R.G., an individual; C.P., an individual by and through her next friend, A.W.; and J.D., an individual, Plaintiffs, v. Lillian KOLLER, Director of the State of Hawaii Department of Human Services, in her individual and official capacities; Sharon Agnew, Director of the Office of Youth Services, in her individual and official capacities; Kaleve Tufonoiosefa, Hawaii Youth Correctional Facility Administrator, in her individual and official capacities; et al., Defendants, 415 F. Supp. 2d 1129

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION SEABRIGHT, District Judge. Based on a 2004 investigation of the conditions at the Hawaii Youth Correction Facility (“HYCF”), the United States Department of Justice (“DOJ”) found it “no exaggeration to describe HYCF as existing in a state of chaos.” After reviewing the extensive pleadings filed by the parties and holding an evidentiary hearing, the court finds that the DOJ finding is in fact not exaggerated.

Plaintiffs filed a motion for preliminary injunction seeking relief on their Due Process, Equal Protection, Establishment Clause and access to counsel claims.

Plaintiffs ask the court to require defendants to refrain from harassing, abusing, discriminating against, or isolating plaintiffs based on their actual or perceived sexual orientation, gender identity or sex; to refrain from failing to protect plaintiffs from anti-lesbian, gay, bisexual, and transgender (“LGBT”) peer harassment and abuse; to refrain from endorsing religion and engaging in religious indoctrination; and to refrain from obstructing plaintiffs’ access to counsel.

Plaintiffs also ask the court to direct defendants to retain a mutually agreed-upon corrections expert to guide development and implementation of necessary policies, procedures, and training at HYCF. For the reasons stated herein, the court GRANTS the plaintiffs’ motion for a preliminary injunction as to their Due Process claim and DENIES their motion for preliminary injunction as to their Establishment Clause and access to counsel claims. The court does not reach the plaintiffs’ Equal Protection claim. I.

BACKGROUND HYCF is a secure juvenile correctional facility operated by the State of Hawaii Office of Youth Services (“OYS”) and located in Kailua, Hawaii. OYS is administratively associated with the Department of Human Services (“DHS”). Children who have been adjudicated delinquent in court may be committed to HYCF, the only such secured facility in the State of Hawaii. (Department of Justice Report (“DOJ Report”) at 3, attached as Ex.

B to the Declaration of Lois Perrin (“Perrin Decl.”).) HYCF is separated into three housing units: the Secured Care Facility, which is comprised of three housing modules for boys; the Observation and Assessment Cottage (“O & A”) for girls; and Ho'okipa Makai, a cottage for housing short-term boys. (Declaration of Kaleve Tufono-Iosefa (“Tufono-Iosefa Decl.”) ¶¶ 6-9.) Plaintiffs are three teenagers who have been confined at the HYCF and who either identify as or are perceived to be LGBT. Each of the plaintiffs has been confined at HYCF on more than one occasion.

Plaintiffs sought and received permission to proceed in this action using pseudonyms. Plaintiff R.G. is a gay female who has been confined at HYCF on three occasions, for a total of approximately fifteen months. (Declaration of R.G. (“R.G. Decl.”) ¶¶ 2, 3, 7, 44-47.) R.G. was first confined at HYCF from March 2004 to June 2004. (R.G. Decl. ¶¶2, 3, 7, 44-47; Ex. G to Tufono-Iosefa Decl.) R.G. was later returned to HYCF in August 2004 and remained there until August 2005. (R.G. Decl. ¶ 7; Ex. G to Tufono-Iosefa Decl.).

R.G. was returned to HYCF a third time on September 8, 2005, after the Complaint in this action had been filed. (R.G. Decl.f 47.) Plaintiff J.D. is a boy who was perceived to be gay while at HYCF. HE has been confined at HYCF on two occasions, for a total of approximately six months. J.D. was first confined at HYCF from July 27, 2004 until January 4, 2005. (Ex. I to Tufono-Iosefa Decl.; Declaration of J.D. (“J.D. Decl.”) ¶ 48.) J.D. was returned to HYCF a second time on June 20, 2005 and remained there until July 5, 2005. (J.D. Decl. ¶¶ 50, 53; Ex.

I to Tufono-Iosefa Decl.) Plaintiff C.P. is a transgender girl who was first confined at HYCF in February 2004. (Declaration of C.P. (“C.P. Decl.”) ¶ 10.) C.P. remained at HYCF for most of 2004, excepting a short-lived foster placement in July of 2004. (C.P. Decl.lHf 11, 25.) C.P. was placed in a foster program in December of 2004 and remained in foster placements until her return to HYCF in August of 2005, shortly before the Complaint was filed in this action. (C.P. Decl. ¶¶ 51-52.) C.P.’s confinement at HYCF totaled approximately eight months.

Defendants are, in their individual and official capacities: Lillian Roller, Director of the DHS; Sharon Agnew, Director of OYS; and Raleve Tufono-Iosefa, the HYCF Administrator (‘Youth Facility Administrator” or “YFA”).

The court refers to Roller, Agnew, and Tufono-Iosefa collectively as the “supervisory defendants.” The following Youth Corrections Officers CYCOs”) and Youth Corrections Supervisors (“YCSs”) are also defendants: YCO Cynthia Hubbell, YCS Phyllis Rósete, YCO Earlene Josiah, YCO Leila Holloway, YCO Henry Haina (also an HYCF Investigator), YCO Richard Rohler, former YCO and current YCS Mitch Simao, and YCO Michael Rim. The defendants challenged the plaintiffs’ standing to seek injunctive relief and the court heard argument on the standing issue on November 21, 2005.

At the November 21, 2005 hearing, the court ruled that the plaintiffs have standing; the court provides its reasoning for that decision in this order. The court held an evidentiary hearing on the plaintiffs’ motion on December 20-21, 2005. At the hearing, both the plaintiffs and the government called witnesses and submitted declarations and exhibits. The court bases its decision on all of the evidence submitted. II.

LEGAL STANDARD In determining whether to grant a preliminary injunction, the courts in the Ninth Circuit have traditionally considered the following factors: (1) the likelihood of plaintiffs success on the merits; (2) the possibility of plaintiffs suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief. United States, v.

Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987) (citation omitted). “To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor.” Id. These standards represent two extremes on a continuum in which “the required degree of irreparable harm increases as the probability of success decreases.” Id. See also Dymo Indus., Inc. v.

Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir.1964) (“The grant of a preliminary injunction is the exercise of a very far reaching power never to be indulged in except in a case clearly warranting it.”). In addition, “advancement of the public interest” is one of the “traditional equitable criteria for granting a preliminary injunction.” Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir.2001) (citation omitted).

On this motion, plaintiffs seek mandatory relief in addition to a prohibitory injunction, in the form of an order directing defendants to retain a mutually agreeable expert to guide them in reforming practices prohibited by the court. Plaintiffs contend that defendants lack the expertise necessary to prevent further violations of plaintiffs’ rights; the plaintiffs also contend that the defendants lack the expertise necessary to select an expert to guide them in reforming their practices.

When a party “seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction.” Martin v. Int’l Olympic Comm., 740 F.2d 670, 675 (9th Cir.1984). Nevertheless, it is appropriate to issue a mandatory preliminary injunction when both “the facts and law clearly favor the moving party.” Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir.1993). III. ANALYSIS A. The Plaintiffs Have Satisfied the

Article III Case or Controversy Requirement

Article III,

section 2 of the United States Constitution confines federal courts to deciding cases or controversies. A plaintiff in a federal case must show that an actual controversy exists at all stages of the case. Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). No case or controversy exists if a plaintiff lacks standing to make the claims asserted. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (stating that standing pertains to a federal court’s subject matter jurisdiction). 1.

The Plaintiffs Have Standing Standing is determined based on the facts at the time of filing of the complaint. Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.2001). To have standing, a plaintiff must demonstrate:

(1) An injury in fact, that is, an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiffs easily meet the second two standing requirements, causation and redressability.

Causation exists because the plaintiffs’ injuries — pervasive youth-on-youth and staff-on-youth harassment, discrimination, and abuse — allegedly result directly from HYCF’s lack of adequate policies and procedures. The defendants run a secured youth facility, and they control and bear ultimate responsibility for the environment they create at that facility. It follows that the plaintiffs’ injuries are likely to be redressed if the relief they seek is granted.

The plaintiffs seek an injunction preventing the defendants from engaging in unconstitutional conduct and requiring them to implement policies and procedures to ensure the plaintiffs’ safety at HYCF. Because the conditions at HYCF caused the injury to the plaintiffs, enjoining certain unconstitutional conduct and requiring defendants to implement policies and procedures to remedy those conditions will remedy the plaintiffs’ injury. The injury-in-fact requirement poses a more difficult question.

The plaintiffs seek injunctive relief, yet none of the plaintiffs was incarcerated at HYCF at the time the Complaint was filed. A plaintiff seeking injunctive relief must show that he or she “can reasonably expect to encounter the same injury in the future.” 13 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3531.2 (2d ed.1984) (citing Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). See also Armstrong v.

Davis, 275 F.3d 849, 860-61 (9th Cir.2001) (“[W]here, as here, a plaintiff seeks prospective injunctive relief, he must demonstrate ‘that he is realistically threatened by a repetition of [the violation].’ ” (Quoting Lyons, 461 U.S. at 109, 103 S.Ct. 1660.) (Final alteration in original.)); La-Duke v. Nelson, 762 F.2d 1318, 1324 (9th Cir.1985) (plaintiff must show a “likelihood of similar injury in the future”). In order to satisfy the likelihood-of-repetition requirements, the plaintiffs must show:

(1) They reasonably expected, at the time of filing the Complaint, to be returned to HYCF; and (2) they reasonably expected, at the time of filing the Complaint, that if returned, they would be subjected to similar conditions. Plaintiffs’ showing suffices on both counts. First, the plaintiffs have shown that, as of September 1, 2005 (when they filed the Complaint), each plaintiff was likely to return to HYCF. When the Complaint was filed, plaintiff R.G. was on parole from HYCF and was residing at the Sand Island Treatment Center.

Prior to this placement, R.G. had been incarcerated at HYCF on two separate occasions. First, she spent three months at HYCF beginning in March 2004. She was then released to a treatment program at the Bobby Benson Center where she remained for a short time before running away. On August 4, 2004, R.G. was returned to HYCF. She spent over a year at the facility before being released on parole to the Sand Island Treatment Center on August 24, 2005.

By September 29, 2005, when plaintiffs filed their Amended Complaint, R.G. had been incarcerated at HYCF for a third time after the Sand Island Treatment Center sent her back to HYCF on September 8, 2005. As of the filing of the Complaint, J.D. had been incarcerated at HYCF on two separate occasions. First, J.D. was at HYCF from July 17, 2004 to January 4, 2005, when he was released to an independent living facility. He was returned to HYCF on June 20, 2005 for noncompliance with house rules. He then remained at HYCF until July 5, 2005, his eighteenth birthday.

Shortly after leaving HYCF, J.D. went to family court for conduct that took place while he was a juvenile placed at HYCF. As a result, J.D. was placed on probation until his nineteenth birthday. When the Complaint was filed, C.P. had been incarcerated at HYCF on three separate occasions. She was first incarcerated from February 2004 to July 2004, when she was released to a foster parent. C.P. then returned to HYCF only a few weeks later after running away from her foster parent. She then remained at HYCF until December 23, 2004 when she was released to another foster home.

C.P. remained at this second home until August 10, 2005 when she returned to HYCF for one week before being released to live with her parents. Each of the plaintiffs has been incarcerated at HYCF two to three times over a relatively short period of time. Each had been released only to return to HYCF a short time later. The plaintiffs’ experiences thus indicate that, at the time the Complaint was filed, each plaintiff was likely to return to HYCF. See Demery v.

Arpaio, 378 F.3d 1020, 1027 (9th Cir.2004) (affirming entry of a preliminary injunction based on determination that plaintiffs who had been arrested and incarcerated repeatedly were likely to be re-incarcerated and subjected to the same unconstitutional conditions), cert. denied, — U.S. -, 125 S.Ct. 2961, 162 L.Ed.2d 887 (2005). Moreover, statistics regarding parole revocation further confirm plaintiffs’ reasonable expectation of return to HYCF as of the time of filing.

During the fiscal years 1996-1998, recidivism rates were as follows: 82.2 percent of released wards were rearrested; 57.3 percent of released wards were reconvicted; and 32.2 percent of released wards were re-confined at HYCF or a secure adult facility. (Ex. 1 (Attorney General of Hawaii Report to OYS Feb. 2001 (“AG Report”)) to Supplemental Perrin Declaration (“Supp. Perrin Deck”) at 2; see also Declaration of Melvea Hardy (“Hardy Deck”) ¶¶ 7-9.) YFA Tufono-Iosefa testified that a “conservative estimate” was that five youths were returned to HYCF from parole each month. (Tr.

I. at 192:20-24.) With respect to wards who, like J.D., are on probation, the AG found that “[cjommitments for probation revocation accounted for 27%” of first-time commitments to HYCF. (Ex. 1 (AG Report) to Supp. Perrin Deck at 2); see also Declaration of Carolyn Brown (“Brown Deck”) ¶¶ 12-14. The likelihood that the plaintiffs would return to HYCF was therefore neither remote nor speculative. The defendants argue that the plaintiffs do not have standing because they will only return to HYCF if they violate the law.

They cite Lyons and its progeny for the proposition that “standing is inappropriate where the future injury could be inflicted only in the event of future illegal conduct by the plaintiff.” Armstrong, 275 F.3d at 865 (citing Lyons, 461 U.S. at 108, 103 S.Ct. 1660). The Ninth Circuit, however, has distinguished Lyons when the conduct that may trigger a future violation is not unlawful.

In Armstrong, parolees had standing to challenge the conditions at parole revocation hearings because parolees could be subjected to unconstitutional conditions at the hearings on the mere suspicion that they had violated their parole. Armstrong, 275 F.3d at 866; see also Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 (9th Cir.1999) (holding that plaintiffs had standing to challenge stops by the United States Border Patrol because plaintiffs could be stopped without engaging in illegal conduct). The plaintiffs in this case need not engage in illegal conduct to be returned to HYCF. (Ex. 1 (AG Report) to Supp.

Perrin Deck at 13-15 (identifying legal behavior that can result in return to HYCF)); Declaration of Shauna Kamaka (“Kamaka Deck”) ¶¶ 5-9; Ex. 1 to Kamaka Deck; Hardy Deck ¶¶ 8-9; Ex. 3 to Brown Deck; Brown Deck ¶ 14. In fact, as demonstrated in the declaration of HYCF social worker Melvea Hardy, HYCF parolees can be returned not only for a violation of a condition of parole, but also at the request of a program where the ward is placed.

Hardy explains, as an example, that Sand Island Treatment residents can vote wards “off the island,” resulting in a return to HYCF even though the ward committed no misconduct. (Hardy Deck ¶¶ 8-9.) At the time of filing, plaintiffs C.P. and R.G. were on parole from HYCF and thus subject to return at any time, for any number of reasons, including breaking curfew, not following program rules, not attending school on a regular basis, running away, or even quitting a job. (Kamaka Deck ¶ 9; Ex. 1 to Kamaka Deck) Plaintiff J.D. was on probation and subject to return to HYCF until his nineteenth birthday, in July 2006, for any violation of the terms of his probation. (See Brown Deck ¶¶ 9-13; Exs. 1-3 to Brown Deck) Plaintiffs presented evidence that they could be returned to HYCF for mere suspicion of misconduct that falls well short of unlawful activity or even because of third-party conduct. (Ex. 1 to Kamaka Deck; Kamaka Deck ¶¶ 5-9; Hardy Deck ¶¶ 8-9.) Indeed, R.G. alleges that she was returned from the Sand Island facility based on no misconduct of her own. (R.G.

Decl.f 45.) Second, the plaintiffs have shown that if they are returned to HYCF they will be subject to the same allegedly unconstitutional conditions that formed the basis of then- Complaint. The unconstitutional conditions at HYCF are alleged to be systemic. Plaintiffs contend that HYCF lacks the policies and procedures necessary to prevent the pervasive harassment, discrimination, and abuse that takes place at the facility. This is not a case, like Lyons, where the alleged conduct occurred as an isolated incident that was not the result of a policy or larger culture.

Rather, plaintiffs’ expectations that they would be subjected to unconstitutional conditions if returned to HYCF was objectively reasonable in light of the repeated and persistent nature of the defendants’ alleged unconstitutional conduct. See Armstrong, 275 F.3d at 861 (“[W]here the defendants have repeatedly engaged in the injurious acts in the past, there is a sufficient possibility that they will engage in them in the near future to satisfy the ‘realistic repetition’ requirement.”).

On this record, plaintiffs have demonstrated a reasonable expectation that they will be returned to HYCF and they have shown that, if returned, they are likely to be subjected to the same conditions alleged in the Complaint. 2.

R.G. ’s Claims Are Not Moot After plaintiffs filed this motion, and while R.G. was briefly absent from her residential placement program in November 2005, defendants submitted testimony of HYCF’s Parole Administrator, Devon Enesa, asserting Enesa’s intent on to avoid placing R.G. back in HYCF for a parole violation. (Transcript of 11/21/05 hearing (“11/21 Tr.”) at 15:9-16:20.) However, defendants’ asserted intentions do not moot R.G.’s claims. Defendants have not met their “heavy burden” to submit evidence of events subsequent to filing that deprive R.G. of a continuing interest in conditions at HYCF.

Demery, 378 F.3d at 1025. Enesa’s statement of intent to recommend that R.G. not be returned to HYCF neither establishes that she will not be sent back to HYCF nor gives her the relief she has requested. Accordingly, her claims are not moot as the court still can grant her effectual relief. Where an assertion of mootness is based on defendants’ voluntary cessation of a challenged practice, the test for mootness is especially “stringent” and defendant bears a “formidable” burden. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-90, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

First, it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citation omitted). Second, the defendant must demonstrate that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). “[T]he heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. ” Adarand Constructors, Inc. v.

Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (internal quotation signals, brackets and citation omitted). Under this standard, Enesa’s recommendation that R.G. not be returned to HYCF for her November parole violation does not moot R.G.’s claims.

First, neither Enesa nor any of the defendants has the legal authority to detain R.G. at a facility other than HYCF. (11/21 Tr. at 15:18-16:20.) That determination is subject to the decisions of the prosecutor’s office and the adult court. (11/21 Tr. at 26:24-27:20.) Should the state choose not to prosecute R.G. for her November parole violation, R.G. could be returned to HYCF. (11/21 Tr. at 27:16-20.) Second, Enesa’s recommendation that R.G. go to the adult detention facility following her November parole violation was contingent on R.G. failing to return to her program within a specified time period.

R.G. ultimately returned to her program within the allotted time, rendering the recommendation irrelevant. Finally, even if the court assumes that Enesa would make a similar recommendation for R.G. if faced with a future parole violation, such a recommendation would not insure that R.G. would not return to HYCF; in any event, this assumption is too speculative for the court to conclude that the defendants have shouldered their “heavy burden” of showing that R.G. cannot be subjected to the same challenged conduct at HYCF. 3.

C.P. ’s Claims Are Moot C.P. was originally subject to HYCF’s jurisdiction until her eighteenth birthday. As C.P. testified, she is no longer in custody of HYCF and, because she turned eighteen in December 2005, she cannot be returned to HYCF. (Transcript of 12/20/05 Hearing (“Tr. I”) at 135:6-14.) Because there is now no realistic possibility that C.P. will be returned to HYCF, her claims have become moot. The plaintiffs argue that C.P.’s claims are not moot because C.P. could be prosecuted for conduct that occurred while she was a minor and, as a result.

HYCF’s jurisdiction could be extended until her nineteenth birthday. The plaintiffs point out that HYCF’s jurisdiction over J.D. was extended until his nineteenth birthday under similar circumstances; shortly after J.D. was released from HYCF on his eighteenth birthday, he was prosecuted for conduct that occurred at HYCF while he was a minor and was placed on probation subject to return to HYCF as a result. (J.D.

Decl. ¶ 54; Brown Deck ¶¶ 8-11.) In contrast to J.D.’s case, however, several months have passed since C.P. was released to live with her parents and there is no indication that she will be prosecuted for any conduct that occurred while she was a minor. Any possibility that C.P. might be prosecuted for

an act that occurred while she was a minor, returned to the jurisdiction of HYCF, and ultimately incarcerated at HYCF is simply too remote at this point to support standing. Therefore, C.P.’s claims have become moot. Though C.P. no longer has standing, the court allowed her to testify at the hearing. The plaintiffs allege systemic harassment of LGBT youth at HYCF, as well as differential treatment by staff and administrators.

Evidence regarding C.P.’s experience at HYCF is therefore relevant to the remaining plaintiffs’ claims insofar as it shows the extent and nature of the alleged abuse and harassment at HYCF. 4. The Defendants’ Conduct Since the Filing of the Complaint has not Mooted the Plaintiffs’ Claims HYCF has recently adopted a ‘Youth Rights” policy that provides that youth should not be discriminated against on the basis of “sexual orientation.” (Ex. D. to Tufono-Iosefa Decl.) Other than this simple statement, the current policies at ITYCF remain silent with respect to the treatment and care of LGBT youth. (Ex.

D. to Tufono-Iosefa Decl.; Hardy Decl. ¶ 4; Declaration of Linda Hadley (“Hadley Decl.”) ¶ 8; Supplemental Bidwell Declaration (“Supp. Bidwell Decl.”) ¶ 8.) There is no evidence, aside from the policies themselves, that HYCF has altered its treatment of LGBT wards. Moreover, defendants’ voluntary adoption of new policies does not moot plaintiffs’ claims for injunctive relief.

Again, in cases of voluntary cessation, the defendant bears a “formidable” burden; it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693 (emphasis added), and the defendant must demonstrate that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. at 631, 99 S.Ct. 1379 (citations omitted). Defendants have made no such showing. B.

The Plaintiffs Are Entitled to a Preliminary Injunction 1.Findings of Fact Unless otherwise indicated, the court finds that the followings facts have been proven to be more probably true than not true. To the extent that any of these findings of fact are conclusions of law, they are to be so construed. Credibility Determinations 1. The findings set forth below are based in part on the court’s preliminary credibility determinations. 2. Defendants requested, and the court ordered, an evidentiary hearing on plaintiffs’ motion to allow defendants to test the credibility of the plaintiffs. 3.

Defendants offered as evidence of bias relevant to plaintiffs’ credibility a series of instances in which each plaintiff was disciplined by a defendant YCO for various infractions of HYCF rules. 4. The court finds for purposes of this motion that R.G. was credible as to her relevant testimony concerning abuse and harassment, including her testimony that she did not fabricate allegations in order to retaliate against defendants for discipline they imposed. This preliminary finding is based on:

(1) R.G.’s demeanor on the stand;

(2) HYCF documents, which provide contemporaneous corroboration of other material details of R.G.’s testimony; (3) corroboration by other witnesses, who reported their personal observations to medical staff; and (4) the expert medical opinion of Dr. Bidwell that plaintiffs’ contemporaneous and subsequent conduct is consistent with that of victims of traumatic harassment. (Tr. I at 67:9-68:10.) Moreover, R.G.’s stories are supported by the testimony of Dr.

Bidwell that “[ejvery single one” of the approximately twelve to fifteen LGBT wards who have been openly LGBT at HYCF have complained of similar harassment and abuse. (Tr. I at 75:6-15.) 5. While the court does have some concern with C.P.’s admission on the stand that she has made untruthful statements in order to get what she wants (Tr. I at 146:1-8), the court does not find that her allegations against HYCF were fabricated. C.P. generally appeared honest and forthcoming on the stand.

Moreover, her testimony was corroborated in the same manner that R.G.’s testimony was corroborated: through HYCF documents, other witnesses, Dr. Bidwell’s observations, and her own contemporaneous grievances and statements made to medical staff. 6. The court was also concerned by J.D.’s demeanor on the stand. J.D. sometimes made faces and appeared flippant in his responses to questions. At other times, however, J.D. seemed to consider the questions carefully and to provide thoughtful answers. 7. On the whole, the court found J.D. credible as to his relevant testimony concerning abuse and harassment.

His testimony was corroborated in the same manner as R.G.’s and C.P.’s testimony and was not undermined by the defendants’ line of questioning concerning bias. 8. The defendants’ theory — that the plaintiffs concocted this lawsuit in retaliation for HYCF punishing them for minor infractions — simply is not plausible with respect to any of the plaintiffs given the plaintiffs’ own testimony, the corroboration by Dr. Bidwell, contemporaneous complaints by the plaintiffs, and even the testimony of YCO Alvaro.

Alvaro, in a conversational tone and without hesitation, testified about “butchie things going on” at HYCF as if this term were a part of the everyday discourse at HYCF. 9. The court is concerned about the credibility of Tufono-Iosefa.

Tufono-Iosefa declared under oath that HYCF’s retained experts, Larry Miesner and Nelson Griffis, told her that it was appropriate to house male-to-female (“MTF”) transgender youth with the boys, and that the norm in juvenile corrections is to house wards based on their genitalia. (Tufono-Iosefa Decl. ¶¶ 10-11, 22.) Both Miesner and Griffis submitted declarations flatly denying that they ever made such statements. (Declaration of Larry Miesner (“Miesner Decl.”) Decl. ¶¶ 8-10; Declaration of Nelson Griffis (“Griffis Decl.”) ¶¶9-11.) Although it is possible that an innocent misunderstanding may have occurred, both Griffis and Miesner declared that they would not have rendered such opinions.

Griffis and Miesner declared that, in their professional judgment, housing MTF transgender youth with male wards at HYCF is unsafe and inappropriate. (Meisner Decl. ¶ 10, Griffis Decl. ¶ 11.) At the evidentiary hearing, Tufono-Iosefa elaborated on her declaration testimony but did not explain her statement regarding the experts’ opinions. 10. Tufono-Iosefa testified that she neither directed nor had any knowledge of an April 21, 2005 Internal Communication Form (“ICF”) that memorialized the results of a group meeting of the female wards concerning plaintiff R.G. and her girlfriend T.R. (Tr.

I at 187:1-11.) However, Tufono-Iosefa also testified that an ICF ordinarily would not bear her name unless she or her secretary created it, and that her secretary would not create the document absent Tufono-Iosefa’s authorization. (Tr. I 208:7-209:15.) 11. Rebuttal witness Shauna Kamaka, an HYCF social worker, testified that she received the April 21, 2005 ICF from Tufono-Iosefa’s secretary with instructions to review the ICF with R.G. and T.R. Kamaka distributed the ICF to other staff members, who had requested documentation of the newly created rules from the April 20 meeting. (Ex. A to R.G.

Decl.; Transcript of 12/21/05 Hearing (“Tr. II”) at 62:10-64:14 (Kamaka).) 12. Though the court cannot conclude that Tufono-Iosefa authored the ICF or provided false testimony, the court is left with two possible explanations for the document, both of which are highly troubling:

(1) Tufono-Iosefa authored the ICF and lied under oath about doing so; or (2) conditions at HYCF are so chaotic that a document purportedly authored by the YFA containing new rules to be enforced against the wards can be circulated among staff and wards without Tufono-Iosefa’s knowledge. 13. The court finds that Dr. Bidwell, Linda Hadley, YCO Alvaro, and YCO Rósete were all credible. Verbal Abuse By Staff and Other Wards Based on Wards’ Actual or Perceived Sexual Orientation or Gender Identity is Pervasive at HYCF 14.

The record before the court is replete with documents and testimonial evidence demonstrating verbal harassment and abuse. 15. Staff at HYCF, including YCOs Josiah and Hubbell, routinely referred to R.G. as “butchie” or used other slurs based on sexual orientation or failure to conform to gender stereotypes. (R.G. Decl. at ¶ 10; Tr. I at 11:15-12:21 (R.G.); Tr. II at 71:1-72:11 (Hadley); Joint Exs. 26 (Daily Report written by YCO stating that R.G. “carries herself like she’s the bull or something”); 29 (Daily Report written by a YCO noting that R.G. “has an identity problem.

Too much thinking that she is a boy.”); 30 (YCO stating that “staff is getting tired of the butchie action”); 32 (Daily Report written by a YCO, stating that R.G. is “playing the bull”); 38 (Comment Report written by a YCO describing R.G.’s conduct as “butchy action”).) 16.

Defendant Hubbell regularly referred to R.G. and other female wards as “fucking bitches” or “fucking cunts,” and referred to female wards who identify as gay, who express romantic feelings for other girls or who fail to conform to sex stereotypes as “butchie.” Though Hubbell denies making these statements, the court finds credible the testimony of the three rebuttal witnesses who heard Hubbell using these slurs regularly. (Tr.

II at 71:1-72:11 (Hadley); 86:9-16 (R.G.); 88:5-88:16 (J.D.).) For example, HYCF nurse practitioner Linda Hadley credibly testified in rebuttal that Hubbell “on almost a daily basis” used phrases such as “fucking little bitches,” “butehies,” and “fucking cunts.” (Tr. II at 71-72.) 17. Defendant Tufono-Iosefa held a group meeting on April 20, 2005 focusing on R.G.’s romantic relationship with another female ward, T.R. (R.G. Decl. ¶¶ 27-35; Tufono-Iosefa Decl. ¶ 37; Tr.

I at 183:16— 187:15) During this meeting, Tufono-Iosefa expressed her own views that being gay was “wrong” and “disgusting” and required the other wards to develop rules and punishments for R.G. and T.R. (R.G. Decl. ¶¶ 27-35; Hadley Decl. ¶ 3; Tr. II at 74:6-76:1 (Hadley).) Though Tufono-Iosefa denies making these statements (Tr. I at 199:4-18), Hadley credibly testified that two to four wards were upset after the meeting and related to her (Hadley) that during the meeting, Tufono-Iosefa stated that R.G.’s relationship with T.R. was “bad, and it was disgusting.” (Tr. II at 75-76.) 18.

The casual use of the word “butchie” during courtroom testimony by defendants’ witness YCO Lawrence Alvaro reinforces plaintiffs’ testimony that the word is used commonly at HYCF. During direct examination Alvaro testified, in a conversational manner and not quoting other wards or staff, that “[t]here was some talk, you know, like they was saying earlier, about butchie things going on.... ” (Tr. I at 218:12-17.) 19. On a regular basis, other wards called J.D. names such as “wahine,” “pussy,” “gay fucker,” “head,” “dick sucker,” “fag-got,” “mahu,” “gay motherfucker,” and “fucking gay bitch.” (J.D.

Decl. ¶¶ 6, 18, 19. 24, 29; Joint Exs. 57, 61, 86.) 20. YCO Haina, when asked by another ward if J.D. was gay, replied, in the presence of other wards, “Yes, [he] is a legal known fag.” (Declaration of Dr. Robert Bidwell (“Bidwell Deck”) ¶ 31; Joint Ex. 86.) In his sworn declaration, defendant Haina did not deny making this statement. 21. Wards at HYCF routinely called C.P. derogatory names, such as “fucking fag-got” and “fucking mahu,” in the presence of staff. (C.P. Deck ¶ 19; Tr. I at 131:15-18.) Staff testified that such name-calling was a daily occurrence. (Tr. I at 220:19-22 (Alvaro).) 22.

Certain YCOs and YCSs routinely called C.P. derogatory names based on her sexual orientation and/or gender identity. Defendant YCS Mitch Simao repeatedly referred to C.P. as “cupcake” and “fruitcake” (C.P. Deck ¶¶ 17, 20; Tr. I at 131:3-8 (C.P.)), while YCO Tavako regularly referred to C.P. as “twinkle toes” and “fairy.” (C.P. Deck ¶ 18; Tr. I. at 131:17-20 (C.P.).) 23.

On one occasion, when female wards were braiding each other’s hair, Defendant YCS Simao told C.P. she could not have her hair up and that she was not allowed to play with her hair “like the girls.” Various YCOs threatened to cut off C.P.’s hair and to send her “over to the boys” side. (C.P. Deck ¶¶ 16, 19, 21; Tr. I at 130:1-18.) Hadley, HYCF’s nurse practitioner, “[h]eard from HYCF staff that C.P. was being taunted and harassed by other staff and they were telling C.P. that they were going to cut her hair and put her in with the boys.” (Hadley Deck ¶ 4.) 24.

The record before the court establishes that verbal abuse and harassment of LGBT wards is commonplace at HYCF. (Tr. I at 64:9-15; 73:23-75:15 (Bidwell); Tr. I at 220:19-22 (Alvaro) (stating that, although he did not recall hearing wards call J.D. names like “faggot,” “it’s a daily thing”).) Such harassment continues unabated. (Tr. I. at 71:20-73:5 (Bidwell); Bidwell Deck ¶ 16.) 25. Dr. Robert Bidwell is the treating physician at HYCF.

He is also a professor at the University of Hawaii Medical School, and is an expert in the field of adolescent medicine, with special expertise in adolescent medicine in the juvenile correctional setting and in the treatment of LGBT adolescents. Dr. Bidwell testified that the use by HYCF staff of terms like “faggot,” “mahu,” and “butchie” to refer to wards is a daily occurrence at HYCF and is symptomatic of a culture of abuse toward LGBT wards at HYCF. (Tr. I at 73:23-75:5.) The Pervasive Verbal Abuse at HYCF Harmed the Plaintiffs 26.

Being repeatedly referred to as a “butchie” (a word that R.G. had never heard prior to being confined at HYCF) made R.G. feel “ugly.” (Tr. I at 11:15-12:4 (R.G.).) Dr. Bidwell testified that such name-calling directed at teenagers confined at HYCF is far more damaging than similar name-calling directed at adults. (Tr. I at 69:21-70:17.) Moreover, in the youth correctional setting at HYCF, the guards form something of an extended family for the youth, and, unlike youth in non-custodial settings, wards at HYCF cannot retreat to the safety of their home and family at the end of the day. (Bidwell Deck ¶ 17).

Indeed, wards typically call YCOs and YCSs “Aunty” or “Uncle.” (Bidwell Deck ¶ 17.) Thus, name-calling and other identity-based harassment based on actual or perceived sexual orientation or gender identity by guards at HYCF often is acutely damaging to wards who have been entrusted to the state’s care by the family court. (Tr. I at 68:24-70:7; Bidwell Decl. ¶¶ 16-17.) 27. Dr. Bidwell testified that the harassment C.P. experienced was so severe that she threatened suicide because of what she was going through. (Tr. I 65:21-24.) 28. Dr.

Bidwell also testified that all three of the plaintiffs exhibited behavior consistent with traumatic harassment. (Tr. I 67:9-68:23.) 29. Based on the record before the court, it is likely that plaintiffs will again be subjected to unrestrained verbal harassment and abuse by staff and other wards should they return to HYCF. Plaintiffs J.D. and C.P. Endured Physical and Sexual Assaults By Other Wards and Threats of Sexual Assaults Based on Their Actual or Perceived Sexual Orientation or Gender Identity 30.

The record before the court contains extensive documentation of anti-LGBT sexual assaults, physical assaults and threats of sexual assault, including rape. 31. J.D. suffered anti-gay sexual harassment and abuse by other wards at HYCF, including physical assaults and frequent threats of rape. (J.D. Decl. ¶¶ 5, 17, 18, 19, 22; Exs. A, B to J.D. Decl.) 32. Many wards threatened to physically and/or sexually assault J.D. on a regular basis and several assaulted him repeatedly by subjecting him to various forms of unwanted sexual touching. (Tr.

I at 82:Il-ls.) For example, after making threats of rape and demanding that J.D. “give him head,” J.D.’s roommate climbed on J.D.’s back while J.D. slept. (J.D. Decl-¶ 3.) The incident made J.D. so frightened that he began to sleep sitting on the toilet to keep from being attacked from behind. (J.D. DecU 3.) 33. Other wards also jumped on J.D. and pantomimed engaging in anal sex with him. (Ex. A to J.D. Decl.) They grabbed J.D.’s buttocks and rubbed suggestively against him, in one case while he was in the shower. (J.D. Decl. ¶¶ 9, 19, 22; Exs. A, B to J.D. Decl.).

Wards placed their pubic hairs on J.D.’s head or body. Additionally, wards repeatedly told J.D. to “give them head” or “be their bitch,” meaning have oral or anal sex with them. (J.D. Decl. ¶¶ 3, 13, 23; Ex. B to J.D. Decl.) 34. One ward repeatedly hung his testicles out of his shorts and asked J.D. to look at his “eight pack,” put his testicles in J.D.’s hands, said to J.D. “suck on this [referring to his penis], don’t use your teeth,” and repeatedly sprinkled pubic hair on J.D.’s head and body. (J.D. Decl. ¶¶ 17, 18; Ex. B to J.D.

Decl.; Joint Exs. 51, 61, 62, 81.) Another ward rubbed semen on J.D.’s face, exposed his penis and demanded that J.D. join him in the shower. (J.D. DeclJ 19.) 35. When J.D. was returned to HYCF in June of 2005, the harassment and threats of assault continued because wards who had known J.D. from his previous commitment told new wards that J.D. was gay. (J.D. Deem 47, 51.) 36. Over HYCF’s medical staffs objections, YFA Tufono-Iosefa transferred C.P. in September 2004 from the girls’ unit to the boys’ unit when the girls were temporarily sent to a facility in Utah. (Tr.

I at 180:8-16; 181:5-9.) After C.P.’s transfer, C.P. was subjected to escalating harassment and abuse from other wards, including physical and sexual assaults, masturbation directed at her, and threatening commands such as “suck my dick,” “put this in your mouth and suck on it,” or “give me head,” and threats of rape and assault. (C.P. Decl. ¶¶ 32, 33, 34, 36, 40; Bidwell Decl. ¶46; Tr.

I at 131:15-23; compare Joint Ex. 45 (10/22/04 C.P. letter to YFA, reporting only minor problems) iuith Joint Ex. 48 (11/17/04 C.P. letter to YFA reporting “hard time” from boys’ teasing, name calling, and “making trouble,” and stating “I feel hurt and it makes me go insane and angry”).) 37. Some of the male wards touched C.P., pulled her hair, threw things at her, told her to “give [them] head,” or asked permission to rub her legs. (C.P. Dechlffl 33, 36.) Other male wards made comments like, “I want to feel your ass,” and “I want to fuck you,” or asked her to show her breasts. (C.P.

DeclJ 34.) Other male wards exposed their buttocks to her, pulled out their erect penises and showed them to her, or started masturbating in front of her. (C.P. Decl.lfif 34-35.) 38. Dr. Bidwell testified that C.P. told him repeatedly during her stays at HYCF of daily verbal harassment, some physical harassment, and sexual overtures. 39.

Defendants’ own former juvenile corrections experts submitted declarations stating them expert opinion that they believed male to female transgender wards were “better off in O & A with the girls than anywhere else at HYCF and that the placement kept them physically and psychologically safe.” (Griffis Decl. at ¶¶ 8, 11; see also Miesner Decl. at ¶¶ 7, 10; Declaration of David Roush (“Roush Deck”) at ¶ 11.) 40.

Based on the record before the court, it is likely that plaintiffs will again be subjected to unrestrained physical and sexual assaults and threats of assault by other wards should they return to HYCF, and that such treatment will inflict significant harm on plaintiffs. The Supervisory Defendants Were Aware of the Pervasive Abuse and Harassment of LGBT Wards at HYCF, Yet They Took No Meaningful Steps to Remedy the Conditions 41.

The record before the court contains substantial evidence that discrimination and verbal, sexual and physical harassment and abuse based on actual or perceived sexual orientation or gender identity are systemic problems at HYCF that have not been adequately addressed by the supervisory defendants. 42. Many incidents of verbal abuse and harassment occurred in the presence of HYCF staff or were reported to staff, but the paucity of disciplinary records submitted by defendants indicates that, with respect to the vast majority of instances, staff took no action.

Even when staff documented incidents, disciplinary measures were either non-existent or were ineffective in stopping further harassment. (Joint Exs. 66-67 (discipline for “fighting” issued do ward who J.D. said called him (J.D.) “mahu” and who staff saw spit on and hit J.D.); 79 (J.D. reported harassment and social worker talked to wards); 80 YCO describes relentless harassment, stating she talked to wards and that “it stops for awhile, then it continues”); 81 YCO describes continuing harassment, and the need to review footage from the surveillance camera system as “the only realistic option to curb this inappropriate activity”).) 43.

Although other wards routinely called C.P. derogatory names in the presence of HYCF staff, and although C.P. complained about such harassment even when it occurred outside the presence of HYCF staff, the staff failed to discipline or stop the wards from calling her names. (C.P.

DecU 19.) C.P.’s account is corroborated by contemporaneous medical notes by her treating physician over a period of nearly a year that relate material details of the harassment suffered by C.P., including that certain YCOs routinely ignored such harassment. (See Joint Ex. 54 at (bates no. 1498, 10/6/04); (bates no. 1499, 11/29/04) and (bates nos. 1500-01, 1503, 8/15/05 to 8/17/05).) 44. The testimony of defendants’ witness YCO Rósete indicates an awareness on the part, of HYCF staff that C.P. would be harassed and abused if she were transferred to the boys’ side. (Tr. II at 8:12— 9:6.) 45.

Copies of complaints regarding C.P.’s transfer to the boys’ side and her isolation in a holding cell were provided to Tufono-Iosefa and Agnew. (Bidwell Decl. ¶¶ 44, 49; Exs. C, E to Bidwell Decl.) There is no evidence that defendants took any responsive action. (Bidwell Decl. ¶¶ 45, 50.) 46.

On August 2, 2004, J.D. submitted a written grievance to Tufono-Iosefa describing in some detail the anti-gay verbal and physical harassment, sexual abuse, and threats of rape and other physical harm directed at him. (Joint Ex. 61.) J.D.’s grievance specified that his roommate had threatened to rape him and had jumped on him “motioning having anal sex”; that other wards had “done the same”; that other wards had entered the showers while he was showering; that wards were sitting next to him “rubbing up on [him]”; and that wards put pubic hairs on his head. (Joint Ex. 61.) Tufono-Iosefa’s response was to order that J.D. be placed in a single cell and to instruct YCOs “to pay extra attention on [J.D.] to prevent other wards from harassing him.” (Joint Ex. 61.) 47.

Despite the instruction to place J.D. in a single cell and to watch out for him, and although a few YCOs did try to stop the harassment, many YCOs continued to ignore harassment and refused to take action when J.D. reported it to them. (Tr. I at 81:25-84:25; 85:8-86:9; Joint Ex. 61.) The YCOs also failed to keep J.D. in a single cell, and on several occasions he was required to share a room with other wards. (J.D. Decl.1HI 11-12.) 48.

On August 8, 2004, J.D. wrote a letter to YFA Tufono-Iosefa describing the continuing harassment and explaining that: Once again I am coming to you because this issue is not diminishing. It is progressing i.e. threats, exposure, sexual harassment, frottage, and fondling, intimidation. This crap happens on a daily basis and I am not exaggerating. For me this is too much shit for me and way too much stress.... I haven’t even been here a month and I gotta deal with all this SHIT!

I am not threatening you but very soon I will either hurt myself or someone else and I know none of us want this to happen. (Joint Ex. 57.) 49. Although Tufono-Iosefa received the letter on August 8th, it was not until August 12th, four days later, that J.D. was referred for a mental health assessment, leaving J.D. at risk of self-harm for four days without intervention. (Joint Ex. 61.) 50.

Concerned about his emotional and physical well-being and safety, J.D.’s public defender brought a petition for writ of habeas corpus in the First Judicial District, State of Hawaii to have J.D. released from HYCF. (Brown Decl. ¶ 6.) The matter came on for hearing in August and September 2004, and resulted in a written opinion issued by Judge Frances Wong on March 17, 2005. (Brown Decl. ¶¶ 6-7; Bidwell Decl. ¶ 32; Ex. 1 to Supp.

Bidwell Decl.) That opinion found “that the HYCF was aware of the abuse suffered by [J.D.] and did not, at that time, take adequate or reasonable steps to address the problem.” (Ex. 1 to Supp. Bidwell Decl. at 10-11.) Judge Wong also informed the supervisory defendants of the urgent need for “policies and operation procedures that are appropriate to the treatment of [LGBT] youth, that set standards for the conduct of youth correctional officers and other staff, and that provide on-going staff training and oversight” in order to address the “systemic” problem of anti-LGBT harassment at HYCF. (Ex. 1 to Supp.

Bidwell Decl. at 11.) Notice of this decision was provided to the supervisory defendants. (Ex. F to Bidwell Decl.) 51. Defendants have been on notice of plaintiff R.G.’s claims of anti-LGBT harassment, discrimination and abuse since at least February 2005 through the filing of grievances. The defendants also received notice through ICFs and correspondence from Dr. Bidwell to the supervisory defendants beginning in April of 2005. (R.G. Decl. ¶¶ 15, 39-40; Bidwell Decl. ¶¶ 54-55; Ex. F to Bidwell Decl.) Dr. Bid-well received no response. (Bidwell Decl. ¶ 57.) 52.

HYCF eventually initiated an investigation based on R.G.’s complaints of harassment sometime before the Complaint in this case was filed. (Tufono-Iosefa Decl. ¶ 38.) Nearly one year after R.G.’s initial complaint, that investigation has yet to be completed. (Tufono-Iosefa Decl. ¶ 38; Tr. I at 201:22-202:7.) 53. The numerous attempts by both Dr. Bidwell and Nurse Hadley to address the harassment and abuse perpetrated by HYCF staff and other wards against plaintiffs have been ignored by the supervisory defendants. (Tr.

I at 71:8-73:5 (Bidwell); 202:12-19 (Tufono-Iosefa); Bid-well Decl. ¶¶ 15, 22, 24, 40-50, 54, 57; Supp. Bidwell Decl. ¶¶ 5-8; Hadley Decl. ¶ 5.) Dr. Bidwell testified — and contemporaneous documents reflect — that the current administration was aware of the abuse and harassment of plaintiffs and other youth and that the abuse is systemic. (Tr. I at 71:8-19; 73:23-75:15; 64:9-15; Exs. C, D, E, F to Bidwell Decl.) In fact, Dr. Bidwell testified that he sent “many written communications” concerning harassment and abuse of a variety of wards, not just the plaintiffs, “over a period of a long time.” (Tr. I at 71.) 54.

Moreover, none of the supervisory defendants (Director Roller, Director Agnew or YFA Tufono-Iosefa) has ever responded in writing to any of the communications by medical staff regarding the antiLGBT treatment of plaintiffs in this case— even after one of Dr. Bidwell’s letters, copied to Roller and Agnew, referenced the family court’s opinion concerning the systemic problem of anti-LGBT abuse and harassment at HYCF. (Tr. I at 71:20-25 (Bidwell), 202:12-19 (Tufono-Iosefa); Agnew Decl. ¶ 11; Ex. F to Bidwell Decl.; Supp. Bidwell Decl. ¶¶ 3-5.) 55.

On August 16, 2004, when all three of the plaintiffs were confined at HYCF, DOJ launched a year-long investigation of conditions, policies, and practices at HYCF. At the conclusion of DOJ’s initial visit to HYCF on October 8, 2004, DOJ provided defendants with two extensive oral debriefings informing Agnew and Tufono-Iosefa of DOJ’s preliminary findings. (Ex. B to Perrin Decl. (DOJ Report) at 1-2.) 56.

On August 4, 2005, DOJ issued a report finding major constitutional deficiencies at HYCF, including failure to protect wards from self-harm, staff violence, youth-on-youth violence, excessive use of disciplinary isolation, lack of adequate supervision, and an inadequate grievance system. (Ex. B to Perrin Deck (DOJ Report) at 5-6.) Defendants Responded to Anti-LGBT Harassment by Isolating Plaintiffs 57. YFA Tufono-Iosefa, as a matter of practice, employed isolation as a means of “protecting” certain LGBT wards, including C.P. and J.D., from conditions at HYCF. (Tufono-Iosefa Deck ¶¶ 14, 25, 29, 32.) 58.

In response to grievances filed by J.D. in August of 2004 regarding the continuous harassment he faced from other wards at HYCF, Tufono-Iosefa directed that J.D. be placed in isolation for his “safety.” (J.D. Deck ¶¶ 11-12, 32; Joint Ex. 61; Tufono-Iosefa Deck ¶ 29.) J.D. was originally placed in isolation for a medical evaluation.

Although he was cleared by medical staff on August 16, (Joint Ex. 61), J.D. was kept in isolation “to provide [him] with a reasonably safe environment” (Tufono-Iosefa Deck at ¶ 32) until some time between August 23, when medical records reflect he was still in a holding cell, and August 31, by which point he had been released back to his module. (Joint Ex. 85.) 59. While J.D. was in the isolation cell, he was prevented from making any phone calls or writing any letters.

He was allowed one hour of solo recreational time and one shower per day, and was allowed only a Bible and another book given to him by the nursing staff. (J.D. Decl.lHI 34-36.) 60. The conditions in isolation were unbearable for J.D., causing him to cut up his Remeron (sleep medication) into small pieces and take a little bit at a time so he could sleep all day. (J.D. Decl.1ffl 33-36.) 61. J.D. was again placed in isolation after the August 2004 habeas hearing, at which Judge Wong requested that YFA Tufono-Iosefa be told of the family court’s concerns about the harassment. (Joint Ex. 76); (Tr.

I 88:23-89:8 (J.D.).) J.D. was returned to the module approximately one week later. (Tr. I 88:23-89:8 (J.D.).) 62. Similarly, in response to C.P.’s complaints of harassment, defendants first subjected her to social isolation by physically segregating her from the other wards in the module and later by sending her to a holding cell. (C.P. Deck ¶¶ 38-39, 53-57; Exs. A, B to C.P.

Deck; Joint Ex. 48.) When not locked down, C.P. was instructed by YCOs not to have anything to do with any of the male wards — she was not supposed to sit with or near them, speak with them, look at them, or interact with them in any way. (C.P. Deck ¶ 38, Joint Ex. 48.) 63. When C.P. returned to HYCF in August 2005, defendants held her in solitary confinement for six days, again, allegedly for her “protection.” (C.P. Deck ¶ 55; Tufono-Iosefa Deck ¶¶ 25-27.) She was isolated in a holding cell under video surveillance for twenty-three hours a day, with nothing in her cell other than her pillow and a blanket. (C.P.

Decl-¶ 55.) She was allowed one hour a day to leave the cell for recreation and showering. (C.P. Deck ¶ 55.) She was not permitted letters, writing instruments, radio, or television, nor was she allowed to interact with any other wards. (C.P. Decl^ 55.) C.P. reported to medical staff that she was “going crazy” in the holding cell. (Joint Ex. 54 (bates no. 1503).) 64.

The expert evidence before the court regarding the use of isolation comes from juvenile corrections experts retained at one point by defendants. (Tufono-Iosefa Deck ¶¶ 10-11.) Those experts uniformly conclude that long-term segregation or isolation of youth is inherently punitive, and that imposing such isolation as a form of protection is “not an acceptable correctional practice for juveniles.” (Roush Decl. ¶¶ 12-13; see also Miesner Decl. ¶ 11; Griffis Decl. ¶ 12.) Indeed, one of those experts characterized such treatment as “inexcusable.” (Miesner Decl. ¶ 11.) Another stated that HYCF may be the only juvenile facility in the country that employs this practice. (Griffis Decl. ¶ 12.) 65.

Roush, Miesner and Griffis also confirm Dr. Bidwell’s testimony and the testimony of plaintiffs J.D. and C.P. that social isolation is experienced as punishment (Roush Decl. ¶ 12), and that prolonged isolation can cause serious psychological consequences. (Miesner Decl. ¶ 11; Roush Decl. ¶ 12; Griffis Decl. ¶ 12; Bidwell Decl. ¶ 26).

Due to its misuse by corrections staff, psychiatrists have recommended that the use of isolation in juvenile corrections be eliminated entirely. (Roush Decl. ¶ 12.) When isolation or segregation is used, it is accepted among professionals that it should be used “sparingly” and only in response to serious behavioral infractions and for short periods of time “while the ward poses an imminent danger to others.” (Miesner Decl. ¶ 11; see also Roush Decl. ¶ 13; Griffis Decl. ¶ 12.) 66.

Based on the record regarding defendants’ practice of using isolation as a form of protection, it is likely that defendants will isolate plaintiffs from other wards should they return to HYCF. HYCF Lacks Policies and Procedures to Ensure Safe Conditions of Confinement for HYCF Wards Who are or Who are Perceived to be LGBT 67. The DOJ Report found that the “most fundamental problem that plagues HYCF is the absence of policies or procedures to govern the facility.” (Ex. B to Perrin Decl. (DOJ Report) at 3.) 68.

The absence of adequate policies and procedures is compounded by defendants’ failure to train the individuals expected to enforce them. (Ex. B to Perrin Decl. (DOJ Report) at 4 (“Security staff ... have received no training in over five years and have no rules to guide their decisions.”).) DOJ found that “staff and administrators were either unaware of the existence of any policies or procedures or were cognizant of their existence yet ignorant of their content.” (Ex. B to Perrin Decl. (DOJ Report) at 4 n. 4.) 69.

In fact, as of April 2004, none of the HYCF staff had received any formal training since the 1980s. (Tr. I at 190:20-191:4 (Tufono-Iosefa).) 70. On September 21, 2005, based on a directive issued by Agnew and while working on new policies, defendants re-adopted the same 1984 policies that DOJ condemned as “outdated and intended for an adult institution.” (Ex. B to Perrin Deck (DOJ Report) at 4 n. 4; Ex. D to Perrin Deck) 71. HYCF has adopted and implemented six new policies and procedures to govern HYCF, which became effective on October 24, 2005. (Tufono-Iosefa Deck ¶ 41; Ex.

D to Tufono-Iosefa Deck) These six policies took approximately one year to draft and adopt. (Tr. I at 202:20-203:15 (Tufono-Iosefa).) 72. This lengthy period is due in part to the fact that, although not required to do so under the governing collective bargaining agreements with HYCF staff, OYS and HYCF choose to follow past practices and engage in a lengthy and “grueling” process negotiating with the unions with respect to every new policy that is proposed at HYCF. (Tr. I at 202:20-204:10 (Tufono-Iosefa).) 73.

Defendants concede that HYCF requires additional policies — including policies pertaining to youth safety — and that it will take one and a half to two years to complete the drafting and negotiation process for the remaining policies. (Tr. I at 173:6-174:16.) 74. HYCF does not have specific policies in place to protect LGBT youth — or any other vulnerable youth' — from harm. (Bid-well Deck ¶¶ 13, 14.) Agnew expressly admitted in a September 2005 television news interview that no policies were in place for gay and lesbian youth. (Ex.

H to Perrin Deck) After the instant lawsuit was initiated, HYCF adopted an October 14, 2005 policy that states, “[y]outh have the right not to be discriminated against because of race, sex, sexual orientation, language, and national origin[.]” (Ex. D to Tufono-Iosefa Deck) HYCF Fails to Ensure Adequate Staffing, Training, Classification, and Supervision 75.

Defendants’ former experts performed a staffing study and training needs assessment of HYCF in June 2004, after which they advised Agnew and Tufono-Iosefa that HYCF “was in desperate need of more staff to protect the safety of wards” and that they should “use revised and expanded staff training to establish a juvenile corrections culture.” (Roush Deck ¶¶ 7-8; see also Miesner Deck ¶ 5 (“HYCF did not have sufficient staff, ... the staff was not properly trained and ... most of the staff did not have the proper attitudes or demeanor to work with troubled youth.”); Griffis Deck ¶ 5.) 76.

Griffis’s declaration states that, based on his observations, HYCF “did not have a classification system for aggressive vs. vulnerable wards, and there were no policies, training or supervision, rendering the environment very unsafe for the wards.” (Griffis Deck ¶ 5.) Roush concluded his declaration by explaining that “it is the responsibility of the administration to create an environment that is physically and psychologically safe for the wards without violating the wards’ rights.” (Roush Deck ¶ 13; see also Miesner Deck ¶ 5; Griffis Deck at ¶ 5.) 77.

In August 2005, DOJ suggested remedial measures necessary to bring staffing and supervision at HYCF into conformity with constitutional requirements, including: (1) training existing staff so that they perform their duties adequately; (2) ensuring that there are sufficient staff to safely supervise youth; (3) providing staff with adequate training and equipment to supervise youth at risk of suicide; (4) providing staff with training on HYCF’s suicide prevention policy; (5) developing and implementing adequate policies and procedures to ensure that youth are adequately protected from physical violence; and (6) developing and implementing adequate policies and procedures regarding the proper use of force by YCOs and other staff. (Ex.

B to Perrin Deck (DOJ Report) at 26-28.) 78. As of August 12, 2005, HYCF had not provided training on certain core issues such as supervision of youth, proper use of force, investigation techniques, and the identification and protection of vulnerable youth; HYCF did, however, have a plan in place for future staff training. (Ex. C to Perrin Deck) HYCF social worker Hardy testified that she and other staff received some training on use of force and HYCF’s grievance procedure following the implementation of HYCF’s youth rights policies in October 2005. (Tr.

I at 153:23-154:5.) She also testified that staff received some questionable information regarding the new policy with respect to LGBT youth, including that placing a male-to-female transgender youth on the boys’ side, where staff knew the ward would encounter abuse, would not constitute discrimination or abuse. (Tr. I at 155:25-157:10.) HYCF Lacks a Functioning Grievance System 79. The DOJ Report concluded that “HYCF’s grievance system is dysfunctional.” (Ex.

B to Perrin Deck (DOJ Report) at 20.) The most significant legal deficiencies were “difficulty in filing claims and the common presence of intimidation and retaliation against those youth who are able and dare to do so.” (Ex. B to Perrin Deck (DOJ Report) at 20.) The DOJ found that the subjects of the complaints, usually the supervising YCO, often retaliated against the complainants. (Ex. B to Perrin Deck (DOJ Report) at 20.) 80. Plaintiffs’ experiences demonstrate the futility of HYCF’s grievance system. Some grievances take months to receive a response. (Joint Ex. 9; Exs. A, B to C.P.

Deck) HYCF social worker Hardy testified that, although she encourages wards to fill out grievance forms, the wards have told her that they “never receive a reply.” (Tr. I at 162:2.) When a grievance receives a response, it may not be treated confidentially, putting wards at risk for retaliation. (-See, e.g., Joint Ex. 86 (medical notes indicating J.D. complained that YCOs had shown other wards his grievance form).) 81. Although HYCF recently adopted a new grievance system (Tufono-Iosefa Deck ¶ 41; Ex. D to Tufono-Iosefa Deck), the new system remains ineffective.

Hardy testified that the new procedure works no better than the old procedure and is regarded by the wards as a “waste of time.” (Tr. I at 161:14-162:6.) 82. The absence of a meaningful grievance system at HYCF renders HYCF unable to address plaintiffs’ complaints concerning the conditions of their confinement should they be returned to HYCF. Some HYCF Staff Members Promoted Certain Religious Ideas to Wards 83. Prior to June 2004, there was a practice at HYCF of allowing no personal items or reading materials in wards’ cells other than a Bible. (R.G. Deck ¶¶ 9, 10; C.P. Deck ¶ 23; Ex. F to Perrin Deck) 84.

This practice was formally prohibited by a June 21, 2004 order from Tufono-Iosefa. (Ex. F to Perrin Deck) 85. HYCF staff engaged in discussions of a religious nature with wards. (Tr. II at 18:21-19:12; 23:24-24:1 (Rósete).) 86. R.G. testified that several HYCF staff members, including YCO Josiah and teacher Barbara Tanji, singled her out for proselytizing. (R.G. Decl.Hf 9-10,14.) 87. The record also establishes religious discussions between R.G. and Rósete while R.G. was confined at HYCF.

These discussions included accounts that the Bible says that being gay is “not of God,” that the Bible states that “man should not lay with man,” and that anyone who did so would be punished and go to hell. (R.G. Deck ¶¶ 4-5, 9; Tr. II at 10:6-17; 21:9-22:19 (Rósete).) 88. It is also clear that R.G. initiated many of these conversations and that Rósete initiated at least some of them. (Tr. I at 17:19-25 (R.G.); Tr. II at 19:5-12 (Rósete).) Plaintiffs Were Prevented From Speaking with Counsel on Two Occasions 89.

Sometime in 2003, HYCF began requiring written consent of parents and guardians to allow the wards to speak with the ACLU concerning the conditions, policies, and practices at HYCF. (Ex. C to Tufono-Iosefa Deck) 90. In August 2005, R.G. was denied permission to call her attorney at the ACLU. (R.G. DeclJ 43.) 91. When C.P. was returned to HYCF in August, 2005, Tufono-Iosefa refused the ACLU’s request to see C.P., and stated that all requests were to be referred to the Attorney General’s office. (Perrin Decl. ¶ 13; C.P. Decl. ¶ 63.) 2. Conclusions of Law a.

The plaintiffs are likely to succeed on their Due Process claim i. The Fourteenth Amendment governs the constitutionality of conditions at HYCF As an initial matter, the court must determine the constitutional standard that applies to the plaintiffs’ claims regarding the conditions at HYCF. Whether the Eighth Amendment guarantee against cruel and unusual punishment or the “more protective” Fourteenth Amendment Due Process standard applies depends on the status of the wards confined at HYCF. Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir.1987).

The Eighth Amendment applies to those who have been convicted of crimes, while the Due Process standard applies to detainees who have not been convicted of crimes. Id. (citing Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986) and Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). In the instant case, wards of HYCF are adjudicated delinquent and have not been convicted of a crime.

Hawaii Revised Statute (HRS) § 571-1 (stating that a primary purpose of the Hawaii Family Courts is rehabilitation of juveniles and that “no adjudication by [Hawaii Family Courts] of the status of any child shall be deemed a conviction”); State v. Riveira, 92 Hawaii 521, 993 P.2d 555 (2000) (holding that a juvenile adjudication could not constitute a conviction for purposes of Hawaii’s repeat offender provision). Therefore, the Due Process Clause provides the standard for analyzing the conditions of confinement at HYCF. In Bell v.

Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court considered the Due Process rights of pretrial detainees (who, like the wards at HYCF, have not been convicted of crimes) challenging their conditions of confinement and held that conditions violate detainees’ Due Process rights if they “amount to punishment.” Subjecting detainees to unsafe conditions or isolation amounts to punishment when done either with the express intent to punish or without a legitimate purpose. Id. at 538-39, 99 S.Ct. 1861.

Even when a legitimate non-punitive purpose is asserted, if the conditions imposed are “excessive” in relation to that nonpunitive purpose, including when substantial* evidence demonstrates that officials’ response to operational considerations is “exaggerated,” a Due Process violation is established. Id. at 538, 540 n. 23, 99 S.Ct. 1861. The court is mindful that it must review the record for constitutional violations, and that the court may not impose its own notion of the appropriate manner to operate HYCF.

Thus, the court must determine whether a condition or restriction that appears to be punishment is in fact “but an incident of a legitimate nonpunitive governmental objective.” Id. at 539 n. 20, 99 S.Ct. 1861. In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court held that a mentally disabled individual who was involuntarily committed to a state institution had a protected liberty interest in reasonably safe conditions of confinement and freedom from unreasonable bodily restraint. 457 U.S. at 315-16, 102 S.Ct. 2452.

The plaintiff in Youngberg was injured repeatedly by himself and by others; he alleged that defendants violated his rights to Due Process and freedom from cruel and unusual punishment when they “failed to institute appropriate preventive procedures” to keep him safe and instead restrained him for portions of each day, allegedly for his own safety and for the safety of others. Id. at 310-11, 102 S.Ct. 2452.

The Court reiterated that determining whether conditions violate Due Process requires courts “to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’ ” Id. at 320, 102 S.Ct. 2452 (quoting Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting)).

The Court elaborated on the analysis in Bell, explaining that whether state actors have “adequately ... protected the rights of the involuntarily committed” depends on whether the decision reflects the judgment of qualified professionals or is “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.” Id. at 321-23, 81 S.Ct. 1752. Thus, “the Constitution only requires that the courts make certain that professional judgment in fact was exercised.

It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id. at 321, 81 S.Ct. 1752 (citation and quotation signals omitted). However, the Supreme Court was careful to explain that such deference to state institutions is based on the recognition that they are run by appropriately qualified professionals. Id. at 323 n. 30, 81 S.Ct. 1752.

In other words, the determination that professional judgment has been exercised must be based on a finding that the challenged decision was made by “a person competent, whether by education, training or experience, to make the particular decision at issue” or a person “subject to the supervision of qualified persons.” Id. In the context of a failure to protect case, the Supreme Court has clarified that officials cannot be held liable for conditions of detention that are the result of mere negligence. Davidson v.

Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (“[T]he protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials.”). Courts have typically applied the deliberate indifference standard to failure to protect claims where the direct source of the alleged harm is neither the conduct of the state defendant nor the operation of an official policy or practice. See, e.g., Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.1991) (en banc).

The plaintiffs argue that the deliberate indifference standard does not apply to any of their Due Process claims and that the “amounts to punishment” standard applies instead. While this Bell standard certainly applies to acknowledged policies at HYCF, it makes little sense when applied to the plaintiffs’ claims that the facility failed to protect them from staff and ward harassment and abuse. Although courts have not been entirely clear or consistent in the application of the Due Process Clause standards, two cases provide some helpful guidance. Hare v.

City of Corinth, Mississippi, 74 F.3d 633 (5th Cir.1996) (en banc) reviewed the constitutional rights of a pretrial detainee. After a lengthy review of Fifth Circuit cases, Hare concluded that the Bell “test retains vitality only when a pretrial detainee attacks general conditions, practices, rules, or restrictions of pretrial confinement. When, by contrast, a pretrial detainee’s claim is based on a jail official’s episodic acts or omissions, the Bell test is inapplicable, and hence the proper inquiry is whether the official had a culpable state of mind in acting or failing to act.” Id. at 643.

Hare concluded that the deliberate indifference standard applied to a jail official’s episodic acts or omissions. Id. Hare further clarified that the Bell analysis may apply to actions or omissions that are sufficiently “extended or pervasive” such that an intended condition or practice can be inferred. Id. at 645. In Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir.2003), the plaintiffs alleged unconstitutional conditions of confinement when a state hospital (charged with evaluating and treating mentally incapacitated criminal defendants) refused to accept the patients on a timely basis.

In reviewing the district court’s injunction requiring the. hospital to accept the patients within seven days of a court’s finding of incapacity, the Ninth Circuit rejected the hospital’s “claim that the deliberate indifference standard governs the Due Process rights of incapacitated ... defendants.” Id. at 1120. See also Jones v. Blanas, 393 F.3d 918 (9th Cir.2004) (concluding that the deliberate indifference standard was inapplicable to a Due Process challenge to conditions of confinement). Instead, the court applied a Due Process test consistent with Bell and Youngberg.

Thus, in conditions of confinement cases, the Ninth Circuit appears to be in agreement with Hare. Reviewing the various claims made by plaintiffs, the court finds that the claim centering on isolation of wards is subject to the Bell test. The defendants do not deny the practice of placing plaintiffs in isolation; they simply claim that the practice is legitimate and thus constitutional. This condition of confinement claim thus fits well within the Bell framework.

Plaintiffs also allege that they suffered anti-LGBT harassment and abuse; defendants deny the allegation, but argue that if the plaintiffs were harassed and abused, HYCF staff were not the perpetrators and were not aware of the abuse. The question thus presented is whether the harm alleged is the result of a pervasive, known practice — such that the requisite level of culpability can be inferred and the Bell test applied without further inquiry into intent — or whether the harm alleged is more episodic in nature, requiring the plaintiffs to prove deliberate indifference.

Though the plaintiffs allege pervasive harassment at HYCF, the court is reluctant to analyze the plaintiffs’ claims on the assumption that HYCF operates under a defacto policy of tolerating harassment and abuse of wards from both staff and other wards. The court concludes that the plaintiffs’ claim regarding harassment and abuse from guards and. other wards is best reviewed under the deliberate indifference standard applied to failure to protect claims. The court now turns to the plaintiffs’ Due Process claims. ii.

Defendants’ use of isolation is inconsistent with professional standards and constitutes punishment Though the use of isolation for “protection” violates HYCF’s own written policies (Tufono-Iosefa Deck ¶ 42, Ex.

E (wards have the right to “not be isolated or segregated unless [their] behavior is in violation of HYCF rules and regulations.”)), defendants admit that they use isolation as a means of “protecting” wards who are or are perceived to be LGBT, including C.P. and J.D., from abusive conditions at HYCF. (Defendants’ Memorandum in Opposition at 27-28; Tufono-Iosefa Deck ¶¶ 25-32.) The defendants contend that their decision to protect LGBT wards from harassment by isolating them from other wards was reasonable and non-punitive.

After examining expert opinions and case law regarding the use of isolation on children, the court concludes that the defendants’ use of isolation was not within the range of acceptable professional practices and constitutes punishment in violation of the plaintiffs’ Due Process rights.

The expert evidence before the court uniformly indicates that long-term segregation or isolation of youth is inherently punitive and is well outside the range of accepted professional practices. (Roush Decl. ¶¶ 12-13 (noting that social isolation is recognized as “inherently punishing” and that “[pjunishing a ward in order to protect that ward from the harmful actions of others is not an acceptable correctional practice for juveniles”); Miesner Decl. ¶ 11 (“Prolonged isolation or seclusion is punitive in nature and can cause serious psychological con sequences.”); Griffis Decl. ¶ 12 (“Such segregation practice is not generally accepted and falls outside of professional standards”).) Indeed, one expert opined that HYCF may be the only juvenile facility in the country that employs this practice. (Griffis Decl. ¶ 12.) Courts that have considered this issue have likewise concluded that the use of isolation for juveniles, except in extreme circumstances, is a violation of Due Process.

See, e.g., H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1088 (11th Cir.1986) (“Juveniles are even more susceptible to mental anguish than adult convicts.”); Santana v. Collazo, 714 F.2d 1172 (1st Cir.1983) (experts’ testimony on lack of therapeutic and disciplinary benefits from isolation sufficient to warrant remand for further factual findings); Milonas v. Williams, 691 F.2d 931, 942-43 (10th Cir.1982) (affirming injunction against placing children in isolation for any reason other than to contain violent behavior); D.B. v.

Tewksbury, 545 F.Supp. 896, 905 (D.Or.1982) (ruling that “ [placement of younger children in isolation cells as a means of protecting them from older children” violates plaintiffs’ Due Process rights under the fourteenth amendment); Feliciano v. Barcelo, 497 F.Supp. 14, 35 (D.P.R.1979) (“Solitary confinement of young adults is unconstitutional.”); Lollis v. N.Y. State Dep’t of Soc.

Servs., 322 F.Supp. 473, 480 (S.D.N.Y.1970) (concluding that plaintiffs solitary confinement was unconstitutional after considering extensive expert testimony stating that the extended use of isolation on children is “cruel and inhuman,” and “counterproductive to the development of the child”). The likely perception by teenagers that isolation is imposed as punishment for being LGBT only compounds the harm. (Bidwell Decl. ¶ 26; Ex.

B to Declaration of Caitlin Ryan (“Ryan Decl.”).) The defendants do not dispute the expert findings regarding isolation; rather they merely assert that their purpose in isolating plaintiffs was protective rather than punitive. Even if the defendants, including the supervisory defendants, did not intend to punish the plaintiffs, the court finds that the effects of isolation are not “but an incident of a legitimate non-punitive governmental objective.” Bell, 441 U.S. at 539 n. 20, 99 S.Ct. 1861.

Defendants’ practices are, at best, an excessive, and therefore unconstitutional, response to legitimate safety needs of the institution. Id. at 538, 99 S.Ct. 1861. Consistently placing juvenile wards in isolation, not to impose discipline for violating rules, but simply to separate LGBT wards from their abusers, cannot be viewed in any reasonable light as advancing a legitimate nonpunitive governmental objective. HYCF has attempted to remedy one harm with an indefensible and unconstitutional solution. iii. Defendants acted with deliberate indifference in allowing pervasive verbal, physical, and

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