IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

The Buckeye Ranch, Inc.,

Plaintiff,

v.

Disability Rights Ohio,

Defendant.

Case No. 2:18-cv-906

Judge Watson

Magistrate Judge Vascuras

FIRST AMENDED VERIFIED COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF AND ATTORNEYS’ FEES * 1 2

PRELIMINARY STATEMENT

1. Plaintiff The Buckeye Ranch, Inc. (“The Buckeye Ranch”) offers treatment and support

services to countless children and families in Ohio who struggle with emotional, behavioral and

mental health issues. It is The Buckeye Ranch’s mission to restore hope and to provide healing

solutions for these children and their families, through a comprehensive treatment program and

continued support. As one of Ohio’s largest private, not-for-profit mental health agencies

dedicated to youth, The Buckeye Ranch touches the lives of more than 4,800 children and

families each year. With a wide array of programs and services, The Buckeye Ranch is able to

provide high quality, individualized care that focuses on the strengths of each child and family.

2. Earlier this summer, The Buckeye Ranch self-reported several incidents involving

physical restraints ofminor children in its care to the State ofOhio pursuant to R.C. §2151.421.

Independent investigations by the State of Ohio and the Counties of Franklin and Hamilton

found no substantiation of abuse or neglect. Despite these conclusions, Disability Rights Ohio

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(“DRO”) has begun a campaign to not only obtain records and interviews with the affected

children but to conduct a general investigation into the policies and practices of The Buckeye

Ranch. That includes a demand to randomly select and interview children residing at The

Buckeye Ranch - without prior parental or guardian consent or even notice to the family. Efforts

by The Buckeye Ranch to amicably work with the DRO and obtain consent from the parents and

guardians ofthese minors was refused and met only by its own lawsuit1.

3. The Buckeye Ranch at all times complies with Ohio and Federal laws and regulatory

agencies to assure it is compliant with all rules and regulations. It is not its intent here to hide

from any responsibility or obligation. Rather, this action seeks clarification from the Court as to

the boundaries ofthe access DRO has to the records of The Buckeye Ranch and the children in

its care and their families so that the constitutional rights and privacy interests ofthe children and

their families remain protected. This action further seeks to enjoin DRO from exceeding its

scope of access to records and access to resident minors of The Buckeye Ranch without the

consent ofthe minor’s parents or legal guardians.

JURISDICTION AND VENUE

4. Jurisdiction exists in this Court pursuant to 28 U.S.C. § 1331, as this case raises a

question of general federal law.

3. The Buckeye Ranch’s cause of action arises under the Protection and Advocacy for

Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. § 10801; 42 U.S.C. §

15043; and 42 U.S.C. § 1983.

4. Venue is proper in this Court under 28 U.S.C. § 1391(b) as DRO is located in this District

and the events and omissions complained of occurred in this District.

1 Disability Rights Organization v. The Buckeye Ranch, Inc., Case No. 2:18-cv-894, filed August 16, 2018.

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PARTIES

5. The Buckeye Ranch is an Ohio corporation doing business in the state of Ohio, Franklin

County, as The Buckeye Ranch.

6. DRO is a non-profit corporation incorporated in the state of Ohio with its principal office

located at 200 Civic Center Dr., Ste. 300, Columbus, OH 43215. Upon a good faith belief, DRO

was appointed as a Protection and Advocacy System (“P&A System”) under the federal

Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”). P&A Systems are

authorized to act as an agent of and on behalf ofthe U.S. Government to protect and advocate for

the rights of people with mental illness and investigate reports of abuse and neglect in facilities

that care for or treat individuals with mental illness.

STATEMENT OF FACTS

7. The Buckeye Ranch self-reports allegations of abuse and neglect to the State of Ohio

Department of Mental Health in accordance with R.C. §2151.421. The Buckeye Ranch is

obligated to report every allegation no matter how it arises. For example, if a child merely says

“you tried to hurt me” that allegation must be reported.

8. The Buckeye Ranch recently experienced five incidents involving four children where

abuse and neglect allegations were made. The Buckeye Ranch reported these incidents to the

State ofOhio as required by law.

9. The State of Ohio and Franklin and Hamilton County investigated the incidents. None of

these independent investigations found any evidence of abuse or neglect.

10. These reports were not made to the DRO nor is The Buckeye Ranch aware of any reports

or complaints made directly to the DRO by any independent agency or a parent or guardian of a

minor resident ofThe Buckeye Ranch.

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11. In or about July 2018 DRO requested certain records related to these five incidents

involving video footage.

12. In response to DRO’s request The Buckeye Ranch produced the requested records ofthe

four children involved including all video footage ofthe restraints.

13. DRO then demanded further video footage that did not include the restraints or the

affected children. Instead, this video footage included children not involved and contained no

information relevant to these five incidents. The Buckeye Ranch declined to produce the

additional video as it was irrelevant and The Buckeye Ranch did not believe it was required or

authorized to disclose it under applicable law.

14. On August 16, 2010, DRO demanded interviews with the four children to be conducted at

2:30 p.m. that day, providing only several hours’ notice. Two ofthese children had already been

discharged and were no longer residents.

15. The Buckeye Ranch at first agreed to provide access to the remaining two children

subject to their therapy class schedules.

16. DRO immediately followed up with additional demands to allow access to any resident

that DRO randomly selected to interview. DRO demanded that such access be made available

within the week. (See Exhibit A, attached hereto.)

17. The Buckeye Ranch explained to DRO that its position was that under the applicable law

the DRO needed consent from parents or guardians before it could interview children at random.

18. DRO claimed they did not need any such consent and had the right to select at random

any resident minor to interview.

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19. The Buckeye Ranch determined that in order to adequately protect the children and itself

given various competing rights of privacy it would request an opinion from this Court and its

interpretation ofthe applicable federal statutes and regulations.

20. Counsel for The Buckeye Ranch notified the DRO and suggested a joint action to the

Court to obtain such an interpretation. (See Exhibit B, attached hereto.)

21. DRO did not respond, and instead, filed its own Complaint misrepresenting the facts and

the position ofThe Buckeye Ranch.

COUNT I - DECLARATORY RELIEF

22. The PAIMI provides a system whereby a designated agency (“P&A System”) is given

authority to investigate incidents of abuse and neglect ofindividuals with mental illness.

23. DRO claims to be that P&A System.

24. PAIMI provides at 42 U.S.C. § 10805(a)(4) that a P&A System may in furtherance of

their investigations have access to the records “of any individual” who:

(i) is a client ofthe P&A System,

(ii) (a) cannot by reason of a mental or physical condition authorize the P&A System to

have access, (b) has no legal guardian or for whom the guardian is the State, and (c) 

for whom a complaint has been received by the P&A System or there is probable

cause to believe that such individual has been subject to abuse or neglect, or,

(iii) (a) The legal representative has been contacted about a complaint received by the

P&A System, (b) has failed or refused to act on behalf ofthe individual, and (c) there

is probable cause to believe the health or safety ofthe individual is in serious and

immediate jeopardy.

25. A P&A System has a right to “reasonable unaccompanied access *** to all areas ofthe

facility which are used by residents or are accessible to residents.” The P&A System also has a

right to “reasonable unaccompanied access to residents at all times necessary to conduct a full

investigation of an incident of abuse or neglect” but only when:

(i) An incident is reported or a complaint is made to the P&A System;

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(ii) The P&A System determines that an incident has or may have occurred; or,

(iii) The P&A System determines that there is or may be an imminent danger ofserious

abuse or neglect of an individual with a mental illness.

42 CFR § 51.42(b)

26. A P&A System also may have access to residents for the purposes of(i) providing

information and training on, referral to programs addressing the needs ofindividuals with mental

illness, and information and training about individual rights and the protection and advocacy

services available from the P&A System, (ii) monitoring compliance with respect to the rights

and safety ofresidents, and (iii) inspecting, viewing and photographing the facilities used by

residents or accessible to them. That access is only available ifthe P&A System “makes every

effort to ensure that the parents ofminors or guardians ofindividuals in the care of a facility are

informed that the system will me monitoring the facility an may in the course ofsuch monitoring

have access to such minor.” 42 CFR §51.42(c).

27. DRO does not have the authority to request records and access to residents at The

Buckeye Ranch because the alleged incidents at The Buckeye Ranch were not reported to the

P&A System and no complaints were made directly to DRO.

28. DRO does not have the authority to request records and access to residents at The

Buckeye Ranch because there is no probable cause to believe that any abuse or neglect occurred

as the State of Ohio and Franklin and Hamilton County investigated the incidents and found no

substantiation of abuse or neglect.

29. DRO does not have the authority to request records and access to residents at The

Buckeye Ranch because DRO has failed to establish that the resident minors ofBuckeye Ranch

are a client ofthe P&A System.

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30. DRO does not have the authority to request records and access to residents at The

Buckeye Ranch because DRO has failed to show any resident minor’s legal representatives has

refused or failed to act on behalf ofthe child and that the child is in immediate jeopardy.

31. DRO has no reasonable grounds for beliefthat an individual with mental illness has been,

or may be at significant risk of being subject to abuse or neglect while in the care of The

Buckeye Ranch.

DRO has failed to ensure that the parents ofminors or guardians ofindividuals in the care ofThe

Buckeye Ranch are informed that DRO will be monitoring the facility and may in the course of

such monitoring have access to such minor.

32. DRO has failed to show that there is imminent danger ofserious abuse or neglect of any

ofthese children.

33. DRO claims it has no obligation to obtain consent of a parent or guardian or notify such

parent or guardian of access to their child.

34. DRO is not entitled to the additional video footage because it is not a record of an

individual, nor is it a report as defined in 42 USC §10806 and is not therefore subject to

disclosure.

35. The additional video footage requested by DRO does not include a relevant individual.

Rather, it includes other residents who are not relevant to the five alleged incidents.

36. A P&A System must operate within professional cannons of ethics pursuant to 42 CFR

§51.31. In the event of a dispute over access to records and/or residents, the P&A System is

advised to negotiate or mediate towards early resolution in the process. P&A Systems are

instructed that “disputes should be resolved whenever possible through non-adversarial process

involving negotiation, mediation and conciliation.” They are further instructed by law that

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“family members should be involved in this process where the individual with mental illness ***

is a minor.”

37. DRO has failed to operate within professional cannons of ethics by failing to instruct and

involve family members in the process of access to an individual with mental illness.

38. DRO claims it is entitled to the additional video footage and access to all residents ofThe

Buckeye Ranch facility without any need to inform the minor’s parents to obtain consent.

39. Allowing DRO access to the resident minors without a parent or guardian’s consent will

hinder The Buckeye Ranch’s ability to preserve the privacy rights ofthe resident minors it serves

and the privacy rights ofthose resident minor families.

40. These injuries are irreparable with an expectation ofbeing repetitive and evading review

ifnot reviewed now. Ajusticiable controversy exists warranting declaratory relief.

41. Pursuant to R.C. § 2721.03, et seq., The Buckeye Ranch is entitled to a declaratory

judgment that as a matter of law, DRO is not entitled to interview randomly selected minor

residents absent probable cause and/or consent of a parent or guardian and is not entitled to the

requested video footage which is not related to the reported incidents.

COUNT II: 42 U.S.C. § 1983

42. The Buckeye Ranch incorporates all prior allegations as iffully rewritten herein.

43. DRO is an agent ofthe United States for purposes offulfilling its role as a P&A System.

44. DRO has failed to establish probable cause to believe a resident minor at The Buckeye

Ranch has been subject to abuse or neglect.

45. DRO’s interviewing of minors residing at The Buckeye Ranch without particularized

facts supporting probable cause or the consent of a parent or guardian exceeds the DRO’s scope

of access to The Buckeye Ranch’s resident minors.

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46. DRO’s request for records and interviews without probable cause constitutes a search and

seizure in violation ofthe Fourth Amendment ofthe United States Constitution both ofthe

children and The Buckeye Ranch.

COUNT III: PAIMI VIOLATES THE FOURTH AMENDMENT OF THE U.S.

CONSTITUTION

47. The Buckeye Ranch incorporates all prior allegations as iffully rewritten herein.

48. To the extent the PAIMI gives the P&A System, a non-law enforcement orjudicial

agency the power to determine in its sole discretion whether it has probable cause to search the

records and interview residents of a residential facility such as The Buckeye Ranch, the PAIMI is

unconstitutional under the Fourth Amendment ofthe United States Constitution as it violates the

right to be free ofunwarranted searches and seizures.

WHEREFORE, PlaintiffThe Buckeye Ranch requests the following relief:

A. An order declaring that DRO does not have probable cause and is required to

obtain consent of a minor’s parent or guardian prior to being given access to interview

the child;

B. An order declaring that DRO is not entitled to the additional video footage it has

requested which is not relevant to the five incidents they claim to be investigating or

authorized under the PAIMI;

C. A temporary, preliminary and permanent injunction prohibiting DRO from access

to The Buckeye Ranch’s records or resident minors without first obtaining consent from

the resident minor’s parent or guardian;

D. Compensatory and punitive damages for any violation by DRO ofThe Buckeye

Ranch’s rights under the Fourth Amendment the United States Constitution;

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E. An order declaring that the PAIMI is unconstitutional in light ofthe Fourth

Amendment ofthe United States Constitution;

F. An award ofreasonable attorney fees and costs pursuant 42 U.S.C. § 1988.

G. Any other reliefthat the Court deems appropriate.

Respectfully submitted,

ISAAC WILES BURKHOLDER

& TEETOR, LLC

/s/ Maribeth Meluch

Maribeth Meluch (0055903)

mmeluch@isaacwiles.com

Isaac Wiles Burkholder & Teetor, LLC

Two Miranova Place, Ste 700

Columbus, Ohio 43215

p. 614.221.2121

f. 614.365.9516

Attorneys for PlaintiffThe Buckeye Ranch,

Inc.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy ofthe First Amended Verified

Complaint was served electronically upon Laura Osseck, attorney for Defendant Disability

Rights Ohio on the 21st day ofAugust, 2018.

/s/ Maribeth Meluch

Maribeth Meluch

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u t l f H I I 'l l i , .

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

The Buckeye Ranch, Inc.

Plaintiff, Case No.: 2:18-cv-906

v.

Disability Rights Ohio

Defendant.

Judge Watson

Magistrate Judge Vascuras

VERIFICATION OF ROBERT PETERS m

Robert PetersIH, being first duly cautioned and sworn, and acting as the Director ofQuality 

Improvement, Compliance Officer, Maintenance Project Manager ofPlaintiffThe Buckeye 

Ranch, Inc. hereby states that the facts set forth in the foregoing First Amended Verified

Complaint are true as he verily believes.

Robert PeterK®, Director ofQuality

Improvement, Compliance Officer, 

Maintenance Project Manager

Errorl Unknown document property uameJError! Unknown document property name.

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