Case 1:15-cv-02057-SHR Document 1 Filed 10/22/15 Page 1 of 66

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo Messier; L.C., by and through her next friend, Flo Messier; R.J.A., by and through his next friend, J.A.; Jane Doe, by and through her next friend Julia Dekovich; A.B., by and through his next friend J.B.; S.S., by and through his next friend, Marion Damick; G.C., by and through his next friend, Luna Pattela; R.M., by and through his next friend, Flo Messier; P.S., by and through his next friend M.A.S.; T.S., by and through his next friend Emily McNally; M.S., by and through his next friend Emily McNally; and all others similarly situated;
Plaintiffs,
v.
Theodore Dallas in his official capacity as Secretary of the Pennsylvania Department of Human Services; Edna I. McCutcheon in her official capacity as the Chief Executive Officer of Norristown State Hospital; Robert Snyder in his official capacity as the Chief Executive Officer of Torrance State Hospital;

Civil Action No. _____________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF --
CLASS ACTION

Defendants.

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I. INTRODUCTION 1. Plaintiffs bring this case to challenge the consistent and continuing failure of Defendant officials from the Pennsylvania Department of Human Services (“DHS”) to provide timely and adequate mental health care for persons who have been found incompetent to stand trial on criminal charges. DHS’ failure to allocate sufficient resources to provide “competency restoration treatment” has resulted in what are believed to be the longest delays in the country, causing very sick people to spend time in jail, often in extended solitary confinement, making them even sicker. Federal courts have ruled that delays of more than seven days from the court’s commitment order to hospitalization for treatment are unconstitutional, yet in Pennsylvania many patients wait over a year. And wait times for admission to treatment continue to grow even longer. The last 25 patients from Philadelphia waited an average of 391 days, with one patient waiting as long as 589 days. 2. Plaintiffs seek to represent two classes. Class A consists of individuals who languish in jails for months and even years, in a punitive environment, without treatment or adequate mental health care, and often in longterm segregation, while they wait for an opening at one of DHS’s two forensic hospitals, Norristown State Hospital (“Norristown”) in the East and Torrance State Hospital (“Torrance”) in the West. Between the two hospitals, DHS provides only about 200 beds for competency restoration treatment and those are perpetually full. The waiting lists for admission to a forensic hospital bed have now grown to about
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200 patients. The delays in gaining admission to one of the two hospitals have caused Plaintiffs’ and the class members’ mental health to deteriorate, relegated many of them to extended stays in solitary confinement, and in some cases forced them to spend more time in jail than they would have spent if they had pled or been found guilty. At least two people have died in jail while awaiting a transfer.
3. Class B consists of individuals committed for restoration treatment who have already been transferred to Norristown or Torrance and as to whom clinicians have found either (a) that additional treatment is unlikely to render them competent in the foreseeable future, or (b) that they are no longer making progress towards competency. Class B Members remain in maximally restrictive and expensive forensic hospitals instead of being treated in the most community-integrated settings appropriate to their needs. In Norristown and Torrance, many Class B Members now wait years for transfer out of forensic units and into civil units or more integrated community placements. Class B Plaintiffs are not being adequately and systematically assessed for their ability to be treated in community-based settings. Class B Plaintiffs are also not being provided with appropriate community-based placements and support.
4. Defendants’ denial of timely and appropriate treatment, and their ongoing failure to address the growing delays, violates Plaintiffs’ and the Class Members’ rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, e t se q., Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, e t se q., the regulations promulgated
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under both the ADA and the RA, and court orders. Plaintiffs seek declaratory and injunctive relief, preliminary and permanent thereafter, to remedy the ongoing and serious irreparable harm Defendants are causing them.
II. JURISDICTION AND VENUE 5. This action is brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132. 6. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights jurisdiction). 7. Venue is properly set within this district pursuant to 28 U.S.C. § 1391.
III. PARTIES A. Plaintiffs
8. Plaintiff J.H. (a pseudonym to protect his identity) is a homeless African-American man in his late 50’s from Philadelphia who suffers from schizophrenia. The Philadelphia Court of Common Pleas found him incompetent to stand trial on retail theft charges and committed him to Norristown for competency restoration treatment on November 13, 2014. J.H. has been detained for more than eleven months (over 340 days) in the Philadelphia Detention Center since the court’s commitment order, awaiting an opening for treatment at Norristown. Based on the length of the waiting list and recent history, J.H. can expect to wait approximately 400 days before transfer to Norristown.
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9. The Commonwealth of Pennsylvania has found J.H. incompetent. As a result, J.H. cannot appear on his own behalf to pursue this action. J.H. could not identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist J.H. and protect his interests, Flo Messier, J.H.’s public defender, has volunteered to serve and is serving as J.H.’s next friend in this action. Ms. Messier brings this action on J.H.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of J.H. and will advocate for those best interests in this action. Attached as Exhibit A is the Declaration of Ms. Messier concerning J.H. (“Messier J.H. Decl.”).
10. Plaintiff L.C. (a pseudonym to protect her identity) is an African-American woman in her mid-20’s from Philadelphia who suffers a mental impairment. While she was serving a probation-violation sentence, she was charged with aggravated assault for reportedly spitting on a correctional officer. The court found her incompetent to stand trial for this charge in July 2014, and released L.C. on conditions of bail. While out on bail, L.C. was arrested on October 17, 2014 for allegedly violating conditions of her release, and she faced new charges regarding attempted robbery and harassment. The court again found L.C. incompetent to stand trial on November 13, 2014 and, after L.C. did not become competent at the Philadelphia Detention Center, the court committed L.C. to Norristown for competency restoration treatment on February 12, 2015. L.C. has been detained for more than eight months (over 250 days) in the Philadelphia Detention Center since the order, awaiting an opening for treatment at Norristown.
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Based on the length of the waiting list and recent history, L.C. can expect to wait approximately 400 days before transfer to Norristown.
11. The Commonwealth of Pennsylvania has found L.C. incompetent. As a result, L.C. cannot appear on her own behalf to pursue this action. L.C. could not identify any family with whom she maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist L.C. and protect her interests, Flo Messier, L.C.’s public defender, has volunteered to serve and is serving as L.C.’s next friend in this action. Ms. Messier brings this action on L.C.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of L.C. and will advocate for those best interests in this action. Attached as Exhibit B is the Declaration of Ms. Messier concerning L.C.
12. Plaintiff R.J.A. (a pseudonym to protect his identity) is an African-American man in his late 40’s from Philadelphia who has been diagnosed with paranoid schizophrenia. He was arrested on January 27, 2015 on aggravated assault and other charges after his father called police to have him civilly committed to a hospital and R.J.A. reportedly fired a weapon into the air when police arrived. The court found R.J.A. incompetent to stand trial on the criminal charges and committed him for competency restoration treatment to Norristown on February 11, 2015. He has been detained for more than eight months (over 250 days) in the Philadelphia Detention Center since the order, awaiting an opening for treatment at Norristown. Based on the length of the waiting list and recent history, R.J.A. can expect to wait approximately 400 days before transfer to Norristown.
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13. The Commonwealth of Pennsylvania has found R.J.A. incompetent. As a result, R.J.A. cannot appear on his own behalf to pursue this action. J.A. (a pseudonym to protect his son’s identity), is R.J.A.’s father, and is R.J.A.’s next friend in this action. J.A. brings this action on R.J.A.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). J.A. is dedicated to the best interests of R.J.A. and will advocate for those best interests in this action. Attached as Exhibit C is the Declaration of J.A. concerning R.J.A.
14. Plaintiff Jane Doe (a pseudonym to protect her identity) is an African-American woman in her early 40’s who was found incompetent to stand trial on assault charges and committed to Norristown on June 26, 2014. She has now been sitting in the Philadelphia Detention Center for nearly 16 months (over 480 days) awaiting transfer to Norristown.
15. The Commonwealth of Pennsylvania has found Jane Doe incompetent. As a result, she cannot appear on her own behalf to pursue this action. Jane Doe could not identify any family with whom she maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist Jane Doe and protect her interests, Julia Dekovich, Jane Doe’s appointed attorney, has volunteered to serve and is serving as Jane Doe’s next friend in this action. Ms. Dekovich brings this action on Jane Doe’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of Jane Doe and will advocate for those best interests in this action. Attached as Exhibit D is the Declaration of Ms. Dekovich concerning Jane Doe.
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16. Plaintiff A.B. (a pseudonym to protect his identity) is an African-American male in his late 30’s from Beaver County who suffers from paranoid schizophrenia. He was found incompetent to stand trial on charges of simple assault, aggravated assault, and tampering with property that stem from an altercation he allegedly had at a psychiatric hospital in late August 2015 while acutely psychotic. Despite being committed for competency restoration, A.B. has been detained in Beaver County Jail—most recently in solitary confinement—for over a month.
17. The Commonwealth of Pennsylvania has found A.B. incompetent. As a result, he cannot appear on his own behalf to pursue this action. J.B. (a pseudonym to protect her brother’s identity), is A.B.’s sister, and is A.B.’s next friend in this action. J.B. brings this action on A.B.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of A.B. and will advocate for those best interests in this action. Attached as Exhibit E is the Declaration of J.B. concerning A.B.
18. Plaintiff S.S. (a pseudonym to protect his identity) is a Caucasian man in his mid-20’s from Erie who suffers from a mental impairment. He was found incompetent to stand trial on defiant trespass, simple assault, and possession of a weapon charges, and was court committed to Torrance for competency restoration treatment on September 3, 2015. He has been detained in solitary confinement for more than six weeks in the Allegheny County Jail since the order, awaiting an opening for treatment at Torrance.
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19. The Commonwealth of Pennsylvania has found S.S. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. S.S. could not identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist S.S. and protect his interests, Marion Damick, a long-time “official visitor” of the Philadelphia Prison Society, has volunteered to serve and is serving as S.S.’s next friend in this action. Ms. Damick brings this action on S.S.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of S.S. and will advocate for those best interests in this action. Attached as Exhibit F is the Declaration of Ms. Damick concerning S.S.
20. Plaintiff G.C. (a pseudonym to protect his identity) is an African-American man in his mid-60’s from Philadelphia who suffers a mental impairment. After the court found him incompetent to stand trial on a burglary and related charges stemming from an incident where G.C. reportedly tried to enter the apartment unit of a neighbor living one floor directly below his own apartment unit in September 2011, G.C. was committed to Norristown for competency restoration treatment in November 2011. G.C. was eventually transferred there on November 29, 2012. On December 11, 2013, the court committed G.C. to Norristown’s civil unit based on a determination by the court that G.C. was unlikely to become competent. G.C. has, however, remained in detention at Norristown’s forensic unit for nearly two years (more than 675 days) awaiting an opening at one of Norristown’s two civil units.
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21. The Commonwealth of Pennsylvania has found G.C. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. G.C. could not identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist G.C. and protect his interests, Luna Pattela, G.C.’s public defender, has volunteered to serve and is serving as G.C.’s next friend in this action. Ms. Pattela brings this action on G.C.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of G.C. and will advocate for those best interests in this action. Attached as Exhibit G is the Declaration of Ms. Pattela concerning G.C.
22. Plaintiff R.M. (a pseudonym to protect his identity) is a homeless Latino man in his mid-40’s who was living in Philadelphia and who suffers a mental impairment from traumatic brain injury. The court found R.M. incompetent to stand trial for a simple assault, aggravated assault, and possession of an instrument of crime charges on May 13, 2012. He was eventually transferred for treatment to Norristown on October 6, 2012. On February 28, 2013, the court committed R.M. to Norristown’s civil unit based on a determination by clinicians that R.M. was unlikely to become competent. R.M. has remained, however, in detention at Norristown’s forensic unit for more than two and a half years (more than 960 days) awaiting an opening at one of Norristown’s two civil units.
23. The Commonwealth of Pennsylvania has found R.M. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. R.M. could not
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identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist R.M. and protect his interests, Ms. Messier, his public defender, has volunteered to serve and is serving as R.M.’s next friend in this action. Ms. Messier brings this action on R.M.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of R.M. and will advocate for those best interests in this action. Attached as Exhibit H is the Declaration of Ms. Messier concerning R.M.
24. Plaintiff P.S. (a pseudonym to protect his identity) is a Caucasian man in his late 50’s from Philadelphia who suffers from a long history of mental illness. The court found P.S. incompetent to stand trial for burglary, criminal trespass, criminal mischief, theft, and receiving stolen property charges in early April 2011, and he was eventually transferred to Norristown for treatment on April 4, 2012. A year later, in early April 2013, the court committed P.S. to Norristown’s civil unit based on a determination that P.S. was unlikely to become competent. P.S. has remained, however, in detention at Norristown’s forensic unit for more than two and a half years (more than 900 days) since that order, awaiting an opening at one of Norristown’s two civil units.
25. The Commonwealth of Pennsylvania has found P.S. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. M.A.S. (a pseudonym to protect her brother’s identity), is P.S.’s sister, and is his next friend in this action. M.A.S. brings this action on P.S.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of P.S. and will advocate for those
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best interests in this action. Attached as Exhibit I is the Declaration of M.A.S. concerning P.S.
26. Plaintiff T.S. (a pseudonym to protect his identity) is a Caucasian man in his mid-50’s from Beaver County who is deaf and who suffers from paranoid schizophrenia. In October 2005, the court found T.S. incompetent to stand trial on charges of murder, and committed him to Mayview State Hospital. T.S. was then transferred to Torrance, most likely in 2008 when Mayview closed, or otherwise in February 2012 at the latest, as supported by a criminal court docket entry copying Torrance on a commitment order. The joint forensic psychiatric expert at T.S.’s initial competency hearing testified that she could not be certain that psychiatric treatment could ever render T.S. competent. For the past ten years, it has not. After spending a decade involuntarily committed for competency restoration treatment, including at least 20 months at Torrance, T.S. is still experiencing auditory and visual hallucinations that are strikingly similar in content to those that he reportedly experienced ten years ago, and expresses grave concern over similar delusions. Despite all failures to render T.S. competent over the past ten years, T.S. remains detained at Torrance’s forensic unit.
27. The Commonwealth of Pennsylvania has found T.S. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. T.S. could not identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist T.S. and protect his interests, Emily McNally, a former Assistant Public Defender in Allegheny County
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who has met with T.S. and researched and reviewed his case, has volunteered to serve and is serving as T.S.’s next friend in this action. Ms. McNally brings this action on T.S.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of T.S. and will advocate for those best interests in this action. Attached as Exhibit J is the Declaration of Ms. McNally concerning T.S.
28. Plaintiff M.S. (a pseudonym to protect his identity) is an African-American man in his mid-50’s from Allegheny County who suffers from schizophrenia and also appears to be substantially mentally disabled with very low motor functioning. The court found M.S. incompetent to stand trial on charges of simple assault, disorderly conduct, public drunkenness, and obstruction of highways in October 2014 stemming from an incident in late December 2013 where he was reportedly found intoxicated and laying on a sidewalk, and then reportedly briefly struggled while being strapped into an ambulance. M.S. was committed to Torrance for competency restoration treatment at that time. He still remains at Torrance’s forensic unit, now a full year later, despite his apparent lack of progress towards becoming competent and his willingness and ability to be treated in a more integrated setting.
29. The Commonwealth of Pennsylvania has found M.S. incompetent. As a result, he cannot appear on his own behalf to pursue this action. A next friend is, therefore, necessary to represent his interests. M.S. could not identify any family with whom he maintains a relationship who could fill this role. Due to the unavailability of personal contacts to assist M.S. and protect his interests, Ms. McNally, who has met with M.S. and researched and reviewed his
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case, has volunteered to serve and is serving as M.S.’s next friend in this action. Ms. McNally brings this action on M.S.’s behalf pursuant to Fed R. Civ. P. 17(c)(2). She is dedicated to the best interests of M.S. and will advocate for those best interests in this action. Attached as Exhibit K is the Declaration of Ms. McNally concerning M.S.
B. Defendants 30. Defendant Ted Dallas is Secretary of the Pennsylvania
Department of Human Services (“DHS”), which is the state agency designated to administer or supervise the administration of competency restoration treatment in Pennsylvania.1 In his capacity as Secretary, Defendant Dallas is responsible for the administration of DHS, which operates the only two facilities in Pennsylvania that provide competency restoration treatment. These are Norristown, which is in Montgomery County; and Torrance, which is in Derry, Westmoreland County. Defendant Dallas is obligated to ensure that patients committed to the care of Norristown or Torrance are treated in accordance with the Constitution and laws of the United States. Defendant Dallas has at all relevant times hereinafter mentioned acted under color of state law. He is sued in his official capacity.
31. Defendant Edna I. McCutcheon is the Chief Executive Officer of Norristown, a state psychiatric hospital operated by DHS that is charged with, inte r alia, providing services to individuals committed to Norristown by
1 DHS receives federal monies. Se e , e .g., Budget Information, Pennsylvania DHS, http://www.dhs.state.pa.us/publications/budgetinformation/ (last visited Oct. 22, 2015) (“The Department of Human Services budget is a mixture of both state and federal funding”).
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Pennsylvania courts for competency restoration treatment. As Chief Executive Officer, Defendant McCutcheon is responsible for oversight, operation, and management of Norristown, including but not limited to the provision of competency restoration services to individuals committed to Norristown by the Pennsylvania criminal courts. Defendant McCutcheon has at all relevant times hereinafter mentioned acted under color of state law. She is sued in her official capacity.
32. Defendant Robert Snyder is the Chief Executive Officer of Torrance, a state psychiatric hospital operated by DHS that is charged with, inte r alia, providing services to individuals committed to Torrance by Pennsylvania courts for competency restoration treatment. As Chief Executive Officer, Defendant Snyder is responsible for oversight, operation, and management of Torrance, including but not limited to the provision of competency restoration services to individuals committed to Torrance by the Pennsylvania criminal courts. Defendant Snyder has at all relevant times hereinafter mentioned acted under color of state law. He is sued in his official capacity.
IV. FACTS ENTITLING PLAINTIFFS TO RELIEF A. Incompetency Proceedings in Pennsylvania
33. All Plaintiffs, and the class members they seek to represent, have been (a) examined and deemed incompetent by a psychiatrist to stand trial on pending criminal charges; and (b) ordered by a Pennsylvania state court judge to undergo competency restoration treatment in either Norristown or Torrance.
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34. To commit a criminal defendant to competency restoration treatment under Pennsylvania’s Mental Health Procedures Act, 50 Pa. Cons. Stat. Ann. §§ 7101, e t se q. (“MHPA”), the court must find that the person is “substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense” and that it is “reasonably certain that the involuntary treatment will provide the defendant with the capacity to stand trial.” 50 Pa. Cons. Stat. Ann. § 7402(a) and (b).
35. Individuals who are declared incompetent to stand trial suffer from a range of mental status issues, including intellectual and cognitive disabilities, traumatic brain injury, and mental illness, including serious mental illness and even dementia.
36. Plaintiffs and class members share several other characteristics. Most incompetent individuals have trouble communicating effectively. Their mental statuses range from brief periods of lucidity to complete incomprehensibility to a catatonic state wherein they cannot respond at all.
37. Most incompetent individuals have few, if any, friends or family members to support them. Indeed, many of the people declared incompetent are estranged from their families.
38. Finally, most of the individuals adjudicated incompetent to stand trial have difficulty understanding why they are imprisoned, what it means to be charged with a crime, or how to assist their attorney in defending them against the criminal charges.
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39. Plaintiffs and class members qualify as persons with disabilities under the Americans with Disabilities Act. 42 U.S.C. § 12131, e t se q.
40. A court ruling that an individual is incompetent to proceed causes the criminal proceedings to be stayed. Se e 50 Pa. Cons. Stat. Ann. § 7403(b). If, at some point, the individual becomes competent, the criminal charges may be reinstated. Id .
41. Once a court issues an order for competency restoration treatment, the MHPA requires that the person “shall be transferred, for this purpose, to a mental health facility.” Id .§ 7401(b).
42. Upon issuance of the court order, the individual becomes a patient of DHS immediately. Se e Ex. L (Aff. of Philip Mader ¶¶ 40, 49, W u v. D e p’t ofH u m an Se rvs., OOR Docket No. AP 2015-0405) [hereinafter Mader Aff.].
B. Defendants Provide Fewer Than 237 Beds for Competency Restoration Treatment Patients for the Entire Commonwealth of Pennsylvania. 43. Pennsylvania has only two forensic hospitals that are licensed
to provide competency restoration treatment. Ex. L (Mader Aff. ¶ 13). DHS administers and operates both hospitals, under the direction of Defendant Dallas.
44. One of the two forensic hospitals is the Norristown State Hospital, administered by Defendant McCutcheon, which is located approximately 15 miles northeast of Philadelphia, in Norristown, Montgomery County. Norristown is supposed to serve all patients ordered into competency restoration
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treatment by judges in approximately the eastern third of Pennsylvania, including Philadelphia.
45. The only other forensic hospital in all of Pennsylvania that provides competency restoration treatment is Torrance State Hospital, administered by Defendant Snyder. Torrance is located approximately 40 miles east of Pittsburgh, in Derry, Westmoreland County. Torrance is supposed to serve all patients ordered into treatment by judges from counties in the western two-thirds of the state, including Allegheny County.
46. Norristown and Torrance have a combined total of 237 beds in their respective forensic hospitals, with 137 in the former and 100 in the latter. Ex. L (Mader Aff. ¶18).
47. DHS, however, makes fewer than 237 beds in the forensic hospitals available for competency restoration treatment. The 237 beds are used for other purposes, too, such as (a) competency evaluations; (b) treatment of criminal defendants found not guilty by reason of insanity and in need of mental health treatment; (c) treatment of criminal defendants found guilty but mentally ill and in need of treatment; and (d) criminal defendants with severe mental disabilities who are charged with certain serious crimes but are incompetent to proceed. Ex. L (Mader Aff. ¶25).
48. Moreover, as will be discussed infra, a sizeable number of the 237 forensic hospital beds at Norristown and Torrance are occupied by patients committed for competency restoration treatment who have been deemed unlikely
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to become competent, but who nonetheless remain in the forensic unit awaiting a suitable placement in a civil unit or in the community.
49. Plaintiffs have been unable to ascertain exactly how many beds DHS makes available for competency restoration treatment at Norristown and Torrance, but because the different categories of patients identified in the foregoing two paragraphs occupy some of the beds, it is believed to be far fewer than 237.
50. DHS will not admit new patients when Norristown and Torrance forensic hospitals are at capacity. Ex. L (Mader Aff. ¶19).
51. When Torrance or Norristown forensic units are at capacity, patients committed by courts for competency restoration treatment are placed, depending on which county refers the patient, on Norristown’s or Torrance’s “Admissions Waiting List.” Ex. L (Mader Aff. ¶20).
C. Class A Plaintiffs and Members Wait Excessively Long Times for Admission to Norristown and Torrance. 52. Both Norristown and Torrance forensic units have been at
capacity for many years, and thus both have maintained, and currently maintain, admissions waiting lists for new patients committed for competency restoration treatment.
53. Current wait times at both Norristown and Torrance far exceed any constitutionally permitted delay.
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54. Upon information and belief, counties are allotted a certain number of beds at the respective forensic hospitals, which means that wait times vary by county.
55. Data provided to Plaintiffs’ counsel in response to a Right-toKnow Law request indicates that between January 2014 and January 2015, wait times for Class A Plaintiffs and Members to gain admission to Norristown following a court’s commitment order were as high as follows:
NORRISTOWN FORENSIC ADMISSION WAIT TIMES — BY COUNTY

County

Longest Wait Times (Jan 2014 to Jan 2015) from the first available we e kly D H Slist ofe ac hm onth

Berks Bucks Carbon Chester Delaware Lackawanna Lancaster Lebanon Lehigh Luzerne Monroe Montgomery Northampton Philadelphia

233 349 42 366 386 183 >394 >333 231 296 >360 >429 >218 >420
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Pike Schuylkill Susquehanna Wayne Wyoming

>351 >116 196 184 no data

">": Our last available relevant DHS list is dated 1/2/2015, at which point these individuals were still awaiting admission.

56. The following counties had at least one person waiting in jail for over a year: Delaware County (386 days), Philadelphia County (over 420 days), Montgomery County (over 429 days), Lancaster County (over 394 days), and Chester County (366).
57. According to data from Right-to-Know Law requests and declarants, the wait times across counties in Norristown’s catchment area have continued to increase in recent months. In 2014, maximum monthly wait times across counties -- based on a snapshot for each month -- averaged 308 days with a high of 401 days. By just January of 2015 (the last month for which counsel has comprehensive data), those numbers had increased to 436 and 443 days, respectively. Norristown forensic wait times continued to rise throughout 2015, as Philadelphia’s Class A Plaintiffs have sustained average monthly maximum wait times of 477 days with the longest wait time being 589 days.
58. In addition to wait times increasing, the length of the Norristown waiting list has also increased significantly. In 2014, the largest waiting list was 122 patients. On August 21, 2015, the list was 121 patients, but as of the date of this filing, the list has grown to 174 patients awaiting admission.
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59. Competency restoration treatment patients from Philadelphia, which supplies by far the largest number of patients for treatment to DHS, now routinely wait over a year. In late 2012, wait times rose to two to three months. Over the next few years, those wait times increased substantially. The average wait time for all Philadelphia patients sent to Norristown in 2015—23 patients between January and September—was 397 days. Three patients waited in the Philadelphia Detention Center for more than 500 days, with the longest being 589 days. As discussed below, excessive DHS delays have caused Philadelphia’s criminal justice system to adopt a work-around to keep the waiting list from ballooning even further but which has prolonged many Class A plaintiffs’ actual wait times even beyond those wait times described above.
60. Data provided to Plaintiffs’ counsel in response to a Right-toKnow Law request indicates that from January 2014 through December 2014, wait times for Class A Plaintiffs and Members to gain admission to Torrance after the court order to competency restoration treatment were as high as follows:
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TORRANCE FORENSIC ADMISSION WAIT TIMES — BY COUNTY

County

Longest Wait Times (Jan 2014-Dec 2014) from e ve ry we e kly D H Slist

Adams

65

Allegheny

77

Bradford

72

Cambria

58

Cumberland

70

Dauphin

119

Elk

71

Erie

80

Fayette

67

Franklin

84

Indiana

70

Jefferson

99

Northumberland

88

Potter

93

Snyder

78

Somerset

72

Tioga

70

Westmoreland

58

York

78

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61. The wait times shown on the Torrance and Norristown wait lists maintained by DHS frequently under-report the actual wait times, sometimes by two months or more.
62. Upon information and belief, this under-reporting is due to the fact that DHS does not assign patients a “Referral Date” corresponding to the date of the court commitment order. Rather, it assigns a “Referral Date” on the date when Norristown and Torrance receive all necessary paperwork from the transmitting county. A sample drawn from four Philadelphia Plaintiffs showed that Norristown’s assigned “Referral Date”—the only date used on its waiting lists—was an average of 4 4 d ayspast the date of the court’s initial court order.
i. Philadelphia’s Unique Effort to Compensate for the Long DHS Admission Delays Has Resulted in Many Philadelphia Class A Plaintiffs and Members Having to Wait Substantially Longer Than Is Shown on DHS Waiting Lists.
63. In Philadelphia, the actual wait time from the date a court finds a criminal defendant incompetent and in need of treatment is even longer than the nearly 400-day average because of a unique practice utilized in Philadelphia to keep the waiting lists from ballooning still further and to keep waiting times shorter for the most needy and ill patients.
64. Several years ago, when wait times for transfer to Norristown began increasing to several months, the Philadelphia criminal courts started committing some of the more mentally stable patients who were declared incompetent to the Philadelphia Detention Center, also known as either the Detention Center Forensic Unit (the “DCFU”) or the Prison Health Services Wing
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(the “PHSW”). These commitments just to the DCFU are referred to as “single commitments” or “solo commits.”
65. The DCFU is not a DHS forensic unit, and it does not provide competency restoration treatment. The DCFU is a licensed hospital inside the Philadelphia Detention Center -- and the only licensed hospital inside a jail in the Commonwealth of Pennsylvania. The only mental health service the DCFU provides, however, is medication. It does not provide individual counseling and group therapy for the purpose of moving patients toward competency.
66. Attorneys with the Philadelphia Public Defender had hoped that some of the patients might improve by simply taking prescribed medications. In some cases, the patients had stopped taking these medications before arrest, and this cessation often caused mental impairment to worsen and often proximately caused the alleged criminal behavior. The attorneys’ hope was that, by keeping some patients who might be restored to competency with medication alone off of the lists for Norristown, that the sickest patients would be admitted to Norristown sooner and that DHS would address the delays to decrease the excessive wait times.
67. The single commitment strategy ultimately has not worked for most Philadelphia-based Plaintiffs and class members, and in some cases has worsened their predicament.
68. Several reasons contribute to the single-commitment effort’s failure. First, the DCFU had insufficient capacity to house all patients ordered into their care. Consequently, few patients committed to the DCFU were actually
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housed there. Instead, most patients committed to the DCFU were housed in the jail’s general population, where, due to their mental status problems, they are at greater risk of victimization from other inmates. Many other patients committed to the DCFU were also housed in segregation units, largely due to disciplinary issues caused by their illnesses or disabilities. As a result, notwithstanding a commitment order to the DCFU, most patients are incarcerated in the regular jail population, or in solitary confinement, receiving little or no mental health treatment.
69. Each commitment under the MHPA could last 60 to 90 days, but the Philadelphia courts often reissued the single commitment two and three times or more, meaning that the incompetent patient would remain in the Philadelphia Detention Center for two to eight months before the court converted the commitment to include Norristown.
70. If the patient had not improved during that time, the court changed the order to a “dual commitment,” meaning that the patient was committed to both the DCFU and Norristown.
71. As a result, the wait times for admission of Class A Plaintiffs and Members to Norristown are calculated from no sooner than the first date that Norristown is listed on the commitment order.
72. A consequence of the Philadelphia courts’ solo commitments to the Philadelphia Detention Center, before adding a Norristown commitment, is that the actual delay between the court order declaring incompetency and directing competency restoration treatment and eventual transfer to Norristown is about two to eight months longer than shown on the Norristown waiting list. In reality,
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therefore, many Philadelphia patients wait between one and two years from date of court-ordered treatment to admission by DHS to Norristown.
73. Upon information and belief, Pennsylvania’s wait times for inmates to receive competency restoration treatment are the longest of any state in the United States.
74. Defendants Dallas, McCutcheon, and Snyder are well aware of the long wait times for admission to Norristown and Torrance, as well as the delays in transferring out of the forensic unit, discussed infra.
D. Class A Plaintiffs and Members in Jails and Prisons Awaiting Admission to Norristown and Torrance Receive No Competency Restoration Treatment, Minimal, if Any, Mental Health Care, and Often Live in Solitary Confinement. 75. Norristown and Torrance are hospitalswith forensic centers,
Ex. L (Mader Aff. ¶ 13), and thus are profoundly different from county prisons and jails in terms of restrictions, staffing, and services.
76. Norristown and Torrance forensic centers are staffed by a fulltime psychiatrist, a psychologist, a mental health specialist, a recreation counselor, a social worker, a mental health technician, and nurses. They are statutorily required to provide “a course of treatment designed and administered to alleviate a person’s pain and distress and to maximize the probability of his recovery from mental illness.” 50 Pa. Cons. Stat. Ann. §§ 7102, 7104.
77. Under the MHPA and corresponding regulations, these professionals work to assess an individual’s special needs and develop a comprehensive treatment plan to meet those needs. These treatment plans require
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careful and ongoing medication evaluation and management, as well as individual and group psychotherapy.
78. In addition to assessment, medication evaluation and management, and individual and group psychotherapy, Norristown and Torrance provide competency restoration treatment patients with legal skills training to help them learn about the law, pleas, and returning to court. Legal skills training combined with mental health services is designed to restore a person to competency so that they can stand trial for their criminal charges.
79. Most Pennsylvania jails provide little more than medication management to stabilize an individual’s mental health condition.
80. Individuals found incompetent are often overtly psychotic and require special housing or segregation. They are unpredictable and disruptive, taking up valuable resources needed for the care of other inmates. If they refuse to take medications (which they are permitted to do and which they often do as a result of their paranoia), they often decompensate rapidly.
81. In jails, the very sick patients awaiting competency restoration treatment are often confined in their cells for 23 hours a day (or all day if they refuse to leave their cells, as many do) because of behavior related to their underlying impairment or because of policies that simply require segregation of anyone with apparent psychiatric disabilities. Not only does the patient remain untreated, but the isolation causes the patient to decompensate, exacerbating the mental health condition.
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82. It is well-documented that jails are an inadequate substitute for inpatient mental health treatment. Se e Maureen C. Olley et al., M e ntally Ill Ind ivid u als in L im bo: Obstac le s and Opportu nitie s for P rovid ing P syc hiatric Se rvic e stoC orre c tionsInm ate swithM e ntalIllne ss, 27 Behav. Sci. Law 811, 819 (2009) (“[W]e know from decades of research that correctional settings are not generally well equipped nor are they necessarily the most appropriate source of mental health services.” (citation omitted)).
83. Studies reveal that individuals with major mental illnesses, as a group, face a substantial likelihood of incurring serious harm in prison, and are substantially more likely to suffer serious harms than non-ill prisoners. E. Lea Johnston, Vu lne rability and Ju st D e se rt: A The ory of Se nte nc ing and M e ntal Illne ss, 103 J. Crim. L. & Criminology 159-60 (2013). Se e alsoOlley et al., su pra, at 818 (“Inmates with mental health problems are more likely to be charged with breaking facility rules (19%) than inmates without mental health problems (9%). They are four times more likely (8%) to be involved in a verbal or physical assault than non-[mentally ill individuals] (2%) and three times more likely to have been injured in a fight since admission to the local jail.”).
84. Confining severely mentally ill patients “in close quarters with (and without adequate protection from) large numbers of antisocial persons with excess time and few productive activities results in bullying and predation.” Johnston, su pra, at 150. For instance, these individuals are “more susceptible than non-ill persons to physical and sexual assault in prison.” Id .at 151; se e alsoid .at 161-69 (describing research on increased likelihood of physical and sexual
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assault); se e also Nancy Wolff and Jing Shi, Vic tim isation and F e e lingsofSafe ty A m ong M ale and F e m ale Inm ate s with B e haviou ral H e alth P roble m s, 20 J. Forensic Psychiatry & Psychology S56-77 (Apr. 2009) (exploring characteristics of individual with mental illnesses who are victimized inside prisons).
85. Furthermore, because these individuals often lack the skills to cope with a prison environment, they are more prone to accrue disciplinary violations. Johnston, su pra, at 151; se e also id .at 169-78 (describing higher incidence of disciplinary infractions and solitary confinement). This can lead to harsh punishments such as solitary confinement, where such persons “are especially susceptible to decompensation, psychotic breaks, and suicide ideation.” Id .at 151. “These experiences — the trauma of physical and sexual victimization and conditions of solitary confinement, either alone or in combination — may aggravate inmates’ psychiatric symptoms and even precipitate the onset of new mental disorders. Inadequate mental health treatment available in many prisons . . . compounds this psychiatric deterioration.” Id .at 160-61.
86. For patients deemed incompetent to stand trial because of other mental impairments, such as intellectual disability, traumatic brain injury, or dementia, jails cannot and do not provide adequate treatment in settings that do not pose the threat of causing them further harm.
87. Accordingly, jails do not and cannot provide the kind of treatment and restorative environment that the Class A Plaintiffs desperately need and to which they are entitled.
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E. Defendants’ Failure to Timely Accept Class A Plaintiffs and Members into Treatment at Norristown and Torrance Inflicts Suffering and Can Prolong Detention Time. 88. Class A Plaintiffs and Members are all, or will be in the future,
charged with a crime in the State of Pennsylvania, and who: (a) are adjudged by a court to be mentally incompetent to stand trial; (b) are committed to Defendants for competency restoration treatment; and (c) have not been admitted by Defendants for such treatment within seven (7) days of the date of the court’s commitment order. Class A Plaintiffs and Members are also all persons with disabilities as defined under the ADA.
89. Defendants’ failure to accept Class A Plaintiffs and Members committed to their care in a timely way causes Class A Plaintiffs and Members to suffer in prisons and jails by depriving them of needed mental health treatment, causing them to live in a far more restrictive environment and, in some cases, in complete isolation from other human beings, and sometimes prolonging the time they spend involuntarily detained.
90. A patient recently detained at the Philadelphia Detention Center awaiting bed space for treatment at Norristown died. In 2013, a 20-year-old Bengali man committed suicide after waiting for nearly six months in the Philadelphia Detention Center for a bed to become available at Norristown. Both a guard and his cell mate noted to his attorney that the man’s mental health had deteriorated during his confinement in the Detention Center.
91. In April 2015, another Philadelphia man awaiting a bed at Norristown was murdered by blunt trauma to the head at the Philadelphia
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Industrial Correctional Center by his cell mate. Se e Matt Gelb, P hilly Inm ate C harge d with K illing C e llm ate , Phila. Inquirer (Apr. 30, 2015), http://www.philly.com/philly/news/20150501_Philly_inmate_charged_with_killin g_cellmate.html?c=r.
92. Many other prisoners waiting in county jails for transfer to Norristown or Torrance degenerate mentally, as evidenced by Plaintiffs’ plight.
93. Plaintiff J.H. exemplifies one type of mentally ill offender who circulates through the competency-restoration process, often more than once. He is a non-violent, low-level offender who has spent time in jail awaiting transfer to Norristown without adequate mental health treatment. He has gotten sicker during his time in jail.
94. J.H. is a chronically homeless man in Philadelphia who suffers from schizophrenia. He has been charged repeatedly with crimes typically related to homelessness, such as retail theft and trespassing. His thefts involve stealing food or personal care items from convenience stores and low-cost retailers.
95. J.H.’s most recent saga began when he was arrested for retail theft from a Wawa convenience store in January 2012 and then detained in the Philadelphia Detention Center. This arrest violated a probation sentence from 2011 on another retail-theft charge.
96. The Philadelphia Court of Common Pleas declared J.H. incompetent to stand trial and committed him into competency restoration treatment at Norristown on June 14, 2012.
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97. Norristown did not have an available bed for J.H. until September 6, 2012. His nearly three-month wait time after being ordered to treatment was short relative to today’s Norristown wait times, but his commitment occurred before the delays began growing substantially longer later that year.
98. After nearly a year of competency restoration treatment in the forensic unit, on September 4, 2013, Norristown’s doctors concluded that J.H. was unlikely to be restored to competency.
99. In mid-June 2014, J.H. was released on probation and bond to a community services center in Philadelphia run by Volunteers of America (“VOA”).
100. Within a few days of leaving Norristown and moving into his new community placement, however, J.H. walked away from the facility and set up his own shelter in the parking lot located behind the VOA center. J.H. later explained that he left the placement because he “just wanted to be free.”
101. On July 21, 2014, J.H. was arrested and charged with another retail theft crime, this one for allegedly stealing three Peppermint Pattie chocolates from a Dollar General store.
102. On November 13, 2014, the Philadelphia Court of Common Pleas yet again declared J.H. incompetent to stand trial, again ordered him to undergo competency restoration treatment, and committed him to both the Philadelphia Jail and to Norristown.
103. Norristown incorrectly lists J.H.’s referral date as January 12, 2015, which is two months after he was in-fact referred. The court’s commitment
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order, J.H.’s court docket, and his public defender’s contemporaneous notes all indicate that he was committed by the court to Norristown on November 13, 2014, two full months before he shows up on the Norristown waitlist.
104. More than eleven months have elapsed since the court’s commitment order, and Norristown still has not admitted J.H. He remains confined in the Philadelphia Detention Center. As of September 25, 2015 J.H. was still only number 13 on the Norristown waitlist.
105. J.H. has received no competency restoration treatment during his eleven months at the Philadelphia Detention Center.
106. J.H.’s mental state has visibly deteriorated over the past eleven months in jail. Prior to his most recent detention, J.H. never displayed hostility, was relatively engaged during conversations, and was willing and able to answer simple questions. Now, he is visibly agitated, hostile, and unable or unwilling to engage in conversation.
107. Plaintiff L.C. is an African-American female in her mid-20’s whose mental health has deteriorated during her ongoing confinement in the Philadelphia Detention Center awaiting available space at Norristown.
108. On November 13, 2014, L.C. was declared incompetent and issued a single commitment to the DCFU. L.C. was not, however, immediately moved to the DCFU. She was detained in a general population unit between August 25 and September 2 of this year.
109. On February 12, 2015, the court changed L.C.’s singled commitment to a dual commitment, ordering her to treatment in Norristown. Since
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Norristown refused to admit L.C., the court re-issued commitment orders in April, June, and August of 2015.
110. L.C.’s mental state has deteriorated substantially during her stay at the Philadelphia Detention Center. In November, 2014, L.C. was not competent but she was conversant with her public defender. In December, L.C. was screaming answers to questions, seemingly trying to talk over whatever she was hearing. By February 2015, L.C. had declined severely. She still screamed answers to her lawyer’s questions, but now the answers did not make sense. She also could not remain seated. In early June, she refused to see her lawyer at all. By late June, she sat through an interview sucking her thumb, refusing to make eye contact, and staring blankly. In late August, L.C. would not respond to any questions from her lawyer.
111. L.C. remains detained at the Philadelphia Detention Center, more than eleven months after she was first declared incompetent, and more than eight months after she was committed to Norristown, awaiting an opening. As of September 28, she was number 14 on the Norristown waiting list.
112. Plaintiff R.J.A., an African-American male in his mid-40’s who is diagnosed with paranoid schizophrenia, also has shown a marked decline in mental health in the seven-plus months he has been detained in the Philadelphia Detention Center awaiting an available bed at Norristown.
113. The court deemed R.J.A. incompetent and dually committed him to Norristown and the DCFU on February 11, 2015. The court re-issued the commitments to Norristown on April 8, May 6, and August 5, 2015.
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114. During this entire period and despite the court’s commitment of R.J.A. to the DCFU, R.J.A. has remained in general population at the Philadelphia Detention Center. R.J.A. has received no treatment during his detention.
115. R.J.A.’s mental health has deteriorated severely, with his paranoia increasing. Shortly after his arrest, R.J.A. met his father for visits, kissed him, told his father that he loved him, and conversed. By around March, R.J.A. showed anger toward his father, cursing at him, blaming him for his situation, and stating that he would “piss on” his father’s grave. By August, R.J.A. refused visits from both his father and attorney. He has become delusional, speaking nonsense, and quite obviously not exercising basic hygiene.
116. R.J.A. has now been detained in general population at the Philadelphia Detention Center for more than eight months since his incompetency determination and commitment to Norristown on February 11, awaiting an opening. As of September 25, R.J.A. was number 39 on the Norristown waiting list.
117. Plaintiff Jane Doe is an African American woman in her early 40’s who has a mental impairment.
118. Jane Doe was declared incompetent to stand trial for assault charges in January 2014. She was then declared competent in March 2014, but again found her incompetent on May 2, 2014 and committed to the DCFU. On June 26, 2014, the Court dually committed Jane Doe to DCFU and Norristown.
119. To date, Jane Doe awaits transfer to Norristown. Jane Doe’s mental and physical health has deteriorated in the nearly 16 months she has been
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waiting. She has lost noticeable weight. Prior to her most recent confinement at the Philadelphia Detention Center, Jane Doe would have discussions with her lawyer about her case. For the past year or more, she has refused to discuss the case and instead talks about having aliens and space ships in her body, and about being married to Jesus Christ. She has become much more delusional.
120. Jane Doe has now been confined for nearly 16 months, more than 460 days, in the Philadelphia Detention Center awaiting transfer to Norristown.
121. Plaintiff A.B. is an African-American male in his late-30’s who suffers from paranoid schizophrenia. During a hospital stay due to his condition, the hospital had him arrested on August 25, 2015 and turned over to law enforcement for aggravated and simple assault, and tampering with property. Shortly after his arrest, A.B. was found incompetent to stand trial and ordered to Torrance for competency restoration treatment. A.B. is being held in the restricted housing unit of the Beaver County Jail awaiting transfer to Torrance.
122. While in jail, A.B. has not taken any of the medication needed to treat his schizophrenia, and his condition has deteriorated significantly. He is no longer communicating with family and he has ceased taking care of his personal hygiene. Due to the nature of his condition, the longer A.B. goes without medication, the greater the chance that he can become resistant to treatment.
123. Plaintiff S.S. is white male in his mid-20’s from Erie who is estranged from his family. He has been held in the mental health unit at the
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Allegheny County Jail in solitary confinement since his arrest on August 4, 2015. He refuses to leave his cell, even for the one hour he is allowed out per day.
124. It has now been many weeks since September 3, 2015, when the court committed S.S. for treatment to Torrance. He remains at the Allegheny County Jail, in isolation, awaiting admission to Torrance. He is receiving no treatment. Based on recent wait times for other Allegheny County Jail inmates awaiting admission to Torrance, S.S. can expect to wait for two or more months before Torrance accepts him for court-ordered treatment.
125. Defendants’ refusal to accept Class A Plaintiffs and Members for treatment in a timely fashion has caused, and continues to cause, them to suffer physical and mental distress, remain confined in a penal institution without adequate mental health care, and in some cases prolong their total period of confinement.
126. Class A Plaintiffs’ and Members’ confinement in jail, where they do not receive competency restoration treatment, bears no relationship to the purpose for which they were committed: namely, the treatment they are not receiving.
127. The undifferentiated confinement of all Class A Plaintiffs and Members in county jails warehouses them in the least community-integrated, most segregated, and most restrictive possible housing setting, in contravention of the ADA and RA’s non-discrimination and “integration mandates.” Those mandates require public entities like Defendants to, inte r alia, house and care for individuals with disabilities “in the most integrated setting appropriate to the needs of” those
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individuals. 28 C.F.R. §§ 35.130(d), 35.152(b)(2). Thereunder, Defendants are disallowed from warehousing Class A Plaintiffs and Members “in inappropriate security classifications because no accessible cells or beds are available” or “in facilities that do not offer the same programs as the facilities where they would otherwise be housed.” 28 C.F.R. § 35.152(b).
F. Defendants Have Failed to Place Class B Plaintiffs and Members in the Least Restrictive and Most Integrated Setting Appropriate to Their Needs After Determining They Are Unlikely to Regain Competency. 128. Class B Plaintiffs and Members are now, or will be in the
future, charged with a crime in the State of Pennsylvania, and who: (a) are adjudged by a court to be mentally incompetent to stand trial; (b) are committed to Defendants for treatment; (c) have been found by Defendants to be unlikely to become competent or to no longer be making progress towards competency; and (d) continue to be detained in a forensic unit by Defendants for more than thirty (30) days after the determination that the person is unlikely to become competent. Class A Plaintiffs and Members are also all persons with disabilities as defined under the ADA.
129. Some patients who receive treatment at Norristown and Torrance become competent and are returned to the committing county for resumption of criminal proceedings.
130. Other patients, however, including Class B Plaintiffs and Members, cannot be made to become competent. The mental health professionals at Norristown and Torrance have determined that, even with additional treatment,
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they are unlikely to regain competency within a reasonable time or that they are no longer making progress towards competency.
131. At Norristown, clinicians sometimes say that a patient has “reached his maximum benefit” as a euphemism to mean the patient is unlikely to become competent within a reasonable time.
132. After a clinical determination is made that the patient is unlikely to become competent within a reasonable time or is no longer making progress toward competency, the Fourteenth Amendment to the United States Constitution and § 7403(d) of the MHPA require that the patient either be discharged or committed civilly, which would occur under Article III of the MHPA. 50 Pa. Cons. Stat. Ann. §§ 7301, e t se q.
133. Under the ADA and the RA, Defendants are required to (a) effectively assess all Class B Plaintiffs and Members to determine their community support needs; and (b) develop and implement a viable integration plan with specific timelines and discharge benchmarks to offer and provide adequate alternative community-based treatment programs, supports, and services. Class B Plaintiffs should only be discharged into civil beds when individualized community support needs assessments indicate that civil commitment is the most integrated appropriate placement—not merely the only available placement.
134. Defendants’ continued detention of Class B Plaintiffs and Members in a forensic unit -- as opposed to in a community placement or a civil unit if appropriate -- serves no legitimate purpose. Further, it does not save money or increase public safety. On information and belief, appropriate community
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placements are generally substantially less expensive than forensic beds. Also, community-based placements meeting a wide range of treatment and security needs are already regulated and licensed by Defendant DHS. See Southeast Regional Mental Health Services, Re gionalRe sou rc e G u id e , 4-6 (Oct. 2011), available at http://www.fivecountymh.org/images/documents/RegionalServices/ RegionalGuide.pdf.
135. Class B Plaintiffs and Members have not been convicted of a crime and have not had an opportunity to contest their charges in court. They have often been involuntarily committed for years by the time of the relevant clinical findings, and they are entitled to treatment—not to punishment.
136. Defendants’ confinement of Class B Plaintiffs and Members in forensic units is a form of unjustifiable institutional isolation of persons with disabilities, which is a form of unlawful discrimination. The main goal of forensic commitment is competency restoration for the purposes of standing trial. Forensically committed individuals remain subject to the criminal justice system. Their privileges and freedoms are still controlled directly by a criminal court judge.
137. The main goals of civil commitment, on the other hand, are to maximize capabilities, adjust to disabilities, and gradually increase an individual’s quality of life. Civilly committed individuals’ care, progress, privileges, and freedoms are controlled not by a criminal court judge, but by medical professionals.
138. Class B Plaintiffs and Members are entitled to separate themselves from the oversight of the criminal justice system and start working
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towards new goals, be it through appropriate placement in a suitably supportive community-based facility or through required placement in a civil hospital unit.
139. Currently, Defendants detain Class B Plaintiffs and Members in Norristown and Torrance’s forensic unit for months or years after clinicians determined the individual is unlikely to become competent or after clinicians have found that the patient is not making progress towards the goal of becoming competent.
140. Nothing changes for Class B Plaintiffs and Members at Norristown or Torrance following the clinical finding that competency restoration is unlikely or that progress is not being made. They remain confined in the high security forensic unit, behind a wall surrounded by two stories of chain-linked fencing, and with the same extreme limitations on contact with the outside world that they had when involuntarily committed under a forensic commitment order.
141. Furthermore, given the range of activities and community contact provided to people housed even in Norristown and Torrance’s civil units, civilly-committed incompetent individuals’ continued confinement in the forensic units is a form of punishment. Class B Plaintiffs and Members are forbidden outgoing telephone calls, incoming calls and visits are heavily restricted, patients must wear institutional garb, and patients cannot leave the facility.
142. Norristown has two civil units (referred to as Buildings 1 and 10) which provide a secure setting for civilly committed patients, but they are perpetually full. The two units hold a total of 122 patients.
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143. Even though Norristown’s two civil units are locked on the outside and between units, they afford patients much more freedom than does the forensic unit. The civil units have day rooms with televisions, pool tables, and games. There is a café, a swimming pool, and a library. There are a variety of programs, including life skills, arts and crafts, wood working, exercise, bingo, movie nights, plays, dances, karaoke, and concerts by visiting musicians. There are jobs where patients can earn some money. Patients also can have grounds privileges, wherein they are allowed to walk outside on the grounds of the civil unit’s campus, first with an escort and then possibly unescorted. They may have field trips into the community for ice cream and meals. In short, the civil units are a treatment setting that is far less restrictive and more community-integrated than is the Norristown forensic unit even though neither are as integrated as community-based settings.
144. Both Norristown and Torrance maintain “Transfer Waiting Lists” of forensic patients who are cleared for transfer out of the forensic unit but who are confined there while awaiting placement at a “different facility or site”—a civil unit or community placement. Ex. L (Mader Aff. ¶ 14). These transfer waiting lists include some—but not all—Class B Members. Class B Members are patients who Defendants have found are unlikely to become competent, or are no longer making progress towards competency. While many Class B Members have commitment orders for transfer out of a forensic unit—thus their inclusion on transfer waiting lists—some Class B Members do not, and so are not waitlisted for a transfer.
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145. As of January 23, 2015, Norristown’s transfer waiting list had 41 patients on it, all of whom were awaiting a civil unit placement. As of January 2015, 68% of patients on the wait list had already waited over one year from their civil unit referral date, 83% had waited for six months or more, and 93% had waited three months or more. Patients from five counties were represented on the list. Their overall average wait time as of the list date was 511 days, with the longest waiting individual from each county having already waited 1,175 days (Philadelphia), 714 days (Chester), 596 days (Delaware), 588 days (Montgomery), and 533 days (Bucks).
146. The transfer waiting list has continued to grow. As of September 30, 2015, the length of the list of Philadelphia patients alone awaiting a civil bed was approximately 41 patients, approximately 28 of whom had already waited over a year. Their average wait time since civil commitment as of September was 540 days with a high of 1,054 days. At least some of these patients could be appropriately housed in the community, but Defendants are making no attempt to provide them appropriately integrated placements.
147. Defendants have failed to transfer Class B Plaintiffs and Members at Norristown and Torrance out of the forensic unit and into a less restrictive, more therapeutically appropriate placement.
148. Plaintiff G.C. is an African-American male in his mid-60’s who has been diagnosed with schizophrenia. On September 29, 2011, Philadelphia police arrested G.C. on a burglary charge after he allegedly broke a door knob on an apartment unit located one floor directly below his apartment. When he
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allegedly walked inside and saw the tenant, he seemed to realize his error and he walked out, without threatening or harming anyone or taking anything.
149. On November 1, 2011, the court declared G.C. incompetent to stand trial on his charges and committed him to the Philadelphia DCFU. He never received treatment while in jail.
150. On April 30, 2012, the Philadelphia court committed G.C. to Norristown. However, due to a shortage of beds, Norristown did not accept him until November 29, 2012, seven months after the commitment order.
151. On December 11, 2013, the court committed G.C. to a civil unit after the court concluded that he was unlikely to regain competency. That was almost two years ago.
152. To this day, Defendants have failed to transfer G.C. to either a civil unit or an appropriate community placement. G.C. has remained in the forensic unit since his initial placement there on November 29, 2012, which is nearly three years ago. He remains there now more than 675 days after the court ordered him to the civil unit.
153. Plaintiff R.M. is a mid-40’s Latino male. He suffers mental impairment caused by a traumatic brain injury.
154. The Philadelphia police arrested R.M. on September 6, 2011, for allegedly swinging a knife near someone in a construction zone. He was charged with aggravated assault and using an instrument of a crime. The court set his bail at $2,500.
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155. The court found R.M. incompetent to stand trial on his charges and committed him to the DCFU on March 13, 2012. He was recommitted to the DCFU on May 10, 2012. R.M. was not moved to the DCFU.
156. On July 12, 2012, the court dually committed R.M. to the DCFU and to Norristown.
157. Due to a shortage of beds, Norristown did not accept R.M. until October 6, 2012.
158. On February 28, 2013, the court committed R.M. to the civil side based on Norristown clinicians’ determination that R.M. was unlikely to regain competency.
159. Defendants continue to confine R.M. in Norristown’s forensic unit more than 960 days after the court ordered him transferred to the civil side.
160. Plaintiff P.S. is a Caucasian man in his late 50’s whose long history of mental illness dates back to his teen years. P.S. has been in and out of various hospitals, half-way houses, and psychiatric facilities, and has been on medication for most of his adult life.
161. In early April 2011, the court found P.S. incompetent to stand trial on charges of various hospitals, half-way houses, and psychiatric facilities. He was not moved to Norristown to receive competency services, however, until a year later, on April 4, 2012.
162. In early April 2013, the court ordered P.S. to be transferred to the civil side of Norristown as a result of his lack of progress towards becoming competent.
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163. Defendants continue to confine P.S. in Norristown’s forensic unit more than 900 days after the court ordered him transferred to the civil side. He remains in Norristown’s forensic unit as of the date of this filing, more than two and a half years after he was court ordered to the civil side, and almost three months since a report from P.S.’s attending psychiatrist and chief forensic executive at Norristown’s forensic unit stated that it is highly unlikely that P.S. will make any significant gains toward meeting the competency criterial in the foreseeable future.
164. Plaintiff T.S. is a Caucasian man in his mid-50’s who is deaf and who suffers from paranoid schizophrenia. In October 2005, the court found T.S. incompetent to stand trial on charges of murder for allegedly shooting two family members. The joint forensic psychiatric expert retained for T.S.’s incompetency proceedings reportedly testified at that time that psychiatric treatment might not ever render T.S. competent.
165. On October 7, 2005, the court committed T.S. to Mayview State Hospital. T.S. was most likely then transferred to Torrance when Mayview closed in 2008 If not in 2008, then T.S. was transferred to Torrance in February 2012 at the latest, as supported by a criminal court docket entry copying Torrance on a commitment order.
166. Despite being involuntarily committed for competency restoration treatment at Mayview and Torrance for a decade, T.S. is still not competent to proceed on the criminal charges. He is still experiencing auditory and visual hallucinations that are strikingly similar in content to those that he
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reportedly experienced ten years ago. He still expresses grave concern over similar delusions as those from which he suffered when first found incompetent to proceed. He still believes he is being pursued by Russians and Germans, that a wide range of spirits and ghosts speak to and interact with him, and that some of his relatives’ bodies are frozen.
167. T.S. recalls being taught information relating to how the criminal justice system works years ago. He does not believe that anyone has spoken to him about this for many years. Nor does he believe that anyone has spoken to him about going to trial or residing anywhere else but Torrance. Yet he still resides at Torrance, as he has for at least the past 20 months, but more likely since 2008.
168. Plaintiff M.S. is an African-American man in his mid-50’s who suffers from schizophrenia and also appears to be substantially mentally disabled with very low motor functioning. He appears to have difficulty holding more than very simple conversations, he has been observed allowing saliva and mucus to drip onto his clothing, and he moves and speaks extremely slowly.
169. The court found M.S. incompetent to stand trial on charges of simple assault, disorderly conduct, public drunkenness, and obstruction of highways in October 2014 stemming from an incident in late December 2013 where he was reportedly found intoxicated and laying on a sidewalk, and then reportedly briefly struggled while being strapped into an ambulance. Prior to this alleged incident, M.S. had no public record of violence in his history.
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170. M.S. was committed to Torrance for competency restoration treatment in October 2014. He still remains at Torrance’s forensic unit, now a full year later, despite his apparent lack of progress towards becoming competent. M.S. has expressed a willingness and ability to be treated in a more integrated setting.
171. Defendants’ detention of G.C., R.M., P.S., T.S., and M.S. in forensic units no longer bears any relationship to the purpose of their commitment, namely, competency restoration treatment.
172. The forensic unit is not the least restrictive placement, for G.C., R.M., P.S., T.S., and M.S., and amounts to unjustified institutional isolation.
173. Torrance has a similar transfer waiting list for patients who will not regain competency, but who remain in Torrance’s forensic unit. There were 23 waitlisted forensic patients who were transferred to alternate placements between February 2014 and January 2015. Patients from eleven counties were represented, the longest-waiting from each county being 1,112 days (Dauphin), 665 days (York), and 417 (Lycoming).
174. Torrance’s commitment of Class B members in an unnecessarily restrictive unit causes them harm.
175. Torrance has recently detained as least one individual in the forensic unit well past the time he stopped making progress toward competency, and continued to detain him in the forensic unit even when community placement was warranted.
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176. Specifically, E.M is an African-American male in his mid-20’s who was diagnosed several years ago with a psychotic disorder. In June 2012, police arrested E.M. for public drunkenness, reportedly patting a teenager on the behind, and other misdemeanors. E.M. was detained at the Allegheny County Jail, evaluated for competency, and then, about a month after his arrest, deemed incompetent and ordered into treatment. He was not permitted to see his family during his stay at the jail.
177. After waiting nearly three months for transfer, E.M. was finally moved to Torrance around September 2012, and his family was finally able to visit him upon his arrival at the facility. They found him unkempt, dirty, and more disoriented than they had ever seen him before. He did not recognize his family members and could barely speak. He was unable to carry on a conversation, and only mumbled or giggled to himself.
178. E.M.’s physical and mental condition improved after several months at Torrance. However, by the end of 2013, a Torrance psychiatrist told E.M.’s family that E.M. was not making progress and that they believed he could not be restored to competency. Nonetheless, Torrance refused for over a year to transfer E.M. to the civil unit or to a community placement. Finally, in March 2015, after being at Torrance for almost two and a half years, Torrance transferred E.M. to the civil unit. In doing so, Torrance fought the family’s effort to return E.M. to a community placement. Eventually a lawsuit resulted in an order that E.M. be released into the community. This occurred in August 2015, nearly three years after he was first deemed incompetent.
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179. Torrance’s refusal to release E.M., and active resistance to his release, even after its clinicians determined that he could not be restored to competency, violated E.M.’s rights under the Fourteenth Amendment’s due process clause and the ADA. Upon information and belief, Torrance treats other Class B members in similarly illegal fashion.
180. As individuals with disabilities, Class B Plaintiffs and members are entitled to housing and care in the most integrated setting appropriate to their individually assessed needs. Because Class B Plaintiffs and members are unnecessarily institutionalized persons with disabilities living in state-operated facilities, Defendants must develop and implement viable and specific integration plans to address their community placement needs. Finally, as persons protected by the Constitution of the United States, Class B Plaintiffs are entitled to freedom from punishment and to freedom from conditions of confinement that amount to punishment absent conviction.
V. CLASS ACTION ALLEGATIONS - CLASS A 181. Plaintiffs J.H., L.C., R.J.A., Jane Doe, A.B., and S.S., by and through their next friends, (collectively, the “Class A Plaintiffs”) bring this action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) on behalf of themselves and all others similarly situated (collectively, the “Class A Members”) as members of the following proposed plaintiff class (“Class A”): All persons who are now, or will be in the future, charged with a crime in the State of Pennsylvania, and who: (a) are adjudged by a court to be mentally incompetent to stand trial; (b) are committed to Defendants for
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competency restoration treatment; and (c) have not been admitted by Defendants for such treatment within seven (7) days of the date of the court’s commitment order. 182. Class A Members seek class-wide equitable, declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2). 183. Class A Members are suffering, and will continue to suffer, irreparable harm that cannot be adequately compensated at law unless this court grants injunctive relief, preliminary and permanent thereafter. 184. On information and belief, Class A consists of at least 175 individuals, and new people are added to the class continually as criminal courts order people into treatment, making individual joinder of all members impractical. The identities of Class A Members are ascertainable through records held by Defendants and/or the courts from which the evaluations or restorations of competency were ordered. Members of Class A may be informed of the pendency of this class action by use of contact information in the possession of Defendants as well as from court records. 185. There are questions of law and fact common to Class A, but are not limited to:
a. Whether Defendants’ failure to admit the Class A members, each of whom has been found incompetent and has been ordered transferred for competency restoration, within a reasonable period of time to Norristown or Torrance violates the Fourteenth Amendment;
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b. Whether Defendants’ failure to admit the Class A members 7 days from when a court has ordered them transferred for competency restoration to Norristown or Torrance violates the Fourteenth Amendment;
c. Whether Defendants’ failure to admit the Class A members, each of whom has been found incompetent and has been ordered transferred for competency restoration, within a reasonable period of time to Norristown or Torrance violates the Americans with Disabilities Act and the Rehabilitation Act;
d. All Class A Members are detainees in Pennsylvania jails who were found incompetent to stand trial, their criminal proceedings stayed, and an order issued by a Pennsylvania judge for competency restoration services;
e. All Class A Members continue to wait in jail without receiving competency restoration services;
f. The appropriate class-wide remedy. 186. These common questions of law and fact predominate over any questions affecting only individual Class A Members. 187. Class A Plaintiffs’ claims are typical of the claims of Class A because Defendants have uniformly failed to provide timely competency evaluation and/or competency restoration services to Class A Plaintiffs and to Class A in the same manner.
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188. Class A Plaintiffs will fairly and adequately protect interests of Class A members. There are no conflicts of interest between the Class A Plaintiffs and other Class A Members. The Class A Plaintiffs will vigorously prosecute this action on behalf of Class A.
189. The Class A Plaintiffs are represented by competent counsel with considerable skill and experience in civil rights and class action litigation, who will vigorously prosecute this case on behalf of Class A.
190. Defendants have acted or refused to act on grounds generally applicable to the entire class, to wit, failing to provide adequate facilities and resources to accept class members after commitment by a court for competency restoration treatment within a constitutionally reasonable time period, i.e., less than seven days.
191. The claims asserted herein are capable of repetition while evading review. There is a continuing and substantial public interest in these matters.
192. The class action is the best available method for the efficient adjudication of these legal issues because individual litigation of these claims would be impracticable, and individual litigation would be unduly burdensome to the courts. Further, individual litigation has the potential to result in inconsistent or contradictory judgments. A class action in this case presents fewer management problems and provides the benefits of single-adjudication, economies of scale, and comprehensive supervision by a single court.
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VI. CLASS ACTION ALLEGATIONS - CLASS B 193. Plaintiffs G.C., R.M., P.S., T.S., and M.S., by and through their next friends, (collectively, the “Class B Plaintiffs”) bring this action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) on behalf of themselves and all others similarly situated (collectively, the “Class B Members”) as members of the following proposed plaintiff class (“Class B”): Class B Plaintiffs and members are now, or will be in the future, charged with a crime in the State of Pennsylvania, and who: (a) are adjudged by a court to be mentally incompetent to stand trial; (b) are committed to Defendants for treatment; (c) have been found by Defendants to be unlikely to become competent or to no longer be making progress towards competency; and (d) continue to be detained in a forensic unit by Defendants for more than thirty (30) days after the determination that the person is unlikely to become competent. 194. Class B Members seek class-wide equitable, declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2). 195. Class B Members are suffering, and will continue to suffer, irreparable harm that cannot be adequately compensated at law unless this court grants injunctive relief, preliminary and permanent thereafter 196. On information and belief, Class B consists of at least 55 individuals making individual joinder of all members impractical. The identities of Class B Members are ascertainable through records held by Defendants. 197. There are questions of law and fact common to Class B, but are not limited to:
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a. Whether Defendants’ continuing detention of Class B members in a forensic unit after psychiatric officials have determined the individual is unlikely to regain competency within a reasonable period of time violates the Fourteenth Amendment;
b. Whether Defendants’ failure to move these individuals within 30 days of that determination into a less restrictive setting violates the Fourteenth Amendment.
c. Whether Defendants’ failure to either civilly commit, place in an appropriate community facility, or release individuals who cannot be restored to competency violates the Americans with Disabilities Act and the Rehabilitation Act;
d. Whether Defendants’ failure timely to move these individuals into a less restrictive setting violates the American with Disabilities Act and the Rehabilitation Act.
e. All Class B Members have received treatment at Norristown or Torrance;
f. All Class B Members have received a determination by Defendant DHS that they are unlikely to regain the competency to stand trial;
g. All Class B Members, being unable to regain competency to stand trial, must be civilly committed, released, or
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transferred to an appropriate community setting under the ADA, the RA, and the United States Constitution; h. The appropriate class-wide remedy. 198. These common questions of law and fact predominate over any questions affecting only individual Class B Members. 199. Class B Plaintiffs’ claims are typical of the claims of Class B because Defendants have uniformly: (a) continued to detain these individuals in a forensic unit despite a psychiatrist’s determination that they are unlikely to regain competence; and (b) failed to place Class B members in the least restrictive setting. 200. Class B Plaintiffs will fairly and adequately protect interests of Class B. There are no conflicts of interest between the Class B Plaintiffs and other Class B Members. The Class B Plaintiffs will vigorously prosecute this action on behalf of Class B. 201. The Class B Plaintiffs are represented by competent counsel with considerable skill and experience in civil rights and class action litigation, who will vigorously prosecute this case on behalf of Class B. 202. Defendants have acted or refused to act on grounds generally applicable to the entire class. 203. The claims asserted herein are capable of repetition while evading review. There is a continuing and substantial public interest in these matters. 204. The class action is the best available method for the efficient adjudication of these legal issues because individual litigation of these claims
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would be impracticable, and individual litigation would be unduly burdensome to the courts. Further, individual litigation has the potential to result in inconsistent or contradictory judgments. A class action in this case presents fewer management problems and provides the benefits of single-adjudication, economies of scale, and comprehensive supervision by a single court.
VII. CAUSES OF ACTION COUNT 1 - CLASS A
(Violation of the Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983))
205. The allegations of paragraphs 1 to 204 above are incorporated herein.
206. Due process requires that the nature and duration of confinement must bear a reasonable relation to the purpose for which a person is committed.
207. Once an individual is found unable to aid and assist in his own defense, the only lawful purpose for confinement is to treat for the purpose of restoring competency.
208. Individuals found unable to aid and assist have a constitutional right to such individualized treatment as will give each of them a realistic opportunity to be cured or to improve their mental condition.
209. City and county jails do not have the capacity to provide the restorative mental health treatment required by the United States Constitution.
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210. Acting under color of state law, Defendants have violated and

caused violations of the Class A Plaintiffs’ due process rights pursuant to the

Fourteenth Amendment of the United States Constitution.

211. Unless enjoined by the Court, Defendants will continue to

violate and cause the violation of the constitutional rights of the Class A Plaintiffs

and the Class A Members.

COUNT 2 - CLASS A

(Violation of the Americans with Disabilities Act (42 U.S.C. § 12132 et seq.) and the Rehabilitation Act (29 U.S.C. § 794, et seq.))

herein.

212. The allegations of paragraphs 1 to 211 above are incorporated 213. Class A Plaintiffs and Class A Members are “qualified disabled

persons” as defined in the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12132 e t se q., and the Rehabilitation Act (“RA”), 29 U.S.C. § 794, e t se q.

214. As “qualified disabled persons,” Defendants must provide

reasonable accommodation to Class A Plaintiffs and Class A Members, which

includes: (i) ensuring that Class A Plaintiffs and Class A Members shall “not,

because a facility is inaccessible to or unusable by individuals with disabilities, be

excluded from participation in, or be denied the benefits of, the services, programs,

or activities of a public entity, or be subjected to discrimination by any public

entity; (ii) ensuring that Class A Plaintiffs and Class A Members are “housed in the

most integrated setting appropriate to the needs of the individuals,” including not

placing them “in inappropriate security classifications because no accessible cells

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or beds are available,” not placing them “in designated medical areas unless they are actually receiving medical care or treatment,” not placing them “in facilities that do not offer the same programs as the facilities where they would otherwise be housed,” and not depriving them “of visitation with family members by placing them in distant facilities where they would not otherwise be housed;” and (iii) ensuring that Class A Plaintiffs and Class A Members shall be “housed in a cell with the accessible elements necessary to afford the inmate access to safe, appropriate housing.” 28 C.F.R. § 35.152(b).
215. Also, as qualified disabled persons, no Plaintiff “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
216. By housing Class A Plaintiffs and Class A Members in jails that are unable to provide the necessary treatment and safe facilities called for under the ADA, Defendants have failed to comply with the integration mandates of the ADA and the RA and have failed to provide reasonable accommodation of the disability of Class A Plaintiffs and Class A Members.
217. Unless enjoined by the Court, Defendants will continue to violate and cause the violation of the ADA and RA rights of the Class A Plaintiffs and the Class A Members.
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COUNT 3 - CLASS B (Violation of the Fourteenth Amendment to the United States Constitution (42
U.S.C. § 1983)) 218. The allegations of paragraphs 1 to 217 above are incorporated herein. 219. Due process requires that the nature and duration of confinement must bear a reasonable relation to the purpose for which a person is committed. 220. Once an individual is found unable to aid and assist in his own defense, the only lawful purpose for confinement is to treat for the purpose of restoring competency. 221. Individuals found unable to aid and assist have a constitutional right to such individualized treatment as will give each of them a realistic opportunity to be cured or to improve their mental condition. 222. Once it is determined, however, that an individual is unlikely to become competent in the foreseeable future or that he or she is not making progress towards the goal of becoming competent, Defendants are required to appropriately discharge the patient into the community or to civilly commit the individual only if he or she meets the statutory civil commitment requirements, and Defendants cannot hold that individual in the criminal justice system indefinitely. 223. Acting under color of state law, Defendants have violated and caused violations of the Class B Plaintiffs’ due process rights pursuant to the Fourteenth Amendment to the United States Constitution.
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224. Unless enjoined by the Court, Defendants will continue to

violate and cause the violation of the constitutional rights of the Class B Plaintiffs

and the Class B Members.

COUNT 4 - CLASS B

(Violations of the Americans with Disabilities Act (42 U.S.C. § 12132 et seq.); and the Rehabilitation Act, (29 U.S.C. § 794, et seq.))

herein.

225. The allegations of paragraphs 1 to 224 above are incorporated 226. Class B Plaintiffs and Class B Members are qualified disabled

persons as defined in the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12132 et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 794, et seq.

227. As “qualified disabled persons,” Defendants must provide

reasonable accommodation to Class B Plaintiffs and Class B Members, which

includes ensuring that they are “housed in the most integrated setting appropriate

to the needs of the individuals,” including not placing them “in inappropriate

security classifications because no accessible cells or beds are available,” not

placing them “in facilities that do not offer the same programs as the facilities

where they would otherwise be housed,” and not depriving them “of visitation with

family members by placing them in distant facilities where they would not

otherwise be housed.” 28 C.F.R. § 35.152(b).

228. By continuing to hold Class B Plaintiffs and Class B Members

in the forensic units of Defendants Norristown and Torrance, by failing to

effectively assess their community support needs, by failing to provide them with

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viable integration plans that include specific timelines and discharge benchmarks for developing community alternatives, and by failing to house and care for Class B Plaintiffs and members in the most integrated setting appropriate to their individually assessed needs, Defendants have failed to comply with the integration mandates of the ADA and the RA, and have failed to provide reasonable accommodation of the disability of Class B Plaintiffs and Class B Members;
229. By failing to effectively assess Class B Plaintiffs and Class B Members to determine their community support needs and by failing to develop and implement a viable integration plan to offer and provide Class B Plaintiffs and Class B Members with adequate alternative community-based treatment programs, supports, and services, Defendants have violated the ADA and the RA integration mandate, requiring that viable integration plans include specific timelines and discharge benchmarks in order to develop community alternatives for unnecessarily institutionalized persons with disabilities who lived in state operated facilities.
230. Unless enjoined by the Court, Defendants will continue to violate and cause the violations of the ADA and RA rights of the Class B Plaintiffs and the Class B Members.
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VIII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: A. For certification of Class A as defined above; B. For certification of Class B as defined above; C. For a declaration that Defendants are depriving Class A Plaintiffs, Class A Members, Class B Plaintiffs, and Class B Members of their due process rights pursuant to the Fourteenth Amendment of the United States Constitution and their rights under the Americans with Disabilities Act and the Rehabilitation Act; D. For the issuance of preliminary and permanent injunctions restraining Defendants from violating the Fourteenth Amendment of the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act by inappropriately confining individuals involuntarily committed for restorative treatment; E. For the issuance of preliminary and permanent injunctions requiring Defendants to promptly accept physical custody of Class A Plaintiffs and Class A Members within a reasonable period of time, not to exceed seven days from the date they are committed to Norristown or Torrance for restorative treatment; F. For a declaration that Defendants must accept physical custody of Class A Plaintiffs and Class A Members within a reasonable period of time, not to exceed seven days from the date they are committed to Norristown or Torrance for restorative treatment; G. For the issuance of preliminary and permanent injunctions restraining
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Defendants from violating the Fourteenth Amendment to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act when an individual committed for competency restoration is found to be unlikely to become competent in the foreseeable future or to not be making progress towards the goal of achieving competency;
H. For the issuance of preliminary and permanent injunctions requiring Defendants to effectively assess the community support needs of Class B Plaintiffs and Class B Members and to develop and implement viable integration plans with specific timelines and discharge benchmarks to facilitate their prompt transfer out of the forensic unit;
I. For the issuance of preliminary and permanent injunctions requiring Defendants to transfer Class B Members out of forensic units and into the most integrated placement appropriate to their individually assessed needs within a reasonable period of time, not to exceed thirty days from the date it is determined or is determinable that they are unlikely to become competent in the foreseeable future or that they are not making progress towards the goal of competency;
J. For a declaration that Defendants must transfer Class B Members out of forensic units and into the most integrated placement appropriate to their individually assessed needs within a reasonable period of time, not to exceed thirty days from the date it is determined that they are unlikely to become competent in the foreseeable future or that they are not making progress towards the goal of competency;
K. For an award of Plaintiffs’ costs and attorneys’ fees; and
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L. For such other and further relief as the Court may deem just and proper.

Dated: October 22, 2015

ACLU OF PENNSYLVANIA
/s/ Witold J. Walczak
Witold J. Walczak Paloma Wu ACLU of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 15222 Telephone: (412) 681-7864 Facsimile: (412) 681-8707
A ttorne ysforP laintiffs
David P. Gersch* Stephen E. Fenn* Victoria L. Killion* Nicole B. Neuman* ARNOLD & PORTER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001 Telephone: (202) 942-5125 Facsimile: (202) 942-5999
A ttorne ysforP laintiffs * P roH ac Vic e Applic ation F orthc om ing

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 Case 1:15-cv-02057-SHR Document 35 Filed 01/27/16 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo Messier; L.C., by and through her next friend, Flo Messier; R.J.A., by and through his next friend, J.A.; Jane Doe, by and through her next friend, Julia Dekovich; A.B., by and through his next friend, J.B.; S.S., by and through his next friend, Marion Damick; G.C., by and through his next friend, Luna Pattela; R.M., by and through his next friend, Flo Messier; P.S., by and through his next friend, M.A.S.; T.S., by and through his next friend, Emily McNally; M.S., by and through his next friend, Emily McNally; and all others similarly situated,
Plaintiffs
v.

Civil Action No. 1:15-cv-02057-SHR CLASS ACTION (Judge Rambo)

Theodore Dallas in his official capacity as Secretary of the Pennsylvania Department of Human Services; Edna I. McCutcheon in her official capacity as the Chief Executive Officer of Norristown State Hospital; Robert Snyder in his official capacity as the Chief Executive Officer of Torrance State Hospital,

Defendants

Settlement Agreement

WHEREAS Plaintiffs and class members they seek to represent (Class A), who are individuals that have been declared incompetent by the courts to stand trial on

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criminal charges and who have been ordered committed to Norristown State Hospital (“NSH”) or Torrance State Hospital (“TSH”) for treatment to help them attain competence, but who instead have remained in jail for more than a week and in some cases for over a year, filed this civil rights class-action lawsuit on October 22, 2015, against officials of the Pennsylvania Department of Human Services (“DHS”), alleging that the delays in transferring them to one of the DHS hospitals for competency-restoration treatment violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134; and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 7941;
WHEREAS Plaintiffs also filed a motion for preliminary injunction seeking an expedited hearing to ask that the court (a) declare that delays exceeding seven days in transferring Plaintiffs and Class A members to the state hospitals for treatment violate the laws identified in the preceding paragraph, and (b) enter a preliminary injunction directing DHS to provide sufficient resources to allow transfer of Class A members to hospitals within seven days;
WHEREAS the court has scheduled a hearing on Plaintiffs’ preliminary injunction motion to begin January 27, 2016;
WHEREAS the parties have exchanged discovery and had an opportunity to examine the merits of each of the parties’ respective claims and defenses;
WHEREAS both Plaintiffs and Defendants desire to reduce the delays in transferring incompetent patients to suitable treatment facilities, which both
1 Plaintiffs also raised claims with respect to a second putative class of incompetent Plaintiffs (Class B) who are committed to NSH or TSH for treatment, whom Defendants have found to be unlikely to become competent or to no longer be making progress toward competency, and who continue to be detained in a forensic unit by Defendants for more than thirty (30) days after the determination that the person is unlikely to become competent. Although the Class B claims are not the subject of the pending preliminary injunction motion, the parties endeavor, through the steps outlined in this Settlement Agreement, to create solutions that will facilitate the timely movement of both Class A and Class B members to appropriate settings. Notwithstanding the foregoing, nothing in this Settlement Agreement is intended to waive or otherwise release Defendants from the claims asserted by Class B members and the named Plaintiffs that seek to represent them. Likewise, Defendants do not, through this Settlement Agreement, concede liability with respect to Class B. The parties agree, however, that the claims of Class B members and named Plaintiffs will not be litigated for at least ninety (90) days.
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Plaintiffs and Defendants acknowledge is a problem that began years ago, has increased recently, and cannot be justified clinically or legally;
WHEREAS the parties have engaged in good faith negotiations in an effort to address the claims raised by this lawsuit; and
WHEREAS the parties believe that a settlement of this litigation now is in the best interests of the Plaintiffs and residents of the Commonwealth, and will enable the parties to work cooperatively, and with other relevant non-Commonwealth government agencies, to reduce the delays in transferring incompetent patients to appropriate placements for treatment to a constitutionally allowable level;
THEREFORE, intending to be bound, the parties hereby agree as follows: 1. Defendants stipulate that there is sufficient evidence to establish that current average wait times of at least sixty (60) days for admission to both NSH and TSH fail to comply with Fourteenth Amendment due process guarantees;
2. Defendants will not oppose Plaintiffs’ motion to certify Class A, as redefined consistent with the maximum allowable wait time, as determined under the process described in paragraph 7.
3. Defendants agree to allocate necessary resources to create new placement options, in addition to and not instead of current placement opportunities, at clinically and legally suitable locations in hospitals or community-based settings, and make those resources available to remove currently incarcerated Class A members from jail and to prevent future Class A members from being detained in jail beyond constitutionally allowable time periods, as follows:
a. Within one hundred and twenty (120) days of this agreement, to create at least sixty (60) new placement options in the Commonwealth;
b. Within ninety (90) days of this agreement, to make available at least $1 million to create supportive housing opportunities in the City of Philadelphia;
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Case 1:15-cv-02057-SHR Document 35 Filed 01/27/16 Page 4 of 7
c. Within one-hundred-eighty (180) days of this agreement, to create at least sixty (60) more new placement options, in addition to those required under subparagraph (a), supra, in the Commonwealth.
4. No so-called “jail-based competency restoration treatment” or “mobile restoration treatment” provided in jails shall count toward the new placement options required by the preceding paragraph. In-jail assessments (i.e., competency evaluations) likewise do not count against DHS’s placement requirements. Defendants shall consider a statewide effort to improve and manage the quality of competency evaluations.
5. Within sixty (60) days, DHS will assess (a) every person currently on a waiting list for admission to NSH or TSH for restoration treatment, and (b) every person currently at NSH and TSH in the forensic unit or a civil unit and under the jurisdiction of a criminal court, to determine which persons would be eligible legally and clinically for less restrictive placement and, if so, what barriers exist to such a change in placement. If the person is not legally eligible presently for less restrictive placement, the assessment shall include an explanation for why the person is not eligible and what it would take to make the person eligible.
6. Defendants agree that over the next sixty (60) days they will work with Plaintiffs’ expert, Dr. Joel Dvoskin, Plaintiffs’ attorneys, and stakeholders identified as necessary or helpful by Defendants to develop a strategic plan for reducing the wait times for admission of Class A members to clinically appropriate competency-restoration-treatment placement options within a constitutionally allowable time period. To facilitate that cooperative effort, Defendants will provide the weekly NSH and TSH wait lists, and other relevant data regarding patient wait times, to Plaintiffs’ counsel. Development of the strategic plan shall include a meeting of Defendants, and any stakeholders Defendants deem necessary, with Plaintiffs’ counsel and Dr. Dvoskin on Monday, February 1, 2015, to discuss (a) needed research and analysis beyond that identified in the preceding paragraph, and (b) necessary elements of the strategic plan. Defendants shall consider, in addition to the funding of new placements identified in paragraph 3, opportunities to divert Class A members from the criminal justice system and to improve efficiencies in existing operations.
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7. Plaintiffs propose that the parties agree to a maximum allowable wait time between the date of court-ordered restoration treatment and transfer to a clinically and legally appropriate treatment placement or release from jail (“maximum allowable wait time”). To date, Defendants have not been willing to negotiate this issue. During the next ninety (90) days, the parties will attempt to negotiate a maximum allowable wait time, which may be incorporated into this Settlement Agreement. If the parties are unable during the ninety (90) days to agree on the maximum allowable wait time, Plaintiffs may at any time thereafter file a motion asking the Court to issue a declaratory judgment, preliminary injunction or final injunction setting the maximum allowable wait time and a deadline for Defendants to reduce waitlist times to that level as a remedy for the constitutional violations alleged in the Complaint.
8. The parties agree, with the concurrence of the presiding judge, to postpone the impending preliminary injunction hearing for at least ninety (90) days, during which time the parties will cooperate to develop the strategic plan identified in paragraph 6, and the terms of the Settlement Agreement described in the preceding paragraph. Counsel for the parties will notify the presiding judge at least one week before the rescheduled hearing date whether a hearing will be needed.
9. The provisions of this Settlement Agreement will be subject to enforcement through specific performance after Plaintiffs provide Defendants with thirtyday written notice and an opportunity to cure. Plaintiffs do not waive any rights or remedies, and Defendants do not waive any defenses unless expressly stated herein.
10.Defendants agree to pay Plaintiffs’ reasonable costs and reasonable attorneys’ fees, adjusted to Middle District of Pennsylvania rates, incurred to date. The parties will attempt to negotiate reasonable costs and fees, but if they cannot agree to a negotiated figure, Plaintiffs may submit a petition for decision by the presiding judge, who may in the first instance refer the matter for mediation.
11.Defendants also agree to pay (a) reasonable costs and consulting fees for time incurred by Dr. Joel Dvoskin from the date of this agreement in
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consulting with the parties on development and execution of the strategic plan or the requirements of this Settlement Agreement; and (b) Plaintiffs’ reasonable attorneys’ fees from the date of this agreement, to be billed at no higher than a $350 hourly rate, not to exceed a total amount of $100,000 during any twelve-month period, for monitoring the Settlement Agreement. Subparagraph (b) does not apply if Plaintiffs move to enforce the Settlement Agreement or for a declaratory judgment or a preliminary or final injunction, or specific performance, at which point the usual Middle District Court rates will apply and fees will be resolved in accordance with paragraph 10.
12.The court shall retain jurisdiction over this matter, including the power and authority to enforce this Settlement Agreement and subsequent Settlement Agreements adopted by the parties, for three (3) years from this date. Either party may petition the Court to shorten or lengthen the time for good cause.

For Defendants
By: /s/ Doris M Leisch Doris M. Leisch Chief Counsel PA Attorney I.D. No. 42375 Department of Human Services Office of General Counsel 7th and Forster Streets Harrisburg, PA 17120 dleisch@pa.gov 717-783-2800

For Plaintiffs
By: /s/ Witold J. Walczak Witold J. Walczak PA Attorney I.D. No. 62976 AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 247 Fort Pitt Blvd. Pittsburgh, PA 15222 412-681-7864
By: /s/ David P. Gersch David P. Gersch ARNOLD & PORTER LLP 601 Massachusetts Ave., N.W. Washington, D.C. 20001 (202) 942-5000

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 Case 1:15-cv-02057-SHR Document 59 Filed 06/15/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J .H., by and through his next friend, Flo Messier; L.C., by and through her next friend, Flo Messier; R.J.A., by and through his next friend, J.A.; Jane Doe, by and through her next friend Julia Dekovich; S.S., by and through his next friend, Marion Damick; G.C., by and through his next friend, Luna Pattela; R.M., by and through his next friend, Flo Messier; P.S., by and through his next friend M.A.S.; T.S., by and through his next friend Emily McNally; M.S., by and through his next friend Emily McNally; and all others similarly situated,

1
JLJN 1 5 2017
Civil Action No. 1:15-cv-02057-SHR Judge Sylvia H. Rambo

Plaintiffs
v.

Theodore Dallas in his official capacity as Secretary of the Pennsylvania Department of Human Services; Edna I. McCutcheon in her official capacity as the Chief Executive Officer of Norristown State Hospital; Robert Snyder in his official capacity as the Chief Executive Officer of Torrance State Hospital,

Defendants

SECOND INTERIM SETTLEMENT AGREEMENT

WHEREAS Plaintiffs, individuals who have been declared incompetent by the courts to stand trial on criminal charges and who have been ordered committed to Norristown State Hospital ("NSH") or Torrance State Hospital ("TSH") for

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Case 1:15-cv-02057-SHR Document 59 Filed 06/15/17 Page 2 of 6
treatment to help them attain competence, but who instead have remained in jail for extended lengths of time and in some cases for over a year, filed this civil rights class-action lawsuit on October 22, 2015 (see ECF No. 1), against officials of the Pennsylvania Department of Ruman Services ("DRS"), alleging that the delays in transferring them to one of the DRS hospitals for competency-restoration treatment violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134; and Section 504 ofthe Rehabilitation Act ("RA"), 29 U.S.C. § 794;
WHEREAS the parties resolved Plaintiffs' Motion for Preliminary Injunction (ECF No.4) by entering into an interim Settlement Agreement on January 27, 2016, to undertake actions designed to reduce the length of the wait lists and wait times of persons declared incompetent and awaiting treatment, i.e., Class A members (ECF No. 35);
WHEREAS DRS stipulated in the interim Settlement Agreement that there is sufficient evidence to establish that wait times of at least 60 days fail to comply with Fourteenth Amendment due process guarantees (ECF No. 35 at~ 1), and some federal courts have held that even wait times less than 30 days are unconstitutional;
WHEREAS since February 20 16, the Defendants have invested resources to create 120 new slots for treatment in the community; 377 patients have been discharged from NSR and TSR; and 348 individuals have removed from the wait lists before admission to the hospitals, but the wait lists nonetheless have grown from 216 people awaiting treatment at the time of the interim Settlement Agreement on January 29, 2016, to 256 awaiting treatment on May 26, 2017;
WHEREAS, by way of example, of the 41 patients admitted from jails into NSR on the waiting lists dated from January 6 through May 26, 2017, 25 patients waited more than 300 days, and of those 25 patients, 17 waited at least 400 days, 5 waited over 500 days, 2 waited more than 600 days, and one waited over 788 days in jail before being admitted to NSR. As of May 26, 2017, 36 individuals awaiting admission to NSR have been waiting over 300 days, of whom 6 have been waiting more than 400 days;
WHEREAS, by way of example, of the 74 patients admitted from jails into TSR on the waiting lists dated from January 6 through May 26, 2017, 64 waited 30 days
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or more, 51 of whom waited 90 days or more. As of May 26, 2017, 17 individuals awaiting admission to TSH have been waiting more than 60 days, 4 of whom have been waiting more than 100 days;
WHEREAS Plaintiffs have discussed with Defendants the reasons for the lack of progress under the interim Settlement Agreement in reducing the number of patients on the wait lists and the wait times since September 20 16;
WHEREAS on May 11, 2017, Plaintiffs renewed and amended their original motion for preliminary injunction, initially filed on October 22, 2015 (compare ECF Nos. 4 and 9 with ECF Nos. 40 and 45);
WHEREAS the parties recognize that the protracted wait times serve neither the interests ofjustice nor the clinical needs of Class A members and that a comprehensive evaluation of the competency-restoration system and additional actions are currently needed to make progress toward permanently reducing wait lists and wait times to a constitutionally acceptable level;
THEREFORE, intending to be bound, the parties hereby agree as follows:
1. Defendants will hire the independent consultant identified by Plaintiffs in the agreement letter attached hereto as Exhibit "A." The consultants will, as more fully set forth in Exhibit A:
a. conduct a thorough assessment ofDHS's competency-restoration systems and processes, which will include a review of the individuals awaiting competency restoration treatment, the forensic population currently in treatment, competency restorations completed in 2016, the resources and processes in use and available to DHS, and the role of other stakeholders in the forensic criminal justice system; and
b. produce a report that will identify a strategy and recommend tangible actions to reduce wait times for competency restoration treatment to constitutionally acceptable limits;
2. Defendants will make available the following resources, above those originally specified in the interim Settlement Agreement, to competencyrestoration patients awaiting treatment within the time frames specified:
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Case 1:15-cv-02057-SHR Document 59 Filed 06/15/17 Page 4 of 6
a. Within six months, a new "minimum security" unit consisting of 50 new forensic beds at NSH, which will be comprised of a combination of 28 brand new beds and 22 beds in existing civil units that will be converted for forensic use;
b. Within six months, DHS expects that an additional29 DRS-funded treatment slots will become available in the community, comprised of 7 in Allegheny County (targeted for completion by September 2017), an additional 12 thereafter in Allegheny County, and 10 in Philadelphia; and
c. Within 9 months, at least 30 civil beds at NSH (in addition to those identified in subparagraph 2a, supra), which are currently occupied by civilly committed patients who will move to the community as specified in their Community Service Plans, will be converted into forensic beds, provided, however, that no patient who is currently in a civil bed will move to the community only to comply with this subparagraph if the community services have not yet been developed for that patient.
3. Defendants will implement the strategy identified in the independent consultant's final report to reduce wait times to a constitutionally acceptable level, unless, within 14 days of receiving the consultant's final report, Defendants submit to Plaintiffs a detailed, written description of why one or more action items recommended in the report are not achievable or warranted, and will propose alternative actions or explain why the action is unnecessary. If the parties are unable to agree within 30 days, Plaintiffs may at any time thereafter file a motion asking the Court to issue a preliminary or final injunction to enjoin DHS to take such steps as the Court determines necessary and appropriate to reduce wait times to a constitutionally acceptable level. DHS may assert all available defenses to Plaintiffs' motion.
4. Upon receipt of the final report, the parties will attempt to reach agreement on a maximum allowable wait time, an outstanding legal issue the parties reserved in the interim Settlement Agreement and which the parties reserve once again. If the parties are unable to agree upon a maximum allowable wait time after the consultant issues the final report, Plaintiffs retain their right from the interim Settlement Agreement to file a motion asking the Court to issue a declaratory judgment, preliminary injunction, or final
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injunction setting the maximum allowable wait time and a deadline for Defendants to reduce wait times to that level as a remedy for the constitutional violations alleged in the Complaint.
5. This Second Interim Settlement Agreement resolves all issues outstanding in Plaintiffs' Motion to Renew and Amend Motion for Preliminary Injunction (ECF No. 40), except for the issues reserved in paragraph 4, supra.
6. This Second Interim Settlement Agreement does not negate or nullify any provision of, or obligation imposed on DHS contained by, the interim Settlement Agreement, which remains fully enforceable by this Court as specified in that Agreement.
7. Defendants agree to pay Plaintiffs' reasonable attorneys' fees, adjusted to Middle District of Pennsylvania rates, and costs incurred in the prosecution of Plaintiffs' Motion to Renew and Amend Motion for Preliminary Injunction (ECF 40) since May 5, 2016. If the parties are unable to agree to a negotiated amount of attorneys' fees and costs, Plaintiffs may submit a petition for decision by the presiding judge, who may in the first instance refer the matter for mediation.
8. In addition to Defendants' obligations under~ 11 of the interim Settlement Agreement, Defendants also agree to pay (a) reasonable costs and consulting fees for time incurred by Dr. Joel Dvoskin, up to $15,000 total, from the date of this agreement in consulting with the parties and independent consultant hired under paragraph 1 to facilitate the assessment and development of the consultant's final report or the requirements of this Second Interim Settlement Agreement, or both; and (b) Plaintiffs' reasonable attorneys' fees from the date of this agreement, to be billed at no higher than a $350 hourly rate, not to exceed a total of $100,000 during any twelve-month period, for monitoring the Second Interim Settlement Agreement. Subparagraph (b) does not apply if Plaintiffs move to enforce either the first or second interim Settlement Agreement or·move for a declaratory judgment or preliminary or final injunction, at which point the usual Middle District Court rates will apply and fees will be resolved in accordance with paragraph 7.
9. The provisions of this Settlement Agreement will be subject to enforcement through specific performance after Plaintiffs provide Defendants with thirtydays written notice and an opportunity to cure. Plaintiffs do not waive any
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Case 1:15-cv-02057-SHR Document 59 Filed 06/15/17 Page 6 of 6

available rights or remedies in the event Defendants fail to comply with an order for specific performance, and Defendants do not waive any defenses.
lO.The parties will ask the Court to dismiss Plaintiffs' pending motion for preliminary injunction (ECF 40) as moot. This Court will retain jurisdiction, including the power and authority to enforce this Settlement Agreement and subsequent Settlement Agreements adopted by the parties, for 3 years from the date the Court approves the Agreement. Either party may petition the Court to shorten or lengthen the time for good cause.

For Defendants
By: Is/ Doris M Leisch Doris M. Leisch Chief Counsel PA Attorney I.D. No. 42375 Matthew J. McLees Chief of Litigation PA Attorney I.D. No. 71592 Department of Human Services Office of General Counsel 7th &Forster Streets Harrisburg, PA 17120 717-783-2800

For Plaintiffs
By: Is/ Witold J. Walczak Witold J. Walczak PA Attorney I.D. No. 62976 AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 247 Fort Pitt Blvd. Pittsburgh, PA 15222 412-681-7864
By: /s/ David P. Gersch David P. Gersch ARNOLD & PORTER LLP 601 Massachusetts Ave., N.W. Washington, D.C. 20001 202-942-5000

Approved by the Court on this / r 1£-ay of 4: 14 ~ , 2017: /
Hon. S via H. Rambo, Senior U.S.D.J.
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 Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo Messier; L.C., by and through her next friend, Flo Messier; R.J.A., by and through his next friend, J.A.; Jane Doe, by and through her next friend Julia Dekovich; S.S., by and through his next friend, Marion Damick; G.C., by and through his next friend, Luna Pattela; R.M., by and through his next friend, Flo Messier; P.S., by and through his next friend M.A.S.; T.S., by and through his next friend Emily McNally; M.S., by and through his next friend Emily McNally; and all others similarly situated;

Civil Action No. 1:15-cv-02057-SHR Judge Sylvia H. Rambo

Plaintiffs, v.

Teresa D. Miller, in her official capacity as Secretary of the Pennsylvania Department of Human Services; Edna I. McCutcheon, in her official capacity as the Chief Executive Officer of Norristown State Hospital; Valerie Vicari, in her official capacity as the Chief Executive Officer of Torrance State Hospital;

Defendants.

PLAINTIFFS’ SECOND RENEWED AND AMENDED MOTION FOR PRELIMINARY INJUNCTION

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Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 2 of 10
Pursuant to Federal Rule of Civil Procedure 65 and the Second Interim Settlement, ECF 59 ¶¶ 4 and 10, Plaintiffs move to renew their initial motion for a preliminary injunction against Defendants in their official capacities (ECF 4) and to amend that motion. Plaintiffs state as follows:
1. Plaintiffs are individuals who have been declared incompetent by the courts to stand trial for criminal charges. They have been committed to Norristown State Hospital (“NSH”) and Torrance State Hospital (“TSH”) in an effort to restore their competence. Instead, however, they have been left to languish in jail, in many cases for over a year. Plaintiffs renew and amend their initial preliminary injunction motion for a maximum wait time of seven days and other relief on behalf of themselves and a class of similarly situated persons.
2. There is no dispute that Plaintiffs and putative class members are not competent to stand trial. A Common Pleas Court judge has so found in each of their cases. There is also no dispute that Plaintiffs are entitled to mental health treatment to try to make them competent. A court also has so held in each of their cases.
3. Despite some improvement since the last settlement agreement in June 2017, the delays challenged in this case remain unconstitutional. Defendants stipulated in the First Interim Settlement that wait times over 60 days are unconstitutional. ECF 35 ¶ 1. As of March 8, 2019, 45 people on the
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Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 3 of 10
NSH waitlist had already been waiting more than 60 days. One person has been waiting for admission for 297 days. Thirteen people on the NSH list have waited for more than four months, with another seventeen already waiting more than three months. And although TSH wait times are down to between one and two months, these delays are unconstitutional as well. Federal courts have held that the Due Process Clause of the Fourteenth Amendment requires that persons incompetent to stand trial be transferred to a hospital to receive restoration treatment within seven days. Oregon Advocacy Ctr. v. Mink, No. CV 02-339PA, 2002 WL 35578888, at *1 (D. Or. May 15, 2002), aff’d, 322 F.3d 1101 (9th Cir. 2003); Trueblood v. Wash. State Dep’t of Soc. and Health Servs., 101 F. Supp. 3d 1010, 1023 (W.D. Wash. 2015) (seven days absent individualized good cause finding), vacated and remanded on other grounds, 822 F.3d 1037 (9th Cir. 2016).
4. Plaintiffs and the class they seek to represent are entitled to a preliminary injunction because: (1) they are likely to succeed on the merits; (2) they will suffer irreparable harm in the absence of the injunction; (3) there will be no greater harm to DHS if the injunction is granted; and (4) granting the injunction is in the public interest. Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106, 115 (3d Cir. 2018).
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5. Plaintiffs are likely to prevail on the merits on two independent grounds:
6. First, “it is well-established that the extended imprisonment of pretrial detainees when they have been ordered to receive [mental health] services violates the Constitution.” Geness v. Cox, 902 F.3d 344 (3d Cir. 2018). The Fourteenth Amendment’s Due Process Clause requires a reasonable relation between detention and the purpose for which the individual is detained, see Jackson v. Indiana, 406 U.S. 715, 738 (1972), and the excessive wait times in this case lack such a reasonable relation. See, e.g., Advocacy Ctr. for Elderly and Disabled v. Louisiana Dep’t of Health and Hosps., 731 F. Supp. 2d 603 (E.D. La. 2010) (entering injunction under circumstances similar to those in this case) (hereinafter “Louisiana Advocacy Ctr.”); Mink, 322 F.3d 1101 (affirming injunction under similar circumstances); Trueblood, 101 F. Supp. 3d at 1023 (ordering injunction under similar circumstances); Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002) (finding due process violations under similar circumstances).
7. Second, Defendants are breaching their separate constitutional duty of due process to protect the safety and welfare of the Class A Members,1 whom
1 Plaintiffs pled this action on behalf of two classes, Class A and Class B. Class A is defined as:
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Defendants are holding involuntarily and preventing from being able to help themselves. See DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 189, 195 (1989); Youngberg v. Romeo, 457 U.S. 307, 313, 317 (1982).
8. Plaintiffs will suffer irreparable harm absent a preliminary injunction. While they are jailed awaiting treatment, Plaintiffs are deprived of a constitutionally protected interest in their liberty. This is classic irreparable harm that cannot be remedied after the fact. See United States v. Washington, 549 F.3d 905, 917 & n.17 (3d Cir. 2008) (noting that the “potential for excess prison time” is irreparable harm); United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988) (“[U]nnecessary deprivation of liberty clearly constitutes irreparable harm.”). Moreover, the denial of medical and competencyrestoration treatment is a harm that cannot be addressed following trial. As the Supreme Court held in DeShaney, the state’s affirmative act of incarcerating a defendant, which prevents his obtaining treatment on his own, “is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.” 489 U.S. at 200.
All persons who are now, or will be in the future, charged with a crime in the State of Pennsylvania, and who: (a) are adjudged by a court to be mentally incompetent to stand trial; (b) are committed to Defendants for competency restoration treatment; and (c) have not been admitted by Defendants for such treatment within seven (7) days of the date of the court’s commitment order. See Complaint, Docket No. 1, ¶ 181. Class B plaintiffs are those who have already been committed to state hospitals, but are trapped there indefinitely. Id., ¶ 193. Class B plaintiffs are not at issue in this motion.
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9. There will be no greater harm to Defendants if the preliminary injunction is granted. Defendants’ interest is in making Plaintiffs competent. Defendants cannot advance a legitimate interest in continuing to violate Plaintiffs’ constitutional rights, especially when doing so delays Plaintiffs’ access to treatment and thus prevents or postpones them from becoming competent. See New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 388-89 (3d Cir. 2012) (“Granting the preliminary injunction would not result in a greater harm to the State because the State ‘does not have an interest in the enforcement of an unconstitutional law[.]’”) (quoting Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003))). And avoiding expense is not a cognizable defense to the failure to provide mental health treatment to the incarcerated Plaintiffs. See Louisiana Advocacy Ctr., 731 F. Supp. 2d at 624 (“[L]ack of funding cannot justify the continued detention of defendants who have not been convicted of any crime, who are not awaiting trial, and who are receiving next to no mental-health services.”); Mink, 322 F.3d at 1121 (“Lack of funds, staff or facilities cannot justify the State’s failure to provide . . . treatment necessary for rehabilitation.” (internal quotation marks and citation omitted)); Terry, 232 F. Supp. 2d at 944 (same); see also Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 351 (3d Cir. 1987) (county’s financial burden not legitimate state interest to justify violating prisoners’ rights: “in the absence of
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alternative methods of funding, the County must assume the cost of providing inmates with elective, nontherapeutic abortions”).
10. Finally, the public interest weighs in favor of issuing a preliminary injunction. Absent “legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights.” Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997). The public interest will be served by protecting Plaintiffs’ individual rights and by treating Plaintiffs so that they can be restored to competency and stand trial.
11. Defendants have had ample opportunity to address the unconstitutional wait times. Unfortunately, they have failed to do so.
12. The bases for Plaintiffs’ Motion are more fully set forth in the accompanying brief.
WHEREFORE, for all the reasons set forth in the Brief in Support of Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction, Plaintiffs respectfully request that their Second Amended Motion for Preliminary Injunction be granted.

Dated: March 19, 2019

Respectfully submitted,
/s/ Witold J. Walczak
Witold J. Walczak Bar No. PA 62976
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Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 8 of 10
AMERICAN CIVIL LIBERTIES UNION 247 Fort Pitt. Blvd. Pittsburgh, PA 15222 Telephone: (412) 681-7864 Facsimile: (412) 681-8707 David P. Gersch Bar No. DC 367-469 ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001 Telephone: (202) 942-5125 Facsimile: (202) 942-5999
8

Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 9 of 10
CERTIFICATE OF NON-CONCURRENCE I, Witold J. Walczak, hereby certify on this 19th day of March that counsel for the Defendant was contacted regarding Defendants’ possible concurrence with this Motion. In response, counsel for Defendants indicated non-concurrence with this Motion.
/s/ Witold J. Walczak
Witold J. Walczak
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Case 1:15-cv-02057-SHR Document 67 Filed 03/19/19 Page 10 of 10
CERTIFICATE OF SERVICE I hereby certify that on this 19th day of March, 2019, a copy of the foregoing motion was served, via electronic mail, on Defendants’ counsel, Doris Leisch, at dleisch@pa.gov.
/s/ Witold J. Walczak
Witold J. Walczak
10

 
 Case 1:15-cv-02057-SHR Document 78 Filed 04/23/19 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo

Messier; L.C., by and through her next

friend, Flo Messier; R.J.A., by and

through his next friend, J.A.; Jane Doe, by

and through her next friend, Julia

Dekovich; S.S., by and through his next

friend, Marion Damick; G.C., by and

through his next friend, Luna Pattela;

R.M., by and through his next friend, Flo

Messier; P.S., by and through his next

friend, M.A.S.; T.S., by and through his

next friend, Emily McNally; M.S., by and through his next friend, Emily McNally;

Civil Action No. 1:15-cv-02057-SHR

and all others similarly situated,

Judge Sylvia H. Rambo

Plaintiffs

v.

Teresa D. Miller in her official capacity as Secretary of the Pennsylvania Department of Human Services; Jessica Keith in her official capacity as the Chief Executive Officer of Norristown State Hospital; Stacey Keilman in her official capacity as the Acting Chief Executive Officer of Torrance State Hospital,

Defendants

BRIEF IN OPPOSITION TO PLAINTIFFS’ SECOND RENEWED AND ______AMENDED MOTION FOR PRELIMINARY INJUNCTION_____

Case 1:15-cv-02057-SHR Document 78 Filed 04/23/19 Page 2 of 23
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION .....................................................................................................1 COUNTER-STATEMENT OF THE CASE .............................................................3 ARGUMENT ...........................................................................................................10
PLAINTIFFS HAVE NOT MET THE HEIGHTENED BURDEN NECESSARY TO PREVAIL ON THEIR MOTION. ...................................10 A. Plaintiffs Have Not Satisfied All Four Criteria Necessary for a
Preliminary Injunction ...............................................................................11 B. Plaintiffs’ Requested Relief Is Not Equitable............................................13 CONCLUSION ........................................................................................................18
ii

Case 1:15-cv-02057-SHR Document 78 Filed 04/23/19 Page 3 of 23

Cases

TABLE OF AUTHORITIES

Advocacy Ctr. for the Elderly & Disabled v. La. Dep’t of Health & Hosps., 731 F. Supp. 2d 603 (E.D. La. 2010) ...................................................................17

Am. Freedom Defense Initiative v. Southeastern Pa. Transp. Auth., 92 F. Supp. 3d 314 (E.D. Pa. 2015)......................................................................10

AT&T v. Winback Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994).............10

Brian B. v. Dep’t of Educ., 230 F.3d 582 (3d Cir. 2000) ........................................10

Communist Party v. Whitcomb, 409 U.S. 1235 (1972)...........................................11

Gerardi v. Pelullo, 16 F.3d 1363 (3d Cir. 1994)......................................................10

Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989).......10

Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ....................................16

S.I. Handling Sys., Inc. v. Heisley, 753 F.2d 1244 (3d Cir. 1985)..........................10

Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131 (3d Cir. 2013) ...11

Trueblood v. Wash. Dep’t of Soc. & Health Servs., No. C14-1178-MJP, 2016 WL 4268933 (W.D. Wash. Aug. 15, 2016) ................................................15

Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010 (W.D. Wash. 2015) ...........................................................14

Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 822 F.3d 1037 (9th. Cir. 2016) .....................................................................................................14

Winter v. Natural Res. Defense Council, 555 U.S. 7 (2008)...................................14

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INTRODUCTION From the outset of this litigation, the Department of Human Services (“Department”) has shown its commitment, with demonstrable results, to constitutional wait times for individuals declared incompetent to stand trial on criminal charges and who need competency restoration treatment. Since January 2016, when this Court approved the First Settlement Agreement that the parties negotiated, the Department has infused unprecedented financial and other resources into the forensic system in Pennsylvania. The Department has opened 100 new inpatient and 75 new institutional “step-down” beds. It has invested close to $64 million to develop 463 new community treatment and supported housing slots, more than 370 of which are in operation, with the remainder under active development. The actions that the Department has taken to transform the forensic system have resulted in dramatic reductions in the wait lists since this lawsuit was filed. In November 2015, more than 200 persons were waiting to be admitted to Norristown State Hospital (“NSH”) or Torrance State Hospital (“TSH”), and the average wait time for NSH was 114 days and for TSH was 30 days from the date the hospitals received the full referral. As of March 29, 2018, 56 persons were waiting to be admitted to NSH an average of 44 days from the date of the court commitment order, and 24 individuals were waiting for admission to TSH an

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average of 29.5 days from the date of the court order. From January 2016 to March 29, 2019, the hospitals admitted 1,116 patients to the forensic units and discharged 1,058 patients from the forensic units. An additional 911 persons were removed from the wait lists before being admitted to the forensic units, after it was determined that they did not need an inpatient level of care.
From the outset of this litigation, the parties have agreed that the delays in admission to state hospitals for competency restoration treatment are unacceptable. Recognizing that the forensic system needed a major overhaul, the parties have entered into two settlement agreements and were in the process of negotiating a third when Plaintiffs renewed their request for preliminary injunctive relief.1 Notwithstanding the commitment reflected in the Department’s extensive actions and the results of those actions, Plaintiffs have chosen to disregard the systemic issues identified by their independent consultant and ask this Court to impose a remedy that will not resolve those systemic issues.
The Department agrees that more work is needed to reduce the wait times to constitutionally acceptable levels. Plaintiffs’ requested relief is not, however, required by the Constitution and ignores the practicable impediments that would make the requested remedy impossible to achieve. Their motion should be denied.
1 The parties have continued their negotiations since Plaintiffs filed their motion and remain hopeful that they will reach agreement to resolve the motion.
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COUNTER-STATEMENT OF THE CASE2 The Forensic Mental Health System in Pennsylvania
Admission to a state psychiatric hospital begins with a court order committing an individual for competency restoration treatment. The county courts of common pleas have the authority to declare an individual incompetent to stand trial, commit the individual to the Department for restoration treatment, and order transfer of the individual to and from the state hospitals. Some counties utilize their own evaluators to conduct a court-ordered competency evaluation, whereas others utilize the Department’s contracted evaluators. When the evaluation is completed with a clinical finding of incompetent to stand trial, the court issues an order declaring that the individual is incompetent to stand trial and a subsequent order for competency restoration services.
After the commitment order is issued, the process to transfer the individual to the state’s forensic units at NSH and TSH begins. Multiple documents are needed before someone can be admitted to the hospitals: 1) court order; 2) completed referral form; 3) affidavit of probable cause, criminal complaint, or arrest record; 4) all prior evaluations; 5) assessment screens; 6) medication administration record; 7) progress notes; and 8) current treatment plan. See
2 The facts in the Introduction and in the Counter-Statement of the Case are supported by the Declaration of Philip E. Mader, attached hereto as Exhibit “A.”
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Bulletin OMHSAS-16-10, attached hereto as Exhibit “B,” Attachment 5. Each of these documents is necessary for the Department to provide a safe and therapeutic environment for both the individual and staff.
After the hospital receives all the information, it contacts the county to schedule transfer of the individual to the designated forensic unit. The respective county’s sheriff transports the individual to the designated facility.
After the Department’s clinicians determine that a person is clinically ready for disposition, either because he or she has regained competency, or because he or she is unlikely to regain competency, the hospital formally notifies the county court. Depending on the response to the clinician’s report, the court may recommit the individual for additional restoration services, may issue an order to transfer the individual back for disposition of the criminal charges, or may order transfer or discharge to an alternate setting. If the person is to return to the county jail, the county’s sheriff is responsible for transporting the individual. The Department’s Actions to Transform the Forensic System
Since the First Settlement Agreement, the Department continues to engage the system statewide and has materially complied with its agreements with Plaintiffs. In accordance with the First Settlement Agreement, NSH and TSH assessed individuals on the wait lists, and in the forensic and civil units. These assessments addressed the clinical and legal obstacles for each individual. The
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Department also funded 120 new community treatment slots to be created in the counties to expand treatment opportunities and provided funding for 100 supported housing slots in Philadelphia to assist individuals to move through the continuum of care.
Although the First Settlement Agreement required the Department to fund 120 new community slots plus the 100 supported housing slots, the Department continued to fund and work on adding community treatment slots into the system. The Department continued to receive and approve county proposals for the creation of slots, beyond those required by the First Settlement Agreement. The Department also collaborated with Plaintiffs’ expert, Joel Dvoskin, and created an action plan that outlined steps to reduce the wait list and wait times.
In addition to completing assessments and funding new community treatment slots, the Department made operational changes and engaged the forensic system on a local level. The Department revised its bulletin, OMHSAS-16-10, updating the procedures pertaining to referrals, admissions, transfers, and level of care. See Exhibit “B.” The bulletin clarified the information to be provided for each individual referred to the forensic units and specified the information needed for an expedited commitment. The Department also established county review teams in both Allegheny and Philadelphia counties. These teams consist of members from the county prosecutor’s office, public defender, county mental
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health administrators, and staff from NSH or TSH. The teams meet to discuss the status of the individuals in the forensic units, as well as individuals on the wait lists. The goal is to identify individuals who can be diverted from admission to or be discharged from the forensic units at NSH or TSH. The Department meets with county judges to discuss other placement options for those individuals who could be served in less restrictive settings.
Despite the extensive actions undertaken by the Department during 20162017, the wait lists and the wait times remained high. Specifically, the wait list grew from 206 people awaiting treatment on January 29, 2016, to 256 individuals awaiting treatment on May 26, 2017, and the average wait times for persons on the wait lists were 145 days at NSH and 50 days at TSH, for a combined average wait time of 142 days.
Because of the lack of progress in reducing the wait lists and wait times despite the Department’s unprecedented investment of financial and personnel resources, Plaintiffs filed a renewed and amended motion for preliminary injunction on May 11, 2017. See ECF 40. Soon thereafter, Plaintiffs and the Department entered into a Second Settlement Agreement, which this Court approved. See ECF 59. Once again, the Department agreed to take actions that the parties believed would reduce wait times to constitutional levels. Id.
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The Department has created three step-down units with a total of 75 beds on the NSH campus, which added a less-restrictive treatment setting to prepare patients for an eventual move into the community. The first step-down unit with 25 beds opened in September 2016, and the second unit with an additional 25 beds opened in February 2017. The remaining step-down beds were converted from civil beds as those beds became available. The Department continues to convert civil beds to this use as beds become unoccupied and available.
Prior to entering into the Second Settlement Agreement, the Department engaged in a Six Sigma process to identify inefficiencies within the system, and streamline the process for commitments, diversions, and discharges at NSH. The outcomes, while statewide, focused on Philadelphia in light of the monthly number of commitments referred from that county. Philadelphia and Delaware counties participated and provided input in how system functionality could be improved, such as template language for court orders that all counties would use.
Even though the Department completed the Six Sigma process, the Department agreed to engage an independent consultant, Public Research Associates (“PRA”), recommended by Plaintiffs. The Department welcomed input from the independent consultant, since the criteria it would analyze extended beyond Defendants’ locus of control. PRA ultimately identified eleven Recommendations. See Exhibit “A” to Brief in Support of Plaintiffs’ Second
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Renewed and Amended Motion for Preliminary Injunction (“PRA Report”). Only one of those recommendations identified a requirement that the Department create more institutional forensic beds, which the Department had already planned to do at the time PRA issued its report. Id. at 13.
The remaining PRA Recommendations identified issues within the system at the local level. PRA proposed to address several issues within the forensic system ranging from creation of community-based outpatient competency restoration programs, to reviews of individuals in treatment at NSH or TSH for one year, to creation of community treatment opportunities for individuals unlikely to regain competency. Id. at 4, 7. The Department accepted each of the Recommendations.
The Department’s actions began to produce positive results: both the number of individuals on the wait lists and the combined wait times for individuals on the wait lists decreased. Specifically, on June 1, 2018, 183 individuals were waiting for admission to the hospitals an average of 94 days. Of those 183 individuals, 129 individuals were waiting for admission to NSH for an average of 105 days and 54 individuals were waiting for admission to TSH for an average of 67 days.
In March 2018, Plaintiffs acknowledged the positive developments but expressed concern that the progress may not continue. See Email from Witold Walczak, Exhibit “C” to Brief in Support of Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction. Counsel requested additional
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commitments from the Department to reduce wait times. Id. In response, the parties engaged in discussions to develop additional commitments from the Department to reduce wait times to a constitutional level. The Department committed to take the following actions:
• By March 31, 2019, make available resources to fund and operationalize at least 125 new treatment slots for class members in addition to those originally specified in the First Agreement and Second Agreement;
• By March 31, 2019, reduce the number of class members on the joint NSH and TSH wait lists to fewer than 90 individuals;
• By March 31, 2019, reduce wait times to no longer than 90 days for any class member on the wait list for NSH, and no longer than 60 days for any class member on the wait list for TSH; and
• By September 30, 2019, reduce wait times for every class member on the wait lists to no longer than 21 days. Over the last few months, the Department has achieved significant and
consistent reductions in the number of individuals on the wait lists and the wait times those individuals are experiencing. Specifically, from June 1, 2018, to March 29, 2019, the number of individuals on the wait list decreased from 183 to 76, and the average number of days that individuals were on the wait list from the date of court order was 44 days for NSH and 29.5 days for TSH, for a combined average wait time of 39.7 days. The average wait times from the date the hospitals received the county referrals to the admission date was 30 days for NSH and 14.5 days for TSH, for a combined average wait time of close to 25 days. The
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Department remains committed to reduce wait times for every individual on the wait list to 21 days by September 30, 2019, and is undertaking actions that are commensurate with that commitment.
ARGUMENT PLAINTIFFS HAVE NOT MET THE HEIGHTENED BURDEN
NECESSARY TO PREVAIL ON THEIR MOTION. A preliminary injunction is an extraordinary remedy, which should not be granted lightly. See, e.g., Am. Freedom Defense Initiative v. Southeastern Pa. Transp. Auth., 92 F. Supp. 3d 314, 322 (E.D. Pa. 2015) (citing Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). A preliminary injunction should be granted only when it can be restricted to specific, limited circumstances. Am. Freedom Defense Initiative, 92 F. Supp. 3d at 322 (citing AT&T v. Winback Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). To succeed on their claim for injunctive relief, Plaintiffs must demonstrate that they have a reasonable probability of success on the merits of their claim; that they will suffer irreparable harm if the court denies their motion; that no other party will suffer serious harm if the court issues the injunction; and that preliminary relief will serve the public interest. See, e.g., Brian B. v. Dep’t of Educ., 230 F.3d 582, 585 (3d Cir. 2000); Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994); S.I. Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985).
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Plaintiffs carry an even heavier burden here because they request relief that extends beyond merely preserving the status quo. Instead, Plaintiffs request this Court to order relief that requires admission to the forensic units of NSH and TSH within seven days of the court committing the individual to the hospital. “[W]hen mandatory injunctive relief is sought, ‘the burden on the moving party is particularly heavy.’” Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131, 139 (3d Cir. 2013) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980)). “Indeed, the moving party’s ‘right to relief must be indisputably clear.’” Id. (quoting Communist Party v. Whitcomb, 409 U.S. 1235, 1235 (1972)). Mandatory injunctive relief is an extraordinary remedy that is granted only sparingly by the courts. Id. (citing Communist Party, 409 U.S. at 1235). Courts should weigh the possible harm to other interested parties when reviewing a plaintiff’s request for mandatory relief. Punnett, 621 F.2d at 587–88. The moving party’s “right to relief must be indisputably clear” to grant the mandatory relief. Trinity Indus., 735 F.3d at 139 (citing Communist Party, 409 U.S. at 1235).
A. Plaintiffs Have Not Satisfied All Four Criteria Necessary for a Preliminary Injunction._________________________________
Before a court issues a preliminary injunction for mandatory relief, it is particularly appropriate to consider the possible harm to the other parties, not just the moving party. See Punnett, 621 F.2d at 587-88. The Department will be subject to harm, and preliminary relief will not serve the public interest because the
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issuance of a preliminary injunction with Plaintiffs’ requested relief will subject the Department to sanctions for actions or inactions that are outside its control.
When the First Settlement Agreement did not alleviate the forensic wait list issues, the Department accepted Plaintiffs’ recommendation to engage PRA to conduct a system-wide evaluation of the forensic mental health system and issue a report. See ECF No. 59 at ¶ 1. The PRA Report identified county-level barriers outside the Department’s control that significantly contribute to the forensic wait list issues. See PRA Report at 13. The PRA Report identified that out of a sample size of 97 individuals on the wait lists, 32% were competent to stand trial, 32% appeared incompetent to stand trial but could safely function in the community, and the final 36% required hospital-level care. Id. at 6. Accordingly, 64% of the individuals in the sample did not need to be on the wait lists. In connection with this finding, PRA also observed a lack of county-based options. Id. at 7–8.
PRA also noted that one-quarter of the beds then in use at NSH were occupied by individuals that hospital clinicians determined were competent. Id. at 4. After the hospitals notify the specific county that an individual is competent to stand trial, the county plans and provides the transportation back to the jail. Although the hospitals and the county at times disagree about the competency of the individual, sometimes there is simply a delay in returning individual to jail for disposition of the criminal charges. Id. at 4. This adds time to the length of stay
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and stymies efforts to admit individuals awaiting treatment. Id. at 4. PRA’s analysis demonstrates that issues with discharging patients back to their counties is a dilemma outside of the Department’s control. Id. at 13.
PRA’s identification of systemic issues illustrates that only one-third of individuals on the wait lists at the time required inpatient treatment, with onequarter of the population in the forensic units competent to stand trial but not returned for disposition of their charges. Id. at 4. In light of these circumstances, a preliminary injunction would result in undue harm to the Department because it would subject the Department to sanctions for actions and inactions that even Plaintiffs’ recommended expert acknowledged are county level-issues not within the Department’s control.
B. Plaintiffs’ Requested Relief Is Not Equitable. Plaintiffs request that this Court grant a preliminary injunction and order the Department to transfer all class members to a non-punitive, mental health setting for restoration treatment within seven days of the common pleas court’s commitment order. See Brief in Support of Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction at 18. The requested relief is not equitable, realistic, or reasonable due to practical impediments and delays for good cause outside the Department’s control. When seeking a preliminary injunction,
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one of the requirements that a plaintiff must establish is that the balance of equities tips in his favor. Winter v. Natural Res. Defense Council, 555 U.S. 7, 20 (2008).
To support their demand that seven days is the only constitutionally acceptable maximum amount of time that class members should wait for admission to the state hospitals, Plaintiffs rely on only two cases that established the sevenday requirement. Plaintiffs point to the decision in Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010 (W.D. Wash. 2015), to support their position, but the Ninth Circuit recognized that issues outside Washington’s control can legitimately create delays. Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 822 F.3d 1037, 1045 (9th Cir. 2016) (“practical impediments, such as intervening weekends or the time necessary to obtain documents, can eat up the time period” for evaluations within seven days). The Ninth Circuit vacated the district court’s decision to require evaluations within seven days and remanded the matter back for consideration of the practical impediments that were outside the state’s control. On remand, the district court recognized, among other things, delays in receiving all required documentation, delays caused by waiting for intoxicants to clear an individual’s system, and delays caused by an evaluator’s
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need for additional records. Trueblood v. Wash. Dep’t of Soc. & Health Servs., No. C14-1178-MJP, 2016 WL 4268933 (W.D. Wash. Aug. 15, 2016).3
Although the Ninth Circuit and the district court in Trueblood were addressing the practical impediments to conducting competency evaluations within seven days, the same rationale and reasons apply to the reasonable delays for admission to NSH and TSH. In fact, the impediments to the admission of patients to the hospitals are more substantial than impediments to evaluations because the admission of patients entails taking physical custody of patients and ensuring their physical and mental well-being.
Specifically, the individuals ordered to NSH and TSH are in the physical custody of the counties. Exhibit “A” at ¶ 57. Thus, the county must provide the hospital with a referral packet that includes the medical clearance to admit the individual for treatment. Id. at ¶¶ 11, 58. NSH and TSH also need a valid court order to accept custody, as well as a completed referral packet. Id. at ¶ 11. The referral packet contains all of the documentation necessary for the hospital to treat an individual as well as assess any danger that staff should be aware of when
3 Prior to the Ninth Circuit’s decision, the district court had modified the initial permanent injunction to allow for a good cause exception to the timeframe for admission of class members ordered to receive competency services in state hospitals. Trueblood, 2015 WL 13664033 at *2 (W.D. Wa. May 6, 2015). The good cause exception allowed for delays in admission when the medical condition of the individual did not allow for transport to the facility until the individual was medically cleared. Id.
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caring for the individual. Id. at ¶¶ 12-13. NSH and TSH staff need to know that an individual is medically cleared to come for restoration treatment. Id. at ¶¶ 13, 58. Many times, NSH and TSH experience a delay in the receipt of pertinent information, which delays the admission. Id. at ¶ 59.
Delays are also associated with discharging patients determined competent to stand trial. At times, the hospital and a county disagree about the competency of an individual, which requires discussion and some additional collaboration. Id. at ¶ 60. Other times, counties are delayed in transporting individuals from the forensic units back to jail after an individual has been assessed to be competent to stand trial. Id. at ¶ 63. Such a delay adds time to the patient’s length of stay in the hospital, impeding efforts to make beds available for individuals awaiting treatment. Id. at ¶ 64. These types of issues create delays in admitting individuals to the forensic units similar to the delays recognized by the district court in Trueblood.
Plaintiffs also rely on Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003), as the other case that established a seven-day admission requirement. That case is distinguishable, however, because the Ninth Circuit there noted that the “district court set the time limit at seven days based in part on the Oregon legislature’s choice of that time limit in a now-superseded version of the relevant state statute.” Id. at n.13. The Court’s observation underscores why Plaintiffs’
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overstate their reliance on these two cases to persuade this Court to hold that seven days is the maximum allowable wait time that is constitutionally acceptable.
Seven days is by no means the litmus test for maximum allowable wait times across the nation. The District Court for the Eastern District of Louisiana established a 21-day timeframe for transferring individuals into competency restoration settings. See Advocacy Ctr. for the Elderly & Disabled v. La. Dep’t of Health & Hosps., 731 F. Supp. 2d 603, 627 (E.D. La. 2010). This variance illustrates that maximum allowable wait times may be based on consideration of the specific circumstances each state faces in providing competency restoration.
A wait of 21 days for restoration treatment in Pennsylvania’s state hospitals comports with constitutional requirements because practical impediments outside of the Department’s control account for at least a portion of the time an individual waits to be admitted. Accordingly, the seven-day timeframe demanded by Plaintiffs is not equitable.
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CONCLUSION For the reasons set forth above, the Defendants request that this Court deny Plaintiffs’ requested preliminary injunctive relief that class members be admitted to the state hospital forensic units within seven days of the court commitment.

Respectfully Submitted,

Dated: April 23, 2019

/s/ Doris M. Leisch Doris M. Leisch Chief Counsel Attorney I.D. No. 42375
Matthew J. McLees Chief of Litigation Attorney I.D. No. 71592
Marisa L. Cohan Senior Counsel Attorney I.D. No. 200986
Department of Human Services Office of General Counsel 3rd Floor West Health & Welfare Building Harrisburg, PA 17120 (717) 783-2800

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LOCAL RULE 7.8(b)(2) CERTIFICATION I certify under penalty of perjury that the Brief in Opposition to Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction complies with Local Rule 7.8(b)(2) because, based on the word processing system used to prepare the Brief, Word 2016, the Brief contains 4,058 words (excluding the Table of Contents and Table of Authorities).

Date: April 23, 2019

/s/ Matthew J. McLees Matthew J. McLees

Case 1:15-cv-02057-SHR Document 78 Filed 04/23/19 Page 23 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo Messier; L.C., et al.,
Plaintiffs
v.

Civil Action No. 1:15-cv-02057-SHR Judge Sylvia H. Rambo

Teresa D. Miller in her official capacity as Secretary of the Pennsylvania Department of Human Services, et al.,

Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have on this 23rd day of April, 2019, served a copy of the foregoing Brief in Opposition to Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction, via electronic mail, on Plaintiffs’ counsel:

David P. Gersch, Esq. Arnold & Porter LLP 601 Massachusetts Ave., N.W. Washington, D.C. 20001 David.Gersch@aporter.com

Witold J. Walczak, Legal Director ACLU of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 15222 VWalczak@aclupa.org

/s/ Matthew J. McLees Matthew J. McLees Chief of Litigation Attorney I.D. No. 71592 Department of Human Services Office of General Counsel Health & Welfare Building Harrisburg, PA 17120 (717)783-2800

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Exhibit "A"

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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 1 of 18
OFFICE OF MENTAL HEALTH AND SUBSTANCE ABUSE 
 SERVICES BULLETIN


ISSUE DATE
July 14, 2016

EFFECTIVE DATE:
Immediately

NUMBER:
OMHSAS-16-10

SUBJECT:
Admissions, Transfers, Level of Care and Service Area Designation for the Regional Forensic Psychiatric Centers

BY:
Dennis Marion Deputy Secretary Office of Mental Health and Substance Abuse Services

SCOPE:
County Commissioners County MH/ID Administrators/BSU Directors Behavioral Health Managed Care Organizations Regional Mental Health Community Program Managers Chief Executive Officers, State Hospitals Chief Forensic Executives, Regional Forensic Psychiatric Centers Forensic Liaisons Superintendent, State Correctional Facility at Muncy County Jail Wardens Public Defenders District Attorneys Mental Health Review Officers Courts of Common Pleas Judges Magisterial Judges
PURPOSE:
This Bulletin implements the protocol and operational changes approved by the Secretary of the Department of Human Services (DHS) for the operation of Regional Forensic Psychiatric Centers (RFPCs). The changes addressed by this policy include the establishment of a centralized referral process to the RFPCs.
BACKGROUND:
The Office of Mental Health and Substance Abuse Services (OMHSAS) continues to review and improve its practices in pursuit of recovery supportive services in the least restrictive setting possible for the individual being served.

ATTACHMENTS:
COMMENTS AND QUESTIONS REGARDING THIS BULLETIN SHOULD BE DIRECTED TO: Office of Mental Health and Substance Abuse Services, Bureau of Policy, Planning & Program Development, P.O. Box 2675, Harrisburg, PA 17105. General Office Number 717-772-7900.
Exhibit "B"

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Attachment 1: Admissions, Transfers, Level of Care and Service Area Designation for the Regional Forensic Psychiatric Centers
Attachment 2: County Service Area Designations Attachment 3: Regional Forensic Psychiatric Center Pre-Admission Referral Attachment 4: Certification of Need for Persons under the Age of 22 or Over the Age of 65 Attachment 5: Standard Notification Letter Attachment 6: Emergency Regional Forensic Psychiatric Center Admission Report RELATED BULLETINS: 99-84-24: Continuity of Care 99-83-42: Guidelines for Voluntary and Involuntary Patients Refusing Physical
Examination on Admission SMH-95-01: Crime Victim Notification: Implementation of Amendments to Act 155;
Expanding the Bill of Rights for Victims of Crime SMH-P-12-01: Unsupervised Leave of Persons Found NGRI SMH-P-12-04: Information Sharing Between Regional Forensic Psychiatric Centers
and State or County Correctional Facilities upon Admission and Discharge OBSOLETE BULLETINS: This bulletin obsoletes the following OMHSAS Bulletins:  SMH-P-12-05: Admissions, Transfers, Level of Care and Service Area Designation for
the Regional Forensic Psychiatric Centers  99-83-25: Referral Procedures for “Guilty But Mentally Ill” Individuals
Attachment 1 2


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 3 of 18 Admissions, Transfers, Level of Care and Service Area Designation for the Regional Forensic Psychiatric Centers TABLE OF CONTENTS
I. Forensic Level of Care……………………………..……………………………………4 II. Criteria for Admission……………………………………………………………………4 III. Persons Who May Not Be Admitted or Transferred to a RFPC…………………….5 IV. Service Area Designations………….…………………………………………………..6 V. RFPC Referral Process………………………….……………………………………...6 VI. Emergency Forensics Admissions Exception Procedure…………..……………….7 VII. Transfers from RFPC…………………………………..…………………………….....8 VIII. Responsibility for Implementation……………………………………………………..10 IX. References……………………………………………………………………………….10
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I. FORENSIC LEVEL OF CARE
The Forensic Task Force of 1991 established one level of forensic care to replace the medium and maximum security designations of specific forensic facilities. Environmental and procedural security safeguards are in place in each RFPC to provide a secure environment to provide patient treatment and care.
Patients who have been charged with, convicted or found Not Guilty by Reason of Insanity (NGRI) of minor, non-violent offenses, who are not sentenced to the jurisdiction of the Department of Corrections and who, as determined by the committing court, do not require the security of the RFPC, may continue to be admitted to civil units at state hospitals.
A centralized referral process will include a concurrent review of individuals for diversion to other housing and services including least restrictive treatment settings appropriate to the patients’ clinical and security needs.
The RFPCs are designed to provide psychiatric care and treatment for persons who have involvement in the criminal justice system. They are not a long-term placement option. RFPCs offer the following inpatient services:
A. Evaluation for competency to stand trial.
B. If necessary, psychiatric care and treatment to restore competency.
C. Mental health care and treatment to persons who have been found NGRI of criminal offenses enumerated in the Mental Health Procedures Act.
D. Mental health care and treatment in a secure facility for persons subject to detention in county or municipal jails.
E. Inpatient examination to assist with sentencing and disposition of persons who have been criminally convicted and are awaiting sentencing.
II. CRITERIA FOR ADMISSION
Under section 401(a) of the Mental Health Procedures Act (MHPA), a person who is charged with a crime or undergoing sentence and who is or becomes severely mentally disabled as defined by section 301 of the MHPA may be subject to commitment proceedings for involuntary mental health care and treatment as if he or she were not charged or sentenced. In addition, under section 402 of the MHPA, a court may order involuntary examination and treatment for competence to stand trial.
Persons will be admitted to RFPCs only as ordered by a court. The following court orders will authorize admission to an RFPC:
A. A court order issued under section 304 or 305 of the MHPA for persons who are subject to detention in county or municipal jails.
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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 5 of 18
B. A court order issued under section 304 or 305 of the MHPA for persons who are incarcerated at the State Correctional Institute (SCI) – Muncy. OMHSAS will allocate three forensic beds for this purpose. No other SCI inmates will be admitted to RFPCs.
C. A court order issued under section 304 of the MHPA for a person who has been found Guilty But Mentally Ill (GBMI).
D. A court order issued under section 304(g)(2) of the MHPA for persons who have been found incompetent to be tried or NGRI the following offenses:
1. Murder
 2. Voluntary manslaughter
 3. Aggravated assault
 4. Kidnapping
 5. Rape
 6. Involuntary deviate sexual intercourse
 7. Arson

E. A court order issued under section 402 of the MHPA for treatment to restore competence to stand trial or evaluation to determine competence to stand trial. Persons committed to state hospitals pursuant to section 402 of the MHPA may receive competence evaluation and treatment to restore competence in settings other than a RFPC as ordered by the court.
III. PERSONS WHO MAY NOT BE ADMITTED OR TRANSFERRED TO A RFPC.
A. The following persons are not eligible for admission to a RFPC, even if they are severely mentally disabled as defined by section 301 of the MHPA, unless they meet one of the criteria specified in Section II, A - E.
1. Persons who are not formally charged with a crime or serving sentence, even those patients who are assaultive or difficult to treat;
2. Persons who have been tried and acquitted of a criminal offense; 3. Defendants against whom charges have been withdrawn, nolle prossed or
dropped; 4. Persons charged with a crime but released on bail at the time the initial
mental health commitment is initiated; 5. Persons convicted of crimes and who have been paroled and against whom
no new detainers have been filed; 6. Persons convicted of crimes and placed on probation and against whom no
new detainers have been filed; 7. Persons found NGRI on charges other than those listed in Section 304(g)(2)
of the MHPA; 8. Persons subject to court ordered commitments pursuant to Section 302 and
303 of the MHPA;
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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 6 of 18
9. Persons sentenced to serve their terms of imprisonment in a SCI operated by the Pennsylvania Department of Corrections.
When persons do not meet the criteria for admission to the RFPC, but still require inpatient psychiatric care and treatment, they should be admitted to a community treatment setting or the civil unit of a state hospital.
B. RFPCs are certified by the Centers for Medicare and Medicaid Services as parts of psychiatric hospitals. They are not primary medical care facilities and are unable to provide complex medical care to patients who need such care to maintain their health and safety. Therefore, patients with the following conditions are not appropriate for admission to RFPCs:
1. Unconsciousness or semi-consciousness. 2. Recent heart attack or stroke. 3. Delirium from any organic brain disorder; e.g., alcohol or drug toxicity, lithium
toxicity, or metabolic syndrome. 4. Neurocognitive disorders. 5. Impending alcohol or drug withdrawal. Patients who are on methadone
maintenance may be admitted under the state hospital protocols. 6. Serious fractures requiring specialized rehabilitation. 7. Need for artificial respiration or other life support systems. 8. Advanced Chronic Obstructive Pulmonary Disease in the final stages
requiring special isolations and protection. 9. Need for intravenous medications including antibiotics. 10. Need for primary nursing care or nursing home level of care or similar setting.
IV. SERVICE AREA DESIGNATIONS
A. County service area designations for RFPCs have been revised to provide access to beds by each county, according to the county’s historical admission needs and or census data and population demographics. County service area designations for each RFPC are appended to this Policy (Attachment 2).
B. Three (3) female beds will be available at a RFPC as determined by DHS for use as needed by inmates incarcerated at SCI - Muncy.
V. RFPC REFERRAL PROCESS
A. Each county should identify a point of contact regarding referrals coordination.
B. Whenever an individual is referred to an RFPC, the correctional facility will complete RFPC Pre-Admission Referral form. (Attachment 3).
C. The Pre-Admission Referral form, the Mental Health Commitment or Court Order, and information to support the referral will be sent by registered mail, secure fax, scan, or an alternative method such as in person delivery.
6


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 7 of 18
D. A certificate of need is also necessary for all patients under the age of 22 or over the age of 65. (Attachment 4)
E. An incomplete referral will result in the Standard Notification Letter and Preadmission Referral Form being returned to the referral source with the identification of the missing referral information, (Attachment 5). Incomplete referrals will result in a delay in admission to the RFPC.
F. When the RFPC receives notification of a pending commitment and the request for admission of a person serving a sentence in a SCI or county correctional facility, the referral packet should contain, a copy of the criminal sentencing sheet containing the expiration dates of both the minimum and maximum sentences.
G. Once the packet is complete, the individual will be placed on a RFPC wait list.
H. Patients will be admitted to the RFPC designated for their service area based on their place on the waiting list.
I. Court orders requiring expedited emergency admission will be reviewed by the OMHSAS Centralized Forensic Coordinator for further disposition.
VI. EMERGENCY FORENSICS ADMISSIONS EXCEPTION PROCEDURE
RFPCs recognize that there are individuals whose illness has presented the need for emergency treatment within the RFPCs and it is important to admit them as expeditiously as possible to ensure that they receive the appropriate care.
A. Exception Criteria:
1. Individual must be medically clear and not in a state of detoxification; and 2. Individual is rapidly deteriorating during incarceration; or 3. Individual is acutely suicidal; or 4. Individual is a danger to other inmates (extremely violent individuals may not
be able to be managed on a forensic unit thus these cases may require further discussion).
B. Process for Expedited Admission:
1. All necessary forms and attachments for admission to a RFPC must be provided, as detailed in the Regional Forensic Psychiatric Center PreAdmission Referral (Attachment 3).
2. In addition, a copy of an “Emergency Forensic Psychiatric Center Admission Report” (Attachment 6) detailing the Exception Criteria will be submitted to
7


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 8 of 18
the OMHSAS Centralized Forensic Coordinator along with the completed Regional Forensic Psychiatric Center Pre-Admission Referral.
3. If there is disagreement on the individual meeting the Exception Criteria, the case is reviewed by the facility Chief Medical Officer and if there is still disagreement, a final determination is made by the OMHSAS Medical Director.
VII. TRANSFERS FROM RFPCs:
RFPCs are not intended to be long-term placement options. Persons should be transferred out of RFPCs whenever their legal and clinical status warrant a different level of care or
 security.

Events Triggering a Transfer From a RFPC:

The following events in a criminal case will lead to a transfer from the RFPC.

A. Dismissal, withdrawal or nolle prosequi of criminal charges for a reason other than a finding of incompetence to stand trial.
B. Dismissal of charges upon a finding of incompetence to stand trial, except when the patient was charged with an offense listed in section 304(g)(2) of the MHPA.
C. Dismissal of charges after the expiration of a stay of proceedings as specified in section 403(f) of the MHPA, except when the patient was charged with an offense listed in section 304(g)(2) of the MHPA.
D. Conviction or guilty plea of charges for which the sentence does not include incarceration.
E. Conviction or guilty plea of charges, except when the patient is found Guilty But Mentally Ill (GBMI) and committed for involuntary mental health care and treatment. (304 or 305)
F. Acquittal of criminal charges for any reason other than NGRI.
G. Acquittal of criminal charges for NGRI, except when the patient was charged with an offense listed in section 304(g)(2) of the MHPA.
H. Expiration of maximum sentence. This event is likely to be known well in advance of its occurrence. Therefore, planning for or transfer of the patient whose maximum sentence is expiring should begin as soon as the patient is admitted.
RFPC Procedures For Transfers
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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 9 of 18
A. Before any transfer may occur, the RFPC must receive a written order issued by the court having criminal jurisdiction that the patient is no longer subject to criminal detention.
B. The RFPC will adhere to all established transfer procedures, and will notify all involved parties of the date and location of transfer.
C. If an individual who has been committed from a county or municipal jail, or who has been found GBMI, is no longer in need of state hospital level of care, the RFPC will return the patient to the custody of the appropriate county or municipal jail.
D. When the RFPC receives notice that an individual will no longer be subject to
 criminal detention, it will make a determination of appropriate level of care or 
 placement to meet the needs of the patient.

Transfer of Patients From RFPC to Civil Units of State Hospital
A. When a patient in a RFPC no longer meets criteria for admission to the RFPC, but still requires a state hospital level of care, the patient may be transferred to a civil unit in the state hospital whose catchment area includes the patient’s county of residence, provided that there is a valid commitment order from the court for continued involuntary mental health care and treatment.
B. The civil unit of a state hospital can only provide the same degree of security for patients transferred from a RFPC as it does for other patients in the civil unit.
C. The RFPC will be responsible for arranging transportation of the patient to the civil unit on the date of transfer.
D. This transfer will occur within a reasonable time period.
Transfer of Patient to the Community
A. When the court having criminal jurisdiction authorizes transfer from the RFPC to the community under a Community Support Plan (CSP) or home plan, or criminal charges have been resolved, coordination will occur to address the clinical needs of the individual if mental health treatment is needed. Alternative community options may be pursued.
B. If an individual is found to no longer need state hospital level of care, the RFPC will follow the continuity of care policies for discharge; which at the minimum will include a discharge plan.
C. A RFPC will not discharge a patient who is subject to involuntary commitment pursuant to section 304(g)(2) of the MHPA without first providing notice and filing a petition for conditional or unconditional discharge with the court of criminal jurisdiction pursuant to section 304(g)(4) of the MHPA
9


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 10 of 18 Transfers of Persons between RFPC’s In extraordinary circumstances, OMHSAS may transfer an individual between RFPCs. When determination is made that a transfer of a person at an RFPC is appropriate, and approved by the court of criminal jurisdiction, the transfer arrangements will be made between the RFPC’s. Once this transfer occurs, the RFPC where the patient originated will notify the court of criminal jurisdiction. VIII. RESPONSIBILITY FOR IMPLEMENTATION The Director of Community and Hospital Operations of OMHSAS will resolve any disagreements among state hospitals and RFPCs arising in the course of the transfer process, and will be responsible for ensuring transfers occur within a reasonable timeframe. IX. REFERENCES: The Mental Health Procedures Act, 50 P.S. §§ 7101-7503 55 Pa. Code Chapter 5100, relating to “Mental Health Procedures”
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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 11 of 18

County Service Area Designations

Attachment 2

Regional Forensic Psychiatric Center at Torrance
Allegheny Armstrong/Indiana Beaver Bedford/Somerset Blair Butler Bradford/Sullivan Cambria Cameron/Elk/McKean Centre Clarion Clearfield/Jefferson Columbia/Montour/Snyder/Union Crawford Cumberland/Perry Dauphin Erie Fayette Forest/Warren Franklin/Fulton Greene Huntingdon/Mifflin/Juniata Lawrence Lycoming/Clinton Mercer Northumberland Potter Tioga Venango Washington Westmoreland York/Adams

Regional Forensic Psychiatric Center at Norristown
Berks Bucks Carbon/Monroe/Pike Chester Delaware Lancaster Lebanon Lackawanna/Susquehanna/Wayne Lehigh Luzerne/Wyoming Montgomery Northampton Philadelphia Schuylkill

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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 12 of 18

Attachment 3

Regional Forensic Psychiatric Center Preadmission Referral

In order to be considered a complete referral to the RFPC, and thus to be placed on the waiting list, the RFPC Preadmission

Referral Form must be completed and asterisked items must be submitted at a minimum. All remaining documentation must be

submitted for review prior to scheduling for admission.

Name: Last Name, First Name, and MI

Maiden Name: Click here to enter text.


AKA: Click here to enter text.

Municipal or Common Pleas Court Number: Click here to enter text.


Home Address Prior to Incarceration: Address, City, State, Zip Code
 ☐ Male ☐ Female


SS#: Click here to enter text. Marital Status: Click here to enter text. Religion: Click here to enter text.


Date of Birth: Click here to enter text. Age: Click here. Veteran: ☐Yes ☐ No Branch: Click here to enter text.
 Does the Person Speak English? ☐Yes ☐ No


Occupation: Click here to enter text.


Primary Language other than English: Click here to enter text.


Sensory Problems? ☐ Hard of Hearing ☐ Deaf ☐ Visual Impairment ☐ Blind


Level of Education: Click here to enter text.

☐ New Admission ☐ Readmission 


Date of Last Discharge Click here to enter a date. Unit: Click here to enter text.


County of Residence: Click here to enter text.
County of Sentence: Click here to enter text.

MH Commitment (check all that apply) ☐304

Committing County: Click here to enter text.
 ☐304g2 ☐GBMI ☐305 ☐402 ☐403 ☐405


Other (Please clarify) Click here to enter text. 


Most Recent MH Commitment Date: Click here to enter a date.

Effective Date: Click here to enter a date. Duration: Click here to enter text.


Reason for Referral as Written on the Court Order:


Click here to enter text.


Charges: Click here to enter text.


Date of Incarceration: Click here to enter a date.

Is Person Currently Sentenced? ☐Yes ☐ No Max Out Date: Click here to enter a date.


Anticipated Court Date: Click here to enter a date.


Judge: Click here to enter text.

Phone Number: Click here to enter text.


Defense Attorney: Click here to enter text.

Phone Number: Click here to enter text.


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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 13 of 18

Medical Department Contact: Click here to enter text.

Phone Number: Click here to enter text.

Community Behavioral Health Contact: Click here to enter text. Phone Number: Click here to enter text.

Base Service Unit/Service Coordination Unit Prior Mental Health Services: ☐ Yes ☐ No If Yes, Click
here to enter text.


Name: Click here to enter text.


Phone Number: Click here to enter text. Work: Click here to enter text. Cell: Click here to enter text.
Date Behavioral Health Notified of Referral to RFPC: Click here to enter a date. Psychiatric/Medical Diagnosis (es) – Please enter all know conditions 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Reason for Incompetency if Found Incompetent: Click here to enter text.

High Risk Behavior (Past/Present)
☐ Suicide Attempt(s); Date(s); Method(s): Click here to enter text.

☐ AWOL History

☐ Self-Mutilative

☐ Anorexic

☐ Self-Abusive

☐ Polydipsia

☐ Assaultive/Destructive

☐ PICA

☐ Uncontrolled Seizure Disorder

Other (Please be specific): Click here to enter text.

☐ Homicidal ☐ History of Fire Setting ☐ Sexually Aberrant Behavior

Current Medications (Psychiatric & non-psychiatric) List below or attach MAR. Is MAR attached? ☐ Yes ☐ No

Name Of Medication

Dosage

Reason for Medication

Start Date

Takes Meds Yes/No

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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 14 of 18

Name: Click here to enter text.


Over the Counter Medication or Herbal Supplements: Click here to enter text.


Drug Allergies (Specific Reaction): Click here to enter text.


Food Allergies (Specific Reaction): Click here to enter text.


Special Diet: Click here to enter text.


Environmental Allergies: Click here to enter text.


Physical Problems (Including injury (ies); chronic pain; sensory limitation or others as noted):
 Click here to enter text.

Any current/acute/chronic infectious disease: ☐Yes ☐ No If yes, explain: Click here to enter text.

Ambulation: ☐ Unaided ☐ Cane ☐ Crutches ☐ Walker ☐ Wheelchair ☐ Prosthesis Specify: Click here to enter text.

Immunizations (Include PPD) List Below or Attached ☐Yes ☐ No

Date Administered

Recent Psychological Tests: ☐ Yes ☐ No Date of Report: Click here to enter a date.

Prior Psychiatric Hospitalizations: Location

Dates

Drug, alcohol and nicotine history: Click here to enter text.


Drug, alcohol and nicotine treatment history: Click here to enter text.


Advanced Directives: Medical: ☐Yes ☐No

Psychiatric: ☐Yes ☐ No


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Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 15 of 18

Organ Donor: ☐Yes ☐No Income: ☐Yes ☐No Source: Click here to enter text. Medical Insurance Information: Click here to enter text. Name: Click here to enter text.

Amount: Click here to enter text.

Medical Assistance Number: Click here to enter text. Medicare Number: Click here to enter text.

Medicare D Plan: Click here to enter text.

ID: Click here to enter text.

Next of Kin/Significant Others:

(1) Name: Click here to enter text.

Address: Address, City, State, Zip Code

Phone: Home

Phone: Work

Relationship: Click here to enter text.
Phone: Cell

(2) Name: Click here to enter text.

Address: Address, City, State, Zip Code

Phone: Home

Phone: Work

Relationship: Click here to enter text.
Phone: Cell

The Following Documentation is required 1. *Affidavit of Probable Cause ☐ *Criminal Complaint ☐

*Police Arrest Record ☐

2. * Court Order ☐

3. Sentencing Sheet ☐

4. Copies of Assessments:

*Psychiatric

☐Included

☐Not Included/Reason Click here to enter text.

Nursing

☐Included

☐Not Included/Reason Click here to enter text.

*Medical

☐Included

☐Not Included/Reason Click here to enter text.

Psychological testing ☐Included

☐Not Included/Reason Click here to enter text.

Psycho-social

☐Included

☐Not Included/Reason Click here to enter text.

Competency Evaluation ☐Included

☐Not Included/Reason Click here to enter text.


Other Disciplines involved in patient’s care ☐ Included ☐Not Included/Reason Click here to enter text.


5. Copies of reports: ☐ Consultations ☐ Laboratory Reports and/or other medical studies performed including ☐ Chest x-ray; EKG; EEG; HIV; Hepatitis; TB; CBC; SMAC; WBC; PPD ☐ Medication related blood levels

6. *Copies of Progress notes and Physician’s Orders for at least the last three weeks ☐

7. Copy of current Treatment Plan ☐

8. Certificate of Need Attached if under age 22 or 65 and above? ☐Yes ☐ No

Signature of Person Completing the Form: __________________________________ Date: Click here to enter a date. Printed Name/Title: Click here to enter text. Phone Number: Click here to enter text Email: Click here to enter .
15


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 16 of 18
Please fax completed referral to: Click here to enter text.
 Or via encrypted email completed referral to: Click here to enter text.
 At email address: Click here to enter text.

Attachment 4 CERTIFICATION OF NEED FOR
 INPATIENT PSYCHIATRIC HOSPITALIZATION OF A
 PERSON UNDER THE AGE OF 22 OR OVER THE AGE OF 65


Date:


The undersigned members of the Psychiatric Treatment Team at the 


(Name of Referring Agency)

hereby certify that


(Patient)

, requires psychiatric treatment on an

inpatient basis. We have examined said patient and find that:

1. The ambulatory care resources in the community do not meet the needs of the patient; and
2. Inpatient treatment under the direction of a physician is required; and
3. The provision of such services can reasonably be expected to improve the patient’s condition or to prevent further regression so the services will no longer be needed.

Psychiatrist/Physician
Psychologist
Social Worker, Registered Nurse or Occupational Therapist

Name & Title Name & Title Name & Title

Ref. Authority 42 C.F.R. 441, Subpart D. 16


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 17 of 18

Attachment 5

Date:


To: ________________________________________________________________________

(Referring Person and Agency)

The RFPC Referral and/or Court Order for the Admission of ____________________________

(circle one)

(Name)

to the RFPC was received on ________________.

(Date)

In order to assure complete and thorough evaluation of the referral, in addition to adequately addressing any medical concerns or safety/security measures related to the individual, the following items that were not included must still be provided:

_____ The Court Order

_____ RFPC Referral Form Information: ________________________________________

_____ Affidavit of Probable Cause

_____ Criminal Complaint

_____ Police Arrest Record

_____ Assessments: ____ Psychiatric Evaluation ____ Psychological testing

____ Nursing ____ Psycho-Social

____ Medical

_____ Competency Evaluation

_____ Other Assessments/Screens: ____ Laboratory Reports

____ Chest X-Ray

____ Hepatitis Screen

____ HIV Test

____ Medication Related Testing ____ PPD

____ Medication Administration Record

____ Progress Notes (for at least weeks):_________________________________________

____ Current Treatment Plan

____ Certificate of Need under age 22 or 65 and over

Once the specified materials are received the individual will be placed on the RFPC wait list for

admission. The materials may be submitted electronically, mailed or personally delivered to the

attention of: ____________________________. Please direct all questions to

(Name)

_____________________________, at _______________ or via email at ___________________

(Name)

(Phone number)

(email address)

Sincerely,

_____________________________________________, CEO
17


Case 1:15-cv-02057-SHR Document 78-2 Filed 04/23/19 Page 18 of 18
__________________________________State Hospital
2/2016
Attachment 6
Emergency Regional Forensic Psychiatric Center Admission Request
Name of Individual for whom Emergency Referral is being Requested:
Name of Person requesting Emergency Referral:
(Title)
Date of Request:_________________ ___RFPC Referral Preadmission Form Attached ___The individual has been medically cleared and is not requiring medically monitored detoxification
Name of Practitioner providing medical clearance:
Reason for Request: (Check all that apply but must meet at least 1 criteria, also must be medically cleared and not requiring medically monitored detoxification)
___Rapid deterioration of individual during incarceration, or ___Acutely suicidal individual, or ___Individual is a danger to other inmates (extremely violent individuals may not be
able to be managed on a forensic unit thus these cases may require further discussion)
Signature of Person completing the Emergency Request:
Date: ______________
18


 
 Case 1:15-cv-02057-SHR Document 80 Filed 06/03/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J.H., by and through his next friend, Flo Messier; L.C., by and through her next friend, Flo Messier; R.J.A., by and through his next friend, J.A.; Jane Doe, by and through her next friend, Julia Dekovich; S.S., by and through his next friend, Marion Damick; G.C., by and through his next friend, Luna Pattela; R.M., by and through his next friend, Flo Messier; P.S., by and through his next friend M.A.S.; T.S., by and through his next friend Emily ,McNally; M.S., by and through his next friend, Emily McNally; and all others similarly situated,

Civil Action No. 1:15-cv-02057-SHR Judge Sylvia H. Rambo

Plaintiffs v.

Teresa D. Miller, in her official capacity as Secretary of the Pennsylvania Department of Human Services; Jessica Keith, in her official capacity as the Chief Executive Officer of Norristown State Hospital; Stacey Keilman, in her official capacity as the Chief Executive Officer of Torrance State Hospital,

Defendants

ORDER TO STAY PROCEEDINGS FOR PLAINTFFS’ SECOND RENEWED AND AMENDED MOTION FOR
PRELIMINARY INJUNCTION

Case 1:15-cv-02057-SHR Document 80 Filed 06/03/19 Page 2 of 2
Having reviewed and considered the parties’ Joint Motion to Stay Proceedings for Plaintiffs’ Second Renewed and Amended Motion for Preliminary Injunction, it is on this __3_rd__ day of June, 2019, hereby ORDERED that the motion be, and hereby is, GRANTED. Proceedings on this motion are stayed until one or both of the parties advise the Court that the status has changed.
__s/_S_y_lv_ia_H__. _R_am__b_o______________ Hon. Sylvia H. Rambo, U.S.D.J.

 
 Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 1 of 14
HBG
United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:15−cv−02057−SHR

J.H. et al v. Dallas et al Assigned to: Honorable Sylvia H. Rambo Cause: 42:1983 Civil Rights Act
Plaintiff
J.H. by and through his next friend, Flo Messier

Date Filed: 10/22/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David P. Gersch ARNOLD AND PORTER LLP 601 Massachusetts Ave., NW Washington, DC 20001 202−942−5125 Email: david.gersch@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Daniel Arnold and Porter LLP 601 Massachusetts Ave., N.W. Washington, DC 20001 202−942−5970 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen E. Fenn ARNOLD AND PORTER LLP 601 Massachusetts Ave., NW Washington, DC 20001 202−942−5125 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak American Civil Liberties Union of PA 247 Ft. Pitt Blvd., 2d Fl. Pittsburgh, PA 15222 412−681−7864 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Huffman 601 Massachusetts Avenue, N.W. Washington, DC 202−942−5326 TERMINATED: 11/01/2016 PRO HAC VICE
Nicole B Neuman Arnold & Porter LLP 601 Massachusetts Ave., NW Washington, DC 20001−3743 202−942−5337 Fax: 202−942−5999 Email: nicole.neuman@aporter.com TERMINATED: 05/18/2017
Nicole G Tortoriello

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 2 of 14

Arnold and Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001−3743 (202) 942−6619 Email: Nicole.Tortoriello@apks.com TERMINATED: 08/14/2017

Paloma Wu American Civil Liberties Union of Pennsylvania 247 Fort Pitt Blvd. Pittsburgh, PA 15222 412−681−7864 Email: pwu@aclupa.org TERMINATED: 08/14/2017

Victoria L. Killion ARNOLD AND PORTER LLP 601 Massachusetts Ave., NW Washington, DC 20001 202−942−5125 Fax: 202−942−5999 Email: Victoria.Killion@aporter.com TERMINATED: 10/18/2017

Plaintiff
L.C. by and through her next friend, Flo Messier

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paloma Wu (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address)

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 3 of 14

TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
R.J.A. by and through his next friend, J.A.

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
Jane Doe by and through her next friend Julia Dekovich

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel 601 Massachusetts Ave., N.W. Washington, DC 20001 202−942−5970 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 4 of 14

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
A.B. by and through his next friend J.B. TERMINATED: 05/18/2017

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 5 of 14

Plaintiff S.S. by and through his next friend, Marion Damick
Plaintiff G.C. by and through his next friend, Luna Pattela

Paloma Wu (See above for address) TERMINATED: 08/14/2017
Victoria L. Killion (See above for address) TERMINATED: 10/18/2017
represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Daniel Arnold and Porter LLP 601 Massachusetts Ave., N.W. Washington, DC 200001 202−942−5970 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paloma Wu (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE
Nicole B Neuman (See above for address) TERMINATED: 05/18/2017
Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017
Victoria L. Killion (See above for address) TERMINATED: 10/18/2017
represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Daniel

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 6 of 14

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
R.M. by and through his next friend, Flo Messier

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 7 of 14

(See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
P.S. by and through his next friend M.A.S.

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
T.S. by and through his next friend Emily McNally

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 8 of 14

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Nicole B Neuman (See above for address) TERMINATED: 05/18/2017

Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017

Paloma Wu (See above for address) TERMINATED: 08/14/2017

Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

Plaintiff
M.S. by and through his next friend Emily McNally; and all others similarly situated

represented by David P. Gersch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Daniel (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen E. Fenn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Huffman (See above for address) TERMINATED: 11/01/2016 PRO HAC VICE

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 9 of 14
Nicole B Neuman (See above for address) TERMINATED: 05/18/2017
Nicole G Tortoriello (See above for address) TERMINATED: 08/14/2017
Paloma Wu (See above for address) TERMINATED: 08/14/2017
Victoria L. Killion (See above for address) TERMINATED: 10/18/2017

V. Defendant Theodore Dallas in his official capacity as Secretary of the Pennsylvania Department of Human Services
Defendant Edna I. McCutcheon in her official capacity as the Chief Executive Officer of Norristown State Hospital
Defendant Robert Snyder in his official capacity as the Chief Executive Officer of Torrance State Hospital

represented by Doris M. Leisch Pennsylvania Department of Human Services Office of General Counsel 3d Floor Health & Welfare Building 7th & Forster Streets Harrisburg, PA 17120 717−783−2800 Email: dleisch@pa.gov ATTORNEY TO BE NOTICED
Matthew J. McLees Department of Human Services Office of General Counsel Health & Welfare Building, 3rd Floor 625 Forster Street Harrisburg, PA 17120 717−783−2800 Email: mmclees@pa.gov ATTORNEY TO BE NOTICED
represented by Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED
Matthew J. McLees (See above for address) ATTORNEY TO BE NOTICED
represented by Doris M. Leisch (See above for address) ATTORNEY TO BE NOTICED
Matthew J. McLees (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 10 of 14

10/22/2015 10/22/2015 10/22/2015 10/22/2015 10/22/2015
10/23/2015 10/23/2015 10/26/2015 10/26/2015 10/26/2015 10/26/2015
10/27/2015 10/29/2015 10/30/2015 11/03/2015 11/03/2015

1 COMPLAINT against All Defendants ( Filing fee $400, Receipt Number 0314−3579758), filed by S.S., M.S., R.J.A., G.C., P.S., L.C., R.M., J.H., Jane Doe, T.S., A.B.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit(s) A−M)(aaa) (Entered: 10/22/2015)
2 MOTION to Certify Class Acting filed by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(aaa) (Entered: 10/22/2015)
3 MOTION to Exceed Page Limitation on Class Certification Brief by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S..(aaa) (Entered: 10/22/2015)
4 MOTION for Preliminary Injunction by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(aaa) (Entered: 10/22/2015)
5 Summons Issued as to All Defendants and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e−mail and serve them with the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (aaa) (Entered: 10/22/2015)
SPECIAL ADMISSION FORM SENT to Attorney Wu. (ch1) (Entered: 10/23/2015)
DOCKET ANNOTATION: Attorney Wu generally admitted on 8/31/2015. (ch1) (Entered: 10/23/2015)
6 Unopposed MOTION to Exceed Page Limitation on Preliminary Injunction Brief by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Stipulated Order, # 2 Exhibit(s) Ex A (proposed PI brief))(Walczak, Witold) (Entered: 10/26/2015)
7 ORDER granting pltfs' mtn to exceed page limit 6 . Parties may file briefs regarding Pltfs Mtn for PI that are up to 45 pages in length.Signed by Honorable Sylvia H. Rambo on 10/26/15. (ma) (Entered: 10/26/2015)
8 ORDER granting pltfs' mtn to exceed page limit 3 . Parties may file briefs regarding Pltfs Mtn for Class Certification that are up to 45 pages in length.Signed by Honorable Sylvia H. Rambo on 10/26/15. (ma) (Entered: 10/26/2015)
9 BRIEF IN SUPPORT of Plaintiffs' Motion for Preliminary Injunction re 4 MOTION for Preliminary Injunction filed by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit(s) Ex A (Declaration of Pattela), # 2 Exhibit(s) Ex B (Declaration of Messier), # 3 Exhibit(s) Ex C (Declaration of Blender), # 4 Exhibit(s) Ex D (Declaration of Law))(Wu, Paloma) (Entered: 10/26/2015)
DOCKET ANNOTATION: Attorney Admission paperwork and ECF registration forms mailed to Attorney Gersch, Attorney Neuman, Attorney Fenn and Attorney Killion. (lg) (Entered: 10/27/2015)
10 Unopposed MOTION for Pretrial Conference on Preliminary Injunction Motion by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 10/29/2015)
11 NOTICE of Appearance by Doris M. Leisch on behalf of All Defendants (Leisch, Doris) (Entered: 10/30/2015)
12 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney Stephen E. Fenn is seeking special admission. Filing fee $ 50, receipt number 0314−3590955.. (Wu, Paloma) (Entered: 11/03/2015)
13 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney David P. Gersch is seeking special admission. Filing fee $ 50, receipt number 0314−3590962.. (Wu, Paloma) (Entered: 11/03/2015)

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 11 of 14

11/03/2015 11/03/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/05/2015
11/10/2015
11/10/2015
12/15/2015 12/15/2015 12/21/2015 12/28/2015 12/28/2015 12/29/2015 01/04/2016

14 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney Victoria L. Killion is seeking special admission. Filing fee $ 50, receipt number 0314−3590964.. (Wu, Paloma) (Entered: 11/03/2015)
15 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney Nicole B. Neuman is seeking special admission. Filing fee $ 50, receipt number 0314−3590965.. (Wu, Paloma) (Entered: 11/03/2015)
DOCKET ANNOTATION: Petitioning attorneys and associate counsel's bar status verified. (aaa) (Entered: 11/04/2015)
16 SPECIAL ADMISSIONS FORM APPROVED as to Victoria Killion, Esq. on behalf of PltfsSigned by Honorable Sylvia H. Rambo on 11/4/15. (ma) (Entered: 11/04/2015)
17 SPECIAL ADMISSIONS FORM APPROVED as to Nicole Neuman, Esq. on behalf of pltfs.Signed by Honorable Sylvia H. Rambo on 11/4/15. (ma) (Entered: 11/04/2015)
18 SPECIAL ADMISSIONS FORM APPROVED as to Stephen Fenn, Esq. on behalf of pltfs.Signed by Honorable Sylvia H. Rambo on 11/4/15. (ma) (Entered: 11/04/2015)
19 SPECIAL ADMISSIONS FORM APPROVED as to David Gersch, Esq. on behalf of pltfs.Signed by Honorable Sylvia H. Rambo on 11/4/15. (ma) (Entered: 11/04/2015)
20 BRIEF IN SUPPORT of Plaintiffs' Motion for Class Certification re 2 MOTION to Certify Class filed by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit(s) Exh. A (Transcript))(Wu, Paloma) (Entered: 11/05/2015)
22 ORDER: 1) A preliminary injunction hearing 4 set for 9:30 a.m. on01/25/16, and proceed, if necessary, until 2/3/16.2) Expedited discovery will commence on 11/13/15, and conclude on 1/13/16.3) Any expert reports due by 1/21/16.4) An answer to the complaint and a response to Pltfs mtn for class certification 2 , at least as they pertain to the proposed Class A members who are the subject of the preliminary injunction, shall be filed by 1/19/16.Signed by Honorable Sylvia H. Rambo on 11/10/15. (ma) (Entered: 11/10/2015)
23 ORDER: In the event a fee petition is filed with this court, the followingrequirements shall be adhered to by counsel throughout the pendency of thislitigation for purposes of submitting such a petition:1) Conference calls are limited to two attorneys per side;2) Court sessions are limited to three attorneys per side;3) Counsel should maintain documentation that specifically identifies thesubject of research or conference calls;4) Review of work is limited to two attorneys. Signed by Honorable Sylvia H. Rambo on 11/10/15. (ma) (Entered: 11/10/2015)
24 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney Blake Huffman is seeking special admission. Filing fee $ 50, receipt number 0314−3624852.. (Wu, Paloma) (Entered: 12/15/2015)
25 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Paloma Wu on behalf of All Plaintiffs Attorney Lauren Daniel is seeking special admission. Filing fee $ 50, receipt number 0314−3624886.. (Wu, Paloma) (Entered: 12/15/2015)
DOCKET ANNOTATION: Petitioners, Lauren Daniel and Blake Huffman, and Associate Counsel bar status verified. (pjr) (Entered: 12/21/2015)
26 SPECIAL ADMISSIONS FORM APPROVED as to Blake Huffman, Esq. on behalf of pltfs, Signed by Honorable Sylvia H. Rambo on 12/23/15. (ma) (Entered: 12/28/2015)
27 SPECIAL ADMISSIONS FORM APPROVED as to Lauren Daniel, Esq. on behalf of pltfsSigned by Honorable Sylvia H. Rambo on 12/23/15. (ma) (Entered: 12/28/2015)
28 STIPULATION regarding Confidential Material by Theodore Dallas, Robert Snyder, Edna I. McCutcheon, filed by Theodore Dallas, Robert Snyder, Edna I. McCutcheon.(Leisch, Doris) (Entered: 12/29/2015)
29 Order approving Stipulation 28 .Signed by Honorable Sylvia H. Rambo on 1/4/16. (ma) (Entered: 01/04/2016)

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 12 of 14

01/14/2016 01/19/2016 01/19/2016 01/20/2016 01/21/2016
01/27/2016 01/27/2016
10/26/2016 11/01/2016 05/11/2017 05/11/2017 05/11/2017
05/11/2017 05/11/2017 05/12/2017 05/13/2017
05/16/2017

DOCKET ANNOTATION: Per a teleconference held this date with counsel, the PI hearing will commence on 1/27/16 at 9:30 AM and continue 1/28/16, 1/29/16, 2/1/16 through 2/3/16 and if necessary 2/5/16. (ma) (Entered: 01/14/2016)
31 Unopposed MOTION for Extension of Time to Respond to Motion for Class Certification by Theodore Dallas, Edna I. McCutcheon, Robert Snyder. (Attachments: # 1 Proposed Order)(Leisch, Doris) (Entered: 01/19/2016)
32 ANSWER to 1 Complaint by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(Leisch, Doris) (Entered: 01/19/2016)
33 ORDER granting the Unopposed mtn for exttm 31 to Respond to Mtn for Class Certification 2 . Brief in Opposition due by 1/21/2016.Signed by Honorable Sylvia H. Rambo on 1/20/16. (ma) (Entered: 01/20/2016)
34 BRIEF IN OPPOSITION re 2 MOTION to Certify Class filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) Messier Dep, # 3 Exhibit(s) JMA Dep, # 4 Exhibit(s) Pattela Dep, # 5 Exhibit(s) Danick Dep)(Leisch, Doris) (Entered: 01/21/2016)
35 SETTLEMENT AGREEMENT. (ma) (Entered: 01/27/2016)
37 ORDER: The mtn for a preliminary injunction 4 and all of the forthcoming case mgmnt ddls are STAYED pending further order of court. IT IS FURTHER ORDERED THAT the mtn to for class certification 2 is DEFERRED. Signed by Honorable Sylvia H. Rambo on 1/27/16. (ma) (Entered: 01/27/2016)
38 MOTION to Withdraw as Attorney for Plaintiffs by Blake Huffman by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 10/26/2016)
39 ORDER granting the mtn to withdraw as counsel 38 . Atty Blake Huffman terminated.Signed by Honorable Sylvia H. Rambo on 11/1/16. (ma) (Entered: 11/01/2016)
40 MOTION for Preliminary Injunction (Amended and Revised) by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 05/11/2017)
41 MOTION to Exceed Page Limitation by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit(s) Exhibit A (Overlength PI brief), # 2 Proposed Order)(Walczak, Witold) (Entered: 05/11/2017)
42 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Witold J. Walczak on behalf of S.S., M.S., R.J.A., G.C., P.S., L.C., R.M., J.H., Jane Doe, T.S. Filing fee $ 50, receipt number 0314−4085379., filed by on behalf of S.S., M.S., R.J.A., G.C., P.S., L.C., R.M., J.H., Jane Doe, T.S..(Walczak, Witold) (Entered: 05/11/2017)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa) (Entered: 05/11/2017)
43 ORDER granting pltfs' mtn to exceed page limit 41 . Parties may file briefsregarding Pltfs Mtn to Renew and Amend Motion for PI that are up to 40 pages in length.Signed by Honorable Sylvia H. Rambo on 5/11/17. (ma) (Entered: 05/11/2017)
44 SPECIAL ADMISSIONS FORM APPROVED as to Nicole Tortoriello, Esq. on behalf of pltfsSigned by Honorable Sylvia H. Rambo on 5/11/17. (ma) (Entered: 05/12/2017)
45 Brief in Support of Motion for Preliminary Injunction by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit(s) Exhibits TOC, # 2 Exhibit(s) Ex. A, # 3 Exhibit(s) Ex. B, # 4 Exhibit(s) Ex. C, # 5 Exhibit(s) Ex. D, # 6 Exhibit(s) Ex. E, # 7 Exhibit(s) Ex. F, # 8 Exhibit(s) Ex. G, # 9 Exhibit(s) Ex. H, # 10 Exhibit(s) Ex. I, # 11 Exhibit(s) Ex. J, # 12 Exhibit(s) Ex. K, # 13 Exhibit(s) Ex. L, # 14 Exhibit(s) Ex. M)(Walczak, Witold) (Entered: 05/13/2017)
46 Plaintiffs' Unopposed MOTION to File Documents Under Seal filed by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(aaa) (Entered: 05/16/2017)

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 13 of 14

05/16/2017 05/16/2017
05/16/2017 05/16/2017 05/16/2017
05/17/2017
05/18/2017 05/18/2017 05/24/2017 05/26/2017 05/30/2017 06/15/2017
06/15/2017 08/11/2017 08/14/2017 08/14/2017 08/14/2017

47 DOCUMENT(S) (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement) (aaa) (Entered: 05/16/2017)
48 BRIEF IN SUPPORT re 40 MOTION for Preliminary Injunction (Amended and Revised) filed by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit(s) Exhibits TOC, # 2 Exhibit(s) Ex. A, # 3 Exhibit(s) Ex. B, # 4 Exhibit(s) Ex. C, # 5 Exhibit(s) Ex. D, # 6 Exhibit(s) Ex. E (under seal), # 7 Exhibit(s) Ex. F, # 8 Exhibit(s) Ex. G, # 9 Exhibit(s) Ex. H, # 10 Exhibit(s) Ex. I, # 11 Exhibit(s) Ex. J, # 12 Exhibit(s) Ex. K, # 13 Exhibit(s) Ex. L (under seal), # 14 Exhibit(s) Ex. M (under seal))(Walczak, Witold) (Attachment 2 replaced on 5/16/2017) (sc). (Attachment 3 replaced on 5/16/2017) (sc). (Entered: 05/16/2017)
49 MOTION to Withdraw as Attorney by Nicole Neuman by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order Proposed Order)(Walczak, Witold) (Entered: 05/16/2017)
50 ORDER granting pltfs' MOTION to Seal 46 .Signed by Honorable Sylvia H. Rambo on 5/16/17. (ma) (Entered: 05/16/2017)
51 ORDER: A hearing on pltfs' MOTION for Preliminary Injunction (Amended and Revised) 40 will be hedl on 6/15/2017 @ 9:30 AM in Harrisburg − Courtroom 3 before Honorable Sylvia H. Rambo.Signed by Honorable Sylvia H. Rambo on 5/16/17. (ma) (Entered: 05/16/2017)
52 Consent MOTION to Dismiss Party A.B. by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order Plaintiffs' Consent Motion for Plaintiff A.B.'s Voluntary Dismissal)(Killion, Victoria) (Entered: 05/17/2017)
53 ORDER granting the mtn to withdraw as counsel 49 filed by Attorney Nicole B Neuman.Signed by Honorable Sylvia H. Rambo on 5/18/17. (ma) (Entered: 05/18/2017)
54 ORDER granting the mtn to dismiss party 52 . A.B. (by and through his next friend J.B.) terminated.Signed by Honorable Sylvia H. Rambo on 5/18/17. (ma) (Entered: 05/18/2017)
55 NOTICE of Appearance by Matthew J. McLees on behalf of All Defendants (McLees, Matthew) (Entered: 05/24/2017)
56 First MOTION for Extension of Time to File Brief filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(McLees, Matthew) (Entered: 05/26/2017)
57 ORDER granting dfts' mtn for exttm 56 . Dfts shall file their bropp to pltfs' renewed and amended mtn for PI 40 by 6/6/2017.Signed by Honorable Sylvia H. Rambo on 5/30/17. (ma) (Entered: 05/30/2017)
59 2nd INTERIM SETTLEMENT AGREEMENT by Theodore Dallas, G.C., J.H., Jane Doe, L.C., M.S., Edna I. McCutcheon, P.S., R.J.A., R.M., S.S., Robert Snyder, T.S. Signed by Honorable Sylvia H. Rambo. (Attachments: # 1 Exhibit(s))(ma) (Entered: 06/15/2017)
60 ORDER deeming as Moot, pltfs' mtn to renew and amed the mtn for PI 40 .Signed by Honorable Sylvia H. Rambo on 6/15/17. (ma) (Entered: 06/15/2017)
61 MOTION to Withdraw as Attorney by Nicole Tortoriello by G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order Proposed Order Permitting Withdraw as Counsel)(Tortoriello, Nicole) (Entered: 08/11/2017)
62 MOTION to Withdraw as Attorney for Plaintiffs by Paloma Wu by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(Wu, Paloma) (Entered: 08/14/2017)
63 ORDER granting mtn to withdraw as counsel 62 by Paloma Wu.Signed by Honorable Sylvia H. Rambo on 8/14/17. (ma) (Entered: 08/14/2017)
64 ORDER granting the mtn to withdraw as counsel 61 by Nicole Tortoriello.Signed by Honorable Sylvia H. Rambo on 8/14/17. (ma) (Entered: 08/14/2017)

Case: 1:15-cv-2057 As of: 05/27/2020 02:25 PM EDT 14 of 14

10/17/2017 10/18/2017 03/19/2019 03/19/2019
03/21/2019 03/29/2019 04/01/2019 04/04/2019 04/08/2019 04/15/2019 04/17/2019 04/18/2019 04/23/2019 04/23/2019 06/03/2019 06/03/2019

65 MOTION to Withdraw as Attorney by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order Proposed Order re Motion to Withdraw as Counsel)(Killion, Victoria) (Entered: 10/17/2017)
66 ORDER granting the mtn to withdraw as cnsl by Victora Killion 65 . Atty Victoria L. Killion terminated.Signed by Honorable Sylvia H. Rambo on 10/18/17. (ma) (Entered: 10/18/2017)
67 Second MOTION for Preliminary Injunction by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S..(Walczak, Witold) (Entered: 03/19/2019)
68 BRIEF IN SUPPORT of Plaintiffs' Second Renewed and Amended re 4 MOTION for Preliminary Injunction, 67 Second MOTION for Preliminary Injunction filed by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Exhibit list, # 2 Exhibit(s) A (PRA report), # 3 Exhibit(s) B (DHS 1−16−18 letter), # 4 Exhibit(s) C (3−30−18 email))(Walczak, Witold) (Entered: 03/19/2019)
69 Proposed Order of Plaintiffs' Second Renewed and Amended by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S..(Walczak, Witold) (Entered: 03/21/2019)
70 First MOTION for Extension of Time to File Brief to 68 Brief in Support, Unopposed filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(McLees, Matthew) (Entered: 03/29/2019)
71 ORDER granting dfts' mtn for exttm 70 . Dfts shall file a bropp to pltfs' 2nd renewed mtn for PI 67 by 4/5/2019.Signed by Honorable Sylvia H. Rambo on 4/1/19. (ma) (Entered: 04/01/2019)
72 Second MOTION for Extension of Time to File Brief to 68 Brief in Support, Unopposed filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(McLees, Matthew) (Entered: 04/04/2019)
73 ORDER granting dfts' mtn for exttm 72 . Dfts shall file a bropp to pltfs' Second MOTION for Preliminary Injunction 67 .Brief in Opposition due by 4/15/2019Signed by Honorable Sylvia H. Rambo on 4/8/19. (ma) (Entered: 04/08/2019)
74 Third MOTION for Extension of Time to File Brief to 68 Brief in Support, Unopposed filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(McLees, Matthew) (Entered: 04/15/2019)
75 ORDER Granting dfts' mtn for exttm 74 . Dfts' bropp to pltfs' Second MOTION for Preliminary Injunction 67 due by 4/18/2019Signed by Honorable Sylvia H. Rambo on 4/17/19. (ma) (Entered: 04/17/2019)
76 Fourth MOTION for Extension of Time to File Brief Unopposed filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder.(McLees, Matthew) (Entered: 04/18/2019)
77 ORDER granting dfts' mtn for exttm 76 . Dft bropp to pltfs' 2nd renewed and amended mtn for PI 67 is due by 4/23/2019Signed by Honorable Sylvia H. Rambo on 4/23/19. (ma) (Entered: 04/23/2019)
78 BRIEF IN OPPOSITION re 67 Second MOTION for Preliminary Injunction filed by Theodore Dallas, Edna I. McCutcheon, Robert Snyder. (Attachments: # 1 Exhibit(s) Exhibit "A", # 2 Exhibit(s) Exhibit "B")(Leisch, Doris) (Entered: 04/23/2019)
79 Joint MOTION to Stay re 67 Second MOTION for Preliminary Injunction by A.B., G.C., J.H., Jane Doe, L.C., M.S., P.S., R.J.A., R.M., S.S., T.S.. (Attachments: # 1 Proposed Order)(Walczak, Witold) (Entered: 06/03/2019)
80 ORDER Granting the joint motion to Stay proceedings 79 re. Second MOTION for Preliminary Injunction 67 . Proceedings on this mtn are stayed until one or both of the parties advise the Court that the status has changed.Signed by Honorable Sylvia H. Rambo on 6/3/19. (ma) (Entered: 06/03/2019)