Juvenile Detention Center Lawsuit

December 9, 2010

The Northern Marianas Protection and Advocacy Systems, Inc. (NMPASI) through Attorney Matt Holley has filed an amended complaint against Melvin Faisao DCCA Secretary in his capacity as supervisor of the Kagman Juvenile Detention Center and Correctional Facility.  It clearly proves that Fasiao's claims that there are no individuals with disabilities or mental illnesses housed at the Kagman Juvenile Detention Center are utterly false.

NMPASI also filed a Reply to the Opposition to the Motion for Preliminary Injunction, and declarations by Public Defendant Adam Hardwicke, Assistant Public Defender Adam Miles, NMPASI Attorney Matthew Holley, PSS Legal Counsel Kelly Butcher, and Attorney Sean Frink.

In October 2010, NMPASI sued Faisao for refusing to allow the agency access to the facility. NMPASI is tasked by Congress with protecting and advocating the civil rights of persons with disabilities. In that official capacity that agency requested to inspect the juvenile detention center. The complaint alleges that Faisao and the representing attorney from the Office of the Attorney General, AAG Tom Schweiger, failed to return phone calls and messages requesting that NMPASI be allowed to inspect the facility.

On November 23, 2010 the Office of the Attorney General representing Faisao filed an Opposition for Preliminary Injunction claiming that "there are no detainees eligible for P and A services; residents will not suffer irreparable harm because efforts are underway to resolve the problems at the Facility; and  it will not serve the public interest to have two federally funded entities intrude upon the Facility."

NMPASI's reply to the defendant's opposition shreds their weak arguments. It clears up the claim that
"two federally funded entities would not serve the public interest":
The two federally funded entities have two different roles: one is to investigate alleged crimes and the other is to advocate for the detainees with disabilities. Congress found the need to advocate for individuals with disabilities, thus the creation of the congressional mandate for an independent entity. NMPASI will not interfere with the federal investigation and may even be useful to federal prosecutors. Finally, Defendant claims but fails to provide any explanation how two entities at the Facility will be cumbersome. Instead of being an obstacle for the detainees at the Facility, Defendant should invite NMPASI to provide services to the children with disabilities.
The amended complaint states that "many children with developmental disabilities and/or mental illness currently reside or have resided at the Facility." It details seven specific cases of such detainees who are presently being held at the detention center or have been held there in the recent past. Five were in special education at the time of their arrest.

Another cited case shows how the lack of a psychiatrist adversely affected a juvenile:
A detainee was arrested in 2008 for stabbing his stepfather. The teenager spent a couple months in the Facility and was later released. However, he was rearrested for violating his probation and spent a few weeks in the Facility in August, 2009. The court and the attorneys involved had real concerns about his psychological status and requested an evaluation. However, at the time there was no psychiatrist available in the CNMI and the evaluation was never conducted. The lack of qualified individuals to give evaluations has been a recurring problem in the CNMI.
As I stated in a November 25, 2010 post, Juvenile Detention Center Controversy, Secretary Faisao himself was quoted by the local press speaking about special education children housed at the center. For example, a February 2008 Saipan Tribune article, states that some juveniles at the detention center were referred to the PSS Special Education Program for assessment:
"According to Department of Community and Cultural Affairs acting secretary Melvin L.O. Faisao, some of these juveniles were evaluated by PSS psychologist Marie McGee and found eligible through their Individual Education Plan.

Faisao noted that more juveniles who come into the justice system may be eligible for the program, but were not detained long enough to go through the testing with the PSS psychologist." 
It is disturbing that Faisao and the Office of the Attorney General deny the reality that  juveniles who are classified as having disabilities are being held at the center. If I can do a little research and find some articles that state that the detainees were special education students, then why can't the OAG have access to this information?  Certainly any judge will question this and refuse to dismiss this important case.

The amended complaint highlights other troubling problems at the facility:
There have been numerous violations reported concerning the Facility this past year, some publicly and others privately. One such violation was reported this past June, when Federal Bureau of Investigation agents arrested a guard at the Facility who allegedly used his position of authority to force detainees to engage in sex acts. Another is that even though the new school year has begun, juvenile detainees at the Facility are not receiving the required education, nor any education for that matter. Additionally, there have been reported violations that have not been made public due to confidentiality reasons.
This is extremely disturbing.  School started months ago and these students have had no instruction.  Doesn't this break federal law?

The amended complaint outlines the exhaustive attempts that NMPASI took to try to access the facility and its clients.

NMPASI is asking the court to:
(A) Enter an injunction enjoining Defendant, his agents or employees, successors and all persons acting in concert with him at his direction, from denying NMPASI immediate, full, complete, meaningful, and unaccompanied access to the Facility and its residents without advance notice and at any reasonable time, including during business and visiting hours;
(B) Enter a declaratory judgment that the Defendant’s policies, regulations, and practices of denying NMPASI immediate, full, complete, meaningful, and unaccompanied access to the Facility and its residents without advance notice and at any reasonable time, including during business and visiting hours, violates the Protection and Advocacy for Mentally Ill Individuals Act of 1991, 42 U.S.C. § 10801 et seq.; the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. §§ 15001 et seq.; and the Protection and Advocacy for Individual Rights Act (“PAIR Act”), 29 U.S.C. § 794e(a);
(C) Award attorney’s fees, costs, and expenses pursuant to 28 U.S.C. § 2202, 42 U.S.C. § 1988; and
(D) Award such other and further relief to which Plaintiff is justly entitled, at law or equity.
Read the amended complaint:

I hope that NMPASI is successful in their lawsuit.  The Court should issue a preliminary injunction so that the Congressionally-mandated agency has free access to the juvenile detention center to serve their clients.


Anonymous said...

If the JVC and prison are under a consent decree and being monitored by the US government how did this happen? Good luck NMPASI.