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T.G. v. Kern County

United States District Court, E.D. California

December 4, 2019

T.G., et al., Plaintiffs,
v.
KERN COUNTY, et al., Defendants.

          ORDER GRANTING PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT (DOC. 36)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         T.G., P.P., and J.A. assert they suffered discrimination as minors with disabilities held in Kern County's juvenile detention facilities. According to Plaintiffs, “these facilities have the effect of punishing, isolating, and intimidating the young people in their care, while depriving them of crucial educational and rehabilitative opportunities.” (Doc. 1 at 2) Thus, Plaintiffs filed a complaint seeking declaratory and injunctive relief from Kern County; the Kern County Probation Department; and T.R. Marickel, Chief of the Probation Department; (“the Probation Defendants”), as well as Kern County Superintendent of Schools and Mary Barlow, Superintendent of Schools (“the Schools Defendants”).

         T.G. and P.P. have entered into settlement agreements with the Probation Defendants and the Schools Defendants, and the parties jointly seek preliminary approval of the class action settlement.[1](Doc. 36) Specifically, the parties now request: (1) preliminary approval of the two class settlements, (2) certification of the proposed settlement class, (3) approval of the proposed class notice and related materials, and (4) scheduling for final approval of the settlements. (See Doc. 36)

         The Court has considered the proposed settlements between the parties, and the proposed notice and related forms. For the following reasons, the joint motion for preliminary approval of class settlement is GRANTED.

         BACKGROUND

         Plaintiffs allege that Kern County, through its Probation Department, “manages and controls the juvenile detention facilities” in which Plaintiffs and the putative class are housed. (Doc. 1 at 4) These facilities include Juvenile Hall, Pathways Academy, Furlough Treatment and Rehabilitation Program, and a separate Crossroads facility. (Id. at 4-5, ¶ 14) Plaintiffs contend the Probation Defendants “must provide ‘a safe and supportive homelike environment' at the Kern Juvenile Facilities and may not treat these facilities as ‘a penal institution.'” (Id. at 5, ¶ 18, quoting Cal. Welf. & Inst. Code § 851)

         On average, the Juvenile Hall complex and Crossroads “house more than 250 youth at any one time.” (Doc. 1 at 4, ¶ 14) According to Plaintiffs, “at least 30 to 60 percent of the youth in the Juvenile Hall complex have a mental health, behavioral, learning, intellectual, and/or developmental disability.” (Id. at 11, ¶ 49) In addition, Crossroads has been described as “a Juvenile Correctional Treatment Facility” by Defendants, who also “report[ed] to the Board of State and Community Corrections (BSCC) that 100 percent of the youth at Crossroads have open mental health cases.” (Id., ¶ 50)

         TR Merickel, the Chief Probation Officer for Kern County, “oversees, manages, and directs the Kern Juvenile Facilities.” (Doc. 1 at 5, ¶ 15) Plaintiffs contend, “Chief Merickel has overarching responsibilities” the affect the “access to educational and rehabilitative programming” of detained youth. (Id., ¶ 20) Plaintiffs report that “Chief Merickel must ‘provide for the administration and operation of juvenile court schools' at the Kern Juvenile Facilities in conjunction with the County Board of Education.” (Id. at 5-6, ¶ 20, quoting Cal. Code Regs., tit. 15, § 1370(a)) In addition, the Probation Defendants “have the ability to remove students from the classroom, effecting a change in placement, affect the general school schedule of instructional minutes, and determine whether a youth may leave his or her unit on any given day to attend an on-site school.” (Id. at 6, ¶ 25)

         The on-site schools at the Kern Juvenile Facilities are operated and overseen by the Kern County Superintendent of Schools (“KCSOS”). (Doc. 1 at 7, ¶ 27) According to Plaintiffs, “[m]ost youth housed at the Juvenile Hall complex attend Central School, an on-site school operated by the KCSOS and Probation Defendants. (Id. at 9, ¶ 45) Youth housed at Crossroads attend Redwood High School, which is the on-site school for the facility. (Id. at 10, ¶ 46) However, “youth with a high-security status” are barred by Defendants from attending Central School and Redwood High School. (Id. at 9-10, ¶¶ 45-46) Instead, high-security youth at Juvenile “receive instruction in their housing unit through the Unit School, ” while high-security youth at Crossroads are “placed on independent study.” (Id. at 9-10, ¶¶ 45-46) “Probation staff directly supervise students at all times” while they are in any classroom at Central School, Redwood High, and the Unit School. (Id.)

         Plaintiffs assert that because KCSOS is the “local education agency … responsible for juvenile court schools, KCSOS must insure that youth with disabilities detained at Kern Juvenile Facilities receive a free appropriate public education within the least restrictive environment” pursuant to the Individuals with Disabilities Education Act. (Doc. 1 at 7, ¶ 28) In addition, Plaintiffs allege that because the Schools Defendants “receive federal financial assistance under the IDEA, they are responsible for providing all school-eligible persons with disabilities who reside in Kern County with special education programs administered in compliance with federal and State laws and regulations.” (Id. at 7, citing 20 U.S.C. § 1413(a)) Further, Plaintiffs contend the Schools Defendants “have an independent duty to ensure that all individuals who qualify for special education services, including detained students, have access to appropriate special education programs and related services.” (Id. at 8, ¶ 32, citing Cal. Educ. Code § 56140(a))

         At the time of the filing of the complaint, T.G. was seventeen years old and housed at the Juvenile Hall complex, where he attended the Unit School. (Doc. 1 at 33, ¶ 182) T.G. “first entered Kern Juvenile Facilities around the age of thirteen and “has been held at the Juvenile Hall complex and Crossroads at various points in time.” (Id., ¶ 183) T.G. has learning disabilities, and “has been diagnosed at various points in time with Posttraumatic Stress Disorder, Major Depressive Disorder with psychotic features, Bipolar Depression, and Attention Deficit Hyperactivity Disorder, as well as a mood disorder and anger problems. (Id. at 33-34, ¶ 184) According to Plaintiffs, “[t]hese impairments substantially limit one or more major life activities of T.G., qualifying him as an individual with a disability.” (Id. at 34, 184) T.G. reports probation staff used pepper spray on him “on multiple occasions, ” including when he was “acting in a manner consistent with and on account of his disabilities.” (Id., at 34, ¶ 188) T.G. also asserts that he has been subjected to physical force and placed in administrative segregation for behavior “consistent with and account of his disabilities.” (Id., ¶¶ 191, 193) Furthermore, T.G. alleges he “has an individualized education plan and “has been eligible for special education and related services at all relevant times, ” yet has not received “appropriate special education instruction and interventions nor appropriate related services.” (Id. at ¶¶ 182, 197) At an unidentified time during his housing at a Kern Juvenile Facility, T.G. was placed on suicide watch. (Id. at 34, ¶ 187)

         Plaintiff P.P. “first entered Kern Juvenile Facilities around the age of thirteen, ” and was detained at Crossroads when the complaint was filed. (Doc. 1 at 36, ¶¶ 202-203) P.P. was “diagnosed with Attention Deficit and Hyperactivity Disorder, Bipolar Affective Disorder, and anger problems, ” which “substantially limit one or more major life activities …, qualifying him as an individual with a disability.” (Id., ¶ 204) He was placed on suicide watch at an unidentified time while housed in the Kern Juvenile Facilities. (Id., ¶ 205) P.P. has been disciplined-including pepper spray, physical restraints, and placed “in solitary confinement and isolation”-and removed from class for exhibiting “behavior consistent with and on account of his disabilities.” (Id. at 36-37, ¶¶ 206-209, ¶ 214) P.P. reports he “spent at least fifty (50) days in isolation during his commitments to Crossroads and Juvenile Hall, ” and asserts the periods of isolation were “because he was unable to conform his behavior on account of his mental health disabilities, and staff did not accommodate or take into account his disabilities when deciding to discipline and punish him.” (Id., ¶ 210) He asserts that he was unable to complete the program at Crossroads because he “could not obtain medication” for his mental impairments. (Id., ¶ 212) Further, P.P. alleges he has an IEP, but Defendants did not “consistently” follow it, and he did “not receive[] the accommodations, supports, and services he needs in order to access his education.” (Id., ¶ 213)

         On February 21, 2018, Plaintiffs T.G., P.P., and J.A. initiated this action by filing a complaint on behalf of themselves and all other persons similarly situated, asserting the following causes of action: (1) violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; (2) violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq.; (3) violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.; (4) violation of Cal. Gov't Code § 11135; and (5) violation of California Education Code for Students with Disabilities.[2] (See generally Doc. 1 at 40-55) Plaintiffs sought declaratory and injunctive relief including:

a. reasonable modification to policies practices, and procedures related to chemical and physical force, prone restraint, isolation, solitary confinement, behavior management, mental health programming, reentry, special education, and classroom management to ensure that youth do not suffer discrimination because of their mental health, behavioral, learning, intellectual, and/or developmental disabilities;
b. free appropriate public education and meaningful access to education, including compliance with all general and special education laws and regulations that protect students with disabilities; [and]
c. educational and rehabilitative services for all youth with disabilities who are isolated as a disciplinary measure for any amount of time[.]

(Id. at 55-56) On March 8, 2018, the parties filed a stipulation and request to stay the proceedings, reporting they had “entered into a Structured Negotiations Agreement… to guide [their] upcoming good faith attempts at resolution.” (Doc. 10 at 2) Thus, the Court stayed the matter. (Doc. 11)

         The parties selected the Council of Juvenile Correctional Administrators, Inc. (“CJCA”) to provide expert evaluations of the facilities. (Doc. 36 at 12) In addition, the parties jointly selected Peter Leon, Ph.D. and Judy Elliot, Ph.D. to provide education expert opinions. (Id.) In May 2018, the “CJCA conducted on-site inspections at the facilities, ” while Drs. Leon and Elliot conducted their inspection in June 2018. (Id.) “The experts met with administrators, staff, and youth at the Facilities, and requested and reviewed documents and information pertaining to the Facilities, and the education provided to youth confined therein.” (Id.) The parties report the “CJCA and Education Experts each provided a written report and recommendations to the Parties containing their evaluation of the issues at the Facilities… along with recommended changes to polices, practices, and procedures at the Facilities.” (Id.) Following the receipt of the experts' reports, the parties “met and conferred jointly and separately by phone and in person more than twenty times … to negotiate the Settlement Agreements and strategies for implementing and monitoring these recommendations.” (Id. at 13)

         On July 3, 2019, the parties reported they had “reached an agreement in principle regarding the system-wide, injunctive remedies for the putative class.” (Doc. 27 at 3, ¶ 7) The parties reported Plaintiffs and the Probation Defendants “negotiated and developed a written plan, titled the ‘Probation Action Plan,' that lays out the significant changes that the Probation Defendants will make in their juvenile detention facilities and the Parties' plans for implementation and monitoring.” (Id., ¶ 8) In addition, Plaintiffs and the Schools Defendants developed the “Court Schools Implementation Plan, ” which identified “significant changes that the Schools Defendants will adopt in the schools that serve students housed at the juvenile detention facilities, as well as the Parties' plans for implementation and monitoring.” (Id., ¶ 9) Based upon this information, the Court lifted the stay in the action. (Doc. 34)

         The parties submitted a joint request for approval of the class action settlements, including the Probation Settlement (with the County of Kern, Kern County Probation Department, and Chief TR Merickel) and the Kern County Superintendent of Schools (“KCSOS”) Settlement with the Kern County Superintendent of Schools and Superintendent Mary C. Barlow in her official capacity. (See Doc. 36, Doc. 36-2 [the Probation Settlement] and Doc. 36-3 [the KCSOS Settlement])

         THE PROPOSED SETTLEMENTS

         The parties report the Probation Settlement and KCSOS Settlement are each intended to settle the claims for a class defined as follows:

[A]ll youth with mental health, behavioral, learning, intellectual and/or developmental disabilities as defined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or Individuals with Disabilities Education Act who are currently detained, or who will be detained during the Monitoring Term (through August 31, 2022), at the Kern County Juvenile Facilities (Juvenile Hall, Crossroads, and Camp Erwin Owen).[3]

(Doc. 36 at 15)

         I. The Probation Settlement

         The settlement between Plaintiffs and Probation Defendants functions “in conjunction with the related Kern Probation Action Plan.” which is incorporated into the settlement agreement. (Doc. 36-2 at 2, Probation Settlement § 1.3) Thus, the terms of both the settlement and the Action Plan are addressed by the Court.

         A. Terms and Modification to Policies and Procedures

         With the Probation Action Plan, the defendants intend “to transition from a corrections model to a treatment model, with new training for staff to reform, ” and provides for “special attention paid to youth with disabilities.” (Doc. 36 at 15, citing Probation Plan § 1) The Action Plan is divided into sections, which address the facilities' culture and environment; case management system programming; training; youth, family, and staff input; complaints and grievances; use of Oleoresin Capsicum (“O.C.” or “pepper”) spray; use of restrictive housing such as isolation, seclusion, and confinement; and reentry. (See generally Doc. 36-2 at 23-66)

         The Probation Department will create an Implementation Team, which “will consist of Juvenile Corrections Officers, Deputy Probation Officers, facility managers, and executive management” to oversee the Action Plan. (Doc. 36 at 15; Doc. 36-2 at 22) This team will meet on a monthly basis initially, “with frequency of meetings to be determined as progress is made.” (Doc. 36-2 at 23)

         1. Facility Culture and Environment

         In an effort to modify the culture at each of the facilities, the Probation Department will “[c]reate avenues for staff communication including regular meetings (at least quarterly) with Managers and Union shop stewards at each at each facility, open dialogue in unit meetings, managers to be available to discuss issues at meetings, through emails or in office, staff surveys will continue on a periodic basis.” (Doc. 36-2 at 23)

         The Probation Defendants will create also “Re-Entry, ADA and Programming (‘RAP') Units within each of the Facilities, comprising a total of 26 staff members.” (Doc. 36 at 15) Staff for the RAP Units “will be completely separate from existing facility housing unit staffing, ” and “will be assigned as coordinators for Re-Entry, Program, Volunteer, School and ADA services.” (Id.) The RAP Unit staff will be trained as to be part of the Crisis Awareness Response (CARE) team, which will be “designated to respond to crisis situations within each facility in an attempt to de-escalate situations before they deteriorate further.” (Id.)

         In addition, Probation Defendants intend to coordinate culture change across Kern County Juvenile Facilities through:

(1) reading and learning more about developmentally informed juvenile justice and positive youth strategies; (2) visiting juvenile facilities that have embraced developmentally informed juvenile justice, trauma informed, therapeutic environments and positive youth development; (3) communicating with agency directors who have made a similar transition; (4) incorporating the principles of the above ideas into all training, policies and procedures and providing continuing education for staff; (5) providing strong leadership for the above ideas and reinforcing in all communication with staff; (6) consulting with experts on the above ideas for assistance in incorporating the principles into training, policies and procedures; and (7) ensuring job descriptions and hiring processes reflect the changes in [these] ideas.

(Doc. 36 at 15-16, citing Probation Plan § 8; see also Doc. 36-2 at 38-39)

         Finally, the Action Plan provides that the Probation Defendants will work on changing the atmosphere of the facilities, because “[i]f the [facility] looks and feels like a prison, youth will behave like prisoners.” (Doc. 36-2 at 34) The Probation Department is seeking to improve the physical look of the facilities “by creating more artwork, murals, and inspirational sayings.” (Doc. 36 at 16) The parties report the “[p]ainting and homelike improvements have mostly been completed in the living units, ” and the anticipated completion date was three months from the Settlement Agreement. (Doc. 36-2 at 34) They also intend to offer “more books, games, and craft supplies, to assist in fostering a homelike environment.” (Doc. 36 at 16, citing Probation Plan § 6)

         2. Case Management System

         Section 2 of the Probation Plan indicates that the Probation Department “will acquire a Case Management System that can provide critical measures in monthly reports to track the use of force, including O.C. spray, mutual fights, youth assaults, room confinement, youth grievances and other issues, for ease of monitoring compliance with the Probation Implementation Plan.” (Doc. 36 at 16, citing Probation Plan § 2) The Probation Department restructured its budget for this purpose, and will purchase Benchmark software for tracking. (Doc. 36-2 at 25) To the extent Benchmark cannot capture relevant case management data, the Probation Department will track that information in an Excel spreadsheet. (Id.)

         3. Programming

         The Probation Department will “[r]each out to local resources” and “[d]evelop full schedule of structured activities for afternoons, evenings and weekends.” (Doc. 36-2 at 27) The department will “assign a volunteer coordinator to conduct outreach and manage volunteer activities” and “get input from staff, volunteers, youth and families for ideas on reducing idleness and providing more meaningful and structured activities for youth.” (Doc. 36 at 16, citing Probation Plan § 3) The facilities will “[p]ost a daily schedule of activities that is reviewed by leadership, ” who will “ensure [the] program schedule is followed.” (Id.; Doc. 36-2 at 27) Further, the department will perform “[p]eriodic surveys assessing the programming available and desired by youth and staff.” (Doc. 36-2 at 28)

         4. Training and Coordination with KCSOS

         The action plan provides that the Probation Department will “[a]dopt a Safe Crisis Management system focusing on de-escalation, ” and the department chose the Crisis Prevention Institute (CPI) as its de-escalation system. (Doc. 36-2 at 29) All probation staff will receive training in crisis intervention, trauma informed care, adolescent development and behavior, and mental health disabilities. (Doc. 36 at 17, citing Probation Plan § 4) In addition, the Probation Department will ensure that partner agencies, such as KCSOS, “are included in training opportunities to ensure continuity of services and [that a] common language is used.” (Doc. 36-2 at 30) Likewise, Probation staff will “attend trainings provided by KCSOS.” (Doc. 36 at 17, citing Probation Plan § 18)

         The Probation Department and KCSOS will work together to integrate ADA accommodations, Individualized Education Programs (IEPs), Educationally Related Mental Health Services (ERMHS), and other services, by having RAP Unit staff attend the meetings. (Doc. 36-2 at 64) Probation will also consult with KCSOS in “(1) drafting youth handbooks at an appropriate comprehension level for special education students, (2) making accessible sensory tools for special education students, and (3) increasing the number and variety of reading materials available to youth in their housing units.” (Doc. 36 at 17, citing Probation Plan § 18)

         5. Youth, Family, and Staff Input

         The Probation Department will create and provide surveys to youth, families, and staff “to determine strengths, service gaps, and perception… regarding [the] facilities, programs and services.” (Doc. 36-2 at 32; see also Doc. 36 at 17, citing Probation Plan § 5) In particular, the youth and family surveys will address: “[a]ctivities, [behavior management systems], sanctions, facility rules, re-entry process and services[, ] medical and mental health services, staff relations, [and] safety concerns.” (Id.) The surveys will be available “on an on-going basis, ” with survey distribution and collection occurring every six months. (Id.) Survey data will be compiled within one month of each completed survey round, and implementation of appropriate suggestions will occur “as soon as reasonably possible, ” depending upon the “level of accepted suggestions and resource availability.” (Id. at 33)

         6. Complaints and Grievances

         The Probation Department will “[d]evelop a robust review process for staff and youth grievances to ensure facility leadership is aware of and addresses such concerns.” (Doc. 36 at 17, citing Probation Plan § 7) This will involve using Excel spreadsheets to track the “number of youth grievances and categories (types of grievances) consistently across all facilities.” (Doc. 36-2 at 36) Clerical staff at the facilities will report the youth grievance statistics on a monthly basis to Facility Managers, who then will report the statistics during Executive Review Committee Meetings. (Id.)

         7. Pepper Spray and Uses of Force

         “Probation Defendants will incorporate strategies to mitigate the need for use of force, including reducing the use of O.C. spray.” (Doc. 36 at 17, citing Probation Plan § 9) The Plan provides that the “spray should be used only when [there is a] clear and present threat of safety.” (Doc. 36-2 at 41) As part of this effect, the Probation Department will use the CARE team to de-escalate situations, “[p]rovide training to all facility staff to include de-escalation via CPI, ” receive training from Dr. Tasha Arneson on “trauma informed care and mental health, ” and conduct “in-house Reality Based Training.” (Id.; see also Doc. 36 at 17)

         8. Isolation, Seclusion, and Confinement

         The Probation Defendants will also work to “gradually reduce the length of time youth spend in isolation.” (Doc. 36 at 18, citing Probation Plan § 10) The parties report:

Probation Defendants will: (1) eliminate the “program restriction” sanctions that require youth to sit in a chair outside of their rooms; (2) create CARE teams to resolve and de-escalate situations without the use of isolation; (3) limit the amount of time a youth spends in separation following a safety and security incident; (4) change policy and procedures to reduce time youth spend in separation for investigations or pending disciplinary hearings; and (5) consult with youth and staff to develop and implement a more robust behavior management and incentive system.

(Id. citing Probation Plan § 9) The Probation Defendants “[w]ill track number and types of room separations at Juvenile Hall and Crossroads consistently.” (Doc. 36-2 at 58)

         In addition, the defendants will also “[c]arefully look at [the] practice of voluntary room confinement, ” while acknowledging this “is difficult to manage and can lead to youth not engaging in programming.” (Doc. 36-2 at 58) Currently, “Mental Health Consultation Slips are required after 24 hours of self- separation and a running log is started after 4 hours of self-separation.” (Id.) The policy is now being changed “to require Mental Health Consultation Slips after 4 hours of self-separation instead of after 24 hours of separation.” (Id.) Under the amended policy, staff will also be directed “to consider Mental Health Consultation Slips for youth who self- separate less than 4 hours, but who do so frequently.” (Id.)

         9. Special Cases Meetings

         The RAP Units will “include additional specialized staffing, which will allow for increased case planning in terms of both ADA accommodations and Re-entry.” (Doc. 36-2 at 52) These new RAP Units at each facility “will oversee Special Cases Meetings, where the RAP Unit staff and other staff will discuss youth on the Special Cases List, e.g., youth with security, mental health, ADA, education, behavioral, and/or medical issues.” (Doc. 36 at 18, citing Probation Plan § 13)

         10. Individualized Safety and Security Program

         The Probation Department will revise the manual for its Individualized Safety and Security Program (“ISSP”) “to ensure that behavioral health professionals have experience with youth with disabilities, trauma informed care, delinquency variables, and have training in leading a team.” (Doc. 36 at 18, citing Probation Plan § 14) An ADA section will be added to the ISSP manual “to acknowledge youth's disabilities, ” and direct that “youth will not ‘unfairly or disproportionately' be affected due to ADA considerations.” (Doc. 36-2 at 54)

         ISSP plans will clearly identify: “(1) why the plan would not unfairly or disproportionately deprive youth of programs, services or increase his time in custody; (2) how the plan relates to other special education, behavioral, mental health, or medical plans; (3) the youths' progress on the ISSP; (4) why any modifications or revisions are made; and (5) when reviews occur (no less than weekly).” (Doc. 36-2 at 54, citing Probation Plan § 14) Youth and their parents (or guardians) will be informed of the ISSP plan, how to participate in the process, and recourses available if they disagree with the ISSP plan. (Id.)

         11. Suicide Prevention

         The Probation Department will change the language in its suicide prevention policy to: “be more in line with the Massachusetts Youth Screening Instrument (“MAYSI”).” (Doc. 36 at 19, citing Probation Plan § 15) This will enable the department “to identify the potential mental health needs of adolescents involved in the juvenile justice system and … more accurately reflect risk-level identification and awareness.” (Id.)

         12. Re-Entry

         The RAP Unit at each facility “will include staff dedicated to re-entry case planning.” (Doc. 36-2 at 61) The re-entry staff will outline and discuss plans and goals during meetings that occur at least bi-monthly, including the following topics: living environment, education, vocation, medical, and mental health. (Id.) The re-entry staff at Juvenile Hall shall “identify long term youth on the detention side to provide case planning meetings to identify and address service needs, both in and out of custody.” (Id.) Further, ...


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