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February 11, 1976

Joe PENA et al., Plaintiffs,

The opinion of the court was delivered by: MOTLEY


 MOTLEY, District Judge.

 This action is brought pursuant to 42 U.S.C. § 1983 on behalf of all children placed with and paroled from the Goshen Annex for Boys, an institution within the New York State Training School system, challenging under the Eighth and Fourteenth Amendments the use of isolation, the use of hand and feet restraints, and the use of thorazine or other tranquilizing drugs to control excited behavior of the children. Jurisdiction is conferred upon this court by 28 U.S.C. § 1343(3) and 28 U.S.C. §§ 2201, et seq.

 The complaint in this case was filed on November 6, 1970. Although the original complaint challenged only isolation and the use of physical restraints, upon consent of both parties, the constitutionality of the use of medical restraints was added as a triable issue. The complaint herein was filed shortly after the filing of a nearly identical action in Lollis v. Department of Social Services, 70 Civ. 4750, which challenged similar practices at the Brookwood Annex, which is also part of the State Training School system. In each case a motion for a preliminary injunction was made.

 Judge Morris E. Lasker treated the actions as companion cases although he did not consolidate them. On December 18, 1970, he ruled that the isolation of the named plaintiffs in both Pena and Lollis constituted cruel and unusual punishment in violation of the Eighth Amendment. Lollis v. Department of Social Services, 322 F. Supp. 473 (S.D.N.Y.1970). He enjoined defendants in both cases from imposing extended isolation on inmates pending approval by the court of regulations to be submitted by defendants. In the same opinion, Judge Lasker declined, because of an unresolved factual issue, to enjoin the defendants from handcuffing or binding the feet of children in the training schools, and denied defendants' motion to dismiss the complaint.

 Subsequent to the issuance of the injunction, but prior to approving the proposed regulations drafted by defendants, the Second Circuit Court of Appeals decided Sostre v. McGinnis, 442 F.2d 178 (1971). Since that case appeared to stand for the proposition that a federal district court should not supervise internal regulations of state prisons, *fn1" Judge Lasker modified his first order by eliminating the need for defendants to submit proposed regulations, and enjoined the defendants only from placing Pena (and Lollis) in isolation under the conditions alleged in the original complaints. In so doing, the court acknowledged that the defendants advised the court that "an injunction relating to one plaintiff would be 'respected by the State of New York to the same degree as an injunction on behalf of unknown and unspecified plaintiffs.'" Lollis v. Department of Social Services, 328 F. Supp. 1115, 1119 (S.D.N.Y. 1971).

 The case was declared a class action on January 19, 1971, by Judge Lasker, and on May 17, 1971, Judge Lasker issued a modified injunction which provided "that defendants be and they hereby are enjoined pending trial from placing plaintiffs or any member of the plaintiff class in isolation under the conditions alleged in the respective complaints."

 On October 28, 1971, asserting evidence of violations of the injunction, plaintiffs moved for an order amending the preliminary injunction (1) to forbid the continued imposition of isolation upon members of the plaintiff class in excess of twenty-four hours; and (2) to forbid the continued imposition of isolation upon members of the plaintiff class in stripped rooms. The motion was never ruled upon, and plaintiffs withdrew it on February 6, 1973.

 Discovery was then undertaken which, by order of this court, was completed by October 1973. On February 5, 1974, defendants moved for the convening of a three-judge court pursuant to 28 U.S.C. § 2281 to hear those portions of plaintiffs' case which sought to enjoin, on constitutional grounds, implementation of the state-wide regulations of the Division For Youth. Plaintiffs did not oppose the motion, and on February 15, 1974, this court granted said motion by written opinion. On March 18, 1974, both parties withdrew their prayer for any injunctive relief which would prohibit defendants from taking any action authorized by state-wide regulations, thereby obviating the need for a three-judge court. On May 28, 1974, trial commenced before this court, and continued on May 29, 30, 31, June 3 and 7. Said trial included extensive testimony by expert witnesses for both sides in addition to testimony by boys who had spent time at Goshen as well as administrators of Goshen and the New York State Division For Youth. In addition, 211 exhibits were admitted.

 On July 30, 1974, defendants amended to some extent the administrative regulations with respect to room confinement and physical and medical restraints, 9 N.Y.C.R.R. 168.2 and 168.3, and indicated by letter of August 2, 1974, to this court, that they consented to be enjoined to follow the regulations as amended. By opinion rendered on June 5, 1975, this court ruled that such concession did not render the questions at issue moot, and thus the court proceeds at this time to rule as to all of the issues raised at trial.

 A preliminary determination which must be made by this court before turning to the specific practices challenged in this case regards the nature of the institution in question and the duties owed to the boys sent there. Goshen Annex Center is a training school operated by the New York State Division For Youth for teenage boys who have been adjudicated delinquent in civil proceedings pursuant to New York Family Court Act § 731 and involuntarily placed with the New York State Division For Youth pursuant to Family Court Act § 756. Goshen Annex is the only maximum security facility for boys maintained by the Division For Youth, and boys are not sent directly to Goshen, but are transferred there from other training schools if they present behavior problems with which the first school to which they are assigned cannot cope.

 Because Goshen is an institution which is a part of the juvenile justice system of the State of New York, it is the conclusion of this court that the boys placed there have a constitutional right to rehabilitative treatment.

 In the past few years, the United States Supreme Court has reviewed four cases arising out of the juvenile justice system to determine whether the Constitution requires that specific procedural due process rights be accorded juveniles subject to adjudication in that system. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). While none of these cases required the Court to address itself squarely to the question of the juvenile's right to rehabilitative treatment, the conclusion which this court draws from a reading of those cases is that such a right does exist. In declining to find that all procedural safeguards available to adult defendants are mandated for the juvenile, the Court made it clear that the constitutional justification for this procedural deprivation is the parens patriae underpinning of the juvenile justice system and its absolute proscription against punishment and retribution as permissible objectives. The premise relied upon by the Court in each case was that the objectives of the juvenile justice system "are to provide measures of guidance and rehabilitation for the child . . . not to fix criminal responsibility, guilt and punishment." Kent v. United States, supra at 554, 86 S. Ct. at 1054.

 Thus, juveniles, when they are held, are held in noncriminal custody; they are persons civilly committed without the full panoply of protections attendant upon a criminal trial. Accordingly, a number of lower federal courts have held outright that they have a right to rehabilitative treatment. Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y.1972); Nelson v. Heyne, 355 F. Supp. 451 (N.D.Ind.1972), aff'd 491 F.2d 352 (7th Cir. 1974), cert. denied 417 U.S. 976, 94 S. Ct. 3183, 41 L. Ed. 2d 1146 (1974); Morales v. Turman, 364 F. Supp. ...

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