IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
COLUMBUS DIVISION

J.P., and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

Case No. Judgo,

S.J., and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

D.B., a minor child, by and through her next friend Shanda Spurlock, and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

and
H.H., a minor child, by and through her next friend Shanda Spurlock, and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

BOB TAFT, Governor of the State of Ohio, in his official capacity only, 77 South High Street, 30th Floor Columbus, Ohio 43215,

OHIO DEPARTMENT OF YOUTH SERVICES, 51 North High Street Columbus, Ohio 43215,
and
GENO NATALUCCI-PERISCHETTI, Director of Youth Services, in his official capacity only, 51 North High Street Columbus, Ohio 43215,
Defendants.
INTRODUCTORY STATEMENT 1. This is a civil rights class action suit challenging the denial of access to the courts for juveniles committed to the Ohio Department of Youth Services ("ODYS") as juvenile delinquents or serious juvenile offenders and incarcerated in institutions, secured facilities, or community corrections facilities operated by or funded in part or in total by contract with ODYS throughout the
State of Ohio. Plaintiffs bring this action for declaratory, injunctive and other equitable relief on behalf of themselves and all other juveniles similarly situated who are or will in the future be committed to ODYS and placed in an institution, secured facility, or community corrections facility operated by or funded in part or in total by contract with ODYS without a means to exercise their constitutional right to access the courts in violation of the First, Sixth, and Fourteenth Amendments
of the United States Constitution and related provisions of the Ohio Constitution. 2. Plaintiffs bring this action under the federal Civil Rights Act, 42 U.S.C. § 1983, to
redress the violation by Defendants, acting under color of state law, of rights guaranteed to Plaintiffs

under the First, Sixth, and Fourteenth Amendments to the United States Constitution as more particularly set forth in this Complaint.
JURISDICTION 3. Jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief is proper in this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3), and 1343(4). 4. This Court has supplemental and pendent jurisdiction pursuant to 28 U.S.C. § 1367 to review and decide Plaintiffs’ state law claims. 5. Venue is proper in this district and division as the various acts which form the basis of this complaint occurred within the Southern District of Ohio, Columbus Division.
PLAINTIFFS 6. PlaintiffJ.P. is and has been incarcerated at the Scioto Juvenile Correctional Facility since January of 2002 as a result of an adjudication through the Hamilton County Juvenile Court. She has had significant needs concerning mental health and medical care that have been largely ignored by the facility staff. On or about February 14, 2003, J.P. was sexually assaulted by a Juvenile Corrections Officer ("JCO’) while on "suicide watch" in a special unit. She was 17 years old at the time. The JCO has since been convicted of sexual battery in this case and that of another juvenile resident and is in prison. J.P. has filed grievances, including a complaint to the Chief Inspector, regarding the assault, and the failure to receive adequate medical and mental health care, and has specifically requested legal counsel to assist her. The Defendants have failed to provide her with any legal assistance to address these matters. 7. S.J. is and has been incarcerated at the Scioto Juvenile Correctional Facility since October of 2003 as a result of an adjudication through the Hamilton County Juvenile Court. On or
3

about December 27, 2003, she was physically assaulted by a mate Juvenile Corrections Officer who followed her into her room and slapped her on the side of her face with the palm of his hand repeatedly, causing her eardrum to rupture, and causing bruises and welts on her face. S. J. was 17 years old at the time of the assault. S. J. was threatened with retaliation, is she reported the incident, and was instructed by the JCO to report the injury as self-inflicted. S. J. was also threatened with receiving more time at Scioto if she told the truth about what happened. S. J. has filed grievances regarding this matter, including a complaint to the Chief Inspector, regarding the assault, and has specifically requested legal counsel to assist her. The Defendants have failed to provide her with legal assistance to address these matters.
8. D.B. is and has been incarcerated at the Scioto Juvenile Correctional Facility since July of 2003, although she was briefly released from the period of May 31, 2004 through July 12, 2004 on parole. She was placed at Scioto as a result of an adjudication through the juvenile court in Paulding County. On or about February 3, 2004, she was physically assaulted by a male Juvenile Corrections Officer who followed her into her room, grabbed her and threw her to the floor, pulled her arm behind her back, and punched her ann, breaking it. D.B.’s head also hit the floor during the assault. D.B. has been required to have surgery on her arm for it to properly heal. D. B. was 16 years old at the time of the incident. She has filed grievances, including with the Chief Inspector, and has asked for the incident to be investigated and for legal assistance. The Defendants have failed to provide her with legal assistance to address these matters. The JCO continues to work at Scioto.
9. H.H. is and has been incarcerated at the Scioto Juvenile Correctional Facility as a result of an adjudication through the juvenile court in Franklin County. She was 13 at the time of her adjudication. In December of 2003, H.H. was involved in an altercation with a Juvenile

Corrections Officer who slapped her in the back of the neck, grabbed her and slammed her down on her bed, hit her in the forehead, and continued to punch her in theback and kick her in the stomach. The incident was witnessed by several other youth in the facility. H.H. suffered bruises and swelling, and had difficultybreathing after the incident. H.H. filed grievances regarding the assault, including with the Chief Inspector, and included a request for an attorney to assist her in handling this matter. The Defendants have failed to provide her with legal assistance to address these matters. The JCO continues to work at Scioto.
DEFENDANTS 10. Defendant Bob Taft is the duly elected governor of the State of Ohio and functions as the head of the State’s executive branch. In addition, pursuant to Ohio Rev. Code § 5139.0t(B), Governor Taft is statutorily required to appoint a director to head the Ohio Department of Youth Services with the advice and consent of the Senate. 11. Defendant Ohio Department of Youth Services ("ODYS") is an agency of the State of Ohio mandated by Ohio Rev. Code § 5130.03 to control and manage all state institutions or facilities established or created for the training or rehabilitation of delinquent children committed to the Department. Pursuant to Ohio Rev. Code § 5139.04, ODYS must receive custody of children committed to it and house those children within an institution or community corrections facility. 12. Defendant Geno Natalucci-Perischetti is and at all relevant times has been the appointed Director of Youth Services. As the Director, he has the powers of a department head set forth in Chapter 121 of the Ohio Revised Code. These powers and duties include, but are not limited to, adopting rules for the government of the Department, the conduct of its officers and employees, the performance of its business, and the custody, use, and preservation of the Department’s records

and property. Any duties imposed by law on ODYS must be performed by or implemented by the Director.
CLASS ACTION 13. Plaintiffs bring this action on behalf of themselves and all others similarly pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The class consists of all juveniles (approximately 2500 children per year) who are or will in the future be committed to ODYS and placed in an institution, secured facility, or community corrections facility operated by or funded in part or in total by contract with ODYS. 14. The members of the class are so numerous that joinder of all members is impractical. In addition, there are questions of law and fact common to the members of the Plaintiff class regarding practices of Defendants and the claims of the members of the Plaintiffclass. In addition, Defendants have refused to act on grounds generally applicable to the Plaintiffclass, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 15. The named Plaintiffs in this action, as welt as Plaintiffs’ counsel, will fairly and adequately protect the interests of the members of the class. All three counsel for the Plaintiffclass are civil rights attorneys who have experience representing individuals in federal class action suits. In addition, one of Plaintiffs’ attorneys, Kim Brooks Tandy, is the Director of the Children’s Law Center and focuses her practice almost exclusively on legal issues pertaining to and affecting juveniles.
6

STATEMENT OF THE FACTS A. Facts Concerning Plaintiffs 16. As noted above, each of the named Plaintiffs in this action have suffered serious physical injuries as a result of being incarcerated. They believe they have valid claims challenging the conditions of their confinement, but are unable to access the courts to bring these claims without legal assistance. Each named Plaintiff has filed grievances regarding the incidents and has specifically requested an attorney to assist them. To date, none of the Plaintiffs have been provided legal counsel with regard to their claims.
B. Facts Concerning ODYS 17. ODYS operates or funds by contract several community corrections facilities for juveniles committed as juvenile delinquents or serious juvenile offenders, including but not limited to Butler County Juvenile Rehabilitation Center, Hocking Valley Community Residential Center, Juvenile Residential Center of Northwest Ohio, Lucas County Youth Treatment Center, North Central Ohio Rehabilitation Center, Oakview Group Home, Perry County Group Home, and West Central Juvenile Rehabilitation Facility. A community corrections facility is a county or multicounty rehabilitation center for felony delinquents committed to ODYS and diverted from custody and care in an institution and placed in a rehabilitation center. 18. ODYS operates or funds by contract several institutions, including but not limited to Circleville Youth Center, Cuyahoga Hills Boys School, Indian River School, Marion Juvenile Correctional Center, Maumee Youth Center, Mohican Youth Center, Ohio River Valley Youth Center, Scioto Juvenile Correctional Center, and Lighthouse Youth Center at Paint Creek. These institutions are state facilities created by the General Assembly under the management and control
7

of ODYS or a private entity with which ODYS has contracted for institutional care and custody of felony delinquents.
19. In addition to maintaining these facilities, ODYS supervises committed juveniles housed in institutions or community corrections facilities throughout the State of Ohio.
20. Juveniles who are adjudicated delinquent for committing acts that if committed by an adult wouId constitute felonies may be committed to ODYS for an indefinite period of time up to and until the child turns 2 i.
21. Juveniles who have been adjudicated felony delinquents are eligible for placement at community corrections facilities. A felony delinquent is a child at least t2 and less than 18 who has been adjudicated a delinquent child for committing an act that if committed by an adult would be a felony offense or an adult between the ages of 18 and 2t who is in the legal custody of ODYS and has committed an act while in custody that would constitute a felony if committed by an adult.
22. Juveniles committed to ODYS range in age from 12 to 21. Placement in an institution or community corrections facility may be from several months for as long as several years. The average age of admission in Ohio is I5.9 years.
23. Committed juveniles, by virtue of their age, lack of maturity, and education levels, are often unfamiIiar with their legal fights and remedies. In addition, they are often unaware of how to obtain access to the courts or challenge the legality of their commitments, their continued confinement, and institutional practices and conditions that may violate their civil fights.
C. Juveniles and Right to Access the Courts 24. Defendants are obligated pursuant to the First, Sixth, and Fourteenth Amendments to the United States Constitution and related provisions of the Ohio Constitution to provide a system

whereby committedjuveniles placed in ODYS institutions or community corrections facilities may access the courts for any matters related to the fact, duration, or conditions of confinement that may violate the juvenile’s federal statutory or constitutional rights.
25. Defendants presently provide no adequate, effective, and meaningful system for committed juveniles who are placed in institutions or community corrections facilities to gain access to the courts for any matters related to the fact, duration, or conditions of confinement which may violate their federal statutory or constitutional rights.
26. The only legal representation presently provided for committed juveniles is by the Ohio Public Defender’s Office. The Public Defender has a staffofthree attorneys, one of whom is a temporary employee, who are responsible for screening juveniles at the Scioto Village intake center. These attorneys are only available to represent committed juveniles who elect to pursue direct appeals of their orders of commitment. The Office has no resources and no state statutory mandate to represent juveniles who desire to pursue claims pertaining to the fact, duration, or conditions of confinement. Consequently, there is no governmental or other entity that routinely provides representation to the Plaintiffs for filing writs of habeas corpus, post-conviction petitions, or civil lawsuits regarding the conditions of a juvenile’s confinement.
27. As reported in the media, Defendant ODYS is presently meeting with the Ohio Public Defender’s Office to discuss providing additional legal representation for committed juveniles. To Plaintiffs’ knowledge, no formal agreement has been reached to date. Moreover, there are indications that the proposal being discussed is not only inadequate, but would unduly restrict the Ohio Public Defender’s ability to provide constitutionally adequate access to the courts. In this

regard, Ohio Public Defender David Bodiker recently described the proposal as follows: "I had the impression we were supposed to be up there and look pretty and provide a nice facade."
CAUSE OF ACTION Claim One:
The Right to Redress Grievances and to Due Process through Access to the Courts
28. Plaintiffs hereby incorporate by reference each and every allegation set forth above. 29. The right to petition the government for redress of grievances is guaranteed by the First and Sixth Amendments to the United States Constitution and the Due Process Clause of the Fourteenth Amendments to the United States Constitution, as well as related provisions of the Ohio Constitution. These guarantees encompass a fight of access to the courts for inmates of state institutions so that they may challenge the legality and conditions of their confinement. When the Ohio Department of Youth Services takes commitment of a juvenile, particularly for the purposes of placing that juvenile in an institution or community corrections facility, it has an affirmative duty to provide access to the courts by providing legal counsel for the juvenile. See John L. v. Adams, 969 F.2d 228 (6th Cir. 1992). Defendants have failed to effectively meet their constitutional obligation to afford committed juveniles with representation and access to the courts to redress their grievances. Such failure denies Plaintiffs and all others they seek to represent the rights guaranteed to them under the First, Sixth, and Fourteenth Amendments to the United States Constitution and analogous provisions of the Ohio Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that on their behalf and on the behalf of all others they seek to represent, that this Court:
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1. Assume jurisdiction of this cause and set this case for a prompt hearing; 2. Permit Plaintiffs to proceed in this action under their initials as opposed to their full legal names in order to protect their anonymity; 3. Determine by order, pursuant to Rule 23(b)(2) and (c)(1) of the Federal Rules of Civil Procedure, that this action be maintained as a class action on behalf of the class defined herein; 4. Enter a final judgment pursuant to 28 U.S.C. § § 2201 and 2202 and Rules 54, 57, and 58 of the Federal Rules of Civil Procedure that Defendants failure to provide a meaningful program of legal assistance to juveniles committed to the Ohio Department of Youth Services for placement in an institution or community corrections facility violates the First, Sixth, and Fourteenth Amendments to the United States Constitution and related provisions of the Ohio Constitution, and deprives these juveniles of their right to access the courts for redress of grievances and their right to due process under the law; 5. Enter an order directing Defendants to develop a program for the effective delivery of legal services to the class members and to submit a plan for the prompt implementation of that program; 6. Award Plaintiffs reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and 7. Grant such other relief to Plaintiffs and all others similarly situated as the Court deems to be just, proper, and equitable.
11

Respectfully submitted,
KIM BROOKS TANDY ((Jhio Bar No. 0076173) (Trial Counsel) Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011 Telephone: (859) 431-3313 kimbrooks@fuse.net
JENNIFER M. KINSLEY (Ohio Bar No. 0071629) Sirkin Pinales & Schwartz LLP 105 West Fourth Street, Suite 920 Cincinnati, Ohio 45202 Telephone: (513) 721-4876 jkinsley@sirkinpinales.com
STEPHEN L. PEVAR (Admission pro hac vice pending) American Civil Liberties Union Foundation 32 Grand Street Hartford, Connecticut 06106 Telephone: 860-293-1559 pevaraclu@aol.com Counsel for Plaintiffs
12

KIM BROOKS TANDY (Ohio Bar No. 0076173) (Trial Counsel) Children’s Law Center 104 East Seventh Street Covington, Kentucky 4101 t Telephone: (859) 431-3313 kimbrooks@fuse.net
JENNIFER M. KINSLEY (Ohio Bar No. 0071629) Sirkin Pinales & Schwartz LLP 105 West Fourth Street, Suite 920 Cincinnati, Ohio 45202 Telephone: (513) 721-4876 jkinsley@sirkinpinales.com
-and-
STEPHEN L.PEVAR (Admission pro hac vice pending) American Civil Liberties Union Foundation 32 Grand Street Hartford, Connecticut 06106 Telephone: (860) 293-1559 pevaracl u.@.aol, corn
Counsel for Plaintiffs

 
 Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
COLUMBUS DIVISION

J.P., and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

:

Case No. 2:04-CV-692

:

Judge Marbley

:

S.J., and all others similarly situated,

:

c/o Children’s Law Center

Children’s Law Center, Inc.

:

104 East Seventh Street

Covington, Kentucky 41011,

:

D.B., a minor child, by and through her next friend Donald Geiger, and all others similarly situated, c/o Children’s Law Center Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011,

:

:

AMENDED

:

COMPLAINT FOR

DECLARATORY AND

:

INJUNCTIVE RELIEF

H.H., a minor child, by and through her

:

next friend Shanda Spurlock,

and all others similarly situated,

:

c/o Children’s Law Center

Children’s Law Center, Inc.

:

104 East Seventh Street

Covington, Kentucky 41011,

:

M.M. and all others similarly situated,

:

c/o Children’s Law Center

Children’s Law Center, Inc.

:

104 East Seventh Street

Covington, Kentucky 41011, and

:

T.M., and all others similarly situated,

:

c/o Children’s Law Center

Children’s Law Center, Inc.

:

104 East Seventh Street

Covington, Kentucky 41011,

:

Plaintiffs,

:

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 2 of 16

V.

:

BOB TAFT,

:

Governor of the State of Ohio,

in his official capacity only,

:

77 South High Street, 30th Floor

Columbus, Ohio 43215,

:

and

:

THOMAS STICKRATH,

:

Interim Director, Ohio Youth Services,

in his official capacity only,

:

51 North High Street

Columbus, Ohio 43215,

:

Defendants.

:

INTRODUCTORY STATEMENT 1. This is a civil rights class action suit challenging the denial of access to the courts for juveniles committed to the Ohio Department of Youth Services (“ODYS”) as juvenile delinquents or serious juvenile offenders and incarcerated in institutions, secured facilities, or community corrections facilities operated by, or funded in part or in total by contract with, ODYS throughout the State of Ohio. Plaintiffs bring this action for declaratory, injunctive and other equitable relief on behalf of themselves and all other juveniles similarly situated who are or will in the future be committed to ODYS and placed in an institution, secured facility, or community corrections facility operated by, or funded in part or in total by contract with, ODYS without a means to exercise their constitutional right to access the courts in violation of the First, Sixth, and Fourteenth Amendments of the United States Constitution and related provisions of the Ohio Constitution.

2

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 3 of 16
2. Plaintiffs bring this action under the federal Civil Rights Act, 42 U.S.C. § 1983, to redress the violation by Defendants, acting under color of state law, of rights guaranteed to Plaintiffs under the First, Sixth, and Fourteenth Amendments to the United States Constitution as more particularly set forth in this Complaint.
JURISDICTION 3. Jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief is proper in this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3), and 1343(4). 4. This Court has supplemental and pendent jurisdiction pursuant to 28 U.S.C. § 1367 to review and decide Plaintiffs’ state law claims. 5. Venue is proper in this district and division as the various acts which form the basis of this complaint occurred within the Southern District of Ohio, Columbus Division.
PLAINTIFFS 6. Plaintiff J.P. is and has been incarcerated at the Scioto Juvenile Correctional Facility since January 2002 as a result of an adjudication through the Hamilton County Juvenile Court. She has had significant needs concerning mental health and medical care that have been largely ignored by the facility staff. On or about February 14, 2003, J.P. was sexually assaulted by a Juvenile Corrections Officer (“JCO”) while on “suicide watch” in a special unit. She was 17 years old at the time. The JCO has since been convicted of sexual battery in this case and that of another juvenile resident and was sentenced to prison. J.P. filed a grievance in March 2003 and also sent a letter to the Chief Inspector regarding the assault. She was later advised by an attorney with the Ohio Public Defender office to file a grievance asking for a civil attorney from ODYS. She was told by the facility superintendent Mr. Warner, relative to her request for an attorney, that he would “take care
3

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 4 of 16
of it.” J.P. never received a response to her grievance of March 2003, nor was she provided with an attorney initially. J.P. wanted an attorney during that time to ensure the JCO who assaulted her would not be permitted around her, and to protect her from retaliation from staff. J.P. was eventually referred to an attorney, but did not see this person until December of 2004, five months after filing this lawsuit. (See Affidavit of J.P., Combined Exhibit A).
7. S. J. was incarcerated at the Scioto Juvenile Correctional Facility from October 2003 until July 2004 as a result of an adjudication through the Hamilton County Juvenile Court, and is now on parole to the Ohio Department of Youth Services. On or about December 27, 2003, she was physically assaulted by a male Juvenile Corrections Officer who followed her into her room and repeatedly slapped her on the side of her face with the palm of his hand, causing her eardrum to rupture, and causing bruises and welts on her face. S. J. was 17 years old at the time of the assault. S. J. was threatened with retaliation if she reported the incident, and was instructed by the JCO to report the injury as self-inflicted. S. J. was also threatened with receiving more time at Scioto if she told the truth about what happened. S. J. filed a grievance regarding this incident, and, following the advice of an attorney from the Ohio Public Defender’s office, also sent a letter to the Chief Inspector on the same day regarding the assault. She specifically asked for legal assistance from ODYS and was told by Scioto Superintendent Morgan that ODYS could not provide her with an attorney, and that this was up to her and/or her family. S.J. wanted an attorney to prevent retaliation by JCO’s as a result of her reporting the incident, and to ensure that the JCO who assaulted her did not return to work on her unit. She also wanted to secure better medical care through the assistance of an attorney. The Defendants failed to provide her with legal assistance to address these matters. (See Affidavit of S.J., Combined Exhibit B).
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Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 5 of 16
8. D.B. is and has been incarcerated at the Scioto Juvenile Correctional Facility since July 2003, although she was briefly released on parole from May 31, 2004 through July 12, 2004. She was placed at Scioto as a result of an adjudication through the juvenile court in Paulding County. On or about February 3, 2004, she was physically assaulted by a male Juvenile Corrections Officer who followed her into her room, grabbed her and threw her to the floor, pulled her arm behind her back, and punched her arm, breaking it. D.B.’s head also hit the floor during the assault. D.B. has been required to have surgery on her arm for it to properly heal. D. B. was 16 years old at the time of the incident. D.B. filed a grievance on February 6, 2004 and asked to speak with an attorney regarding her rights. She was advised by Mr. Morgan, the superintendent, that he would get her an attorney. However, he did not do so. Finally, in January, 2005, D.B. spoke with Larry Mathews, on contract with ODYS, regarding her request for an attorney. Mathews indicated he would try to find her an attorney. D.B. wanted an attorney to assist her in filing a civil action to compensate her for her injuries, and to ensure that the JCO who assaulted her was not working around her. The Defendants have still not provided her with legal assistance to address these matters. (See Affidavit of D.B., Combined Exhibit C).
9. H.H. is and has been incarcerated at the Scioto Juvenile Correctional Facility as a result of an adjudication through the juvenile court in Franklin County. She was 13 at the time of her adjudication. In December, 2003, H.H. was involved in an altercation with a Juvenile Corrections Officer who slapped her in the back of the neck, grabbed her and slammed her down on her bed, hit her in the forehead, and continued to punch her in the back and kick her in the stomach. The incident was witnessed by several other youth. H.H. suffered bruises and swelling, and had difficulty breathing after the incident. H.H. filed grievances regarding the assault, including with
5

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 6 of 16
the Chief Inspector, and included a request for an attorney. The Defendants have failed to provide her with legal assistance to address these matters. The JCO who assaulted H.H. was indicted in January 2005 for child endangering regarding the incident. (See Grievance Forms, Combined Exhibit D).
10. M.M. is an 18 year-old youth who is and has been incarcerated at the Marion Juvenile Correctional Facility as a result of an adjudication from Youngstown, Ohio. In October 2004, M.M. was involved in an incident upon his return from the bathroom wherein he was pushed by a JCO, hit in the head, and then slammed to the ground. One of his hands was placed in a handcuff. A JCO kneeled on the uncuffed hand to prevent M.M. from moving his hand to enable until it could be placed in the handcuff. A JCO placed his arm around M.M.’s neck while M.M. was on the ground causing M.M. to gag and eventually black out. When M.M. regained consciousness he was kicked in the jaw twice by a JCO. M.M. has experienced significant pain and was not able to eat solid food for a week-and-a-half after the incident. After the incident the JCO who choked M.M. told him that if he did not report the incident, the JCO would bring him contraband items such as chewing tobacco and cigars. M.M. filed a grievance regarding this incident on October 16, 2004 and asked that the matter be resolved “in court.” He was informed by Superintendent Norm Hills that there was no basis for his allegations. M.M. appealed this decision to the chief inspector. He attached a statement asking for an attorney. M.M. has concerns that there is violence continuing to occur daily against youth in this facility. Attorney Larry Mathews, on contract to ODYS, contacted M.M. but has been unable to find an attorney to assist M.M. in claims against ODYS. M.M. continues to request an attorney while at Marion to assist him in getting proper medical care, and to ensure his proper treatment in the facility. (See Affidavit of M.M, Combined Exhibit E).
6

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 7 of 16
11. T.M. is an 18 year-old youth at the Marion Juvenile Correctional Facility and has been in the custody of ODYS for approximately two years. In October 2004, during a incident involving T.M. and other youth banging on doors to get permission to use the bathroom, a JCO came into his room, restrained him improperly, “choking him out” until he was rendered unconscious. During the incident, T.M. was also hit in the eye by the JCO, causing injury. T.M. filed a grievance regarding this incident on October 16, 2004, including a written statement detailing the assault by the JCO, and the fact that youth were being forced to urinate in their rooms into rubber gloves rather than being able to use the bathroom. T.M. indicated he wanted to see this grievance resolved “in court.” T.M. sent his grievance to the Chief Inspector on December 15, 2004 because he felt he had not gotten appropriate information or relief from the superintendent. T.M. also met with Larry Mathews and asked for an attorney to file a civil claim for damages, to seek better medical care, and to otherwise learn about his rights. An attorney from Cleveland, arranged by Larry Mathews, finally visited him at the end of January 2005 to discuss possible claims. However, she has not yet informed T.M as to whether she will be able to take his case. (See Affidavit of T.M., Combined Exhibit F).
DEFENDANTS 12. Defendant Bob Taft is the duly elected governor of the State of Ohio and functions as the head of the State’s executive branch. In addition, pursuant to Ohio Rev. Code § 5139.01(B), Governor Taft is statutorily required to appoint a director to head the Ohio Department of Youth Services with the advice and consent of the Senate. 13. Defendant Thomas Stickrath is the interim Director of Youth Services and was appointed to replace Geno Natalucci-Persichetti, who was forced to resign as Director in December 2004. As the Director, Stickrath has the powers of a department head set forth in Chapter 121 of the
7

Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 8 of 16
Ohio Revised Code. These powers and duties include, but are not limited to, adopting rules for the government of the Department, the conduct of its officers and employees, the performance of its business, and the custody, use, and preservation of the Department’s records and property. Any duties imposed by law on ODYS must be performed by or implemented by the Director.
CLASS ACTION 14. Plaintiffs bring this action on behalf of themselves and all others similarly pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The class consists of all juveniles (approximately 2400 children per year) who are or will in the future be committed to ODYS and placed in an institution, secured facility, or community corrections facility operated by, or funded in part or in total by contract with, ODYS. 15. The members of the class are so numerous that joinder of all members is impractical. In addition, there are questions of law and fact common to the members of the class, and the claims or defenses of the representative parties are typical of the claims or defenses of the class. In addition, Defendants have acted or refused to act on grounds generally applicable to the Plaintiff class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 16. The named Plaintiffs in this action, as well as Plaintiffs’ counsel, will fairly and adequately protect the interests of the members of the class. All three counsel for the Plaintiff class are civil rights attorneys who have experience representing individuals in federal class action suits.
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STATEMENT OF THE FACTS A. Facts Concerning Plaintiffs 17. As noted above, each of the named Plaintiffs in this action has suffered injuries as a result of being incarcerated. They believe they have valid claims challenging the conditions of their confinement, but are unable to access the courts to file these claims without legal assistance. Each named Plaintiff has filed grievances regarding the underlying incidents and has specifically requested an attorney to assist them. Most of the named Plaintiffs have still not been provided with attorneys, and for those who have, such assistance was provided well after this lawsuit was filed, allowing ongoing injury to occur. B. Facts Concerning ODYS 18. ODYS operates or funds by contract several community corrections facilities for juveniles committed as juvenile delinquents or serious juvenile offenders, including but not limited to Butler County Juvenile Rehabilitation Center, Hocking Valley Community Residential Center, Juvenile Residential Center of Northwest Ohio, Lucas County Youth Treatment Center, North Central Ohio Rehabilitation Center, Oakview Group Home, Perry County Group Home, and West Central Juvenile Rehabilitation Facility. A community corrections facility is a county or multicounty rehabilitation center for felony delinquents committed to ODYS and diverted from custody and care in an institution and placed in a rehabilitation center. 19. ODYS operates or funds by contract several institutions, including but not limited to Circleville Youth Center, Cuyahoga Hills Boys School, Indian River School, Marion Juvenile Correctional Center, Maumee Youth Center, Mohican Youth Center, Ohio River Valley Youth Center, Scioto Juvenile Correctional Center, and Lighthouse Youth Center at Paint Creek. These
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institutions are state facilities created by the General Assembly under the management and control of ODYS or a private entity with which ODYS has contracted for institutional care and custody of felony delinquents.
20. In addition to maintaining these facilities, ODYS supervises committed juveniles housed in institutions or community corrections facilities throughout the State of Ohio.
21. Juveniles who are adjudicated delinquent for committing acts that if committed by an adult would constitute felonies may be committed to ODYS for an indefinite period of time up to and until the child turns 21.
22. Juveniles who have been adjudicated felony delinquents are eligible for placement at community corrections facilities. A felony delinquent is a child at least 12 and less than 18 years of age who has been adjudicated a delinquent child for committing an act that if committed by an adult would be a felony offense or an adult between the ages of 18 and 21 who is in the legal custody of ODYS and has committed an act while in custody that would constitute a felony if committed by an adult.
23. Juveniles committed to ODYS range in age from 12 to 21. Placement in an institution or community corrections facility generally ranges from several months to several years. The average age of admission in Ohio is 15.9 years.
24. Committed juveniles, by virtue of their age, lack of maturity, and education levels, are often unfamiliar with their legal rights and remedies. In addition, they are often unaware of how to obtain access to the courts or challenge the legality of their commitments, their continued confinement, and institutional practices and conditions that may violate their civil rights.
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C. Juveniles and the Right to Access the Courts 25. Defendants are obligated pursuant to the First, Sixth, and Fourteenth Amendments to the United States Constitution and related provisions of the Ohio Constitution to provide a system whereby committed juveniles placed in ODYS institutions or community corrections facilities may access the courts for any matters related to the fact, duration, or conditions of confinement that may violate the juvenile’s federal statutory or constitutional rights. 26. Defendants presently provide no adequate, effective, and meaningful system for committed juveniles who are placed in institutions or community corrections facilities to gain access to the courts for matters related to the fact, duration, or conditions of confinement which may violate their federal statutory or constitutional rights. 27. Based on plaintiffs' information and belief, the injuries suffered by the plaintiffs, and the findings reported by Fred Cohen, who was retained by the state to investigate conditions of confinement within ODYS facilities, plaintiffs allege that Governor Taft inadequately trained the Director of Youth Services in the proper performance of his duties and inadequately supervised the Department of Youth Services and its staff, thereby proximately causing the injuries that give rise to this action. 28. Moreover, plaintiffs allege that Governor Taft, although aware that plaintiffs' right of access to the courts has been and is being hindered, has failed to conduct a reasonable inquiry into the deficiencies that are causing plaintiffs' injuries, and has not undertaken reasonable means to correct or eradicate those deficiencies. 29. The only legal representation presently provided for indigent committed juveniles is through the Ohio Public Defender’s Office. The Public Defender has a staff of four attorneys who
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are responsible for screening juveniles at the Scioto intake center. These attorneys are only available to represent committed juveniles who elect to pursue direct appeals of their orders of commitment. The Office has no resources and no state statutory mandate to represent juveniles who desire to pursue claims pertaining to the fact, duration, or conditions of confinement. Consequently, there is no governmental or other entity that routinely provides representation to the Plaintiffs for filing writs of habeas corpus, post-conviction petitions, or civil lawsuits regarding the conditions of a juvenile’s confinement.
30. As reported in the media, Defendant ODYS entered into preliminary discussions with the Ohio Public Defender’s Office early in 2004 to discuss providing additional legal representation for committed juveniles. To Plaintiffs’ knowledge, no formal agreement has been reached to date. Moreover, there are indications that the proposal being discussed is not only inadequate, but would unduly restrict the Ohio Public Defender’s ability to provide constitutionally adequate access to the courts.
31. In September 2004, after the filing of this lawsuit, Defendants ODYS hired Larry Mathews under a temporary contract to “assess the demand for legal services on conditions of confinement issues” and to interview and refer youth to private law firms for legal representation. In spite of this contract, some of the named Plaintiffs and members of the putative class continue to be denied their constitutional right to access the courts to redress grievances while in ODYS facilities.
D. Exhaustion of Administrative Remedies 32. The Ohio Department of Youth Services has posted a notice entitled “Your Legal Rights” which identifies four options for youth who have complaints regarding their treatment by
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ODYS, including speaking with a staff member about their concerns, filing a grievance, having the youth contact your own attorney, or contacting an attorney provided by ODYS through a post office box. (See “Your Legal Rights” document, Combined Exhibit G).
33. Each of the named plaintiffs exhausted his or her administrative remedies by speaking with staff members and/or submitting written grievances. Each of the named plaintiffs specifically sought the assistance of an attorney through ODYS either verbally or in writing through the grievance process. Plaintiffs have done all that ODYS has required them to do to seek the assistance of an attorney, and in some cases, have done more than required. (See Combined Exhibits A to G).
CAUSE OF ACTION Claim One:
The Right to Redress Grievances and to Due Process Through Access to the Courts
34. Plaintiffs hereby incorporate by reference each and every allegation set forth above. 35. The right to petition the government for redress of grievances is guaranteed by the First and Sixth Amendments to the United States Constitution and the Due Process Clause of the Fourteenth Amendments to the United States Constitution, as well as related provisions of the Ohio Constitution. These guarantees encompass a right of access to the courts for inmates of state institutions so that they may challenge the legality and conditions of their confinement. When the Ohio Department of Youth Services takes commitment of a juvenile, particularly for the purposes of placing that juvenile in an institution or community corrections facility, it has an affirmative duty to provide access to the courts by providing legal counsel for the juvenile. See John L. v. Adams, 969 F.2d 228 (6th Cir. 1992). Defendants have failed to effectively meet their constitutional obligation to afford committed juveniles with representation and access to the courts to redress their
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grievances. Such failure denies Plaintiffs and all others they seek to represent the rights guaranteed to them under the First, Sixth, and Fourteenth Amendments to the United States Constitution and analogous provisions of the Ohio Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that on their behalf and on the behalf of all others they seek to represent, that this Court: 1. Assume jurisdiction of this cause and set this case for a prompt hearing; 2. Permit Plaintiffs to proceed in this action under their initials as opposed to their full legal names in order to protect their anonymity; 3. Determine by order, pursuant to Rule 23(b)(2) and (c)(1) of the Federal Rules of Civil Procedure, that this action be maintained as a class action on behalf of the class defined herein; 4. Enter a final judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 54, 57, and 58 of the Federal Rules of Civil Procedure declaring that Defendants failure to provide a meaningful program of legal assistance to juveniles committed to the Ohio Department of Youth Services for placement in an institution or community corrections facility violates the First, Sixth, and Fourteenth Amendments to the United States Constitution and related provisions of the Ohio Constitution, and deprives these juveniles of their right to access the courts for redress of grievances and their right to due process under the law; 5. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, enter an order directing Defendants to develop a program for the effective delivery of legal services to the class members and to submit a plan for the prompt implementation of that program; 6. Award Plaintiffs reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and
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7. Grant such other relief to Plaintiffs and all others similarly situated as the Court deems to be just, proper, and equitable.
Respectfully submitted,
/s/ Kim Brooks Tandy KIM BROOKS TANDY (Ohio Bar No. 0076173) (Trial Counsel) Children’s Law Center, Inc. 104 East Seventh Street Covington, Kentucky 41011 Telephone: (859) 431-3313 kimbrooks@fuse.net JENNIFER M. KINSLEY (Ohio Bar No. 0071629) Sirkin Pinales & Schwartz LLP 105 West Fourth Street, Suite 920 Cincinnati, Ohio 45202 Telephone: (513) 721-4876 jkinsley@sirkinpinales.com
--and-STEPHEN L. PEVAR Pro hac vice American Civil Liberties Union Foundation 32 Grand Street Hartford, Connecticut 06106 Telephone: 860-293-1559 pevaraclu@aol.com Counsel for Plaintiffs
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Case 2:04-cv-00692-ALM-NMK Document 41 Filed 03/07/2005 Page 16 of 16 CERTIFICATE OF SERVICE
I hereby certify that an exact copy of the foregoing document was provided via the Court’s electronic notification system to: Joseph Mancini and Sharon Jennings, Assistant Attorney Generals, Ohio Attorney General’s Office, 30 East Broad Street, 17th Floor, Columbus, Ohio 43215, on the 7th day of March, 2005.
/s/ Jennifer M. Kinsley JENNIFER M. KINSLEY (Ohio Bar No. 0071629) Counsel for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J.P., and all others similarly situated, et al., :

:

Plaintiffs,

:

:

v.

:

:

Bob Taft, et al.,

:

:

Defendants.

:

Case No. C2-04-692 JUDGE ALGENON MARBLEY Magistrate Judge King

OPINION AND ORDER I. INTRODUCTION
This matter comes before the Court on the Defendants’ Motion to Alter or Amend this Court’s July 21, 2006 Order. For the reasons set forth herein, Defendants’ Motion is DENIED.
II. STATEMENT OF FACTS1 A. Background
Defendant, Ohio Department of Youth Services (“ODYS”) serves as that “legal custodian for [Ohio] juvenile offenders, age 10-21 who have been adjudicated delinquent as a result of committing felony violations.” Pl.’s Ex. A. ODYS operates by fund or contract institutions including but not limited to: Circleville Juvenile Correctional facility, Mohican Juvenile Correctional facility, Cuyahoga Hills Juvenile Correctional Facility, Scioto Juvenile Correctional Facility, Ohio River Valley Juvenile Correctional Facility, Indian River Juvenile Correctional

1The “Statement of Facts” is adopted in relevant part from this Court’s Order and Opinion denying Defendants’ Third Motion for Summary Judgment issued on July 21, 2006.
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Facility, Freedom Center, and the Marion Juvenile Correctional Facility. See Pls.’ Ex. A.2
ODYS also has six parole offices, and contracts with a private sector provider for services. See
id. “At any given time, [Ohio] DYS has approximately 1,800 youth3 in its custody in the
correctional facilities [listed above].” Id.
In 1992, the Sixth Circuit Court of Appeals ruled that because juvenile offenders cannot
make effective use of legal materials by themselves, they require the assistance of lawyers to
allow them meaningful access to the courts. See John L. Adams, 969 F.2d 228, 233 (6th Cir.
1992).4 Nonetheless, this right to assistance of counsel has been narrowly interpreted to mean
2These institutions are state facilities created by the Ohio General Assembly under the management and control of either ODYS or a private entity with which ODYS contracted for institutional care and custody of felony delinquents. Second Amended Complaint ¶ 19. In addition to maintaining these facilities, ODYS supervises committed juveniles housed in institutions or community corrections facilities throughout the state of Ohio. Id.
3Juveniles who are adjudicated delinquent for committing acts that if committed by an adult would constitute felonies, may be committed to ODYS for an indefinite period of time up to and until that juvenile reaches the age of 21. Second Amended Complaint ¶ 21. Juveniles who have been adjudicated felony delinquents are eligible for placement at community corrections facilities. Id. ¶ 22. A felony delinquent is a juvenile at least 12 years of age and less than 18 years of age, who has been adjudicated a delinquent juvenile for committing an act that if committed by an adult would be a felony offense, or an adult between the ages of 18 and 21 who is in the legal custody of ODYS, and has committed an act while in custody that would constitute a felony if committed by an adult. Id. Juveniles committed to ODYS range in age from 12 to 21 years. Id. ¶ 23. Placement in an institution or community corrections facility can range from several months to several years and averages approximately 10½ months per stay. Id. The average age of admission in Ohio is 15.9 years. Id.
4In John L., plaintiffs, incarcerated juveniles who were or would soon be confined in secure institutions operated by Tennessee Department of Youth Development (“TDYD”) brought a class action alleging denial of right of access to the courts. See 969 F.2d at 228. The district court granted summary judgment to the plaintiffs and ordered the state to submit a proposed remedial plan to provide plaintiffs with an appropriate remedy. Id. at 229. After giving plaintiffs an opportunity to weigh in on the proposed remedial plan, the judge fashioned it into a “remedial order.”
Under the terms of the approved remedial order, the TDYD would create four separate contracts to have private attorneys provide part-time legal assistance to juveniles at the four
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that juvenile offenders are not entitled to legal assistance on “general civil matters arising solely
under state law.” Id. Moreover, the right to assistance of counsel is limited to “the preparation
and the filing of the complaint.” See Knop v. Johnson, 977 F.2d 996, 1005-07 (6th Cir. 1992);
see also, Bee v. Utah State Prison, 823 F.2d 397 (10th Cir. 1987); Nordgren v. Milliken, 762
F.2d 851, 855 (10th Cir. 1985); Ward v. Kort, 762 F.2d 856 (10th Cir. 1985).
B. Procedural History
1. The Initial Lawsuit
In July 2004, four youth (J.P., S.J., H.H. and D.B.) filed a proposed class action suit in
federal court. Plaintiffs alleged that the Defendants violated the First, Sixth, and Fourteenth
Amendments of the United States Constitution and corresponding provisions of the Ohio
Constitution by denying access to the courts to juveniles committed to ODYS as juvenile
delinquents or serious juvenile offenders. See id.; J.P., et al., 2005 WL 2405993, at *1.
Plaintiffs sought declaratory and injunctive relief, asking the Court to declare Defendants’
actions unconstitutional and to require Defendants to provide them with access to attorneys. See
id.
On January 7, 2005, Defendants filed their First Motion for Summary Judgment, arguing
secure Tennessee institutions. Id. Further, the function of these contract attorneys would be to speak with juveniles who requested to talk with an attorney, to perform the factual and legal research necessary to comply with Rule 11, and either to advise a juvenile that he or she does not have a meritorious claim or to prepare for appointment of counsel. Id. Finally, though use of the grievance procedures established at each institution was not required, attorneys were instructed to “urge use” of those procedures to solve any and all claims.” Id.
The Sixth Circuit affirmed the district court’s decision granting summary judgment to plaintiffs, but reversed the district court’s remedial order to the extent that it required the State to provide assistance to juvenile detainees for Section 1983 claims unrelated to their detention and civil matters involving purely state law. Id. at 237.
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that the four Plaintiffs named in the Complaint had failed to exhaust their administrative
remedies and, therefore, lacked standing to challenge Defendants’ legal assistance program.
Plaintiffs responded to Defendants’ motion.
Taking Plaintiffs’ pending claims into account, Defendants made extensive changes to
the ODYS legal assistance program,5 and, on January 12, 2005, they filed their Second Motion
for Summary Judgment, arguing that the four Plaintiffs named in the initial Complaint lacked
standing to sue.6 Shortly thereafter, on March 7, 2005, Plaintiffs filed their first Amended
5The interim changes are as follows:
ODYS entered into a contract with attorney Larry Matthews in September 2004, approximately one year ago[, September 2004,] to provide legal assistance to youth with regard to conditions of confinement. Mr. Mathews travels to each institution on a biweekly basis to talk to the inmates about issues related to conditions of their confinement. Since September, Mr. Mathews has conducted an orientation at each facility with youth and staff and has met with youth individually and in groups to discuss legal issues and to assist them in filing or resolving grievances. In addition, ODYS has hired at least one other contract attorney, Sharon Hicks [(“Hicks”)] . . . Further, ODYS has hired a youth advocate to act on behalf of the youths to ensure that their grievances are processed and addressed at all levels. Finally, ODYS has also hired a Compliance Officer to oversee the implementation of the legal assistance program and all new initiatives directed at improving conditions of confinement.
See J.P. v. Taft, 2005 WL 2405993, at *14 (S.D. Ohio Sept. 29, 2005) (internal citations omitted).
6According to the Defendants, the Plaintiffs lacked standing because they,
. . . failed to demonstrate that they have suffered any litigation – related injury as a result of the [D]efendants’ actions. Lewis v. Casey, 518 U.S. 343 (1996); Pilgrim v. Littlefield, 92 F.3d 413 (6th Cir. 1996). No violation of the right of access to the courts occurs in the absence of injury. This means that, without evidence that the [D]efendants prevented the [P]laintiffs from filing suit on their underlying claims or rendered their access to the courts ineffective or meaningless, [P]laintiffs have not shown that their right of access to the courts has been violated. Christopher v. Harbury, 536 U.S. 403 (2002); Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997).
Defs.’ Second Motion for Summary Judgment at 2.
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Complaint, adding M.M. and T.M. as named plaintiffs.7 Plaintiffs also served Defendants with a written discovery request in an effort to “probe the content, scope, and operation of [the Defendants’] new program.” See Pls.’ Motion at 5; Pls.’ Ex. A. Plaintiffs requested that Defendants produce the contract between ODYS and program attorneys, Larry Mathews (“Mathews”) and Sharon Hicks (“Hicks”), so that Plaintiffs could “assess the scope of [the attorneys’] duties,” as well as a description of any and all legal services the new ODYS legal services program was to provide in order to determine whether it, in fact, met the requirements of the law. Pls.’ Motion at 5. In response, Defendants filed a motion to stay all discovery, which this Court subsequently granted. Id.
Defendants filed their Third Motion for Summary Judgment on August 1, 2005 in which they reiterated their previous assertions and insisted that M.M. and T.M., the two additional named plaintiffs, lacked standing. See Pls.’ Motion at 5-6; Defs.’ Third Motion for Summary Judgment. In response, Plaintiffs, once again, sought to “engage in discovery designed to uncover the content, scope, and operation of Defendants’ new legal assistance program, and served Defendants with a second request for production of documents along with a first set of interrogatories.” See Pls.’ Motion at 6; Pls’ Reply to Defs.’ Response to Pls.’ Motion for Extension of Time. In making their discovery request, Plaintiffs sought both an extension to the period of discovery set in the Court’s preliminary pretrial order and an extension of time to respond to Defendants’ Third Motion for Summary Judgment. See Pls.’ Motion at 6; Pls.’ Motion to Extend Discovery; Pls’ Motion for Extension.
7The first Amended Complaint [Doc. No. 40] was terminated on March 8, 2005 and later replaced by Plaintiffs’ Second Amended Complaint [Doc. No. 77].
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On February 7, 2005, the Court held a telephonic hearing and ruled, inter alia, that
Plaintiffs could not engage in any discovery regarding Defendants’ new legal assistance
program, issuing a protective order to that effect. See Pls.’ Motion at 1. The Court held that
before any such discovery could occur, the parties and the Court needed to address the issues of
jurisdiction, standing, and the exhaustion of administrative remedies present in Defendants’
various motions for summary judgment. Id.
2. The Second Amended Complaint
With the Court’s permission, Plaintiffs filed their seconded amended complaint on May
18, 2005. See Pls.’ Second Amended Complaint; see supra note 7. Shortly thereafter,
Defendants filed a motion requesting disqualification of Plaintiffs’ Attorney, Kim Brooks Tandy
for causing herself to become a material witness in the case. See Defs.’ Motion to Disqualify
Plaintiffs’ Counsel.
On September 29, 2005, this Court granted Defendants’ Second Motion for Summary
Judgment based on the Court’s lack of subject matter jurisdiction to entertain Plaintiffs’ claims. See J.P., 2005 WL 2405993, at *19.8 In so holding, the Court also denied as moot Defendants’ First Motion for Summary Judgment,9 and Defendants’ Motion to Disqualify Kim Brooks Tandy
8This Court found the claims of Plaintiffs J.P., S.J., and D.B. to be moot, explaining, “[a]fter this case was filed, however, Defendants did in fact provide counsel to each of the three Plaintiffs named in the original Complaint (citations omitted). Thus, Defendants voluntarily ceased their allegedly unconstitutional actions, i.e., preventing meaningful access to the courts by denying Plaintiffs access to legal counsel.” See J.P., 2005 WL 2405993, at *12.
9Defendants’ First Motion for Summary Judgment asserted that the Court could not hear the named Plaintiffs’ claims because they had failed to exhaust their administrative remedies before filing suit [Doc. No. 25]. The Court, finding the issue moot after dealing with the jurisdictional issues in Defendants’ Second Motion for Summary Judgment, did not reach the merits of the exhaustion issue. See J.P., 2005 WL 2405993, at *19.
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as Plaintiffs’ Counsel. Id. Finally, the Court also dismissed, without prejudice, Plaintiffs’
Motion for Class Certification, noting that Plaintiffs may have an opportunity to re-file the
motion following the Court’s resolution of the Defendants’ Third Motion for Summary
Judgment. Id.
On March 15, 2006 the Court denied both Plaintiffs’ Motion to Table the Court’s
Preliminary Pretrial Order, and Plaintiffs’ Rule 59 Motion to Alter or Amend the Court’s
September 29, 2005 Opinion and Order. Also, on April 21, 2006, the Court granted Defendant
Taft’s Motion to Dismiss, dismissing all counts brought against Governor Taft, leaving
Defendant Stickrath and Defendant ODYS as the sole defendants. See supra note 1.
3. Facts Regarding T.M.
On March 17, 2006, the parties engaged in a telephonic status conference before the
Court. During the status conference, the Court re-opened discovery limited to the claims of T.M., the sole remaining plaintiff in this case.10
a. T.M.’s Assault Allegations
The following facts regarding T.M. are adopted, in relevant part, from the Court’s
previous opinion in this case. See J.P., 2005 WL 2405993, at *4-5. At the time the Plaintiffs’
filed their Second Amended Complaint, Plaintiff T.M. was an eighteen-year-old youth who had
10Plaintiff H.H. voluntarily dismissed her claim without prejudice on July 7, 2005 [Doc. No. 87]. When the Court granted Defendants’ Second Motion for Summary Judgment on September 29, 2005, all remaining named Plaintiffs were dismissed except M.M. and T.M., the two named Plaintiffs added when Plaintiffs filed their Second Amended Complaint [Doc. No. 106]. On September 12, 2005, however, Defendants filed their first supplemental memorandum in support of their Third Motion for Summary Judgment apprising the Court that M.M., through attorney Hicks, had filed a pro se excessive force claim in the Northern District of Ohio (case number 3:05-cv-07362). Therefore, M.M.’s claim was dismissed as moot, leaving T.M. as the only Plaintiff in this matter.
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been in ODYS custody for approximately two years. See id. at *5. After a brief stay at the
reception center in Scioto, Ohio, T.M. was permanently assigned to Marion Juvenile
Correctional Facility (“MJCF”) for the duration of his commitment. See Second Amended
Complaint ¶ 11. While at MJCF, T.M. was placed in a number of different units, but he was
housed in Building 5 for the majority of his confinement. Id.
On October 14, 2004, T.M. and other inmates in Unit 5B, engaged in a small uprising,
banging on their doors in order to get permission to use the bathroom. See J.P., 2005 WL
2405993, at *5.11 During the incident, a Juvenile Corrections Officer (“JCO”) entered T.M.’s
room and restrained him, “choking him out” until T.M. was rendered unconscious. Id. T.M.
also sustained an eye injury when the JCO hit him in the eye. Id. Additionally, T.M. claims that
after being assaulted, he received inadequate medical care for his injuries. Id.12 When T.M. was
11An investigative report regarding this incident revealed that Unit 5B guards “repeatedly den[ied] bathroom breaks as a form of discipline.” See Defs.’ Ex. B, Report of the Investigation of the 5B “Star” Housing Unit Incident, at 6. Further, the report stated that,
[a]lthough it is believed that some youth may intermittently elect to urinate in milk cartons and latex gloves, it is acknowledged by virtually all interviewed staff and youth, that youth behavior determines whether or not youth are permitted restroom breaks. Staff would require youth to “remain quiet” for period of time until awarding restroom access.
Id. 12At midnight on October 14, 2004, T.M. was seen at the infirmary complaining of
difficulty breathing and problems with his throat. See Defs.’ Supp. Memo at 2. A medical assessment was performed and treatment was rendered. Id. When T.M. felt better, the medical staff decided to monitor him through the night, and he was sent off-site for care. Id.
On October 14, 2004, at 3:00 p.m., T.M. was seen by medical staff in unit 2D. Defs.’ Supp. Memo at 2. He stated that he was “okay” except for a sore throat, and staff observed that his left eye was stolen. He was sent to the infirmary where staff took photos of his left eye. Id. at 2-3. He was also given ice and Motrin for his eye and throat discomfort. Id. at 3.
Though the issue was not raised in any of the parties’ prior papers, in Plaintiffs’ Opposition Motion, they assert that T.M.’s denial of court access claim is also based upon his
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released from the infirmary on October 15, 2004, he was transferred to Unit 2D in Building 2 and never returned to Building 5. See Defs.’ Ex. A-1, Youth Injury & Assessment Form (10/15/2004); Defs.’ Ex. A-3, Interdisciplinary Progress Notes (10/18/2004); Ex. A, Decl. of Jeffrey Rollins (5/4/2006); Ex. E, Aff. of Doneta Riegsecker (describing the movement for T.M. from the date of the incident to the date he was released from DYS).13 Unlike youth in Building 5, youth in Unit 2D of Building 2 have a toilet and sink in their rooms; thus, they do not have to depend on ODYS staff to gain access to bathroom facilities. See Defs.’ Ex. D, Aff. Norm Hills (6/1/2006).
On October 16, 2004, two days after the incident, T.M. filed an ODYS administrative grievance for assault in which he explained his injuries and indicated that he wanted the matter to be resolved “in court.” See J.P., 2005 WL 2405993, at *5. T.M.’s grievance included a written statement describing the assault by the JCO and asserting that youth were being forced to urinate in their rooms into rubber gloves rather than being allowed to use the bathroom. Id. T.M.’s grievance included no language asserting that he had been denied access to adequate medical care, and no specific allegations about unconstitutional conditions of confinement. Id.
The ODYS grievance committee subsequently found merit to T.M.’s complaint and indicated to him that “appropriate actions [would] be taken.” See T.M. Dep., Pls.’ Ex. B, at 2. The Superintendent agreed with the committee’s finding. Id. Nonetheless, because T.M. was
allegations of inadequate medical care, and his assertions of unconstitutional conditions of confinement. See Pls.’ Opp. at 4, 11, 12, 13, 34, 35, 36, 38. T.M. claims to have filed written grievances about these claims; however, there is no evidence that any such grievances exist.
13During oral argument, Defendants’ counsel noted that, after the October 14, 2004 incident, all of the inmates from Unit 5B were transferred elsewhere.
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never apprised of any action taken in regards to his grievance, he appealed the Superintendent’s decision to the Chief Inspector on December 15, 2004. Second Amended Complaint ¶ 11. On January 4, 2005, after having reviewed T.M.’s grievance, the Chief Inspector informed T.M. that he concurred with the committee’s determinations and its decision to grant the grievance. Id. Further, the Chief Inspector informed T.M. that disciplinary action had been taken against the offending employees. See T.M. Dep., Pls.’ Ex. B., at 2. Both Plaintiffs and Defendants are in agreement that T.M. exhausted a full round of the grievance process in pursuing his assault claim. See Pls.’ Opp. at 16; Defs.’ Third Motion for Summary Judgment at 9.
The record reveals that in the course of his stay at MCJF, T.M. filed a total of eight administrative grievances: (1) on October 15, 2004, T.M. claimed he was physically assaulted in Unit 5B;14 (2) on October 16, 2004, T.M. claimed he was placed in Unit 2D without his personal hygiene items; (3) on October 16, 2004, T.M. objected to placement in Unit 2D and sought an explanation for the placement; (4) T.M. objected to placement and retention in Unit 2D; (5) on November 24, 2004, T.M. claimed he was locked in a restroom in Unit 2D; (6) on November 24, 2004, T.M. objected to participation in the GED program; (7) on November 24, 2004, T.M. claimed his positive behavior warranted his removal from Unit 2D; (8) on December 11, 2004, T.M. claimed showers in Unit 2D were cold and complained that worms were coming out of the drain. See Decl. Jeffrey L. Rollins, Human Services Program Administrator for MJCF at 1-2. None of these grievances relates to denial-of-access, and T.M. failed to attach his alleged recorded grievance to his complaint. T.M. asserts that his copies of each of the above grievances
14As noted above, the parties do not dispute that T.M. fully exhausted his assault grievance.
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as well as any other “legal papers” that he had regarding his case were confiscated by ODYS guards, labeled “gang literature,” and not returned to him upon his release. See Defs.’ Ex. 5, T.M. Aff. ¶ 20.
b. T.M.’s Pursuit of Legal Relief As noted above, in filing his assault grievance on October 16, 2004, T.M. indicated that he wanted his assault charge to be resolved “in court.” See Second Amended Complaint ¶ 11. Thus, in the latter part of October, 2004, T.M. sought representation through ODYS’ Legal Assistance Program. See id. Pursuant to T.M.’s request, on November 1, 2004, T.M. met with contract attorney Mathews15 who informed T.M. that he would find him an attorney to provide him with legal assistance. Id. Initially, Mathews identified six attorneys who handled ODYS cases – Jillian Davis, John Lawson, David Doughten, Lisa Meeks, Mike Benza, and Benson Wolman – and sent a referral to those six individuals regarding T.M. See Pls.’ Opp. at 6; see Mathews Dep. at 96. Mathews re-visited T.M. on December 13, 2004, and provided him with a copy of a letter which stated in relevant part: This letter is to update you on the status of the matter we previously discussed. After our conversation, I prepared a summary of the incident based upon what you told me and other information I had obtained from DYS. On November 27, I sent letters to six attorneys asking them to review the information and consider representing you in this matter. So far, I have not received a response from any of them, but I plan to follow up with them the week of December 20th if I have not received a response. When I hear from the attorneys I will let you know.
15See supra note 5 (noting that in revamping its legal services, ODYS hired contract attorney, Mathews, to provide legal assistance to inmates).
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Defs.’ Ex. D. Shortly thereafter, Mathews, accompanied by Attorney Jillian Davis (“Davis”), met with
T.M. to discuss his case. See Pls.’ Ex. 2, Mathews Dep. at 32-35. Davis expressed an interest in taking T.M.’s case, and informed T.M. that she would look into the matter. See Defs.’ Ex. 5, T.M. Aff. ¶¶ 8-10. Davis did not follow up with Mathews regarding T.M., and when Mathews spoke to her “a couple times” on the phone regarding her interest in taking on T.M. as a client, she told him that she was still contemplating it. Pls.’ Ex. 2, Mathews Dep. at 34. Finally, on March 16, 2005, Davis informed Mathews by letter that she had just accepted a new position, and, as a result, would be unable to take on additional cases, including that of T.M. See Pls.’ Ex. 4, Letter from Jillian Davis to Larry Mathews.
On March 29, 2005, after Mathews informed T.M. that Davis would not take his case, Hicks asserts that she sent T.M. a letter indicating that Cleveland attorney, Matthew Brownfield (“Brownfield”) was willing to look over T.M.’s case. T.M. never responded, and he now claims that he never received the letter. See Pls.’ Opp. at 22.
Though the details of what occurred regarding T.M.’s assault claim between December 2004 and March 2005 are in dispute,16 both sides agree that during that time period, neither Mathews nor Hicks, was able to find an attorney willing to represent T.M. See Pls.’ Opp. at 7-
16Defendants contend that despite their best efforts to make contact with him, T.M. continually refused to meet with Mathews and Hicks regarding his claims. Plaintiffs, however, argue that Mathews and Hicks never spoke directly with T.M., and that any testimony by others that T.M. had either refused meetings or opted not to pursue legal relief is inadmissible hearsay. See Pls.’ Opp. at 12 (“Controverted Facts”).
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11; Defs.’ Supp. Memo at 5-10.17
On June 1, 2005, ODYS released T.M. from institutional status and placed him under
parole supervision. Defs.’ Ex. B. Following T.M.’s release on parole, neither Mathews nor
Hicks ever heard from T.M. by letter or telephone call. Defs.’ Supp. Memo at 11. On January
11, 2006, the Mahoning County Court of Common Pleas, Juvenile Court Division, entered an
17In Plaintiffs’ Opposition, Plaintiffs write, “. . . T.M. was so in need of legal assistance while incarcerated at [MCJF] that his mother attempted to have her private attorney [Michael Rich] visit him at the facility.” See Pls.’ Opp. at 11. In his April 11, 2006 deposition testimony, T.M. also asserts that he was denied the right to seek legal assistance from a private attorney:
Q: Who was the attorney you tried to bring into this? A: Mike Rich. That’s my mom’s private attorney. Q: Okay. Did you write to him? A: No, I didn’t write to him, ‘cause we was requesting him. My mom talked to Mike
Rich about it, and he said he’ll come talk to me. My mom called up to the institution and talked to Norm Hills. Norm Hills said they got their own lawyers, and from that I never heard – I ain’t heard from them yet.
See T.M. Dep. at 49.
In his affidavit, however, attorney, Michael Rich, asserts that he was never contacted by T.M.’s mother, and/or by T.M. himself. The affidavit states:
3. In 2003, I was appointed as counsel for [T.M.] by the Mahoning County Juvenile Court and represented him during his juvenile adjudication for burglary under Case No. 03 JA 544. . . .
5. At no time was I ever contacted by any individual, including [T.M.] and his mother, Valerie Watkins, concerning an alleged assault of [T.M.] by a [JCO] while confined at the [MCJF]. Nor did I speak to Ms. Watkins and agree to talk to [T.M.] about the assault.
6. I have not represented or advised [T.M.] or his mother, Valerie Watkins, in any civil matter.
See Defs.’ Ex. F, Aff. Michael Rich. Based on this conflicting testimony, and because T.M.’s assertion that his mom talked to Mike Rich is hearsay, the Court considers T.M.’s assertions that he was denied access to private counsel, as well as contract attorneys to be untenable.
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Order terminating T.M. from parole. Id. 4. Recent Occurrences
On April 11, 2006, following the Court’s decision to re-open discovery as to T.M., the parties deposed T.M. Further, on April 19, 2006, the parties deposed DYS contract attorneys Mathews and Hicks. Following the depositions, Hicks contacted T.M. and informed him that Cleveland attorney, David Doughten (“Doughten”), had agreed to represent him in filing a formal legal complaint for his assault charge. T.M. agreed to be represented, and, accordingly, Hicks referred T.M.’s case to Doughten, who subsequently filed suit on T.M.’s behalf in Federal District Court in Toledo, Ohio; the suit seeks damages for T.M.’s October 14, 2006 assault by a Unit 5B JCO (case number 3:06-cv-1127).
In late April, Defendants, citing new information gained in the depositions of T.M., Mathews, and Hicks, requested leave to file a third supplemental memorandum18 in support of their Third Motion for Summary Judgment and brought a motion to alter or amend the Court’s briefing schedule. The Court granted both of Defendants’ requests. The issues are now fully briefed, and the Court conducted oral argument on June 8, 2006.
This Court issued its initial Opinion and Order denying Defendants’ Third Motion for Summary Judgment on July 7, 2006 [Doc. No. 147]. On July 21, 2006, in response to motions by both parties, the Court issued an amended opinion and order omitting footnote 25. [Doc. No.
18Defendants had previously filed two supplemental memoranda in support of their Third Motion for Summary Judgment, the first on September 12, 2005 [Doc. No. 100], and the second on November 4, 2005 [Doc. No. 114].
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147].19 On July 25, 2006, Defendants filed the timely motion to alter or amend the July 21 Opinion currently at issue. [Doc. No. 149]. This matter has been fully briefed and is now ripe for decision.
III. STANDARD OF REVIEW Federal Rule of Civil Procedure 59 allows parties to move for a court to alter or amend a previously issued judgment. See FED. R. CIV. P. 59(e).20 A court may alter or amend its judgment for one of three reasons: (1) because of an intervening change of controlling law; (2) because evidence not previously available has become available; or (3) because such action is necessary to correct a clear error of law or prevent a manifest injustice. See Petition of U.S. Steel Corp., 479 F.2d 489, 494 (6th Cir. 1973). Rule 59(e) may not be used to simply re-argue issues previously addressed by the Court. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998).
IV. ANALYSIS Defendants argue that the Court must reconsider its previous judgment to prevent manifest injustice, correct clear errors of law, and reconsider jurisdictional issues that it previously overlooked. The Court will consider each of Defendants’ arguments seriatim.
A. Standing As a threshold matter, Defendants assert that the Court erred in finding that T.M. had
19The Court will hereinafter refer to its July 21, 2006 Opinion and Order as “July 21 Opinion.”
20Rule 59(e) of the Federal Rules of Civil Procedure reads, “[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.” See FED. R. CIV. P. 59(e).
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standing to file his forward-looking denial-of-access claim because he did not suffer an “actual injury.” See Defs.’ Motion at 3-4. According to Defendants, in order to establish an actual injury, T.M. must present evidence that he was prejudiced by being unable to file a complaint on his underlying assault claim for over 1½ years from when the assault occurred. Id. at 5. Defendants assert, however, that T.M. failed to show actual prejudice because the evidence presented suggests no more than a “theoretical sense of harm.” Id. Further, they note that because as of May 2005, T.M. retained counsel, filed a claim in a Toledo, Ohio federal court, and successfully settled that claim, he suffered no actual injury that would confer standing upon him. Id.
The Court finds Defendants’ contentions to be without merit. This Court devoted approximately nine pages of its July 21 Opinion to the issue of standing. See J.P. v. Taft, 2006 WL 2037375, at *7-16 (S.D. Ohio July 21, 2006). The Court found that because the parties disputed the details of T.M.’s discussions with Mathews in regards to his assault claim, there is a genuine issue of material fact as to whether Defendants’ failure to provide him with an attorney soon after his assault caused T.M. an actual injury sufficient to survive Defendants’ Third Motion for Summary Judgment. See id., at *9-10. Defendants’ Motion, rather than raising new evidence, simply refers back to Defendants’ previously submitted argument that T.M. suffered no actual injury at the hands of Defendants. This Court has already heard and rejected that argument, and it finds the argument no more tenable in Defendants’ current Motion.
B. Subject Matter Jurisdiction Defendants also assert that the Court erred in failing to consider the issue of subject matter jurisdiction, and, by extension, in failing to find that it lacks subject matter jurisdiction
-16-

over T.M.’s claims. According to Defendants, T.M.’s claims that he was denied substantive due
process fail to show that Defendants’ “deliberately indifferent” actions “shock[ed] the
conscience,” and, therefore, do not allow this Court jurisdiction over T.M.’s claims. Defendants
assert that there is no evidence suggesting that Mathews’ failure to secure successfully a private
attorney for T.M. was a “deliberate effort” to intentionally interfere with T.M.’s ability to file his
underlying physical assault claim. See Defs.’ Motion at 8.
Though Defendants attempt to convert the issue of whether they intentionally denied
T.M. access to the courts into a question of subject matter jurisdiction, which can be raised for
the first time in a Rule 59 motion, the question of Defendants’ intent is not a jurisdictional issue.
Resolution of the issue of whether a defendant’s failure to provide access to the courts was either
intentional or negligent goes to the merits of the case, not to the court’s jurisdiction, and there is
no case law to the contrary to support Defendants’ argument.21
21In their Motion, Defendants cite precedent to argue that Defendants’ intent is a jurisdictional issue. The cases cited, however, do not support Defendants’ assertion. For instance, Defendants assert that Sims v. Landrum establishes that a plaintiff’s argument that a defendant’s unintentional negligence harmed him does not constitute a valid due process claim under 42 U.S.C. § 1983. See 170 Fed. Appx. 954, 956 (6th Cir. 2006). Quoting Sims, Defendants write,
Prisoners have a First and Fourteenth Amendment right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 354 (1996). In assessing whether a State has violated that right, we ask whether the claimant has demonstrated an “actual injury,” see Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005), and, if so, whether the claimant has alleged that more than mere negligence by the state actor caused the injury, see Gibbs v. Hopkins, 10 F.3d 373, 379 (6th Cir. 1993) (“These actions, if proven, and if intentional, support the claim that prison officials are attempting to deny prisoners effective access to the courts.”).
See Def.’s Motion at 7 (citing Sims, 170 Fed. Appx. at 956). Despite Defendants efforts to categorize Sims as a jurisdictional case, the Sims court dismissed the case for the plaintiff’s failure to state a claim upon which relief can be granted. Id. at 957 (dismissing plaintiff’s claims
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A motion under Rule 59(e) is not an opportunity to re-argue a case, and parties should not use them to raise arguments which could, and should, have been made before judgment issued. See Sault Ste. Marie Tribe of Chippewa v. Engler, 146 F.3d 367 (6th Cir. 1998) (citing FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992) (“Rule 59(e) motions are aimed at reconsideration, not initial consideration. Thus parties should not use them to raise arguments which could, and should, have been made before judgment issued.”)). Because Defendants did not raise their argument regarding whether T.M. established intent earlier in this litigation, and because this Court finds that, despite Defendants’ arguments to the contrary, the issue of intent is not jurisdictional, the Court rejects Defendants’ second argument as untimely.
C. Voluntary Cessation Defendants also claim that the Court “overlooked” their arguments that the voluntary cessation doctrine is inapplicable to T.M.’s claims. Defendants assert that because T.M. was released from ODYS and discharged from parole, and because T.M. retained Doughten to represent him in asserting (and subsequently settling) his underlying assault claim, he has received the relief he sought. Accordingly, they argue that the Court should have found his case moot. The Court did not overlook Defendants’ arguments in earlier pleadings. In fact, the Court devoted approximately eight pages of its July 21 Opinion to a discussion of mootness, specifically to whether Defendants had established that they had voluntarily ceased their allegedly unconstitutional behavior. See J.P., 2006 WL 2037375, at *16-24. After a lengthy
for failure to state a claim on which relief can be granted and noting that “in the absence of any allegation that [defendant] intentionally slowed the processing of [plaintiff’s] mail . . .” could not support a conclusion that defendant’s behavior constituted “anything more than regrettable, but non-cognizable negligence.”).
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analysis, the Court concluded that there is a question of material fact as to: (1) whether “there is
no reasonable expectation’ that the alleged violation[s] will recur”; and (2) whether the
Defendants’ interim relief or events “completely and irrevocably eradicated the effects of the
alleged violation.” See J.P., 2006 WL 2037375, at *19 (citing County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979) (establishing that a defendant bears a heavy burden to show that it has
completely eradicated its previous allegedly unconstitutional conduct)). Defendants have cited
no new precedent22 and raised no new factual assertions to cause the Court to reconsider its
thorough analysis.
D. Exhaustion of Available Administrative Remedies
Defendants claim that the Court erred in finding that T.M. exhausted his available
administrative remedies, and note that the recent Supreme Court decision in Woodford v. Ngo,
126 S.Ct. 2378 (June 22, 2006), impliedly overturned Thomas v. Woolum, 337 F.3d 720, 727,
733 (6th Cir. 2003), upon which this Court relied heavily in finding that T.M. had exhausted his
22The only new case cited by Defendants in its Motion is DeFunis v. Odegaard. See 416 U.S. 312 (1974) (finding that because petitioner’s case was moot, the Court could not consider the substantive constitutional issues tendered by the parties). DeFunis, a 1974 case, is not new authority. In DeFunis, after he was rejected from the University of Washington law school, plaintiff, DeFunis, sought an injunction challenging the constitutionality of the school’s affirmative action program and ordering him admitted to the law school. See 416 U.S. at 314-15. The state court ordered him admitted to the law school, but on appeal, the state supreme court held that the admissions policy did not violate the constitution. Id. By the time DeFunis’ case got to the Supreme Court, he was about to complete his law school studies. Id. at 318. Accordingly, the Court found that his case was moot, and it no longer had jurisdiction to consider the substantive constitutional issues raised by the parties. Id. at 320. Defendants assert that as in DeFunis where the impending litigation would no longer affect plaintiff’s law school status, in this case, where T.M. is no longer under ODYS care, and has already received the relief he sought, his case is moot, divesting the Court of jurisdiction. The Court, however, considered DeFunis in the discussion of mootness set forth in the July 21 Opinion, and Defendants’ discussion of that case in its Motion fails to give the Court pause to reconsider its previous conclusion. See J.P., 2006 WL 2037375, at *16 & n. 22.
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available administrative remedies. Because Woodford is new authority, which had not been
decided at the time of oral argument on Defendants’ Third Motion for Summary Judgment, the
Court did not consider this decision in drafting the July 21 Opinion. It will now, however, give
the decision its due consideration.
Woodford v. Ngo resolved the circuit court split on the issue of what constitutes
“exhaustion of remedies” under the PLRA, 42 U.S.C. § 1997e(a). See 126 S.Ct. at 2384.23
After engaging in a thorough analysis of both administrative an habeas exhaustion requirements,
the Court adopted the position of the Third, Seventh, Tenth and Eleventh Circuits, strictly
interpreting the PLRA to find that proper exhaustion of administrative remedies is necessary. Id.
at 2382. The Court reasoned that this interpretation complied with Congress’ decision to enact
the PLRA, in relevant part, to reduce frivolous prisoner claims. Id. at 2388. Further, the Court
found that requiring proper exhaustion would better serve prisoner plaintiffs, explaining:
The benefits of the exhaustion system can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system’s critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system’s procedural rules unless
23Before Woodford, both the Ninth and the Sixth Circuit’s held that substantial compliance with the PLRA’s exhaustion requirements, including procedural defects, could constitute “exhaustion.” See Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003) (establishing that in cases where a plaintiff’s efforts to comply with the prisons’ exhaustion requirements fulfilled “the letter and the spirit” of the PLRA, the PLRA’s exhaustion requirement was satisfied); Ngo v. Woodford, 403 F.3d 620, 629-30 (9th Cir. 2005) (adopting Thomas v. Woolum in the Ninth Circuit). On the other hand, the Third, Seventh, Tenth and Eleventh Circuits found that strict compliance with the exhaustion procedures was required in order for a prisoner-plaintiff to satisfy the PLRA’s exhaustion requirements. See Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004)(“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require . . . .”); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (same); Ross v. County of Bernalillo, 365 F.3d 1181, 1185-86 (10th Cir. 2004) (same); Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) (same).
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noncompliance carries a sanction, and respondent’s interpretation of the PLRA noncompliance carries no significant sanction. For example, a prisoner wishing to bypass available administrative remedies could simply file a late grievance without providing any reason for failing to file on time.
See id. at 2388.
The Court recognizes that the Supreme Court’s ruling in Woodford adopts a more rigid
interpretation of the PLRA’s exhaustion requirements than that adopted by the Sixth Circuit in
Thomas v. Woolum. See 337 F.3d at 757. Even so, as noted by the Woodford dissenters, “[t]he
[Woodford] majority leaves open the question whether a prisoner’s failure to comply properly
with procedural requirements that do not provide a ‘meaningful opportunity for prisoners to
raise meritorious grievances’ would bar the later filing of a suit in federal court.” See 126 S.Ct.
at 2403 (Stevens, J., Souter, J., and Ginsburg, J., dissenting) (emphasis added). This Court finds
that T.M.’s case fits within the confines of this “open question.”
As the Court noted in its July 21 Opinion, T.M.’s case presents a unique factual scenario
which has yet to be considered by any other federal court,
Does a juvenile inmate who puts prison administrators on notice that he wishes to have an administratively exhausted claim resolved “in court,” exhaust his remedies for a denial-of-access claim when it is undisputed that at the time he grieved, the prison had no mechanism to provide its juvenile inmates with attorney access, and, therefore, access to the courts?
See J.P., 2006 WL 2037375, at *26. Given that this Court found that Defendants had not
affirmatively established that they had voluntarily ceased their allegedly unconstitutional
behavior, the facts suggest that at the time T.M. sought to grieve his assault claim, ODYS did not
have meaningful policies or procedures in place that would allow him to do so. Accordingly,
this Court’s ruling as to T.M.’s exhaustion stands. Despite Woodford’s strict stance on
exhaustion, the Court maintains that T.M.’s filing of a grievance requesting that his claim be
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resolved “in court” put Defendants on notice sufficient to exhaust his remedies available under the PLRA.
E. Lifting of the Stay of Discovery Lastly, Defendants assert that the Court erred in lifting its previously issued stay of discovery to allow Plaintiffs the opportunity to pursue an investigation into Defendants’ recent efforts to reform the ODYS legal access program. Defendants assert that the Court’s decision was based upon the allegedly erroneous conclusions set forth above, and, accordingly, must be overturned along with those conclusions. Because the Court has found each of Defendants’ assertions to be without merit, its decision to lift the stay on discovery stands.
V. CONCLUSION For the foregoing reasons, the Court DENIES Defendants’ Motion to Alter or Amend this Court’s July 21, 2006 Order and Opinion denying their Third Motion for Summary Judgment. IT IS SO ORDERED.

DATED: October 10, 2006

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

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 NOTICE
TO: All youth committed to the custody of the Ohio Department of Youth Services and being housed in one of the following facilities:
_ Circleville Juvenile Correctional Facility _ Cuyahoga Hills Juvenile Correctional Facility _ Freedom Center _ Indian River Juvenile Correctional Facility _ Marion Juvenile Correctional Facility _ Mohican Juvenile Correctional Facility _ Ohio River Valley Correctional Facility _ Scioto Juvenile Correctional Facility _ Paint Creek Youth Center (only youth committed to ODYS)
In July of 2004, a lawsuit was filed on behalf of all youth committed to DYS and housed in one of the facilities listed above. The lawsuit was filed as and has been certified for settlement purposes as a “class action,” meaning it covers all youth who are in these facilities now or in the future. It includes you.
This lawsuit, titled J.P. v. Taft for short, claims that ODYS, in violation of the U.S. Constitution, failed to create a system that would permit juveniles in DYS facilities to obtain an attorney to help them challenge in a court their conviction, the length of their sentence, or any poor living conditions that may exist at their facility.
This Notice will explain how we hope to settle the lawsuit and how this settlement will benefit and affect you. It will also explain how you can object if you feel the settlement is unfair, or ask questions about the settlement. However, you are not required to take any action.
What You Can Expect
The settlement agreement that is being proposed would ensure that you (and all other juveniles in DYS facilities) will be able to consult with an attorney and have an attorney help you take your case to court in certain situations. It will require ODYS to have at least one attorney to help you in the following ways:
A) If you have a problem with the conditions in your facility, the settlement agreement will guarantee the following:
EXHIBIT B

∗ You will have access to an attorney to help you file complaints regarding the conditions in your facility if these conditions violate your federal rights;
∗ This attorney will contact you at your facility, on your request to see an attorney;
∗ ODYS will assure that the attorney assigned to help you will have access to the facilities during reasonable hours, and have a private space to talk with you;
∗ This attorney, who might be a private lawyer or might be an attorney with whom ODYS has a contract, will consult with you, investigate your claims, get records from your file, and at least help you file the appropriate papers in court.
B) With respect to detention credits, OYDS will provide information on obtaining detention credits at orientation and will provide you with legal assistance, if you request it, during your stay at the facility to make sure your detention credits are properly added. This includes taking the issue to court if that is needed.
C) In addition, the proposed settlement will help new youth coming into ODYS facilities in the following ways:
∗ ODYS will now explain to all juveniles during orientation that they have a right to access the courts and how an attorney will help them file the proper papers with a court; and
∗ Each housing facility will post in every ward or unit a description of the Legal Assistance Program and information on how youth can contact the attorney.
What to do if you object
If you believe that this settlement is unfair or unjust, you have the right to object. Any objection must be received by __________. You must send your objection to:
Clerk of the Clerk Joseph P. Kinneary U.S. Courthouse Room 260 85 Marconi Boulevard Columbus, Ohio 43215
You should be specific about which part of the proposed settlement you object to and why.
2

What to do if you have questions If you just have questions about your rights under this settlement, you can write to one of the attorneys representing the youth at ODYS:
Kim Brooks Tandy Children’s Law Center, Inc. 104 East 7th Street Covington, Kentucky 41011
Status of the Settlement The Judge handling this case, whose name appears below, has not yet approved this settlement, and the Judge will not approve it until he has reviewed it and taken into account any objections you may have. He will schedule a hearing to determine if the settlement is fair before it is made official. You should also know that the attorneys who have brought this lawsuit have asked that ODYS pay their attorneys' fees and expenses in the amount of $190,000.
Dated this ______ day of ____________, 2007.
_____________________________ Judge Algenon Marbley U.S. District Court
3

 
 ,

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J.P., and all others similarly situated, et aI.,

Case No. 2:04cv692

Plaintiffs,

Judge Marbley

v.

Magistrate Judge King

Bob Taft, et aI.,

Defendants.

ORDER PRELIMINARILY APPROVING SETTLEMENT. CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS. DIRECTING NOTICE TO THE
CLASS. AND SCHEDULING SETTLEMENT HEARING

Plaintiffs and Defendant Ohio Department ofYouth Services, through its Director

Tom Stickrath, have applied for an Order pursuant to Rule 23 of the Federal Rules of

Civil Procedure seeking preliminary approval of a proposed settlement set forth in the Stipulation of Settlement dated January ~, 2007 and exhibits thereto, including the

Consent Decree attached thereto as Exhibit A, and fixing certain matters in connection

with the proposed Settlement, which Settlement provides, inter alia:

1.

for preliminary approval of the Settlement, including conditionally

certifying the Class;

11. for a hearing to be held in this Court to determine whether the

terms of the Stipulation of Settlement are fair, reasonable, and

adequate to the Settlement Class, and setting forth the time and

date thereof; and

1

HI. for Notice to be disseminated to the Settlement Class to advise members of the Class of the terms of the class certification, their right to object, the attorneys' fees sought, and the date of the final fairness hearing.
Now, upon the consent of the parties, after consideration of the Settlement and the exhibits thereto, and after due deliberation, it is hereby,
ORDERED, that: 1. The Court hereby conditionally certifies the Settlement Class under Federal Rule of Civil Procedure Rule 23(b)(2) based on the following findings: (a) the Members of the Class are so numerous that joinder of all members in the class action is impracticable; (b) there are questions of law and fact common to the Class which predominate over any individual question; (c) the claims of the named Plaintiffs are typical of the claims of the Class; (d) Plaintiffs and their counsel have fairly and adequately represented and protected the interests of the Class; and (e) the Department of Youth Services has acted and intends to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief. 2. The Settlement Class under Rule 23(b)(2) shall be defined as follows: " All the individuals under DYS custody currently housed or to be housed at Circleville Juvenile Correctional Facility, Cuyahoga Hills Juvenile Correctional Facility, Freedom Center, Indian River Juvenile Correctional Facility, Marion Juvenile Correctional Facility, Mohican Juvenile Correctional Facility, Ohio River Valley Correctional Facility, Scioto Juvenile Correctional Facility, as well as Paint Creek Youth Center, until
2

tennination ofthe Consent Decree."

3. The Court preliminarily approves the Settlement as fair, adequate,

reasonable and in the best interest of the Settlement Class.
4. A hearing in this Court shaH be held on fYl~rd. '"

at f.'OD !4. m.

(the "Hearing"), (i) to detennine whether the proposed Settlement is fair, reasonable, and

adequate and should be approved by the Court, (ii) to detennine whether the Consent

Decree should be entered in this case pursuant to the Settlement, (iii) to detennine

whether an award of attorneys' fees and expenses sought by Plaintiffs' Counsel is fair

and reasonable and should be approved by the Court, and (iv) to rule on such other

matters as the Court may deem appropriate.

5. The Court reserves the right to adjourn the Hearing or any adjournment

thereof without further notice other than oral announcement at the Hearing or any

adjournment thereof.

6. The Court reserves the right, subject to the tenns of the Settlement, to

approve the Settlement with or without modification (subject to aU parties' written

approval of any modification) and with or without further notice to the Class.

7. At its sole expense, Defendant shaH provide Notice to the members ofthe

Settlement Class in fonn and substance substantiaHy similar to the "Notice" attached to

the Stipulation as Exhibit B, to advise them of the tenns of the class certification, their

right to object, the attorneys' fees sought, and the date of the final settlement hearing.
The notice shaH be posted on or before J.,.... 2.3/ 2DC7and remain posted until the

deadline for filing objections.

3

~--------------------------
8. The method ofnotice specified herein is the best notice practicable and shall constitute due and sufficient notice of the Hearing to all persons entitled to receive such notice, and Defendant shall, at or before the Hearing directed herein, file proof of the posting of the Notice.
9. Any member of the Class who objects to the Settlement, the Consent Decree to be entered herein, and/or the award of attorneys' fees and expenses to Plaintiffs , Counsel, or who otherwise wishes to be heard, must mail notice of his or her objection to the Clerk of Court, including (i) a statement of such person's objections to any matter before the Court, and (ii) the grounds thereof or the reasons for such person's desiring to appear and to be heard, as well as all documents or writings which such person desires the Court to consider. Such objection must be mailed to the following address, postmarked on or before ~&-.....""""b"-n",«",,(jL!.,..+t--,"2..=3.L;..-'=Z,,,OD""-L.7: Office of the Clerk Joseph P. Kinneary U.S. Courthouse Room 260 85 Marconi Boulevard Columbus,OH 43215
10. Unless the Court otherwise directs, no member of the Class shall be entitled to object to the approval of the Settlement, the Consent Decree to be entered herein, or the award of attorneys' fees and expenses to Plaintiffs' Counsel, or otherwise to be heard, except by serving and filing written objection as described above. Any person who fails to object in the manner prescribed above shall be deemed to have waived such objection and shall be forever barred from raising such objection in this or any other action or proceeding.
4

· .
11. If the Settlement is not approved by the Court or shall not become effective for any reason whatever, the Settlement and any actions taken or to be taken in connection therewith (including this Order) shall be terminated, cancelled, and shall become void and have no further force and effect.
12. The Settlement and all negotiations related to it, and any proceedings in connection with the Settlement, whether or not the Settlement is consummated, are not and shall not be construed to be evidence of, or an admission by, any of the parties respecting the validity or invalidity of any of the claims that have been, or could have been, asserted in the pleadings in the Action, or of the liability of Defendant whatsoever, and shall not be offered for admission as evidence of such liability or wrongdoing or lack thereof.
Dated: ,ja..... /-z.,, 2007
Algen . Marbley United States District Judge
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J.P., and all others similarly situated, et al., :

:

Plaintiffs,

:

:

v.

:

:

Bob Taft, et al.,

:

:

Defendants.

:

Case No. C2-04-692 JUDGE ALGENON MARBLEY Magistrate Judge King

CONSENT DECREE 1. On January 5, 2007, the named Plaintiffs, acting on behalf of themselves and a Settlement Class, entered into a Stipulation of Settlement with Tom Strickrath, the Director of the Ohio Department of Youth Services (hereinafter “ODYS”). 2. Pursuant to the Order Preliminarily Approving Settlement, entered by the Court on January 12, 2007 (the “Preliminary Order”), the Court scheduled a hearing for March 6, 2007, at 9:00 a.m. (The “Fairness Hearing”) to do the following: a) determine whether the proposed settlement of the claims against ODYS on the terms and conditions provided for in the Stipulation of Settlement is fair, reasonable and adequate and should be approved by the Court; (b) determine whether judgment should be entered herein on those terms; and (c) to consider the application of Class Counsel for an award of attorneys’ fees and reimbursement of expenses. The Court ordered the Notice of class settlement, substantially in the form attached as Exhibit B to the Stipulation of Settlement, be posted at ODYS facilities. 3. On March 6, 2007, this matter came before the Court for the Fairness Hearing and on all motions related thereto, including the Motion for Final Approval and for an Award of

Attorneys’ Fees and Reimbursement of Expenses. Due and adequate notice having been given to the Settlement Class as required in said Preliminary Order, and the Court having considered all papers filed and proceedings had herein and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
4. This Judgment incorporates by reference the Stipulation of Settlement, and all terms used herein shall have the same meanings as set forth in the Stipulation of Settlement.
5. This Court has jurisdiction over the subject matter of the litigation and over all parties to the litigation, including all Members of the Settlement Class.
6. By Order dated January 12, 2007, this Court preliminarily certified this case for settlement purposes as a class action and the allegations of fact supporting that Order have not changed, and therefore, this Court finds and concludes that: (a) the members of the Settlement Class are so numerous that joinder of all Settlement Class members in the class action is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual question; (c) the claims of the Plaintiffs are typical of the claims of the Settlement Class; and (d) Plaintiffs and their counsel have fairly and adequately represented and protected the interests of the Settlement Class members; and (e) ODYS has acted or refused to act on grounds applicable to the class, making appropriate final injunctive relief.
7. The Settlement Class under Rule 23(b)(2) shall be defined as follows: All the individuals under DYS custody currently housed or to be housed at Circleville Juvenile Correctional Facility, Cuyahoga Hills Juvenile Correctional Facility, Freedom Center, Indian
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River Juvenile Correctional Facility, Marion Juvenile Correctional Facility, Mohican Juvenile Correctional Facility, Ohio River Valley Correctional Facility, Scioto Juvenile Correctional Facility (collectively “the DYS Facilities”), as well as Paint Creek Youth Center, until termination of the Consent Decree.
8. The Court finds that the Stipulation of Settlement and its terms therein are fair, just, reasonable and adequate as to each of the settling parties and the Settlement Class. Accordingly, the Stipulation of Settlement and all the terms of the Stipulation of Settlement are hereby finally approved in all respects, and the settling parties are hereby directed to perform its terms.
9. Plaintiffs’ counsel are awarded $190,000 in fees and expenses, which the Court finds to be fair and reasonable. The award of attorneys’ fees shall be allocated among Plaintiffs’ Counsel quantum meruit so that in the opinion of Trial Counsel for Plaintiffs all Plaintiffs’ Counsel are compensated for their respective contributions in the prosecution of the Action.
10. The Notice of class action given to the Settlement Class was the best notice practicable under the circumstances. Said notice provided the best notice practicable to all Persons entitled to such notice, and said notice fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of due process.
11. The Court hereby finds that, pursuant to Fed. R. Civ. P. 54(b), there is no just reason for delay of entry of this final judgment and hereby directs its entry.
12. Neither the Stipulation of Settlement, nor any act performed or document executed pursuant to or in furtherance of the Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Claim, or of any wrongdoing or liability of the Defendant, or (b) is or may be deemed to be or may be used as an admission of, or evidence
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of, any fault or omission of any of the Defendants in any civil, criminal or administrative proceeding in any court, administrative agency, or other tribunal. Defendant may file the Settlement and/or the Judgment from this action in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.
13. Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over: all parties and counsel hereto for the purpose of construing, enforcing, and administering the Settlement.
14. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation of Settlement, then this Judgment shall be rendered null and void to the extent provided by and in accordance with the Stipulation of Settlement and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void.
15. The effective date of this Consent Degree is thirty days from the execution hereof, April 5, 2007.

DATED: March 6, 2007

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J.P. and all others similarly situated, Plaintiffs,
v.
BOB TAFT, et al. Defendants.

:

:

Case No. 2:04-cv-692

:

:

:

JUDGE ALGENON L. MARBLEY

:

:

:

Magistrate Judge King

:

:

ORDER This matter is before the Court on the Motion to Dismiss filed by Defendant Bob Taft (“Governor Taft”) [Docket No. 23], pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Governor Taft petitioned this Court to dismiss Plaintiffs’ claims against him on the basis that the complaint (the “Complaint”) fails to state a claim against him pursuant to 42 U.S.C. § 1983.1 On May 18, 2005, this Court granted Plaintiffs leave to file an amended complaint (the “Amended Complaint”). That same day, the Magistrate Judge ordered filed the Amended Complaint that was previously attached to Plaintiffs’ Motion for Leave to Amend Complaint [Docket No. 41]. In the Amended Complaint, Plaintiffs added named plaintiffs to the case, and they sought to expound upon certain allegations against the Defendants. On June 2, 2005, Governor Taft filed his Motion to be Dismissed as a Party to this Action [Docket No. 79], in

1In his first Motion to Dismiss, Governor Taft also argued that he should be dismissed as a party to the action because the Complaint did not contain allegations of any personal involvement on his part, and the Complaint, with respect to him, fails to meet the requirements of Rule 8(a) of the Federal Rules of Civil Procedure.

response to Plaintiffs’ Amended Complaint. Because Plaintiffs have filed an Amended Complaint and Governor Taft has moved for
dismissal as a party to the action on the same basis as articulated in his first motion to dismiss – Plaintiffs’ alleged failure to state a Section 1983 claim against him – the Court hereby finds Governor Taft’s Motion to Dismiss Plaintiffs’ original complaint [Docket No. 23] MOOT.
IT IS SO ORDERED. s/ Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
DATED: September 7, 2005
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J.P., and all others similarly situated, et al., :

:

Plaintiffs,

:

:

v.

:

:

TAFT, et al.

:

:

:

Defendants.

:

Case No. C2-04-692 JUDGE ALGENON MARBLEY Magistrate Judge King

ORDER AND OPINION

I. INTRODUCTION

This matter is before the Court on the Defendants’ Third Motion for Summary

Judgment.1 For the reasons set forth herein, the Court DENIES Defendants’ Third Motion for

Summary Judgment.

II. STATEMENT OF FACTS

A. Background

Defendant, Ohio Department of Youth Services (“ODYS”) serves as that “legal custodian

for [Ohio] juvenile offenders, age 10-21 who have been adjudicated delinquent as a result of

committing felony violations.” Pl.’s Ex. A. ODYS operates by fund or contract institutions

including but not limited to: Circleville Juvenile Correctional facility, Mohican Juvenile

1Though Plaintiffs initially filed suit against Governor Taft, Thomas Stickrath, the interim Director of ODYS, and ODYS, on April 21, 2006, this Court GRANTED Defendant Taft’s Second Motion to Dismiss him as a Defendant to this action. [Doc. No. 126]. Accordingly, Defendant Stickrath, and Defendant ODYS are the only remaining defendants in the case.
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Correctional facility, Cuyahoga Hills Juvenile Correctional Facility, Scioto Juvenile Correctional
Facility, Ohio River Valley Juvenile Correctional Facility, Indian River Juvenile Correctional
Facility, Freedom Center, and the Marion Juvenile Correctional Facility. See Pls.’ Ex. A.2
ODYS also has six parole offices, and contracts with a private sector provider for services. See
id. “At any given time, [Ohio] DYS has approximately 1,800 youth3 in its custody in the
correctional facilities [listed above].” Id.
In 1992, the Sixth Circuit Court of Appeals ruled that because juvenile offenders cannot
make effective use of legal materials by themselves, they require the assistance of lawyers to
allow them meaningful access to the courts. See John L. Adams, 969 F.2d 228, 233 (6th Cir.
1992).4 Nonetheless, this right to assistance of counsel has been narrowly interpreted to mean
2These institutions are state facilities created by the Ohio General Assembly under the management and control of either ODYS or a private entity with which ODYS contracted for institutional care and custody of felony delinquents. Second Amended Complaint ¶ 19. In addition to maintaining these facilities, ODYS supervises committed juveniles housed in institutions or community corrections facilities throughout the state of Ohio. Id.
3Juveniles who are adjudicated delinquent for committing acts that if committed by an adult would constitute felonies, may be committed to ODYS for an indefinite period of time up to and until that juvenile reaches the age of 21. Second Amended Complaint ¶ 21. Juveniles who have been adjudicated felony delinquents are eligible for placement at community corrections facilities. Id. ¶ 22. A felony delinquent is a juvenile at least 12 years of age and less than 18 years of age, who has been adjudicated a delinquent juvenile for committing an act that if committed by an adult would be a felony offense, or an adult between the ages of 18 and 21 who is in the legal custody of ODYS, and has committed an act while in custody that would constitute a felony if committed by an adult. Id. Juveniles committed to ODYS range in age from 12 to 21 years. Id. ¶ 23. Placement in an institution or community corrections facility can range from several months to several years and averages approximately 10½ months per stay. Id. The average age of admission in Ohio is 15.9 years. Id.
4In John L., plaintiffs, incarcerated juveniles who were or would soon be confined in secure institutions operated by Tennessee Department of Youth Development (“TDYD”) brought a class action alleging denial of right of access to the courts. See 969 F.2d at 228. The district court granted summary judgment to the plaintiffs and ordered the state to submit a proposed remedial plan to provide plaintiffs with an appropriate remedy. Id. at 229. After
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that juvenile offenders are not entitled to legal assistance on “general civil matters arising solely
under state law.” Id. Moreover, the right to assistance of counsel is limited to “the preparation
and the filing of the complaint.” See Knop v. Johnson, 977 F.2d 996, 1005-07 (6th Cir. 1992);
see also, Bee v. Utah State Prison, 823 F.2d 397 (10th Cir. 1987); Nordgren v. Milliken, 762
F.2d 851, 855 (10th Cir. 1985); Ward v. Kort, 762 F.2d 856 (10th Cir. 1985).
B. Procedural History
1. The Initial Lawsuit
In July 2004, four youth (J.P., S.J., H.H. and D.B.) filed a proposed class action suit in
federal court. See Complaint. Plaintiffs alleged that the Defendants violated the First, Sixth, and
Fourteenth Amendments of the United States Constitution and corresponding provisions of the
Ohio Constitution by denying access to the courts to juveniles committed to ODYS as juvenile
delinquents or serious juvenile offenders. See id.; J.P., et al., 2005 WL 2405993, at *1.
Plaintiffs sought declaratory and injunctive relief, asking the Court to declare Defendants’
actions unconstitutional and to require Defendants to provide them with access to attorneys. See
giving plaintiffs an opportunity to weigh in on the proposed remedial plan, the judge fashioned it into a “remedial order.”
Under the terms of the approved remedial order, the TDYD would create four separate contracts to have private attorneys provide part-time legal assistance to juveniles at the four secure Tennessee institutions. Id. Further, the function of these contract attorneys would be to speak with juveniles who requested to talk with an attorney, to perform the factual and legal research necessary to comply with Rule 11, and either to advise a juvenile that he or she does not have a meritorious claim or to prepare for appointment of counsel. Id. Finally, though use of the grievance procedures established at each institution was not required, attorneys were instructed to “urge use” of those procedures to solve any and all claims.” Id.
The Sixth Circuit affirmed the district court’s decision granting summary judgment to plaintiffs, but reversed the district court’s remedial order to the extent that it required the State to provide assistance to juvenile detainees for Section 1983 claims unrelated to their detention and civil matters involving purely state law. Id. at 237.
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id.
On January 7, 2005, Defendants filed their First Motion for Summary Judgment in which
they argued that the four Plaintiffs named in the Complaint had failed to exhaust their
administrative remedies and, therefore, lacked standing to challenge Defendants’ legal assistance
program. See Defs.’ First Motion for Summary Judgment. Plaintiffs responded to Defendants’
motion. See Pls.’ Opp. to Defs.’ First Motion for Summary Judgment.
Taking Plaintiffs’ pending claims into account, Defendants made extensive changes to
the ODYS legal assistance program,5 and, on January 12, 2005, they filed their Second Motion
for Summary Judgment, in which they argued that the four Plaintiffs named in the initial
Complaint lacked standing to sue. See Defs.’ Second Motion for Summary Judgment.6 Shortly
5The interim changes are as follows:
ODYS entered into a contract with attorney Larry Matthews in September 2004, approximately one year ago[, September 2004,] to provide legal assistance to youth with regard to conditions of confinement. Mr. Mathews travels to each institution on a biweekly basis to talk to the inmates about issues related to conditions of their confinement. Since September, Mr. Mathews has conducted an orientation at each facility with youth and staff and has met with youth individually and in groups to discuss legal issues and to assist them in filing or resolving grievances. In addition, ODYS has hired at least one other contract attorney, Sharon Hicks [(“Hicks”)] . . . Further, ODYS has hired a youth advocate to act on behalf of the youths to ensure that their grievances are processed and addressed at all levels. Finally, ODYS has also hired a Compliance Officer to oversee the implementation of the legal assistance program and all new initiatives directed at improving conditions of confinement.
See J.P. v. Taft, 2005 WL 2405993, at *14 (S.D. Ohio Sept. 29, 2005) (internal citations omitted).
6According to the Defendants, the Plaintiffs lacked standing because they,
. . . failed to demonstrate that they have suffered any litigation – related injury as a result of the [D]efendants’ actions. Lewis v. Casey, 518 U.S. 343 (1996); Pilgrim v. Littlefield, 92 F.3d 413 (6th Cir. 1996). No violation of the right of access to the courts occurs in the
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thereafter, on March 7, 2005, Plaintiffs filed their first Amended Complaint, adding M.M. and T.M. as named plaintiffs.7 Plaintiffs also served Defendants with a written discovery request in an effort to “probe the content, scope, and operation of [the Defendants’] new program.” See Pls.’ Motion at 5; Pls.’ Ex. A. Plaintiffs requested that Defendants produce the contract between ODYS and program attorneys, Larry Mathews (“Mathews”) and Sharon Hicks (“Hicks”), so that Plaintiffs could “assess the scope of [the attorneys’] duties,” as well as a description of any and all legal services the new ODYS legal services program was to provide in order to determine whether it, in fact, met the requirements of the law. Pls.’ Motion at 5. In response, Defendants filed a motion to stay all discovery, which the Court subsequently granted. Id.
Defendants filed their Third Motion for Summary Judgment on August 1, 2005 in which they reiterated their previous assertions and insisted that M.M. and T.M., the two additional named plaintiffs, lacked standing. See Pls.’ Motion at 5-6; Defs.’ Third Motion for Summary Judgment. In response, Plaintiffs, once again, sought to “engage in discovery designed to uncover the content, scope, and operation of Defendants’ new legal assistance program, and served Defendants with a second request for production of documents along with a first set of interrogatories.” See Pls.’ Motion at 6; Pls’ Reply to Defs.’ Response to Pls.’ Motion for Extension of Time. In making their discovery request, Plaintiffs sought both an extension to the
absence of injury. This means that, without evidence that the [D]efendants prevented the [P]laintiffs from filing suit on their underlying claims or rendered their access to the courts ineffective or meaningless, [P]laintiffs have not shown that their right of access to the courts has been violated. Christopher v. Harbury, 536 U.S. 403 (2002); Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997). Defs.’ Second Motion for Summary Judgment at 2. 7The first Amended Complaint [Doc. No. 40] was terminated on March 8, 2005 and later replaced by Plaintiffs’ Second Amended Complaint [Doc. No. 77].
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period of discovery set in the Court’s preliminary pretrial order and an extension of time to respond to Defendants’ Third Motion for Summary Judgment. See Pls.’ Motion at 6; Pls.’ Motion to Extend Discovery; Pls’ Motion for Extension.
On February 7, 2005, the Court held a telephonic hearing and ruled, inter alia, that Plaintiffs could not engage in any discovery regarding Defendants’ new legal assistance program, issuing a protective order to that effect. See Pls.’ Motion at 1. The Court held that before any such discovery could occur, the parties and the Court needed to address the issues of jurisdiction, standing, and the exhaustion of administrative remedies present in Defendants’ various motions for summary judgment. Id.
2. The Second Amended Complaint With the Court’s permission, Plaintiffs filed their seconded amended complaint on May 18, 2005. See Pls.’ Second Amended Complaint; see supra note 7. Shortly thereafter, Defendants filed a motion requesting disqualification of Plaintiffs’ Attorney, Kim Brooks Tandy for causing herself to become a material witness in the case. See Defs.’ Motion to Disqualify Plaintiffs’ Counsel. On September 29, 2005, this Court granted Defendants’ Second Motion for Summary Judgment based on the Court’s lack of subject matter jurisdiction to entertain Plaintiffs’ claims. See J.P., 2005 WL 2405993, at *19.8 In so holding, the Court also denied as moot Defendants’
8This Court found the claims of Plaintiffs J.P., S.J., and D.B. to be moot, explaining, “[a]fter this case was filed, however, Defendants did in fact provide counsel to each of the three Plaintiffs named in the original Complaint (citations omitted). Thus, Defendants voluntarily ceased their allegedly unconstitutional actions, i.e., preventing meaningful access to the courts by denying Plaintiffs access to legal counsel.” See J.P., 2005 WL 2405993, at *12.
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First Motion for Summary Judgment,9 and Defendants’ Motion to Disqualify Kim Brooks Tandy
as Plaintiffs’ Counsel. Id. Finally, the Court also dismissed, without prejudice, Plaintiffs’
Motion for Class Certification, noting that Plaintiffs may have an opportunity to re-file the
motion following the Court’s resolution of the Defendants’ Third Motion for Summary
Judgment. Id.
On March 15, 2006 the Court denied both Plaintiffs’ Motion to Table the Court’s
Preliminary Pretrial Order, and Plaintiffs’ Rule 59 Motion to Alter or Amend the Court’s
September 29, 2005 Opinion and Order. Also, on April 21, 2006, the Court granted Defendant
Taft’s Motion to Dismiss, dismissing all counts brought against Governor Taft, leaving
Defendant Stickrath and Defendant ODYS as the sole defendants. See supra note 1.
3. Facts Regarding T.M.
On March 17, 2006, the parties engaged in a telephonic status conference before the
Court. During the status conference, the Court re-opened discovery limited to the claims of
T.M., the sole remaining plaintiff in this case.10
9Defendants’ First Motion for Summary Judgment asserted that the Court could not hear the named Plaintiffs’ claims because they had failed to exhaust their administrative remedies before filing suit [Doc. No. 25]. The Court, finding the issue moot after dealing with the jurisdictional issues in Defendants’ Second Motion for Summary Judgment, did not reach the merits of the exhaustion issue. See J.P., 2005 WL 2405993, at *19.
10Plaintiff H.H. voluntarily dismissed her claim without prejudice on July 7, 2005 [Doc. No. 87]. When the Court granted Defendants’ Second Motion for Summary Judgment on September 29, 2005, all remaining named Plaintiffs were dismissed except M.M. and T.M., the two named Plaintiffs added when Plaintiffs filed their Second Amended Complaint [Doc. No. 106]. On September 12, 2005, however, Defendants filed their first supplemental memorandum in support of their Third Motion for Summary Judgment apprising the Court that M.M., through attorney Hicks, had filed a pro se excessive force claim in the Northern District of Ohio (case number 3:05-cv-07362). Therefore, M.M.’s claim was dismissed as moot, leaving T.M. as the only Plaintiff in this matter.
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a. T.M.’s Assault Allegations The following facts regarding T.M. are adopted, in relevant part, from the Court’s previous opinion in this case. See J.P., 2005 WL 2405993, at *4-5. At the time the Plaintiffs’ filed their Second Amended Complaint, Plaintiff T.M. was an eighteen-year-old youth who had been in ODYS custody for approximately two years. See id. at *5. After a brief stay at the reception center in Scioto, Ohio, T.M. was permanently assigned to Marion Juvenile Correctional Facility (“MJCF”) for the duration of his commitment. See Second Amended Complaint ¶ 11. While at MJCF, T.M. was placed in a number of different units, but he was housed in Building 5 for the majority of his confinement. Id. On October 14, 2004, T.M. and other inmates in Unit 5B, engaged in a small uprising, banging on their doors in order to get permission to use the bathroom. See J.P., 2005 WL 2405993, at *5.11 During the incident, a Juvenile Corrections Officer (“JCO”) entered T.M.’s room and restrained him, “choking him out” until T.M. was rendered unconscious. Id. T.M. also sustained an eye injury when the JCO hit him in the eye. Id. Additionally, T.M. claims that after being assaulted, he received inadequate medical care for his injuries. Id.12 When T.M. was
11An investigative report regarding this incident revealed that Unit 5B guards “repeatedly den[ied] bathroom breaks as a form of discipline.” See Defs.’ Ex. B, Report of the Investigation of the 5B “Star” Housing Unit Incident, at 6. Further, the report stated that,
[a]lthough it is believed that some youth may intermittently elect to urinate in milk cartons and latex gloves, it is acknowledged by virtually all interviewed staff and youth, that youth behavior determines whether or not youth are permitted restroom breaks. Staff would require youth to “remain quiet” for period of time until awarding restroom access. Id. 12At midnight on October 14, 2004, T.M. was seen at the infirmary complaining of difficulty breathing and problems with his throat. See Defs.’ Supp. Memo at 2. A medical
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released from the infirmary on October 15, 2004, he was transferred to Unit 2D in Building 2
and never returned to Building 5. See Defs.’ Ex. A-1, Youth Injury & Assessment Form
(10/15/2004); Defs.’ Ex. A-3, Interdisciplinary Progress Notes (10/18/2004); Ex. A, Decl. of
Jeffrey Rollins (5/4/2006); Ex. E, Aff. of Doneta Riegsecker (describing the movement for T.M. from the date of the incident to the date he was released from DYS).13 Unlike youth in Building
5, youth in Unit 2D of Building 2 have a toilet and sink in their rooms; thus, they do not have to
depend on ODYS staff to gain access to bathroom facilities. See Defs.’ Ex. D, Aff. Norm Hills
(6/1/2006).
On October 16, 2004, two days after the incident, T.M. filed an ODYS administrative
grievance for assault in which he explained his injuries and indicated that he wanted the matter
to be resolved “in court.” See J.P., 2005 WL 2405993, at *5. T.M.’s grievance included a
written statement describing the assault by the JCO and asserting that youth were being forced to
urinate in their rooms into rubber gloves rather than being allowed to use the bathroom. Id.
T.M.’s grievance included no language asserting that he had been denied access to adequate
assessment was performed and treatment was rendered. Id. When T.M. felt better, the medical staff decided to monitor him through the night, and he was sent off-site for care. Id.
On October 14, 2004, at 3:00 p.m., T.M. was seen by medical staff in unit 2D. Defs.’ Supp. Memo at 2. He stated that he was “okay” except for a sore throat, and staff observed that his left eye was stolen. He was sent to the infirmary where staff took photos of his left eye. Id. at 2-3. He was also given ice and Motrin for his eye and throat discomfort. Id. at 3.
Though the issue was not raised in any of the parties’ prior papers, in Plaintiffs’ Opposition Motion, they assert that T.M.’s denial of court access claim is also based upon his allegations of inadequate medical care, and his assertions of unconstitutional conditions of confinement. See Pls.’ Opp. at 4, 11, 12, 13, 34, 35, 36, 38. T.M. claims to have filed written grievances about these claims; however, there is no evidence that any such grievances exist.
13During oral argument, Defendants’ counsel noted that, after the October 14, 2004 incident, all of the inmates from Unit 5B were transferred elsewhere.
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medical care, and no specific allegations about unconstitutional conditions of confinement. Id. The ODYS grievance committee subsequently found merit to T.M.’s complaint and
indicated to him that “appropriate actions [would] be taken.” See T.M. Dep., Pls.’ Ex. B, at 2. The Superintendent agreed with the committee’s finding. Id. Nonetheless, because T.M. was never apprised of any action taken in regards to his grievance, he appealed the Superintendent’s decision to the Chief Inspector on December 15, 2004. Second Amended Complaint ¶ 11. On January 4, 2005, after having reviewed T.M.’s grievance, the Chief Inspector informed T.M. that he concurred with the committee’s determinations and its decision to grant the grievance. Id. Further, the Chief Inspector informed T.M. that disciplinary action had been taken against the offending employees. See T.M. Dep., Pls.’ Ex. B., at 2. Both Plaintiffs and Defendants are in agreement that T.M. exhausted a full round of the grievance process in pursuing his assault claim. See Pls.’ Opp. at 16; Defs.’ Third Motion for Summary Judgment at 9.
The record reveals that in the course of his stay at MCJF, T.M. filed a total of eight administrative grievances: (1) on October 15, 2004, T.M. claimed he was physically assaulted in Unit 5B;14 (2) on October 16, 2004, T.M. claimed he was placed in Unit 2D without his personal hygiene items; (3) on October 16, 2004, T.M. objected to placement in Unit 2D and sought an explanation for the placement; (4) T.M. objected to placement and retention in Unit 2D; (5) on November 24, 2004, T.M. claimed he was locked in a restroom in Unit 2D; (6) on November 24, 2004, T.M. objected to participation in the GED program; (7) on November 24, 2004, T.M. claimed his positive behavior warranted his removal from Unit 2D; (8) on December 11, 2004,
14As noted above, the parties do not dispute that T.M. fully exhausted his assault grievance.
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T.M. claimed showers in Unit 2D were cold and complained that worms were coming out of the drain. See Decl. Jeffrey L. Rollins, Human Services Program Administrator for MJCF at 1-2. None of these grievances relates to denial-of-access, and T.M. failed to attach his alleged recorded grievance to his complaint. T.M. asserts that his copies of each of the above grievances as well as any other “legal papers” that he had regarding his case were confiscated by ODYS guards, labeled “gang literature,” and not returned to him upon his release. See Defs.’ Ex. 5, T.M. Aff. ¶ 20.
b. T.M.’s Pursuit of Legal Relief As noted above, in filing his assault grievance on October 16, 2004, T.M. indicated that he wanted his assault charge to be resolved “in court.” See Second Amended Complaint ¶ 11. Thus, in the latter part of October, 2004, T.M. sought representation through ODYS’ Legal Assistance Program. See id. Pursuant to T.M.’s request, on November 1, 2004, T.M. met with contract attorney Mathews15 who informed T.M. that he would find him an attorney to provide him with legal assistance. Id. Initially, Mathews identified six attorneys who handled ODYS cases – Jillian Davis, John Lawson, David Doughten, Lisa Meeks, Mike Benza, and Benson Wolman – and sent a referral to those six individuals regarding T.M. See Pls.’ Opp. at 6; see Mathews Dep. at 96. Mathews re-visited T.M. on December 13, 2004, and provided him with a copy of a letter which stated in relevant part: This letter is to update you on the status of the matter we previously discussed. After our conversation, I prepared a summary of the incident based upon what you told me and
15See supra note 5 (noting that in revamping its legal services, ODYS hired contract attorney, Mathews, to provide legal assistance to inmates).
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other information I had obtained from DYS. On November 27, I sent letters to six attorneys asking them to review the information and consider representing you in this matter. So far, I have not received a response from any of them, but I plan to follow up with them the week of December 20th if I have not received a response. When I hear from the attorneys I will let you know. Defs.’ Ex. D. Shortly thereafter, Mathews, accompanied by Attorney Jillian Davis (“Davis”), met with T.M. to discuss his case. See Pls.’ Ex. 2, Mathews Dep. at 32-35. Davis expressed an interest in taking T.M.’s case, and informed T.M. that she would look into the matter. See Defs.’ Ex. 5, T.M. Aff. ¶¶ 8-10. Davis did not follow up with Mathews regarding T.M., and when Mathews spoke to her “a couple times” on the phone regarding her interest in taking on T.M. as a client, she told him that she was still contemplating it. Pls.’ Ex. 2, Mathews Dep. at 34. Finally, on March 16, 2005, Davis informed Mathews by letter that she had just accepted a new position, and, as a result, would be unable to take on additional cases, including that of T.M. See Pls.’ Ex. 4, Letter from Jillian Davis to Larry Mathews. On March 29, 2005, after Mathews informed T.M. that Davis would not take his case, Hicks asserts that she sent T.M. a letter indicating that Cleveland attorney, Matthew Brownfield (“Brownfield”) was willing to look over T.M.’s case. T.M. never responded, and he now claims that he never received the letter. See Pls.’ Opp. at 22. Though the details of what occurred regarding T.M.’s assault claim between December 2004 and March 2005 are in dispute,16 both sides agree that during that time period, neither
16Defendants contend that despite their best efforts to make contact with him, T.M. continually refused to meet with Mathews and Hicks regarding his claims. Plaintiffs, however,
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Mathews nor Hicks, was able to find an attorney willing to represent T.M. See Pls.’ Opp. at 7-
11; Defs.’ Supp. Memo at 5-10.17
On June 1, 2005, ODYS released T.M. from institutional status and placed him under
argue that Mathews and Hicks never spoke directly with T.M., and that any testimony by others that T.M. had either refused meetings or opted not to pursue legal relief is inadmissible hearsay. See Pls.’ Opp. at 12 (“Controverted Facts”).
17In Plaintiffs’ Opposition, Plaintiffs write, “. . . T.M. was so in need of legal assistance while incarcerated at [MCJF] that his mother attempted to have her private attorney [Michael Rich] visit him at the facility.” See Pls.’ Opp. at 11. In his April 11, 2006 deposition testimony, T.M. also asserts that he was denied the right to seek legal assistance from a private attorney:
Q: Who was the attorney you tried to bring into this? A: Mike Rich. That’s my mom’s private attorney. Q: Okay. Did you write to him? A: No, I didn’t write to him, ‘cause we was requesting him. My mom talked to Mike
Rich about it, and he said he’ll come talk to me. My mom called up to the institution and talked to Norm Hills. Norm Hills said they got their own lawyers, and from that I never heard – I ain’t heard from them yet.
See T.M. Dep. at 49.
In his affidavit, however, attorney, Michael Rich, asserts that he was never contacted by T.M.’s mother, and/or by T.M. himself. The affidavit states:
3. In 2003, I was appointed as counsel for [T.M.] by the Mahoning County Juvenile Court and represented him during his juvenile adjudication for burglary under Case No. 03 JA 544. . . .
5. At no time was I ever contacted by any individual, including [T.M.] and his mother, Valerie Watkins, concerning an alleged assault of [T.M.] by a [JCO] while confined at the [MCJF]. Nor did I speak to Ms. Watkins and agree to talk to [T.M.] about the assault.
6. I have not represented or advised [T.M.] or his mother, Valerie Watkins, in any civil matter.
See Defs.’ Ex. F, Aff. Michael Rich. Based on this conflicting testimony, and because T.M.’s assertion that his mom talked to Mike Rich is hearsay, the Court considers T.M.’s assertions that he was denied access to private counsel, as well as contract attorneys to be untenable.
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parole supervision. Defs.’ Ex. B. Following T.M.’s release on parole, neither Mathews nor Hicks ever heard from T.M. by letter or telephone call. Defs.’ Supp. Memo at 11. On January 11, 2006, the Mahoning County Court of Common Pleas, Juvenile Court Division, entered an Order terminating T.M. from parole. Id.
4. Recent Occurrences On April 11, 2006, following the Court’s decision to re-open discovery as to T.M., the parties deposed T.M. Further, on April 19, 2006, the parties deposed DYS contract attorneys Mathews and Hicks. Following the depositions, Hicks called T.M. and informed him that Cleveland attorney, David Doughten (“Doughten”), had agreed to represent him in filing a formal legal complaint for his assault charge. T.M. agreed to be represented, and, accordingly, Hicks referred T.M.’s case to Doughten, who subsequently filed suit on T.M.’s behalf in Federal District Court in Toledo, Ohio; the suit seeks damages for T.M.’s October 14, 2006 assault by a Unit 5B JCO (case number 3:06-cv-1127). In late April, Defendants, citing new information gained in the depositions of T.M., Mathews, and Hicks, requested leave to file a third supplemental memorandum18 in support of their Third Motion for Summary Judgment and brought a motion to alter or amend the Court’s briefing schedule. The Court granted both of Defendants’ requests. The issues are now fully briefed, and the Court conducted oral argument on June 8, 2006.
III. STANDARD OF REVIEW
18Defendants had previously filed two supplemental memoranda in support of their Third Motion for Summary Judgment, the first on September 12, 2005 [Doc. No. 100], and the second on November 4, 2005 [Doc. No. 114].
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Summary judgment is appropriate “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993). In response, the non-moving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993) (citations omitted).
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The Court also must interpret all reasonable inferences in the non-movant’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (stating that the court must draw all reasonable inferences in favor of the non-moving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; however, there must be evidence from which the jury reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (finding summary judgment appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving
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party”). IV. ANALYSIS
In analyzing Defendants’ Third Motion for Summary Judgment, the Court will first consider the jurisdictional issues of standing and mootness. If the Court finds both that T.M. has standing to bring his claims and that T.M.’s claims are not moot, then it may consider whether T.M. exhausted his administrative remedies before filing suit.
A. Whether T.M. Lacks Standing Article III, Section 2 of the United States Constitution confines the jurisdiction of federal courts to the resolution of actual “cases” and “controversies.” See Raines v. Byrd, 521 U.S. 811, 818 (1997); NRA of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997). The case or controversy limitation of Article III requires that a party invoking federal jurisdiction has standing – in other words, a “personal stake in the outcome”of the action. See Baker v. Carr, 369 U.S. 186, 294 (1962); Stevenson v. J.C. Bradford & Co., 277 F.3d 838, 852-53 (6th Cir. 2002). To establish a personal stake in the outcome of an action, a plaintiff must allege an “injury in fact” to his preexisting, legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted). That injury must be “(a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id.; see also, TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 (6th Cir. 2000). A particularized injury is one that “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560, n.1. Further, in cases in which a prisoner alleges he has been denied access to court, an inmate establishes standing by showing that he suffered an actual litigation related injury or legal prejudice because of the actions of the defendant. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996) (requiring “actual
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prejudice with respect to the contemplated or existing litigation, such as the inability to meet a
filing deadline or present a claim”).
In addition, the United States Court of Appeals for the Sixth Circuit has held that
“standing does not have to be maintained throughout all stages of the litigation.” Cleveland
Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001). “Instead, [standing]
is to be determined as of the time the complaint is filed.” Id. The Cleveland Branch court
exhaustively reviewed United States Supreme Court precedent to conclude that “‘jurisdiction is
tested by the facts as they existed when the action [was] brought’ and ‘that after vesting, it
cannot be ousted by subsequent events.” Id. (quoting Smith v. Sperling, 354 U.S. 91, 93, n.1
(1957)). Consequently, the proper inquiry is whether a plaintiff was suffering or had suffered an
actual injury at the time a complaint was filed. Id.; see J.P., 2005 WL 2405993, at *9.
1. Standing for Denial-of-Access Claims
In Christopher v. Harbury, 536 U.S. 403, 412-13 (2002), the Supreme Court held that
denial-of-access claims fall into two categories:
[i]n the first, [forward-looking claims], are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time. . . In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.
See id. at 413 (emphasis added) (internal citations omitted). The second category, backward-
looking claims, differs in that it:
covers claims not in aid of a class of suits but of specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future. The official acts claimed to have denied access may allegedly have caused the loss or inadequate settlement of a meritorious case, the loss of an opportunity to sue, or the loss
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of an opportunity to seek some particular order of relief. . . These cases do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable. The ultimate object of these sorts of access claims, then, is not the judgment of a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future. Id. at 413-14 (internal citations omitted). The Court also explained that no matter what the category, “the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. at 41415. Thus, the Court held that “we have been given no reason to treat backward-looking access claims any differently [from forward-looking claims].” Id. at 415. It follows that in drafting a complaint, a plaintiff must: (1) state the underlying nonfrivolous cause of action, whether anticipated or lost; and (2) describe the “official acts frustrating the litigation” to show that he has suffered an actual injury. Christopher, 536 U.S. at 415. In addition, plaintiffs bringing backward-looking claims must also “identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish the facts constituting denialof-access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of-access element.” Id. In joining Plaintiffs’ purported class action as a name plaintiff, T.M. brought a forwardlooking claim. T.M.’s forward-looking claim asserts that Defendants prevented him from filing a lawsuit on his assault claim by failing to provide him with the assistance of an attorney, and he is pursuing both declaratory and injunctive relief. He seeks a court order removing the alleged obstruction (denial of an attorney) so that he may pursue, in a separate action, his underlying substantive assault claim. In Plaintiffs’ Opposition Motion, however, T.M. expanded his lawsuit
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by introducing a new backward-looking claim. T.M. now asserts that in addition to failing to provide him with access to an attorney to bring his assault claim, Defendants’ actions also prevented him from filing claims for relief from inadequate medical treatment and unconstitutional conditions of confinement. See Pl.’s Opp. at 3, 4. Though typically, the Court will not consider new claims introduced in the pleadings without leave of court, because Defendants responded to Plaintiffs’ assertions in their Reply Memorandum, the matters have been briefed for the Court’s review. Therefore, in discussing standing, the Court will consider both T.M.’s forward and backward-looking claims.
2. Standing as to T.M.’s Forward-Looking and Backward-Looking Claims Applying the line of reasoning from Christopher to T.M.’s claims, this Court must decide whether T.M. has standing when he was added to the lawsuit by considering: (1) whether T.M.’s initial claim was nonfrivolous; and (2) whether T.M. was actually injured when Defendants allegedly denied him access to an attorney. See 536 U.S. at 413. Further, in considering T.M.’s backward-looking claim, the Court must consider whether T.M. has identified a possible remedy that may be awarded that would not otherwise be available in some suit that may yet be brought. See id. at 415.
a. T.M.’s Initial Suit: the Forward-Looking Claim In T.M.’s initial suit, a forward-looking claim, he alleges that he was denied access to the courts, and was, therefore, prevented from bringing his assault claim. Defendants’ Supplemental Memorandum to their Third Motion for Summary Judgment, Defendants argue that T.M. lacks standing to bring his claim that he was denied court access in pursuing his assault claim because he has failed to show that he suffered an actual injury at the hands of Defendants. See Defs.’
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Supplemental Memo at 14. Defendants contend that, “the only barrier to [T.M.] not bringing suit or not bringing suit on [his] underlying claims is [his] own decision, together with [his] attorneys, not to avail [him]self of the opportunity to do so.” Id. Plaintiffs counter that T.M. suffered from denial of court access at the time he was added to the Second Amended Complaint, and that he continued to suffer until he was released on parole in June 2005. See Pl.’s Opp. at 17-19. Plaintiffs also contend that T.M. did not divest himself of standing by filing suit in federal court or by allegedly “refusing” to consult with available attorneys through Matthews and Hicks. Id.
I. Whether T.M.’s Underlying Claim was Nonfrivolous The underlying claim on which T.M. bases his forward-looking denial-of-access claim is that while he was housed at MCJF Unit 5B, he was physically assaulted by a JCO resulting in multiple injuries. See supra Part II.B.3.a. The Sixth Circuit has held that spontaneous unprovoked assaults by prison guards support a prisoner claim under 42 U.S.C. § 1983. Pelfrey v. Chambers, 43 F.3d 1034 (1994); see also, DeCosta v. Medina County, 3006 WL 1473256, at *5 (N.D. Ohio May 22, 2006). It is undisputed that T.M. pursued his “assault” claim through the ODYS administrative process, and that the grievance committee found it legitimate. See Second Amended Complaint ¶ 11. Therefore, the Court finds that T.M. has asserted a nonfrivolous claim that he was assaulted in violation of the Eighth Amendment of the United States Constitution, which prohibits cruel and unusual punishments as well as the use of excessive physical force against prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places restraints on prison officials, who may not,
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for example, use excessive physical force against prisoners.”). ii. Whether T.M. Suffered an Actual Injury
To state a claim for denial-of-access to the courts, a prisoner must demonstrate actual prejudice to pending or contemplated litigation. See Lewis, 518 U.S. at 351. Under the mandate of Bounds v. Smith, “an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpart in some theoretical sense.” 430 U.S. 817 (1977). Instead, an inmate “must go one step further and demonstrate that the alleged shortcomings in the . . . legal assistance program hindered his efforts to pursue a legal claim.” Id. at 351. Thus, examples of actual prejudice include having a case dismissed, being unable to file a complaint, and missing a court-imposed deadline. See id.; Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985).
In this case, T.M. claims that he was denied access to the courts because Defendants failed to afford him an attorney to assist him in filing a legal complaint regarding his assault charge. In his deposition testimony, he stated:
I have not been given any information about the investigation by DYS into the attack on me. I would have used an attorney to help me get information about the investigation. I wanted an attorney so I could learn about my rights regarding what had happened to me including any possible damages I could receive. I wanted an attorney to help publicize how Marion is run and what happened to me. Because I have not had an attorney, I have been angry and upset and frustrated. See Defs.’ Ex. 5, T.M. Aff. ¶¶ 12-13. As of the date T.M. was added to the Second Amended Complaint, he had specifically requested legal counsel to assist him in his efforts to pursue legal relief for his assault claim. See Second Amended Complaint ¶ 11. Nonetheless, as of that time, it is undisputed that neither Matthews nor Hicks had retained counsel for him. Further, a question of material fact exists as
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to whether, after his initial meetings with Matthews, T.M. refused to meet with both Matthews and Hicks during their subsequent visits to MCJF. Because all inferences must be resolved in favor of the non-moving party in a motion for summary judgment, the Court cannot accept as true Defendants’ bare assertion that T.M.’s alleged refusal to meet with Mathews and Hicks signaled his abandonment of his previous request for counsel. See Adickes, 398 U.S. at 157. Thus, the Court finds that because at the time he was added to Plaintiffs’ suit, T.M.’s lack of legal counsel had prevented him from filing a complaint regarding his assault, he had suffered an actual injury by being denied meaningful access to the courts. Accordingly, T.M. has standing to bring his forward-looking claim.
b. T.M.’s Backward-Looking Claim I. Whether T.M.’s Underlying Claims are Nonfrivolous T.M. bases his backward-looking claim on the following assertions: (1) that he was denied adequate medical treatment; and (2) that he suffered from unconstitutional conditions of confinement. See Pls.’ Opp. at 3, 4.
a) Inadequate Medical Treatment To establish a constitutional claim of inadequate medical care, a plaintiff must prove “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The standard of deliberate indifference includes both objective and subjective components. Id. First, the deprivation of care must objectively be “sufficiently serious.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted). Second, the facts must give rise to a reasonable inference that the individuals responsible for providing medical care knew of those serious medical needs and intentionally disregarded them. Harrison v. Barkley,
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219 F.3d 132, 137 (2d Cir. 2000); Chance v. Armstrong, 143 F.2d 698, 703 (2d Cir. 1998).
Moreover, courts have held that inadequate medical care claims must be “so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness. . . nevertheless, mere negligence or malpractice does not violate” the
tenets of the Constitution. Estelle, 429 U.S. at 107; see also, Miltier v. Beorn, 896 F.2d 848 (4th
Cir. 1990).
In T.M.’s deposition testimony, he relayed the following facts about the medical care
with which ODYS provided him after the October 14 assault. These facts serve as the
background to his claim that he was provided with inadequate medical care.
Q: Okay, now Mr. M., do you remember if a nurse came or anybody, or did they take you - to did a nurse come there, any health care people come to the scene, or did they take you to the infirmary? What did they do? A: They carried me out to my room, laid me in the hallway, and a nurse came and - . . . . A: And she put some type of heart monitor thing on my finger, and that was it. Gave me some water, checked my heart rate. I believe that was it. She gave me an inhaler that, you know what I’m saying, wasn’t mine. I ain’t got asthma. She gave me an asthma inhaler that wasn’t even mine, so I don’t know where that came from . . . . Q: Were you taken to the infirmary, do you recall. A: No I was [taken] to Building 2. . . . Q: Following this incident. . . were you also – did you or did you not go to the infirmary? A: No. Q: Okay. Following this incident on October 13, did you ever go to the infirmary to seek medical attention? A: Not for that specific reason, not for that . . . . A: We probably got that mixed up. I wanted medical attention for that situation. They never gave it to me, you know what I mean, so I never got medical attention for that situation that happened. Q: Did you go to the infirm – A: I let them know I wanted medical attention. Q: How did you let them know? A: I told them I wanted to see the doctor, I wanted to see the nurse. Q: And what happened? A: They put me in Building 2 . . . . Q: After October 14, did you go to the infirmary for other reasons besides what happened there on October 14, 2004? Did you go for other reasons to the infirmary?
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A: After that I went, because I had stiffness in my neck, and my eye was swollen. Q: Okay. Please listen to my question. After October 14, 2004, did you ever go to the infirmary? I don’t care for what purpose, just did you ever go to the infirmary? A: Yeah, I went. Q: For what purpose? A: For stiffness in my neck, and my eye was swollen . . . .
See T.M. Dep. at 24-26. Aside from T.M.’s testimony, however, Plaintiffs have presented no
further evidence that T.M. was denied access to adequate medical care.
The court in Pruitt v. Moore was confronted with a factual scenario similar to that in the
instant case. See 2003 WL 23851093 (D. S.C. July 7, 2003). In Pruitt, prisoner plaintiff brought
a pro se action pursuant to 42 U.S.C. § 1983, claiming that defendants, prison administrators,
violated his constitutional rights by failing to provide him with adequate medical care, humane
living conditions, and access to the courts. Id. at *1. In bringing his claims regarding access to
adequate medical care, Plaintiff alleged the following: (1) the medical center was overcrowded;
(2) his dorm often had no Tylenol or Aspirin available; (3) he was given the wrong medication
on one occasion; (4) he nearly overdosed on medication when he was being treated for kidney
stones; (5) one of his veins collapsed after he received medications intravenously; (6) medical
personnel were disrespectful; and (7) after a nurse administered a TB test, he had a positive
reaction to the test, though a previous test had been negative. Id. at *6. The court concluded that
despite plaintiff’s multitude of claims, he had failed to show that, “[d]efendants were deliberately
indifferent to any of his serious medical needs.” Id. at *7. The court explained,
[p]laintiff appears to disagree with the type and amount of medical treatment he received. Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice. The provision of medical care by prison officials is not discretionary, but the type and amount of medical care is discretionary. A disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation . . . . Additionally, incorrect medical treatment, such as incorrect diagnosis is not actionable
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under 42 U.S.C. § 1983. See id., at *7-8 (internal citations omitted).
In this case, as in Pruitt, T.M. does not dispute that he received some medical care. He merely claims that the care he was given was “inadequate.” Further, based on the record, it appears that after undergoing treatment at the infirmary in October 2004, T.M. did not voluntarily return for follow-up treatment. Because he has provided no evidence that Defendants were “deliberately indifferent” to his needs, or that Defendants withheld from him necessary lifesaving treatment, his assertions fail to establish the question of material fact necessary to keep his claim alive in the face of Defendants’ Third Motion for Summary Judgment. Because the Court determines T.M.’s underlying “inadequate medical care” claim to be frivolous, he does not have standing to pursue his backward-looking denial-of-access claim based on his assertions that Defendants’ actions denied him the right to pursue an inadequate medical care claim while housed at ODYS.
b) Unconstitutional Conditions of Confinement The Eighth Amendment’s ban on cruel and unusual punishment applies to a prisoner’s conditions of confinement that are not formally imposed as a sentence for a crime. Helling v. McKinney, 509 U.S. 25, 29-30 (1993). To sustain an Eighth Amendment conditions of confinement claim, an inmate must establish two elements: (1) the objective elements requires that the conditions of confinement were inadequate, and (2) the subjective element requires that the defendants have a culpable state of mind, which is measured by a “deliberate indifference” standard. Wilson v. Seiter, 501 U.S. 294, 297 (1991). As to the first element, conditions of confinement may constitute cruel and unusual
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punishment if they result “in unquestioned and serious deprivations of basic human needs . . . [which] deprive inmates of the minimal measures of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “No static ‘test’ can exist by which courts can determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment must draw its meaning from evolving standards of decency that mark the progress of a maturing society.” Id. at 346. The Eighth Amendment does not mandate comfortable prison conditions, and prisons that house inmates convicted of serious crimes cannot be free of discomfort. Peterkin v. Jeffes, 855 F.2d 1021, 1027 (3d Cir. 1988). As the Supreme Court has stated, “extreme deprivations are required to make out a conditions-of-confinement claim . . . [b]ecause routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As to the second element – the “deliberate indifference” requirement, a prison official’s conduct does not violate a prisoner’s constitutional rights “unless the official knows of and disregards an excessive risk to inmate health or safety . . . [The] official must be both aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
T.M. claims that he was subjected to unconstitutional conditions of confinement while under ODYS care. Though T.M. is not specific as to the facts underlying his claim, three of his recorded administrative grievances relate to unconstitutional conditions of confinement: (1) on October 16, 2004, T.M. claimed that he was moved to Unit 2D without his personal hygiene items; (2) on November 24, 2004, T.M. claimed that he had been locked in a restroom in Unit 2D; and (3) on December 11, 2004, T.M. claimed that showers in Unit 2D were cold and
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complained that worms were coming out of the drain. See Decl. Jeffrey L. Rollins, Human Services Program Administrator for MJCF at 1-2. Moreover, an internal investigation of Unit 5B, where T.M. was housed during the October 14, 2004 incident, revealed a culture in which youth were “repeatedly den[ied] bathroom breaks as a form of discipline.” See supra note 11. Thus, the Court will consider the above allegations in determining whether T.M. has a nonfrivolous unconstitutional-conditions-of-confinement claim.
In Johnson v. J.W. Fairman, an inmate brought a pro se suit against prison administrators under 42 U.S.C. §§ 1983 and 1997, alleging that he suffered from unconstitutional conditions of confinement and was denied adequate medical care while being housed as a pre-trial detainee. See 1997 WL 127179, at *1 (N.D. Ill. Mar. 24, 1997). Among other things, plaintiff alleged that during his stay, “he had to endure cold, dirty showers, a non-functioning sink, and unsanitary conditions.” Id. Further, plaintiff asserted that he had sent countless unanswered complaints as to his “improper treatment” to prison administrators with no response. Id. The court held that because plaintiff’s allegations failed to establish that any of defendants intentionally or recklessly caused the allegedly unconstitutional conditions to exist, plaintiff had failed to state a claim on which relief can be granted. Id. at *3-4 (emphasis added). The court explained that,
[g]enerally, only “genuine privations and hardship over an extended period of time might . . . amount [ ] to punishment,” [t]hus minor inconveniences resulting from the difficulties in administering a large detention facility do not give rise to a constitutional claim. Courts of this circuit have consistently held that jails do not have to provide a detainee with the amenities accorded to a hotel guest. Id. at *2-3. In this case, like the Johnson plaintiff, T.M. has failed to present facts establishing that any of the Defendants intentionally or recklessly caused unconstitutional conditions to exist, i.e.
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allowed him to be locked in a bathroom, or forced him to endure cold showers, accompanied by worms. See Lopez v. Robinson, 914 F.2d 486, 492 (4th Cir. 1990) (finding that there is no clearly established right to a “hot shower” in prison).
As to T.M.’s allegations that he was deprived of his personal hygiene items when he was moved to Unit 2D, the Court notes that many courts have considered some person hygiene items such as toothpaste, soap and toilet paper to be “minimal necessities of civilized life.” See, e.g. Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991) (finding that some personal hygiene items such as toothpaste, soap and toilet paper may be considered “minimal necessities of civilized life”); see also, Chandler v. Baird, 926 F.2d 1057, 1065 (11th Cir. 1991) (same); but see, Defillipo v. Vaughn, 1996 WL 355336, *5 (E.D. Pa. June 24, 1996) (finding that the deprivation of a wash cloth and the denial of a change of undergarments for twenty days do not constitute cruel and unusual punishment because they do not amount to a deprivation of the “minimal necessities of civilized life”). In T.M.’s grievance regarding his denial-of-access to his personal hygiene items, he wrote, “I was sent back to [G.P.] without my personal stuff that I had when I came over here 2-C. . . went to see if it was there in . . . the room.” See Defs.’ Ex. A-1, Youth Grievance Form. He requested that his material be replaced. In response, guards searched for the property, and, upon finding nothing, the grievance committee recommended that ODYS, where possible, ODYS should replace T.M.’s property. Id. Thus, though some courts have held that the deprivation of personal hygiene items can amount to a constitutional violation, in this case, because T.M. has not shown either that the deprivation was intentional or reckless, or that the deprivation seriously harmed him in any way, the Court finds that it does not amount to an unconstitutional conditions of confinement claim.
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Nonetheless, the Court finds that the Unit 5B guards’ custom of regularly depriving
inmates of restroom access amounts to a potential constitutional violation. See supra note 11
(internal investigation finding that guards in Unit 5B regularly deprived inmates of restroom
access as a means of discipline). In Graham v. Fries, plaintiff inmate sued defendants, prison
officials, claiming, among other things, that his denial of use of the toilet for several hours
amounted to the wanton infliction of pain; at trial, the jury found for plaintiff. See 1996 WL
1057212, at *8 (E.D.N.Y. Oct. 16, 1996). The court subsequently denied defendants’ post-trial
motion for judgment as a matter of law, holding that:
a jury properly could have found, given the testimony and reasonable inferences that may be drawn therefrom, that denying Graham the use of a toilet for several hours was a wanton and unnecessary infliction of pain. See Lamb v. Cade, 51 F.3d 227 (8th Cir. 1995) (holding that denying pre-trial detainee opportunity to use the adequate toilet facilities violated 42 U.S.C. § 1983). While Graham did not testify that he experienced pain from these conditions, he testified that after several requests to use a toilet were ignored, he “couldn’t hold it no more” and urinated on the floor. . . Viewing the evidence in the light most favorable to Graham, the jury could have drawn the reasonable inference that Graham suffered from the wanton infliction of unnecessary pain and that access to a toilet at least once ever few hours is one of the “minimal civilized measures of life’s necessities.” Finally, the jury could reasonably have found that these corrections personnel were deliberately indifferent to Graham’s pain in light of his numerous requests to use the bathroom.
Id. Because ODYS has conducted an internal investigation confirming that Building 5 inmates
are often deprived of bathroom access as a disciplinary measure, and, therefore, forced to urinate
in other recepticals, i.e. latex gloves, the Court finds T.M.’s assertions that he suffered from
unconstitutional conditions of confinement while being housed at ODYS amount to a
nonfrivolous claim.
ii. Whether T.M. Suffered an Actual Injury
In bringing his backward-looking claim, T.M. must also show that he suffered an actual
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injury by being denied court access to bring his nonfrivolous unconstitutional conditions of confinement claim. In essence, T.M. must show that by being denied access to a lawyer, his ability to bring a legal claim asserting that he was being housed under unconstitutional conditions was lost.
In his affidavit, T.M. states that he could have “used an attorney to help [him] get information about the investigation” of his assault claim. See Defs.’ Ex. 5, T.M. Aff. ¶¶ 12-13 Further, he asserts that he wanted an attorney “so [he] could learn about [his] rights regarding what had happened to [him].” See id. Defendants counter, however, that T.M. never evidenced an intent to pursue an unconstitutional conditions of confinement claim to Mathews. See Dep. Mathews. The Court notes, however, that in January, during Attorney Davis’ initial meeting with T.M., Mathews left the room after introducing them. See Dep. Mathews, at 73, lines 1-3. Thus, Mathews cannot be sure of what Davis and T.M. discussed in regards to his case.19 At that point in time, T.M. thought Davis was taking his case,20 and, accordingly, a question remains as to whether during their conversation, he mentioned his desire to bring an unconstitutional conditions of confinement claim against ODYS. Hence, viewing the facts in the light most favorable to Plaintiffs, T.M. has established a question of material fact as to whether his denialof-access to an attorney to assist him in bringing his unconstitutional conditions of confinement claim caused him an actual injury, sufficient to survive Defendants’ Third Motion for Summary Judgment.
19There is no testimony on the record regarding the conversation occurring between T.M. and Attorney Davis in January.
20T.M. was not informed until mid-March 2005 that Davis would not represent him, and he maintains that, until that time, he thought Davis had taken his case.
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iii. Whether T.M. has Identified a Unique Remedy Though T.M. has pled facts showing both that he has a nonfrivolous underlying unconstitutional conditions of confinement claim, and that Defendants’ actions caused him actual injury, his standing to bring his backward-looking denial-of-access claim fails in that he has not shown that he can obtain a remedy in pursuing his backward-looking claim that he could not receive in any other litigation. As T.M. has been released from ODYS custody, he cannot be awarded injunctive relief to remedy any alleged unconstitutional conditions of confinement. Because he cannot establish that there is a reasonable likelihood that the allegedly wrongful acts will recur as to him, any such injunction would be moot as to T.M.21 Thus, all that remains to compensate T.M. for his backward-looking denial-of-access claim is money damages. Should he choose, T.M. could pursue money damages for his claim in federal district court. In fact, it is undisputed that he is already pursuing such relief for his assault claim. As the Supreme Court noted in Christopher, there is “no point spending time and money to establish the facts constituting denial-of-access” when T.M. would end up just as well after litigating a simpler case without the denial-of-access element in federal court. See 536 U.S. at 414-15. Because the Court finds that T.M. has no standing to bring his backward-looking denial-of-access claim, the remainder of this Court’s Opinion pertains only to T.M.’s forward-looking claim requesting declaratory and injunctive relief based on his assertion that ODYS denied him access to an attorney to assist him in
21It is notable that after the October 14, 2004 incident, T.M. was moved from Unit 5B to Unit 2D, where inmates have access to their own toilets. In moving him, ODYS voluntarily ceased their allegedly unconstitutional actions as to T.M., arguably mooting the need for T.M. to pursue injunctive relief. As discussed supra, at oral argument, Defendants’ counsel also asserted that ODYS relocated every Unit 5B inmate after the incident.
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pursuing his assault claim. B. Mootness
Finding that T.M. has standing to pursue his claim, this Court must now consider Defendants’ argument that circumstances occurring since the filing of the Second Amended Complaint have rendered T.M.’s claim moot. As the Court discussed supra, the United States Constitution limits the jurisdiction of federal courts to matters that present actual “cases” or “controversies.” See U.S. Const. art. III, § 2, cl. 1. A case becomes moot “when the issues presented are no longer live or parties lack a legally cognizable interest in the outcome.” See Cleveland Branch, NAACP, 263 F.3d at 530 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In essence, the mootness doctrine posits that cases, which, due to changed circumstances, can no longer impact the interests of the litigants, may not be adjudicated in the federal courts. See DeFunis v. Odegaard, 416 U.S. 312 (1974) (plaintiff’s case challenging the constitutionality of a state law school’s admissions process was found moot; plaintiff was nearing completion of his final year in law school when the case reached the United States Supreme Court for review, and the Court found that its decision would no longer affect his interests).22
Defendants assert that T.M.’s denial of court access claim is moot because: (1) as of April 2006 when Doughten filed suit on T.M.’s behalf, ODYS had provided T.M. with the relief he seeks; (2) as of January 2006, T.M. was discharged from parole, terminating the juvenile
22The Supreme Court has repeatedly described mootness as, “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” See, e.g., Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167, 212 (2000); United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980).
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Court’s jurisdiction for his commitment; and (3) now that T.M. is an adult, should he commit a felony, he will be confined to the adult system, and, therefore, is no longer under the control of ODYS. See Defs.’ Supplemental Memorandum at 16-18. Plaintiffs counter that T.M.’s claims fall under both of the two major exceptions to the mootness doctrines – (1) the “capable of repetition yet evading review” doctrine, and (2) the “voluntary cessation” doctrine.
1. Capable of Repetition Yet Evading Review The Supreme Court recognizes an exception to mootness in cases that are “capable of repetition, yet evading review.” See Murphy v. Hunt, 455 U.S. 478 (1982). The Court has explained that, “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (emphasis added); see also, Sosna v. Iowa, 419 U.S. 393 (1975) (class action challenging a state's durational residency requirement for dissolution of a marriage was not rendered moot by the fact that the class representative subsequently fulfilled the residency requirement; state officials would undoubtedly continue to enforce the requirement against other class members and yet, because of the passage of time, no single challenger would remain subject to its restrictions for the period necessary to see a lawsuit to its conclusion). It is undisputed that T.M., who is currently nineteen years old,23 is no longer a minor.
23T.M. was born on September 16, 1986, and he will be twenty years old on September 16, 2006. See T.M.’s Dep. at 6, line 65.
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Further, it is undisputed that T.M. was discharged from parole on January 11, 2006, releasing him from the control of ODYS. See Defs.’ Supplemental Memorandum at 17; OHIO REV. CODE § 5139.10 (the control by the department of youth services of a child committed as a delinquent shall cease when the child is either discharged from probation and/or reaches twenty-one years of age).
Defendants assert that the capable of repetition yet evading review exception does not apply to T.M. because his commitment has been formally terminated. There is substantial precedent establishing that a prisoner’s claims for declaratory or injunctive relief are mooted when that prisoner is no longer incarcerated. See, e.g. City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983); O’Shea v. Littleton, 414 U.S. 488, 493-96 (1974); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (a prisoner’s claims for injunctive relief become moot when that prisoner is no longer incarcerated); Mezo v. Taylor, 1993 U.S. App. LEXIS 32954, at *2-3 (6th Cir. Dec. 15, 1993) (“Mezo is no longer incarcerated at DCDC, and there has been no showing of a reasonable expectation that he will again be a prisoner in that facility. His claims for declaratory and injunctive relief are therefore moot.”). Plaintiffs counter that though T.M. has been released from parole and is no longer a juvenile, because Ohio’s juvenile courts retain jurisdiction over offenses committed while the accused was under the age of 18, it is possible that T.M. will return to ODYS custody. See Pls.’ Opp. at 30.
In Murphy v. Hunt, Hunt, a plaintiff-prisoner, filed a civil rights complaint seeking declaratory and injunctive relief with respect to the denial of his bail under a provision of the Nebraska Constitution prohibiting bail in cases involving violent sexual offenses. See 455 U.S. at 478. The district court dismissed Hunt’s case, but, on appeal, the Eighth Circuit reversed the
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earlier dismissal, explaining that because the Nebraska Supreme Court might overturn each of
Hunt's three convictions, and because Hunt might then once again demand bail before trial, “the
matter fell within th[e] class of cases ‘capable of repetition, yet evading review.’” 455 U.S. at
478. Nonetheless, the Supreme Court disagreed, and found the mootness exception inapplicable
because, though a mere possibility existed that Hunt’s convictions might be overturned and that
he could, once again, seek pretrial bail, Hunt had not presented factual evidence showing that it
was reasonable to suspect that all three of his convictions would be overturned on appeal. Id.
The Court explained,
[t]he Court has never held that a mere physical or theoretical possibility [i]s sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party. We detect no such level of probability in this case. All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt's eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a “reasonable expectation” or “demonstrated probability” that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt's convictions will be overturned on appeal. Hunt's willingness to stipulate that the proof against him was “evident” does not encourage us to believe otherwise.
See id. at 483 (internal citations omitted).
In the instant case, Plaintiffs assert that the capable of repetition yet evading review
doctrine applies to T.M. because, though he was discharged from parole, “it is still possible for
the state to prosecute T.M. for offenses committed while he was a minor.” See Pls.’ Opp. at 30.
Plaintiffs, however, have presented no evidence that T.M. committed any other offenses while he
was under 18. In fact, they note that, “T.M. does not admit or concede that any such offenses
took place, but merely makes the point that Ohio’s state laws permit the government to initiate
prosecutions in juvenile court against individuals who are no longer juveniles.” See id. at 30,
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n.15. Just as the claims by Hunt that the capable of repetition yet evading review exception applied based on a remote possibility that all three of his previous convictions would be overturned, here, Plaintiffs may not rest on their vague assertions that T.M. might get haled back into juvenile court for an unspecified previous offense. Such claims do not amount to evidence that there was a reasonable expectation that T.M. might, once again, be denied access to the courts by ODYS. Thus, the capable of repetition yet evading review exception to the mootness doctrine is inapplicable to T.M.
2. Voluntary Cessation Doctrine As noted supra, in John L., the Sixth Circuit discussed the scope of the right of access to the courts for juvenile prisoners. See John L., 969 F.2d at 233. John L. established that in order to provide juvenile prisoners with meaningful court access, states must develop programs that allow them to consult with attorneys in pursuing potential federal claims. Id. at 237. Applying the tenets of John L., since on or about October 2004, ODYS asserts that it has undertaken wholesale reform of its legal assistance program. Thus, Defendants now argue that ODYS’ voluntary cessation of its allegedly unconstitutional actions moots T.M.’s claim. The Court is aware that with respect to several of the allegedly unconstitutional aspects of the ODYS legal assistance program, Defendants have instituted changes in anticipation of trial, have allegedly attempted improvements, and have presented evidence of planned future changes or improvements. See supra note 5. “It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952). As a general proposition, the “voluntary cessation of
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allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. . . The defendant is free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (footnote omitted). Thus, although Defendants’ efforts to ameliorate or to correct in anticipation of trial various alleged deficiencies at ODYS are commendable, they do not deprive this Court of the power to order injunctive and/or declaratory relief, where otherwise proper, unless: “(1) it can be said with assurance that ‘there is no reasonable expectation’ that the alleged violation[s] will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting W.T. Grant Co., 345 U.S. at 633). Defendants bear a “heavy burden” of showing that both of the above conditions have been satisfied in order to render moot any allegedly deficient condition. County of Los Angeles, 440 U.S. at 631. The rule is meant to protect a party from an opponent who seeks to defeat judicial review by temporarily altering its behavior. See City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 (2001) (citations omitted).
There is, however, a “difference in the way voluntary cessation of illegal activities is treated when the offending parties are government officials rather than private parties.” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990). “Cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties. See id. According to one commentator, such self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.” Id. (citing 13A WRIGHT, MILLER & COOPER FED. PRAC. & PRO. § 3533.7, at 353 (2d ed. 1984)). Moreover, the Supreme Court has explained that in the context of prisons, courts “encourage local
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experimentation’ in various methods of assuring access to the courts,” noting that courts should “leave it to prison officials to determine how best to ensure” such access. Lewis, 518 U.S. at 352, 356 (suggesting as an example in adult prisons the replacing of law libraries with “minimal access to legal advice and a system of court-provided forms”) (citations omitted).
This Court previously discussed the voluntary cessation doctrine in its September 29th Opinion. See J.P., 2005 WL 2405993, at *12-17. After considering three factors – (1) the likelihood of recurrence, (2) the attempted interim relief, and (3) redressability – this Court held that the voluntary cessation doctrine mooted J.P., S.J. and D.B.’s claims. Id. This Court found that Defendants met their burden of showing that there was no reasonable expectation that the denial-of-access to the courts would reoccur with regard to named plaintiffs J.P. and S.J., explaining that after both inmates had been released from the ODYS correctional facility, the Court could “not assume” that they would be incarcerated again in the future. See id., at *13. Further, though plaintiff D.B. remained incarcerated, this Court held that because “Defendants [had] made significant changes to their legal assistance policy that will affect all juveniles incarcerated in facilities operated by ODYS,” and because “Plaintiffs offer[ed] no evidence . . . that would tend to show that the changes made to the legal assistance program are in any manner deficient,” Defendants met their burden of showing that their prior allegedly unconstitutional conduct was unlikely to recur against D.B. or the other named plaintiffs. Id. Now, months later, the Court must again consider whether ODYS’ failure to provide incarcerated youth with access to the courts is likely to recur, and whether the interim relief provided by ODYS eradicated the effects of its failure to provide incarcerated youth with access to the courts.
In April 2006, T.M. was provided with an attorney, Doughten, and his assault claim is
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currently pending in federal court. Therefore, as demonstrated in this Court’s capable of exception yet evading review analysis, it is unlikely that ODYS’ failure to provide T.M. with access to the court system will recur. Nonetheless, the Court revisits its previous conclusion that in making interim changes, “Defendants have met their burden of establishing that their actions ‘made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” See J.P., 2005 WL 2405993, at *16.
At first glance, it appears that Plaintiffs have presented evidence undercutting this Court’s previous holding that ODYS’ allegedly unconstitutional actions have been eradicated by the changes to its legal assistance program.24 Though ODYS hired contract attorneys, Mathews, and later, Hicks, to meet with and aid prisoners in determining whether their potential complaints had merit, neither Mathews nor Hicks has ever personally represented anyone other than one of the named plaintiffs in court. Mathews Dep. at 17-19. Further, Mathews has not represented any youth in filing pro se complaints, and Hicks has represented only M.M. Mathews Dep. at 17-19; Hicks Dep. at 65. This Court finds it suspect that beyond the named plaintiffs, there is no single other youth desiring to take nonfrivolous legal action against the system among the approximately 1,800 ODYS youth; hence, it appears that Defendants’ remediation efforts, while assisting named plaintiffs, have not gotten to the heart of the problem.
Second, although the minute details of Mathews’ efforts to retain counsel for T.M. between March 2005 and April 2006, are in dispute, the parties agree that it was over one full
24Due to this Court’s stay on discovery regarding the new ODYS program, Plaintiffs have been unable to conduct significant discovery regarding the extent of ODYS’ reforms. Plaintiffs allege, however, that despite ODYS’ remediation attempts, juvenile prisoners continue to be denied their constitutional rights to court access, and they ask that the Court consider re-opening discovery so they can look more closely at these issues.
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year before T.M. was referred to Doughten and able to file a formal legal complaint regarding the October 14, 2004 assault. See Kinsley Aff., ¶¶ 5-8. Defendants repeatedly argue that Mathews and Hicks tried to contact T.M. both by mail and by phone, but such arguments are speculative especially in the face of T.M.’s assertions that he at no point relinquished his assault claim. Under the terms of Mathews’ contract with ODYS, if he cannot retain an outside attorney for a potential plaintiff, he must aid them in filing a pro se complaint. Thus, where T.M. desired to pursue what has been adjudged a nonfrivolous claim, it is unclear why Mathews continued to consult outside counsel without ever offering T.M. the option of bringing a pro se lawsuit.
Finally, despite the fact that when Mathews was initially hired as the ODYS contract attorney he traveled “to each [ODYS] institution on a bi-weekly basis to talk to the inmates about issues related to the conditions of their confinement,” Plaintiffs assert that Hicks, Mathews’ replacement, does not conduct these routine visits at certain facilities. See J.P., 2005 WL 2405993, at *14. Hicks’ failure to visit potential plaintiffs is in direct violation of the John L. mandate that, due to juvenile prisoners’ lack of knowledge of their legal rights and the legal system, the law requires that they be provided with direct access to attorneys.25 See 969 F.2d at 233.
The above evidence reveals the possibility that a number of deficiencies remain in the new ODYS legal assistance program. Further, this Court is persuaded by the reasoning
25Plaintiffs also assert that ODYS’ system remains flawed because it does not provide juvenile prisoners with the opportunity to seek injunctive relief. Though the Court notes that it may be possible that Plaintiffs face unlawful conditions which, due to their relatively short stays at ODYS facilities, can only be remedied by injunctive relief, as a matter of law, the pursuit of injunctive relief is beyond the scope of what John L. requires for a juvenile to receive meaningful access to the legal system. See 969 F.2d at 233.
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employed in Cody v. Hilliard, 599 F. Supp. 1025, 1062 (D. S.D. 1984) and Skinner v. Uphoff
234 F. Supp. 2d 1208 (D. Wyo. 2002), both cases involving a court’s finding that the
government’s voluntary cessation of allegedly unconstitutional activities at state prisons did not render a prisoner-plaintiff’s claims moot.26
In Cody v. Hilliard, plaintiffs, a class of prison inmates confined in the South Dakota
State Penitentiary (“SDSP”) and the Women’s Correctional Facility (“WCF”) at Yankton, South
Dakota brought a class action suit challenging the constitutionality of numerous conditions and
practices of confinement at the two prisons under the First, Fifth, Sixth, Eighth, and Fourteenth
amendments to the United States Constitution. See 599 F. Supp. at 1026. Plaintiffs sought
declaratory and injunctive relief. Id. at 1027. After a seven-day trial where various experts on
both sides presented testimony, the district court concluded that most of plaintiffs’ claims were
supported by sufficient evidence. Id. The court found that though the prison administrators
continued to make “dedicated good faith efforts to improve the conditions of confinement at the
prison[s],” they had failed to meet their burden of showing that these improvements had
eradicated any and all of plaintiffs’ allegations. Id. at 1062. The court reasoned,“[t]his court is
well aware of the financial restraints placed on defendants, but the good will shown by them
26Plaintiffs also rely on EEOC v. Peterson, Howel & Heather, Inc. as a case in which a court found that the government’s voluntary cessation of allegedly unconstitutional activities did not render plaintiff’s claim moot. See 702 F. Supp. 1213, 1227 (D. Md. 1989) (defendant’s post-complaint actions did not remedy the effects of past discrimination and did not render plaintiffs’ claims moot). EEOC, however, is easily distinguishable in that it is a Title VII case, not a prison case. See 702 F. Supp. at 1213. Where courts are hesitant to scrutinize prison administrators, “[i]n the context of a Title VII action, the quality and permanence of nascent Title VII compliance efforts conducted in response to litigation must be carefully scrutinized by courts.” Id. at 1227 (emphasis added). EEOC, therefore, involves a less deferential standard of review than is required in the case sub judice. See 702 F. Supp. 1213.
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cannot serve as a defense to a failure to provide minimum constitutional standards. If the state wishes to hold the inmates in institutions, it must provide the funds to maintain the inmates in a constitutional manner.” Id. Thus, holding that the “totality of conditions of confinement at the SDSP . . . subject[ed] the plaintiff class to cruel and unusual punishment in violation of the [E]ighth and [F]ourteenth amendments,” the Cody court ordered defendants to file a proposed plan to change or modify the conditions of confinement, to be approved by the court. Id. at 1062.
Cody stands for the notion that where a prisoner-plaintiff establishes a possible constitutional violation, and where the prison system has failed to ameliorate that potential constitutional violation on its own, a court may step in to ensure that the violation does not and cannot continue. Although Plaintiffs’ single denial-of-access is not as shocking as the Cody plaintiffs’ twenty-page list of unconstitutional conditions of confinement, it is the substance of that claim that matters, not its scope. Accordingly, though Cody involved a certified class action, approximately twenty pages of specific allegations of unconstitutional conditions, and protracted litigation which allowed the Cody court to base its decision on a substantial record, the Court finds that, here, as in Cody, Plaintiffs’ allegations concerning Defendants’ continuing violations of their constitutional rights warrants this Court’s interference.
In Skinner, an inmate serving a sentence in the Wyoming State Penitentiary (“WSP”) sued on his own behalf, and on behalf of a certified class of current and future inmates of the prison, alleging that the “policies, practices, and customs of Defendants place the inmates at the risk of unprovoked assault, bodily injury, and death at the hands of other inmates.” See 234 F. Supp. 2d at 1210. When he arrived at WSP, he was not afforded his request of protection by the
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prison administrators and wound up being beaten so badly by his fellow inmates that he spent five weeks in the prison infirmary. Id. at 1211. Plaintiff claimed that WSP pursued “policies and customs that created the substantial risk of bodily harm to inmates at WSP and that evidence[d] a deliberate and gross failure to supervise their subordinates.” Id. at 1211-12. Further, plaintiff submitted substantial evidence in support of his assertions, including evidence that though the prison had a Serious Incident Review (“SIR”) policy under which prison officials were directed to conduct an investigation after the occurrence of an assault, in the six years since that policy had been instituted, there had been between one hundred to three hundred assaults, and only three investigations. Id. at 1214. In ruling on various motions by both parties, the court found defendants’ argument that the new interim WSP policies, including the SIR policy, had ameliorated the alleged problems to be meritless, and held that plaintiff had established that he could show a likelihood of a continuing violation necessary for declaratory and injunctive relief at trial. Id. at 1216.
The Skinner court found that “[r]egardless of what claims [d]efendants make now regarding their contrition and resolve to improve in the future, they have established a clear pattern of deliberate indifference. . . New and improved policies are meaningless if they are not followed. Up to this point, there is simply no evidence that such good-faith supervision, training, and enforcement efforts are underway.” Skinner, 234 F. Supp. 2d at 1215 (emphasis added). Although in this case, Defendants’ efforts to improve the ODYS legal assistance program may not echo the Skinner defendants’ “deliberate indifference,” until Defendants successfully eliminate the alleged constitutional violations taking plus at ODYS facilities, their policy changes, like those in Skinner, may be considered “meaningless.”
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Based on the above analysis, it appears that at least one year of “experimentation” later,
Defendants’ attempted reforms do not provide ODYS inmates with meaningful court access.
Further, both Cody and Skinner provide support for the notion that where prison administrators
have not prevented a prisoner’s constitutional rights from being impinged upon, courts may step
in as an arbiter of justice. Even so, this Court is aware of the Supreme Court’s directive in
Lewis, limiting the “intrusion” of the federal courts into issues of prison administration:
It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur. Of course, the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm. But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subjected to a governmental institution that was not organized or managed properly.
See Lewis, 518 U.S. at 349-50. The Supreme Court claims that deference to the prison
administration is necessary,
if ‘prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations.’ Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.
Id. at 361 (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128
(1977)).
Accordingly, balancing the Lewis directive against the real possibility that Defendants’
efforts to provide Plaintiffs with their right to court access has been ineffective thus far, the
Court finds that Plaintiffs have established that their case is worthy of judicial intervention.
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Though Plaintiffs have not established definitively that Defendants’ efforts at reform have been wholly unsuccessful, they have certainly demonstrated that a question of material fact exists as to whether Defendants have met their “heavy burden” of showing that there is “no reasonable expectation that [the denial-of-access] will be repeated.” Id. at 633. Thus, while noting the “strong considerations of comity that require . . . giving States the first opportunity to correct the errors made in the internal administration of their prisons,” this Court preserves the issue of voluntary cessation for trial.
C. Whether T.M. Failed to Exhaust His Available Administrative Remedies Finding both that T.M. has standing and that T.M.’s claims are not moot, the Court must now consider whether T.M. exhausted his administrative remedies. The Prison Litigation Reform Act (“PLRA”) requires district courts to screen prisoner complaints in order to dismiss those that are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See Jackson v. Gill, 92 Fed. Appx. 171, 172 (6th Cir. 2004) (citing 28 U.S.C. § 1915A(b)). Accordingly, the PLRA includes a strict exhaustion of administrative remedies clause, which states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “The PLRA’s exhaustion requirement applies to all inmate suits about prison life, [and] an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” See Porter v. Nussle, 534 U.S. 516, 523-24 (2002); Booth v. Churner, 532 U.S. 731, 741, n.6 (2001). Further, the requirement is not discretionary and permits no exceptions. See
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Pack v. Martin, 2006 WL 772903 at *4 (6th Cir. Mar. 27, 2006) (citing Porter, 534 U.S. at 516). In all cases, the plaintiff-prisoner has the burden of proving that a grievance has been fully exhausted and must attach documentation to the complaint as proof. Baxter v. Rose, 305 F.3d 486, 488 (6th Cir. 2002); but see, Boyd v. Corrections Corp. of Am., 380 F.3d 989, 995 (6th Cir. 2004) (a “prisoner-plaintiff may bear his pleading burden either ‘by attaching a copy of the applicable administrative dispositions to the complaint or, in the absence of written documentation, describ[ing] with specificity the administrative proceeding and its outcome. . .’”).
The Sixth Circuit has interpreted the PLRA’s exhaustion requirement as satisfied where a plaintiff files a grievance that both grants the prison “fair notice” of the claim and appeals the denial of the grievance to the highest possible level. Pack, 2006 WL 772903, at *4 (citing Thomas v. Woolum, 337 F.3d 720, 727, 733 (6th Cir. 2003)). To give fair notice of a claim, a plaintiff must allege “specific acts of mistreatment or misconduct, and identify the responsible party.” Id. (citing Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003) (noting that “it is sufficient for a court to find that a prisoner’s [grievance] gave prison officials fair notice of the alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made against a defendant in a prisoner’s complaint”). As the Sixth Circuit explained in Thomas, although under the fair notice standard, the prison must have the first opportunity to resolve a plaintiff’s problems, if the prison declines to address the problems for procedural reasons, the plaintiff should not be penalized. Id.; Thomas, 337 F.3d 720, 734 (noting that if the prison is provided with fair notice of a plaintiff’s problems and declines to address the problems for procedural reasons, the plaintiff should not be penalized). Moreover, the PLRA only requires
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exhaustion of available remedies. Pack, 2006 WL 772903, at *5. While this requires plaintiffs
to use grievance procedures even where they believe the procedure to be ineffectual or futile, it
does not require a plaintiff to use remedies which are not “reasonably available.” Id.; Boyd, 380
F.3d at 993 (concluding that administrative remedies are exhausted when prison officials fail to
respond timely to a properly filed grievance).
Though ODYS has extensive written material for youth and ODYS administrators setting forth the details of the ODYS grievance process,27 “[v]ery few courts have addressed what
[specific] things an administrative grievance must contain. . . .” See Strong v. David, 297 F.3d
646, 649 (7th Cir. 2002). It is undisputed, however, that though some circuits, such as the
Seventh Circuit, require prisoners to comply with a simple “notice pleading”-type standard, the
Sixth Circuit is more strict, demanding that a prisoner’s grievance “name each person who
ultimately becomes a defendant.” See Curry v. Scott, 249 F.3d 493, 504-05 (6th Cir. 2001); but
see, Strong, 297 F.3d at 649-50 (noting that in the Seventh Circuit, a grievant “need not lay out
the facts, articulate legal theories, or demand particular relief. All the grievance need do is
object intelligibly to some assorted shortcoming.”).
Defendants assert that because T.M. never filed a grievance specific to his claim that he
27See “Youth Grievance Process,” ODYS Policy No. 304.03 (Aug. 1, 2005) (the “Policy”). The Policy provides a step-by-step directive for administrators dealing with inmate grievances. See ODYS Policy No. 304.03 §§ IV.B-E (“Procedures”). Further, the Deputy Director, the Division of the Chief Inspector, the Deputy Director of Legal Services, the Deputy Director of Treatment and Rehabilitation Services, and the Deputy Director of Corrections annually review the Policy. Id. § VI (“Monitoring”). In order to ensure that ODYS inmates are aware of and understand the Policy, Youth are provided with the following Policy attachments: (1) Policy No. 304.03.A. - “Youth Grievance Handbook”; (2) Policy No. 304.03.B. - “Letter of Understanding”; and (3) Policy No. 304.03.C - “Youth Grievance Form.” See id. § VI (“Monitoring”).
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was denied access to the court system, under the strictures of the PLRA’s exhaustion
requirement, he cannot now pursue his forward-looking denial-of-access claim. See Defs.’ Supp.
Memo at 14, n.7; Decl. Jeffrey L. Rollins, Human Services Program Administrator for MJCF at
1-2.28 Plaintiffs counter that because in filing his now-exhausted assault grievance, T.M.
requested that his claim be resolved “in court,” he successfully complied with the PLRA’s
requirement that he put Defendants on notice that he wanted access to the courts.
In their Motion in Opposition, Plaintiffs argue that when the underlying conditions
included in a grievance remain the same, prisoners who have exhausted one full round of the
grievance process need not file subsequent grievances about the same issue. See Aiello v.
Litscher, 104 F. Supp. 2d 1068, 1074 (W.D. Wisc. 2000) (finding that plaintiffs’ failure to use
the external administrative procedure as well as the internal procedure under the Wisconsin
Administrative Code did not constitute a failure to exhaust his administrative relief); Lewis v.
28Some courts have held that a certified class of prisoner-plaintiffs satisfy the PLRA’s administrative exhaustion requirement through “vicarious exhaustion,” that is, when one or more class members has exhausted his administrative remedies with respect to each claim raised by the class, all class members are considered to have exhausted their claims. See, e.g., Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (finding that when “one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class,” vicarious exhaustion applies); see also Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998) (noting that the “doctrine [of vicarious exhaustion] is only available to plaintiffs in a classaction lawsuit, where a class is certified pursuant to Fed.R.Civ.P. 23(b)(2).”). The courts reasoned that the rule “advances the purpose of administrative exhaustion,”and reduces the burden on prisoners. Id. Further, courts have found that in these types of cases, “where the composition of the class is subject to constant change beyond the class members’ control, it could be extraordinarily difficult for all class members to exhaust administrative remedies before filing suit.” Id.; see Jones ‘El v. Berge, 172 F. Supp. 2d 1128, 1133 (W.D. Wis. 2001) (“[T]he transfer of just one additional inmate to the institution intermittently would prevent a class action suit from ever being filed. . .”). The Court notes, however, that, in the case sub judice, because the Court denied class certification in its previous opinion, and because T.M. is the sole remaining named Plaintiff, Plaintiff cannot rely on the “vicarious exhaustion” doctrine to save T.M.’s claims.
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Washington, 197 F.R.D. 611, 614 (N.D. Ill. 2000) (finding that “plaintiffs have done enough if they have exhausted their remedies with regard to their placement in Category IV in part because of the allegedly illegal conditions in effect there. They need not have done so with every separate beef they have with the operation of Category IV.”); Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (inmate who had been repeatedly assaulted “could not have been expected to file a new grievance every fifteen days, or every time he was assaulted” and that, in such circumstances, prisoners “need not continue to file grievances about the same issue”).
Nonetheless, the cases upon which Plaintiffs rely fail to support their argument in that none of them presents the same factual scenario as T.M.’s case. First, unlike the prisoner in Aiello, T.M.’s case has nothing to do with a distinction between internal or external procedure. See 104 F. Supp. 2d at 1074. Second, unlike the prisoners in Lewis and Johnson whose multiple grievances all targeted the same issue, T.M.’s second claim, though related to his assault claim, raises a new issue – denial-of-access. 197 F.R.D. at 614; 385 F.3d at 521. Though it is true that “if a prisoner were complaining about the frigid conditions of his cell, it would make little sense for that prisoner to be required to continually file grievances stating that his cell remains cold,” the analogy would only be applicable to T.M.’s situation if he were continually filing multiple assault grievances. See Pls.’ Opp. at 13.
Thus, finding Plaintiffs’ initial arguments unconvincing, the Court considers the following question: Does a juvenile inmate who puts prison administrators on notice that he wishes to have an administratively exhausted claim resolved “in court,” exhaust his remedies for a denial-of-access claim when it is undisputed that at the time he grieved, the prison had no mechanism to provide its juvenile inmates with attorney access, and, therefore, access to the
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courts? The Court has thoroughly reviewed case law relating to the PLRA’s exhaustion requirements, and it is evident that the precise question is one of first impression in the federal courts.
As a threshold consideration, the Second Circuit’s analysis in Brownell v. Krom is instructive. See 446 F.3d 305, at 311, n.1 (2d Cir. May 3, 2006). In Brownell, plaintiff, Brownell, an inmate at Shawangunk Correctional Facility (“Shawangunk”), sued defendants, prison administrators, under 42 U.S.C. § 1983, alleging that the defendants had denied him his right of access to the courts by “intentionally losing his legal documents and other personal items while transferring him between correctional facilities.” See id. at 307. According to Brownell, in the course of relocating him to two different facilities, prison guards lost eleven bags of his personal property. See id. at 306.
Soon after Brownell realized that his property was missing, he filed a “Lost Property Reimbursement Claim,” which prison administrators denied for “lack of documentation.” Id. at 308. Though the New York Department of Correctional Services (“NYDOCS”) allows prisoners the opportunity to appeal a denial of their lost property claims to either the facility superintendent or the central office, instead of following the appeals process, Brownell filed a separate “Inmate Grievance Complaint” challenging said denial. Id. The grievance included a list of all of Brownell’s missing property as well as Brownell’s request that the facility find his lost property “via a thorough investigation.” Id. at 309. Prison administrators denied Brownell’s grievance and recommended that Brownell file a second “Lost Property” claim. Id. It was undisputed that Brownell successfully exhausted the NYDOCS administrative grievance process. See id.
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Brownell subsequently filed suit in federal court, alleging that the defendants had intentionally failed to document and account for his property during his facility transfers, and arguing that these actions were in retaliation for his possession of unauthorized legal documents, which he intended to use to file a habeas petition based upon alleged “prosecutorial misconduct.” Brownell v. Krom, 2004 WL 2516610, at *2 (S.D.N.Y. Nov. 8, 2004). The district court granted summary judgment for defendants, explaining that Brownell had not properly pursued the administrative procedures to redress the conduct alleged in the complaint because during the administrative process, Brownell had failed both to name the defendants and to grieve separately that he was being denied access to the courts. Id. at *6.
On appeal, the Second Circuit reversed the district court’s decision and remanded the case to the district court. Brownell, 446 U.S. at 313. The Second Circuit held that “special circumstances” justified Brownell’s noncompliance with the PLRA, namely the prison officials’ error in refusing to investigate the circumstances underlying Brownell’s lost property claim. Id. The court also found that after Brownell had conducted his own investigation to determine the whereabouts of his lost property, prison officials had erred by failing to inform him that he could raise any new facts he discovered in his administrative proceedings. Id. Further, though the district court had found that Brownell’s failure to claim separately that he was denied his right to access to court in his initial grievance rendered that claim unexhausted, the Second Circuit disagreed, noting,
[w]e do not, however, agree with the district court that Brownell’s failure to claim in his grievance a denial of his right of access to the courts renders the claim before us unexhausted. . . As a general matter, a prisoner need not articulate legal theories in his grievance to exhaust administrative remedies under the PLRA. See id. at 311, n.1. The Second Circuit’s rationale provides support for the notion that even
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under the strictures of the PLRA, there may be “special circumstances” where prisoner-plaintiffs
are afforded flexibility sufficient to meet the goals of the PLRA.
Moreover, the Sixth Circuit’s treatment of a prisoner’s untimely claims in Thomas v.
Woolum demonstrates that the PLRA’s exhaustion requirements should not be used to frustrate
legitimate prisoner claims. See 337 F.3d at 720. In Thomas, plaintiff Thomas, a state inmate,
sued one corrections officer for assault and three other officers for allegedly failing to protect
him from being beaten. See id. The district court dismissed Thomas’ failure-to-protect claims
against the three officers for failure to exhaust. Id. On appeal, the Sixth Circuit affirmed the
district court’s dismissal, explaining that Thomas’ complaint raised new claims, which he had
not set forth in his initial grievance. Id. at 734.29 The Thomas court found, however, that
Thomas was unfairly penalized when the district court declined to address Thomas’ exhausted
claims because they were procedurally “defective,” i.e. untimely. Id. at 725-26. The court
reasoned:
29The Sixth Circuit explained,
Thomas argues that between his official grievance form and his cooperation with the prison's Use of Force investigation, in which he specifically mentioned the presence of other officers who failed to protect him, he gave prison officials sufficient notice for them to address his concerns in the grievance process. True though that may be, our cases require more. Because Thomas made no reference to the issues involved in his failure-toprotect claim in his grievance, we must find that he failed to exhaust his administrative remedies with respect to the claims against Kepler, Starcher, and Waddell [the officers he alleges “failed to protect him”]. Thomas's grievance form does not offer the kind of information that our precedent requires for exhausting his claims against Kepler, Starcher, and Waddell. Thomas' grievance mentions neither the defendants themselves nor any facts suggesting that officers other than Woolum knew anything of the incident.
Thomas, 337 F.3d at 734. The Court notes that the above discussion is helpful to T.M. in that in consistently requesting an attorney, he, unlike Thomas, could be found to have offered “the kind of information” required for exhausting his claims.
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The exhaustion requirement is therefore a benefit accorded to state prisons, an opportunity to satisfy those inmate grievances the state wishes to handle internally. It is “an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” It is not, however, designed to permit state administrative timelines to handcuff the federal courts in adjudicating cases involving important federal rights. . . [B]y filing, . . . Thomas received the benefit of the potential that the state would hear his grievance . . . [and] the state received the benefit of dealing with the case internally if it so desired.
Id. at 726-27 (emphasis added). The court held that where defendants have “fair notice” of a
plaintiff’s claims but fail to respond, a plaintiff’s failure to follow proper procedure in filing his
grievance is not fatal to those claims. Under Thomas, then, the pivotal inquiry in assessing the
adequacy of a prisoner’s PLRA claim is whether prison officials had “fair notice” of that claim.30
In addition, this Court finds T.M.’s status as a juvenile inmate to be an integral element
to its exhaustion analysis. As established in John L., the Sixth Circuit has held that juvenile
inmates differ from adult prisoners in that their young age, their lack of experience with the
criminal system, and their relatively short period of confinement entitle them to greater
30Further, this Court also notes that the Sixth Circuit has recently overruled its 2004 decision in Bey v. Johnson, which adopted a “total exhaustion” regime for prisoners’ “mixed complaints.” See Spencer v. Bouchard, 2006 WL 1528876 (6th Cir. June 6, 2006) (citing Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005)). The “total exhaustion” rule authorizes dismissal without prejudice of a “mixed complaint,” containing both exhausted and unexhausted claims. See Bey, 407 F.3d at 806. In Spencer, the Sixth Circuit reconsidered the issue, and adopted the “partial exhaustion rule” under which a court may hear a prisoner’s exhausted claims, while dismissing without prejudice only his unexhausted claims. Id. at *3 (declaring that “the partial-exhaustion rule is the law of this circuit”) (citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6TH CIR. R. 206(c) (a later panel cannot overrule a prior panel’s published opinion)). Therefore, the Sixth Circuit’s previously strict interpretation of the exhaustion requirement, which punished prisoners who filed “mixed complaints” by dismissing their claims altogether, is no longer good law. This shift from a “total exhaustion” to a “partial exhaustion” rule is admittedly not tantamount to the Sixth Circuit’s adopting a “relaxed” view of the PLRA’s exhaustion rules. It does, however, provide support for the notion that where an inmate files multiple claims, his potentially meritorious claims will not be overlooked simply because he has not complied fully with proper administrative procedure.
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protection from the state. See 969 F.2d at 234 (noting that because of the young age and lack of knowledge, juvenile inmates must be afforded access to an attorney to allow them “meaningful access to the courts”). The Court explained that due to the myriad of confusing rules and policies inherent in prison administration, to hold otherwise would effectively impede juvenile inmates’ right to access. See Corpus v. Estelle, 551, F.2d 68, 70 (5th Cir. 1977) (states may not erect barriers that impede the right of access of incarcerated persons). By extension, T.M., as a juvenile inmate and a ward of the state, requires special attention and assistance from ODYS.
When, on October 16, 2004, T.M. first asked for resolution of his assault claim “in court,” as a juvenile who was unfamiliar with the legal system, he could not and did not know the legal ramifications of his demand. Specifically, he was unaware that under John L., his request for “court access” amounted to a request for an attorney. See 969 F.2d at 234. He knew only that he wanted his claim to be dealt with outside the realm of standard ODYS administrative procedures. Thus, as long as he had given ODYS “fair notice” of his request, it was then incumbent upon ODYS to meet his demand. Id. (citing Bounds, 430 U.S. at 822 (holding that prison officials must assure that inmate access to the courts is adequate, effective and meaningful)).
Defendants assert that T.M.’s request that his assault grievance be heard “in court,” failed to provide them with “fair notice” that he wanted court access. The Court, however, finds Defendants’ contentions to be disingenuous. First, it is undisputed that on December 15, 2004, when T.M. had still not been informed about how ODYS was handling his assault grievance, he wrote a follow-up letter to the Chief Inspector asking for an update. See Defs.’ Ex. 5, T.M. Aff. ¶ 13. Thus, assuming arguendo that his initial grievance did not provide ODYS with “fair
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notice,” T.M. re-asserted the same court access request in his follow-up efforts. Second, Defendants assert that from October 2004 until T.M.’s rentention of Doughten in April 2006, they consistently tried to meet his request for an attorney. Defendants cannot have it both ways. They cannot, on the one hand, argue that they were not “on notice,” while at the same time asserting that they had done all they could to provide T.M. with counsel.
Accordingly, this Court finds that T.M.’s failure to file a separate written denial-ofaccess is akin to a “procedural defect.” See Thomas, 337 F.3d at 720. Though he arguably failed to follow the technical requirements of ODYS’ procedures, ODYS still received ample notice that he wanted access to the courts. Under Thomas, such procedural defects are not fatal to a prisoner’s claim when the prison administrators, having fair notice, fail to respond. Id. Thus, in this case, where ODYS, having fair notice of T.M.’s request for court access, violated his legal rights, it is Defendants, not T.M., who should be held responsible. To find otherwise, would contravene John L.’s mandate providing special protection for juvenile prisoners.
Taking into consideration the foregoing case-law, in addition to T.M.’s status as a juvenile inmate, this Court finds that under the circumstances, T.M.’s request that his assault claim be resolved “in court” meets the PLRA’s administrative exhaustion requirements. Hence, finding that T.M. has exhausted his claims, this Court DENIES Defendants’ third motion for summary judgment.
V. CONCLUSION For the foregoing reasons, the Court finds that: (1) T.M. has standing to assert his forward-looking denial-of-access claim; (2) T.M. has no standing to assert his backward-looking denial-of-access claim; (3) Plaintiffs have failed to provide sufficient evidence to show that they
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are entitled to the “capable of repetition yet evading review” mootness exception; (4) Plaintiffs have raised a question of material of fact as to whether Defendants’ “voluntary cessation” of their allegedly unconstitutional behavior has mooted T.M.’s claims; and (5) by requesting that his “assault claim” be resolved “in court,” T.M. put Defendants on notice of his denial-of-access claim, and, therefore, exhausted his administrative remedies. Accordingly, the Court DENIES Defendants’ Third Motion for Summary Judgment, preserving T.M.’s forward-looking denial-ofaccess for resolution at trial.
Accordingly, this Court lifts its previously issued stay of discovery to allow Plaintiffs the opportunity to pursue an investigation into Defendants’ recent efforts to reform the ODYS legal access program. Moreover, though the parties have already fully briefed the issue of Class Certification, the Court orders Plaintiffs to file an Amended Motion for Class Certification to allow them the benefit of any new discovery material in support of that motion.
IT IS SO ORDERED.

DATED: July 6, 2006

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

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 J.P. v. Taft, Not Reported in F.Supp.2d (2005)

2005 WL 2405993 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio, Eastern Division.
J.P. and all others similarly situated, et al., Plaintiffs, v.
Bob TAFT, et al. Defendants.
No. 2:04-CV-692. | Sept. 29, 2005.
Attorneys and Law Firms
Jennifer M. Kinsley, Sirkin Pinales & Schwartz, Cincinnati, OH, Kimberly Brooks Tandy, Children’s Law Center, Covington, KY, Stephen L. Pevar, American Civil Liberties Union Foundation, Hartford, CT, for Plaintiffs.
Sharon A. Jennings, Joseph M. Mancini, Philip A. King, Ohio Attorney General, Columbus, OH, Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Defendants.
Opinion
OPINION AND ORDER
MARBLEY, J.
I. INTRODUCTION *1 This matter is before the Court on Defendants’ First and Second Motions for Summary Judgment (Doc. # 24 and # 25), Defendants’ Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs (Doc. # 51), and Plaintiffs’ Motion for Class Certification (Doc. # 6). Plaintiffs filed this 42 U.S.C. § 1983 (“Section 1983”) action against Bob Taft, in his official capacity as Governor of the State of Ohio, the Ohio Department of Youth Services (“ODYS”), and Thomas Stickrath, in his official capacity as Interim Director of Youth Services (collectively, “Defendants”).1 In their Amended Complaint, Plaintiffs allege that Defendants violated the First, Sixth, and Fourteenth Amendments of the United States Constitution, and corresponding provisions of the Ohio Constitution, by denying access to the courts for juveniles committed to ODYS as juvenile delinquents or serious juvenile offenders. Plaintiffs request declaratory and injunctive relief, asking the Court to declare that Defendants’ actions were unconstitutional and to require Defendants to provide them with access to attorneys.

1

Plaintiffs initially named Geno Natalucci-Perischetti in

his official capacity as Director of Youth Services as

defendant; however, in their Amended Complaint,

Plaintiffs, recognizing that Mr. Natalucci-Perischetti

resigned as Director of Youth Services in December

2004, named Mr. Stickrath as a defendant in place of

Mr. Natalucci-Perischetti.

For the reasons that follow, the Court GRANTS Defendants’ Second Motion for Summary Judgment, DENIES as moot Defendants’ First Motion for Summary Judgment, DENIES as moot Defendants’ Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs and DISMISSES WITHOUT PREJUDICE Plaintiffs’ Motion for Class Certification.

II. PROCEDURAL BACKGROUND Plaintiffs’ original Complaint was filed on July 29, 2004. The Complaint named four individual plaintiffs: J.P., S.J., D.B. and H.H .2 On September 27, 2004, Plaintiffs filed a motion requesting class certification. (Doc. # 6). That motion is fully at issue before the Court. (Doc. # 6, # 32 and # 44).

2

On July 7, 2005, Plaintiff H.H. voluntarily dismissed

her claim against Defendants. (Doc. # 87).

Accordingly, the Court has omitted all discussion of

H.H’s claim against Defendants.

On January 7, 2005, Defendants filed their First Motion for Summary Judgment. (Doc. # 24). In that motion, Defendants argue that the four Plaintiffs named in the Complaint failed to exhaust their administrative remedies. That motion is fully at issue before the Court. (Doc. # 24, # 45 and # 55).
On January 12, 2005, Defendants filed their Second Motion for Summary Judgment. (Doc. # 25). In that motion, Defendants argue that the four Plaintiffs named in the Complaint lack standing to maintain this action and that S.J.’s claim is moot. That motion is fully at issue before the Court. (Doc. # 25, # 46 and # 56).
On March 17, 2005, Defendants filed a motion requesting disqualification of Plaintiffs’ Attorney, Kim Brooks Tandy. (Doc. # 51). Defendants argue that Attorney Tandy filed substantive testimony with the Court in an affidavit supporting Plaintiffs’ opposition to Defendants’ Second Motion for Summary Judgment and, therefore, has caused herself to become a material witness in this case. That motion is fully at issue before the Court. (Doc.
1

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
# 51, # 71 and # 74).
On May 17, 2005, the Court granted Plaintiffs leave to file an amended complaint. (Doc. # 76). In its Order, the Court stated that the “pending motions for summary judgment will be deemed to apply to the amended complaint.” The Amended Complaint added two plaintiffs: M.M and T.M. (Doc. # 77). Neither of these two Plaintiffs, however, were addressed in Defendants’ First or Second Motions for Summary Judgment, nor have Defendants filed a supplement to either motion. Instead, Defendants addressed these two Plaintiffs in their Third Motion for Summary Judgment. (Doc. # 89).
*2 On August 1, 2005, Defendants filed their Third Motion for Summary Judgment. (Doc. # 89). In it, they summarize the arguments set forth in their first two summary judgment motions and incorporate case law on exhaustion recently announced by the Sixth Circuit Court of Appeals. In addition, in arguing lack of standing, Defendants set forth the current status of the four Plaintiffs named in the original Complaint as well as the current status of the two Plaintiffs added in the Amended Complaint. Plaintiffs have not responded to Defendants’ Third Motion for Summary Judgment.
Instead of responding to Defendants’ Third Motion for Summary Judgment, on August 16, 2005, Plaintiffs filed a Motion for Extension of Time in Which to Respond to Defendants’ Third Motion for Summary Judgment. (Doc. # 90). Plaintiffs assert that they need additional discovery to oppose the motion because, in it, Defendants set forth an entirely new theory, i.e., that the named Plaintiffs were provided access to the courts through a newly created legal assistance program. That motion is fully at issue before the Court. (Doc. # 90, # 92 and # 95).
III. FACTS For purposes of summary judgment, the Court will consider the facts in the light most favorable to Plaintiff.
A. Individually-Named Plaintiffs
1. Plaintiff J.P. Plaintiff J.P. was incarcerated at the Scioto Juvenile Correctional Facility beginning in January 2002, as a result of an adjudication through the Hamilton County Juvenile Court. (Am.Compl.¶ 6). J.P. had significant needs concerning mental health and medical care. Id. On February 14, 2003, J.P. was sexually assaulted by a Juvenile Corrections Officer (“JCO”) while on “suicide watch” in a special unit. Id. She was 17 years old at the time. Id. The JCO since has been convicted of sexual battery against J.P., and that of another juvenile resident.

Id.
J.P. filed a grievance in March 2003, and also sent a letter to the chief inspector regarding the assault. Id. J.P.’s claims were referred to a private attorney five months after Plaintiffs filed the original Complaint in this lawsuit. Id. On February 14, 2005, J.P.’s conditions of confinement suit was filed in this Court, Case Number 2:05-CV-00147. (Doc. # 56, Affidavit of Rhonda Richard at ¶ 7(a) attached as Exhibit A17 to Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Second Motion for Summary Judgment). J.P. was released on parole on May 3, 2005. (Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(a) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment).
2. Plaintiff S.J. Plaintiff S.J. was incarcerated at the Scioto Juvenile Correctional Facility from October 2003 until July 2004, as a result of an adjudication through the Hamilton County Juvenile Court. (Am.Compl.¶ 7). On December 27, 2003, she was physically assaulted by a male JCO who followed her into her room and slapped her on the side of her face repeatedly with the palm of his hand. Id. S.J.’s eardrum ruptured and she sustained bruises and welts on her face. Id. She was 17 years old at the time of the assault. Id.
*3 S.J. was threatened with retaliation if she reported the incident, and the JCO instructed her to report the injury as self-inflicted. Id. S.J. was also threatened with receiving more time at Scioto if she told the truth about what happened. Id. S.J. filed a grievance regarding this incident, and following the advice of an attorney from the Ohio Public Defender’s Office, she sent a letter regarding the assault to the chief inspector on the same day. Id.
S.J. requested an attorney to prevent possible retaliation by the JCO, and she wanted to ensure that the JCO who assaulted her would not return to work in her unit. Id. S.J. also believed that an attorney would assist her in securing better medical care. Id. Scioto Superintendent John Morgan informed S.J. that ODYS could not provide her with an attorney. Id. Subsequently, however, ODYS did in fact offer S.J. legal assistance to address her conditions of confinement complaints. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 attached as Exhibit A16 to Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Second Motion for Summary Judgment). S.J. has not responded to ODYS’s offer. Id.
On May 6, 2004, the JCO who assaulted S.J. was discharged from ODYS. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 10 attached as Exhibit A16 to Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Second Motion for Summary Judgment). S.J. was released on
2

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
parole on August 24, 2004. (Doc. # 24, Affidavit of Rita Colvin attached as Exhibit B to Defendants’ First Motion for Summary Judgment; Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 10 attached as Exhibit A16 to Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Second Motion for Summary Judgment).
3. Plaintiff D.B. Plaintiff D.B. is and has been incarcerated at Scioto Juvenile Correctional Facility since July 2003, though she was released briefly on parole from May 31, 2004 through July 12, 2004. (Am.Compl.¶ 8). She was placed at Scioto as a result of an adjudication through the juvenile court in Paulding County. Id. On February 3, 2004, she was physically assaulted by a male JCO who followed her into her room, grabbed her and threw her to the floor. Id. The JCO pulled D.B.’s arm behind her back and punched it. Id. D.B. sustained a broken arm, and her head also hit the floor during the assault. Id. D.B. was required to undergo surgery for her broken arm. Id. She was 16 years old at the time of the incident. Id.
D.B. filed a grievance on February 6, 2004, and requested to speak with an attorney regarding her rights. Id. Superintendent Morgan informed D.B. that he would secure an attorney for her. Id. In January 2005, D.B. spoke with Larry Mathews, an attorney on contract with ODYS, regarding her complaints about the conditions of her confinement. Id. D.B. requested an attorney to assist her in filing a civil action to compensate her for her injuries, and to ensure that the JCO who assaulted her would not be working around her. Id. In the Amended Complaint, D.B. claims that she was not provided an attorney. Id.
*4 After the Amended Complaint was filed, however, ODYS arranged for D.B. to speak to another attorney to discuss her issues related to her conditions of confinement. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 attached as Exhibit A16 to Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Second Motion for Summary Judgment). ODYS referred D.B.’s claim to Attorney Kimberly Fulkerson, who has filed suit on behalf of D.B. in the Ohio Court of Claims in Case No. C2005-06023. (Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(d) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment).
4. Plaintiff M.M. Plaintiff M.M. is an 18-year-old youth who was incarcerated at the Marion Juvenile Correctional Facility as a result of an adjudication from Youngstown, Ohio. (Am.Compl.¶ 10). In October 2004, M.M. was involved in an incident upon his return from the bathroom, wherein

he was pushed by a JCO, hit in the head, and then slammed to the ground. Id. One of his hands was placed in a handcuff and the JCO kneeled on M.M.’s uncuffed hand to prevent him from moving it until it could be placed in the handcuff. Id. The JCO placed his arm around M.M.’s neck while he was on the ground causing M.M. to gag and eventually black out. Id. When M.M. regained consciousness he was kicked in the jaw twice by the JCO. Id. M.M. experienced significant pain and was unable to eat solid food for over a week after the incident. Id. Additionally, the JCO who choked M.M. told him that if he did not report the incident, the JCO would bring him contraband items such as chewing tobacco and cigars. Id.
On October 16, 2004, M.M. filed a grievance regarding this incident, and requested that the matter be resolved “in court.” Id. Superintendent Norm Hills informed M.M. that there was no basis for his allegations. Id. M.M. appealed this decision to the chief inspector. Id. He attached a statement requesting an attorney to assist him in securing appropriate medical care, and proper treatment in the facility. Id. ODYS contract attorney Larry Mathews contacted M.M. about his request for an attorney. Id . At the time the Amended Complaint was filed, however, M.M. had not yet been assigned an attorney for his underlying conditions of confinement complaints. Id.
Since then, ODYS contract attorney, Sharon Hicks, helped M.M. prepare a pro se complaint with an affidavit of indigency and motion for appointment of counsel. (Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(e) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). That case was dismissed without prejudice based on new Sixth Circuit law. Id. In a supplement to their Third Motion for Summary Judgment, Defendants introduce evidence that M.M.’s conditions of confinement case has been re-filed and is currently pending in the United States District Court for the Northern District of Ohio, Case Number 3:05-CV-07362. (Doc. # 100, Affidavit of J. Gregory Glasgow attached as Exhibit A-1). M.M.’s attorney of record is ODYS contract attorney, Sharon Hicks. Id. M.M. was released from custody on April 3, 2005. (Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(e) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment).
5. Plaintiff T.M *5 Plaintiff T.M. is an 18-year-old youth who was in the custody of ODYS for approximately two years at Marion Juvenile Correctional Facility. (Am.Compl.¶ 11). In October 2004, during an incident involving T.M. and other youth who were banging on doors to get permission to use the bathroom, a JCO came into his room, restrained him, “choking him out” until T.M. was rendered unconscious. Id. During the incident, T.M. was also hit in the eye by the JCO and, as a result, he sustained an eye
3

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
injury. Id.
On October 16, 2004, T.M. filed a grievance regarding this incident. Id. T.M.’s grievance included a written statement in which he described the assault by the JCO, and he asserted that youth were being forced to urinate in their rooms into rubber gloves rather than being able to use the bathroom. Id. T.M. indicated that he wanted his grievance resolved “in court.” Id. On December 15, 2004, T.M. sent his grievance to the chief inspector because he believed that he had not received appropriate information or relief from Superintendent Hills. Id. T.M. met with ODYS contract attorney Larry Mathews and asked for an attorney to file a civil claim for damages, to seek better medical care, and to learn about his rights. Id.
Since then, ODYS contract attorney Sharon Hicks wrote a letter to T.M. informing him that she had spoken to attorney Matthew Brownfield on his behalf and that Mr. Brownfield had agreed to meet with him to evaluate his conditions of confinement claims. (Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(f) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). T.M. has not responded to Ms. Hicks’ letter. Id. In addition, T.M.’s building administrator, Scott Moore, asked T.M. if he would meet again with Attorney Mathews on March 14, 2005. (Doc. # 89, Affidavit of Scott Moore at ¶ 3 attached as Exhibit C-4 to Defendants’ Third Motion for Summary Judgement). T.M indicated to Mr. Moore that he did not want to meet with Attorney Mathews. Id. T.M. was released from custody on June 1, 2005. (Doc. # 102, Affidavit of Doneta Riegsecker at ¶ 5 attached as Exhibit A to Defendants’ Motion for Leave to File their Second Supplemental Memorandum in Support of their Third Motion for Summary Judgment).

B. Defendants
1. Defendant Bob Taft Defendant Bob Taft3 is the duly elected governor of the State of Ohio, and functions as the head of the State’s executive branch. (Am.Compl.¶ 12). Additionally, pursuant to Section 5139.01(B) of the Ohio Revised Code, Governor Taft is statutorily required to appoint a director to head ODYS with the advice and consent of the Ohio Senate. Id.

3

On June 2, 2005, Defendant Taft filed a motion under

Rule 12(b)(6) of the Federal Rules of Civil Procedure

requesting that he be dismissed as a party to this action.

(Doc. # 79). Defendant Taft claims that the facts

alleged in the Amended Complaint are insufficient to

show that he actively participated in the alleged wrongs

against Plaintiffs.

2. Defendant Thomas Strickrath Defendant Thomas Stickrath is the interim Director of Youth Services, and was appointed to replace Geno Natalucci-Persichetti who, according to Plaintiffs, was forced to resign as Director in December 2004. (Am.Compl.¶ 13). As Director of Youth Services, Mr. Stickrath is vested with the powers of a department head set forth in Chapter 121 of the Ohio Revised Code. Id. These powers and duties include, but are not limited to, adopting rules for the governance of the department, the conduct of its officers and employees, the performance of its business, and the custody, use and preservation of the department’s records and property. Id. Plaintiffs allege that any duties imposed by law on ODYS must be performed by or implemented by the Director. Id.
3. Defendant ODYS *6 Defendant ODYS operates or funds by contract several community corrections facilities for juveniles committed as juvenile delinquents or serious juvenile offenders, including but not limited to Butler County Juvenile Rehabilitation Center, Hocking Valley Community Residential Center, Juvenile Residential Center of Northwest Ohio, Lucas County Youth Treatment Center, North Central Ohio Rehabilitation Center, Oakview Group Home, Perry County Group Home and West Central Juvenile Rehabilitation Facility. (Am.Compl.¶ 18). A community corrections facility is a county or multi-county rehabilitation center for felony delinquents committed to ODYS. Some felony delinquents are placed in the community corrections facilities instead of being placed in an institution. Id.
ODYS operates or funds by contract several institutions, including but not limited to Circleville Youth Center, Cuyahoga Hills Boys School, Indian River School, Marion Juvenile Correctional Center, Maumee Youth Center, Mohican Youth Center, Ohio River Valley Youth Center, Scioto Juvenile Correctional Center and Lighthouse Youth Center at Paint Creek. (Am.Compl.¶ 19). These institutions are state facilities created by the Ohio General Assembly under the management and control of ODYS or a private entity with which ODYS contracted for institutional care and custody of felony delinquents. Id. In addition to maintaining these facilities, ODYS supervises committed juveniles housed in institutions or community corrections facilities throughout the State of Ohio. (Am.Compl.¶ 20).
Juveniles who are adjudicated delinquent for committing acts that if committed by an adult would constitute felonies may be committed to ODYS for an indefinite period of time up to and until the juvenile reaches the age of 21. (Am.Compl.¶ 21). Juveniles who have been
4

J.P. v. Taft, Not Reported in F.Supp.2d (2005)

adjudicated felony delinquents are eligible for placement at community corrections facilities. (Am.Compl.¶ 22). A felony delinquent is a juvenile at least 12 years of age, and less than 18 years of age, who had been adjudicated a delinquent juvenile for committing an act that if committed by an adult would be a felony offense, or an adult between the ages of 18 and 21 who is in the legal custody of ODYS, and has committed an act while in custody that would constitute a felony if committed by an adult. Id.
Juveniles committed to ODYS range in age from 12 to 21 years. (Am.Compl.¶ 23). Placement in an institution or community corrections facility generally ranges from several months to several years. Id. The average age of admission in Ohio is 15.9 years. Id.
According to Plaintiffs, Defendants presently provide no adequate, effective, and meaningful system for committed juveniles who are placed in institutions or community corrections facilities to gain access to the courts for matters related to the fact, duration,4 or conditions of confinement that may violate their federal statutory or constitutional rights. (Am.Compl.¶ 26). Plaintiffs assert that the only legal representation presently provided for indigent committed juveniles is through the Ohio Public Defender’s Office. Id. The Public Defender has a staff of four attorneys who are responsible for screening juveniles at the Scioto Juvenile Correctional Facility’s intake center. (Am.Compl.¶ 29). These attorneys are available to represent only committed juveniles who elect to pursue direct appeals of their orders of commitment. Id.

4

The Court notes that, although Plaintiffs and

Defendants each make reference to access to the courts

for youth who wish to challenge the fact or duration of

confinement, Plaintiffs do not allege that any of the

individually-named Plaintiffs were denied access to the

courts for this type of challenge. Instead, the

individually-named Plaintiffs all claim that they were

denied meaningful access to the courts for their

conditions of confinement complaints.

*7 Defendants present evidence that the Ohio Public Defender’s Office provides legal assistance to youth to address challenges to fact of duration of confinement. (Doc. # 25, Affidavit of Sara R. Vollmer at ¶ 17 attached as Exhibit A to Defendants’ Second Motion for Summary Judgment). A staff member of the Public Defender’s Office is housed at the Scioto Juvenile Correctional Facility, the reception site for both boys and girls being placed into the ODYS system, and conducts orientation meetings with the youth as they enter the system. Id. Attorneys for the Public Defender’s Office meet with youth who have requested to speak with an attorney and/or who wish to file a claim concerning the fact or duration of their confinement and draft and file pro se

appeals on behalf of the youth. Id. In addition, the Public Defender provides assistance in post-conviction and state habeas actions. Id.
In September 2004, after Plaintiffs had filed this lawsuit, Defendant ODYS hired Attorney Larry Mathews under a temporary contract to “assess the demand for legal services on conditions of confinement issues” and to interview and refer youth to private law firms for legal representation. (Am.Compl.¶ 31.) Notwithstanding this contract, Plaintiffs allege that some of the named Plaintiffs and members of the putative class continue to be denied their constitutional right to access the courts to redress grievances while in ODYS facilities. Id.
Defendants present evidence that ODYS entered into a contract with Attorney Mathews in September 2004, to provide legal assistance to youth with regard to conditions of confinement. (Doc. # 25, Affidavit of Sara R. Vollmer at ¶ 17 attached as Exhibit A to Defendants’ Second Motion for Summary Judgment). Mr. Mathews travels to each institution on a bi-weekly basis to talk to youth about issues related to conditions of confinement. Id. Since September 2004, Mr. Mathews has conducted an orientation at each facility with youth and staff and has met with youth individually and in groups to discuss legal issues and to assist them in filing or resolving grievances. Id. In addition, ODYS has hired a youth advocate to act on behalf of the incarcerated juveniles to ensure that their grievances are processed and addressed at all levels. Id. ODYS has also hired a Compliance Officer to oversee the implementation of the legal assistance program and all new initiatives directed at improving conditions of confinement. Id.

IV. STANDARD OF REVIEW5

5

Because the Court concludes that Defendants’ Motion

for Disqualification of Plaintiffs’ Counsel is moot and

dismisses without prejudice Plaintiffs’ Motion for Class

Certification, the only standard of review applicable to

this Opinion and Order is one for summary judgment.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). To avoid summary
5

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir.1993). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*8 In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing evidence). In responding to a motion for summary judgment, however, the nonmoving party “may not rest upon its mere allegations but must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324. Furthermore, the existence of a mere scintilla of evidence in support of the nonmoving party’s position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson, 477 U.S. at 251; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Matsushita, 475 U.S. at 587-88 (finding reliance upon mere allegations, conjecture, or implausible inferences to be sufficient to survive summary judgment).
V. ANALYSIS In Defendants’ First Motion for Summary Judgment, they argue that the Plaintiffs named in the original Complaint failed to exhaust their administrative remedies. Exhaustion of administrative remedies is a mandatory prerequisite to filing a Section 1983 action. Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999). The requirement that plaintiffs exhaust their administrative remedies, although mandatory, is not a jurisdictional requirement. Id. In their Second Motion for Summary Judgment, Defendants argue that Plaintiffs lack standing to bring their claims and that the claims of one Plaintiff has been rendered moot. When a claim has been rendered moot or a plaintiff lacks standing, a federal court is deprived of jurisdiction to hear the case. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).
Because Defendants’ Second Motion for Summary Judgment implicates this Court’s jurisdiction, the Court will first consider the issues raised in that motion.

A. Defendants’ Second Motion for Summary Judgment Defendants make two arguments in their Second Motion for Summary Judgment. First, Defendants argue that J.P., S.J. and D.B., the plaintiffs named in the original Complaint, lack standing to assert claims of denial of access to court. Second, Defendants argue that S .J.’s claims has been rendered moot because she was released on parole on August 24, 2004.
1. Standing Defendants move for summary judgment against all three Plaintiffs on the basis that none of them can establish standing. Article III, Section 2 of the United States Constitution confines the jurisdiction of federal courts to the resolution of actual “cases” and “controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); NRA of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). The case or controversy limitation of Article III requires that a party invoking federal jurisdiction has standing-that is a “personal stake in the outcome” of the action. Baker v. Carr, 369 U.S. at 204; see also Stevenson v. J.C. Bradford & Co., 277 F.3d 838, 852-53 (6th Cir.2002). To establish a personal stake in the outcome of an action, a plaintiff must allege an “injury in fact” to his preexisting, legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). The injury must be “(a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Id.; see also TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 (6th Cir.2000). A particularized injury is one that “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1.
*9 In prisoners’ denial of access to court cases, an inmate establishes standing by showing that he or she suffered an actual litigation related injury or legal prejudice because of the actions of the defendant. See Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (requiring “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim”).
a. When standing is determined. Defendants argue that Plaintiffs have not been prevented from filing suit on their underlying claims and, thus, they have not suffered any actual injury. Specifically, Defendants present uncontroverted evidence that two Plaintiffs, J.P. and D.B., have filed suit in their underlying conditions of confinement cases and that another named Plaintiff, S.J., could have filed her claim but has declined
6

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
to do so. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 and Affidavit of Rhonda Richard at ¶ 7(a) attached as Exhibit A16 and A17 respectively to Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Second Motion for Summary Judgment; Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(d) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). Defendants argue that, based on these facts, Plaintiffs lack standing to assert the claims presented in the instant case. The Court disagrees.
The U.S. Court of Appeals for the Sixth Circuit has held that “standing does not have to be maintained throughout all stages of litigation.” Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir.2001). “Instead, [standing] is to be determined as of the time the complaint is filed.” Id. The Cleveland Branch, NAACP court exhaustively reviewed United States Supreme Court case law and concluded that “ ‘jurisdiction is tested by the facts as they existed when the action [was] brought’ and ‘that after vesting, it cannot be ousted by subsequent events.” ’ Id. (quoting Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957)).
Consequently, the fact that three named Plaintiffs have already filed suit or been afforded the means to do so after the initiation of this case is of no moment in a standing analysis. The proper inquiry is whether the Plaintiffs were suffering or had suffered an actual injury because of Defendants’ action or inaction at the time the Complaint was filed. Accordingly, the Court will consider Plaintiffs’ standing at the time the Complaint was filed.
b. Plaintiffs’ standing at the time the Complaint was filed It is well established that inmates have a constitutionally protected right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1971). The Supreme Court, in its subsequent explanation of Bounds, stated that “[i]nsofar as the right vindicated by Bounds is concerned, ‘meaningful access to the courts is the touchstone,’ and the inmate must go one step further and demonstrate is that the alleged shortcomings in the prison library or legal assistance program have hindered, or are presently hindering, his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351 (internal citations omitted). That is, an inmate must show “actual injury.” Id. at 348-49 (describing as an example of actual injury, an inmate who was unable to meet a filing deadline or to present a claim). In addition, “the injury requirement is not satisfied by just any type of frustrated legal claim.” Id. at 354. Bounds requires that the prison officials provide the tools so that inmates can “file nonfrivolous legal claims challenging their convictions or conditions of confinement.” Id. at 355-56.

*10 A state need not always provide access to legal counsel to adults to satisfy the constitutional requirement of meaningful access to the courts. Access to a law library may be sufficient. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); see also John L. v. Adams, 969 F.2d 228, 234 (6th Cir.1992). For juveniles, however, the Sixth Circuit has held that “incarcerated juveniles do have a constitutional right of access to the courts, and that in order to make this right meaningful the State must provide the juveniles with access to an attorney.” John L. v. Adams, 969 F.2d at 230. The John L. court reasoned that incarcerated juveniles “could not make effective use of legal materials” without guidance and would therefore be deprived of their constitutional right to meaningful access to the courts absent the assistance of counsel. Id. at 233.
In the case sub judice, Plaintiffs allege that they were denied meaningful access to the courts because they were denied access to an attorney to file nonfrivolous legal claims challenging their conditions of confinement.
i. Plaintiffs’ nonfrivolous claims Initially, the Court notes that, although Defendants do not challenge the sufficiency of Plaintiff’s conditions of confinement cases, the Court must evaluate, and herein concludes, that all Plaintiffs’ underlying claims are “nonfrivolous.” See Lewis, 518 U.S. at 354 (nonfrivolous claims alleging constitutional violations are proper underlying claims in denial of access to court cases). Each Plaintiff wanted to challenge alleged incidents that seriously affected their conditions of confinement. Allegedly, J.P. was sexually assaulted while on suicide watch, S.J. was physically assaulted resulting in a rupture to her eardrum and D.B. was physically assaulted resulting in a broken arm which required surgery. All three of these juveniles wanted to pursue claims under Section 1983 alleging excessive force in violation of the Eighth Amendment to the United States Constitution. “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
ii. Plaintiffs’ access to the courts Next, the Court assesses the state of Plaintiffs’ underlying conditions of confinement claims on July 29, 2004, the date the Complaint was filed.
J.P. “specifically requested legal counsel” from ODYS to assist her in filing a claim related to her sexual assault. (Compl.¶ 6). Defendants did not provide her with access to an attorney. Id. Consequently, it appears that J.P. was
7

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
being denied meaningful access to file her nonfrivolous claim at the time the Complaint was filed and, thus, did not lack standing to bring this lawsuit.
S.J. “specifically asked for legal assistance from ODYS” to assist her in filing a claim related to her physical assault. (Compl.¶ 7). S.J. was told “that ODYS could not provide her with an attorney.” Id. Thus, it appears that S.J. was also being denied meaningful access to file her nonfrivolous claim at the time the Complaint was filed and, therefore, did not lack standing to bring the instant action.
*11 Likewise, D.B. specifically requested “legal assistance” from ODYS to assist her in filing a claim related to her physical assault. (Compl.¶ 8). Defendants did not provide D.B. with access to an attorney. Id. Consequently, it appears that D.B., too, was being denied meaningful access to file her nonfrivolous claim at the time the Complaint was filed and, thus, did not lack standing to bring this lawsuit.
c. Conclusion regarding standing After assessing Plaintiffs’ standing at the time the Complaint was filed, and reviewing the facts in the light most favorable to Plaintiffs, the Court concludes that each Plaintiff properly asserted a nonfrivolous underlying claim, which she was allegedly prevented from filing because of officials’ denial of requests for legal counsel. Accordingly, the Court DENIES Defendants’ motion for summary judgment against J.P., S.J. and D.B. based on lack of standing.
2. Mootness Defendants also move for summary judgment against S.J. on the basis that her claim has been rendered moot. The Court, however, will evaluate whether any of Plaintiffs’ claims have been rendered moot since such a finding would deprive this Court of jurisdiction to hear their claims. “Questions of jurisdiction, of course, should be given priority-since if there is no jurisdiction there is no authority to sit in judgment of anything else.” Vermont Agency of Natural Resources v. United States, ex rel Stevens, 529 U.S. 765, 778, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Id. at 778-79 (citing Ex parte McCardle, 7 Wall. 506, 74 U.S. 506, 514, 19 L.Ed. 264 (1869)).
As the Court discussed supra, the United States Constitution limits the jurisdiction of this Court to matters

that present actual “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1. As it relates to the mootness doctrine, this limitation means that if a plaintiff loses standing at any time during the pendency of the court proceedings, the matter becomes moot,6 and the court loses jurisdiction. See Church of Scientology of California v. United States, 506 U.S. at 12 (“It has long been settled that a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”).

6

Explaining the difference between standing and

mootness, the Sixth Circuit stated: “In essence,

standing concerns only whether a plaintiff has a viable

claim that a defendant’s unlawful conduct ‘was

occurring at the time the complaint was filed,’ while

mootness addresses whether that plaintiff continues to

have an interest in the outcome of the litigation”

Cleveland Branch, NAACP v. City of Parma, 263 F.3d

at 525 (internal citations omitted). The Supreme Court

has repeatedly described mootness

as “the doctrine of standing set in a time frame: The

requisite personal interest that must exist at the

commencement of the litigation (standing) must

continue throughout its existence (mootness).”

See, e.g., Friends of Earth, Inc. v Laidlaw Envtl. Servs,

528 U.S. 167, 212, 120 S.Ct. 693, 145 L.Ed.2d 610

(2000); United States Parole Comm’n v. Geraghty, 445

U.S. 388, 396-97, 100 S.Ct. 1202, 63 L.Ed.2d 479

(1980)

“A case becomes moot ‘when the issues presented are no longer live or parties lack a legally cognizable interest in the outcome.” ’ Cleveland Branch, NAACP, 263 F.3d at 530 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). “In analyzing issues of mootness it is helpful to keep in mind that ‘these problems often require a highly individualistic, and usually intuitive, appraisal of the facts of each case.” ’ Gottfried v. Medical Planning Servs., Inc., 280 F.3d 684, 690 (6th Cir.2002) (quoting McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 458 (6th Cir.1997) (Moore, J., dissenting)).
*12 Plaintiffs allege that they were prevented from obtaining meaningful access to the courts because Defendants did not provide them with access to legal counsel. Plaintiffs request declaratory and injunctive relief, asking the Court to declare that Defendants’ actions were unconstitutional and to require Defendants to provide them with access to attorneys. After this case was filed, however, Defendants did in fact provide counsel to each of the three Plaintiffs named in the original Complaint. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 and Affidavit of Rhonda Richard at ¶ 7(a) attached as Exhibit A16 and Exhibit A17, respectively, to Defendants’ Reply to Plaintiff’s Opposition to
8

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
Defendants’ Second Motion for Summary Judgment; Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(d) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). Thus, Defendants voluntarily ceased their allegedly unconstitutional actions, i.e., preventing meaningful access to the courts by denying Plaintiffs access to legal counsel.

a. Defendants’ voluntary cessation There are specific guidelines for this Court to follow when determining whether a plaintiff’s controversy remains live or a plaintiff maintains a legally cognizable interest in the outcome of the case when a defendant voluntarily ceases the alleged wrongful behavior giving rise to the suit.7 “[A]s a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” ’ Davis, 440 U.S. at 631 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). The Sixth Circuit has explained the standard applied in voluntary cessation cases as follows:

7

The doctrine related to the voluntary cessation of a

defendant’s allegedly wrongful behavior is similar to

the “capable of repetition yet evading review doctrine”

which is applied outside of the voluntary cessation

context. Both the voluntary cessation doctrine and the

capable of repetition yet evading review doctrine are

often referred to as “exceptions” to the mootness

doctrine. See Boston Teachers Union, Local 66, AFT,

AFL-CIO v. Edgar, 787 F.2d 12, 16 (6th Cir.1986)

(referring to the voluntary cessation doctrine as an

exception to the mootness doctrine); see also Gottfried

v. Medical Planning Servs., Inc., 280 F.3d 684, 693 (6th

Cir.2002)) (referring to the capable of repetition yet

evading review doctrine as an exception to the

mootness doctrine).

A case may be mooted by a defendant’s voluntary conduct only “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,’ Friends of the Earth, 528 U.S. [167,] 189, 120 S.Ct. 693, 145 L.Ed.2d 610 [ (2000) ] (quoting United States v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)), and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). The heavy burden of demonstrating mootness rests on the party claiming mootness. Friends of the Earth, 528 U.S. at 189. Ammex, Inc. v. Cox, 351 F.3d 697, 704-05 (6th Cir.2003). This rule is meant to protect a party from an opponent who seeks to defeat judicial review by temporarily

altering its behavior. See City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284, 121 S.Ct. 743, 148 L.Ed.2d 757 n .1 (2001) (citations omitted).
There is, however, a “difference in the way voluntary cessation of illegal activities is treated when the offending parties are government officials rather than private parties.” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir.1990).
[C]essation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties. According to one commentator, such self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine. See 13A Wright, Miller & Cooper Federal Practice and Procedure § 3533.7, at 353 (2d ed.1984).
*13 Id.
With regard to voluntary cessation cases, the Supreme Court recently explained that the “underlying concern is that, when the challenged conduct ceases such that ‘there is no reasonable expectation that the wrong will be repeated,’ United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), then it becomes impossible for the court to grant ‘any effectual relief whatever’ to [the] prevailing party,” ‘ City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (citing Church of Scientology of Cal. v. United States, 506 U.S. at 12 (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). “In that case, any opinion as to the legality of the challenged action would be advisory.” Id.
Accordingly, the Court will analyze whether it is clear that Defendants’ allegedly unconstitutional actions are “not reasonably likely to recur” against the named Plaintiffs and whether the “interim relief” provided by Defendants has “completely and irrevocably eradicated the effects of the alleged violation” against the named Plaintiffs so that this Court could not “grant any effectual relief whatever” to Plaintiffs.
i. Likely recurrence Defendants have provided uncontroverted evidence establishing that J.P. and S.J. have been released from the ODYS correctional facility. (Doc. # 24, Affidavit of Rita Colvin attached as Exhibit B to Defendants’ First Motion for Summary Judgment; Doc. # 56, Affidavit of Sara R.
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J.P. v. Taft, Not Reported in F.Supp.2d (2005)
Vollmer at ¶ 10 attached as Exhibit A16 to Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Second Motion for Summary Judgment; Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(a) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). Once an inmate is released from incarceration, this Court cannot assume that she will be incarcerated again in the future. See e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 493-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); see also Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996) (a prisoner’s claims for injunctive relief become moot when the prisoner is no longer incarcerated); Mezo v. Taylor, Case No. 93-5672, 1993 U.S.App. LEXIS 32954, *2-3 (6th Cir. December 15, 1993) (“Mezo is no longer incarcerated at DCDC, and there has been no showing of a reasonable expectation that he will again be a prisoner in that facility. His claims for declaratory and injunctive relief are therefore moot”).
Consequently, the Court concludes that Defendants have met their burden of showing that there is no reasonable expectation that the denial of access to an attorney will reoccur with regard to J.P. and S.J., since they are no longer under the control of Defendants.
D.B., however, remains incarcerated. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 attached as Exhibit A 16 to Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Second Motion for Summary Judgment). Defendants bear the heavy burden to show that voluntary cessation of their allegedly unconstitutional behavior is not reasonably likely to recur; the Court concludes that Defendants have carried that burden in this case.
*14 Initially, the Court finds it significant that all the Plaintiffs named in the Complaint and the Amended Complaint have now been provided access to attorneys. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 and Affidavit of Rhonda Richard at ¶ 7(a) attached as Exhibit A 16 and Exhibit A17 respectively to Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Second Motion for Summary Judgment; Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(d) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment). Yet, were this the only fact in support of Defendants’ motion, it would not at all be clear whether Defendants’ actions were meant only to defeat judicial review by “temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 66-67, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). That is not the situation before this Court, however. Instead, Defendants have made significant changes to their legal assistance policy that will affect all juveniles incarcerated in facilities operated by ODYS.

Specifically, Defendants present uncontroverted evidence that ODYS entered into a contract with attorney Larry Matthews in September 2004, approximately one year ago, to provide legal assistance to youth with regard to conditions of confinement. (Doc. # 25, Affidavit of Sara R. Vollmer at ¶ 17 attached as Exhibit A to Defendants’ Second Motion for Summary Judgement). Mr. Mathews travels to each institution on a bi-weekly basis to talk to the inmates about issues related to conditions of their confinement. Id. Since September, Mr. Mathews has conducted an orientation at each facility with youth and staff and has met with youth individually and in groups to discuss legal issues and to assist them in filing or resolving grievances. Id. In addition, ODYS has hired at least one other contract attorney, Sharon Hicks, who is currently representing M.M. on her underlying conditions of confinement case. (Doc. # 100, Affidavit of J. Gregory Glasgow attached as Exhibit A-1).
Further, ODYS has hired a youth advocate to act on behalf of the youths to ensure that their grievances are processed and addressed at all levels. (Doc. # 25, Affidavit of Sara R. Vollmer at ¶ 17 attached as Exhibit A to Defendants’ Second Motion for Summary Judgement). Finally, ODYS has also hired a Compliance Officer to oversee the implementation of the legal assistance program and all new initiatives directed at improving conditions of confinement. Id.
Plaintiffs offer no evidence in their Memorandum in Opposition to Defendants’ Second Motion for Summary Judgment that would tend to show that the changes made to the legal assistance program are in any manner deficient.
Moreover, the Sixth Circuit requires that this Court treat the “cessation of the allegedly illegal conduct by government officials” with “more solicitude” than similar action by private parties, so long as their cessation appears genuine. Hairston, 920 F.2d at 415 (“such self-correction provides a secure foundation for dismissal based on mootness so long as it appears genuine”) (citation omitted). The uncontroverted evidence in the instant case leads this Court to conclude that Defendants’ voluntary cessation of the former policies and practices is in fact genuine. Defendants admit that their denial of access to legal counsel was an error: In his affidavit Superintendent Morgan states that his denial of juveniles’ request for legal counsel was the result of his inadvertent ignorance of the John L. mandate requiring prison officials to provide attorneys to incarcerated juveniles. (Doc. # 24, Affidavit of John Morgan). Superintendent Morgan further avers that: *15 Prior to my employment with the Ohio Department of Youth Services (DYS), I was employed by the Ohio Department of Rehabilitation and Correction, Ohio’s adult correctional system, for approximately 32 years.
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J.P. v. Taft, Not Reported in F.Supp.2d (2005)
In the adult correctional system, the state provides libraries and not attorneys as the method of legal assistance to incarcerated persons.
I was not aware that the legal assistance provided to juvenile offenders by the state is attorneys.
Id. at ¶¶ 3-5.
The Court does not believe that ignorance of the law in any way excuses Superintendent Morgan’s actions and the Court certainly does not condone ODYS’s failure to train its superintendents properly. That being said, this Court must nevertheless determine whether Defendants’ cessation of their denials of access to attorneys for juveniles is genuine. See Hairston, 920 F.2d at 415. Superintendent Morgan’s affidavit supports the conclusion that Defendants’ actions are genuinely meant to remedy their alleged wrongful conduct. The uncontroverted evidence establishes that the significantly improved legal assistance program was implemented to correct Defendants’ previous actions and not simply to evade judicial review by temporarily changing their behavior.
Moreover, the Supreme Court has cautioned that appropriate deference must be shown to the judgment of prison officials. In Lewis v. Casey, that Court concluded that the “District Court here failed to accord adequate deference to the judgment of the prison authorities in at least three significant respects.” Lewis, 518 U.S. at 361. Two of those respects guide this Court’s determination in the instant case. First, the Lewis court found that the injunction imposed by the district court enmeshed that Court-to an unwarranted degree-“in the minutiae of prison operations.” ‘ Id. at 362 (quoting Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). In the context of denial of access to courts claims, “[i]t is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.” Id. at 349.
In the instant case, since Plaintiffs seek only declaratory and injunctive relief, this Court is not called upon to remedy instances of prior denials of the right of access to legal counsel; only a claim for monetary damages can remedy such injuries. Thus, the Court must accord deference to the prison authorities’ apparently sufficient attempts to presently remedy their previous alleged actions.
Second, the Lewis court disapproved the district court’s injunction against the prison because it “was developed through a process that failed to give adequate

consideration to the views of state prison authorities.” Id. (“the strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors ... also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.”) (citing Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Instead, the Lewis court contrasted the improper relief rendered in Lewis with that rendered in Bounds: *16 For an illustration of the proper procedure in a case such as this, we need look no further than Bounds itself. There, after granting summary judgment for the inmates, the District Court refrained from “ ‘dictating precisely what course the State should follow.” ’ Bounds, 430 U.S. at 818. Rather, recognizing that “determining the ‘appropriate relief to be ordered ... presents a difficult problem,” ’ the court “ ‘charged the Department of Correction with the task of devising a Constitutionally sound program’ to assure inmate access to the courts.” Id., at 818-819. The State responded with a proposal, which the District Court ultimately approved with minor changes, after considering objections raised by the inmates. Id., at 819-820. We praised this procedure, observing that the court had “scrupulously respected the limits on [its] role,” by “not ... thrusting itself into prison administration” and instead permitting “prison administrators [to] exercise wide discretion within the bounds of constitutional requirements.” Id., at 832-833.
Id. at 362-63.
In the case sub judice, unlike in Bounds, prison administrators have already devised a program intended to assure that incarcerated juveniles have meaningful access to the courts. Thus, Lewis teaches that this Court must scrupulously respect the limits on its role by not thrusting itself into prison administration and, instead, permitting prison administrators the discretion to provide meaningful access to the courts for the incarcerated juveniles through its newly-implemented legal assistance program.
Accordingly, this Court concludes that Defendants have met their burden of establishing that their actions “made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189; see also Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (holding that there was no reasonable basis for expectating that the wrong would be repeated when the actions challenged by the prisoner were no longer in effect, making the prisoner’s fears “remote and speculative”); Weeks v. Chaboudy, 984 F.2d 185, 190 (6th Cir.1993) (holding that there was “no reasonable expectation that the wrong will be repeated,” and the injunction is therefore improper
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J.P. v. Taft, Not Reported in F.Supp.2d (2005)
because “prison personnel have already demonstrated a willingness to provide medical care consistent with this opinion”); Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir.1990) (holding that the actions of the state and federal defendants since the time the lawsuit was initiated “demonstrated that there is no reasonable likelihood ‘that the wrong will be repeated” ’).
ii. Interim relief or events eradicating effects After Plaintiffs initiated this lawsuit, Defendants significantly altered the ODYS legal assistance program. Defendants have provided uncontroverted evidence that, by this new program, all the named Plaintiffs have been provided access to attorneys for the purpose of pursuing claims related to conditions of their confinement in the ODYS juvenile correction facilities. (Doc. # 56, Affidavit of Sara R. Vollmer at ¶ 16 and Affidavit of Rhonda Richard at ¶ 7(a) attached as Exhibit A16 and Exhibit A17 respectively to Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Second Motion for Summary Judgment; Doc. # 89, Affidavit of Rhonda Richard at ¶ 8(d) attached as Exhibit C to Defendants’ Third Motion for Summary Judgment).
*17 Moreover, the Supreme Court has explained that, in prison contexts, “ ‘we encourage local experimentation’ in various methods of assuring access to the courts.” Lewis, 518 U.S. at 352 (suggesting as an example in adult prisons the replacing of law “libraries with some minimal access to legal advice and a system of court-provided forms”) (citations omitted). The Lewis court went on to state:
We hardly think that what we meant by “experimenting” with such an alternative was simply announcing it, whereupon suit would immediately lie to declare it theoretically inadequate and bring the experiment to a close. We think we envisioned, instead, that the new program would remain in place at least until some inmate could demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.
Id. at 352-53.
As this Court found supra, Defendants have not only made a genuine effort to provide the named Plaintiffs with access to attorneys for the purpose of addressing conditions of confinement, they have significantly altered their existing legal assistance program so that it will address these issues with all incarcerated juveniles. The Court will not bring this experiment to a close based on

some theoretical speculative inadequacy.
Consequently, the Court concludes that Defendants have met their burden of showing that the interim relief provided through the legal assistance program has irrevocably eradicated the effects of their earlier alleged denial of access to attorneys on the part of J.P., S .J. and D.B.
iii. Redressability Plaintiffs ask only for declaratory and injunctive relief. Because the Court concludes that Defendants’ allegedly unconstitutional actions are not reasonably likely to recur and that the interim relief provided by Defendants have irrevocably eradicated the effects of their alleged unconstitutional behavior, this Court is unable “grant any effectual relief whatever” to Plaintiffs J.P., S.J. and D.B. City of Erie v. Pap’s A.M., 529 U .S. at 287.
Further, in order to provide on a claim for future injunctive relief, a plaintiff must also demonstrate that she is in “real and immediate” danger of sustaining future, direct injury as a result of official conduct ongoing at the time of the suit. City of Los Angeles v. Lyons, 461 U.S. at 102. “Federal courts do not, as a rule, enjoin conduct which has been discontinued with no real prospect that it will be repeated.” Ragsdale v. Turnock, 841 F.2d 1358, 1366 (7th Cir.1988). This Court concludes that there is simply no real and immediate danger that the three Plaintiffs whose claims are addressed in Defendants’ Second Motion for Summary Judgment will sustain future, direct injury as a result of Defendants’ previous allegedly unconstitutional actions. Quite the contrary, these Plaintiffs are not, by reason of Defendants’ significant changes to their legal assistance program, in immediate danger of sustaining future injury; nor is there any real prospect that Defendants will not continue to provide incarcerated juveniles access to counsel through this program
*18 Finally, with regard to Plaintiffs’ request for declaratory relief, the Sixth Circuit has previously recognized that declaratory judgment actions “often require courts to face the difficult task of distinguishing ‘between actual controversies and attempts to obtain advisory opinions on the basis of hypothetical controversies.” ’ Coalition for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir.2004) (citations omitted). In Ohio Democratic Party v. Blackwell, this Court explained that [w]hile there is no “bright-line” test that assists courts in determining whether a party seeks a declaratory judgment premised on an actual controversy, and not an advisory opinion, the Supreme Court provides guidance. TCI/TKR Cable of N. Ky. v. Johnson, 30 Fed. Appx. 581 (6th Cir.2002). The Supreme Court has held that when courts
12

J.P. v. Taft, Not Reported in F.Supp.2d (2005)
consider the mootness doctrine within the context of a claim for declaratory relief, “the question is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (internal quotation marks and citation omitted); see Coalition for Gov’t Procurement, 365 F.3d at 459 (citing McCorkle with approval) (citation omitted). Such a controversy “must be definite and concrete” and it must provide for “specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.” Johnson, 30 Fed. Appx. 581 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937)) (internal quotation marks omitted).
Blackwell, 2005 U.S. Dist. LEXIS 18126, *23-24 (S.D.Ohio August 26, 2005) (finding that “[b]ecause Plaintiff is no longer challenging the ratio of voting machines to registered voters in this action, there does not appear to be an actual controversy of ‘sufficient immediacy and reality’ warranting this Court’s issuance of a declaratory judgment in favor of the State.”). Similarly, this Court concludes that, in the instant case, because Plaintiffs J.P., S.J. and D.B. have been provided counsel, there does not appear to be an actual controversy of sufficient immediacy and reality warranting the Court’s issuance of declaratory judgment in favor of these Plaintiffs. Therefore, the issuance of a declaration from this Court regarding what the law would be if Defendants had not implemented a program providing the assistance of counsel to the incarcerated juveniles would be nothing more than advisory. This Court is prohibited from issuing such advisory opinions. Coalition for Gov’t Procurement, 365 F.3d at 458.
b. Conclusion regarding mootness After an individualized appraisal of the claims, and reviewing the facts in the light most favorable to Plaintiffs, the Court holds that the claims asserted by Plaintiffs J.P., S.J. and D.B. have been rendered moot. It is clear that Defendants’ denial of access to legal counsel cannot recur with regard to J.P. and S.J., who have been released; Defendants’ initial denial of D.B.’s request for an attorney is not reasonably likely to recur and Defendants’ actions in providing counsel to D.B. has eradicated the effects of their earlier, allegedly unlawful behavior, i.e., D.B.’s attorney has filed suit on her underlying conditions of confinement claim. Consequently, this Court cannot “grant any effectual relief whatever” to Plaintiffs. City of Erie v. Pap’s A.M., 529 U.S. at 287.

*19 Accordingly, the Court GRANTS summary judgment to Defendants with regard to J.P., S.J. and D.B. because their claims have been rendered moot.
B. Defendants’ First Motion for Summary Judgment In Defendants’ First Motion for Summary Judgment, they argue that Plaintiffs failed to exhaust their administrative remedies and, thus, they cannot pursue the claims asserted in this action. Because the Court concludes, for the reasons stated supra, that it lacks subject matter jurisdiction over the claims addressed in Defendants’ First Motion for Summary Judgment, that motion is also moot.
Accordingly, the Court DENIES as moot Defendants’ First Motion for Summary Judgment.
C. Defendants’ Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs Defendants’ Motion to Disqualify Plaintiffs’ Counsel is directed to an affidavit filed in support of Plaintiffs’ Memorandum in Opposition to Defendants’ Second Motion for Summary Judgment. Defendants argue that Attorney Tandy filed substantive testimony with the Court in this affidavit and, therefore, has caused herself to become a material witness in this case. The Court, however, has resolved Defendants’ Second Motion for Summary Judgment without reference to Attorney Tandy’s affidavit.
Accordingly, the Court DENIES as moot Defendants’ Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs.
D. Defendants’ Motion for Class Certification Although the Court recognizes that Defendants’ Third Motion for Summary Judgment has not been fully briefed, the foregoing analysis raises serious issues regarding the claims of the remaining two named Plaintiffs, T.M. and M.M, related to standing and mootness. This Court cannot certify a putative class unless an individually-named plaintiff has a valid claim before it. See Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (absent an exception to mootness, a plaintiff who had standing to bring a claim must retain a live claim before the court at the time of class certification) (citations omitted).
The Court notes, however, that the issue of whether Defendants’ allegedly unconstitutional behavior (denying incarcerated juveniles access to legal counsel to bring nonfrivolous conditions of confinement lawsuits) will
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J.P. v. Taft, Not Reported in F.Supp.2d (2005)
again be before this Court once Defendants’ Third Motion for Summary Judgment is fully briefed. Although the Court expresses no opinion as to the final resolution of that motion, the evidence presently before the Court casts serious doubt on the availability of any suitable class representative, whether they be the two remaining named Plaintiffs, T.M. and M.M., or any other juveniles currently in the custody of ODYS. Consequently, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ Motion for Class Certification. Should any claims survive resolution of Defendants’ Third Motion for Summary Judgment, the Court expresses its willingness to re-visit the issue of class certification.
VI. CONCLUSION

Based on the foregoing, the Court GRANTS Defendants’ Second Motion for Summary Judgment based on this Court’s lack of subject matter jurisdiction to entertain the claims asserted by the Plaintiffs named in the Complaint. (Doc. # 24). The Court DENIES as moot Defendants’ First Motion for Summary Judgment (Doc. # 25), and DENIES as moot Defendants’ Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs (Doc. # 51). Finally, the Court DISMISSES Plaintiffs’ Motion for Class Certification (Doc. # 6), WITHOUT PREJUDICE to re-filing, if otherwise appropriate, following resolution of Defendants’ Third Motion for Summary Judgment.
*20 IT IS SO ORDERED.
	  

14

 
 J.P. v. Taft, Not Reported in F.Supp.2d (2006)

2006 WL 689091 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio, Eastern Division.
J.P., and all others similarly situated, et al., Plaintiffs, v.
Bob TAFT, et al., Defendants.
No. C2-04-692. | March 15, 2006.
Attorneys and Law Firms
Jennifer M. Kinsley, Sirkin Pinales & Schwartz, Cincinnati, OH, Kimberly Brooks Tandy, Covington, KY, Stephen L. Pevar, American Civil Liberties Union Foundation, Hartford, CT, for Plaintiffs.
Sharon A. Jennings, Joseph M. Mancini, Philip A. King, Ohio Attorney General, Geoffrey J. Moul, Murray Murphy Moul & Basil, Columbus, OH, Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Defendants.
Opinion
OPINION AND ORDER
MARBLEY, J.

A. Background
ODYS “is the legal custodian for juvenile offenders age 10-21 who have been adjudicated delinquent as a result of committing felony violations.” See Pl.’s Ex. A. ODYS operates eight juvenile correctional facilities-Circleville Juvenile Correctional facility, Mohican Juvenile Correctional facility, Cuyahoga Hills Juvenile Correctional Facility, Scioto Juvenile Correctional Facility, Ohio River Valley Juvenile Correctional Facility, Indian River Juvenile Correctional Facility, Freedom Center, and the Marion Juvenile Correctional Facility-six parole offices, and contracts with a private sector provider for services. Se id. Further, “[a]t any given time, [Ohio] DYS has approximately 1,800 youth in its custody in the correctional facilities.” Id.
In 1992, the Sixth Circuit Court of Appeals ruled that juvenile offenders require the assistance of lawyers in order to have meaningful access to the courts because juvenile offenders cannot make effective use of legal materials by themselves. See John L. Adams, 969 F.2d 228, 233 (6th Cir.1992). Nonetheless, this right to assistance of counsel has been narrowly interpreted to mean that juvenile offenders are not entitled to legal assistance on “general civil matters arising solely under state law.” Id. Moreover, the right to assistance of counsel is limited to “the preparation and the filing of the complaint.” See Knop v. Johnson, 977 F.2d 996, 1005-07 (6th Cir.1992); Bee v. Utah State Prison, 823 F.2d 397 (10th Cir.1987); Nordgren v. Milliken, 762 F.2d 851, 855 (10th Cir.1985); Ward v. Kort, 762 F.2d 856 (10th Cir.1985).

I. INTRODUCTION
*1 This matter is before the Court on the following motions by Plaintiffs, prisoners at various Ohio Department of Youth Services (“ODYS”) juvenile correctional facilities: (1) Motion to Alter or Amend this Court’s September 29, 2005 Opinion and Order1 pursuant to Federal Rule of Civil Procedure 59; and (2) Motion to Table the Court’s Preliminary Pretrial Order. For the reasons set forth herein, Plaintiffs’ Rule 59 Motion is DENIED; Plaintiffs’ Motion to Table the Court’s Preliminary Pretrial Order is MOOT.
II. STATEMENT OF FACTS

B. Procedural History
In July 2004, four youth (J.P., S.J., H.H.2 and D.B.) filed a proposed class action suit in federal court. See Pls.’ Original Complaint. Plaintiffs alleged that the Defendants violated the First, Sixth, and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Ohio Constitution by denying access to the courts for juveniles committed to ODYS as juvenile delinquents or serious juvenile offenders. See J.P., et al., 2005 WL 2405993, at *1. Plaintiffs requested declaratory and injunctive relief, asking the Court to declare that Defendants’ actions were unconstitutional and to require Defendants to provide them with access to attorneys. See id.
On January 7, 2005, Defendants filed their First Motion for Summary Judgment in which they argued that the four
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J.P. v. Taft, Not Reported in F.Supp.2d (2006)
Plaintiffs named in the Complaint had failed to exhaust their administrative remedies and, therefore, lacked standing to challenge Defendants’ legal assistance program. See Defs.’ Motion for Summary Judgment. Plaintiffs filed a response to this motion. See Pls.’ Opposition to Motion for Summary Judgment.
*2 Taking Plaintiffs’ pending claims into account, Defendants made extensive changes to the ODYS legal assistance program, and, on January 12, 2005, they filed their Second Motion for Summary Judgment arguing that the four Plaintiffs named in the Complaint lacked standing to sue. See Defs.’ Second Motion for Summary Judgment.3 Shortly thereafter, Plaintiffs served Defendants with a written discovery request in an effort to “probe the content, scope, and operation of [the Defendants’] new program.” See Pls.’ Motion at 5; Pls.’ Ex. A. Plaintiffs requested that Defendants produce the contract between ODYS and the program attorneys so that Plaintiffs could “assess the scope of [the attorneys’] duties,” as well as a description of any and all legal services the new ODYS legal services program was to provide in order to determine whether it in fact met the requirements of the law. Pls.’ Motion at 5. In response, Defendants filed a motion to stay all discovery, which the Court subsequently granted. Id.
Defendants filed their Third Motion for Summary Judgment on August 1, 2005 in which they reiterated their previous assertions and insisted that the two named Plaintiffs who had been added to the Amended Complaint lacked standing. See Pls.’ Motion at 5-6; Defs.’ Third Motion for Summary Judgment. In response, Plaintiffs, once again, sought to “engage in discovery designed to uncover the content, scope, and operation of Defendants’ new legal assistance program, and served Defendants with a second request for production of documents along with a first set of interrogatories. See Pls.’ Motion at 6; Pls’ Reply to Defs.’ Response to Pls.’ Motion for Extension of Time. In making their discovery request, Plaintiffs sought both an extension in the period of discovery initially set in the Court’s preliminary pretrial order and an extension of time to respond to Defendants’ Third Motion for Summary Judgment. See Pls.’ Motion at 6; Pls.’ Motion to Extend Discovery; Pls’ Motion for Extension. To date, ODYS has still neither produced the requested materials nor answered any of the Plaintiffs’ interrogatories. See Pls.’ Motion at 6.
On February 7, 2005, the Court held a telephonic hearing and ruled, inter alia, that Plaintiffs could not engage in any discovery regarding Defendants’ new legal assistance program, issuing a protective order to that effect. See Pls.’ Motion at 1. The Court held that before any such discovery could occur, the parties and the Court needed to address the Defendants’ questions of jurisdiction, standing, and the exhaustion of administrative remedies. Id.

In response, Plaintiffs filed a second amended complaint in March 2005. See Pls.’ Amended Complaint (the “Second A.C.”). Shortly thereafter, Defendants filed a motion requesting disqualification of Plaintiffs’ Attorney, Kim Brooks Tandy for causing herself to become a material witness in the case. See Defs.’ Motion to Disqualify Plaintiffs’ Counsel.
*3 On September 29, 2005, this Court granted Defendants’ Second Motion for Summary Judgment based on the Court’s lack of subject matter jurisdiction to entertain the Plaintiffs’ claims. See J.P., et al., 2005 WL 2405993, at *19.4 In so holding, the Court also denied as moot Defendants’ First Motion for Summary Judgment, and Defendants’ Motion to Disqualify Kim Brooks Tandy as Plaintiffs’ Counsel. Id. Finally, the Court also dismissed, without prejudice, Plaintiffs’ Motion for Class Certification, noting that Plaintiffs may have an opportunity to re-file the motion following the Court’s resolution of the Defendants’ Third Motion for Summary Judgment. Id.
Shortly thereafter, Plaintiffs filed the motions currently at issue in this case-(1) Motion to Table the Court’s Preliminary Pretrial Order, and (2) Rule 59 Motion to Alter or Amend the Court’s September 29, 2005 Opinion and Order.5 Plaintiffs contend that the Court unfairly and prematurely granted summary judgment for the Defendants without first allowing the Plaintiffs to conduct discovery concerning what they deem to be “material issues of fact.”6 Id. at 3. Further, Plaintiffs assert that the Court should promptly rule on their Class Certification motion as filed and delay ruling on the Defendants’ Second Motion for Summary Judgment pending discovery and the submission of additional briefings by Plaintiffs. Id.7 Defendants, on the other hand, counter that the Court should deny Plaintiffs’ motions because: (1) the three named plaintiffs have already “[r]eceived full discovery concerning themselves and their own claims”-including discovery about the legal assistance program as it pertains to them; and (2) even if the discovery Plaintiffs seek were to create the issues of fact they describe, “these issues are not material to the three named Plaintiffs’ own claims and thus should not warrant disturbing the Court’s findings and judgment.” Defs.’ Memo Contra at 2-3. The Court must now analyze both parties’ arguments to determine whether to reconsider its decision to in J.P., et al. See 2005 WL 2405993, at *19.
III. STANDARD OF REVIEW
A. Rule 59 Motion
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J.P. v. Taft, Not Reported in F.Supp.2d (2006)
Rule 59 allows parties to move for a court to alter or amend a previously issued judgment. See FED. RULE CIV. PRO. 59.89 Generally, there are three situations which justify reconsideration under Rule 59(e): “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or to prevent a manifest injustice.” Dualite Sales & Serv., Inc. v. Moran Foods, Inc., 2005 WL 2372847, at *1 (S.D.Ohio Sept.26, 2005) (citing In re Continental Holdings, Inc., 170 B.R. 144, 146 (Bankr.N.D.Ohio 1992)). Nevertheless, a “Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” See Brown v. City of Syracuse, 2005 WL 2033492, at *1-2 (N.D.N.Y. Aug.17, 2005) (citing 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FED. PRAC. & PRO. § 2810.1 (2d ed.1995) (footnotes omitted)).
IV. ANALYSIS
A. Motion to Table the Court’s Preliminary Pretrial Order
*4 Before reaching the merits of Plaintiffs’ Motion to Alter and Amend the Court’s previous judgment, the Court will proceed with its analysis of Plaintiffs’ Motion to Table the Court’s Preliminary Pretrial Order. On December 13, 2004, the Court issued a preliminary pretrial order (the “PPO”) outlining the schedule deadlines for the case sub judice. See Preliminary Pretrial Order. Pursuant to the PPO, the disclosure of both parties’ experts was to be completed by August 1, 2005, discovery was to close September 1, 2005, and both sides were ordered to file all of their dispositive motions by October 1, 2005.
Rather than adhering to the discovery schedule set forth in the PPO, prior to the commencement of formal discovery, Defendants filed three separate motions for summary judgment. Id. at 2.10 Nonetheless, because the Court issued a decision granting Defendant’s Second Motion for Summary Judgment on September 29, 2005, Plaintiffs’ Motion to Table the Court’s Preliminary Pretrial Procedure is now MOOT.
B. Plaintiffs’ Motion to Alter or Amend this Courts’ Previous Judgment
As presented above, on October 10, 2005, Plaintiffs timely filed a Rule 59 motion requesting that the Court

amend its September 29, 2005 order by “withdrawing its decision, both as to summary judgment and as to class certification.” See Pls.’ Motion at 1. Plaintiffs also request that the Court promptly rule on the class certification motion as it was filed and “delay ruling” on Defendants’ dispositive motions until after Plaintiffs have had a fair opportunity to engage in formal discovery. Id. at 3. The Plaintiffs contend that, “by preventing the Plaintiffs from engaging in discovery on material issues of fact before deciding those very issues against them,” and “by failing to adjudicate the Rule 23 motion before the Rule 56 motion” the Court significantly prejudiced the Plaintiffs, effectively denying them the opportunity for a fair trial. See id.
1. Adequate Discovery
First, Plaintiffs argue that by issuing the February 7, 2005 protective order denying them the opportunity to conduct discovery on the Defendants’ newly instituted legal assistance program, the Court effectively prevented them from determining whether that new program actually conforms with juvenile offenders’ right to effective assistance of counsel. See Pls.’ Motion at 24.
In considering the Plaintiffs’ motion, the Court begins with the proposition that “[c]ivil litigants are entitled to a fair trial, not a perfect one ... [A] new trial will not be ordered unless there was an error that caused some prejudice to the substantial rights of the parties.” See Jacobson v. Nat’l RR Passenger Corp., 2001 WL 775585, at *1 (N.D.Ill. July 10, 2001) (quoting Wilson v. Groaning, 25 F.3d 581, 584 (7th Cir.1984)). The Court is mindful that evidentiary rulings are within the trial court’s discretion, and accordingly, courts have held that “a party seeking a new trial11 based on alleged erroneous evidentiary rulings bears a ‘heavy burden.” ’ Id. As the Seventh Circuit has put it, “a trial judge’s discretionary rulings will be reversed only if they ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” See id. (citing Rodriguez v. Anderson, 973 F.2d at 552 n. 3 (quotations omitted)).
*5 Despite the precedent under which Plaintiffs must meet a substantial burden to show that the Court’s discovery ruling was clearly erroneous, Plaintiffs contend that their case more closely resembles others in which courts have reversed previous decisions granting summary judgment when the non-movants had not been afforded adequate discovery. White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir.1994) (reversing and remanding the district court’s decision granting summary judgment for defendants because the district court stayed all discovery only six days after the plaintiffs had submitted their first discovery request,
3

J.P. v. Taft, Not Reported in F.Supp.2d (2006)
effectively preventing any discovery from taking place); Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins., Co., 958 F.2d 836 (8th Cir.1992) (finding that the trial court’s decision to grant defendants’ motion for summary judgment before allowing defendants to conduct significant discovery was premature, and reversing and remanding the case). According to Plaintiffs,
[t]he issue is not whether Defendants claim repentance and reform; the issue is whether they have met their burden of proving with assurance that: (1) Defendants have properly assessed what it would take to provide adequate, effective, and meaningful access to the courts for all 2,400 members of the putative class; (2) they have hired and trained sufficient staff to meet the anticipated demand; (3) the program is working as intended; and (4) the changes are irrevocable and the harms caused by the old system cannot be repeated.
Pls.’ Motion at 24.
Nonetheless, both of the cases upon which Plaintiffs rely were on appeal and did not involve Rule 59 motions. Further, while it is true that there are times when a trial court may be in error in denying a party necessary discovery, it cannot be gainsaid that there are also times when courts are correct in deciding that further discovery would be superfluous. See United States v. Miami Univ., 294 F.3d 797, 815-16 (6th Cir.2002) (finding that the district court did not abuse its discretion when it denied the defendant discovery before ruling on a motion for summary judgment because “additional discovery would not [have] aid[ed] in the resolution of those questions”); City of Syracuse, 2005 WL 2033492, at *2-3 (because plaintiff was “dilatory” in seeking discovery of the files for which he had requested a discovery extension, the court denied both plaintiff’s cross-motion for additional time for discovery and plaintiff’s motion for reconsideration of the part of the court’s Memorandum-Decision and Order (“MDO”) in which it granted defendant’s motion for summary judgment).
In this case, Plaintiffs rely heavily on the argument that before altering the ODYS legal assistance program, the Defendants had engaged in at least ten years of persistent illegal conduct. Because Plaintiffs’ arguments in their Second A.C. are based entirely on Defendants’ past illegal conduct, the Court is persuaded that discovery on the Defendants’ new legal assistance program would be unnecessary.

*6 Plaintiffs also argue that even if the Defendants mooted their suit by changing the ODYS legal assistance program, the Defendants still failed to meet their burden of proving that the past harm will not recur. Though the Court concedes that Defendants bear the burden of proving that the alleged harm will not recur, because ODYS is a government entity, the burden is lighter than it would be for private parties. See J.P., et al., 2005 WL 2405993, at *12 (“[C]essation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties ... self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.”); Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir.1990) (noting that there is a “difference in the way voluntary cessation of illegal activities is treated when the offending parties are government officials”). In J.P., et al., based on a full record, this Court already held that Defendants met their burden of showing that there was “no reasonable expectation that the denial of access to an attorney will recur.” See 2005 WL 2405993, at *12-13.
Though the Court understands Plaintiffs’ frustration at their inability to gather evidence to support their case, because a Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment, Plaintiffs cannot merely reassert the same previously infirm arguments. See City of Syracuse, 2005 WL 2033492, at *2-3. Moreover, Plaintiffs have not set forth any facts showing that there was an intervening change in controlling law, new evidence not available at trial, or a clear error of law in the District Court’s decision. See Dualite Sales & Serv., Inc., 2005 WL 2372847, at *1 (setting forth the situations in which courts generally grant a party’s Rule 59(e) motion to alter or amend a previously issued judgment). As such, on the facts presented, the Court finds Plaintiffs’ claims as to the Court’s decision to limit discovery to be without merit.
2. Class Certification
Plaintiffs also argue that because they filed their Motion for Class Certification under Rule 23(b)(2) long before ODYS filed its first Motion for Summary Judgment under Rule 56,12 the Court should have adjudicated the issue of class certification before considering the issue of summary judgment. See Pls.’ Reply at 8. Further, Plaintiffs opine that the failure to do so resulted in “actual prejudice” which the Court could only now eliminate by withdrawing its previously issued order and adjudicating the Rule 23 motion on its merits. See id. Defendants, however, aver that Plaintiffs’ motion is nothing but a “thinly-disguised effort” to seek out other Plaintiffs who
4

J.P. v. Taft, Not Reported in F.Supp.2d (2006)

can reinvigorate the lawsuit. Defs.’ Opposition at 13. Defendants write, “... it is clear that the object of Plaintiffs’ request for further discovery is a fishing expedition done in speculation that there is some inadequacy in the legal assistance program overall, so that Plaintiffs might identify some other members of [a] putative class who could become named plaintiffs and continue this litigation....” Id.
*7 Considering the arguments presented by both sides, the law augurs in favor of the Defendants. See Thomas v. Moore USA, Inc., 194 F.R.D. 595, 598 (S.D.Ohio Sept.23, 1999) (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (recognizing that “class determination generally involves considerations that are enmeshed in factual and legal issues comprising the plaintiff’s cause of action ...”)). In Thomas v. Moore, plaintiffs, former employees, brought an antitrust suit against their employers for engaging in collusive conduct by allegedly agreeing not to hire or solicit one another’s employees. See 194 F.R.D. at 595. On plaintiffs’ motion for class certification, the court held that “deferral of a class certification motion until after defendants’ summary judgment motion was appropriate.” See id. at 602. The court relied on the Thompson v. County of Medina, Ohio, where the Court found that, “[i]t is reasonable to consider a Rule 56 motion first [ (before ruling on a motion for class certification) ] when an early resolution of a motion for summary judgment seems likely to protect both parties and the court from needless and further litigation.” ‘ Id.

(citing Thompson v. County of Medina, Ohio, 29 F.3d 238, 241 (6th Cir.1993)); see also Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir.1984) (rejecting the proposition that “in all cases the determination of the propriety of a class action must precede any consideration of the merits”); Gwirtz v. Ohio Educ. Ass’n, 887 F.2d 678, 683 (6th Cir.1989) (“We also agree that the district court did not err in refusing to rule on the plaintiff’s motion for class certification ... and given our affirmance of the decision of the district court in favor of the [defendant], we decline to order the district court, as the plaintiffs seek, to now certify the class.”). At this point in the litigation, the Court is persuaded that Plaintiffs have failed to assert any justification for the Court to reconsider its decision in J.P. Taft, et al., See 2005 WL 2405993, at *19.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Alter or Amend this Court’s September 29, 2005 Opinion is DENIED, and Plaintiffs’ Motion to Table the Court’s Preliminary Pretrial Order is MOOT.
IT IS SO ORDERED.
	  

Footnotes

1

See J.P. & all others similarly situated, et al. v. Taft, et al., 2005 WL 2405993 (S.D.Ohio Sept.29, 2005) (Marbley, J.) (granting

Defendants’ Second Motion for Summary Judgment for lack of subject matter jurisdiction; denying as moot Defendants’ First

Motion for Summary Judgment and Defendants’ Motion to Disqualify Kim Brooks Tandy as Plaintiffs’ Counsel; and dismissing,

without prejudice, Plaintiffs’ Motion for Class Certification).

2

On July 7, 2005, Plaintiff H.H. voluntarily dismissed her claim against Defendants.

3

According to the Defendants, the Plaintiffs lacked standing because they,

... failed to demonstrate that they have suffered any litigation-related injury as a result of the [D]efendants’ actions. Lewis v. Casey,

518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Pilgrim v. Littlefield, 92 F.3d 413 (6th Cir.1996). No violation of the right

of access to the courts occurs in the absence of injury. This means that, without evidence that the [D]efendants prevented the

[P]laintiffs from filing suit on their underlying claims or rendered their access to the courts ineffective or meaningless, [P]laintiffs

have not shown that their right of access to the courts has been violated. Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179,

153 L.Ed.2d 413 (2002); Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir.1997).

Defs.’ Second Motion for Summary Judgment at 2.

4

Though Plaintiffs allege that they were prevented from obtaining meaningful access to the courts because Defendants failed to

provide them with access to legal counsel, the court wrote, “[a]fter this case was filed, however, Defendants did in fact provide

counsel to each of the three Plaintiffs named in the original Complaint (citations omitted). Thus, Defendants voluntarily ceased

their allegedly unconstitutional actions, i.e., preventing meaningful access to the courts by denying Plaintiffs access to legal

counsel.” See J.P., et al., 2005 WL 2405993, at *12.

5

The Plaintiffs filed their Motion to Table the Court’s Preliminary Pretrial Order on September 27, 2005, before the Court had

issued its decision in J.P., et al., See 2005 WL 2405993, at *19. The Plaintiffs filed their Motion to Alter or Amend the Court’s

Judgment on October 10, 2005. See Pls.’ Motion at 1.

5

J.P. v. Taft, Not Reported in F.Supp.2d (2006)

6

Plaintiffs argue that “at least three material facts [are] in genuine dispute”: (1) whether Defendants have, in fact, designed a

constitutionally adequate legal assistance program and have provided a sufficient number of attorneys and other legal staff to

provide access to the courts to each and every child who has a valid conditions claim; (2) whether Defendants have adequately

trained their staff and contractors to properly implement this program even if the Defendants had designed an adequate legal

assistance program; and (3) whether Defendants have demonstrated a persistent failure to provide children with court access in

derogation of clearly established law, that Plaintiffs are entitled to the protection of injunctive relief to guard against recurrence.

Pls.’ Motion at 3.

7

Plaintiffs based their request on the following five facts: (1) after the lawsuit was filed challenging the constitutional adequacy of

Defendants’ legal assistance program, Defendants adopted an “entirely new and vastly different program”; (2) Plaintiffs served

Defendants with a comprehensive request for document production to allow Plaintiffs to discover the content and scope of the new

program, as well as whether the program was in fact operating as it was designed; (3) Defendants, however, refused to answer any

of the foregoing discovery requests, and, instead, filed a motion to stay all discovery; (4) the Court held a telephonic hearing and

ruled that the Plaintiffs could not engage in any discovery regarding Defendants’ new legal assistance program until the Court had

first addressed the jurisdictional and threshold questions of standing and exhaustion of administrative remedies raised by

Defendants; and (5) despite the lack of formal discovery, on September 29, the Court granted summary judgment to Defendants

stating: “Plaintiffs offer no evidence in their Memorandum in Opposition to Defendants’ Second Motion for Summary Judgment

that would tend to show the changes made the legal assistance program are in any manner deficient.” See Pls.’ Motion at 1.

8

Rule 59 states:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there

has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of

the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted

in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open

the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new

findings and conclusions, and direct the entry of a new judgment.

(b) Time for Motion. Any motion for a new trial shall be filed no later than 10 days after entry of the judgment.

(c) Time for Serving Affidavits. When a motion for new trial is based on affidavits, they shall be filed with the motion. The

opposing party has 10 days after service to file opposing affidavits, but that period may be extended for up to 20 days, either by the

court for good cause or by the parties’ written stipulation. The court may permit reply affidavits.

(d) On Court’s Initiative; Notice; Specifying Grounds. No later than 10 days after entry of judgment the court, on its own, may

order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties notice and an

opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a

new trial on its own initiative or for a reason not stated in a motion, the court shall specify the grounds in its order.

(e) Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of

the judgment.

See FED. RULE CIV. PRO. 59.

9

Rules 59(e) and 60(b) provide for different motions directed to similar ends, but Rule 59(e) generally requires a lower threshold of

proof than 60(b). See Brown v. City of Syracuse, 2005 WL 2033492, at *1 (citing Helm v. Resolution Trust Corp., 43 F.3d 1163,

1166 (7th Cir.1995)).

10

Defendants filed their First Motion for Summary Judgment on January 7, 2005, their Second Motion for Summary Judgment on

January 12, 2005, and their Third Motion for Summary Judgment on August 1, 2005.

11

Though Plaintiff here seeks a Rule 59 Alteration of Judgment, not a “new trial,” the Court finds that Plaintiffs still bear the same

heavy burden of showing that the Court’s evidentiary rulings were in error.

12

Plaintiffs filed their Motion to Certify Class on September 27, 2004. Defendants filed their Second Motion for Summary Judgment

on January 12, 2005.

	  

6

 
 J.P. v. Taft, Not Reported in F.Supp.2d (2006)
2006 WL 1071864 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division. J.P., and all others similarly situated, et al.,
Plaintiffs, v.
Bob TAFT, et al., Defendants. No. C2-04-692. | April 21, 2006.
Attorneys and Law Firms Jennifer M. Kinsley, Sirkin Pinales & Schwartz, Cincinnati, OH, Kimberly Brooks Tandy, Covington, KY, Stephen L. Pevar, American Civil Liberties Union Foundation, Hartford, CT, for Plaintiffs. Sharon A. Jennings, Ohio Attorney General, Joseph M. Mancini, Philip A. King, Ohio Attorney General, Corrections Litigation, Geoffrey J. Moul, Murray Murphy Moul & Basil, Columbus, OH, Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Defendants. Opinion
OPINION AND ORDER
ALGENON L. MARBLEY, District Judge.
I. INTRODUCTION *1 This matter comes before the Court on the Motion by Defendant, Governor Bob Taft (“Taft”), to be dismissed as a party to this action pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Defendant contends that Plaintiffs’ amended complaint contains no factual allegations sufficient to support a claim against him. For the reasons set forth herein, the Court GRANTS Defendant Taft’s Motion to Dismiss.
II. STATEMENT OF FACTS Ohio Department of Youth Services (“ODYS”) “is the

legal custodian for juvenile offenders age 10-21 who have been adjudicated delinquent as a result of committing felony violations.” See Pl.’s Ex. A. ODYS operates eight juvenile correctional facilities: Circleville Juvenile Correctional facility, Mohican Juvenile Correctional facility, Cuyahoga Hills Juvenile Correctional Facility, Scioto Juvenile Correctional Facility, Ohio River Valley Juvenile Correctional Facility, Indian River Juvenile Correctional Facility, Freedom Center, and the Marion Juvenile Correctional Facility. Id. ODYS also has six parole offices, and contracts with a private sector provider for services. See id. Further, “[a]t any given time, [Ohio] DYS has approximately 1,800 youth in its custody in the correctional facilities.” Id.
On July 29, 2004, four youth in the ODYS custody (J.P., S.J., H.H .2 and D.B.) filed a proposed class action suit in federal court. See Pls.’ Original Complaint. Plaintiffs alleged that, under the terms of 42 U.S.C. § 1983, Governor Bob Taft, Geno Natalucci-Perischetti (“Perischetti”), and ODYS (collectively, “Defendants”), violated the First, Sixth, and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Ohio Constitution by denying access to the courts for juveniles committed to ODYS as juvenile delinquents or serious juvenile offenders.3 See J.P., et al., 2005 WL 2405993, at * 1. Plaintiffs requested declaratory and injunctive relief, asking that the Court both declare Defendants’ actions unconstitutional and require Defendants to provide Plaintiffs with their constitutionally required access to attorneys and the legal system. See id.
In response, Defendant Taft filed a motion to dismiss him as a party to the litigation pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6). In March 2005, however, Plaintiffs filed a second amended complaint4, which added two new Plaintiffs, M.M. and T.M., to the litigation, and asserted new claims against Governor Taft and Thomas Stickrath, the Interim Director for ODYS, (collectively, “Defendants”).5 Plaintiffs’ second amended complaint makes the following allegations with regard to Defendant Taft’s culpability:
27. Based on plaintiffs’ information and belief, the injuries suffered by the plaintiffs, and the findings reported by Fred Cohen, who was retained by the state to investigate conditions of confinement within ODYS facilities, plaintiffs allege that Governor Taft inadequately trained the Director of Youth Services in the proper performance of his duties and inadequately supervised the Department of Youth Services and its staff, thereby proximately causing the injuries that give rise to this action. *2 28. Moreover, plaintiffs allege that Governor Taft, although aware that plaintiffs’ right of access to the courts has been and is being hindered, has failed to conduct a
1

J.P. v. Taft, Not Reported in F.Supp.2d (2006)
reasonable inquiry into the deficiencies that are causing plaintiffs’ injuries, and has not undertaken reasonable means to correct or eradicate those deficiencies.
See Pl.’s Second Amended Complaint ¶¶ 27-28.
Shortly after Plaintiffs filed their second amended complaint., Defendant Taft filed a Second Motion to Dismiss. The issues have been fully briefed and are now ripe for decision. The Court’s analysis follows.
III. STANDARD OF REVIEW
In considering a Rule 12(b)(6) Motion to Dismiss, a Court is limited to evaluating whether a plaintiff’s complaint sets forth allegations sufficient to make out the elements of a cause of action. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983). All factual allegations made by a plaintiff are deemed admitted and ambiguous allegations must be construed in his favor. See id. A complaint should not be dismissed under Rule 12(b)(6) “ ‘unless it appears beyond doubt that [a p]laintiff can prove no set of facts in support of his claim which would entitle him to relief.’ “ Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the complaint need not specify every detail of a plaintiff’s claim, it must give a defendant “ ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ “ Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994) (quoting Conley, 355 U.S. at 47). Nonetheless, this liberal standard of review requires more than the bare assertion of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993) (citations omitted). Moreover, in the context of a civil rights claim, conclusory allegations of unconstitutional conduct without specific factual allegations in support thereof fail to state a claim under section 1983. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986). Some factual basis for such claims must be set forth in the pleadings. Id.
IV. ANALYSIS
Section 1983 states in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the

deprivation of any rights, privileges or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...
42 U.S.C. § 1983. Section 1983 “ ‘creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.’ “ Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)).
*3 Supervisory liability cannot be imposed under Section 1983 on a theory of respondeat superior. See Monell v. New York Dept. of Social Servs., 436 U.S. 658 (1978). To be held liable for a claim for damages, a supervisor must have “at least implicitly authorized, approved[,] or knowingly acquiesced in the unconstitutional conduct [in question].” See Birrell v. Brown, 867 F.2d 956, 959 (6th Cir.1989); O’Banion v. Bowman, 824 F.Supp. 743, 744 (S.D.Ohio 1993). Stated otherwise, “[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it ...” See Bellamy v. Bradley, 729 F.2d 416 (6th Cir.1984). Supervisory liability may be based upon any of the following: (1) active participation in the unconstitutional conduct; (2) encouragement or condonement of the specific incident of misconduct; (3) a policy of inadequately training subordinates; or (4) failure to conduct a reasonable inquiry after the fact. See O’Banion, 824 F.Supp. at 745 (internal citations omitted).
In this case, Plaintiffs allege that Defendant Taft is liable in his supervisory capacity because he inadequately trained the ODYS director, and because he failed to conduct a reasonable inquiry into Plaintiffs’ allegations that they were being denied access to the courts. See Pl.’s Second Amended Complaint ¶ 27. Plaintiffs, however, fail to set forth any facts in support of their otherwise conclusory allegations, and, therefore, the second amended complaint lacks adequate specificity to withstand Defendant Taft’s 12(b)(6) motion to dismiss.6
Furthermore, the law augurs in favor of Defendant Taft. See Bowen v. Taft, 62 Fed. Appx. 117 (6th Cir.2003) (affirming the dismissal of Governor Taft from plaintiff’s Section 1983 civil rights action for unconstitutional conditions of confinement because plaintiff did not allege facts in support of his claim that the Governor was complicit in the alleged wrongdoing); Gallagher v. Goldhart, 889 F.2d 1087 (6th Cir.1989) (dismissing the Governor of Ohio from plaintiff’s section 1983 civil rights action for unconstitutional conditions of confinement because the Governor was not liable under a
2

J.P. v. Taft, Not Reported in F.Supp.2d (2006)

theory of respondeat superior); Bond v. Wilkinsoni, 889 F.2d 1086 (6th Cir.1989) (dismissing the Governor of Kentucky from a plaintiff’s Section 1983 civil rights action for unconstitutional sentencing because the Governor was not liable under a respondeat superior theory); Gallager v. State of Ohio, 893 F.2d 1334 (6th Cir.1990) (dismissing the Governor of Ohio from plaintiff’s Section 1983 civil rights action for unconstitutional arrest and prosecution because the Governor was not liable under a respondeat superior theory).
Because Plaintiffs failed to plead specific facts showing that Taft directly and actively participated in the alleged constitutional injury, their second amended complaint fails to state a claim upon which relief can be granted. Therefore, the Court must GRANT Defendant Taft’s

Motion to be Dismissed as a Party to this Action.
V. CONCLUSION *4 For the foregoing reasons, Defendant Taft’s Second Motion to Dismiss is GRANTED and Defendant Taft’s First Motion to Dismiss is MOOT. The case is hereby dismissed as to Defendant Taft. IT IS SO ORDERED.
	  

Footnotes

1

On December 30, 2004, Defendant Taft brought an earlier motion to be dismissed as a party to this litigation pursuant to Rules 8(a)

and 12(b)(6) of the Federal Rules of Civil Procedure (the “First Motion to Dismiss”). [Doc. No. 23]. Plaintiffs filed a response in

opposition to Defendant Taft’s First Motion to Dismiss [Doc. No. 43], and later filed an amended complaint incorporating new

plaintiffs, new defendants, and new allegations [Doc. No. 77]. Taft’s Second Motion to Dismiss replaces his First Motion to

Dismiss, and his First Motion to Dismiss is hereby MOOT.

2

On July 7, 2005, Plaintiff H.H. voluntarily dismissed her claim against Defendants.

3

In 1992, the Sixth Circuit Court of Appeals ruled that juvenile offenders require the assistance of lawyers in order to have

meaningful access to the courts because juvenile offenders cannot make effective use of legal materials by themselves. See John L.

Adams, 969 F.2d 228, 233 (6th Cir.1992). This right to assistance of counsel has been narrowly interpreted to mean that juvenile

offenders are not entitled to legal assistance on “general civil matters arising solely under state law.” Id. Moreover, the right to

assistance of counsel is limited to “the preparation and the filing of the complaint.” See Knop v. Johnson, 977 F.2d 996, 1005-07

(6th Cir.1992); Bee v. Utah State Prison, 823 F.2d 397 (10th Cir.1987); Nordgren v. Milliken, 762 F.2d 851, 855 (10th Cir.1985);

Ward v. Kort, 762 F.2d 856 (10th Cir.1985).

4

Plaintiffs filed their first amended complaint on March 7, 2005 [Doc. No. 40], but terminated that motion on March 8, 2005.

5

Plaintiffs’ second amended complaint eliminates ODYS and Perischetti as Defendants. See Pl.’s Second Amended Complaint.

6

In paragraph 27 of their Complaint, Plaintiffs reference a report by Mr. Fred Cohen, who was “retained by the state to investigate

conditions of confinement within ODYS facilities.” See Pl.’s Second Amended Complaint ¶ 27 (emphasis added). Though

Plaintiffs assert that their reference to Mr. Cohen’s report shows that there were “massive derelictions of duties by ODYS staff,”

Mr. Cohen’s report was based on conditions of confinement, not upon access to the legal system. Because the report was only

tangentially related to Plaintiffs’ allegations, it does not serve as sufficient factual support for Plaintiffs’ claims against Defendant

Taft.

	  

3

 
 CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?113438115253793-L_3...

U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:04-cv-00692-ALM-NMK

CLOSED

J.P. and all others similarly situated et al v. Taft et al Assigned to: Algenon L. Marbley Referred to: Norah McCann King related Case: 2:07-cv-00170-GCS-MRA Cause: 42:1983 Civil Rights Act

Date Filed: 07/29/2004 Date Terminated: 03/06/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
J.P. and all others similarly situated c/o Children's Law Center Inc

represented by Jennifer M Kinsley Sirkin Pinales & Schwartz - 1 105 W Fourth Street Suite 920 Cincinnati, OH 45202 513-721-4876 Fax: 513-721-0876 Email: jkinsley@sirkinpinales.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Brooks Tandy Children's Law Center 104 East 7th Street Covington, KY 41011 859-431-3313 Email: kimbrooks@fuse.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
S.J. and all others similarly situated c/o Children's Law Center

Stephen L Pevar American Civil Liberties Union Foundation 32 Grand Street Hartford, CT 06106 860-293-1559 Email: pevaraclu@aol.com ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated c/o Children's Law Center
Plaintiff H. H. TERMINATED: 07/08/2005 V. Defendant Bob Taft Governor of the State of Ohio, in his official capacity only TERMINATED: 04/21/2006
Defendant Ohio Department of Youth Services
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Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L Pevar (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L Pevar (See above for address) ATTORNEY TO BE NOTICED
represented by H. H. PRO SE
represented by Sharon A Jennings Ohio Attorney General - 2 30 E Broad Street 17th Floor Columbus, OH 43215-3428 614-466-2872 Email: sjennings@ag.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph M. Mancini Ohio Attorney General - 2 Corrections Litigation 150 East Gay Street 16th Floor Columbus, OH 43215-6001 614-644-7233
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Fax: 614-728-9327 Email: jmancini@ag.state.oh.us TERMINATED: 10/05/2006 LEAD ATTORNEY
Philip A King The Supreme Court of Ohio Office of Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, OH 43215-7411 614-461-0256 Fax: 614-461-7205 Email: kingp@sconet.state.oh.us TERMINATED: 10/05/2006 LEAD ATTORNEY
Brian A Basil Murray Murphy Moul + Basil LLP 1533 Lake Shore Drive Columbus, OH 43204 614-488-0400 Fax: 614-488-0401 Email: basil@mmmb.com ATTORNEY TO BE NOTICED
Geoffrey J Moul Murray Murphy Moul & Basil - 2 1533 Lake Shore Drive Columbus, OH 43204 614-488-0400 Email: moul@mmmb.com ATTORNEY TO BE NOTICED
Mary Anne Reese Attorney General of Ohio 441 Vine Street Suite 1600 Cincinnati, OH 45202 513-852-3497 Fax: 513-852-3484 Email: mreese@ag.state.oh.us TERMINATED: 08/02/2006
Richard Thomas Cholar, Jr. Ohio Attorney General 150 East Gay Street, 16th Floor Columbus, OH 43215 614-644-7233 Fax: 614-728-9327 Email: rcholar@ag.state.oh.us
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Defendant Geno Natalucci-Perischetti Director of Youth Services, in his official capacity only
Defendant Thomas Stickrath Interim Director, Ohio Youth Services, in his official capacity only

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TERMINATED: 10/05/2006
represented by Joseph M. Mancini (See above for address) TERMINATED: 10/05/2006 LEAD ATTORNEY
Philip A King (See above for address) TERMINATED: 10/05/2006 LEAD ATTORNEY
Mary Anne Reese (See above for address) TERMINATED: 08/02/2006
Richard Thomas Cholar, Jr. (See above for address) TERMINATED: 10/05/2006
represented by Joseph M. Mancini (See above for address) TERMINATED: 10/05/2006 LEAD ATTORNEY
Philip A King (See above for address) TERMINATED: 10/05/2006 LEAD ATTORNEY
Brian A Basil (See above for address) ATTORNEY TO BE NOTICED
Geoffrey J Moul (See above for address) ATTORNEY TO BE NOTICED
Mary Anne Reese (See above for address) TERMINATED: 08/02/2006
Richard Thomas Cholar, Jr. (See above for address) TERMINATED: 10/05/2006

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Date Filed 07/29/2004 07/29/2004 08/26/2004 08/26/2004 08/30/2004 09/02/2004
09/27/2004 09/28/2004
09/29/2004 09/30/2004 09/30/2004
10/01/2004

#

Docket Text

1 COMPLAINT against all defendants (Filing fee paid $ 150.) , filed by Plaintiffs J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated.(sln, ) (Entered: 08/02/2004)
2 Filing fee paid : $ 150.00, receipt number 242563 (sln, ) (Entered: 08/02/2004)
3 MOTION for Leave to Appear Pro Hac Vice for atty Stephen Pevar for all Plaintiffs filed on 8/26/04. (er ) (Entered: 08/27/2004)
Filing fee: $ 50, receipt number 200242996 for PHV- Stephen Pevar (er) (Entered: 08/27/2004)
4 ORDER granting 3 Motion for Leave of Stephen Pevar to Appear Pro Hac Vice on behalf of plaintiffs. Signed by Judge Norah McCann King on 8/30/04. (jdm, ) (Entered: 08/31/2004)
5 WAIVER OF SERVICE was signed on 8/31/04 and returned executed on 9/2/04: Geno Natalucci-Perischetti waiver sent on 8/2/2004, answer due 10/1/2004, Ohio Department of Youth Services waiver sent on 8/2/2004, answer due 10/1/2004, and Bob Taft waiver sent on 8/2/2004, answer due 10/1/2004. (er ) (Entered: 09/07/2004)
6 MOTION to Certify Class by Plaintiffs J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated. Responses due by 10/21/2004 (Kinsley, Jennifer) (Entered: 09/27/2004)
7 ORDER re 6 MOTION to Certify Class filed by J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated; Non-oral hearing on said motion set for 11/15/2004. Signed by Judge Gregory L Frost on 9/28/04. (sem, ) (Entered: 09/28/2004)
8 NOTICE by Defendants Geno Natalucci-Perischetti, Ohio Department of Youth Services of Waiver of Reply to Complaint and Request for Court Conference (Mancini, Joseph) (Entered: 09/29/2004)
Notice of Corrective Entry: Judge Frost was inadverently added to this case during the docketing of the complaint on 7/29/04. Judge Marbley was assigned to this action on 7/29/04 and has now been added to the docket. (sem, ) (Entered: 09/30/2004)
9 ORDER VACATING the Non-Oral hearing set re 6 MOTION to Certify Class filed by J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated. Signed by Judge Gregory L Frost on 9/30/04. (sem, ) (Entered: 09/30/2004)
10 NOTICE of Hearing: Status Conference set for 10/21/2004 @ 02:00 PM in chambers before Norah McCann King. (jdm, ) (Entered: 10/01/2004)

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10/01/2004 10/01/2004 10/11/2004 10/11/2004
10/12/2004 10/14/2004 11/05/2004
11/08/2004 11/22/2004 11/23/2004
12/10/2004 12/13/2004

Remark - copy of status conference notice sent to Sharon Jennings, 30 E Broad St., 17th Floor, Columbus, Ohio 43215 (jdm, ) (Entered: 10/01/2004)
11 NOTICE by Defendant Bob Taft re: Waiver of Reply and Request for Conference (Jennings, Sharon) (Entered: 10/01/2004)
12 First MOTION to Stay this case; and in the alternative motion for extension of time filed by Defendants Geno Natalucci-Perischetti, Ohio Department of Youth Services. (King, Philip) (Entered: 10/11/2004)
13 RESPONSE to Motion re 12 First MOTION to Stay this case; and in the alternative motion for extension of time filed filed by Plaintiffs J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated. (Kinsley, Jennifer) (Entered: 10/11/2004)
14 ORDER granting 12 Motion to Stay, This action is stayed pending the first status conference set before Magistrate judge Norah King. Signed by Judge Norah McCann King on 10/12/04. (jm) (Entered: 10/12/2004)
15 The Status conference previously scheduled for October 21, 2004 is CONTINUED to November 4, 2004, at 1:30 p.m.. Signed by Judge Norah McCann King on 10/13/04. (jm) (Entered: 10/14/2004)
16 ORDER - a status conference was held on 11/4/2004. Defendants are oredered to provide to plaintiffs by 11/15/2004, a written, comprehensive articulation of their proposed program intended to meet the allegations of the complaint. Plaintiffs will respond in writing no later than 11/24/2004. Another Status Conference is set for 12/10/2004 @ 11:00 AM before Norah McCann King.. Signed by Judge Norah McCann King on 11/04/04. (jdm, ) (Entered: 11/05/2004)
17 NOTICE of Hearing: The status conference set for 12/10/2004 has been rescheduled. The Status Conference is now set for 12/13/2004 @ 11:00 AM in chambers before Norah McCann King. (jdm, ) (Entered: 11/09/2004)
18 MOTION to Vacate Hearing by Plaintiffs J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated. (Kinsley, Jennifer) (Entered: 11/22/2004)
19 ORDER denying 18 plaintiff's Motion to Vacate the status conference set for 12/13/2004. However, the conference will proceed as a preliminary pretrial conference. The parties will submit a joint Rule26(f) report no later than December 10, 2004.. Signed by Judge Norah McCann King on 11/23/04. (jdm, ) (Entered: 11/23/2004)
20 REPORT of Rule 26(f) Planning Meeting. (Mancini, Joseph) (Entered: 12/10/2004)
21 PRELIMINARY PRETRIAL ORDER: defendants will file answers by 12/31/2004. Dispositive motions will be filed by 1/14/2005. Memo contra will be filed by 1/28/2005. The parties may, without further leave of Court, agree to exceed the limits on discovery established by the Federal Rules of Civil Procedure. Joinder of Parties due by 2/14/2005. Motions to Amend due by 2/14/2005. Rule 26(a)(1) Disclosures due by 12/27/2005. Primary Expert due by

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12/30/2004 12/30/2004 01/07/2005 01/12/2005
01/13/2005 01/20/2005
01/21/2005 01/26/2005 01/26/2005
01/27/2005 01/28/2005

7/1/2005. Rebuttal Expert due by 8/1/2005. Discovery due by 9/1/2005. Dispositive motions due by 10/1/2005. Settlement Week due by 3/1/2005. Final Pretrial Conference ready by 12/1/2005.. Signed by Judge Norah McCann King on 12/13/04. (jdm, ) (Entered: 12/14/2004)
22 ANSWER to Complaint by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti.(King, Philip) (Entered: 12/30/2004)
23 MOTION to Dismiss by Defendant Bob Taft. Responses due by 1/24/2005 (Jennings, Sharon) (Entered: 12/30/2004)
24 MOTION for Summary Judgment by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. Responses due by 1/31/2005 (Attachments: # 1 Exhibits)(Mancini, Joseph) (Entered: 01/07/2005)
25 MOTION for Summary Judgment Second Motion for Summary Judgment by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. Responses due by 2/7/2005 (Attachments: # 1 Exhibit Exhibit A and Exhibit list# 2 Exhibit A1 through A3# 3 Exhibit A4 through A15)(Mancini, Joseph) (Entered: 01/12/2005)
26 MOTION to Stay Defendants' Motion to Stay Discovery by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit Affidavit of Philip A. King)(Mancini, Joseph) (Entered: 01/13/2005)
27 MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss New date requested 2/7/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 01/20/2005)
28 ORDER granting 27 Motion for Extension of Time to File Response. Responses due by 2/7/2005. Signed by Judge Norah McCann King on 01/21/05. (jm) (Entered: 01/21/2005)
29 MOTION for Extension of Time New date requested 2/26/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 01/26/2005)
30 MOTION for Extension of Time to File Response/Reply New date requested 2/26/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Exhibits A & B)(Kinsley, Jennifer) (Entered: 01/26/2005)
31 ORDER granting 30 Motion for Extension of Time to File Response/Reply, granting 29 Motion for Extension of Time until 2/26/05. Signed by Judge Norah McCann King on 01/27/05. (jm, ) (Entered: 01/27/2005)
32 RESPONSE in Opposition re 6 MOTION to Certify Class filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Mancini, Joseph) (Entered: 01/28/2005)

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02/02/2005 02/02/2005 02/03/2005
02/07/2005 02/08/2005 02/25/2005 03/01/2005 03/07/2005 03/07/2005
03/07/2005

Notice of Correction - the notice of settlement conference notice was sent in error. It applied to another case and was deleted from this case. (jdm, ) (Entered: 02/02/2005)
33 NOTICE of Hearing: Settlement Conference set for 3/16/2005 @ 10:30 AM before Mediator Donald Keller. (jdm, ) (Entered: 02/02/2005)
34 MOTION for Temporary Restraining Order , Extension of Time, and Response to Defendants' Motion to Stay Discovery by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Affidavit Affidavits of Kim Brooks Tandy and Jennifer M. Kinsley)(Kinsley, Jennifer) (Entered: 02/03/2005)
35 ORDER :The mediation conference scheduled for March 16, 2005, is VACATED.. Signed by Judge Norah McCann King on 02/04/05. (jm) (Entered: 02/07/2005)
36 ORDER granting in part and denying in part 34 Plaintiffs' Combined Motion for TRO, an Extension of Time to Respond to Defendants' Dispositive Motions, and Response to Defendants' Motion to Stay Discovery . Signed by Judge Algenon L. Marbley on 2/8/05. (sem, ) Modified on 4/7/2005 to reflect the Order being signed by Judge Marbley not Judge Frost(cw, ). (Entered: 02/08/2005)
37 MOTION for Extension of Time to File Response/Reply as to 24 MOTION for Summary Judgment, 25 MOTION for Summary Judgment Second Motion for Summary Judgment New date requested 3/25/2005. by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (King, Philip) (Entered: 02/25/2005)
38 ORDER granting 37 Motion for Extension of Time to File Response/Reply as to 24 MOTION for Summary Judgment, 25 MOTION for Summary Judgment New date requested 3/25/2005. Replies due by 3/25/2005. Signed by Judge Norah McCann King on 02/28/05. (jm) (Entered: 03/01/2005)
39 MOTION for Leave to File Amend Complaint by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
40 AMENDED COMPLAINT for Declaratory and Injunctive Relief against Bob Taft, Ohio Department of Youth Services, filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated, Defendants Bob Taft, Ohio Department of Youth Services.(Kinsley, Jennifer) (Entered: 03/07/2005)
41 MOTION for Leave to File Amend Complaint by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Amended Complaint for Declaratory and Injunctive Relief)(Kinsley, Jennifer) (Entered: 03/07/2005)

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03/07/2005 03/07/2005 03/07/2005 03/07/2005 03/07/2005
03/07/2005 03/08/2005 03/08/2005 03/17/2005 03/17/2005 03/17/2005 03/22/2005

42 NOTICE by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated that Plaintiffs have filed the following Combined Exhibits (Kinsley, Jennifer) (Entered: 03/07/2005)
43 RESPONSE in Opposition re 23 MOTION to Dismiss filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
44 REPLY to Response to Motion re 6 MOTION to Certify Class filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
45 RESPONSE in Opposition re 24 MOTION for Summary Judgment filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
46 RESPONSE in Opposition re 25 MOTION for Summary Judgment Second Motion for Summary Judgment filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
47 MOTION to Seal Juvenile Plaintiffs' Affidavits by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/07/2005)
48 Juvenile Plaintiffs' AFFIDAVITS FILED UNDER SEAL (jmc1, ) (Entered: 03/08/2005)
49 ORDER re 39 MOTION for Leave to File Amend Complaint, 40 Amended Complaint, filed by J.P. and all others similarly situated, . The Clerk is DIRECTED to STRIKE doc. Nos. 39 and 40. Signed by Judge Norah McCann King on 03/08/05. (jm) (Entered: 03/08/2005)
50 NOTICE of Appearance by Mary Anne Reese Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti (Reese, Mary) (Entered: 03/17/2005)
51 MOTION for Order to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit 1, Hood v Midwest# 2 Exhibit H, Tandy Affidavit)(Reese, Mary) (Entered: 03/17/2005)
52 MOTION for Order to Determine The Status Of One Of The Plaintiffs In This Action by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A, Affidavit of Nan Hoff)(Mancini, Joseph) (Entered: 03/17/2005)
53 MOTION for Extension of Time New date requested 3/31/2005. to respond to Plaintiffs' Motion to Amend by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (King, Philip) (Entered: 03/22/2005)

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03/24/2005
03/25/2005 03/25/2005 03/25/2005 03/25/2005 03/31/2005 04/01/2005 04/05/2005 04/06/2005
04/07/2005

54 MOTION for Extension of Time to File Response/Reply as to 51 MOTION for Order to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs, 52 MOTION for Order to Determine The Status Of One Of The Plaintiffs In This Action New date requested 4/21/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 03/24/2005)
55 RESPONSE in Support re 24 MOTION for Summary Judgment (First) filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit E1 - E4# 2 Exhibit F1 - F4# 3 Exhibit G# 4 Exhibit H)(Mancini, Joseph) (Entered: 03/25/2005)
56 RESPONSE in Support re 25 MOTION for Summary Judgment Second Motion for Summary Judgment filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A16# 2 Exhibit A17# 3 Exhibit A18)(Mancini, Joseph) (Entered: 03/25/2005)
57 ORDER granting 54 Motion for Extension of Time to File Response/Reply Responses due by 4/21/2005. Signed by Judge Norah McCann King on 03/25/05. (jm) (Entered: 03/25/2005)
58 ORDER granting 53 Motion for Extension of Time until March 31, 2005. Signed by Judge Norah McCann King on 03/25/05. (jm) (Entered: 03/25/2005)
59 RESPONSE in Opposition re 41 MOTION for Leave to File Amend Complaint filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A, Affidavit of Rhonda Richard)(Mancini, Joseph) (Entered: 03/31/2005)
60 MOTION for Order to Show Cause by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Letters from Joe Mancini, Jennifer Kinsley, and Elizabeth Gorman)(Kinsley, Jennifer) (Entered: 04/01/2005)
61 MOTION for Extension of Time to File Response/Reply as to 59 Response in Opposition to Motion New date requested 4/25/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 04/05/2005)
62 MOTION for Order to Direct Counsel for Plaintiffs to Cease and Desist and Response to Plaintiffs Motion to Show Cause (Doc. 60) by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A, 3-25-05 Letter# 2 Exhibit B, 3-28-05 Letter# 3 Exhibit C, 3-29-05 Email# 4 Exhibit D, Stapleton Affidavit# 5 Exhibit E, Moore Affidavit)(Mancini, Joseph) (Entered: 04/06/2005)
63 ORDER granting 61 Motion for Extension of Time to File Response Responses due by 4/25/2005. Signed by Judge Norah McCann King on 04/06/05. (jm) (Entered: 04/07/2005)

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04/07/2005
04/08/2005 04/08/2005 04/15/2005 04/15/2005 04/15/2005 04/15/2005 04/18/2005 04/18/2005
04/20/2005
04/21/2005 04/21/2005

64 MOTION for Temporary Restraining Order by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Letters from Joe Mancini, Jennifer Kinsley, Elizabeth Gorman)(Kinsley, Jennifer) (Entered: 04/08/2005)
65 ORDER granting 64 Motion for TRO. This order shall remain in effect until 5:00 p.m. on 4/18/2005. The Preliminary Injunction Hearing is hereby set for 4/18/2005 at 1:30 p.m. in Courtroom 1, before Judge Marbley. Signed by Judge Algenon L. Marbley on 4/8/2005. (cw, ) (Entered: 04/08/2005)
Set Preliminary Injunction Hearing set for 4/18/2005 01:30 PM in Courtroom 1 before Algenon L. Marbley. (cw, ) Modified to state type of hearing on 4/8/2005 (cw, ). (Entered: 04/08/2005)
66 NOTICE OF WITHDRAWL OF DOCUMENT by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated re 60 MOTION for Order to Show Cause (Kinsley, Jennifer) (Entered: 04/15/2005)
ORDER VACATING Preliminary Injunction Hearing scheduled for 4/18/05. Signed by Judge Algenon L. Marbley on 4/15/2005. (cw, ) (Entered: 04/15/2005)
67 ORDER vacating Preliminary Injunction Hearing on 4/18/05. Signed by Judge Algenon L. Marbley on 4/15/2005. (cw, ) (Entered: 04/15/2005)
68 NOTICE by Defendant Ohio Department of Youth Services of its proposed rule concerning attorney visits (Attachments: # 1 Exhibit A)(King, Philip) (Entered: 04/15/2005)
69 NOTICE OF WITHDRAWL OF DOCUMENT by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti re 62 MOTION for Order to Direct Counsel for Plaintiffs to Cease and Desist and Response to Plaintiffs Motion to Show Cause (Doc. 60) (King, Philip) (Entered: 04/18/2005)
70 REPLY to Response to Motion re 41 MOTION for Leave to File Amend Complaint filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Unreported case and "Your Legal Rights" form)(Kinsley, Jennifer) (Entered: 04/18/2005)
71 RESPONSE to Motion re 51 MOTION for Order to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 04/20/2005)
72 TRANSCRIPT of 65.1 Proceedings held on 04/08/05 before Judge Marbley. Court Reporter: Joan Koenig. (ja, ) (Entered: 04/21/2005)
73 RESPONSE to Motion re 52 MOTION for Order to Determine The Status Of One Of The Plaintiffs In This Action filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley,

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05/02/2005 05/02/2005 05/18/2005 05/18/2005
06/01/2005 06/02/2005 06/21/2005 06/29/2005 07/01/2005 07/01/2005 07/01/2005 07/05/2005

Jennifer) (Entered: 04/21/2005)
74 REPLY to Response to Motion re 51 MOTION for Order to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Reese, Mary) (Entered: 05/02/2005)
75 REPLY to Response to Motion re 52 MOTION for Order to Determine The Status Of One Of The Plaintiffs In This Action filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A, Affidavit of Philip King)(Mancini, Joseph) (Entered: 05/02/2005)
76 OPINION AND ORDER granting 41 Motion for Leave to File amended complaint.The pending motions for summary judgment will be deemed to apply to the amended complaint . Signed by Judge Norah McCann King on 05/17/05. (jm) (Entered: 05/18/2005)
77 AMENDED COMPLAINT against Bob Taft, Ohio Department of Youth Services, Geno Natalucci-Perischetti, filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated.(jm ) (Entered: 05/18/2005)
78 ANSWER to Amended Complaint by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti.(Mancini, Joseph) (Entered: 06/01/2005)
79 MOTION to Dismiss Party by Defendant Bob Taft. Responses due by 6/27/2005 (Jennings, Sharon) (Entered: 06/02/2005)
80 RESPONSE in Opposition re 79 MOTION to Dismiss Party filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 06/21/2005)
81 NOTICE by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti of Intent to File Third Motion for Summary Judgment (Mancini, Joseph) (Entered: 06/29/2005)
82 MOTION for Extension of Time New date requested 11/1/2005. to Disclose Experts by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 07/01/2005)
83 MOTION for Extension of Time to File Response/Reply as to 80 Response in Opposition to Motion, New date requested 7/12/2005. by Defendant Bob Taft. (Attachments: # 1)(Jennings, Sharon) (Entered: 07/01/2005)
84 MOTION for Extension of Time New date requested 11/1/2005. to Disclose Expert Witnesses by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Mancini, Joseph) (Entered: 07/01/2005)
85 ORDER granting 83 MOTION for Extension of Time to File Reply to 80 Response in Opposition to Motion to dismiss the complaint. Replies due by 7/12/2005. Signed by Judge Norah McCann King on 7/5/05. (er ) (Entered: 07/05/2005)

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07/05/2005 07/07/2005 07/12/2005 08/01/2005
08/16/2005
08/17/2005 08/29/2005 08/30/2005 08/30/2005
09/06/2005
09/07/2005 09/08/2005

86 ORDER: Upon the parties' motions, Doc Nos. 82 & 84, the date for disclosure of expert witnesses is EXTENDED until 11/1/05. The date for submitting responsive disclosures is EXTENDED until 12/1/05. Signed by Judge Norah McCann King on 7/5/05. (er ) (Entered: 07/05/2005)
87 NOTICE of Voluntary Dismissal (Kinsley, Jennifer) (Entered: 07/07/2005)
88 REPLY to Response to Motion re 79 MOTION to Dismiss Party filed by Defendant Bob Taft. (Jennings, Sharon) (Entered: 07/12/2005)
89 Third MOTION for Summary Judgment by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. Responses due by 8/25/2005 (Attachments: # 1 Exhibit A, Rollins Affidavit re: MM# 2 Exhibit B, Rollins Affidavit Re: TM# 3 Exhibit C, Richard Affidavit# 4 Exhibit C1, Vollmer Affidavit# 5 Exhibit C2, Hoff Affidavit# 6 Exhibit C3, Hicks Email# 7 Exhibit C4, Moore Affidavit)(Mancini, Joseph) (Entered: 08/01/2005)
90 MOTION for Extension of Time to File Response/Reply as to 89 Third MOTION for Summary Judgment New date requested 11/25/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 08/16/2005)
91 ORDER Setting Hearing on Motion 6 MOTION to Certify Class: Motion Hearing set for 9/9/2005 10:00 AM in Courtroom 1 before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 8/17/2005. (cw, ) (Entered: 08/17/2005)
92 RESPONSE in Opposition re 90 MOTION for Extension of Time to File Response/Reply as to 89 Third MOTION for Summary Judgment New date requested 11/25/2005. filed by Defendants Bob Taft, Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Mancini, Joseph) (Entered: 08/29/2005)
93 NOTICE by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti to File a Supplemental Memorandum in Support of Their 3rd Motion for Summary Judgment (Mancini, Joseph) (Entered: 08/30/2005)
94 MOTION for Extension of Time to Complete Discovery New date requested 2/1/2006. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 08/30/2005)
95 REPLY to Response to Motion re 90 MOTION for Extension of Time to File Response/Reply as to 89 Third MOTION for Summary Judgment New date requested 11/25/2005. filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Order; Affidavit of Jennifer Kinsley)(Kinsley, Jennifer) (Entered: 09/06/2005)
96 ORDER finding as moot 23 Motion to Dismiss . Signed by Judge Algenon L. Marbley on 9/7/2005. (cw, ) (Entered: 09/07/2005)
97 MOTION for Order to Grant Leave to File Supplemental Memorandum in Support of Third Motion for Summary Judgment by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Supplemental

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09/09/2005 09/12/2005 09/12/2005 09/15/2005 09/16/2005
09/20/2005 09/27/2005 09/27/2005 09/29/2005
09/29/2005

Memorandum in Support of Third Motion for Summary Judgment# 2 Exhibit A of Supplemental Memorandum in Support of Third Motion for Summary Judgment)(Mancini, Joseph) (Entered: 09/08/2005)
98 Minute Entry for proceedings held before Judge Algenon L. Marbley : Motion Hearing held on 9/9/2005 re 6 MOTION to Certify Class filed by J.P. and all others similarly situated. (Court Reporter Joan Koenig.) (sln, ) (Entered: 09/09/2005)
99 ORDER granting # 97 Motion for Order to file the memorandum in support. Signed by Judge Norah McCann King on 9/12/05. (rew ) (Entered: 09/12/2005)
100 Supplemental Supporting: Defendants (Ohio Department of Youth services and Director Thomas Stickrath) supplemental memorandum in support of their third motion for summary judgment. (Attachments: # 1 Exhibit)(rew) (Entered: 09/12/2005)
101 MOTION for Order to Stay Discovery by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Exhibit A, Affidavit of Philip King)(Mancini, Joseph) (Entered: 09/15/2005)
102 MOTION for Order to Grant Leave to File Second Supplemental Memorandum in Support of Third Motion for Summary Judgment by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Attachments: # 1 Second Supplement in Support of Third Motion for Summary Judgment# 2 Exhibit A of Second Supplement in Support of 3rd Motion for Summary Judgment)(Mancini, Joseph) (Entered: 09/16/2005)
103 RESPONSE in Opposition re 94 MOTION for Extension of Time to Complete Discovery New date requested 2/1/2006. filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti. (Mancini, Joseph) (Entered: 09/20/2005)
104 MOTION for Extension of Time to File Response/Reply New date requested 10/14/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 09/27/2005)
105 MOTION Table Preliminary Pretrial Order re 21 Preliminary Pretrial Order,, by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 09/27/2005)
106 ORDER GRANTING 24Defendants' Second Motion for Summary Judgment. DENYING 25as moot Defendants' First Motion for Summary Judgment, and DENYING 51as moot Defendants' Motion to Disqualify Kim Brooks Tandy as Counsel for Plaintiffs. DISMISSING 6 Plaintiffs' Motion for Class Certification, WITHOUT PREJUDICE to re-filing, if otherwise appropriate, following resolution of Defendants' Third Motion for Summary Judgment. Signed by Judge Algenon L. Marbley on 9/29/2005. (cw, ) (Entered: 09/29/2005)
107 ORDER granting # 104 Motion for Extension of Time to File Response. Responses due by 10/14/2005 Signed by Judge Norah McCann King on 9/28/05.

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10/04/2005 10/10/2005
10/18/2005 10/25/2005 10/25/2005 11/04/2005 11/04/2005 11/14/2005 11/16/2005 11/17/2005

(rew) (Entered: 09/29/2005)
108 NOTICE of Appearance by Geoffrey J Moul Defendants Ohio Department of Youth Services, Thomas Stickrath (Moul, Geoffrey) (Entered: 10/04/2005)
109 MOTION to Alter Judgment of Septemberf 29, 2005 Opinion and Order granting Summary Judgment to Defendants by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Exhibits A through P - Various documentation# 2 Exhibit Exhibit Q through AA - Various documentation)(Kinsley, Jennifer) (Entered: 10/10/2005)
110 RESPONSE in Opposition re 105 MOTION Table Preliminary Pretrial Order re 21 Preliminary Pretrial Order,, filed by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti, Thomas Stickrath. (Mancini, Joseph) (Entered: 10/18/2005)
111 Unopposed MOTION for Extension of Time to File Response/Reply as to 109 MOTION to Alter Judgment of Septemberf 29, 2005 Opinion and Order granting Summary Judgment to Defendants New date requested 11/14/2005. by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 10/25/2005)
112 ORDER granting # 111 Motion for extension of time to file a response. Defendants will file a response to Plaintiffs motion to alter or amend by 11/14/05. Signed by Judge Norah McCann King on 10/25/05. (rew) (Entered: 10/25/2005)
113 ORDER granting # 47 Motion to Seal, denying # 52 Motion for Order to, granting # 102 Motion for Order to file a supplemental memorandum in support of the third motion for leave to fiel a second supplemental memorandum. Signed by Judge Norah McCann King on 11/04/05. (rew ) (Entered: 11/04/2005)
114 Defendants' (Ohio Department of Youth Services & Director Thomas Stickrath) Second Supplemental Memorandum In Support of Their Third Motion for Summary Judgment. (rew ) Additional attachment(s) added on 11/7/2005; modified docket text on 11/7/2005 to include what the memorandum was in support of. (er ) (Entered: 11/04/2005)
115 RESPONSE in Opposition re 109 MOTION to Alter Judgment of Septemberf 29, 2005 Opinion and Order granting Summary Judgment to Defendants filed by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 11/14/2005)
116 MOTION for Extension of Time to File Response/Reply as to 115 Response in Opposition to Motion New date requested 12/9/2005. by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 11/16/2005)
117 ORDER granting # 116 Motion for extension of time to file reply. Plaintiffs reply due by 12/9/2005. Signed by Judge Norah McCann King on 11/17/05. (rew) (Entered: 11/17/2005)

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12/06/2005
03/15/2006 03/15/2006 03/17/2006
04/05/2006 04/12/2006 04/19/2006 04/20/2006 04/21/2006 04/25/2006 04/26/2006

118 REPLY to Response to Motion re 109 MOTION to Alter Judgment of Septemberf 29, 2005 Opinion and Order granting Summary Judgment to Defendants filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 12/06/2005)
119 ORDER finding as moot 105 Motion to Table the Court's Preliminary Pretrial Order, denying 109 Motion to Alter Judgment. Signed by Judge Algenon L. Marbley on 3/15/2006. (cw, ) (Entered: 03/15/2006)
120 ORDER SETTING TELEPHONIC STATUS CONFERENCE Telephonic Status Conference set for 3/17/2006 10:00 AM before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 3/15/2006. (cw, ) (Entered: 03/15/2006)
121 ORDER finding as moot 90 Motion for Extension of Time to File Response/Reply, finding as moot 94 Motion for Extension of Time to Complete Discovery. The Court sets the following schedule for discovery limited to the matter of Plaintiff, T.M.'s, claims: 4/17/06 discovery completed, 5/8/06 Plaintiff's Memorandum in Opposition due, 5/17/06 Defendants' Reply due. Signed by Judge Algenon L. Marbley on 3/17/2006. (cw, ) (Entered: 03/17/2006)
122 ORDER Setting Hearing on Motion 89 Third MOTION for Summary Judgment: Motion Hearing set for 6/2/2006 09:00 AM in Courtroom 1 before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 4/5/2006. (cw, ). Modified on 4/5/2006 (cw, ). (Entered: 04/05/2006)
123 First MOTION for Order to Amend this Court's Discovery and Briefing Schedule Concerning T.M.'s Claim by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Mancini, Joseph) (Entered: 04/12/2006)
124 TRANSCRIPT of Proceedings (Telephone Status Conference) held on 3/17/2006 before Judge Algenon L. Marbley. Court Reporter: Joan E. Koenig. (Original transcript filed with the Clerk's Office). (er ) (Entered: 04/19/2006)
125 Second MOTION to Certify Class by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. Responses due by 5/15/2006 (Kinsley, Jennifer) (Entered: 04/20/2006)
126 ORDER granting 79 Motion to Dismiss. Finding as MOOT the First Motion to Dismiss 23. Signed by Judge Algenon L. Marbley on 4/21/2006. (cw, ) (Entered: 04/21/2006)
127 MOTION for Order to Dismiss Without Prejudice Plaintiffs Second Motion for Class Certification by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 04/25/2006)
128 ORDER Setting Hearing on Motion 89 Third MOTION for Summary Judgment: Motion Hearing set for 6/1/2006 10:00 AM in Courtroom 1 before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 4/26/2006. (cw, ) (Entered: 04/26/2006)

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04/28/2006 05/02/2006 05/04/2006
05/08/2006 05/08/2006 05/08/2006 05/16/2006 05/24/2006

129 Supplemental MOTION for Order to Amend This Courts Briefing Schedule Concerning T.M.s Claim by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit A, Emails)(Mancini, Joseph) (Entered: 04/28/2006)
130 RESPONSE to Motion re 123 First MOTION for Order to Amend this Court's Discovery and Briefing Schedule Concerning T.M.'s Claim filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit Portion of TM deposition transcript)(Kinsley, Jennifer) (Entered: 05/02/2006)
131 MOTION for Order to Grant Leave To File Unsigned Deposition Transcripts by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Defendants Notice of Filing McKinney Deposition# 2 Deposition of Terrence McKinney# 3 McKinney Deposition Exhibits# 4 Defendants Notice of Filing Hicks Deposition# 5 Deposition of Sharon Hicks# 6 Hicks Deposition Exhibits# 7 Defendants Notice of Filing Mathews Deposition# 8 Part 1 - Deposition of Larry Mathews# 9 Part 2 - Deposition of Larry Mathews# 10 Mathews Deposition Exhibits)(Mancini, Joseph) (Entered: 05/04/2006)
132 MOTION for Order to Grant Leave to File Third Supplemental Memorandum in Support of Defendants Third Motion for Summary Judgment by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Third Supplemental Memorandum in Support of Defendants Third Motion for Summary Judgment# 2 Exhibit A, Declaration of J Rollins# 3 Exhibit B, Declaration of N Hills# 4 Exhibit C, Declaration of S Vollmer)(Mancini, Joseph) (Entered: 05/08/2006)
133 ORDER granting 123 Motion for Order amending court's discovery and briefing schedule, granting 129 Motion, Memorandum in Support of [123, conditioned upon Defendants' provision of language specified in order. Oral Argument on the Third Motion for Summary Judgment is rescheduled for 6/8/2006 at 9:00 a.m. before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 5/8/2006. (cw, ) (Entered: 05/08/2006)
134 Supplemental Memorandum Supporting re 89 Third MOTION for Summary Judgment by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit A, Declaration of J Rollins# 2 Exhibit B, Declaration of N Hills# 3 Exhibit C, Declaration of S Vollmer)(Mancini, Joseph) (Entered: 05/08/2006)
135 RESPONSE to Motion re 127 MOTION for Order to Dismiss Without Prejudice Plaintiffs Second Motion for Class Certification filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 05/16/2006)
136 RESPONSE in Opposition re 89 Third MOTION for Summary Judgment filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit TM Deposition

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06/02/2006
06/05/2006 06/07/2006 06/09/2006 07/07/2006 07/11/2006 07/18/2006 07/18/2006 07/19/2006 07/20/2006

Transcript# 2 Exhibit Larry Mathews Deposition Transcript# 3 Exhibit Larry Mathews Deposition Exhibits# 4 Exhibit Sharon Hicks Deposition Transcript# 5 Affidavit TM Affidavit# 6 Affidavit Matthew Brownfield Affidavit# 7 Exhibit Telephone Status Report Conference Transcript# 8 Exhibit Dept. of Justice Letter# 9 Affidavit Jennifer M. Kinsley Affidavit# 10 Affidavit Shawn Maddox Affidavit# 11 Affidavit Marc D. Mezibov Affidavit)(Kinsley, Jennifer) (Entered: 05/24/2006)
137 REPLY to Response to Motion re 89 Third MOTION for Summary Judgment and Supplement to Third Motion for Summary Judgment filed by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit D, Hills Declaration# 2 Exhibit E, Riegsecker Affidavit# 3 Exhibit F, Rich Affidavit)(Mancini, Joseph) (Entered: 06/02/2006)
138 NOTICE by Defendants Ohio Department of Youth Services, Geno Natalucci-Perischetti, Thomas Stickrath re 137 Reply to Response to Motion, List of Additional Authorities in Support of Defendants' Reply to Response to Third Motion for Summary Judgment (Mancini, Joseph) (Entered: 06/05/2006)
139 NOTICE by Defendants Ohio Department of Youth Services, Thomas Stickrath Of Filing The Deposition Transcript Of Terrence McKinney (Attachments: # 1 Part 1 of Deposition Transcript# 2 Part 2 of Deposition Transcript# 3 Deposition Exhibits)(Mancini, Joseph) (Entered: 06/07/2006)
Minute Entry for proceedings held before Judge Algenon L. Marbley : Oral Arguments held on 6/9/2006. The Court listened to arguments of both counsel and will render a decision within the next three (3) weeks. (Court Reporter L. Samuels.) (bc1, ) (Entered: 06/09/2006)
140 ORDER denying 89 Motion for Summary Judgment . Signed by Judge Algenon L. Marbley on 7/7/2006. (cw, ) (Entered: 07/07/2006)
141 ORDER SETTING A TELEPHONIC STATUS CONFERENCETelephonic Status Conference set for 7/20/2006 03:00 PM before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 7/11/2006. (cw, ) (Entered: 07/11/2006)
142 NOTICE by Defendants Ohio Department of Youth Services, Thomas Stickrath of Settlement of T.M.'s Physical Assault Claim (Mancini, Joseph) (Entered: 07/18/2006)
143 NOTICE of Appearance by Richard Thomas Cholar, Jr Defendants Bob Taft, Ohio Department of Youth Services, Geno Natalucci-Perischetti, Thomas Stickrath (Cholar, Richard) (Entered: 07/18/2006)
144 TRANSCRIPT of Proceedings (Defendant's third motion for summary judgment) held on June 8, 2006 before Judge Algenon L. Marbley. Court Reporter: L. Samuels. (bc1, ) (Entered: 07/19/2006)
145 Second MOTION to Amend/Correct 140 Order on Motion for Summary Judgment by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 07/20/2006)

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07/20/2006
07/21/2006 07/21/2006 07/25/2006 07/27/2006 08/01/2006 08/02/2006 08/11/2006
08/11/2006 08/14/2006

146 ORDER Final Pretrial Conference set for 10/26/2007 11:00 AM in chambers before Algenon L. Marbley. Jury Trial set for 11/5/2007 09:00 AM in Courtroom 1 before Algenon L. Marbley. Settlement Conference set for 10/1/2007 09:30 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 7/20/2006. (Attachments: # 1 Exhibit A# 2 Exhibit B)(cw, ) (Entered: 07/20/2006)
147 AMENDED OPINION AND ORDER eliminating footnote 25 at the request of both parties re 140 Order on Motion for Summary Judgment. Signed by Judge Algenon L. Marbley on 7/21/2006. (cw, ) (Entered: 07/21/2006)
148 MOTION for Order to Alter Or Amend This Courts July 7, 2006 Order by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 07/21/2006)
149 MOTION for Order to ALTER OR AMEND THIS COURTS JULY 21, 2006 ORDER by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 07/25/2006)
150 NOTICE OF WITHDRAWL OF DOCUMENT by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated re 145 Second MOTION to Amend/Correct 140 Order on Motion for Summary Judgment (Kinsley, Jennifer) (Entered: 07/27/2006)
151 MOTION to Withdraw as Attorney Motion to Withdraw as Co-Counsel for Defendants (Ohio Department of Youth Services and Director Thomas Stickrath by Defendant Thomas Stickrath. (Reese, Mary) (Entered: 08/01/2006)
152 ORDER granting 151 Motion to Withdraw as Attorney. Attorney Mary Anne Reese terminated. Signed by Judge Norah McCann King on 8/2/06. (er ) (Entered: 08/02/2006)
153 Supplemental Memorandum Supporting Plaintiffs' Second Motion for Class Certification filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated, D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Affidavit Kristin Messer)(Kinsley, Jennifer) (Entered: 08/11/2006)
154 RESPONSE in Opposition re 149 MOTION for Order to ALTER OR AMEND THIS COURTS JULY 21, 2006 ORDER filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 08/11/2006)
155 TRANSCRIPT of Proceedings held on July 20, 2006 before Judge Marbley. Court Reporter: Gina Wells. FOR COMPLETE COPY OF TRANSCRIPT CONTACT THE COURTREPORTER. (lvw, ) Modified on 8/14/2006 (lvw, ). (Entered: 08/14/2006)

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08/22/2006 08/25/2006
08/28/2006
08/29/2006 08/29/2006 08/30/2006 08/31/2006 09/06/2006 09/08/2006

156 Reply to Plaintiffs Memorandum in Opposition to Defendants Motion to Alter or Amend this Courts July 21, 2006 Order by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 08/22/2006)
157 Supplemental Memorandum Opposing re 153 Supplemental - Supporting,, Memorandum in Opposition to Plaintiffs Supplemental Memorandum in Support of Second Motion for Class Certification filed by Defendants Ohio Department of Youth Services, Thomas Stickrath, Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit A, Proposed Class Definition# 2 Exhibit B, Affidavit of Richard# 3 Exhibit C, Affidavit of Thomas)(Mancini, Joseph) (Entered: 08/25/2006)
158 MOTION for Order to Grant Leave to File An Amended Version Of Their Previously Filed Memorandum In Opposition To Plaintiffs Second Motion For Class Certification by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Defendants Memorandum in Opposition to Plaintiffs Second Motion for Class Certification# 2 Exhibit A, Proposed Class Definition# 3 Exhibit B, Richard Affidavit# 4 Exhibit C, Thomas Affidavit)(Mancini, Joseph) (Entered: 08/28/2006)
159 MOTION for Extension of Time New date requested 9/25/2006. to reply to Defendants' response to Plaintiffs' Motion for Class Certification by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 08/29/2006)
160 ORDER granting 158 Motion for Order to file an amended vertion of the previously filed memorandum in opposition to plaintiffs' second motion for class certification. Signed by Judge Norah McCann King on 8/29/06. (jdm, ) (Entered: 08/30/2006)
161 RESPONSE in Opposition re 159 MOTION for Extension of Time New date requested 9/25/2006. to reply to Defendants' response to Plaintiffs' Motion for Class Certification filed by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Cholar, Richard) (Entered: 08/30/2006)
162 REPLY to Response to Motion re 159 MOTION for Extension of Time New date requested 9/25/2006. to reply to Defendants' response to Plaintiffs' Motion for Class Certification filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Kinsley, Jennifer) (Entered: 08/31/2006)
163 ORDER Setting Hearing on Motion 125 Second MOTION to Certify Class: Motion Hearing set for 12/1/2006 09:30 AM in Courtroom 1 before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/6/2006. (cw, ) (Entered: 09/06/2006)
164 RESPONSE in Support re 125 Second MOTION to Certify Class filed by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Affidavit Mary L. Kovalesky)(Kinsley, Jennifer) (Entered: 09/08/2006)

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09/14/2006
10/04/2006 10/05/2006 10/05/2006 10/05/2006 10/10/2006 10/12/2006 10/16/2006 10/30/2006 10/30/2006 10/31/2006
11/02/2006 12/27/2006

165 MOTION for Leave to File Supplement Reply to Defendant's Response to Motion for Class Certification on the Basis on Newly Discovered Evidence by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, H. H., J.P. and all others similarly situated, S.J. and all others similarly situated. (Attachments: # 1 Exhibit CIIC Evaluation of DYS Grievance Procedure)(Kinsley, Jennifer) (Entered: 09/14/2006)
166 Unopposed MOTION for Extension of Time New date requested 10/19/2006. by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Cholar, Richard) (Entered: 10/04/2006)
167 ORDER granting 166 Motion for Extension of Time to respond to Plaintiff' motion for leave to supplement its reply. Extended to 10/19/06. Signed by Judge Norah McCann King on 10/5/06. (kch) (Entered: 10/05/2006)
168 MOTION to Withdraw as Attorney (Joseph M. Mancini, Richard Cholar, Philip A. King) by Defendants Ohio Department of Youth Services, Thomas Stickrath. (Mancini, Joseph) (Entered: 10/05/2006)
169 ORDER granting 168 Motion to Withdraw as Attorney. Attorneys Joseph M. Mancini, Richard Thomas Cholar, Jr and Philip A King terminated. Signed by Judge Norah McCann King on 10/5/2006. (er ) (Entered: 10/06/2006)
170 ORDER denying 149 Motion for Order to Alter or Amend the July 21, 2006 Order. Signed by Judge Algenon L. Marbley on 10/10/2006. (cw, ) (Entered: 10/10/2006)
171 ORDER SETTING SETTLEMENT CONFERENCE Settlement Conference set for 10/19/2006 09:00 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/12/2006. (cw, ) (Entered: 10/12/2006)
172 ORDER RESETTING SETTLEMENT CONFERENCE Settlement Conference reset for 10/31/2006 09:00 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/31/2006. (cw, ) (Entered: 10/16/2006)
173 Writ of Habeas Corpus ad Prosequendum Issued for October 31, 2006. (bc1, ) (Entered: 10/30/2006)
174 ORDER RESETTING SETTLEMENT CONFERENCE Settlement Conference reset for 11/7/2006 09:30 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/30/2006. (cw, ) (Entered: 10/30/2006)
175 ORDER RESETTING SETTLEMENT CONFERENCE AND CLASS CERTIFICATION HEARING Class Certification Hearing reset for 1/12/2007 09:00 AM in Courtroom 1 before Algenon L. Marbley. Settlement Conference set for 12/1/2006 09:30 AM in chambers before Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/31/2006. (cw, ) (Entered: 10/31/2006)
176 Writ of Habeas Corpus ad Prosequendum Issued for December 1, 2006. (bc1, ) (Entered: 11/02/2006)
177 NOTICE of Appearance by Brian A Basil Defendants Ohio Department of Youth Services, Thomas Stickrath (Basil, Brian) (Entered: 12/27/2006)

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01/05/2007 01/05/2007
01/12/2007 03/05/2007 03/06/2007 03/06/2007

178 STIPULATION of Settlement by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated, Defendants Ohio Department of Youth Services, Thomas Stickrath. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Moul, Geoffrey) (Entered: 01/05/2007)
179 Joint MOTION for Order to Preliminarily Approve Settlement, Conditionally Certify the Settlement Class, Direct Notice to the Class, and Schedule of Final Fairness Hearing by Plaintiffs D.B. a minor child by and through her next friend Shanda Spurlock, and all others similarly situated, J.P. and all others similarly situated, S.J. and all others similarly situated, Defendants Ohio Department of Youth Services, Thomas Stickrath. (Moul, Geoffrey) (Entered: 01/05/2007)
180 ORDER Preliminary approving settlement, conditionally certifying the settlement class, directing notice to the class and scheduling settlement hearing; A hearing in this Court shall be held on March 6, @ 9:00. Signed by Judge Algenon L. Marbley on January 12, 2007. (bc1, ) (Entered: 01/12/2007)
181 NOTICE by Defendants Ohio Department of Youth Services, Thomas Stickrath Statement of Compliance with Court's Order of January 12, 2007 Directing That Notice Be Given to the Class (Attachments: # 1 Exhibit A - Declarations)(Moul, Geoffrey) (Entered: 03/05/2007)
182 CONSENT DECREE. Signed by Judge Algenon L. Marbley on 3/6/2007. (cw, ) (Entered: 03/06/2007)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Settlement Conference held on 3/6/2007. (Court Reporter Laura Samuels.) (er ) (Entered: 03/08/2007)

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U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:07-cv-00170-GCS-MRA

STAY

J J et al v. Ohio Department of Youth Services et al Assigned to: George C Smith Referred to: Mark R. Abel related Case: 2:04-cv-00692-ALM-NMK Cause: 42:1983 Civil Rights Act

Date Filed: 03/01/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
J J by her next friend Shelia Vanbarclume, and all others similarly situated

represented by Jennifer M Kinsley Sirkin Pinales & Schwartz - 1 105 W Fourth Street Suite 920 Cincinnati, OH 45202 513-721-4876 Fax: 513-721-0876 Email: jkinsley@sirkinpinales.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Brooks Tandy Children's Law Center 104 East 7th Street Covington, KY 41011 859-431-3313 Email: kimbrooks@fuse.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
K M and all others similarly situated

David A Singleton Ohio Justice & Policy Center 617 Vine Street Suite 1301 Cincinnati, OH 45202 513-421-1108 Fax: 513-562-3200 Email: dsingleton@ohiojpc.org ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff J R and all others similarly situated
Plaintiff A G by his next friend Maria Santiago, and all others similarly situated
Plaintiff J S by his next friend David Sanders, and all others similarly situated

Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Singleton (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Singleton (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Singleton (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY

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Plaintiff P T by her next friend, and all others similarly situated
V. Defendant Ohio Department of Youth Services
Defendant Thomas Stickrath Director of Youth Services, in his official capacity only Defendant Release Authority a bureau of Ohio Department of Youth Services Defendant

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?842618964382409-L_3...
ATTORNEY TO BE NOTICED
David A Singleton (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer M Kinsley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Brooks Tandy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Singleton (See above for address) ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast Ohio Attorney General - 2 150 East Gay Street 16 Floor Columbus, OH 43215 614-644-7233 Fax: 614-728-9327 Email: jarbogast@ag.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Sharon Haines Chairperson, Release Authority, in her official capacity only
Defendant C Q Morrison Release Authority Member, in his official capacity only
Defendant Terry Kennedy Mancini Release Authority Member, in her official capacity only
Defendant Jennifer Fears Release Authority Member, in her official capacity only
Defendant Norm Hills Release Authority Member, in his official capacity only

represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet R Hill Arbogast (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/01/2007 03/01/2007
03/01/2007 04/30/2007
05/02/2007

#

Docket Text

1 Civil cover sheet. (er ) (Entered: 03/02/2007)
2 COMPLAINT filed by Plaintiffs J R, A G, J S, P T, J J & K M against Defendants Ohio Department of Youth Services, Thomas Stickrath, Release Authority, Sharon Haines, C Q Morrison, Terry Kennedy Mancini, Jennifer Fears & Norm Hills (Filing fee $ 350.).(er ) (Entered: 03/02/2007)
Filing fee for cv action: $ 350, receipt number 200 255260. (er ) (Entered: 03/02/2007)
3 MOTION for Extension of Time to File Answer re 2 Complaint, New date requested 5/31/2007. by Defendants Ohio Department of Youth Services, Thomas Stickrath, Release Authority, Sharon Haines, C Q Morrison, Terry Kennedy Mancini, Jennifer Fears, Norm Hills. (Arbogast, Janet) (Entered: 04/30/2007)
4 ORDER granting 3 Motion for Extension of Time to Answer re 2. New date requested 5/31/2007. Defendants answer due 5/31/2007. Signed by Judge

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05/24/2007 05/24/2007 06/06/2007

Mark R. Abel on 5/2/2007. (pes) (Entered: 05/02/2007)
5 Joint MOTION to Stay Litigation by Plaintiffs J R, A G, J S, P T, J J, K M, Defendants Ohio Department of Youth Services, Thomas Stickrath, Release Authority, Sharon Haines, C Q Morrison, Terry Kennedy Mancini, Jennifer Fears, Norm Hills. (Kinsley, Jennifer) (Entered: 05/24/2007)
6 AMENDED Joint MOTION to Stay Litigation by Plaintiffs J R, A G, J S, P T, J J, K M, Defendants Ohio Department of Youth Services, Thomas Stickrath, Release Authority, Sharon Haines, C Q Morrison, Terry Kennedy Mancini, Jennifer Fears, Norm Hills. (Kinsley, Jennifer) (Entered: 05/24/2007)
7 ORDER granting 6 Motion to Stay. Signed by Judge George C Smith on 6-6-07. (ga, ) (Entered: 06/06/2007)

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