US v. State of Conn.

Decision Date19 June 1996
Docket NumberNo. 3:86CV-00252 (EBB).,3:86CV-00252 (EBB).
Citation931 F. Supp. 974
PartiesUNITED STATES of America, Plaintiff, v. STATE OF CONNECTICUT, et al., Defendants.
CourtU.S. District Court — District of Connecticut

Mark Masling, Deval Patrick, Iris Goldschmidt, U.S. Dept. of Justice, Special Litigation Section, Civil Rights Division, Washington, D.C., for U.S.

Linsley J. Barbato, James P. Welsh, Attorney General's Office Education/Mental Retardation Dept., Hartford, CT, for defendants State of Conn., William A. O'Neill, Dept. of Mental Retardation, Brian Lensink, Robert Griffith.

RULING ON PLAINTIFF'S APPLICATION FOR AN ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CIVIL CONTEMPT

ELLEN B. BURNS, Senior District Judge.

The Plaintiff United States of America has moved the court to declare the Defendant State of Connecticut officials in contempt of the Consent Decree dated December 22, 1986, and the Court Orders dated April 24, 1990 and December 9, 1991, respectively. For the reasons discussed below, the Plaintiff's motion is GRANTED.

I. BACKGROUND

On May 1, 1984, the United States Department of Justice (the "DOJ") notified Connecticut officials of the DOJ's intention to investigate the living conditions at Southbury Training School ("STS"),1 in accordance with the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq.2 On September 11, 1985, following its investigation, the Plaintiff brought an action against the State of Connecticut, its governor, the commissioner of the Department of Mental Retardation ("DMR"), and the director of STS, pursuant to CRIPA. In lieu of litigation, the United States and various Connecticut officials3 entered into a Consent Decree which this court so ordered on December 22, 1986.

The Consent Decree required the Defendants to submit an Implementation Plan (the "Plan") addressing the procedure they would use to implement the Consent Decree's mandates. This court approved the Plan on July 22, 1988. Subsequent to entering into the Consent Decree, the parties agreed to two additional Court Orders on April 24, 1990 (the "1990 Court Order") and December 9, 1991 (the "1991 Court Order"), respectively.4

In November, 1993, attorneys for the Civil Rights Division of the DOJ, along with various experts, examined STS's conditions. The DOJ's experts included: Dr. Renee C. Wachtel, M.D., Director of Developmental Pediatrics, and Associate Professor of Pediatrics at the University of Maryland School of Medicine; Dr. Alan E. Harchik, Ph.D.; and Ms. Susan Harryman, Director of the Physical Therapy Department at the Kennedy Krieger Institute, and Instructor in the Department of Pediatrics at the John Hopkins University School of Medicine. All of the experts' findings indicated that STS was not complying with the Remedial Orders. (See Pl.Exs. 4, 8, and 22.)

On June 20, 1994, the Plaintiff sent the experts' findings to the Defendants, together with a letter alleging that the Defendants were not in compliance with the Remedial Orders. The Plaintiff also included a list of actions that the Defendants should take to remedy the alleged violations.

In response, the Defendants retained a group of experts to examine the Plaintiff's experts' findings, and to make independent findings and suggestions. The Defendants' experts included: Dr. Fred Volkmar, M.D., Professor of Child Psychology at the Yale University Child Study Center; Dr. Henry Schneiderman, M.D., F.A.C.P.; Dr. James E.C. Walker, M.D., Professor of Medicine, Emeritus, at the University of Connecticut; Ms. Rhea Sanford, R.N., M.S.N., Clinical Nurse Specialist at the John Dempsey Hospital of the University of Connecticut Health Center; and Ms. Karen Green McGowan, R.N., Clinical Nurse Consultant. After the Defendants' experts concluded their examination, counsel for the respective parties met to discuss a possible resolution of the Plaintiff's contempt allegations. The Plaintiff proposed two principle measures to remedy the Defendants' alleged contempt: appointment of a Special Master to increase the level of monitoring of conditions at STS, and a significant reduction of STS's population within three years. Despite extensive discussions, the parties failed to reach an agreement.

Subsequently, the Plaintiff filed the instant application for an order to show cause why the Defendants should not be held in contempt. This court held four days of hearings on the Plaintiff's application, during which the Plaintiff presented expert testimony regarding the Defendants' alleged noncompliance; and the Defendants presented testimony from several of its employees.

II. DISCUSSION
A. LEGAL STANDARD

Courts have the inherent power to hold a party in civil contempt "to enforce compliance with an order of the court, or to compensate for losses or damages." Powell v. Ward, 643 F.2d 924, 931 (2d Cir.1981) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499-500, 93 L.Ed. 599 (1949)). Also, 18 U.S.C. § 401 gives federal courts the "power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."

A finding of contempt is appropriate when: (1) the court order's provisions are clear and unambiguous; (2) the moving party establishes noncompliance by clear and convincing evidence; and (3) the defendant has not exercised reasonable diligence in attempting to comply. International Longshoremen's Assn. v. Philadelphia Marine Trade Assn., 389 U.S. 64, 75-76, 88 S.Ct. 201, 207-08, 19 L.Ed.2d 236 (1967); EEOC v. Local 638, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). Furthermore, because sanctions for civil contempt are remedial in nature, a court may find a party in contempt, irrespective of whether that party intended to comply with the court's order. McComb v. Jacksonville Paper Co., 336 U.S. at 191, 69 S.Ct. at 499-500; Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 885 F.2d 1, 5 (2d Cir.1989) (court declares that "sanctions for civil contempt can be imposed without a finding of wilfulness.") (citations omitted).

B. FINDINGS OF NONCOMPLIANCE

At the hearing, and in its papers, the Plaintiff alleged that the Defendants were violating the Remedial Orders in three areas: Psychological services, medical services, and physical therapy services. The court will address each of these areas in turn.

1. Psychological Services

Psychological services are critical to the residents' development at STS. The Remedial Orders set forth in detail numerous requirements regarding STS's psychological services. Among other things, STS is required to provide:

Training programs professionally designed to reduce or eliminate unreasonable risks to personal safety or unreasonable use of restraints and developed by qualified professionals ...5 Consent Decree § I(1). As shown in its compliance reports, STS has developed an overall plan of services ("OPS") for its residents, thereby complying with the letter of the Remedial Orders. However, STS fails to satisfy the spirit of the Remedial Orders, as its implementation of the overall plan of services has not yielded the required results.

For example, STS has a written behavior plan for most of its residents, which, in part, requires psychology staff members to conduct behavior assessments to determine the possible conditions that both lead to and maintain challenging problem behaviors. Yet, STS's records show that assessments are not being performed regularly, and when they are performed, they rarely generate useful information or actions. At the hearing, and in his report, Dr. Alan Harchik explained that many of the behavior assessments he reviewed were several months old, and identical rewrites of previously conducted analyses. (Pl.Ex. 22 at 6.) Further, he noted that of the twenty-one cases he reviewed, there was little relation between the analyses and the treatment procedures. More specifically, he described several cases in which the patients were either not showing any progress or were regressing, but no further action was taken. (Id.)

STS's behavior plans also required staff members to implement an "ignore and redirect" procedure when confronted with maladaptive behavior. Yet, the plans did not specify whether the behavior or the resident should be ignored, what the resident should be redirected to do, or what the staff should do if the behavior continued but restraint was not required. Consequently, "staff members always paid attention to residents when they exhibited problem behavior by making statements to the resident about the problem behavior ... but failed to redirect them to something more appropriate or to engage in an alternative behavior or activity." (Id.)

A September, 1994 report on the death of Stanley B. shows clearly STS's delinquency in implementing treatment procedures to address problems discovered during behavior assessments. Stanley B. was one of STS's approximately twenty smoking residents. STS's staff was well aware that he was "a `sloppy' and at times careless smoker who sometimes burned holes in his clothing."6 However, Stanley B.'s 1993 OPS did not provide any instruction to the staff regarding his smoking habits, or his need for supervision while smoking. (Pl.Ex. 12, Final Investigation Report of Thomas Harmon at 9-10 hereinafter "Harmon Report".)

In 1989, STS staff developed an OPS for Stanley B. which established a goal to teach him to extinguish his pipe in a safe manner.7 To achieve that goal, he had to complete a series of smoking-related tasks, independently, during eight consecutive training sessions. (Harmon Report at 11.) However, only two quarterly reports regarding this goal were found, neither of which indicated that Stanley B. was progressing. Moreover, although a later report indicated a slight decrease in his performance, STS staff did not take any...

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