Hughes v. Judd (108 F. Supp. 3d 1167, 2015)

CONCLUSIONS OF LAW AND FINDINGS OF FACT

STEVEN D. MERRYDAY, District Judge.

[UJnder the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however,’ that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution....

Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

This is an action by several juveniles, as representatives of other juveniles similarly situated, asserting that Grady Judd, in his capacity as Sheriff of Polk County, Florida, and Corizon Health, Inc., a health care provider retained by the Sheriff, violated the juveniles’ rights under the Fourteenth Amendment during the juveniles’ detention at the Central County Jail (CCJ) in Bartow, Polk County, Florida. The action began in March 2012 with a complaint (Doc. 1), an amended complaint (Doc. 3) a few days later, and a simultaneous motion for preliminary Case 8 injunction, which was denied after an evidentiary hearing before the magistrate judge (Docs. 332 and 364).

The bench trial of this action began on November 18, 2013, and concluded on December 18, 2013. The action was tried on the five counts appearing in the third amended complaint (Doc. 197). Each count alleges a violation of the Fourteenth Amendment. Count I alleges a constitutional violation based on the Sheriffs allegedly failing to' provide the juveniles in detention with “rehabilitative services.” Count II alleges a constitutional violation based on the Sheriffs alleged failure to protect the plaintiffs from harm, the Sheriffs alleged application to the plaintiffs of “unlawful force,” the Sheriffs alleged subjection of the plaintiffs to “unreasonable restraints,” and the Sheriffs alleged creation of “dangerously violent conditions of confinement.” Count III alleges a constitutional violation based on the Sheriffs alleged placement of juveniles on “suicide watch” into “punitive isolation without penological justification” and based on the Sheriffs alleged “deliberate indifference” to the “mental health needs” of juveniles in detention. Count IV alleges a constitutional violation based on the Sheriffs and Corizon’s alleged failure to provide the plaintiffs “necessary mental health treatment,” the alleged subjection of the plaintiffs to “punitive, harmful conditions of confinement,” and the alleged “deliberate indifference to serious medical needs.” Count V alleges a constitutional violation based on the Sheriffs and Corizon’s subjection of the plaintiffs to isolation in a disproportionately punitive manner with “deliberate indifference.” The third amended complaint concludes with a demand for class certification, for a declaration of the unconstitutionality of the defendants’ conduct, for temporary and permanent injunctive relief, and for an award of an attorney’s fee and statutory costs. In the order recommending denial of the preliminary injunction, the magistrate judge recommended certifying a “primary class” for all counts of the complaint, a sub-class for Count I, and a sub-class for Count II. With modifications, the district judge certified the recommended primary class and the two subclasses (Docs. 364 and 500).

Each claim in the complaint asserts a violation of the Fourteenth Amendment. The complaint includes no state constitutional claim, no federal or state statutory claim, and no state law tort claim. The plaintiffs present five federal constitutional claims, each governed solely by the federal constitutional standards that govern a claim under the Fourteenth Amendment.

Therefore, in the concluding minutes of the month-long bench trial in this action and with an acute awareness that the parties harbored distinctly different and probably irreconcilable understandings of the constitutional standard governing the disposition of the plaintiffs’ five claims under the Fourteenth Amendment, the parties were directed to explain in their post-trial proposed findings of fact and conclusions of law precisely their respective understanding of the governing constitutional standard:

I need you to tell me exactly ... each applicable constitutional standard that ... has been violated or infringed ... by a defendant. And I need you to identify ... the accepted means or method or test to ascertain compliance with that standard. In other words, articulate the standard and articulate the test. And I would urge you to include your strongest citations of authority to support those standards.

SOME PRELIMINARY OBSERVATIONS

The parties submitted lengthy proposed findings of fact and conclusions of law, in sum comprising more than 450 pages, divided more or less evenly between the plaintiffs and the two defendants. This order begins with an evaluation of the plaintiffs’ proposed findings of law, which consume only twenty pages in the plaintiffs’ initial proposed findings but which require an analysis of nearly ninety pages in this order (the reply contains a few miscellaneous citations but the content fails to warrant extending this already brutally lengthy paper).

In general, although acceptance of the plaintiffs’ proposed constitutional standard is essential to the plausibility of the plaintiffs’ claims, the plaintiffs’ proposed legal standards are decidedly and demonstrably not the law of the land and constitute an aggressive and novel undertaking to insert the federal judiciary forcefully into the administration of a county’s juvenile detention in a manner and to an extent without warrant, without precedent, and without bounds. The plaintiffs offer in defense of this proposed intervention both a flawed interpretation of the pertinent precedent and a nearly uniform reliance on decisions that are either not binding, not applicable, not persuasive, or not — for example, in the citation as authority of a settlement — precedent at all. Although the law of the Supreme Court and the Eleventh Circuit is plentiful, accessible, and precisely governing, the plaintiffs largely choose to look elsewhere for guidance.

The discussion of the plaintiffs’ view of the law is followed in this order by a discussion of the Sheriffs and Corizon’s view of the law. The plaintiffs’ view of the law is generally wrong, and the defendants’ view is generally right. This order’s discussion of the law exceeds a hundred pages but serves to vividly detail the basis for the conclusion offered in the preceding sentence and serves to illustrate unmistakably the circumstances — the history, the particulars, the tangibles — in which and to which the Fourteenth Amendment requires remedial action by the judiciary. Stated differently, the following discussion includes an illustrative summary of the facts in many of the cases discussed, and these summaries serve to exemplify correctly the circumstances that trigger (or not) the force of the Fourteenth Amendment. To encapsulate the conclusion of this order, the circumstances at CCJ are comfortably and distinctly outside the circumstances that implicate the Fourteenth Amendment.

After the extended discussion of the law, this order includes an extended finding of fact, including findings pertinent to the “expert” testimony received at trial. Again, in general, this order finds facts consistent with the defendants’ proposed findings and inconsistent with the plaintiffs’ proposed findings.

However, in one sense, a resolution of many of the conflicts between the proposed findings of fact is unnecessary because, once the proper constitutional standard is understood and the facts necessary to prompt remedial action by the judiciary under the Fourteenth Amendment are properly appreciated, the insufficiency of the plaintiffs’, presentation — although lengthy and tenacious and inclusive of every arguable episode, great and small— becomes manifest and dispositive. In fact, the conditions of juvenile detention at CCJ are not consistent with the plaintiffs’ dark, grim, and condemning portrayal.

* * *

The plaintiffs insist that the level of fighting in juvenile detention at CCJ, say, two “fights” per week, is unconstitutional. But even after immense and determined discovery, litigation assistance by “experts,” and weeks of trial, the plaintiffs’ characterization of the level of violence at CCJ remains wholly impressionistic because the plaintiffs offered no data from comparable facilities. For all that the evidence in this action proves, the two “fights” per week among eighty to a hundred teenage detainees living in close quarters at CCJ might constitute a historic high or a historic low. From the record, one cannot know; the omission by the plaintiffs is purposeful.

The plaintiffs’ failure to adduce comparable data is curious, indeed. If comparable data exists, a purposeful failure to introduce the data is most suggestive. If the data is non-existent, the plaintiffs’ hypothesis is without foundation. And, of course, the data would depend on what counts as a “fight,” especially when the count of “fights” occurs in an action attempting to invoke the force of the Constitution. This order is not required to define what counts as a constitutional “fight,” but this order finds that the plaintiffs’ have established no definition, proffered no reliable count for CCJ, and provided no comparable data from elsewhere.

This absence of empirical substance in the plaintiffs’ presentation on “fights” leaves the court in the posture of a hypothetical person who has no knowledge of baseball; who is told that a player, say, Babe Ruth, failed to hit successfully in about seven of every ten at-bats; and who ■is asked to decide what quality of batter Ruth was. Absent comparable data, the hypothetical person is without a rational means to judge, and the fact of seven outs in every ten at-bats is intrinsically neither a “Hall of Fame” performance nor a pathetic flop. Similarly, considered in isolation, the occurrence of two “fights” per week (however defined or if not defined at all, as in this instance) permits no informed and rational conclusion. (This judge’s impression is that two “fights” per week is an admirably low to typical number among a large group of teenagers, almost all male, who qualify in Florida for juvenile detention.)

* * *

The plaintiffs suggest at times that the constitutional standard governing the detention of a juvenile is more demanding than the constitutional standard governing the detention of an adult. Although that generalization enjoys an initial appeal and although a few eases say something akin to that, a moment’s reflection (and attention to the governing precedent) confirms that the constitutional' standard for the detention or incarceration of an adult and a juvenile is the same. Of course, if some condition (one does not readily suggest itself) that might not present a substantial risk of serious harm to an adult in detention nonetheless presents a substantial risk of serious harm to a juvenile in detention, the Fourteenth Amendment might require the reduction of the risk until the risk is no longer substantial or might require the mitigation of the prospective harm until the harm is no longer serious. In sum, although (arguably) the conditions of confinement necessary to create a substantial risk of serious harm for an adult might differ from the conditions of confinement that, create a substantial risk of serious harm to a juvenile (again, an example is elusive), the stated constitutional standard is constant. Between the confinement of an adult and the confinement of a juvenile, the specific facts necessary to meet the constitutional standard might change, but the expression of the constitutional standard remains the same. -No disinterested and authoritative observer contends otherwise.

* * *

The Sheriff has argued from the start and has maintained convincingly that, although each purports to allege a violation of the Fourteenth Amendment, the plaintiffs’ claims never acknowledge or account to the governing constitutional standard for the conditions of juvenile detention. The Sheriff argues, again convincingly, that the plaintiffs strive to avert the Constitution by substituting for the governing constitutional standard an impromptu, improvised standard equivalent to “best practices” as understood at and for the moment by persons who are, in effect, professional advocates and critics, that is, persons other than the corrections and detention professionals whose professional judgment receives under the governing constitutional law a strong presumption of correctness and whose supervision is subject to judicial intervention under the Fourteenth Amendment only in the extraordinary circumstance. Suffice to say that, if the Fourteenth Amendment requires intervention into the management of the juvenile detention facility that the Sheriff operates at CCJ, the Fourteenth Amendment requires a wholesale intervention into detention and incarceration at most of the facilities in the United States, an intervention possible only by an unprecedented and precipitous lowering of the constitutional threshold.

On March 15, 2012, less than six months after the Sheriff for the first time opened a juvenile detention facility and for the first time managed juveniles in detention, the plaintiffs sued and alleged the Sheriffs violation of the Fourteenth Amendment rights of every inmate — past, present, and future — by his allegedly deliberate indifference to a widespread and pervasive pattern of substantial risks of serious harm to the juveniles. Throughout the litigation, the plaintiffs have conceded that the present operation of juvenile detention at CCJ improves on the operation of CCJ during the first few months. But the plaintiffs— often obliquely, sometimes bluntly — claim that this litigation, not the Sheriffs management at the facility, was the motive force behind the improvements implemented at CCJ during the interval between March 2012 and November 2013.

However, with a new facility, with a new staff, and with a new set of policies, the Sheriffs undertaking a new responsibility inevitably led to a time of trial and error, adjustment and re-adjustment, experiment and improvement. A litigant who chooses to sue an incipient enterprise — an enterprise with no discernible patterns and no established culture — always can launch a colorable claim to credit for every improvement that occurs during the pen-dency of the litigation, even if the improvement would otherwise have occurred (possibly even sooner). The potential of this colorable claim offers an unhealthy incentive to a litigant to sue an incipient enterprise preemptively and before the natural course of events leads to a better, more efficient, more responsive operation. Throughout the entire life of juvenile detention at CCJ, minus the first few months, anything the Sheriff might change was susceptible to the claim that without this litigation the change would not have occurred.

In the instant case, the evidence shows that the Sheriff has engaged in a prudent, steady course of management, including a series of changes that have improved the operation of the facility in accord with experience and the recommendations of those with hands-on responsibility for juvenile detention. Except for the accident of timing and the seductive appeal of the fallacy of false cause — post hoc ergo prop-ter hoc — nothing in the credible evidence supports the notion that any improvement that has occurred was motivated by an attempt to evade liability in the litigation or that any improvement "will disappear if the litigation terminates.

A suit against an incipient enterprise typically implies competing inferences. One can infer that every improvement at the facility was a disguised defense to liability. But, on the other hand, one can infer that inquiring lawyers, probing “monitors,” and consulting psychiatrists, all of whom interview juveniles, examine records, conspicuously tour the facility, and generate “talk” among the juveniles, ere-ate an adversarial atmosphere between inmates and deputies and add an additional edge to each episode of disobedience or disruption in the facility. Although both inferences are “in the air” in this action, the evidence justifies neither and this order rejects both.

* * *

Lastly, as anyone who has visited a jail or prison well knows, the lamentable sight of humans deprived of liberty and confined together in a facility — the sight of humans whose life has gone wrong for some reason or reasons and whom the community must restrain or, at least, detain — triggers a strong emotional response. The sight of a person under eighteen in detention, wearing a prisoner’s gown, awaiting a trial, and coming to grips with consequences and circumstances almost always beyond their effective capacity, triggers an even stronger visceral response, including an impulse to rescue the juvenile from the circumstance and from the juvenile’s own poor, even destructive, choices (or those of others). No one wants any of these juveniles to be where they are, to have done what they have done (probably), and to continue on the course they are on. That some are defiant, aggressive, and enduringly turbulent or, at least, mischievous and provocative, renders their safe and peaceful management complex. Of course, a few are introverted, withdrawn, and often vulnerable, which complicates safe and peaceful detention even further. No one — certainly no one whose words appear in this record (or whose words this judge has seen or heard) — knows demonstrably the best balance of results and resources between the field of “corrections” (broadly construed— in this one instance — to include juvenile detention) and other fields of government responsibility (for example, care for wounded veterans; care for the disabled, including innocent children with special needs; care for the aged; the provision of housing; the improvement of education). Nor is the best formula for the allocation of public resources discernible (or even “discoverable”) in the Fourteenth Amendment. Viewed from one vantage, the plaintiffs’ objective in this action is to focus the court’s attention on the juveniles in CCJ, to divert the court’s attention from the balance of the many other acute and competing needs of society, to induce the court to focus fixedly on a single need, and to provoke a command — all other prospective and deserving recipients aside — that additional public resources accrue to the juvenile detention facility run by the Sheriff in Bartow. The call is for more and better supervision; more and better deputies; more and better psychiatrists and psychologists; more and better nurses and social workers; more and better teachers and counselors; more and better record-keeping, reporting, and compilation; and, in all other respects, more and better and more and better — “for the children.”

But the allocation of public resources is the solemn business of the legislative branch, which can balance, appropriate, assess, balance again, appropriate again, assess again and so forth — -in pursuit of the optimum feasible accommodation of competing demands. The courts and the Fourteenth Amendment can preempt the legislative branch only if a challenged circumstance falls demonstrably below a constitutionally permissible minimum. The juveniles deserve and should have more— perhaps, quite a bit more — than the constitutionally permissible minimum. Nonetheless, the Fourteenth Amendment is reserved for the protection of a detainee whose circumstance is below the constitutionally permissible minimum, which is patently not the case in juvenile detention at CCJ — despite any intermittent flareups, any episodic delays in medical or mental health treatment, any occasional overreaction or inattention by deputies, and the like. In design and implementation, the overall regulatory program by the Sheriff at CCJ is well above the constitutionally permissible minimum (and safely below perfection). As explained in Reno v. Flores, 507 U.S. 292, 304-05, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), in connection with a circumstance involving the care of youthful immigrants:

“The best interests of the child” is ... not an absolute and exclusive constitutional criterion for the government’s exercise of the custodial responsibilities that it undertakes, which must be reconciled with many other responsibilities. Thus, child-care institutions operated by the State are not constitutionally required to be funded at such a level as to provide the best schooling or the best health care available.... Minimum standards must be met, and the child’s fundamental rights must not be impaired; but the decision to go beyond those requirements — to give one or another of the child’s additional interests priority over other concerns that compete for public funds and administrative attention — is a policy judgment rather than a constitutional imperative.

THE PLAINTIFFS’ DISCUSSION OF THE CONSTITUTIONAL STANDARD

The plaintiffs begin their discussion of the constitutional standard in paragraph 304 of the proposed findings and conclusions (Doc. 529 at 110) by offering the undisputed notion that the Fourteenth Amendment protects a person’s “ ‘historic liberty interest’ in personal safety, freedom from unreasonable restraints, and such services as are required to safeguard those interests” during a term of deténtion. Also, the plaintiffs stipulate that the state lacks “the power to punish ... until after [the state] has secured a formal adjudication of guilt in accordance with due process of law.” The parties’ common understanding of the applicable constitutional standard ends there.

Paragraph 305 asserts one of the plaintiffs’ basic principles, the claimed authority for which is Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The plaintiffs say:

Under the Fourteenth Amendment analysis, when conditions of confinement reflect a “substantial departure from accepted professional judgment, practice, or standards,” they violate the Constitution. Youngberg, 457 U.S. at 323, 102 S.Ct. 2452.

(Doc. 529 at 110, ¶ 305)

A complementary principle immediately follows in the plaintiffs’ paragraph 305, which cites Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), to the effect that the “scope” of the constitutional protections afforded to a detainee “draws its meaning from the evolving standards of decency that mark the progress of a maturing society.” Because the plaintiffs, directed to provide the “strongest citations of authority,” cite only Youngberg and Trop to support the plaintiffs’ expression of the governing constitutional standard, a close inspection of Youngberg and Trop provides not only an assay of the plaintiffs’ constitutional hypothesis but a graphic example of the plaintiffs’ technique, recurrent in their discussion of constitutional principle, of plucking words from the defining context in a pertinent authority and transporting the words to a more expansive, more pliable, and more favorable setting, free of the defining context. First to Youngberg, next to Trop.

As stated above, the plaintiffs in the proposed conclusions of law cite Youngberg for the proposition that the Fourteenth Amendment:

protects a person’s “historic liberty interest” in personal safety, freedom from unreasonable restraints, and such services as are reasonably required to safeguard those interests when one is detained against his will by the State for reasons other than punishment.

(Doc. 529 at 110, ¶ 304) More precisely, the plaintiffs cite to two pages in Youngberg, 457 U.S. at 315 and 324, 102 S.Ct. 2452. A telling glance first at page 315 reveals words that echo the principle that the plaintiffs attribute to Youngberg. However, the words — “a constitutionally protected liberty interest in safety, freedom of movement and training within the institution” — follow the phrase “he argues,” which means “he [Romeo] argues.... ” The principle for which the plaintiffs cite Youngberg is not the court’s statement of the law but the court’s summary on page 315 of Romeo’s argument. Also on page 315, another sequence of words appears that echos the principle that the plaintiffs attribute to Youngberg. However, the words — “liberty interests also exist in safety, freedom of movement, and training”— follow the phrase “We must decide whether....” Needless to say, the plaintiffs’ conclusions of law critically omit “he [Romeo] argues ...” and “We must decide whether.... ” Perhaps obscured by the plaintiffs, the actual holding in Youngberg warrants a close explication.

In Youngberg, the detainee, Nicholas Romeo, was a “profoundly retarded,” thirty-three-year-old with “the mental capacity of an 18-month-old child,” with an I.Q. in the range of 8 to 10, without speech, and without the ability to care for himself. His mother asked a Pennsylvania court to commit him permanently to a “state facility” because of her inability to care for him and because of his persistent violence toward her and toward himself.

Under Pennsylvania’s “mental retardation” statute, the trial court involuntarily and permanently committed Romeo to the Pennhurst State School and Hospital, at which Romeo “suffered injuries on sixty-three occasions” as a result of “his own violence and by the reactions of other residents to him.” 457 U.S. at 310, 102 S.Ct. 2452. Later, after beginning a lawsuit against Pennhurst’s administrators, Romeo was moved “from his ward to the hospital for treatment of a broken arm.” While Romeo recuperated in the hospital, one of his doctors ordered Romeo restrained for the protection of both Romeo and other patients, some of whom were quite vulnerable. Even after his arm healed,'Romeo was retained in the hospital and routinely restrained.

After a jury returned a verdict against him, Romeo appealed and a panel of the Third Circuit reversed because of prejudi-cially inaccurate jury instructions on the applicable constitutional standard. The Third Circuit en banc reversed the panel and fashioned a constitutional standard that only “compelling necessity” justifies the application of a restraint, a constitutional standard that only “substantial necessity” justifies a failure to provide effective security, and a constitutional standard that requires medical care “acceptable in the light of present medical or other scientific knowledge.” 457 U.S. at 313, 102 S.Ct. 2452.

Vacating the Third Circuit’s en banc opinion and remanding, the Supreme Court in Youngberg “considered] for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment.” In response to Romeo’s specific claims for relief, Youngberg begins by acknowledging the right, established in earlier Supreme Court precedent, “to safe conditions” and to “freedom from bodily restraint.” 457 U.S. at 316, 102 S.Ct. 2452. Youngberg also considers Romeo’s claim of “a constitutional right to minimally adequate habitation,” defined as “training and development of needed skills.” Because no amount of training would advance Romeo’s release, Youngberg finds the broader “training and skills” question “not present” and “conclude[s] that [Romeo’s] liberty interests require the state to provide minimally adequate training to ensure safety and freedom from undue restraint.” 457 U.S. at 319,102 S.Ct. 2452.

Youngberg concludes that the “liberty interests in safety and freedom from bodily restraint ... are not absolute” and that the interests “to some extent ... are in conflict.” Youngberg alludes to several tests for resolving a confined person’s substantive and procedural due process claims, each of which balances the confined person’s liberty interest against “the demands of organized society,” “the State’s asserted reasons for restraining individual liberty,” “the legitímate government objectives ... not tantamount to punishment,” and the “legitimate interests of the State, including the fiscal and administrative burdens....” 457 U.S. at 320-21, 102 S.Ct. 2452. In the concluding Part IV (457 U.S. at 324, 102 S.Ct. 2452), Youngberg emphasizes the state’s willing concession of a constitutional obligation “to provide adequate food, shelter, clothing, and medical care” and, as well, “the unquestioned duty to provide reasonable safety for all residents and personnel within the institution.”

Although the constitutional standard identified in Youngberg is uncontested and incontestable, even this expression of the duty is too amorphous to serve alone as a tool of decision in litigation. What quality and quantity of food, shelter, clothing, and medical care is “adequate” and how safe is “reasonable safety”? Who decides and based on what? Although the plaintiffs advance generalities, Youngberg supplies more:

We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that “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.” 644 F.2d, at 178.

457 U.S. at 321-22,102 S.Ct. 2452.

Youngberg presents primarily a question about the training that the Constitution requires for an involuntarily and civilly committed person. Youngberg finds that the answer to the question is the “minimally adequate training” that is “reasonably” consistent with both the liberty interest of the committed person and the “deference due to the judgment exercised by a qualified professional.” 457 U.S. at 322, 102 S.Ct. 2452. Youngberg reasons that, because “there is no reason to think judges or juries are better qualified than appropriate professionals,” “interference by the federal judiciary ... should be minimized.”

For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional 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. In an action for damages against a professional in his individual capacity, however, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability.

457 U.S. at 323, 102 S.Ct. 2452. And Youngberg tellingly adds:

In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to enable institutions of this type — often, unfortunately, overcrowded and understaffed — to continue to function. A single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day.

457 U.S. at 324, 102 S.Ct. 2452. Young-berg clarifies the definition of a “ ‘professional’ decisionmaker”:

By a “professional” decisionmaker, we mean a person competent, whether by education training, or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-today decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons.

457 U.S. at 323,102 S.Ct. 2452.

Youngberg undertakes to clarify the constitutional standard applicable to a “profoundly retarded,” permanently civilly committed, and intermittently violent adult who was incapable of maintaining himself or defending himself against himself or others. Even in the instance of the pervasively vulnerable and dependent inmate in Youngberg, the Supreme Court declined to impose a constitutional standard of care as demanding and inflexible as the standard the plaintiffs aspire to impose on the Sheriffs management of a typical group of juvenile detainees. More to the point, the “profoundly retarded” person institutionalized for a lifetime in Youngberg is not comparable to the typical juvenile detained temporarily by the Sheriff in the present action. And the standard the plaintiffs attribute to Youngberg is dramatically more demanding and inflexible than the standard Youngberg prescribes.

The plaintiffs next cite Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), to the effect that “these constitutional principles” (Doc. 529 at 100) — referring to the preceding sentence about the Fourteenth Amendment — “draw meaning from the evolving standards of decency that mark the progress of a maturing society,” 356 U.S. at 101, 78 S.Ct. 590, a phrase readily recognizable from repetition in recent years in the Supreme Court’s interpretation of the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Of course, the parties agree that the administration of “punishment” has no application to a pretrial detainee, whether juvenile or adult, who is by definition not yet adjudicated guilty of a crime and who is perforce not subject to “punishment,” as the word “punishment” is used in the Eighth Amendment.

In Trop, a general court-martial convicted an army private, stationed in French Morocco during World War II, of desertion and sentenced him to three years at “hard labor” and a dishonorable discharge. Later he applied for a passport, which was rejected because under the Nationality Act of 1940 he had “lost” his United States citizenship by force of his conviction for desertion. Trop determines that under the Eighth Amendment Congress lacks the power to expatriate a citizen as punishment for desertion (even though, the Supreme Court concedes, Congress can require the death penalty for the same offense by the same offender). The plaintiffs’ citation to Trop is peculiar because Trop includes no discussion of the constitutional standard of care owed to a deserter or anyone else in a state prison, a county jail, a military brig, or any other facility for confinement. The plaintiffs have, again, plucked a phrase from a case about the Eighth Amendment’s prohibition against cruel and unusual punishment and mischievously planted the phrase out of context and disguised as Supreme Court precedent controlling the standard of care for juvenile detention, to which — all agree — the concept of “punishment” is wholly inapplicable.

At this point, after paragraph 305 and before paragraph 306, the plaintiffs feature the heading “CHILDREN ARE CONSTITUTIONALLY DIFFERENT FROM ADULTS.” To begin this section of the plaintiffs’ proposed findings, the plaintiffs in paragraph 306 cite Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), as authority for the premise that “evolving standards of decency have long recognized society’s duty toward children given their unique vulnerabilities and capacity for change.” Although the preceding quotation originates in the plaintiffs’ proposed findings (Doc. 529 at 111, ¶ 306) and not in Gault, the plaintiffs attach to their formulation a cite to Gault, 387 U.S. at 14-15, 87 S.Ct. 1428, which contains in content or meaning nothing similar to the plaintiffs’ quotation. Pages 14-15 of Gault discuss the history of informal juvenile proceedings and the former unavailability to a juvenile of the procedural rights available to an adult, including the right to an indictment by a grand jury, to bail, to a jury trial, to counsel, to the Fifth Amendment privilege against self-incrimination, and to the rights to notice, to a hearing, to confrontation, to cross-examination, and the like. Gault says nothing at pages 14-15 (or, apparently, elsewhere) about “evolving standards,” “unique vulnerabilities,” or “capacity for change.” The citation to Gault appears bravely imaginative.

The plaintiffs next repair for authority to three recent Supreme Court decisions, each a decision based on the Eighth Amendment’s prohibition against “cruel 'and unusual punishment” and each a decision about criminal sentencing. Although each, case involves a juvenile, none involves detention.

Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), holds that the Eighth Amendment forbids imposition of the death penalty on a juvenile offender. Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), holds that the Eighth Amendment forbids imposition of a life-without-parole sentence on a juvenile who commits a “non-homicide” offense. The third and most recent of the trio of decisions is Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which extends Graham and holds that a mandatory life-without-parole sentence imposed on a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The plaintiffs first cite Roper, Graham, and Miller for the assertion that “evolving standards of decency ... recognize that children are constitutionally different from adults.” The plaintiffs next cite Miller and. Graham for the explanation that the constitutionally pertinent distinction arises from differences in “brain development” and the consequences of those differences. However, Miller’s statement is somewhat less than the plaintiffs suggest.

Justice Kagan for the majority in Miller states' — with more precision than the plaintiffs — that Roper and Graham establish “that children are constitutionally different from adults for purposes of sentencing,” but the plaintiffs slyly omit the “for purposes of sentencing” qualifier. 132 S.Ct. at 2464. Justice Kagan explains that the “constitutional differences” she perceives are physiological and psychological:

First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impul-sivity, and heedless risk-taking. Second, children “are more vulnerable to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as ‘Veil formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable] depravity].”

(citations omitted).

Justice Kagan explains in Miller that, because of the “distinctive” physiological and psychological “attributes of youth,” the “penological justifications for imposing the harshest sentences” are “diminished.” Justice Kagan finds that these distinctive differences diminish the prospects of successful retribution, deterrence, and incapacitation but enhance the prospects of rehabilitation. Of course, Miller addresses a discrete Eighth Amendment issue, the imposition of life-without-parole; Miller says little, if anything, about the constitutional standard applicable to juvenile detention.

The declaration that “children are constitutionally different for the purpose of sentencing” is neither a pervasive rule of law nor a pre-emptive finding of fact with indiscriminate application to, or with supervening effect in, every circumstance in which a juvenile appears; the statement neither pretends nor aspires to general application. This somewhat ethereal utterance in Miller about the difference between a child and an adult is more a shorthand summary of “common sense” and of what “every parent knows,” as Justice Kagan phrases the matter, refined by the present state of the pertinent science and, much less so (if at all), by the social sciences. Even if Justice Kagan had said “children are constitutionally different,” as the plaintiffs suggest, that catchy but insubstantial phrase would resolve as little or less than the similarly catchy but equally insubstantial phrase that it echoes: “death is different,” a line from Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In point of fact, as both common sense and metaphysics confirm, everything is different from everything else.

Next, the plaintiffs state the more interesting thesis that “conditions for detained children must meet a higher standard of care than that required for adults.” (Doc. 529 at 112, ¶ 309). In support, the plaintiffs cite AJ by LB v. Kierst, 56 F.3d 849 (8th Cir.1995), and the plaintiffs add a parenthetical quote that “the due process standard” is “more liberally construed” for juveniles than adult detainees.

But Kierst is not the case that the plaintiffs suggest. The trial court in Kierst ruled entirely against the plaintiffs, and the circuit court affirmed, except on a discrete issue of the attorney’s fee. Although Kierst confirms that the “more protective” Fourteenth Amendment, not the Eighth Amendment, governs the status of a pretrial detainee, Kierst observes that “the Supreme Court has not yet articulated the appropriate federal standard by which to judge conditions in state juvenile facilities.” 56 F.3d at 854. Kierst confirms the rudimentary and unremarkable premise that because a detainee has incurred no adjudication of guilt, more scrutiny is applied to the conditions of detention. Quoting Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir.1983), Kierst states:

Juveniles ... who have not been convicted of crimes, have a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals.

Kierst’s discussion of the standard concludes with the statement quoted by the plaintiffs:

[W]e conclude that, as a general matter, the due process standard applied to juvenile pretrial detainees should be more liberally construed than that applied to adult detainees.

In discussing the due process standard, the earlier quote from Kierst uses the phrase “closer scrutiny”; discussing the same standard, the latter quote uses the phrase “more liberally construed.” What,' if anything, is intended by the conjunction of “closer scrutiny” and “more liberally construed” remains unclear, especially a couple of paragraphs after Kierst’s stipulating that the Supreme Court has left the applicable standard unspecified. Whatever Kierst says about the standard, Kierst finds that “overcrowding alone” is “insufficient to create a due process violation” and that no violation existed with respect to the center’s use of floor mattresses, which Kierst finds not to “amount[ ] to a deprivation of such severity as to deprive plaintiffs of their due process rights.”

The plaintiffs in the present action pluck a clause from Kierst and feature the clause as probative of the applicable constitutional standard, but Kierst actually says something quite different from the plaintiffs’ isolated quote. And the plaintiffs say nothing about one of Kierst’s only adjudications on the subject of conditions of detention, that is, Kierst found a lack of constitutionally cognizable “severity” in the challenged conditions of detention of the juveniles. In their mention of Kierst, the plaintiffs say nothing about “severity,” a word that provides an accurate hint of Kierst’s essential constitutional concern.

For the notion that the Constitution requires “rehabilitative” services for a detainee, the plaintiffs next cite (introduced by “see, e.g.”) Swansey v. Elrod, 386 F.Supp. 1138 (N.D.Ill.1975), a forty-year-old, succinct, little-cited order without an ascertainable subsequent history. In Swansey, a district judge in Chicago preliminarily enjoined the Sheriff of Cook County from transferring thirteen-to-seventeen-year-olds from a juvenile housing facility to an adult housing facility after the juvenile judge approved prosecuting the juveniles as adults. The adult facilities were overcrowded (about twice the design capacity), and the population included both federal and state felons.

Swansey is resolved on both Eighth Amendment and Equal Protection Clause grounds. The two holdings are instructive and serve to distinguish Swansey from the present action. First, the district court finds “a likelihood of success” on the Eighth Amendment claim and concludes:

Under the Eighth Amendment children who remain unconvicted of any crime may not be subjected to devastating psychological and reprehensible physical conditions, and while other juvenile law cases are not strictly on point, they recognize that juveniles are different and should be treated differently. Thus, the evolving standards of decency that mark the progress of a maturing society require that a more adequate standard of care be provided for pre-trial juvenile detainees. Plaintiffs therefore have demonstrated that there is a likelihood of success on their Eighth Amendment claim.

386 F.Supp. at 1144. The district judge’s reference in Swansey to “devastating” and “reprehensible” conditions sounds much like the “severity” findings in Kierst, which demand something sufficiently severe, something sufficiently threatening serious harm, to trigger an Eighth Amendment consequence. The juvenile detainees in Swansey eating, sleeping, working, and lounging in intimate contact with adult felons evidences a circumstance sufficiently severe and sufficiently threatening of serious harm to trigger a constitutional remedy.

Finally, the district court in Swansey decisively invoked the Equal Protection Clause. The district judge held that, because in this circumstance both a juvenile convicted as an adult and an unconvicted juvenile in detention receive rehabilitative services, the Equal Protection Clause required that a detained juvenile approved for prosecution as an adult but still in detention and uneonvicted must receive the same services unless Illinois shows that the disparate treatment is “rationally related” to a legitimate governmental purpose, which Illinois in Swansey could not show.

Needless to say, the facts in the present action fail to present, and the plaintiffs fail to advance, a claim based on the Equal Protection Clause. And the juveniles in the present action neither eat nor sleep nor work nor lounge in the company of, or even in sight of or within the sound of, an adult felon or even an adult detainee. The role of the absence of rehabilitative services in Swansey is, at best, tertiary. Although Swansey might stand (weakly) for the premise that the absence of rehabilitative services for a juvenile detainee can reinforce evidence of a constitutional violation based on another deprivation, Swan-sey cannot support — by a wide margin— the notion that the Constitution requires rehabilitative services for a juvenile detainee. If Swansey says that, Swansey is wrong.

Employing a “see also ” signal in the same paragraph as the citation to Swan-sey, the plaintiffs cite Baker v. Hamilton, 345 F.Supp. 345 (W.D.Ky.1972), a little-cited decision three years older than Swansey and also without an ascertainable subsequent history. Similar to Swansey, Baker presents the grisly (but inapposite) fact of housing juvenile detainees together with adult felons in a “decrepit” 1907 structure, plagued by extreme heat and cold, broken windows, inoperable locks, five-foot by nine-foot cells with “two bunks” and a one-bulb ceiling light for illumination, and a history of one suicide and three prison deaths in a year, as well as an “act of perversion” perpetrated in the presence of a juvenile. A grand jury called the jail a “disgrace” and an expert testified that the facility was “deplorable” and “the worst he had ever seen.” Baker concludes that:

[Tjhere are sufficient elements present in the Jefferson County Jail to hold that confinement therein as to juveniles constitutes cruel and unusual punishment. Specifically, these elements are as follows — cramped quarters, poor illumination, bad circulation of air, broken locks, no outdoor exercise or recreation, and no attempt at rehabilitation, in addition to the condition of the “hole”, which Judge Thompson described as horrible.

345 F.Supp. at 353.

Baker gives no definition of “rehabilitation” but, however defined, the lack of rehabilitation manifestly played only a secondary role in the (obvious) conclusion that a juvenile’s confinement with adults in this hellish Kentucky jail violates the Eighth Amendment. Again, a fair reading of Baker confirms that the lack of even an “attempt at rehabilitation” contributed to the overall unconstitutional condition at the facility. But Baker stands only weakly, if at all, for the notion that the Fourteenth Amendment requires a particular form or extent of “rehabilitative services” for a juvenile detainee.

On page 113, the plaintiffs boldly assert — without a citation of authority and unjustified by the authority cited elsewhere — that providing a juvenile in detention with a “rehabilitative environment” (an entirely new term, unmentioned in any citation and wholly undefined) and with “rehabilitative services” (also undefined) “defines the difference between juvenile and adult detention.” (Doc. 529 at 113, ¶ 311). The plaintiffs’ identification of this supposedly defining (but undefined) “difference” in a discussion of the constitutional standard applicable to juvenile detention is an aggressive and imaginative ipse dixit, which is followed by another, which is equally aggressive: “A searching inquiry must be made to ensure that conditions for children satisfy accepted practices and standards in juvenile detention.” For this, the plaintiffs again cite Youngberg, which, notwithstanding the plaintiffs’ formulation, requires (as elaborated earlier) a “balance between the legitimate interests of the state and the rights of the involuntarily committed,” 457 U.S. at 322, 102 S.Ct. 2452, which warns that “it is not appropriate for the courts to specify which of several professionally acceptable choices should have been made,” 457 U.S. at 322, 102 S.Ct. 2452, and which requires only “minimally adequate training.”

The plaintiffs persistently mistake — by increments but with consistency — the constitutional standard. For example, the plaintiffs again in the discussion adjoining the Youngberg citation, begin with Justice Kagan’s observation about certain attributes of juveniles that imply constitutional differences “for the purposes of sentencing” and promiscuously elevate the observation into a “fundamental constitutional difference between children and adults.” (Doc. 529 at 113, ¶ 312) The plaintiffs’ cagey looseness with words plagues the plaintiffs’ papers and, in part, compels this lengthy evaluation of applicable law.

The plaintiffs next (Doc. 529 at ¶¶ 313— 14) assemble a list of constitutional offenses allegedly committed by the Sheriff and undertake to elucidate with legal authority the content of each pertinent constitutional principle. The discussion begins with the heading after paragraph 313 (Doc. 529 at 114), which heading states: “CHILDREN’S PROTECTION FROM VIOLENCE AND THE THREAT OF VIOLENCE.”

Paragraph 314 (Doc. 529 at 114) begins with a citation to Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), to support a claim that “the Eighth and Fourteenth Amendments protect prisoners from a substantial risk of harm, including harm from other prisoners.” An examination of Farmer at the cited pages (and elsewhere) reveals something noticeably and distinctly different from the plaintiffs’ claim. First, Farmer begins with the unequivocal statement, “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” 511 U.S. at 829, 114 S.Ct. 1970. In other words, the plaintiffs again (in accord with a persistent pattern) select some words from a court’s ruling but selectively exclude others to re-cast and lower the constitutional threshold, a little at a time (but with occasional jolts), while retaining a few familiar words that lend a false air of verisimilitude to the plaintiffs’ newly-minted and lesser formulation.

As stated in the first paragraph of Farmer, the decision defines “deliberate indifference.” Farmer was a transsexual who “projected] feminine characteristics” and who was transferred by the Bureau of Prisons from FCI Oxford, Wisconsin, to USP Terre Haute, Indiana, a facility with the “more bothersome prisoners,” and placed in the general population. Within two weeks he was beaten and raped, after which he was placed in segregation. Farmer sued the BOP and alleged deliberate indifference by officials to his safety. Noting that the Constitution neither mandates “comfortable prisons” nor permits “inhumane ones,” Farmer finds that the Eighth Amendment requires “reasonable measures to guarantee the safety of the inmates,” 511 U.S. at 832, 114 S.Ct. 1970, and “to protect prisoners from violence at the hands of other prisoners.” 511 U.S. at 833,114 S.Ct. 1970.

Because the plaintiffs carefully exclude reference to “reasonable measures” and to “serious harm,” the plaintiffs likewise exclude the balance of Farmer’s governing formulation:

It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety. Our eases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.

The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases[,] that state of mind is one of “deliberate indifference” to inmate health or safety, a standard the parties agree governs the claim in this case.

511 U.S. at 834, 114 S.Ct. 1970 (citations omitted).

The plaintiffs next cite Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.1986), for the premise that “incarcerated people have ‘a constitutional right to be protected from the constant threat of violence and from physical assault by other inmates.’ ” Zatler alleged that he was raped in eight Florida prisons because he was “a young, white, slightly built man” and that he was denied “reasonable protection.” Zatler contains the words quoted by the plaintiffs, but — unsurprisingly—the sentence after the sentence quoted by the plaintiffs begins, “However, ...” and continues:

“[t]his does not mean that the constitutional rights of inmates are violated every time a prisoner is injured. It would not be reasonable to impose such an absolute and clearly unworkable responsibility on prison officials.” “ ‘In order to state a § 1983 cause of action against prison officials based on a constitutional deprivation resulting from cruel and unusual punishment, there must be at least some allegation of a conscious or callous indifference to a prisoner’s rights, thus raising the tort to constitutional stature.’ ”

(citation omitted).

Conforming to the “deliberate indifference” line of decisions, Zatler elaborates the requirement of “causal connection” between the acts of a prison official and a constitutional deprivation. Zatler is a damages action under the Eighth Amendment but, to the extent pertinent to the present action, Zatler says much less than the plaintiffs’ presentation implies. In fact, Zatler iterates the sensible constitutional perspective that “[t]he mere fact that an assault occurs, however, does not establish the requisite indifference to a prisoner’s constitutional rights” or, stated differently, “a constitutional right is not violated every time a prisoner is injured.” 802 F.2d at 403.

The plaintiffs next cite Marsh v. Butler County, Alabama, 268 F.3d 1014, 1027 (11th Cir.2001) (en banc), another decision under the Eighth Amendment, for the proposition that “a constitutional violation is established when officers are aware of a substantial risk of serious harm to the inmates and do not take reasonable measures to alleviate that risk.” Of course, this echoes the standard of Farmer, discussed above, which includes “deliberate indifference” toward a serious risk of serious harm. As Marsh states elsewhere:

An Eighth Amendment violation will occur when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not “respond[ ] reasonably to the risk.”

268 F.3d at 1028. So, Marsh’s formulation includes both “subjective awareness” of, and a “reasonable response” to, the serious risk of serious harm. Because Marsh finds the allegations by the plaintiffs about the jail in Butler County, Alabama, sufficient to defeat the defendants’ motion.for summary judgment, a detailed description of the conditions in the facility is instructive:

The Jail was an old budding that had become extremely dilapidated by the summer of 1996. Inmates were able to obtain makeshift weapons by cannibalizing parts of the decaying building. Lack of adequate monitoring of the inmates allowed inmate activities to go mostly unchecked. Locks to the doors of the inmates’ cells did not work, resulting in the inability of the guards to lock down the prisoners. Because prisoners were never locked down, jailers were afraid to conduct visual inspections of inmate cells on the second floor; most of the inmate population was kept on the second floor.' No visual or audio surveillance system was in place on the second floor, nor, did prisoners have means to contact guards other than by screaming or banging on the walls. Jailers never conducted prisoner headcounts.

Often, only one jailer was on duty at the Jail at a time. This single jailer was responsible for controlling the entire inmate population, administering inmate intake and release, controlling the gate and fence surrounding the Jail, supervising visitation and outdoor exercise, handling mail, coordinating food service, dispensing medication, supervising trustees, answering the Jail telephone, and (at times) answering calls to the Butler County Sheriffs Department and operating the dispatch radio. Because the Jail was understaffed, inmate trustees were given many responsibilities for taking care of other inmates and maintaining the operation of the Jail.

In August 1995, the jail inspector for the Alabama Department of Corrections recommended that all Butler County jailers be trained in jail-management seminars. By the time of the incidents underlying the complaint, few jailers had been so trained. Written procedures did not govern the Jail’s operations.

Inmates entering the Jail were not screened for mental impairments or for whether they had conflicts with other inmates in the Jail. No system of classification existed at the Jail: pretrial detainees were housed with convicted inmates, nonviolent offenders with violent offenders, juveniles with adults, and mentally ill persons with those in good mental health. Never were prisoners disciplined or segregated for assaulting other inmates, destroying jail property, or threaten