John Doe 4 v. Shenandoah Valley Juvenile ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1910
JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of
himself and all persons similarly situated,
Plaintiff – Appellant,
v.
SHENANDOAH VALLEY JUVENILE CENTER COMMISSION,
Defendant – Appellee.
____________________________
CURRENT AND FORMER STATE ATTORNEYS GENERAL; ELECTED
PROSECUTORS; CORRECTIONS LEADERS, CRIMINAL JUSTICE LEADERS;
DISABILITY RIGHTS LEADERS,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cv-00097-EKD-JCH)
Argued: October 28, 2020 Decided: January 12, 2020
Before GREGORY, Chief Judge, WILKINSON, and KEENAN, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Keenan joined. Judge Wilkinson wrote a dissenting opinion.
ARGUED: Theodore A. Howard, WILEY REIN, LLP, Washington, D.C., for Appellant.
Jason A. Botkins, LITTEN & SIPE, LLP, Harrisonburg, Virginia, for Appellee. ON BRIEF:
Hannah E.M. Lieberman, Mirela Missova, WASHINGTON LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for Appellant.
Joshua S. Everard, LITTEN & SIPE, LLP, Harrisonburg, Virginia; Harold E. Johnson,
Meredith M. Haynes, WILLIAMS MULLEN, Richmond, Virginia, for Appellee. Neil R. Ellis,
Mark E. Herzog, David A. Miller, SIDLEY AUSTIN LLP, Washington, D.C., for Amici
Current and Former State Attorneys General, Elected Prosecutors, Corrections Leaders,
Criminal Justice Leaders, and Disability Rights Leaders.
2
GREGORY, Chief Judge:
Appellants are a class of unaccompanied immigrant children detained at
Shenandoah Valley Juvenile Center who challenge the adequacy of their medical care.
After fleeing their native countries due to harrowing traumas, many of these children
struggle with severe mental illnesses, resulting in frequent self-harm and attempted suicide.
Appellants filed a class action suit alleging, among other things, that the Shenandoah
Valley Juvenile Center Commission fails to provide a constitutionally adequate level of
mental health care due to its punitive practices and failure to implement trauma-informed
care. The district court granted summary judgment to the Commission after finding that it
provides adequate care by offering access to counseling and medication.
But the district court incorrectly applied a standard of deliberate indifference when
it should have determined whether the Commission substantially departed from accepted
standards of professional judgment. Accordingly, we reverse and remand for further
proceedings so that the court may apply the appropriate standard and consider all evidence
relevant to it.
I.
Appellants are immigrant children who fled their native countries—mainly
Honduras, Guatemala, Mexico, and El Salvador—after experiencing appalling horrors.
Some have been brutally assaulted, including by their own families. J.A. 1116–17, 1128,
1246–49. Others have seen their friends and families murdered before their eyes. Id. All
faced circumstances so dire, they were forced to flee hundreds of miles for safety.
3
Under federal law, Appellants are unaccompanied alien children (“UACs”):
children under the age of 18 who have no lawful immigration status 1 and no parent or legal
guardian in the United States available to care for them. 6 U.S.C. § 279(g)(2). Upon arrival
in the United States, they fall under the custody of the Department of Health and Human
Service’s Office of Refugee Resettlement (“ORR”). 6 U.S.C. § 279(a); 45 C.F.R.
§ 410.207. ORR coordinates the care and placement of unaccompanied children. It is
responsible for identifying qualified individuals, entities, and facilities to house them;
placing children in the care of those individuals or facilities; and supervising those
individuals and facilities to ensure that they provide adequate care. 6 U.S.C.
§ 279(b)(1)(A)–(L); 45 C.F.R. § 410.102.
Federal statute requires these children to “be promptly placed in the least restrictive
setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), and any facility
housing them must be “capable of providing for the child’s physical and mental well-
being.” Id. § 1232(c)(3)(A). Similarly, federal regulations state that ORR “shall hold
UACs in facilities that are safe and sanitary and that are consistent with ORR’s concern for
the particular vulnerability of minors.” 45 C.F.R. § 410.102(c). “Within all placements,
UACs shall be treated with dignity, respect, and special concern for their particular
vulnerability.” Id. § 410.102(d).
1
Some unaccompanied children may eventually gain lawful permanent residency
through asylum or special immigrant juvenile status. See 8 U.S.C. §§ 1101(a)(27)(J), 1158,
1159(b); 8 C.F.R. §§ 204.11, 209.2.
4
A.
The Shenandoah Valley Juvenile Center (“SVJC”) is a secure juvenile detention
facility in Staunton, Virginia. J.A. 30. It is run by the Shenandoah Valley Juvenile Center
Commission (“the Commission”), a governmental entity formed under Virginia law by the
Cities of Harrisonburg, Lexington, Staunton, and Waynesboro, and the Counties of
Rockingham, Augusta, and Rockbridge. Id. SVJC provides education, housing, and
medical care to unaccompanied immigrant children who, in the discretion of ORR, require
a secure placement due to safety concerns. J.A. 103. SVJC also houses youth from
surrounding jurisdictions who have been charged with a crime but have not yet had their
cases adjudicated. J.A. 125. The facility houses approximately 20 to 40 unaccompanied
immigrant children at any given moment. J.A. 1599, 1650.
When a child is referred to SVJC, licensed clinicians review the child’s
documentation, including any case summaries, school records, disciplinary history,
clinician notes, psychological evaluations, and hospitalization records. J.A. 575, 1299–
1301. In some cases, clinicians reject the placement of a child at SVJC if they determine
that SVJC cannot provide the necessary services for a child’s mental health needs. J.A.
1302–03. If a child is accepted by SVJC, resident supervisors perform an initial intake—
including a mental health questionnaire and interview—followed by an assessment by case
managers and clinicians. J.A. 569–75, 1207. This assessment allows SVJC’s clinicians to
learn about the child’s social and disciplinary history while in custody. J.A. 1301.
Clinicians also learn about the child’s family history and journey to the United States. Id.5
After the follow-up assessment, clinicians may refer a child for evaluation by a
psychologist, subject to ORR approval. J.A. 103, 1383–84, 1451.
SVJC recognizes that most of the unaccompanied children it cares for have
experienced severe trauma. Its Deputy Director of Programs testified before a Senate
Subcommittee on Investigations that “[t]he majority of unaccompanied children in a secure
setting [such as SVJC] have histories of repeated and various forms of abuse and neglect;
life-threatening accidents or disasters; and interpersonal losses at an early age or for
prolonged periods of time.” J.A. 1967. SVJC’s lead clinician testified that “a high
percentage” of the unaccompanied children at SVJC have experienced trauma, J.A. 1455,
and the facility’s lead case manager affirmed the “high need for mental health treatment”
for the children at SVJC “given the background of these minors, what they’ve witnessed
in [their] home countr[ies] . . . prior to undergoing a pretty traumatic journey to the United
States.” J.A. 1807. Around 2017, SVJC began including in its annual staff trainings a
section on trauma, common traumatic experiences of resident children, and ways to engage
with those suffering from trauma. J.A. 97, 190–91, 194–98, 205–06, 1192–93, 1961.
The facility also provides certain mental health services to its residents. Each
resident is assigned a case manager and licensed mental health clinician. 2 J.A. 100, 881,
1064, 1853. Residents meet with their clinicians for one-on-one counseling for about an
hour at least once each week. See J.A. 896–963. Residents can request additional visits
with their clinicians, though their requests are sometimes denied or ignored. See J.A. 700–
2
The clinicians are licensed professional counselors with master’s degrees in social
work, psychology, sociology, or another relevant behavioral science. J.A. 881, 1064, 1853.
6
01, 820–21. Besides one-on-one counseling, clinicians also lead twice-weekly, 5- to 15-
minute-long group counseling sessions. J.A. 955–56, 958–59, 1055–58. Additionally, the
facility has a psychiatrist, Dr. Timothy Kane, who visits the facility every three to six
weeks. J.A. 1385. But Dr. Kane does not provide counseling or any form of
psychotherapy—rather, he prescribes medications and offers “medication management.”
J.A. 822, 1324–25, 1384–85, 1480–81, 1486. Despite the services it offers, SVJC
acknowledges that the facility does not have “the internal capacity to deal effectively with
the needs of unaccompanied kids who have severe mental illness” because it lacks the
treatment capabilities of “a residential treatment center or hospital.” J.A. 1357–58. For
example, it does not offer prolonged exposure therapy to treat PTSD because its clinicians
are not qualified to offer such treatment. 3 J.A. 1487–88.
As a secure juvenile detention facility, SVJC also imposes various forms of
discipline upon the children there. The facility’s sanctions range from verbal reprimands
to removal from daily programming and room confinement. J.A. 1838–37. To enforce
these sanctions, SVJC permits staff to engage in the use of force, purportedly as a last
resort. J.A. 163–84. Staff are authorized to apply “physical restraint techniques” to
physically grab the child in a hold akin to a “full nelson.” J.A. 579; see also J.A. 1373–74.
Staff may also bind a child in handcuffs or shackles; at times, staff will place restraints
onto misbehaving children, strapping them onto an “emergency restraint chair,” where they
3
Cognitive behavioral therapy is another common form of psychiatric treatment.
When SVJC’s lead clinician was asked whether any clinicians at SVJC are qualified to
offer cognitive behavioral therapy, she answered, “That, I don’t know. Again, we are not
a therapeutic setting.” J.A. 1497.
7
are trapped until they “tire themselves out.” J.A. 1096, 1375–82. While Appellants
initially challenged the constitutionality of these disciplinary practices on other grounds,
these forms of punishment also tie into Appellants’ claim of inadequate mental health care.
Appellants argue that when children at SVJC act out due to untreated trauma, SVJC has
shown a pattern and practice of quickly resorting to these harsh and punitive measures, re-
traumatizing these children and worsening their underlying conditions. Opening Br. at 19–
22, 44; see also J.A. 1093–94, 1101, 1107–08, 1133–37.
B.
John Doe 4 was born in Honduras in 2001, where he was raised by his maternal
grandparents in San Pedro Sula. J.A. 1115. His father was in prison and his mother
abandoned him when he was young. Id. As early as age seven or eight, Doe 4 saw gang
members kill his friends, beating them with rocks or hacking them apart with machetes.
J.A. 1116–17. When defending himself and his friends, Doe 4 was “hacked with a machete
. . . and cut with a switchblade on his arm.” J.A. 1117. Fearing for his life, he fled with a
friend to the United States. Id. They journeyed through Guatemala and Mexico for a year,
continuing to experience violence along the way. Id. Arriving in Mexico, Doe 4 was
robbed, beaten, and shot in the foot, and he became separated from his friend when they
fled their assailants. J.A. 1118. After recovering at a hospital, Doe 4 traveled to Mexicali.
But he found no safe harbor, being beaten again when burglars robbed the house where he
was living. J.A. 1118. He then went to an immigration home, where he met two others
who crossed with him into the United States. Id. When U.S. Customs and Border
8
Protection officers apprehended him, they slammed his head on the ground while
handcuffing him, knocking him nearly unconscious. Id.Doe 4 was brought to a detention center in Southwest Key Estrella in Arizona, and
later transferred to Children’s Village in New York. Id. Due to behavioral problems, 4 he
was transferred to SVJC in December 2017. 5 J.A. 896, 1119. At SVJC, Doe 4 was
evaluated by Dr. Joseph Gorin, who diagnosed him with post-traumatic stress disorder
(PTSD) and attention deficit hyperactivity disorder (ADHD) based upon Doe 4’s clinical
records. J.A. 894; see also J.A. 1120. Dr. Gorin also noted that Doe 4 had punched a wall
at SVJC, breaking some bones, causing Dr. Gorin to consider Doe 4’s “History of Self-
Harm or Suicide Attempts” a “medium risk factor.” 6 J.A. 891. Ultimately, Dr. Gorin
recommended that Doe 4 be placed in residential treatment. J.A. 894. Despite Dr. Gorin’s
recommendation, and despite Doe 4’s clinician continually advocating for a transfer, SVJC
4
Dr. Lewis’s report confirmed that at one point, however, a staff member at
Children’s Village physically assaulted Doe 4 without provocation. The staff member was
“reprimanded and transferred to another staff secure facility.” J.A. 1119.
5
Doe 4 has since aged out of SVJC, but only after the certification of the class. See
Resp. Br. at 12 (stating that Doe 4 arrived at SVJC in December 2017 and spent “13
months” there); J.A. 21 (certifying class in June 2018). Because “the class of unnamed
persons described in the certification acquire[s] a legal status separate from the interest
asserted by [the named plaintiff],” a live controversy continues to exist, even if the claim
of the named plaintiff becomes moot. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66,
74 (2013) (quoting Sosna v. Iowa, 419 U.S. 393, 399 (1975)).
6
Dr. Gorin stated that Doe 4 punching a wall is the “only report” of his self-harming
behavior at SVJC. J.A. 891. But SVJC records demonstrate that, prior to Dr. Gorin’s
evaluation of Doe 4, Doe 4 tried to tie his shirt around his neck, prompting staff to place
Doe 4 in a suicide vest. J.A. 1124, 1982. Because Dr. Gorin missed this fact—along with
other acts of self-harm that occurred after his evaluation—the report almost certainly
underestimates Doe 4’s risk of self-injury.
9
did not transfer Doe 4 to a residential treatment center and stated that several centers
refused to accept him due to his prior violent behavior. J.A. 883–84; 923, 934, 939.
At SVJC, Doe 4 met with his clinician for individual counseling at least once each
week. J.A. 896–963. He did not report suicidal thoughts in these sessions, though his
clinician observed in July 2018 that Doe 4 had scabbed scratches on his arm; Doe 4
informed the clinician that he had scratched himself over the weekend out of frustration
but denied having suicidal thoughts. J.A. 947. Doe 4 also met with SVJC’s visiting
psychiatrist for prescription medications. Over the course of Doe 4’s time at SVJC, the
psychiatrist prescribed various ADHD medications, anti-depressants (such as Zoloft), and
treatments for insomnia (such as melatonin). J.A. 967– 98.
During his stay at SVJC, Doe 4 was involved in several major disciplinary incidents,
a few involving acts of self-harm. On December 28, 2017—less than a month after being
transferred to SVJC—Doe 4 did not want to eat his dinner. J.A. 872–73, 1124. SVJC staff
ordered him to his room several times, but he refused. J.A. 1124. Eventually, two staff
physically grabbed Doe 4 in a full nelson hold and dragged him to his room as he kicked
and struggled. Id. SVJC then confined him there. Id. While he was isolated, Doe 4 tied
a shirt around his neck, causing staff to intervene and place him in a suicide blanket. J.A.
1124, 1982.
One month later, Doe 4 was disciplined again, this time for failing to trim his nails.
When an SVJC staff member ordered him to do so, and he refused, the supervisor informed
10
Doe 4 that he would “fail to earn his behavioral point” 7 for that hour. J.A. 1000. Doe 4
asked to speak with a supervisor. When the shift supervisor arrived, he told Doe 4 that he
could have his behavioral point if Doe 4 trimmed his nails. Id. Doe 4 refused and argued
with staff for several minutes before eventually punching a staff member. J.A. 1001, 2004.
Staff then grappled Doe 4 in a two-person full-nelson hold before dropping him to the
ground and placing him in handcuffs. J.A. 817, 1001. According to SVJC’s report of the
incident, “[d]ue to [Doe 4’s] past history of attempted self[-]injurious behavior, his outer
layer of clothing was removed to prevent him from fabricating a ligature[] or covering the
window to [his room].” J.A. 2004. Doe 4 nonetheless “engag[ed] in self-harming
behaviors (scratching his arms on his bunk and making marks on his wrists).” J.A. 2014.
Another incident occurred in April 2018. Doe 4 and other residents were talking to
the staff about whether they had lost behavioral points. J.A. 817, 855. During the
conversation, a staff member pushed Doe 4 against the wall and “said he wanted to put
[Doe 4] in restraints.” J.A. 817. Doe 4 asked if they could just keep talking calmly. Id.In response, the staff member told him to go to his room. J.A. 817, 855. Doe 4 agreed, but
as he moved toward his room, a staff member punched him in the ribcage, and other staff
members grabbed him, causing him to resist. J.A. 817, 1006, 1009. Staff members then
twisted Doe 4’s wrists behind his back, pinning him against the wall. J.A. 817. As the
7
Behavioral points are accrued by each resident in SVJC for each hour of good
behavior. J.A. 1097 n.10, 1191. After accumulating points, residents would gain certain
privileges, such as getting the chance to spend an additional hour outside of their room
before bedtime. J.A. 947. Residents can be denied behavioral points for a variety of
reasons, including minor infractions. For example, Doe 4 lost behavioral points because
he purportedly shared a snack with a peer. J.A. 914.
11
staff members fell upon Doe 4, he complained that he couldn’t breathe. J.A. 817. “Good,”
staff responded. Id. One staff member hit Doe 4 in the face before forcing him inside his
room. J.A. 1006. When staff left, Doe 4 began punching the door and sink in his room.
J.A. 1004.
Other small infractions escalated into punishment or violence. Once, Doe 4 asked
for deodorant, but staff members denied the request, resulting in an argument that ended
with Doe 4 punching a staff member, staff members swarming him, grappling him, and
restraining him with handcuffs inside his room. J.A. 768, 866–78, 1010–11. Another time,
Doe 4 wanted to see his clinician. J.A. 1737–38, 1996. When a guard denied the request,
Doe 4 sat in a chair, and the guard ordered him to get out. Id. After Doe 4 declined to do
so, staff confined him to his room for six hours. Id.Over the course of approximately seven months, SVJC removed him from
programming approximately 21 times. J.A. 741–43. In total, Doe 4 spent 176 hours
confined alone in his room. Id. When combined with approximately 34 days of “modified
programming,” in which his mobility and contact with others were severely limited, the
time he spent alone or restricted from contact with others totaled over 800 hours—or more
than a month. Id.12
C.
Other unaccompanied children at SVJC have also experienced and displayed deep
distress from their severe mental health needs. 8 Between June 2015 and May 2018, at least
45 children intentionally hurt themselves or attempted suicide. 9 J.A. 1085–86. John Doe
1 repeatedly cut himself and slammed his head against the wall. J.A. 1096. He talked
about suicide on several occasions, and his clinician observed that he became “more and
more frequently self-harming while at [SVJC].” J.A. 1661. Another child was hospitalized
after he had been placed in a suicide blanket but “removed [the] strings from the blanket
and tied them tightly around his neck and wrists”; thirty minutes later, he tried to drown
himself in the toilet. J.A. 1484.
A former staff member at SVJC, Anna Wykes, testified that other staff reacted with
indifference when children harmed themselves. She testified that when shift supervisors
learned of a child self-harming, they responded with comments like “let them cut
themselves” and “[l]et them go bleed out.” J.A. 1176, 1178. A supervisor once “laughed
in [Wykes’s] face” when she reported a child’s suicidal thoughts, and he refused to check
on the child. J.A. 1237. Wykes also described a “happy-go-lucky” youth who arrived at
8
The Commission argues that evidence relating to other children at SVJC is
“irrelevant” because John Doe 4 must present a viable claim before the class can seek relief.
Resp. Br. at 5–7. But facts about other class members are plainly relevant to the overall
class allegations, and the district court also correctly noted that “[e]vidence related to non-
class members is plainly relevant to show an unconstitutional custom or practice,” even if
Doe 4 were raising a claim solely on his own behalf. J.A. 805.
9
This figure appears to include “all youth” at SVJC, not just unaccompanied
immigrant children. J.A. 1085–86.
13
SVJC and went “completely [] downhill.” J.A. 1188–89. The youth began harming
himself, “exhibiting behaviors like writing [in] his own blood.” Id. When this same child
displayed other erratic behavior, like smearing his ejaculate on his face, SVJC staff
members “jok[ed] about it.” J.A. 1189. She also saw staff “poking fun” at a child “sitting
in [the emergency restraint] chair that he can’t even move from for six hours . . . while he’s
[] bleeding from his arm.” J.A. 1186. While Wykes testified that SVJC began
implementing trauma training for staff around the time she left the facility, in her
experience, “the techniques [] suggested were not implemented, and the training did not
have any effect on the procedures or practices at SVJC.” J.A. 1196.
Appellants’ expert, Dr. Gregory Lewis, reviewed the disciplinary records for John Does
1, 2, 3, and 4 and concluded that the facility failed to treat the children there in a manner
accounting for the trauma that they had experienced. J.A. 1132–36. Instead, Dr. Lewis
observed that the “predominant approach utilized at SVJC is that of punishment and
behavioral control through such methods as solitary confinement, physical restraint,
strapping to a restraint chair, and loss of behavioral levels. These approaches are not only
unsuccessful, but are extremely detrimental to detained, traumatized youth—especially
UACs.” J.A. 1136.
D.
In October 2017, Appellants filed a class action complaint on behalf of
unaccompanied immigrant children detained at SVJC, naming the Shenandoah Valley
Juvenile Center Commission as the sole defendant. J.A. 26. Appellants sought declaratory
and injunctive relief under 42 U.S.C. § 1983, alleging that the Commission engaged in
14
unlawful patterns of conduct through: (1) excessive use of force, physical restraints, and
solitary confinement; (2) failing to provide a constitutionally adequate level of care for
plaintiffs’ serious mental health needs; and (3) discrimination on the basis of race and
national origin. J.A. 26–53.
The district court granted plaintiffs’ consent motion for class certification. It
defined the class as:
Latino unaccompanied alien children (UACs) who are currently detained or
will be detained in the future at Shenandoah Valley Juvenile Center who
either: (i) have been, are, or will be subject to the disciplinary policies and
practices used by SVJC staff; or (ii) have needed, currently need, or will in
the future need care and treatment for mental health problems while detained
at SVJC.
J.A. 24 (footnotes omitted). After certification, named plaintiff Doe 1—along with
substitute plaintiffs Does 2 and 3—were transferred or removed from SVJC, and Doe 4
became the substituted class representative. J.A. 10. Following discovery, the
Commission filed a motion for summary judgment and motions in limine to exclude
Appellants’ expert testimony and testimony about non-class members. J.A. 12, 787–806.
At the summary judgment hearing, Appellants withdrew their claim of discrimination
based on race and national origin. J.A. 762 n.3.
The court granted in part and denied in part the Commission’s motion for summary
judgment. Treating Appellants’ solitary confinement allegation as a conditions of
confinement claim, the court denied summary judgment with respect to Appellants’ claims
for excessive force and unconstitutional conditions of confinement, finding that both
claims presented genuine disputes of material fact. J.A. 777–79. But the court granted the
15
Commission summary judgment with respect to Appellants’ claim that SVJC provided
inadequate mental health care. J.A. 779–81. In doing so, it applied the deliberate
indifference standard, summarily stating that “courts have repeatedly applied the []
standard to civil detainees, including immigrant detainees.” J.A. 779. The court then
determined that the Commission did not display deliberate indifference because it provided
an initial psychological evaluation that diagnosed Doe 4 with PTSD and ADHD,
medication for those ailments, individual counseling, group counseling, visits by a
psychiatrist at least every six weeks, and “[u]nlimited additional meetings with the
psychiatrist.” J.A. 781. The court also noted that while the psychologist who diagnosed
Doe 4 recommended that he be placed in a residential treatment center, the court found “no
indication in that recommendation that failure to secure such a placement would result in
any harm or risk of harm to Doe 4.” Id. Further, the court concluded that SVJC was not
“deliberately indifferent” to the recommendation because it attempted to transfer Doe 4 to
such a facility, though it was ultimately unsuccessful in doing so. Id.The court also granted in part and denied in part the Commission’s motions in limine
to exclude expert testimony. Among other things, the court excluded Dr. Gregory Lewis’s
testimony about the mental health care provided by SVJC, reasoning that Dr. Lewis’s
testimony was “irrelevant” because the court was granting summary judgment to SVJC
with respect to the adequacy of mental health services. J.A. 800. The court also stated that
Dr. Lewis’s opinions on SVJC’s failure to apply trauma-informed care were “inadmissible
because this simply is not the minimum constitutional standard.” Id. But the court did
permit Dr. Lewis’s testimony “to the extent that he has opinions about harm to members
16
of the class and the cause of that harm from any unconstitutional custom or practice.” J.A.
801. Similarly, the court excluded Dr. Andrea Weisman’s opinions about the mental health
care provided, considering it irrelevant because the court was granting summary judgment
and because the court considered Dr. Weisman’s testimony to be about “standards that are
inapplicable to the defendant and beyond what is constitutionally required.” J.A. 797.
After the court issued summary judgment, Appellants abandoned their excessive
force and conditions of confinement claims. J.A. 17–18. Appellants then timely appealed
the court’s grant of summary judgment with respect to their claim of inadequate mental
health care. J.A. 810–12.
II.
We review the district court’s grant of summary judgment de novo. Carter v.
Fleming, 879 F.3d 132, 139 (4th Cir. 2018). Summary judgment is only appropriate when,
viewing the facts in the light most favorable to the nonmoving party, “there is no genuine
dispute as to any material facts and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. Proc. 56(a). The Court must draw “all justifiable inferences . . . in [the
nonmoving party’s] favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
A.
We begin with standing. To satisfy Article III’s standing requirements, a plaintiff
must show that (1) it has suffered an injury in fact; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v.
17
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). The Commission argues
that Appellants lack standing—specifically, redressability—because they did not name
ORR as a defendant. According to the Commission, ORR retains ultimate responsibility
for Appellants’ placement and mental health treatment, and the absence of ORR means that
this suit cannot redress Appellants’ injuries. Resp. Br. at 17–20. Appellants answer that
their injuries result from the actions of SVJC, not ORR, and that Appellants seek relief that
would require SVJC to modify how it cares for those within its facility. Reply Br. at 3–5.
Appellants meet the requirements for redressability. These requirements are “not
onerous.” Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 189 (4th Cir. 2018).
Appellants “need not show that a favorable decision will relieve [their] every injury.”
Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (quoting Larson
v. Valente, 456 U.S. 228, 243 n.15 (1982)). Rather, they “need only show that they
personally would benefit in a tangible way from the court’s intervention.” Id. (internal
quotation marks omitted). Appellants allege that they have suffered physical and mental
harm from the Commission’s failure to provide adequate mental health care. To remedy
these harms, Appellants seek declaratory and injunctive relief to require the Commission
to implement a “trauma-informed” standard of care in its facility. Because Appellants’
proposed remedy focuses on the treatment and services provided by SVJC, Appellants seek
relief likely to redress their injuries. 10
10
The Supreme Court has applied a similar principle in the context of habeas
actions. In habeas “challenges to present physical confinement,” the Court holds that “the
immediate custodian, not a supervisory official who exercises legal control, is the proper
(Continued)
18
The Commission insists that ORR retains custody and ultimate authority over
mental health care for children at SVJC, pointing to the statutory and regulatory framework
governing unaccompanied children, as well as the cooperative agreement between SVJC
and ORR. See 6 U.S.C. § 279(b)(1)(A); 45 C.F.R. §§ 410.102(a), 410.207; J.A. 126, 136–
38. But the Commission overstates the role of ORR in the day-to-day treatment of children
at SVJC. Though ORR may be responsible for “coordinating and implementing the care
and placement of UACs,” ORR coordinates this care by placing children in facilities that
meet minimum standards of care. 6 U.S.C. § 279(b)(1)(G)–(H); 45 C.F.R. §§ 410.102(c),
410.200–410.209. Thus, while ORR may be charged with placing children in facilities, 45
C.F.R. § 410.201, and supervising these facilities, 6 U.S.C. § 279(b)(1)(G), ORR is not
responsible for directly implementing the care and treatment at the facility—that job is
SVJC’s. “[SVJC] must provide residential shelter and services for [UACs] in compliance
with respective State residential care licensing requirements, the Flores settlement
agreement, pertinent federal laws and regulations, and the ORR[’s] policies and
procedures,” and “must provide . . . appropriate mental health interventions when
necessary.” J.A. 130; see also Flores v. Sessions, 862 F.3d 863, 877 (9th Cir. 2017) (“The
HSA and TVPRA address ORR’s obligation to provide for the welfare of unaccompanied
minors, but that is not tantamount to giving the agency absolute or exclusive power over
their lives while in government custody.”).
respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); see also United States v.
Moussaoui, 382 F.3d 453, 464 (4th Cir. 2004).
19
While ORR approval may be needed for SVJC to hire specialized psychiatrists or
to implement particular mental health therapies, J.A. 126, 136–38, Appellants also seek
forms of relief not subject to ORR approval—i.e., requiring SVJC staff to comply with the
facility’s own policies or changes in how SVJC’s staff interact with the children in their
care, such as minimizing punitive responses in favor of verbal engagement and de-
escalation. See J.A. 1133 (“[S]taff trained in trauma-informed care rely less on the use of
restraint and seclusion . . . .”).
Even for the forms of relief that may require ORR approval, ORR’s final
authorization does not pose a barrier to redressability because ORR’s actions are not wholly
independent from those of SVJC. The Supreme Court held similarly in Bennett v. Spear,
520 U.S. 154, 159 (1997). In Bennett, plaintiffs were districts and ranch operators
receiving water from an irrigation project, who challenged a biological opinion issued by
the Fish and Wildlife Service concerning the effect of that irrigation project on endangered
fish. Id. at 159. Like the Commission here, the Government challenged plaintiffs’
standing, arguing that the challenge to the Fish and Wildlife Service’s biological opinion
did not redress the claimed injury because the Bureau of Reclamation “retains ultimate
responsibility for determining whether and how a proposed action [on the irrigation
project] shall go forward.” Id. at 168. The Court rejected this argument. While
redressability is not established if the injury complained of is the result of “independent
action of some third party not before the court,” id. at 169 (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)) (emphasis added in Bennett), the Court observed that
the Bureau of Reclamation’s action was not independent of the biological opinion, even if
20
the Bureau had final say. “[W]hile the Service’s Biological Opinion theoretically serves
an ‘advisory function,’ in reality it has a powerful coercive effect on the [Bureau]” because
the statutory scheme “presupposes that the biological opinion will play a central role in the
[Bureau’s] decisionmaking process.” Id. (internal citations omitted).
Here, ORR is similarly situated to the Bureau of Reclamation in Bennett. While it
may have final say over the provision of certain medical or mental health services, its
decision is not independent of that made by SVJC. For one, ORR’s decision-making is
limited to approving measures—that necessarily implies that SVJC, the proposing entity,
plays the determinative role in deciding what treatment measures are proposed for
implementation. See J.A. 1452–53 (explaining that while ORR “would have to approve a
clinician’s referral for a psychological evaluation,” “[t]ypically, [ORR] will go with the
referral of the clinician”). Additionally, ORR’s approval of certain medical staff or
services is necessary to ensure that unaccompanied children reside “in facilities that are
safe and sanitary and that are consistent with ORR’s concern for the particular vulnerability
of minors.” 45 C.F.R. § 410.102. Thus, Appellants’ failure to name ORR as a defendant
does not deprive their claims of redressability because ORR would have to approve any
changes SVJC proposes to ensure that its unaccompanied children are given a
constitutionally adequate level of mental health care.
The Commission also claims that Appellants lack redressability because “ORR
could simply transfer class members to another facility which, like SVJC, provides mental
health care and other services.” Resp. Br. at 19. But Appellants do not challenge their
placement in SVJC—they challenge the adequacy of the services they receive at SVJC.
21
Reply Br. at 3. Though ORR could transfer Appellants from SVJC to other facilities, a
defendant cannot challenge a plaintiff’s standing on the speculation that a third party might
do something that affects the relief provided. See Sierra Club, 899 F.3d at 285 (“Just as
Petitioners cannot establish redressability via speculation, NPS cannot simply hypothesize
as to possible future harm to overcome the fact that a favorable ruling would redress
Petitioners’ only injury at this time.”).
Finally, the Commission argues that “ORR’s absence also means that SVJC could
be subject to a court order that conflicts with its legal obligations under Flores and its
Cooperative Agreement with ORR.” Resp. Br. at 20. But the Flores Settlement 11 imposes
a floor, not a ceiling, for the services required for children in the government’s care. See
Flores, 862 F.3d at 866. SVJC’s cooperative agreement likewise exists to ensure that SVJC
meets those minimum requirements. See J.A. 131 (requiring “appropriate mental health
interventions when necessary”). Thus, neither the Flores Settlement nor SVJC’s
cooperative agreement prevent Appellants from redressing their alleged injuries through
the relief they seek from SVJC.
B.
“[W]hen the State takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to assume some responsibility
11
Reached in 1997 with the approval of a federal court, the Flores Settlement
established a “nationwide policy” setting the “minimum standards for the detention,
housing, and release of non-citizen juveniles who are detained by the government,” and it
requires the government to pursue a “‘general policy favoring release’ of such juveniles.”
Flores v. Sessions, 862 F.3d 863, 866 (9th Cir. 2017).
22
for his safety and general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 199–200 (1989). This includes the responsibility to provide for a person’s
“basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety.”
Id. at 200. The responsibility to provide medical care includes care for a person’s mental
health: “We see no underlying distinction between the right to medical care for physical
ills and its psychological or psychiatric counterpart.” Bowring v. Godwin, 551 F.2d 44, 47
(4th Cir. 1977). While a detainee’s right to adequate mental health care is clear, this Court
has not yet decided what standard to use to determine the adequacy of mental health care
provided to a detained immigrant child.
Appellants urge us to apply Youngberg’s standard of professional judgment. In
Youngberg, the Supreme Court considered the Fourteenth Amendment protections
guaranteed to a mentally disabled person involuntarily committed to a state institution. The
plaintiff claimed that the institution failed to provide safe conditions of confinement,
unduly restricted his physical freedom, and failed to adequately train him in necessary
skills. Youngberg v. Romeo, 457 U.S. 307, 320–23 (1982). Youngberg held that “liability
may be imposed only when the decision by the professional” represents a “substantial
departure from accepted professional judgment.” Youngberg 457 U.S. at 320–23.
In Patten, this Court applied the Youngberg standard to an involuntarily committed
psychiatric patient’s claim of inadequate medical care. We concluded that there are
“sufficient differences” between “pre-trial detainees” and “involuntarily committed
psychiatric patients” to justify the application of Youngberg’s professional judgment
standard for the latter. This Court explained:
23
The most obvious and most important difference is the reason for which the
person has been taken into custody. . . . One of the main purposes of such
commitment is, of course, to provide treatment. A pre-trial detainee,
however, is taken into custody because the state believes the detainee has
committed a crime, and the detainee is kept in custody to ensure that he
appears for trial and serves any sentence that might ultimately be imposed.
Patten, 274 F.3d at 840–41 (internal citations omitted). We then offered two other reasons
that justified the use of the Youngberg standard instead of deliberate indifference:
[P]re-trial detainees generally are housed in jails or prisons staffed by law
enforcement officials, while involuntarily committed patients generally are
housed in hospitals staffed by medical professionals. Finally, while some
involuntarily committed patients are confined for short periods of time, many
patients face lengthy and even lifelong confinement. Pre-trial detainees,
however, usually retain that status for a relatively short period of time, until
released on bond or until the resolution of the charges against them.
Id. at 841.
Applying the same analysis, we hold that the Youngberg standard governs this case.
The statutory and regulatory scheme governing unaccompanied children expressly states
that these children are held to give them care. Such children “shall be promptly placed in
the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A),
and any facility housing them must be “capable of providing for the child’s physical and
mental well-being.” 8 U.S.C. § 1232(c)(3)(A). Cf. Youngberg, 457 U.S. at 320 n.27
(“[T]he purpose of respondent’s commitment was to provide reasonable care and safety,
conditions not available to him outside an institution.”). When placing these children in
settings that will care for them, ORR is responsible for ensuring that the children are likely
to appear for any legal proceedings, protected from individuals who might victimize them,
and not “likely to pose a danger to themselves or others.” 6 U.S.C. § 279(b)(2)(A). To
24
that end, ORR “shall hold UACs in facilities that are safe and sanitary and that are
consistent with ORR’s concern for the particular vulnerability of minors,” 45 C.F.R.
§ 410.102(c), and “[w]ithin all placements, UACs shall be treated with dignity, respect,
and special concern for their particular vulnerability.” 45 C.F.R. § 410.102(d). These
duties are reflected in SVJC’s cooperative agreement with ORR, which tasks SVJC with
being a “care provider” that will provide children with “suitable living conditions,”
including “[a]ppropriate routine medical care . . . emergency health care services . . . [and]
appropriate mental health interventions when necessary.” J.A. 1846.
The Commission argues that this Court should (as the trial court did) apply the
standard of deliberate indifference used when considering claims of inadequate medical
care raised by pretrial detainees. 12 Under this standard, a plaintiff must prove: (1) that the
detainee had an objectively serious medical need; and (2) that the official subjectively knew
12
The dissent goes one step further, citing Reno v. Flores, 507 U.S. 292 (1993), to
suggest that substantive due process claims by an unaccompanied child might be subject
to rational basis review. But Flores did not go so far. In Flores, the Supreme Court
observed that “substantive due process analysis must begin with a careful description of
the asserted right.” Id. at 302 (internal quotation marks omitted). There, the right being
claimed was “the alleged right of a child who has no available parent, close relative, or
legal guardian . . . to be placed in the custody of a willing-and-able private custodian rather
than of [the] government[.]” Id. Because the Court did not consider that to be a
fundamental right, the Court approved of the policy maintaining government custody as
rationally connected to the government’s interest in preserving child welfare. Id.Here, in contrast, Appellants assert the right of unaccompanied immigrant children
to receive adequate care for their serious medical needs while held by the government. The
fundamental right to adequate medical care while in government custody is well
established. See, e.g., DeShaney, 489 U.S. at 199–200. The question here is therefore not
whether the asserted right is supported by substantive due process, but what measurement
of culpability to use to determine when an unaccompanied child has been deprived of that
fundamental right.
25
of the need and disregarded it. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also
Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (applying the same standard to a pretrial
detainee under the Fourteenth Amendment); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir.
1988) (same).
The Commission further argues that Patten’s reasoning counsels against applying
Youngberg here. First, the Commission claims that children are placed in SVJC primarily
for security reasons, not for treatment. Resp. Br. at 23 (citing 45 C.F.R. § 410.203(a)). But
this argument presents a false binary. In Youngberg, the plaintiff was likewise
institutionalized because his mother could not “control his violence.” Youngberg, 457 U.S.
at 309. Yet, the need to institutionalize the plaintiff for security reasons did not undermine
the fact that he also needed to be committed for treatment. The Supreme Court explained
that “the purpose of respondent’s commitment was to provide reasonable care and
safety”—making plain that the two purposes are not mutually exclusive. Id. at 320 n.27
(emphasis added). Indeed, the aims of treatment and safety are intertwined in this case. If
a child is held at SVJC until he no longer behaves aggressively, and this aggressive
behavior arises from an underlying traumatic condition, then it follows that SVJC’s efforts
to improve a child’s behavior should also treat the child’s underlying trauma that gives rise
to the misbehavior. See, e.g., J.A. 1967 (“For unaccompanied children, [their history of
trauma] often plays a role in the legal and behavioral problems that bring them in contact
with . . . secure placement.”).
Similarly, the Commission contends that children are not placed at SVJC for
treatment because they are “not placed at SVJC upon the advice of a medical professional.”
26
Resp. Br. at 24. But the record shows that licensed mental health professionals do provide
input on whether a child is placed at SVJC. SVJC’s mental health clinicians evaluate
prospective referrals to see if their facility can meet those children’s mental health needs,
and they may decline to accept a child if they determine that SVJC’s services provide
inadequate treatment. J.A. 1301–03. By explicitly accounting for the mental health needs
of the children it accepts, SVJC’s intake process confirms its intent to treat those needs for
children in its care.
Next, the Commission argues that Youngberg does not apply because SVJC is a
juvenile detention center, not a hospital or therapeutic setting. Resp. Br. at 25. But the
nature of the facility is not dispositive. In Matherly v. Andrews, we applied the Youngberg
standard to a person involuntarily committed to a prison for a program designed to treat his
dangerousness as a sexual offender. 859 F.3d 264, 274–75 (4th Cir. 2017). The nature of
the facility is secondary to the reason a person is confined in it.
The Commission also argues that children are not placed in SVJC for treatment
because the children placed there are released 13 based on criteria unrelated to treatment.
13
Both parties also discuss the length of detention as a factor relevant to determining
whether Youngberg should apply. See Resp. Br. at 26, 30; Reply Br. at 12. While Patten
did discuss the length of detention to distinguish individuals involuntarily detained at a
psychiatric hospital from pretrial detainees, the length of detention does not necessarily
distinguish psychiatric detention from other forms of civil detention, such as immigration
detention. “[S]ome involuntarily committed patients are confined for short periods of
time.” Patten, 274 F.3d at 841. And some immigrant detainees are confined for long
periods of time. See Jennings v. Rodriguez, 138 S. Ct. 830, 860 (2018) (Breyer, J.,
dissenting) (observing that suit was brought by class of immigrants held for an average of
one year in detention); see also Reply Br. at 12 (noting that Doe 4 spent about 13 months
in SVJC).
27
But the regulations and cooperative agreement cited by the Commission do consider the
child’s health and treatment needs in determining whether a child should be released. ORR
must review each child’s placement every month “to determine whether a new level of care
is more appropriate,” 45 C.F.R. § 410.203(c), and ORR must make that decision in light of
the child’s “age and special needs.” See 45 C.F.R. § 410.203(c)–(d). Meanwhile, SVJC’s
cooperative agreement requires it to house the children “until they are released to a sponsor,
obtain immigration legal relief, age out, or are discharged by the Department of Homeland
Security,” but it states in the very same sentence that it does so “taking into consideration
the risk of harm to the [child] or others.” J.A. 127–28; see also 45 C.F.R. § 410.301(a)
(“ORR releases a UAC to an approved sponsor without unnecessary delay, but may
continue to retain custody of a UAC if ORR determines that continued custody is necessary
to ensure the UAC’s safety or the safety of others . . . .”). These conditions reinforce the
conclusion that mental health treatment is a primary objective for the traumatized youth
placed at SVJC.
Finally, the Commission asks this Court to follow other circuits that have treated
immigrant detainees as equivalent to pretrial detainees, applying the deliberate indifference
standard. See Resp. Br. at 22–23 (collecting cases). But those cases all dealt with adults
detained for enforcement proceedings such as removal. See, e.g., E. D. v. Sharkey, 928
28
F.3d 299, 306–07 (3d Cir. 2019). None dealt with unaccompanied immigrant children,
whom the Government holds for the purpose of providing care. 14
Notably, neither the Commission nor the district court grapple with the fact that this
case is about children. The Supreme Court has long recognized that children are
psychologically and developmentally different from adults, so much so that in the context
of sentencing, “children are constitutionally different.” Miller v. Alabama, 567 U.S. 460,
471 (2012); see also, e.g., Graham v. Fla., 560 U.S. 48, 67–75 (2010); Roper v. Simmons,
543 U.S. 551, 569–75 (2005); Johnson v. Texas, 509 U.S. 350, 367 (1993); Eddings v.
Oklahoma, 455 U.S. 104, 115–16 (1982). “[Y]outh is more than a chronological fact. It
is a time and condition of life when a person may be most susceptible to influence and
psychological damage.” Eddings, 455 U.S. at 115. “It is the interest of youth itself, and
of the whole community, that children be both safeguarded from abuses and given
opportunities for growth into free and independent well-developed” individuals. Prince v.
Massachusetts, 321 U.S. 158, 165 (1944). Given “the peculiar vulnerability of children,”
Bellotti v. Baird, 443 U.S. 622, 634 (1979), this Court has likewise recognized the state’s
strong interest in “protecting the youngest members of society from harm.” Schleifer by
14
The Commission does point to two criminal detention cases involving children
where the courts did not invoke Youngberg. See Resp. Br. at 31–32 (citing A. M. v. Lucerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572 (3d Cir. 2004); A.J. by L.B. v. Kierst, 56 F.3d 849(8th Cir. 1995)). But neither case involved unaccompanied immigrant children. Further,
A.J. by L.B. stated that it “cannot ignore the reality that assessments of juvenile conditions
of confinement are necessarily different from those relevant to assessments of adult
conditions of confinement.” 56 F.3d at 854. And while A.M. applied the deliberate
indifference standard, it did so without any analysis addressing the propriety of the standard
in a case involving children. 372 F.3d at 587–88.
29
Schleifer v. City of Charlottesville, 159 F.3d 843, 848 (4th Cir. 1998). These concerns are
echoed in the regulatory scheme, which requires unaccompanied children to be treated with
“special concern for their particular vulnerability.” 45 C.F.R. § 410.102(c)–(d). Thus, the
Youngberg standard is particularly warranted here, given the unique psychological needs
of children and the state’s corresponding duty to care for them.
Accordingly, we hold that a facility caring for an unaccompanied child fails to
provide a constitutionally adequate level of mental health care if it substantially departs
from accepted professional standards. To be clear, this standard requires more than
negligence. “[E]vidence establishing mere departures from the applicable standard of care
is insufficient to show a constitutional violation[.]” Patten, 274 F.3d at 845. The evidence
must show “such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base the decision
on such a judgment.” Youngberg, 457 U.S. at 323. Under this standard, courts do not
determine the “correct” or “most appropriate” medical decision. Patten, 274 F.3d at 845
(internal citation and quotation marks omitted). “Instead, the proper inquiry is whether the
decision was so completely out of professional bounds as to make it explicable only as an
arbitrary, nonprofessional one.” Id. (internal citation and quotation marks omitted). By
applying this standard, a court “defers to the necessarily subjective aspects of the decisional
process of institutional medical professionals and accords those decisions the presumption
of validity due them.” Id. Nonetheless, a decision earns this deference only if it reflects
an actual exercise of medical judgment. See Inmates of Allegheny Cnty. Jail v. Pierce, 612
F.2d 754, 762 (3d Cir. 1979).
30
We have not yet explained the precise difference between the standards of
professional judgment and deliberate indifference. See Patten, 274 F.3d at 843 (declining
to determine “how far the professional judgment standard falls from negligence on the
culpability continuum”); see also Bowring, 551 F.2d at 48 (applying the standard of
deliberate indifference to a prisoner’s claim of inadequate psychiatric care yet stating that
the issue “remains a question of sound professional judgment”). But one difference
between the two standards is that Youngberg does not require proof of subjective intent.
Compare Youngberg, 457 U.S. at 323 with Farmer, 511 U.S. at 837. See also Rosalie
Berger Levinson, Wherefore Art Thou Romeo: Revitalizing Youngberg’s Protection of
Liberty for the Civilly Committed, 54 B.C. L. Rev. 535, 557, 570–574, 577 (2013)
(describing Youngberg as an “objective standard” and “objective test”). Thus, the standard
of professional judgment presents a lower standard of culpability compared to the Eighth
Amendment standard for deliberate indifference.
De’lonta I and De’lonta II offer further guidance for determining when a defendant
has adequately exercised professional judgment. In De’lonta I, a transgender prisoner with
gender identity disorder (“GID”) brought a § 1983 action alleging that the Virginia
Department of Corrections (“VDOC”) failed to adequately care for her serious mental
health needs. De’lonta v. Angelone, 330 F.3d 630, 631 (4th Cir. 2003) (“De’lonta I”). The
district court granted the prison officials’ motion to dismiss the complaint, viewing the suit
as “nothing more than a challenge to the medical judgment of VDOC doctors.” Id. at 634–
35. We reversed the district court’s dismissal. Though a VDOC doctor wrote a
memorandum stating that he did not believe referral to a gender specialist for hormone
31
therapy to be a “medical necessity,” the doctor forwarded the request to VDOC’s chief
physician for review, and the chief physician’s response revealed that the officials did not
professionally determine whether the treatment was medically necessary:
Dr. Smith’s response to the memo, which states that there was no gender
specialist at MCV and that VDOC’s policy is not to provide hormone therapy
to prisoners, supports the inference that Appellees’ refusal to provide
hormone treatment to De’lonta was based solely on the Policy rather than on
a medical judgment concerning De’lonta’s specific circumstances.
De’lonta I, 330 F.3d at 635. Even applying the higher standard of deliberate indifference,
this Court noted that a defendant is required to decide treatment based on a medical
judgment concerning the individual’s specific needs, not based on policy or what services
were ordinarily offered at the facility. See also Jackson v. Lightsey, 775 F.3d 170, 179 (4th
Cir. 2014) (“[F]ailure to provide the level of care that a treating physician himself believes
is necessary . . . clearly present[s] a triable claim of deliberate indifference”).
In De’lonta II, the same prisoner once again challenged the adequacy of her care.
De’lonta v. Johnson, 708 F.3d 520, 522 (4th Cir. 2013) (“De’lonta II”). Though VDOC
provided regular psychological counseling, hormone therapy, and permitted the prisoner
to dress and live as a woman to the full extent permitted in prison, the inmate still reported
powerful urges to self-mutilate and self-castrate, and she was hospitalized after attempting
to do so. Id. This time, she challenged VDOC’s refusal to allow her consultation for sex
reassignment surgery. Id. Again, the district court granted VDOC’s motion to dismiss—
and again, this Court reversed. When determining whether the inmate plausibly alleged
that VDOC acted with deliberate indifference, this Court relied upon the “Benjamin
Standards of Care,” the standards “published by the World Professional Association for
32
Transgender Health” laying out the “generally accepted protocols for the treatment of
GID.” Id. at 522–23. These standards established a “triadic treatment sequence” of: (1)
hormone therapy; (2) real-life experience living as a member of the opposite sex; and (3)
sex reassignment surgery. Id. at 523. Although VDOC met the first two parts of the
Benjamin Standards, “provid[ing] De’lonta with some treatment consistent with the GID
Standards of Care,” we held that “it does not follow that they have necessarily provided
her with constitutionally adequate treatment.” Id. at 526 (emphasis in original). While a
detainee “does not enjoy a constitutional right to the treatment of his or her choice, the
treatment a prison facility does provide must nevertheless be adequate to address the
prisoner’s serious medical need.” Id.; see also De’lonta I, 330 F.3d at 635 (holding that
the plaintiff plausibly alleged a claim for inadequate treatment, even though she “received
counseling and anti-depressants”). Though we did not decide De’lonta II on the merits,
we declined to dismiss the prisoner’s claim as a matter of law simply because the prison
provided some form of treatment. Id.To apply Youngberg to a claim of inadequate medical care, then, a court must do
more than determine that some treatment has been provided—it must determine whether
the treatment provided is adequate to address a person’s needs under a relevant standard of
professional judgment.
C.
Having determined that the Youngberg standard applies to Appellants’ claim, we
now consider whether trauma-informed care represents a relevant standard of professional
judgment. A trauma-informed system of care is one that “provide[s] an environment in
33
which youth feel safe, are assisted in coping when past traumatic experiences are triggered,
and in which exposure to potentially retraumatizing reminders or events is reduced.” J.A.
1132. Implementing a trauma-informed system would require:
appropriate trauma-informed policies and procedures; appropriate methods
of screening, assessing, and treating traumatized youths; culturally sensitive,
trauma-informed programs that strengthen the resilience of youth; and
culturally sensitive, trauma-informed staff education and training.
Id. Dr. Lewis also states that a trauma-informed approach has three implications: (1)
“appropriate [clinical or therapeutic] interventions,” (2) “a more global or systems
perspective” to consider less restrictive alternatives to detention, 15 and (3) staff “rely[ing]
less on the use of restraint and seclusion.” J.A. 1132–33; see also Reply Br. at 14 n.8
(stating that, in addition to clinical care, a trauma-informed approach “must ensure that
non-clinical staff respond to children’s behavior in a way that does not inflict additional
psychological damage”).
The Commission claims that trauma-informed care represents an aspirational
standard, not an accepted standard of professional judgment. 16 Resp. Br. at 38–41. The
15
Appellants do not appear to challenge the decision to place children in SVJC. See
Reply Br. at 3–5 (stating that Appellants “seek declaratory and injunctive relief that would
require SVJC to modify its conduct to satisfy constitutionally adequate standards.
Appellants have [not] alleged that ORR violated their rights by transferring them to
SVJC”).
16
The Commission suggests that this Court should look instead to the requirements
set by the Flores Settlement for the minimum standards of care. Resp. Br. at 40–41. But
the Flores Settlement requires facilities to provide “appropriate mental health interventions
when necessary” without defining when interventions are “appropriate” or “necessary.”
Flores Settlement, Ex. 1 at ¶¶ A.2., A.7. The Flores Settlement’s minimum standards do
not set out an alternative standard of psychiatric care.
34
district court’s order on the Commission’s motions in limine suggests that it thought the
same. First, both the court and the Commission claim that trauma-informed care “has only
been implemented in a handful of states, including Missouri, New York, Ohio, North
Carolina, and Kentucky.” J.A. 800. But they misread Appellants’ supplemental expert
report, which lists those five states as examples, not as an exhaustive set. J.A. 557 n.2
(“For example, Missouri implemented . . . .”) (emphasis added). On appeal, Appellants
and Amici cite seven additional states as further examples. Reply Br. at 15 n.9 (citing West
Virginia and Wisconsin); Br. of Current and Former State Attorneys General, Elected
Prosecutors, and Corrections, Criminal Justice, and Disability Rights Leaders, as Amici
Curiae Supporting Appellants 12 (hereinafter “Br. of Criminal Justice and Disability
Rights Amici”) (citing California, Florida, Massachusetts, Connecticut, and Pennsylvania).
Second, the district court cited Willis v. Palmer to conclude that trauma-informed care is
“cutting edge” rather than well established. No. C12-4086, 2018 WL 3966959, at *12
(N.D. Iowa Aug. 17, 2018). But Willis holds little weight because the report it cited
described trauma-informed care as “cutting edge” with respect to treatment of sex
offenders, not to the treatment of children. Willis, 2018 WL 3966959, at *12.
For children, “[t]rauma-informed care is already in widespread use in juvenile
detention systems and is considered the accepted standard of professional care.” Br. of
Criminal Justice and Disability Rights Amici at 12; see also J.A. 1131. The Department
of Justice considers trauma-informed care to be an appropriate standard for juvenile
justice, see U.S. Dep’t of Justice, Report of the Attorney General’s National Task
Force on Children Exposed to Violence (2012), https://perma.cc/G3F6-ACW2 (saved as
35
ECF opinion attachment), and multiple national organizations endorse trauma-informed
care as a governing professional standard for children in detention, including the Substance
Abuse and Mental Health Services Administration, the National Council of Juvenile and
Family Court Judges, and the National Center for Mental Health and Juvenile Justice. See,
e.g., Elizabeth Stoffel, et al., Assessing Trauma for Juvenile and Family Courts, Nat’l
Council of Juv. & Fam. Ct. Judges (2019), https://perma.cc/K3SZ-V62X (saved as ECF
opinion attachment); Nat’l Ctr. for Mental Health & Juv. Just., Strengthening Our Future:
Key Elements to Developing a Trauma-Informed Juvenile Justice Diversion Program for
Youth with Behavioral Health Conditions (2016), https://perma.cc/4LZ4-BE7M (saved as
ECF opinion attachment).
We leave it to the trial court to determine in the first instance to what extent, if any,
the trauma-informed approach should be incorporated into the professional judgment
standard in this particular case. We observe only that trauma-informed care is part of the
landscape of relevant evidence to be considered by the trial court in making this
determination.
D.
We now turn to whether summary judgment was appropriate. Because the
Youngberg standard governs Appellants’ claim, the district court erred by applying the
standard of deliberate indifference. In doing so, the district court also excluded evidence
relevant under Youngberg, including Dr. Lewis’s opinions concerning trauma-informed
care and Dr. Weisman’s opinions which were not presented as part of the record on appeal.
J.A. 795–801.
36
Moreover, the district court misread the record and failed to construe it in the light
most favorable to the nonmoving party. 17 The court justified summary judgment in part
because it did not consider Doe 4 to be at risk of serious harm. It reasoned that Doe 4 did
not need additional psychiatric care 18 because he “admits that he never thought of
committing suicide, that he had no thoughts of self-harm, and that the only incident where
he harmed himself was when he punched a wall in anger.” J.A. 781. But SVJC’s own
records contradict this. They show that Doe 4 once attempted suicide when he tied a shirt
around his neck, causing staff to intervene and place him in a suicide vest. J.A. 1124, 1982.
A month later, Doe 4 “engag[ed] in self-harming behaviors (scratching his arms on his
bunk and making marks on his wrists).” J.A. 2014. This prompted SVJC staff to comment
17
The dissent accuses the majority of “cherry-picking the testimony it likes from
the record,” specifically claiming that the majority privileges Dr. Lewis’s testimony over
Dr. Kane’s. It is unclear how the dissent comes to this conclusion, as we cite Dr. Lewis’s
testimony only to define the standard of trauma-informed care proposed by Appellants and
to say that this testimony could be relevant under Youngberg.
The dissent also neglects the standard governing summary judgment. Here, we must
read the record in the light most favorable to Appellants, the non-moving party. Fed. R.
Civ. Proc. 56(a). The dissent does the opposite. To the extent the dissent believes there to
be contrary facts in the record—for example, whether Dr. Kane’s role was limited to
medication management or whether his conversations with Appellants had actual
therapeutic value, see Dissenting Op. at 56–57—the dissent simply raises disputes of
material fact. Where such disputes arise, summary judgment is inappropriate.
18
The Commission similarly argues that Doe 4 received adequate care because he
“improved” during his time at SVJC. Resp. Br. at 13, 43. To support this claim, it cites
Doe 4’s self-report to Dr. Gorin during his psychological evaluation, one month after he
arrived at SVJC. But the record also shows that, after the evaluation, Doe 4 continued to
suffer disciplinary incidents and engage in self-harm throughout his time at SVJC. J.A.
768, 866–78, 947, 1010–11, 2004, 2014. The Commission also cites Doe 4’s deposition
testimony, but that testimony referred to his anger, not to his PTSD or to his treatment at
SVJC. J.A. 872–73. At best, this presents a dispute of material fact.
37
about Doe 4’s “past history of attempted self[-]injurious behavior” and to remove “his outer
layer of clothing . . . to prevent him from fabricating a ligature[] or covering the window
to [his room].” J.A. 2004. After seven months in SVJC, Doe 4’s clinician observed that
Doe 4 had “superficial scabbed scratches” on his arms, and Doe 4 reported that he had used
his own fingernail to cut himself over the weekend out of frustration. J.A. 947. While Doe
4 testified that he did not recall thoughts or attempts at suicide or self-harm, he also
admitted that he sometimes “couldn’t remember the things [he] did when [he] was angry.”
J.A. 872–73.
The district court also did not construe the record in the light most favorable to
Appellants when describing the adequacy of existing services at SVJC. The court stated
that Doe 4 “saw a psychiatrist at least every six weeks,” and that “[m]ore than fifty percent
of each visit with Dr. Kane is supposed to be dedicated to one-on-one counseling.” J.A.
781. But the Commission’s witnesses, including Dr. Kane, testified that he did not provide
counseling or therapy and that he was charged solely with prescribing and managing
medications. J.A. 822, 1324–25, 1384–85, 1480–81, 1486.
The district court did acknowledge that Dr. Gorin had diagnosed Doe 4 with PTSD
and recommended that Doe 4 receive treatment in a residential treatment center. 19 J.A.
894. Doe 4’s clinicians likewise advocated on his behalf for placement in such a center.
19
The Commission argues that Dr. Gorin’s diagnosis was limited because “Doe 4
provided inconsistent responses and refused to provide information characterized as ‘very
important’ by [Dr. Gorin].” Resp. Br. at 49. But this merely challenges the weight of
Dr. Gorin’s diagnosis and recommendation. This presents a dispute of material fact best
resolved at trial.
38
J.A. 883–84; 923, 934, 939. But the court satisfied itself with the fact that SVJC had
attempted to transfer Doe 4 to such a facility, J.A. 781, without assessing whether SVJC’s
services were adequate for Doe 4 once they were unable to do so. Consequently, the court
did not consider testimony by SVJC’s staff recognizing that they lacked the capacity to
treat children whom psychologists recommended for placement in residential treatment.
J.A. 1324 (testifying that “if a child needs to be sent to a residential treatment center” but
cannot be placed there because “a secure option is not available,” such situation presents
“a conundrum that’s problematic”); J.A. 1357–58 (testifying that SVJC does not have “the
internal capacity to deal effectively with the needs of unaccompanied kids who have severe
mental illness” because it lacks the treatment capabilities of “a residential treatment center
or hospital”). In light of the Youngberg standard, the district court must consider this
evidence and all other evidence relevant to the professional standards of care necessary to
treat Appellants’ serious mental health needs.
III.
For all of these reasons, we reverse the district court’s grant of summary judgment
and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
39
WILKINSON, Circuit Judge, dissenting:
We judges should stick to what we are good at: applying precedent, interpreting
statutes, and exercising traditional equitable powers. Today’s case features an invitation to
try our hand at institutional governance and to do something we are utterly unqualified to
do—determine what constitutes acceptable mental health care. I respect the majority’s
sincere and humane concerns. But it is staring at a host of unintended consequences. And
under what rock is hidden its holding’s relationship to law, I have no idea.
Juvenile detention is a tricky business. That is especially true for facilities like
appellee Shenandoah Valley Juvenile Center (SVJC), which is specifically designed to
house youths too dangerous to be safely housed elsewhere. See 45 C.F.R. § 411.5 (defining
a “secure facility,” like SVJC, “as the most restrictive placement option for [an alien minor]
who poses a danger to him or herself or others or has been charged with having committed
a criminal offense”). In addition to this difficult charge, SVJC provides its detainees with
living accommodations, food, clothing, routine medical and dental care, weekday
classroom education, recreation, individual and group counseling sessions, and access to
religious services. Appellants have abandoned any challenge to those conditions in this
case. Maj. Op. at 21-22. As discussed in Part II, SVJC also provided substantial mental
health services to appellant Doe. But SVJC concedes it is not designed to be a mental health
treatment center. It prioritizes detainee safety and controlling violent behavior because its
residents are dangerous.
The majority has effectively ordered an overhaul of SVJC’s very nature from the
bench, reasoning that the Constitution somehow—without any textual hook—requires
40
SVJC to focus on treating the underlying traumas of its residents instead of controlling
dangerous behaviors. The majority sees these two things as related, and to some extent they
may be. But treatment is a patient long-term project and SVJC faces the urgent short-term
task of simply ensuring the safety of those who reside there.
The majority prioritizes its view of what SVJC should be by adopting the
professional judgment standard, a loose substantive due process doctrine that has never
been expanded to juvenile detention by the Supreme Court, the Fourth Circuit, or any other
court of appeals. In the process, the majority establishes the judiciary as the new overseer
of mental healthcare in all juvenile detention facilities. The majority pretends to adopt a
posture of deference toward SVJC’s treatment regimen, but its remand wholly belies that
claim. Maj. Op. at 36-39. The majority asserts that trauma-based treatment is only one of
many mental health options for the facility, Maj. Op. at 33-36, but its opinion and
appendices make clear it is the sole option that has any realistic chance of meeting with the
majority’s favor. After the Supreme Court rejected decades of judicial attempts to
micromanage the nation’s prisons and schools, it is startling that the majority opens up a
new front of judicial institutional supervision over mental healthcare in juvenile detention
systems.
By adopting the more intrusive professional judgment standard, the majority also
creates a circuit split. See A.M. v. Luzerne Cty. Med. Ctr., 372 F.3d 572, 579 (3d Cir. 2004).
After discussing the realities of the institutional context and recognizing the need for
deference, the Third Circuit adopted a deliberate indifference standard for claims by
41
juvenile detainees. Id. at 579-80. Under this standard, only reckless disregard of a serious
medical need is actionable. Id. at 579.
We deal here with practical possibilities, not judicial wish lists. And even under the
majority’s erroneous legal standard, the proper course is to affirm. Although the
professional judgment standard expands the role of the courts in overseeing mental
healthcare in juvenile detention centers, it was still, until now, an exceedingly deferential
test. Doe received mental health care treatment from several medical professionals of
unquestioned qualifications. Those professionals diagnosed him with psychological
disorders, prescribed him medication for those maladies, and focused on controlling Doe’s
violent behavior. Doe even testified that the course of treatment was successful in reducing
his problems with anger management. J.A. 873. By remanding in the face of this record,
the majority urges courts to enter the business of second-guessing mental health treatment
decisions. Because we are not remotely qualified to do that, I respectfully dissent.
I.
A.
The proper standard of review is crucial here if the role of courts in institutional
governance is ever to be cabined. The majority’s adoption of the professional judgment
standard to adjudicate claims of inadequate mental healthcare by juvenile detainees is
foreclosed by precedent and finds no support in written law. Instead, as I have noted, the
majority expands substantive due process, needlessly creates a circuit split, and embarks
upon an unchartered course.
42
“As a general matter, a State is under no constitutional duty to provide substantive
services for those within its borders.” Youngberg v. Romeo, 457 U.S. 307, 317 (1982).
There are only limited exceptions to this rule. The Eighth Amendment obligates the States
to provide medical care to prisoners. See Farmer v. Brennan, 511 U.S. 825 (1994). We
have held that the Due Process Clause’s substantive component requires the government
to provide basic medical care to pretrial detainees. See Martin v. Gentile, 849 F.2d 863,
870–71 (4th Cir. 1988). In all these instances, we have shown great deference to the
government’s choices in how it provides medical care to those in its custody. We review
such claims only for deliberate indifference to serious medical needs. See id. (discussing
pretrial detainees). Successful claims under this standard require showing either that prison
officials recklessly ignored a serious problem or provided treatment that was utterly
unreasonable. Farmer, 511 U.S. at 834. This “very high” bar is rarely met. Young v. City
of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
The Supreme Court articulated a less deferential standard of review for the provision
of medical services in only one case. In Youngberg v. Romeo, 457 U.S. 307 (1982), the
Court considered a claim by a “profoundly retarded” individual who was involuntarily
institutionalized by the State because he was unable to care for himself. Id. at 309–10. That
individual was injured on at least sixty-three occasions while in the State’s care, and it was
alleged that the State’s doctors were not taking steps to prevent such injuries. Id. at 310–
11. Explaining that “when a person is institutionalized—and wholly dependent on the
State,” the Court held that “a duty to provide certain services and care does exist, although
even then a State necessarily has considerable discretion in determining the nature and
43
scope of its responsibilities.” Id. at 317. The Court thus established the professional
judgment test, which “only requires that the courts make certain that professional judgment
in fact was exercised” and does not permit “courts to specify which of several
professionally acceptable choices should have been made.” Id. at 321.
The Supreme Court has never expanded the professional judgment standard beyond
the strict confines of Youngberg. This is not surprising. Since Youngberg was decided,
substantial doctrinal shifts have occurred in constitutional law. To start, the Court has
expressed anxiety about expanding the scope of substantive due process. See, e.g.,
Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“[W]e have always been reluctant
to expand the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended.” (internal quotation
marks omitted)). Further, the Court has generally cracked down on attempts by courts to
supervise and micromanage conditions at various institutions, including prisons and
schools. See Douglas Laycock & Richard L. Hasen, Modern American Remedies: Cases
and Materials 323–26 (5th ed. 2019).
In fact, the Supreme Court has already held that substantive due process claims by
unaccompanied alien minors should be reviewed under the even more deferential rational
basis test. In Reno v. Flores, 507 U.S. 292 (1993), the Court considered substantive due
process claims asserting a right to be released from custodial detention brought by
unaccompanied alien minor children in the juvenile detention system. The Court reviewed
and rejected these claims under the rational basis test. Flores, 507 U.S. at 303 (rejecting
claims because government policy was “rationally connected to a governmental interest in
44
preserving and promoting the welfare of the child and is not punitive since it is not
excessive in relation to that valid purpose.” (internal quotation marks and citation omitted).
Even more to the point in this case, the Court rejected a proposed “best interests of the
child” test to review government decisions regarding the children in its care, explaining
that the standard was unworkable and not required by the Constitution. Id. at 304(explaining that juvenile institutions “are not constitutionally required to be funded at such
a level as to provide the best schooling or the best health care available”). The rational
basis test “demands no more than a ‘reasonable fit’ between governmental purpose . . . and
the means chosen to advance that purpose.” Id. at 305. Thus, the level of deference owed
to government actions under rational basis doctrine reinforces plainly the deference owed
institutions under the deliberate indifference test. See Mario L. Barnes & Erwin
Chemerinsky, Essay, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev.
1059, 1077 (2011) (explaining that government actions reviewed under the rational basis
test are “overwhelmingly likely to be upheld” because of the deference courts must give
them). Whether rational basis review applies or not, Flores sends a very strong signal from
the Supreme Court that the majority errs in failing to defer to the government’s mental
healthcare choices in this case.
At a minimum, Fourth Circuit precedent makes clear that the deferential deliberate
indifference standard should apply in this case. In Patten v. Nichols, 274 F.3d 829 (4th Cir.
2001), we established three factors to determine whether the professional judgment
standard should apply. Contrary to the majority’s view, all three factors favor application
of the deliberate indifference standard. The most important factor is the purpose of the
45
detention. Id. at 840. The professional judgment standard is appropriate only for someone
detained for a rehabilitative purpose. Thus, we have applied the professional judgment
standard to a sexual predator treatment program, Christian v. Magill, No. 17-7025, 724
Fed. Appx. 185 (4th Cir. 2018), and to the Federal Bureau of Prisons’ Commitment and
Treatment program. Matherly v. Andrews, 859 F.3d 264, 274–76 (4th Cir. 2017). But in
this case, the purpose of Doe’s detention is not rehabilitative. He was transferred to SVJC
because he was dangerous, having had nine behavioral incidents at his previous facility.
Because of his violent actions toward staff members and other children, he could not be
safely housed in a less secure detention facility. SVJC tried four times to transfer Doe to
facilities designed to provide more robust mental health treatment, but those facilities
would not take him because he was a threat to those around him. See J.A. 883-84. SVJC
was therefore detaining Doe not to rehabilitate him, but to protect him and other children.
The majority rejects this straightforward conclusion by insisting that safety and
rehabilitation are not mutually exclusive. Maj. Op. at 25–26. That ipse dixit assertion is
belied by the choices the States and the Office of Refugee Resettlement have made in
designing a juvenile detention system. Some facilities, like SVJC, are specifically designed
to deal with the most dangerous minors in the system. These facilities face overwhelming
practical challenges, including the necessity of preventing violence against other detainees
or staff and protecting children from self-harm. The majority’s insistence that SVJC is
capable of prioritizing things other than safety is not substantiated by any practical
experience or expertise. And it is belied by the fact that policymakers found it prudent to
create a facility designed to house particularly dangerous juveniles.
46
Second, we must examine the nature of the confining facility. Patten, 274 F.3d at
841. SVJC is not a hospital. It is not a residential treatment center or other therapeutic
setting. SVJC does not employ specialized medical personnel and SVJC is not required to
do so under its contract with the Office of Refugee Resettlement. See J.A. 137-40. SVJC
relies on third-party providers for most mental healthcare needs, including formal
diagnoses and medical prescriptions. As a juvenile detention facility, SVJC is not equipped
or staffed to provide the type of mental health services available in a residential treatment
center or psychiatric hospital. Patten’s second factor thus clearly militates against the
professional judgment standard, reflecting the practical wisdom that courts should not use
vague constitutional ideals to force government facilities to fundamentally alter their
mission.
The third Patten factor focuses on the duration of the detention, recognizing that the
deliberate indifference standard is more appropriate when temporary detentions are at
issue. Patten, 274 F.3d at 841. SVJC only detains unaccompanied alien minors like Doe
temporarily. The Office of Refugee Resettlement reviews the placement of unaccompanied
alien minors every thirty days and is charged with keeping them at the least secure facilities
possible. See 45 C.F.R. § 410.203(c)–(d). Reassignment is premised upon thirty days of
good behavior without violent incidents, and it is not based on treatment goals. See id. Doe
is thus quite unlike the involuntarily committed patient in Youngberg, who faced life-long
detention and dependence on the government.
Other courts have likewise concluded that the deliberate indifference test governs
claims of inadequate medical care by juveniles detained for non-rehabilitative purposes.
47
The majority begrudgingly acknowledges that the weight of out-of-circuit authority is
against it, failing to cite a single case finding the professional judgment standard applicable
in a similar case. Maj. Op. at 28-29. For example, recognizing that substantive due process
doctrine has traditionally been cabined to bar only behavior that “shocks the conscience,”
the Third Circuit has adopted the deliberate indifference test to evaluate claims by juvenile
detainees. See Luzerne Cty. Med. Ctr., 372 F.3d at 579. By concluding otherwise the
majority, as noted, needlessly creates a circuit split.
In short, there is no support for the majority’s expansion of the professional
judgment standard in Supreme Court, Fourth Circuit, or out-of-circuit precedent. And of
course, the majority does not even attempt to argue that constitutional text supports its
move. Instead, it ignores the Supreme Court’s command to “exercise the utmost care”
before “break[ing] new ground” in substantive due process doctrine. Glucksberg, 521 U.S.
at 720. A deliberate indifference standard is much more faithful to that edict.
B.
In addition to the doctrinal problems with the majority’s decision, there are practical
problems as well. First, as noted, it forces judges to evaluate what constitutes effective
mental health treatment, something we are utterly unqualified to do. We are not medical
professionals. We are not psychiatrists with long educational and experiential training in
mental health. We know far less about mental health than any of the four medical
professionals that treated Doe. The Supreme Court has repeatedly cautioned that judges do
not have even the necessary expertise to second-guess institutional governance decisions
made by prison administrators. See, e.g., Procunier v. Martinez, 416 U.S. 396, 405 (1974)
48
(explaining that “courts are ill equipped to deal with the” “complex and intractable”
“problems of prison administration,” which “are not readily susceptible of resolution by
decree”). If we are not competent to tell prisons how to operate, how are we capable of
telling psychiatrists how to do their jobs?
The majority itself demonstrates the drawbacks of the professional judgment
approach. The plaintiff in this case invites us—judges with no medical training—to adopt
the “trauma-informed” approach to mental health care treatment. He tells us that “[t]he
approach, in essence, is designed (1) to screen, assess for and treat the consequences of
prior trauma; and (2) to avoid correctional practices that retraumatize juveniles.” Appellant
Brief at 35 (internal quotation marks omitted). He further advises us that the trauma-
informed approach “achieves those objectives through treatment geared to addressing the
experienced trauma and through implementation of detention practices that include
ensuring that all staff understand how to recognize the signs of past trauma and to avoid
exacerbating trauma through punishment-based responses.” Id. In accepting this strategy,
we are asked to overrule the medical strategy adopted by Dr. Kane, Dr. Gorin, and Doe’s
two clinicians. We are told to ignore Dr. Gorin’s diagnoses, the medication prescribed, the
regular meetings with a psychiatrist, and the anger counseling given by the clinicians. We
are instructed to ignore Doe’s own testimony that this treatment was effective at helping
plaintiff control his anger. J.A. 873. We are advised, as though we were public health
agencies or legislative committees or anyone with a background in this area, to mandate a
new, innovative approach to mental healthcare.
49
The majority accepts this invitation, delving into scientific literature and cherry-
picking the testimony it likes from the record. See, e.g., Maj. Op. at 33–36. It prefers the
testimony of Dr. Lewis, the expert hired by Doe for this litigation, over that of Dr. Kane,
the psychiatrist who actually treated Doe. See, e.g., Maj. Op. at 33–34 (crediting Dr.
Lewis’s testimony but ignoring Dr. Kane’s). The majority also relies on the fact that twelve
states—hardly an overwhelming number—have implemented the trauma-informed
approach. Maj. Op. at 35. But in what form and to what effect these states have acted we
have no idea. Apparently the other thirty-eight States lack the majority’s wisdom. Finally,
we are treated to reports from various advocacy groups, experts, and the Department of
Justice from a prior administration pushing the trauma-informed approach to mental
healthcare. Maj. Op. at 34–35. The majority does not tell us how it chose these various
sources, and that is of course quite telling. But even if the majority is correct that certain
advocacy groups favor its approach, such organizational reports “simply do not establish
the constitutional minima; rather, they establish goals recommended by the organization in
question.” Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979).
Is the majority correct that the trauma-informed approach is the best approach to
mental healthcare? Maybe; maybe not. I have no idea. I am neither a psychiatrist nor a
legislator. We have not assembled a representative array of experts and medical
professionals. We have conducted no committee hearings. We have not assessed the
institutional setting or determined this detainee’s suitability for the course of treatment we
now prescribe. We have not in short balanced costs and benefits. Nor should we. “The
calculus of effects, the manner in which a particular [policy] reverberates in a society” is
50
“not a judicial responsibility.” See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272
(1979). There was once a time, I suppose, for Renaissance judges as there was for
Renaissance men and women, but leaps in medical science ought to induce in judges a
certain modesty and inhibition. The representative and policy-making branches of our
government are in a far better position to consult with medical professionals and decide
what preferred mental healthcare looks like than we are.
The heart of the majority’s argument is that we judges should second-guess Doe’s
psychiatrist, psychologist, and clinicians because children are involved. Maj. Op. at 29
(“Notably, neither the Commission nor the district court grapple with the fact that this case
is about children.”). It is more accurate, of course, to say the case is about juveniles, since
a detention facility for the most dangerous would have no need to detain young children.
It is telling, moreover, that the cases cited by the majority arise in completely different
legal contexts—mostly Eighth Amendment claims concerning the death penalty and other
permissible sentences, see Maj. Op. at 29-30—and they do not support extending
substantive due process in this case. I fail to see why or how our utter lack of qualifications
to make mental healthcare decisions is improved by the fact that juveniles are involved. If
anything, child mental healthcare is even more complex and even further beyond judicial
cognizance.
The majority’s decision likewise interferes with the constitutional power of States
to design their juvenile detention systems. The Supreme Court has explained that “it is
‘difficult to imagine an activity in which a State has a stronger interest, or one that is more
intricately bound up with state laws, regulations, and procedures than the administration of
51
its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006) (quoting Preiser v. Rodriguez, 411
U.S. 475, 491–92 (1973)). States have a similarly strong interest in being able to design
and manage their juvenile detention systems in a manner free from federal judicial fine-
tuning. Thus, “institutional reform” cases like this one “often raise sensitive federalism
concerns.” Horne v. Flores, 557 U.S. 433, 448 (2009).
How much is all this going to cost? And from whose pocket is the money for our
prescriptions going to come from? The majority will not say. Money is always a scarce
commodity in state finance, given that states are usually required to balance their budgets
under law. See David A. Super, Rethinking Fiscal Federalism, 118 Harv. L. Rev. 2544,
2592 (2005). It is not as though there is any absence of needs. Better schools and
universities. Improved roads. Safety net health and welfare outlays. Pressing correctional
expenditures. So often these institutional reform suits seem nothing so much as an attempt
to move a preferred funding request to the head of the line. See Horne, 557 U.S. at 448(“States and local governments have limited funds. When a federal court orders that money
be appropriated for one program, the effect is often to take funds away from other important
programs.”). But it is the essence of the legislative process to weigh some needs against
others, a process the majority is all too content to pass by.
Blasting past federalism concerns, the majority also strips SVJC of its autonomy. It
must now likely spend substantial sums to hire new medical professionals well versed in
the form of healthcare that courts are willing to approve. But that is not all. The majority’s
decision will likely force a complete redesign of juvenile detention systems. Some juvenile
detention facilities, like SVJC, are secure facilities, which means they are specifically
52
designed to house juvenile detainees that cannot be safely placed at other facilities because
they are dangerous. 45 C.F.R. § 411.5 (defining a “secure facility,” like SVJC, “as the most
restrictive placement option for [an alien minor] who poses a danger to him or herself or
others or has been charged with having committed a criminal offense”). Indeed, SVJC is
one of just three facilities nationwide specially designed to deal with dangerous immigrant
juveniles. See J.A. 30. Other facilities are designed with a rehabilitative purpose. Indeed,
SVJC tried on multiple occasions to send Doe to such rehabilitative facilities, but they
would not take him because he was too dangerous. See J.A. 883-84. The majority’s
decision effectively requires all juvenile detention facilities to adopt rehabilitative mental
health treatment and to refrain from imposing any sanctions someone might regard as strict,
because that would reawaken some past traumatic episode. But the calibration of discipline
is fruitfully left to those actually on the scene. It is best to leave facilities flexibility in
gauging when stern measures might be necessary and when they might prove decidedly
counterproductive.
This all foreshadows a dramatic change from present practice. No longer is the
dichotomy between rehabilitative and non-rehabilitative juvenile detention—the latter
likely adopted to keep most children safe from the most dangerous children—
constitutionally permissible. But never fear. The majority apparently believes that such
dramatic changes to the States’ juvenile detention systems are wise. It believes that we
federal judges, and not the States retaining the police power in our federalist system, know
best, notwithstanding the fact that all correctional systems, state and federal, classify and
administer facilities according to the degrees of dangerousness of the populations therein.
53
To repeat: adopting the professional judgment standard thrusts the courts into
ongoing oversight roles they are ill-suited to perform. Every decision by a medical
professional at SVJC can now be second-guessed by a court, and we can expect to see more
cases arising from detention facilities as litigants continue to dispute what the best course
of mental health treatment for institutions and individual residents is. This cycle has played
out in other contexts. For several decades, courts around the country used constitutional
provisions to micromanage conditions at prisons, encouraging litigants to initiate yet more
“institutional reform litigation.” See Laycock & Hasen, supra, at 324. After entering a
judgment against an individual facility for a violation, courts found themselves supervising
the same institutions for decades. And that supervision led to an endless series of remedial
orders governing everything from the number of bunks in a room to the design of prison
libraries.
After seeing the deleterious effects of these interventions, the Supreme Court
decided a series of cases intended to end them. See, e.g., Lewis v. Casey, 518 U.S. 343(1996) (reversing injunction dictating when prison library needed to be open, setting
qualifications for prison librarians, and requiring the creating of a legal-research course for
inmates); Rhodes v. Chapman, 452 U.S. 337 (1981) (reversing district court’s injunction
against placing two inmates in a cell and cautioning courts not to impose their own policy
preferences on prisons). The same dynamic played out in schools, as judges would oversee
schools for decades in the name of enforcing constitutional provisions. See Laycock and
Hasen, supra, at 224–25. But the Supreme Court “lost patience” with these efforts in the
late 1990s and shut them down as well. Id. at 326; see Missouri v. Jenkins, 515 U.S. 7054
(1995) (calling for an end to eighteen years of judicial supervision over the Kansas City
School District that resulted in the ordered expenditure of hundreds of millions of dollars,
the renovation of facilities, and the hiring of new personnel). Now the majority opens a
new front of judicial institutional supervision, ignoring our own court’s recent warning
against this. See Matherly, 859 F.2d at 275–76 (“[T]he Supreme Court has made clear that
the judiciary should not be in the business of administering institutions.”). All these
interminable interferences began with what the majority undoubtedly sees as some
innocuous initial step. But the undertow is strong. Hopefully judges will not have to
micromanage juvenile mental healthcare for decades before the Supreme Court steps in.
II.
Even under the majority’s erroneous professional judgment standard, we should
affirm the district court. Although it is hard to discern from reading the majority’s opinion,
the Supreme Court bent over backwards to emphasize that the professional judgment
standard is highly deferential. The professional judgment standard requires only that a court
confirm “that professional judgment in fact was exercised” rather than specifying “which
of several professionally acceptable choices should have been made.” Youngberg, 457 U.S.
at 321. This is so because the Supreme Court understood that judges are not well-equipped
to second-guess medical decisions. See id. And we have stated that “the proper inquiry is
whether [a treatment] decision was so completely out of professional bounds as to make it
explicable only as an arbitrary, nonprofessional one.” Patten, 274 F.3d at 845. Professional
judgment "does not mean some standard employed by a reasonable expert or a majority of
experts in the community . . . but rather that the choice in question was not a sham or
55
otherwise illegitimate." Id. Decisions by mental healthcare providers have a “presumption
of validity.” Id.Instead of focusing on what treatment SVJC actually provided to Doe, the majority
wades through advocacy presentations and plucks evidence to endorse the trauma-
informed approach to mental health treatment. Not only is this doctrinally improper, but it
fails to show proper respect for the medical professionals who treated Doe.
A review of the record makes clear that SVJC’s mental health providers exercised
professional judgment in dealing with Doe. Before Doe arrived at SVJC, he was placed at
the Children’s Village, a non-secured facility in New York. Because he had nine behavioral
incidents there and his behavior posed a clear threat to himself and other children, he was
moved to SVJC because it was a secure facility designed to house juveniles who posed a
threat to those around them. Upon arrival, Dr. Joseph Gorin, a psychologist retained by
SVJC, examined Doe. As a result of this examination, Gorin diagnosed Doe with Attention
Deficit Hyperactivity Disorder (ADHD) and Post-Traumatic Stress Disorder (PTSD). J.A.
894.
While Doe resided at SVJC, he received extensive mental health treatment that
focused on the conditions diagnosed by Dr. Gorin and on his well-documented anger
problems. Doe regularly met with Dr. Kane, a licensed psychiatrist. In response to Dr.
Gorin’s original diagnosis, Doe was prescribed medication for ADHD and PTSD. Doe’s
medical records reflect twelve visits with Dr. Kane from December 2017 through
September 2018. J.A. 964–99. SVJC never denied a request by Doe to see Dr. Kane. And
these were not just pro forma visits. Dr. Kane’s treatment records regarding Doe show that
56
on each visit he obtained an updated patient history and reviewed any symptoms displayed
by Doe. J.A. 964–99. According to Doe’s own testimony, Dr. Kane routinely asked how
he had been doing since his last appointment and whether Doe had experienced any issues
with sleeping, anger, anxiety, or other feelings. J.A. 850. Dr. Kane also provided
counseling to Doe on risk reduction, affective mood instability, and anxiety. J.A. 683–843.
Doe also received mental health treatment from two clinicians, Andrew Mayles and
Evenor Aleman, who were both licensed professional counselors with master’s degrees and
who had each completed at least 3,400 supervised clinical hours. J.A. 881. The primary
focus of these clinicians was to help control Doe’s anger problems. This was sensible
because Doe was involved in multiple violent incidents while at SVJC, including one
occasion where he punched a wall. Doe also repeatedly attempted to harm himself. J.A.
2014. And he repeatedly punched staff members in the face. J.A. 1000–01, 1010–11.
Further, Doe approached another minor from behind and choked him. J.A. 2160. But Doe’s
clinicians took consistent and proactive steps to prevent Doe from hurting himself during
these incidents, and they succeeded except for the instance where Doe punched a wall. Doe
himself testified that his anger management improved while he was at SVJC. J.A. 873.
And SVJC tried to transfer Doe to a residential treatment facility where he could
have received additional mental health care. See J.A. 883-84. But these other facilities
would not take him because he posed a threat of violence, as evidenced by his multiple
violent incidents at SVJC. In an ideal world, every juvenile detention center would be fully
outfitted to provide optimal mental health treatment. But the Constitution does not permit
judicial implementation of a perfect world because “[t]he problems of government are
57
practical ones and may justify, if they do not require, rough accommodations—illogical, it
may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69–70
(1913). But I cannot begin to say that SVJC’s approach is illogical. We live in a world
where some juveniles are especially dangerous, and it makes sense that some facilities like
SVJC are designed to prioritize safety and control violent behavior.
The majority apparently believes that the treatment decisions made by the mental
health professionals who treated Doe deserve no deference. While largely ignoring the
efforts they made, it instead privileges Doe’s expert, Dr. Lewis, to insist they should have
made different treatment choices that focused on rooting out the underlying causes of
alleged past trauma. Maj. Op. at 33–34. But even Dr. Lewis acknowledged that Doe’s
clinicians made efforts to “appropriately respond to [Doe],” only claiming they didn’t “go
far enough.” J.A. 226. But Dr. Lewis did not observe these clinicians or even meet with
them. In contrast, Dr. Kane worked with these same clinicians regularly, and he testified at
length about the sufficiency of their efforts. J.A. 672–77. Dr. Lewis’s testimony evidences
only a professional disagreement with medical decisions made by professionals. That is
not enough to overcome the presumption of validity owed to the decisions made by Doe’s
mental health providers. And it is not enough to survive summary judgment under the
professional judgment standard, which permits us only to ensure “that professional
judgment in fact was exercised” rather than specifying “which of several professionally
acceptable choices should have been made.” Youngberg, 457 U.S. at 321. The fact that the
majority surges forward in the face of such a record speaks volumes about all that lies in
store.
58
III.
Judges are not psychiatrists. Mental health, while highly desirable for all, is a
complex and evolving field. For good reasons, mental health professionals must go through
a rigorous course of education and licensure before entering their important practice. This
is no place for judicial amateurs whose far wanderings from our founding document spell
only confusion. By wading into this complex field without textual support, judges will find
themselves adrift in a sea of vast debate on a subject whose depths we cannot plumb and
do not comprehend. Because the majority’s decision is legally unmoored and practically
unworkable, I respectfully dissent.
59