Green v. Johnson, Civ. A. No. 79-1358-F.

• Decision Date: 08 May 1981
• Docket Number: Civ. A. No. 79-1358-F.
• Citation: 513 F. Supp. 965
• Parties: John GREEN, individually and on behalf of all those similarly situated, Plaintiffs, v. Charles JOHNSON et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

513 F. Supp. 965

John GREEN, individually and on behalf of all those similarly situated, Plaintiffs, v. Charles JOHNSON et al., Defendants.

Civ. A. No. 79-1358-F.

United States District Court, D. Massachusetts.

May 8, 1981.

COPYRIGHT MATERIAL OMITTED

Victoria Pulos, Western Mass. Legal Services, Northampton, Mass., Ira Horowitz, Susan Bennett, Western Mass. Legal Services, Springfield, Mass., for plaintiffs.

W. Michael Ryan, Ryan & Ryan, Northampton, Mass., for John Boyle.

J. David Keaney, Egan, Flanagan & Egan, Springfield, Mass., for Michael J. Ashe.

Terry Jean Seligmann, Asst. Atty. Gen., Government Bureau, Boston, Mass., for State defendants.

Geoffrey A. Wilson, Trudel, Bartlett, Barry & Filler, Greenfield, Mass., for Donald M. McQuade.

James A. Bowes, North Adams, Mass., Charles M. Maguire, Donovan & O'Connor, Adams, Mass., for Carmen Massimiano.

MEMORANDUM, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

FREEDMAN, District Judge.

This action came to be heard on March 3, 1981 regarding the motions of the plaintiff John Green for certification of a class pursuant to F.R.Civ.P. 23, and for a preliminary injunction pursuant to F.R.Civ.P. 65; also heard were the motions of defendants Ashe and Massimiano to dismiss the case as to them pursuant to F.R.Civ.P. 12(b)(6). Following the hearing, defendant John Boyle also moved to dismiss, and this motion is also considered herein.

In prior proceedings I heard the state defendants' (as defined herein) motions to dismiss and by Memorandum and Order dated February 24, 1981 denied those motions.

Based upon my review of the evidence presented by the parties through answers to interrogatories, affidavits and testimony at the hearing, and after careful consideration of the arguments of the parties at the hearing and in their memoranda, and with due regard for the proposed orders submitted by plaintiff and defendants, I am entering the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

1. Plaintiff John Green filed this action in 1979 while a twenty-one year old inmate serving a sentence at the Franklin County House of Correction. He brought suit seeking declaratory and injunctive relief for himself and a class of persons he identified in ¶ 17 of the complaint as follows: present and future inmates of the Franklin, Hampshire, Hampden, and Berkshire County Houses of Correction who are under the age of twenty-two, have not received a high school diploma, and are eligible for a free and appropriate special education.

2. Plaintiff has received a General Equivalency Diploma and has been released from custody since the initiation of this action. Intervenors on plaintiff's side have likewise either been released from custody, received the services which they sought, or are no longer entitled to those services.

3. Plaintiff and the intervenors on plaintiff's side have been represented throughout this litigation by attorneys from Western Massachusetts Legal Services.

4. The defendants in this action fall into two discrete groups. The first group is composed of various officials of the Commonwealth of Massachusetts involved in the planning, funding, and delivery of educational services in the Commonwealth, who are identified collectively herein as the "state defendants." The second group is composed of the sheriffs of the Houses of Correction of Franklin, Hampshire, Hampden, and Berkshire Counties.

5. In his complaint, plaintiff alleged that because of the policies and practices adopted by the state defendants with regard to the delivery of special education services to inmates incarcerated at the four County Houses of Correction named above, he and the class he sought to represent were being denied special educational services to which they were entitled under federal and state law.

6. However, in the interim between filing of the suit and the hearing on March 3, 1981, funding for the delivery of special educational services at the Hampden and Berkshire County Houses of Correction has been arranged under one-year grants. These funding arrangements are discussed in more detail, infra.

A. The Existence of a Class

7. The plaintiff has submitted the affidavit of Dr. Milton Budoff, a psychologist specializing in the area of special needs of handicapped children and their special educational needs. Based on this affidavit, I find as follows:

A. A variety of studies indicate the high prevalence of serious academic difficulties among delinquent children.

B. According to a national survey of handicapped children eligible for special education services incarcerated in juvenile correctional institutions:

1. Compared to the national average incidence of handicapped children of 12.3% some type of handicapping condition is found to exist in 42.4% of delinquent children committed to correctional institutions.

2. The handicapping conditions with the highest incidence rates in correctional facilities were:

a) emotional disturbance (16.23%);

b) learning disabilities (10.59%); and

c) educable mental retardation (7.69%).

C. Experts have estimated the extent of mental retardation within youth correctional institutions at between 3% and 9.5%.

D. Of a study group of 477 delinquent children, 60% were found to be two or more years retarded in their expected reading levels.

E. An expert has found that 50% to 80% of delinquents have some form of learning disability while learning disabled children form only 12% of total children.

F. A screening test of over 100 juvenile delinquents revealed that 81% were learning disabled.

G. An expert has found that an unexpectedly high proportion of delinquents in youth service detention centers in Massachusetts have neurological symptoms associated with learning disabilities.

8. Based on these findings, I further find that among the inmate populations of the County Houses of Correction of Franklin, Hampshire, Hampden and Berkshire Counties, a significant number of inmates are apt to have learning disabilities and other educational handicaps.

9. Regarding the number of inmates at the County Houses of Correction of Franklin, Hampshire, Hampden and Berkshire Counties who are under age twenty-two and without high school diplomas, I make the following findings based on answers to interrogatories, exhibits attached to a stipulation reached by the parties, exhibits introduced by plaintiff, and the testimony of Paul Cohen, Special Education Coordinator at the Franklin County House of Correction, and James McCauley, Correctional Services Educational Coordinator for the Hampshire County House of Correction:

A. Statistics compiled by the Statewide Priority Populations Program indicate that approximately one quarter of the inmate population in Massachusetts is under twenty-two years of age and that over 70% are without a high school diploma.

B. Admissions data from 1976 to 1980 at the Berkshire County House of Correction shows that 56% of the sentenced inmates are between the ages of seventeen and twenty-two and that 70% do not have a high school diploma.

C. Statistics gathered by the Hampden County House of Correction show that it confines over 600 sentenced inmates in a year, that at any given point in time one-half is under the age of twenty-two and that 75% of those under twenty-two do not have high school diplomas and are eligible for special education services.

D. Monthly reports compiled by Paul Cohen show that the number of inmates at the Franklin County House of Correction under twenty-two years of age who were without a high school diploma was 16 in January 1980; 12 in February 1980; 12 in March 1980; and 12 in April 1980.

E. Monthly reports compiled by Debbie Burzdak, former Special Education Coordinator for the Hampshire County House of Correction show that of the 23 inmates under twenty-two in the facility in October 1979, 18 did not have a high school diploma; of the 25 inmates under twenty-two in November 1979, 19 did not have a diploma; of the 26 inmates under twenty-two in December 1979, 19 did not have a diploma; of the 28 inmates under twenty-two in January 1980, 19 did not have a diploma; of the 30 inmates under twenty-two in February 1980, 17 did not have a diploma; of the 28 inmates under twenty-two in March 1980, 19 were without diplomas; and of the 27 inmates in April 1980, 15 had no diplomas.

F. The Hampshire County House of Correction has an annual inmate population of 250 to 300; an average daily count of 90; and in October 1979, 18 inmates under twenty-two without a high school diploma.

G. The Franklin County House of Correction has an average daily count of 40.02, and in October 1979, 6 inmates under twenty-two without a high school diploma.

H. The Berkshire County House of Correction has an annual inmate population of 300; an average daily count of 65.2 inmates in 1977 to 1978, and 69.8 in 1978 to 1979.

I. The Hampden County House of Correction has an annual inmate population of 600 and as of February 1980, there were 60 inmates under twenty-two without a high school diploma.

J. A substantial number of inmates between ages seventeen and twenty-two who are without high school diplomas, and who have a high probability of special education needs are presently and at any given point in time incarcerated at the correctional facilities in Hampshire, Hampden, Berkshire and Franklin Counties.

K. The inmate populations at the Hampden, Hampshire, Berkshire and Franklin County Houses of Correction are constantly revolving.

10. Regarding the inmate population at the Franklin County House of Correction, I find as follows:

A. Paul Cohen is the Special Education Coordinator at the Franklin County House of Correction. He screens all inmates at the facility who are under twenty-two years of age and are without a high school diploma. Since January 1980, he has interviewed 31 inmates in this group who expressed an interest in special education.

B. Cohen has referred 15 of the 31 inmates for a special education evaluation, of which

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