United States District Court, D. Colorado
CENTER FOR LEGAL ADVOCACY, d/b/a DISABILITY LAW COLORADO, Plaintiff,
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.
ORDER APPOINTING SPECIAL MASTER
Y. WANG UNITED STATES MAGISTRATE JUDGE.
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.
OF FACT AND CONCLUSION OF LAW REGARDING THE NEED FOR A
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:
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.
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
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.
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.].
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)].
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.”
August 2015, the Department invoked DSC.
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].
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].
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.
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.].
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.”
June and December 2017, the Department invoked DSC. [#105-2;
#105-3]. The Parties dispute whether ...