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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CHANDA HUGHES, as guardian and on behalf of J.B., a minor, et al., ) ) ) Plaintiffs, ) ) v. ) ) GRADY JUDD, Polk County Sheriff, in ) his official capacity; and CORIZON ) HEALTH, INC., ) ) Defendants. ) ___________________________________ )

Case No. 8:12-cv-00568-SDM-MAP

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT CORIZONS MOTION TO DISMISS Plaintiffs, by and through undersigned counsel, respectfully submit this memorandum in opposition to Defendant Corizons Motion to Dismiss (DE 77), filed June 22, 2012. Defendant seeks dismissal of Count 4 of the Second Amended Complaint as to Corizon Health, Inc., alleging deliberate indifference to the mental health needs of children with mental illness who are detained at the Polk County Jail. For the reasons stated below, Defendant Corizons motion should be denied in its entirety. I. PROCEDURAL BACKGROUND Plaintiff-minors K.J., B.G., D.M., J.B., J.D., F.J.P., J.P., and K.G. bring this action to remedy dangerous, unconstitutional conditions of confinement for children detained at the Polk County Jail. This action was initially filed by three children on March 15, 2012, naming as Defendants Sheriff Grady Judd, Major Michael Allen, and Captain Kimberly Marcum, in their official capacities. (DE 1.)

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On March 21, 2012, Plaintiffs filed a Verified Amended Complaint by seven children on behalf of themselves and all others similarly situated. The Verified Amended Complaint asserted three claims against Defendants on behalf a class comprised of all children held at the jail, whether under the jurisdiction of the juvenile or adult court, and a subclass comprised of those children under the jurisdiction of the juvenile court only. Count 1 alleged the failure to provide rehabilitative services to the subclass. Count 2 alleged dangerously violent conditions of confinement as to the class. Count 3 alleged the punitive use of suicide watch as to the class. (DE 3.) Plaintiffs moved for a preliminary injunction on Count 2 of the Verified Amended Complaint. (DE 4.)

Plaintiffs also moved for class certification, which Defendant opposed. (DE 5, 26, 44.) The Court referred the motions to the Magistrate Judge. (DE 32.) The Magistrate Judge has set an evidentiary hearing on the motion for preliminary injunction. (DE 83.) On April 11, 2012, the then-named Defendants moved to dismiss the action in its entirety. (DE 25.) On May 4, 2012, the Court granted the motion to the extent

Defendants sought to dismiss Major Allen and Captain Marcum as redundant of Defendant Polk County Sheriff, and denied the motion in all other respects. (DE 43.) On May 17, 2012, the Court granted Plaintiffs leave to file a Second Amended Complaint asserting a fourth claim (deliberate indifference to the serious mental health needs of children at the jail) by new named Plaintiffs K.G. and A.H., on behalf of themselves and all others similarly situated, and adding a new Defendant, Corizon Health

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Inc.1 (DE 51.) The Court referred to the Magistrate Judge Plaintiffs motion to certify a subclass comprising all children at the jail who suffer from mental illness. (Id.) On June 4, 2012, Defendant Polk County Sheriff answered the Second Amended Complaint. (DE 60.) On June 22, 2012, Defendant Corizon Health, Inc., filed the motion to dismiss Count 4 of the Second Amended Complaint as to that Defendant. (DE 77.) II. STANDARD

Motions to dismiss for failure to state a claim are viewed with disfavor and rarely granted. Vernon v. Med. Mgmt. Assn of Margate, Inc., 912 F. Supp. 1549, 1554 (S.D. Fla. 1996) (citations omitted). Under Rule 12(b)(6), a motion to dismiss must be denied where the complaint contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1333 (11th Cir. 2011) (citations and internal quotation marks omitted). The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. Farabee v. Rider, 995 F.Supp. 1398, 1401 (M.D. Fla. 1998) (citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985)). In deciding a motion to dismiss, the Court must accept as true all facts alleged and draw all inferences therefrom in the light most favorable to the non-moving party. See Rehberg v. Paulk, 611 F.3d 828, 835 n.1 (11th Cir. 2010) (citation omitted); see also St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (instructing that a court must draw all reasonable inferences in favor of the plaintiff). The complaints factual
1

The Court granted this relief nunc pro tunc to April 23, 2012, the date on which Plaintiffs moved for leave to file a supplemental complaint asserting the additional claim. (DE 34.) On June 13, 2012, Plaintiff A.H. filed a notice of voluntary dismissal as to himself, only. (DE 65.)

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allegations must raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Whether the plaintiff might ultimately prevail on the merits is a matter properly determined on the basis of proofwhich means on a summary judgment motion or at trial by the judge or juryand not merely on the face of the pleadings. Arthur H. Richland Co. v. Harper, 302 F.2d 324, 326 (5th Cir. 1962).2 III. PLAINTIFFS CLAIM AGAINST DEFENDANT CORIZON HEALTH Plaintiff K.G. is a sixteen year-old girl who suffers from serious mental illness. (SAC 128.) Since the age of 11, K.G. has been diagnosed with borderline personality traits, mood disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder, and oppositional defiance disorder. (Id. 130.) She has a history of suicidal ideation. (Id.) K.G. has been detained at the Polk County Jail three times since October 2011. (Id. 128.) She alleges that the medical provider at the jail, Defendant Corizon Health, Inc., acts with deliberate indifference toward the mental health needs of children detained at the Polk County Jail in violation of the United States Constitution.3 (Id. 75-90.)

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
3

Plaintiff K.G. has also alleged that Defendant Polk County Sheriff acts with deliberate indifference toward the mental health needs detained at the jail, including by subjecting those children to punitive, harmful conditions of confinement and subjecting them to unnecessary pain and suffering. (Id. 75-90; 146.) The Sheriff, however, did not move to dismiss Count 4. (See DE 60.)

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National research shows that as many as 50 percent or more of children detained in the juvenile justice system suffer from a mental disorder. (Id. 75.) Mental illness is similarly prevalent among children tried as adults. (Id.) At any one time, the Polk County Jail holds approximately 70 to 80 children, likely including about 35 who suffer from mental illness. (Id. 32, 76.) The jails medical provider Corizon Health, Inc., however, fails to provide these children with constitutionally adequate care. Instead, staff routinely delay or ignore the known medical needs of children with serious mental illness, putting those children at unnecessary risk of substantial harm. (Id. 77.) Staff routinely subject children with mental health needs to delays in receiving needed assessments, medication and treatment. (Id. 78.) When provided, medication is frequently dispensed in a manner that is contraindicated, including by staff failing to provide the appropriate dosage, allowing medication to run out, failing to provide mechanisms to promptly make up for missed doses, and crushing or dissolving medications contrary to the product label. (Id. 79.) As childrens brains are still developing, staff are aware that children are particularly vulnerable to harm from inappropriate variations in psychiatric medication, inappropriate dosage, withdrawal, and contraindicated provision of medication. (Id. 80.) Children with mental illness are also particularly at risk of harm in a jail in light of their limited ability to advocate for themselves. (Id. 81.) Defendant Corizons

constitutionally deficient response to children with mental illness places children detained at the Polk County Jail at substantial risk of harm, particularly given the increased risk of suicide by children in adult jails. (Id. 82.)

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Defendant Corizon has been aware of K.G.s mental illness since about October 2011, when K.G. was first incarcerated at the Polk County Jail and reported to medical staff that she required mental health medication. (Id. 131.) Corizon was again made aware of K.G.s mental illness in January 2012, during her second incarceration at the Polk County Jail, when K.G. reported to medical staff that she required four psychiatric medications for her illnesses. (Id.) Still, despite this knowledge, Defendant Corizon failed to provide K.G. consistent treatment, delayed in providing her medication, and provided medication in a contraindicated manner. (Id. 132.) On or about March 28, 2012, K.G. again reported her mental health needs to Defendant Corizons staff but did not receive needed medications. (Id. 133.) On or

about March 29, 2012, K.G. was placed on suicide watch or close observation; however she was never informed of the reasons and did not receive counseling or treatment while on suicide watch. (Id.) When medical staff came to remove her from suicide watch on or about March 30, 2012, K.G. again reported that she had not received her medication. (Id.) Although K.G. began receiving medication on or about March 31, 2012, the

medication was crushed, despite medical contraindications warning against crushing the medication. (Id.) As a result of Corizons actions and omissions, K.G. was subjected to unnecessary pain and suffering, including agitation, extreme drowsiness, and erratic behavior, facing an unreasonable risk of substantial harm, including self-harm, suicidal ideation, and acting out against others. (Id.) Several other children have similarly reported constitutionally deficient responses to their mental health needs by Defendant Corizon. For example, D.D., a 14 year old girl

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who has been incarcerated at the Polk County Jail five times, has only irregularly been provided with needed medication on several occasions, despite a known history of serious mental illness. (Id. 84.) B.G.2, a 17 year old boy incarcerated at the Polk County Jail, did not receive any mental health medication from the time he entered the jail in February 2012 until late April 2012, despite reporting to staff that he was prescribed the medication before entering the jail. (Id. 85.) C.D., a 14 year old boy incarcerated at the Polk County Jail who suffers from known mental illness, has not received all necessary medications to treat his condition, despite advising staff that he needed them. (Id. 86.) J.N., a 16-year-old boy incarcerated at the Polk County Jail, has not received needed mental health treatment despite advising staff of his serious mental health needs. (Id. 87.) As a result of dangerously inadequate mental health treatment, children with mental illness who are detained at the Polk County Jail are at unreasonable risk of self-harm, acting out, suicidal ideation, and unnecessary pain and suffering from untreated mental illness. (Id. 88.) These children are also at unnecessary risk of

further deterioration of their psychiatric condition while detained at the jail. (Id.) IV. ARGUMENT Defendant argues that Count 4 should be dismissed as to Corizon Health, Inc., for Plaintiff K.G.s purported failure to exhaust, meet the class certification requirements, state a claim, and establish the propriety of injunctive relief.4 (Mot. at 4.) As shown below, each of these arguments fails.

Plaintiffs do not dispute Defendants contention that the action should be dismissed as to Plaintiff A.H. who, on June 13, 2012, filed a Notice of Voluntary Dismissal as to himself, only. (Mot. at 3.)

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A. PLAINTIFF K.G. HAS ADEQUATELY PLEAD EXHAUSTION OF ADMINISTRATIVE REMEDIES Defendant first argues that Count 4 should be dismissed as to Corizon for failing to demonstrate how Plaintiff K.G. exhausted administrative remedies. (Mot. at 6-7.) As Defendant acknowledges, however, Plaintiffs specifically allege in the Second Amended Complaint that they exhausted all available administrative remedies prior to filing. (SAC 142.) Defendant has identified no legal authority for the proposition that a plaintiff is required to meet some heightened pleading standard when it comes to pleading exhaustion. In fact, there is no heightened pleading standard as to exhaustion. A court may dismiss a complaint for failure to exhaust only if it is clear from the face of the complaint and attachments thereto that the plaintiff has failed to exhaust administrative remedies. Henderson v. Bettus, 207-CV97-FLM 34 DNF, 2008 WL 899251, at *4 (M.D. Fla. Mar. 31, 2008) (citing Jones v. Bock, 549 U.S. 199, 921 (2007)). That is not the case here. Moreover, Defendant has not submitted any evidence to show that Plaintiff K.G. in fact failed to exhaust administrative remedies.5 At the motion to dismiss stage, Plaintiff K.G.s allegation that she properly exhausted all available administrative remedies must be accepted as true, particularly in the absence of any evidence to the contrary.6

Indeed, Corizon recently deposed Plaintiff K.G., who testified as to how she exhausted her administrative remedies.
6

The Eleventh Circuit has held that a district court may resolve the issue of exhaustion at the motion to dismiss stage where a factual dispute exists. Bryant v. Rich, 530 F.3d 1368, 1373-74 (11th Cir. 2008). In this case, however, Defendant has only presented argument. Defendant has not submitted any evidence to rebut Plaintiff K.G.s allegation that she exhausted all available administrative remedies, and therefore has not

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Eleventh Circuit case law plainly holds that exhaustion by a class representative satisfies the PLRAs exhaustion requirement as to the entire class. See Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRAs administrative exhaustion requirement through vicarious exhaustion, i.e., when one or more class members has exhausted his administrative remedies with respect to each claim raised by the class.). Defendants argument that those similarly situated to K.G. must also exhaust administrative remedies before she can pursue this claim on behalf of the class therefore fails. (Mot. at 7.) B. DEFENDANTS ATTEMPT TO SEEK DISMISSAL BASED ON CLASS CERTIFICATION ISSUES IS AN IMPROPER ATTEMPT TO CURE DEFENDANTS UNEXPLAINED FAILURE TO RESPOND TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION Defendant Corizon devotes more than half of its argument in the motion to dismiss to attacking the question of class certification. (Mot. at 7-20.) A complaint cannot, however, be dismissed on this basis. The proper vehicle to challenge the

propriety of a class is in response to a motion for class certification. On April 23, 2012, Plaintiffs filed such a motion with regard to the subclass identified in the Second Amended Complaint. (DE 35.) On May 17, 2012, the Court referred the motion to the Magistrate Judge. (DE 51.) The motion, which was

electronically served on Defendant Polk County Sheriff on April 23, 2012, was personally served on Defendant Corizon Health Inc. on May 22, 2012, along with the summons and Second Amended Complaint.

created a factual dispute for the Court to resolve. Should the Court find to the contrary, Plaintiffs respectfully request the opportunity to submit evidence on the issue.

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Local Rule 3.01(b) provides that [e]ach party opposing a motion or application shall file within fourteen (14) days after service of the motion or application a response that includes a memorandum of legal authority in opposition to the request M.D.Fla. L.R. 3.01(b). Defendant Corizons response would therefore have been d ue by June 5, 2012.7 Corizon, however, failed to file any response to Plaintiffs motion to certify the subclass of mentally ill children. Defendant cannot now come to this Court via a motion to dismiss seeking to cure that failure. (See Mot. at 9, 12, 17, 18 (urging court to deny class certification)). Moreover, it is typically not appropriate for a court to deny class certification at the motion to dismiss stage, before Plaintiffs have had an opportunity to engage in discovery to establish their claims. See Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (district courts ruling on class certification was premature at the motion to dismiss stage). Defendant concedes as much by citing Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) for the proposition that [g]oing beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues. (Mot. at 8 (emphasis added).) In Mills, the Eleventh Circuit recognized that deciding class certification based on pleadings alone is difficult because more information is generally required. [T]he

parties pleadings alone are often not sufficient to establish whether class certification is proper, and the district court will need to go beyond the pleadings and permit some
7

The ordinary additional 3 days would not apply in this case, where service was accomplished personally, rather than electronically or by mail. Fed.R.Civ.P. 6(d).

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discovery and/or an evidentiary hearing to determine whether a class may be certified. Mills, 511 F.3d at 1309 (citations omitted). Plaintiffs requested such a hearing in their Motion for Certification of Subclass (DE 35), and have served discovery requests on Defendant Corizon for this purpose. Even if it were proper to consider the issue of class certification on a motion to dismiss, Plaintiff K.G. has satisfied the Rule 23 requirements. Under Rule 23(a), a plaintiff seeking to represent a class must establish four elements often referred to as numerosity, commonality, typicality and adequacy of representation. Barlow v. Marion County Hosp. Dist., 88 F.R.D. 619, 623 (M.D. Fla. 1980). In order to certify a subclass under Rule 23(c)(5), the court must determine that at least one member of each subclass among the injured with respect to the claims made by members of that subclass. Susan J. v. Riley, 254 F.R.D. 439, 451 (M.D. Ala. 2008). The plaintiff must also show that the proposed subclass meets at least one subsection of Federal Rule of Civil Procedure 23(b)(2). A. Numerosity The Second Amended Complaint alleges that on any particular day, the Polk County Jail houses approximately 35 children who suffer from mental illness. (SAC 32, 75, 76.) As the subclass includes present and future members, with its primarily pretrial population changing continuously, its size is in fact even larger. (Id. 30.) The proposed subclass is therefore sufficiently numerous to satisfy this requirement under Eleventh Circuit law. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (stating general rule that fewer than 20 class members is usually inadequate and

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that greater than 40 is usually adequate). Defendants citation to Crawford v. W. Elec. Co., 614 F.2d 1300, 1305 (5th Cir. 1980), for the proposition that a class of 34 does not satisfy [the] numerosity requirement as a matter of law is not quite right. (Mot. at 10.) In Crawford, the Court merely held that the district court did not abuse its discretion in denying class certification on several bases, and that it could not be said, as a matter of law, that a class of 34 necessarily satisfies numerosity such that the district courts finding on that element required reversal. 614 F.2d at 1305. Defendants reliance on Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009), is misplaced. As Defendants motion shows (Mot. at 10), in Vega the Court reversed the district courts grant of class certification only when, following discovery (deposition testimony), the plaintiffs were unable to make a sufficient factual showing of numerosity. 564 F.3d at 1263. Simply put, Corizon provides no legal authority to support its claim that denial of class certification prior to discovery in this case would be appropriate. As noted in Vega, a plaintiff need not show the precise number of members in the class. 564 F.3d at 1267 (citing Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir.1983)). While a plaintiff must at least provide an allegation regarding the size of the class, K.G. has done just that. Indeed, in Barlow, the court held that [c]onditional acceptance of [an] estimate as proof of class size is further supported by the fact that discovery is not complete. 88 F.R.D. at 625. Notably, Defendant Corizon, which is solely in possession of the very data at issue, has not factually disputed the estimated size of the subclass identified by Plaintiffs.

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Corizon erroneously argues that Plaintiff K.G.s identification of four other youngsters who similarly suffer from the deliberate indifference to their mental health needs at the jail is fatal to her claim for certification of the subclass. (Mot. at 12.) Defendants argument fails to recognize that not every member of a class or subclass need be personally identified in a complaint. A class is often particularly appropriate in cases where not every member can be individually identified or where future members are also likely to come into the subclass over time. In such cases, joinder is

impracticable, as members of the subclass include future members whose names are not yet known. See, e.g., Kilgo v. Bowman Transp. Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding joinder impracticable where the class included future and deterred job applicants who could not be identified). The only issue is whether a subclass in fact exists; a fact that can and will be proven, as it typically is, following discovery. Additionally, the general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1). Armstead v. Pingree, 629 F. Supp. 273, 279 (M.D. Fla. 1986) (quoting Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975)). The requirement is not to be applied in a yardstick fashion. Id. B. Commonality Defendant Corizons argument with regards to commonality also fails. Again, Corizon largely relies on Vega, which on this point dealt with the separate question of whether common questions related to employment contract claims predominated over individual questions. (Mot. at 13.) The case is wholly inapposite.

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Corizon essentially argues that, because there can be different types of mental illness and treatment, a subclass of children with mental illness does not meet commonality requirements. (Mot. at 15-16.) Federal Rule of Civil Procedure 23(a)(2), however, does not require that claims be identical. In fact, the commonality requirement is generally easily satisfied because it only requires a single issue common to the class. Mauldin v. WalMart Stores, 2002 U.S. Dist. LEXIS 21024 at *26 (N.D. Ga. Aug. 23, 2002) (citing Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) (allowing class certification of all female employees based upon the common question of whether Defendants policy of excluding prescription contraceptives violated Title VII)). Class members need not allege that they suffered precisely the same injury as other class members. Hassine v. Jeffes, 846 F.2d 169, 176-77 (3d Cir. 1988) (reversing district court denial of class certification to prisoners alleging constitutional violations regarding detention conditions). Rather, it is sufficient for the named plaintiffs to allege harm that is common to the entire class. Id. at 177. Courts have repeatedly certified classes and subclasses alleging systemic constitutional violations arising from deliberate indifference to serious medical needs at an institutional level, like those alleged here. See, e.g., Flynn v. Doyle, 2007 U.S. Dist. LEXIS 22659, at *10-13 (E.D.Wis. Mar. 14, 2007) (certifying subclass of female prisoners with different disabilities alleging deliberate indifference to serious medical needs); Dean v. Coughlin, 107 F.R.D. 331, 333-34 (S.D.N.Y. 1985) (certifying class of prisoners alleging systemic deficiencies in provision of dental care, rejecting defendants argument that certification was inappropriate because of each prisoners unique dental

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history and needs); Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972) (class action by prisoners alleging deliberate indifference to serious medical needs), affd, 503 F.2d 1320 (5th Cir. 1974). Defendants argument that common questions of law or fact simply do not exist does not withstand scrutiny. (Mot. at 16.) It is beyond dispute that Plaintiff K.G. alleges not an individual claim, but systemic unconstitutional practices that present numerous common questions of fact and law to this proposed subclass. These include the a pattern of delaying needed assessments, medication and treatment, and systemically providing medication in a manner that is contraindicated, including by failing to provide the appropriate dosage, allowing medication to run out, failing to provide mechanisms to promptly make up for missed doses, and crushing or dissolving medications contrary to the product label. These systemic deficiencies regarding the treatment of children with mental illness place those children at unreasonable risk of substantial harm in violation of the Constitution. C. Typicality As to typicality, Rule 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. This requires a nexus between the class representatives claims or defenses and the common questions of fact or law which unite the class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). Here, the claims of Plaintiff K.G. is typical of those of the subclass. Specifically, her claims illustrate systematic constitutional violations in the treatment of children with

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mental illness. Those violations present the same substantial risk of serious harm to all members of the proposed subclass. Although there are likely to be individual factual differences between the harms suffered by the proposed class, their claims arise from the same practices and conduct by the same Defendants. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985) (finding the similarity of the legal theories can be strong enough to override the factual differences of the claims). In this case, the factual and legal questions common to the subclass will require the same legal analysis, and the same evidence of Corizons unconstitutional actions and omissions. Because the policies, practices and customs challenged by Plaintiff K.G. apply with equal force to all other members of the subclass, her claim is typical of the subclass in general. Again Defendants reliance on Vegaa case relating to a series of individualized contractsis misplaced. As shown above, courts have repeatedly found class

certification appropriate where individual prisoners complain of systemic deficiencies in the provision of medical care, even though their claims may not be identical. Here, Plaintiff K.G. has illustrated a pattern of systemic deficiencies that similarly put at risk all children at the Polk County Jail who suffer from mental illness. Her claims are therefore typical of the subclass. D. Adequacy of representation As to this element, Defendant Corizon argues only that K.G. has failed to provide enough information to demonstrate that she is an adequate class representative. Defendant has not, however, identified what information is purportedly lacking. Moreover, in Plaintiffs Motion to Certify the Subclass (DE 35), Plaintiffs have shown,

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among other things, that (1) counsel for the representative parties are qualified, experienced, and generally able to conduct the proposed litigation, and (2) the plaintiff, who seeks only injunctive relief, does not have interests antagonistic to those of the rest of the class. Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985). Plaintiffs have therefore satisfied this prong. E. Rule 23(b)(2) Lastly as to class certification, Defendant argues that Plaintiff K.G. has not established the propriety of class certification under Rule 23(b)(2). (Mot. at 19-20.) That provision states that certification may be granted where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Defendant argues that this provision is not applicable because the complaint does not allege that Corizon failed to act entirely. (Mot. at 19.) Yet it is plain from the language of the rule that it encompasses both actions, and refusals to act. In this case, Plaintiff K.G. alleges several ways in which Corizon systemically acts or refuses to act on grounds generally applicable to the subclass: in short, their policies, practices, acts and omissions (including grossly inadequate assessments, systemic delays in providing medication, provision of medications in forms that are contraindicated, particularly crushing) affect all subclass members. Plaintiff K.G. seeks class certification only for declaratory and injunctive relief. Plaintiffs therefore satisfy the requirement of Federal Rule 23(b)(2).

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V.

PLAINTIFFS STATE A CLAIM AGAINST CORIZON UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS Corizons argument that Plaintiff K.G. fails to state a claim for relief is also

without merit. To start, Corizon argues that because K.G. is a pre-trial detainee, the Court should dismiss the claim under the Eighth Amendment, which applies only to convicted persons. (Mot. at 20-21.) The Court previously rejected the same argument by Defendant Polk County Sheriff, considering that while the vast majority of detainees at the jail are pre-trial, not all are, and that the pertinent Eight and Fourteenth Amendment standards differ little, if at all. (DE 43, pgs. 4-5) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1024 n.5 (11th Cir. 2001)). See also Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) ([I]t makes no difference whether [plaintiff] was a pretrial detainee or a convicted prisoner because the applicable standard is the same, so decisional law involving prison inmates applies equally to cases involving . . . pretrial detainees. (citation omitted) (omission in original)). Given that this subclass will also include individuals who have been adjudicated or convicted of an offense, the Court should again deny the attempt to dismiss the Eighth Amendment claim in order to ensure that all class members are protected. Defendant next argues that Count 4 should be dismissed as to Corizon because K.G.s claims are devoid of any factual allegations supporting the claim of deliberate indifference with respect to constitutional violations. (Mot. at 21.) Corizons argument is premised on the unsupported assertion that the systemically improper administration of psychotropic medications to K.G., and others similarly situated, is the result of

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negligence or mistake. However, at the motion to dismiss stage, it is the Plaintiffs allegations that control. As alleged, the actions and omissions by Corizon do not reflect an individual lapse of judgment on an isolated occasion, but rather a systemic, continuing pattern of deliberate indifference to childrens mental health needs, subjecting all similarly situated children to unnecessary pain and suffering and putting them at risk of substantial harm. (SAC 88.) Plaintiff K.G.s allegations of systemic policies and practices reflect

deliberate indifference to serious medical needs. (SAC 75-90; 128-135.) In Mann, et al., v. Taser Intl, et al., 588 F.3d 1291, 1307 (11th Cir. 2009)a case cited by Corizonthe Eleventh Circuit stated that to provide deliberate indifference, Plaintiffs[] must show: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) conduct that is more than mere negligence. (internal quotation omitted). Plaintiff K.G. has clearly pled sufficient facts establishing these elements. Among other allegations, Plaintiff K.G.who has been diagnosed with borderline personality traits, mood disorder, posttraumatic stress disorder, attention deficit hyperactivity disorder, and oppositional defiance, who has a history of suicidal ideation, and who has been on medication to treat her mental illness since age 11 repeatedly put Corizon on notice of her serious mental health needs, yet was repeatedly deprived of needed medications and provided medication in a contraindicated fashion. (SAC 128, 130, 131, 133.) Plaintiff K.G. has also alleged that Corizon staff are aware that children are particularly vulnerable to harm from inappropriate variations in psychiatric medication, inappropriate dosage, withdrawal, and contraindicated provision

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of medication, given that childrens brains are still developing, yet systemically delay or deny necessary medication to this population. (Id. 80.) K.G.s experience is

repeated again and again in the illustrations of the other children described in the Second Amended Complaint, D.D., B.G.2., C.D., J.N. (Id. 84-87.) This deliberate

indifference to a serious medical need subjects children to unnecessary pain and suffering and creates an unreasonable risk of self-harm, suicidal ideation, and acting out against others. (Id. at 134.) As Plaintiffs state a constitutional claim, Florida pre-suit

procedures in medical malpractice cases have no bearing. (Mot. 22.) VI. INJUNCTIVE RELIEF IS APPROPRIATE Lastly, Defendant Corizons objection to the granting of injunctive relief as to Count 4 is premature.8 (Mot. at 22-23.) The Court has set trial in this matter for May 2013, at which time the Court will determine what relief is appropriate. The propriety of any particular remedy is not the basis for a motion to dismiss. Nevertheless, it is worth noting that injunctive relief is necessary to protect this subclass, as the harms they face from constitutionally deficient responses to serious mental health needs put them at risk of irreparable harm. Among these is the risk of suicide, which even for those without mental illness, is increased when children are detained in adult jails. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that Defendants Motion to Dismiss (DE 77) be denied.
8

Plaintiffs have only moved for a preliminary injunction as to Count 2, which is not brought against this Defendant. (See DE 4, 53.)

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Respectfully submitted, /s/ Miriam Haskell . Miriam Haskell (Fla. Bar No. 69033) Tania Galloni (Fla. Bar. No. 619221) SOUTHERN POVERTY LAW CENTER P.O. Box 370037 Miami, FL 33137 T: (786) 347-2056 F: (786) 238-2949 miriam.haskell@splcenter.org tania.galloni@splcenter.org BAKER & McKENZIE LLP Donald J. Hayden (Fla. Bar. No. 097136) donald.hayden@bakermckenzie.com Joseph J. Mamounas (Fla. Bar No. 041517) joseph.mamounas@bakermckenzie.com Sabadell Financial Center 1111 Brickell Avenue, Suite 1700 Miami, FL 33131 Telephone: (305) 789-8900 Facsimile: (305) 789-8953 Steven Chasin (admitted pro hac vice) 815 Connecticut Ave., N.W. Washington, DC 20006 Telephone: +1 202 835 6132 Facsimile: +1 202 416 7132 steven.chasin@bakermckenzie.com Joseph P. Rindone (admitted pro hac vice) 1114 Avenue of the Americas New York, NY 10036 Telephone: +1 212 626 4941 Facsimile: +1 212 310 1723 joseph.rindone@bakermckenzie.com Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 19, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Miriam Haskell Miriam Haskell .

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SERVICE LIST CASE No. 8:12-cv-00568-SDM-MAP Henry B. Hank Campbell Jonathan B. Trohn Robert J. Aranda William Thompson McKinley VALENTI CAMPBELL TROHN TOMAYO & ARANDA 1701 South Florida Avenue Lakeland, FL 33803 Tel: (863) 686-0043 Fax: (863) 616-1445 Attorneys for Defendant GRADY JUDD, Polk County Sheriff

Ramon Vazquez Jeanelle G. Bronson Patrick H. Telan GROWER, KETCHAM, RUTHERFORD, BRONSON EIDE & TELAN, P.A. P.O. Box 538065 Orlando, FL. 32853-8065 Tel.: 407-423-9545 Fax: 407-425-7104 Attorneys for Defendant CORIZON HEALTH, INC.

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