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December 18, 1970

Antoinette LOLLIS, on her own behalf and on behalf of all others similarly situated, namely those children confined to Training Schools in the State of New York, Plaintiffs,
NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, George K. Wyman, Commissioner, State Department of Social Services, Frank Shaughnessy, Superintendent, Brookwood Annex to the Hudson State Training School for Girls, et al., Defendants. Joe PENA, on his own behalf and on behalf of all others similarly situated, namely those children confined to and paroled from Training Schools in the State of New York, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, George K. Wyman, Commissioner, State Department of Social Services, et al., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Plaintiffs in these companion cases are children who claim that their treatment while in custody in New York State training schools has constituted cruel and unusual punishment under the Eighth Amendment or punishment imposed in violation of the Fourteenth Amendment. They have brought separate but nearly identical class actions pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 seeking injunctive and declaratory relief and damages. Jurisdiction is predicated on 28 U.S.C. §§ 1343(3) and (4).

 The Lollis suit is brought on behalf of all children confined to New York State training schools "who are forced to endure extended periods of solitary confinement"; the Pena action for "children confined to and paroled from such schools who have been subject to solitary confinement or subject to binding of hands and feet with handcuffs." I discuss the cases separately.

 Defendants are the persons charged with the responsibility of operating the state training schools.

 The plaintiffs move for preliminary injunctions to restrain defendants from imposing the treatment complained of. Plaintiff Pena also moves to consolidate the two cases.

 The defendants oppose these motions and move to dismiss the complaints, and, in the event the complaints are not dismissed, to extend their time to answer.


 Antoinette Lollis ("Lollis") is a fourteen-year old inmate of the Brookwood Annex to the Hudson Training School for Girls ("Brookwood Annex") in Claverack, New York. She was committed first in September 1969 as a "Person in Need of Supervision" pursuant to § 711 ff of the New York Family Court Act. She was released on June 30, 1970, but on the complaint of her mother, who was later the object of child neglect proceedings as to plaintiff's seven brothers and sisters, was returned, without hearing, to the training school in mid-August 1970.

 Neither in the present case nor previously has the plaintiff been accused or convicted of a crime. Although in the present instance her mother claimed that Lollis threatened her with a knife, this Lollis denies.

 Two or three days after her return to custody plaintiff became involved in a fight with a matron and another inmate. The record indicates that plaintiff was abusive and aggressive and bore the responsibility for the start of the fracas. Before peace returned it took several persons to subdue Lollis.

 Immediately thereafter, without a hearing, plaintiff was confined to what is colloquially known within the training school system as a "strip room" -- so called because it is stripped of all facilities normally available to inmates. Here she remained until September 4, 1970, being released at that time apparently because of the insistence of Family Court Judge Beatrice Burstein, who made an inspection of the school on September 2, 1970, and discovered Lollis confined to the strip room.

 Judge Burstein's detailed report of the Lollis case, dated September 22, 1970, describes the following conditions:

 "She [Lollis] was kept in a room about 6' x 9' for 24 hours a day. The first seven or eight days of confinement she was visited by a social worker. Then the social worker went on vacation and one other staff member visited her once. She was completely unoccupied for 24 hours daily. Nevertheless I inquired how she kept herself busy. She replied by saying 'I sleep all day and I cry all night.' She had, indeed, requested to see a psychiatrist, but was informed that she would not be able to see him until she was released from solitary. She reported that she had been receiving tranquilizers for a long period of time and felt a need for them now but was unable to secure them since the psychiatrist was not available for a visit. It should be noted that Brookwood has the services of a psychiatrist one-half day every other week.

 "She wore pajamas all day, sat staring at the wall and did absolutely nothing.

 * * *

 "There was a wooden bench * * *. There was a blanket on the bench and this was where the child rested for twenty-four hours."

 Although the room contained a window, it was blinded so that it "absolutely prevented the youngster from looking outside." In each of the four wings there was a strip room for isolation purposes. The room in which plaintiff was confined was at the end of the hospital wing, completely removed from the balance of the population.

 Judge Burstein questioned the Superintendent as to when Lollis might be released. He replied that, although the case was reviewed each day by the staff, he could not suggest a definite date, since release depended on Lollis' exhibiting some "movement" and on her apology to the matron (the matron was by now on vacation). When removal from the strip room occurred, he informed her, it did not mean automatic return to the community, but the child would be locked in her own room for a transition period.

 Although Judge Burstein observed, "I do not suggest that commodious accommodations must be accorded to children who disturb the tranquility of the community," she nevertheless stated: "On the other hand, the cruelty of isolation and solitary confinement ought not to be augmented by surroundings so oppressive as to destroy the integrity and the identity of the child who, after all, is the object of our concern and who must ultimately be returned to the community."

 It is important to note that after her departure from the school Judge Burstein energetically attempted through administrative channels to secure relief for Lollis. Two days after her visit she called the Superintendent to ask if the plaintiff had been released or (as Judge Burstein had requested at the time of her visit) had been given any books. Release had not occurred and the request for books had been rejected. She made several attempts to reach Commissioner Wyman, but he was unavailable. A call to the Chairman of the Board of Social Welfare Services elicited the statement that members of the Board had not visited the institution (as they are required to do by §§ 6 and 18 of the New York Social Services Law, McKinney's Consol. Laws, c. 55) since they were unsalaried and there were too many institutions to visit. Finally, through efforts of the National Council on Crime and Delinquency, Judge Burstein was able to speak to the Deputy Commissioner of Social Services in Charge of Institutions, who arranged for Lollis to be released on September 4, 1970, two weeks after she had originally been isolated.

 In opposition to the Lollis motion, an equally detailed, undated, report of Superintendent Frank Shaughnessy states that the strip room (described by the Superintendent as a "security room") measures 9' 4 " by 7' 8 ", that the bed is a "bunk bed built into one of the walls, attached to the walls and the floor," 7' 8 " long, 2' 7 " wide and 1' 6 1/2 " high. A mattress is made available at night. It is claimed that the top pane of the window was low enough to permit visibility, and that the lower panes were painted to prevent an inmate from distracting other inmates engaged in recreation outside the room. Girls in a "security room" are kept in pajamas to prevent absconding and the hiding of dangerous objects. Lollis was issued a bathrobe, but destroyed it; for this reason it was not replaced. The use of bathroom and shower is made available. It is stated that Lollis was visited on a number of occasions by child care workers to discuss her case and by nurses. She continued her aggressive and anti-social behavior. Her case was reviewed daily by the Adjustment Committee, and on September 4th the Committee decided that, since Lollis "indicated a willingness to resume program and to maintain herself," she should be returned to her own room in preparation for later resumption of normal activities, which occurred September 9th. The report further states that "every effort is made to return a youngster to the regular program as quickly as possible" and that girls are allowed to write their family and to receive letters while confined in a "security room."

 It should be noted that the recital above is derived from unsworn reports submitted by plaintiff and the defense, and not from affidavits. Though affidavits on the part of counsel have been submitted, they are necessarily based on information and belief. While the absence of sworn evidence would create insurmountable obstacles to decision in cases involving sharp factual disputes, the key factual matters here are not in question. It is true that the tone of Superintendent Shaughnessy's report is altogether different from that of Judge Burstein, and offers a justification of the treatment of Lollis. Nevertheless, there is clear agreement that Lollis, a fourteen-year old girl who provoked a fight, was kept in isolated custody for two weeks in a room stripped of everything but a wooden bunk bed, without a mattress during the day time, with a largely blocked window, and was coincidentally released on the day on which Judge Burstein was able to secure the intervention of the Deputy Commissioner in Charge of Institutions. It is also undisputed that the Brookwood Annex is a facility intended to treat girls with particularly difficult behavioral problems, and for the purposes of this motion I accept the Superintendent's claim that Lollis is such a girl. This area of agreed fact is sufficient to permit a disposition of the case.


 In this context the plaintiff contends that the practice in the New York State training schools of isolating children for extended periods of time (1) violates the Eighth Amendment because it constitutes cruel and unusual punishment, (2) is unlawful because it imposes punishment on persons civilly committed who are not convicted of a crime, and (3) violates the due process clause of ...

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