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Center for Legal Advocacy v. Bicha

United States District Court, D. Colorado

November 9, 2018

CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff,
v.
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; and JILL MARSHALL, in her official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo, Defendants. Month Number of Pretrial Detainees on Report A Waiting 28 Days Average Wait Time Longest Wait Time Month Number of Pretrial Detainees on Report C Waiting 30 Days Average Wait Time Longest Wait Time Total Number of Referrals Fiscal Year In Patient Competency Evaluations In Patient Restorations

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang, United States Magistrate Judge.

         This matter comes before the court on Plaintiff Center for Legal Advocacy d/b/a Disability Law Colorado's ("DLC" or "Plaintiff) Motion for Summary Judgment to Enforce Settlement ("Motion" or "Motion for Summary Judgment") [#96] and Defendants Reggie Bicha and Jill Marshall's (collectively, "Defendants" or "Department") Motion for Summary Judgment (or "Motion") [#97]. The Motions are before the undersigned pursuant to the Order of Reference dated February 21, 2012 [#44], the Order of Reassignment dated November 19, 2015 [#58], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLOLCivR 72.2. The court retained ancillary jurisdiction to consider the issues raised in the Parties' Motions for Summary Judgment, because the Parties' consented to this court retaining jurisdiction to enforce the terms of the 2016 Settlement Agreement and the court fully incorporated the terms of the 2016 Settlement Agreement in its Order of Dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). Accordingly, having reviewed the Motions and associated briefing, and the evidence and comments offered at the September 28, 2018 Motions Hearing, the court GRANTS IN PART and DENIES IN PART Plaintiff s Motion for Summary Judgment; DENIES Defendants' Motion for Summary Judgment; and SETS this action for a Status Conference.

         BACKGROUND

         The court draws the following facts from the record before it, including the Parties' Joint Statement of Undisputed Facts. [#104].

         1. The Department is required to provide competency evaluations for any defendant when the issue of competency to stand trial is raised. See Colo. Rev. Stat. § 16-8.5-101, et seq.

         2. The Department is required to provide restoration services for any defendant found by the court to be incompetent to proceed. See Id. at §§ 16-8.5-101, et seq., 27-60-105.

         3. In 2007, there were contempt citations issued in Denver District Court related to pretrial detainees waiting extended periods of time in Denver County Jail. See, e.g., Am. Contempt Citation, People v. Zuniga, No. O6CR999 (Colo. Dist. Ct. Jan. 3, 2007); Contempt Citation, People v. Kirkwood, No. O6CR5797 (Colo. Dist. Ct. Jan. 3, 2007); Am. Contempt Citation, People v. Sims, No. O5CR2272 (Colo. Dist. Ct. Jan. 3, 2007) (collectively [#105-1]). In 2006, Denver District Court Judge Egelhoff appointed special counsel to litigate contempt citations against the Executive Director of the Colorado Department of Human Services and the Superintendent of the Colorado Mental Health Institute at Pueblo ("CMHIP"). In those instances, pretrial detainees were sitting in jail for many months awaiting transport to CMHIP for competency evaluations. The contempt citations and orders were resolved through a settlement agreement. The agreement required CMHIP to offer admission to pretrial detainees within 28 days of a court order requiring in-patient competency evaluations or restorative treatment, and to maintain a quarterly average of 24 days for both categories.

         4. Some period after that settlement agreement expired, the Department and CMHIP did not transport pretrial detainees to CMHIP for competency evaluation or restoration treatment within 28 days after they were ready for admission.

         5. Plaintiff initially commenced this matter on August 31, 2011. [#1]. The complaint alleged that Defendants failed to timely admit pretrial detainees in jails across Colorado into CMHIP, the State's only forensic mental health hospital charged with providing court-ordered evaluations and accepting custody of pretrial detainees for restorative treatment, for competency evaluations, and restorative treatment for those determined to be incompetent to stand trial. Id. The complaint alleged this failure created unconstitutional delays to provide competency evaluations and treatment for up to 80 pretrial detainees for as long as six months. Id.

         6. In 2012, the parties entered into settlement negotiations to resolve issues related to the length of the time individuals were waiting to receive competency evaluations and restoration services.

         7. After settlement negotiations mediated by former Magistrate Judge Boyd N. Boland, and post-mediation negotiations, the parties reached the 2012 Agreement resolving the case.

         8. The 2012 Agreement put into place timeframes for the Department to: 1) complete outpatient (in-jail) competency evaluations; 2) offer admission for inpatient competency evaluations; and 3) offer admission for inpatient restoration services. [#51-1; #105-15].

         9. The 2012 Agreement included a provision called Special Circumstances, which "recognizes that to some extent the Department's ability to perform its statutory obligations and its obligations under [the 2012 Agreement] is based on factors beyond the Department's control."

         10. The 2012 Agreement defines Departmental Special Circumstances ("DSC") as:

circumstances beyond the control of the Department which impact the [Department's] ability to comply with the timeframes set forth in Paragraph
2. This could mean an unanticipated spike in referrals, a substantial and material decrease in the Hospital's budget, or another sentinel event impacting clinical decisions system wide. These examples are provided for illustration only. [DSC] is a flexible concept, due to the unique and often unforeseen nature of these events.

         11. The 2012 Agreement states that:

if [DSC] is invoked and then agreed upon by the parties, the timeframe requirements of Paragraph 2 shall be suspended as to all Pretrial Detainees affected by the invoked [DSC] for a period of six months from the date of the Department's invocation.

         12. The 2012 Agreement states that:

if the timeframe requirements of Paragraph 2 of [the 2012 Agreement] are temporarily suspended pursuant to the provisions of Paragraph 6(c), the duration of [the 2012 Agreement] shall be extended for a period equal to the length of time of the suspension of the timeframe requirements... [and] then the Department will receive only a reduction in the duration for the number of months it was in compliance for the year.

         13. The 2012 Agreement states that "upon the first anniversary of the full execution of [the 2012 Agreement] and if the Department has fully complied with the terms of [the 2012 Agreement]," the duration of the 2012 Agreement would be reduced by one year.

         14. Both parties certified that they fully and carefully reviewed the 2012 Agreement and consulted with their respective attorneys regarding the legal effect and meaning of the 2012 Agreement and all terms and conditions thereof.

         15. The 2012 agreement was incorporated by reference in the Court's Order of Dismissal on April 9, 2012 under Fed.R.Civ.P. 41(a)(2). [#52].

         16. In August 2015, the Department invoked DSC.

         17. In October 2015, the Plaintiff moved to reopen the matter for enforcement of the 2012 agreement, in part because it disputed DSC. [#53].

         18. After two days of mediation, engaging in subsequent settlement negotiations, and exchanging multiple drafts, the parties entered into an Amended and Restated Settlement Agreement ("Settlement Agreement" or "2016 Agreement") [#78-1] resolving the case.

         19. The Settlement Agreement is the product of over three months and hundreds of hours of work by both parties. The current 2016 Settlement Agreement was filed with the Court on July 28, 2016. [#78-1; #105-17].

         20. This Court retained jurisdiction to enforce the Settlement Agreement. [#78 at ¶¶ 3, 4; #105-16]. Under the 2016 Settlement Agreement, the Department is required to offer admission to pretrial detainees to the hospital for restorative treatment or inpatient competency evaluations no later than 28 days after the pretrial detainee is ready for admission. [#105-16 at ¶ 2(a)]. The Department also must maintain a monthly average of 24 days or less for both types of offers of admission. See id.

         21. The 2016 Agreement includes a provision called Special Circumstances, which recognizes that "to some extent the Department's ability to perform its statutory obligations and its obligations under [the Agreement] are based on factors beyond its control." 22. The 2016 Agreement defines DSC as:

circumstances beyond the control of the Department which impact the Department's ability to comply with the timeframes set forth in Paragraph 2. This could mean an unanticipated spike in referrals, a national or statewide disaster impacting admissions decisions system wide. These examples are provided for illustration only. [DSC] is a flexible concept, due to the unique and often unforeseen nature of these events.

         23. The 2016 Agreement states that:

upon the invocation of [DSC], the timeframe requirements of Paragraph 2 shall be automatically suspended for six months, unless the Department notifies [Disability Law Colorado] that a shorter period of time is sufficient to resolve [DSC], commencing with the month in which the Notice of [DSC] is transmitted to [Disability Law Colorado].

         24. The 2016 Agreement states that:

if the timeframe requirements of Paragraph 2 of [the Agreement] are temporarily suspended pursuant to the provisions of Paragraph 6(c), the duration of [the Agreement] shall be extended for a period equal to the length of time of the suspension of the timeframe requirements.

         25. This language reflects a modification from the 2012 Agreement. Id.

         26. The 2016 Agreement states that:

the term of the Agreement shall be reduced by three months for each of the number of months of certified timeliness compliance for the prior calendar year... [and] the term of the Agreement shall be increased by three months for each month during the prior calendar year that the Department was not in full compliance with the timeliness requirements of [the Agreement].

         27. Both parties certified that they fully and carefully reviewed the 2016 Agreement and consulted with their respective attorneys regarding the legal effect and meaning of the 2016 Agreement and all terms and conditions thereof.

         28. The 2016 Settlement Agreement states that

[t]he Hospital may invoke Individual Special Circumstances more than once for the same Pretrial Detainee, but it must follow the notification and conferral procedures in Paragraph 6(b) each time it ...

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