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Case 8:12-cv-00568-SDM-MAP Document 89

Filed 07/19/12 Page 1 of 23 PageID 1010

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CHANDA HUGHES, as guardian and on behalf of J.B., a minor, et al., ) ) ) Plaintiffs, ) ) v. ) ) GRADY JUDD, Polk County Sheriff, in ) his official capacity; and CORIZON ) HEALTH, INC., ) ) Defendants. ) ___________________________________ )

Case No. 8:12-cv-00568-SDM-MAP

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT CORIZON’S MOTION TO DISMISS Plaintiffs, by and through undersigned counsel, respectfully submit this memorandum in opposition to Defendant Corizon’s Motion to Dismiss (DE 77), filed June 22, 2012. Defendant seeks dismissal of Count 4 of the Second Amended Complaint as to Corizon Health, Inc., alleging deliberate indifference to the mental health needs of children with mental illness who are detained at the Polk County Jail. For the reasons stated below, Defendant Corizon’s motion should be denied in its entirety. I. PROCEDURAL BACKGROUND Plaintiff-minors K.J., B.G., D.M., J.B., J.D., F.J.P., J.P., and K.G. bring this action to remedy dangerous, unconstitutional conditions of confinement for children detained at the Polk County Jail. This action was initially filed by three children on March 15, 2012, naming as Defendants Sheriff Grady Judd, Major Michael Allen, and Captain Kimberly Marcum, in their official capacities. (DE 1.)

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Case 8:12-cv-00568-SDM-MAP Document 89

Filed 07/19/12 Page 2 of 23 PageID 1011

On March 21, 2012, Plaintiffs filed a Verified Amended Complaint by seven children on behalf of themselves and all others similarly situated. The Verified Amended Complaint asserted three claims against Defendants on behalf a class comprised of all children held at the jail, whether under the jurisdiction of the juvenile or adult court, and a subclass comprised of those children under the jurisdiction of the juvenile court only. Count 1 alleged the failure to provide rehabilitative services to the subclass. Count 2 alleged dangerously violent conditions of confinement as to the class. Count 3 alleged the punitive use of suicide watch as to the class. (DE 3.) Plaintiffs moved for a preliminary injunction on Count 2 of the Verified Amended Complaint. (DE 4.)

Plaintiffs also moved for class certification, which Defendant opposed. (DE 5, 26, 44.) The Court referred the motions to the Magistrate Judge. (DE 32.) The Magistrate Judge has set an evidentiary hearing on the motion for preliminary injunction. (DE 83.) On April 11, 2012, the then-named Defendants moved to dismiss the action in its entirety. (DE 25.) On May 4, 2012, the Court granted the motion to the extent

Defendants sought to dismiss Major Allen and Captain Marcum as redundant of Defendant Polk County Sheriff, and denied the motion in all other respects. (DE 43.) On May 17, 2012, the Court granted Plaintiffs leave to file a Second Amended Complaint asserting a fourth claim (deliberate indifference to the serious mental health needs of children at the jail) by new named Plaintiffs K.G. and A.H., on behalf of themselves and all others similarly situated, and adding a new Defendant, Corizon Health

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the date on which Plaintiffs moved for leave to file a supplemental complaint asserting the additional claim.3d 1334. Supp. filed the motion to dismiss Count 4 of the Second Amended Complaint as to that Defendant.1 (DE 51.) On June 4.D. only. to state a claim to relief that is plausible on its face. 2012. In deciding a motion to dismiss. Defendant Polk County Sheriff answered the Second Amended Complaint. (DE 34. 1333 (11th Cir.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 3 of 23 PageID 1012 Inc. see also St. 1554 (S. 1401 (M. 1337 (11th Cir. STANDARD Motions to dismiss for failure to state a claim are “viewed with disfavor and rarely granted. Inc.) II. 2012. Prison Health Servs.3d 828. 1996) (citations omitted). See Rehberg v. (Id.. 663 F. 2012. 703 (11th Cir.2d 700. 611 F. 835 n..) The Court referred to the Magistrate Judge Plaintiffs’ motion to certify a subclass comprising all children at the jail who suffer from mental illness. Co. 2010) (citation omitted). 912 F.) On June 22. accepted as true. 1549.1 (11th Cir. Fla. Under Rule 12(b)(6).” Vernon v. filed a notice of voluntary dismissal as to himself. Allstate Ins.. Inc. 995 F. 2011) (citations and internal quotation marks omitted). the Court must accept as true all facts alleged and draw all inferences therefrom in the light most favorable to the non-moving party..3d 1329. (DE 65. (DE 77. Med.” Farabee v.Supp.. The complaint’s factual 1 The Court granted this relief nunc pro tunc to April 23.) 3 .” Stillwell v. 285 F. Pinellas County. 1998) (citing Ancata v. Rider. 2012.D. 1985)). 1398. George v.H. a motion to dismiss must be denied where the complaint “contain[s] sufficient factual matter. Plaintiff A. Fla. Defendant Corizon Health. 769 F. “The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. 2002) (instructing that a court must draw all “reasonable inferences” in favor of the plaintiff). (DE 60. Mgmt. Inc. Ass’n of Margate. Paulk.) On June 13.

(Id. Inc.2d 1206.2d 324. ¶¶ 75-90. did not move to dismiss Count 4.G. 544. City of Prichard. (Id. 1962). 550 U.) She has a history of suicidal ideation.) K. has been detained at the Polk County Jail three times since October 2011. harmful conditions of confinement and subjecting them to unnecessary pain and suffering.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 4 of 23 PageID 1013 allegations must “raise a right to relief above the speculative level. 3 Plaintiff K. the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30.2 III. ¶¶ 75-90. 555 (2007) (citation omitted).S. 661 F.) 4 . Harper. (SAC ¶ 128. Whether the plaintiff might ultimately prevail on the merits is a matter properly determined on the basis of proof—which means on a summary judgment motion or at trial by the judge or jury—and not merely on the face of the pleadings. Twombly. Arthur H. acts with deliberate indifference toward the mental health needs of children detained at the Polk County Jail in violation of the United States Constitution.) Since the age of 11.) She alleges that the medical provider at the jail. v. PLAINTIFFS’ CLAIM AGAINST DEFENDANT CORIZON HEALTH Plaintiff K. Defendant Corizon Health. Richland Co.” Bell Atl. is a sixteen year-old girl who suffers from serious mental illness. mood disorder.1981) (en banc). and oppositional defiance disorder.G. however.) The Sheriff. 302 F. v. Corp. including by subjecting those children to punitive. 326 (5th Cir. (See DE 60. K. 146..) 2 In Bonner v.G. (Id. has also alleged that Defendant Polk County Sheriff acts with deliberate indifference toward the mental health needs detained at the jail. has been diagnosed with borderline personality traits. 1209 (11th Cir. ¶ 130. ¶ 128. attention deficit hyperactivity disorder. post-traumatic stress disorder. (Id.3 (Id.G. 1981.

likely including about 35 who suffer from mental illness.) Mental illness is similarly prevalent among children tried as adults. (Id. medication is frequently dispensed in a manner that is contraindicated. ¶ 82. the Polk County Jail holds approximately 70 to 80 children. allowing medication to run out. (Id. staff are aware that children are particularly vulnerable to harm from inappropriate variations in psychiatric medication. staff routinely delay or ignore the known medical needs of children with serious mental illness. Inc.. and contraindicated provision of medication. (Id. ¶ 80. failing to provide mechanisms to promptly make up for missed doses. Instead. (Id. ¶¶ 32. (Id. ¶ 77. (Id. including by staff failing to provide the appropriate dosage. (Id. ¶ 78.) As children’s brains are still developing. (Id. fails to provide these children with constitutionally adequate care.) When provided. ¶ 75. putting those children at unnecessary risk of substantial harm. ¶ 81.) At any one time. inappropriate dosage. and crushing or dissolving medications contrary to the product label.) Defendant Corizon’s constitutionally deficient response to children with mental illness places children detained at the Polk County Jail at substantial risk of harm.) Staff routinely subject children with mental health needs to delays in receiving needed assessments.) The jail’s medical provider Corizon Health. 76. withdrawal. however. medication and treatment.) 5 . (Id.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 5 of 23 PageID 1014 National research shows that as many as 50 percent or more of children detained in the juvenile justice system suffer from a mental disorder.) Children with mental illness are also particularly at risk of harm in a jail in light of their limited ability to advocate for themselves. ¶ 79. particularly given the increased risk of suicide by children in adult jails.

) Corizon was again made aware of K.G. For example. including self-harm.) Although K.’s mental illness since about October 2011. 2012. when K. (Id. 2012. (Id. was first incarcerated at the Polk County Jail and reported to medical staff that she required mental health medication. reported to medical staff that she required four psychiatric medications for her illnesses.G. delayed in providing her medication. and provided medication in a contraindicated manner.G. ¶ 133.G. ¶ 131. extreme drowsiness. (Id.G. during her second incarceration at the Polk County Jail. despite this knowledge. again reported that she had not received her medication. the medication was crushed. K. began receiving medication on or about March 31.) When medical staff came to remove her from suicide watch on or about March 30.) Still.G. including agitation.) Several other children have similarly reported constitutionally deficient responses to their mental health needs by Defendant Corizon. K. K. when K.G. D. 2012.D. suicidal ideation. (Id. a 14 year old girl 6 . ¶ 132. consistent treatment.G. despite medical contraindications warning against crushing the medication. again reported her mental health needs to Defendant Corizon’s staff but did not receive needed medications. Defendant Corizon failed to provide K. and acting out against others. (Id.G. 2012.) As a result of Corizon’s actions and omissions. and erratic behavior.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 6 of 23 PageID 1015 Defendant Corizon has been aware of K. was placed on suicide watch or close observation.G. was subjected to unnecessary pain and suffering.) On or about March 29.’s mental illness in January 2012. (Id. (Id.) On or about March 28. however she was never informed of the reasons and did not receive counseling or treatment while on suicide watch.. (Id. facing an unreasonable risk of substantial harm. K.

at 3. children with mental illness who are detained at the Polk County Jail are at unreasonable risk of self-harm.) IV. (Id. ¶ 88. despite advising staff that he needed them.) B.G.4 (Mot. despite a known history of serious mental illness.) As a result of dangerously inadequate mental health treatment. Inc.) J. 2012.) As shown below. only.D. has only irregularly been provided with needed medication on several occasions.) C. (Id. at 4. ¶ 85. (Id. and unnecessary pain and suffering from untreated mental illness. on June 13.) These children are also at unnecessary risk of further deterioration of their psychiatric condition while detained at the jail. acting out. (Id. ¶ 84. (Id. for Plaintiff K. 4 Plaintiffs do not dispute Defendant’s contention that the action should be dismissed as to Plaintiff A. (Mot. a 16-year-old boy incarcerated at the Polk County Jail.G.) 7 . has not received needed mental health treatment despite advising staff of his serious mental health needs.H.. and establish the propriety of injunctive relief. (Id. ¶ 87. a 14 year old boy incarcerated at the Polk County Jail who suffers from known mental illness. did not receive any mental health medication from the time he entered the jail in February 2012 until late April 2012.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 7 of 23 PageID 1016 who has been incarcerated at the Polk County Jail five times. suicidal ideation. has not received all necessary medications to treat his condition. each of these arguments fails..2. meet the class certification requirements. ¶ 86.’s purported failure to exhaust. despite reporting to staff that he was prescribed the medication before entering the jail.N. who. state a claim. a 17 year old boy incarcerated at the Polk County Jail.. ARGUMENT Defendant argues that Count 4 should be dismissed as to Corizon Health. filed a Notice of Voluntary Dismissal as to himself.

particularly in the absence of any evidence to the contrary. PLAINTIFF K. HAS ADEQUATELY PLEAD EXHAUSTION OF ADMINISTRATIVE REMEDIES Defendant first argues that Count 4 should be dismissed as to Corizon for failing to demonstrate “how” Plaintiff K. In fact. at *4 (M. 921 (2007)).) Defendant has identified no legal authority for the proposition that a plaintiff is required to meet some heightened pleading standard when it comes to pleading exhaustion. 2008 WL 899251. Rich. Plaintiff K. That is not the case here. Henderson v.5 At the motion to dismiss stage.G. Defendant has not submitted any evidence to show that Plaintiff K. 31. and therefore has not 8 . Bettus.G. Defendant has only presented argument. 549 U. 199. however. however..Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 8 of 23 PageID 1017 A.G. Bryant v.) As Defendant acknowledges. 1373-74 (11th Cir.’s allegation that she exhausted all available administrative remedies. 530 F.G. 207-CV97-FLM 34 DNF.3d 1368. in fact failed to exhaust administrative remedies. A court may dismiss a complaint for failure to exhaust only if it is “clear from the face of the complaint and attachments thereto” that the plaintiff has failed to exhaust administrative remedies. Defendant has not submitted any evidence to rebut Plaintiff K. Moreover. 2008) (citing Jones v.D. Plaintiffs specifically allege in the Second Amended Complaint that they exhausted all available administrative remedies prior to filing. Mar. 2008).G.S.G. at 6-7. (Mot. there is no heightened pleading standard as to exhaustion. Corizon recently deposed Plaintiff K. (SAC ¶ 142. In this case. Bock. Fla. who testified as to how she exhausted her administrative remedies. 6 The Eleventh Circuit has held that a district court may resolve the issue of exhaustion at the motion to dismiss stage where a factual dispute exists. exhausted administrative remedies.’s allegation that she properly exhausted all available administrative remedies must be accepted as true.6 5 Indeed.

at 7-20. The proper vehicle to challenge the propriety of a class is in response to a motion for class certification. when ‘one or more class members has exhausted his administrative remedies with respect to each claim raised by the class.’”). See Chandler v. 2004) (“a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA’s administrative exhaustion requirement through ‘vicarious exhaustion.e.) On May 17. 1287 (11th Cir.’ i. On April 23. (Mot. Plaintiffs respectfully request the opportunity to submit evidence on the issue. was personally served on Defendant Corizon Health Inc. DEFENDANT’S ATTEMPT TO SEEK DISMISSAL BASED ON CLASS CERTIFICATION ISSUES IS AN IMPROPER ATTEMPT TO CURE DEFENDANT’S UNEXPLAINED FAILURE TO RESPOND TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Defendant Corizon devotes more than half of its argument in the motion to dismiss to attacking the question of class certification. (Mot. the Court referred the motion to the Magistrate Judge. must also exhaust administrative remedies before she can pursue this claim on behalf of the class therefore fails. 379 F.3d 1278. however. (DE 35. 9 . be dismissed on this basis.) The motion. Defendant’s argument that those similarly situated to K. Should the Court find to the contrary.. along with the summons and Second Amended Complaint. 2012. (DE 51. Crosby. on May 22.) A complaint cannot. Plaintiffs filed such a motion with regard to the subclass identified in the Second Amended Complaint.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 9 of 23 PageID 1018 Eleventh Circuit case law plainly holds that exhaustion by a class representative satisfies the PLRA’s exhaustion requirement as to the entire class.G. which was electronically served on Defendant Polk County Sheriff on April 23.) B. at 7. 2012. created a factual dispute for the Court to resolve. 2012. 2012.

744 (5th Cir.3d 734.3d 1300.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 10 of 23 PageID 1019 Local Rule 3.D. Am. 1309 (11th Cir. 1996) for the proposition that “[g]oing beyond the pleadings is necessary.P. 6(d). and the district court will need to go beyond the pleadings and permit some 7 The ordinary additional 3 days would not apply in this case. failed to file any response to Plaintiffs’ motion to certify the subclass of mentally ill children. (See Mot. 2008) (district court’s ruling on class certification was premature at the motion to dismiss stage). as a court must understand the claims.R. Tobacco Co.01(b). it is typically not appropriate for a court to deny class certification at the motion to dismiss stage.Fla. 3. Foremost Ins. 84 F. defenses. however. 12. Defendant cannot now come to this Court via a motion to dismiss seeking to cure that failure. Fed. where service was accomplished personally. 10 . 17. L.R. before Plaintiffs have had an opportunity to engage in discovery to establish their claims. “[T]he parties’ pleadings alone are often not sufficient to establish whether class certification is proper.7 Corizon. Moreover.) In Mills. 18 (urging court to deny class certification)). relevant facts.01(b) provides that “[e]ach party opposing a motion or application shall file within fourteen (14) days after service of the motion or application a response that includes a memorandum of legal authority in opposition to the request…” M.Civ. at 8 (emphasis added).” (Mot.. Defendant Corizon’s response would therefore have been d ue by June 5. Co. the Eleventh Circuit recognized that deciding class certification based on pleadings alone is difficult because more information is generally required. 2012. and applicable substantive law in order to make a meaningful determination of the certification issues. rather than electronically or by mail. at 9. See Mills v. 511 F.. Defendant concedes as much by citing Castano v.

1553 (11th Cir. v. 623 (M.D. commonality. typicality and adequacy of representation.R. Under Rule 23(a). Barlow v. 451 (M. Fla. Am. has satisfied the Rule 23 requirements. a plaintiff seeking to represent a class must establish four elements often referred to as numerosity. Riley. 619.. the court must determine that “at least one member of each subclass among the injured with respect to the claims made by members of that subclass.D. 1986) (stating general rule that fewer than 20 class members is usually inadequate and 11 .) The proposed subclass is therefore sufficiently numerous to satisfy this requirement under Eleventh Circuit law. Numerosity The Second Amended Complaint alleges that on any particular day.” Susan J. 76.” Mills. with its primarily pretrial population changing continuously.) As the subclass includes present and future members. Cox v. 1980). Ala. Cast Iron Pipe Co.G.. Even if it were proper to consider the issue of class certification on a motion to dismiss. Marion County Hosp. 511 F. 254 F.D.2d 1546.R.3d at 1309 (citations omitted). 88 F. Plaintiffs requested such a hearing in their Motion for Certification of Subclass (DE 35). ¶ 30. A. Dist. 439. and have served discovery requests on Defendant Corizon for this purpose. (Id.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 11 of 23 PageID 1020 discovery and/or an evidentiary hearing to determine whether a class may be certified. Plaintiff K. the Polk County Jail houses approximately 35 children who suffer from mental illness. The plaintiff must also show that the proposed subclass meets at least one subsection of Federal Rule of Civil Procedure 23(b)(2). 75. (SAC ¶¶ 32. 2008).D. 784 F. In order to certify a subclass under Rule 23(c)(5). its size is in fact even larger.

the Court merely held that the district court did not abuse its discretion in denying class certification on several bases. at 10. as a matter of law. As Defendant’s motion shows (Mot. the plaintiffs were unable to make a sufficient factual showing of numerosity. has not factually disputed the estimated size of the subclass identified by Plaintiffs. Defendant Corizon. that a class of 34 necessarily satisfies numerosity such that the district court’s finding on that element required reversal. U. Indeed. Notably. 2009). Corizon provides no legal authority to support its claim that denial of class certification prior to discovery in this case would be appropriate. 614 F. Defendant’s reliance on Vega v.S.R. Elec. is misplaced. W. in Barlow. 930 (11th Cir.3d at 1263. Pipe & Foundry Co. While a plaintiff must at least provide an allegation regarding the size of the class. K. at 625. has done just that. in Vega the Court reversed the district court’s grant of class certification only when.2d 925.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 12 of 23 PageID 1021 that greater than 40 is usually adequate). Defendant’s citation to Crawford v. “a plaintiff need not show the precise number of members in the class. Co. 614 F. following discovery (deposition testimony). at 10). (Mot. 1305 (5th Cir. and that it could not be said.” 564 F. 564 F. for the proposition that a “class of 34 does not satisfy [the] numerosity requirement as a matter of law” is not quite right.” 88 F..3d 1256 (11th Cir.. which is solely in possession of the very data at issue. Inc.D. 12 . the court held that “[c]onditional acceptance of [an] estimate as proof of class size is further supported by the fact that discovery is not complete..) In Crawford.2d at 1305. As noted in Vega. 1980). T-Mobile USA.1983)). 564 F.2d 1300.G. 696 F. Simply put.3d at 1267 (citing Evans v.

Diamond. 1100 (5th Cir.G. 1986) (quoting Jones v. as members of the subclass include future members whose names are not yet known. 13 . (Mot.’s identification of four other youngsters who similarly suffer from the deliberate indifference to their mental health needs at the jail is fatal to her claim for certification of the subclass.” Armstead v.2d 1090. at 13. 629 F. B. Pingree. the “general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1). Corizon largely relies on Vega.. 1986) (finding joinder impracticable where the class included future and deterred job applicants who could not be identified).1975)). 273. Inc. Kilgo v. 789 F. Again. The only issue is whether a subclass in fact exists. See.. as it typically is. In such cases. 519 F. Commonality Defendant Corizon’s argument with regards to commonality also fails. following discovery.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 13 of 23 PageID 1022 Corizon erroneously argues that Plaintiff K.) Defendant’s argument fails to recognize that not every member of a class or subclass need be personally identified in a complaint. e. 878 (11th Cir. at 12.” Id. Additionally. a fact that can and will be proven. A class is often particularly appropriate in cases where not every member can be individually identified or where future members are also likely to come into the subclass over time. joinder is impracticable. The requirement is not to be applied “in a yardstick fashion. Supp. Fla.) The case is wholly inapposite. which on this point dealt with the separate question of whether common questions related to employment contract claims predominated over individual questions.2d 859. (Mot.g. Bowman Transp. 279 (M.D.

Y. Doyle. 846 F. Coughlin. 176-77 (3d Cir. the commonality requirement is generally easily satisfied because it only requires a single issue common to the class. at *10-13 (E. however.D. 2007) (certifying subclass of female prisoners with different disabilities alleging deliberate indifference to serious medical needs). 14. rejecting defendants’ argument that certification was inappropriate because of each prisoner’s unique dental 14 . because there can be different types of mental illness and treatment. at 177. Dist.N. Class members need not allege that they suffered precisely the same injury as other class members. Mar.) Federal Rule of Civil Procedure 23(a)(2). Aug..Wis. Jeffes.S. Raymark Indus. LEXIS 22659. Rather. Hassine v. does not require that claims be identical.D. 1986) (allowing class certification of all female employees based upon the common question of whether Defendants’ policy of excluding prescription contraceptives violated Title VII)).D. it is sufficient for the named plaintiffs to allege harm that is common to the entire class.. Dist. 1985) (certifying class of prisoners alleging systemic deficiencies in provision of dental care. 107 F. See.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 14 of 23 PageID 1023 Corizon essentially argues that. 333-34 (S. 2002 U. Mauldin v.S. 1988) (reversing district court denial of class certification to prisoners alleging constitutional violations regarding detention conditions). LEXIS 21024 at *26 (N. (Mot. like those alleged here. e. Inc. In fact.2d 468. 782 F.. at 15-16. Flynn v. a subclass of children with mental illness does not meet commonality requirements. Dean v.R. 2007 U. 23. 2002) (citing Jenkins v. Courts have repeatedly certified classes and subclasses alleging systemic constitutional violations arising from deliberate indifference to serious medical needs at an institutional level. WalMart Stores. 331.D.2d 169. Id. Ga. 472 (5th Cir.g.

allowing medication to run out.2d 1320 (5th Cir. 349 F. Ala. including by failing to provide the appropriate dosage. and systemically providing medication in a manner that is contraindicated. but systemic unconstitutional practices that present numerous common questions of fact and law to this proposed subclass.G. Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class. Newman v. Specifically. failing to provide mechanisms to promptly make up for missed doses. C. Inc. 278 (M. is typical of those of the subclass. Here. These systemic deficiencies regarding the treatment of children with mental illness place those children at unreasonable risk of substantial harm in violation of the Constitution. These include the a pattern of delaying needed assessments. 503 F. 741 F. Alabama. Typicality As to typicality.) It is beyond dispute that Plaintiff K. 1972) (class action by prisoners alleging deliberate indifference to serious medical needs). 1337 (11th Cir. the claims of Plaintiff K. and crushing or dissolving medications contrary to the product label. aff’d. Defendant’s argument that common questions of law or fact “simply do not exist” does not withstand scrutiny.G.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 15 of 23 PageID 1024 history and needs).. alleges not an individual claim.” Kornberg v. her claims illustrate systematic constitutional violations in the treatment of children with 15 .” This requires a “nexus between the class representative’s claims or defenses and the common questions of fact or law which unite the class. 1974). medication and treatment. Supp.D. Carnival Cruise Lines. (Mot. 1984). at 16.2d 1332.

courts have repeatedly found class certification appropriate where individual prisoners complain of systemic deficiencies in the provision of medical care. Defendant has not. 754 F. her claim is typical of the subclass in general. Plaintiff K. 958 (11th Cir. Although there are likely to be individual factual differences between the harms suffered by the proposed class. D. Plaintiffs have shown. the factual and legal questions common to the subclass will require the same legal analysis. Because the policies. In this case. Here.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 16 of 23 PageID 1025 mental illness. apply with equal force to all other members of the subclass. their claims arise from the same practices and conduct by the same Defendants. has failed to provide enough information to demonstrate that she is an adequate class representative. however. 1985) (finding the similarity of the legal theories can be strong enough to override the factual differences of the claims). in Plaintiffs’ Motion to Certify the Subclass (DE 35).G. Adequacy of representation As to this element. Defendant Corizon argues only that K. Moreover. practices and customs challenged by Plaintiff K. Again Defendant’s reliance on Vega—a case relating to a series of individualized contracts—is misplaced. and the same evidence of Corizon’s unconstitutional actions and omissions. Those violations present the same substantial risk of serious harm to all members of the proposed subclass. Appleyard v. As shown above. has illustrated a pattern of systemic deficiencies that similarly put at risk all children at the Polk County Jail who suffer from mental illness.2d 955. Wallace. even though their claims may not be identical.G. identified what information is purportedly lacking. Her claims are therefore typical of the subclass.G. 16 .

systemic delays in providing medication. alleges several ways in which Corizon systemically acts or refuses to act on grounds generally applicable to the subclass: in short.G. seeks class certification only for declaratory and injunctive relief. Plaintiff K.G. does not “have interests antagonistic to those of the rest of the class.) That provision states that certification may be granted where “the party opposing the class has acted or refused to act on grounds that apply generally to the class. Plaintiffs therefore satisfy the requirement of Federal Rule 23(b)(2). so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. has not established the propriety of class certification under Rule 23(b)(2). Carlin. 1985). their policies. provision of medications in forms that are contraindicated. Plaintiff K.G.2d 1516.) Yet it is plain from the language of the rule that it encompasses both actions. and refusals to act. 17 . (Mot. and generally able to conduct the proposed litigation.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 17 of 23 PageID 1026 among other things. experienced. Defendant argues that Plaintiff K. In this case. 1533 (11th Cir. 755 F. that (1) counsel for the representative parties are “qualified. particularly crushing) affect all subclass members. (Mot. practices. Rule 23(b)(2) Lastly as to class certification. E. who seeks only injunctive relief.” Defendant argues that this provision is not applicable because the complaint does not allege that Corizon failed to act entirely.” and (2) the plaintiff. at 19-20.” Griffin v. at 19. Plaintiffs have therefore satisfied this prong. acts and omissions (including grossly inadequate assessments.

pgs.3d 1265. Mass. is a pre-trial detainee.) Corizon’s argument is premised on the unsupported assertion that the systemically improper administration of psychotropic medications to K.) The Court previously rejected the same argument by Defendant Polk County Sheriff. 1271 (11th Cir. . Butler Cnty. at 21. the Court should again deny the attempt to dismiss the Eighth Amendment claim in order to ensure that all class members are protected.5 (11th Cir. Ala. the Court should dismiss the claim under the Eighth Amendment. 268 F.G.G. so decisional law involving prison inmates applies equally to cases involving . and that “the pertinent Eight and Fourteenth Amendment standards differ little.. Gen. PLAINTIFFS STATE A CLAIM AGAINST CORIZON UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS Corizon’s argument that Plaintiff K. To start.’” (citation omitted) (omission in original)).G. See also Bozeman v. if at all.S. 422 F. Corizon argues that because K. 2005) (“[I]t makes no difference whether [plaintiff] was a pretrial detainee or a convicted prisoner because ‘the applicable standard is the same. 239. considering that while the vast majority of detainees at the jail are pre-trial. 4-5) (citing City of Revere v.. is the result of 18 . Hosp. 244 (1983). Given that this subclass will also include individuals who have been adjudicated or convicted of an offense.. Defendant next argues that Count 4 should be dismissed as to Corizon because “K. (Mot.3d 1014. and others similarly situated. Marsh v.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 18 of 23 PageID 1027 V.” (DE 43. not all are. 1024 n.. which applies only to convicted persons.’s claims are devoid of any factual allegations supporting the claim of deliberate indifference with respect to constitutional violations. . pretrial detainees.” (Mot. fails to state a claim for relief is also without merit. 463 U. 2001)). Orum.G. at 20-21.

and contraindicated provision 19 . continuing pattern of deliberate indifference to children’s mental health needs. yet was repeatedly deprived of needed medications and provided medication in a contraindicated fashion. it is the Plaintiffs’ allegations that control.. attention deficit hyperactivity disorder. 131. 588 F. and oppositional defiance. et al. 128-135.3d 1291. 1307 (11th Cir. Among other allegations.” who “has a history of suicidal ideation. Plaintiff K.) Plaintiff K. (SAC ¶ 88.G.G.) Plaintiff K. 130. et al. inappropriate dosage. Taser Int’l.” (internal quotation omitted).G. (SAC ¶¶ 128. Plaintiffs[] must show: (1) subjective knowledge of a risk of serious harm.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 19 of 23 PageID 1028 negligence or mistake.’s allegations of systemic policies and practices reflect deliberate indifference to serious medical needs. has clearly pled sufficient facts establishing these elements. Plaintiff K. posttraumatic stress disorder.) In Mann.G. the actions and omissions by Corizon do not reflect an individual lapse of judgment on an isolated occasion. 133. v.—who “has been diagnosed with borderline personality traits. but rather a systemic. (SAC ¶¶ 75-90.” and who “has been on medication to treat her mental illness since age 11”— repeatedly put Corizon on notice of her serious mental health needs. (2) disregard of that risk.. and (3) conduct that is more than mere negligence. at the motion to dismiss stage. 2009)—a case cited by Corizon—the Eleventh Circuit stated that to provide “deliberate indifference. has also alleged that Corizon staff are aware that children are particularly vulnerable to harm from inappropriate variations in psychiatric medication. As alleged. subjecting all similarly situated children to unnecessary pain and suffering and putting them at risk of substantial harm. However. withdrawal. mood disorder.

) VI.” (Id. suicidal ideation. Plaintiffs respectfully request that Defendant’s Motion to Dismiss (DE 77) be denied. as the harms they face from constitutionally deficient responses to serious mental health needs put them at risk of irreparable harm..N.) As Plaintiffs state a constitutional claim. 53. Among these is the risk of suicide. Florida pre-suit procedures in medical malpractice cases have no bearing. is increased when children are detained in adult jails. (Id. CONCLUSION Based on the foregoing. and acting out against others.” given that “children’s brains are still developing. (Mot.G. (See DE 4. at ¶134. ¶ 80. Nevertheless.” yet systemically delay or deny necessary medication to this population. The propriety of any particular remedy is not the basis for a motion to dismiss. D. at 22-23.2. INJUNCTIVE RELIEF IS APPROPRIATE Lastly.) 20 .Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 20 of 23 PageID 1029 of medication. 22. C.G. Defendant Corizon’s objection to the granting of injunctive relief as to Count 4 is premature. at which time the Court will determine what relief is appropriate.’s experience is repeated again and again in the illustrations of the other children described in the Second Amended Complaint.) The Court has set trial in this matter for May 2013.. it is worth noting that injunctive relief is necessary to protect this subclass.8 (Mot.D.. which is not brought against this Defendant. J.) This deliberate indifference to a serious medical need subjects children to unnecessary pain and suffering and creates an unreasonable risk of “self-harm. B. ¶¶ 84-87.D. which even for those without mental illness. (Id.) K. 8 Plaintiffs have only moved for a preliminary injunction as to Count 2.

galloni@splcenter. N.haskell@splcenter. Mamounas (Fla.org BAKER & McKENZIE LLP Donald J. FL 33131 Telephone: (305) 789-8900 Facsimile: (305) 789-8953 Steven Chasin (admitted pro hac vice) 815 Connecticut Ave. FL 33137 T: (786) 347-2056 F: (786) 238-2949 miriam.. /s/ Miriam Haskell . 619221) SOUTHERN POVERTY LAW CENTER P. Bar No.hayden@bakermckenzie. Bar. Miriam Haskell (Fla.org tania.chasin@bakermckenzie. 69033) Tania Galloni (Fla. Bar No. Washington.W. 097136) donald.mamounas@bakermckenzie.com Joseph P.rindone@bakermckenzie.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 21 of 23 PageID 1030 Respectfully submitted.com Joseph J. Hayden (Fla.O. No. Bar. No. DC 20006 Telephone: +1 202 835 6132 Facsimile: +1 202 416 7132 steven. Box 370037 Miami. NY 10036 Telephone: +1 212 626 4941 Facsimile: +1 212 310 1723 joseph. 041517) joseph.com Attorneys for Plaintiffs 21 . Suite 1700 Miami.com Sabadell Financial Center 1111 Brickell Avenue. Rindone (admitted pro hac vice) 1114 Avenue of the Americas New York.

2012.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 22 of 23 PageID 1031 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 19. /s/ Miriam Haskell Miriam Haskell . 22 . I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified. either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who are not authorized to receive electronically Notices of Electronic Filing.

BRONSON EIDE & TELAN.A.O. “Hank” Campbell Jonathan B. RUTHERFORD. Aranda William Thompson McKinley VALENTI CAMPBELL TROHN TOMAYO & ARANDA 1701 South Florida Avenue Lakeland. FL 33803 Tel: (863) 686-0043 Fax: (863) 616-1445 Attorneys for Defendant GRADY JUDD. FL. Box 538065 Orlando. KETCHAM. P. P.: 407-423-9545 Fax: 407-425-7104 Attorneys for Defendant CORIZON HEALTH. Bronson Patrick H.Case 8:12-cv-00568-SDM-MAP Document 89 Filed 07/19/12 Page 23 of 23 PageID 1032 SERVICE LIST CASE No. Telan GROWER. 32853-8065 Tel. Trohn Robert J. INC. 23 . Polk County Sheriff Ramon Vazquez Jeanelle G. 8:12-cv-00568-SDM-MAP Henry B.