Center for Legal Advocacy v. Bicha

          ORDER APPOINTING SPECIAL MASTER

          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 Appointment of Special Master (or “Motion”) [#117] and the Order on Motion for Appointment of Special Master [#123]. On December 18, 2018, the undersigned granted the Plaintiff's Motion for Appointment of Special Master and advised the Parties that a separate, written Order appointing the Special Master would follow. See [#123 at 4-5]. Having reviewed the affidavits of Drs. Neil Gowensmith and Daniel Murrie and finding no grounds for disqualification under 28 U.S.C. § 455, the Parties' submissions regarding the duties of the Special Master, and the entire docket, and pursuant to the court's authority under Rule 53 of the Federal Rules of Civil Procedure, the court hereby APPOINTS Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie as Special Master in this matter as set forth below.

         FINDINGS OF FACT AND CONCLUSION OF LAW REGARDING THE NEED FOR A SPECIAL MASTER

         The court hereby incorporates its factual findings and conclusions of law as reflected in its Memorandum Opinion and Order dated November 9, 2018. [#113]. In particular, the court finds as follows:

         1. Since at least 2007, the Colorado Department of Human Services (“the Department”) and the Colorado Mental Health Institute at Pueblo (“CMHIP”) have been subject to contempt citations issued in the Denver District Court relating to the extended period of wait times for pretrial detainees to access competency evaluations.

         2. Those 2007 contempt citations were resolved through litigation involving a special counsel appointed by Denver District Court Judge Egelhoff, and resulted in a settlement agreement that 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.

         3. Sometime after the expiration of this first settlement agreement, 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, prompting this action.

         4. Plaintiff 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. [#1]. 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.].

         5. The Parties settled this action first in 2012, with an agreement (“2012 Agreement”) that required 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 in a certain timeframe. [#51-1; #105-15]. Under the 2012 Agreement, the Department was required to complete all out-patient evaluations of a pretrial detainee no later than 30 days after CMHIP's receipt of a court order directing the evaluation and receipt of collateral materials. [#51-1 at ¶ 2(b)]. The Department was also required to admit pretrial detainees to CMHIP no later than 28 days after such detainee is ready for admission and maintain a monthly average of 24 days or less for admissions for restorative treatment and in-patient competency evaluations. [Id. at ¶ 2(a)].

         6. 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.”

         7. In August 2015, the Department invoked DSC.

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

         9. The Parties were able to resolve this 2015 dispute through an Amended and Restated Settlement Agreement (“Settlement Agreement” or “2016 Agreement”) [#78-1]. The 2016 Agreement was effective as of July 28, 2016. [Id. at ¶ 9, 22-23].

         10. The term of the 2016 Agreement extended until July 31, 2021, unless modified by other provisions arising from the Department's adherence or lack of adherence to the timeframes set forth in the 2016 Agreement. [#78-1 at ¶ 4(a)]. The Parties agreed that the 2016 Agreement would not be modified to terminate prior to January 1, 2019 - approximately 29 months after its effective date.

         11. 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.].

         12. 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 Settlement Agreement] are based on factors beyond its control.”

         13. In June and December 2017, the Department invoked DSC. [#105-2; #105-3]. The Parties dispute whether ...