The Legal Aid Society and NY State Begin Settlement Negotiations on System-Wide Changes in Residential Centers
TUESDAY, AUGUST 24, 2010

The Legal Aid Society and the New York State Office of Children and Family Services have begun settlement negotiations on the federal civil rights class action lawsuit filed late last year charging that children confined in OCFS residential centers are subjected to unconstitutional and excessive force by members of the staff and deprived of legally-required mental health services. The lawsuit was filed by The Legal Aid Society's Juvenile Rights Practice and the law firm of Orrick, Herrington & Sutcliffe LLP.

"Following the State's settlement in separate litigation with the Department of Justice which covers several of the facilities [in the Legal Aid suit], the parties agreed to set the matter over for a short period to conduct confidential discussions to see whether the plaintiffs' concerns about the excessive use of force and the denial of mental health services at all of the facilities can be resolved," Steven Banks, Attorney-in-Chief, told The New York Law Journal. "By nature we are optimists, but if there is going to be a settlement it has to protect children system-wide."

 

The New York Law Journal
State Begins Talks on Overhauling More Youth Prisons
By Jeff Storey
08-24-2010

Weeks after promising the federal government that it would improve conditions at four of its most notorious youth prisons, New York state is discussing a settlement of a separate civil rights lawsuit challenging the treatment of juvenile delinquents that includes seven more facilities.

The Legal Aid Society and the Office for Children and Family Services "have agreed to engage in detailed settlement negotiations" in an attempt to resolve G.B. v. Carrion, 09 Civ. 10582, Legal Aid wrote to Southern District Judge Paul A. Crotty on Aug. 10.

In response, Judge Crotty approved the parties' request for the suspension of pending motions in the case for 45 days. The parties are to report their progress to him on or before Sept. 20.

The judge had requested a status update in light of the state's recent pledge to the U.S. Department of Justice to impose stringent restrictions on the use of force against youths by its employees and to hire additional personnel to enhance mental health and other programs at the Finger Lakes, Lansing and Tryon residential centers and the Tryon Girls' Center (NYLJ, July 16).

The consent decree ended a three-year investigation and averted a federal takeover of the institutions, where the Justice Department had found numerous violations of the civil rights of the youths housed there.

Meanwhile, the Legal Aid Society filed its own lawsuit on Dec. 30 in the Southern District. The lawsuit against OCFS and its commissioner, Gladys Carrion, names 13 youths in OCFS custody and seeks to represent a class of all of those committed to "limited secure" residential centers, OCFS "reception centers" and the "non-secure" Lansing center—a larger group of institutions than investigated by the Justice Department.

Although youths under 16 "have been placed for rehabilitative purposes in OCFS custody" by Family Court judges, Legal Aid's amended complaint alleges that they "are subjected to a pattern and practice of unconstitutional and excessive force by employees of OCFS and deprived of legally required mental health services while in OCFS care and custody."

The lawsuit contends that the plaintiffs had been "subjected to brutal and unlawful use of force" and that Ms. Carrion had showed "deliberate indifference" to their mental health needs.

The action refers to the Justice Department investigation but notes that a gubernatorial task force "concluded that the deficiencies identified by the government are system-wide in OCFS residential facilities" (NYLJ, Dec. 15, 2009).

An OCFS spokesman said yesterday that the agency did not comment on settlement negotiations.

But Ms. Carrion acknowledged in an interview after the Justice Department settlement that the problems noted by investigators were not confined to the four targeted centers. And she said that the agreement would have a "ripple effect" on the other centers.

"Following the State's settlement in separate litigation with the Department of Justice which covers several of the facilities [in the Legal Aid suit], the parties agreed to set the matter over for a short period to conduct confidential discussions to see whether the plaintiffs' concerns about the excessive use of force and the denial of mental health services at all of the facilities can be resolved," Legal Aid Society attorney in chief Steven Banks said in a statement.

Asked about the chances of a settlement, Mr. Banks said, "By nature we are optimists, but if there is going to be a settlement it has to protect children system-wide."

OCFS housed 667 youths yesterday, including 277 in seven limited secure facilities and 19 at Lansing. There were seven youths in temporary reception centers on Friday. The four facilities covered by the Justice Department consent decree housed only 89 youths.

Legal Aid has moved for class certification and injunctive relief, which have now been put on hold. It also wants damages for the name plaintiffs.

Also pending is a state motion for summary judgment on the ground that the OCFS residents have bypassed the requirement of the Prison Litigation Reform Act that they exhaust their administrative remedies.

Plaintiffs' attorneys have responded that the residents' handbook distributed by OCFS gives three options for complaining without stating which was mandatory or even preferred. Thus, administrative remedies were not "available" to the residents, they say.

In addition to Legal Aid, the plaintiffs are represented by Orrick, Herrington & Sutcliffe.

Assistant Attorneys General Vincent Long and Garvin V. Smith are representing the state.