Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 1 of 8 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR T:S:E , . ' , .. ~-. ' .....

SOUTHERN DISTRICT OF INDIANA

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INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,

)

950 Pennsylvania Avenue, N.W.

)

')OUT~r:RN DiSTRICT
L"" uO~r; ~·1,~7\RDI~ARNIAGGs

Washington, D.C. 20530

)

)

Plaintiff,

)

)

vs.

}

Civil Action No.

THE MARION SUPERIOR COURT

)
t: 1~«-04 60 -L.JM -til

City County Building

200 East Washington Street

)

Indianapolis, Indiana 46204

)

)

THE HONORABLE ROBERT R. ALTICE, JR.,

)

COMPLAINT

Executive Committee Member

)

City County Building

)

200 East Washington Street

)

Indianapolis, Indiana 46204

)

)

THE HONORABLE GARY L. MILLER,

)

Executive Committee Member

)

City County Building

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200 East Washington Street

)

Indianapolis, Indiana 46204

)

)

THE HONORABLE TANYA WALTON PRATT

)

Executive Committee Member

)

City County Building

)

200 East Washington Street

)

Indianapolis, Indiana 46204

)

)

THE HONORABLE GERALD S. ZORE

)

Executive Committee Member

)

City County Building

)

200 East Washington Street

)

Indianapolis, Indiana 46204

)

)

Defendants.

)

)

Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 2 of 8 PageID #: 2
Plaintiff, the United States of America, by its undersigned attorneys, for its complaint alleges:
1. This action is brought by the Attorney General, on behalf of the United States, pursuant to the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the Marion Superior Court from depriving youth confined in the Marion Superior Court Juvenile Detention Center ("MSCJDC") in Indianapolis, Indiana, of rights, privileges or immunities secured or protected by the Constitution and laws of the United States.
JURISDICTION 1 STANDING AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 4. Venue in the Southern District of Indiana is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in this complaint arose in this District.
DEFENDANTS 5. Defendant MARION SUPERIOR COURT ("Superior Court 11 ) is responsible for the administration of juvenile justice in Marion County, Indiana, including the operation of a secure juvenile detention facility. This action concerns the administration of the Marion Superior Court Juvenile Detention Center.
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Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 3 of 8 PageID #: 3
6. Defendant ROBERT R. ALTICE, JR. is currently a member of the Superior Court Executive Committee, and in this capacity is responsible for the administration of MSCJDC and has the duty to ensure that youth confined at that facility are treated in accordance with their federal constitutional and statutory rights.
7. Defendant GARY L. MILLER is currently a member of the Superior Court Executive Committee, and in this capacity is responsible for the administration of MSCJDC and has the duty to ensure that youth confined at that facility are treated in accordance with their federal constitutional and statutory rights.
8. Defendant TANYA WALTON PRATT is currently a member of the Superior Court Executive Committee, and in this capacity is responsible for the administration of MSCJDC and has the duty to ensure that youth confined at that facility are treated in accordance with their federal constitutional and statutory rights.
9. Defendant GERALD S. ZORE is currently a member of the Superior Court Executive Committee, and in this capacity is responsible for the administration of MSCJDC and has the duty to ensure that youth confined at that facility are treated in accordance with their federal constitutional and statutory rights.
3

Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 4 of 8 PageID #: 4
10. The individual Defendants named in paragraphs 6-9 above, comprising the Superior Court's Executive Committee, have the authority delegated by the Superior Court to administer the MSCJDC and are sued in their official capacities only.
11. Defendants are legally responsible, in whole or in part, for the operation of and conditions at MSCJDC; for ensuring the safety and security of youth; for ensuring that youth are adequately protected from harm; for ensuring that youth are provided due process of law; for ensuring that youth are adequately protected from environmental safety and fire hazards and unsanitary conditions; and for ensuring that youth receive appropriate programming and education commensurate with their needs and abilities.
12. All relevant acts or omissions described below have been undertaken by the Superior Court, a committee or individual appointed by the Superior Court, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 13. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice within the meaning of 42 U.S.C. § 14141. 14. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at MSCJDC
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Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 5 of 8 PageID #: 5
are adequately protected from harm, including harm from other youth and self harm.
15. Defendants have engaged, and continue to engage, in a pattern or practice of subjecting youth to unreasonable and unsafe isolation practices and failing to ensure that the isolated youth at MSCJDC are provided due process of law.
16. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide youth with adequate systemic safeguards to prevent, identify, and rectify abuse and unsafe conditions.
17. Defendants have engaged, and continue to engage, in a pattern or practice of protecting youth from environmental safety and fire hazards and unsanitary conditions.
18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that eligible youth with disabilities at the facility receive adequate special education and related services.
19. MSCJDC's provider of youth education services receives federal financial assistance and, as such, youth at MSCJDC are entitled to the protections and benefits of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder.
20. The youth residing at MSCJDC include youth with mental illness, mental retardation, or other disabilities who
5

Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 6 of 8 PageID #: 6
fall within the meaning of "children with disabilities" as defined in the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 (a) (1) and "individual [s] with a disability" as defined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20), and are therefore entitled to programming and services required under the statutes.
VIOLATIONS ALLEGED 21. Through the acts, practices, and omissions alleged in paragraphs 14-17, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at the facility of rights, privileges, or immunities secured by the Constitution of the United States, including the Eighth and Fourteenth Amendments, and in violation of 42 U.S.C. § 14141(a). 22. Through the acts, practices and omissions alleged in paragraphs 18-20, Defendants have engaged, and continue to engage in a pattern or practice of failing to comply with the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. § 1401 et seq., and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a). 23. Through the acts and omissions alleged in paragraph 1820, Defendants have engaged, and continue to engage, in a pattern or practice of failing to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the
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Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 7 of 8 PageID #: 7
regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and regulations and violating 42 U.S.C. § 14141(a).
24. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 14-18 that deprive youth confined at the facility of rights/ privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF 25. The Attorney General is authorized under 42 U.S.C. § 14141 to seek equitable and declaratory relief. WHEREFORE 1 the United States prays that this Court enter an order permanently enjoining Defendants~ their officers, agents 1 employees, subordinates, successors in office, contractors and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 14 18, above, and requiring Defendants to take such action as will provide legal and constitutional conditions of care to youth confined at MSCJDC. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
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Case 1:08-cv-00460-LJM-TAB Document 1 Filed 04/09/08 Page 8 of 8 PageID #: 8
8
fully submitted,

TIMOTHY M. MORRISON United States Attorney

Acting Assistant

At

General

c

So thern District of Indiana 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226-6333

Special Litigation Section Civil Rights Division
ESTON tigation Section Civil Rights Division

a Ave, NW

Washington, DC 20530

Judy.Pre

Joshua.Del

.gov

Jul

(202) 514 6258

(202) 514 0212 (fax)

 
 Case 1:08-cv-00460-LJM-TAB Document 5 Filed 04/09/08 Page 1 of 3 PageID #: 14

IN

THE

UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF INDIANA

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·.. '-" 11 -

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Iii'; IJ: 32

INDIANAPOLIS DIVISION

SOUTHCRN Di~)TRICT

UNITED STATES OF AMERICA,

)

Civil Act i1n/no!Oj &For.N•'D\.J'"B'rFu'IIH "IGGS

)

Cl.Ef.:il(

Plaintiff, vs.

tc 1~) 8~-04 60 -LJM -TAB

)

THE MARION SUPERIOR COURT, et al.,

)

JOINT MOTION FOR

)

CONDITIONAL

Defendants.

)

DISMISSAL

)

)

)

________________________________________

)
)

The United States, Plaintiff, and the Marion Superior Court, et al., Defendants, have determined that the interests of all concerned parties can best be served by entering into the Settlement Agreement attached as Exhibit A to this Motion, concerning the implementation of needed improvements in the operation of the Marion Superior Court Juvenile Detention Center. In recognition of these interests and to avoid adversarial litigation, the parties jointly move this Court for entry of an Order conditionally dismissing this action, pursuant to Fed. R. Civ. P. 41(a) (2), conditional upon Defendants achieving substantial compliance with the terms of the Settlement Agreement within three years.
The parties respectfully request that the Court place the case on its inactive docket for a period of three years while retaining jurisdiction over the case until a final dismissal with prejudice is entered.

Case 1:08-cv-00460-LJM-TAB Document 5 Filed 04/09/08 Page 2 of 3 PageID #: 15

DATED this J_ day of A !AIL , 2008.
Respectfully submitted,

TIMOTHY M. MORRISON United States Attorney

s

nited States Attorney

Southern District of Indiana

10 West Market Street

Suite 2100

Indianapolis, IN 46204

(317) 226-6333

Senior Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Joshua.Delaney®usdoj.gov Julie.Abbate@usdoj.gov (202) 616-2446 (202) 514-0212 (fax)

2

Case 1:08-cv-00460-LJM-TAB Document 5 Filed 04/09/08 Page 3 of 3 PageID #: 16
FOR THE MARION SUPERIOR COURT:
rfl/~
MARK A. MERTZ Assistant Corporation Co nsel Office of Corporation Counsel City-County Bldg Suite 1601 200 E Washington St Indianapolis, IN 46204-3324 mmertz@indygov .org {317) 327-4060 {317) 327-3968 (facsimile)
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Case 1:08-cv-00460-LJM-TAB Document 5-2 Filed 04/09/08 Page 1 of 2 PageID #: 34

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA, Plaintiff,
vs. THE MARION SUPERIOR COURT, et al.,
Defendants.

)

Civil Action No.

)

)
.~: 18«-0460-LJM-TAB

)

)

ORDER OF

)

CONDITIONAL

)

DISMISSAL

)

)

)

)

Plaintiff, the United States of America, and Defendants, the Marion Superior Court, et al., have determined that the interests of all concerned parties can best be served by entering into a Settlement Agreement for the implementation of needed improvements in the operation of the Marion Superior Court Juvenile Detention Center administered by the Marion Superior Court. In recognition of these interests and to avoid adversarial litigation, the parties have entered into a Settlement Agreement, attached to their Joint Motion for Conditional Dismissal, to settle this matter and have moved this Court, pursuant to Fed. R. Civ. P. 41(a) (2), to conditionally dismiss this matter subject to the full implementation of the Settlement Agreement.

Case 1:08-cv-00460-LJM-TAB Document 5-2 Filed 04/09/08 Page 2 of 2 PageID #: 35
Having reviewed the Joint Motion for Conditional Dismissal and for good cause showni
IT IS HEREBY ORDERED that this case is conditionally dismissed and shall be placed on the inactive docket for a period of three years pending compliance with the Settlement Agreement lodged with the Court. This Court will retain jurisdiction over the case, pending compliance with the Settlement Agreement, until a final dismissal with prejudice is entered.
DATED this ____ day of_______________ , 2008.

Copies to:
Joshua C. Delaney Julie K. Abbate U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington DC 20530
Counsel for Plaintiff

United States District Judge

Mark A. Mertz Assistant Corporation Counsel City-County Building Suite 1601 200 E. Washington Street Indianapolis, IN 46204-3324
Counsel for Defendants
2

 
 Case 1:08-cv-00460-LJM-TAB Document 13 Filed 04/19/11 Page 1 of 3 PageID #: 47

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

vs.

)

)

THE MARION SUPERIOR COURT, et al.,

)

)

Defendants.

)

)

)

)

)

________________________________________)

Civil Action No. 1:08-cv-460-LJM-TAB
JOINT MOTION FOR ORDER OF FINAL DISMISSAL

PLAINTIFF, THE UNITED STATES OF AMERICA, and DEFENDANTS, MARION SUPERIOR COURT, et al., by their undersigned attorneys, jointly move the Court to dismiss this case with prejudice, terminating the Settlement Agreement (Agreement”) entered in this case by Order (April 11, 2008). Pursuant to the terms of Section VII(K) of the Agreement, the Agreement expired on April 9, 2011. Defendants have achieved substantial compliance with 25 out of 30 substantive provisions of the Agreement. The Parties intend to continue working to resolve the five remaining provisions over the next several months, and agree that continued judicial oversight is no longer necessary. Accordingly, dismissal is warranted.
WHEREFORE, the Parties move the Court to enter the attached proposed Order of Final Dismissal terminating the Agreement and dismissing this case with prejudice.

Case 1:08-cv-00460-LJM-TAB Document 13 Filed 04/19/11 Page 2 of 3 PageID #: 48 DATED this 19th day of April, 2011.
Respectfully submitted,

NICHOLAS A. KLINEFELDT United States Attorney
JILL JULIAN Assistant United States Attorney Southern District of Indiana 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226-6333

THOMAS E. PEREZ Assistant Attorney General U.S. Department of Justice Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
JUDY C. PRESTON Deputy Chief Special Litigation Section

s/Joshua C. Delaney JOSHUA C. DELANEY Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Joshua.Delaney@usdoj.gov (202) 616-2446 (202) 514-0212(fax)

2

Case 1:08-cv-00460-LJM-TAB Document 13 Filed 04/19/11 Page 3 of 3 PageID #: 49 FOR THE MARION SUPERIOR COURT: s/ Jennifer Haley JENNIFER HALEY (17358-49) Chief Litigation Counsel Office of Corporation Counsel 200 E Washington St., Room 1601 Indianapolis, IN 46204 Jhaley@indygov.org (317) 327-4055 (317) 327-3968 (facsimile)
3

 
 Case 1:08-cv-00460-LJM-TAB Document 14 Filed 05/02/11 Page 1 of 2 PageID #: 52

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

vs.

)

)

THE MARION SUPERIOR COURT, et al.,

)

)

Defendants.

)

)

)

)

________________________________________)

Civil Action No. 1:08-cv-460-LJM-TAB
[PROPOSED] ORDER OF FINAL DISMISSAL

WHEREFORE a Settlement Agreement (Agreement) was filed in this case on April 9, 2008,
WHEREFORE the Agreement was approved by this Court by Order dated April 11, 2008;
AND WHEREFORE having considered the Parties’ Joint Motion for Order of Final Dismissal;
It is HEREBY ORDERED that: 1. The Agreement and its associated Orders are terminated; and, 2. This case is dismissed with prejudice. IT IS HEREBY ORDERED that this case shall be finally dismissed with prejudice.

Case 1:08-cv-00460-LJM-TAB Document 14 Filed 05/02/11 Page 2 of 2 PageID #: 53
DATED this 0_5_/0_2/2d0a1y1
________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana
______________________________
Distribution to:
Joshua C. Delaney US DEPT OF JUSTICE, CIIVIL RIGHTS DIVISON joshua.delaney@usdoj.gov Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov,bdoyle@indy.gov Jill Z. Julian UNITED STATES ATTORNEY'S OFFICE jill.julian@usdoj.gov,pearlie.wadlington@usdoj.gov

 
 SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES DEPARTMENT
 OF JUSTICE AND THE MARION SUPERIOR COURT CONCERNING THE 

MARION SUPERIOR COURT JUVENILE DETENTION CENTER


I. INTRODUCTION 

A. On July 18, 2006, the United States notified officials in Marion County of its intent to investigate conditions of confinement at the Marion Superior Court Juvenile Detention Center (“MSCJDC”), pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141").
B. In accordance with State law, the Marion Superior Court (“Court”) is responsible for administering MSCJDC.
C. In December 2006 and February 2007, the United States toured MSCJDC with consultants in the fields of protection from harm, custodial sexual misconduct, special education, and environmental health and safety.
D. Throughout the course of the investigation, the United States received complete cooperation from the Court. The Court permitted complete access to MSCJDC and provided all requested documents.
E. On August 6, 2007, the United States issued a findings letters pursuant to 42 U.S.C. § 1997(a)(1), which concluded that conditions at the MSCJDC violated the constitutional and federal statutory rights of youth confined in the facility.
F. The U.S. District Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. § 14141. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
G. The parties to this Agreement are the United States of America, represented by the United States Department of Justice; and the Marion Superior Court, represented by members of its Executive Committee in their official capacities: Robert R. Altice, Jr., Gary L. Miller, Tanya Walton Pratt, and Gerald S. Zore, and their successors, contractors, and agents. The Court shall ensure that all subordinate agencies and departments take any actions necessary to comply with the provisions of this Agreement.
H. The Court enters into this Agreement because it is firmly committed to remedying the deficiencies identified in the United States’ letter of findings, and in providing legally adequate conditions, by instituting the substantive provisions required by this Agreement.
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I. This Agreement does not constitute an admission of liability by the Court.
J. This Agreement is not intended to have any preclusive effect except between the parties. Should the issue of the preclusive effect of this Agreement be raised in any proceeding other than this civil action, the parties agree to certify that this Agreement was intended to have no such preclusive effect.
K. This Agreement shall not be used against the Court in any proceeding other than a proceeding between the United States and the Court.
L. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. This Agreement is not intended to impair or expand the right of any person or organization to seek relief against the Court or its officials, employees, or agents for their conduct; accordingly, the Agreement does not alter legal standards governing any such claims, including those under Indiana law.
M. Unless otherwise specified herein, the Court shall come into compliance with each provision of this Agreement within 12 months of the effective date.
II. DEFINITIONS
A. “Court” means the Marion Superior Court in Indianapolis, Indiana, their successors, contractors, and agents.
B. “DOJ” means the United States Department of Justice, which represents the United States of America in this matter.
C. “Effective date” means the date the Agreement is filed with the Court.
D. “Facility” means the Marion Superior Court Juvenile Detention Center in Indianapolis, Indiana.
E. “IEP” means Individualized Education Program as defined by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1490, and the regulations promulgated thereunder.
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F. “Isolation” means the confinement of a youth alone in a locked cell during waking hours for any purpose for a period longer than 15 minutes.
G. “Include” or “including” means include, but not limited to or including, but not limited to.
H. “Implement” means to give practical effect and to achieve actual fulfillment by concrete measures, including appropriate training of relevant staff.
I. “MSCJDC” means the Marion Superior Court Juvenile Detention Center in Indianapolis, Indiana and any facility(ies) that may replace or supplement that facility.
J. “Qualified mental health professional” means a mental health care provider licensed and sufficiently trained pursuant to the laws of the State of Indiana to provide the services he or she undertakes to provide.
K. “Section” means an entire substantive provision (Protection from Harm, Environmental Health and Safety, or Special Education) of this Agreement.
L. “Train” means sufficiently instruct in the skills addressed, including ongoing assessment of the level of aptitude for instructional material that is required for compliance with the laws of the State of Indiana.
M. “Youth” means any juvenile or juveniles residing at the MSCJDC during the operation of this Agreement.
III. CARE REQUIRED BY THE CONSTITUTION AND FEDERAL STATUTE
The purpose of this Agreement is to protect the constitutional and federal statutory rights of youth confined at the MSCJDC. The terms and requirements of this Agreement shall be interpreted to be consistent with the measures necessary to protect the constitutional and federal statutory rights of the youth.
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IV. SUBSTANTIVE PROVISIONS
A. PROTECTION FROM HARM
The following substantive provisions are intended to address the findings of the United States in connection with its investigation of the MSCJDC.
1. Reasonably Safe Conditions The Court shall, at all times, provide youth in the facility with reasonably safe conditions of confinement.
2. Staffing The Court shall ensure that there are sufficient numbers of adequately trained direct care and supervisory staff at all times to supervise youth safely and to ensure access to all programs and services.
3. Training The Court shall develop and implement a curriculum for appropriate competency-based staff training in behavior management, de-escalation techniques, use of force, appropriate communication with youth, crisis intervention, child abuse reporting, and suicide prevention. All staff shall complete initial training and be certified before staff may work independently with youth. Staff shall also receive an adequate amount of annual in-service training to include, at a minimum, use of force, suicide prevention, and child abuse reporting.
4. Programming The Court shall provide sufficient programming to minimize unstructured youth idle time during waking hours. The Court shall provide appropriate structured rehabilitative programming to youth who reside at the MSCJDC for more than 30 days.
5. Behavior Management Program The Court shall develop and implement an effective behavior management program to reward positive and prosocial behavior and to deter aggressive and assaultive behavior throughout the day, including during school sessions.
6. Classification The Court shall develop, validate, and implement an objective housing classification system that places youth appropriately and safely within the facility, and provides for reclassification in appropriate circumstances.
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7. Isolation The Court shall develop and implement policies, procedures and practices for isolation to be used only when appropriate and in an appropriate manner, and to document fully its use. Youth in isolation shall be supervised in frequent and not predictable intervals, and such supervision shall be fully documented. Isolated youth shall have access to medical care, mental health care, and school instructional material.
8. Due Process The Court shall provide youth confined in isolation for more than 24 hours with due process, including a hearing by an impartial official. The Court shall develop and implement a due process procedure for disciplinary matters.
9. Suicide Risk Assessment Within three months of the effective date, timely suicide risk assessments, using reliable assessment instruments, shall be conducted at the MSCJDC:
a. for all youth who screen positive for suicide risk upon admission or who exhibit behavior or language which may indicate suicidal ideation, and
b. when determining whether to place a youth on suicide precautions or change the level of suicide precautions.
Suicide risk assessments shall be conducted by a qualified mental health professional. Youth shall not be removed from suicide precautions by anyone other than a qualified mental health professional.
10. Reduction in Suicide Watch Level The Court shall develop and implement policies and procedures establishing a “step-down” level of observation whereby youth on suicide precautions are gradually released from the more restrictive levels of supervision to less restrictive levels for an appropriate period of time as established by qualified mental health professionals prior to the youth’s discharge from suicide precautions.
11. Mental Health Intervention Within three months of the effective date, youth at the MSCJDC who demonstrate suicidal ideation or attempt self harm shall receive timely and appropriate mental health care by qualified mental health professionals.
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12. Suicide Watch Supervision Within three months of the effective date, the Court shall sufficiently supervise newly-arrived youth, and youth identified as being at heightened risk of self harm to maintain their safety during both waking and sleeping hours. Such supervision shall be frequent and not in predictable intervals.
13. Documentation of Suicide Precautions The following information shall be thoroughly and correctly documented, and provided to all staff at the MSCJDC who need to know such information:
a. the times youth are placed on and removed from precautions;
b. the levels of precautions on which youth are maintained;
c. the housing location of youth on precautions;
d. the conditions of the precautions; and
e. the times and circumstances of all observations by staff monitoring the youth.
14. Environmental Suicide Hazards Within three months of the effective date, the Court shall take all reasonable measures to assure that personal items and all housing for youth at heightened risk of self harm, including holding rooms, isolation rooms, and housing for youth on suicide precautions, are free of identifiable hazards that would allow youth to hang themselves or commit other acts of self harm. With respect to any measures that may involve modification of, or improvements to, the physical structure of the MSCJDC, the Court shall solicit the cooperation and active participation of the IndianapolisMarion County Building Authority as may be required to satisfy the requirements of this provision.
15. Access to Emergency Equipment Within three months of the effective date, all housing units shall be equipped with appropriate equipment to intervene in an attempted suicide by hanging.
16. Suicide Attempt Review Appropriate staff shall review all completed suicides and serious suicide attempts at the MSCJDC for policy and training implications.
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17. Child Abuse Reporting The Court shall develop policies, practices, and procedures to define those circumstances in which staff must report allegations of child abuse or neglect to the appropriate external agencies in accordance with Indiana State law. Such referrals shall not be pre-screened based on MSCJDC personnel’s subjective impressions of credibility. Staff who are the subject of an allegation of child abuse shall be removed from direct youth supervision pending the outcome of the referral or investigation.
18. Internal Investigations The Court shall develop and implement an adequate internal system for management review and, when appropriate, investigation by senior management of uses of force, alleged child abuse, youth-on-youth violence, and alleged sexual contacts. The Court shall establish specific and objective criteria for determining which incidents shall be internally investigated.
19. Grievances The Court shall implement policies, procedures, and practices to ensure that MSCJDC has a functional, responsive, and confidential grievance system, available to all youth, that ensures that youth have an avenue to report abuse, staff misconduct, or unfair treatment.
B. ENVIRONMENTAL HEALTH AND SAFETY
1. Fire Safety Within three months of the effective date, the Court shall develop and implement an adequate fire safety program, to include conducting and documenting adequate fire drills, providing all employees with keys to the fire alarm boxes, and identifying and eliminating fire hazards.
2. Chemical Safety The Court shall develop and implement adequate chemical safety measures.
3. General Safety The Court shall develop and implement adequate measures to identify and eliminate safety hazards.
4. General Sanitation The Court shall develop and implement adequate measures to provide for youth sanitation and health, including adequately cleaning, drying and transporting youths’ clothes, and adequately cleaning and disinfecting
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mattresses, pillows, gym pads, and housing areas. These measures shall also ensure appropriate hygiene practices to minimize the risk of disease transmission.
5. Insect Control The Court shall perform regular and periodic insect control measures.
C. SPECIAL EDUCATION
1. Provision of Required Special Education The Court shall provide all eligible youth confined at the facility special education services as required by the IDEA, §§ 1400-1490, and regulations promulgated thereunder. The Court understands that an adequate number of special education teachers is an essential prerequisite to providing appropriate special education services.
2. Screening and Identification Qualified professionals shall provide prompt and adequate screening of facility youth for special education needs, including identifying youth who are receiving special education in their home school districts and those eligible to receive special education services who have not been so identified in the past.
3. Individualized Education Programs The Court shall timely develop, revise as appropriate and/or implement an adequate IEP, as defined in 34 C.F.R. § 300.320, for each youth who qualifies for an IEP.
4. Access to Educational Services The Court shall provide all eligible youth access to free and appropriate public education that meets the standard of the State education agency.
5. Indianapolis Public Schools With respect to provisions regarding special education, the Court shall take all reasonable measures to secure the cooperation and active participation of the Board of Commissioners of the City of Indianapolis as may be required to satisfy these provisions.
V. COMPLIANCE AND QUALITY ASSURANCE
A. The Court shall maintain, revise and/or develop policies, procedures, protocols, training curricula, and practices as necessary to make them compliant with the provisions of this Agreement. The Court shall
8


revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreement.
B. Written Court policies, procedures and protocols that address the provisions of this Agreement regarding the following topics shall be submitted to DOJ for review within ninety calendar days of the execution of this Agreement: use of force/crisis management; minimum staffing ratios; investigations; grievances; and special education services.
C. The Court shall reasonably develop and implement a quality assurance program for protection from harm, environmental health and safety, and special education services, to ensure that systemic reforms implemented pursuant to this Agreement continue after the Agreement is terminated.
D. The Court shall develop and implement policies and procedures as necessary to address problems that are uncovered during the course of its quality assurance activities. The Court shall develop and implement corrective action plans to address these problems.
VI. DOJ MONITORING AND ENFORCEMENT
A. DOJ shall have full and complete access to the MSCJDC including facility records, staff, staff records, youth, youth records, meetings, meeting notes, and any such other information necessary for DOJ to fully evaluate the Court’s compliance with the requirements of this Agreement, however, this provision shall not apply to those records and communications that are protected by the attorney-client privilege or the work product privilege. DOJ shall make periodic site visits to the MSCJDC with appropriate notice to counsel for the Court, and shall also have the right to conduct unannounced visits to the MSCJDC. DOJ shall have the right to conduct confidential interviews with staff, youth, and former residents. DOJ shall routinely report its evaluation of the Court’s compliance with the requirements of this Agreement. Neither the evaluations nor any confidential information or documents obtained pursuant to this paragraph shall be disseminated to any person not a party (or an employee or contractor of a party) to this Agreement, including the media, unless consented to by the parties or otherwise required by law. DOJ shall adhere to the requirements of federal law governing disclosure of confidential information by a government agency,
9


department or employee including the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In the event of a request for materials pursuant to FOIA, the DOJ shall notify the Court of all such requests prior to the release of all materials and agrees to assert all applicable exemptions in protecting materials in this matter. Such information may, however, be used in any proceedings to enforce the requirements of this Agreement.
B. DOJ shall, at its discretion, hire subject-matter consultants to assist in compliance review, including on-site tours.
C. Within a reasonable time following receipt of written questions or requests for documents from the DOJ concerning the Court’s compliance with this Agreement, the Court shall provide the DOJ with written answers and any requested documents.
D. The Court shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The Court shall also maintain (as long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
E. The Court agrees that, for the first year of this agreement, the Court will provide the DOJ, every ninety days, with a status report, including any supporting documentation, enumerating all steps taken during the reporting period to comply with each substantive provision of this Agreement. The report shall also include a status report regarding: 1) progress reports on the hiring of personnel and summary of current staffing ratios; 2) incidents involving assaults on youth, suicides or attempted suicides, and serious self-harm; 3) a summary of submission and resolution of grievances; 4) a log of all uses of isolation greater than 24 hours; 5) a log of all child abuse and mistreatment referrals to an external agency; 6) a summary of completion and implementation of all IEPs; and 7) copies of all quality assurance reports and analyses over the preceding sixty days. Thereafter, for the second and third year of this Agreement, the Court will send a status report every one hundred eighty days to the DOJ.
VII. IMPLEMENTATION AND TERMINATION
A. The Court shall provide information and training to ensure that all current and future employees at the
10

MSCJDC understand and implement the terms of this Agreement.
B. The Court shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement.
C. This Agreement shall constitute the entire integrated Agreement of the parties. With the exception of DOJ’s findings letter referenced in Section I.E of the Introduction hereof, and any DOJ technical assistance recommendations, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding.
D. This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors.
E. Upon execution of this Agreement, the DOJ shall file a complaint in the United States District Court for the Southern District of Indiana, and file contemporaneously a Joint Motion for Conditional Dismissal of the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the complaint upon the passage of three (3) years from the date of its filing or the Court’s earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until three (3) years have passed or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision.
F. If the DOJ believes that the Court has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to instituting judicial action to enforce this Agreement, give written notice of the failure to the Court. The Court shall have sixty days from the date of such notice to cure the failure, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is described above, in the event that the DOJ determines that the failure has not been cured, the DOJ may institute judicial action without further notice.
11


However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States will notify the Court, and the cure period described herein will be truncated to forty-eight (48) hours, before instituting judicial action. The DOJ commits to work in good faith with the Court to avoid enforcement actions.
G. This Agreement resolves the United States’ current investigation of the MSCJDC pursuant to CRIPA and Section 14141. The United States shall not seek additional measures or requirements in enforcing this Agreement.
H. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement.
I. To the extent that the Court’s implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), shall be applied.
J. The Court shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
K. This Agreement shall terminate definitively and unconditionally no later than three years from the effective date.
1. The Agreement may end on a section-by-section basis earlier than three years from the effective date if the Court has substantially complied with the provisions of that section of the Agreement for at least twelve months.
2. The burden shall be on the Court to demonstrate that it has complied substantially with the Agreement. A finding of substantial compliance may not be unreasonably withheld.
3. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
12


4. The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute. The Court’s unilateral implementation of best practices will not modify the standard.
L. The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court may be sought.
M. If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the Court shall notify the DOJ in writing within a reasonable time after the Court becomes aware of the unforeseen circumstance and its impact on the Court’s ability to perform under this Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The Court shall implement all reasonable measures to avoid or minimize any such failure.
N. No person reporting conditions which may constitute a violation of laws or the Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting. See 42 U.S.C. § 1997d.
O. All subheadings in this Agreement are written for the convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
P. In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
13


FOR THE UNITED STATES:
 Date: April 9, 2008

/s/ Grace Chung Becker GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
/s/ Shanetta Y. Cutlar SHANETTA Y. CUTLAR Chief Special Litigation Section
/s/ Judy C. Preston JUDY C. PRESTON Deputy Chief Special Litigation Section
/s Joshua C. Delaney JOSHUA C. DELANEY JULIE K. ABBATE Senior Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530

14


FOR THE MARION SUPERIOR COURT:

/s/ Robert R. Altice, Jr. ROBERT R. ALTICE, JR. Executive Committee Member Marion County Superior Court
/s/ Gary L. Miller GARY L. MILLER Executive Committee Member Marion County Superior Court
/s/ Tanya Walton Pratt TANYA WALTON PRATT Executive Committee Member Marion County Superior Court
/s/ Gerald S. Zore GERALD S. ZORE Executive Committee Member Marion County Superior Court
15


FOR THE MARION SUPERIOR COURT: /s/ Mark A. Mertz
Mark A. Mertz Assistant Corporation Counsel Marion County, Indiana
16


 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530
August 6, 2007

The Honorable Robert R. Altice, Jr. The Honorable Gary L. Miller The Honorable Tanya Walton Pratt The Honorable Gerald S. Zore Executive Committee Marion County Superior Court T-1221 City-County Building 200 E. Washington Street Indianapolis, Indiana 46204
The Honorable Monroe Gray President Marion County Council 241 City-County Building 200 E. Washington Street Indianapolis, Indiana 46204
Re: Marion County Juvenile Detention Center, Indianapolis, Indiana
Dear Executive Committee Members and County Council President:
I write to report the findings of the Civil Rights Division's investigation of conditions at the Marion County Juvenile Detention Center ("Marion"). On July 18, 2006, we notified County officials of our intent to conduct an investigation of Marion pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141").
As we noted, both CRIPA and Section 14141 give the
Department of Justice authority to seek a remedy for a pattern or
practice of conduct that violates the constitutional or federal statutory rights of youth in juvenile justice institutions.

..:.· 2 -
On December 13-15, 2006 and February 20-22, 2007, we conducted on-site inspections at Marion with expert consultants in juvenile justice, special education, custodial sexual misconduct, and environmental health and sanitation. We interviewed direct-care and administrative staff, youth, and school personnel. Before, during, and after our visits, we reviewed an extensive number.of documents, including policies and procedures, incident reports, investigative reports, grievances from youth, staff personnel files, unit logs, orientation materials, staff training materials, and school records. In keeping with our pledge of transparency and to provide technical assistance where appropriate, we conveyed our preliminary findings to Marion and Marion County officials at the close of our on-site visits.
We commend the staff at Marion for their helpful and professional conduct throughout the course of the investigation. We received full cooperation with our investigation and appreciate the County and Court's receptiveness to our consultants' on-site recommendations. 1 We would also like to recognize the recent addition of Mr. Richard Curry as the Superintendent of the Marion County Juvenile Detention Center. During his brief tenure, Mr. Curry had already begun to identify areas of improvement and had identified target dates to address various concerns. We anticipate that Mr. Curry will continue these efforts to improve conditions at Marion.
In addition, we note that Marion is planning to implement a Radio Frequency Identification Device (RFID), an innovative program to monitor staff movement. The facility is also planning to install internal video cameras to supplement the existing external cameras. These changes have the potential to be positive steps toward meaningful change at Marion. Based on reports we received during our investigation, these·programs should be underway in the near future.
Consistent with the statutory requirements of CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. 42 § U.S.C. 1997b. As described more fully below, we conclude that certain conditions at Marion violate the constitutional

1

The facility is owned and funded by Marion County,

Indiana, and operated by the Marion County Superior Court under

the direction of its Executive Committee and Chief Probation

Officer.

- 3-
rights of the youth. In particular, we find that youth confined at Marion are not adequately protected from harm. We also find that deficiencies in the areas of fire safety, general sanitation, and general safety pose a significant risk of disease and injury to youth and staff. In addition, the facility fails to provide required education services pursuant to the Individuals with Disabilities Education Act ("IDEAn), 20 U.S.C.A. §§ 1400-1482 (West, Westlaw through July 3, 2006).
In the course of our investigation, we also reviewed allegations of custodial sexual misconduct. We find no current systemic constitutional deficiencies in this area, and commend the County for its commitment to safeguarding youth at the facility from staff sexual misconduct in the wake of the multiple sexual misconduct charges filed against staff members in 2006. County and Court officials responded vigorously after learning of those criminal charges, and exhibited strong leadership in working to alleviate the threat of continued sexual misconduct. We applaud the efforts that County and Court officials have already taken irt this regard.
I. BACKGROUND
Marion is a secure juvenile justice facility built in 1989 and located in Indianapolis, Indiana. Marion is primarily a detention center, receiving youth between the ages of seven and 17 who are awaiting adjudication, or who have been adjudicated delinquent and are awaiting placement at a State facility. The facility has a capacity to hold 144 youth, including a population of approximately 30 females. The youth population at Marion fluctuates daily. On December 14, 2006, 116 youth were confined at the facility. During our tour on February 20, 2007, the facility confined 124 youth.
Our investigation of systemic conditions at Marion began following the criminal indictment of ten former ·employees of the facility, including Marion's former superintendent.· Those employees had been charged with a total of 52 criminal counts, including child molestation, sexual misconduct with a minor, child solicitation, and official misconduct including concealing evidence and failing to report sexual child abuse. 2 We subsequently received information regarding an independent investigative report authored by the National Partnership for

2

As of this writing, charges have been dismissed against

six employees, one employee was convicted, one employee was

acquitted, and the two remaining employees are awaiting trial.

-4 -
Juvenile Services3 regarding conditions at the facility. That report, based on a February 14-16, 2006 facility assessment, concluded, among other things, that "residents at the facility are not safe."
II. LEGAL STANDARDS
Both CRIPA and .Section 14141 authorize the Department of Justice to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of youth in juvenile justice institutions. 42 U.S.C. §§ 1997, 14141. States and their political subdivisions must provide persons confined in a non-penal context - like the youth confined in Marion who are either awaiting adjudication or have been adjudicated delinquent and not convicted of a crime - with reasonably safe conditions of confinement. See Youngberg v. Romeo, 457 U.S. 3-07, 315-16 (1982) (recognizing that a person with mental retardation in State custody has substantive due process rights under the Fourteenth Amendment); Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979) (applying the Fourteenth Amendment standard to facility for adult pre-trial detainees) ; K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (stating "Youngberg v. Romeo made clear . . that the Constitution requires the responsible state officials to take steps to prevent [youth] in state institutions from deteriorating physically or psychologically."); Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir. 1974) (recognizing that juvenile detainees have a right under the Fourteenth Amendment due process clause to rehabilitative treatment, and that "[t]he 'right to treatment' includes the right to minimum acceptable standards of care and treatment for juveniles and the right to individualized care and treatment.") . 4

3

The National Partnership for Juvenile Services is a

coalition of four former juvenile advocacy organizations

including the National Association for Juvenile Corrections

Agencies, the National Juvenile Detention Association, the

Juvenile Justice Trainers Association, and the Council for

Educators of At-Risk and Delinquent Youth.

4

See also, Doe v. Strauss, No. 84C2315, 1986 WL 4108, at

*4 (N.D. Ill. Mar. 28, 1986) -(unreported) ("[Concluding] that

what we have here is a long elevated Fifth, Eighth and Fourteenth

Amendment right decisionally recognized in this state and many

others. It protects juveniles when they are placed by state·

action in special custody, management and control because of

their homeless, their delinquent conduct, and their unmonitored

living. It is a right to care, management and therapy reasonably

- 5-
Such constitutionally mandated conditions include the right to be free from undue restraint and the use of excessive force by staff. Youngberg, 457 U.S. at 315-16; Nelson, 491 F.2d at 356. Youth who are placed in disciplinary isolation are entitled to certain procedural safeguards. Mary and Crystal v. Ramsden, 635 F.2d 590, 599 (7th Cir. 1980). Youth in state or local custody also have a constitutional right to be reasonably protected from harm inflicted by third parties. K.H. v. Morgan, 914 F.2d at 851.
Youth in state custody also have a constitutional right to adequate fire and occupational safety. French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985); Duckworth v. Franzen, 780 F.2d 645, 655 (7th Cir. 1985) (stating "[p]rison fires . . are common and both their hazards and the necessary precautions well known.") (abrogated on other grounds as noted in Haley v. Gross, 86 F.3d 630 (7th Cir. 1996)). In addition, youth in State or County custody are constitutionally entitled to "life's necessities," including adequate shelter, sanitation, clothing, and hygienic materials. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) .
The State and County are also obliged to provide special education services to youth with certain disabilities pursuant to the IDEA. 20 U.S.C.A. §§ 1400-1482 (West, Westlaw through July 3, 2006). As described below, the County has fallen short of these constitutional and federal statutory obligations.
III. FINDINGS
We find that Marion fails to adequately protect youth in its care from harm and serious threat of harm, fails to provide adequate fire safety and environmental health conditions, and fails to provide youth with required special education services.
A. INADEQUATE PROTECTION FROM HARM
Youth at Marion are not adequately protected from harm because youth are subjected to excessive levels of youth violence, excessive and improper seclusion practices, inadequate suicide prevention measures, a dysfunctional youth grievance process, and an unreliable child abuse reporting and investigations system.
designed and calculated to effect rehabilitation, moral restoration and proper development."

-6 -

1. Youth Violence

Youth in institutions have a constitutional right to be reasonaply safe from harm inflicted by other youth. Facilities must maintain sufficient structures, safeguards, and staffing to ensure reasonable safety. Our investigation revealed an unacceptably high rate of youth violence, and a serious danger of continuing and intensifying physical harm at the facility.

Nearly all of the youth interviewed by our consultants reported that they do not feel safe at Marion. We found unacceptably high levels of youth-on-youth assaults, and grossly inadequate safeguards to prevent and mitigate such violence. Indeed, DOJ staff and consultants witnessed, first hand,, three youth assaults during our investigatory tours. Disturbingly, youth are routinely involved in incidents requiring emergency room treatment. Violent incidents at the facility requiring "code blue" or emergency response team intervention occur daily. For example:

•

On February 11, 2007, two youth [SX] 5 and [JN] were involved

in a fight in the gym, resulting in lacerations requiring

treatment in a local emergency room. The incident report.

suggests that a lack of staff support may have exacerbated

the severity of the injuries.

•

On January 3, 2007, two youth were involved in a fight.

One of the youth, [BN] , required medical attention for a

bloody nose. After repeated attempts to summon medical

staff to the unit, a staff person went to the clinic to find

the nurse. Both nurses had their coats on and were

preparing to depart, without any intention to deliver the

requested medical care. Ultimately, the nurses assessed the

youths' injuries, and ordered treatment for [BN] at the

local emergency room.

A variety of factors contribute to the violent conditions at Marion, including inadequate staffing levels, inadequate staff training, inadequate youth programming, an inadequate behavior m,anagement program, and an inadequate housing classification system.

5

To protect the youths,' identities, we use fictitious

initials throughout this letter. We will separately transmit to

counsel for Marion County a schedule.cross-referencing the

fictitious initials with youths' names.

-7-
a. Inadequate Staffing Levels
A significant factor contributing to the high levels of youth-on-youth violence at Marion is the absence of sufficient numbers of staff to adequately supervise youth. Without adequate levels of trained staff on duty, it is not possible to respond in a safe and timely manner when violence and other crises occur. Moreover, without adequate numbers of qualified staff, detention officers do not have the time to build the relationships with youth that are necessary to identify and preempt potential conflicts.
Of the staffing sampling reviewed by our consultants for 2006 and 2007, we determined that during waking hours,, approximately 80% of the units were staffed substantially below generally accepted.professional standards. 6 Specifically, the 16-bed units were typically staffed with a single dedicated staff person, or a 1:16 staff-to-youth ratio. Such staffing levels during waking hours are dangerously inadequate, and make it difficult for staff to prevent and quickly intervene in youth assaults.
Indeed, incident reports were full of examples in which a single staff person was tasked with.separating multiple youth involved in assaultive behavior. In one example from January 2007, a lone staff person was required to separate multiple youth involved in a fight. In an example from February 2007, a lone staff person required the assistance of three youth in order to restrain two fighting youth until additional staff assistance arrived. As one staff person so aptly reported to us during an interview, "there are 16 of them, and 'I only have one set of eyes."
b. Inadequate Staff Training
In addition to adequate numbers of staff, generally accepted professional standards require that facilities provide staff with adequate training in behavior management, de-escalation techniques, assault intervention, and use of force. That curriculum should be included in both staff pre-service training,

6

Generally accepted professional standards typically

require one direct care staff to every eight to ten youth during

waking hours, and one direct care staff to every 16 to 20 youth

during sleeping hours. At certain facilities, additional

factors, such as poor facility layout, may require additional

staff.

- 8-
curriculum should be. included in both staff pre-service training, and in the required annual in-service training. A lack of training in these areas hampers the staff's ability to diffuse tensions, discourage and prevent violent incidents, and safely and appropriately intervene once an assault has occurred. Staff at Marion do not receive adequate levels of training, and, in fact, receive no pre-service instruction in the use of force continuum. This lack of training contributes significantly.to the violent conditions at the facility.
In November 2006, Marion contracted with a private company to provide eight hours of in-service training with all staff on "Critical Movement Intervention." This program included training on verbal de-escalation, positive interactions, and physical restraint techniques. The program lacked any formal assessment of whether staff had learned the material or techniques, and generally appeared to be inadequate to provide staff with essential skills.
The gross inadequacy of training at Marion is highlighted by our interview with several staff who were unable to articulate what they had learned or how they would apply their training in a real-world setting. In addition, a review of incident reports revealed that staff were unable to specify types of interventions, and appeared unfamiliar with basic use of force terminology.
The amount and effectiveness of staff training at the facility is a substantial departure from generally accepted professional standards. Indeed, the paucity of training opportunities means that staff are not adequately equipped to prevent or intervene in physical altercations and to protect youth from harm by others.
c. Inadequate Youth Programming·
The amount and quality of structured daily programming in juvenile facilities has a significant impact on the rate of violent and antisocial incidents. Simply stated, youth who do not have adequate opportunities to engage in programmed activities become bored, and are more likely to become involved in mischief or assaultive behavior. Generally accepted professional standards mandate that youth in juvenile justice facilities receive a minimum of one hour of large muscle activity per weekday, two hours of large muscle activity per weekend day, educational programming during weekdays, and other structured developmental and rehabilitative activities. Inadequate youth programming at Marion contributes to the high levels .of youth

- 9-
violence 1 and departs substantially from generally accepted professional standards.
Youth at Marion generally receive only 40 minutes of largemuscle activity per day. Some youth in isolation or in various other disciplinary categories do not receive educational services of any kind. Other types of programming are scarce; and youth spend a significant portion of their day watching television. Youth reported that they are bored, particularly on the weekends. Detention officers reported that low staffing levels prevent meaningful programming at the facility.
d. Inadequate Behavior Management Program
Generally accepted professional standards require that facilities confining youth provide effective behavior management systems in order to encourage appropriate behavior and discourage violent or disruptive behavior. Effective behavior management systems generally involve incentive-based programs for promoting appropriate behavior throughout the day 1 and clearly defined guidelines that are cons,istently applied within the facility. For youth identified as having behavioral problems 1 behavior management programs should be coordinated with a treatment plan. The behavior management program should be based on proven techniques and focused on achieving lasting change through the integration of evidence-based (or scientifically measurable) outcomes. Facilities must continuously track behaviors of their youth with behavior problems and adjust their behavior management programs, when necessary 1 to achieve desired results.
The behavior management program at Marion is poorly structured and inadequately implemented. The range of rewards and .sanctions under the program are not adequate to deter aggressive youth behavior, and therefore contribute significantly to the high levels of violence at the facility. In addition, staff are not fully aware of the features of the program, and staff and youth interviews indicate that the program is inconsistently applied. For example, when asked what the maximum number of points they could award a youth on a given day, staff reported vastly different answers. The policy regarding reward points is not clear and comprehensive. In addition, the penalties· available under the system for misbehavior are limited and ineffective.

- 10 -
e. Inadequate Housing Classification
The absence of an adequate classification system guiding youth housing assignments contributes to the high frequency of youth-on-youth assaults at Marion. Generally accepted professional standards require that youth be housed and supervised in accordance with their housing classification status. Reliable classification systems take into consideration such information as a youth's age, committing offense, physical size, maturity, history of institutional violence and escape attempts, known enemies or rivals, and gang membership or affiliation. In addition, reliable systems are objective, and validated using historical facility data.
Marion does not use any type of objective classification instrument. Housing at the facility is based primarily on age. Youth of all different sizes, levels of maturity, histories of aggression and violence or other predatory behavior are all housed together, with no distinction between those who are potentially vulnerable and those who are demonstratively predatory. The current subjective housing assignment system at Marion is a substantial departure from generally accepted professional standards.
2. Use of Isolation
Marion's isolation practices substantially depart from generally accepted professional standards. Marion's use of isolation is excessive and lacks essential procedural safeguards.
a. Inappropriate Use of Isolatio.n
Isolation at a juvenile detention facility should be used only to the extent necessary to protect youth from harm to themselves or others, or to maintain institutional discipline. Generally accepted professional standards prohibit the use of excessive isolation. Punitive isolation, 7 if used at all, should

7

Juvenile justice institutions typically place youth in

isolation for two different reasons. Punitive or "disciplinary"

isolation involves. placing a youth alone in a locked room as a

sanction or punishment for negative behavior for a pre-determined

period of time. A separate form of isolation involves placing

youth who pose an immediate and continuing threat to themselves

or others alone in a locked room in order to prevent immediate

self harm or harm to others. Sometimes this latter form of

isolation is called a "cool down" and should only last as long as

- 11 -
be used in conjunction with a continuum of interventions,. beginning with techniques such as verbal re-direction and loss of certain privileges. Fadilities are required to provide isolated youth with certain services and programming, such as medical care, mental health care, daily exercise, and to the extent reasonably possible, educational services. The length of punitive isolation should be proportional to the offense committed.
Prior to February 15, 2007, Marion used three forms of isolation: "DOE" (an orientation phase requiring an initial three days in isolation upon admission to the facility), "Re-DOE" (essentially a return to the orientation phase) , and "2H" (punitive isolation lasting from four to seven days) . On February 15, 2007, the new superintendent issued a memo abolishing DOE, Re-DOE, and 2H, replacing them simply with punitive isolation lasting from two to 24 hours and requiring diff~rent levels of approval at each increment. 8 Regardless of the name used to describe it, the facility excessively relies on isolation as a means of attempting to control youth behavior. Based on the review of housing assignments in January and February 2007, on any given day, approximately 15 to 20 percent of the youth population was in some form of isolation.
In addition, staff at Marion have historically failed to distinguish violent and dangerous rule infractions from less serious disruptive or annoying behaviors. For example, our review of incident reports revealed that the vast majority of staff recommended isolation as the sanction for rule violations, together with a reduction in the youths' behavior management level. These recommended sanctions were generally the same whether the alleged misbehavior included failing to follow instructions, refusing to take a shower, or stealing food, as

the youth continues to pose an immediate threat, and is therefore necessarily indeterminate in duration.

8

At the time of our most recent tour in February 2007,

the new isolation policy had been in effect for only three days.

Therefore, there was an insufficient sampling to fully evaluate

the program's effectiveness or implementation. However, the new

policy appeared to be severely flawed, suffering from illogical,

redundant, and overlapping guidelines, a lack of procedural

safeguards, lack of staff training in the new policy, and unclear

and disproportionate durations of isolation. In addition, the

new policy failed to provide meaningful alternatives to the use

of isolation.

- 12 -
well as more s~rious misbehavior such as threatening staff, assaulting another youth, or destroying property. Punitive isolation should never be the sole response to misbehavior in a juvenile detention facility. 9
The facility also fails to provide isolated youth with certain required services. For example, youth in isolation do not regularly receive mental health care services, special education services, regular access to medical care, or daily large muscle exercise. Failtlre to provide youth in isolation with essential services creates an additional impermissible form of punishment.
b. Lack of Procedural Protections
Generally accepted professional standards require that youth placed in punitive isolation receive notice of the charges, a hearing before an independent decision-maker, and an opportunity to present evidence in their defense. Marion fails to provide these important procedural safeguards in imposing punitive isolation. At the facility, a supervisor is required to review and approve the use of isolation. However, there is no formal process for the youth to be notified of the charges and their rights, to dispute the charges, to present exculpatory evidence, or to receive consideration from a neutral decision-maker. One predictable consequence of this failure is that Marion youth perceive the disciplinary process to be unfair and arbitrary.
3. Suicide Prevention Measures
Juvenile justice facilities must protect youth from selfharm. Youth in detention settings, like the youth at Marion, are at a much higher risk of suicide than their counterparts in the community. For reasons set forth below, Marion fails to provide adequate protections for potentially suicidal youth.
Generally accepted professional standards require facilities to screen youth upon intake for suicidality using a validated and developmentally-appropriate suicide risk instrument. In addition, staff must be trained to identify warning signs in youth after intake, and to make appropriate referrals to a qualified mental health professional ("QMHP"). Youth identified

9

Examples of other generally accepted disciplinary

sanctions short of isolation include letters of apology, essay

writing, community service, probated sanctions, and loss of

certain privileges.

- 13 -
qualified mental health professional ("QMHP"). Youth identified as potentially suicidal must be subject to a number of precautions, including heightened staff supervision, recurring contact with QMHPs, suicide resistant housing, and frequent staff searches for any restricted or dangerous items.
Generally accepted professional standards also require that, depending on the severity of the risk, QMHPs may· order heightened supervision from a continuum of close observation, generally four .randomly-timed (unpredictable) checks per hour, to one-on-one constant supervision. After a youth has initially been identified as potentia~ly suicidal, only a QMHP may remove that youth from p~ecautions, or lower the level of precautions for that youth. Youth on a high level of suicide precautions should be gradually "stepped-down" to lower levels, rather than being abruptly removed.
Marion's policies and practices regarding suicide prevention are inadequate t_o protect youth from self-harm. Staff conduct periodic welfare checks in predictable intervals. Moreover, the existing policy fails to provide for welfare checks during waking hours. Additionally, the facility fails to adequately document or preserve evidence that welfare checks are performed. For example, Marion was unable to produce youth observation forms for any of the 15 youth on suicide precautions we requested. 10 Youth Counselors at Marion routinely make decisions regarding precautions and treatment of suicidal youth, rather than QMHPs; In addition, youth on a high leve:)_ of precautions are sometimes abruptly removed, without any step-down.
Staff at Marion receive only minimal training in suicide prevention and intervention, and staff routinely ignore warning signs and act inappropriately in response to suicidal ideations, gestures, and attempts. Most staff were unable to articulate how they would respond if they observed a youth hanging, and were unaware if the facility had a cut down tool. 11 One recent example demonstrates numerous failures to implement an adequate suicide prevention system over a period of several months:
10 Although some staff· and youth reported that observations were being recorded on observation forms, we were unable to corroborate this with any documentary evidence.
11 Cut d6wn tools are specialty blades used in correctional settings to quickly cut down hanging inmates. These tool~ are specially designed to minimize the danger that the blade will be used as an improvised weapon.

- 14 -

•

On June 25, 2006, a youth. [EL] tied a sheet to the sprinkler

head in his room and was attempting to tie it around his

neck when staff intervened. [EL] was not assessed by the

Youth Counselor until five days later, on June 30th, when he

was placed on pink card status, 12 but was then removed from

suicide precautions on July 5th. On July 7th, [EL] again

tried.to hang himself using a sheet, and in response he was

placed back;on pink card status. Despite being on. a

supposedly enhanced level of supervision, the next day he

attempted to tie a sheet around his neck twice, and

atte[11pted to place his head in a s.ink full of water.

Finally, h~ was traI1sferred to a psychiatric hospital on

July 8th.

Later in the month, [EL] returned to Marion from the hospital. On July 22nd, staff observed him banging his head against the wall on two separate occasions. On July 24th, the youth verbalized a plan to jump off the second tier of the unit. On July 28th, the youth actually jumped off the tier. The Shift Manager "advised [EL] of the negative consequences of his behavior." On July 29th, the youth jumped from the second tier again, this time with a sheet . tied around his neck, and "was informed he would receive additional discipline." On July 31st, [EL] tied a shirt around his neck and, in a separate incident, placed his head in a sink full of water. Another round of similar incidents occurred in November 2006. For the July 31st and November 2006 incidents, there was no record that [EL] was seen by a QMHP or that a safety plan was created to prevent him from hurting himself. Further, observation forms could not be produced for any of these time periods, and thus the facility cannot demonstrate that the youth received any enhanced supervision in response to these repeated serious
gestures.

Marion also fails to protect suicidal youth from environmental hazards or contraband. The facility fails to reasonably ensure that the youths' environment and person are free of items that could be used in self-harm attempts. Staff do not receive clear instructions on what items a suicidal youth may possess. For example, in February 2007, a youth [UK] was on cautionary status after stating his intent to kill himself. On two different occasions, he was found with a length of string in the padded room in which he had been placed. For a second

12 Pink card status requires staff at Marion. to record observations of the youth every 15 minutes during sleeping hours.

- 15 -

example, in January 2007, a nurse determined that all of another youth's [TU] belongings and clothing should be removed to protect the youth's safety. The nurse returned to the unit two hours later to find that staff had given [TU] all of her belongings back.

4. Grievances

The dysfunctional grievance system at Marion contributes to the facility's failure to ensure a reasonably safe environment. An adequately functioning grievance system ensures that youth have an avenue for bringing serious allegations of abuse and other complaints to the attention of the administration. It also provides an important tool in evaluating the culture at the facility, and alerting the administration about dangers and other problems in the facility's operations.

Youth should have timely access to the grievance system, and

grievances should be reasonably confidential. Grievances should

be tracked, audited, and periodically reviewed by senior

management in order to identify patterns and problems.

Grievances should be responded to in a timely manner, and youth

·~,

should be informed about how their grievance was resolved~

Although Marion has invested in technology to improve the gri~vance.process at the facility, the s~~tem remains a

substantial departure from generally accepted professional

standards.

First, the Marion grievance system relies heavily on five "Student Concern Phones" located outside of the youth housing units in certain common areas of the facility. Several youth, particularly those in isolation or restricted housing, complained that the Student Concern Phones were not accessible to them, or that limited staffing in their units inhibited their ability to access the phones.

Second, although the Student Concern Phone is an important tool in Marion's grievance system, youth should also have additional avenues for reporting concerns or allegations. For example, youth witness statements in incident reports should provide an additional avenue for reporting staff misconduct or abuse. Youth at Marion do not have the opportunity to provide written statements in connection with an incident. Currently, staff interview youth involved in an incident, and then write a summary of the youth's statement on the incident report. This practice creates the possibility that staff may, purposefully or inadvertently, misrepresent or.misinterpret the youth's statements. While the current practice may be appropriate in

- 16 -
certain situations where youth lack the ability to write, youth should first be offered the opportunity to complete their own statement.
Third, the Marion grievance system also violates generally accepted professional standards because youth are often not informed of how their particular grievance was resolved. For example, when a grievance is determined by a Marion administrator to be unfounded or not grievable, the administrator fails to inform the youth. One obvious consequence of the lack of followthrough is that youth lose confidence that their grievance has been reviewed or given serious consideration.
5. Child Abuse Reporting and Investigations
a. Mandated Reporting
Generally accepted professional standards and State law13 require personnel at Marion to report all allegations of child abuse to appropriate external social services and law enforcement agencies. Personnel must report all allegations, and may not filter reporting of the allegations based on the perceived c~edibility of the youth, or merit of the allegations.i•
Professional standards also mandate that once an allegation of child abuse has been received, management must restrict the.., accused staff member from contact with youth, pending the outcome of the referral and investigation.
Marion practices substantially depart from professional standards. Supervisory personnel at the facility routinely fail to report allegations that they subjectively determine not
13 See Ind. Code §31-33-5-1 ("an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.").
14 Social service and investigative agencies routinely "screen-out" child abuse allegations based on lack of credibility or evidence. Staff at these agencies provide an objective and non-involved perspective on the merit of the allegations, and are specifically trained in investigating allegations of abuse. Conversely, investigations by Marion personnel do not share these qualities.

- 17 -

credible. 15 In addition, because the allegations are, often not determined to be credible, the accused staff are not subsequently placed on non-contact status pending the investigation. For example, the following incidents did not result in any external reporting, and did not result in any attempt to remove the accused staff from direct youth supervision:

•

During our second tour, a youth reported to us that a Youth

Manager had sprayed him in the face with bleach in response

to his misbehavior the day before. The youth indicated that

one of the facility supervisors talked to him about what had

happened and that he [the youth] reported the incident as he

reported it to us. The youth also stated that he was not

seen by medical staff following the incident. We located

the incident report, and indeed, the supervisor recorded the

youth 1 s allegation that he was sprayed in the face with

bleach. We were told that the incident was not forwarded to

Child Protective Services because staff did not believe the

allegation was true, indicating that because the youth

"could open his eyesn after the inciderit, the episode could

not have happened.

•

An incident report from mid-February 2007 indicated that a·

staff person observed a youth with a bloody nose say to

another youth, "staff hit me a_nd you are going to be my

witriess.n The reporting staff felt that the instruction ~o

the other youth was evidence of collusion and that the youth

with the bloody nose was lying about what occurred. The

youth was disciplined "for trying to get· staff in trouble. 11

There was no record of the youth receiving any type of

medical treatment.

•

Two different youth called the Student Concern Phone

alleging that a particular staff person threatened to harm

them in separate incidents. While a single allegation

should have been sufficient to trdgger a report to Child

Protective Services, the fact that the reported threats were

so si~ilar ("I 1 m going to slap the shit out of you!n) is

additional cause for concern. These threats were not

15 It is noteworthy that the former facility director has been criminally charged for failing to report allegations that a female youth in his charge was raped by a staff person. The former director has publicly indicated that he did-not report the allegations because he did not perceive the allegations to be credible.' As of this writing, the former superintendent is
awaiting trial.

- 18 -

reported to Child Protective Services, and disciplinary action amounted to telling the staff person that "she should not play this way with any student as she makes herself an easy target."

b. Facility Internal Inve$tigations

Certain allegations of staff misconduct, including allegations of child abuse screened-out or found unsubstantiated by external agencies, should nevertheless be investigated internally for misconduct that does not rise to a criminal level. Marion recently implemented an internal facility-based investigatory process to gather evidence and review employee conduct. At the time of our tour in February 2007, the facility had conducted one such investigation .

. The resulting investigative report revealed a number of significant inadequacies in the internal investigations process. Specifically:

•

Factual errors (e.g., the report indicates that a single

medical staff person received the allegation from the youth,

but the various attachments reveal that the youth reported

the incident to at least three other staff) .

·

•

Failures to interview key witnesses (e.g., the accused staff

person provided a written statement but was never

interviewed; the youth reported that two other girls, since

released from the facility, were also mistreated by the

accused staff person, but they were never interviewed; the

staff members who received the allegations provided written

statements but were never interviewed).

•

Poorly written narrative (e.g., several unclear references,

poor grammar, spelling and punctuation errors, not well

organized so the flow of information is difficult to

discern) .

A properly functioning internal investigation system is essential to ensure that staff are held accountable for any policy violations or provided with any additional necessary training or re-training, and that youth are treated appropriately.

- 19 -
B. FIRE SAFETY AND SANITA.TTON
The environmental health and safety conditions at Marion pose a signifi6ant risk of disease and injury to youth and staff. We identified deficiencies in the areas of fire safety, general sanitation, and general safety.
1. Fire Safety
We identified several deficiencies in Marion's fire suppression and evacuation systems and procedures. For example, Marion does not adequately conduct or document fire drills. Fire alarm boxes are key activated, as opposed to manually pulled, but not all employees have keys to the alarm boxes to activate the fire alarm system. Delays in fire notification can have deadly consequences. We found very heavy lint and dust accumulation on all surfaces in the main laundry room. High concentrations of lint and dust can create explosive fire hazards around electrical equipment,· such as washer and dryer motors. Additional fire safety hazards include a blo~ked emergency exit door; fire extinguishers not properly secured to the wall; an overloaded ~ electrical receptacle holding·nine devices; missing sprinkler heads; and surge protectors ·connected in a series. These conditions pref?ent numerous scenarios fpr harm to youth and staff.
2. General Sanitation
The laundry facilities do not adequately clean and sanitize youths' clothing, which increases the risk of transmitting infectious diseases, such as·methicillin-resistant Staphylococcus aureus ( "MRSA") 16 and scabies, a pruri tic rash· caused by the skin mite Sarcoptes scabiei. Youths' laundered clothing often is returned to them wet, which indicates that dryer temperature settings and/or time cycles are insufficient .to ensure the destruction of pathogens, including MRSA, and. resuits in an increased risk of disease transmission through the sharing of contaminated clothing. Youths'. laundered clothing is also
16 MRSll~ is a virulent staph infection that thrives in close populations. such as j:uvenile justice facilities, prisons, and medi9al facilities. ~RSA is resistant to traditional antibiotics, and can cause s~vere reactions, usually after a str.ain of bacteria enters the body through an opening or break in the skin. An untreated infection of MRSA can cause swelling, boils, blisters, fever, pneumonia, bloodstream.infections, and eventually loss of limbs and even death.

- 20 -
transported in the same laundry carts that are used for soiled cloth1ng, which further exacerbates the risk of disease transmissiOn.
Numerous mattresses, pillows, and safety mats were worn or torn and could not be adequately cleaned and sanitized. Mattresses and pillows in this condition can easily aid in the transmission of bacteria and diseases such as scabies and MRSA.
Youth are further at risk of disease transmission through Marion's practice of requiring youth on most housing units to share a single bottle of roll-on deodorant on the unit. This practice may be contributing to the spread of scabies in the facility. The Sarcoptes scabiei mite can be transferred personto-person by sharing the same deodorant bottle.
Marion's shower areas in the housing units are not adequately clean. Some housing units had fly infestations irt the shower drains, which may exacerbate bronchial asthma in susceptible populations and indicate inadequate sanitation. Some shower areas had peeling paint and mold and mildew growths on the walls. Peeling paint increases the risk of bacteria and mold growth. Building dampness or moldiness has b.een linked with respiratory health problems such as cough, wheeze, and asthma exacerbation. Respiratory health risks may become particularly high when such fungal growth occurs inside a building.
3. General Safety
·chemical safety was also inadequate at Marion. For example, we observed numerous instances of unsecured, unsupervised chemicals, including bleach, in housing and education areas. This poses a significant risk of harm to youth and staff through accidental or intentional spill~. Additionally, chemicals were not accompanied by accurate Material Safety Data Sheets ("MSDS"), and some chemicals had no MSDS sheeis. In one instance, an unidentified chemical in a five-gallon container was being used to prop open a door. Without MSDS sheets, personnel may not be able to adequately respond in case of chemical exposure or other chemical-related injury.
Marion also places youth at risk of accidents by creating unacceptable safety hazards. For example, the sea.ts on the small, four-seat fixed-metal tables in five housing units were broken, exposing the sharp metal seat mounts. This poses a very serious risk of accidental or intentional harm to youth. A trip or fall in the area of the table could produce a fatal injury if someone's head struck the seat mount. The seat mounts could also

- 21 -
someone's head struck the seat mount. The seat mounts could also be used as weapons to inflict youth-on-youth injury.
C. SPECIAL EDUCATION
Youth with certain disabilities have federal statutory rights to special education services under the Individuals with Disabilities Educ;:ation.Act. In states that accept federal funds for the education of youth with disabilities, such as Indiana, the requirements of the IDEA apply to juvenile justice facilities. See 20 U.S.C. 1412 (a) (1); 34 C.F.R. § 300 .2 (b) (1) (iv). Marion violates the IDEA by failing t() adequately deliver required special education services and by denying access to any educational services to certain youth.
1. Special Education Program
Even when youth have access to the education program, the special education program is inadequate.
a. Screening
The facility appears to be under-identifying the number of youth who are eligible for special .education services. Of the 124 youth in custody during our February 2007 visit, only 30 were identified as eligible for special education services. 17 This is 24 percent of the youth population, whic:h is significantly lower than the 40 to 60 percent which, in our consultant's experience, are commonly identified in juvenile detention and correctional facilities.
b. Education Staffing
Marion has one special education teacher. Even with the relatively low number of identified eligible youth, it iq unlikely that a _single special education teacher could provide the services required by their Indiv{dualized Education Programs ("IEPs") . Special education youth at Marion are served in Regular Class se~tings (served in a special education setting £or 0-20% of the school day), in a Resource setting (served in a special education setting for 21-60% of the school day), or in a Separate Class setting' (served in a special education setting for more than 609s of the school day) . A single teacher is simply not

17 Nineteen of these youth were enrolled in school; an

additional 11 youth were eligible for special education services,

but had not been enrolled.

-

- 22 -

·able to provide for the diversity of needs among the youth population at a relatively large detention facility like Marion. Even with the currently small number of identified eligible youth, at some point, the single teacher's class size would exceed generally accepted professional standards. 18

c. Individualized Education Plans

The IDEA requires that each youth qualified for special education services have an Individualized Education Plan, and describes the I:g!P components required to ensure that each youth receives adequate special education services. 34 C.F.R. §§ 300.346, 300.347. The 30 youth identified as eligible for special education services at Marion had IEPs that were prepared before their detention at the facility. However, Marion fails to ensure that these IEPs are updated and appropriate for each youth. Neither the Director of Alternative Education for Indianapolis Public Schools nor the school principal could remember a single situation in which a youth's IEP was outdated and required a case conference to make it current. However, a review of just five randomly selected IEPs revealed several in which the IEP appeared to be expired at the time of admission, yet MDJDC had taken no action to review or update the document.

•

One youth [UK] was in custody from January 11 through March

8, 2007, or 40 school days. The youth's previous IEP had

expired approximately nine months prior to the youth's

admission. No current IEP was located among the documents

provided by the MDJDC.

•

Another youth [UX] was in custody from January 22 to

February 26, 2007, or 26 school days. Her most recent case

conference revising her IEP was held on March 23, 2005, and

thus had expired well over a year prior to her admission to

Marion. Again, no documentation was provided to indicate

any action had been taken to update the youth's IEP.

•

Another youth [CT] was in custody from January 28 to

February 27, 2007, or 22 school days. The most recent case

conference to update her IEP was held on January 17, 2006.

This IEP expired just prior to the youth's admission to

MDJDC, and yet no documentation was provided to indicate

that any action had been taken to update the youth's IEP.

18 The acceptable class size will vary based on the needs of the youth, but generally ranges from ten to twenty students per class.

- 23 -

All actions taken on behalf of a youth need to be clearly documented in the youth's file. Even when another school is responsible for the action itself, the school that is presently serving the youth should receive frequent progress reports to ensure the documents needed to certify eligibility and to direct service provision are in compliance with State and federal law.

School administrators also indicated that they 1 were unable to provide speech, language, and other types of related services, and could not accommodate youth who required assistive devices or technology. Administrators stated that the facility did not have access to qualified consultq.nts or assistive equipment. Services prescribed by a youth's IEP cannot be denied by the facility.

2. Access to Education

The IDEA requires that all youth with certain disabilities have access to free and appropriate public education (FAPE) which meets the standard of the State education agency. 20 U.S.C. § § 14 O1 ( 8 ) (b) [e ff . Ju 1 y 1 , 2 OO5 ] ; 2 O U . S . C . § § 14 O1 ( 9 ) (b) ; 1412 (a) (1) (A). See also 34 C.F.R. § 300.600 (a) (2) (ii). However, Marion routinely fails to provide certain categories of youth with access to any educational services, including special education. Some youth in isolation are denied any educational services. Similarly, youth who are sche.duled to be releas_ed to the Department of Corrections ("DOC") do not attend any school. ··.;,. Finally, Marion does not provide any speciai education services to girls unless at least two girls are eligible for the services.

These practices can severely impact a youth's education. For example:

•

We identified 25 youth (20% of the total youth population at

Marion) who had been at the facility for more than three

days and who were not enrolled in school. 19 Eleven of these

25 youth were eligible for special education services, but

were not receiving them.

•

Two youth, [OB] and [QN] , had been at the facility for 19

days and 35 days, respectively, and were eligible for

special education se~vices under the Other Health Impaired

category, but neither' had been enrolled in school.

19 Three days is the generally accepted standard for the period of time in which youth must be enrolled in school following admission to a juvenile justice facility.

- 24 -

•

Two youth with learning disabilities, [SC] and [IT], had

been at the facility for 21 days and 29 days, respectively,

but neither had been enrolled in s.chool.

•

One youth [KI] had resided at Marion for 105 days, yet had

never been enrolled in school.

Marion's failure to provide access to any educational services for some youth, including special education, violates youths' rights to access to education. Even when youth .have access to an edvcational program, the program is inadequate. Marion provides a total of 260 minutes of academic instruction daily, which is less that the 360 minutes of instruction required by state law. Ind. Code § 20-30-2-2. Marion attempts to rationalize this disparity by claiming that the entire school has been designated as an Alternative School, which requires fewer instructional hours. However, a blanket decision to enroll all youth in an Alternative Program fails to account for the individual needs of youth and appears to.be a decision made purely for the convenience of the facility rather than on the needs of the youth. Indeed, some youth at MDJDC who have been on track for high school graduation could be derailed by a stay at MDJDC, as the facility cannot accommodate their course of study ...

IV. REMEDIAL MEASURES

In order to rectify the identified deficiencies and protect the constitutional and statutory rights of youth confined at Marion, this facility should implement, at a minimum, the following remedial measures:

A. Protection from Youth Violence

1. Ensure that youth are adequately protected from physical violence committed by other youth.

2. Ensure that the facility maintains sufficient levels of adequately trained direct-care staff to supervise youth safely.

3. Ensure that staff receive adequate pre-service and inservice training in behavior management, de-escalation techniques, assault intervention, and suicide prevention.

4. Ensure that the facil·ity provides adequate and appropriate structured youth programming.

- 25 -

5. Ensure that tnere is an adequate and effective behavior management system in place, and that the system is regularly reviewed and modified in accordance with evidence-based principles.

6. Ensure that the facility develops and implements an adequate objective housing classification system to ensu;r:-e sq.fe pausing assignments.

B. Protection from Excessive and Unlawful Isolation

1. Ensure that youth at the facility are not isolated for excessive periods of time or in an arbitrary or disproportionate manner.

2. Ensure that youth sanctioned to punitive isolation receive adequate procedural safeguards.

3. Ensure that youth sanctioned to punitive isolation receive adequate programming and essential services.

C. Suicide Prevention Measures

1. Develop adequate suicide prevention.policies and practices.

2.

-
Perform·required

observation

checks

in

random

intervals. Record the checks and verify that the

checks are occurring.

3. Provide cut down tools in all hous~ng units.

D. Protection from General Harm

1. Ensure that the facility develops and maintains an adequate youth grievance system.

2. Ensure that all allegations of child abuse and mistreatment are referred to the appropriate external agency.

3. Ensure that the facility adequately and timely investigates serious incidents and allegations of staff misconduct.

- 26 -
E. Fire Safety
1. Conduct and document adequate fire drills.
2. Ensure that all employees have keys to the fire alarm boxes.
3. Ensure that fire hazards are eliminated.
F. General Sanitation
1. Ensure that youths' clothing is properly cleaned, dried, and transported.
2. Ensure that hygiene practices minimize the risk of disease transmission (e.g., that youth do not share deodorant) .
3. Ensure that all mattresses, pillows and gym pads are adequately cleaned and disinfected.
4. Ensure regular and periodic cleaning of all housing areas, including toilets and showers. Ensure that regular and periodic insect control measures are performed.
G. General Safety
1. Develop and implement proper chemical safety measures.
2. Ensure that safety hazards are eliminated.
H. Special Education
1. Ensure timely and appropriate assessment and identification of youth qualified for special education services;
2. Provide qualified youth with adequate special education instruction, by an adequate number of special education teachers.
3. Develop, revise as appropriate, and.implement adequate Individualized Education Plans and provide necessary related services.
4. Provide adequate access to educational services.

- 27 -

*

*

*

Please note that this findings letter is a public document. It will be posted on the Civil Rights Division's website. While we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on the Civil Rights Division's website until ten calendar days from the date of this letter.

We hope to continue working with the County in an amicable and cooperative fashion to resolve our outstanding concerns regarding Marion. Assuming there is a spirit of cooperation from the County, we also would be willing to send our consultants' evaluations under separate cover. Thes.e reports are not public documents. Although the consultants' evaluations and work do not necessarily reflect the official conclusions of the Department of Justice, their observations, analysis, and recommendations provide further elaboration of the issues discussed in this letter and offer practical technical assistance in addressing
them.

We are obligated to advise you that, in the entirely unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General may initiate a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a) (1). We note::.' that we are also authorized, pursu~nt to 42 U.S.C. § 14141, to initiate a suit to address the above described conditions.

We would prefer, however, to resolve this matter by working cooperatively with you and are confid~nt that we will be able to do so in this· case. The lawyers assigned to this· investigation will be contacting the facility's attorney to discuss this matter in further detail. If you have any questions regarding this letter, please call Shanetta·Y. Cutlar, Chief of th~ Civil Rights Division's Special Litigation Section, at (202) 514-0195.

Sin~rely,
AWsa~ sniJs.taKnit- ~Jt.t"or~ney General

- 28 -
cc: Kobi M. Wright Corporation Counsel Marion County, Indiana
Robert Bingham Chief Probation Officer Marion County Superior Court
Richard Curry Director Marion County Juvenile Detention Center
Roberta Sabin Recker Counsel Indianapolis Schools
The Honorable Susan W. Brooks United States Attorney Southern District of Indiana
The Honorable Margaret Spellings Secretary United States Department of Education
Mr. John H. Hager Assistant Secretary Office of Special Education and Rehabilitative Services United States Department of -Education
Ms. Patty Guard Acting Director Off ice of Special Education Programs United States Department of Education

 
 Case: 1:08-cv-460 As of: 05/06/2017 10:06 PM EDT 1 of 3
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:08−cv−00460−LJM−TAB

CLOSED

UNITED STATES OF AMERICA v. THE MARION SUPERIOR COURT et al Assigned to: Judge Larry J. McKinney Referred to: Magistrate Judge Tim A. Baker Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/09/2008 Date Terminated: 04/11/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by Jill Z. Julian UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 229−2417 Fax: (317) 226−6125 Email: jill.julian@usdoj.gov ATTORNEY TO BE NOTICED

Joshua C. Delaney US DEPT OF JUSTICE, CIIVIL RIGHTS DIVISON Special Litigation Section 950 Pennsylvania Ave. NW Washington, DC 20530 Email: joshua.delaney@usdoj.gov ATTORNEY TO BE NOTICED

Julie K. Abbate U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514−6258 Fax: (202) 514−0212 ATTORNEY TO BE NOTICED

V. Defendant THE MARION SUPERIOR COURT

represented by Jennifer Lynn Haley Springer OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS 200 E. Washington Street Suite 1601 Indianapolis, IN 46204 (317) 327−5432 Fax: (317) 327−3968 Email: jhaley@indy.gov (Inactive) ATTORNEY TO BE NOTICED
Mark A. Mertz OFFICE OF CORPORATION COUNSEL City−County Building Suite 1601 200 East Washington Street Indianapolis, IN 46204 317−327−4060 Fax: (317) 327−3968

Case: 1:08-cv-460 As of: 05/06/2017 10:06 PM EDT 2 of 3

ATTORNEY TO BE NOTICED

Defendant
THE HONORABLE ROBERT R. ALTICE, JR.

represented by Jennifer Lynn Haley Springer (See above for address) ATTORNEY TO BE NOTICED

Defendant
THE HONORABLE GARY L. MILLER

represented by Jennifer Lynn Haley Springer (See above for address) ATTORNEY TO BE NOTICED

Defendant
THE HONORABLE TANYA WALTON PRATT

represented by Jennifer Lynn Haley Springer (See above for address) ATTORNEY TO BE NOTICED

Defendant
THE HONORABLE GERALD S. ZORE

represented by Jennifer Lynn Haley Springer (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/09/2008 04/09/2008 04/09/2008 04/09/2008 04/09/2008
04/11/2008 05/07/2008 05/09/2008
05/16/2008 05/19/2008

# Docket Text
1 COMPLAINT against all defendants filed by UNITED STATES OF AMERICA.(DH) (Entered: 04/09/2008)
2 CIVIL COVER SHEET filed by Plaintiff, UNITED STATES OF AMERICA. (DH) (Entered: 04/09/2008)
3 NOTICE of Appearance by Jill E. Zengler on behalf of Plaintiff, UNITED STATES OF AMERICA. (DH) (Entered: 04/09/2008)
4 NOTICE of Appearance by Julie K. Abbate and Joshua C. Delaney on behalf of Plaintiff, UNITED STATES OF AMERICA. (DH) (Entered: 04/09/2008)
5 JOINT MOTION FOR CONDITIONAL DISMISSAL filed by Plaintiff UNITED STATES OF AMERICA; and Defendants THE MARION SUPERIOR COURT, THE HONORABLE ROBERT R. ALTICE, JR, THE HONORABLE GARY L. MILLER, THE HONORABLE TANYA WALTON PRATT, and THE HONORABLE GERALD S. ZORE. (Attachments: # (1) Exhibit A−Settlement Agreement (RESTRICTED), # (2) Text of Proposed Order)(DH) Modified on 4/9/2008 (DH). (Entered: 04/09/2008)
6 ORDER granting Joint 5 Motion for Conditional Dismissal. Signed by Judge Larry J. McKinney on 4/11/08. (PG). (Entered: 04/11/2008)
7 SCHEDULING ORDER: Status Conference set for 5/19/2008 03:00 PM in room #204 before Judge Larry J. McKinney. Signed by Judge Larry J. McKinney on 5/7/08.(PG) (Entered: 05/07/2008)
8 NOTICE of Appearance by Jonathan Lamont Mayes on behalf of Defendants THE MARION SUPERIOR COURT, THE HONORABLE ROBERT R. ALTICE, JR, THE HONORABLE GARY L. MILLER, THE HONORABLE TANYA WALTON PRATT, THE HONORABLE GERALD S. ZORE. (Mayes, Jonathan) (Entered: 05/09/2008)
9 SCHEDULING ORDER: Status Conference set for 5/19/2008 03:00 PM is changed to TELEPHONIC. Counsel shall call the court at 317−229−3960.(PG) (Entered: 05/16/2008)
10 ENTRY & ORDER: Parties appear by counsel for Telephonic Status Conference. See Entry & Order for details. Signed by Judge Larry J. McKinney on 05/19/08. (GJQ) (Entered: 05/19/2008)

Case: 1:08-cv-460 As of: 05/06/2017 10:06 PM EDT 3 of 3

05/28/2008
04/13/2011 04/19/2011 05/02/2011

11 Submission Notice of Appointment of Agreement Coordinator, filed by Defendants THE MARION SUPERIOR COURT, THE HONORABLE ROBERT R. ALTICE, JR, THE HONORABLE GARY L. MILLER, THE HONORABLE TANYA WALTON PRATT, THE HONORABLE GERALD S. ZORE. (Mayes, Jonathan) (Entered: 05/28/2008)
12 NOTICE of Substitution of Appearance by Jennifer Lynn Haley replacing Jonathan Mayes on behalf of ROBERT R. ALTICE, JR, GARY L. MILLER, TANYA WALTON PRATT, THE MARION SUPERIOR COURT, GERALD S. ZORE (Haley, Jennifer) (Entered: 04/13/2011)
13 Joint MOTION to Dismiss (Final), filed by Plaintiff UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order Proposed Order of Final Dismissal)(Delaney, Joshua) (Entered: 04/19/2011)
14 ORDER granting 13 Motion to Dismiss − The Agreement and its associated Orders are terminated and this case is dismissed with prejudice. Signed by Judge Larry J. McKinney on 5/2/2011. (REO) (Entered: 05/02/2011)

Case #: 1:08−cv−00460−LJM−TAB