MIRANDA M. DU, District Judge.
Defendants, Richard Whitley, Dr. Elizabeth Neighbors and Michael Willden (hereinafter Defendants) in their official capacities,
The Court has reviewed and considered the Modified Consent Decree, Order, and Judgment entered into by the parties and is of the opinion that it is a fair and reasonable resolution of the issues pending between them. Based thereon, the Court hereby approves the proposed Modified Consent Decree (and attached Plan) and hereby approves the proposed Consent Decree and directs the entry of the Order and Judgment as follows:
1. The Modified Consent Decree resolves disputes pertaining to the above-captioned civil action for injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 brought by Plaintiffs Eric Burnside, Jaumal Pugh, and Nicolas Duran (collectively, "Plaintiffs") against Richard Whitley, in his official capacity as Administrator of the Nevada Division of Public and Behavioral Health (DPBH); Dr. Elizabeth Neighbors, in her official capacity as Director Of Lake's Crossing Center for the Mentally Disordered Offender; and Michael J. Willden, in his official capacity as Director of the Nevada Department of Health and Human Services (collectively, "Defendants").
2. Plaintiffs are all pretrial detainees who have been or will be committed to the custody of the DPBH pursuant to Nev. Rev. Stat. 178.425 ("Incompetent Detainees")
3. Section 178.425(1) of the Nev. Rev. Stat. requires that, upon entry of an order from the Eighth Judicial District Court of Nevada finding a criminal defendant incompetent, the judge shall order the Sheriff to convey the defendant (incompetent detainee) forthwith to the custody of the Administrator of the Division of Public and Behavioral Health of the Department of Health and Human Services of the State of Nevada (the "Division") to receive Prompt Restorative Treatment, as defined below. Formerly, Lakes Crossing Center for the Mentally Disordered Offender (LCC), located in northern Nevada, was the only facility in Nevada operated by the Division for the purpose of treating incompetent detainees such as Plaintiffs. Defendants have begun providing treatment to incompetent detainees in Southern Nevada.
4. Plaintiffs alleged that Defendants failed to provide court-ordered treatment to incompetent detainees in violation of Plaintiffs' substantive and procedural due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
5. The Ninth Circuit has held that incompetent detainees must be transferred to an appropriate mental health treatment facility within seven (7) days of the court's finding of their incapacity to stand trial. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1123 (9th Cir. 2003).
6. Similar issues as those raised in this litigation were previously litigated in Nevada Disability Advocacy and Law Center, Inc v. Carlos Brandenburg, U.S. District Court of Nevada Case No. CV-S-05-0782-RCJ (RJJ) ("NDALC Case"). In an April 2008 Settlement Agreement and Release of Claims ("Agreement") entered into in the NDALC Case, the directors of DHHS, MHDS and Lakes Crossing agreed that all incapacitated criminal defendants must be provided "Prompt Restorative Treatment" at an MHDS facility. The Agreement defined "Prompt Restorative Treatment" as providing appropriate treatment to competency within seven (7) days from MHDS's receipt of a court order. In the Agreement, DHHS and MHDS agreed to a minimum of three (3) years of monthly status reports regarding the Prompt Restorative Treatment of all Incapacitated Defendants. The required reporting and oversight ended in 2011.
7. In the instant litigation, Plaintiffs have alleged that, less than two (2) years after the "required reporting and oversight" ended, Defendants have returned to the 2005 practice of denying incompetent criminal defendants the required Prompt Restorative Treatment, thereby violating the substantive and procedural due process rights of said defendants. Plaintiffs have also alleged that Defendants are unable to promptly accept incompetent detainees for Prompt Restorative Treatment by Lakes Crossing that incompetent detainees have routinely spent weeks and, in most cases, months, at detention facilities where the conditions are punitive and no Prompt Restorative Treatment is available.
8. Plaintiffs and Defendants (collectively, "the parties") agreed that it is in the parties' best interests, and in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the parties agreed to the entry of the Consent Decree without trial or further adjudication of any issues of fact or law raised in the Complaint; the Consent Decree was previously entered in this matter on January 29, 2014 (
9. Subsequently, Plaintiffs filed a motion for an order to show cause as to why Defendants should not be held in contempt for failing to comply with the consent decree (
10. Based on the pleadings, this Court made a finding that Defendants violated the consent decree (
11. As detailed in the parties' November 30, 2015 status report, the parties subsequently met and conferred extensively. While Plaintiffs are disappointed with Defendants' failures to comply, they have worked with Defendants to develop a plan of action they hope will bring Defendants into conformity with the law, particularly in light of the addition of recent beds to accommodate incompetent detainees in Clark County. The parties submitted a Proposed Modified Consent Decree, Order, and Judgment (
12. The Court held a hearing on that initial proposed modified consent decree Order, and Judgment on Tuesday, December 15, 2015, wherein the Court posed questions to Counsel. The Court: (1) directed counsel to provide date reflecting the amount of time Clark County detainees experience and how much time detainees from the rest of the state experience; (2) asked counsel for Defendants to determine what additional hardship might accrue to the State if the Court were to require the State of Nevada to meet the time lines for all state detainees statewide by April 1, 2016 rather than June 1, 2016, and (3) directed counsel to submit any revised proposed consent decree by 5 p.m. on Monday, December 21, 2015.
13. This Revised Proposed Modified Consent Decree follows.
14. This Consent Decree is in the public interest because it establishes a clear plan for providing Prompt Restorative Treatment to Incompetent Detainees in Clark County and statewide while attempting to balance the safety concerns of the detainees, the staff and the community.
15. Defendants have already opened beds at Stein Hospital, as well as beds at the "C-Pod" unit of Rawson Neal. These beds accommodate the historical and current long waiting list of Incompetent Detainees awaiting Prompt Restorative Treatment ("Waiting List," as defined below) in Clark County and provide needed beds in Clark County. While some Incompetent Detainees from Clark County will still need to be transported to Lakes Crossing due to security issues (Lakes Crossing is a more secure environment than either Stein or the C-Pod), having beds available in Clark County, where the majority of the State's population lives, for the first time has already reduced the Waiting List in Clark County due to the logistical problems it solves. Further, as discussed below, the increase in beds in Clark County also benefits Incompetent Detainees in the rest of the state.
16. Further, if the Waiting List is not in fact reduced according to that schedule, specific enforcement mechanisms are set forth herein and Plaintiffs will require that Defendants institute specific measures, including appointment of a monitor, if Defendants do not follow the schedule they developed.
17. The Consent Decree also sets forth a plan for compliance statewide and has statewide benefits.
18. While they are concerned with violations in other parts of the State, Plaintiffs have asserted and continue to assert that this case is limited to Clark County because it was brought on behalf of Incompetent Detainees improperly held at the Clark County Detention Center to address the Waiting List of Incompetent Detainees awaiting transfers to therapeutic facilities for treatment. Defendants, in contrast, assert that the prior Consent Decree was not, by its terms, limited to Clark County, and are hereby consenting to a plan of action that brings relief statewide to incompetent detainees awaiting treatment.
19. However, nothing in this Consent Decree should be interpreted as limiting the rights of Incompetent Detainees in other parts of the State because their interests are not represented in this litigation.
20. The focus of recent efforts have been to address the fact that Clark County had no facility to treat Incompetent Detainees. As a result of the fact that previously all Clark County Incompetent Detainees has to be transported to Northern Nevada, the Waiting List of Incompetent Detainees in Clark County has also historically been the most acute problem. For example, in 2014 the commitments to Lake's Crossing Center were broken down as follows: 181 from Clark County, 52 from Washoe County and 21 from the other rural counties. In the first six months of 2015 the commitments were: 105 from Clark County, 24 from Washoe County and 7 from the other rural counties. (Doc # 30, Exhibits 1 & 2 and Doc. # 31-1, Exhibit A, pp. 15-19.). This data also reflects that the number of commitments in Clark County were growing at a faster rate than the rest of the state. Further, by virtue of geography, there were additional delays in admissions from Clark County due to the need to transport the detainees across the entire state in an airplane that detainees in Washoe County were not subject to. For example, two airplanes from Clark County had to be canceled in December due to poor weather in Washoe County.
21. The commitments to Lake's Crossing Center from the Rural Counties in Nevada do not all pertain to Incompetent Detainees; the majority of the orders from Rural Counties are for the initial evaluations under NRS 178.415 and are not commitment orders pursuant to NRS 178.425. This is a function of the fact that most of the rural counties in Nevada do not have the professional clinicians in the county who can do the pre-commitment evaluations pursuant to NRS 178.415.
22. The measures contemplated in this Consent Decree are in the public interest and and bring statewide relief. While the additional beds have been and will be added in Clark County, the increase in numbers will have benefits statewide because they will reduce the demand on beds at Lakes Crossing, freeing up beds to serve Incompetent Detainees from Washoe County and the rural counties of Nevada. As the thirty-four additional beds at the Stein hospital are opened and the current Clark County Waiting List clears, and as more Clark County residents leave Lake's Crossing Center more beds will be available for detainees from Washoe County and the Rural Counties. Detainees from Washoe County and the Rural Counties will continue to be admitted to Lake's Crossing Center while the Clark County Waiting List is being cleared just not as in a large of a number as is anticipated once the demand from Clark County has been further reduced. Further, the Defendants and the Washoe County Detention Center along with its medical provider, have developed protocols to provide some limited interventions in the jail while the individuals are waiting for a bed at Lake's Crossing Center. (Doc. 31, pgs. 5-6).
Accordingly, the parties hereby AGREE and the Court expressly APPROVES, ENTERS AND ORDERS THE FOLLOWING:
1. This Court has jurisdiction over this action pursuant to 42 U.S.C. §§ 1331 and 1343. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391(b)(2). Plaintiffs assert that this case is limited to Clark County because it was brought on behalf of incompetent detainees improperly held at the Clark County Detention Center to address the Waiting List of incompetent detainees awaiting transfers to therapeutic facilities for treatment.
2. "Incompetent Detainee" is defined for the purposes of this Modified Consent Decree as a person in Clark County that is committed to the custody of the Division of Public and Behavioral Health pursuant to Nev. Rev. Stat. 178.425.
3. "Treatment to Competency" is defined for the purposes of this Modified Consent Decree as treatment provided to an Incapacitated Detainee to attempt to cause him to attain competency to stand trial or receive pronouncement of judgment.
4. "Prompt Restorative Treatment" is defined for the purposes of this Modified Consent Decree as providing appropriate treatment to competency within seven (7) days from the Division of Public and Behavioral Health's receipt of a court order.
5. "Waiting List" is defined for the purposes of this Modified Consent Decree as the Incompetent Detainees waiting for Prompt Restorative Treatment for more than seven (7) days from the Division of Public and Behavioral Health's receipt of a court order.
6. "Effective Date" is defined for the purposes of this Modified Consent Decree as the date of Court approval.
7. Defendant shall designate a representative to have the authority to implement the requirements of this Consent Decree and the Plan and to provide written reports as set forth below ("Designee").
8. All information provided pursuant to the above reporting requirements under this Decree should be provided to Plaintiffs via email and U.S. Mail to their counsel.
9. Defendants shall take all necessary steps to provide Prompt Restorative Treatment to Incapacitated Detainees in Nevada as soon as possible. Defendants acknowledge that they are legally required to provide Prompt Restorative Treatment, regardless of the fact that the number of incompetent detainees may vary over time and regardless of funding, staffing, and logistical challenges. However, Defendants are not responsible for delays in admission to restorative treatment if they are able to accept admissions but delays outside Defendants' control do not allow prompt admission. For example, if Defendants are available to accept admissions but there is a delay in admission beyond the Defendant's control (including but not limited to transportation time frames, medical clearance and failures of self-surrendering detainees to surrender), those delays are not attributable to Defendants. This does not mean, however, that Defendants may rely on lack of funding or staffing, or any increase in the number of incompetent detainees in Clark County or statewide, as an excuse for noncompliance with this Modified Consent Decree. Further, in any proceeding to enforce the terms of this Modified Consent Decree, Defendants shall have the burden of showing that any delay in providing Prompt Restorative Treatment is legally not attributable to Defendants.
10. Among the steps Defendants must take to provide Prompt Restorative Treatment is keeping the current beds available for incompetent detainees in Clark County available, including the 20 beds in the C-Pod unit of the Rawson Neal Hospital.
11. The current Waiting List data is attached as Exhibit 1. The numbers provided only reflect Incompetent Detainees who are committed to the custody of the Division of Public and Behavioral Health pursuant to NRS 178.425, not orders for evaluations pursuant to NRS 178.415. Those individuals have not been found incompetent and have not been committed to the Division of Public and Behavioral Health for restoration treatment.
12. Defendants have analyzed historical data and developed a schedule on which they have represented to Plaintiffs they can achieve compliance in light of the opening of new beds in Southern Nevada.
13. Defendants will place incompetent detainees into therapeutic environments and reduce the Waiting List according to the schedule set forth below:
14. Throughout the term of this Consent Decree, Defendants shall track the following data (the "Data"):
This Data shall be broken down between Clark County and the rest of the state.
15. Defendants shall also collect and compile historical data reflecting the history of commitments and the Waiting List for incompetent detainees for 2008 — November, 2015, and shall provide it to Plaintiffs by January 1, 2016.
16. Defendants shall also provide Plaintiffs' counsel with a written report ("Report") that includes:
Initially, Defendants shall provide Plaintiffs with a Report for the preceding month on the 10
17. On February 1, 2016, if Defendants have not reduced the Clark County Waiting List to 3, then Defendants will open 20 additional beds to house incompetent detainees in Clark County no later than March 1, 2016.
18. On March 1, 2016, if Defendants have not reduced the Clark County Waiting List to zero or, at any point thereafter, or if the Clark County Waiting List ever exceeds 10 per month for more than 10 days of two consecutive months ("triggering conditions"), Defendants agree that an independent monitor shall be put into place at Defendants' expense. Within three (3) business days of the date either of the triggering conditions arise, Defendants shall notify Plaintiffs. The parties shall subsequently meet and confer and submit a joint plan or separate plans for appointment of a monitor to the Court by April 1, 2016 (or 30 days after the date the Clark County Waiting List exceeds 10 for the second consecutive month).
19. In addition, at any time after March 1, 2016 that the Clark County Waiting List exceeds ten, Defendants will also notify Plaintiffs within three (3) business days, and the parties will work together to develop a mutually-agreeable plan for reaching compliance with Defendants' duty to provide Prompt Restorative Treatment within thirty (30) days or will seek court intervention if necessary, submitting separate plans.
20. Failure by Plaintiffs to enforce any provision of this Consent Decree shall not be construed as a waiver of their right to enforce other provisions of this Decree, nor as a waiver of their right to enforce that provision in the future
21. If any term of this Consent Decree is determined by any court to be unenforceable, the other terms of this Consent Decree shall nonetheless remain in full force and effect.
22. In addition to the provisions set forth above, Plaintiffs may review compliance with this Consent Decree at any time. If Plaintiffs believe that this Consent Decree or any portion of it has been violated, Plaintiffs will raise their concerns with the Designee and the parties will attempt to resolve those concerns in good faith. Under such circumstances, Plaintiffs will give Defendants thirty (30) days from the date it notifies the Designee of any breach of this Consent Decree to cure that breach before filing a motion for contempt or taking any other enforcement action pursuant to this paragraph. Nothing in this paragraph limits Plaintiffs' rights to seek action as set forth above.
23. Plaintiffs may seek additional attorneys' fees and costs for the purposes of enforcing this Modified Consent Decree, and filing a motion for contempt or taking any other enforcement action.
24. Defendants shall compensate Plaintiffs for attorneys' fees and costs related to enforcement of the prior Consent Decree as follows: $36,151.23 to Margaret A. McLetchie of McLetchie Shell, LLC.
25. This Consent Decree shall be binding upon Defendants, the Nevada Division of Public and Behavioral Health, Lake's Crossing Center for the Mentally Disordered Offender, and the Nevada Department of Health and Human Services.
26. This Consent Decree constitutes the entire agreement between the parties on the matters raised herein and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Consent Decree, including its attachments, shall be enforceable.
27. This Consent Decree is not intended to remedy any other potential violations of the rights of pretrial detainees or any law that is not specifically addressed in this Consent Decree. Further, this Consent Decree does not constitute res judicata or collateral estoppel with respect to any individual not a party hereto who has or will be committed to the custody of the Division of Mental Health and Developmental Services pursuant to Nev. Rev. Stat. 178.425.
28. The parties signing this Consent Decree in a representative capacity acknowledge and warrant that they have the right to do so.
29. The effective date of this Consent Decree is the date the Court enters the Decree.
30. The duration of this Consent Decree will be five (5) years from the Effective Date.
IT IS SO ORDERED.