Filed: Dec. 18, 2018
Latest Update: Dec. 18, 2018
Summary: ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER NINA Y. WANG , 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"), filed December 6, 2018. See [#117]. The Motion is 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.
Summary: ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER NINA Y. WANG , 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"), filed December 6, 2018. See [#117]. The Motion is 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. C..
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ORDER ON MOTION FOR APPOINTMENT OF SPECIAL MASTER
NINA Y. WANG, 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"), filed December 6, 2018. See [#117]. The Motion is 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.COLO.LCivR 72.2. The court retained ancillary jurisdiction over this civil action pursuant to Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). Accordingly, having reviewed the Motion, associated briefing, and applicable case law, the court GRANTS the Motion for Appointment of Special Master.
BACKGROUND
The court has discussed the background of this matter in its Memorandum Opinion and Order on the Parties' Cross-Motions for Summary Judgment, see [#113], and discusses it here only as it pertains to the instant Motion. On November 9, 2018, the court granted in part and denied in part DLC's Motion for Summary Judgment, denied Defendants Reggie Bicha and Jill Marshall's (collectively, "Defendants" or "the Department") Motion for Summary Judgment, and set a Status Conference for November 30, 2018 to discuss discovery and an evidentiary hearing regarding the Department's invocation of Department Special Circumstances ("DSC") in June and December 2017. See generally [#113]. At the November 30, 2018 Status Conference, Plaintiff proposed that the court consider appointing a special master, and this court discussed a discovery schedule1 in contemplation of a five-day evidentiary hearing to commence on March 18, 2019. See [#115].
DLC filed the instant Motion on December 6, 2018, requesting that the court appoint a Special Master to assist the Parties and the court. See [#117 at 2-5]. Plaintiff proposes appointment of "Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie," who "have tremendous, relevant experience." [Id. at 7]. DLC further contends that the Department should bear the costs of a Special Master because it "had already agreed in the 2016 Settlement Agreement to pay for Dr. Dvoskin [who was initially selected to act as an independent consult to assist with Defendants' compliance efforts]" and because this court has determined the Department to be in breach of the 2016 Settlement Agreement. See [id. at 7-8]. Finally, DLC requests that the duration of appointment last "for the duration of the Amended Settlement Agreement" or "[a]t a minimum,. . . until such time that the Department returns to compliance and the Court enters final judgment against Defendants for their breaches of the Amended Settlement Agreement." [Id. at 8].
Defendants filed a Response on December 13, 2018. See [#118]. Defendants agree that appointment of a Special Master will serve the interests of the Parties and the court. See [id. at 1]. Further, Defendants agree to the appointment of Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie, and agree to bear the costs of such appointment, "provided the duties of the Independent Consultant are stayed as proposed in Plaintiff's Exhibit 8 and Defendants' Exhibit A, and the duties and duration of the special master are adopted as outlined in Exhibit A." [Id. at 2]. Defendants also request that the duration of the appointment last until Defendants have "maintained compliance with the Settlement Agreement timeframes concerning inpatient competency restoration services for three months," with the potential for a longer duration upon DLC's showing of good cause. See [id. at 2-3].
LEGAL STANDARD
Rule 53 of the Federal Rules of Civil Procedure provides the court with the authority to appoint a special master under certain circumstances. See Fed. R. Civ. P. 53(a), (b); accord Bartlett-Collins Co. v. Surinam Nav. Co., 381 F.2d 546, 550 (10th Cir. 1967) (explaining that "reference to a Master shall be the exception and not the rule"). And "`a federal district court has the inherent power to supply itself with [a special master] for the administration of justice when deemed by it essential.'" United States v. State of Conn., 931 F.Supp. 974, 984 (D. Conn. 1996) (quoting Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982). "The use of masters is `to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause,' and not to displace the court." La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957) (quoting Ex Parte Peterson, 253 U.S. 300 (1920)). See also WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2601 (1995) (the appointment of a master is for the purpose of assisting the court to obtain facts).
ANALYSIS
As mentioned, the Parties agree that appointment of a Special Master in this matter serves their interests as well as the court's. The Parties further agree to the appointment of Groundswell Services and its team of Drs. Neil Gowensmith and Daniel Murrie, and that Defendants will bear the costs of appointment. Thus, the court agrees that a Special Master is warranted, and therefore GRANTS the Motion.
During the Status Conference held before the court on December 18, 2018, it appeared that despite the difference in language in the Parties' respective proposals regarding the scope of the Special Master's duties, compare [#117 at 5-6; #117-8] with [#118-1], the Parties do, in fact, agree that the Special Master will have authority to review the entire competency system as implicated by the Settlement Agreement, i.e., inpatient and outpatient competency evaluations and restorative treatment. See [#78-1 at 2]. The Parties, however, disagree as to the duration of the Special Master's appointment. Thus, this Order will not and cannot serve as an Order Appointing a Master because Rule 53(b) requires such an Order to contain, inter alia, "the master's duties, including any investigation or enforcement duties, and any limits on the master's authority under Rule 53(c)." Fed. R. Civ. P. 53(b)(2)(B). And Rule 53 further limits the court's ability to issue an Order Appointing a Master to only after the Special Master "files an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. § 455," which has not yet been completed. Fed. R. Civ. P. 53(b)(3)(A).
Nevertheless, to facilitate the appointment of the Special Master the court ORDERS that no later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall submit to the court affidavits concerning "whether there is any ground for disqualification under 28 U.S.C. § 455." In addition, the court has attached a revised summary of the duties of the Special Master reflecting its understanding of the agreed-upon scope by the Parties. To the extent that the Parties object to the scope as reflected by the summary, they will file their respective objections no later than December 19, 2018. The court will then issue a separate, written Order Appointing a Master and determining the length of such appointment.
CONCLUSION
For the reasons set forth herein, the court hereby ORDERS that:
(1) Plaintiff's Motion for Appointment of Special Master [#117] is GRANTED;
(2) No later than December 19, 2018, Drs. Neil Gowensmith and Daniel Murrie shall SUBMIT to the court affidavits concerning "whether there is any ground for disqualification under 28 U.S.C. § 455;"
(3) No later than December 19, 2018, the Parties will FILE any objections to the summary of the duties of the Special Master as attached as Ex. 1 to this Order; and
(4) A separate, written Order pursuant to Rule 53 of the Federal Rules of Civil Procedure will follow.
Special Master Duties:
1) Review the Department's Plan [#122-1] to increase timeliness of performance of competency services, including inpatient and outpatient competency evaluations and restorative treatment ("competency services").
2) Recommend a plan for the Department's consideration that proposes methods for addressing short- and long-term compliance with the timeframes for competency services that may ultimately be adopted in whole or in part as part of the court's injunctive relief to address the ongoing breach of the Amended and Restated Settlement Agreement ("Settlement Agreement").
3) Develop a system of data collection, review, and analysis of Departmental data and continued monitoring related to competency services, to include monthly reporting by the Department to the Special Master, and monthly reporting by the Special Master analyzing such data and making recommendations to the Court based on such data.
4) Identify actual areas within the statewide system which have caused, are causing, or may cause non-compliance with the timeframe requirements of the Settlement Agreement concerning competency services.
5) Make recommendations to the Department for improved performance in the timely delivery of competency services.
6) Assist the Department in designing and implementing a plan to address compliance with the Settlement Agreement timeframes concerning inpatient competency restoration treatment, support the Department's implementation of its plan, and monitor the Department's compliance with such Settlement Agreement during the duration of the Appointment.
7) Survey the Department's efforts to attain compliance with the Settlement Agreement's timeframe requirements concerning competency services and report to the Court and parties on the progress towards reaching compliance on those timeframes on a monthly basis, including documenting which efforts require action or approval by third-parties.
8) Assist the court in fashioning and evaluating compliance with any injunctive relief ordered by the court.
9) The Department shall report monthly to the Special Master, the Court, and the Plaintiff on the status of the waitlist, the progress toward reaching the goal, and what impediments, if any, exist. 10) Make other recommendations to the Court and the parties on how to improve delivery of competency services for the purpose of effectuating compliance with the Settlement Agreement timelines concerning competency restoration services, including how to audit the State's performance.
Duties and Reporting:
In order for the Special Master to make such recommendations to the Court and the Department as specified above, the Department shall provide information the Special Master seeks for the purpose of carrying out his or her specific duties and obligations identified in this document.
As part of his or her duties, the Special Master shall provide the Court and the Parties with status reports every other month for the first six months (starting thirty days after receiving the Department's report identified in number 3 above), and then quarterly thereafter. Such reports shall address the Department's compliance with the timeframe requirements of the Settlement Agreement concerning competency services, and shall provide a detailed summary of information and recommendations the Special Master believes the Court and Parties should consider relating to the Department's compliance with the Settlement Agreement timeframes concerning competency services. The Special Master's report shall include, but not be limited to, reporting on the number of Pretrial Detainees ordered to receive competency services and admission and/or evaluation timeframes for those Pretrial Detainees, an assessment of the Department's operations, systems, and admissions practices and policies relating to the Department's ability to comply with the Settlement Agreement timeframes concerning provision of competency services, and guidance to the Department for improvement and increasing efficiencies in these areas.
The Special Master shall have reasonable access to all records that the Department determines are reasonably related to the Settlement Agreement timeframes concerning competency services or the Department's ability to meet and comply with the proposed Plan [#122-1]. The Special Master shall be able to request the Department organize the data in a format which is necessary for the Special Master's efficient review. As a component of his or her reporting, the Special Master may select a sample of Pretrial Detainees from the Department's monthly reporting and audit the timeliness by the Department of that sample's Offered Admission dates for competency evaluations or restoration treatment. The Special Master shall include its findings of any such audit in his or her reports, and those reports shall be provided to the parties and filed with the Court, with any private or confidential information redacted from the public filing.
The Special Master shall have the right to confer and subcontract with additional experts (but not allow double billing), as he or she determines in the exercise of his or her professional judgment would be helpful to the Court or the Parties, including for preparation of additional reports, studies, or research.
Visitation and Access:
The Special Master shall have the authority and responsibility to visit and access Colorado facilities, confer with stakeholders in the criminal justice and mental health systems, review documents, staff procedures, patient records, access to budget and resources available and funding streams related to the Department's duties under the Settlement Agreement and competency evaluations and restorative treatment, generally. Neither the Special Master nor the Parties shall publicly disclose information obtained by the Special Master pursuant to this paragraph, which would otherwise be privileged or confidential, without consent of all Parties and/or order of the court.
Compensation of the Special Master:
As a result of the Department's ongoing breach of the Settlement Agreement since June 2018, and as an interim remedy to the breach, the Special Master's invoices must be submitted to the Court for payment by the Department.
While the Special Master is appointed, the Independent Consultant's duties are stayed, alleviating the Department of paying two individuals. The Department shall compensate the Special Master and his or her staff at his or her standard rates. The Department shall reimburse all reasonable expenses of the Special Master and Special Master's staff consistent with the State's procurement guidelines and Department policy.
