Amicus Curiae Brief — Countyof Riverside v. McLaughlin

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No. 89-1817

In the Supreme Cou

OF THE

United States

OCTOBER TERM 1990

COUNTY OF RIVERSIDE and Coils Byrp,

SHERIFF OF RIVERSIDE COUNTY,

Petitioners,

VS.

DONALD LEE MCLAUGHLIN, et al..

Respondents.

On Writ Of Certiorari To The United

States Court of Appeals For the Ninth Circuit

BRIEF OF AMICUS CURIAE IN

SUPPORT OF RESPONDENTS ON

BEHALF OF THE YOUTH LAW CENTER

CLAUDIA WRIGHT

MARK I. SOLER

LOREN M. WaARBOYS

YouTtu Law CENTER

114 Sansome Street, Suite 950

San Francisco, CA 94104

Telephone: (415) 543-3379

Attorneys for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHIORITIES .. i. cc eee cceees

INTEREST OF AMICUS CURIAE............

PETE Dace ewecvocceccacecoscess

The principle of standing

established in Gerstein is

essential to remedy constitutional

violations in institutional cases. .........

CRETE bo cence nreveseescencesovéeees

il iii

TABLE OF AUTHORITIES

PAGE Schall v. Martin, 467 U.S. 253 (1984) ............ 4

CASES | Sosna v. Iowa, 419 U.S. 393 (1974) ............. 2

Avery v. Powell, 695 F. Supp. 632 (D.N.H. 1988).... 3 Tucker v. Phyfer, 819 F.2d 1030

es pace decccees 3

Ball v. Wagers, 795 F.2d 579 (6th Cir. 1986)....... 3

United States Parole Commission v.

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 3 Geraghty, 445 U.S. 388 (1980) ...... ee 29

Cruz v. Collazo, 84 F.R.D. 307 (D.P.R. 1979) ...... 3 White v. Matthews, 559 F.2d 852 (2d Cir. 1977).... 3

D.B. v. Tewksbury, 445 F. Supp. 896 Wilkerson v. Bowen, 828 F.2d 117 (3rd Cir. 1987)... 3

Se Ga studoekeusceséaceunnal 7

Gary H. v. Hegstrom, 831 F.2d 1430 STATUTES

PU CED bcbabeéakvewekecadhen va 7

EEE 1

Gerstein v. Pugh, 420 U.S. 103 (1975)........... 1,2

Juvenile Justice and Delinquency

In re Thornburgh, 869 F.2d 1503 (D.C. Cir. 1989).. 3 Prevention Act, 42 U.S.C. § 5600, et seq. ... 7

Jones v. Diamond, 519 F.2d 1090 (Sth Cir. 1975) ... 3

OTHER AUTHORITIES

Milonas v. Williams, 691 F.2d 931

(10th Cir. 1982), cert. Federal Rules of Civil Procedure, Rule 23......... 2

denied, 460 U.S. 1069 (1983) ............. 5

Reed v. Bowen, 849 F.2d 1307 (10th Cir. 1988).... 3

Robinson v. City of Chicago,

868 F.2d 959 (7th Cir. 1989)............. 3

1

INTEREST OF THE AMICUS CURIAE

The Youth Law Center is a non-profit public

interest law organization which is dedicated to the pro-

tection of the rights of young people. The attorneys and

staff of the Youth Law Center engage in a variety of

advocacy activities, including litigation over violations of

constitutional and statutory rights of children. The

litigation docket of the Center includes a large number

of cases that challenge the conditions and procedures of

institutional confinement. The majority of these cases

are class action cases conducted pursuant to 42 U.S.C. §

1983.

The Youth Law Center represents youth in civil

rights litigation in jails, juvenile detention centers, juve-

nile training schools, and adult prisons. It is the rule in

these cases, rather than the exception, that named plain-

tiffs and class representatives who are confined at the

commencement of the litigation are released or trans-

ferred, or otherwise undergo some change in legal sta-

tus, during the pendency of the litigation. Classes of

juvenile plaintiffs are generally even more transitory

than classes of incarcerated aduits because periods of

detention or other confinement tend to be relatively

brief. In our cases we often rely on the principles artic-

ulated by this Court in Gerstein v. Pugh, 420 U.S. 103,

110 n. 11 (1975), when issues of standing or mootness

are raised. Gerstein provides an exception to the gener-

al rule in cases involving transitory claims for cases

"capable of repetition, yet evading review.” This Amicus

brief in support of the respondent will address the im-

2

portance of that exception in the context of institutional

litigation.

ARGUMENT

The principle of standing established in Gerstein

is essential to remedy constitutional violations in

institutional cases.

The courts have long recognized that cases may

arise in which constitutional violations have occurred,

but are of such short duration that individual plaintiffs

may lose their standing to pursue injunctive relief. The

class action is the vehicle by which injunctive relief may

be pursued in such cases. Sosna v, Iowa, 419 U.S. 393,

399 (1974); Gerstein v, Pugh, 420 U.S. 103, 110 n. 11

(1975); United States Parole Commission v. Geraghty,

445 U.S. 388, 398 (1980).

Lawyers at the Youth Law Center, as well as our

colleagues at the American Civil Liberties Union Na-

tional Prison Project, the Mental Health Law Project,

the National Center for Youth Law, and others, includ-

ing independent litigators such as the counsel of record

fur the piaintiffs here, comply with the procedural re-

quirements described in the above cases: when injunc-

tive relief is sought, named plaintiffs and plaintiff repre-

sentatives are incarcerated in the institution in question,

and are suffering from the alleged harms, at the com-

mencement of litigation. A request for class certifica-

tion is included in the complaint. This practice meets

the standing requirement of Sosna and Gerstein and

3

assures the adequacy of representation of the class _

required by Rule 23, Fed. R. Civ. P. As a general mat-

ter, named plaintiffs and plaintiff representatives must

be members of the class at the time of class certifica-

tion. However, Sosna and Gerstein provide for an

exception in the event of transitory claims for which no

individual will retain standing long enough for the court

to rule on class certification.' The plaintiffs in this case

have clearly met these requirements.

The situation is different for constitutional claims

by individual plaintiffs. In City of Los Angeles v. Lyons,

461 U.S. 95, 105 (1983), the Court made clear that in

order for an individual plaintiff to retain standing to

pursue injunctive relief, he must make a showing of a

"real and immediate threat” of a future constitutional

violation, id, at 105, regardless of any violations that

might already have occurred. In that case, since Lyons

could not make such a showing, his claim for injunctive

relief was dismissed. In a class action, the standing

requirement is satisfied because members of the class

continue to face the “real and immediate threat” of

' These principles are widely accepted among the federal

courts. See White v. Matthews, 559 F.2d 852, 857 (2d Cir. 1977);

Wilkerson v. Bowen, 828 F.2d 117, 121 (3rd Cir. 1987); Jones v.

Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975); Ball v. Wagers, 795

F.2d 579, 581 (6th Cir. 1986); Robinson v. City of Chicago, 868 F.2d

959, 968 (7th Cir. 1989); Reed v. Bowen, 849 F.2d 1307, 1310 (10th

Cir. 1988); In re Thornburgh, 869 F.2d 1503, 1509 n. 7 (D.C. Cir.

1989); Cruz v. Collazo, 84 F.R.D. 307, 316 (D.P.R. 1979); Avery v.

Powell, 695 F. Supp. 632, 642 n. 13 (D.N.H. 1988); But cf. Tucker v.

Phyfer, 819 F.2d 1030 (11th Cir. 1987) (proposed named piaintitf

aged out of class before class certification was requested).

4

future constitutional violation. The Gerstein exception

for class actions was not addressed in Lyons.

The gist of the argument of the defendants is that

the principle of Lyons should be extended to apply to

class action cases. Simply put, their argument is that for

any plaintiff who has suffered a constitutional violation

to be eligible for injunctive relief, regardless of whether

he is a member or representative of a class suffering

similar violations, a showing must be made that the

violation at issue will happen, to him, again. Defen-

dants argue that it should not matter that the violation

will occur to other members of the class, even if the

unconstitutional conduct is the result of clearly stated

policy and is certain to reoccur. The suggestion of the

defendants is a novel one, and is unsupported by prece-

dent. Perhaps that is why the issue was so quickly dis-

posed of by the Ninth Circuit.”

Such an extension of the principles of Lyons

would have a profound negative effect upon the ability

of classes of incarcerated or institutionalized plaintiffs to

obtain relief from illegal conduct which results in viola-

tions of their constitutional rights. This possibility is

cause for concern in situations such as that presently at

issue, i.e., the systematic denial of prompt probable

cause determinations before incarceration, but becomes

even more disturbing upon consideration of other types

of violations that frequently occur in institutions, such as

2 It is also clear that if this argument were accepted, this Court

would not have had jurisdiction to decide Gerstein, as well as Schall

v. Martin, 467 U.S. 253 (1984), which was decided after Lyons.

5

extended isolation, lack of proper sanitation, inadequate

fire safety, and improper use of mechanical restraints.

Life-threatening practices continue to occur in institu-

tions, and often the only effective means of protecting

plaintiffs is the federal court injunction. The Youth Law

Center has had substantial experience in such situations.

For example, in Milonas v, Williams, 691 F.2d

931 (10th Cir. 1982), cert, denied, 460 U.S. 1069 (1983),

a class of juvenile plaintiffs challenged conditions at the

Provo Canyon School in Utah. The oppressive and

dangerous conditions included the practice of grasping

children’s hair and pulling backward, called the "hair

dance”; locking children up in tiny isolation cells for

long periods of time; and subjecting children to poly-

graph tests as part of their "therapy". The damages

portion of the case was tried before a jury, and the court

later entered a permanent injunction prohibiting the

challenged practices. The Court »f Appeals for the

Tenth Circuit specifically considered the issue of stand-

ing. Id, at 936-38. On the date the lawsuit was filed,

the District Court had ordered that the named plaintiffs

be removed from the facility and placed elsewhere

because of the threat of retaliation against them. The

class had not been certified at that time. The defen-

dants challenged the standing of the named plaintiffs.

The Court of Appeals applied the rule of Gersteis: in

affirming the District Court decision that the named

plaintiffs met the standing requirements, because they

were in the facility at the time the complaint was filed,

and that the class was properly certified.

In Bobby M. v, Martinez, Civ. Case No. TCA 83-

6

7003 MMP (N.D. Fla. January 5, 1983) (Complaint), a

class of over 1200 children challenged the conditions of

their confinement in three Florida training schools. A

preliminary injunction was issued that prohibited the

practice of “hogtying” which consisted of binding hands

and feet with metal handcuffs and strapping the con-

necting chains of the cuffs together behind the child’s

back. It was discovered that children as young as ten

years old were subjected to this practice, and were al-

lowed to remain chained in this fashion for several

hours or days at a time. Even after the state Inspector

General condemned the practice in a report to the

Legislature, the practice persisted until it was enjoined

by the federal court. Id. (Order on Preliminary Injunc-

tion, July 14, 1983.) The District Court issued another

injunction that prohibited the extensive use of isolation

of children in strip cells. Id, (Order on Use of Security

Units and Lockup, July 5, 1984.) Children ten, eleven

and twelve years of age were often held in isolation for

periods of more than a month, without access to books,

television, or regular contact with other people. Be-

cause of these injunctions, mechanical restraints and

isolation are no longer used in these institutions.

During the investigation of the Bobby M. case,

plaintiffs’ counsel discovered a group of teenage boys

with chicken pox who, because they were thought to be

infectious, were housed in a storage closet that had no

ventilation, no toilet or bath facilities, and no sheets for

their plastic covered mattresses. A consent decree was

entered in the case which required the state to provide

adequate medical care. Id, (Consent Decree, May 8,

1987.)

Danny O. v. Bowman, Civil No. 84-1272 (D.

Idaho July 12, 1985) (Judgment) involved children held

at the State Youth Services Center in St. Anthony, Ida-

ho. Children were punished in this institution by being

placed in strait jackets, attached to hooks, and hoisted

to hang upside down from the ceiling. They were also

forced to stand against walls and sit on chairs for excru-

ciatingly long periods of time, often for days. The case

was tried before the federal court and these practices

were found to violate the constitutional rights of the

plaintiffs and were prohibited.

In Gary H, v, Hegstrom, 831 F.2d 1430, 1433-37

(9th Cir. 1987) (Ferguson, J., concurring), children were

placed in filthy isolation cells for extended periods of

time. In Robert K. v, Bell, Civil Action No. 83-287-0

(D.S.C. April 30, 1984) (Consent Decree), the court

restricted the practice of placing mentally disturbed

children naked in four point restraints and forcibly

injecting them with psychotropic drugs. These are just a

few examples of the types of practices for which plain-

tiffs turn to the courts for protection. Actions for dam-

ages after the harm has been done, as suggested by the

defendants, are not sufficient to protect children from

these abusive violations.

Similar cases arise which involve children who

are held in adult jails. Even though this practice has

been roundly condemned, and federal statutes provide

incentives to its prohibition by the states, see Juvenile

Justice and Delinquency Prevention Act, 42 U.S.C. §

5600, et seq. (1974), it continues. In these instances

8

standing is a critical issue because confinement, as in

Gerstein, is usually brief. As the court noted in the

leading case of D,B. v, Tewksbury, 445 F. Supp. 896, 898

(D.C. Or. 1982),? "Children do not stay in CCCF for

long periods of time... 70 percent of the children who

were confined in CCCF in 1981 were released within 24

hours.” The case proceeded to trial as a class action

and resulted in a ruling that incarceration of any child in

that facility pending adjudication by the juvenile court

was a violation of the Fourteenth Amendment. The

conditions in this jail were truly appalling:

Children held in CCCF are not issued sheets,

mattress covers or pillows. They sleep on mat-

tresses covered with urethane and they are given

a wool blanket. Occasionally children are not

given mattresses. Those children placed in isola-

tion cells sleep on cement floors.

No child lodged in CCCF may have underwear.

Toilet facilities at CCCF ar not screened from

view... [f]Jemale children using the toilet or show-

er are visible to male corrections officers. Male

children using the toilet are visible to matrons.

Children in CCCF are sometimes placed in either

of two isolation cells. These are 8’x 8’ window-

less concrete block rooms, barren of all furniture

3 This case was not litigated by the Youth Law Center.

9

and furnishings. Sometimes it is very cold in the

isolation cells. Near the center of the isolation

cell there is a sewer hole which is the only facility

for urination and defecation.... When the mecha-

nism for the sewer is flushed by a corrections

staff officer, water and sewage gushes onto the

cell floor. 445 F. Supp. at 898-99.

Clearly individual damage actions were not the

answer for the hundreds of children who had been held

in this Oregon jail; injunctive relief was the only sensible

legal method for preventing further harm. It made

sense for the children and it also made sense for the

court. The remedial injunction is the only effective

means of ending such abuses. Damages are retrospec-

tive and restorative and are traditional actions at law;

injunctions are prospective and protective and are tradi-

tional actions in equity. 11 Wright and Miller, Federal

Practice and Procedure § 2941 (1973). Their purposes

are not interchangeable. Rule 23(b) Fed. R. Civ. P.

specifically anticipates injunctive claims in class actions.

These cases have been important in protecting

children from unconstitutional practices. Injunctive

relief would have been impossible in virtually all of

them if each member of the class had been required to

show that the challenged practices were certain to hap-

pen to each of them, personally, in the future, as would

be required under Lyons.

In their brief at p. 23, defendants ask "What

interest do the named plaintiffs have in vigorously liti-

gating the question of whether individuals who may be

arrested in the future will receive prompt probable

cause determinations which, according to the allegations

of their complaint, they did not (and indeed now can-

10

not) receive?” (emphasis in original) The answer is that

their interest is in protecting the unnamed members of

their class, whom they are charged with representing,

from the harm that they have suffered. Geraghty, supra,

445 US. at 398. This is the essence of the class action,

and the underlying rationale for all the principles and

procedures which have developed around such litigation.

CONCLUSION

In our federal system, courts are often faced with

the delicate balance of protecting plaintiffs’ constitution-

al rights while also protecting the important principles of

equity, comity, and federalism. But the defendants here

are asking the Court to go too far. The argument they

press would make it virtually impossible for institutional-

ized plaintiffs to pursue injunctive relief to protect them-

selves from policies and practices that result in viola-

tions of their constitutional rights. For these reasons,

the Court should leave long precedent undisturbed, and

should reject the argument of the defendants on the

issue of standing.

Respectfully submitted,

CLAUDIA WRIGHT

MARK I. SOLER

LOREN M. WARBOYS

YOUTH LAW CENTER

114 Sansome Street, Suite 950

San Francisco, CA 94104

Attorneys for Amici Curiae