J.H. v. Hinds County, Mississippi

Filing 20

ORDER granting 7 Motion for Preliminary Injunction; granting 17 Motion for Declaratory Judgment as set out in the order. The parties are instructed to draft a preliminary injunction order consistent with this Order. If the parties cannot agree, then they should submit a proposed order that identifies areas of agreement and impasse. Defendant is hereby enjoined from complying with all state court orders that interfere with, contradict, or conflict with this Order and are hereby enjoined from enforcement of same. Such orders include, but are not limited to, the Youth Court Order. Signed by District Judge Daniel P. Jordan III on July 25, 2011. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
J.H., BY AND THROUGH HIS NEXT FRIEND
TERINA GRAY, ON BEHALF OF HIMSELF
AND ALL PERSONS SIMILARLY SITUATED, ET AL.
VS.

PLAINTIFFS

CIVIL ACTION NO.: 3:11-cv-327-DPJ-FKB

HINDS COUNTY, MISSISSIPPI

DEFENDANT

ORDER
This matter is before the Court on Plaintiff Disability Rights Mississippi’s (“DRMS”)
Motion for Preliminary Injunction [7], and the Motion for Declaratory Judgment [17] filed by
Defendant Hinds County, Mississippi. Having fully considered the Motions, oral argument, and
supplemental submissions, the Court finds that both Motions should be granted.
I.

Facts/Procedural History
This civil action was brought under 42 U.S.C. § 1983 on behalf of a putative class of

imprisoned children at the Henley-Young Juvenile Justice Center (“Henley-Young”). According
to the Amended Complaint, Defendant Hinds County, Mississippi, has violated the residents’
Constitutional rights in various ways, including denial of mental health treatment. Relevant to
the pending motion, DRMS contends that Hinds County has blocked the residents’ rights to an
effective and meaningful Protection and Advocacy System (“P & A”).
A trio of federal statutes provide protection for individuals with mental illnesses
collectively referred to as the “P & A statutes.” See Protection and Advocacy for Individuals
with Mental Illness Act (“PAIMI”), as amended, 42 U.S.C. §§ 10801–10851 (2006),1 the

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Enacted in 1986 as the “Protection and Advocacy for Mentally Ill Individuals Act of
1986,” Pub. L. No. 99-319, 100 Stat. 478 (May 23, 1986), the Act was commonly referred to by

Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), as amended
42 U.S.C. §§ 15001–15115 (2006), and the Protection and Advocacy of Individual Rights Act
(“PAIR”), as amended 29 U.S.C. § 794e (2006) (collectively, the “P & A statutes”). The P & A
statutes provide funding for the state to establish independent organizations . . . that monitor and
protect the rights of the mentally ill.” Advocacy Ctr. v. Stadler, 128 F. Supp. 2d 358, 360 (M.D.
La. 1991). DRMS is the federally mandated and funded P & A system in Mississippi and is
authorized under certain circumstances to access Henley-Young’s facilities, residents and
records.
According to DRMS’s Motion, Henley-Young violated the P & A statutes by blocking
DRMS’s access. At the hearing, the parties announced substantial agreement on the terms of a
preliminary injunction allowing reasonable access. But the parties disputed whether DRMS and
its agents should be allowed to (1) interview residents not known to have mental illnesses as part
of DRMS’s monitoring functions; and (2) interview those same residents to determine whether
they suffer a mental illness that might trigger protection under the P & A statutes.
After the hearing, Hinds County filed an Emergency Motion for Declaratory Judgment
[17] informing the Court that Hinds County Youth Court Judge William Skinner had issued a
sua sponte Order Regarding Access on July 1, 2011. See Def.’s Mot. [17] Ex. A. The order
limited DRMS’s access to the facility. Fearing conflict with federal mandates, Hinds Count
the acronym “PAIMI.” See, e.g., Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1263
(10th Cir. 2003). In 1991, amendments to the Act substituted “individuals with mental illness”
for “mentally ill individuals” wherever it appeared in the Act. See Pub. L. No. 102-173, § 10(2),
105 Stat. 1217, 1219 (Nov. 27, 1991). The short title, however, remained unchanged. In 2000,
Congress amended the short title so that the Act is now known as the “Protection and Advocacy
for Individuals with Mental Illness Act” or “PAIMI.” See Pub. L. No. 106-310, 114 Stat. 1101,
1193-94 (Oct. 17, 2000). Conn. Office of Prot. & Advocacy for Persons With Disabilities v.
Hartford Bd. of Educ., 464 F.3d 229, 233 n.1 (2d Cir. 2006).
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seeks declaratory judgment to determine whether Judge Skinner’s order is enforceable. DRMS
predictably argues that it is not.
II.

DMRS’s Motion
A.

Standard

To obtain a preliminary injunction, DRMS carries the burden of establishing four
elements:
(1) a substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury if the injunction is not issued, (3) that the threatened injury if
the injunction is denied outweighs any harm that will result if the injunction is
granted, and (4) that the grant of an injunction will not disserve the public
interest.
Janvey v. Alguire, 628 F.3d 164, 174 (5th Cir. 2010) (citation omitted). Granting a preliminary
injunction is an “extraordinary remedy” to be granted only if the party seeking it has “clearly
carried the burden of persuasion” on all four elements. PCI Transp., Inc. v. Fort Worth & W.
R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).
In the present case, the parties skip discussion of these standards regarding the disputed
issues, and Hinds County concedes that DRMS met its burden with respect to the agreed upon
portions of its Motion. As for the two disputed issues, a host of federal authority holds that
irreparable harm exists when a P & A system is unable to fulfill its mandate under federal law,
that the threatened injury of denying the injunction outweighs the harm caused by the injunction,
and that granting the injunction would not disserve the public interest. See, e.g., Mich. Prot. &
Advocacy Serv., Inc. v. Evans, No. 09-12224, 2010 WL 3906259, at *5 (E.D. Mich. Sept. 30,
2010) (citing Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of
Educ., 355 F. Supp. 2d 649, 653 (D. Conn. 2005); Ohio Legal Rights Serv. v. Buckeye Ranch,

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Inc., 365 F. Supp. 2d 877 (S.D. Ohio 2005); Wis. Coal. for Advocacy, Inc. v. Czaplewski, 131 F.
Supp. 2d 1039 (E.D. Wis. 2001); Prot. & Advocacy For Persons With Disabilities v. Armstrong,
266 F. Supp. 2d 303 (D. Conn. 2003). This Court agrees—the P & A statutes reflect a strong
public interest in protecting those with mental illnesses, and limiting a P & A service from fully
exercising its authority places residents with mental illnesses at increased risk of harm. Thus,
the issue is whether DRMS has established a substantial likelihood of success on the merits of
the two disputed issues.2
B.

Analysis
1.

Access to Non-Disabled Residents for Purposes of Monitoring.

Hinds County concedes that Henley-Young is subject to the P & A statutes and that
DRMS has certain monitoring rights. It contends, however, that the monitoring privileges stop
short of allowing interviews with non-disabled residents. Hinds County’s only argument on this
front is to observe that 45 C.F.R. § 1386.22(f) allows “access to non-disabled residents when
necessary to conduct a ‘full investigation of an incident of neglect.’” Def.’s Resp. [12] at 12.
The County concludes from this that “DRMS has the right to interview a non-disabled resident
only if DRMS reasonably believes that the non-disabled person has ‘knowledge of the incident
under investigation.’” Id. Hinds County offers no other authority for its position, and the Court
is aware of none.
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At the hearing, Hinds County suggested that it should be the final arbiter of disability. It
is not apparent that the County still maintains that position, but such a ruling would defeat the
goals of the statute—discussed below—and place the proverbial fox in charge of the henhouse.
C.f., Miss. Prot. & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054, 1059 (5th Cir. 1991) (affirming
summary judgment in favor of P & A service and noting that “state cannot satisfy the
requirements of the DDA by establishing a protection and advocacy system which has this
authority in theory, but then taking action which prevents the system from exercising that
authority”) (citation omitted).
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The County’s interpretation is too narrow. While § 1386.22(f) addresses investigations,
the dispute is whether DRMS may access non-disabled residents pursuant to its duty to monitor.
On that issue, § 1386.22 (g) states, “Under 42 U.S.C. § 15043(a)(2)(H), the system and all of its
authorized agents shall have unaccompanied access to all residents of a facility at reasonable
times, which at a minimum shall include normal working hours and visiting hours, for the
purpose of: . . . (2) Monitoring compliance with respect to the rights and safety of service
recipients.” (Emphasis added). The Court finds that DRMS’s right to monitor compliance
includes reasonable access to non-disabled residents. Accord Penn. Prot. & Advocacy, Inc. v.
Roger-Greaves Sch. For Blind, No. Civ. A. 98-3995, 1999 WL 179797 (E.D. Pa. Mar. 25, 1999).
2.

Access to Residents not Known to Have Mental Illness to Determine
Disability

DRMS represented during the hearing that it intended to employ mental health
professionals to evaluate Henley-Young residents to determine whether they are subject to the P
& A statutes. The County takes issue with the proposal arguing that the P & A statutes do “not
give DRMS unlimited access to all individuals in a facility for the purpose of determining
whether the person has a mental, developmental or other disability.” Def.’s Resp. [12] at 3.
Hinds County builds its case on two primary foundations. First, it offers a construction
of the statutory and regulatory scheme by contrasting “child find” or “seek and serve”
requirements of the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. §§
1400–1487 (2000 & Supp. IV). Def.’s Resp. [12] at 3. Second, The County distinguishes
DRMS’s legal authority without offering any of its own.3

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The parties discuss various orders issued within this district, but there is no indication
that those judges faced the same legal question now presented.
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a.

Statutory Construction

Starting with the construction argument, the County posits that the language of the P & A
statutes and the implementing regulations do not allow these interviews. As noted, however, the
regulations expressly allow access to non-disabled residents to fulfil a P & A services’s
obligations, including the obligation to monitor the facility. 45 C.F.R. § 1386.22(g); see
Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (discussing
interpretation of regulations). The right to investigate claims, such as those alleged in the
Amended Complaint, and the right to monitor, would seemingly encompass the right to
determine whether certain individuals are covered.
But even if ambiguity exists, the County’s construction is not persuasive. The County
argues that because the IDEA includes “child seek” or “seek and serve” provisions, the absence
of similar language in the P & A statutes means that Congress did not intend to allow such
access. In essence, Hinds County suggests that the IDEA and the P & A statutes should be read
in pari materia. Under that constructive tool, “statutes addressing the same subject matter
generally should be read as if they were one law.” Wachovia Bank v. Schmidt, 546 U.S. 303,
305 (2006) (citations and quotations omitted). But this rule of construction does not apply
because the IDEA and the P & A statutes deal with disability issues in materially different
contexts. See Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641, 648 (1990)
(rejecting suggestion that statutes dealing with same issues in different fields should be read in
pari materia). Ultimately, the Court must discern congressional intent, and the P & A statutes
and regulations reflect “Congress’ intent to have State facilities and records accessible to the
local P & A in order to investigate suspected abuse or neglect of the mentally ill.” Armstrong,

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266 F. Supp. 2d at 315. The Court finds that reasonable access is allowed to determine whether
individuals are covered.
b.

Case Law

Although the County offers distinctions, a number of courts have rejected the argument
that a P & A service must establish disability before access is granted. The most relevant
example is Michigan Protection & Advocacy Service, Inc. v. Miller, where a P & A service
sought injunctive relief lifting restrictions on its right to access the facility. 849 F. Supp. 1202,
1207 (W.D. Mich. 1994). There, the P & A service “enjoy[ed] only limited access: it [could]
speak with a minor in a DSS facility if the minor [was] a MPAS client or if there ha[d] been a
complaint to MPAS regarding the minor.” Id. The court made the following observations and
holdings:
In response to significant evidence from plaintiff indicating that DSS facilities do
in fact house mentally ill persons, defendant maintains that because the youth in
the system have not recently been determined to be mentally ill or emotionally
impaired by a mental health professional, they do not fall within the ambit of
PAIMI. The Court notes that MPAS has offered substantial evidence indicating
that many DSS facilities have in the past housed minors who suffer mental illness,
as determined by mental health professionals. Recent evidence proffered by
MPAS also suggests that some current DSS residents may be mentally ill. DSS’s
present policy of denying MPAS full access prevents the advocacy organization
from bringing in their own mental health professionals to ascertain whether any
DSS residents do in fact suffer from mental illness. Such conduct by DSS defeats
the very purpose of PAIMI and the DD Act to provide effective protection and
advocacy services to mentally ill and developmentally disabled individuals.
Id. at 1207. Miller is not an outlier case and has been followed by other courts in various
contexts under the P & A statutes. See Disability Rights Wash. v. Penrith Farms, No.
CV-09-024-JLQ, 2009 WL 777737, at *3 (E.D. Wash. Mar. 20, 2009); Conn. Office of Prot. &
Advocacy for Persons with Disabilities, 355 F. Supp. 2d at 655, (“Courts have found that

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protection and advocacy systems need not ‘make a threshold showing of mental illness’ in order
to exercise their authority under PAIMI”); Armstrong, 266 F. Supp. 2d at 314; Ky. Prot. &
Advocacy Div. v. Hall, No. Civ.A.3:01CV-538-H, 2001 WL 34792531, at *1 (W.D. Ky. Sept.
24, 2001) (citing Miller).
The County attempts to distinguish Miller, noting that the Miller plaintiff presented
evidence indicating that current and former residents suffered from mental illness. Def.’s Resp.
[12] at 8. This argument fails for two reasons. First, “conclusive evidence that a particular
person or persons qualifies as an individual with mental illness or developmentally disabled for
purposes of protection” is not required. See Conn. Office of Prot. & Advocacy for Persons with
Disabilities, 355 F. Supp. 2d at 655. Instead, several courts “have held that a showing of
‘substantial evidence’ must suffice in order for such systems to fulfill their statutory mandate.”
Id. (citation omitted). In this regard, “[e]vidence that a facility has previously housed
individuals who are mentally ill, as well as evidence that some current residents may be mentally
ill[,] is sufficient under PAIMI to merit access by [protection and advocacy systems].” Id.
(citations and quotations omitted). In this case, DRMS presented evidence supporting a probable
cause finding that Henley-Young continues to house a significant percentage of youths with
mental illness. See Angela Robertson & Jonelle Husain, Prevalence of Mental Illness and
Substance Abuse Disorders Among Incarcerated Juvenile Offenders 2, 20, 27 (2001); see also
Armstrong, 266 F. Supp. 2d at 314 (holding that studies regarding inmate populations were
sufficient).
Second, to the extent the evidence is lacking, the County presents a “Catch 22” by
claiming DRMS lacks sufficient evidence of actual cases of mental illness but denying DRMS

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access to residents for the purpose of determining whether other cases exist. The position is
inconsistent with the purpose of the P & A statutes. See Armstrong, 266 F. Supp. 2d at 315
(noting that defendant’s failure to provide access hampered efforts to collect additional evidence)
(citing Miller, 849 F. Supp. at 1207 (finding that “[the defendant’s] present policy of denying [P
& A] full access prevents the advocacy organization from bringing in their own mental health
professionals to ascertain whether any DSS residents do in fact suffer from mental illness . . .
[and] defeats the very purpose of PAIMI . . . to provide effective protection and advocacy
services to mentally ill . . . individuals”); Ga. Advocacy Office v. Borison, 520 S.E. 2d 701, 704
(Ga. Ct. App. 1999) (“[W]ithout access to the records, [P & A] could not specifically show
which, if any study participant[s] . . . were mentally ill.”)). “[D]emanding a conclusive,
individualized showing of . . . mental illness before permitting [access] would reserve to
Defendant a gatekeeping function contrary to the specific terms and general purpose of the
Acts.” Id. (citation and quotations omitted).4 DRMS has shown a substantial likelihood of
success on the merits justifying a preliminary injunction in its favor.5
III.

Hinds County’s Motion for Declaratory Judgment
On June 17, 2011, the parties appeared before the undersigned to argue DRMS’s Motion

for Preliminary Injunction. At the hearing, the parties announced agreement as to the majority of
4

The County also notes, and correctly so, that the Court in Miller referred the case to two
special masters to work out the details of the access. This portion of Miller is not well-explored,
but it is consistent with the fact that access must be “reasonable.” And there are a host of issues
related to what constitutes reasonable access.
5

It is worth noting that DRMS seeks preliminary injunction and that this Order is not,
therefore, the final word. As the case now stands, the Court finds that the disputed access must
be permitted. Based on the arguments that have been presented, the Court finds a substantial
likelihood of success on the merits of such a claim, but the issue must be finally decided with
respect to the requested permanent injunction.
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DRMS’s concerns, and the Court asked for briefing on the issues addressed in this Order. At
that time, the County generally granted access to DRMS. On July 1, 2011, Youth Court Judge
William Skinner entered a sua sponte Order “in light of Disability Rights Mississippi v. Hinds
County, Mississippi; In the United States District Court for the Southern District of
Mississippi—Jackson Division; Civil Action Number 3:11-cv-327-DPJ-FKB” (“Youth Court
Order”). Def.’s Mot. [17] Ex. A at 1. The County seeks declaratory judgment indicating
whether it must comply with the Youth Court Order.
The Youth Court Order states that any contact with residents as a result of this civil
action must comply with a new “protocol.” It then substantially restricts access to the residents
in a way that would nullify the relief sought in DRMS’s Motion for Preliminary Injunction. In
particular, the order states that no access may occur until Assistant Youth Court Defender
Brandon I. Dorsey is notified:
to provide Dorsey the opportunity to be involved in such measures, and for any other
purpose(s) that he may deem appropriate, and that said juvenile(s) shall not be
interviewed, interrogated, or otherwise questioned regarding any subject matter, whether
pertaining to [this case] and all other matters, without his prior expressed consent, and
that subsequent to any such interview, interrogation or otherwise, that said public
defender shall be provided with a summary of any and all such interview, interrogation,
or otherwise.
Id.
This Court has authority to issue “all writs necessary or appropriate in aid of [its]
respective jurisdiction[] and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a)
(2006). The Anti-Injunction Act is inapplicable because this Order is in “aid of [this Court’s]
jurisdiction” and “otherwise protect[s] or effectuate[s] its judgments.” Id. § 2283; see In re
Baldwin-United Corp., 770 F.2d 328, 336 (2nd Cir. 1985) (holding that “[e]ven before a federal

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judgment is reached . . . the preservation of the federal court’s jurisdiction or authority over an
ongoing matter may justify an injunction against actions in state court. Such ‘federal injunctive
relief may be necessary to prevent a state court from so interfering with a federal court’s
consideration or disposition of a case as to seriously impair the federal court’s flexibility and
authority to decide that case.’”) (quoting In re Corrugated Container Antitrust Litig., 659 F.2d
1332, 1334 (5th Cir. 1981)).
The Youth Court Order expressly references this civil action, for which this Court
exercises jurisdiction, and adjudicates issues raised in DRMS’s Motion—many of which have
been granted as unopposed and are otherwise meritorious. Allowing the Youth Court Order to
stand substantially interferes with this Court’s consideration and disposition of the case and
essentially nullifies this Order. Enforcement of the Youth Court Order is properly enjoined.
Moreover, the Youth Court Order violates the P & A statutes in at least the following
ways. First, DRMS is entitled to “reasonable unaccompanied access to residents.” 42 C.F.R. §
51.42(b) (2011); 45 C.F.R. § 1386.22(f) (2011). The County may not require attendance by a
third party. Second:
[DRMS] must: (1) . . . keep confidential all records and information, including
information contained in any automated electronic database pertaining to: (i) Clients to
the same extent as is required under Federal or State laws for a provider of mental health
services; (ii) Individuals who have been provided general information or technical
assistance on a particular matter; (iii) Identity of individuals who report incidents of
abuse or neglect or furnish information that forms the basis for a determination that
probable cause exists; and (iv) Names of individuals who are residents and provide
information for the record.
42 C.F.R. § 51.45(a)(1) (2011). The County may not require DRMS to identify those residents
providing DRMS with information, nor is the County entitled to a summary of the information
obtained. Third, the Fifth Circuit has observed that similar “pre-screening and post-interview
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counseling could only create a chilling effect of gigantic proportions.” Cotten, 929 F.2d at 1057
(5th Cir. 1991). For these reasons, the Court grants the County’s Motion for Declaratory
Judgment and enjoins compliance with the Youth Court Order.
IT IS, THEREFORE, ORDERED that the parties are instructed to draft a preliminary
injunction order consistent with this Order. If the parties cannot agree, then they should submit a
proposed order that identifies areas of agreement and impasse.
IT IS FURTHER ORDERED THAT Defendant is hereby enjoined from complying with
all state court orders that interfere with, contradict, or conflict with this Order and are hereby
enjoined from enforcement of same. Such orders include, but are not limited to, the Youth Court
Order.
SO ORDERED AND ADJUDGED this the 25th day of July, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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