that the youth is illiterate or unable to understand the nature of the proceedings, or to reasonably defend against the charges without assistance. At the hearing, treatment staff from the youth's cottage shall present evidence on how the criteria for IMU transfer are met. The youth shall have no right to cross-examine witnesses, except as permitted by the hearings officer. (6) After hearing the evidence, the hearings officer shall decide: (a) Whether the criteria of section (1)(a) are proven by a preponderance of the evidence; or (b) Whether the criteria of section (1)(b) are proven by a preponderance of the evidence, and if so, how many days of confinement should be imposed up to the maximum number of days specified in the Standard Rules of Conduct. In deciding on the number of.days of confinement, the hearings officer shall consider the intellectual, mental, and emotional condition of the youth.

The hearing officer's decision, stating finding and reasons, shall be in writing and be given to the youth.
(7) A decision approving an IMU transfer shall notify the youth that the decision may be appalled in writing by the youth to the superintendent within five (5) days of receipt of the decision. The superintendent or designee shall issue a written decision on the appeal within ten (10) days of receipt of the appeal. The youth shall be notified promptly of the superintendent's decision. An appeal will not stay the IMU transfer, unless so ordered by the superintendent or designee.
(8) A youth placed in IMU under section (1) (a) shall be released upon opening of the first available bed when it is determined that the behavior leading to transfer is not likely to reoccur. This determination shall be made at least every thirty (3 0) days by the IMU supervisor or designee. The youth shall be present when the determination is made, and be given the opportunity to present his views. A release decision, giving reasons, shall be in writing and be given to the youth.
(9) A youth placed in IMU under section (1)(b) shall be released upon opening of the first available bed when the penalty has been served.
(10) A youth may be denied credit off his maximum sentence during days confined in IMU. No denial shall occur, however, . once the youth has been approved for release pending opening of the first available bed.
(11) At the time of the hearing under section (5), or within 72 hours of placement in IMU, absent exigent circumstances, staff

shall prepare, with input from the youth, a written plan to allow reintegration of the youth into the general population as soon as possible.

__L.
RELEASE DATE DUE PROCESS POLICY
(1) The release date of every resident shall be set at the maximum. Time may be earned off the maximum if the resident complies with the terms of the Treatment/Behavior Contract. Whether the youth has complied regularly shall be reviewed in accordance with the terms of the Contract.
(2) If treatment staff believes a youth is not entitled to full credit off his maximum sentence during a review period, the youth shall be given written notice for the reasons for the denial of credit. Within not earlier than twenty-four (24) hours after the notice, the youth shall receive a hearing before an impartial hearings officer. The youth shall have the right to:
(a) Appear before the hearings officer and present oral or written statements on his own behalf; (b) Call witnesses unless the hearings officer finds that the testimony of a witness would be irrelevant, repetitive, unnecessary, or would disrupt the orderly administration of the institution; and (c) Appointment of a staff advocate if the hearings officer finds that the youth is illiterate or unable to understand the nature of the proceedings, or to reasonably defend against the charges without assistance. Treatment staff recommending denial of credit shall present evidence on how the youth has failed to comply with the terms of the Contract and why denial of credit is justified. The youth shall have no right to cross examine witnesses, except as permitted by the hearings officer.
EXHIBIT 4

(3) The hearing officer may decide to deny credit if noncompliance with a term of the Contract is proven by a preponderance of the evidence. No credit may be given for days spent by a youth in IMU, except for days spent awaiting opening of the first available bed outside IMU. The hearing officer's decision, giving findings and reasons, shall be in writing and be given to the youth.
(4) A decision approving denial of credit shall notify the youth that the decision may be appealed in writing by the youth to the superintendent within five (5) days of receipt of the decision. The superintendent or designee shall issue a written decision on the appeal within ten (10) days of receipt of the appeal. The youth shall be notified promptly of the superintendent's decision.

DIVISION OF JUVENILE REHABILITATION
DJR BULLETIN #13 YOUTH COMPLAINTS

TABLE OF CONTENTS

13-100 13-200 13-300 13-400

PURPOSE SCOPE DEFINITIONS POLICY'

EXHIBIT 5

ADMINISTRATIVE POLICY

DJR BULLETIN NO. 13

SUBJECT:

YOUTH COMPLAINTS

INFORMATION CONTACT:

Robin Cummings

MS: 5720

P. 0. Box 45720

Olympia, WA 98504-5720

PHONE: (206) 586-2101

FAX

(206) 586-5317

SCAN 321-2101 SCAN 321-5317

AUTHORIZING SOURCE:

RCW 13.40.010 (2)

EFFECTIVE DATE:

February 1, 1993

APPROVED BY: '' . r/·S-)"i->'. /if 1 <ï¾4¯rector, Division of Juvenile Rehabilitation

SUNSET REVIEW

DATE:

February 1, 1995

13-100
13-200
13-300 1.
13-400 1.

PURPOSE
This bulletin establishes a process for resolving youth complaints about policies, procedures or actions by staff.
SCOPE
This policy applies to all Division of Juvenile Rehabilitation (DJR) operated or contracted programs.
DEFINITIONS
None
POLICY
Youths have a right to a review of complaints.
A. Youths have the right to make complaints about actions and decisions of staff or policies and procedures.
B. Facility administrators shall attempt to have complaints resolved at the lowest possible level.

DJR BULLETIN 13 February 1, 1993 Page 3 of 3
4. Program Administrators shall distribute records.
Program Administrators shall distribute copies of the final decision to involved parties. A copy of the final decision shall be placed in the youth's case file, and a copy shall be retained at the facility for one year.
5. Region Administrators may waive policy for CCPs.
Region Administrators may waive the requirements of this bulletin for Community Commitment Programs (CCPs), provided the CCP has an acceptable local complaint resolution procedure and the DJR youths in CCPs shall have the right to appeal to the division ombudsperson.

,.-L·.i...
DEPARTMENT OF SOCIAL AND HEALTH SERVICES DIVISION OF JUVENILE REHABILITATION YOUTH COMPLAINT - APPEAL PROCEDURE
If you have a complaint about your living conditions or one of the staff, the following steps may be taken to resolve the matter:
1) First, talk with your counselor. There may be a misunderstanding that can be settled when the facts are reviewed.
2) If Step 1 did not resolve things to your satisfaction, complete the Youth Complaint Appeal Request form and give it to a staff member or supervisor.
3. If you still feel that you have a complaint after the supervisor makes a decision, then the request must be sent to the Program Administrator within seven days. You will receive a written response from the Program Administrator within seven days.
A. If still dissatisfied, you may request the matter be sent to the Division of Juvenile Rehabilitation (DJR) Director. You will be contacted by the ombudsperson who handles all complaints for the Director. The decision you receive will be final.
5. Nothing in this procedure prevents you from obtaining legal counsel to pursue the complaint further.
ATTACHMENT A DJR Bulletin No. 13

FACILITY YOUTH'S NAME

DIVISION OF JUVENILE REHABILITATION YOUTH COMPLAINT - APPEAL REQUEST
ETHNICITY COTTAGE

COMPLAINT: Date of occurrence:

I would like to complain about the following:

Staff Involved (If any) Witnesses (If any) I seek the following resolution:
Youth's Signature
SUPERVISOR'S ACTION:

Date

Supervisor's Signature

Date

I would like to appeal this decision to the Program Administrator: YES _

NO

Youth's Signature

Date

PROGRAM ADMINISTRATOR'S REVIEW:

Administrator's Signature
I would like the Division Director to review my complaint: Youth's Signature
Date that request for Director's review was received
ATTACHMENT t> DJfi 8ull·lin No. 11

Date

YES_

NO

Date

 
 Horton v. Williams

1

A

2

3

4

JI-WA-0002-0038
__J^-<S^ THE HONORABLE ROBERT I. BRYAN
1 6 1936

5

6

7

8

9

¾çS«`AfÈSDISTRICT COURT

WESTI DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, etal.,

12

Plaintiffs,

13
vs.
14
BOB WILLIAMS, etal.,
15

16

Defendants.

) ) CLASS ACTION
) ) No. C94-5428 RJB ) ) NOTICE OF PROPOSED SETTLEMENT ) OF CLASS ACTION LAWSUIT
) )
-)

17
IMPORTANT NOTICE TO ALL RESIDENTS OF GREEN HILL SCHOOL:
18

On August 16, 1996, a proposed settlement of the remainder of plaintiffs' claims
19

20 against the State defendants was filed with this Court. The proposed settlement is called a

21 "Supplemental Stipulation and Judgment." This Notice is to advise you about the terms of

22 the Supplemental Stipulation and Judgment and to explain how to file written objections to it,
23
if you have any. Final approval of the settlement by the Court is required and will be
24
subject to the Court's review of objections filed by residents of Green Hill School (GHS).
25
This Notice only summarizes the terms of the proposed settlement. A complete copy
26
27 of the proposed settlement is available upon request in all of the living units at GHS and in

28 the school library.

NOTICE OF PROPOSED SETTLEMENT OF

COLUMBIA LEGAL SERVICES INSTITUTIONAL LEGAL SERVICES PROJECT

1 CLASS ACTION LAWSUIT- Page

ORIGINAL

101 YESLER WAY, SUITE 301

.

SEATTLE, WASHINGTON 98104 S~i¿

(206) 464-0838

\J Q

1 I. WHO IS AFFECTED BY THIS NOTICE
2 The lawsuit and the proposed agreed court order affect all youth housed at GHS, now
3 or in the future.
4

5 II. HOW TO FILE OBJECTIONS WITH THE COURT

6

Any resident may file objections to the proposed settlement by mailing written

7 objections to Clerk of the Court at: U.S. Courthouse, Union Station, 1717 Pacific Avenue,

8 Room 3100, Tacoma, WA 98402-3200. These objections must be mailed by September 15, 9
1996, and should reference the case number, USDC-WD No. 5428 RJB. After reviewing 10
any objections filed by residents, the Court will determine whether to accept the proposed
12 settlement.

13 III. SUMMARY OF THE PROPOSED SETTLEMENT

14

1. The proposed Supplemental Stipulation & Judgment requires the State

defendants to retain consultants to review the mental health services and treatment programs
16 available to youth at GHS, and to develop a remedial plan to insure that the mental health
17 services and treatment programs available to youth at GHS comply with relevant legal
18

i q standards.

20

2. The proposed Supplemental Stipulation and Judgment requires the State

2 1 defendants to comply with all relevant state and federal laws in accommodating the mental

2 2 disabilities of youth at GHS.
23 3. The proposed settlement further requires the State defendants to provide youth
24
at GHS with access to appropriate mental health services. 25

26

4. It also requires the State defendants to perform mental health screens on youth

27 in lock-up for safety (as opposed to disciplinary) reasons for more than 72 hours, and to

28 make appropriate mental health treatment available to youth in lock-up.

NOTICE OF PROPOSED SETTLEMENT OF

CLASS ACTION LAWSUIT- Page 2

x

(206) 464-0838

1

5. The proposed Supplemental Stipulation and Judgment prohibits the State from

2 using lock-up for juveniles with acute mental illness in any manner inconsistent with State or
3

federal law. 4

5

6. The proposed settlement requires the State defendants to give youth access to

6 qualified staff to evaluate for mental health needs and to provide access to mental health

7 treatment in a timely manner.

8

7. The State defendants are required to administer anti-psychotic medications

9 only if medically appropriate and only as consistent with relevant law.
10

8. The proposed settlement requires GHS to document all resident refusals of 11

12 mental health treatment and to get the resident's written confirmation of the refusal.

13

9. The Supplemental Stipulation and Judgment requires the State defendants to

14 develop a revised policy related to the administration of psychotropic drugs.

15

10. An independent monitor will help the plaintiffs' attorneys make sure that the

16 defendants do what they are supposed to do under the terms of the settlement.
17 11. The court will maintain jurisdiction over the case for four years to make sure
18

19 the defendants meet their obligations under the Supplemental Stipulation and Judgment.

20 * * * * * * * * * *

21 * * * * * * * * * * 22 * * * * * * * * * * 23

24

25 26 * * * * * * * * * *

27 * * * * * * * * * *

28 * * * * * * * * * *

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT- Page 3

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1 12. The settlement provides that the amount of attorneys fees to be awarded
2 plaintiffs' counsel will be determined by separate agreement or court order.
3 YOU MAY DIRECT QUESTIONS ABOUT THIS CASE TO PLAINTIFFS' COUNSEL
4
5 PATRICIA ARTHUR AT: COLUMBIA LEGAL SERVICES, INSTITUTIONAL LEGAL
6 SERVICES PROJECT, 101 YESLER WAY, SUITE 301, SEATTLE, WA 98104;

7 (206)382-3399 (COLLECT LINE).

8

DATED this ( 7 ^ day of f \ ^

A996/

9

10

11
12
13 Agreed To By:
14

IE HONORABLE `RttBERT J/<BRYAN United States District Court Judge
I

15
16 Ì>ATRICIA^Í. ARTHUR, WSBA #13769 ROBERT "A. STALKER, JR., WSBA #13650
17 Of Attorneys for Plaintiffs

18 19

Q

EDWARD J. DEE, W¦SB$ #15964

20 Assistant Attorney General

Attorney for State Defendants 21 (Approved Per Telephonic Approval)

22

23

24

25

26

27

28

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT- Page 4

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301
SEATTLE, WASHINGTON 98104 (206) 464-0838

 
 3
-•s»
CJ3
Lt-·3
L-`·«!9

Horton v. Williams

I • !••• • •

••

•• • •

J -WA-0002-0040

APR 1 5 1997
CLERK u.3. DISTRICT COURT
WESTERN DSTR¡CT Of WASI¾fiGTCN AT TACC¡«

PROGRESS REPORT HORTON VS WILLIAMS STIPULATION & JUDGMENT
Third report to the Federal Court - February 1997

Orlando L. Martinez Case No. C 94-5428 RJB

Monitoring Report
JAMES HORTON, et al., Plaintiffs
vs. BOB WILLIAMS, etal.,
Defendants
Submitted to United States District Court Western District of Washington
At Tacoma

INTRODUCTION
This is the third monitoring report to the Court, Plaintiffs and State Defendants concerning the progress Green Hill School has made in achieving compliance with the Stipulation and Judgment signed by the Court on September 11, 1995, and the first monitoring report regarding the Supplemental Stipulation & Judgment Resolving Plaintiffs'1 Remaining Claims signed by the Court on November 5, 1996.
During this reporting period, an onsite visit was made to the Green Hill School on February 3 through February 5,1997. Various reports and studies have been reviewed and interviews have been made with persons involved or affecting these stipulations.
SUPPLEMENTAL STIPULATION & JUDGMENT
10. The State Defendants shall, by no later than June 1, 1996, retain consultants with expertise in the field of mental health services for juvenile offenders (hereafter mental health consultants) to evaluate and make recommendations regarding the mental health services available for juveniles incarcerated at GHS, including especially the mental health services for juveniles with acute mental illness, to insure that all youth at GHS are provided access to treatment programs and opportunities that address their individual treatment needs and/or behavior problems as required by relevant state and federal law and the terms of this Supplemental Stipulation and Judgment. The State defendants shall require the mental health consultants to submit a written report of their assessment, including findings and recommendations, which shall be due to the Juvenile Rehabilitation Administration (JRA) by June 30, 1996.
Finding - State defendants contracted with the University of Washington Department of Psychiatry and Behavioral Sciences to evaluate and make recommendations regarding JRA's mental health program. The mental health consultants submitted a report, Juvenile Rehabilitation Administration Mental Health Program Needs Assessment, dated October 1996. The scope of this contract required a needs assessment of six JRA institutions and JRA youth camp facilities. The report submitted by the consultants contains general findings and recommendations for all of JRA and evaluations specific to each institution such as GHS.
The mental health consultants found that services for youth with mental disorders and substance abuse problems within JRA programs mirror the transitions that are taking place in the nation's juvenile justice and public mental health systems. Disorders and behaviors are more acute and violent and there are more significant multi-system needs demonstrated by these youth. Enhancement is needed for limited family/community supports and limited educational and vocational opportunities of this population. However, the consultants found that despite these needs, "all youth experiencing an episode of major mental illness have access to appropriate services" in JRA programs. According to the consultants, a program is in the process of development at Green Hill

School which will be an exemplary model for managing seriously disordered incarcerated youth.
A significant finding is that JRA's response to the increased multi-system needs that these youth require has been incremental, uncoordinated and piecemeal because of interdivisional barriers within the Department of Social and Health Services and minimal participation of Regional Support Networks.
The University of Washington Department of Psychiatry and Behavioral Sciences reports that their review was not intended to focus on specific requirements or national standards related to mental health care, but "overall the services appear to meet minimal standards established by the National Commission on Correctional Health Services in Juvenile Confinement Facilities" and that JRA's programming direction is consistent with strategies outlined in a monograph of the National Coalition for the Mentally 111 in the Criminal Justice System.
The mental health consultants have made four improvement recommendations to JRA and five action steps specific to Green Hill School.
Recommendations to the JRA I. Improve assessment and outcome measures. II. Improve central coordination and multi-system integration. III. Enhance services and improve community transition. IV. Improve training of JRA staff in coordinated mental health and substance abuse
interventions.
Recommended action steps to Green Hill School 1. Consider hiring a new contracted psychiatrist for on-site services. 2. Consider extending psychiatric medication management services by utilizing
psychiatric nurse practitioner. 3. Inservice Training. 4. Psychiatric consultation input into mental health programming. 5. Institute formal medication protocols and policies.
This report does not describe how GHS youth are provided access to treatment programs and opportunities that address individual treatment needs and/or behavior problems although it states that all youth experiencing an episode of major mental illness have access to appropriate services. How do youth who have a major mental illness access appropriate services? How do youth who do not have a major mental illness access appropriate services?
What programs are being developed at GHS for managing seriously disordered incarcerated youth? The report indicates that GHS is in the process of developing a program for managing seriously disordered youth.

11. The State defendants agree to, within thirty days after receiving the report of the mental health consultants, but in any event by no later than September 15, 1996, develop a plan in response to the findings and recommendations of the mental health consultants referred to in the preceding paragraph. The plan shall contain dates by which specific tasks shall be performed to implement JRA's response to the consultant's findings and recommendations as well as this Supplemental Stipulation and Judgment. This remedial plan shall ensure that the State defendants satisfy their obligations under the terms of this Supplemental Stipulation and Judgment and comply with relevant legal standards regarding the provision of mental health services to youth at GHS.
Finding - GREEN HILL SCHOOL'S ACTION PLAN FOR THE UNIVERSITY OF WASHINGTON'S MENTAL HEALTH NEEDS ASSESSMENT STUDY is dated December 16, 1996, and addresses recommendations specific to Green Hill School made in the University report. This document is more of a status report than a plan probably because the University report provides GHS recommended strategies for improvements rather than priority areas for planning purposes as it does to the Juvenile Rehabilitation Administration. JRA has created a mental health oversight committee and did not present a written plan in response to this stipulation.
12. Defendants shall submit their remedial plan to plaintiffs counsel for their review as soon as possible after its completion, but in any event by no later than September 30, 1996. Plaintiffs'* counsel shall review defendants' remedial plan by no later than 30 days after its receipt. If the plan fails to satisfy plaintiffs that the State Defendants will meet their obligations under the terms of this Supplemental Stipulation and Judgment or comply with relevant legal standards regarding the provision of mental health services to youth at GHS, plaintiffs may object to defendants' implementation of the plan, in whole or in part.
13. In the event that the plaintiffs object to any of the terms of the State's remedial plan, the Court-Appointed Monitor Orlando Martinez, shall serve as a mediator to assist in the resolution of disputed areas. Any disputes not resolved informally through the intervention of the Court Monitor in this manner shall be resolved in accordance with H.F. 8 of the parties' original Stipulation and Judgment, incorporated herein by reference.
Finding In a letter dated February 21, 1997, from plaintiffs counsel to counsel for the defendant, a conference is requested for resolving concerns with the University's report and the plan submitted by GHS.
21. The State defendants agree to, by no later than August 15, 1996, develop and implement a revised policy for the administration of psychotropic medications that is consistent with applicable law.
Finding - GHS has amended GHS policy #7 and incorporated medication protocols into their medical and dental care policy. This incorporation has resulted in a complex 23 page document which requires careful study to determine agency policy for the

administration of psychotropic medications. GHS should consider developing a separate policy.
Sections 14,15,16,17,18,19,20,22 and 23 are dependent upon the development of a plan as required by section 11 of this Supplemental Stipulation and Judgment.
HORTON VS WILLIAMS STIPULATION & JUDGMENT
Physical Plant
The State Defendants will maintain the present facility in a safe and sanitary condition, and will adequately heat, cool, and ventilate all structures. This provision shall not be construed to require capital improvements in existing structures, other than as planned in reconstruction, absent a condition that adversely affects the health or safety of residents.
Finding - Green Hill School received its annual environmental health audit from the Washington State Department of Health on January 28, 1997. Five deficiencies consisting of minor cleaning issues were noted.
Disciplinary Practices
The parties agree that they will comply with JRA Bulletin No. 2 and GHS Policy No. 4 which comport with the requirements of this Judgment and the State Defendants agree to abide by the terms and conditions of these policies.
Finding - No incidents of the use of oleoresin capsicum (pepper spray) at Green Hill School since December 20, 1995.
From July 1, 1996 to December 31, 1996, GHS staff used mechanical restraints in 49 separate instances. Review of written documentation indicates that GHS is following requirements set forth in JRA Bulletin 2 and GHS Policy 4.
Green Hill School is complimented for developing an information management system that allows for tracking of juveniles to the Intensive Management Unit. These data will assist staff, managers and the Court Monitor in tracking compliance with due process guidelines.
EDUCATION
State Defendants must provide youth in lock-up with access to education services.
Finding - The Monitor did not review this stipulation during this visit, therefore a finding can not be provided.

HEALTH AND REHABILITATIVE SERVICES
The State Defendants shall permit only qualified medical personnel to administer medications to youth, as required by law.
Finding - In compliance.
TRANSLATION SERVICES
Finding - Translation services are being provided.
GRIEVANCE PROCEDURES
The State Defendants agree to abide by JRA Bulletin No. 13, relating to Youth Complaints.
Finding - Data provided by GHS indicates that resident complaints have been resolved in a timely manner. The School has developed a management information system that has assisted this process.
SUMMARY AND COMMENTS
Overall Green Hill School continues to make good progress in acheiving compliance with the Stipulation and Judgment signed by the Court on September 11, 1995. Pursuing accreditation by the American Correctional Association will improve management and service delivery in this facility as will the reconstruction of its living units and support spaces. Of concern, however, are mental health services and compliance with the Supplemental Stipulation and Judgment entered in this case. A conference will be set with both parties to resolve these concerns.
Prepared and Submitted by: Orlando L. Martinez March 17,1997

 
 Horton v. Williams •jì-WÄ¯ÖÕ02¯-0041
PROGRESS REPORT HORTON VS WILLIAMS SUPPLEMENTAL STIPULATION & JUDGMENT
November 1997
Orlando L. Martinez Case No. C 94-5428 RJB

.FILED.

L ••

RECEIVED

DEC 0 1 1997

CLERK U.S. D!3 n¾!OÏ COUH r

VÆSTCRH DtST5¾CT OF y`JA3W¡ •K>ïCí'l AT 7ACCMA

SY

_DF?UJXJ

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JAMES HORTON, et al. Plaintiffs,
vs. BOB WILLIAMS, et al.
Defendants

CLASS ACTION
No. C94-5428 RJB SUPPLEMENTAL STIPULATION & JUDGMENT RESOLVING PLAINTIFFS' REMAINING CLAIMS

O.

£21

Submitted to

C3

United States District Court

Western District of Washington

at Tacoma

INTRODUCTION
Pursuant to the requirements of this Supplemental Stipulation & Judgment, defendants have retained consultants with expertise in the field of mental health services for juvenile offenders, the University of Washington, Department of Psychiatry and Behavioral Sciences, to evaluate and make recommendations regarding the mental health services available to juveniles incarcerated at Green Hill School (GHS). The consultants provided a written report including findings and recommendations, which resulted in the development of a remedial plan by the defendants in this case.
The plaintiffs object to the defendant's implementation of the remedial plan in part because defendants fail to adequately staff and designate a treatment program for those juveniles who have non-acute mental health problems and that continue in placement at GHS. Specifically the plaintiffs are asking that GHS (1) design and implement a treatment program that promotes behavior modification by emphasizing positive reinforcement techniques, (2) provide all juveniles with an individualized treatment plan identifying each juvenile's mental health problems including medical needs, (3) establish individual therapeutic goals for the juveniles and (4) provide group and/or individual counseling addressing the problems identified. The plaintiffs argue that mental health treatment should not consist only of medication but should take a balanced psychological/sociological approach to the treatment of juveniles experiencing mental health problems.
FINDINGS
In response to the Court Monitor's findings in the February 1997 report to the court indicating that the University of Washington's report did not address how residents are provided access to treatment services if they are manifesting acute and non-acute mental illness, GHS has revised policy #36 (Mental Health Care). This policy states the following:
1. Green Hill School shall provide for resident mental health care consistent with professional standards for juvenile training schools.
2. Mental health care staff shall use a standardized intake process. 3. All residents of GHS shall have access to mental health services to ensure they are
adequately monitored to prevent harm to self, others, or property as a result of a mental disorder. 4. Resident mental health care shall be managed by a standardized referral & assessment process. 5. Case management staff shall work in cooperation with mental health staff to ensure residents with mental disorders are assigned to a level of care consistent with the severity of their disorder. 6. The special needs program shall maintain and ensure the confidentiality and security of mental health records. 7. Residents of GHS may request supplemental mental health care in addition to services provided through the health center. 8. GHS shall prescribe voluntary psychotropic medications consistent with a resident's diagnosed mental disorder.

9. GHS's health care authority or psychiatric consultant may prescribe involuntary psychotropic medications consistent with a resident's diagnosed mental disorder and potential for harm to self or others.
10 Residents with severe mental disorders who are unresponsive to treatment may be considered for transfer to an inpatient mental health unit in a JRA facility, or to an inpatient unit within a mental health division facility in accordance with an interagency agreement.
11 GHS managers in cooperation with the mental health coordinator shall ensure community transitional planning and that referrals to appropriate community mental health resources are made.
In order to meet section 10 (noted above) of this policy #36, an interagency agreement between the Juvenile Rehabilitation Administration and the Mental Health Division, both within the Department of Social and Health Services, was signed on October 28, 1997. This agreement provides for the transfer of juveniles in the custody of the Juvenile Rehabilitation Administration to Mental Health Division psychiatric inpatient care. According to this agreement, transfers can occur for a short term assessment, stabilization and treatment, or for extended inpatient care. Apparently, an inpat¡ent mental health unit(s) in a JRA facility has not been identified although some GHS residents have been transferred to Maple Lane School for treatment in the past.

The GHS mental health program includes a contract with a psychiatrist, however, the current psychiatrist, Dr. Heidi Lopez, will soon be terminating her contract with GHS. Because of the physical location of GHS, it is difficult to recruit and maintain mental health professionals. Also included in the mental health program is the Mobile Mental Health Team that reviews resident mental health plans on a bi-weekly basis, the Mental Health Resource Team comprised of twelve GHS counselors, and the GHS Special Needs staff who are considered mental health paraprofessionals because they have received mental health training. The Intensive Management Unit is used to house juveniles who require a high security setting associated with their mental disorder. The regular housing units do not have therapeutic treatment programs and utilize surveillance, i.e. suicide rooms, "in-sight program", to deal with those who exhibit mental health problems. The units also refer cases to the Special Needs Program staff who provide the core of services and help identify youth who require mental health services.

GHS has policies regarding the administration of drugs and the prescribing of psychotropic medications. The following is data provided by GHS on the use of psychotropic medications for January - July 1997:

MEDICATION Tricyclic Antidepressants
Selective Seratonin Reuptake Inhibitors

JAN FEB MAR APR MAY JUN JULY

9

8

6

6

5

5

5

6

5

5

4

4

2

3

2'

Anticonvulsants

Antimanics
Antianxiety Medications
Phenoth¡az¡nes
Psychost¡mulants
Unicyclic Antidepressants
Other Antidepresessants

1

0

0

0

0

0

0

0

4

3

2

2

3

3

32

1

1

12

2

3

4

4

0

1

0

1

1

1

2

2

4

1

2

1

1

1

1

4

2

2

The Juvenile Rehabilitation Administration and the University of Washington have developed a work plan responding to the JRA mental health program needs identified University's needs assessment. The work plan includes "VI. Specific Site Assessments, Green Hill School" which deals with five specific findings and recommendations made by the University.
Vl.a. Evaluate effectiveness of current psychiatric consultation.
The proposed plan of action for this recommendation was to hire Kathy Kroening, ARNP, psychiatric nurse practitioner, to provide psychiatric consultation services. This was accomplished on October 11, 1996, and in September she was rotated to the Mobile Mental Health Team administered by the University because of the contracting with a new psychiatrist, Dr. Heidi Lopez. The previous psychiatric consultant was terminated on November 1, 1996, and Dr. Lopez was hired to replace him. Note that Dr. Lopez will be terminating her contract with GHS. The University and Dr. Lopez are recommending funding for additional psychiatric consultation time to provide on-site training and supervision of counseling staff and a request will be made by JRA in the next biennial budget request.
VI.b. Consider extending psychiatric medication management services by utilizing psychiatric nurse practioner.
GHS is utilizing the psychiatrist, Dr. Heidi Lopez, to provide medication management and is developing a computer database system to track psychiatric medication use.
VI.c. Inservice Training.
Twelve Green Hill School staff members have completed 473 hours of mental health training conducted by the University of Washington staff.The plan is to continue sending staff to University sponsored training if the University contract is renewed.

VI,d. Psychiatric consultation input into mental health programming.
The University's Mobile Mental Health Team meets with Green Hill School staff biweekly to provide consultation on treatment plans for youths with mental disorders. It is unclear whether there is regular consultation and input with the Mental Health Resource Team. This team is comprised of cottage-based counselors.
VI.e. Institute formal medication protocols and policies.
GHS has written policies addressing medication protocols and procedures and have participated in formal training conducted by the University of Washington. See data presented above regarding a six month use of psychotropic medications.
SUMMARY AND RECOMMENDATIONS
Following the review of case files, visits to the Intensive Management Unit and to regular housing units it has been concluded that GHS has developed a good system for intake health screening that identifies those youth who need mental health services. Intake screening is performed by a qualified health profesional on all juveniles upon arrival at the institution and those youth who after placement exhibit mental illness are identified and referred by health staff, special needs staff and counselors. The University of Washington inservice training is necessary to train all staff regarding the identification, treatment and referral of mental ill juveniles and should be refunded.
The University of Washington and Mental Health Division interagency agreement has given GHS a framework for emergency services and inpatient hospitalization, however, GHS does not have a mental health program for those juveniles who do not need to be placed in an acute treatment setting and whose health condition has been stabilized. The Special Needs Program has helped fill this gap and in fact most of the juveniles interviewed reported that the special needs staff were helpful and caring and that they could be depended upon to help them with their problems. This is not sufficient given that a comprehensive program is needed to deal with the "other 23 hours" of the youth's day.
GHS should have a designated mental health administrator with local responsibility for mental health services. This person should be a Ph.D. psychologist and/or a trained health care administrator. If this is not fiscally possible, the Juvenile Rehabilitation Administration should seek other ways to provide this local capacity to GHS. The responsibility of this administrator would be to create and implement a scope of mental health services for the institution dealing with education, counseling, substance abuse programs and special needs offenders. Most importantly, this administrator would be responsible for program coordination and supervision.

 
 1

THE HONORABLE ROBERT J. BRYAN

2
-FiLED-
3

Horton v. Williams

4

NOV 0 1 1S36

5 Cl£RK U.S. DiSTBia COURT WESTERN DGTWCT Of WASHINSIO« AT TACi.
6

^

BH

BH

'•

•••

•

JI-WA-0002-0042

7

8

UNITED STATES DISTRICT COUR

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

JAMES HORTON, etal., 11

) ) CLASS ACTIO

12

Plaintiffs,

i 13

vs.

14 BOB WILLIAMS, etal.,

) ) No. C94-5428 RJB ) ) SUPPLEMENTAL STIPULATION & ) JUDGMENT RESOLVING PLAINTIFFS'

15

¾

16

Defendants.

) REMAINING CLAIMS ) -)

17

STIPULATION

18 The parties, plaintiffs James Horton, James Barnhart, Jerome Payton, J.B., through
19 his next friend, Ix>rane West, and K.M., through his mother Debbie Moore, through their
20

21 counsel of record Patricia J. Arthur, David Lambert, Robert A. Stalker, Jr. and Katrin E.

22 Frank, and the State defendants, Art Schmidt, Lyle Quasim, and Sid Sidorowicz, through

23 their counsel, Edward J. Dee, hereby agree that the following Judgment shall be entered,
24 subject to approval of the court and notice to class members. This Supplemental Stipulation
25 and Judgment is entered to finally resolve the remaining claims for injunctive and declaratory
26 relief in the above-captioned lawsuit. This Supplemental Stipulation and Judgment does not
27

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 1

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Yesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

1 involve and therefore does not preclude any class member from filing a claim for damages

2 relating to any claim raised in this equitable action. The parties enter into this Supplemental
3 Stipulation and Judgment for purposes of settling disputed contentions and controversies.
4 Defendants waive their right, to the extent such right exists, to challenge this Supplemental
5 Stipulation and Judgment pursuant to 18 U.S.C. §3626(b)(l) or (2), or any other section of
6
7 the Prison Litigation Reform Act. This Supplemental Stipulation and Judgment incorporates

8 all the terms and conditions of the parties' prior Stipulation and Judgment Resolving Certain

9 Claims and Continuing Trial on the Remaining Ones.

10

DATED this d day of ULL·SJUA

1996.

11

12

, ü ,ßztí)

PATRICIA jyARTHUR, WSBA #13769
13
Attorney foi/Plaintiffs

EDWARD J(JDEE, WSBA #15964 Assistant Attorney General

14
Columbia Legal Services 15 Institutional Legal Services Project

Attorney for State Defendants Office of the Attorney General

101 Yesler Way, Suite 301 16 Seattle, WA 98104

P.O. Box 40124 Olympia, WA 98504-0124

17 (206) 464-0838

(360) 459-6558

18

T, srT/?áU

KATRIN E. FRANK, WSBA/#l4786 19 Of Attorneys for Plaintiffs

20 MacDonald, Hoague & Bayless
21 1500 Hoge Building, 705-2nd Avenue Seattle, WA 98104
22 (206) 622-1604

UAS^M, Secretary
Department of Social & Health Services P.O. Box 45010 Olympia, WA 98504-5010 (360) 753-7039

23

24 DAVID LAMBERT, Pro Ha¿ Vi¿e / Of Attorneys for Plaintiffs
25 National Center for Youth Law
26 114 Sansome Street, Suite 900 27 San Francisco, CA 94104
(415) 543-3307 28
SUPPLEMENTAL STIPULATION & JUDGMENTPage2

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Yesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

1

JUDGMENT

2

This matter having been heard by the Honorable Robert J. Bryan, United States

3 District Court Judge, the parties having stipulated to the entry of this Supplemental
4 Judgment, notice to class members having been issued, and all comments from class
5
members considered by the court, the court approves and enters the following Supplemental 6

7 Judgment. The relief herein is narrowly drawn and extends no further than necessary to

8 address the alleged violations of the federal rights of plaintiffs as stated in the complaint.

9 Furthermore, the relief provided is the least intrusive means to address alleged violations of

10
plaintiffs' federal rights as stated in the complaint.

11
BACKGROUND AND DEFINITIONS
12

13

1. The Complaint in this action was filed on August 11, 1994, on behalf of the

14 named plaintiffs, and all others similarly situated, against defendants Bob Williams,

15 Superintendent of Green Hill School (GHS), Jean Soliz, Secretary of the Department of

16 Social & Health Services (DSHS), and Sid Sidorowicz, Assistant Secretary of DSHS, and
17
their officers, agents, employees, and successors (the State defendants). Plaintiffs filed their
18
First Amended Complaint on August 17, 1994, adding the Chehalis School District as a
19
20 defendant.

21

2. The State defendants moved to djsmiss_tihis_case on Septemt>ex,?^r 1994. On $

22 November 8, 1994, District Court Judge Robert J. Bryan denied defendants' Motion to
23 Dismiss.
24
3. This case was certified as a class action by Stipulated Order filed on
25
September 30, 1994. The class is defined as "All juveniles currently or in the future
26
27 incarcerated at Green Hill School."

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 3

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1

4. On December 6, 1994, the court granted in part plaintiffs' Motion For A

2 Preliminary Injunction regarding defendants' use of pepper spray at GHS.

3
5. Effective February 1, 1995, defendant Bob Williams resigned his position as
4
Superintendent of GHS.
5

6

6. On June 1, 1995, Art Schmidt began his employment as the new

7 Superintendent at GHS.

8

7. On September 11, 1995, the Court entered a Stipulation and Judgment

9 Resolving Certain Claims and Continuing Trial On the Remaining Ones. Plaintiffs' health, 10
treatment and rehabilitation claims were the only claims left unresolved by the parties'
11
original Stipulation and Judgment. To assist in the resolution of those claims the State
12
13 defendants agreed to take steps to improve practices in the following program areas:

14

(a) intake and orientation procedures;

15

(b) individual treatment plans;

16

(c) use of intensive management unit;

17
(d) individual counseling;
18
(e) vocational opportunities;
19

20

(f) de-escalation skills;

21

(g) treatment of violent offenders;

22

(h) life skills programs, and

23
(i) health care services.
24
(See paragraph Il.C.2(b) of the parties' original Stipulation & Judgment)
25
8. This Supplemental Judgment finally resolves plaintiffs' health, treatment and
26

27 rehabilitation claims. It is fair, reasonable, and adequate to protect the class in accordance

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 4

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1 with the standards of Fed. R. Civ. P. 23(e).

2

9. For purposes of this Judgment, the following definitions shall apply.

3
a. Documents: The term "documents" as used herein includes, without
4
limitation, correspondence, telegrams, cables, teletype messages, videotapes, mailgrams,
5
reports, records, schedules, diaries, court dockets, court files and papers found therein,
6

7 notes, logs, summaries, memoranda, memoranda of telephone conversations, photographs,

8 depictions, sketches, renderings, mechanical and electronic records of conversations or of

9 statements or of telephone conversations, and all other printed, typewritten, written records,

10 or taped matter of any kind of description. The term "documents" does not include materials

11
subject to the attorney/client privilege or any other privilege pursuant to federal or state laws.
12

13

b. Defendants: Defendants include the named defendants in this action

14 and their supervisors, officers, agents, successors, employees and assigns. The "State

15 defendants" as used herein refers to Lyle Quasim, Sid Sidorowicz and Art Schmidt.

16

c. Lock-up: "Lock-up" or "lock-up unit" includes the IMU now in Fir

17
and Poplar cottages and any successor unit intended to house youth with disciplinary and/or
18
behavioral problems.
19

20

d. Law: The term "law" refers to all state and federal constitutions,

21 statutes, and regulations, as well as case law, that apply to the services referred to herein.

22

OBLIGATIONS OF THE STATE DEFENDANTS

23

10. The State defendants shall, by no later than June 1, 1996, retain consultants

24
with expertise in the field of mental health services for juvenile offenders (hereafter mental
25

health consultants) to evaluate and make recommendations regarding the mental health
26

27 services available for juveniles incarcerated at GHS, including especially the mental health

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage5

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Yesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

1 services for juveniles with acute mental illness, to insure that all youth at GHS are provided

2 access to treatment programs and opportunities that address their individual treatment needs
3 and/or behavior problems as required by relevant state and federal law and the terms of this 4
Supplemental Stipulation and Judgment. The State defendants shall require the mental health 5
consultants to submit a written report of their assessment, including findings and 6
7 recommendations, which shall be due to the Juvenile Rehabilitation Administration (JRA) by

8 June 30, 1996.

9

11. The State defendants agree to, within thirty days after receiving the report of

10 the mental health consultants, but in any event by no later than September 15, 1996, develop
11 a plan in response to the findings and recommendations of the mental health consultants
12
13 referred to in the preceding paragraph. The plan shall contain dates by which specific tasks

14 shall be performed to implement JRA's response to the consultants' findings and

15 recommendations as well as this Supplemental Stipulation and Judgment. This remedial plan

16 shall ensure that the State defendants satisfy their obligations under the terms of this

17 Supplemental Stipulation and Judgment and comply with relevant legal standards regarding
18 the provision of mental health services to youth at GHS.
19

20

12. Defendants shall submit their remedial plan to plaintiffs' counsel for their

21 review as soon as possible after its completion, but in any event by no later than September

22 30, 1996. Plaintiffs' counsel shall review defendants' remedial plan by no later than 30 days
23 after its receipt. If the plan fails to satisfy plaintiffs that the State defendants will meet their 24
obligations under the terms of this Supplemental Stipulation and Judgment or comply with 25
relevant legal standards regarding the provision of mental health services to youth at GHS, 26
27 plaintiffs may object to defendants' implementation of the plan, in whole or in part.

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 6

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1

13. In the event that the plaintiffs object to any of the terms of the State's remedial

2 plan, the Court-Appointed Monitor Orlando Martinez, shall serve as a mediator to assist in

3 the resolution of disputed areas. Any disputes not resolved informally through the
4 intervention of the Court Monitor in this manner shall be resolved in accordance with ¶
5
6 II.F.8 of the parties' original Stipulation and Judgment, incorporated herein by reference.

7

14. The State defendants shall adhere to all relevant state and federal laws with

8 respect to the reasonable accommodation of the mental disabilities of youth at GHS.

9

15. The State defendants shall provide access to appropriate mental health services

10 to residents of Green Hill School as required by law.
11
16. The State defendants shall not use lock-up for juveniles with acute mental 12

13 illness in any manner that is inconsistent with state or federal law.

14

17. The State defendants shall ensure that mental health screenings are performed

15 within a reasonable time after residents are transferred to or retained in lock-up pursuant to

16 GHS policy No. 35, or any successor policy, for periods greater than 72 hours. The State
17 defendants shall, based on these screenings, make appropriate referrals for mental health
18 services to ensure that such residents placed in lock-up are provided access to mental health
19
20 services required by law.

21

18. All juveniles requesting to be seen for mental health concerns shall have access

22 to qualified staff who shall evaluate the need for further mental health consultation, and shall,
23 consistent with standards of care required by law, have access to appropriate treatment in a 24
timely manner. 25
19. The State defendants shall administer stimulants, tranquilizers, or psychotropic 26
27 drugs only if medically appropriate and only as consistent with state and federal law.

28
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1

20. All refusals by GHS residents for mental health treatment provided by GHS

2 medical or mental health staff shall be documented by staff and confirmed in writing by the
3
resident.
4
21. The State defendants agree to, by no later than August 15, 1996, develop and
5
implement a revised policy for the administration of psychotropic medications that is
6
7 consistent with applicable law.

8

22. Defendants shall submit their medications policy referred to in the preceding

9 paragraph to plaintiffs' counsel for their review as soon as possible after its completion, but
10 in any event by no later than August 30, 1996. Plaintiffs' counsel shall review the policy by
11
no later than 30 days after its receipt. If plaintiffs' counsel believe the policy is not
12
13 consistent with applicable law, plaintiffs may object to defendants' continued implementation

14 of the policy, in whole or in part.

15

23. In the event plaintiffs object to any of the terms of the State's psychotropic

16 medications policy, the Court-appointed Monitor shall serve as a mediator to assist in the
17
resolution of disputed areas. Any disputes not resolved informally through the intervention
18
of the Court Monitor in this manner shall be resolved in accordance with ¶ II.F.8 of the
19
20 parties' original Stipulation and Judgment.

21

IMPLEMENTATION. MONITORING AND REPORT REQUIREMENTS

22

24. During the duration of this Supplemental Stipulation and Judgment, plaintiffs'

23 attorneys, plaintiffs' experts, and the Court Monitor shall have reasonable on-site access to
24
GHS residents and staff, and to all discoverable documents of the State defendants.
25
25. If available, Orlando Martinez, the Court Monitor of the parties' original
26

27 Stipulation and Judgment, shall perform all monitoring responsibilities under this

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 8

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Yesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

1 Supplemental Stipulation and Judgment. If he is not available at any time during the duration

2 of this Supplemental Stipulation and Judgment, another Monitor with expertise in the field of

3 juvenile corrections shall be selected and approved by both plaintiffs' counsel and the State
4 defendants. The Monitor shall consult with defendants as requested and may assist in
5
mediating disputes between the plaintiffs and the State defendants as specified below. 6

7

26. The State defendants agree to submit every six months a written report to

8 plaintiffs' attorney and the Monitor outlining the steps taken to comply with this
9 Supplemental Stipulation and Judgment.
10
27. The Monitor shall inspect GHS at least once every six months for the duration
11
of Court jurisdiction over this matter, but may inspect more often with the agreement of the
12
13 State defendants, which shall not be unreasonably withheld, or to assist the State defendants
14 in resolving problems as requested by the State defendants. The Monitor need not inspect

15 every six months if the Monitor, plaintiffs' counsel, and the State defendants agree that such

16 inspections are not necessary. Inspections by the Monitor as required by this paragraph shall

17
be scheduled at the same time as the on-site inspection required by the parties' first
18
Stipulation and Judgment.
19

20

28. The Monitor shall issue a written report within 30 days of any inspection

21 describing: (1) The State defendants' progress in achieving compliance with this

22 Supplemental Stipulation and Judgment and its implementation plans, and (2) whether the

23 State defendants are complying with this Supplemental Stipulation and Judgment. The
24
Monitor shall provide copies of the report to the Court and the parties. Plaintiffs and the
25
State defendants may respond to any report filed by the Monitor.
26

27

29. The parties will attempt to resolve any dispute arising under this Supplemental

28
SUPPLEMENTAL STIPULATION & JUDGMENTPage 9

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Yesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

1 Stipulation and Judgment informally through their attorneys. If these efforts fail, paragraphs

2 30 and 31 below shall be used to resolve disputes between the parties.

3

30. Both the State defendants and plaintiffs may raise questions of compliance with

4 this Supplemental Stipulation and Judgment concerning the obligations of the State defendants
5
with the Monitor. The Monitor shall attempt to informally resolve any questions raised. If 6

7 the Monitor is unable to resolve any question informally, either party may ask the Monitor to

8 make formal findings of fact and recommendations to resolve the question. Whenever

9 requested to do so, the Monitor shall make findings of fact and recommendations as
10 requested. Either party may respond to the Monitor's findings of fact. 11
31. If plaintiffs' counsel and the State defendants are unable to resolve disputes 12
regarding compliance with this Supplemental Stipulation and Judgment with the Monitor in 13
14 the manner provided in the preceding paragraph, they may seek Court review of the

15 compliance issue. A party may seek Court review, without complying with paragraph 30

16 above, if compliance would cause undue delay or threaten imminent harm to a party.

17
32. The State of Washington acting on behalf of the State defendants shall be

18
responsible for the reasonable expenses of the Monitor. 19

20

33. If there is a dispute with respect to facts relating to a possible violation of this

21 Stipulation and Judgment by any party, the Federal Civil Rules of discovery shall apply.

22

DAMAGES AND ATTORNEYS' FEES

23

34. This Supplemental Stipulation and Judgment does not resolve, adjudicate or

24 bar damages claims of any plaintiffs or class members. Plaintiffs' claims for costs and
25
attorneys' fees are reserved for determination by the court at a later date. 26

27

TERMINATION OF FEDERAL COURT JURISDICTION

28
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1

35. This Court has continuing jurisdiction to enforce the terms of this

2 Supplemental Stipulation and Judgment for four years following the date of its entry by this

3 Court. At the conclusion of this period the Court's jurisdiction shall terminate, this
4 Supplemental Stipulation and Judgment shall be vacated, and this case dismissed.
5

6

MODIFICATION

7

36. The court may modify this Supplemental Stipulation and Judgment only upon

8 (1) the agreement of the parties with the approval of the Court; (2) or upon a motion to

9 modify provided that the party seeking the modification demonstrates that a significant and
10 unforeseen or unforeseeable change in the law or in the facts warrants revision of this
11 Stipulation and Judgment, and that the proposed modification is suitably tailored to the
12
13 changed circumstances.

14

DATED this

day of

199:

15

16

17

18

Copy Received; Approved for Entry:

19 20

ñ

PATRICIA Jr/ÄRTHUR, WSBA #13769

21 WSBA #13769

Attorney for Plaintiffs 22

THE HONORABLE/ROBERT¿r. BRYAN United States Disü¾ct Court Judge
/
ApproveiLas to form, presentation waived:
EDWARD J.VPEE, WSBA #15964 Assistant Attorney General Attorneys for State Defendants

23

„ ?.. ‰A

24 KATRIN E. FRANK. WSÖA #l¿‡786¯ Of Attorneys for Plaintiffs

25

26

VJ .4 ÍT\

27 `l>ÄVID LAMBERT, Pro Hac/Viee ' Of Attorneys for Plaintiffs

28

SUPPLEMENTAL STIPULATION & JUDGMENTPage 11

COLUMBIA LEGAL SERVICES Institutional Legal Service Project 101 Vesler Way, Suite 301 Seattle, WA 98104 (206) 464-0838

 
 Horton v. Williams

1

JI-WA-0002-0043

THE HONORABLE ROBERT J. BRYAN

2
V=rc.-.·.1

3

4

2 6 1933

5

¯ ' 2 2 ir,¡'¯>»·.

6

7

8

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT TACOMA

11 JAMES HORTON, etal.,

12

Plaintiffs,

13 vs.
14 BOB WILLIAMS, etal.,
15
Defendants. 16

No. C94-5428 RJB
MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES AND COSTS

17 I. INTRODUCTION
18 On September 11, 1995, this Court entered the parties' Stipulation and Judgment
19
20 Resolving Certain Claims And Continuing Trial On The Remaining Ones. On November 5,

21 1996, the parties' Supplemental Stipulation and Judgment Resolving Remaining Claims was

22 entered. Under these agreements, which together resolve all of plaintiffs' claims in this case,
23 plaintiffs are prevailing parties, and as such, are entitled to attorneys' fees and costs under 42
24 U.S.C. § 1988 and 20 U.S.C. § 1415 (e)(4)(B)-(C). Plaintiffs, therefore, submit this first
25

26

27

28
MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES & COSTSPage 1

COLUMBIA LEGAL SERVICES

INSTITUTIONAL LEGAL SERVICES PROJECT

101 YESLER WAY, SUITE 301

SEATTLE, WASHINGTON 9 8 I O " O • O

(206) 464-0838

`~7 ^J

1 request for fees of $342,465.40 and out-of-pocket expenses of $19,289.37.l This is our first 2
request for fees that represents only the hours of work performed to date. Plaintiffs will 3
from time to time seek additional fees for ongoing monitoring activities as allowed by the 4 5 parties' original and supplemental Stipulation and Judgment. This Memorandum supports
6 plaintiffs' Motion. The declarations filed herewith provide the facts supporting the hours

7 spent, expenses incurred, and prevailing rates.

8

II. ARGUMENT

9 A. The Purposes Of The Attorneys' Fees Act
10 In Riverside v. Rivera. 477 U.S. 561, 91 L.Ed. 466, 106 S.Ct. 2686 (1986), the
11
12 Supreme Court examined the purposes of 42 U.S.C. § 1988, the Federal Civil Rights

13 Attorneys' Fees Statute.

14

Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate

important civil and constitutional rights that cannot be valued solely in

15

monetary terms. See Carey v. Piphus. 435 U.S. 247, 266, 55 L.Ed.2d 252,

16

98 S.Ct. 1042 (1978). And, Congress has determined that "the public as a whole has an interest in the vindication of the rights conferred by the statutes

17

enumerated in Sec. 1988, over and above the value of a civil rights remedy to

a particular plaintiff . . . " Henslev fv. Eckerharti. 461 U.S. at 444 n.4, 76

18

L.Ed.2d 40, 103 S.Ct. 1933 (Brennan, J., concurring in part and dissenting in

part) . . . 19

20

Congress expressly recognized that a plaintiff who obtains relief in a civil

rights lawsuit '"does so not for himself alone but also as a 'private attorney

21

general' vindicating a policy that Congress considered of the highest

importance.'" House Report at 2 (quoting Newman v. Piggy Park Enterprises,

22

Inc., 390 U.S. 400, 402, 19 L.Ed.2d 1263, 88 S.Ct. 964 (1968)) . . .

23 Because damages awards do not reflect fully the public benefit advanced by

24

civil rights litigation, Congress did not intend for fees in civil rights cases,

unlike most private law cases, to depend on obtaining substantial monetary

25

relief. Rather, Congress made clear that it "intended that the amount of fees

26

27

V This motion is brought against all defendants. The State defendants and the Chehalis School District are jointly and severally liable for plaintiffs' fees and costs in this case. See

28 Conte, Attorney Fee Awards (2d Ed. 1993); Corder v. Gates. 947 F.2d 374 (9th Cir. 1991).

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES & COSTSPage2

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1

awarded under [§ 1988] be governed by the same standards which prevail in

2

other types of equally complex federal litigation, such as antitrust cases and

not be reduced because the rights involved may be nonpecuniary in nature."

3

Senate Report, at 6, U.S. Code Cong, and Admin. News 1976, p. 5913

(emphasis added). 4

5 477 U.S. at 574-75 (plurality opinion).

6

As the Court of Appeals for the Seventh Circuit has noted,

7

An award of fees enables the plaintiff to keep the whole recovery and brings

home to the defendants the full social costs of their unconstitutional conduct,

8

costs that include litigation as well as the original damages.

9 Kirchoff v. Flvnn, 786 F.2d 320, 327 (7th Cir. 1986).
10 B. Plaintiffs Are The Prevailing Party
11

12

To be a prevailing party eligible for attorneys' fees under § 1988, plaintiff must

13 succeed on "any significant issue in litigation which achieves some of the benefit the parties

14 sought in bringing suit." Texas State Teachers Association v. Garland Independent School

15 District. 498 U.S. 782, 791-92, 103 L.Ed.2d 866, 109 S.Ct. 1486, 1493 (1989). A plaintiff
16 need not obtain formal judicial relief to be a prevailing party under § 1988. Maher v.
17 Gagne, 448 U.S. 122, 126 n.8, 128 n.10, 129, 131 (1980). Plaintiff may be deemed to be a
18 19 prevailing party if the lawsuit "produces voluntary action by the defendant that affords
20 plaintiff all or some of the relief he sought through a judgment ~ e.g., a monetary settlement

21 or a change in conduct that redresses the plaintiffs grievances." Hewitt v. Helms, 482 U.S.

22 755, 776-61 (1987).
23 Plaintiffs here, through settlement, achieved substantially all the benefits sought in
24 bringing the suit, i.e., (1) the reconstruction of Green Hill School to address the institution's
25 26 physical plant deficiencies; (2) the severe limitation on the use of chemical and physical
27 restraint; (3) the revision of disciplinary practices and procedures; (4) the provision of special

28

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES-& COSTSPage3

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1 education assessments and services previously denied youth at Green Hill School; (5) the
2 guarantee of basic and special education services to youth in lock-up; (6) guaranteed
3 improvements in the health, including mental health, and rehabilitative services offered to
4 5 youth, and (7) language translation services to non-English speaking juveniles incarcerated at
6 Green Hill School. Declaration of Patricia J. Arthur. There can be no question that

7 plaintiffs are the prevailing party in this case.

8

C. Calculation Of The Fee Award

9 The Court has broad discretion in the calculation of the amount of federal civil rights
10
attorneys' fees to be awarded in a particular case. Hall v. Bolger, 786 F.2d 1148, 1150 (9th
11

12 Cir. 1985).

13

1. Factors In The Lodestar Fee Calculation.

14

The Supreme Court in Riverside reaffirmed its holding in Hensley v. Eckerhart, 461

15 U.S. 424 (1983), that '"[t]he most useful starting point for determining the amount of a

16 reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
17 reasonable hourly rate.' Id. at 433." 477 U.S. at 468. That is the method plaintiffs here
18
19 use to calculate the "lodestar" figure for their application.

20

Plaintiffs are entitled to compensation for time reasonably expended on litigation. In

21 addition, "time spent in establishing entitlement to an amount of fees awarded under § 1988

22 is compensate." Clark v. City of Los Angeles. 803 F.2d 987, 992 (9th Cir. 1986).
23
The reasonableness of the lodestar amount should be reviewed in light of the
24
following factors: (1) time and labor required; (2) novelty and difficulty of the questions
25
involved; (3) the skill requisite to perform the legal services properly; (4) the preclusion of
26
27 other employment by the attorney due to acceptance of the case; (5) the customary fee; (6)

28

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES & COSTSPage 4

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1 whether the fee is fixed or contingent; (7) time limitations imposed by the client or the 2
circumstances; (8) the amount involved and the results obtained; (9) the experience, 3
reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and 4 5 length of the professional relationship with the client; and (12) awards in similar cases. Kerr
6 v. Screen Extras Guild. Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert, denied, 425 U.S.

7 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). A review of the lodestar in this case in light of

8 those factors supports the reasonableness of plaintiffs' fee request.

9

2. The Kerr Factors

10
(1) Time and Labor. This case required extensive time and labor because it was a 11

12 fact-intensive class action which involved many different legal claims and incarcerated youth

13 who were located almost 100 miles from the offices of plaintiffs' counsel.

14

The class involved over a thousand members. Lawyers and staff extensively reviewed

15 institutional records and responded to many individual complaints about the myriad kinds of
16 constitutional violations which are the subject of this litigation. Declaration of Patricia J.
17 Arthur. In anticipation of trial, and given the numerous legal claims and facts, plaintiffs'
18
19 counsel developed a data bank to manage all factual information relevant to plaintiffs'

20 respective claims. Declaration of Patricia J. Arthur. The task of managing facts in a case

21 such as this, involving multiple and complex constitutional and statutory claims, is labor
22 intensive. Moreover, much time and work was required to: (a) defend against defendants' 23
Motion to Dismiss; (b) obtain a preliminary injunction against defendants' pepper spray 24
practices; (c) prepare and take depositions (there were a total of 15 depositions taken in this 25 26 case); (d) prepare evidence for possible trial; and (e) conduct extensive negotiations that
27 ultimately resulted in a full settlement of the case.

28

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES'& COSTSPage 5

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

(2) Difficulty of Questions Involved. The issues in this litigation, some of which
2 were novel, were difficult and complex. Many claims involved constitutional issues or
3 intricate federal statutory provisions. For example, with regard to plaintiffs' education
4
claims brought under the Individuals with Disabilities Education Act, plaintiffs had to

research such questions as whether, in a class action challenge such as this, named class

members with special education claims were required to individually exhaust their
Q
administrative remedies before seeking the kind of systemic, class-wide relief sought in this
9 action.
10 Plaintiffs' constitutional claims raised similar complex questions. For example, there
11
are no reported (or unreported, so far as we know) cases in the country that set forth the

13 standard to apply to determine the constitutionality of defendants' pepper spray practices,

14 practices that were ultimately enjoined here.

15

(3) Skill Required. The central issues in this litigation were of a constitutional

16
nature which required significant skills with respect to constitutional law and institutional 17
litigation. The many issues involved in this case required special knowledge of a variety of 18
areas of the law and expertise in juvenile institutional litigation. A skilled team of four
1 y

20 lawyers and their support staff were required to manage the litigation. Due to the breadth of

21 the case, and need for special expertise in juvenile institutional litigation, local counsel

22 associated with a nationally known lawyer from the National Center for Youth Law who has

23 for years specialized in juvenile litigation.

24

(4 & 7)

Preclusion of Other Employment and Time Limitations. An

25

26 extraordinary amount of time was required to manage and organize the volume of facts in

27 this class action, as well as to prepare legal arguments in support of plaintiffs' many claims.

28

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST

APPLICATION FOR ATTORNEYS' FEES'Ä COSTS-

f.

`

"

>,

SERVICES
INSTÏTUTIONALAEQAL SERVICES PRQJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

The time it took counsel to review and prepare facts in support of plaintiffs' pepper spray
2 [
claim alone significantly affected counsels' ability to take on other work. 3
(5) Customary Fees. The customary fee for plaintiffs' counsel in this type of 4
litigation is consistent with that being requested by plaintiffs in this case. See Declaration of
John Phillips submitted in support of this Motion.3 As in most, if not all civil rights

litigation, plaintiffs' counsel and organizational sponsors took the case on a contingency basis

o
incurring the risk of non-payment, as well as loss of costs expended.

9

(6 & 8)

Contingency of Fees and Results Obtained. Economic damages were

10 not sought in this litigation. Rather, the case involved requests for injunctive and declaratory
11

relief. As detailed in the Declaration of Patricia J. Arthur, the results obtained in this case
12

13 were extraordinary. Green Hill School is being rebuilt and remodeled; previously non-

14 existent special education services are now available to youth at GHS, improved health and

15 rehabilitation programs have been implemented, mental health services have been and will
16 continue to be improved for youth, the use of pepper spray and other inappropriate physical
17 restraints on youth have been curtailed, Spanish translation services are now available, and
18 defendants have significantly changed their disciplinary and segregation practices as a result
i y
20 of this case. Moreover, the effects of this litigation may extend beyond Green Hill School.

21 For example, the Juvenile Rehabilitation Administration (JRA) is conducting a statewide

22 review and revision of the mental health services available for youth at all JRA facilities.

23

24

27 Over one hundred videotapes and thousands of pages of documents concerning

defendants' pepper spray practices were reviewed, organized, and prepared for trial. These

25 tasks alone took counsel hundreds of hours, and plaintiffs' pepper spray claim was only one

of many equally fact-intensive claims in the case.
26

27

3/ The Declaration of James Lobsenz, submitted in support of attorneys fees in another

case, is submitted herewith solely as support for the market rates of plaintiffs' counsel in this

28 case. See, especially, pages 5 and 11.

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST

APPLICATION FOR ATTORNEYS' FEES & COSTS-

7

`

'

``

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

1

(9) Counsel Reputation. The three lead counsel in this case, Patricia J. Arthur,

2 David Lambert, and Katrin E. Frank are all experienced civil rights litigators. All counsel
3 have extensive experience and a strong reputation for their civil rights advocacy on behalf of
4

5 people in institutions. The attached declarations of counsel detail their respective experience,

6 reputation and expertise.

7

(10 & 11) Desirability of the Case. It is difficult in the local legal community to

8 obtain counsel for cases, such as this one, involving the representation of incarcerated youth;
9 the case is difficult and risky. Furthermore, it was, by necessity, a contingent case which
10 required not only that attorneys bear the risk of non-payment of fees, but also that the
11
12 organizational sponsors had to underwrite the cost of litigation, as there was no likelihood

13 that the plaintiffs could pay any costs incurred whether they won or lost. For example,

14 plaintiffs incurred expert witness expenses in this case which will not be reimbursed.4 Any

15 other expenses not compensated by the Court will remain unreimbursed expenses, since

16 plaintiffs have no resources with which to compensate counsel.
17 D. The Base Fee Rate And Hours Expended
18

19

The number of hours plaintiffs' counsel have expended is set forth in the Declarations

20 of Patricia J. Arthur, Katrin E. Frank, Robert A. Stalker, Jr., and David Lambert. Given

21 the complexity of the claims, the number of class members, the many claims, and huge
22 volume of facts, plaintiffs anticipate no serious question about the reasonableness of the total 23
number of hours expended. The Declarations of John Phillips and James Lobsenz submitted 24
herewith further support the reasonableness of the fee rates we use and the hours expended 25 26 on this litigation.

27

4/ Expert witness fees for the consultants used to pursue plaintiffs' claims against the

28 State defendants are excluded since they are not compensable under 42 U.S.C. § 1988.

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES*& COSTSPage 8

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1

In addition to hours for direct representation, attorney time is compensable for

2 activities such as services before a lawsuit is formally commenced, including drafting initial
3 pleadings, and work associated with the development of the theory of the case. Webb v.
4
5 Board of Education, 471 U.S. 234, 243 (1985); Culman v. Block. 589 F. Supp. 1411, 1418

6 n.8 (D.N.D. 1984). Plaintiffs here also seek fees for productive discussions among attorneys

7 for case management purposes, National Association of Concerned Veterans v. Secretary of

8 Defense, 675 F.2d 1319, 1337 (D.C. Cir. 1982); for necessary conferences with paralegals
9 and potential witnesses, Morgan v. Nevada Board of State Prison Commissioners, 615 F.
10 Supp. 882, 884 (D. Nev. 1985) (paralegals); Spell v. McDaniel. 616 F. Supp. 1069, 1099
11 (E.D.N.C. 1985) (potential witnesses); and for time spent on supervision by a senior
12
13 attorney, Reed v. New York. 584 F. Supp. 461, 462 (S.D.N.Y. 1984).5

14

As part of their fees, plaintiffs seek recovery for hours worked by paralegals, law

15 clerks and the data base manager. These hours are appropriately included in the fees counsel
16 seek. Missouri v. Jenkins. 491 U.S. 274, 285 (1989). The term "reasonable attorney fee"
17 in 42 U.S.C. § 1988 refers to attorney work product, including work performed by
18 19 paralegals and the like. Id. Where the prevailing practice is to bill fee-paying clients for
20 paralegal and other work, it is appropriate to calculate the fee, including paralegal and clerk

21 work, on the basis of "rates and practices prevailing in the relevant market." Id. at 286-87.

22 See also Davis v. County of Los Angeles. 8 E.P.D. 9444 (D.C. Cal. 1974).6 See a¡so

23

24

51 Plaintiffs have exercised billing judgment by not charging for all activity. See

Declarations of Plaintiffs' Counsel attached.

25

26

27

6/ Davis was decided before the enactment of Section 1988, but was cited specifically as

an example of a case in which "[t]he appropriate standards . . . are correctly applied" in the

28 Senate Report on the Civil Rights Attorneys' Fee Act. See Larson, Federal Court Awards of

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST APPLICATION FOR ATTORNEYS' FEES ¯& COSTSPage9

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1 Virginia University v. Kavcee. 499 U.S. 83, 99-100 (1991).
2 Plaintiffs have calculated their fee request at the standard hourly market rate of each
3 attorney and support staff involved.7 These rates are at or below the prevailing market rates
4
o in the area for lawyers and staff involved in litigation of this type and complexity.8 Courts
6 have approved similar, or greater, fees in other cases in this Circuit. See e.g.. Pease v. City

7 of Anaheim, 838 F. Supp. 131 ( C D . Cal. 1993).

8

E. The Bill For Expenses

9
Out-of-pocket expenses, as well as attorneys' fees, are compensable under the Civil
10 Rights Act. See Palmigiano v. Garrahv, 707 F.2d 636, 637 (1st Cir. 1983), and cases cited
11

therein. The general rule is that expenses in litigation normally billed to a fee-paying client

1 3 should be taxed under § 1988. See Thornberrv v. Delta Airlines, Inc.. 676 F.2d 1240, 1244

14 (9th Cir. 1982), vacated on other grounds, 461 U.S. 952 (1983); Gorelangton v. City of

1 5 Reno, 638 F. Supp. 1426, 1434 (D. Nev. 1986).
16 Courts have recognized that such expenses may include the same kinds of expenses
17 requested by the plaintiffs here. The cases in this area are legion; the following is a
18 sampling of cases involving the kinds of expense items plaintiffs have included:
i y

20

(1) Photocopying expenses: Northcross v. Board of Education, 611 F.2d 624, 642

21 (6th Cir. 1979).

22

(2) Long distance charges: Gorelangton v. City of Reno, supra, 638 F. Supp. at

23

24
Attorney's Fees 320 (1981). 25
7/ A local market rate is used to calculate the fees for out-of-town counsel. 26
8/ The determination of a reasonable hourly rate depends on prevailing market rates, not the individual billing rates of the lawyers involved. Blum v. Stenson. 465 U.S. 886, 895 28 n . l l (1984).

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST

APPLICATION FOR ATTORNEYS' FEES'& COSTS- ,

p„of» 1 n

r<¾c 1U

N

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

1 1436.
2 (3) Federal Express and postage charges: Gorelangton v. City of Reno, supra.
3 638 F. Supp. at 1436.
4
(4) Attorneys' travel expenses: Northcross v. Board of Education, supra, 611

F.2d at 629; Gorelangton v. City of Reno, supra. 638 F. Supp. at 1436.

7

(5) Facsimile and messenger expenses: International Woodworkers v. Champion

8 International, 790 F.2d 1174, 1185 (5th Cir. 1986); Palmigiano v. Garrahv. 707 F.2d 636,
9 637 (1st Cir. 1983).
10 The expenses incurred in this case are detailed in the supporting declarations of

12 counsel submitted herewith. An award of any of these expenses is therefore appropriate 13 under 42 U.S.C. § 1988.

14

III. CONCLUSION

15

For these reasons, plaintiffs' request for attorneys' fees and expenses under the Civil

16 Rights Act is reasonable and should be granted. This case is ongoing and there will be
17 monitoring for at least another four years. Accordingly, plaintiffs request that the Court's
18
order reflect that plaintiffs may apply for future expenses and fees periodically as they are

20 incurred.

21

Respectfully submitted this J ¾ ¯ day of /CÖV&H*WlS

, 1996.

22

23

COLUMBIA LEGAL SERVICES

Attorneys for Plaintiffs

24

/ aAJi (Jýut>-

25

PÁTRICIA J. ARTHUR, WSBA #13769

26

Of Attorneys for Plaintiffs

27

28

MEMORANDUM SUPPORTING PLAINTIFFS' FIRST

APPLICATION FOR ATTORNEYS' FEES '& COSTS-

ii

1 l

\

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT
101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104
(206) 464-0838

SUMMARY
Horton v. Williams: Plaintiffs' First Application for Costs and Fees COLUMBIA LEGAL SERVICES Patricia J. Arthur Robert A. Stalker Ursula Barbosa Kelli Schmidt Tom Janega Maureen Janega COSTS
SUBTOTAL NATIONAL CENTER FOR YOUTH LAW
David Lambert COSTS
SUBTOTAL MACDONALD. HOAGUE AND BAYLESS
Katrin E. Frank Tim Ford COSTS
SUBTOTAL
GRAND TOTAL

$197,597.50 35, 817.90 5720.00 5210.00 700.00 280.00 16,383.07
261,708.47
79,668.00 2,856.08 82,524.08
17,280.00 192.00 50.22
17,522.22
$361,754.77

 
 o
¡jb

Horton v. Williams

• ••• • • • • •« • • • • • m
JI-WA-0002-0044
1 THE HONORABLE ROBERT J. BRYAN
2

3

4

5

MAR 0 5 ÍS97

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10
JAMES HORTON, etal.,
11
Plaintiffs,
12

13

vs.

14 BOB WILLIAMS, etal.,

No. C94-5428 RJB
STIPULATED ORDER RE: PLAINTIFFS' FIRST REQUEST FOR ATTORNEYS' FEES AND COSTS

15

Defendants.

16

17

STIPULATION

18

Plaintiffs, by and through their counsel, Patricia J. Arthur of Columbia Legal

19 Services, Katrin E. Frank of MacDonald, Hoague & Bayless, and David Lambert of the
20
National Center for Youth Law, and Defendants, by and through their counsel Brian M.
21
Baker and the Washington State Attorney General Christine O. Gregoire and Edward J. Dee,
22
Assistant Attorney General, hereby stipulate to an award of $250,000.00 in attorney fees and
23
24 costs to Plaintiffs in full settlement of Plaintiffs' First Request For Attorneys' Fees And

25 Costs. This award covers in full all fees and costs incurred in the above-entitled cause
26

27

28
STIPULATED ORDER RE: PLAINTIFFS' FIRST REQUEST FOR ATTORNEYS' FEES & COSTS- Page 1

COLUMBIA LEGAL SERVICES

INSTITUTIONAL LEGAL SERVICES PROJECT

101 YESLER WAY, SUITE 301

r.

SEATTLE, WASHINGTON 9 8 1 0 4 / V i - J

(206) 464-0838

^7 ƒ

1 through the date of entry of this Order.

2

DATED this

day of

3

, 1997.

4

•rhxñA

½-l¿vž . `K

5

PATRICIA ¾/ARTHUR, WSBA #13769 KATRIN E. FRANK, #14768^0 ' J

Attorney foirPlaintiffs

Attorney for Plaintiffs

6 Columbia Legal Services, ILSP

MacDonald, Hoague & Bayless

101 Yesler Way, Suite 301

705 Second Avenue, 1500 Hoge Building

7 Seattle, WA 98104

Seattle, WA 98104

(206) 464-0838 8

(206) 622-1604

9

OkJ&(A\

10 DAVID LAMBERT,

EDWARD J. DEE, WSBA #15964

Attorney for Plaintiffs 11 National Center For Youth Law

Attorney for State Defendants Office of the Attorney General

12 114 Sansome Street, Suite 900 San Francisco, CA 94104

P.O. Box 40124 Olympia, WA 98504-0124

13 (415) 543-3307

(360) 459-6558

14

15 / B R I A N BAKER, W¿BA #03442
1¿ Attorney for Defendant Chehalis School Dist.
919 Lakeridge Way S.W. 17 Olympia, WA 98502
(360) 352-4558 18

19 ORDER
20 The Court having considered Plaintiffs' First Request For Attorneys' Fees and Costs,
21
22 and the above stipulation of the parties, hereby

23

ORDERS, ADJUDGES AND DECREES that Plaintiffs be, and hereby are, awarded

24 $250,000 as full payment and satisfaction for all attorneys' fees and costs incurred in this

25 litigation through the date of entry of this Order. All Defendants shall be joint and severally
26 **********
27 **********
28

STIPULATED ORDER RE: PLAINTIFFS' FIRST REQUEST FOR ATTORNEYS' FEES & COSTS- Page 2

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

1 liable for full satisfaction of this Order.
2 DONE IN OPEN COURT this
3

day of

, 1997.

4

5 ROBERT J. BRY;

6

UNITED STATES DISTRI JUDGE

7

8 9 Presented by:
10
11 12 PATRICIA//. ARTHUR, WSBA #13769
WSBA #13769 13 Attorney for Plaintiffs

Approved for entry and notice of presentation waived:
JnL
EDWARD J. DEE, WSBA #15964 Assistant Attorney General Attorney for State Defendants

14

15

BRIAN M. BAKER/WSBA #03442

16

Attorney for Defendant

Chehalis School District

17

18

19

20

21

22

23

24

25

26

27

28
STIPULATED ORDER RE: PLAINTIFFS' FIRST REQUEST FOR ATTORNEYS' FEES & COSTS- Page 3

COLUMBIA LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE, WASHINGTON 98104 (206) 464-0838

 
 . > •* '

THE HONORABLE ROBERT J. BRYAN 1
Horton v. Williams

2

.HLEO

.ENTERED

3
JI-WA-002-050
4

-RECEIVED
OCT 2 7 1994

•Hi bbA! I LL

5

CLERK U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

BY

DEPUTY

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10 JAMES HORTON, et al., on behalf of
11 themselves and all others similarly

situated,
12

No. C94-5428 RJB

13

Plaintiffs,

14

vs.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION RE: PEPPER SPRAY

15 BOB WILLIAMS, etal.,

16

Defendants.

17

ORAL ARGUMENT REQUESTED

18 I. INTRODUCTION

19

Plaintiffs seek preliminary relief to protect the juveniles incarcerated at Green Hill

20 School (GHS) from the punitive use of aerosol oleoresin capsicum, an extract of cayenne
21
pepper plants.1 Staff at GHS routinely inflict unnecessary pain on youth by spraying them
22

23 with pepper spray to punish them for violating institutional rules or to coerce compliance

24 with staff directives. We ask this Court to preliminarily enjoin the harmful and punitive use

25

26

27

V Aerosol oleoresin capsicum is referred to herein as "pepper spray".

28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 1

of pepper spray on youth at GHS by the state defendants.2
1
2 II. STATEMENT OF FACTS

3

Pepper spray causes a burning sensation of the skin, loss of upper body control,

4 paralysis of the larynx which may render the victim temporarily unable to speak, and

5 inflammation and irritation of the respiratory tract, which results in coughing, gagging, and

6 gasping for breath. It is harmful to youth with chronic lung disease such as asthma, and it
7 may present a risk of nerve damage, risk of loss of protective reflexes, risk of laryngospasm
8
9 and suffocation, and risk of skin blistering to any exposed youth. Cohen Declaration, Ex. 2.

10

Juveniles who are exposed to pepper spray feel severe pain. For example, one youth

11 "felt like I was burning from the inside out" and "like something was eating through my

12 skin." Jolly Declaration, Ex. 9. Another youth stated that "it felt like the wind had been
13
knocked out of me" and "like bleach had been sprayed on my eyes." Burns Declaration, Ex.
14
11. See also. Plush Declaration, Ex. 14 ("[w]hen I breathed it felt like sharp knives cutting
15
into my lungs."); Bakke Declaration, Ex. 10; Horton Declaration, Ex. 12; Rodgers
16
17 Declaration, Ex. 15; Moore Declaration, Ex. 13.

18

Moreover, the effects of pepper spray are not limited to the intended targets.

19 Although staff may intend the spray for only one youth, it adheres to bedding, walls, and

20 floors, and eventually enters the ventilation system causing discomfort and pain to others.
21
Gardner Declaration, Ex. 16.
22

23

In addition to these physical effects, the use of pepper spray on confined youth can

24 have significant detrimental psychological affects. It can produce a heightened sense of

25

26 2/ This motion is brought only against defendants Soliz, Sidorowicz and Williams, who
27 have responsibilities for the operation of GHS. They are referred to herein as the state 28 defendants.
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 2

I T

anxiety, alienation, and frustration, and encourages rebellion and resistance. Milan
1
Declaration and Report, Ex. 1. By legitimizing and reinforcing aggressive and violent
2
3 behavior, the use of pepper spray at GHS directly contributes to a culture of violence within

4 the institution. DeMuro Declaration and Report, Ex. 3. As one resident of GHS describes

5 this phenomenon:

6

When GHS staff started using pepper spray, they told us they would only use

7

it when we were a threat to security, a threat to staff, or an escape risk. Then

some of us were surprised at how they used the spray all the time for things

8

like breaking rules by cussing, or talking when we were not supposed to.

Plus, kids would usually be calm and quiet by the time security guards arrived

9

to spray them. We would tell staff and security that they were more violent

10

than us.

11

The use of pepper spray made things worse at GHS. Staff used to come and

talk to us. But once security was allowed to use spray, some staff got an

12

attitude and would threaten to have us sprayed for anything. It seemed like it

13

depended on their mood or the kind of day that they were having. It also gave residents at GHS an attitude. It makes you mad when they threaten to use,

14

and do use pepper gas spray.

15 Plush Declaration, Ex. 14.

16

The Juvenile Rehabilitation Administration first authorized staff at GHS to use pepper

17
spray on youth in approximately October of 1990. Eberle Deposition, p. 18, line 16 - p. 19,
18
line 1, Ex. 18.3 Most all incidents of pepper spray use at GHS authorized by these policies
19

20

21

3/ Plaintiffs do not have a copy of defendants' 1990 pepper spray policy, if one exists.

On February 15, 1991, defendants implemented GHS Policy #28 governing aerosol restraint

22 use at GHS. Ex. 4. The Administrative Policy of the Division of Juvenile Rehabilitation (DJR) governing the use of physical restraints in all DJR facilities, including the use of

23 aerosol propellant agents, was implemented on May 1, 1991. DJR Bulletin #2, Ex. 5. The

GHS policy #28 implemented on February 15, 1991, was superseded by GHS Policy #4 24 effective May 1, 1993. Ex. 6. This policy was revised, and the revised GHS Policy #4,

25 which is the current policy at GHS, became effective October 1, 1994. Ex. 7. After the pepper spray policy was implemented at GHS, security staff were never

26 provided with information about how to interpret or apply the policies. In fact, out of three

security staff recently deposed in this case, two thought the 1991 policy was still currently in 27 effect, even though it had been replaced by a new policy in 1993. (The 1994 policy was

28

(continued...)

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 3

have been to punish youth for failing to follow staff directives, or to coerce future
1
compliance with staff orders, not to control an emergency or dangerous situation.4 Indeed, 2
3 the GHS policies expressly permits the punitive use of pepper spray as permission to spray
4 may be given even in "non-emergency situations".5

5

Security staff at GHS, who are the only staff permitted to use pepper spray once the

6 superintendent has given approval, concede that it is often used to make a resident comply
7 with staff directives. Beaver Deposition, p. 86, lines 20-23; p. 89, lines 1-3, Ex. 17.
8
Sometimes youth are not even afforded an opportunity to comply with the staff directive 9

10 before they are sprayed (Beaver Deposition, p. 89, lines 4-21, Ex. 17), and are sprayed

11 during or even after compliance (Eberle Deposition, p. 84, line 2 - p. 87, line 5, Ex. 18).

12 Staff are instructed to spray youth "right in the face" whenever they use pepper spray to
13 enforce institutional rules. Rondo Deposition p. 64, lines 4-8, Ex. 19.
14
Paul DeMuro, one of plaintiffs' consultants with 25 years of experience in the
15

16

3(... continued)

17 implemented after these depositions were taken.) Compare, Rondo Deposition, p. 20, line 25 - p. 21, line 2, Ex. 19, to Eberle Deposition, p. 19, lines 12-22, Ex. 18. All of the

18 above-referenced policies permit the punitive use of pepper spray.

19

4/ Plaintiffs' experts, who reviewed these policies and the videotapes of twenty-five

incidents involving the use of pepper spray at GHS between January 17, 1991, and December 20 25, 1993, conclude that pepper spray is almost always used to punish youth for failing to

21 comply with staff orders. See, Declarations and accompanying Reports of Dr. Michael Milan, Dr. Michael Cohen, and Paul DeMuro, attached respectively as Exhibits 1,2, and 3.

22
5/ GHS policy defines a non-emergency situation as: "Instances in which a resident's

23 behavior presents a potential threat of injury to himself or others, destruction of property, or

threatens the security of the institution; however, there is time to summon additional staff 24 and attempt to resolve the problem ..." (emphasis added). Whenever a juvenile fails to

25 follow a staff directive, staff believe that the threat of physical injury exists because, it is believed, absent the use of pepper spray, the juvenile must be physically moved or restrained

26 and injury could therefore ensue. Beaver Deposition, p. 85, line 3 - p. 86, line 10, Ex. 17.

Thus, the policy's criteria are met virtually any time a juvenile violates institutional rules or 27 refuses to follow a staff directive.

28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 4

operation and management of juvenile institutions, observes that staff at GHS use pepper
1
2 spray as a sort of "aerosol cattle prod" to facilitate movement within the disciplinary units. 3 DeMuro Declaration and Report, Ex. 3.6 At least one staff person who has worked in the

4 disciplinary units at GHS believes that pepper spray was introduced there "as a way to
5 maintain [staff] power, to coerce juveniles to follow staff orders, and to punish youth who
6
did not obey." Gardner Declaration, Ex. 16.
7
Examples of inappropriate and punitive uses of pepper spray at GHS abound. Staff
8
use pepper spray on juveniles who are restrained in handcuffs and/or leg shackles.
9
10 Bakke Declaration, Ex. 10, Eberle Deposition, p. 34, lines 1-5, Ex. 18.7 GHS staff have

11 sprayed youth who were lying or sitting down, who were locked in their cell, or who

12 otherwise pose no threat to the safety of staff or other youth. Eberle Deposition, p. 34,

13

14

6/ GHS has two disciplinary units, Fir and Poplar, which defendants euphemistically

call "behavior management units." See, Answer filed by the state defendants at 5. Fir and

15 Poplar were reopened in June of 1990 as "lock up" units to punish youth for misconduct and

to confine those who present an escape risk. Gardner Declaration, Ex. 16. Most incidents

16 involving the use of pepper spray at GHS occur in Fir or Poplar. Typically, youth are

17

sprayed for acting out when they are angry for being locked in their room or for receiving a punishment they believe to be unjust. Youth are most often sprayed for refusing to leave a

18 cell, banging on locked doors, or yelling or cursing at staff. See, Declarations of GHS residents Burns, Plush, Bakke, and Moore, attached as Exs. 11, 14, 10, 13 respectively; see

19 also, DeMuro Declaration and Report, Ex. 3.

As Mr. DeMuro observes: 20

21

When youth spend a great deal of time locked into their rooms, they become

bored and often become even more oppositional — thus the "game" of banging

22

on the locked doors or stopping up their toilets to flood the floor. These

behaviors are engaged in to elicit a response from the staff. In the absence of

23

positive attention, negative attention is perceived by some youth to be better

(at least from the point of view of combating boredom) than no attention at all.
24

25 DeMuro Report, p. 2, Ex. 3.

26

7/ One resident was sprayed while in handcuffs by supervisory personnel responsible in

his supervisory capacity for overseeing the use of pepper spray at GHS. Bakke Declaration,

27 Ex. 10; Eberle Deposition, p. 39, lines 9-12 and p. 40, lines 2-3, Ex. 18; Beaver

Deposition, p. 6, lines 21-22, Ex. 16.
28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 5

EVERGREEN LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301 SEATTLE. WASHINGTON 98104 (206) 464-0838

lines 1-9, Ex. 18; Rondo Deposition, p. 25, lines 12-19, p. 73, line 15 - p. 76, line 1; p. 1
101, lines 4-9; and p. 105, lines 1-5, Ex. 19 (juvenile sprayed for saying "fuck you"); Eberle

3 Deposition, p. 36, lines 18-25 and p. 37, line 8 - p. 38, line 7, Ex. 18 (resident sprayed in

4 the face from less than a foot away while in handcuffs lying on his bed).

5

Defendant Williams, the superintendent at GHS who is charged with the responsibility

of authorizing staff use of pepper spray, has pre-approved the use of pepper spray on
7 juveniles even in advance of any incident or altercation involving the youth. Beaver
8

Deposition, p. 116, line 12 - p. 117, line 10, Ex. 14; Eberle Deposition, p. 53, line 20 - p.

1 0 55, line 6, Ex. 18.8 The "spray program" allows security staff to spray specified youth

11 whenever they yell, curse, or otherwise create a disturbance. Id. There is no written

1 2 documentation - other than in entries made in security logs - indicating which youth are on
13
the "spray program." Beaver Deposition, p. 119, line 21 - p. 120, line 25, Ex. 17. Youth
14
are only verbally advised if they are placed on the "spray program" and security staff do not 15
know the duration of the "spray program" approved by the superintendent. Id; see also, 16
1 7 Horton Declaration, Ex.c 12 (resident orally advised he was placed on the "spray program").

18

Defendant Williams has also authorized staff to "personalize" cans of pepper spray by

1 9 placing the names of certain youth on cans, which are then used to threaten or coerce that
20 individual. Gardner Declaration, Ex. 16; Eberle Deposition, p. 70, lines 15-18, Ex. 18;
21 Plush Declaration, Ex. 14. Furthermore, a security staff at GHS was once reprimanded by
22

defendant Williams for not spraying a juvenile who was calm and did not present any kind of

24 threat to staff, other youth, or the security of the institution. Rondo Deposition, p. 73, line 5

25
26
8/ This practice is called placing someone on the "spray program." GHS' new aerosol 2 7 restraint policy, which went into effect after the filing of this lawsuit, purports to limit this 2_ practice. Ex. 7, p. 2.
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 6

- p. 76, line 1 and p. 76, line 12 - p. 78, line 7, Ex. 19. Defendant Williams has even joked
1
about the use of pepper spray solely to inflict pain. See, Gardner Declaration, p. 4, Ex. 16

(Superintendent Williams joked about pain a resident with acne would experience if sprayed

in face). Such cruel and punitive uses of pepper spray against youth at GHS is completely

outside the bounds of professional judgment. Cohen, DeMuro and Milan Declarations, Exs.
6 1-3.
7
The aerosol restraint policy at GHS requires staff to get permission from the
8
superintendent — or his designee —immediately prior to using pepper spray.9 Ex. 7, p. 2.
«7
10 The authorizing personnel does not need to be present to personally observe the situation

11 prior to granting approval. Id. Once permission is received, staff must put on gas masks

12 and protective clothing, prepare a script to be read before a video camera, and prepare to
13 videotape the incident, before a juvenile may be sprayed.10 This may take as long as thirty
14
or more minutes. Horton Declaration, Ex. 12; Rondo Deposition, p. 36, lines 13-21, Ex.
15
19. By this time, residents are most often calm but are sprayed anyway. Milan Declaration,
16
17 Ex. 1; DeMuro Declaration, Ex. 3.

18

Staff often do not attempt less intrusive measures to address the problem behaviors of

19 youth before spraying them with pepper spray. Gardner Declaration, Ex. 16. Staff are not
20
adequately trained in alternative intervention techniques. Id. As one security personnel
21
notes, staff primarily receive only on-the-job training to learn how to defuse volatile 22
situations to avoid the use of pepper spray. Beaver Deposition, p. 132, line 25 - p. 133, line

2.3

24

25

26

91 The "spray program" practice is an exception to this general requirement.

27

10'/ In practice, staff do not always videotape the incident as required by policy. Beaver

28 Deposition, p. 93, lines 4-7, Ex. 17.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 7

14, Ex. 17." 1
Although GHS policy requires staff to prepare written incident reports concerning

3 I every pepper spray incident, this often does not occur. Beaver Deposition, p. 92, lines 12-

4 19, Ex. 17. Supervisory reviews of the use of pepper spray by staff are not usually 5 performed and no formal method exists to review the appropriateness of uses. Beaver

Deposition, p. 65, line 2 - p. 68, line 14, Ex. 17. Thus, staff abuses go unchecked. 7
Staff at GHS maintain an inventory of both "5%" and "10%" levels of concentration 8
of pepper spray, but the higher concentration is currently used in most circumstances.

1 0 Eberle Deposition, p. 62, line 9 - p. 63, line 2, Ex. 18. Staff spray youth with the 10%
11 concentration level because it is more debilitating and may result in a greater degree of pain 12 than the 5% spray. Eberle Deposition, p. 65, lines 14-23, Ex. 18. No written procedures or
13
guidelines exist to determine which concentration level should be used on youth. Eberle
14
Deposition, p. 63, lines 6-8, Ex. 18; see also, GHS Policy #4, Ex. 7. 15
Youth are not adequately checked by health personnel either before or after they are
16
17 sprayed to determine the health risks or impact of pepper spray. Cohen Declaration, Ex. 2.
18 Despite the health risks, youth with respiratory problems are sprayed with pepper spray.

Moore Declaration, Ex. 13; Burns Declaration, Ex. 11. Some youth are not checked at all
20

21

22

"/ When the Fir and Poplar disciplinary units were reopened in 1990, the line staff hired

to work in the units were inexperienced. Other than a brief orientation in other units, the 2 3 defendants did not provide these inexperienced staff with training in crisis prevention, de-

escalation techniques, or other training relevant to the causes and prevention of the

inappropriate behavior typical of the youth they were supervising. Gardner Declaration, p.

25 3, Ex. 16. Instead, staff were "just thrown into [the] cottage with youth who had extremely

difficult behavioral problems." Id. The most training some staff may receive in these

26 techniques is one day of "Crisis Prevention Intervention" training, approximately five hours a

year of "pepper spray" training, and some portion of a five day training at the Juvenile

Justice Academy that relates to "de-escalation" techniques. Rondo Deposition, p. 13, line 1 -

2 8 p. 17, line 22, Ex. 19.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 8

n

"•" • • • — — "

•

T

a-H

by a nurse or other medical personnel after being sprayed. Bakke Declaration, Ex. 10. 1
Youth who are examined by a nurse are often given perfunctory exams. Cohen Declaration,
3 Ex. 2. Youth are sprayed even when medical staff are not on-site at GHS. Rondo
4 Deposition, p. 92, line 7 - p. 93, line 24, Ex. 19. Youth risk injury from walking
5 downstairs to showers after being temporarily blinded by pepper spray. Cohen Declaration,
Ex. 2. Youth are sometimes not allowed to shower immediately after being sprayed. Burns 7
Declaration, Ex. 11 (one hour passed before being permitted to shower); Bakke Declaration, 8
Ex. 10 (one and one half-hour before shower). Parents are not informed about the use of
10 pepper spray by staff at GHS, even when they specifically request to be advised about
11 problems involving their children. Declaration of Pam McCauley, Ex. 8; Beaver Deposition,
1 2 p. 57, lines 1-13, Ex. 17. 13
Mental health treatment and intervention prior to or during pepper spray incidents
14
involving behaviorally disabled youth is virtually non-existent at GHS. For example, one 15
disturbed juvenile who was cutting on his arm, spreading feces all over his body, and 16
1 7 squirting catsup out of the vent in his cell door, was sprayed with pepper gas instead of
18 being seen by a mental health professional. Beaver Deposition, p. 100, line 22 - p. 113, line
1 9 5, Ex. 17; DeMuro Declaration and Report, Ex. 3. 20
Since October of 1990 staff have sprayed youth at GHS at least 110 times with pepper 21
spray. Defendant Williams or his designee has authorized staff to use the spray at least 330 22
times in the same time frame. Moreover, staff have sought permission to use pepper spray
24 at least two to three times more often than it was granted, making the threat and use of
25 pepper spray at GHS a regular and pervasive part of institutional life. Eberle Deposition, p.
26
27
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 9

109, lines 8-14, Ex. 18.12 1
III. LEGAL ARGUMENT
2

3

A. Defendants' Use Of Pepper Spray Violates Plaintiffs' Right To Personal

Security And Freedom From Bodily Restraint.

4

Spraying youth with a painful and debilitating chemical agent under color of state law o

invokes constitutionally protected liberty interests in safety and freedom from restraint.13
6

7 Under our Constitution, an individual's interest in safety and freedom from restraint is the

8 essence of liberty. In addition to the procedural fairness which must precede governmental
q
deprivation of liberty, the Due Process Clause "protects individuals against governmental acts 10
that are prohibited 'regardless of the fairness of the procedures used to implement them.'"
11
Kelch v. Director. Nevada Dept. of Prisons. 10 F.3d 684 (9th Cir. 1993), quoting Daniels v.
12
. . Williams. 474 U.S. 327 (1986).
1 O

14

The right to personal security and freedom from restraint constitutes "an historic

15 liberty interest" protected substantively by the Due Process Clause. Ingraham v. Wright.
16 430 U.S. 651, 673 (1977). Indeed, the Court has placed such liberty interests at the "core of
17
the liberty protected by the Due Process Clause from arbitrary governmental action." 18
Youngberg v. Romeo. 457 U.S. 307, 316 (1982) quoting Greenholtz v. Nebraska Penal
19
2 0 Inmates. 442 U.S. 7 (1979) (Powell, J. concurring in part and dissenting in part). The

21

22

nl By contrast, pepper spray has never been used at Naselle Youth Camp or Mission

Creek Youth Camp and is rarely used at Maple Lane School and Echo Glen Children's 2 3 Center other institutions operated by the Juvenile Rehabilitation Administration. Defendants'

Response To Plaintiffs' First Requests For Production, Ex. 20. This is true even though

residents at these institutions present similar behavioral and management problems as

25 residents at GHS, and policies at these facilities permit the use of pepper spray. See also.

Gardner Declaration, Ex. 16.

26 13/ Defendants acknowledge that pepper spray is a form of restraint. GHS Policy #28,
2 7 for example, refers to pepper spray as "aerosol restraint." Ex. 4.

28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 10

Court has also recognized that these liberty interests survive criminal conviction, 1
incarceration, and involuntary commitment to an institution. Youngberg, 457 U.S. at 315

3 (right not extinguished by lawful confinement, even for penal purposes). See also, Vitek v.

4 Jones. 445 U.S. 480, 491-94 (1980)(Fourteenth Amendment liberty interests unaffected by
5 commitment).
Moreover, the state assumes the constitutional duty to provide for the basic human 7
needs of those who, by the affirmative exercise of the state's power, are deprived of their 8
liberty and therefore rendered unable to care for themselves. Dorothy J. v. Little Rock 9
10 School Dist., 7 F.3d 729 (8th Cir. 1993). When the State takes individuals into its custody

11 and holds them there against their will, the Constitution imposes a corresponding duty to

12 assume some responsibility for their safety and general well-being. DeShaney v. Winnebago

County Dept. of Social Services. 489 U.S. 189, 199-200 (1989), citing Youngberg at 314-
14
325 (state must provide involuntarily committed mental patients with services necessary to 15
insure their reasonable safety). This "special relationship" between the state and incarcerated

17 youths gives rise to plaintiffs' right to be protected from harm. Id.

18

These rights are not absolute, however. Plaintiffs' rights to personal security and

1 9 freedom from restraint must be balanced against the state's interest in maintaining order and
20 security in its institutions. Youngberg, 475 U.S. at 320.
21
The balancing test which the United States Supreme Court has adopted is not a 22

difficult one for the state to pass. The Constitution only requires that the courts make certain

24 that state defendants exercise professional judgment. Youngberg, 475 U.S. at 321. Thus, if

25 defendants can show that their actions fall within the parameters of sound professional 2 6 judgment, the court may give their decisions presumptive validity. If, however, the court 27
finds that the defendants have acted outside the scope of minimally accepted standards of
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 11

professional practice, it must find that the defendants have violated plaintiffs' right to 1
personal security and freedom from restraint. As shown below, the defendants in this case

3 do not act within the scope of sound professional judgment when they authorize the use of

4 pepper spray to punish youth or to insure compliance with institutional rules.

5

The state defendants provided plaintiffs' counsel with videotapes of twenty-five

incidents in which staff at GHS sprayed youth with pepper spray between January 17, 1991 7
and December 25, 1993.H Plaintiffs' counsel then provided these videotapes, together with 8
incident reports and other documentation prepared by GHS contemporaneously with the
y
1 0 incidents, to three nationally recognized juvenile justice experts. After reviewing these tapes
11 and documents, each of these experts concluded that the use of pepper spray at GHS is
12 unnecessary, punitive, and outside the scope of minimally accepted professional standards. 13
One of plaintiffs' experts, Paul DeMuro, has managed a large, secure institution for
14
delinquent youth as well as a large, urban juvenile detention center. He also served as 15
Assistant Commissioner of the Massachusetts Department of Youth Services and as Director

1 7 of the Pennsylvania Department of Children and Youth, and he was appointed a federal court

18 monitor to oversee operations in juvenile institutions in Florida and Oklahoma.

19

Mr. DeMuro concludes that staff at GHS use pepper spray to punish youth who pose

20 no immediate threat to staff or other youth. He also concludes that the "spray program,"
21 which requires staff to spray youths for minor misbehavior even though they are calm and
22
composed, is outside the scope of minimally acceptable professional standards. He further

24 notes that any use of restraints for the purpose of punishing youth is outside the scope of

25 accepted professional judgment because of the potential for injury and because it perpetuates 26

27

14/ These w e r e n o t all of the incidents which occurred during that period, only those

2 8 which plaintiffs' counsel obtained releases from the sprayed youth.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 12

a culture of violence within the institution. According to Mr. DeMuro, sound professional
1
judgement does not permit institutional staff to inflict pain to punish youth or force compliant

3 behavior. DeMuro Declaration and Report, Ex. 3.

4

Another of plaintiffs' experts, Dr. Michael Cohen, is Medical Director for the New

5 York State Division for Youth. As such, he is the chief medical officer for all secure

institutions in New York State for youths aged 16 and under. Dr. Cohen is a Board certified
7
pediatrician with extensive experience involving institutionalized youth in several states. 8
Dr. Cohen identified several indicators that cause him to conclude that the use of 9
10 pepper spray at GHS is outside the scope of accepted professional practice. For example, he

11 observes that after staff spray youth, they sometimes leave them in their cells for extended

12 periods before allowing them to shower, and there is no procedure to insure that youth are

13 permitted to clean themselves promptly. Indeed, youth have been forced to remain in their
14
cells for several hours before being allowed to shower, and periods of 20 to 50 minutes are 15

not at all uncommon. Cohen Declaration and Report, Ex. 2.

16

v

17

Dr. Cohen further notes that youths who are sprayed in the disciplinary units must be

18 led up and down several flights of stairs to the gym in order to shower because the showers
1 9 in the unit have only warm water which exacerbates the pain from the spray. These youths, 20
who have been temporarily blinded by the spray, are at particular risk of injury due to falls,
21
and the videotapes show that some youth have fallen while negotiating these stairs. Dr. 22
Cohen also observes that staff sometimes spray youth at night or at other times when nursing

24 staff are not on-site to respond to emergencies, and that physical examinations by health

25 personnel after youth are sprayed are so cursory that health care staff sometimes do not even touch the youths.
27 Dr. Cohen concludes that each of these factors is a strong indication that policies and
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 13

practices at GHS regarding the use of pepper spray are not governed by sound professional 1
judgment. Cohen Declaration, Ex. 2. Taken together, they demonstrate a complete lack of
3 care for the safety and well-being of the youth in the facility.15'

4

Plaintiffs' third expert, Dr. Michael Milan, has studied, written about, consulted on,

5 and taught behavioral management practices in secure institutions for nearly twenty years.

He has had experience with behavior management practices in institutions in a dozen states, 7
including a number of secure juvenile institutions. Like Dr. Cohen and Mr. DeMuro, he 8
also concludes that the use of pepper spray at GHS is outside the bounds of accepted

1Q professional judgment because it is punitive and unnecessary. Milan Declaration and Report,

11 Ex. 1.

12

Dr. Milan determined that the most common use of pepper spray depicted on the

13

videotapes he viewed was to punish youth who were making noise, typically yelling and
14
banging while confined in their cells. He notes, however, that of the twenty videotaped 15

incidents in which youth were sprayed while locked in their cells, seven involved youth who

17 were quiet and composed at the time they were sprayed. Staff sprayed other youths while

18 they were locked in their cells simply because they were noisy or agitated. The second most
1 9 frequent use of pepper spray was to coerce youths into an action in which they refused to 20
engage, typically to return to their cells after being released to use the bathroom.
21
Dr. Milan states that only two or three of the videotaped incidents which he viewed 22
could be construed as posing a possible threat of imminent danger to staff. Even in these

24 incidents, he concludes that it is probable that adequate precautions would have prevented the

25

26

15/ As this Court is well aware, institutional policies that permit harmful practices have

been held unconstitutional under Eighth Amendment standards. See, Jordan v. Gardner, 986 2 7 F.2d 1521, 1529 (9th Cir. 1993)(prison policy permitting harmful cross-gender searches

2 8 violates the Eighth Amendment).

MEMORANDUM IN SUPPORT OF MOTION

FOR PRELIMINARY INJUNCTION-

RE: PEPPER SPRAY- Page 14

situation in the first place, and that the use of alternative and less invasive procedures, such 1
as crisis counseling, would have obviated the need for any use of force. Milan Declaration

3 and Report, Ex. 1.

4

In Dr. Milan's opinion, using pepper spray as punishment is outside the scope of

5 sound professional judgment because it is generally recognized as ineffective over the long

term in coercing desired behavior, and the consequences to the youth, staff and institutional
7
milieu are fundamentally destructive. Id. 8
Plaintiffs' experts, whose combined experiences with populations in secure institutions
y
1 0 exceed sixty years and involve approximately half the states, each conclude that defendants'

11 policies and practices involving the use of pepper spray at GHS do not comport with

12 accepted standards of professional judgment. Accordingly, defendants' use of pepper spray

13

to punish youth and to force compliance with institutional rules violate plaintiffs' due process

14

rights to be free from unlawful restraint.

15

B. Defendants Have Violated Plaintiffs' Rights To Be Free From Corporal

o

.

d

c:

Punishment.

17

The use of debilitating chemical agents for the purpose of causing pain is clearly a

18

form of corporal punishment. McCargo v. Mister. 462 F.Supp. 813 (D.Md. 1978); Battle v. 19

2 0 Anderson, 376 F.Supp. 402 (E.D.Okla. 1974). The Supreme Court recognized the perils of

21 corporal punishment as a behavior management tool in Landman v. Rovster: "Undoubtedly

2 2 it is effective, but it is painful, and its abuse is difficult to forestall." 333 F.Supp. 621, 649

23 (E.D.Va. 1971). Justice Blackmun, then sitting on the Eighth Circuit, summarized the
24
reasons for the constitutional prohibition against corporal punishment:

25

[It] generates hate toward the keepers who punish and toward the system that

2°

permits it. It is degrading to the punisher and the punished alike. It frustrates

27

correctional and rehabilitative goals.

28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 15

Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) 1
As far back as 1910, the U.S. Supreme Court condemned, on Eighth Amendment

3 grounds, the unnecessary and wanton infliction of pain on a prisoner. Weems v. United

4 States. 217 U.S. 349 (1910). Since that time, the Court has recognized that the Eighth 5 Amendment draws its meaning from "evolving standards of decency that mark the progress

of a maturing society." Trop v. Dulles, 356 U.S. 86 (1958). These principles apply even 7
more protectively to juveniles. As the First Circuit has noted, "it would not be unreasonable 8
to assume that society's conscience might be shocked by the conditions of confinement
y
•10 imposed on a juvenile when it would be unwilling to label the same treatment, given to an

11 adult, cruel and unusual." Santana v. Collazo. 714 F.2d 1172, 1179 (1st Cir. 1983).

12

In this circuit, the constitutionality of punishments as they are applied in juvenile

13

correctional institutions is governed by the due process clause of the Fourteenth Amendment,
14
not the Eighth Amendment. Gary H. v. Hegstrom. 831 F.2d 1430, 1431-32 (9th Cir. 1987). 15
Although the Fourteenth Amendment implicitly incorporates Eighth Amendment standards as 16

17 constitutional minima, it is more protective than the Eighth Amendment and prohibits

18 punishments without due process, whether or not they are cruel and unusual. Bell v.
1 9 Wolfish. 441 U.S. 520 535, n.16 (1979). Thus, the inquiry here is whether or not the use of 20
pepper spray at GHS amounts to punishment. 21
To determine whether a practice is punitive, a court must examine the government's 22
interest in maintaining the practice, and determine whether the practice is reasonably related

24 to that interest. Gary H., 831 F.2d at 1437, (Ferguson concurring), citing Hamm v. DeKalb.

25 774 F.2d 1567, 1573 (11th Cir. 1985). Infliction of pain and suffering is always a form of

punishment unless an alternative purpose can be ascribed to it. Although the defendants in
27 this case have legitimate interests stemming from their need to manage the facility and
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 16

prevent injury to residents and staff, Bell v. Wolfish. 441 U.S. at 540, the use of pepper 1
spray is not reasonably related to these interests because it is likely to cause more injuries
3 than it prevents. It is dangerous for the youth who are exposed to it, and it promotes a
4 culture within the institution which increases the likelihood of further violent confrontations
5 with resulting injuries. DeMuro Declaration and Report, Ex. 3; Milan Declaration and
Report, Ex. 1. 7
Even if the infliction of pain is in response to a legitimate penological objective, it is 8
prohibited if it is excessive. Bell v. Wolfish. 441 U.S. at 540. See also Gary H.. 831 F.2d
v7
10 at 1437 (Ferguson, concurring) (use of force not justified when officials exaggerated response
11 to otherwise legitimate penological objective). Where youths are shackled, or lying or sitting
12 down, or otherwise pose no threat to the safety of others, corporally punishing them by
13 spraying them in the face with a debilitating chemical agent is clearly excessive. DeMuro
14
Declaration and Report, Ex. 3. 15
Courts have applied these principles to invalidate a number of punitive practices in
16
17 both adult and juvenile institutions. For example, in Stewart v. Rhodes. 473 F.Supp. 1185
18 at 1193 (S.D.Ohio 1979), the court recognized a limited need to use restraints under medical
19 supervision for mentally unstable or violent prisoners. The court concluded, however, that
20
"the use of restraints as punishment for 'acting-out' or misbehaving is simply too extreme a
21
response. ... The court is simply unable to believe that there is not a more moderate and 22
constitutionally acceptable method of maintaining discipline and order." Id. at 1193. And in
24 Hickv v. Reeder, a case very similar to the one now before this Court, the Eighth Circuit
25 condemned the use of a stun gun to force an adult prisoner to comply with a directive to
2 6 sweep out his cell. 12 F.3d 754 (8th Cir. 1994). 27
Courts have consistently condemned the use of corporal punishment on children in
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 17

institutions, on both Eighth and Fourteenth Amendment grounds. Thus, in Nelson v. Heyne 1
the court found that beatings administered with a thick wooden paddle to boys at a juvenile

3 correctional facility were disproportionate to their offenses and violated the Eighth

4 Amendment. 355 F.Supp. 451 (N.D. Ind. 1972), af£d. 491 F.2d 352 (7th Cir.), cert. 5 denied, 417 U.S. 979 (1974). Similarly, in Morales v. Turman. the court found that

physical beatings and the use of tear gas violated the Eighth Amendment. 364 F.Supp. 166, 7
173, (E.D. Tex. 1973), 383 F.Supp. 53 (E.D. Tex. 1974), reversed on other grounds. 535 8
F.2d 864 (5th Cir. 1976), rev'd and remanded. 430 U.S. 322 (1977), remanded and reh'e.
y
1 0 562 F.2d 993 (5th Cir. 1977).

11

In Milones v. Williams the court upheld a lower court injunction barring the use of

1 2 excessive force by staff at a private juvenile institution. 691 F.2d 931 (10th Cir. 1982), cert.
13
denied 460 U.S. 1096 (1983). Although written procedures forbade the use of excessive or
14
inappropriate force, actual practices at the institution disregarded the prohibition. The 15
evidence in Milones, very much like the evidence presented here, showed that force was

17 used "as punishment rather than simply for immediate control, was used as a threat, and on

18 occasion resulted in the very physical injuries it was supposed to prevent." Id. at 942. The 19 Tenth Circuit agreed with the lower court's observation that use of the term "out-of-control"
20 had afforded institutional staff unbridled discretion in subjecting children to unreasonably
21 harsh treatment. The court of appeals upheld the finding that the practices violated
22
Fourteenth Amendment Due Process guarantees. Id.

24

In H.C. bv Hewitt v. Jarrard. 786 F.2d 1080 (11th Cir. 1986), the court addressed

25 the use of tie-down restraints as a punitive measure on a youth in a juvenile institution. The

plaintiff in that case was confined in isolation and restrained after he laughed and protested
27 the punishment of another youth. The Eleventh Circuit held that the restraint violated the
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 18

Due Process Clause because it was intended as punishment. Id. at 1086.
1
A number of courts have condemned the use of chemical agents in adult prisons and 2
3 juvenile institutions as violative of the Eighth or Fourteenth Amendment or both. See, e.g.

4 Greear v. Loving. 538 F.2d 578, 579-80 (4th Cir. 1976); Morris v. Travisono. 528 F.2d

5 856, 858 (1st Cir. 1976); Patterson v. MacDougall, 506 F.2d 1, 3 n.2 (5th Cir. 1975);
6 McCareo v. Mister. 462 F.Supp. 813, 818-19 (D.Maryland 1978); LeGrande v. Redman. 7
423 F.Supp. 524, 526-28 (D.Del. 1976); Battle v. Anderson. 376 F.Supp. 402, 423, 433-34 8
(E.D.Okla. 1974); Morales v. Turman. 364 F.Supp. at 173-4; Soto v. Cadv. 566 F.Supp. 9
10 773 (E.D. Wis. 1983).

11

These cases generally hold that the use of chemical agents must be strictly limited to

12 circumstances presenting the utmost degree of danger and loss of control and cannot be used

13 to silence inmates from shouting, cursing, or refusing to follow staff orders. Morales. 364

14
F.Supp. at 173-4; McCargo. 462 F.Supp. at 818-19; Battle. 376 F.Supp. at 433; Soto, 566
15
F.Supp. at 776.
16

17

Punishment generally involves the infliction of pain after reflection and evaluation

18 which is intended as retribution for past conduct or to deter future conduct. This is to be

19 distinguished from emergency measures taken without benefit of reflection. Ort v. White.
20 813 F.2d 318, reh'g. en bane denied. 818 F.2d 652, cert denied. 112 S.Ct. 3002 (1992).
21
While due process considerations are minimal in emergencies, they protect youth when
22
officials continue to apply force after the necessity for the coercive action has ceased. Ort.
23
24 813 F.2d at 327; William v. Burton. 943 F.2d 1572, 1576.

25

Pepper spray is rarely, if ever, used at GHS in situations where immediate coercive

26 measures are required to control a juvenile who truly presents an immediate threat of harm.
27 DeMuro Declaration and Report, Ex. 3; Milan Declaration and Report, Ex. 1. Rather, the
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 19

policy governing the use of the spray virtually guarantees that it will only be used after
1
reflection. Because staff must get approval for its use, don protective clothing and gas 2 3 masks, then prepare and read a script into the video camera, a procedure which can take
4 anywhere from several minutes to half an hour or more, there is almost always a "cooling

5 off" period during which the juvenile has calmed down. Spraying youth under these

6 circumstances amounts to nothing more than punishment for past acts and, under the

7 authority cited above, is constitutionally impermissible.

8

IV. PLAINTIFFS HAVE MET THE STANDARD FOR ISSUANCE OF A

9

PRELIMINARY INJUNCTION

10
In Wright v. Rushen. 642 F.2d 1129 (9th Cir. 1981), a prison case, the court said:

11

A court issuing a preliminary injunction must consider the probable outcome

12

of the case and the balance of hardships to the parties. To obtain a

preliminary injunction a party must show either a combination of probable

13

success on the merits and the possibility of irreparable injury or that serious

14

questions are raised and the balance of hardships tips sharply in its favor.

15 642 F.2d at 1132 (citations omitted). In Arcamuzi v. Continental Airlines. 819 F.2d 935,

16 937 (9th Cir. 1987), the preliminary injunction standard was elaborated upon:

17
In this circuit, preliminary injunctive relief is available to a party who

18

demonstrates either (1) a combination of probable success and the possibility

of irreparable harm, or (2) that serious questions are raised and the balance of

19

hardship tips in its favor. Oakland Tribune, Inc. v. Chronicle Publishing Co..

762 F.2d 1374, 1376 (9th Cir. 1985). "These two formulations represent two

20

points on a sliding scale in which the required degree of irreparable harm

21

increases as the probability of success decreases." Id. If the plaintiff shows

no chance of success on the merits, however, the injunction should not issue.

22

Benda [v. Grand Lodge!. 584, F.2d [308] at 315 [9th Cir. 1978]. As an

"irreducible minimum," the moving party must demonstrate a fair chance of

23

success on the merits, or questions serious enough to require litigation. Id.;

24

Sports Form. Inc. v. United Press Int'l. Inc.. 686 F.2d 750, 753 (9th Cir. 1982). Under any formulation of the test, the moving party must demonstrate

25

a significant threat of irreparable injury. Oakland Tribune. 762 F.2d at 1376.

26 See also National Center for Immigrants' Rights. Inc. v. INS. 743 F.2d 1365, 1369 (9th Cir.
27
1984) (standards represent a continuum, not two separate tests, and "the greater the relative
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 20

hardship to the moving party, the less probability of success must be shown.") 1
Plaintiffs are entitled to preliminary relief under these standards. 2

3

A. Probable Success On The Merits

4

As shown in Section III A. and B. above, and based on plaintiffs' factual showing in

5 support of preliminary relief, the probability that plaintiffs will succeed on the merits of their

6 claim that defendants' punitive use of aerosol restraint violates due process is great. Given

7 the likelihood of success, and considering the balance of hardship to the parties, analyzed
8
below, plaintiffs are entitled to a preliminary injunction on this claim. 9

10

B. Balance Of Hardships

11

As plaintiffs and their experts have shown, each time a juvenile is sprayed with

12 pepper spray they experience significant pain and risk physical and psychological harm.
13 Moreover, youths who are not even the intended victims of the pepper spray, but are in the
14
vicinity when it is used, are subjected to harm and pain.
15
In contrast, the state defendants will suffer no harm if they are preliminarily enjoined
16
17 from using the spray because there are alternative, less invasive ways to respond to

18 uncooperative youths to ensure their compliance with staff directives without relying upon

19 chemical agents. As Dr. Milan notes:

20

The undesirable effects of this punishment are many. It causes severe pain

21

and discomfort to the youths who are sprayed, but has little value in deterring

their inappropriate conduct. In fact, the spray may well exacerbate behavioral

22

problems within the facility by providing a vehicle for youths to demonstrate

their toughness and defiance of staff in order to enhance their reputations

23

among their peers. It also poisons the environment within the facility and

24

undermines efforts at rehabilitative treatment.

25 Milan Declaration and Report, Ex. 1.

26

Moreover, Dr. Milan states that in the few instances shown on the videotapes which

27 might have been dangerous, "alternative and less invasive procedures would have obviated
28

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 21

the need for the spray." Id. Mr. DeMuro concurs:

1

In a properly run and managed facility, staff would receive the proper training

and support to resolve most of these minor incidents without resorting to overt

3

escalation that involved the use of pepper gas.

4 DeMuro Declaration and Report, Ex. 3.

5

Thus, defendants will suffer no harm if this Court preliminarily enjoins the use of

pepper spray at GHS since there are other less drastic and professionally acceptable methods
7
available to maintain order and respond to the inappropriate behavior of incarcerated youth. 8
Balanced against the harm plaintiffs will suffer, and in light of the significant likelihood that
y

10 plaintiffs will succeed on the merits of this claim, preliminary relief is appropriate.

11 V. CONCLUSION

12

For all the reasons set forth above, plaintiffs respectfully ask this Court to

13 preliminarily enjoin defendants from using pepper spray at GHS.

Respectfully submitted this Z- / day of October, 1994. 15

16

17

EVERGREEN LEGAL SERVICES

Institutional Legal Services Project

18

101 Yesler Way, Suite 301

Seattle, WA 98104

19

(2061464-0838

20

21

PATRICIA J/ARTHUR, WSBA #13769

ROBERT ALSTALKER, JR., WSBA #13650
22

NATIONAL CENTER FOR YOUTH LAW

23

114 Sansome Street, Suite 900

24

San Francisco, CA 94117

(415) 543-3307

25

fj.-J/^L

//

26

DAVID LAMBERT " ^ ~

27

28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIONRE: PEPPER SPRAY- Page 22

 
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Horton v. Williams
lll
JI-WA-0002-0009

GREEN HILL SCHOOL POLICY #4

SUBJECT:

USE OF PHYSICAL RESTRAINT AND RESTRAINT DEVICES

AUTHORIZING SOURCE: RC¯W 13.40.010 and Institution Standards 5.02, 14.20, 14.21,14.22, 14.23, 14.24, and 14.25

EFFECTIVE DATE:

October 1, 1994

APPROVED BY:

Superintendent, Green Hill Schoc

SUNSET REVIEW DATE: October 1, 1996

4-100 PURPOSE
To establish local policy and procedures to comply with the guidelines instituted by Juvenile Rehabilitation Administration Bulletin #2, "Use of Physical Restraint Measures with Residents".

4-200

SCOPE

This policy applies to all areas under the jurisdiction of Green Hill School.

4-300 DEFINITIONS

1.

Physical Restraint - refers to any physical intervention or force used by staff

members to control residents.

2.

Restraint Device - refers to any device used to assist in controlling residents. This

includes aerosol, handcuffs, leg cuffs, waist chains, soft cuffs, plexiglass shields and

mattresses with hand holds.

3.

Aerosol - refers to certain approved aerosol propellant agents containing Oleoresin

Capsicum to be used in lieu of physical restraint to maintain the security of the

institution.

4.

Reasonable Action - refers to the use of the minimum amount offeree necessary to

prevent a resident fioin injuring another person, self, or inflicting serious damage to

property. Reasonable action shall always refer to the intervention method wíiich

minimi7/`<: rhr^ noç¢ihiiirv r>f ininrv T<¯> hoîii <;r»fPmf»mhfr<: »nrf

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003

Green Hill School Policy/Procedure #4 page two
5. Emergency Situation: Unexpected instance in which a resident's behavior, if left uncontrolled, will result in injury to himself or others, significant destruction of property or llireaten the security of the facility.
6. Non-emergency Situation: Instance in wliich a resident's behavior presents a potential threat of injury to himself or others, destruction of property, or Üircatens the security of the institution; however, there is time to summon additional staff and attempt to resolve the problem by utilizing the most reasonable action.
7- Chain of evidence: The documentation of all individuals who handle, possess, process, or transfer physical evidence in reference to a situation which may require investigation by staff and/or law enforcement agencies.
4-400 POLICY
1. Safety of both staff members and residents is of paramount importance.
Reasonable actions shall be taken by staff to avoid or prevent physically dangerous situations, within the scope of their job performance. Staff are authorized to use necessary physical restraint in emergency situations, which are:
a. Self protection. b. Protection of another to prevent bodily injury, (staff, resident or
visitor) c. Prevention of suicide or self-mutilation.. d. Prevention of escape c. Prevention of serious damage to property.
2. Staff are authorized to use physical restraint and/ or restraint devices. Use of aerosol must he approved bv the Superintendent or designee aftm- g ‡ W on-site observation or telephonic review of relevant facts as provided bv the on duty Security Supervisor or designee Pre-approval by the Superintendent in advance of the incident is not allowed^

09/29/94

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Green Hill School Policy/Procedure #4 page three
The use of physical restraint and/or rest ràint devices, excluding aerosol, is appropriate when a resident fails to comply with a staff directive and presents an immediate danger to self, others, property, or the security of institution. Other means of control or attempts at verbal de-escalation shall have been unsuccessful.
Use of physical restraint may persist for only the period of time necessary to ensure that the youth is no longer a danger to self, others, property, or the security of the institution.
Aerosol may be used when a resident fails to comply with a staff directive and: a. the use of Other physical restraint measures to gain complianco, without the
use of aerosol, likely would result in bodily injuty to the resident, staff, or others; or b. the resident is engaging in disruptive behavior in his room which creates a serious disturbance and tlireatens institutional security by inciting serious misbehavior by other residents.
When considering the use of aerosol to avoid bodily injury, staff must consider the overall circumstances including:
a. Whether the resident is seriously threatening verbally to bodily injury. b. Whether the resident has a history of causing or attempting to cause
bodily injury; and c. The demeanor of the resident.
When a resident fails to comply with a staff directive, staff shall attempt to gain compliance through verbal instruction and negotiation. This attempt shall continue up until the time that aerosol is used.
As soon as the use of aerosol is being considered, staff shall so inform the resident. The staff receiving approval to use aerosol from the superintendent shall again inform the resident that failure to comply will result in exposure. After this final warning, the resident shall be given at least ten (10) minutes to comply, except if either

09/29/94

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Green Hill School Policy/Procedure #4 page four

r`\

• ¯·

005

risk of injury or incitement of otlier residents, causing a serious threat to institutional security, requires more immediate action.
During the warning period, staff shall continually evaluate whether the conditions leading to consideration of use of aerosol still exist.
Staff shall not use aerosol if these conditions no longer exist or the resident complies with the initial staff directive.
If, after warning, the resident complies with the directive, and soon after again refuses to comply, the resident need not be given the ten minute warning prior to use of aerosol so long as the previously mentioned conditions still exist and at least ten (10) minutes have expired since the original warning.
Only staff trained in the proper use of aerosol are authorized to apply the substance to a resident(s). A listing of staff trained and authorized will be maintained by the security supervisor and posted in the security office.
All restraint methods must be applied so ttiat the application is not intended to cause serious harm or injury. Physical restraint, aerosol, and/or restraint devices shall not be used as punishment nor as a means of degradation.

3. Restraint devices may be used when transporting youths who are considered escape risks or who present a tlu¯eat to the safety of others.
Such restraint devices shall be used at the discretion of staff and shall only be used during the actual transportation/movement process. Such use does not require any formal written documentation.

09/23/94

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Green ¤ill School Policy/Procedure #4 page five
4. Video-Taping will begin when a resident refuses to comply with a staff directive.
a. Use of physical restraint shall be recorded on video tape, unless extraordinary circumstances prevent it, a video recorder is not available, and/or there is not time to assemble equipment. Video taping of the incident will begin as soon as possible in cmet`geucy situations.
b. Use of physical restraint video tapes are confidential and are not accessible to residents. They shall be reviewed by staff on a need-toknow basis to provide participants feedback and/or training on the use of physical restraint application.
c. The camera shall be located to ensure a complete view of the incident, including staff behavior.
d. The camera will record the entire incident until tho resident is placed in his final destination.
5. Written documentation is required reporting any use of: physical restraint, approved aerosol and pliysjcal restraint devices.
Such written documentation shall be completed by the staff member(s) involved, and shall be completed immediately following the incident. The written reports shall be kept in the resident's case file.
The documentation report must include:
a. Sequence of events leading to use of force.
b. Reason force was used.
c. Actual orders to resident.
d. Names of all staff and residents involved.
e. Detailed description of the entire incident.

09/29/94

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Green Hill School ToUcy/Procedure #4 page six
f. A video tape shall be taken by staff of the incident, if possible, and in accordance with 4-400,4 and 4-500, 2.
g. A Polaroid picture of any staff or resident injuries or property damage shall be taken and attached to the report.
h. If a resident commits an act that may be referred to the Chehalis P.D. for investigation as possible criminal conduct, all involved staff must complete a Chehalis Police Department Victim/Witness Statement form which will be forwarded to the Court Liaison (JRS EQ. Each resident involved is to be given the opportunity to write a statement regarding the incident. The integrity of the Chain of evidence for any physical evidence recovered shall be maintained.
6. Health center examination
Health Center stafif will examine each resident following an incident involving the use of physical restraint, and submit a report identifying injuries (if any) and medical action taken.
7. A spray review will be conducted following each incident requiring the use of aerosol.
An initial review will be held by the associate superintendent in charge of security along with the staff members involved in the use of aerosol.
All available documentation, including videos, log entries, and incident reports, shall be reviewed.
The chairperson of this review shall complete the Aerosol Restraint Review Worksheet (attachment E).
The superintendent shall review every worksheet and shall initiate a Major Incident Review in the event of staff and/or resident injury, significant property damage, or potential policy/procedure violations.

09/29/94

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Green HHI School PoHcv/Troccdurc #4 page seven
8. Training programs are required.
All staff who are expected to use necessary physical restraint and restraint devices shall be trained in accordance with established Juvenile Rehabilitation Administration Training Committee guidelines.
Staff trained in the use of aerosol will be required to attend annual training on the following areas:
a. Crisis intervention/verbal de-escalation skills. b. Interpretation of GHS policy #4, Use of Physical Restraint and Restraint Devices.
c. Proper techniques for application of aerosol.
d. Video-taping techniques.
e. Proper de-contamination techniques.
f. Effects of aerosol.
4-500 PROCEDURES
1. Non-Emergency situations:
In pon-emergency situations, where the conditions outlined under paragraph 4-400, 2, have been met, the following procedures will be followed:
a. Cottage staff will notify security staff, the cottage supervisor and/or the O.D. that a non-emergency situation exists where the use of physical restraint may be necessary to control the situation.
b. The cottage staff present will inform responding staff of the events leading to the summons and what directive the resident refused to obey.
c. Responding staff will ensure resident compliance with the original directive.

09/29/94

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Greca Hill School Policy/Procedure MA page eight
d. Prior to the attempt to gain resident compliance, or as soon as practical, video taping of the events will commence in accordance with 4-400,4, and as outlined in 4-500,2.
e. Use of physical restraint actions will follow this continuum:
1) Presence: Staff arrive at the site.
2) Dialogue: Issue an order for the resident to comply.
3) Active physical restraint measures:
(a) Actual staff physical force to control the resident(s), resulting in the application of restraint devioe(s) for continued resident control.
(b) Aerosol - (Requires Superintendent Approval), Olcorcsin Capsicum exposure, resulting in the application of restraint device(s) for continued resident control, (ie. handcuffs, leg cuffs, soft cuffs, etc.
NOTE: Circumstances may require the passing over of one or more continuum steps to immediately resolve the situation, should it become emergent in nature.
2. Video taping of Physical Restraint Application
Staff shall use the following guidelines, which are incorporated in Attachment B. for the recording of and application of the determined method of physical restraint:
a. Away from incident site (pre-soript):
1) Introduction includes: name, date, time, name of video operator, name and IRA number of resident(s) involved.
2) A statement is made by staff indicating why the use of physical restraint is necessary.

09/29/94 -10:49

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Green Hill School Policy/Procedure #4 page nine
3) A chronological description of the events leading to the decision to conduct the use of physical restraint and what alternative actions, if any, to the use of physical restraint have been taken.
4) Name of staíFparticipating in the use of physical restraint and specific instructions to each staff.
5) Name of person authorizing the use of the physical restraint.
b. At the incident site:
1) Verbally direct the resident to comply. 2) If non compliant, direct staff to apply the determined method
of physical restraint, (ie. aerosol, physical force). 3) Record the application of physical restraint and the
application of restraint devices. 4) Record the showering of resident(s) exposed to aerosol, if
applicable. (The video camera will be directed from the waist
up).
5) Record the medical examination of the resident and a brief description of his condition.
6) Record the final placement of the resident(s) in the room and removal of the restraint devices.
c. Away from incident site /post-script):
1) Time, date, location 2) Resident(s) involved. 3) Staff involved. 4) Description of Üie use of physical restraint. 5) Injuries noted, if any. 6) Where the resident is located and what his behavior is at the
present time. 7) A statement which indicates the conclusion of the videotaping
of that incident.

±u;<*y
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Green Hill School Policy/Procedure #4 page ten

3. Emergency Physical Restraint
When staff are involved in an emergency situation where the use of physical restraint is required, as outlined in paragraph 4-400, 1, the following will be accomplished once the situation is controlled:
a. Notification of security, the Superintendent, the area supervisor and/or the O.D.
b. Video taping, if possible, will commence as soon as practical in accordance with 4-400, 4, and 4-500, 2.
c. Polaroid pictures of any injuries or property damage will be taken. d. Medical examination of the residents). e. Secure room placement of the residents).
4. Restraint Device Use After Physical Restraint
Staff shall use restraint devices to maintain control of a resident after the use of physical restraint. Staff will remove restraint as soon as possible once the resident has gained control and poses no further risk to himself, others or property.
5. Documentation
All staff involved in the use of physical restraint will complete appropriate reports documenting their involvement and the elements outlined in paragraph 4-400, 5. Staff shall complete these reports immediately following the incident. The type of reports required include, but are not limited to:
a. Incident Reports (Attachment A) b. Use of Aerosol Restraint Report (Attaclunent B) c. Use of Restraint Devioe(s) Report (Attach. C) d. Chehalis Police Victim/Witness Report
(Attachment D) e. Medical Report

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Green Hill School Policy/Procedure #4 page eleven
6. Restraint Device Inventory and Storage:
1 - Aerosol Restraint: An appropriate variety of dissemination methods and quantities shall be available. The inventory shall allow for the use of Aerosol Restraint for all possible types of incidents which may occur at the íàcility, i.e., cell use, day room use, outdoor use, dining room use, etc. The security supervisor is responsible for ensuring that only approved Aerosol Restraint is authorized for purchase, storage and use.
All Aerosol Restraint shall be stored in a secure method that will prevent residents from liaving access to it. The drug room in the Administration Building is designated as the storage area for the Primary slock of Aerosol Restraint. A limited amount will be stored in the storage room adjacent to the I.M.U. entrance door for quick access when authorization has been granted for its use.
A master perpetual inventory shall ensure an accurate record on the disposition of all aerosol restraint containers. When Aerosol Restraint container are unaccounted for, the following will occur:
a, A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.
b. The area Associate Superintendent shall assign an investigator to determine the disposition of the missing aerosol restraint.
2. Restraint Devices (non aerosoD: The Security Supervisor shall oversee the purchase and dissemination of hand cuffs, leg cuffs, waist chains, soft cufïš, plexiglass shields and mattresses with hand holds. An inventory of all restraint devices shall be maintained separatefromthe inventory of aerosol restraint. Restraint devices wJU be stored to ensure that residents do not have access to them.

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r\

Green Hill School Policy/Procedure #4 page twelve
Cottages shall be issued hand cuffs and hand cuff keys. The cottage directors are responsible to ensure that adequate safeguards are maintained to ensure the security of these devices.
Security staff are authorized to carry hand cuffs and hand cuff keys on their person during their shift to allow for ready use.
In the event tliat a restraint device is unaccounted for the following will occur:
a. A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.
b. The area Associate Superintendent shall assign an investigator to determine Üie disposition of the missing restraint device.

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014

Attachment A

INCIDENT REPORT

THIS REPORT MUST BE SUBMITTED BEFORE LEAVING YOUR SHIFT

TO

DATE: MONTH, DAY, YEAR

REPORTING PERSON: PERSONS INVOLVED

LOCATION OF INCIDENT: COTTAGE OR DEPARTMENT

INCIDENT:

COMMENTS AND RECOMMENDATIONS OF DEPARTMENT HEAD OR SUPERVISOR: SIGNATURE OF DEPARTMENT HEAD OR SUPERVISOR:

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015

ATTACHMENT B:

AEROSOL RESTRAINT SCRIPT

PRIOR TO STARTING VIDEOTAPING, ENSURE THAT THE TAPE IS REWOUND AND STAFF ARE ADVISED TAPING IS STARTING.

My Name is

Today's date is

The time is Tlic video camera operators name is

ASK VIDEO OPERATOR IF THE DATE AND TIME ARE PRESENT IN THE LOWER LEFT CORNER OF THE VIEWl·'lNDER. IF NOT. ADJUST THE CAMERA. Instruct the camera operator to keep the camera ou wide angle.

The following resident (s) is/are involved: (Give natnes and JRA Numbers)

:

JL&.A ..

J. R. A .NUMBER

J R A NUMBER

J. R. A .NUMBER

I will be supervising an aerosol restraint incident thai is nccessaiy because: (Resident is potential threat of injury to himself, others, damaging property, Üireatening security or other.)

The sequence of events that lod to the decision to use aerosol restraint are as follows: (Chronological of reasons and action that was taken prior to making the decision to use aerosol.)

The following staff ore going to be involved:

09/29/94

`<3:5l

fìGO¯DSHS

016

r¯`

I have given tíic following instructions to staff:_

Move to the incident scene.
Ensure video recorder has position to view the complete incident to iuclude botli staff and resident behavior. Ensure any other residents who become involved are recorded on tape.
Issue a direct order for the resident to submit to physical restraints. If üie resident refuses, apply aerosol restraint. Direct staff to apply physical restraints.
VIDEO TAPE APPLICATION OF AEROSOL RESTRAINT USE.

VIDEO TAPE SHOWER AND CLEANUP OF RESIDENT.

VIDEO TAPE MEDICAL EXAMINATION.

Video tape final placement of resident in cell and removal of physical restraints. Move to a private area to present an after action narrative of the incident •which includes:

Time:

¦

Date:

Location:

Resident (s) involved:

.

What led to decision to use aerosol restraint?.

Staff involved:. Were there înjurìes?_ What; the resident is now and what is his bchaviof?_

89/29/94

<-0:5l

<"``

fiGO-DSHS

01?

n

GREEN HELL SCHOOL CHEBALIS, WASHINGTON

USE OF RESTRAINT DEVICES

TO:

SUPERINTENDENT

Time In

FROM:

Time Out.

DATE: .

YOUTH'S NAME:

COTTAGE:

Description of Incident:

Associate Superintendent Cottage Director Treatment file Case File
GHS PROCEDURE U 4 Attachment C

09/29/94

10:51

RGO-DSH5

016

ATTACHMENT D:

CHEHALIS POLICE DEPARTMENT

DATE:
NAME:
ADDRESS: .CITY, STATE:.

WITNESS-VICTIM STATEMENT

TIME:

CASE NUMBER:

DOB:

PHONE: _ hereby make the following statement:

I HAVE READ THE ABOVE STATEMENT AND IT IS TRUE AND CORRECT TO THE BEST OF MY

KNOWLEDGE.

WITNESS

SIGNED

09/29/94

'3:52

RGO-DSHS

019

r`×

ATTACHMENT E

GREEN I-¤LL SCHOOL CHEHALIS. WASHINGTON

AEROSOL RESTRAINT REVIEW WORKSHEET DATE OF INCIDENT: RESIDENTS INVOLVED:

STAFF INVOLVED:

SUPPORTING DOCUMENTATION:

INCIDENT REPORTS:

AEROSOL RESTRAINT' SCRIPT:.

VIDEO TAPE OF INCIDENT: USE OF RESTRAINT DEVICES REPORT:

PHOTOGRAPH OF DAMAGE: MEDICAL REPORTS:

JUSTIFICATION FOR REQUEST TO USE AEROSOL:

WAS RESIDENT INFORMED OF POSSIBLE USE OF AEROSOL RESTRAINT?

WAS RESIDENT GIVEN OPPORTUNITY TO COMPLY WITH STAFF DDIECTIVESV

WAS PROPER AUTHORITY GIVEN FOR USE OF AEROSOL RESTRAINT/

DID STAFF APPLYING AEROSOL RESTRAINT HAVE CURRENT CERTIFICATION?

WAS RESIDENT EXAMINED BY HEALTH ClìNTIïR STAFF?

ADDITIONAL COMMENTS:

CC: Treatment File

 
 Horton v. Williams
II

JI-WA-0002-0ÒÏÍ
1 THE HONORABLE ROBERT J. BRYAN
2
3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

11

JAMES HORTON, et al., on behalf of

)

themselves and all others similarly

)

13 situated,

)

No. C94-5428 RJB

14

Plaintiffs,

)

)

DECLARATION OF

15
vs. 16
BOB WILLIAMS, et al.,
17

, o

Defendants.

18

)

MICHAEL D. COHEN, M.D.

) ) )

) )

J

19 1. My name is Michael D. Cohen. I reside at RD2, Box 2016, Argyle, New York.
20

«,

2. I received an MD degree from the University of California in 1979; I am

22 certified by the Board of Medical Examiners; and I am licensed to practice medicine in New

York, California, and Illinois.
24 3. Throughout my medical career I have specialized in pediatric medicine. I
25 completed an internship in pediatrics in 1980 and a residency in pediatrics in 1983. I am

1 certified by the American Board of Pediatrics, and I am a Fellow of the American Academy
2
of Pediatrics. I have also made a number of presentations and prepared a number of reports

4 on matters pertaining to pediatric medicine.

5

4. I am currently the Medical Director for the New York State Division for Youth.

In this capacity, I am the chief medical officer for all institutions for delinquent youth under 7
16 years of age in the state of New York. I have also served as pediatric consultant for the 8
New York State Department of Health, and as the chief physician in the Adolescent Reception
10 and Detention Center at Rikers Island Correctional Complex in New York City.

11

5. I have been an expert consultant in a number of cases involving medical care

12
for institutionalized persons, including cases in New York, Wisconsin, Delaware, and Florida. 13
I have also been an expert consultant in a number of cases which address medical treatment 14

,,. of confined youths. These include cases in Connecticut, Florida, North Carolina, South

16 Carolina, and the District of Columbia. In some of these cases I have served as a compliance

1' monitor for the court. My resume, which sets out more completely my education, employment
18 and experience, is attached as Exhibit 1.
19 6. I was asked by attorneys for the plaintiffs in this case to provide opinions and
20
conclusions regarding the use of aerosol oleoresin capsicum, commonly called pepper spray,

22 at Green Hill School in Chehalis, Washington. They provided me with six videocassettes

showing 25 incidents in which staff at Green Hill School sprayed youth at that facility. They 24
also provided me with incident reports and other documentation prepared by Green Hill staff
25
26

1 contemporaneously with each incident, and copies of the institutional policies governing the
2
use of the spray.

4

7. I conducted a review of the medical literature concerning the effects of

5 capsicum. As a result of this review, as well as my own experience in pediatric medicine, it

is my opinion that aerosol oleoresin capsicum is harmful to youth with chronic lung disease. 7
It is also my opinion that the spray is likely harmful to other youth because of the increased 8
risk of injury to eyes, airways, and skin. In any event, the use of the spray has not been shown

10 to be harmless, as I believe it should before youth are exposed to it.

11

8. In addition to the direct harm caused by the spray, a number of procedures

12
governing the use of the spray are inadequate to protect the health and safety of youth. These 13
include procedures to screen youth with chronic lung disease; procedures which insure that 14

youth are promptly and safely allowed to clean themselves of residue from the spray;

16 procedures to determine the appropriate concentration of spray; and procedures to identify

adverse reactions after youth are sprayed. My opinions and conclusions are set out more fully
18 in my report, attached as Exhibit 2.
19 9. Because the spray poses real and potential dangers to youth who are exposed
20
to it, because the spray is used to punish youth and not to protect the safety of other youth or

22 staff at Green Hill, and because the medical and clean-up procedures are inadequate to protect

youth from further injury, it is my opinion that the use of pepper spray at Green Hill does not 24
comport with sound professional judgment.
25
26
. 3

1 I declare under penalty of perjury that the foregoing is true and correct to the best of
2
my knowledge, information and belief.

4 5
6 Dated: /o/WJ<t</
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 26
g:\ncyl\cohel02l.dec

MuÅ/t¿{ D C
Michael D. Cohen, M.D.

 
 Horton v. Williams

I V

••

••

••••••••

•••Mill

JI-WA-0002-0012

1

THE HONORABLE ROBERT J. BRYAN

2

3

4

5

6

7
UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT TACOMA
9

10

11 JAMES HORTON, et al., on behalf of themselves and all others similarly
12 situated,
13 Plaintiffs,
14 vs.
15
16 BOB WILLIAMS, et al.,

No. C94-5428 RJB
DECLARATION OF MICHAEL A. MILAN

17

Defendants.

18

19

20

1. My name is Michael A. Milan. I am a professor in the Department of

21 Psychology at Georgia State University, and I reside in Atlanta, Georgia. I am a licensed
22 psychologist in Florida and Georgia, and I am listed in the National Register of Health
23
24 Service Providers in psychology.

25

26

2. I received my Ph.D. in psychology from the University of Florida in 1970.

Since that time I have written extensively on behavioral procedures and interventions in

prisons and other closed institutions. Much of this research is relevant to the behavioral
4 management of delinquent youth in secure institutions. For example, I have written about
5
behavior modification and token economies in secure institutions; academic performance of ó
7 prisoners; correctional mental health training needs; effective treatments of aggressive

8 behavior; and anger control for adolescent psychiatric patients.

"

3. I have been on the faculty of the Department of Psychology at Georgia State

10 University in Atlanta for almost twenty years. I have served as Director of Graduate Studies
11

in Psychology, and I am currently Chair of the Clinical Psychology Program Committee. I

13 teach both undergraduate and graduate courses in psychology, including courses in applied

14 behavior analysis and cognitive behavior therapy.

4. I belong to a number of professional associations relevant to psychology and
16 delinquent youth. For example, I served as newsletter editor, then president of the
17 American Association for Correctional Psychology. I have been active in Florida and
18 19 Georgia Associations for Behavior Analysis, and I have served on the editorial board of
20 Criminal Justice and Behavior. I also belong to the American Correctional Association.
21 5. I have been a consultant in a number of projects and cases involving
22 institutional practices. For example, I have provided staff training in a security hospital for
23 mentally disordered offenders in Ohio; evaluated mental health services at psychiatric

25 26

hospitals in Indiana and Alabama; and consulted on conditions of confinement and inmate

2 management practices in prisons in Arizona, Hawaii, Virginia, Kentucky, and Missouri.

°

6. I have also been a consultant in a number of cases which pertain specifically

4 to practices and conditions in secure institutions for delinquent youth. For example, I
5
evaluated inmate management practices at the Broward County, Florida juvenile detention 6

center and in secure institutions for delinquent youth in the District of Columbia, Florida,

8 Mississippi, and New York.
ç 7. My vitae, which sets out more fully my education, employment history,
10 professional affiliations, and consultantships, is attached at Exhibit 1.
11
8. In May, 1994 I was contacted by David Lambert, one of the attorneys for the

13 plaintiffs in this case, and asked to view videotapes in which staff at Green Hill School spray

youth with an aerosol containing cayenne pepper extract. I viewed these videotapes, and

reviewed incident reports and other documentation of these incidents prepared by staff at

16 Green Hill contemporaneously with the incidents. I also reviewed the policies governing
17 18 the use of the spray.

19

9. From my review of this material, it is my conclusion that staff at Green Hill

School use the pepper spray to punish youth for misbehavior, not to protect the safety of
21 other youth or staff. Of the 27 applications shown on the videotapes, 7 involved youths who
22 were quiet and composed at the time they were sprayed. Most of the other incidents involved
23 youth who were noisy or engaging in offensive behavior, but who clearly posed no threat of

25 imminent danger. Only two of these incidents appeared serious enough to possibly present 26

,

[_..

1 a clear threat of imminent danger, and I believe that even in those incidents, alternative and

2 less invasive procedures would have obviated the need for the spray. My report, which sets
o
out more fully my analysis of the episodes shown on the videotapes, is attached as Exhibit
4 2.
5
10. The undesirable effects of this punishment are many. It causes severe pain 6
7 and discomfort to the youths who are sprayed, but has little value in deterring their

8 inappropriate conduct. In fact, the spray may well exacerbate behavioral problems within

9
the facility by providing a vehicle for youths to demonstrate their toughness and defiance of
10 staff in order to enhance their reputations among their peers. It also poisons the environment
11 within the facility and undermines efforts at rehabilitative treatment.
12

13

11. For all of these reasons, it is my opinion that the use of pepper spray at Green

14 Hill School as shown on the videotapes and described on the documentation that I reviewed,

does not comport with minimally accepted standards of professional judgment in the area of
16 behavior management.
17
18

19
Dated: Od<U< ¿kj H<=i<l·

20

^×^Michael

21

A. Milan, Ph.D.

22

23

24

25

26

 
 Horton v. Williams

• •• •• •• •* • m
J-WA-0002-0018

1

The Honorable Robert J. Bryan

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT TACOMA

6 JAMES HORTON; JAMES BARNHART;

JEROME PAYTON; J.B., through his

7 next friend, LORRAINE WEST; and

K.M., through his mother DEBBIE

8 MOORE, on behalf of themselves

and all others similarly situated,

9

Plaintiffs,

10

v.

11 BOB WILLIAMS, in his official capacity as Superintendent of Green)
12 Hill School; JEAN SOLIZ, in her ) official capacity as Secretary of )
13 the Department of Social and Health) Services; and SID SIDOROWICZ, in )
14 his official capacity as Assistant )
Secretary of the Juvenile 15 Rehabilitation Administration;
and the CHEHALIS SCHOOL DISTRICT, 16
Defendants. 17

Case No. C94-5428 RJB
DECLARATION OF DR. RICHARD L. LIPSEY

18 RICHARD L. LIPSEY declares as follows:
19 1. I am a chemical environmental toxicologist employed by
20 Lipsey and Associates, a consulting firm in Jacksonville, Florida.
21 2. I have a Ph.D. in environmental toxicology. Attached to
22 this affidavit is my professional resume. Attachment A. While
23 working in the field of chemical research and development and as
24 a University of Florida Professor, I conducted and/or supervised
25 numerous experiments and tests involving chemical toxicology. I
26

DECLARATION OF DR. RICHARD L. LIPSEY

Page 1

Uc\x\üpsey.aff

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

1 have served as a consultant to the U.S. Environmental Protection

2 Agency, U.S. Department of Agriculture, and the U.S. State

3 Department. I have also provided consulting services to many

4 federal and state law enforcement agencies, including the U.S.

5 Department of Justice, and various state highway patrol, county

6 sheriff, and city police departments.

7

3. I am familiar with available toxicological (scientific)

8 and medical research regarding Oleoresin capsicum (OC), including

9 the material safety data sheets issued by manufacturers of OC, the

10 Canadian Police Research Center publication regarding the

11 toxicology of OC, and the ACLU publication on pepper spray

12 entitled "A Magic Bullet Under Scrutiny." I have conducted a

13 thorough medline/toxline computer search of the literature on

14 respiratory and hypersensitivity problems related to OC. Finally,

15 I have reviewed my files from the various OC lawsuits in several

16 states in which I have served as an expert witness for both

17 plaintiffs and defendants.

18

4. Pepper spray is commonly used by police departments and

19 correctional facilities. I have consulted on several cases

20 involving the proper use of pepper spray and the hazards

21 associated with its misuse. I have advised law enforcement

22 agencies as to the proper use of pepper spray. Within the last

23 six months, I have testified in cases where individuals alleged

24 misuse of pepper spray in Florida and Oregon.

25

5. OC is the active ingredient in pepper spray. OC is

26 derived from chili peppers, and is also the active ingredient in

DECLARATION OF DR. RICHARD L. LIPSEY Page 2
Uc\x\lipsey.aff

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

1 Tabasco sauce and Sloan's liniment. Pepper spray can temporarily

2 incapacitate a person by causing a burning sensation of the eyes

3 and throat. When OC is inhaled, the respiratory tract is

4 inflamed, causing rapid, shallow breathing. This is a

5 biochemical reaction that does not result in lasting tissue

6 damage. All effects of pepper spray exposure completely subside

7 within 15 to 45 minutes.

8

6. The proper use of pepper spray does not constitute a

9 health hazard. The effects of pepper spray are completely

10 temporary, with no lasting effects after 15 to 45 minutes. Pepper

11 spray exposure can cause coughing, but research has shown that the

12 effects of pepper spray are no worse for asthmatics than for non-

13 asthmatics. Persons with asthma or allergies are not affected any

14 worse by OC than persons without asthma or allergies. There are

15 no known cases of hypersensitivity or allergy to OC. Research has

16 found no significant difference in either magnitude or duration on

17 broncho-constriction between normal, smoking, or asthmatic

18 subjects exposed to OC (Fuller, Dixon and Barnes, 1080-1084).

19 Further, the effect of pepper spray is no different for persons

20 aged 15 through 21 than for older persons. There is no

21 physiological difference between juveniles and adults in terms of

22 the effects of OC.

23

OC pepper spray is not federally regulated. However, OC has

24 been examined by government and private research organizations.

25 A two-year study conducted by the FBI Firearms Training Unit in

26 cooperation with the U.S. Army Chemical Research and Development

DECLARATION OF DR. RICHARD L. LIPSEY

Page 3

Uc\x\lipsey.aff

``

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

1 Center revealed no long-term health risks associated with the use

2 of OC. The study concluded that no ill effects or adverse

3 reactions were experienced by 899 subjects who were exposed to OC

4 (Weaver and Jett, 6 ) .

5

Pepper spray is more effective and safer than mace. Unlike

6 pepper spray, mace can be ineffective against a person impaired by

7 drugs or alcohol. Additionally, although mace has been shown to

8 have long-term health risks, no long-terms effects have been shown

9 to result from pepper spray exposure. Examples of documented

10 health risks associated with the use of mace are:

11

12

7. In preparation for developing an opinion as to the safety

13 of the use of pepper spray at Green Hill School in Chehalis,

14 Washington, I have reviewed Green Hill School Policy #4, dated

15 10/1/94 and 5/1/94; Green Hill School Bulletin #2 dated 5/1/91;

16 Green Hill School Policy #28 dated 2/15/91. I have also observed

17 the videotaped recordings of 4 uses of pepper spray at Green Hill

18 School, including the "clean-up" procedure. Finally, I have

19 reviewed the statements submitted in this case by Dr. Michael

20 Cohen, pediatric doctor; Dr. Michael Mylan, psychologist; and Paul

21 DeMuro, Juvenile Justice Practitioner.

22

8. Based upon my knowledge and experience, as well as my

23 review of all documentation as indicated above, it is my opinion

24 that the current policy regarding aerosol restraint at Green Hill

25 School ensures safe, effective use of the product. Properly

26 conducted training, as reguired by the policy, results in

DECLARATION OF DR. RICHARD L. LIPSEY

Page 4

Uc\x\lipscy.a£f

``

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

1 appropriate, effective use of pepper spray.

Suggested

2 decontamination procedures for OC are proper ventilation and

3 access to water. However, unlike other chemical irritants, OC is

4 biodegradable and does not linger in ventilated affected areas or

5 in clothing. Thus, no special decontamination procedures are

6 required.

7

9. Contrary to Dr. Cohen's statement, OC is not harmful to

8 persons with chronic lung disease. My computer search of all

9 available medical and toxicological literature on the subject

10 revealed that there was no evidence whatsoever that OC can harm

11 anyone with chronic lung disease, including asthmatics. Dr. Cohen

12 stated that OC has not been show to be harmless. However,

13 scientific research cannot prove a negative. Therefore, that

14 statement has very little meaning. In fact, pepper spray has not

15 been found to be harmful to humans, beyond the temporary effects.

16

Dr. Cohen stated that OC can cause a spasm in the larynx.

17 This is the desired effect of the product. Dr. Cohen further

18 states that about 30 people have suffocated and died after being

19 sprayed with OC, but goes on to admit that none of the deaths were

20 attributed to OC. In fact, all research related to deaths

21 following the use of OC, including an ACLU report published in the

22 fall of 1993, reveals that no deaths were caused by OC.

23

Dr. Cohen mentions a study by Levy in 1991 involving animals

24 which purported to show that pepper spray can cause "degeneration

25 of nerve fibers." I personally read the article cited by Dr.

26 Cohen. The author actually stated that if newborn animals are

DECLARATION OF DR. RICHARD L. LIPSEY

Page 5

Uc\x\üpsey.aff

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

1 injected with high doses of capsaicin, it can be "potentially

2 neurotoxic." Such results have never been reported from pepper

3 spray in actual use. The research showed that, using a

4 hypersensitive laboratory animal, guinea pigs, and using near

5 fatal doses, nerve damage may be possible. This isolated

6 publication has not been substantiated by any other researcher.

7 However, Ross in 1991 reports that nerve damage has never been

8 shown in humans.

9

10. The statement of Dr. Michael Milan, psychologists, has

10 no scientific merit because he simply states that OC causes pain

11 and has little value in deterring inappropriate behavior. I am

12 not a psychologist, but I know that all effects of OC are

13 temporary, and I have seen hundreds of instances where OC has

14 indeed deterred inappropriate behavior in aggressive, angry males.

15

11. Mr. DeMuro stated that OC is dangerous if you make a

16 juvenile walk downstairs after being blinded by the product. OC

17 does not cause blindness; rather, OC exposure results in a

18 temporary inability to open the eyes for a period of time. This

19 temporary effect is abated in 2 to 5 minutes. The respiratory

20 effects dissipate in as little as 2 minutes. The eyes may

21 continue to sting for 10 to 20 minutes. In the instances of OC

22 use at Green Hill School which I observed on videotape, the

23 persons being led downstairs were not blind. Because of the

24 passage of time, the effects would be burning eyes, not inability

25 to open the eyes. Additionally, the residents were not in danger

26 because they were being assisted by staff.

DECLARATION OF DR. RICHARD L. LIPSEY Page 6
Uc\x\lipsey.aff

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olymp¡a, WA 98504-0124 (206) 459-6558

l_

1

12. Pepper spray is commonly used nationwide to effectively

2 temporarily incapacitate persons in custody with no lasting

3 effects whatsoever. No health risks associated with pepper spray

4 have been substantiated. When properly used, OC pepper spray is

5 a safe, effective method of temporarily incapacitating a person.

6

DATED this

ìl day of /J° ^^^-í-*^\ , 1994.

7

8
Dr. Richard L. Li 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF DR. RICHARD L. LIPSEY

Page 7

Uc\x\lipsey.aff

`¯

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 98504-0124 (206) 459-6558

 
 Horton v. Williams

1

• • •• • • • • • • • • ! • ! • • • • • • II

2

J-WA-0002-0019

3

4

5

6

THE HONORABLE ROBERT J. BRYAN

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 JAMES HORTON, et al., on behalf of themselves and all others
11 similarly situated,

12

Plaintiffs,

13

v.

14 BOB WILLIAMS, et al.,

NO. C94-5428 RJB
CERTIFIED STATEMENT OF JEAN BROOKS

15

Defendants.

16

17

I declare and affirm as follows:

18

I am currently employed by the Department of Social and Health

19 Services, State of Washington, at the Green Hill School. I have been

20 so employed since 1992. My current civil service job classification

21 is Juvenile Rehabilitation Supervisor 2. The request to enjoin the

22 use of pepper spray is a concern of all employees at the institution,

23 even to those, such as myself, who are not personally involved in

24 its use.

25

The institution population includes youths from ages 15 to 21

26 (including several tried and convicted in adult court). All of the

CERTIFIED STATEMENT OF

-1-

JEAN BROOKS

SWANSON, PARR, CORDES,
YOUNGLOVE í PEEPLES, P.S. ATTORNEYS AT LAW
EASTSIDE PROFESSIONAL PLAZA, SUITE A 924 EAST SEVENTH AVENUE P.O. BOX 7848
OLYMPIA, WASHINGTON 98507-7848 FACSIMILE (206) 754-8268 (206) 357-7791

1 residents have been adjudicated as having committed felonies. Green

2 Hill is the maximum security facility in the state's juvenile

3 detention system. The institution population includes youths which

4 the other state institutions have been unable to control because of

5 aggressive or violent behavior. Even during my brief employment it

6 seems that the population has become increasingly more dangerous and

7 unpredictable. Many of these residents are physically mature and

8 extremely strong.

9

During my employment the use of pepper spray has been available

10 in crisis interventions. I have seen pepper spray used only when all

11 other means of negotiation with the resident and appropriate physical

12 restraint alternatives have failed, and then only with the specific

13 approval of the institution superintendent. Use of the spray is

14 pursuant to a specific policy (Green Hill Policy #4) and used only by

15 specifically authorized and trained staff.

16

I have never seen the spray used simply for punishment. The

17 occasions where it has been used have been situations where the only

18 alternative appeared to be a physical altercation between the resident

19 and staff, and use of the spray appeared necessary to avoid more

20 serious physical injuries. On at least one occasion its use was

21 necessary to protect one resident from an attack by one or more other

22 residents, after other means had failed.

23

Although not used for that reason, the threat of the use of the

24 spray is a deterrent to continued violent behavior. Residents who

25 perceive confrontations with staff as "macho" behavior often respond

26 to the threat of the use of pepper spray. Often the warning that

CERTIFIED STATEMENT OF

-2-

JEAN BROOKS

SWANSON, PARR, CORDES, YOUNQLOVE 4 PEEPLES. P.S.
ATTORNEYS AT LAW EASTSIOE PROFESSIONAL PLAZA, SUITE A
9Z4 EAST SEVENTH AVENUE P.O. BOX 7848
OLYMPIA, WASHINGTON 98507-7846 FACSIMILE (206) 754-9268 (206)357-7791

1

1 the spray is about to be used unless the resident de-escálates is

2 sufficient, and the use of the spray is unnecessary.

3

The use of pepper spray is effective. Staff appear to be able

4 to obtain immediate control after its use. As soon as control is

5 obtained, the procedures include removing the resident from the 6 spray environment, showering and cleaning up, and a checkup by the 7 institutional medical staff.

8

Institutional staff feel that pepper spray is preferable to the

9 alternatives of more serious physical injuries, to residents and

10 staff, which were suffered in the past before it was available.

11

12

I declare under penalty of perjury under the laws of the State

of Washington that the foregoing is true and correct.

13

14 Signed at

, Washington, on

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFIED STATEMENT OF

-3-

JEAN BROOKS

SWANSON, PARR, CORDES, YOUNGLOVE i PEEPLES, P.S.
ATTORNEYS AT LAW EASTSIDE PROFESSIONAL PLAZA, SUITE A
924 EAST SEVENTH AVENUE P.O. BOX 7846
OLYMPIA, WASHINGTON 98507-7848 FACSIMILE (206) 754-9268 (208) 357-7791

 
 Horton v. Williams
1

2
JI-WA-0002-0020
3

4

5

6

THE HONORABLE ROBERT J. BRYAN

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 JAMES HORTON, et a l . , on behalf

)

of themselves and all others

11 similarly situated,

12

Plaintiffs,

NO. C94-5428 RJB

13

v.

14 BOB WILLIAMS, et al.,

CERTIFIED STATEMENT OF KEITH ROSENKRANZ

15

Defendants.

16

17

I declare and affirm as follows:

18

I am currently employed by the Department of Social and Health

19 Services, State of Washington, at the Green Hill School. I have been

20 so employed since 1975. My current civil service job classification

21 is Juvenile Rehabilitation Supervisor 2. The classified staff at

22 Green Hill are included in the Institutions Bargaining Unit certified

23 by the Washington State Personnel Board (now Personnel Resources

24 Board). The unit's exclusive bargaining representative is the

25 Washington Federation of State Employees which is Council 28 of the

26 American Federation of State, County and Municipal Employees, A F L - C I O .

CERTIFIED STATEMENT OF

-1-

KEITH ROSENKRANZ

SWANSON, PARR, CORDES, YOUNQLOVE í PEEPLES, P.S.
ATTORNEYS AT LAW EASTSIDE PROFESSIONAL PLAZA, SUrTE A
934 EAST SEVENTH AVENUE P.O. BOX 7846
OLYMPIA, WASHINGTON 98507-7846 FACSIMILE (206) 754-9268 (206)397-7791

1 I am a shop steward for the local union at Green Hill School and am

2 aware that the request to enjoin the use of pepper spray is a concern

3 of all employees at the institution.

4

As the court is no doubt aware, the institution population

5 includes youths from ages 15 to 21 (including several tried and

6 convicted in adult court). All of the residents have been adjudicated

7 as having committed felonies. Green Hill is the maximum security

8 facility in the state's juvenile detention system. The institution

9 population includes youths which the other state institutions have

10 been unable to control because of aggressive or violent behavior.

11

From 1975 to 1985 my assignment at the institution was as a

12 security officer responsible for crisis intervention, control and

13 movement of out-of-control or violent residents. During this period

14 of time pepper spray was not available. We responded to situations

15 which cottage staff could not control. Many times we were unable to

16 talk the resident into de-escalating and physical force was necessary

17 to control the residents, who were often a danger not only to staff,

18 but to other residents and to themselves. It was the rare situation

19 where despite best efforts, either staff or the resident (as well as

20 other residents or property) was not injured, sometimes seriously.

21

Since approximately 1989 the facility has authorized the

22 occasional use of pepper spray when all other means of negotiation

23 with the resident and physical restraint have failed, and only with

24 the specific approval of the institution superintendent. Use of the

25 spray is pursuant to a specific policy (Green Hill Policy #4) and used

26 only by specifically authorized and trained staff. Since 1989 I have

CERTIFIED STATEMENT OF

-2-

KEITH ROSENKRANZ

SWANSON, PARR, COROES, YOUNGLOVE í PEEPLES, P.S.
ATTORNEYS AT LAW EASTSIDE PROFESSIONAL PLAZA, SUITE A
824 EAST SEVENTH AVENUE P.O. BOX 7846
OLYMPIA, WASHINGTON 98507-7846 FACSIMILE (206) 754-9268 (206) 357-7791

had the opportunity to observe the use of pepper spray by security personnel at the facility on several occasions. I have never seen the spray used simply for punishment. The occasions where it has been used have been situations where the only alternative appeared to be a physical altercation between the resident and staff, and use of the spray was necessary to avoid the types of injuries suffered in the past during such confrontations. Although not a justification for its use, residents who in the past had no reservations about challenging staff physically and who in fact felt empowered by being able to generate such a response, are reluctant to continue acting out knowing that pepper spray may be used. Often the warning that the spray is about to be used unless the resident de-escalates is sufficient, and the use of the spray is unnecessary.
The use of pepper spray is effective. Staff appear to be able to obtain immediate control after its use. As soon as control is obtained, the procedures include removing the resident from the spray environment, showering and cleaning up, and a checkup by the institutional medical staff.
Institutional staff feel that pepper spray is preferable to the alternatives of more serious physical injuries, to residents and staff, which were suffered in the past before it was available.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

Signed at

, Washington, on

CERTIFIED STATEMENT OF

-3-

KEITH ROSENKRANZ

SWANSON, PARR, CORD YOUNGLOVE k PEEPLES, P.S.
ATTORNEYS AT LAW EASTSIDE PROFESSIONAL PLAZA, SUITE A
924 EAST SEVENTH AVENUE P.O. BOX 7848
OLYMPIA, WASHINGTON 98507-7846 FACSIMILE (206) 754-9268 (206) 357-7791

 
 Horton v. Williams

V

• • HV

•• •••

•••••

JI-WA-0002-0022

1 The Honorable Robert J. Bryan
2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT TACOMA

JAMES HORTON, JAMES BARNHART,

)

JEROME PAYTON, J.B., through his )

next friend, LORRAINE WEST, and )

K.M., through his mother DEBBIE )

MOORE, on behalf of themselves

)

and all others similarly situated, )

10 Plaintiffs,
11

12

vs.

BOB WILLÍAMS, in his official 13 capacity as Superintendent of
Green Hill School; JEAN SOLIZ, 14 in her official capacity as
Secretary of the Department of 15 Social and Health Services; and
SID SIDOROWICZ, in his official 16 capacity as Assistant Secretary
of the Juvenile Rehabilitation 17 Administration; and the Chehalis
School District,
18

Defendants. 19

CLASS ACTION NO. C94-5428 RJB
DECLARATION OF ROBERT WILLIAMS, JR

20

DECLARATION OF ROBERT WILLIAMS, JR.

21

Robert Williams, Jr. declares

22

1. Experience. I have 15 years experience in the field of

23 corrections (Att. A ) . Since February 1990 I have been 24 superintendent of Green Hill School. In that capacity, I am 25 responsible for the day-to-day management of the institution, 26 which houses 170 to 190 juvenile offenders and has a staff of 200

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

JOINT DECLARATION OF ROBERT WILLIAMS, JR - 1

Oiymp¡a, WA 98504-0124 (206) 459-6558

employees. Prior to coming to Green Hill, I was an associate

superintendent at the Washington State Penitentiary for one year.

Prior to that, I was an administrator in the Wisconsin adult

correctional system from 1979 to 1987. My experience has given me

broad managerial as well as hands-on experience in working with

offenders and in dealing with security issues.

2. Green Hill Demographics. In Washington, there are five

institutions for juveniles offenders. When sentenced, an offender

is assigned to one of the institutions, based on such things as

10 sex, age, nature of the crime, and prior offenses. By policy, the

11 older and most serious offenders are placed at Green Hill — the

12 "end of the line" for juveniles, as some people call it.

13

This year Green Hill's population has fluctuated between 170

14 and 190 residents. The average age upon admission is 17.1, and the

15 average length of stay is 602 days. Commitment may be up to age

16 21. Residents have been committed for a variety of offenses, and

17 most of them are repeat offenders. On November 2, 1994, for

18 example, the breakdown of residents by offense was:

19

Murder 8, Robbery 21, Rape 24, Other Sex Offense 11, Arson 1,

Assault 59, Burglary 24, Motor Vehicle Theft 7; Theft 3;

20

Possession of Stolen Property 5; Malicious Mischief 3; Escape

1, Drug Offense 12, Other Offenses 7.

21

Of that population, 61 percent or 113 out of 186 had been

22

convicted of a "violent" crime, which is a typical percentage for

23

Green Hill, and higher than at the other institutions. Many of

24

the residents were committed initially to Green Hill, though some

25

26

JOINT DECLARATION OF ROBERT WILLIAMS, \

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

Olympia, WA 9850t-0124

2

¢2os>45<MS55»

transferred in from other institutions where they were too

difficult to handle.

3. Pepper Spray Background. When I became superintendent of

Green Hill in February 1989, my immediate challenge was to reduce

the number of assaults. Although the mission at Green Hill School

is to rehabilitate juvenile offenders, as superintendant, my first

concern must be the physical safety of staff and residents.

8

Prior to my arrival, the practice was for as many as 20 staff

from throughout the institution to respond to a dangerous

10 situation. The idea was to physically subdue the resident by

11 overwhelming him. The result was large numbers of injuries (some

12 very serious) to staff and residents alike. A resident probably

13 is more vulnerable because by necessity he is subdued by a number

14 of staff members. Because there was no tracking system, I do not

15 know the numbers of injuries prior to my arrival. The problem

16 created severe morale problems at Green Hill, however. It was so

17 serious that in 1988 the legislature created the crime of

18 "custodial assault" and made it a Class C Felony. RCW 9A.36.100.

19 Then, in 1989, the legislature required that residents who commit

20 such assaults be considered for transfer to an adult prison if

21 they posed too high a safety risk. RCW l3.4O.28O(3)-(4).

22

The problem with the then-existing method to control

23 threatening residents was that the large number of responding

24 staff created an excited environment in which residents felt

25 "challenged" to engage in physical confrontation. Many residents

26 viewed backing down as "loosing face" in the eyes of staff and

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

OtympU, WA 98504-0124

J O I N T DECLARATION OF ROBERT WILLIAMS, JR - 3

¢MXS)459-6358

1

other residents. Pulling responding staff off their normal

assignments, moreover, created a lack of supervision elsewhere in

the institution, leading to further security problems.

Uûæ

the then-existing practice, when a resident was out-of-control or

failing to obey an instruction, staff had no alternative to

physically apprehending the resident in order to gain control.

The result too often was injury to staff or the resident.

4. Use of Pepper Spray. I first authorized the use of

pepper spray at Green Hill in October 1990. By that time, pepper

10 spray was being widely-used by police officers and correctional

11 staff throughout the country. It was viewed as a very effective

12 and safe way to subdue a threatening suspect or inmate without the

13 risk inherent in using physical or deadly force.

14

Since October 1990, I have authorized the use of pepper spray

15 about 320 times, and actual use has occurred about 105 times.

16 That is an average of about two times per month. During that

17 time, there have been about 1,200 residents at Green Hill, and

18 about 80 (six percent) of them have been exposed to pepper spray.

19

I believe that the use of pepper spray has reduced the risk

20 of injury at Green Hill. From September 1989 through October

21 1990, there were 56 staff injuries caused by controlling

22 residents, seven assaults of staff, and 18 injuries to residents.

23 From October 1990, when pepper spray was introduced, through the

24 present time, there have been 58 staff injuries, nine staff

25 assaults, and 11 injuries to residents. These figures demonstrate

26 a dramatic decrease in injuries. This decrease, in my judgment,

ATTORNEY OENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

OlympU, WA 98504-0124

JOINT DECLARATION OF ROBERT WILLIAMS, J R - 4

(206)459-6558

is at least in part due to the fact that staff no longer must

physically engage a resident in order to bring him under control.

Green Hill staff is dedicated to working with residents and

trying to rehabilitate them. Many residents, however, are very

strong and prone to violence, and so staff's paramount concern is

their own physical safety, especially in the two "intensive

management units" (IMU) . That is why few issues are more

8 important to them than being able to use pepper spray, which they

regard as a safe and reliable method of avoiding physical

10 confrontation.

11

Of the four other juvenile institutions in Washington, two do

12 not use pepper spray, and the other two use it less frequently

13 than Green Hill. The reason for this difference, in my judgment,

14 is that Green Hill houses the older, most violent, and most

15 assaultive juveniles in the system.

16

5. New Policy. On October 1, 1994 Green Hill adopted a new

17 pepper spray policy (Att. B) which attempts to address all the

18 concerns raised by plaintiffs.

19

a. Criteria For Use. There are two criteria for using

20 pepper spray on a resident who fails to comply with a staff

21 directive (Att. B at 3) . The first criteria is when staff

22 believes that use of other physical restraint measures to gain

23 compliance, without the use of pepper spray, likely would result

24 in injury to someone. In making this determination, staff must

25 consider the resident's demeanor, his verbal statements, and his

26 history of causing injury.

JOINT DECLARATION OF ROBERT WILLIAMS, \

JR -

ATTORNEY GENERAL OF WASHINOTON

670 Woodland Square Loop SE

FO BOX 40124

Olympia, WA 98504-0124

5

cm45<MS3S«

1

EXAMPLE - John Doe misbehaves by throwing things in the

cottage. Staff tells him to go to his room as a consequence,

2

but he refuses to go. He clenches his fists when staff

approach him to take him to his room. He tells staff he will

3

fight them rather than go voluntarily. Staff cannot talk

John into going voluntarily going to this room.

4

In this example, pepper spray may an appropriate response to

5

maintain institutional security. First, of course, staff

6

directives must be followed by residents. Thus, in the example,

7

when John misbehaved and refused to go to his room, staff must

8

require him to go. Otherwise, staff loses control, and the

9

residents are the ones in charge. Residents must know for certain

10

there are consequences for misobeying directives. Thus, John may

11

go to his room volunarily, or be forced to go with the assistance

12

of staff either by physical apprehension or by use of pepper spay.

13

If John will not go voluntarily, then staff makes an assessment of

14

whether they can physically apprehend him, and take him to his

15

room without someone being injured. The fact that John's fists

16

are clenched, and he is threatening to fight, may lead staff to

17

conclude that injury would result if they attemped to physically

18

apprehend him. Thus, use of pepper spray may be justified.

19

The other criteria for using pepper spray is when a resident

20

in his room engages in disruptive behavior which creates a serious

21

disturbance that threatens institutional security.

22

EXAMPLE - After bedtime, John Doe in his room is banging and

23

yelling. This keeps other residents in the cottage awake,

and incites others to join in. Staff tells John to stop this

24

activity, but his refuses and threatens staff.

25

In this example, if John's disruptive behavior continues for

26

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Squue Loop SB

PO BOX 40124

OiympU, WA 98504-0124

6

¢W6) 459-6558

a long period of time, use of pepper spray may be appropriate.

John's room behavior is creating in the cottage a serious

disturbance that possibly threatens institutional security. This

type of situation is discussed on pages 26 to 28.

These two criteria demonstrate that pepper spray is not used

as punishment, as plaintiffs contend, but instead as a means of of

prevent injury and maintaining institutional security. Moreover,

contrary to plaintiffs' contention, something more than a failure

to follow a staff directive is required; there also must be a

10 threat to institutional security.

11

b. Compliance with Staff Directive. The new policy assures

12 a resident ample opportunity to comply with the staff directive

13 before being sprayed. Generally, there is considerable time after

14 a disturbance starts until the time spray is even considered.

15 Staff must attempt verbal negotiation right up until the time

16 pepper spray actually is used. Moreover, they must wait at least

17 ten minutes from the time security arrives on scene with the

18 spray, except in cases of emergency (Att. B at 3-4). Normally,

19 there will be at least 30 minutes from the time pepper spray in

20 first threatened to the time it actually is used. Our objective

21 is to resolve the issue without having to use pepper spray.

22

Plaintiffs object that residents are sprayed even after they

23 comply with the staff directive. Invariably, near the time spray

24 is used, the resident will cease his threatening behavior, and

25 will assume a defensive posture to avoid the spray. This does not

26 necessarily mean the resident intends to comply voluntarily with

ATTORNEY GENERAL OF WASHINOTON

670 Woodland Square Loop SB

PO BOX 40124

JOINT DECLARATION OF ROBERT WILLIAMS, JR - 7 \

Otymp¡t,WA 98304-0124

the staff directive. Moreover, there have been many instances

when a resident, just before pepper spray is to be used,

verbalizes that he will comply, and then returns to threatening

behavior when the threat of spray is retracted. A impasse is

created. The new policy attempts to resolve this issue by

prohibiting use of spray when the resident indicates compliance,

but allowing its use, without the normal waiting period, if the

resident soon resumes his threatening and non-compliant behavior

(Att. B at 4 ) .

10

About two times in the past the name of a resident was placed

11 on a spray canister. The purpose simply was to warn the resident

12 that continued assaultive behavior may result in spraying, in

13 hopes of deterring that behavior in the future so that spray would

14 not be needed. This practice has not occurred in a long time, and

15 it is not our intent to use it in the future.

16

c. Pre-authorization. Plaintiffs complain that some sprays

17 are "pre-authorized" by the superintendent. The former policy

18 required the superintendent to approve each use. In practice,

19 however, I sometimes pre-authorized use on a resident who had

20 previously assaulted staff; in such cases, staff could use pepper

21 spray if the resident again engaged in the same threatening

22 behavior, without the need to contact me and explain the specific

23 facts. The new policy expressly prohibits pre-authorization (Att.

24 B at 2) . In each case, staff requesting authorization must

25 explain to me the specific facts of the case. I am almost always

26 reachable in my office or at home, or by car phone or beeper, and

JOINT DECLARATION OF ROBERT WILLIAMS, JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

Olympú,WA 98504-0124

8

(206)459-6558

I will designate someone to act in my place on those limited times

when I am not reachable. I consider the use of pepper spray an

extremely serious matter, and I deny ever making any jokes or

light-hearted comments regarding its use, as alleged in

plaintiffs' submissions.

d. Administrative Review. Plaintiffs complain there is a

lack of administrative review of a pepper spray incident. In the

8 past, formal reviews were not always conducted. The new policy

requires a supervisory review of each incident, which then must be

10 reviewed by the superintendent, who is required to initiate a

11 "Major Incident Review" if there appears to be a injury or

12 procedural violation (Att. B at 6 ) . If staff misuses pepper

13 spray, I will consider whether disciplinary action is appropriate,

14 and whether changes in the policy are necessary to prevent future

15 misuse.

16

e. Training. Plaintiffs complain there is a lack of staff

17 training. Prior to the filing of this lawsuit, all staff

18 authorized to use pepper spray were required to complete a

19 training course. (At Green Hill, there is a separate "counseling"

20 staff, and a separate "security" staff, and it is the former which

21 is called in to administer the sprayings.) The training course

22 generally lasts about a half-day, and is taught by local law

23 enforcement officials who are experts on the subject. The course

24 includes such things on how properly to use pepper spray and how

25 afterwards to "de-contaminate" the sprayed resident. Part of the

26 training includes staff themselves being sprayed; this is very

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

Olympii, WA 98504-0124

9

(206)459-6558

1 important because it gives staff first-hand experience in the

2 effectiveness of the spray, and helps them to empathize with a

3 person who has been sprayed.

4

The new policy makes clear that only trained staff are

5 allowed to use pepper spray (Att. B at 4 ) . The annual training

6 now will be expanded to cover six specific components (Att. B at

7 7).

8

6. De-escalation Skills. One of plaintiffs' main complaints

9 is that staff lacks verbal de-escalation skills to avoid the need

10 to spray. In response, under the new policy, such training is

11 made part of the annual pepper spray training (Att B. at 7). An

12 outside expert will be hired to make the presentation. An

13 emphasis on de-escalation skills was not lacking in the past,

14 however. First, staff must have a college degree in a social

15 science or criminology field, and are hired in part on the basis

16 of their ability to effectively communicate. Staff must attend

17 the week-long Criminal Justice Training Academy, where the

18 curriculum includes communication skills and techniques on

19 verbally defusing dangerous situations. They also must complete

20 day-long Nonviolent Crisis Intervention (CPI) training, which is

21 a nationally-recognized program (Att. C ) .

22

Lastly, in staff meetings and in informal discussion between

23 staff, there is an ongoing effort to improve abilities to

24 communicate both with residents generally and with certain

25 residents in particular. Establishing rapport with residents is

26 a primary goal of every counselor. Residents daily receive input

JOINT DECLARATION OF ROBERT WILLIAMS, \

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

Olympit,WA 985OMM24

10

<2O<S)459-<S55í

from counselors on the need to resolve their problems without

resorting to violent or threatening behavior. Indeed, staff

continually calm angry residents without even threatening use of

pepper spray. This is proven by the fact only six percent of our

residents are sprayed, and very few of them are sprayed more than

once. It also is proven by the fact that in cases where I have

approved the use of pepper spray, two-thirds of the time staff has

8 successfully resolved the problem without having to use spray. I

think the record shows that staff in fact is very adept at

10 defusing angry residents, many of whom have a demonstrated

11 propensity towards violence.

12

7. Spray Concentration. Formerly, staff used either a 5% or

13 a 10% spray concentration. Plaintiffs object that there is no

14 criteria for whether the 5% or 10% spray concentration is used in

15 a particular situation. According to the literature, a single

16 application of the 10% is not stronger, or at least not

17 perceptibly stronger, than the 5%. Neverthless, I now have

18 directed that only the 5% be used by staff. This policy will

19 remain in effect unless it is later shown that the 5% is not

20 effective in bringing the resident under control, in which case

21 the policy will be re-examined.

22

8. Mental Health Services. Plaintiffs complain that mental

23 health services are not available to alleviate the need to use

24 pepper spray. This simply is not true.

25

When a resident enters Green Hill, he spends 60 days in an

26 "intake" unit during which he receives a complete assessment.

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY OENERAL OF WASHDíOTON

670 Woodland Square Loop SE

PO BOX 40124

Oiymp¡a, WA 98504-0124

11

(206)459-6558

This assessment includes psychological testing, and a

psychological evaluation which is reviewed by a staff

psychologist. Each resident is assigned a counselor. At least

one formal one-hour counseling session is held each week, and the

counselor has daily contact with the resident. The counselor is

required to address any mental health concerns, personal problems,

and day-to-day living difficulties of the resident. A counselor

generally has only four residents on his or her caseload. Also

available at Green Hill is a contracted psychiatrist, who

10 administers medication and consults with residents who are

11 experiencing mental health problems,

12

Green Hill offers a variety of programs to enhance the mental

13 health of residents (Att. D at 6-19). For example, residents are

14 required to participate in group therapy for such things as

15 positive alternatives, anger management, and victim awareness.

16 There are special groups for sex offenders and for residents with

17 drug and alcohol problems. Green Hill uses state-of-the art

18 "biofeedback" technology, which measures the bodily responses of

19 residents to help them alter their responses in a socially-

20 desirable direction. Green Hill also has the "Help-Stress"

21 computer-assisted counseling program.

22

Furthermore, prior to this lawsuit being filed, I instituted

23 plans for a new day treatment mental health unit at Green Hill.

24 Staffed by three of our best counselors, this unit will provide

25 intensive treatment for 15 to 20 residents with the most serious

26 mental health problems for eight hours each day during the week.

JOINT DECLARATION OF ROBERT WILLIAMS, \

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodlind Square Loop SB

PO BOX 40124

Otympii, WA 98504-0124

12

(206)45<MS558

Operated out of the hospital building, this unit should be

operational in December.

Plaintiffs complain that mental health services are not

available before and after the use of pepper spray. When staff is

considering the need to use pepper spray, they must make every

attempt to talk the resident out of his threatening behavior.

Clearly, at that point, the focus must be on alleviating an

8 immediate security crisis, and not on dealing with long-term

mental health issues. If pepper spray is used, staff is trained to

10 assist the resident in a caring manner. The incident then is

11 taken up the next day in counseling. The counselor reviews with

12 the resident what caused the incident and ways to control his

13 behavior in the future. The counseling is "offense specific";

14 that is, the pepper spray incident is reviewed in context of the

15 behavior that caused the resident to be committed to Green Hill in

16 the first place. The behavior generally stems from a lack of

17 impulse control, which is the root problem to be addressed.

18

9. Behavior Control at Green Hill. Plaintiffs imply that

19 use of pepper spray is the primary method of controlling and

20 punishing residents. This is simply not the case.

21

Green Hill operates on the "Today-Tomorrow" program under

22 which each resident has a individualized behavior contract,

23 spelling out expectations for the resident. These include such

24 things as attending school, keeping the room clean, participating

25 in groups, and having positive peer and staff interactions. Each

26 day the resident receives points for meeting expectations. With

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

OlympU, WA 98504-0124

13

(206)459-6558

1 points the resident advances in "levels"; that is, he moves to a

2 living situation with greater privileges, such as television and

3 movies, phone calls, extra recreation, weight-lifting, later

4 bedtimes, and employment opportunity. The highest level is the

5 "honor program" where residents have the opportunity for off-

6 campus activity and for eventual transfer to a group home in the

7 community (Att. D at 8-9) . The goal of the "Today-Tomorrow"

8 program is providing daily incentives for residents to obey the

9 rules and to participate in programs, which are the keys to

10 rehabilitation. The program is effective because good behavior is

11 encouraged and reinforced by continually rewarding it. This is

12 especially important for the many Green Hill residents who are

13 serving long sentences and need short-term incentives for good

14 behavior. Granting privileges is the centerpiece of Green Hill's

15 strategy to control the behavior of residents.

16

In addition, a misbehaving resident may be confined in their

17 room for up to one hour, or beyond one hour after an

18 administrative review for up to five hours. The theory of room

19 confinement is to sanction misbehavior, and in some cases to

20 remove temporarily a disruptive resident from the general

21 population. All confinement is in a resident's own room, as there

22 are no "isolation" cells at Green Hill.

23

Residents who continually misbehave may be assigned to one of

24 two cottages designated as "intensive management units" (IMU)

25 (Att. D at 10-11). In these units, residents when not in school

26 or at recreation are involved in special programming. The staff

JOINT

DECLARATION OF ROBERT WILLIAMS, \

JR -

ATTORNEY GENERAL OF WASHINOTON

670 Woodland Square Loop SB

PO BOX 40124

Olymp¡*,WA 98504-0124

14

<2O
 4J9-«58

1.

ratio is higher. The idea is not to "punish" the resident, but

rather to provide a more structured program that hopefully will

change his behavior and attitudes, so that he can return to the

general population.

The fact is that many residents enter Green Hill with a

propensity towards violence. They often are angry and accustomed

to resisting and lashing out at authority. Staff are frequently

confronted by angry residents who would rather not do what they

are asked. Almost all situations are resolved through discussion

10 and through sanctions such as room confinement or taking away

11 privileges. The need to use pepper spray to maintain security

12 actually is very infrequent. Our objective always is to avoid the

13 need to use pepper spray.

14

10. Hostile Environment. Plaintiffs assert that the use of

15 pepper spray creates a violent and non-therapeutic environment.

16 I disagree.

17

In the perfect world, of course, taking physical control of

18 residents would not be necessary because they would do what is

19 asked of them and would never become threatening. In the real

20 world, however, this unfortunately is not the case. Thus, an

21 institution has the choice of either overtaking the resident with

22 physical force or by using a substance like pepper spray.

23

The most destructive features of an institution can be the

24 threat of physical injury. It promotes an "us verses them"

25 mentality which is very counter-productive to rehabilitation. It

2 6 causes "burn-out" which leads to undesirable high turnover of

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

Olympia,WA 98504-0124

15

(206)459-65í8

staff. An actual injury destroys staff morale, and may excite

further dangerous behavior by residents. By greatly reducing the

risk of injury, pepper spray has helped in creating a more

positive environment at Green Hill.

Using physical force that involves violent bodily contact,

moreover, breeds extreme hostility between the combatants.

Spraying, by comparison, is less personalized, and therefore less

8 likely to engender hostility. Being sprayed, unlike being

physically subdued, does not result is a resident's "loss of

10 face".

Very few residents are sprayed more than once. This

11 shows that spraying, rather than breeding violence, actually

12 causes residents to behave better; we simply are not reinforcing

13 pathologies. While spray is used only to maintain security, a by-

14 product is that the threat of spray re-enforces the notion that

15 residents must comply with the structure and rules at Green Hill.

16 For many residents, this is the first time in their lives living

17 under those expectations. Learning to comply with rules is a

18 critical component of rehabilitation, because that, of course, is

19 what society demands.

20

Finally, there simply is no evidence supporting plaintiffs'

21 contention that spraying has produced a more hostile environment

22 at Green Hill. In fact, since 1990 when spray was introduced,

23 assaults are down. Many more residents are behaving to the point

24 they can be returned to the community to serve out their

25 sentences. We have expanded our programming (Att. D ) , and have

2 6 instituted new opportunities to work outside the institution.

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINOTON

670 Woodland Square Loop SB

PO BOX 40124

Otymp¡a, WA 985Ot-0124

16

(m45SMS558

Green Hill's environment in the last four years, in my opinion,

has become decidedly more positive, even though society is sending

us generally more hardened offenders.

11. Previous Sprays. The policy is for all pepper spray

incidents to be video-taped. The reason for this requirement is

that the camera inhibits acting-out behavior by residents, and

thereby decreases the need to spray. It also provides a means to

8 review the conduct of staff to assure that spraying in carried out

in accordance with policy.

10

Plaintiffs' experts reviewed 27 tapes, and concluded that in

11 most of the cases use of pepper spray was not necessary. I do not

12 agree. Since plaintiffs' experts have worked very little inside

13 a facility housing violent juvenile offenders, I suspect they may

14 not fully appreciate the security needs of an institution like

15 Green Hill. In addition, many tapes do not show all events

16 leading up to the spraying, and so the conclusions of plaintiffs'

17 experts may not be based on full information. Finally, as stated

18 above, many times, just before a spraying, residents cease their

19 threatening behavior, and assume a defensive posture. This may

20 lead plaintiffs' experts wrongfully to conclude that spray is not

21 needed because the resident no longer is a threat.

22

Whether to use spray is a difficult judgment call which

23 depends on the circumstances of a particular case. With two

24 exceptions, past sprays, in my opinion, were based are a

25 reasonable believe they were needed to maintain security. In two

26 cases, residents improperly were sprayed while handcuffed; this is

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

OlympU,WA 98504-0124

17

ffo¢)459-6558

1 contrary to policy, and should never happen because a handcuffed

2 resident can be controlled without the need to use pepper spray.

3 In one of these cases, the offending staff was demoted and then

4 retired two months later. In the other case, the offending staff

5 was reprimanded. It is my firm policy to take disciplinary action

6 against any staff who violate the policy. At a recent training,

7 the associate superintendent reviewed the new policy line-by-line

8 with staff, and there was an opportunity for discussion. Staff,

9 therefore, is aware of the new requirements, and there is no

10 excuse for not following them.

11

Plaintiffs submit declarations from seven residents giving

12 their versions of being sprayed. Except for the one involving

13 Cyrus Plush, I located the incident reports (Att. E ) . Except in

14 the case of Jeremy Bakke, staff was reasonably justified in using

15 pepper spray. As noted above, since Mr. Bakke was handcuffed, his

16 spraying was not justified, and the staff was reprimanded for his

17 actions.

18

12. Post-Sprav Practices. The practice is to get a resident

19 to the shower within five or ten minutes of being sprayed. In

20 some cases, it takes longer because something unusual has happened

21 scene requiring staff to remain at the scene, or because the

22 resident is agitated and cannot be safely transported. The

23 practice is to guide the resident along as he walks to the shower

24 to offer him comfort and to prevent him from falling. I am aware

25 of only one case where a resident fell while going to the shower.

26

JOINT DECLARATION OF ROBERT WILLIAMS, JR -

ATTORNEY GENERAL OF WASHINGTON
670 Woodland Square Loop SB
PO BOX 40124
Otympi», WA 985Ot-0124
18

In that case, the resident fell when he tried to skip down two

stairs. He was immediately helped up. No injury was reported.

During a spray, uninvolved residents are sent to their rooms

so they are not impacted by the spray. Following a spray, the

impacted area is "de-contaminated" by turning on the exhaust fans

to draw out the air, or by opening the windows. If the spray

occurs in a room, the bedding in changed. Generally, an odor

8 completely dissipates within not more than 30 minutes.

13. Sprays Under New Policy. The new policy was adopted on

10 October 1, 1994. Since that date, there have been two incidents,

11 involving a total of three residents, when pepper spray was used.

12

a. First Incident. The first incident occured November 13 on

13 Joshua Howell. It started about 9:50 p.m. in Poplar Cottage (IMü)

14 when Howell received a "time-out" for banging on the office

15 window, and calling a staff "cocksucker". Staff tried talking to

16 Howell, but he refused either to talk or to go to his room.

17 Instead, he began lining up chairs against the two doors leading

18 out to the floor in a barricade fashion. Staff removed the

19 chairs, and Howell ran into the restroom. Security was called.

20 When security arrived, Howell and two other residents (Kevin Moore

21 and Brian Emmons) were in the restroom, refusing to leave. The

22 restroom was being flooded with five or six inches of water that

23 had begun running under the door. Howell was located by security

24 standing on top of the commode, flooding the floor by pushing down

25 excessively on the commode handle. When staff attempted to

26 escort the residents to their room, they refused to go. Emmons

JOINT DECLARATION OF ROBERT WILLIAMS, JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

Otymp¡a, WA 98504-0124

19

(206)45SHS558

had to be pulled out and taken to the ground. Moore followed him

out. Howell also refused to go to his room. He started swinging

at staff, and picked up a chair in the dayroom and tried to throw

it. Staff eventually cornered Howell, and tried unsuccessfully to

handcuff him. He eventually was pulled into his room. While this

was happening, Emmons also started fighting with staff with use of

a plexiglass shield that staff had dropped and he had picked up.

Moore also started swinging at staff. Staff eventually moved the

three residents to their rooms.

10

Prior to that point, staff had not requested from me

11 authorization to spray. Staff had responded to the incident

12 thinking Howell could be controlled without pepper spray. When

13 they did respond, the sitation quickly got out of control.

14

At 10:30 p.m. Moore again was let out of his room to use the

15 restroom, but instead of using the restroom, he started drawing

16 graffiti on the walls, and running to the rooms of other

17 residents. He eventually ran to Howell's door, and refused to

18 leave. Security again had to be called. At that point, I was

19 called, and authorized the use of spray on the acting-out

20 residents based on the current situation and on the earlier

21 assaults. Staff did not use spray on Moore because they were able

22 to escort him was escorted back to his room. In his room, he

23 started banging and yelling. When warned he might be sprayed, he

24 stopped.

25

Howell, however, continued to furiously pound and kick his

26 door. He too was warned that he would be pepper sprayed if he

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodlind Square Loop SB

PO BOX 40124

Olympi», WA 98504-0124

20

¢2O
45SMS558

continued doing so. When he chose to continue, he was sprayed.

This spray had little effect on him because his had wrapped his

face in bedding. When about one minute later he resumed his

pounding, he was again sprayed.

The spraying was justified under the new policy. Howell's

behavior in his cell was inciting four or five other residents to

yell and bang in their cells. It is possible to kick open a door,

in which case staff might have faced the same dangerous situation

that had happened earlier in the evening. Moreover, in light of

10 Howell's behavior earlier in the evening, staff would have been at

11 risk if they had tried to move him. Finally, it was nearing

12 midnight, and Howell's behavior was keeping the cottage in an

13 uproar, was diverting limited nighttime staff from their regular

14 duties, and was preventing other residents from sleeping on a

15 school night when they had to get up early the next morning. This

16 type of situation is intolerable, and cannot be allowed to

17 continue indefinately. Prior to the spraying, Howell was given

18 every opportunity to conform his behavior.

19

Furthermore, staff certainly would have been justified in

20 using pepper spray on the three residents when they were in the

21 flooded restroom. Their failure to use it necessitated a

22 dangerous physical confrontation that easily could have resulted

23 in injury. Fortunately, staff reported only soreness and bruises,

24 and there were no serious injury to the residents. This incident

25 demonstrates the type of situation in which pepper spray is a far

26 better alternative than physical confrontation.

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

OiympU, WA 985OM>I24

21

¢2O6)459-4558

l_

b. Second Incident. The second incident occurred on

November 17, 1994 on Jason Kennedy and Chris Walters. It started

after bedtime, at 10:10 p.m., in Fir Cottage when security was

called because three residents were pounding and banging on their

doors. At 10:45 Kennedy was let out of his room to use the

restroom. While out, he filled a water jug, and sprayed it over

the office counter. He also turned over a chair in the dayroom,

and with encouragement from another resident, attempted to throw

it through the office window. He encouraged other residents to

10 join him, and then ran to his room and closed the door. Kennedy

11 and several other residents kept periodically pounding on their

12 doors.

13

At 12:04 a.m. Walters was let out of his room to use the

14 restroom. He refused to go back into his room. Staff attempted

15 to talk him into going. This refusal continued for the next 90

16 minutes, during which time Walters paced the floor, and Kennedy

17 and others kept periodically banging on their doors.

18

At 1:15 staff decided this situation could no longer

19 continue. I was called, and authorized the use of pepper spray on

20 both Kennedy and Walters. Warnings were given. At 1:30 staff

21 confronted Kennedy. Residents began yelling encouragement for him

22 not to go back to his room. Walters may have been influenced by

23 this yelling not to return to his room. Walters did not return to

24 his room, and told staff that they would have to physically take

25 him. At that point, Walters was sprayed. Kennedy, meanwhile,

26 continued banging on his door, and was getting at least three

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

JOINT DECLARATION OF ROBERT WILLIAMS, JR - 22

OtympU,WA 98504-0124 (206)459-6558

..- __L.

other residents to join in. After spraying Walters, staff entered

Kennedy's room. He cursed and threatened them, at which point

Kennedy also was sprayed. The cottage then became quiet.

I believe these sprays were justified. Between midnight and

1:45 Kennedy had refused instructions to return to his room. His

actions resulted in a situation that caused other residents to

bang their doors, making it impossible for other residents, as

8 normal, to be let out of their room to use the restroom. When

staff went to take him to his room, he refused to go voluntarily,

10 and made comments indicating he would resist. This threat,

11 coupled with the fact Kennedy was convicted of assault and

12 recently had assaulted another resident, led staff reasonably to

13 conclude that there would be a fight if they tried to apprehend

14 him.

15

Kennedy, on the other hand, had been banging on his door for

16 90 minutes, and inciting others to do the same. He refused staff

17 directives to stop. His pounding was keeping up the entire 16-

18 member cottage on a school night. When staff entered his room, he

19 cursed and threatened them. Earlier in the evening he had engaged

20 in very threatening behavior.

21

The situation that night in Fir Cottage was unacceptable for

22 institutional security, and could not be allowed to continue

23 indefinately. I simply cannot tolerate a situation where a

24 resident engages in threatening and non-compliant behavior that

25 keeps an entire cottage awake and in turmoil in the middle of the

26 night. Walters and Kennedy were given very ample opportunity to

JOINT DECLARATION OF ROBERT WILLIAMS, JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

Olymp¡a, WA 985OM)I24

23

(2O6)459~65î8

_i..

1 comply. Pepper spray absolutely was needed to restore security 2 and to prevent injury. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

JOINT DECLARATION OF ROBERT WILLIAMS,

JR -

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SB

PO BOX 40124

Otympia,WA 98504-0124

24

(206)459-6558

1

Moving a disruptive resident to a room away from other

2 residents is not an option. First, a disruptive resident, like

3 Kennedy, may be dangerous to move. Moreover, all rooms at Green

4 Hill are in a cottage; there are no isolation rooms. Nor is

5 creating isolation rooms an option. I believe such rooms are

6 counter-therapeutic; the theory at Green Hill is to work with

7 residents, not isolate them. Futhermore, moving any resident who

8 acts out at night to isolation, would encourage some residents to

9 act out just for the attention, and would burden the short-handed

10 night-time staff. Finally, if we made going to isolation at night

11 an option, there sometimes would not be enough rooms to handle the

12 demand. In short, having isolation rooms is not an option, and

13 residents must be expected to behave at night in their own rooms.

14

Conclusion. Based on the foregoing, it is my professional

15 opinion that the use of pepper spray at Green Hill School,

16 pursuant to the new policy, is necessary to prevent physical

17 injuries and maintain security, is safe and humane, and enhances

18 rather harms the rehabilitative environment by reducing the risk

19 of injury.

20

I CERTIFY UNDER PENALTY OF PURJURY THAT I HAVE READ THE

FOREGOING DECLARATION, AND TO THE BEST OF MY KNOWLEDGE IT IS

21

TRUE AND CORRECT.

DATED this ¿?/V7 day of November, 1994. 23

24

25

RO'BERT WIÍLIAM, JR.

26

ATTORNEY GENERAL OF WASHINGTON

670 Woodland Square Loop SE

PO BOX 40124

OlympU, WA 98504-0124

JOINT DECLARATION OF ROBERT WILLIAMS, JR - 24

(206)459-«58

\

 
 Horton v. Williams

JI-WA-0002-0023
1
The Honorable Robert J. Bryan
2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT TACOMA

6

JAMES HORTON, JAMES BARNHART,

)

7 JEROME PAYTON, J.B., through his )

next friend, LORRAINE WEST, and )

8 K.M., through his mother DEBBIE )

MOORE, on behalf of themselves

)

9 and all others similarly situated, )

10

Plaintiffs,

CLASS ACTION NO. C94-5428 RJB
JOINT DECLARATION OF CRAIG D. APPERSON AND JOSEPH DUBEY, M.D.

11

vs.

12 BOB WILLIAMS, in his official capacity as Superintendent of
13 Green Hill School; JEAN SOLIZ, in her official capacity as
14 Secretary of the Department of Social and Health Services; and
15 SID SIDOROWICZ, in his official capacity as Assistant Secretary
16 of the Juvenile Rehabilitation Administration; and the Chehalis
17 School District,

18

Defendants.

19 Craig D. Apperson and Joseph Dubey, M.D., declare:
20 1. I (Craig D. Apperson), am the full-time psychologist at
21 Green Hill School. I have held this position for ten years. In
22
this capacity, I direct the clinical assessment and treatment plan 23
for all juvenile offenders placed at Green Hill School. I also 24
provide treatment, supervision, and consultation with counselors, 25
and stay involved with the most difficult cases. A copy of my 26

JOINT DECLARATION OF CRAIG.D. APPERSON AND JOSEPH DUBEY, M.D. - 1

ATTORNEY GENERAL OF WASHINOTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98304-0124 (206) 459-6558

resume is attached. My ten years experience has given me exposure

to hundreds of juvenile offenders.

I (Joseph Dubey, M.D.) have been the consulting psychiatrist

at Green Hill School for 18 years. A copy of my resume is

attached. I spend one day per week at Green Hill, and one day per

week at another juvenile institution, Maple Lane School. My

duties include prescribing medications, training staff, consulting

on cases with staff, and counseling residents who are in some type

of crisis.

10

Our experience have given us exposure to many hundreds of

11 juvenile offenders. Our professional opinions below are based on

12 a review of the literature and on our years of personal experience

13 in working with Green Hill residents and staff.

14

2. We agree with plaintiffs' experts that pepper spray

15 should not be used as "punishment" for either misbehavior or not

16 following a staff directive. Deliberate infliction of physical

17 pain or discomfort is never an appropriate consequence for

18 disobeying rules. For that reason, pepper spray should be used

19 only to maintain security and protect the physical safety of staff

20 and residents, which is the first concern of an institution. That

21 is the intent of the Green Hill pepper spray policy.

22

3. It is first important to understand who is being sprayed.

23 Nearly all sprays are on residents of the "intensive management

24 units" (IMU). Green Hill has two IMUs housing about 16 residents

25 each. Nearly all IMU residents have been convicted of serious,

26 violent crime. They have been placed in an IMU because they were

JOINT DECLARATION OF CRAIG-D. APPERSON

AND JOSEPH DUBEY, M.D. - 2

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
oiyJu ¿

not able to obey the rules in the general population, and found

either seriously assaultive or escape risks. IMU residents,

without a doubt, are some of the most violent juveniles in

Washington. One purpose of the IMU is to protect the general

population by providing a more secure living environment for IMU

residents.

Many IMU residents are "predatory thrill-seekers" who take

pride in challenging authority to earn the respect of their peers.

Attribution theory research shows that serious offenders often fit

10 this category. They are extremely hard to work with because they

11 derive pleasure from violating rules and acting out violently.

12 They generally have anti-social personalities, and feel no regret

13 for their actions or empathy for their victims. Most sprayed

14 residents fit into this category.

15

4. Given Green Hill's population, it should be expected that

16 a certain number of residents will want to fight staff. (There is

17 a need to use pepper spray on about six percent of the

18 population.) A predatory thrill-seeker derives great pleasure

19 from this activity. "Taking on" a staff member, especially in

2 0 front of peers, is a source of ego gratification and false pride.

21 (Thus, stronger staff sometimes are targeted because they are a

22 bigger "trophy".) This problem is exacerbated by the fact that,

23 in institution, residents are forced to live by rules and to obey

24 instructions from staff. Staff must enforce rules, or else the

25 residents are in charge, and chaos follows. What this means is

26 that residents, who are resistant to authority, build up very

JOINT DECLARATION OF CRAIG' D. APPERSON

AND JOSEPH DUBEY, M . D . - 3

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
Oiymju WA SLoi24 (206)459-6558

personal and vengeful animosities towards staff, culminating in

threatening and assaultive behavior. Some residents prefer

attacking staff rather than attacking other residents, because

staff are required to be measured in their response and cannot

later extract revenge.

5. Thus, in an institution for violent offenders, like Green

Hill, there will be times when residents threaten staff. It is

simply a fact of life. When this happens, and a resident cannot

be "talked down", staff can respond in one of two ways. First,

10 they can physically subdue the resident by overwhelming him. This

11 generally involves several staff members wrestling him to the

12 ground, and then handcuffing him. Second, they can use an agent

13 like pepper spray, which will incapacitate the resident without

14 the need for physical force.

15

The advantage of pepper spray, of course, is that it prevents

16 injuries risked caused by physical confrontation. During a fight,

17 staff is often injured, and in fact a number a serious injuries

18 have occurred during our time at Green Hill. In addition, there

19 also are many documented cases nationally of inmates who suffer

20 serious injuries, including head injuries, when they are subdued

21 on the ground by several officers. (Longitudinal studies show

22 that such head injuries increase the risk of future violence by

23 the injured person.) There is no doubt that pepper spray has

24 reduced the number of injuries occurring at Green Hill and other

25 correction institutions. That is why so many police and

26 correctional officers now use it.

JOINT DECLARATION OF CRAIG- D. APPERSON AND JOSEPH DUBEY, M.D. - 4

ATTORNEY GENERAL OF WASHINGTON 670 WoodUnd Square Loop SB
y^ a¿6)45<M«58

6. Plaintiffs' expert, Mr. DeMuro, says that pepper spray "reinforces feelings of anger, alienation, and hostility.11 Spraying, however, does not reinforce these feelings as much as being taken down physically by staff (which is the alternative

response to an assaultive situation). Physical combat is very

personal, and therefore engenders strong feelings. Moreover, it often results in an injury which can cause intense and lingering 8 hostility and disability. By contrast, the use of pepper spray

does not involve physical contact, and the effects always are

10 short-lived.

11

There is no doubt that most residents are angry after being

12 sprayed. Most of their anger, though, actually is frustration

13 that staff directives can be enforced, and that they are deprived

14 of the opportunity to fight staff members. Moreover, residents

15 often are angry when they receive any type of negative 16 consequence, whether it be time-out, loss of privileges, or pepper 17 spray. This anger could be avoided by letting residents do

18 whatever they want, but that simply is not an acceptable

19 alternative.

20

7. Plaintiffs' expert, Dr. Milan, says that "spray may well

21 exacerbate behavioral problems ... by providing a vehicle for

22 youths to demonstrate toughness and defiance of staff in order to 23 enhance their reputation among their peers." No doubt some

24 residents view being sprayed that way. We believe many more

25 residents view fighting with staff that way, however. With

26 fighting, residents have the opportunity to go on the offensive

JOINT DECLARATION OF CRAIG D. APPERSON

AND JOSEPH DUBEY, M.D. - 5

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
Otym!¦° Ç J SSL ¿

and to inflict injury on a staff member. They can "grandstand" to

their peers by resisting staff and fighting back. With pepper

spray, however, there is no fighting back, and no "getting in your

licks." There is little or no glory in being sprayed. This

belief is supported by the fact that few residents are sprayed

more than once.

9. Mr. DeMuro's extreme bias in favor of permissiveness and

against control is revealed when he objects, not only to pepper

spray, but also to the use of "room confinement" and IMUs. These

10 two practices are standard operating procedures in juvenile and

11 adult institutions throughout the country. Green Hill relies on

12 short-term room confinement as a sanction for misbehaving (along

13 with loss of privileges). Mr. DeMuro's contention that, because

14 residents resist it, even room confinement is inappropriate, is

15 simply untenable. There must be a sanction for violating rules,

16 or else all control breaks down. Furthermore, IMUs are an

17 accepted means of separating residents with behavior problems who

18 cannot function in the general population and who need special

19 programming. The IMUs do not cause residents to become out-of-

20 control; the residents are placed there precisely because of their

21 out-of-control background.

22

It also should be recognized that, unlike a adult prison,

23 Green Hill does not deal with assaultive residents by placing them

24 in isolation or prolonged confinement. The theory is that

25 isolation, while it offers maximum protection, is not therapeutic

26

J O I N T DECLARATION OF CRAIG D . APPERSON

AND JOSEPH DUBEY, M . D . - 6

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
oiympT w ? 985oL<H24 (2¿6)459-6558

for the resident. This shows Green Hill's commitment to work

with residents.

9. Dr. Milan contends use of pepper spray "poisons the

environment and undermines efforts at rehabilitative treatment."

That sweeping conclusion cannot credibly be reached by someone who

has never been to Green Hill, and clearly is not familiar with its

rehabilitative programs. In fact, the exact opposite is true.

Although the only justification for using pepper spray is

institutional security and prevention of injury, a by-product has

10 been a generally a better — not worse — treatment environment.

11 As stated, there is less violence because residents have less

12 incentive to assault staff. This means that staff are far less

13 apprehensive in working with residents, and that an "us versus

14 them" staff mentality dissipates. Furthermore, assaulting staff

15 often is a way for residents to avoid dealing with their feelings

16 and problems. If assaulting staff is not an option for a resident

17 because of the possibility of being sprayed, then that resident is

18 more likely to deal with his problems in counseling.

19

10. Plaintiffs' experts paint a badly inaccurate picture of

20 an institution relying on pepper spray to deal with residents

21 having behavior problems. In fact, there are many mental health

22 programs available in the IMUs where most of the spraying is

23 necessary. Residents have an assigned counselor who is available

24 to them every day. They may make an appointment to meet with the

25 staff psychiatrist who comes weekly, and I am available for

26 consultation on difficult cases. A therapist from Lewis County

J O I N T DECLARATION OF CRAIG D . APPERSON

AND JOSEPH DUBEY, M . D . - 7

v

ATTORNEY GENERAL OF WASHINGTON
670 Woodland Square Loop SB PCí 1VYV 4Í111A
Olyw¦? ™A 98504-0124 (2¿6)459-6558

1 Mental Health has started a group for residents who were abused.

2 A Christian-based group is starting. Many residents are involved

3 in the "Cage is Your Rage" video and workbook program. Developed

4 by the American Correctional Association (ACA), it focuses on

5 dealing with institutional life. There are required groups on

6 such topics as anger management and victim awareness. A Special

7 Needs Program, based ACA standards, will open next month to

8 provide an intensive eight-hour treatment for residents having the

9 most serious mental health problems. There is a bio-feedback

10 program which measures bodily responses to help residents change

11 their reaction to stressful situations to prevent destructive

12 behavior. Most IMU residents attend a certified high school.

13 Staff is required to take a Crisis Prevention Intervention course.

14 Indeed, IMU residents receive more intensive programming than

15 other residents, with the hope their behavior will improve so they

16 can safely return to the general population. In fact, such

17 improvements often do occur.

18

Finally, Green Hill residents all have been convicted of

19 serious crimes. They generally are the oldest and most violent

20 offenders in the system. Most have problems accepting authority

21 and lack many social skills. They do not like being incarcerated.

22 The fact that about 94 percent of the residents are not sprayed

23 indicates that staff is skilled in managing their behavior.

24

13. In conclusion, it is our professional opinions that

25 threatening residents must be restrained. Whenever possible,

26 staff should resolve the problem through talk and negotiation.

JOINT DECLARATION OF CRAIG-D. APPERSON

AND JOSEPH DUBEY, M . D . - 8

`

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE
Olym*° ¾ J S U
(206) 45<M¡558

1 When this fails, use of pepper spray is a much better restraint

2 method than the alternative of asserting physical control. It

3 prevents injury to both staff and resident. Because of fewer

4 threats and assaults, there is a better treatment environment.

5

WE CERTIFY UNDER PENALTY OF PERJURY THAT WE HAVE READ THE

FOREGOING AND, TO THE BEST OF OUR KNOWLEDGE, IT IS TRUE AND

6

CORRECT.

7

DATED this Zl ^** day of November, 1994.

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CRAIG D. AP¾ERSON
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JOSEPH DUBEY, M.D.

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JOINT DECLARATION OF CRAIG D. APPERSON

AND JOSEPH DUBEY, M.D. - 9

`

\

ATTORNEY OENERAL OF WASHINGTON 670 Woodland Square Loop SE
oiymS ™A sSLoiw
(206)459^58

..X

1 When this fails, use of pepper spray is a much better restraint

2 method than the alternative of asserting physical control. It

3 prevents injury to both staff and resident. Because of fewer

4 threats and assaults, there is a better treatment environment.

5

WE CERTIFY UNDER PENALTY OF PERJURY THAT WE HAVE READ THE

FOREGOING AND, TO THE BEST OF OUR KNOWLEDGE, IT IS TRUE AND

6

CORRECT.

7

DATED this ¿T?/s`Tday of November, 1994.

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9 CRAIG D. APPERSON
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JOSEPH DUBEY7 M.D¯.

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JOINT DECLARATION OF CRAIG .D. APPERSON AND JOSEPH DUBEY, M.D. - 9

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB FO BOX 40124 Olymp¡a, WA 98504-0124 (206) 459-6558

 
 Horton v. Williams

JI-WA-0002-0024

1

The Honorable Robert J. Bryan

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT TACOMA

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JAMES HORTON, JAMES BARNHART, 8 JEROME PAYTON, J.B., through his
next friend, LORRAINE WEST, and 9 K.M., through his mother DEBBIE
MOORE, on behalf of themselves 10 and all others similarly situated,

11

Plaintiffs,

CLASS ACTION NO. C94-5428 RJB
DECLARATION OF DEAN P. DEMULLING

12

vs.

13 BOB WILLIAMS, in his official capacity as Superintendent of
14 Green Hill School; JEAN SOLIZ, in her official capacity as
15 Secretary of the Department of Social and Health Services; and
16 SID SIDOROWICZ, in his official capacity as Assistant Secretary
17 of the Juvenile Rehabilitation Administration; and the Chehalis
18 School District,

19

Defendants.

20
Dean P. Demulling declares:
21
I am the health center supervisor at Green Hill School. I
22
graduated with a B.S. Degree in Nursing from Pacific Lutheran
23
i University in 1985. My position involves supervising six othei
24
25 nurses at the health center. Also on staff are a žull-time

26

DECLARATION OF DEAN P. DEMULLING - 1 \

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SE PO BOX 40124 OlympU, WA 98504-0124 (206) 459-«5S

phys±eè€m, contracted physician, physician's assistant, a

contracted psychiatrist, and a part-time dentist.

Upon entering Green Hill a resident receives a health

screening and physical examination. A follow-up examination is

done each year. Allergies and sensitivities to food, medications,

and environmental antagonists are documented.

If a resident reports that he has an allergic reaction

8 to Oleoresin Capstun (pepper spray), we will check the medical

file for verification. We also will contact previous medical care

10 providers, parents, or other persons who might have knowledge of

11 the allergic reaction. If an allergic reaction ever was verified,

12 cottage and security staff would be notified, and spraying of that

13 resident would be prohibited. To date, however, there have been 14 no cases in which an allergic reaction to pepper spray has been

15 verified on a Green Hill resident. Nor has there been a case in

16 which a resident has exhibited an allergic reaction to pepper

17 spray.

18

Prior to the use of pepper spray on a resident, clearance

19 must be obtained from the nursing staff. Records are checked to

20 determine whether there are any allergy, illness, or injury that

21 would compromise the resident's health if he was sprayed.

22

After a resident is sprayed, the following protocol applies.

23

1. The resident as soon as possible is given a cold shower

24 to eliminate the residue and limit the length of time the irritant

25 is active.

26

DECLARATION OF DEAN P. DEMULLING -

ATTORNEY OENERAL OF WASHINÖTON 670 Woodland Square Loop SE PO BOX 40124 Olympia, WA 985OM>I24 (206) 459-6558

1

2. The resident is given a thorough assessment by the

2 nursing staff. Particular attention is paid to areas where the

3 spray made contact, to body fluids, and to overall cardiopulmonary

4 function. (This assessment will be done prior to showering if

5 medically necessary.)

6

3. Assessment findings are documented in the medical logs

7 and records.

8

4. In case of unexpected side effects, the nursing staff

9 will implement the following procedures:

10

a. Eyes: Utilize eye wash stations, perform eye

11 examination, administer eye ointments and drop medications upon

12 approval by a physician.

13

b. Skin: Wash and flush tissue until the residue is removed

14 completely.

15

c. Asthma: Follow standing orders of physician, contact the

16 physician, and if necessary utilize inhalers, oxygen, nebulizer,

17 and medication.

18

d. Allergies/Anaphylactic Reaction: Contact physician,

19 follow anaphylactic standing order protocol, utilize oxygen,

20 nebulizer, suction machine, ambu bag, epinephrine, beneddryl, and

21 prednisone medications, and transport to hospital emergency room

22 if necessary.

23

Administration of the procedures listed in #4(c) and (d) have

24 never been necessary. There has never been a case in which a

25 resident has exhibited an excerbation asthma, allergenic, or

26 anaphylactic reaction to pepper spray. Based on medical

DECLARATION OF DEAN P. DEMULLING - 3

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Squire Loop SB PO BOX 40124 Otympi», WA 98504-0124 (206) 459-6558

information, we do not expect such a case ever will arise.

Nevertheless, the procedures are in place in case they are ever

unexpectedly needed.

The health center is open 8 a.m. to 11:30 p.m. on weekdays,

8 a.m. to 10 p.m. on Saturday, and 10 a.m. to 10 p.m. on Sunday.

Only several times has spraying occurred outside of these hours.

If it does, security staff and the officer in charge are

8 instructed to call 911 emergency response should any medical

problems arise. An emergency can be responded to in about three

10 minutes. To date, a 911 emergency call has not been necessary for

11 a pepper spray exposure. If a resident is sprayed during a time

12 the health center is closed, the resident is medically examined

13 first thing in the morning.

14

After a resident is sprayed and showered, the medical

15 examination takes place in the cottage or in the health center.

16 By that time, the symptoms generally have largely subsided. The

17 most common complaint is burning skins or eyes. Sometimes

18 residents complain of trouble breathing, though we have yet to see

19 any resident with objective cardiopulmonary compromise.

20 Generally, it takes no more than 30 minutes for all irritation to

21 subside.

22

As the infection control nurse at Green Hill, I believe the

23 use of pepper spray reduces the need to use physical restraint in

24 which the combatants often bleed. It thereby reduces the potential

25 of exposure to blood-borne pathogens such as the HIV and Hepatitis

26

DECLARATION OF DEAN P. DEMULLING - 4

ATTORNEY GENERAL OF WASHINGTON 670 Woodland Square Loop SB PO BOX 40124 Otymp¡â, WA 98504-0124 (206) 459-6558

1 B. The HIV virus causes death in 100 percent of the cases, and 2 the Hepatitis B virus is rapidly spreading and can lead to death.

3

I HEREBY CERTIFY UNDER PENALTY OF PERJURY THAT I HAVE READ

THE FOREGOING, AND THAT TO THE BEST OF MY KNOWLEDGE IT IS

4

TRUE AND CORRECT.

5

DATED this

zs day of August, 1994.

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DEAN P. DEMULLIÑ^
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DECLARATION OF DEAN P. DEMULLING - 5

ATTORNEY GENERAL OF WASHINOTON 670 Woodland Square Loop SB FO BOX 40124 Otympii,WA 98504-0124 (206) 459-6338

 
 Horton v. Williams
•I1III1I •'

JI-WA-0002-0029

'

'"

¯

'

GREEN HILL SCHOOL POLICY #4

SUBJECT: USE OF PHYSICAL RESTRAINT AND RESTRAINT DEVICES

AUTHORIZING SOURCE:

RCW 13.40.010 and Institution Standards 5.02, 14.20,

14.21,14.22,14.23,14.24, and 14.25

EFFECTIVE DATE:

January 20,1995

APPROVED BY:

SuperintvenSd^ent, Green Hill Scho

SUNSET REVIEW DATE: January 20,1997

4-100 PURPOSE
To establish local policy and procedures to comply with the guidelines instituted by Juvenile Rehabilitation Administration Bulletin #2, "Use of Physical Restraint Measures with Residents".
4-200 SCOPE
This policy applies to all areas under the jurisdiction of Green Hill School.
4-300 DEFINITIONS
1. Physical Restraint - refers to any physical intervention or force used by staff members to control residents.
2. Restraint Device - refers to any device used to assist in controlling residents. This includes aerosol, handcuffs, leg cuffs, leg brace, waist chains, soft cuffs, plexiglass shields and mattresses with hand holds.
3. Aerosol - refers to certain approved aerosol propellant agents containing Oleoresin Capsicum to be used in lieu of physical restraint to maintain the security of the institution.

4. Reasonable Action - refers to the use of the minimum amount of force necessary to prevent a resident from injuring another person, self, or inflicting serious damage to property. Reasonable action shall always refer to the intervention method which minimizes the possibility of injury to both staff members and

\J

\ }

Page 2 of 11, Green School Policy # 4

residents.
5. Emergency Situation: Unexpected instance in which a resident's behavior, if left uncontrolled, will result in injury to himself or others, significant destruction of property or threaten the security of the facility.
6. Non-emergency Situation: Instance in which a resident's behavior presents a potential threat of injury to himself or others, destruction of property, or threatens the security of the institution; however, there is time to summon additional staff and attempt to resolve the problem by utilizing the most reasonable action.
7. Chain of evidence: The documentation of all individuals who handle, possess, process, or transfer physical evidence in reference to a situation which may require investigation by staff and/or law enforcement agencies.
4-400 POLICY
1. Safety of both staff members and residents is of paramount importance.
Reasonable actions shall be taken by staff to avoid or prevent physically dangerous situations, within the scope of their job performance. Staff are authorized to use necessary physical restraint in emergency situations, which are:
a. Self protection. b. Protection of another to prevent bodily injury, (staff, resident or
visitor) c. Prevention of suicide or self-mutilation. d. Prevention of escape e. Prevention of serious damage to property.
2. Staff are authorized to use physical restraint and/ or restraint devices. Use of aerosol must be approved by the Superintendent or designee after either on-site observation or telephonic review of relevant facts as provided by the on duty Security Supervisor or designee. Pre-approval by the Superintendent in advance of the incident is not allowed.

\ I
Page 3 of 11, Green School Policy # 4
The use of physical restraint and/or restraint devices, excluding aerosol, is appropriate when a resident fails to comply with a staff directive and presents an immediate danger to self, others, property, or the security of institution. Other means of control or attempts at verbal de-escalation shall have been unsuccessful.
Use of physical restraint may persist for only the period of time necessary to ensure that the youth is no longer a danger to self, others, property, or the security of the institution.
Aerosol may be used when:
a. A resident fails to follow a staff directive; and b. To force compliance, without the use of aerosol, likely would result in the
resident attempting to assault staff in a manner that may cause specific bodily injury to the resident, staff, or others. In determining whether there is a credible threat of bodily injury, at least one of the following shall be present:
1. The resident is seriously threatening verbally to cause bodily injury;
2. The demeanor of the resident indicates he is willing and capable of inflicting bodily injury; or
3. The resident is destroying or threatening to destroy a substantial amount of valuable property.
In making a determination, staff may consider whether the resident has a history of assaulting or attempting to assault staff.
Aerosol spray may be used only when all other methods of compliance fail. It may be used only to incapacitate the threatening resident, and may not be used for the purpose of punishing the resident or inflicting pain on the resident.
As soon as the use of aerosol is being considered, staff shall so inform the resident. The staff receiving approval to use aerosol from the Superintendent shall again inform the resident that failure to comply will result in exposure. After this final warning, the resident shall be given at least ten (10) minutes to comply, except if either risk of injury or incitement of other residents, causing

Page 4 of 11, Green School Policy # 4
a serious threat to institutional security, requires more immediate action.
During the warning period, staff shall continually evaluate whether the conditions leading to consideration of use of aerosol still exist.
Staff shall not use aerosol if these conditions no longer exist or the resident complies with the initial staff directive.
If, after warning, the resident complies with the directive, and soon after again refuses to comply, the resident need not be given the ten minute warning prior to use of aerosol so long as the previously mentioned conditions still exist and at least ten (10) minutes have expired since the original warning.
Only staff trained in the proper use of aerosol are authorized to apply the substance to a resident(s). A listing of staff trained and authorized will be maintained by the security supervisor and posted in the security office.
All restraint methods must be applied so that the application is not intended to cause serious harm or injury. Physical restraint, aerosol, and/or restraint devices shall not be used as punishment nor as a means of degradation.
3. Restraint devices may be used when transporting residents who are considered escape risks or who present a threat to the safety of others.
Restraint devices shall be used at the discretion of staff for the transportation/movement process. Such use does not require any formal written documentation.
4. A resident may be placed on a program which requires him to wear a leg brace during specified activities and/or movement. Such a program requires the Superintendent's or designee's approval.
This program may be utilized for residents who:
a. Are high escape risks who have recently or continue to verbalize plans and/or give other strong indications of attempting to escape.
b. Have demonstrated a frequent and consistent pattern of physical assaultive and/or destructive behavior and have not responded to other means of intervention.

Page 5 of 11, Green School Policy U 4
Resident progress will be assessed on a daily basis by the Cottage Director and cottage staff to determine the need to continue such a program. Final approval of discontinuing the program will be made in the daily G.H.S. Administrative/Supervisor Meeting.
5. Video-Taping will begin when a resident refuses to comply with a staff directive.
a. Use of physical restraint shall be recorded on video tape, unless extraordinary circumstances prevent it, a video recorder is not available, and/or there is not time to assemble equipment. Video taping of the incident will begin as soon as possible in emergency situations.
b. Use of physical restraint video tapes are confidential and are not accessible to residents. They shall be reviewed by staff on a need-toknow basis to provide participants feedback and/or training on the use of physical restraint application.
c. The camera shall be located to ensure a complete view of the incident, including staff behavior.
d. The camera will record the entire incident until the resident is placed in his final destination.
6. Written documentation is required reporting any use of: physical restraint, approved aerosol and physical restraint devices.
Such written documentation shall be completed by the staff member(s) involved, and shall be completed immediately following the incident. The written reports shall be kept in the resident's case file.
The documentation report must include:
a. Sequence of events leading to use of force.
b. Reason force was used.
c. Actual orders to resident.
d. Names of all staff and residents involved.
e. Detailed description of the entire incident.

Page 6 of 11, Green School Policy # 4
f. A video tape shall be taken by staff of the incident, if possible, and in accordance with 4-400, 5 and 4-500, 2.
g. A Polaroid picture of any staff or resident injuries or property damage shall be taken and attached to the report.
h. If a resident commits an act that may be referred to the Chehalis P.D. for investigation as possible criminal conduct, all involved staff must complete a Chehalis Police Department Victim/Witness Statement form which will be forwarded to the Court Liaison (JRS II). Each resident involved is to be given the opportunity to write a statement regarding the incident. The integrity of the Chain of evidence for any physical evidence recovered shall be maintained.
7. Health center examination
Health Center staff will examine each resident following an incident involving the use of physical restraint, and submit a report identifying injuries (if any) and medical action taken.
8. A spray review will be conducted following each incident requiring the use of aerosol.
An initial review will be held by the Associate Superintendent in charge of security along with the staff members involved in the use of aerosol.
All available documentation, including videos, log entries, and incident reports, shall be reviewed.
The chairperson of this review shall complete the Aerosol Restraint Review Worksheet (attachment E).
The Superintendent shall review every Worksheet and shall initiate a Major Incident Review in the event of staff and/or resident injury, significant property damage, or potential policy/procedure violations.
9. Training programs are required.
All staff who are expected to use necessary physical restraint and restraint devices shall be trained in accordance with established Juvenile Rehabilitation Administration guidelines.

Page 7 of 11, Green School Policy # 4

Staff trained in the use of aerosol will be required to attend annual training on the following areas:

a. Crisis intervention/verbal de-escalation skills.

b. Interpretation of GHS Policy #4, Use of Physical Restraint and Restraint Devices.

c. Proper techniques for application of aerosol.

d. Video-taping techniques.

e. Proper de-contamination techniques.

f.

Effects of aerosol.

4-500 PROCEDURES
1. Non-Emergency situations:
In non-emergency situations, where the conditions outlined under paragraph 4-400, 2, have been met, the following procedures will be followed:
a. Cottage staffwill notify security staff, the cottage supervisor and/or the O.D. that a non-emergency situation exists where the use of physical restraint may be necessary to control the situation.
b. The cottage staff present will inform responding staff of the events leading to the summons and what directive the resident refused to obey.
c. Responding staff will ensure resident compliance with the original directive.
d. Prior to the attempt to gain resident compliance, or as soon as practical, video taping of the events will commence in accordance with 4-400, 5, and as outlined in 4-500, 2.
e. Use of physical restraint actions will follow this continuum:
1) Presence: Staff arrive at the site.

Page 8 of 11, Green School Policy # 4
2) Dialogue: Issue an order for the resident to comply.
3) Active physical restraint measures:
(a) Actual staff physical force to control the resident(s), resulting in the application of restraint device(s) for continued resident control.
(b) Aerosol - (Requires Superintendent Approval), Oleoresin Capsicum exposure, resulting in the application of restraint device(s) for continued resident control. ( i.e. handcuffs, leg cuffs, soft cuffs, etc.
NOTE: Circumstances may require the passing over of one or more continuum steps to immediately resolve the situation, should it become emergent in nature.
2. Video taping of Physical Restraint Application.
Staff shall use the following guidelines, which are incorporated in Attachment B for the recording of and application of the determined method of physical restraint:
a. Away from incident site (pre-script):
1) Introduction includes: name, date, time, name of video operator, name and JRA number of resident(s) involved.
2) A statement is made by staff indicating why the use of physical restraint is necessary.
3) A chronological description of the events leading to the decision to conduct the use of physical restraint and what alternative actions, if any, to the use of physical restraint have been taken.
4) Name of staff participating in the use of physical restraint and specific instructions to each staff.
5) Name of person authorizing the use of the physical restraint.
b. At the incident site:
1) Verbally direct the resident to comply. 2) If non compliant, direct staff to apply the determined method of
physical restraint. ( i.e. aerosol, physical force). 3) Record the application of physical restraint and the application
of restraint devices. 4) Record the showering of resident(s) exposed to aerosol, if

Page 9 of 11, Green School Policy # 4
applicable. (The video camera will be directed from the waist up). 5) Record the medical examination of the resident and a brief description of his condition. 6) Record the final placement of the resident(s) in the room and removal of the restraint devices.
c. Away from incident site (post-script):
1) Time, date, location 2) Resident(s) involved. 3) Staff involved. 4) Description of the use of physical restraint. 5) Injuries noted, if any. 6) Where the resident is located and what his behavior is at the
present time. 7) A statement which indicates the conclusion of the videotaping of
that incident.
3. Emergency Physical Restraint:
When staff are involved in an emergency situation where the use of physical restraint is required, as outlined in paragraph 4-400, 1, the following will be accomplished once the situation is controlled:
a. Notification of security, the Superintendent, the area supervisor and/or the O.D.
b. Video taping, if possible, will commence as soon as practical in accordance with 4-400, 5, and 4-500, 2.
c. Polaroid pictures of any injuries or property damage will be taken. d. Medical examination of the resident(s). e. Secure room placement of the resident(s).
4. Restraint Device Use After Physical Restraint:
Staff shall use restraint devices to maintain control of a resident after the use of physical restraint. Staff will remove restraint as soon as possible once the resident has gained control and poses no further risk to himself, others or property.
5. Documentation:

Page 10 of 11, Green School Policy U 4
All staff involved in the use of physical restraint will complete appropriate reports documenting their involvement and the elements outlined in paragraph 4-400, 6. Staff shall complete these reports immediately following the incident. The type of reports required include, but are not limited to:
a. Incident Reports (Attachment A) b. Use of Aerosol Restraint Report (Attachment B) c. Use of Restraint Device(s) Report (Attach. C) d. Chehalis Police Victim/Witness Report (Attachment D) e. Medical Report
6. Restraint Device Inventory and Storage:
1. Aerosol Restraint: An appropriate variety of dissemination methods and quantities shall be available. The inventory shall allow for the use of Aerosol Restraint for all possible types of incidents which may occur at the facility, i.e., cell use, day room use, outdoor use, dining room use, etc. The security supervisor is responsible for ensuring that only approved Aerosol Restraint is authorized for purchase, storage and use.
All Aerosol Restraint shall be stored in a secure method that will prevent residents from having access to it. The drug room in the Administration Building is designated as the storage area for the primary stock of Aerosol Restraint. A limited amount will be stored in the storage room adjacent to the I.M.U. entrance door for quick access when authorization has been granted for its use.
A master perpetual inventory shall ensure an accurate record on the disposition of all aerosol restraint containers. When Aerosol Restraint containers are unaccounted for, the following will occur:
a. A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.
b. The area Associate Superintendent shall assign an investigator to determine the disposition of the missing aerosol restraint.
2. Restraint Devices (non aerosol): The Security Supervisor shall oversee the purchase and dissemination of hand cuffs, leg cuffs, leg braces, waist chains, soft cuffs, plexiglass

I
Page 11 of 11, Green School Policy # 4
shields and mattresses with hand holds. An inventory of all restraint devices shall be maintained separate from the inventory of aerosol restraint. Restraint devices will be stored to ensure that residents do not have access to them.
Security staff will issue cottage staff approved non aerosol restraint devices when needed for transporting/movement or a leg brace program. A check-out system will be used to track the use of these devices. The cottage directors are responsible to ensure that these devices are returned in proper working order upon completion of use.
Security staff are authorized to carry hand cuffs and hand cuff keys on their person during their shift to allow for ready use.
In the event that a restraint device is unaccounted for, the following will occur:
a. A written report shall be submitted to the Superintendent via the chain of command by the staff discovering the inaccuracy.
b. The area Associate Superintendent shall assign an investigator to determine the disposition of the missing restraint device.

 
 IlillÜ

Christine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON
670 Woodland Square Loop SE · PO Box 40124 · Olympia WA 98504-0124

February 7, 1995

LEGAL SERVICES

Pat Arthur Evergreen Legal Services 101 Yesler Way, Suite 301 Seattle, WA 98104
Dear Pat:

`` ·

FEB
INSTITUTIONS PRQiFCT

1 This is in response to your February 2 letter. At this time, I will address the pepper spray issues. I will address the leg brace issue soon in another letter.

I believe the new pepper spray policy, as set forth in Green Hill Policy #4, completely comports with Judge Bryan's ruling, and is not confusing to Green Hill staff.

You should also know that the policy is being followed at all institutions, even though JRA Bulletin #2 has not yet been updated. What matters is the policy being followed, and not the format of the policy.

I cannot understand your concerns on permitting the use of pepper spray in "non-emergency situations." The provisions on when pepper spray may be used (pages 2-3) do not use the terms "emergency" or "non-emergency." Nor does Judge Bryan's order use those terms. Instead, those terms are used to describe the procedures to be followed before pepper spray is used (pages 7-8). I believe in every case Green Hill has been able to follow the "non-emergency" procedures prior to using pepper spray. To my knowledge, you are the only one confused about this issue.

The policy (page 2) states "aerosol may be used when . . . ." You think the policy should state "aerosol may be used only when . . . ." This is a nitpicky point. Adding the word "only" would not change the meaning of the sentence. Staff understands very well that the use is limited to the two situations.

Finally, I disagree with your assertion that the pepper spray provisions do not follow Judge Bryan's order. Specifically, you state:

Pat Arthur Dated February 7, 1995 Page 2
The criteria do not, as Judge Bryan ordered, require staff to factor in the danger of harm that pepper spray presents to youth in assessing whether there exists a sufficient danger of harm to warrant the use of pepper spray to incapacitate a dangerous youth.
I surmise your objection is a restatement of Judge Bryan's fourth criteria that pepper spray:
may be used only if there is a threat of equal or greater harm to others or to a substantial amount of valuable property than the pain and danger of harm that the use of pepper spray presents.
JRA considered this criteria, and its policy now provides that aerosol may be used when a resident fails to follow a staff directive, and:
To force compliance, without the use of aerosol, likely would result in the resident attempting to assault staff in a manner that may cause specific bodily injury to the resident, staff, or others.
This policy represents JRA's determination that the harm threatened by an assault that may cause specific bodily injury is greater than the harm caused by pepper spray. Our rationale is that an assault can cause temporary or lasting serious physical injury, while the effects of pepper spray are temporary. This determination, in our opinion, is consistent with Judge Bryan's decision and with all case law on the subject.
You also object as follows:
(T) he criteria still permits staff to spray youth for not following a staff directive so long as staff believe they will be injured if they attempt to physically force the youth to comply with staff. Thus, for example, a juvenile banging on his door could be sprayed under the new policy provided staff believe they risk bodily injury by using physical force to stop banging, even though there may be another method of addressing the problem e.g. moving the juvenile to a different location, that does not present the balance of risk of harm.
The first sentence is absolutely correct, and certainly is consistent with Judge Bryan's ruling. Under your example, staff must first attempt to get the resident voluntarily to be quiet. If that fails, staff may decide it is necessary to move the resident. If staff then believes moving the resident will cause the resident to attempt to assault them, it may use pepper spray to prevent

Pat Arthur Dated February 7, 1995 Page 3
bodily injury. Frankly, I do not understand your objection, or why you believe the policy is contrary to Judge Bryan's ruling.
In sum, we believe the pepper spray provisions conform to Judge Bryan's ruling, and so we decline to change them.

RAM/mla

RICEARDlA. McCARTAN Assistant Attorney General

i

 
 Horton v. Williams
J -WA-0002-0032 Christine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON
670 Woodland Square Loop SE · PO Box 40124 · Olympia WA 98504-0124 January 23, 1995

IIV"

EVERGREEN LEGAL SERV!CES

Pat Arthur Evergreen Legal Services 101 Yesler Way, Suite 301 Seattle, WA 98104

JAN 2 h 1995
INSTITUTIONS PROJECT

Re: Green Hill School Policy #4 - Use of Physical Restraint and Restraint Devices

Dear Pat:

Enclosed is a copy of the new restraint/pepper spray policy. The pepper spray provisions, in my opinion, implement the court's decision.

Please let me know if you h a m questions or concerns.

RAM/mla Enclosure

[CHARD A.. McCARTAN Assistaiƒt Attorney General

 
 EVERGREEN. LEGAL SERVICES
INSTITUTIONAL LEGAL SERVICES PROJECT 101 YESLER WAY, SUITE 301
SEATTLE, WASHINGTON 98104

ADA SHEN-JAFFE DIRECTOR

February 2, 1995

(206) 464-0838 (206) 382-3399 - CLIENTS CALL COLLECT

Richard McCartan Assistant Attorney General P.O. Box 40124 Olympia, WA 98504-0124

Re: Green Hill School Policy #4

Dear Richard:

I received the new policy you sent last week governing the use of physical restraint and restraint devices at GHS that you suggest implements Judge Bryan's order filed December 6, 1995, concerning pepper spray. However, you did not send the JRA bulletin relating to pepper spray use that authorizes the institution's policy. Was JRA Bulletin #2 rewritten after Judge Bryan's order? What about Institutions Standards 5.02, 14.20-14.25 referred to in the authorizing section of GHS #4: Are those JRA standards and were they modified in any way after the Judge's ruling? I would appreciate it if you would send me the Bulletin and Standards so I can review them as well.

My co-counsel and I have reviewed the new GHS policy and find only two changes from the October policy that was the subject of our preliminary injunction motion. The first appears on page 3 (sections a. and b. were changed concerning when aerosol restraint may be used) and the second is on page 4 (section 4 on that page is a new section relating to leg brace programs). Please let me know if there are additional changes in the policy which we missed. For the reasons set forth below, we believe that GHS Policy # 4 is still unconstitutional. In general, it does not make clear that pepper spray should not be used by staff except in narrowly defined circumstances as outlined by Judge Bryan. The policy is difficult for lawyers, let alone line staff, to understand and is internally inconsistent.

More specifically, the new policy, as did the October one, permits the use of pepper spray by staff in non-emergency situations. By definition, a non-emergency circumstance is not one where there exists a threat of harm that is greater than the harm caused by the use of pepper spray or to a substantial amount of valuable property. In defining a non-emergency situation, the policy states "there is time to summon additional staff to resolve the problem..." (p. 2). The policy in one part allows use of pepper spray in such a situation (p. 7-8). However, another part of the policy seemingly limits the use of pepper spray to emergency situations. These two seemingly inconsistent parts of the

Richard McCartan February 2, 1995 Page 2
policy are not reconcilable. Moreover, Judge Bryan's order explicitly prohibits the use of pepper spray unless "absolutely necessary". Use of this painful substance can hardly be absolutely necessary if there are other less painful means to address a juvenile's behavior as would be true in a non-emergency situation.
Secondly, while the policy changes somewhat the criteria governing when aerosol may be used (section a. and b. on page 3) it does not restrict use to ONLY those situations when the criteria listed in the policy have been met. To be consistent with Judge Bryan's ruling, the policy should at least indicate that aerosol may not be used at all except is certain narrowly defined circumstances. In other words, the policy should say something like "Aerosol may ONLY be used when:", instead of "Aerosol may be used when:", as it does on p. 3. But more importantly, we believe the criteria as they have been redrafted are not sufficient to insure compliance with Judge Bryan's order. For example, the criteria do not, as Judge Bryan ordered, require staff to factor in the danger of harm that pepper spray presents to youth in assessing whether there exists a sufficient danger of harm to warrant the use of pepper spray to incapacitate a dangerous youth. And, under our reading of the policy, the criteria still permits staff to spray youth for not following a staff directive so long as staff believe that they will get injured if they attempt to physically force the youth to comply with staff. Thus, for example, a juvenile banging on his door could be sprayed under the new policy provided staff believe they risk bodily injury by using physical force to enforce a directive to stop banging, even though there may be another method of addressing the problem, e.g., moving the juvenile to a different location, that does not present the same balance of risk of harms. We do not think that this is consistent with Judge Bryan's ruling.
Concerning the new section that authorizes staff to place youth on a leg restraint "program", we do not believe that it provides sufficient safeguards to prevent unwarranted and prolonged restraint proscribed by Youngberg. What criteria exist for release from leg restraint? What constitutes "destructive" behavior? Could a suicidal youth be restrained in this manner? Can a juvenile be placed in a leg brace as punishment for unruly behavior staff perceive to be "destructive"? It seems to us that the policy simply is too broad and does not provide sufficient safeguards against impermissible restraint.
In light of our concerns about the new policy, and in order for us to obtain timely information about the use of pepper spray, we would like to receive notice of every incident involving the use of pepper spray within five days of the event as well as a copy of the videotape of the incident and all relevant documentation. We would appreciate it if you would agree to provide us with this information in this time frame without requiring us to get a special order to permit such expedited disclosure under the

Richard McCartan February 2, 1995 Page 3
discovery rules.
Prior to any reenactment of the GHS pepper spray policy, if any, we would be happy to review revisions made in light of our comments. We were disappointed that we were not given the opportunity to give you our comments about the policy you sent last week. Although this case is set for trial next November, and we are all moving ahead with discovery with that in mind, we believe that it is the most efficient and productive use of time and resources for both sides to work together to resolve the legal disputes in this case as much as possible. Using the pepper spray example, if we are not satisfied that the policy is constitutional on its face we will, no doubt, be back in front of Judge Bryan seeking clarification of his injunction. Thus, in the interest of avoiding costly litigation, we again invite your clients to discuss this issue with us as well as the others raised in the lawsuit in an effort to resolve at least some of plaintiffs' claims in an agreed order.
Thank you for your time and consideration of our concerns.
Very truly yours,
Patricia J. Arthur Project Director

Horton v. Williams

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 Horton v. Williams JI-WA-0002-0036
PROGRESS REPORT HORTON VS WILLIAMS STIPULATION & JUDGEMENT First report to the Federal Court - February 1996
Orlando L. Martinez Monitoring Report Case # C94-5428 RJB

INTRODUCTION
This is the first monitoring report to the Court, Plaintiffs and State Defendants concerning the progress Green Hill School has made in achieving compliance with the Stipulation and Judgment signed by the Court on September 11, 1995.
The Monitor spent two and one-half days at Green Hill School visiting living units, meeting with juveniles, direct care staff and administrators, reviewing architectural plans for capital improvements to Green Hill School, and meeting with Plaintiffs' and Defendants' attorneys. Prior to the monitoring visit this Monitor viewed videos depicting the use of pepperspray, and read background information regarding the issues resulting in this Stipulation and Judgment.
The following describes the State Defendants' progress in achieving compliance with this Stipulation and Judgment.
PHYSICAL PLANT
The State Defendants will maintain the present facility in a safe and sanitary condition, and will adequately heat, cool and ventilate all structures. This provision shall not be construed to require capital improvements in existing structures, other than as planned in reconstruction, absent a condition that adversely affects the health or safety of residents.
Finding - Green Hill School is comprised of old buildings initially constructed to deal with a less serious and aggressive client. Over the years renovations have been made to the buildings to secure them without major modifications. This has created a situation where staff must be continuously aware of good safety practices. Capital improvements planned for this campus will improve safety conditions, however, until these improvements are completed, importance must be given to how these facilities are managed and supervised. It was noted that a sufficient number of staff were present in the living units during the Monitor's visit and that staff understood basic safety procedures when questioned. Administrators indicated that local fire officials inspect the facility and that they are in compliance with local requirements.
Green Hill School underwent a safety inspection by the Department of Social & Health Services in November 1995. Their report entitled "Annual Loss Control Evaluation " indicates that GHS achieved a score of 71.69% towards the maximum possible score of 106. An interesting finding is that accidents and injuries were up appreciably when comparing FY 94 to FY95 with most of the increase during the Spring of 1995. According to the evaluators, recent data indicate a return to average or slight improvements in accidents and injuries.
Recommendation - Green Hill School should provide a letter or certificate from an authority having jurisdiction documenting that the facility conforms to applicable federal, state and/or local fire safety codes or that the authority approves any variances,

exceptions or equivalencies that do not constitute a serious life safety threat to the residents of the facility. Where applicable, Green Hill School should provide a plan for addressing deficiencies, i.e. fire alarm and automatic detection system, for approval by the authority.
DISCIPLINARY PRACTICES
The parties agree that they will comply with JRA Bulletin No. 2 and GHS Policy No.4 which comport with the requirements of this Judgment and the State Defendants agree to abide by the terms and conditions of these policies.
Aerosol Restraint
Since entering into this Settlement and Judgment, Green Hill School has used oleocapsicum pepper spray on resident J.H. on November 28, 1995 and on December 20, 1995 involving residents R.G. and S.N. A video of these incidents was provided by Defendants' attorneys and written incidents reports were provided by Green Hill School and Defendants' attorneys.
In these two incidents it appears that Green Hill School met the requirements of the Stipulation and Judgment and complied with JRA Bulletin No.2 and GHS Policy No.4.
Mechanical Restraints
Green Hill School has provided thirty (30) written incident reports regarding the use of restraints from 8/29/95 to 1/21/96. Fifteen of the incidents were situations where restraints were used on youth while in his living quarters and the remainder were used for transportation to another cottage. Defendants' attorneys also submitted copies of incident reports regarding the use of restraints for this same time period. Nine reports were included that were not contained in those submitted by GHS. Review of these reports indicates that GHS seems to be complying with JRA Bulletin 2 and GHS Policy 4. Time did not permit this Monitor to field test the incidents of mechanical restraint use nor to conduct follow-ups on submitted reports.
Green Hill School complies with the Aerosol and Mechanical restraint requirements of the Stipulation and Judgment because of their implementation of approved procedures, documentation and video taping. However, the frequency of use is difficult to evaluate because baseline data is not available for comparison over time periods or comparison with use of restraints by similar programs within or outside the State of Washington.
Recommendation - Green Hill School should study each incident of restraint used to determine whether less use is possible given the interventions and techniques currently available to staff. It may well be that this is the best that can be done, however, some juvenile correctional facilities, like Lookout Mountain School, Golden, Colorado, have been able to develop a behavior management system that has almost eliminated the

reliance on mechanical restraints. Lookout Mountain School does not use aerosol restraints.
The following factors are common to well functioning behavior management systems.
Custody is the degree of restraint required to reasonably assure that youth will remain at a designated place; not harm others; be protected from harm, and to facilitate constructive program involvement.
Flexibility used to reward or sanction based on levels of restrictiveness for those youth whose status or program should be changed to test his behavior, i.e.allowing less restricted movement within the security perimeter. How is the GHS Honors Program administered and does it meet this factor?
Milieu or the degree of restrictiveness inherent in the structure and elements of the program. For example, group empowerment could be established to maintain order/program compliance. This is controlled through staff training and staff leadership.
Well trained staff who are supportive of the behavior management system are critical to its success.
Disciplinary Procedures
JRA must follow certain procedures when placing a juvenile in lock-up or when denying sentence reductions for misconduct.
Finding - Green Hill School has written a due process policy that includes resident involvement to ensure that release dates are set in accordance with DSHS and JRA policies and two policies addressing Intensive Management Unit-related due process for residents. These new policies go beyond those policies (Exhibits 3 and 4) incorporated in the Stipulation and Judgment and agreed upon by the parties as providing constitutionally adequate due process to youth transferred to lock-up or denied a sentence reduction for misconduct. During an exit meeting with this Monitor on February 7,1996, State Defendants and Plantiffs' attorneys agreed that they will meet to resolve some disputed sections of these new policies.
Recommendation - By April 1,1996, State Defendants and Plantiffs' attorneys should meet and resolve any disagreements regarding due process policies pertaining to transfer of a juvenile to lock-up or denial of a sentence reduction.
EDUCATION, HEALTH AND REHABILITATIVE SERVICES
Education
State Defendants must provide youth in lock-up with access to educational services.

Finding - Green Hill School and the Department of Education have designed an educational program for juveniles in Intensive Management Unit that accounts for those who are in transition from their regular school program in the cottage and temporarily placed in lock-up. Documentation has been submitted for those students that were removed from single class periods for minor infractions of conduct, those removed from class for more than one class period and those students who were suspended from IMU school activities. It is reported that school district due process was used in all of these instances. Because of time limitations, this Monitor was unable to conduct an on-site review of educational services in IMU.
Recommendation - None. This Monitor will review IMU educational services during the next monitoring visit.
Health and Rehabilitation Services
The State Defendants shall permit only qualified medical personnel to administer medications to youth, as required by law.
Finding - Because of time limitations this Monitor was unable to conduct a review of medical policies and procedures regarding the administration of medications. The use of psychotropic medications was raised after this Monitor's interview of two IMU residents who were medicated and a written document submitted by the psychiatrist in one of the resident's treatment file stating that he would be pleased to prescribe medication for the resident. A report prepared for this Monitor by the Health Center Supervisor, Dean Demulling, states that 23 residents were on psychotropic medications on 2/2/96 and that the average for 1995 for residents on psychotropic medications was 31. Since medical files were not reviewed, it is unknown whether there is a protocol for the use of psychotropic medication or if juveniles receiving these medications are being seen by nursing personnel and physicians to reassess their mental status and medication side effects.
Recommendation - A review of medical policies and procedures regarding the administration of medications will be conducted by this Monitor during the next site visit. It is requested that Green Hill School provide the monitor with any existing protocols for the use of psychotropic medication and information on any training program which would complement such protocols.
TRANSLATION SERVICES
State Defendants must provide translation services.
Finding - Green Hill School has translated the Resident Handbook and several documents used in the treatment of residents, employs four bilingual staff who can translate for Spanish speaking youth, and have purchased software programs for translation purposes.

A particular problem was observed with R.G. who was in placement in the Intensive Management Unit when interviewed. R.G., although bilingual, was born in Mexico and expresses himself better in Spanish. He was medicated apparently because of mental health problems and lack of self control, however, there is no mental health professional available to treat him who speaks Spanish nor who understands R.G.'s bicultural situation.
Recommendation - None at this time. The complexities of professional mental health treatment for limited-English speaking youth in a correctional setting require further discussion with both parties and will be addressed further in the last section of this report.
GRIEVANCE PROCEDURES
The State Defendants agree to abide by JRA Bulletin No. 13, relating to Youth Complaints.
Finding - Because of time limitations this Monitor was unable to conduct a test of how JRA Bulletin No. 13 was being implemented. A packet of Youth Complaint - Appeal Request forms completed by residents was shown to the Monitor indicating that a process was being used.
Recommendation - This Monitor will conduct a test of how JRA Bulletin No. 13 is being implemented during the next monitoring visit.
ADDITIONAL OBSERVATIONS AND COMMENTS
The Intensive Management Unit is described by GHS as "A maximum custody unit providing safe housing or dealing with residents presenting a threat of physical harm to self, others, property, or escape". Policies and procedures for the transfer and management of youth requiring housing in the IMU have been developed and are undergoing further negotiation. This Monitor observed during a visit to IMU that juveniles in placement appear to be in need of mental health care and appear different than what would be expected in a maximum custody unit used operationally to segregate acting out juveniles. This observation was substantiated when discussing this issue with an IMU supervisor and administrative staff. This is further supported when the case of R.G. (mentioned above) is considered.
It seems that the program offered does not fit the needs of many of the juveniles placed in IMU. Many in this population are in need of mental health care and according to staff, mental health agencies are unwilling to treat them. This is placing unrealistic demands on GHS staff given that programming for juveniles with mental health problems in segregation is impossible without the necessary resources. For example, segregation is a behavioral control measure (thus subject to administrative responsibility) which may pose medical danger (thus subject to medical responsibility). This danger increases as

segregation is prolonged because IMU is being used to deal with youth having disturbances in mental status that seem to go untreated except with medications. The appropriate authorities from the Department of Social & Health Services and the Director of Green Hill School should collaborate on and authorize the institution's Intensive Management Unit program for mentally ill juveniles.
Prepared & Submitted by: Orlando L. Martinez March 1,1996

 
 Horton v. Williams

JI-WA-0002-0037

1

Hon. Robert J. Bryan

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT TACOMA

9

10 JAMES HORTON, et al., on

)

behalf of themselves and all )

11 others similarly situated, )

)

12

Plaintiffs,

)

)

13

v.

)

)

14 BOB WILLIAMS, et al.,

)

)

15

Defendants.

)

No. C94-5428 RJB
AFFIDAVIT OF KATRIN E. FRANK IN SUPPORT OF INTERIM APPLICATION FOR ATTORNEY FEES AND COSTS

16 STATE OF WASHINGTON )

) SS.

17 County of King

)

18

KATRIN E. FRANK, being first duly sworn on oath, states as

19 follows:

20

1. I am one of the attorneys for Plaintiffs herein. I have

21 personal knowledge of the facts herein stated and am competent to

22 testify to the same.

23

2. I have been a member of the Washington State Bar since

24 1984. I graduated from the University of Puget Sound Law School

25

AFFIDAVIT OF FRANK IN SUPPORT OF

WSBA #14786

INTERIM APPLICATION FOR FEES AND COSTS - 1

5437-l\s:\kef\hortoo\feepetn.aff

MACDONALD. HOAGUE & BAYLESS

1500 HOGE BUILDING 705 SECOND AVENUE SEATTLE. WASHINGTON 98104-1745
(2O6) 622-16O4

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1

7. Since 1993 I have been co-counsel in Hallett v. Payne.

2 W.D. Wash. No. C93-5496(T)(D), a class action claim on behalf of

3 prisoners at WCCW for inadequate medical care in violation of the

4 Eighth Amendment. The case settled with entry of a consent 5 decree.

6

8. Since 1989 the majority of my practice has involved ci-

7 vil rights litigation, including prison, police misconduct, and

8 employment discrimination cases.

9

9. Attached as Exhibit A is a copy of my billing records in

10 Horton v. Williams.

11

10. I spent 86.40 hours on the Horton case as of July 31,

12 1996.

13

11. My participation in the Horton litigation has consisted

14 primarily of taking depositions, developing mediation options, de-

15 veloping litigation strategy, meeting with expert witnesses, and

16 involvement in settlement discussions and negotiations.

17

12. As can be seen by the claim for relief and the Stipula-

18 tions and Judgments, Plaintiffs were prevailing parties and are 19 entitled to fees.

20

13. My time and expense records were compiled as follows.

21 Each case in our office is assigned a case number. Each time-

22 keeper who works on the case records his or her time on a daily

23 basis by timekeeper name, case name, case number, description of

24 work done, and time spent. The information is then entered by a

25

AFFIDAVIT OF FRANK IN SUPPORT OF

WSBA #14786

INTERIM APPLICATION FOR FEES AND COSTS - 3

5437-l\s·.\kef\horton\feepetn.aff

MACDONALD. HOAGUE & BAYLESS

1500 HOGE BUILDING

X

7O5 SECOND AVENUE

SEATTLE. WASHINGTON 98104-1745

(206) 622-16O4

1 legal assistant into a computerized ledger which contains a record

2 of all work done and time and money spent on the case.

3

14. Exhibit A is the computer ledger printout of the dates,

4 activities, and time spent each day from the day the case came in5 to the office to the present. The internal case number is 5437-1.

6 The description of the work done on each of those days is general. 7 Every activity is not necessarily entered.1 Expenses billed to 8 the case are entered as they are paid.

9

15. In both hourly and contingent cases MacDonald, Hoague &

10 Bayless charges for travel time to and from depositions and court.

11

16. Costs for long distance telephone calls, fax, photo-

12 copying, and computer research total $50.22. MacDonald, Hoague &

13 Bayless charges clients photocopying costs of lO¢ per page, which

14 is below the prevailing rate in the community. Our fee for fac-

15 simile charges is $1 per page for outgoing faxes, and no charge

16 17

18

1 The actual computer ledger printout is a chronological

listing of all timekeeper activities, expenses, and payments or

adjustments. "TMK" stands for timekeeper and below are my ini-

tials, KEF. Next is the amount of time I spent that day on the

20 case. The column titled "amount" reflects the amount of time

billed. Because this is a contingent matter, no fee was billed

21 for my time on a daily basis, hence the entries "0.00." Where

costs were incurred there is a "C" between my initials. The

22 amount of the cost is reflected in the first of the two numerical

columns on the right side of the page and the cumulative costs to

23 date are reflected in the last column. Page five includes, under

"Fee Breakdown," a summary of all time spent on the case, and

24 under "Cost Breakdown," the costs incurred are itemized by

category.

25

AFFIDAVIT OF FRANK IN SUPPORT OF INTERIM APPLICATION FOR FEES AND COSTS - 4
5437-l\s:\kcf\horton\feepetn.aff

WSBA #14786
MACDONALD. HOAGUE a BAYLESS I5OO HOGE BUILDING 705 SECOND AVENUE
SEATTLE. WASHINGTON 98IO4·I745 (206) 622-16O4

for incoming faxes. We charge for long distance phone calls the

amount charged to the firm for the call.

17. My standard rate for civil rights matters has been $200

an hour for the past two years. It is the rate I bill hourly cli-

ents and is the rate I seek in other fee applications. I believe

it is a reasonable rate based on my experience and the standards

in the community.

8

18. Timothy K. Ford is a partner at the law firm of

MacDonald, Hoague & Bayless. Mr. Ford has extensive experience

10 nationwide as a litigator in death penalty cases and is considered

11 one of the leading prisoner rights litigators in Washington.

12 Mr. Ford consulted about mediation options and strategies. His

13 hourly rate is $240.

14

19. Based on the records of time spent and costs incurred we

15 ask the court to award MacDonald, Hoague & Bayless $17,280 for

16 time spent by Katrin E. Frank, $192 for time spent by Timothy K.

17 Ford, and $50.22 for costs incurred, for a total of $17,522.22.

18

çHdu¿L

19

Katrin E. Frank

20 Signed and sworn to (or affirmed) before me on August
21 1996, by

22

H cWOlJC>

23

í f ¯—·-X I £

*`>'i

"¯ _

24

V¾‰f*¯M-¾Æ£ƒ

Zo AFFIDAVIT OF FRANK IN SUPPORT OF

Notary Public( in and for the

State of Washington i

My a p p ' t expires

o/t

WSBA #14786

INTERIM APPLICATION FOR FEES AND COSTS - 5
5437-l\s:\kef\hortoa\fecpctn.aff
\
s

MACDONALD. HOAGUE a BAYLESS 15OO HOGE BUILDING 705 SECOND AVENUE
SEATTLE. WASHINGTON 96104-1745 (206) 622-1604

 
 Horton v. Williams
• ••• • • • • • • • • • • • •
JI-WA-0002-0039
Monitoring Report JAMES HORTON, et al.,
Plaintiffs vs. BOB WILLIAMS, et al.,
Defendants

Mi
DEC 0 3 1396
C1JKX U.$. DISTRICT C<XOT WESTERN Disrwa of wAa«rro« AT WCO«A

Submitted to
United States District Court Western District of Washington
At Tacoma

PROGRESS REPORT HORTON VS WILLIAMS STIPULATION & JUDGEMENT
Second report to the Federal Court - October 1996
Orlando L. Martinez Case #C94-5428 RJB

INTRODUCTION
This is the second monitoring report to the Court, Plaintiffs and State Defendants concerning the progress Green Hill School has made in achieving compliance with the Stipulation and Judgment signed by the Court on September 11, 1995.
Since the last reporting period, this monitor spent three days at Green Hill School visiting living units, reviewing the school's medical program, reviewing reports and daily logs, meeting with institutional administrators, and meeting with Plaintiffs and Defendants' attorneys. Additionally, telephone communications were held following the monitoring visit in February, 1996.
The State Defendants have made progress toward compliance with this Stipulation and Judgment as described in the following sections of this report.
PHYSICAL PLANT
The State Defendants will maintain the present facility in a safe and sanitary condition, and will adequately heat, cool, and ventilate all structures. This provision shall not be construed to require capital improvements in existing structures, other than as planned in reconstruction, absent a condition that adversely affects the health or safety of residents.
Finding - The Chehalis Fire Department completed a Fire/Life Safety inspection on June 14, 1996, and submitted a letter providing certification of an annual inspection of Green Hill School. This does not meet the intent of this monitor's recommendation in the February report regarding a letter or certificate from an authority having jurisdiction documenting that the facility conforms to applicable federal, state and/or local fire safety codes. Conformance with codes is indicated by licensing or, in cases where a license is not issued, by letter or certificate of compliance. This Chehalis Fire Department certifies that the school was inspected but does not certify it meets certain building and safety codes that ensure the safety of all persons within the facility.
The Chehalis Fire Department found that Green Hill School kitchen needed an extinguisher and a kitchen hood and that unfinished ceilings in the kitchen and in the power plant room were in violation of the local code. All deficiencies identified in the safety inspection report have been corrected by Green Hill School. On May 17, 1996, the Department of Health completed an environmental health audit of Green Hill School. The sixteen (16) deficiencies sited by the Department of Health have been corrected.
DISCIPLINARY PRACTICES
The parties agree that they will comply with JRA Bulletin No. 2 and GHS Policy No. 4 which comport with the requirements of this Judgment and the State Defendants agree to abide by the terms and conditions of these policies.

Aerosol Restraint
Finding - Since entering into this Settlement and Judgment, Green Hill School has used oleocapsicum pepper spray on resident J.H. on November 28, 1995 and December 20, 1995 involving residents R.G. and S.N. Pepper spray has not been used at the school since December 20, 1995.
Mechanical Restraints
Finding - From March 1, 1996 to June 30, 1996 mechanical restraints have been used in 28 separate incidents by Green Hill Staff. Information received from Green Hill suggests that the use of mechanical restraints is decreasing primarily due to staff training in a curriculum know as Dealing With Resistive Youth (DWRY). This curriculum introduces staff to basic supervision and discipline techniques essentially to provide staff with tools for assessing skill deficiencies and managing resistance. It provides methods for deescalating youth who exhibit behavior that is anxious, defensive, aggressive, and dangerous. Use of physical force tactics to control an out-of-control youth is also taught.
EDUCATION, HEALTH AND REHABILITATIVE SERVICES
Education
State Defendants must provide youth in lock-up with access to education services.
Finding - The Intensive Management Unit's (IMU) educational programs were visited and reviewed with Trent Phillips, GHS Director's office and Gaye Rondo, IMU temporary program manager. The intake process includes an assessment of new arrivals within 3 days by the Special Needs Unit. Documentation was provided showing that 6 hours of education are being provided to those who are not confined to individual rooms. Parole violators are not placed in the school program although those students who have obtained their General Equivalency Diploma may continue to attend classes. During this visit, positive comments were given by IMU staff regarding a teacher who seems to have motivated students to attend his classes and who uses class suspensions sparingly.
Between February, 1996 and June, 1996, 82 students were removed for a single class period, 10 were removed for three day suspensions and two were removed for ten day suspensions. Class removals involved refusal to participate in activities, actions which threaten harm to staff, teacher, or peers and causing physical harm to staff, teacher or peers.
The educational program in IMU is not well supported with equipment and supplies. There is a need to provide appropriate print and non-print instructional materials, technologies (video, computers) and library services.

Recommendation - Good schools have identifiable characteristics with a basic premise being that a school's total learning and working environment determines its effectiveness. A school may offer a comprehensive education program but education may not be considered by facility and system administrators to be the most important part of rehabilitation of the residents. This appears to be the case in IMU. Because IMU residents have special problems that require specialized treatment in a secure environment that is not an acute care hospital, a prison or an open residential campus, the education program is competing with medical and safety/security concerns. The Department of Social & Health Services and Green Hill School should consider visiting The Pines Residential Treatment Center of Virginia or other similar programs designed to work with emotionally disturbed delinquents. Developing a treatment and education program for this population should be a priority.
Health and Rehabilitative Services
The State Defendants shall permit only qualified medical personnel to administer medications to youth, as required by law.
Finding - Jan Haviland, RN II, and Gail Scott, RN II, were interviewed regarding the GHS medical services program. Dr. Isaac Pope is the contracted physician for both Maple Lane institution and for Green Hill School. He is on site two times a week for a total of six to eight hours and is on-call 24-hours per day. The GHS medical clinic is open from 6:30 a.m. to midnight seven days a week with the Senior Nurse being available for telephone consultation after midnight. New arrivals are taken to the clinic for medical screening immediately upon admission to the campus and sick call is provided seven days a week in both open and closed cottages.
The GHS medical clinic is accredited by the National Commission on Correctional Health Care. Written policies and procedures are available, however, they could be better organized for easier access and comprehension. The policy and procedure manual is not reviewed annually and they do not have an internal quality assurance policy. The medical clinic is developing an involuntary medications policy. It was reported that there are no protocols for psychotropic medications.
GHS does not have a dietitian. Dental services are excellent at GHS. Dental screening is conducted on all juveniles within one month of admissions to the facility, a dental exam is provided and treatment given as required. Preventive services are also provided.
Health records are maintained in the clinic with procedures appearing to meet confidentiality requirements. In-patient hospital care and emergency medical services are provided by a contract with Providence Hospital located in Centralia.
Dr. Joseph Dubey is the contract psychiatrist for GHS. He is on-site one day a week and it appears that there is limited coordination with medical clinic personnel. This is further evidenced by the lack of written protocols for psychotropic medication management.

Mental health services are primarily provided by staff assigned to the GHS special needs program.
Recommendation - GHS should review and revise the medical services policy and procedures manual at least annually and should immediately develop and implement protocols for psychotropic medication management. A quality assurance program that ensures the quality and consistency of health services provided at GHS should also be implemented.
GHS should develop a policy concerning informed consent governing examinations, treatments and other medical procedures. The right to refuse treatment and consent to medical treatment by juveniles could best be addressed by such a policy.
The services of a registered dietitian is also recommended for GHS to ensure that special medical and dental diets are served to juveniles when ordered by a treating physician or dentist.
The mental health services provided by Green Hill School are currently under study the Department of Social and Health Services. This monitor will withhold any recommendations regarding mental health services until this study is completed.
TRANSLATION SERVICES
Finding - Green Hill School has four bi-linqual staff that serve as Spanish interpreters and translators and has completed the translation of the student handbook. Additionally, the school has implemented a cultural literacy program delivered to residents via a written manual and video. Each living unit has a staff facilitator assigned to deliver this program and a Cultural Literacy Committee directs all cultural education on the campus. The Committee has sponsored African American History Day, St. Patrick's Day, Native American History Day and Cinco de Mayo.
GRIEVANCE PROCEDURES
The State Defendants agree to abide by JRA Bulletin No. 13, relating to Youth Complaints.
Finding - A packet of "Youth Complaint/Appeal Process" forms completed by residents have been received by this monitor which upon review indicates that the process is being used with timely resolution of youth complaints.
In May of 1996, Green Hill School and Columbia Legal Services reached a consensus for language on an updated policy governing due process procedures for movement of a resident to IMU. Changes were made to reflect a current understanding that residents shall be eligible to earn time of their maximum sentence release date regardless of which

GHS living unit they are housed in and that residents will only move to EMU if the Safety Transfer or Disciplinary Transfer criteria are met.
Recommendation - Green Hill School has set September 9, 1996, as the Sunset Review Date for the policy governing due process procedures for movement of a resident to IMU. GHS should submit compliance reports on this updated policy.
ADDITIONAL OBSERVATIONS AND COMMENTS
Green Hill School is making good progress in achieving compliance with the Stipulation and Judgment signed by the Court on September 11, 1995. Particularly noteworthy is that the school currently in the application phase for accreditation by the American Correctional Association with the expectations being awarded accreditation in about 12 months. Accreditation plus a new physical plant will improve treatment practices in this facility.
Prepared & Submitted by: Orlando L. Martinez October 12,1996

 
 Horton v. Williams
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PROPOSED STANDARDS FOR MONITORING COMPLIANCE

ORIGINAL AND SUPPLEMENTAL STIPULATION AND JUDGMENT
JAMES HORTON, ETAL. IS.
BOB WILLIAMS, ETAL.
MR. ORLANDO MARTINEZ, U.S. FEDERAL COURT MONITOR

TABLE OF CONTENTS
/. STANDARDS FOR ORIGINAL JUDGMENT II. STANDARDS FOR SUPPLEMENTAL JUDGMENT III. COMPLIANCE WORKSHEET ORIGINAL JUDGMENT IV. COMPLIANCE WORKSHEET SUPPLEMENTAL JUDGMENT

ORIGINAL JUDGMENT
COMPLIANCE STANDARDS
1. PHYSICAL PLANT
(A.) GHS shall implement the legislative appropriation for the reconstruction and rebuild of the institution's physical plant. The redevelopment shall meet minimum constitutional standards and shall include quarterly reports on the progress of such redevelopment.
COMPLIANCE INDICATORS:
a. Construction Meeting Minutes; b. Auditor Observation.
(B.) GHS shall maintain the existing physical plant in a safe and sanitary condition.
COMPLIANCE INDICATORS:
a. Local Fire Department Inspection Report; b. State Office of Risk Management Inspection Report; c. Internal Weekly and Monthly Life Safety/Fire, Sanitation and
Hygiene Inspection Reports; d. Auditor Observation.
2. AEROSOL AND MECHANICAL RESTRAINT USE
(A.) GHS shall not use aerosol restraint on residents except to prevent serious injury to a person or to a substantial amount of property. GHS shall implement policy, procedure, and practice which permit aerosol restraint use only under the following conditions: (a) there must be a credible threat of a specific serious injury; (b) the intended use for the aerosol is to incapacitate the resident and not to inflict punishment; (c) the aerosol restraint shall be used as a last resort after all other reasonable attempts at crisis intervention/verbal de-escalation have been exhausted; (d) permission for the use of aerosol is authorized by the Superintendent or his designee on a case-by-case basis and its use never pre-authorized; and (e) if the resident is not in mechanical restraints. Whenever aerosol restraint is used, written reports and any video record

of its use shall be submitted to the Superintendent no later than the completion of the shift.
COMPLIANCE INDICATORS:
a. Incident Reports, Incident Review, Audio/Visual Recordings (when available);
b. Local Policy (#4); c. Database Reports.
(B.) GHS shall implement policies, procedures, and practices which permit the use of mechanical restraints only under the following conditions: (a) a resident constitutes a serious and imminent danger to himself, others, or property; or (b) when transporting the resident outside the facility when necessary to protect public safety. Staff shall use only those restraint devices necessary to address the specific threat. When in restraints, a resident shall not be attached to any fixture or furniture except in cases of emergency. All incidents of mechanical restraint use shall be documented in writing and submitted for review prior to the completion of the appropriate shift. Nursing staff shall examine a resident who is injured or claims to be injured during the process of restraint or has remained in restraints longer than 30 minutes (except during or after off-campus transportation).
COMPLIANCE INDICATORS:
a. Local Policy ( #4 ); b. Incident Reports, Incident Review, Medical Chart; c. Data Base Reports; c. Auditor Observation.
3. DISCIPLINARY PROCEDURES
(A.) GHS shall implement policies, procedures, and practices providing constitutionally adequate due process protections to residents transferred to IMU and/or denied a sentence reduction due to misbehavior. Such procedures shall include: (a) at least 24 hour notification of the hearing purpose, date, and time; (b) the opportunity to be present at the hearing and to request a staff advocate to help interpret the proceedings; (c) the ability to call witnesses on his behalf;(d) an impartial hearing officer to review the alleged rule violations and a written copy of the hearing officer's decision; (e) the ability to appeal the hearing decision and receive a response within a reasonable time period.

COMPLIANCE INDICATORS:
a. Local Policy ( #34 and #35 ); b. Safety Transfer Forms, Disciplinary Forms; c. Data Base Reports; d. Auditor Observation.
4. EDUCATIONAL SERVICES
(A.) GHS shall ensure that policy, procedures and practices are implemented to ensure all residents, including those housed in the IMU, shall have access to educational services unless suspended or expelled under appropriate procedures or a security emergency exists.
COMPLIANCE INDICATORS:
a. Local Policy ( #5 ); b. Room Confinement Forms, Expulsion and/or Suspension
Data; c. Attendance Records; d. Auditor Observation.
5. HEALTH AND REHABILITATIVE SERVICES
(A.) GHS shall implement policies, procedures, and practices which permit only qualified medical personnel to prescribe and administer medications to residents;
COMPLIANCE INDICATORS:
a. Local Policy ( #7 ); b. Prescription Orders, Medical Charts; c. Auditor Observation.
6. TRANSLATION SERVICES
(B.) GHS shall provide translation services during the delivery of health care services, orientation, disciplinary, classification, grievance, administrative or other "hearings" involving residents who are unable to speak English. In addition, GHS shall employ at least one staff who has met the testing and qualification criteria established for translation of the Spanish language.

COMPLIANCE INDICATORS:
a. Translated Documents; b. Personnel Record; c. Auditor Observation.
7. GRIEVANCE PROCEDURES
(C.) GHS shall implement policies, procedures, and practices providing residents with a formal review and written response to their grievances. The grievance system shall include at least one level of appeal and shall comply with JRA Bulletin #13.
COMPLIANCE INDICATORS:
a. Local Policy (#12 ); b. JRA Bulletin (#13); c. Data Base Reports; d. Auditor Observation.

SUPPLEMENTAL JUDGMENT
COMPLIANCE STANDARDS
S I . ADMINISTRATION & PERSONNEL
(A.) GHS has a designated mental health authority with local responsibility for mental health care. This individual's license and/or professional experience qualifies him/her to provide direct clinical services and manage a mental health program that addresses the needs of juvenile offenders. The mental health authority is responsible for planning, implementing, and evaluating all levels of mental health care and ensuring quality and accessibility for all mental health services (both preventative and therapeutic) provided to juveniles in GHS. The mental health authority also has responsibility for coordination with the contract psychiatrist, the Health Center supervisor and with outside providers and facilities to meet all levels of care. The Mental Health Authority reviews and evaluates, where appropriate, the recommendations for treatment made by mental health staff.
COMPLIANCE INDICATORS:
a. Personnel organizational chart; copy of current resume and license including written job description.
b. Health Care Committee meeting minutes. c. GHS Policy # 36 ("Mental Health Care"). d. GHS Policy # 26 ("Suicide Prevention and Intervention").
(B.) GHS employs a child/adolescent psychiatrist who makes the health judgments regarding the mental health care provided to juveniles, and is available for consultation 24 hours per day, seven days per week.
COMPLIANCE INDICATORS:
a. GHS Policy #36. b. Written contract for psychiatric services with Children's
Hospital. c. Clinical records.
(C.) GHS mental health staffs have written job descriptions and meet licensure, certification, or training and experience requirements. The Mental Health Authority supervises the mental health care providers, who are not licensed or certified.

COMPLIANCE INDICATORS:
a. Personnel organizational chart and written job descriptions. b. Copies of licenses. c. Training Records.
(D.) GHS provides certified chemical dependency counselors for juveniles in drug/alcohol treatment per State of Washington Administrative Code (WAC) requirements.
COMPLIANCE INDICATORS:
a. Certifications and written job descriptions. b. Personnel Organization Chart.
S2. MENTAL HEALTH AND SUBSTANCE ABUSE CARE
(A.) GHS provides individualized treatment plans for juveniles with mental health and substance abuse needs. These plans are developed and provided by qualified staff.
COMPLIANCE INDICATORS:
a. Clinical and case management records.
(B.) GHS has access to substance abuse and mental health residential treatment within the JRA service delivery system.
COMPLIANCE INDICATORS:
a. Review of referral and transfer procedures. b. Systems map of mental health and substance abuse service
delivery system. c. Review of documentation for juveniles transferred to other
mental health or substance abuse programs.
(C.) GHS has access to inpatient mental health hospitalization.
COMPLIANCE INDICATORS:
a. Record of transfers to inpatient mental health facilities for severe mental disorders.

b. Systems map of mental health and substance abuse service delivery system.
c. Interagency Agreement.
(D.) GHS provides ongoing training to facility treatment staff relative to mental health and substance abuse needs.
COMPLIANCE INDICATORS:
a. Training records.
S3. SUICIDE PREVENTION SERVICES
(A.) GHS has written policies and procedures to reduce the risk of suicidal behavior. These policies ensure screening for all juveniles at all points of entry to the facility.
COMPLIANCE INDICATORS:
a. GHS Policy #26.
(B.) Mental health staff are immediately notified if a juvenile presents a risk for suicide or self-harm. The reporting staff immediately completes a mental health/self-harm risk assessment and notifies institution medical staff. If the screening results in assignment to Suicide Precaution Levels (SPL) 1 or 2 : • A mental health professional is consulted by Special Needs Program staff, or other health care staff as available; • The psychiatrist is consulted by nursing staff; • The psychiatrist determines the degree of intervention necessary based on established policies and procedures.
COMPLIANCE INDICATORS:
a. Clinical records. b. Policy #26 c. Suicide Watch Log.
(C.) All GHS staff who have supervisory responsibility over juveniles receive agency approved suicide training.

COMPLIANCE INDICATORS:
a. Training records.
(D.) GHS maintains appropriate rescue equipment to ensure that staff can effectively intervene in an attempted suicide or episode of self-mutilation. This equipment is kept in an area easily accessible to all living units.
COMPLIANCE INDICATORS:
a. Auditor observation.
S4. PSYCHOTROPIC MEDICATION PRACTICES
(A.) The facility psychiatrist or physician uses approved medication protocols when prescribing psychotropic medications. A child/adolescent psychiatrist develops the psychotropic protocols.
COMPLIANCE INDICATORS:
a. Medication protocols. b. GHS Policy # 7. c. GHS Policy # 36. d. Merck Manual of Diagnosis and Therapy. e. Physician's Desk Reference.
(B.) Psychotropic medications are prescribed by licensed physicians or qualified medical staff only when medically indicated, and are consistent with established protocols.
COMPLIANCE INDICATORS:
a. Clinical records of juveniles prescribed psychotropic medications.
b. GHS Policies #7 and #36. c. Medication protocols
(C.) Nurses receive supplemental pharmacological training on psychotropic medication topics.
COMPLIANCE INDICATORS:
a. Training records.

(D.) Residents are monitored for adverse reactions to medications. Findings are documented in the medical file.
COMPLIANCE INDICATORS:
a. Clinical records.
(E.) GHS notifies a juvenile's parent or legal guardian or the juvenile court when prescribing psychotropic medication to residents who have not reached the statutory age of consent. The medication shall not be given on an involuntary basis unless a serious threat to safety exists.
COMPLIANCE INDICATORS:
a. Clinical records.
(F.) Nurses evaluate juveniles who have received emergency psychotropic medication at least once during each of the next three shifts.
COMPLIANCE INDICATORS:
a. Clinical records.
(G.) Within 24 hours of prescribing emergency psychotropic medication, the physician assesses the efficacy of medication therapy. COMPLIANCE INDICATORS:
a. Clinical records.

Green Hill School Chehalis, Washington
ORIGINAL STIPULATION AND JUDGMENT COMPLIANCE MEASUREMENT WORKSHEET

Standard # (la) (lb)
(2a) (2b) (2b) (2b)

Topic
PHYSICAL PLANT GHS has written documentation that demonstrates measurable progress toward completing the physical plant rebuild. There is written documentation from both internal and external sources, that GHS is maintaining the existing physical plant in a safe and sanitary manner consistent with Federal, State, and local Life Safety, Fire, Sanitation, and Hygiene standards.
USE OF CHEMICAL AND MECHANICAL RESTRAINTS
Incidents involving the use of chemical restraint are documented and justifications for their use conform to local policy and settlement criteria. Incidents involving the use of mechanical restraints are documented in writing and justification for their use conforms to local policy and settlement criteria. There is written policy, procedure and practice which demonstrates residents who are injured or claim to be injured during the process of restraint are examined by nursing staff. There is written policy, procedure, and practice which demonstrates residents who remain in mechanical restraints for longer than 30 minutes are examined by nursing staff.
DISCIPLINARY PROCEDURES

Substantial Compliance
Yes/No

(3a)

GHS policies and procedures provide

constitutionally adequate due process protections

for residents transferred to the IMU and/or denied a

sentence reduction due to misbehavior.

(3a)

GHS has written documentation demonstrating

residents housed in the IMU have received adequate

due process review hearings in accordance with

local policy and settlement criteria.

10

Standard #

DISCIPLINARY PROCEDURES

(3a) GHS has written documentation demonstrating

residents who have been denied a sentence

reduction due to misbehavior, have received

adequate due process hearings in accordance with

local policy and settlement criteria.

EDUCATIONAL SERVICES

(4a) GHS has written policy and procedures ensuring all

residents, including those housed in IMU, have

access to educational services.

(4a) GHS has written documentation demonstrating any

resident denied access to educational services has

been expelled or suspended under appropriate

procedures or was removed for security purposes.

HEALTH AND REHABILITATIVE SERVICES

(5a)

GHS has written documentation indicating only

qualified medical personnel prescribe and

administer medications to residents.

wmmÊKÊÊMiùtmTÊùtm¦B¦vicBa
(5b) There is written evidence of translation services

provided to residents who are unable to speak

English. Appropriate orientation, health care,

disciplinary, and grievance procedures have been

translated or translators are available to assist in

their translation when needed.

(5b) GHS employs at least one staff who is qualified and

meets the criteria for translation and interpretation

of Spanish.

GRIEVANCE PROCEDURES

(5c)

GHS has written policies and procedures for

handling resident grievances according to the

criteria promulgated in JRA Bulletin #13.

(5c)

GHS has written documentation demonstrating

timely resolution of resident complaints and

appeals.

Substantial Compliance
Yes/No

11

Green Hill School Chehalis, Washington

SUPPLEMENTAL STIPULATION AND JUDGMENT COMPLIANCE MEASUREMENT WORKSHEET

Standard #
(Sla) (Sla)
(Sla)
(Sla)
(Sla) (Sib) (Sib) (Sic) (Sic)
(Sid)

Topic
ADMINISTRATION AND PERSONNEL GHS employs a designated mental health authority. The job description of the mental health authority denotes that this professional has completed a graduate level of education and training consistent with professional and licensure standards for their discipline. Personnel records indicate the mental health authority is currently licensed or certified in their discipline, and has sufficient experience in the profession to address position requirements. The mental health authority is required by the above agreement, contract, or job description to plan, implement, and evaluate all levels of mental health care. The mental health contract indicates that the mental health authority coordinates services by external mental health consultants and providers. Psychiatric consultation services are available 24 hours per day, seven days per week. GHS policies denote a physician is responsible for final mental health judgments for mentally ill juveniles. All mental health staff have written job descriptions consistent with their level of education, training and experience. There is written documentation demonstrating the Mental Health Authority provides clinical supervision and reviews the work of all non-licensed or certified mental health staff. Personnel records specify that all direct service providers in the chemical dependency treatment program are certified as chemical dependency counselors, or are supervised by a person with these qualifications.

Substantial Compliance
Yes/No

12

Standard # (S2a)
(S2b & c) (S2d) (S3a) (S3a) (S3b) (S3b) (S3b) (S3b)

MENTAL HEALTH AND SUBSTANCE ABUSE CARE
Clinical records indicate that residents provided with mental health services, other than assessments or emergencies, have treatment plans developed and provided by qualified staff. Clinical and administrative records indicate that in high acuity cases, juveniles in need of inpatient mental health services are transferred to such programs in a timely manner. Training records indicate that GHS staff have been provided with mental health and substance abuse training.
SUICIDE PREVENTION SERVICES GHS has written policies and procedures to reduce the risk of suicidal behavior by providing screening for all juveniles at all points of entry to the facility. Clinical records indicate that all juveniles deemed at risk for suicidal or self-destructive behavior are assessed and provided with monitoring and intervention services based on level of need. Clinical records indicate that all juveniles who express a serious intent to commit acts of self-harm or suicide are immediately evaluated and placed on a preventive suicide watch to ensure their safety. Clinical records indicate that medical and mental health staff are notified immediately when a juvenile presents a risk to self-harm or suicide. Clinical records indicate that a psychiatrist has been immediately consulted regarding all juveniles placed on Suicide Precaution Level 1 or 2. Clinical records indicate that a psychiatrist evaluates all juveniles placed on Suicide Precaution Level 1 or 2.

Substantial Compliance
Yes/ No

13

Standard #
(S3b) (S3c)
(S3c)
(S3d)
(S4a) (S4a) (S4b) (S4c) (S4d)
(S4e)

SUICIDE PREVENTION SERVICES
V •1
Living unit records indicate that juveniles assigned to Suicide Precaution Level 1 are under constant watch per facility policy Training records indicate that all GHS staff who have supervisory responsibility over juveniles have completed suicide prevention training conducted by a qualified suicide prevention specialist, on an annual basis.
Review of the suicide prevention training curriculum indicates that the topics covered includes, but is not limited to, responding to a suicide attempt, including emergency rescue techniques. The curriculum is approved by a mental health professional. Facility inspection reveals that GHS maintains appropriate suicide prevention rescue equipment in an area easily accessible to all living units.
PSYCHOTROPIC MEDICATION PRACTICES The GHS policy or protocol manual reveals a child/adolescent developed and approved psychotropic medication protocol. GHS policies and clinical records indicate those only licensed physicians or qualified medical staff have prescribed psychotropic medications. Clinical records indicate that prescriptions for psychotropic medications were for medical disorders, and they are in compliance with protocols. Training records indicate that supplemental training on psychotropic medication protocols for nurses has been completed. Clinical records indicate that medical staff monitor juveniles receiving psychotropic medications, documenting the effects of the medication and side effects, if any. Clinical records indicate the facility contacts the parents or guardians of juveniles who have not met the statutory age of consent to notify them of prescription of psychotropic medications.

Substantial Compliance
Yes/No

14

Standard #

PSYCHOTROPIC MEDICATION PRACTICES

(S4e) (S4f)
(S4g)

There is written documentation demonstrating that psychotropic medications are not administered involuntarily unless a safety emergency exists. Clinical and administrative records indicate that for juveniles who have received emergency (i.e., involuntary) psychotropic medications, nursing personnel conducted an examination of the juvenile each of the next three shifts since administration.
Clinical records indicate that a physician has assessed the juvenile's response to administration of psychotropic medication within 24 hours of administration.

Substantial Compliance
Yes/No

AUDITOR'S COMMENTS

15

 
 Horton v. Williams

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J WA-0002-0048
GREEN HILL SCHOOL
RESIDENT HANDBOOK

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ART SCHMIDT, SUPERINTENDENT

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Green Hill School Resident Handbook
What is Green Hill School's purpose?
Welcome to Green Hill School (GHS). Regardless of how you got here, it is our mission to help you change those aspects of your life which have prevented you from living without crime. It is your responsibility to read this handbook and become familiar with the information contained in it. If you should have trouble reading or understanding its contents, one of our staff will be happy to assist you with reading and/or explaining its meaning.
Green Hill School's purpose can best be explained by reading and understanding our mission statement: To Help Young Men Change... Everything Else is a Cost.
Within Washington State's Juvenile Rehabilitation Administration (JRA), GHS is considered a maximum security facility. This essentially means that the institution was built to provide the maximum amount of protection for you, staff, and the community. By providing this structure, you are afforded an excellent opportunity to participate in programs which maximize your developing strengths.
"Remember, Green Hill is a non-violent community. All persons will learn to resolve their differences through discussion and tolerance." Art Schmidt, Superintendent
What are Green Hill's expectations of me?
Let's begin with what we don't expect. We don't expect you to be "perfed." However, we do expect you to work towards fulfilling your goals. We also expect you to learn, follow the rules, and to take responsibility for your actions. Take a few minutes, write on a separate sheet of paper, the following ten guidelines:
1. Treat others with respect, courtesy, and dignity; 2. Tell the truth;

3. Participate in academics, skill-building classes, vocational training, recreation, and counseling;
4. Be on time to all programmed activities; 5. Resolve problems through discussion; 6. Learn and practice good personal hygiene; 7. Follow staff directives and GHS Standard Rules of Conduct; 8. Identify and work on problematic behavioral patterns; and 9. Challenge yourself to learn something new.
Green Hill School is a non-smoking facility. Possession of tobacco or smoking paraphernalia is a violation of the Standard Rules of Conduct (SRC).
How is my Release Date determined and what is a Community Risk Assessment (CRA)?
¯*5
Your release date is your aggregate maximum (this is the combined total of all commitments). However, an adjustment to this may occur if you meet certain criteria:
1. Youth at an institutional minimum or minimum security classification may be released upon serving the aggregated minimum term for all commitments, provided the most recent "CRA" score is 20 or less.
2. Youth whose consecutive CRA eligibility scores do not meet requirements for institutional minimum or youths at minimum security classification whose most recent CRA is greater than 20, may be released prior to serving the maximum term if an administrative exception has been granted. The reasons for the exception shall be documented in an Record of Official Action (ROA).
Even though you qualify for an institutional minimum or minimum security classification you may be held past the aggregated minimum term. If you are being considered for retention beyond the aggregated minimum release date or the date on which you become eligible for release, you shall be provided with:
1. A local administrative review; 2. Written notice at least three working days in advance of the review indicating the
reason(s) for the consideration; 3. A neutral chairperson for the administrative review; 4. An opportunity to appear in person at the review, present witnesses and documentary

evidence, and question adverse witnesses unless the chairperson specifically finds good cause for not allowing confrontation; and 5. A copy of the ROA indicating the reason(s) for not being released;
Manifest Injustice or standard sentences may require an offender to be held in custody until his 21st birthday.
1. If a juvenile court issues a manifest injustice order stating that you shall not be released before your 21st birthday, release shall occur on your 21st birthday.
2. If a court order specifies a period of confinement resulting in an aggregated minimum release date beyond your 21st birthday, release will occur on your 21st birthday.
3. If a court order states that you are "committed" until your 21st birthday, the 21st birthday shall become the maximum and a minimum release date will be calculated.
COMMUNITY RISK ASSESSMENTS (CRA):
The CRA is an instrument used to determine your rehabilitation progress and potential risk to the community. The CRA assesses behavior displayed during the previous 90 days and assists us in assigning a Security Classification, determining your eligibility for community placement (group homes), and assigning your release date.
What Living Unit will I stay in?
Your security risk (which includes the assessed risk to escape, assault, behave aggressively or attempt suicide) will determine your initial placement at GHS. Residents on a new commitment, will participate in the Intake and Assessment program.
This program provides academic, vocational, substance abuse, medical, physical fitness and psychological testing. During this time you, your counselor, and a GH5 assessment team, will develop your self betterment plan. Our Self Betterment Program incorporates all aspects of skill development including goal setting, interpersonal relations, education, health, diet, physical fitness, work, ethics, respect and dignity. It is to your benefit to be honest and actively participate in the assessment process.
A Classification Committee will determine your classification and living unit assignment upon

completion of the assessment process. You are encouraged to participate in the classification determination.
OPEN LIVING UNIT PROGRAMS:
These programs provide housing and education centered around the JRA Competencies. Competencies are behavioral and cognitive (knowledge) based skills. The competencies will assist staff to evaluate your progress. The competencies address nine mandatory and three specialty areas:
The mandatory areas are:
1. Aggression management 2. Substance abuse education 3. Work 4. Education/vocation 5. Life skills 6. Family 7. Problem solving 8. Constructive response to frustration 9. Victim empathy/restoration
The specialty areas are:
1. Substance Abuse treatment 2. Sex Offender Treatment 3. Mental Health
INTENSIVE MANAGEMENT UNITS (IMU)
IMU provides secure housing for residents requesting protective custody, serving a disciplinary sanction, or residents presenting a threat of physical harm to self, others, property, or to escape. IMU is for residents who display a pattern of hostile and defiant behaviors. If you are considered for transfer to the IMU, you will receive due process. Due process includes written notice of a hearing; the right to be present, give evidence, and to receive written notice of the hearing officer's decision. You also have the right to appeal the hearing decision to the Superintendent.
Residents attend academic classes in the unit and are not eligible for work programs outside the unit.

"It is the policy ofGHS to place residents in the least restrictive living unit consistent with their risk tojeopardize the security and safety of the community, Our staff, and other residents."
Art Schmidt, Superintendent
Are there ways in which I can earn money while at Green Hill School?
You will have an opportunity to earn money while at GHS. The SelfBetterment program is designed to provide you with income based upon achievement in multiple areas of your plan. Successful program achievement on a per-item basis will determine the amount of money earned.
Evaluation will be on your ability to meet expectations in the following areas: 1. Commitment to change and behavior; 2. Vocational preparation and practice; and 3. Educational success.
You and your counselor will be responsible for tracking progress in each of these areas. All residents, except those who have not completed the 30 day orientation period, those housed in IMU, or those here on a parole revocation, are eligible for participation in the Self-Betterment Program.
What about education and going to school?
The Chehal¡s School District oversees the academic program at GHS. Every resident shall have an academic program unless he has received his diploma or completed his GED. The school will work with previously attended schools and conduct testing to determine an appropriate academic schedule. The program may include vocational education, training and/or work.
"We believe the Academic School and staff can make a difference in your life while you are here and

after you leave. The staff will be of great help to you if you allow them the opportunity to share what they know and assistyou in making plans for life after GHS." Ron Franklin, Principal
Open-Campus School
The main academic school building is at the center of campus. To attend this program you must be a medium or institutional minimum security classification. You must complete the intake and assessment process before attending the school program. This usually takes 30 days. The school offers three educational pathways. They are:
1. Pre-vocational - Prepares you for transfer to a vocational school or job training site. 2. Vocational - Prepares you for a specific job skill allowing you to transition into work
directly after release from GHS. 3. Academic Preparation - Prepares you for completion of your GED certificate or High
School Diploma or re-entry into a community school program. This pathway also prepares you to attend post secondary institutions (colleges, universities).
IMU School Program
IMU has an "in-house" academic program, which includes a five day-a-week instruction program.
What kinds of work and vocational programs are available?
The mission of the Work Experience Program is to provide residents with a variety of skills required by today's employers. This program offers the unique opportunity to gain first-hand knowledge of the world of work through on-the-job training, classes, and life skills programs. Because these programs must reflect the expectations of employers, we monitor them to ensure that each resident is provided with the best chance for his success. Examples of Work Experience and Vocational Programs include:
4 Cosmetology 4 Culinary Arts and Food Service 4 Garden¡ng/Landscaping/Horticulture 4 Grounds Maintenance 4 Building Maintenance 4 Recycling

Carpentry Painting Laundry Plumbing Recreation Aide Commissary Aide
Who can help me stop abusing Drugs and/or Alcohol?
Many residents of juvenile facilities have drug/alcohol problems. At intake, each resident is intervened by the 6HS Chemical Dependency Treatment Coordinator, who evaluates the need for a specific drug/alcohol treatment plan. If determined to be in need, a consultation session is held between the Coordinator, the juvenile, and the case manager to determine which program is most suitable: • The SAGE intensive outpatient program at GHS; • The OMNI ¡npatient program at Maple Lane School; or, • The Parke Creek Group Home program for those eligible for community transitional programming.
All JRA chemical dependency treatment programs are accredited through the Washington State Division of Alcohol and Substance Abuse (DASA), who conducts yearly reviews of these programs to ensure they meet professional standards for treatment. All counselors are qualified Chemical Dependency Counselors (CDC's), having completed studies and supervised experience as provided in State law. Once a resident has completed any of these programs, an aftercare program is designed to assist the resident to follow through on plans made during treatment.
What about Recreation and Sports?
Participation in recreational activities is an important part of how you spend your time at Green Hill School. Your involvement in recreation will begin with participation in the National President's Physical Fitness program. Our staff, with your help, will design a program which permits you to engage in activities and sports which are both fun and educational. You will be expected to participate in at least one hour of large muscle group activity per day.

Staff are available to coach, referee, and ensure equal participation in all events.
"Sports, crafts, and other recreation activities allow us to expend our creative energies in ways which foster self-discipline, teamwork, and respect for others." Barrie Maxey, Associate Superintendent
What kinds of religious programs are there at GHS?
Religious services are available to residents on a scheduled basis. Various program events such as bible study, prayer, or guest performances are available throughout the year. The chaplain will visit during the time you spend in the Intake and Assessment program to determine the needs of your particular faith. You are encouraged to participate in religious programs. If you should have questions about the programs, you may ask staff to contact the chaplain for an appointment.

What is the Honor Program?

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The Honor Program was created to encourage residents to distinguish

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themselves among their peers through superior behavior, participation in

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programs, and demonstrated leadership. Honor residents receive

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additional privileges and responsibilities as an incentive and as a means of

gaining experiences that will benefit you upon your return to the community.

To be considered for the Honor Program residents must be assigned to an open-campus program and able to demonstrate achievement of the following standards:

- Treat others with respect, courtesy, and dignity - Attain the highest living unit level - Display initiative - Maintain an average score of three or greater, since the last programming committee
review, on the weekly Self-Betterment Program evaluation - Do not incur any high moderate or major SRC violations since the last programming committee review.

If you believe that you have achieved the requirements for this level, you may start the process by talking to and submitting a request to your counselor. If your counselor agrees, he/she will do an in-depth review of your achievements. If your performance in all areas is superior, your counselor

will make the nomination to the programming committee. If staff deny your request at any point they will provide you with an explanation of what else you need to do to achieve honor status.
Honor Level Resident Responsibilities
You must maintain the standards that qualified you for the program. Part of the requirement is to serve in a leadership position within your living unit. Typical leadership positions include detail coordinator, activity coordinator, living unit group leader, and resident council member. An essential aspect of the Honor Program is to be a positive role model and assist other residents in making appropriate and responsible decisions.
Under no circumstances will a resident keep his Honor Level if he fails to progress in programming, behaves inappropriately, or fails to meet academic or work standards.
Honor Level Privileges
- A state issued television for your room - Up to 15 cassettes/CDs - Exemption from communal housekeeping details - Freedom of movement within the living-unit (only in designated living unit areas) during
quiet or detail time, as long as it does not disrupt the orderly administration of details - Regular late night programming, when staffing permits - Unescorted walks in a designated area, from 0800 to 1430 hours, as long as it does not
interfere with your program - Four (4) incoming and four collect calls a day, based on telephone availability - Authorization to expend available personal funds to order precooked delivery food from an approved local establishment
What happens if I need medical, dental or mental health care?
Our Health Center provides medical, dental and mental health care for all residents. A Registered Nurse (RN) will assess each resident upon intake to GHS. These assessments address past medical history, chronic and/or acute medical, mental health and dental conditions. You will receive a comprehensive physical examination by the physician within seven days and a dental evaluation within thirty days of arrival to GHS. You may request or be referred to Mental Health Counseling if you demonstrate the need or have a history

of such a condition. Each resident who resides in the facility for more than one year will receive an annual physical examination by the doctor.
Sick Call is held at the health center daily and emergency services are available at all times.
To access services you must:
1. Obtain a "Request for Health Services Slip" from living unit staff. 2. Submit completed form to the nurse in the Central Dining Facility, during meal time. It is
your responsibility to deliver the slip to the RN (for open program residents). 3. IMU residents must submit your request to the living unit staff. Staff will forward your
request to the Health Center. 4. Our nurse will review the request and schedule an evaluation.
Services
• Routine Examinations • Testing and treatment for sexually transmitted diseases • Confidential AIDS testing • Counseling and health education • Referrals to physician specialists, appropriate health agencies, or hospitals • Trauma response • Eye sight screening • Dental services • Mental health services
Health Center personnel may restrict residents from a particular activity, on a short term basis, due to an acute medical problem. Once placed on a medical restriction, residents will not be able to return to the activity until cleared by Health Center staff. When this occurs, the Health Center staff will notify you and the living unit staff of any special medical care needs or restrictions. Mental health services exist for residents who have problems with their moods, problem-solving abilities, behavioral problems associated with mental health problems, or are in need of medication to cope with learning, mood, thinking, or behavioral disorders. Residents may be self-referred for these services, or may be referred by a counselor or family member. Staff providing mental health services include qualified psychiatrists, psychologists, or counselors who have received specialized mental health training.
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Restitution for Health Related Services
Residents may be charged restitution for health services if they are involved in horseplay or assault incidents in which one or more persons sustain injuries that require medical treatment. Restitution may also be charged for certain instances of non-compliance with a health care plan.
Medication Administration
Residents taking medication are responsible to take it at the scheduled times. Residents, in an open living unit, shall receive their medication at the nurse's station, in the central dining facility during meal times. Tylenol, antacids, and a limited variety of topical medications are available and administration is supervised by the program staff in the living units. Residents' respiratory inhalers are in the health center. Residents needing to use their inhaler go to the Health Center for dispensing.
In order for you to receive your medication at the Central kitchen:
1. You must line up in single file to receive your medication. 2. A security or living unit staff will be present at the front of the medication line to assist the
nurse in accurate identification of each resident. 3. You will need to state your names clearly, if asked by the nurse. 4 . You will dispose of the medication cup and water cup as directed by the staff. 5. You may have to perform a self oral exam to assure that the medication has been ingested
appropriately. Failure to comply will result in a SRC violation. 6. Any resident found stashing, cheeking or abusing medications may immediately have the
medication(s) discontinued, in addition to receiving a SRC violation.
Health Center staff may, at their discretion, decide to crush medication prior to administration.
Mental Health Services
GHS contracts for certain psychiatric services. GHS employs a full-time psychologist for mental health assessments, consultation with counselors, and clinical supervision of residents' treatment plans. The Special Needs Program (SNP) provides specialized individual and group counseling for appropriate residents. Checking "Mental Health" on the Student Health Center Services Request form will result in an appointment to see one of these professionals.
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Refusal of Dental, Medical and Mental Health Services
Residents may refuse dental, medical and mental health services. If you are planning to refuse services, we recommend that you consult your parent(s)/legal guardian and your lawyer prior to refusal.
What about meals at GHS?
You will receive three well-balanced meals daily plus some additional snacks. Special religious diets are available but must be approved by the GHS chaplain. Medical diets are available but must be approved by medical service personnel.
p What are the general program rules and housekeeping -0 procedures?
All residents will be responsible to clean a portion of the living unit daily. Staff assign details each Sunday and will rotate your assignment with those assigned to your peers. Open campus living units complete details twice each day. The IMU and intake unit complete details three times daily. Once you have completed your detail, staff will check it before you go back to your room. Regular programming will resume at the conclusion of details.
The Superintendent, Associate Superintendents, the Program Manager 2, the Safety Officer, and the Health Center Supervisor will inspect the living unit each week. The unit(s) determined to be the neatest, safest, and cleanest inside and out will receive weekly awards.
Room Guidelines
Residents may have the approved items described under the heading of "Resident Property" in their room. Staff will regularly check to ensure the following steps have been taken when grading a room:
- Dust rooms with a damp cloth; - Floors/Corners must be swept and mopped; - Bed must be made;
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- Walls must be cleaned with damp cloth; posters and pictures must be neat and meet size and number requirements; - Windows/Sills must be cleaned and neat; - Trash/Trash Can must be clean and empty with a clean trash can liner in it; - Closet must be neat and clean; - Room items must be in compliance with property rules; - Placement and condition of the GHS Resident Handbook must meet living unit's requirements; - Personal Hygiene of resident must meet living unit's requirements; - No graffiti, unauthorized property, or destruction of state property.
Room changes must be approved by your assigned counselor. If an immediate need arises for a room change, the staff on shift will discuss it with you. Remember, no state issued food is allowed in your room.
SHOWER/RESTROOM GUIDELINES
Scheduled shower times vary depending upon assigned living unit programs. Staff will limit the number of residents in the shower/restroom area for safety and security reasons. You must take a shower daily.
PERSONAL HYGIENE AND HAIR CARE
Hygiene refers to those things we do to maintain good health. Most people use the word to describe daily washing and cleansing practices. The practice of a consistent hygiene routine will decrease the chance of infections. GHS will provide all the necessary hygiene items required for maintaining sound health. Some general guidelines you should follow are:
Brush your teeth at least twice daily, once in the morning and once in the evening. It is desirable to brush after meals. Never use another person's toothbrush. Floss your teeth daily. Shower daily. Your routine should include recreational activities that increase perspiration. In addition to body odor, perspiration and oils on the skin make acne worse and can also lead to skin infections. When showering, be sure to use generous amounts of soap to clean areas that are odor producing or have high amounts of bacteria such as the underarms and groin area. Use deodorant after showering. Wash and comb your hair frequently.
13

Always use a clean razor when shaving. Never use another person's razor. Always wash your hands after using the bathroom and before meals. Wash your face in the morning and before bed. Change your underwear daily. Always wear clean, dry socks. Cover your mouth and nose when sneezing or coughing. Decrease the spread of colds and flu by practicing a good hand washing routine. Keep your fingernails and toenails cut to an appropriate length. Staff may ask you to cut your fingernails if they become a safety, health, or security concern.
GHS will provide hair cuts to residents. One hair cut per month is free to you. Any obvious change in your appearance will require that you have a new resident identification picture taken.
How can I resolve a complaint?
First, talk to the person(s) involved. It may be just a simple misunderstanding and the discussion may be all that is needed to resolve the problem.
If that did not resolve things to your satisfaction, complete a Resident Complaint/Appeal Request form and place it in the Resident Complaint Box in the Central Dining Facility. Birch and the IMU have complaint boxes in the living unit. Pickups from the complaint boxes occur three times weekly. Staff will log in the complaint and forward it to the appropriate location for resolution. The complaint will be discussed with you and a written decision will be provided within three working days.
If you still feel that your complaint has not been resolved to your satisfaction, you may appeal the decision. In these instances, a manager will review the complaint and issue a decision within five working days.
If you are still unsatisfied, you may appeal this decision within three days by requesting a review by an Associate Superintendent and then the Superintendent. To do this you must complete this section of the form and return the Resident Complaint/Appeal Request to the Resident Complaint Box. An Associate Superintendent and subsequently the Superintendent or his designee will issue a decision within five working days of receipt of the complaint/appeal.
14

If the results are not satisfactory, you may request the matter be sent to the Juvenile Rehabilitation Administration Institutional Director. An ombudsman, who handles all complaints, will address your complaint. This decision is final.
Even if you do not like the final decision, nothing in this procedure prevents you from obtaining legal counsel to pursue the complaint farther.

How can I get legal assistance while I'm at GHS?
For your legal questions, JRA contracts with an independent law firm, allowing you the opportunity to receive legal assistance. We refer to this firm as "Legal Services." Keep in mind that telephone contact with Legal Services must be within the rules outlined in the Telephone Use Rules and Procedures. The following is a notice from Legal Services:

NOTICE TO YOUTH COMMITTED TO JUVENILE REHABILITATION ADMINISTRATION

HOW TO OBTAIN LEGAL ASSISTANCE

Write to:

Charlie Rosenberry Attorney at Law PO Box 2728 Vashon,WA 98070

Call Toll Free

1 -888-463-3757 or collect (206) 463-4845

If you have a legal question, or problem, you should contact Legal Services by calling or writing. If writing, you should fill out a Legal Assistance Request Form. These can be obtained from your living unit staff or by calling us, if necessary.

THIS HANDBOOK IS NOT INTENDED TO BE A LEGAL DOCUMENT.

What about making or receiving phone calls?

We approve family members and/or significant others for phone contacts. When appropriate, we will add approved people to your phone list.
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We will not add the following list of people to your phone list: Victims, co-defendants, ex-JRA/GHS residents and staff, current staff, residents/inmates in other rehabilitative/correctional facilities, and people who are a detriment to your rehabilitation. Staff will verify all information.
If someone is not on the approved list, you will not be able to call or receive calls from them. Your living unit program level determines the number of calls you receive/place per day. Special arrangements may be made through you counselor to place calls to a parent or guardian who is incarcerated.
Level 1: 1 incoming and 1 collect; Level 2: 2 incoming and 2 collect; Level 3: 3 incoming and 3 collect; Honor: 4 incoming and 4 collect.
Collect and incoming calls are ten minutes in duration. Residents on special programs, or in an intake or Intensive Management Unit, have more restrictive phone use. Residents receive a five (5) minute SCAN call every seven (7) days. The purpose of the SCAN call is to improve or maintain communication with parent(s), guard¡an(s), or the mother of the resident's child. If you are calling approved people in the local area, this will replace the SCAN and collect calls.
Staff will maintain a record of all calls, including date, time, name and telephone number of the person called/calling in the Telephone Log. This also allows staff to keep track of how many calls a resident has made and received.
Telephone contact may be restricted and/or monitored by staff for reasons of public safety, facility security, protection of involved individuals, or treatment concerns. Both parties will be notified of any restrictions or monitoring by staff. You will be given written notice if communications are restricted, modified, or monitored.
Residents Responsibilities for Using the Telephone -
• Keep track of how many calls you are allowed and how many you have made. • Get permission from staff before placing a call. If you call a number and the person is
not home, inform the staff. Before placing another call make sure to get permission. • You may only talk to the person whom you called or who called you. • No three-way calls. No credit or calling card calls. • You may not receive or make phone calls consecutively (one after another). All
residents deserve an equal opportunity to use the telephone. • Staff will accept your incoming calls based on your allowable number of calls.
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Abusing the use of the telephone by breaking the rules/procedures, or any inappropriate behavior regarding the phone, can result in sanctions which may include loss of phone privileges for a specified length of time. You may receive daily call(s) from approved family members while on a room confinement if your behavior and attitude are appropriate and if the call does not interfere with regular living unit activities/programs. When your time is up, briefly end your conversation and say good-bye. You must end your call within one minute
What about Visits from friends or family?
Visiting hours are from 1230 hours to 1600 hours (12:30 to 4 p.m.), on weekends and holidays. We will allow only preapproved visitors to enter institutional grounds.
Visitation requirements are:
• Parent(s) or legal guardian(s) must accompany visitors under the age of 18. • All visitors 13 years or older must present valid picture identification.
Visiting List
Each resident has a permanent Visitors List. The list may consist of immediate family, guardians, and/or the mother of your child (should you have a child).
You may have up to six visitors at one time. Anything above that number will need pre-approval. Special occasions are the only considerations. These arrangements need at least 72 hours of advance notice. These arrangements will need to have an Exception to Visitor Policy form completed prior to the visit and a living unit staff must be available to supervise the visit.
You must complete a "Visitor's Registration Form" for each person you wish to place on your list. Your counselor and the living unit supervisor or the program manager will process your request. Visitor approval requires verification of that visitor by your assigned counselor. This is not always a quick process. It is your responsibility to turn your request form in at least seven days before you expect to visit. If you have been at GHS less than seven days, complete the exception form for visitors. This exception is only temporary, so you must complete the "Visitor's Registration Form" as soon as possible.
17

Residents with a maximum security level, or living in the intake or the IMU shall normally receive visits within their units. These programs may limit visitors. Residents in open living unit programs will visit in the Visiting Center unless safety or security reasons require use of another area.
Your visit will be terminated if your behavior or the behavior of your visitor(s) threatens the safety and security of this institution.
Exception to Visitor Policy
An "Exception to Visitor Policy" form must be completed whenever a visit is held other than regular visiting hours or days. Visitor exceptions must meet the same requirements as the permanent list. An example of possible situations in which an Exception to Visitor Policy form must be done is if a person lives too far from GHS to visit on a regular basis. Another example is if someone is on your approved visiting list but is unable to visit during regularly scheduled hours or days.
Visiting Center Rules and Procedures
When visitors arrive, security will notify the living unit. The living unit staff will send you directly to the Visiting Center to check in at the security desk. You may not leave the Visiting Center at any time without the approval of security staff. If you need to use the restroom, staff will arrange to send you back to the living unit, after which you may return to the Visiting Center to complete your visit. However we advise you to take care of personal needs prior to your visit. Security will search you prior to leaving the visiting center.
• You may give a brief kiss and hug to your visitors, upon arrival and departure. We prohibit body contact during visiting.
• At the end of your visit, you are to say goodbye and remain in the Visiting Center until staff give you approval to leave.
• Your visitor will have to take all items they brought with them. Anything left with you is contraband.
• We will terminate the visit if you or your visitors' behavior becomes inappropriate. In some cases we will suspend visiting privileges for a specific amount of time.
What about my personal property?
You are solely responsible for any property you choose to keep in your
18

possession. GHS allows personal property with a replacement value of less than $50.00. Property which you are not allowed to retain, will be confiscated and placed in storage at intake. We will inventory your belongings once they arrive and record the item(s) on the "Personal Property Master Inventory Form." At this time we'll assist you in placing your JRA number somewhere on the approved property. Property which you choose not to have marked will be placed in storage. You may not make claims on property that isn't on your property inventory. We will require that you complete the "Release of Liability Form" at the time you permanently mark your property and indicate whether you choose to inventory your property or not.
Update your Personal Property Master Inventory Form whenever you dispose of or receive items of allowable personal property. Complete this form with your counselor at the time you permanently mark your property. You will have the opportunity to secure your property prior to any move, transfer, or release unless you are a safety or security risk at the time of the move or transfer.
If you are seeking reimbursement for damaged or lost property due to staff negligence, you must complete a "Standard Tort Claim Form." You may send your claim to the Office of Risk Management or turn it into the Program Manager. The claim(s) may not exceed the $50.00 per item limit.
Staff will confiscate any property that does not have your JRA number on it and/or is not on your Personal Property Master Inventory Form. If you are in possession of property that is illegal or deemed a safety or security risk, you will face disciplinary action and/or criminal charges.
You are not to lend, borrow, trade, gamble, sell, or give any property to anyone while at GHS. Such behavior may result in disciplinary action. In addition, the property will be confiscated. Personal property is accepted from approved commercial sources via the mail. The only exception is property brought in at intake. Items which are available from the canteen may not be ordered from a commercial source.
Honor level residents may have additional property. See the Honor Level policy for details.
Residents at GHS wear standard issue clothing. However, the purchase of shoes is your responsibility. If you cannot afford to purchase shoes GHS will supply you with tennis shoes and/or work boots.
If your parent(s) would like to assist you with obtaining property, they must send the money into GHS. Staff will assist you in ordering shoes from the canteen. You may purchase new clothing prior to leaving GHS, if the clothes that you came to GHS in do not fit.
19

Toiletries The living unit and the commissary carry toiletries. The Health Center may approve, because of allergies, certain items that GHS does not carry. You will have to purchase such items from an approved source with your own money. You may check out a razor and shaving cream from living unit staff. Staff shall maintain all razors in the staff office.
Reading Materials You are encouraged to read, study, and utilize the library and reference services available to you through the Academic School. If there are additional topics you would like to explore, your counselor can assist you in finding an appropriate vendor. Note: we will confiscate all materials, books, magazines, etc. that contain violence, pornography, nudity, gangrelated, antisocial, racial or culturally inflammatory subject matter, material that is demeaning to others, or offense related. We will also confiscate materials that endorse tobacco, drugs, alcohol, violence, or victimization. Photographs and Posters Photographs and posters must meet the same guidelines as reading materials. Neither are you allowed to possess a photograph(s) of your victim(s). Total space allotted for photographs and posters is 2 ½ by 3 feet.
Writing Materials In the open campus living units, you may have paper, envelopes, and 2 pencils in your room. Residents are encouraged to ask staff for these items.
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Radios, Tapes & Compact Disc (CD) Players, and Accessories You may have a "Walkman" or a portable radio/tape/CD player valued at no more than $50.00. You may play the radio at a low level. Staff should not be able to hear the sound from outside your door.
The radio must be off by 2400 hours. You may begin listening to your radio in the morning at 0700.
You may possess up to ten cassette tapes and/or CDs, if the content of the music is appropriate. They must meet the same guidelines as reading materials. You may not have individual televisions or radios with televisions. The only exception is a state approved television for Honor Level residents.
Miscellaneous
You may maintain one shoe box for storage of letters, etc. Other types of boxes or suitcases will go to storage.
You must send unauthorized property home at your expense. We will store some property if you do not have a place to send it.
You may have a watch with a value no greater than $25. If you have a driver's license, ID card, social security card, money, jewelry, etc. in your belongings, you must turn them over to staff. We will place these items in a secured location until you leave. If you do not turn them in and staff find them in your possession, we will confiscate them.
Following a transfer, release, or escape, we will consider unclaimed personal property and the money in a resident's account abandoned, after six months,.
Property left behind because of an escape will immediately be considered abandoned. GHS staff are not responsible for the protection and care of your property while you are on escape status or in a holding facility.
21

What are the procedures for Nail and Packages?
GHS staff opens all incoming mail to check for money and contraband. If money is received, staff will write up a receipt for the amount of the check or money order. The money and a copy of the receipt will go to the business office. Your counselor will receive a copy for placement in your treatment file and the original will be sent to the person who mailed the money.
6HS pays for the cost of two letters per day. You may pay for additional out-going mail if you have prior approval from your counselor. It is your responsibility to pay for special postage letters, packages, or excess mail.
When sending out mail, you must have your name and the complete return address on the envelope. The complete name and address of the person you are sending the letter to must be on the envelope.
Staff are instructed to review all outgoing mail for contraband prior to sealing the envelope and forwarding it to the post office. If staff have further concerns about your mail because of security, custody, and/or treatment reasons, they may read the letter in your presence. We will notify you and the correspondent of any mail we intend to monitor or restrict.
Money
Money of any denomination is considered contraband and will become the property of GHS if found in your possession.
We place any money that you came to GHS with into your personal account. Once a month, the Business Office sends out an Account Balance Sheet for you to track your account balance.
Expect to learn how to track your money. This includes earnings, spending, and savings. 50% of what you earn will go directly to restitution (unless court or administratively ordered otherwise) or court order fees. 25% percent will go towards savings and the other 25% you may spend with approval from your counselor.
You may not enter into financial obligations with anyone or any companies. This includes charging items, or entering into contracts (examples include: magazine subscriptions, joining book clubs or tape clubs, etc.).
22

Are there snacks or items I may purchase with my own money?
You may order a variety of items from the GHS Canteen. Ask staff for the current list. You may spend no more than what your living unit level allows for canteen and other purchases per month: Level 1 $10.00 Level 2 $15.00 Level 3 $20.00 Honor Level $20.00 Special program level residents may not spend any money. The only exception will be special hygiene products with approval from the Health Center. To place a Canteen order complete the Canteen Order Form and a GHS resident check. You may get a check from your counselor. You must turn in your orders by Tuesday to receive the order by Friday.
Staff may search living units at any time. Searches promote and maintain the security of the institution and your personal safety. Staff may request that you submit to a personal search. These searches are considered part of our standard procedure. Failure to comply is grounds for disciplinary action.
What are the SRC's?
The Standard Rules Of Conduct, known as the SRC's, is a set of rules
23

defining the types of behavior that violate the policies and procedures of the Department of Social and Health Services, JRA, and GHS. The SRC's ensure consistency and fairness in the application of rules and discipline and are divided into five categories of increasing seriousness. Any High Moderate and Major rule violations require a formal disciplinary hearing while the three lower categories can be resolved within your living unit. When we conduct disciplinary hearings it is with the intent that your individual rights are protected. This process involves written notice of allegations, findings, and the opportunity for a formal hearing. An impartial staff member conducts all hearings. The hearing officer may call witnesses, assess evidence and determine the outcome due to an alleged involvement in a High Moderate or Major SRC violation. This may effect your release date.
24

 
 •"
Horton v. Williams
JI-WA-0002-0049
ROBERT WILLIAMS, JH8232 Woodgrove Ct S.E. Olympla, Washington 38513
Home: (206) 456-8265 Office: (206) 748-0131
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l
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p«H«ma„ce accoun,,ng « « . * r »n»ac. « - c c . .

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' ¾CHOOL -Chehans, Washington.
enrol
February 1989 to Present rehabilitation planning and development
and supervise a staff of 200. ABY -walla Walla, Washington,
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expenditure of a« —.e,

Robert Williams, Jr. Resume Page two

WISCONS» Wisconsin.
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SS Inmates with emotional »nu m«;iiia· «•.«.•».•~—
•HWAUKEEnFf¾»ON -BUREAU OF COMMt -Milwaukee, WIs.
• Was

• - - - ,_„,ia,. i

~-»

SS¦W5Ä ÄSÄ 5ïïS

workers) and approximately 120 contracted staff.
WISCONSIN STATE JOB SERVICE
^¿¾,gMan^ex-Wasrespons,b.e ffoorr pisptonon,mp«oymem s t a n c e , counseilng,
înd workmen's compensation services to lob serviice applliiccaannttss EMPLOYMENT SERVICE

guided them towards vocational goals.

•cppnca-.

** 1967 -1969 -Part-timecounselor iinîv«»r¾ttv o< Arkansas at Pine Bluff. Arkansas 1967 -1968 -Counselor and testing assistant i into nncfc Sct*ool District. Uttl» Rode Arkansas intern - Administered and interpreted <"·V»¦¦fle dlsadvantaged students. Provided counseling and improving their self concept-

and economically with goal of

Robert Williams, Jr. Resume Page three
EDUCATION:
Completed Field Artillery Advance Course -1985
Completed Adjutant General's Officer Advance Course -1984
University of Central Arkansas. Conwav. Arkansas, -1969 Master of Science -Guidance and Counseling
University of Arkansas at P»ne Bluff. Arkansas Bachelor of Arts - Major: History & Government; Minor: Education
ORGANIZATIONS: Omega Psl Phi Fraternity, Inc., American Correctional Association, National Association of Blacks In Criminal Justice, Washington Correctional Association, Blacks (n Government
MILITARY:
Army National Guard-1979-1987 USAR -1987 -Present Rank: Major •References and a list of workshops and seminars provided upon request.

 
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U.S. District Court WESTERN DISTRICT OF WASHINGTON (Tacoma)
CIVIL DOCKET FOR CASE #: 3:94-cv-05428-RJB

CLOSED

Horton, et al v. Williams, et al Assigned to: Hon. Robert J. Bryan Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff
James L Horton

Date Filed: 08/11/1994 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David Lambert NATIONAL CENTER FOR YOUTH LAW 114 SANSOME ST STE 900 SAN FRANSISCO, CA 94104-3820 415-543-3307 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank MACDONALD, HOAGUE & BAYLESS 705 SECOND AVE STE 1500 SEATTLE, WA 98104-1745 206-622-1604 Fax: FAX 343-3961 Email: kayf@mhb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J. Arthur COLUMBIA LEGAL SERVICES 101 YESLER WAY STE 300 SEATTLE, WA 98104-2552 206-464-5933 Fax: FAX 382-3386 Email: pat.arthur@columbialegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. COLUMBIA LEGAL SERVICES 101 YESLER WAY STE 300

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Plaintiff James Barnhart
Plaintiff Jerome Payton
Plaintiff Lorraine West

SEATTLE, WA 98104-2552 206-464-5933 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Lambert (See above for address)

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Plaintiff K M through his mother
Plaintiff Debbie Moore on behalf of themselves and all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrin E Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff J B through his next friend
V. Defendant Bob Williams in his official capacity as Superintendent of Green Hill School

Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patricia J. Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. Stalker, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol A Murphy ATTORNEY GENERAL'S OFFICE CRIMINAL JUSTICE DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 360-586-1445 Fax: FAX 1-360-664-8716 Email: CarolM@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Joseph Dee ATTORNEY GENERAL'S OFFICE SOCIAL & HEALTH SERVICES PO BOX 40124 OLYMPIA, WA 98504-0124 360-459-6558 Fax: FAX 1-360-438-7400 Email: edward.dee@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Arthur McCartan ATTORNEY GENERAL'S OFFICE (AGR/HLTH) AGRICULTURE & HEALTH

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Defendant
Jean Soliz in her official capacity as Secretary of the Dept of Social and Health Services

Defendant
Sid Sidorowicz in his official capacity as Assistant Secretary of the Juvenile Rehabilitation Administration

Defendant Chehalis School District

Date Filed

#

PO BOX 40109 OLYMPIA, WA 98504-0109 360-664-4998 Email: RichardM@atg.wa.gov TERMINATED: 04/29/1996 LEAD ATTORNEY
represented by Carol A Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Joseph Dee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Arthur McCartan (See above for address) TERMINATED: 04/29/1996 LEAD ATTORNEY
represented by Carol A Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Joseph Dee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Arthur McCartan (See above for address) TERMINATED: 04/29/1996 LEAD ATTORNEY
represented by Brian Maurice Baker 919 LAKERIDGE WAY SW OLYMPIA, WA 98502 360-352-4558 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Docket Text

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08/11/1994 08/16/1994 08/17/1994 08/17/1994 08/17/1994 08/17/1994 08/17/1994 08/17/1994 08/17/1994 08/18/1994 08/20/1994 08/22/1994 08/23/1994 08/24/1994 08/24/1994
08/26/1994
08/29/1994 08/29/1994

1 COMPLAINT (Summons(es) issued) Receipt # 216369 (JAB) (Entered: 08/16/1994)
4 AFFIDAVIT OF SERVICE upon defendant Bob Williams of summons/complaint on 8/12/94 (PL) (Entered: 08/17/1994)
2 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 10/31/94 (cc: counsel, Judge) (PL) (Entered: 08/17/1994)
3 ORDER re DISCOVERY & DEPOSITIONS by Judge Robert J. Bryan (cc: counsel, Judge) (PL) (Entered: 08/17/1994)
5 AFFIDAVIT OF SERVICE upon defendant Jean Soliz of summons/complaint on 8/12/94 (PL) (Entered: 08/17/1994)
7 FIRST AMENDED COMPLAINT [1-1] for Declaratory & Injunctive Relief by plaintiff (PL) (Entered: 08/18/1994)
8 MOTION by plaintiff to certify class action noted for 9/2/94 (PL) (Entered: 08/18/1994)
9 MEMORANDUM by plaintiff in support of motion to certify class action [8-1] (PL) (Entered: 08/18/1994)
APPLICATION by plaintiff for David Lambert to participate pro hac vice; # 216505 (PL) (Entered: 08/22/1994)
6 AFFIDAVIT OF SERVICE upon defendant Sid Sidorowicz of summons/complaint on 8/15/94 (PL) (Entered: 08/18/1994)
11 AFFIDAVIT OF SERVICE by plaintiff of cmplt, mtn etc on 8/18/94 (PL) (Entered: 08/25/1994)
10 ATTORNEY APPEARANCE for defendants' is Richard A McCartan (PL) (Entered: 08/22/1994)
12 LETTER/NOTICE by plaintiff that the following is noted for 9/16/94 motion to certify class action (PL) (Entered: 08/25/1994)
13 AFFIDAVIT OF SERVICE by plaintiff of ntc of depo on D's on 8/23/94 (PL) (Entered: 08/25/1994)
16 AFFIDAVIT OF SERVICE upon defendant Brian Baker, Chehalis School Dist for Sid Sidorowicz of amended summons/complaint etc. on 8/22/94 (PL) (Entered: 08/31/1994)
17 ORDER by Janet S. Thornton GRANTING application [0-1] for David Lambert to participate pro hac vice for P's.(cc: counsel, Judge) (PL) (Entered: 08/31/1994)
LODGED ORDER: re: motion to certify class action [8-1] (PL) (Entered: 08/31/1994)
14 AFFIDAVIT OF SERVICE upon defendant Sid Sidorowicz for Chehalis School Dist, Dr Michael Boring of amended summons/complaint on 8/24/94 (PL) (Entered: 08/31/1994)

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08/29/1994 09/02/1994 09/07/1994 09/27/1994 09/27/1994 09/27/1994 09/30/1994
10/24/1994 10/27/1994 10/27/1994 10/27/1994 10/27/1994 10/27/1994 10/28/1994 10/31/1994 11/05/1994

15 AFFIDAVIT OF SERVICE by plaintiff of JSR order [3-1], of discovery order [2-1] on D's & Chehalis School District on 8/26/94 (PL) (Entered: 08/31/1994)
19 ATTORNEY APPEARANCE for defendant Chehalis School Dist by Brian M Baker (PL) (Entered: 09/09/1994)
18 ANSWER to Amended complaint [7-1] by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz (PL) (Entered: 09/09/1994)
LODGED ORDER: by Stipulation re class certification (PL) (Entered: 09/29/1994)
20 MOTION by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz to partially dismiss clms under rule 12(b)(6) noted for 10/28/94 (PL) (Entered: 09/29/1994)
21 MEMORANDUM by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz in support of motion to partially dismiss clms under rule 12(b)(6) [20-1] (PL) (Entered: 09/29/1994)
22 STIPULATION and ORDER by Judge Robert J. Bryan : by Agreement that case be maintained as class action w/ class defined as all juveniles currently or in future incarcerated at Green Hill School. This order does not prejudice any defenses which D's may have on merits. [8-1] (cc: counsel, Judge) (PL) (Entered: 09/30/1994)
23 RESPONSE by Pltfs'to Dfts' motion to partially dismiss clms under rule 12(b)(6) [20-1] (dktclk) (Entered: 10/26/1994)
24 REPLY BRIEF filed by Dfts Williams, Soliz, and Sidorowicz (CAR) (Entered: 10/28/1994)
LODGED ORDER re: motion to partially dismiss clms under rule 12(b) (6) [20-1] (CAR) (Entered: 10/28/1994)
25 MOTION by Pltfs for prelim inj re: pepper spray noted for 11/18/94 (CAR) (Entered: 10/31/1994)
26 MEMORANDUM by Pltfs in support of motion for prelim inj re: pepper spray [25-1] (CAR) (Entered: 10/31/1994)
27 EXHIBITS to memo in sup of mtn for PI re: pepper spray [26-1] (CAR) (Entered: 10/31/1994)
28 LETTER by cnsl for Pltfs' re: substitution of Original Declaration of Paul DeMuro for faxed copy in Memo in Support of Mtn for Preliminary Injunction (CAR) (Entered: 11/01/1994)
29 JOINT STATUS REPORT filed by all parties. Est. Trial Days: unknown at time of filing (CAR) (Entered: 11/02/1994)
31 NOTICE by Pltfs that the following is RENOTED to 11/25/94 the mtn for PI re: pepper spray (CAR) (Entered: 11/09/1994)

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11/08/1994 11/21/1994 11/28/1994
11/28/1994 11/28/1994 11/28/1994 12/01/1994 12/01/1994 12/05/1994
12/06/1994
12/06/1994 12/06/1994 12/27/1994 12/27/1994

30 ORDER by Judge Robert J. Bryan DENYING motion to partially dismiss clms under rule 12(b)(6) [20-1] (cc: counsel, Judge) (CAR) (Entered: 11/08/1994)
32 RESPONSE by Dfts Williams, Soliz, and Sidorowicz to motion for prelim inj re: pepper spray [25-1] (CAR) (Entered: 11/23/1994)
33 TRIAL NOTICE Discovery cutoff 8/31/95 Motion filing deadline 8/31/95; Disp Mtns Ntd 9/22/95 Pretrial order to be submitted by 11/13/95 Pretrial conference set for 11/17/95 Trial set for 9:30 11/27/95 Trial briefs to be submitted by 11/17/95 39.1 designation effective 8/31/95 (cc:all counsel) (JAB) (Entered: 11/28/1994)
35 LETTER by Attorney General's office re: substitution of page 5 of the memorandum; and adding add'l pages to Dr. Lipsey's resume at the end of Attachment 3 (CAR) (Entered: 12/01/1994)
36 REPLY by Pltfs TO RESPONSE to motion for prelim inj re: pepper spray [25-1] (CAR) (Entered: 12/01/1994)
37 DECLARATION of Joshua Howell re: reply to response to motion for preliminary injunction (CAR) (Entered: 12/01/1994)
34 MINUTE ORDER by Judge Robert J. Bryan - P' mtn for Prelim Inj is sched for ORAL ARG on 12/5/94 at 9:30 a.m. In-court hrg set for 9:30 12/5/94 (cc: counsel, Judge) (CAR) (Entered: 12/01/1994)
38 AMENDED MEMO/RESPONSE by dfts Soliz, Williams, and Sidorowicz to motion for prelim inj re: pepper spray [25-1] (CAR) (Entered: 12/01/1994)
39 MINUTES of Oral Argument on Preliminary Injunction: RJB; Dep Clerk: Jean Adamson; CR: Julaine V Ryen; In-court hrg held 9:30 12/5/94; Argument held; Exhibit 1 - incident reports (marked - returned to cnsl); Court to iss oral ruling 12/6/94 at 9:30 a.m. (CAR) (Entered: 12/05/1994)
40 MINUTES of Oral Ruling on Prelim Injunction: RJB; Dep Clerk: Jean Adamson; CR: Julaine V Ryen. For the reasons stated. P' mtn for Prelim Injunction is GRANTED in parand DENIED in part. The Court makes oral findings (CAR) (Entered: 12/06/1994)
41 EXHIBIT #1 admitted at preliminary injunction hearing (incident reports) (CAR) (Entered: 12/06/1994)
42 ORDER by Judge Robert J. Bryan GRANTING IN PART and DENYING IN PART the motion for prelim inj re: pepper spray [25-1] (cc: counsel, Judge) (CAR) (Entered: 12/06/1994)
43 TRANSCRIPT of motion for preliminary injunction for the following date(s): 12/5/94 (Re: ) CR initials: JR (MW) (Entered: 12/28/1994)
44 TRANSCRIPT of motion for preliminary injunction (Vol II) for the following date(s): 12/6/94 (Re: ) CR initials: JR (MW) (Entered:

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01/27/1995 01/31/1995
04/13/1995 04/13/1995 04/13/1995 04/13/1995
04/13/1995 04/14/1995
04/14/1995 04/14/1995 04/14/1995 04/14/1995 04/18/1995 04/19/1995

12/28/1994)
LODGED STIP & PROTECTIVE ORDER permitting P' access to files (TW) (Entered: 01/31/1995)
45 STIPULATION and PROTECTIVE ORDER by Judge Robert J. Bryan permitting P' counsel & their experts access to the education files of class members (see order for details) (cc: counsel, Judge) (TW) (Entered: 02/01/1995)
46 MOTION by plaintiffs to clarify prel inj & for exped sched for trial on P's clms/ORA REQ noted for 5/5/95 (TW) Modified on 04/14/1995 (Entered: 04/14/1995)
47 DECLARATION of Patricia J. Arthur [46-1] (video tape exhibits 4, 5, & 6 sent to RJB, to be returned to atty after review by Judge) (TW) (Entered: 04/14/1995)
48 MOTION by plaintiff to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] noted for 4/18/95 (TW) (Entered: 04/14/1995)
49 MEMORANDUM by plaintiff in support of motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] [48-1] & of motion to clarify prel inj & for exped sched for trial on P's clms [46-1] (TW) (Entered: 04/14/1995)
LODGED ORDER: re: motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] [48-1] (TW) (Entered: 04/14/1995)
50 SUPPLEMENTAL DECLARATION of Patricia J. Arthur in support of P's motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] [48-1] & for motion to clarify prel inj & for exped sched for trial on P's clms/ORA REQ [46-1] (TW) (Entered: 04/17/1995)
51 ERRATA by plaintiff to memorandum [49-1] (TW) (Entered: 04/17/1995)
LODGED ORDER: re: motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] [48-1] (TW) (Entered: 04/17/1995)
LODGED ORDER: re: motion to clarify prel inj & for exped sched for trial on P's clms/ORA REQ [46-1] (TW) (Entered: 04/17/1995)
52 AFFIDAVIT OF SERVICE by plaintiffs (TW) (Entered: 04/17/1995)
53 DECLARATION of Michael D. Cohen MD [46-1] (TW) (Entered: 04/18/1995)
54 ORDER by Judge Robert J. Bryan GRANTING P's motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's clms [46-1] [48-1] & renoting for consideration w/o oral argument

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04/19/1995
04/19/1995 04/20/1995
04/26/1995 04/28/1995
05/22/1995 05/25/1995 05/26/1995 06/13/1995 06/14/1995
07/10/1995 07/11/1995 07/11/1995 07/11/1995 07/11/1995 07/11/1995 07/24/1995

to 4/21/95 P's motion to clarify prel inj & for exped sched for trial on P's clms[46-1] (cc: counsel, Judge) (TW) (Entered: 04/19/1995)
55 RESPONSE/MEMORANDUM by defendants opposing P's mtn to shorten time & motion to clarify prel inj & for exped sched for trial on P's clms [46-1] (TW) (Entered: 04/19/1995)
56 AFFIDAVIT OF SERVICE of declaration of Michael Cohen MD [53-1] (TW) (Entered: 04/21/1995)
57 REPLY by plaintiff TO State Dfts' memo in opposition to motion to clarify prel inj & for exped sched for trial on P's clms[46-1] (PL) (Entered: 04/21/1995)
59 PRAECIPE: re: motion reply [57-1] (TW) (Entered: 04/28/1995)
58 ORDER by Judge Robert J. Bryan DENYING P' motion to clarify prel inj & for exped sched for trial on P's clms [46-1] (cc: counsel, Judge) (TW) (Entered: 04/28/1995)
60 ATTORNEY APPEARANCE for plaintiffs by Katrin E. Frank (TW) (Entered: 05/22/1995)
LODGED STIP & Protective Order re Personnel Records (TW) (Entered: 05/26/1995)
61 STIPULATION and Protective ORDER by Judge Robert J. Bryan : re Personnel Records (cc: counsel, Judge) (dktclk) (Entered: 05/30/1995)
LODGED ORDER: by Stipulation for Protective Order (PL) (Entered: 06/13/1995)
62 STIPULATION and PROTECTIVE ORDER by Judge Robert J. Bryan allowing P's counsel & experts to inspect & make copies of discoverable institutional & health files following conditions stated w/in the order (see order for details) (cc: counsel, Judge) (TW) (Entered: 06/14/1995)
63 NOTICE by court reporter of transcript of depo (TW) (Entered: 07/11/1995)
64 AFFIDAVIT OF SERVICE OF SUBPOENA of Bob Close on 7/6/95 (TW) (Entered: 07/13/1995)
65 AFFIDAVIT OF SERVICE OF SUBPOENA of Harvey Billmaier on 7/6/95 (TW) (Entered: 07/13/1995)
66 AFFIDAVIT OF SERVICE OF SUBPOENA of Heather Highmiller on 7/6/95 (TW) (Entered: 07/13/1995)
67 AFFIDAVIT OF SERVICE OF SUBPOENA of John Spears on 7/6/95 (TW) (Entered: 07/13/1995)
68 AFFIDAVIT OF SERVICE OF SUBPOENA of Dan Stewart on 7/6/95 (TW) (Entered: 07/13/1995)
69 RETURN of SERVICE of subp. on Dave Bagby 7/18/95 (dktclk)

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07/26/1995 07/26/1995 07/26/1995 07/26/1995 07/26/1995 07/26/1995 07/26/1995 08/01/1995
08/01/1995 08/01/1995 08/10/1995 08/31/1995 09/11/1995
09/11/1995 03/15/1996

(Entered: 07/24/1995)
70 JOINT MOTION to reset trial date (TW) (Entered: 08/01/1995)
LODGED ORDER: re: motion to reset trial date [70-1] (TW) (Entered: 08/01/1995)
71 JOINT MOTION for order approving ntc of sttlment of class action (TW) (Entered: 08/01/1995)
LODGED ORDER: re: motion for order approving ntc of sttlment of class action [71-1] (TW) (Entered: 08/01/1995)
72 DECLARATION of Patricia J Arthur (TW) (Entered: 08/01/1995)
LODGED ORDER/NTC of proposed settlement of class action lawsuit (TW) (Entered: 08/01/1995)
LODGED STIP/JGM resolving certain clms & continuing trial on the remaining ones (TW) (Entered: 08/01/1995)
73 ORDER by Judge Robert J. Bryan GRANTING the joint motion to reset trial date [70-1]; trial & pretrial dates are stricken; clerk to schedule status conf 6 months from the date of entry of P's stip & jgm resolving certain clms & continuing trial date on remaining ones <date not set> (cc: counsel, Judge) (TW) (Entered: 08/02/1995)
74 ORDER by Judge Robert J. Bryan GRANTING the joint motion for order approving ntc of sttlment of class action [71-1] (see order for ntc distribution details) (cc: counsel, Judge) (TW) (Entered: 08/02/1995)
75 ORDER/NOTICE of proposed settlement of class action lawsuit by Judge Robert J. Bryan (cc: counsel, Judge) (TW) (Entered: 08/02/1995)
76 NOTICE by court reporter of deposition transcipt (TW) (Entered: 08/10/1995)
77 NOTICE by CR J. Kay Corbett of filing 8 depositions (no original signature) (PL) (Entered: 09/05/1995)
78 STIPULATION & JUDGMENT resolving certain clms & continuing trial on the remaining ones by Judge Robert J. Bryan (SEE JUDGMENT FOR DETAILS); the court shall set a status conf to be held 6 mons following the entry of this jgm to determine the need for a new trial date. (cc: counsel, Judge, Jgm. Book) Entered on: 9/12/95 (TW) (Entered: 09/12/1995)
79 MINUTE ORDER: by Judge Robert J. Bryan pursuant to stip & jgm (doc #78), a status conference is scheduled for 9:00 on 3/15/96 to determine the need for a new trial. (cc: counsel, Judge) (TW) (Entered: 09/12/1995)
80 MINUTES: RJB; Dep Clerk: J ADAMSON; CR: NONE PRESENT; Pltf requests a TD be set along with formal discovery; Parties estimate 5 days for trial. Trial Date set 12/16/96; clerk to issue shed order; Counsel is to submit, not later than 9/16/96, a statment of issues to be tried (JAB)

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03/18/1996
03/25/1996 04/29/1996
08/16/1996 08/16/1996 08/16/1996 08/16/1996 08/16/1996 08/26/1996 08/26/1996 09/27/1996 11/01/1996 11/01/1996 11/05/1996 11/05/1996

(Entered: 03/15/1996)
81 TRIAL NOTICE Discovery cutoff 9/16/96 Motion filing deadline 9/19/96 Pretrial order to be submitted by 11/29/96 Pretrial conference set for 8:30 12/6/96 Trial set for 9:30 12/16/96 Trial briefs to be submitted by 12/6/96 39.1 designation effective 9/16/96 (cc:all counsel) (JAB) (Entered: 03/18/1996)
82 LETTER: Re Status of Stip. by Orlando L. Martinez (dktclk) (Entered: 03/27/1996)
83 SUBSTITUTION OF COUNSEL on behalf of Bob Williams, Jean Soliz, Sid Sidorowicz Edward J. Dee terminating attorney Richard Arthur McCartan for Sid Sidorowicz, Jean Soliz, Bob Williams (TW) (Entered: 04/30/1996)
84 LETTER by plaintiff re settlement of remaining clms (dktclk) (Entered: 08/20/1996)
85 STIPULATED MOTION for order approving ntc of settlement of class action NOTED FOR 8/23/96 (dktclk) (Entered: 08/20/1996)
86 DECLARATION of Patricia Arthur by plaintiff re motion for order approving ntc of settlement of class action [85-1] (dktclk) (Entered: 08/20/1996)
PROPOSED Ntc of Proposed Settlement re: motion for order approving ntc of settlement of class action [85-1] (dktclk) (Entered: 08/20/1996)
LODGED ORDER: re: motion for order approving ntc of settlement of class action [85-1] (dktclk) (Entered: 08/20/1996)
87 ORDER by Judge Robert J. Bryan approving ntc of settlement of class action [85-1]; See order for details (cc: counsel, Judge) (dktclk) (Entered: 08/28/1996)
88 NOTICE OF PROPOSED SETTLEMENT filed; see ntc for details (dktclk) (Entered: 08/28/1996)
89 NOTICE by plaintiff to the Clerk of the Court of extending class notice period to 10/9/96 (dktclk) (Entered: 10/01/1996)
LODGED STIP/ORDER & mtn for approval of settlement agreement (TW) (Entered: 11/04/1996)
LODGED STIP/ORDER & Judgment resolving P's remaining clms (TW) (Entered: 11/04/1996)
90 STIPULATED MOTION and ORDER for approval of settlement agreement by Judge Robert J. Bryan; see order for details (cc: counsel, Judge) (TW) (Entered: 11/05/1996)
91 SUPPLEMENTAL STIPULATION & JUDGMENT resolving Ps' remaining clms by Judge Robert J. Bryan; see document for details; case termed (cc: counsel, Judge, Jgm. Book) Entered on: 11/5/96 (TW)

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Page 13 of 14

11/22/1996 11/22/1996 11/26/1996 12/03/1996 12/04/1996 12/06/1996 12/23/1996 12/24/1996
01/28/1997 01/29/1997
03/05/1997 03/06/1997
04/15/1997 12/01/1997 08/15/2001

(Entered: 11/05/1996)
92 FIRST APPLICATION/MOTION by plaintiffs for attorney fees & expenses NOTED FOR 1/3/97 (TW) (Entered: 11/26/1996)
93 MEMORANDUM by plaintiffs in support of first application/ motion for attorney fees & expenses [92-1] (TW) (Entered: 11/26/1996)
94 DECLARATION of Robert A Stalker by plaintiffs in support of motion for attorney fees & expenses [92-1] (TW) (Entered: 11/26/1996)
95 LETTER (w/report attached) by Orlando Martinez re: compliance with Stip & Jgm (CAR) (Entered: 12/03/1996)
LODGED ORDER: re: motion for attorney fees & expenses [92-1] (TW) (Entered: 12/05/1996)
96 AFFIDAVIT of Salvador A Mungia in support of P's motion for attorney fees & expenses [92-1] (TW) (Entered: 12/06/1996)
PROPOSED Stipulated Motion and Order Setting Over of Fee Application Hearing Date (EC) (Entered: 12/23/1996)
97 ORDER by Judge Robert J. Bryan : GRANTING Stipulated Motion Setting Over of Fee Application Hearing Date to 1/31/97 [0-0] Application of Pl's atty fees and costs set for 1/31/97 (cc: counsel, Judge) (EC) (Entered: 12/24/1996)
LODGED STIP/ORDER re setting over fee application hrg date (TW) (Entered: 01/29/1997)
98 STIPULATION and ORDER by Judge Robert J. Bryan RENOTED FOR 2/28/97 motion for attorney fees & expenses [92-1]; the parties will meet by 2/21/97 to discuss possible settlement (cc: counsel, Judge) (TW) (Entered: 01/30/1997)
LODGED STIP/ORDER re P's first request for atty fees & costs (TW) (Entered: 03/05/1997)
99 STIPULATION and ORDER by Judge Robert J. Bryan GRANTING P's first request for attorney fees & expenses [92-1]; P's are awarded $250,000.00 in full payment & satisfaction for all atty fees & costs; all dfts are joint & severally for full satisfaction (cc: counsel, Judge) (TW) (Entered: 03/06/1997)
100 PROGRESS REPORT/MEMORANDUM; Third report by State dfts (TW) (Entered: 04/18/1997)
101 PROGRESS REPORT by Orlando Martinez (CAR) (Entered: 12/02/1997)
102 STIPULATION and ORDER OF DISMISSAL AND SETTLEMENT OF ATTY FEES AND COSTS by Judge Robert J. Bryan CASE TERMED (cc: counsel, Judge) (EC) (Entered: 08/15/2001)

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08/23/2001

103 MAIL RETURNED: re: stipulation [102-2] mailed to Atty Lambert (EC) (Entered: 08/23/2001)

PACER Service Center
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11/17/2005

 
 s
Horton v. Williams

JI-WA-0002-0046
U.S. District Court U.S. District Court -– Western Washington (Tacoma)

TERMED CSMDDL MTNDDL ALLISO

CIVIL DOCKET FOR CASE #: 94-CV-5428

Horton, et al v. Williams, et al

Filed: 08/11/94

Assigned to: Judge Robert J Bryan

Referred to: Law Clerk Ralaina Ruvalcaba

Demand: $0,000

Nature of Suit: 440

Lead ,jo^ket: None

Jurisdiction: Federal Question

Dkt# in other court: None

Cause: 42:1983 Civil Rights Act

JAMES L HORTON plaintiff

Katrin E. Frank 206-622-1604 [COR LD NTC] MACDONALD, HOAGUE & BAYLESS 705 SECOND AVE 1500 HOGE BLDG SEATTLE, WA 98104-1745 206-622-1604
Patricia J. Arthur [COR LD NTC] Robert A. Stalker, Jr. [COR LD NTC] COLUMBIA LEGAL SERVICES 101 YESLER WAY STE 300 SEATTLE, WA 98104-2552 206-464-5933
David Lambert [COR LD NTC] NATIONAL CENTER FOR YOUTH LAW 114 SANSOME ST STE 900 SAN FRANSISCO, CA 94104-3820 415-543-3307

JAMES BARNHART plaintiff

Katrin E. Frank (See above) [COR LD NTC]

Patricia J. Arthur (See above) [COR LD NTC] Robert A. Stalker, Jr. (See above)

Docket as of January 28, 1999 1:21 pm

Page 1

Proceedings include all events. 3:94cv5428 Horton, et al v. Williams, et al
[COR LD NTC]
David Lambert (See above) [COR LD NTC]

JEROME PAYTON plaintiff

Katrin E. Frank (See above) [COR LD NTC]
Patricia J. Arthur (See above) [COR LD NTC] Robert A. Stalker, Jr. (See above) [COR LD NTC]
David Lambert (See above) [COR LD NTC]

LORRAINE WEST plaintiff

Katrin E. Frank (See above) [COR LD NTC]
Patricia J. Arthur (See above) [COR LD NTC] Robert A. Stalker, Jr. (See above) [COR LD NTC]
David Lambert (See above) [COR LD NTC]

K M, through his mother plaintiff

Katrin E. Frank (See above) [COR LD NTC]
Patricia J. Arthur (See above) [COR LD NTC] Robert A. Stalker, Jr. (See above) [COR LD NTC]
David Lambert (See above) [COR LD NTC]

Docket as of January 28, 1999 1:21 pm

Page 2

TERMED CSMDDL MTNDDL ALLISO

Proceedings include all events. 3:94cv5428 Horton, et al v. Williams, et al

DEBBIE MOORE, on behalf of themselves and all others similarly situated
plaintiff

Katrin E. Frank (See above) [COR LD NTC]
Patricia J. Arthur (See above) [COR LD NTC] Robert A„ Stalker, Jr. (See above) [COR LD NTC]
David Lambert (See above) [COR LD NTC]

J B, through his next friend plaintiff

Patricia J. Arthur (See above)
[COR LD NTC] Robert A. Stalker, Jr. (See above) [COR LD NTC]

v.
BOB WILLIAMS, in his official capacity as Superintendent of Green Hill School
defendant

Richard Arthur McCartan [term 04/29/96]
459-6558 [COR LD NTC] Edward J. Dee 459-6558 [COR LD NTC] ATTORNEY GENERAL'S OFFICE SOCIAL & HEALTH SERVICES PO BOX 40124 670 WOODLAND SQ LP SE OLYMPIA, WA 98504-0124 360-459-6558
Carol A Murphy 360-459-6600 [COR LD NTC] ATTORNEY GENERAL'S OFFICE TORTS DIVISION PO BOX 40126 629 WOODLAND SQUARE LOOP SE OLYMPIA, WA 98504-0126 360-459-6600

JEAN SOLIZ, in her official

Richard Arthur McCartan

Docket as of January 28, 1999 1:21 pm

Page 3

TERMED CSMDDL MTNDDL ALLISO

Proceedings include all events. 3:94cv5428 Horton, et al v. Williams, et al

capacity as Secretary of the Dept ot Social and Health Services
defendant

[term 04/29/96] (See above) [COR LD NTC] Edward J. Dee (See above) [COR LD NTC]

Carol A Murphy (See above) [COR LD NTC]

SID SIDOROWICZ, in his official capacity as Assistant Secretary of the Juvenile Rehabilitation Administration
defendant

Richard Arthur McCartan [term 04/29/96]
(See above) [COR LD NTC] Edward J. Dee (See above) [COR LD NTC]
Carol A Murphy (See above) [COR LD NTC]

CHEHA:_II3 SCHOOL DISTRICT defendant

Brian Maurice Baker [COR LD NTC] 919 LAKERIDGE WAY SW OLYMPIA, WA 98502 360-352-4558

TERMED CSMDDL MTNDDL ALLISO

Docket as of January 28, 1999 1:21 pm

Page 4

Proceedings include all events. 3:94cv5428 Horton, et al v. Williams, et al

8/11/94 1

COMPLAINT (Summons(es) issued) [Entry date 08/16/94]

TERMED CSMDDL MTNDDL ALLISO Receipt # 216369 (ja)

8/16/94 4

AFFIDAVIT OF SERVICE upon defendant Bob Williams of summons/complaint on 8/12/94 (pi) [Entry date 08/17/94]

8/17/94 2

ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 10/31/94 (cc: counsel, Judge) (pi)

3

ORDER re DISCOVERY & DEPOSITIONS by Judge Robert J. Bryan

(cc: counsel, Judge) (pi)

8/17/94 5

AFFIDAVIT OF SERVICE upon defendant Jean Soliz of summons/complaint on 8/12/94 (pi)

8/17/94 7

FIRST AMENDED COMPLAINT [l-l] for Declaratory & Injunctive Relief by plaintiff (pi) [Entry date 08/18/94]

8/17/94 8

MOTION by plaintiff to certify class action noted for 9/2/94 (pi) [Entry date 08/18/94]

8/17/94 9

MEMORANDUM by plaintiff in support of motion to certify class action [8-1] (pi) [Entry date 08/18/94]

8/17/94 -–

APPLICATION by plaintiff for David Lambert to participate pro hac vice; # 216505 (pi) [Entry date 08/22/94]

8/18/94 6

AFFIDAVIT OF SERVICE upon defendant Sid Sidorowicz of summons/complaint on 8/15/94 (pi)

8/20/94 11

AFFIDAVIT OF SERVICE by plaintiff of cmplt, mtn etc on 8/18/94 (pi) [Entry date 08/25/94]

8/22/94 10

ATTORNEY APPEARANCE for defendants' is Richard A McCartan (pi)

8/23/94 12

LETTER/NOTICE by plaintiff that the following is noted for 9/16/94 motion to certify class action (pi) [Entry date 08/25/94]

8/24/94 13

AFFIDAVIT OF SERVICE by plaintiff of ntc of depo on D's on 8/23/94 (pi) [Entry date 08/25/94]

8/24/94 16

AFFIDAVIT OF SERVICE upon defendant Brian Baker, Chehalis School Dist for Sid Sidorowicz of amended summons/complaint etc. on 8/22/94 (pi) [Entry date 08/31/94]

8/26/94 17

ORDER by Janet S. Thornton GRANTING application [0-1] for David Lambert to participate pro hac vice for P's.(cc: counsel, Judge) (pi) [Entry date 08/31/94]

8/29/94 -–

LODGED ORDER: re: motion to certify class action [8-1] (pi) [Entry date 08/31/94]

Docket as of January 28, 1999 1:21 pm

Page 5

Proceedings include all events.

TERMED

3:94cv5428 Horton, et,al v. Williams, et al

CSMDDL

'

MTNDDL ALLISO

8/29/94 14

AFFIDAVIT OF SERVICE upon defendant Sid Sidorowicz for

Chehalis School Dist, Dr Michael Boring of amended

summons/complaint on 8/24/94 (pi) [Entry date 08/31/94]

8/29/.->'4 1 5

AFFIDAVIT OF SERVICE by plaintiff of JSR order [3-1], of discovery order [2-1] on D's & Chehalis School District on 8/26/94 (pi) [Entry date 08/31/94]

9/2/94 19

ATTORNEY APPEARANCE for defendant Chehalis School Dist by Brian M Baker (pi) [Entry date 09/09/94]

9/1/94 18

ANSWER to Amended complaint [7-1] by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz (pi) [Entry date 09/09/94]

9/21/94 -–

LODGED ORDER: by Stipulation re class certification (pi) [Entry date 09/29/94]

9/21/94 20

MOTION by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz to partially dismiss elms under rule 12(b)(6) noted for 10/28/94 (pi) [Entry date 09/29/94]

9/27/94 21

MEMORANDUM by defendant Bob Williams, defendant Jean Soliz, defendant Sid Sidorowicz in support of motion to partially dismiss elms under rule 12(b)(6) [20-1] (pi) [Entry date 09/29/94]

9/30/94 22

STIPULATION and ORDER by Judge Robert J. Bryan : by Agreement that case be maintained as class action w/ class defined as all juveniles currently or in future incarcerated at Green Hill School. This order does not prejudice any defenses which D's may have on merits. [8-1] (cc: counsel, Judge) (pi)

10/24/94 23

RESPONSE by Pltfs'to Dfts' motion to partially dismiss elms under rule 12(b)(6) [20-1] (jt) [Entry date 10/26/94]

10/27/94 24

REPLY BRIEF filed by Dfts Williams, Soliz, and Sidorowicz (car) [Entry date 10/28/94]

10/27/94 -–

LODGED ORDER re: motion to partially dismiss elms under rule 12(b)(6) [20-1] (car) [Entry date 10/28/94]

10/27/94 25

MOTION by Pltfs for prelim inj re: pepper spray noted for 11/18/94 (car) [Entry date 10/31/94]

10/27/94 26

MEMORANDUM by Pltfs in support of motion for prelim inj re: pepper spray [25-1] (car) [Entry date 10/31/94]

10/27/94 27

EXHIBITS to memo in sup of mtn for PI re: pepper spray [26-1] (car) [Entry date 10/31/94]

Docket as of January 28, 1999 1:21 pm

Page 6

Proceedings include all events.

TERMED

3:94cv5428 Horton, et al v. Williams, et al

CSMDDL

MTNDDL ALLISO

10/28/94 28

LETTER by cnsl for Pltfs' re: substitution of Original

Declaration of Paul DeMuro for faxed copy in Memo in

Support of Mtn for Preliminary Injunction (car)

[Entry date 11/01/94]

10/31/94 29

JOINT STATUS REPORT filed by all parties. Est. Trial Days: unknown at time of filing (car) [Entry date 11/02/94]

11/5/94 31

NOTICE by Pltfs that the following is RENOTED to 11/25/94 the mtn for PI re: pepper spray (car) [Entry date 11/09/94]

11/8/94 30

ORDER by Judge Robert J. Bryan DENYING motion to partially dismiss elms under rule 12(b)(6) [20-1] (cc: counsel, Judge) (car)

11/21/94 32

RESPONSE by Dfts Williams, Soliz, and Sidorowicz to motion for prelim inj re: pepper spray [25-1] (car) [Entry date 11/23/94]

11/28/94 33

TRIAL NOTICE Discovery cutoff 8/31/95 Motion filing deadline 8/31/95; Disp Mtns Ntd 9/22/95 Pretrial order to be submitted by 11/13/95 Pretrial conference set for 11/17/95 Trial set for 9:30 11/27/95 Trial briefs to be submitted by 11/17/95 39.1 designation effective 8/31/95 (cc:all counsel) (ja)

11/28/94 35

LETTER by Attorney General's office re: substitution of page 5 of the memorandum; and adding add'l pages to Dr. Lipsey's resume at the end of Attachment 3 (car) [Entry date 12/01/94]

11/28/94 36

REPLY by Pltfs TO RESPONSE to motion for prelim inj re: pepper spray [25-1] (car) [Entry date 12/01/94]

11/28/94 37

DECLARATION of Joshua Howell re: reply to response to motion for preliminary injunction (car) [Entry date 12/01/94]

12/1/94 34

MINUTE ORDER by Judge Robert J. Bryan - P' mtn for Prelim Inj is sched for ORAL ARG on 12/5/94 at 9:30 a.m. In-court hrg set for 9:30 12/5/94 (cc: counsel, Judge) (car)

12/1/94 38

AMENDED MEMO/RESPONSE by dfts Soliz, Williams, and Sidorowicz to motion for prelim inj re: pepper spray [25-1] (car)

12/5/94 39

MINUTES of Oral Argument on Preliminary Injunction: RJB; Dep Clerk: Jean Adamson; CR: Julaine V Ryen; In-court hrg held 9:30 12/5/94; Argument held; Exhibit 1 - incident reports (marked - returned to cnsl); Court to iss oral ruling 12/6/94 at 9:30 a.m. (car)

Docket as of January 28, 1999 1:21 pm

Page 7

Proceedings include all events.

TERMED

3:94cv5428 Horton, et al v. Williams, et al

CSMDDL MTNDDL ALLISO

12/6/94 40

MINUTES of Oral Ruling on Prelim Injunction: RJB; Dep

Clerk: Jean Adamson; CR: Julaine V Ryen. For the reasons

stated. P' mtn for Prelim Injunction is GRANTED in parand

DENIED in part. The Court makes oral findings (car)

12/6/94 41

EXHIBIT #1 admitted at preliminary injunction hearing (incident reports) (car)

12/6/94 42

ORDER by Judge Robert J. Bryan GRANTING IN PART and DENYING IN PART the motion for prelim inj re: pepper spray [25-1] (cc: counsel, Judge) (car)

12/27/94 43

TRANSCRIPT of motion for preliminary injunction for the following date(s): 12/5/94 (Re: ) CR initials: JR (mw) [Entry date 12/28/94]

12/27/94 44

TRANSCRIPT of motion for preliminary injunction (Vol II) for the following date(s): 12/6/94 (Re: ) CR initials: JR (mw) [Entry date 12/28/94]

1/27/95 -–

LODGED STIP & PROTECTIVE ORDER permitting P' access to files (tn) [Entry date 01/31/95]

1/31/95 45

STIPULATION and PROTECTIVE ORDER by Judge Robert J. Bryan permitting P' counsel & their experts access to the education files of class members (see order for details) (cc: counsel, Judge) (tn) [Entry date 02/01/95]

4/13/95 46

MOTION by plaintiffs to clarify prel inj & for exped sched for trial on P's clms/ORA REQ noted for 5/5/95 (tn) [Entry date 04/14/95] [Edit date 04/14/95]

A/l3>/95 47

DECLARATION of Patricia J. Arthur [46-1] (video tape exhibits 4, 5, & 6 sent to RJB, to be returned to atty after review by Judge) (tn) [Entry date 04/14/95]

4/13/95 48

MOTION by plaintiff to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's elms [46-1] noted for 4/18/95 (tn) [Entry date 04/14/95]

4/13/95 49

MEMORANDUM by plaintiff in support of motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's elms [46-1] [48-1] & of motion to clarify prel inj & for exped sched for trial on P's elms [46-1] (tn) [Entry date 04/14/95]

4/13/95

LODGED ORDER: re: motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's elms [46-1] [48-1] (tn) [Entry date 04/14/95]

Docket as of January 28, 1999 1:21 pm

Page 8

Proceedings include all events.

TERMED

3:94cv5428 Horton, et al v. Williams, et al

CSMDDL MTNDDL ALLISO

4/14/95 50

SUPPLEMENTAL DECLARATION of Patricia J. Arthur in support

of P's motion to shorten time on motion to clarify prelim

injunction & for expedited sched for trial on P's elms

[46-1] [48-1] & for motion to clarify prel inj & for exped

sched for trial on P's clms/ORA REQ [46-1] (tn)

[Entry date 04/17/95]

4/14/95 51

ERRATA by plaintiff to memorandum [49-1] (tn) [Entry date 04/17/95]

4/14/95 -–

LODGED ORDER: re: motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's elms [46-1] [48-1] (tn) [Entry date 04/17/95]

4/14/95 -–

LODGED ORDER: re: motion to clarify prel inj & for exped sched for trial on P's clms/ORA REQ [46-1] (tn) [Entry date 04/17/95]

4/14/95 52

AFFIDAVIT OF SERVICE by plaintiffs (tn) [Entry date 04/17/95]

4/18/95 53

DECLARATION of Michael D. Cohen MD [46-1] (tn)

4/19/95 54

ORDER by Judge Robert J. Bryan GRANTING P's motion to shorten time on motion to clarify prelim injunction & for expedited sched for trial on P's elms [46-1] [48-1] & renoting for consideration w/o oral argument to 4/21/95 P's motion to clarify prel inj & for exped sched for trial on P's elms[46-1] (cc: counsel, Judge) (tn)

4/19/95 55

RESPONSE/MEMORANDUM by defendants opposing P's mtn to shorten time & motion to clarify prel inj & for exped sched for trial on P's elms [46-1] (tn)

4/19/95 56

AFFIDAVIT OF SERVICE of declaration of Michael Cohen MD [53-1] (tn) [Entry date 04/21/95]

4/20/95 57

REPLY by plaintiff TO State Dfts' memo in opposition to motion to clarify prel inj & for exped sched for trial on P's elms[46-1] (pi) [Entry date 04/21/95]

4/26/95 59

PRAECIPE: re: motion reply [57-1] (tn) [Entry date 04/28/95]

4/28/95 58

ORDER by Judge Robert J. Bryan DENYING P' motion to clarify prel inj & for exped sched for trial on P's elms [46-1] (cc: counsel, Judge) (tn)

5/22/95 60

ATTORNEY APPEARANCE for plaintiffs by Katrin E. Frank (tn)

5/25/95 -–

LODGED STIP & Protective Order re Personnel Records (tn) [Entry date 05/26/95]

Docket as of January 28, 1999 1:21 pm

Page 9

Proceedings include all events.

TERMED

3:94cv5428 Horton, et al v. Williams, et al

CSMDDL

MTNDDL ALLISO

5/26/95 61

STIPULATION and Protective ORDER by Judge Robert J. Bryan

: re Personnel Records (cc: counsel, Judge) (kk)

[Entry date 05/30/95]

6/13/95 -–

LODGED ORDER: by Stipulation for Protective Order (pi)

6/14/95 62

STIPULATION and PROTECTIVE ORDER by Judge Robert J. Bryan allowing P's counsel & experts to inspect & make copies of discoverable institutional & health files following conditions stated w/in the order (see order for details) (cc: counsel, Judge) (tn)

7/10/95 63

NOTICE by court reporter of transcript of depo (tn) [Entry date 07/11/95]

7/11/95 64

AFFIDAVIT OF SERVICE OF SUBPOENA of Bob Close on l/6/95 (tn) [Entry date 07/13/95]

7/11/95 65

AFFIDAVIT OF SERVICE OF SUBPOENA of Harvey Billmaier on 7/6/95 (tn) [Entry date 07/13/95]

7/11/95 66

AFFIDAVIT OF SERVICE OF SUBPOENA of Heather Highmiller on 7/6/95 (tn) [Entry date 07/13/95]

7/11/95 67

AFFIDAVIT OF SERVICE OF SUBPOENA of John Spears on 7/6/95 (tn) [Entry date 07/13/95]

7/11/95 68

AFFIDAVIT OF SERVICE OF SUBPOENA of Dan Stewart on 7/6/95 (tn) [Entry date 07/13/95]

7/24/95 69

RETURN of SERVICE of subp. on Dave Bagby 7/18/95 (jt)

7/26/95 70

JOINT MOTION to reset trial date (tn) [Entry date 08/01/95]

7/26/95 -–

LODGED ORDER: re: motion to reset trial date [70-1] (tn) [Entry date 08/01/95]

7/26/95 71

JOINT MOTION for order approving ntc of sttlment of class action (tn) [Entry date 08/01/95]

7/26/95 -–

LODGED ORDER: re: motion for order approving ntc of sttlment of class action [71-1] (tn) [Entry date 08/01/95]

7/26/95 72 7/26/95 -–

DECLARATION of Patricia J Arthur (tn) [Entry date 08/01/95]
LODGED ORDER/NTC of proposed settlement of class action lawsuit (tn) [Entry date 08/01/95]

7/26/95 -–

LODGED STIP/JGM resolving certain elms & continuing trial on the remaining ones (tn) [Entry date 08/01/95]

Dockev. as of January 28, 1999 1:21 pm

Page 10

Proce.;cings include all events.

TERMED

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CSMDDL

MTNDDL ALLISO

8/1/95 73

ORDER by Judge Robert J.. Bryan GRANTING the joint motion

to reset trial date [70-1]; trial & pretrial dates are

stricken; clerk to schedule status conf 6 months from the

date of entry of P's stip & jgm resolving certain elms &

continuing trial date on remaining ones <date not set> (cc:

counsel, Judge) (tn) [Entry date 08/02/95]

8/1/95 74

ORDER by Judge Robert J. Bryan GRANTING the joint motion for order approving ntc of sttlment of class action [71-1] (see order for ntc distribution details) (cc: counsel, Judge) (tn) [Entry date 08/02/95]

8/1/95 75

ORDER/NOTICE of proposed settlement of class action lawsuit by Judge Robert J. Bryan (cc: counsel, Judge) (tn) [Entry date 08/02/95]

8/10/95 76

NOTICE by court reporter of deposition transcipt (tn)

8/31/95 77

NOTICE by CR J. Kay Corbett of filing 8 depositions (no original signature) (pi) [Entry date 09/05/95]

9/ll/?3 78

STIPULATION & JUDGMENT resolving certain elms & continuing trial on the remaining ones by Judge Robert J. Bryan (SEE JUDGMENT FOR DETAILS); the court shall set a status conf to be held 6 mons following the entry of this jgm to determine the need for a new trial date, (cc: counsel, Judge, Jgm. Book) Entered on: 9/12/95 (tn) [Entry date 09/12/95]

9/11/95 79

MINUTE ORDER: by Judge Robert J. Bryan pursuant to stip & jgm (doc #78), a status conference is scheduled for 9:00 on 3/15/96 to determine the need for a new trial, (cc: counsel, Judge) (tn) [Entry date 09/12/95]

3/15/96 80

MINUTES: RJB; Dep Clerk: J ADAMSON; CR: NONE PRESENT; Pltf requests a TD be set along with formal discovery; Parties estimate 5 days for trial. Trial Date set 12/16/96; clerk to issue shed order; Counsel is to submit, not later than 9/16/96, a statment of issues to be tried (ja)

3/18/96 81

TRIAL NOTICE Discovery cutoff 9/16/96 Motion filing deadline 9/19/96 Pretrial order to be submitted by 11/29/96 Pretrial conference set for 8:30 12/6/96 Trial set for 9:30 12/16/96 Trial briefs to be submitted by 12/6/96 39.1 designation effective 9/16/96 (cc:all counsel) (ja)

3/25/S6 82

LETTER: Re Status of Stip. by Orlando L. Martinez (jt) [Entry date 03/27/96]

4/29/96 83

SUBSTITUTION OF COUNSEL on behalf of Bob Williams, Jean ' ) Soliz, Sid Sidorowicz Edward J. Dee terminating attorney ,' Richard Arthur McCartan for Sid Sidorowicz, Jean Soliz, / Bob Williams (tn) [Entry date 04/30/96]

8/16/96 84

LETTER by plaintiff re settlement of remaining elms (tl)

Docket as of January 28, 1999 1:21 pm

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Proceedings include all events. 3:94cv5428 Horton, et al v. Williams, et al
[Entry date 08/20/96]

TERMED CSMDDL MTNDDL ALLISO

8/16/96 85

STIPULATED MOTION for order approving ntc of settlement of class action NOTED FOR 8/23/96 (tl) [Entry date 08/20/96]

8/16/96 86

DECLARATION of Patricia Arthur by plaintiff re motion for order approving ntc of settlement of class action [85-1] (tl) [Entry date 08/20/96]

8/16/96 -–

PROPOSED Ntc of Proposed Settlement re: motion for order approving ntc of settlement of class action [85-1] (tl) [Entry date 08/20/96]

8/16/96 -–

LODGED ORDER: re: motion for order approving ntc of settlement of class action [85-1] (tl) [Entry date 08/20/96]

8/26/96 87

ORDER by Judge Robert J. Bryan approving ntc of settlement of class action [85-1]; See order for details (cc: counsel, Judge) (tl) [Entry date 08/28/96]

8/26/96 88

NOTICE OF PROPOSED SETTLEMENT filed; see ntc for details (tl) [Entry date 08/28/96]

9/21/9¢ 89

NOTICE by plaintiff to the Clerk of the Court of extending class notice period to 10/9/96 (tl) [Entry date 10/01/96]

11/1/96 -–

LODGED STIP/ORDER & mtn for approval of settlement agreement (tw) [Entry date 11/04/96]

11/1/96 -–

LODGED STIP/ORDER & Judgment resolving P's remaining elms (tw) [Entry date 11/04/96]

11/5/96 90

STIPULATED MOTION and ORDER for approval of settlement agreement by Judge Robert J. Bryan; see order for details (cc: counsel, Judge) (tw)

11/5/96 91

SUPPLEMENTAL STIPULATION & JUDGMENT resolving Ps' remaining elms by Judge Robert J. Bryan; see document for details; case termed (cc: counsel, Judge, Jgm. Book) Entered on: 11/5/96 (tw)

11/22/96 92

FIRST APPLICATION/MOTION by plaintiffs for attorney fees & expenses NOTED FOR l/3/97 (tw) [Entry date 11/26/96]

11/22/96 93

MEMORANDUM by plaintiffs in support of first application/ motion for attorney fees & expenses [92-1] (tw) [Entry date 11/26/96]

11/26/96 94

DECLARATION of Robert A Stalker by plaintiffs in support of motion for attorney fees & expenses [92-1] (tw)

12/3/96 95

LETTER (w/report attached) by Orlando Martinez re: compliance with Stip & Jgm (car)

Docket as of January 28, 1999 1:21 pm

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TERMED

3:94cv5428 Horton, et al v. Williams, et al

CSMDDL

MTNDDL ALLISO

12/4/96 -–

LODGED ORDER: re: motion for attorney fees & expenses [92-1] (tw) [Entry date 12/05/96]

12/6/96 96

AFFIDAVIT of Salvador A Mungia in support of P's motion for attorney fees & expenses [92-1] (tw)

12/23/96 -–

PROPOSED Stipulated Motion and Order Setting Over of Fee Application Hearing Date (ec)

12/24/96 97

ORDER by Judge Robert J. Bryan : GRANTING Stipulated Motion Setting Over of Fee Application Hearing Date to 1/31/97 [0-0] Application of Pi's atty fees and costs set for 1/31/97 (cc: counsel, Judge) (ec)

1/28/97 -–

LODGED STIP/ORDER re setting over fee application hrg date (tw) [Entry date 01/29/97]

1/29/97 98

STIPULATION and ORDER by Judge Robert J. Bryan RENOTED FOR 2/28/97 motion for attorney fees & expenses [92-1]; the parties will meet by 2/21/97 to discuss possible settlement (cc: counsel, Judge) (tw) [Entry date 01/30/97]

3/5/91

LODGED STIP/ORDER re P's first request for atty fees & costs (tw)

3/6/97 99

STIPULATION and ORDER by Judge Robert J. Bryan GRANTING P's first request for attorney fees & expenses [92-l]; P's are awarded $250,000.00 in full payment & satisfaction for all atty fees & costs,- all dfts are joint & severally for full satisfaction (cc: counsel, Judge) (tw)

4/15/97 100

PROGRESS REPORT/MEMORANDUM; Third report by State dfts (tw) [Entry date 04/18/97]

12/1/97 101

PROGRESS REPORT by Orlando Martinez (car) [Entry date 12/02/97]

Docket as of January 28, 1999 1:21 pm

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