2024 Grantees Submit First Quarter Case Reports
In accordance with the Foundation’s requirements for grant reporting, the five 2024 grantees submitted their first quarter case updates and timesheets. Their case updates appear below.
All grantees are meeting the requirements of their grant. The average amount of hours of attorney time spent by each grantee on their respective case was 206.22 hours with an average dollar value of $116,226.34.
In Jonathan R. v. Jim Justice, filed in 2019, A Better Childhood (“ABC”), Shaffer & Shaffer PLLC, and Disability Rights of West Virginia (DRWV) are challenging West Virginia’s Governor and Department of Health and Human Services (DHHR) and several DHHR executives for violations of foster children’s constitutional and statutory rights. This case brings claims on behalf of a general class of all children in foster care; and three subclasses: children in kinship placements, children with disabilities, and children who age-out of the system with no support or services. Plaintiffs seek declaratory and injunctive relief to enforce West Virginia foster children’s constitutional and federal statutory rights. Issues in the system to be addressed in this case include high caseloads, an insufficient number of foster care placements, over- institutionalization, maltreatment in care and death rates that are double the national average, and a lack of mental health services, which all contribute to the harm of children in foster care.
This lawsuit is brought asserting the violation of both federal statutory and constitutional rights, for which attorneys’ fees could be awarded if we are successful.
The District Court for the Southern District of West Virginia initially dismissed this case on abstention grounds. But following Plaintiffs’ appeal, the Fourth Circuit in 2022 issued a decision reversing the District Court’s dismissal of the case and remanding it back to the District Court. In January 2023, the District Court largely denied Defendants’ Motion to Dismiss, leaving most Plaintiffs’ core claims intact. The district judge, who had originally dismissed the case but was reversed by the 4th Circuit, made an unusual attempt to have the case settled by engaging the legislature. However, after the attempt to push for settlement failed, the judge recused himself and the case was assigned a new judge.
The plaintiffs won their motion for class certification in August 2023 and now represent all the children in foster care in the state. With that win, we have requested and received the cases of 100 randomly selected children for an expert to examine and opine on. However, the records are so incomplete that they cannot be analyzed. We expect the expert to opine that it is impossible to protect children – or run a child welfare system that protects foster children’s constitutional rights – in a system that does not even know what is happening to its foster children.
This case is proceeding toward trial, with the state continuing to produce even greater information about the dysfunction of the foster care system. The discovery requests increasingly reveal how very poorly the state tracks the children in foster care and how little the state knows about how well they are being protected. Although ABC has worked with the defendants to try to get usable data from them, we have had to move, successfully, to compel answers to many of our discovery requests. As mentioned in this December 2023 story, plaintiffs have learned that some of the information we have requested – the electronic emails from many of the key players who have left the agency over the last several years – have been deleted upon their departure, despite our request to preserve them. The trial in this case is scheduled for September 2024.
Lone Star Justice Alliance (“LSJA”) is making progress toward filing of a class challenge to conditions of confinement inside the Texas Juvenile Justice Department. The litigation seeks comprehensive injunctive relief for numerous violations of the Constitution and other federal law. Children in secure facilities are experiencing deprivations of education, mental health treatment, and basic hygiene. Access to counsel is limited, and transfers to adult prison are on the rise. High turnover in the Department’s staffing has resulted in shortages so severe, children cannot be safely released from their cells, and are thus effectively assigned to solitary confinement. LSJA is in the process of collecting named plaintiffs from each of the secure facilities such that our requested injunctive relief will reach all youth confined in the Department’s facilities.
California Coalition for Women Prisoners v. United States Federal Bureau of Prisons is a Rule 23(b)(3) class action brought on behalf of people currently and formerly incarcerated at FCI Dublin, a federal women’s facility. The class consists of all people currently incarcerated at FCI Dublin brought under the Eighth Amendment for subjecting people to the unconstitutional risk of serious bodily harm from sexual assault and under the First Amendment for retaliating against people who report sexual abuse at the facility.
The first major hearing in this case took place on December 11th, 2023. At the time of filing the complaint in this case, the plaintiffs also filed a motion for preliminary injunction, which was supported by declarations from 47 people currently incarcerated at FCI Dublin. In their response in opposition to the motion for preliminary injunction, the Federal Bureau of Prisons (“BOP”) included one declaration from a single witness, who is employed as an executive assistant by the BOP.
At that December 11th hearing, Judge Yvonne Gonzalez Rogers expressed frustration at the paucity of evidence provided by the Bureau of Prisons and scheduled an evidentiary hearing to begin on January 3rd, after which she will rule on the motion for preliminary injunction. The January 3rd hearing resulted in several minor remedial orders along with an order for the parties to complete post -hearing briefing to aid the court in deciding the preliminary injunction motion. A final hearing on the injunction will take place on February 27, 2024.
Judge Gonzalez Rogers also indicated that she is strongly considering the plaintiffs’ request to appointing a special master. She said during the December 11th hearing, “I have very little trust in FCI Dublin. There must be significant evidence that they have it under control, and the evidence suggests that they don’t.” If Judge Gonzalez Rogers does appoint a special master, it will be the first time one has ever been appointed to oversee a BOP facility.
Since the start of October 2023, along with co-counsel the ACLU of Texas and Covington & Burling, LLP, we have briefed oppositions to motions to dismiss filed by all the Defendants. We have also filed a motion to strike exhibits attached to one motion to dismiss. We are awaiting decisions on all these motions.
The motion to dismiss briefing deals with municipal (Monell) and supervisory liability as well as the individual defendants’ assertions of qualified immunity. Our oppositions explain both how the facts of our case foreclose qualified immunity and why the defense itself is inconsistent with the original text and correct interpretation of Section 1983.
Also, this past quarter, we opposed motions to stay discovery insofar as they applied to defendants not asserting qualified immunity. After a November hearing before a magistrate judge, we prevailed, and discovery is not stayed against the county or private company defendants.
In the Fifth Circuit, over- detention has continued to be an issue litigated, with the court reaffirming in McNeal v. LeBlanc, 90 F.4th 425 (5th Cir. 2024), that the right to timely release from incarceration has been clearly established since the Fall of 2017.
On October 11, 2023, Upper Seven Law filed a complaint in state court challenging SB 458, a law that unscientifically defines sex as binary and authorizes discrimination against Two Spirit, trans, and non-binary Montanans. The state of Montana answered the complaint on December 14. The case name is now Edwards v. Montana. We expect to file a motion for summary judgment in February, which include declarations from our clients. We hope to resolve this case without going to trial both to quickly to minimize harm to and intrusion on our clients, who have already taken a courageous step by publicly joining this lawsuit. National news media has begun covering the case. We expect additional coverage with the summary judgment filing challenging the law.