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Case Name Center for Legal Advocacy v. Marshall JC-CO-0011
Docket / Court 1:11-cv-02285 ( D. Colo. )
State/Territory Colorado
Case Type(s) Criminal Justice (Other)
Disability Rights-Pub. Accom.
Jail Conditions
Mental Health (Facility)
Special Collection Post-PLRA enforceable consent decrees
Post-PLRA Jail and Prison Private Settlement Agreements
Attorney Organization NDRN/Protection & Advocacy Organizations
Case Summary
The Center for Legal Advocacy brought this lawsuit on behalf of criminal defendants with mental illnesses who had been held for months in Colorado jails awaiting placement in a competency restoration program after having been found incompetent to stand trial. The suit was brought under 42 U.S.C. § ... read more >
The Center for Legal Advocacy brought this lawsuit on behalf of criminal defendants with mental illnesses who had been held for months in Colorado jails awaiting placement in a competency restoration program after having been found incompetent to stand trial. The suit was brought under 42 U.S.C. § 1983 and filed on August 31, 2011 in the U.S. District Court for the District of Colorado. The Center accused the Colorado Department of Human Services (CDHS) and the Colorado Mental Health Institute at Pueblo (CMHIP) of violating the criminal defendants’ Fourteenth Amendment due process rights. The case was assigned to Judge Marcia S. Krieger.

Under a 2006 settlement agreement (known as the "Zuniga Agreement") arising from Colorado state court cases, the Department of Human Services had committed to providing evaluation and placement for treatment within 30 days after a judge determined that a criminal defendant was incompetent to stand trial. This agreement expired in 2009 when the state opened a new 200-bed forensic mental health facility; however, the new facility did not solve the long-standing delays, and the Center for Legal Advocacy then filed this lawsuit. Represented by staff attorneys and private counsel, the Center sought a preliminary and permanent injunction requiring the state to complete competency evaluations within seven days of a court order and to admit a person for restoration treatment within seven days after evaluation and determination of incompetency. The Center also sought a declaratory judgment and attorneys’ fees.

Colorado criminal defendants found to be mentally incompetent receive restoration treatment at the Colorado Mental Health Institute at Pueblo; CMHIP is the only mental hospital in the state authorized to provide such treatment. Because CMHIP was beyond capacity, criminal defendants found to be mentally incompetent were forced to wait in county jails, sometimes for months, before being admitted to receive treatment. In some cases, their detention in county jail while awaiting treatment was longer than their sentence would have been if they had pled guilty.

The Center argued that once a person accused of a crime has been found mentally incompetent to stand trial, the only lawful purpose for continued detention is to restore that person to competency. If the state is not actively restoring the person to competency, the plaintiff argued, continued detention is a violation of the person’s due process rights.

On November 21, 2011, the parties agreed to settlement negotiations before Magistrate Judge Boyd N. Boland. On April 9, 2012, the court approved a settlement agreement. The agreement established deadlines for providing services to defendants with mental illnesses and required CMHIP to submit monthly reports to the plaintiff, with the first report due September 1, 2012. The Department of Human Services agreed to pay the plaintiff $75,000. The court retained jurisdiction to enforce the agreement until 60 days after the delivery of CMHIP’s final report.

On October 28, 2015, the plaintiff moved to reopen the case in order for the court to enforce the settlement. During the intervening three years, CMHIP had been submitting reports showing compliance with the terms of the settlement agreement, but the plaintiff's investigation into the case of one defendant (who had been held in solitary confinement while awaiting restoration services) revealed that the state was fabricating data. The plaintiff alleged that the state had been in breach of the agreement since at least March 2015, but due to the “false and misleading” information in the monthly reports, the plaintiff had not become aware of the breech until July 2015.

On November 19, 2015, the case was reassigned to Magistrate Judge Nina Y. Wang. The court granted the motion to reopen the case on December 18, 2015.

On July 29, 2016, the court approved a second settlement agreement. The state agreed to pay $196,000 to the plaintiff, and the plaintiff agreed not to seek further attorneys’ fees or costs. The state did not admit liability, but it agreed to provide monthly reports to the plaintiff and to an independent consultant chosen by the parties, and to meet quarterly with the independent consultant and the plaintiff, until July 2021. The agreement provided for extending or shortening the duration of the agreement, depending on the state’s compliance or non-compliance. Significantly, the agreement allowed the state a six-month waiver of deadlines if it informed the plaintiff that “Departmental Special Circumstances,” defined as unexpected events beyond the state’s control, prevented it from meeting the deadlines specified in the agreement. The court retained jurisdiction until 60 days following the delivery of the final monthly report.

Two years later, on June 13, 2018, the plaintiff again filed a motion to reopen the case, for the court to enforce the second settlement agreement. The plaintiff said that the state was continuing to violate the agreement’s deadlines and that people with mental illnesses were still being held in jails for months while awaiting competency restoration services. “Not only do the current delays violate the timeframes Defendants twice agreed to in the settlement agreements, they also are in violation of the United States Constitution.” The continued delays, the plaintiff alleged, were “the result of ineptitude, a tragic pattern of institutional indifference, or both.” The state had invoked the “Departmental Special Circumstances” clause of the agreement in June 2017, suspending the agreement’s deadlines for six months. When that six-month grace period expired in December 2017, the state invoked the clause again. When that grace period expired in June 2018, the state continued to violate the deadlines required by the agreement, but without invoking the clause again. The plaintiff contended that the agreement did not allow the state to invoke the special circumstances clause multiple times consecutively; the state responded that there was nothing in the agreement suggesting that they could not, and that there had been an “unanticipated spike” in referrals for restoration treatment services.

During the course of the litigation, the Colorado General Assembly had worked to pass a bill that would have helped reduce jail wait times for defendants with mental illnesses. The plaintiff supported this bill until late in the process, when the bill was amended to allow the state to keep detainees with mental illnesses in jail for up to five months while receiving jail-based competency restoration services.

On June 14, 2018, the court granted the plaintiff's motion to reopen the case for the limited purpose of considering whether the settlement agreement had been breached and whether to order enforcement, but it reserved judgment on the question of whether the state had, in fact, breached the agreement.

On August 15, both parties moved for summary judgment. The defendants’ motion for summary judgment was denied on November 9, 2018; the plaintiff’s motion was granted in part the same day. The court discussed four issues it considered at the summary judgment phase:
  1. The first was whether the settlement agreed allowed the state to invoke the special circumstances clause repeatedly, without limitations. The court found that there was no numerical limit specified in the agreement; there was, however, a “non-numeric limit”: the agreement explicitly limited invocation of special circumstances to “circumstances beyond the control of the Department which impact the Department’s ability to comply with the timeframes.”
  2. Second, whether the state breached the agreement when it re-invoked special circumstances in December 2017. The court denied summary judgment on this question.
  3. Third, whether the state breached the agreement in June 2018, when it continued in non-compliance without re-invoking special circumstances. The court granted summary judgment on this question, finding that as of June 2018, the state was in breach of the agreement.
  4. Fourth and finally, the question of what remedies the court should impose. The court declined to issue injunctive relief in this order, indicating that it would permit the state “no more than six months (and perhaps far less)…to come back into compliance.” It also indicated that if it later concluded that the state had been acting in bad faith, attorneys’ fees might be awarded to the plaintiff.
On December 18, 2018, the court appointed special masters Groundswell Services, Inc. and its experts Drs. Neil Gowensmith and Daniel Murrie. The court indicated that the special masters would replace the independent consultant, that the state would pay for the services of the special masters, and that the state was required to come into compliance and stay in compliance continuously for 18 months.

In January 2019, after submitting to the court a comprehensive plan for compliance, the state sought referral to a magistrate judge for settlement negotiations. The court referred the case to Magistrate Judge Michael E. Hegarty.

On February 28, 2019, the state submitted an amended comprehensive plan for compliance.

On April 2, 2019, the court issued a consent decree. It established specific timelines and limitations that the state must follow. It also established liquidated damages, and specific fines for non-compliance with deadlines. The state’s fines were capped at $10 million per year; the state was required to issue a weekly report indicating areas of non-compliance and tabulating total fines owed. The fines were to be paid into an independently-administered fund which would be used for providing non-Department services for defendants with mental illnesses. The state was required to create a comprehensive plan for compliance and a community-based outpatient competency restoration system focusing on triage instead of traditional waitlists. The Department agreed not to propose, sponsor, or support any legislative actions that would conflict with the terms of the decree.

The special masters would hold regular meetings between the parties. The consent decree was to remain in force until December 1, 2025, or until the state had been in strict compliance with the decree, as certified by the special masters, for two years (or for one year if the department had also reduced a specified class of detainees’ wait times to 21 days for that year).

The decree also awarded $654,000 in attorneys’ fees and costs to the plaintiff. In the event of violations of the decree, the plaintiff would be awarded attorneys’ fees and costs for pursuing the violation.

If the court found a material violation, it could order immediate enforcement of the agreement or injunctive relief, impose liquidated damages of up to $10,000 for each day of noncompliance, or fashion any other relief it deemed appropriate.

The state submitted its Long-Term Comprehensive and Cohesive Competency Plan, as required by the agreement, on March 2, 2020. The state paid over $1 million in fines as of August 2019, and the parties are engaged in negotiations about how to adjust fines incurred in 2020 (estimated to exceed $2 million) in light of unexpected delays caused by the COVID-19 pandemic. The court’s supervision of the state’s compliance is ongoing.

Gregory Marsh - 08/24/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Content of Injunction
Discrimination Prohibition
Goals (e.g., for hiring, admissions)
Monitor/Master
Monitoring
Reporting
Defendant-type
Corrections
Hospital/Health Department
Disability
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Access to lawyers or judicial system
Classification / placement
Commitment procedure
Conditions of confinement
Confinement/isolation
Deinstitutionalization/decarceration
Disciplinary procedures
Individualized planning
Over/Unlawful Detention
Placement in detention facilities
Placement in mental health facilities
Medical/Mental Health
Intellectual/Developmental Disability
Medication, administration of
Mental health care, general
Mental Disability
Intellectual/developmental disability, unspecified
Mental Illness, Unspecified
Plaintiff Type
Non-profit NON-religious organization
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Colorado Department of Human Services
Colorado Mental Health Institute at Pueblo
Plaintiff Description The Center for Legal Advocacy, Colorado's PAIMI-mandated Protection & Advocacy organization.
Indexed Lawyer Organizations NDRN/Protection & Advocacy Organizations
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2012 - 2025
Filed 08/31/2011
Case Ongoing Yes
Additional Resources
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Docket(s)
1:11-cv-02285-NYW (D. Colo.)
JC-CO-0011-9000.pdf | Detail
Date: 08/07/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
JC-CO-0011-0011.pdf | Detail
Date: 08/31/2011
Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement [ECF# 51-1]
JC-CO-0011-0001.pdf | Detail
Date: 04/09/2012
Source: PACER [Public Access to Court Electronic Records]
Order of Dismissal Under Fed. R. Civ. P. 41(a)(2) [ECF# 52] (D. Colo.)
JC-CO-0011-0002.pdf | Detail
Date: 04/09/2012
Source: PACER [Public Access to Court Electronic Records]
Motion to Reopen Action for Enforcement of Settlement Agreement [ECF# 53]
JC-CO-0011-0012.pdf | Detail
Date: 10/28/2015
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion to Reopen Action for Enforcement of Settlement Agreement [ECF# 62] (D. Colo.)
JC-CO-0011-0003.pdf | Detail
Date: 12/18/2015
Source: PACER [Public Access to Court Electronic Records]
Amended and Restated Settlement Agreement [ECF# 78-1]
JC-CO-0011-0013.pdf | Detail
Date: 07/28/2016
Source: PACER [Public Access to Court Electronic Records]
Unopposed Motion to Reopen Action for Enforcement of Settlement Agreement [ECF# 82]
JC-CO-0011-0010.pdf | Detail
Date: 06/13/2018
Source: PACER [Public Access to Court Electronic Records]
Minute Order Re-Opening Case [ECF# 83] (D. Colo.)
JC-CO-0011-0004.pdf | Detail
Date: 06/14/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order [ECF# 113] (2018 WL 5892669) (D. Colo.)
JC-CO-0011-0005.pdf | WESTLAW | Detail
Date: 11/09/2018
Source: PACER [Public Access to Court Electronic Records]
Order on Motion for Appointment of Special Master [ECF# 123] (2018 WL 6620776) (D. Colo.)
JC-CO-0011-0006.pdf | WESTLAW | Detail
Date: 12/18/2018
Source: PACER [Public Access to Court Electronic Records]
Order Appointing Special Master [ECF# 130] (2018 WL 6834597) (D. Colo.)
JC-CO-0011-0007.pdf | WESTLAW | Detail
Date: 12/28/2018
Source: PACER [Public Access to Court Electronic Records]
Special Master's Report [ECF# 146]
JC-CO-0011-0009.pdf | Detail
Date: 01/28/2019
Source: PACER [Public Access to Court Electronic Records]
[Monitor Report] [ECF# 164]
JC-CO-0011-0014.pdf | Detail
Date: 03/28/2019
Source: PACER [Public Access to Court Electronic Records]
Consent Decree [ECF# 165] (D. Colo.)
JC-CO-0011-0008.pdf | Detail
Date: 04/02/2019
Source: PACER [Public Access to Court Electronic Records]
Special Master Report to Judge Wang [ECF# 176]
JC-CO-0011-0015.pdf | Detail
Date: 08/28/2019
Source: PACER [Public Access to Court Electronic Records]
Special Master Report to Judge Wang [ECF# 180]
JC-CO-0011-0016.pdf | Detail
Date: 11/27/2019
Source: PACER [Public Access to Court Electronic Records]
Special Master Report to Judge Wang [ECF# 189]
JC-CO-0011-0017.pdf | Detail
Date: 03/03/2020
Source: PACER [Public Access to Court Electronic Records]
Special Master Report to Judge Wang [ECF# 197]
JC-CO-0011-0018.pdf | Detail
Date: 06/05/2020
Source: PACER [Public Access to Court Electronic Records]
[Monitor Report] [ECF# 200]
JC-CO-0011-0019.pdf | Detail
Date: 07/06/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Boland, Boyd N. (D. Colo.) [Magistrate] show/hide docs
JC-CO-0011-0002
Hegarty, Michael E. (D. Colo.) [Magistrate] show/hide docs
JC-CO-0011-9000
Wang, Nina Y. Court not on record show/hide docs
JC-CO-0011-0003 | JC-CO-0011-0004 | JC-CO-0011-0005 | JC-CO-0011-0006 | JC-CO-0011-0007 | JC-CO-0011-0008 | JC-CO-0011-9000
Monitors/Masters Gowensmith, Neil (Colorado) show/hide docs
JC-CO-0011-0009 | JC-CO-0011-0014 | JC-CO-0011-0015 | JC-CO-0011-0016 | JC-CO-0011-0017 | JC-CO-0011-0018 | JC-CO-0011-0019 | JC-CO-0011-9000
Murrie, Daniel (Colorado) show/hide docs
JC-CO-0011-0009 | JC-CO-0011-0014 | JC-CO-0011-0015 | JC-CO-0011-0016 | JC-CO-0011-0017 | JC-CO-0011-0018 | JC-CO-0011-0019 | JC-CO-0011-9000
Plaintiff's Lawyers Chapman, Chester R (Colorado) show/hide docs
JC-CO-0011-0011
Durling, Caleb (Colorado) show/hide docs
JC-CO-0011-0010 | JC-CO-0011-0011 | JC-CO-0011-9000
Eytan, Iris (Colorado) show/hide docs
JC-CO-0011-0010 | JC-CO-0011-0011 | JC-CO-0011-0012 | JC-CO-0011-9000
Ivandick, Mark J (Colorado) show/hide docs
JC-CO-0011-0001 | JC-CO-0011-0008 | JC-CO-0011-0010 | JC-CO-0011-0011 | JC-CO-0011-0012 | JC-CO-0011-0013
Lock, Marcus (Colorado) show/hide docs
JC-CO-0011-0011 | JC-CO-0011-9000
Lockwood, Ellie (Colorado) show/hide docs
JC-CO-0011-0010 | JC-CO-0011-0012 | JC-CO-0011-9000
Lynch, Jason M. (Colorado) show/hide docs
JC-CO-0011-0011 | JC-CO-0011-0012
Purrington, Jennifer LaVonne (Colorado) show/hide docs
JC-CO-0011-9000
Defendant's Lawyers Calderon, Alicia R (Colorado) show/hide docs
JC-CO-0011-9000
McCarthy, Elizabeth Joan (Colorado) show/hide docs
JC-CO-0011-9000
Pogue, Ann Houston (Colorado) show/hide docs
JC-CO-0011-9000
Richelson, Sarah (Colorado) show/hide docs
JC-CO-0011-9000

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