Case: 2:15-cv-00645-RJS As of: 02/01/2019 10:06 AM MST 1 of 14
STAYED,(b)(1)(A),MAG,CLOSED,JURY
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:15−cv−00645−RJS

Disability Law Center et al v. State of Utah et al Assigned to: Judge Robert J. Shelby Case in other court: Tenth Circuit, 16−00608 Cause: 28:1983 Civil Rights
Plaintiff

Date Filed: 09/08/2015 Date Terminated: 07/12/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Disability Law Center a Utah nonprofit corporation

represented by Aaron M. Kinikini DISABILITY LAW CENTER 205 N 400 W 1ST FL SALT LAKE CITY, UT 84103 (801)363−1347 Email: akinikini@disabilitylawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan L. Sullivan SNELL & WILMER (UT) 15 W SOUTH TEMPLE STE 1200 GATEWAY TOWER WEST SALT LAKE CITY, UT 84101 (801)257−1900 Email: asullivan@swlaw.com ATTORNEY TO BE NOTICED

Bret R. Evans SNELL & WILMER LLP 15 W SOUTH TEMPLE STE 1200 GATEWAY TOWER WEST SALT LAKE CITY, UT 84101 (801)257−1900 Email: brevans@swlaw.com ATTORNEY TO BE NOTICED

Erin Burns Sullivan DISABILITY LAW CENTER 205 N 400 W 1ST FL SALT LAKE CITY, UT 84103 (801)363−1347 ATTORNEY TO BE NOTICED

Jared C. Fields 12091 DRAPER RIDGE DR DRAPER, UT 84020 (801)440−0876 Email: jcfields@hotmail.com ATTORNEY TO BE NOTICED

Plaintiff
S. B. an individual by and through his next friend Margaret Goodman

represented by Aaron M. Kinikini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan L. Sullivan (See above for address) ATTORNEY TO BE NOTICED

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Bret R. Evans (See above for address) ATTORNEY TO BE NOTICED

Erin Burns Sullivan (See above for address) ATTORNEY TO BE NOTICED

Jared C. Fields (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A. U. by and through his next friend Mary Eka

represented by Aaron M. Kinikini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan L. Sullivan (See above for address) ATTORNEY TO BE NOTICED

Bret R. Evans (See above for address) ATTORNEY TO BE NOTICED

Erin Burns Sullivan (See above for address) ATTORNEY TO BE NOTICED

Jared C. Fields (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
S. W. an individual

represented by Aaron M. Kinikini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan L. Sullivan (See above for address) ATTORNEY TO BE NOTICED

Bret R. Evans (See above for address) ATTORNEY TO BE NOTICED

Erin Burns Sullivan (See above for address) ATTORNEY TO BE NOTICED

Jared C. Fields (See above for address) ATTORNEY TO BE NOTICED

V. Defendant State of Utah

represented by David N. Wolf UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856)

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LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: dnwolf@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Thompson OFFICE OF THE ATTORNEY GENERAL DEPT OF HUMAN SERVICES − EDO 195 N 1950 W 4TH FL SALT LAKE CITY, UT 84116 (801)538−4128 Email: lathomps@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Parker Douglas UTAH ATTORNEY GENERAL'S OFFICE 350 N STATE ST STE 230 PO BOX 142320 SALT LAKE CITY, UT 84114−2320 (801)538−9600 TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyler R. Green OFFICE OF THE ATTORNEY GENERAL 350 N STATE ST STE 230 SALT LAKE CITY, UT 84114 (801)538−1191 Email: tylergreen@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Utah Department of Human Services

represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

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Ann Williamson in her official capacity as Executive Director of the Utah Department of Human Services

represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Utah Division of Substance Abuse and Mental Health

represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Douglas Thomas in his official capacity as director of the Utah Division of Substance Abuse and Mental Health

represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Utah State Hospital
Defendant Dallas Earnshaw in his official capacity as Superintendent of Utah State Hospital

represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura K. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Parker Douglas (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/08/2015
09/08/2015

# Docket Text
1 Case has been indexed and assigned to Judge Robert J. Shelby. Plaintiffs S. B., Disability Law Center, A. U., S. W. is directed to E−File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $400.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance. (bdr) (Entered: 09/08/2015)
2 COMPLAINT 42 U.S.C. Section 1983 Complaint for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400, receipt number 1088−2336178), filed by S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet) Assigned to Judge Robert J. Shelby (Fields, Jared) Modified by adding the correct receipt number on 9/8/2015 (bdr). (Entered: 09/08/2015)

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09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/09/2015 09/10/2015 09/10/2015 09/14/2015

3 NOTICE of Appearance by Parker Douglas on behalf of All Defendants (Douglas, Parker) (Entered: 09/09/2015)
4 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Ann Williamson. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
5 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Utah Department of Human Services. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
6 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Utah Department of Human Services. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
7 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Dallas Earnshaw. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
8 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Utah Division of Substance Abuse and Mental Health. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
9 **RESTRICTED DOCUMENT**Summons Issued Electronically as to State of Utah. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
10 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Utah State Hospital. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/09/2015)
11 NOTICE of Appearance by Tyler R. Green on behalf of All Defendants (Green, Tyler) (Entered: 09/09/2015)
12 NOTICE of Appearance by Laura K. Thompson on behalf of All Defendants (Thompson, Laura) (Entered: 09/10/2015)
13 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Douglas Thomas. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (bdr) (Entered: 09/10/2015)
14 DOCKET TEXT ORDER The court orders the parties to follow the Short Form Discovery Motion procedure as outlined in the attached document in this case for all discovery disputes arising after this date. Signed by Judge Robert J. Shelby on

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09/14/2015
09/15/2015 09/17/2015 09/17/2015 09/17/2015 09/17/2015 09/17/2015 09/18/2015 09/18/2015 09/22/2015
09/22/2015
10/02/2015
10/02/2015

9/14/2015. (mjm) (Entered: 09/14/2015)
15 ACKNOWLEDGMENT OF SERVICE Executed as to 2 Complaint, 9 Summons Issued Electronically, 7 Summons Issued Electronically, 13 Summons Issued Electronically, 4 Summons Issued Electronically, 8 Summons Issued Electronically, 10 Summons Issued Electronically, 5 Summons Issued Electronically, Acknowledgment filed by S. B., Disability Law Center, A. U., S. W.. All Defendants. (Fields, Jared) (Entered: 09/14/2015)
16 NOTICE of Appearance by David N. Wolf on behalf of All Defendants (Wolf, David) (Entered: 09/15/2015)
17 ORDER REFERRING CASE to Magistrate Judge Brooke C. Wells under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. No attached document. Signed by Judge Robert J. Shelby on 9/17/2015. (jds) (Entered: 09/17/2015)
18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Fields, Jared) (Entered: 09/17/2015)
19 AFFIDAVIT/DECLARATION of 18 in Support re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel of Erin Sullivan filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Fields, Jared) (Entered: 09/17/2015)
20 AFFIDAVIT/DECLARATION of Jared C. Fields in Support re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Fields, Jared) (Entered: 09/17/2015)
21 Ex Parte (Not Sealed) MOTION for Leave to File Under Seal Exhibits to Declaration of Erin Sullivan filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Text of Proposed Order Proposed Order) Motions referred to Brooke C. Wells.(Fields, Jared) (Entered: 09/17/2015)
22 ORDER granting 21 Ex Parte (Not Sealed) Motion for Leave to File Under Seal Exhibits to Declaration of Erin Sullivan. Signed by Magistrate Judge Brooke C. Wells on 9/18/2015. (jds) (Entered: 09/18/2015)
23 NOTICE OF CONVENTIONAL FILING of Sealed Exhibits to Declaration of Erin Sullivan filed by Plaintiffs S. B., Disability Law Center, A. U., S. W. re 19 Affidavit/Declaration in Support of Motion, (Fields, Jared) (Entered: 09/18/2015)
24 MOTION for Extension of Time to File Answer and Memorandum in Support re 2 COMPLAINT filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) Modified docket entry relationship on 9/22/2015 (jds). (Entered: 09/22/2015)
25 ORDER granting 24 Motion for Extension of Time to Answer re 2 Complaint. Answer deadline updated for Dallas Earnshaw answer due 10/19/2015; State of Utah answer due 10/19/2015; Douglas Thomas answer due 10/19/2015; Utah Department of Human Services answer due 10/19/2015; Utah Division of Substance Abuse and Mental Health answer due 10/19/2015; Utah State Hospital answer due 10/19/2015; Ann Williamson answer due 10/19/2015. Signed by Judge Robert J. Shelby on 9/22/2015. (jds) (Entered: 09/22/2015)
26 Duplicate filing of Motion Defendant's MOTION for Extension of Time To File Opposition To Plaintiffs' Motion To Certify As Class Action and To Appoint Class Counsel filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. Motions referred to Brooke C. Wells.(Wolf, David) Modified on 10/5/2015 (jds). (Entered: 10/02/2015)
27 Unopposed MOTION for Extension of Time to file opposition re 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel filed by Defendants Dallas

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10/05/2015 10/16/2015 10/19/2015
10/21/2015 10/21/2015
10/23/2015 10/23/2015 10/26/2015 10/26/2015
10/30/2015

Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Wolf, David) Modified docket entry relationship on 10/5/2015 (jds). (Entered: 10/02/2015)
28 ORDER granting 27 Unopposed Motion for Extension of Time to File Response/Reply re 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel. Signed by Judge Robert J. Shelby on 10/5/2015. (jds) (Entered: 10/05/2015)
29 Second MOTION for Extension of Time to File Answer re 2 Complaint, and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 10/16/2015)
30 ORDER granting 29 Motion for Extension of Time to Answer re 2 Complaint,. Answer deadline updated for Dallas Earnshaw answer due 10/21/2015; State of Utah answer due 10/21/2015; Douglas Thomas answer due 10/21/2015; Utah Department of Human Services answer due 10/21/2015; Utah Division of Substance Abuse and Mental Health answer due 10/21/2015; Utah State Hospital answer due 10/21/2015; Ann Williamson answer due 10/21/2015. Signed by Judge Robert J. Shelby on 10/19/2015. (jds) (Entered: 10/19/2015)
31 MOTION for Extension of Time respond to Complaint and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) Modified event type on 10/21/2015 (jds). (Entered: 10/21/2015)
32 ORDER granting 31 Motion for Extension of Time to Answer re 2 Complaint,. Answer deadline updated for Dallas Earnshaw answer due 10/23/2015; State of Utah answer due 10/23/2015; Douglas Thomas answer due 10/23/2015; Utah Department of Human Services answer due 10/23/2015; Utah Division of Substance Abuse and Mental Health answer due 10/23/2015; Utah State Hospital answer due 10/23/2015; Ann Williamson answer due 10/23/2015. Signed by Judge Robert J. Shelby on 10/21/2015. (jds) (Entered: 10/21/2015)
33 MOTION for Extension of Time time to respond to complaint. and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 10/23/2015)
34 ORDER granting 33 Motion for Extension of Time. Signed by Judge Robert J. Shelby on 10/23/15. (jlw) (Entered: 10/23/2015)
35 Final MOTION for Extension of Time to File Answer re 2 Complaint, and Memorandum in Support , MOTION for Leave to File Excess Pages and Memorandum in Support motion to dismiss filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 10/26/2015)
36 ORDER granting 35 Motion for Extension of Time to Answer re 2 Complaint,. Answer deadline updated for Dallas Earnshaw answer due 10/30/2015; State of Utah answer due 10/30/2015; Douglas Thomas answer due 10/30/2015; Utah Department of Human Services answer due 10/30/2015; Utah Division of Substance Abuse and Mental Health answer due 10/30/2015; Utah State Hospital answer due 10/30/2015; Ann Williamson answer due 10/30/2015.; granting 35 Motion for Leave to File Excess Pages. Defendants brief in response to the Answer may be up to 35 pages long. Signed by Judge Robert J. Shelby on 10/26/2015. (jds) (Entered: 10/26/2015)
37 MOTION to Dismiss and Memorandum in Support , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human

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11/17/2015 11/17/2015 12/07/2015 12/09/2015 12/15/2015
12/16/2015 01/13/2016
01/13/2016 01/15/2016
01/15/2016 01/18/2016

Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order)(Douglas, Parker) (Entered: 10/30/2015)
38 MOTION for Extension of Time to File Response/Reply as to 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support and Memorandum in Support filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Evans, Bret) (Entered: 11/17/2015)
39 ORDER granting 38 Motion for Extension of Time to File Response/Reply re 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Plaintiffs Memorandum in Opposition to Motion to Dismiss due by 12/7/2015. Signed by Judge Robert J. Shelby on 11/17/2015. (jds) (Entered: 11/17/2015)
40 Plaintiff's MEMORANDUM in Opposition re 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Exhibit A − D, # 2 Exhibit E)(Sullivan, Alan) (Entered: 12/07/2015)
41 NOTICE OF HEARING ON MOTION re: 37 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : (Notice generated by Mary Jane McNamee) Motion Hearing set for 2/2/2016 at 10:00 AM in Rm 7.300 before Judge Robert J. Shelby. (mjm) (Entered: 12/09/2015)
42 Stipulated MOTION for Extension of Time to File Response/Reply as to 41 Notice of Hearing on Motion, 39 Order on Motion for Extension of Time to File Response/Reply, 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support , 40 Memorandum in Opposition to Motion, and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 12/15/2015)
43 ORDER granting 42 Motion for Extension of Time to File Response/Reply re 37 MOTION to Dismiss. Reply Brief due by 1/14/2016. Signed by Judge Robert J. Shelby on 12/15/2015. (jds) (Entered: 12/16/2015)
44 MOTION for Extension of Time to File Response/Reply as to 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 01/13/2016)
45 ORDER granting 44 Motion for Extension of Time to File Response/Reply re 37 MOTION to Dismiss Reply Brief due by 1/15/2016. Signed by Judge Robert J. Shelby on 1/13/2016. (jds) (Entered: 01/13/2016)
46 MOTION for Extension of Time to File Response/Reply as to 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 01/15/2016)
47 ORDER granting 46 Motion for Extension of Time to File Response/Reply re 37 MOTION to Dismiss, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Replies due by 1/18/2016. Signed by Judge Robert J. Shelby on 1/15/2016. (blh) (Entered: 01/15/2016)
48 REPLY to Response to Motion re 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and

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02/02/2016
02/17/2016
04/07/2016 04/24/2016 04/25/2016 04/27/2016 05/04/2016 05/09/2016

Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Douglas, Parker) (Entered: 01/18/2016)
49 Minute Entry for proceedings held before Judge Robert J. Shelby: Counsel present for parties. The Court hears oral argument. The Court takes the motion under advisement. Motion Hearing held on 2/2/2016 re 37 MOTION to Dismiss and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by State of Utah, Dallas Earnshaw, Douglas Thomas, Utah State Hospital, Utah Division of Substance Abuse and Mental Health, Ann Williamson, Utah Department of Human Services. Attorney for Plaintiff: Bret R. Evans, Jared C. Fields, Alan L. Sullivan, Erin Sullivan, Attorney for Defendant: Parker Douglas, Laura K. Thompson. Court Reporter: Ray Fenlon.(Time Start: 10:00 a.m., Time End: 12:31 p.m., Room 7.300.)(kpf) (Entered: 02/02/2016)
50 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of DEFENDANTS' MOTION TO DISMISS held on FEBRUARY 2, 2016 before Judge ROBERT J. SHELBY. Court Reporter/Transcriber RAYMOND P. FENLON, Telephone number (801) 809−4634.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/9/2016. Redacted Transcript Deadline set for 3/21/2016. Release of Transcript Restriction set for 5/17/2016. (jds) Modified on 5/17/2016 by removing restricted text (las). (Entered: 02/17/2016)
51 MEMORANDUM DECISION AND ORDER denying 37 the State's Motion to Dismiss. Signed by Judge Robert J. Shelby on 4/7/2016. (jds) (Entered: 04/07/2016)
52 MOTION for Extension of Time TO FILE ANSWER AND OPPOSITION BRIEF TO PLAINTIFFS MOTION TO CERTIFY CLASS ACTION AND TO APPOINT CLASS COUNSEL, DOC. #18 and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 04/24/2016)
53 ORDER granting 52 Unopposed Motion for Extension of Time to file answer and opposition brief to 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel. Signed by Judge Robert J. Shelby on 4/25/2015. (jds) (Entered: 04/25/2016)
54 Defendant State of Utah, et als ANSWER to Complaint filed by State of Utah.(Thompson, Laura) (Entered: 04/27/2016)
55 REPORT OF ATTORNEY PLANNING MEETING. (Evans, Bret) (Entered: 05/04/2016)
56 MOTION for Extension of Time to File Response/Reply as to 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel and Memorandum in Support filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Douglas, Parker) (Entered: 05/09/2016)

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05/09/2016 05/16/2016 05/19/2016 05/19/2016 05/23/2016 06/10/2016 06/10/2016 06/13/2016 06/13/2016
06/17/2016 06/27/2016 07/29/2016 08/03/2016

57 ORDER granting 56 Motion for Extension of Time to File Response/Reply re 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel. Brief in Opposition due by 5/16/2016. Signed by Judge Robert J. Shelby on 5/9/2016. (jds) (Entered: 05/09/2016)
58 MEMORANDUM in Opposition re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Exhibit 1)(Douglas, Parker) (Entered: 05/16/2016)
59 Stipulated MOTION for Extension of Time to File Response/Reply as to 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel and Memorandum in Support filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Evans, Bret) (Entered: 05/19/2016)
60 ORDER granting 59 Motion for Extension of Time to File Response/Reply re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel. Replies due by 6/14/2016. Signed by Magistrate Judge Brooke C. Wells on 5/19/2016. (jds) (Entered: 05/19/2016)
61 SCHEDULING ORDER: Amended Pleadings due by Plaintiffs 9/6/2016, Defendants 9/20/2016. Joinder of Parties due by Plaintiffs 9/6/2016, Defendants 9/20/2016. Discovery due by 4/14/2017. Motions due by 5/5/2017. Deadline for filing a request for a scheduling conference due by 5/12/2017. Signed by Magistrate Judge Evelyn J. Furse on 5/23/2016. (jds) (Entered: 05/23/2016)
62 Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Evans, Bret) (Entered: 06/10/2016)
63 ORDER granting 62 Ex Parte Motion for Leave to File Overlength Reply in support of Plaintiffs Motion to Certify Class and Appoint Class Counsel. Signed by Magistrate Judge Brooke C. Wells on 6/10/2016. (jds) (Entered: 06/10/2016)
64 REPLY to Response to Motion re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Exhibit A − State v. Adams, # 2 Exhibit B − Burnside v. Whitley, # 3 Exhibit C − State v. Parry)(Sullivan, Alan) (Entered: 06/13/2016)
65 AFFIDAVIT/DECLARATION of Erin Sullivan in Support re 18 Plaintiff's MOTION to Certify Class and Memorandum in Support and to Appoint Class Counsel filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Exhibit A − NCP Lists, # 2 Exhibit B − BZ Court Docs, # 3 Exhibit C − JS Court Docs, # 4 Exhibit D − SE Court Docs, # 5 Exhibit E − RISE Patient Handbook, # 6 Exhibit F − RISE Contract, # 7 Exhibit G − RISE Budget Request)(Sullivan, Alan) (Entered: 06/13/2016)
66 NOTICE OF HEARING ON MOTION re: 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel : (Notice generated by Mary Jane McNamee) Motion Hearing set for 8/18/2016 at 1:30 PM in Rm 7.300 before Judge Robert J. Shelby. (mjm) (Entered: 06/17/2016)
67 AMENDED NOTICE OF HEARING ON MOTION re: 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel : (Notice generated by Mary Jane McNamee) Motion Hearing RESET for 9/22/2016 at 1:45 PM in Rm 7.300 before Judge Robert J. Shelby. (mjm) (Entered: 06/27/2016)
68 Joint MOTION for Protective Order Stipulated filed by Defendant State of Utah. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit) Motions referred to Brooke C. Wells.(Thompson, Laura) (Entered: 07/29/2016)
69 ORDER granting 68 Stipulated Motion for Protective Order. Signed by Judge Robert J. Shelby on 8/3/2016. (Attachments: # 1 Disclosure Agreement) (jds) (Entered: 08/03/2016)

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09/22/2016
09/27/2016 10/04/2016

70 Minute Entry for proceedings held before Judge Robert J. Shelby: Motion Hearing held on 9/22/2016 re 18 Plaintiff's MOTION to Certify Class and to Appoint Class Counsel filed by A. U., S. W., S. B., Disability Law Center. Counsel are present. The court hears argument and takes the motion under advisement. Attorney for Plaintiff: Alan L. Sullivan, Aaron M. Kinikini, Bret R. Evans, Attorney for Defendant: Parker Douglas, Laura K. Thompson, David N. Wolf. Court Reporter: Ray Fenlon.(cff) (Entered: 09/22/2016)
71 MEMORANDUM DECISION AND ORDER granting 18 Plaintiffs Motion to Certify as Class Action and to Appoint Class Counsel. Signed by Judge Robert J. Shelby on 9/27/2016. (jds) (Entered: 09/27/2016)
72 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of PLAINTIFF'S MOTION TO CERTIFY CLASS AND APPOINT CLASS COUNSEL held on SEPTEMBER 22, 2016 before Judge ROBERT J. SHELBY. Court Reporter/Transcriber RAYMOND P. FENLON, Telephone number (801) 809−4634.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

10/12/2016 11/07/2016
12/15/2016 12/15/2016 01/03/2017 01/03/2017 01/06/2017

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/25/2016. Redacted Transcript Deadline set for 11/4/2016. Release of Transcript Restriction set for 1/3/2017. (jds) Modified on 1/3/2017 by removing restricted text (las). (Entered: 10/04/2016)
74 NOTICE of U.S. Court of Appeals Number(16−608) re: Petition for Permission to Appeal re 71 Order on Motion to Certify Class, Memorandum Decision. (Attachments: # 1 Petition for Permission to Appeal) (jmr) (Entered: 10/12/2016)
75 ORDER of USCA Tenth Circuit−This matter is before the court on the Utah Petitioners' Petition for Permission to Appeal and Order Granting Class Certification. Upon consideration, and after very careful review of the petition, the response, the reply, and the district court's order, the Petition for Permission is Denied. Terminated on the merits after submissions without oral hearing. Written, unsigned, and unpublished. Final order filed denying petition for permission to appeal by judges: Briscoe, Hartz, and Moritz. (jmr) (Entered: 11/08/2016)
76 FILED IN ERROR − RESPONSE to Discovery Request from State of Utah filed by Defendant State of Utah.(Thompson, Laura) Modified on 12/15/2016: added error text (alt) (Entered: 12/15/2016)
77 CLERK'S NOTICE OF ERROR re 76 Response to Discovery. Description of error: Document should not have been filed with the court per DUCivR 26−1(b). (alt) (Entered: 12/15/2016)
78 STRICKEN − Signature line missing, document will be refiled by filer. MOTION to Stay of Proceedings filed by Plaintiff Disability Law Center. (Attachments: # 1 Proposed Order Granting Joint Motion for Stay of Proceedings) Motions referred to Brooke C. Wells.(Kinikini, Aaron) Modified on 1/3/2017 (jds). (Entered: 01/03/2017)
79 Joint MOTION to Stay Of Proceedings and Motion to Amend Scheduling Order filed by Plaintiff Disability Law Center. (Attachments: # 1 Proposed Order Granting Joint Motion for Stay of Proceedings) Motions referred to Brooke C. Wells.(Kinikini, Aaron). Added MOTION for Scheduling Order on 1/6/2017 (jds). (Entered: 01/03/2017)
80 ORDER granting 79 Motion to Stay of Proceeding, granting 79 Motion to Amend Scheduling Order: Discovery due by 6/23/2017, Motions due by 7/14/2017, Deadline for filing a request for a scheduling conference due by 7/21/2017. Signed by

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03/17/2017 03/20/2017 04/17/2017
04/17/2017 06/12/2017
06/14/2017 06/19/2017 06/26/2017 07/05/2017 07/11/2017
07/12/2017 07/12/2017

Magistrate Judge Brooke C. Wells on 1/5/2017. (jds) (Entered: 01/06/2017)
81 Joint MOTION to Stay of Proceedings filed by Plaintiff Disability Law Center. (Attachments: # 1 Exhibit Proposed order Granting Second Joint Motion for Stay of Proceedings) Motions referred to Brooke C. Wells.(Kinikini, Aaron) (Entered: 03/17/2017)
82 ORDER granting 81 Second Joint MOTION to Stay of Proceedings filed by Disability Law Center. Discovery due by 8/23/2017. Motions due by 9/14/2017. Deadline for filing a request for a scheduling conference due by 9/21/2017. Signed by Magistrate Judge Brooke C. Wells on 3/20/2017. (blh) (Entered: 03/20/2017)
83 Joint MOTION to Amend/Correct 61 Scheduling Order, filed by Defendants Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson. (Attachments: # 1 Text of Proposed Order Amended Scheduling Order) Motions referred to Brooke C. Wells.(Wolf, David) Modified event type on 4/17/2017 (jds). (Entered: 04/17/2017)
84 ORDER granting 83 Motion to Amend Scheduling Order: Discovery due by 9/20/2017. Motions due by 10/12/2017. Signed by Magistrate Judge Brooke C. Wells on 4/17/2017. (jds) (Entered: 04/17/2017)
85 Joint MOTION Appointment of Monitor , Joint MOTION for Settlement Approval of Settlement Agreement, Joint MOTION to Stay Proceedings filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Attachments: # 1 Exhibit 1 − Settlement Agreement, # 2 Exhibit 2 − Notice to Class Members, # 3 Exhibit 3 − Notice to Defense Counsel, # 4 Exhibit 4 − Curriculum Vitae for Patrick Fox MD, # 5 Text of Proposed Order Proposed Order) Motions referred to Brooke C. Wells.(Sullivan, Alan) (Entered: 06/12/2017)
86 ORDER re 85 Joint MOTION Appointment of Monitor, Joint MOTION for Approval of Settlement Agreement, Joint MOTION to Stay Proceedings. The Court will hold a fairness hearing on the fairness, reasonableness, and adequacy of the Settlement Agreement set for 7/11/2017 at 03:00 PM in Rm 7.300 before Judge Robert J. Shelby. Signed by Judge Robert J. Shelby on 6/14/2017. (jds) (Entered: 06/14/2017)
87 Motions No Longer Referred: 85 Joint MOTION Appointment of Monitor Joint MOTION for Settlement Approval of Settlement AgreementJoint MOTION to Stay Proceedings (ems) (Entered: 06/19/2017)
88 AFFIDAVIT/DECLARATION of Alan L. Sullivan in Support re 85 Joint MOTION Appointment of Monitor Joint MOTION for Settlement Approval of Settlement AgreementJoint MOTION to Stay Proceedings filed by Plaintiffs S. B., Disability Law Center, A. U., S. W.. (Sullivan, Alan) (Entered: 06/26/2017)
89 NOTICE of Notice of Filing Comments and Objections to Proposed Settlement Agreement by Disability Law Center (Attachments: # 1 Exhibit Responses to Proposed Class Action Settlement) (Sullivan, Erin) (Entered: 07/05/2017)
90 Minute Entry for proceedings held before Judge Robert J. Shelby. Motion Hearing held on 7/11/2017. After hearing from counsel. Court granted the 85 Joint Motion for Appointment of Monitor, Approval of the Settlement Agreement and Stay of Proceedings. For reasons stated by Mr. Sullivan and submissions from counsel, Court finds the settlement to be fair, reasonable and adequate. Court ordered the proceeding in this case stayed for 5 years. Court further appointed Dr. Patrick K. Fox as Monitor. Court will prepare a written order. Attorney for Plaintiff: Alan L. Sullivan, Bret R. Evans, Erin Sullivan, Attorney for Defendant: David N. Wolf, Laura K. Thompson. Court Reporter: Ray Fenlon.(ss) (Entered: 07/12/2017)
91 ORDER re 90 Motion Hearing. Follows oral order of 7/11/2017 granting 85 Joint Motion for Appointment of Monitor, Approval of the Settlement Agreement and Stay of Proceedings. Signed by Judge Robert J. Shelby on 7/12/2017. (jds) (Entered: 07/12/2017)
92 ORDER Administratively Closing this Case per 91 Order. Case may be reopened upon motion of pla(s) or dft(s). Magistrate Judge Brooke C. Wells no longer assigned to case. Signed by Judge Robert J. Shelby on 7/12/2017. (jds) (Entered: 07/12/2017)

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09/25/2017

93 NOTICE OF WITHDRAWAL OF COUNSEL of Parker Douglas filed by David N. Wolf on behalf of Dallas Earnshaw, State of Utah, Douglas Thomas, Utah Department of Human Services, Utah Division of Substance Abuse and Mental Health, Utah State Hospital, Ann Williamson (Wolf, David) (Entered: 09/25/2017)

 
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Aaron M. Kinikini (10225) Erin B. Sullivan (15462) DISABILITY LAW CENTER 205 North 400 West Salt Lake City, Utah 84103 Telephone: (801) 363-1347 Fax: (801) 363-1437 Email: akinikini@disabilitylawcenter.org
esullivan@disabilitylawcenter.org

Alan L. Sullivan (3152) Jared C. Fields (10115) Bret Evans (15131) SNELL & WILMER L.L.P. 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101 Telephone: 801.257.1900 Facsimile: 801.257.1800 Email: asullivan@swlaw.com
jfields@swlaw.com brevans@swlaw.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DISABILITY LAW CENTER, a Utah nonprofit corporation; S.B., an individual, by and through his next friend Margaret Goodman; A.U., by and through his next friend Mary Eka; and S.W., an individual,
Plaintiffs,
vs.
STATE OF UTAH; UTAH DEPARTMENT OF HUMAN SERVICES; ANN WILLIAMSON, in her official capacity as Executive Director of the Utah Department of Human Services; UTAH DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH; DOUGLAS THOMAS, in his official capacity as Director of the Utah

42 U.S.C. § 1983 COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF CLASS ACTION JURY TRIAL DEMANDED
Case No. 2:15-cv-00645-RJS Judge Robert J. Shelby

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Division of Substance Abuse and Mental Health; UTAH STATE HOSPITAL; DALLAS EARNSHAW, in his official capacity as Superintendent of Utah State Hospital, Defendants.
Plaintiff Disability Law Center (the “DLC”) and Plaintiffs S.B., A.U., and S.W., each of whom appears individually and on behalf of all others similarly situated, hereby complain of Defendants State of Utah; Utah Department of Health Services (“DHS”) and its Executive Director Ann Williamson; Utah Division of Substance Abuse and Mental Health (“SAMH”) and its Director Douglas Thomas; and the Utah State Hospital (“USH”) and its Superintendent Dallas Earnshaw, and allege as follows:
NATURE OF THE ACTION 1. In this action, Plaintiffs seek an Order of the Court declaring the rights of the parties and enjoining the State of Utah and its agencies from unconstitutionally delaying psychiatric treatment for dozens of inmates with mental illness who, like the individual Plaintiffs identified below, have been charged with criminal offenses, but who have been determined incompetent to stand trial. Under color of state law, the State of Utah and the other Defendants have deprived the individual Plaintiffs and the members of the class of inmates they represent of their right to due process of laws, secured under the Fourteenth Amendment to the United States Constitution and Article I, §7 of the Utah Constitution. 2. When an individual charged with a crime is found to be incompetent to stand trial, Defendant USH is responsible for providing treatment in an effort to restore the individual to competency. Defendant USH is the only facility in the state authorized to perform such competency restoration treatment.
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3. For years, Defendant USH has failed to provide competency restoration treatment within a reasonable period of time from the date of the court order requiring treatment, as measured against nationally-recognized standards. Individuals who are adjudged incompetent are placed on a waiting list for months, during which they remain confined in a municipal or county jail until a bed at Defendant USH’s Forensic Facility becomes available. It is not uncommon for these individuals to wait in jail for six months or more after issuance of the order committing them for treatment until Defendant USH accepts custody. In fact, in some cases these individuals with mental illness are held in jail pending treatment for periods longer than the period to which they would likely be sentenced if found guilty of the crime. But none of these persons has been convicted of the crime for which they are being held. All are presumed innocent.
4. The situation faced by these inmates has now reached a state of crisis. Defendant USH’s waitlist has doubled each year for the past three years, with wait times increasing from 30 days to 180 days over the same period. In 2013, there were 15 individuals with mental illness on the list. Today, there are at least 56.
5. As the result of these delays, individuals with mental illness must languish in Utah’s county jails without appropriate mental health treatment until a forensic bed becomes available at Defendant USH. Jails are not intended to be, or operated as, therapeutic facilities; they are, by design, punitive in nature. Because county jails are not designed or administered to provide for the psychiatric needs of individuals with mental illness, Plaintiffs receive little or no meaningful treatment while they wait for a bed at Defendant USH. Inmates with severe mental illness present the jail with special discipline and management problems. To protect these
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vulnerable people from bullying and abuse, jail personnel frequently place them in protective custody or solitary confinement, which only serves to aggravate the inmates’ mental illness.
6. These delays violate the inmates’ right to due process of the laws under the Fourteenth Amendment and the corresponding provision of the Utah Constitution. Defendants have the duty to accept and treat mentally incompetent defendants within a reasonable period of time, which must be measured in hours and days, not months. Defendants’ failure to provide timely treatment forces Plaintiffs and the members of the class they represent to wait months in county jails for court-ordered competency services that Defendants are statutorily required to provide. In this case, plaintiffs seek a declaration of their rights and an order enjoining Defendants from violating their rights.
JURISDICTION AND VENUE 7. This action is brought under 42 U.S.C. § 1983 because Defendants, and each of them, have subjected Plaintiffs and the members of the class of persons they represent, to the deprivation of rights secured under the United States Constitution. 8. This action arises under the Fourteenth Amendment to the United States Constitution as well as under Article I, §7 of the Utah Constitution. Accordingly, this Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 1343 (civil rights jurisdiction). 9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the dispute occurred in this district.
PARTIES 10. Plaintiff DLC is a non-profit corporation, and has been designated by the Governor of the State of Utah as the state’s protection and advocacy (“P&A”) system. The DLC
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is a federally authorized and funded organization established under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (“PAIMI”), 42 U.S.C. § 10801, et seq. Under the leadership of its governing board and advisory councils, the DLC advocates for and protects the legal rights of people with disabilities, including individuals with mental illness, across the state of Utah. The DLC consults with individuals with disabilities and their family members in identifying organizational priorities. The DLC accomplishes this by reserving space on its governing board and advisory councils for such individuals, providing a formal grievance process, and ensuring opportunities for public comment.
11. As the designated P&A system for the state of Utah, the DLC is authorized by Congress to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B).
12. The DLC’s 16-member elected governing board consists of individuals with disabilities and their family members. The board is knowledgeable of the needs of individuals with mental illness and is advised by the PAIMI Advisory Council. Specifically, the PAIMI Advisory Council advises the DLC and its governing board on the priorities and policies that guide the DLC’s work to protect and advocate for the rights of Utahns with mental illness. The PAIMI Advisory Council is composed of consumers of mental health services, family members, providers, attorneys, and other interested and knowledgeable persons from the community. The DLC is closely connected to the interests of those it serves.
13. Plaintiff S.B. is a 27-year old U.S. citizen residing in the State of Utah who has been charged with shoplifting, a third degree felony. On March 11, 2015, following three courtordered competency evaluations, a Utah district court judge found Plaintiff S.B. to be
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incompetent to stand trial. On the same day, the court ordered Plaintiff S.B. to receive competency restoration treatment. In a letter dated March 18, 2015, Defendant USH informed the court of its waiting list for admissions. In letters dated June 3, 2015, July 6, 2015, and August 13, 2015, Defendant USH sought extensions of three separate competency review hearings due to the hospital’s waiting list. Plaintiff S.B. remains in the custody of the Utah County Jail.
14. Plaintiff S.B.’s current mental state limits his ability to protect his legal interests. A next friend must therefore represent his interests. S.B. is close to his mother and believes that she would best be able to protect his interests. S.B.’s mother, Margaret Goodman, is very concerned about S.B. and is caring for his cat and dog while he is in jail. Margaret Goodman has volunteered to serve as S.B.’s next friend.
15. Plaintiff A.U. is a 34-year old U.S. citizen residing in the State of Utah who has been charged with violating his probation. After pleading guilty to third-degree violation of a protective order, A.U. was sentenced to probation in 2014. He was subsequently charged with several misdemeanors, which resulted in the violation of his probation, and booked into the Utah County jail on October 10, 2014. On April 6, 2015, following two court-ordered competency evaluations and a Progress/Violation Report filed by the Division of Adult Probation and Parole, a Utah district court judge found Plaintiff A.U. to be incompetent to stand trial. On the same day, the court ordered Plaintiff A.U. to receive competency restoration treatment. In a letter dated April 9, 2015, Defendant USH informed the court of its waiting list for admissions. In a letter dated June 2, 2015, Defendant USH sought an extension of a June 8, 2015 competency review hearing due to the hospital’s waiting list. Despite the court’s June 8, 2015 order that
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Plaintiff A.U. be released from the Utah County Jail on GPS pending available space at Defendant USH, Plaintiff A.U. remains in the custody of the Utah County Jail.
16. Plaintiff A.U.’s current mental state limits his ability to protect his legal interests. A next friend must therefore represent his interests. A.U.’s sister, Mary Eka, has volunteered to serve as his next friend.
17. Plaintiff S.W. is a 71-year old U.S. citizen residing in the State of Utah who has been charged with shoplifting. On May 7, 2015, a Utah district court judge found Plaintiff S.W. mentally ill and ordered him to receive treatment, care, custody, and security that is adequate and appropriate to S.W.’s conditions and needs. In a letter dated May 11, 2015, Defendant USH informed the court of its waiting list for admissions. Plaintiff S.W. remains in the custody of the Salt Lake County Jail.
18. S.W.’s current mental state limits his ability to protect his legal interests. A next friend or guardian ad litem must therefore represent his interests. S.W. could not identify any family with whom he maintains a relationship who could fill this role.
19. The Plaintiffs identified in paragraphs 13 through 18 (hereinafter collectively the “Class Plaintiffs”) bring this action on behalf of themselves and as alleged on behalf of the class of inmates they represent. Each Class Plaintiff is a mentally incompetent criminal defendant who is being detained, or has been detained in a county jail in the state of Utah while awaiting transfer for competency restoration treatment.
20. Each of the Class Plaintiffs, and each current and future member of the Class in this case, has been adjudged to be mentally incompetent to stand trial in a criminal proceeding. As a result of this incompetency, Plaintiffs’ interests may need to be represented through representatives such as next friends or guardians ad litem.
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21. While two of the three named Class Plaintiffs at this time are represented by individuals who have agreed to serve as next friend, no next friend has been identified for S.W. It may become necessary for the Court to appoint one or more guardians ad litem or “issue another appropriate order” under Fed. R. Civ. P. 17(c)(2) for S.W., or for other Plaintiffs who may join the case, upon motion during this proceeding.
22. Defendant DHS is the state agency of Utah designated to administer or supervise the administration of competency restoration treatment under Utah Code Ann. § 77-15-6(1).
23. Defendant Ann Williamson is the Executive Director of DHS and is sued in her official capacity. As executive director of DHS, Defendant Williamson is ultimately responsible for the administration and supervision of Defendant USH.
24. Defendant DSAMH is a division within DHS. DSAMH was created as Utah’s substance abuse and mental health authority by Utah Code Ann. § 62A-15-103. DSAMH is charged with ensuring the availability of a comprehensive continuum of services for people with mental health disorders and substance abuse issues.
25. Defendant Douglas Thomas is the Director of DSAMH and is sued in his official capacity. As director, Defendant Thomas is responsible for the administration and supervision of Defendant USH.
26. Defendant USH is a state psychiatric hospital. It is charged with the responsibility to serve the needs of Utahns with pending criminal proceedings who are ordered to receive competency restoration services. Defendant USH is located in Provo, Utah.
27. Defendant Dallas Earnshaw is the Superintendent of USH and is sued in his official capacity. As Superintendent, Defendant Earnshaw is responsible for oversight, operation, and management of Defendant USH. As Superintendent, Defendant Earnshaw also
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sees that all legal and moral responsibilities pertaining to Defendant USH, as described in statute, state policy, and/or governmental rules and regulations are appropriately met. Defendant Earnshaw is also responsible for hiring the members of Defendant USH’s executive team, including the Director of Forensic Services.
CLASS ACTION ALLEGATIONS 28. Plaintiffs bring this action as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of themselves and all members of the class of persons who are now, or will be in the future, charged with a crime in the State of Utah, and who are ordered to receive competency restoration services through Defendant USH’s Forensic Facility (the “Class”). 29. Plaintiffs seek class-wide declaratory and injunctive relief pursuant to Rule 23(b)(2). 30. In addition to Class members currently held in Utah jails, the Class consists of an unknown number of future defendants who will be ordered to receive competency restoration services in the future. The exact number of inmates currently in the Class is not known to Plaintiffs with certainty. On information and belief, the number of existing Class members fluctuates, but is believed to consist of approximately 40 to 60 individuals at present. The current number of Class members can be determined through appropriate discovery, although the number of potential future Class members is indeterminable. 31. The individual Plaintiffs’ claims are typical of the claims of all members of the Class because the individual Plaintiffs and the other Class members have all been adjudicated, or will be adjudicated to be incompetent and are, or will be, confined in a jail while waiting for treatment at Defendant USH’s Forensic Facility. Plaintiffs and all members of the Class have
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similarly suffered harm, or will suffer harm in the future, arising from Defendants’ actions and inaction.
32. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. These common legal and factual questions include:
a. Whether Defendants’ failure to admit individuals with mental illness to Defendant USH’s Forensic Facility for competency restoration services in a reasonably timely manner violates the Fourteenth Amendment of the United States Constitution.
b. Whether Defendants’ failure to admit individuals with mental illness to Defendant USH’s Forensic Facility for competency restoration services in a reasonably timely manner violates Article 1, § 7 of the Utah Constitution.
c. Whether Defendants have failed to provide competency restoration treatment to Plaintiffs and other Class members within a reasonable period of time.
d. Whether Plaintiffs and other Class Members are entitled to the declaratory and injunctive relief they seek.
e. Whether Plaintiffs and other Class Members are entitled to an award of reasonable attorney fees and costs of this suit.
33. Defendants have acted or refused to act on grounds generally applicable to the entire Class.
34. The claims asserted herein are capable of repetition while evading review. There is a continuing and substantial public interest in these matters, justifying declaratory and injunctive relief in favor of the Plaintiffs and the Class.
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35. This suit may be maintained as a class action pursuant to Rules 23(a) and (b)(2), Federal Rules of Civil Procedure, because Plaintiffs and other members of the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, commonality, typicality, and adequacy are present.
36. A class action is the best available method for adjudication of these legal issues because individual litigation of these claims would be impracticable, and individual litigation would be unduly burdensome to the courts. Furthermore, this suit may be maintained as a class action because questions of law and fact common to the Class predominate over the questions affecting only individual class members, and individual litigation would increase the likelihood of inconsistent or contradictory judgments. A class action presents fewer management difficulties and provides the benefits of a single adjudication, economy of scale, and comprehensive supervision by a single court.
FACTUAL ALLEGATIONS A. The State’s Duty to Admit Mentally Incompetent Detainees to Defendant
USH for Competency Restoration Services. 37. Title 77, chapter 15 of the Utah Code governs inquiries into the sanity of criminal defendants. These statutes outline the procedures that Utah courts must follow when a criminal defendant’s mental competency is challenged during criminal proceedings. 38. Under state and federal law, individuals who lack the ability to understand the nature of criminal court proceedings against them may not be tried. 39. Section 77-15-2 of the Utah Code provides that an individual is “incompetent to proceed if he is suffering from a mental disorder . . . resulting either in his inability” to: (1) “have a rational and factual understanding of the proceedings against him or of the punishment
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specified for the offense charged;” or (2) “consult with his counsel and participate in the proceedings against him with a reasonable degree of rational understanding.”
40. Under section 77-15-3(1) of the Utah Code, whenever a person charged with a public offense or serving a sentence of imprisonment is or becomes incompetent to proceed, a petition for inquiry may be filed in the district court of the county where the charge is pending or where the person is confined.
41. Once the issue of a defendant’s competency to proceed to trial has been raised, all criminal proceedings must be stayed. The court must review the allegations of incompetency and, if the allegations raise a bona fide doubt as to the defendant’s competency to stand trial, order an examination of the defendant and a hearing on the defendant’s mental condition. Utah Code Ann. § 77-15-5(1).
42. The defendant must be examined by at least two mental health experts not involved in the current treatment of the defendant. Id. at § 77-15-5(2)(b). The experts examining the defendant must “provide an initial report to the court and the prosecuting and defense attorneys within 30 days of the receipt of the court’s order.” Id. at § 77-15-6. The report must “inform the court of the examiner’s opinion concerning the competency of the defendant to stand trial, or, in the alternative, the examiner may inform the court in writing that additional time is needed to complete the report. If the examiner informs the court that additional time is needed, the examiner shall have up to an additional 30 days to provide the report to the court and counsel.” Id.
43. Once the report is received by the court, a hearing must be held “in not less than five and not more than 15 days, unless the court enlarges the time for good cause.” Id. at § 7715-5(9)(a).
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44. If, after the hearing, the defendant is found to be incompetent to stand trial, “the court shall order the defendant committed to the custody of the executive director of the Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency.” Id. at § 77-15-6(1).
45. According to a 2008 performance audit by the Utah Legislative Auditor General (the “2008 Audit”), Defendant USH is the only facility in the state of Utah that performs such competency restoration treatment. When individuals are found not competent to stand trial, they must be sent to Defendant USH’s Forensic Facility where treatment teams will attempt to restore the individual’s competency.
46. Section 77-15-6(2) of the Utah Code provides that “[t]he examiner or examiners designated by the executive director [of Defendant DHS] to assess the defendant’s progress toward competency may not be involved in the routine treatment of the defendant. The examiner or examiners shall provide a full report to the court and prosecuting and defense attorneys within 90 days of arrival of the defendant at the treating facility. If any examiner is unable to complete the assessment within 90 days, that examiner shall provide to the court and counsel a summary progress report which informs the court that additional time is necessary to complete the assessment, in which case the examiner shall have up to an additional 90 days to provide the full report.”
47. Once the court receives the full report, a hearing is held to determine the defendant’s current status. If the court finds that the defendant has been restored to competency, the defendant will be directed to stand trial. Id. at § 77-15-6(5)(a).
48. As the only facility in the state established to provide competency restoration treatment, Defendant USH—operated by Defendant SAMH, which is in turn a division of
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Defendant DHS—has the statutory duty to accept and provide restorative treatment to mentally incompetent defendants once they have been certified as such by the court.
49. In Utah, incompetent defendants must generally wait months after the court orders restorative treatment until they are transferred to Defendant USH’s Forensic Facility for treatment. None of these defendants has been found guilty, and yet the State warehouses them in county jails until Defendant USH has an open spot in its forensic unit. The warehousing of people with mental illness in county jails when they have not been convicted of any crime, and are legally unable to stand trial, violates the presumption of innocence and the due process right of Class Members to be free of confinement until convicted of a crime.
B. The Inability of County Jails in Utah to Provide Competency Restoration Services to Individuals Deemed Incompetent to Stand Trial.
50. According to the 2008 Audit, when Defendant USH’s Forensic Facility is full, “individuals are held in the jail awaiting an opening; there are no other adult forensic facilities in the state.”
51. Statistically, a significant portion of Utah’s jail population consists of people who suffer from mental illness. A 2006 study by the Bureau of Justice Statistics found that 64% of jail inmates nationally have some kind of mental illness. According to a national study published in the 2009 issue of Psychiatric Services, 16.9% of inmates have a serious mental illness. The 2009 report also concluded that the growth of local correctional populations has strained the limited capacity of jails to respond to the needs of inmates. According to the 2009 report, “[t]he situation is particularly challenging in the case of inmates with serious mental illnesses, who require specialized treatment and services.”
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52. According to the Treatment Advocacy Center, ten times more people with schizophrenia, bipolar disorder, and other acute forms of brain disease reside in prisons and county jails than in state mental hospitals. If those results are extrapolated to the Utah population, the Salt Lake County Metro Jail, with over 2,000 inmates, likely holds more individuals with serious mental illness than Defendant USH does.
53. Jail staff receives insufficient training on effective ways to interact with inmates who have mental health issues, and such inmates present special difficulties for jail staff. Mentally incompetent defendants often suffer from schizophrenia or bipolar disease and sometimes require special housing. Their mental illness often results in unpredictable and disruptive behavior. To minimize disruption and maintain order within the jail, it is not uncommon for these individuals to be placed in solitary confinement. Although the segregation of these individuals from the general jail population is often intended to protect their safety, such confinement makes their mental health condition worse and their prognosis more doubtful.
54. According to many of Utah’s jail commanders and correctional mental health staff, mental health treatment in Utah’s county jails is completely inadequate, particularly for individuals with acute mental illness who are most likely to require competency restoration treatment.
55. As noted above, jails are designed to be punitive, not therapeutic. There is broad consensus among mental health and correctional professionals throughout the nation that county jails are not appropriate settings in which to attempt to provide treatment designed to restore a person to competency. Utah’s county jails are no exception.
56. Unlike county jails in Utah, Defendant USH provides patients with intensive individualized care and treatment. According to Defendant USH’s website, “[d]etermination of
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the most therapeutic approaches for each patient is done by a constant effort to better understand the patient, the illness, and effective treatment options.” “Caring for the welfare of the patient” is Defendant USH’s “first priority.”
57. Treatment at Defendant USH’s Forensic Facility “includes a combination of medication; individual, group, and family therapy; work opportunities; physical therapy; and occupational therapy.”
58. Peer interaction is an important part of the treatment at Defendant USH’s Forensic Facility. It encourages patients to become involved with those around them and provides them a real opportunity to positively influence others. According to Defendant USH, patient input is encouraged at all levels of treatment, which teaches individual responsibility and accountability. It is the goal of Defendant USH’s Forensic Facility to help prepare each patient to reenter society as a productive, contributing member.
59. In contrast, Utah’s county jails are unable to treat mentally ill inmates in this manner. With almost no treatment options available to them, mentally ill inmates are confined under conditions that are nearly certain to exacerbate their mental illness.
C. Defendants’ Increasing Failure to Provide Competency Restoration Treatment to Mentally Incompetent Pre-Trial Detainees in a Timely Manner.
60. The increasing demand for forensic services has required many states, including Utah, to maintain waitlists for admission. In a 2014 survey conducted by the National Association of State Mental Health Program Directors, 78% of the states surveyed maintain such a waitlist. In most states, wait times are less than 30 days. In several states, incompetent defendants must be transferred to the state hospital within seven days of the court’s commitment
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order. Under Minnesota’s “48-hour rule,” inmates must be transferred to a state psychiatric facility within 48 hours of being committed by a state judge.
61. The policies driving these practices in other states are obvious. First, as noted above, conditions of confinement in county jails aggravate the inmate’s mental disorder. Second, inmates who are entitled to restoration therapy under state law are, by definition, innocent until proven guilty and cannot constitutionally be confined in jail for protracted periods without trial.
62. According to documents provided by Defendant USH, there were more than 50 individuals on the waiting list to be transferred to Defendant USH’s Forensic Facility for competency restoration treatment as of July 27, 2015. At least five of those individuals had been waiting for admission to Defendant USH for more than six months, measured from the date of the court’s order requiring treatment at USH. Seven had been waiting for more than five months from the treatment order. Twelve had been waiting more than three months. Individuals are typically admitted to Defendant USH in the order they are placed on the waiting list. Consequently, many of these individuals will likely wait many more months until they are actually admitted to Defendant USH for competency restoration treatment.
63. Utah has experienced a 500% growth in demand for USH’s forensic services since 1985. Although delays are worse now than ever before, long delays for competency restoration treatment at Defendant USH are not new. The 2008 Audit found that the hospital’s Forensic Facility had an average of 10 patients on the waiting list per month as early as January 2006. According to documents provided by Defendant USH, forensic bed capacity at the state hospital has grown from 30 beds in 1985 with no waiting list to 100 beds in 2014, with approximately 50 individuals on the waiting list.
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64. Defendant USH’s forensic waitlist has doubled each year for the past three years, with wait times for admission increasing from 30 days to 180 days over the same time period. In fiscal year 2013, there were fifteen individuals on the waitlist; in fiscal year 2014, there were twenty-six individuals on the waitlist; and in fiscal year 2015 there were a reported fifty-six individuals on the waitlist.
65. Defendants are well aware of the growing waitlist and the fact that there is a higher demand for forensic services than Defendant USH can meet.
66. To address the growing demand for competency restoration services, Defendant USH proposed four options to the Legislature in 2014: (1) provide pre-admission jail-based competency restoration services (estimated cost of $300,000); (2) privately contract to provide jail-based competency programming (estimated cost of $2 million); (3) staff a step-down unit at USH for forensic overflow (estimated cost of $4 million); or (4) build additional beds at USH (estimated cost of $20 million) and provide additional staff (estimated cost of $4 million per unit of 26 beds).
67. Defendants opted for the cheapest option. On July 1, 2015, Defendants began a pilot program in which staff from Defendant USH visit mentally incompetent inmates in county jails in an effort to begin competency restoration.
68. Upon information and belief, mentally incompetent defendants waiting in county jails are not actually receiving competency restoration treatment as part of Defendant USH’s pilot program. Instead, Defendant or USH staff member periodically meets with mentally incompetent individuals at the jail for approximately 30 minutes to discuss a booklet of material on the subject of competency. The frequency of these visits depends on the location of the jail.
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Inmates in some of Utah’s rural county jails report monthly visits while inmates in jails located along Utah’s Wasatch Front report weekly visits.
69. No one acquainted with the State’s pilot program believes that it adequately addresses the problem that is the subject of this case. Besides being completely inadequate, Defendant USH’s “jail-based competency restoration” pilot program is not authorized by statute. If the USH staff member believes the inmate is making progress toward competency while in jail, a neutral evaluator is asked to re-assess the individual’s competency. Rather than providing inmates with restoration treatment, therefore, the pilot program instead attempts to re-open the court’s original competency determination without court approval, and often without the knowledge of the inmate’s criminal defense attorney. This is in direct conflict with Utah Code Ann. § 77-15-6 which provides that “[a]t any time that the defendant becomes competent to stand trial, the clinical director of the hospital or other facility or the executive director of the Department of Human Services shall certify that fact to the court.”
70. Defendant USH’s “jail-based competency restoration” pilot program is by no means a substitute for the type of treatment that Defendant USH’s Forensic Facility offers. Even so, inmates who are currently meeting with Defendant USH staff in county jails as part of the pilot program are still waiting months for admission to Defendant USH or for a court to find them competent to stand trial. Defendant Earnshaw has publicly acknowledged that this is not a long-term solution.
D. Defendants’ Failure to Provide Competency Restoration Services to the Class Plaintiffs in a Timely Manner. a. Plaintiff S.B.
71. Plaintiff S.B. is a defendant in a criminal case in Utah County, Utah. He was charged with shoplifting and booked into the Utah County jail on November 25, 2014.
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72. Plaintiff S.B. suffers from paranoid schizophrenia which is often characterized by delusions and auditory hallucinations.
73. On December 17, 2014, Plaintiff S.B.’s criminal defense attorney petitioned the court for Plaintiff S.B. to be examined by two evaluators in order to determine his competency to proceed.
74. Following three separate evaluations into Plaintiff S.B.’s competency, a court determined that Plaintiff S.B. suffers from a substantial mental illness and deemed him incompetent to stand trial.
75. On March 11, 2015, more than three months after he was first jailed, the court ordered Plaintiff S.B. committed to the custody of the executive director of Defendant DHS or a designee for the purpose of treatment intended to restore Plaintiff S.B.’s competency to stand trial. In its March 11, 2015 order, the court also scheduled a competency review hearing for Plaintiff S.B. on June 9, 2015.
76. On March 18, 2015, Defendant USH filed a letter with the court informing the court that it received the commitment order for Plaintiff S.B and that there is a waiting list for admissions to the hospital’s Forensic Facility.
77. Plaintiff S.B. was scheduled to attend a competency review hearing on June 9, 2015, but that hearing was postponed after Defendant USH sought an extension due to the fact that Plaintiff S.B. was still on Defendant USH’s waiting list almost three months after the commitment order.
78. The court rescheduled Plaintiff S.B.’s competency review hearing for July 14, 2015. But on July 6, 2015, Defendant USH sought yet another extension due to the fact that
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Plaintiff S.B. was still on the hospital’s waiting list almost four months after the commitment order.
79. Despite the court’s March 11, 2015 order and Defendant USH’s repeated extensions, Plaintiff S.B. has still not been admitted to USH. Instead, Plaintiff S.B. is being held at the Utah County Jail, where he is not receiving adequate mental health services.
80. Based on the allegations of paragraphs 71 through 78, Defendants knew and/or should have known that Plaintiff S.B. was found mentally incompetent to stand trial, was committed to their custody on March 11, 2015, and has been waiting in jail for competency restoration treatment for almost six months.
81. Upon information and belief, S.B. previously suffered physical abuse by members of his own family. According to his mother, S.B.’s behavior began to markedly change two years ago. Specifically, S.B.’s mother noticed that S.B. began talking to himself and hearing voices. Due to his mental health condition, S.B.’s mother often feels helpless and unsure of how to respond to her son’s behavior. According to his mother, S.B. often feels claustrophobic which can sometimes lead to constant pacing and anxiety. S.B.’s mother believes that the voices her son hears exacerbate these feelings and emotions.
82. Upon information and belief, Plaintiff S.B. is “decompensating” in the Utah County Jail while he waits for a bed in the Forensic Facility at Defendant USH. In other words, his confinement in jail has contributed to his deterioration of his normal psychological defenses, with the result that he experiences depression, anxiety, and delusions. Plaintiff S.B. hears voices, talks to himself, and has been placed on suicide watch at the Utah County Jail.
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b. Plaintiff A.U. 83. Plaintiff A.U. is a defendant in a criminal case in Utah County, Utah. After pleading guilty to third-degree violation of a protective order, A.U. was sentenced to probation. He was subsequently charged with several misdemeanors, which resulted in the violation of his probation, and booked into the Utah County jail on October 10, 2014. 84. Plaintiff A.U. suffers from schizophrenia and “Personality Disorder, nonspecified.” He has a history of psychotic disorder, paranoid delusions, psychiatric hospitalization, and treatment with psychoactive medications. 85. Pursuant to Utah Code Ann. § 77-15-1, et seq., Plaintiff A.U. was examined by two evaluators for purposes of competency. The evaluations conflicted, with one evaluator finding A.U. competent to proceed and the other finding A.U. incompetent to proceed. Also considered by the court was a Progress/Violation Report was filed by the Division of Adult Probation and Parole on October 16, 2014. In that report, the Division recounts Plaintiff A.U.’s charges and mental health conditions. The report states that Plaintiff A.U. could benefit from “something more restrictive such as placement at the Utah State Hospital.” The report further provides that A.U. is “struggling with some type of mental illness that needs to be addressed before something tragic happens.” The parties ultimately stipulated to the findings of Dr. Williams-the evaluator who found Plaintiff A.U. incompetent to stand trial. 86. On April 6, 2015, almost six months after he was first jailed, the court ordered Plaintiff A.U. committed to the custody of the executive director of Defendant DHS or a designee for the purpose of treatment intended to restore Plaintiff A.U.’s competency to stand trial. In its April 6, 2015 order, the court also scheduled a competency review hearing for Plaintiff A.U. on June 8, 2015.
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87. On April 9, 2015, Defendant USH filed a letter with the court informing the court that it received the commitment order for Plaintiff A.U. and that there is a waiting list for admissions to the hospital’s Forensic Facility.
88. Plaintiff A.U. was scheduled to attend a competency review hearing on June 8, 2015 but that hearing was postponed after Defendant USH sought an extension due to the fact that Plaintiff A.U. was still on Defendant USH’s waiting list almost two months after the commitment order.
89. The court rescheduled Plaintiff A.U.’s competency review hearing for August 31, 2015. But on August 24, 2015, Defendant USH sought yet another extension due to the fact that Plaintiff A.U. was still on the hospital’s waiting list almost four months after the commitment order.
90. On June 8, 2015, the Court ordered that Plaintiff A.U. be released on GPS pending available bed space at the Utah State Hospital.
91. Despite the court’s April 6, 2015 order, Defendant USH’s repeated extensions, the findings from the October 14, 2014 Progress/Violation Report, and the June 8, 2015 Order of Release, Plaintiff A.U. has still not been admitted to Defendant USH. Instead, Plaintiff A.U. is being held at the Utah County Jail, where he is not receiving adequate mental health services.
92. Based on the allegations of paragraphs 83 through 90, Defendants knew and/or should have known that Plaintiff A.U. was found mentally incompetent to stand trial, was committed to their custody on April 6, 2015, and has been waiting in jail for competency restoration treatment for more than five months.
93. Plaintiff A.U. has been housed at the Utah County Jail since October 10, 2014. Since that time, Plaintiff A.U. has been housed in solitary confinement where he sits alone in his
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cell for twenty-three to twenty-four hours per day. He does not receive any outdoor exercise time or dayroom privileges, but he can see other inmates enjoying such privileges from his cell.
94. According to Plaintiff A.U., he was diagnosed with schizophrenia three years ago but he is not receiving any medication from jail staff. Plaintiff A.U. hears voices and suffers from hallucinations. The voices Plaintiff A.U. hears are disturbing. Among other things, these voices tell Plaintiff A.U. to kill himself, that nobody likes him, and that none of his family members care about him. According to Plaintiff A.U., he feels as if he is living in hell and could possibly die in jail. The voices Plaintiff A.U. hears intensify these feelings and emotions.
95. Upon information and belief, Plaintiff A.U. is “decompensating” in the Utah County Jail while he waits for a bed in the Forensic Facility at Defendant USH.
c. Plaintiff S.W. 96. Plaintiff S.W. is a defendant in a criminal case in Salt Lake County, Utah. He was charged with shoplifting and booked into the Salt Lake County Metro Jail on March 21, 2014. 97. Plaintiff S.W. is 71-years old and has a mobility disability. Due to his physical disability, S.W. relies on the use of a wheelchair and is housed in a cell that ostensibly meets the accessibility requirements under the Americans with Disabilities Act. 98. On May 7, 2015, more than 13 months after he was initially jailed, the court found by clear and convincing evidence that Plaintiff S.W. is incompetent to stand trial and ordered him to be committed to Defendant DHS for treatment, care, custody, and security that is adequate and appropriate to S.W.’s conditions and needs. The court further ordered Defendant DHS to provide a report on S.W.’s mental status within 90 days of the court’s May 7, 2015 order.
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99. On May 11, 2015, Defendant USH filed a letter informing the court that it received the commitment order for Plaintiff S.W. and that there is a waiting list for admissions to the hospital’s Forensic Facility.
100. More than four months following the court’s commitment order, Plaintiff S.W. has still not been admitted to Defendant USH. Instead, Plaintiff S.W. is being held at the Salt Lake County Metro Jail, where he is not receiving adequate mental health services.
101. Based on the allegations of paragraphs 96 through 99, Defendants knew and/or should have known that Plaintiff S.W. was found mentally incompetent to stand trial, was committed to their custody on May 7, 2015, and has been waiting in jail for competency restoration treatment for more than four months.
102. S.W. has been deeply affected by this experience. According to S.W., he has suffered physical abuse by jail staff on three occasions. S.W. is currently housed in protective custody at the Salt Lake County Metro Jail in an effort to protect him from harm by other inmates, staff, and outside sources.
103. In speaking with Plaintiff S.W., he feels “short-circuited,” as if he is living in a vacuum. S.W. claims to have five children and twenty-four grandchildren yet none of them knows that he is currently incarcerated because he does not want to weigh them down with problems of his own. S.W. is extremely frustrated not to have any answers as to when he will be transferred to Defendant USH and to have no explanation for the delay.
104. Upon information and belief, Plaintiff S.W. is “decompensating” in the Salt Lake County Metro Jail while he waits for a bed in the Forensic Facility at Defendant USH.
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E. Defendants’ Past Failures to Provide Competency Restoration Treatment to Similarly-Situated Individuals With Mental Illness Demonstrates a Systemic Failure Likely to Evade Judicial Review in the Absence of a Class Action.
105. While the experiences of the named Class Plaintiffs above are disturbing and unjust, they are not unique for criminal defendants who are adjudged incompetent to stand trial in the State of Utah. In investigating the facts giving rise to this Complaint, the DLC has encountered a steady stream of individuals who have similarly suffered in jail for absurd periods of time while awaiting restorative treatment.
106. This case is uniquely suited for certification as a class action because of the clearly-established pattern of conduct that is likely to evade judicial review for any individual plaintiff.
107. While these individuals are held in custody without treatment for unconstitutionally excessive periods of time, they are (eventually) admitted into the Forensic Facility at USH. However, as each potential Class member transitions into the USH facility, dozens more remain on the waitlist for indeterminate periods of time, while new names are added to the bottom of the waitlist regularly.
108. For example, an individual known as J.B. was detained in the Weber County jail for nearly 11 months before admission to the USH Forensic Facility.
109. J.B. was charged with a third-degree felony and booked into the Weber County jail on September 23, 2014. J.B. suffers from a mental health condition as well as intellectual disabilities. J.B. is illiterate, has been the subject of physical abuse by members of his family, and has been homeless for the majority of his adult life. J.B.’s mental health condition and intellectual disabilities make the Weber County Jail an especially deleterious place for him to remain confined.
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110. Following three separate competency evaluations, the court determined that J.B. was mentally incompetent to stand trial. On February 12, 2015, (about five months after J.B. was put in jail), the court ordered J.B. committed to the custody of the executive director of Defendant DHS or a designee for the purpose of treatment intended to restore J.B. to competency.
111. On February 26, 2015, Defendant USH filed a letter informing the court that it received the commitment order for J.B. but that there is a waiting list for admissions to the hospital’s Forensic Facility.
112. J.B. was scheduled to attend a competency review hearing on June 1, 2015, but that hearing was postponed after Defendant USH sought an extension due to the fact that J.B. was still on the hospital’s waiting list more than three months after the commitment order. In a May 19, 2015 letter, Defendant USH anticipated that J.B. would be admitted to the state hospital in “the next several months.”
113. Following Defendant USH’s request for an extension, J.B.’s original competency hearing was rescheduled for August 3, 2015. But on July 22, 2015, Defendant USH sought yet another extension of the August 3, 2015 review hearing due to the fact that J.B. was still on the hospital’s waiting list—five months after the court’s commitment order. In the July 22, 2015 letter, Defendant USH anticipated that J.B. would be admitted to the state hospital in “the next month.”
114. J.B. and an individual willing to serve has his next friend were planning to serve as named Class Plaintiffs in this action prior to J.B.’s long-awaited admission to the state hospital, demonstrating the systemic risk that this issue will continue to evade judicial review.
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115. The DLC has also encountered other individual criminal defendants in recent months who have waited at least five or six months following commitment orders (and nearly a year of jail time, dating back to their initial booking) without receiving mental health services or restorative care. This problem is recurring and growing more severe with each passing day.
FIRST CAUSE OF ACTION (VIOLATION OF DUE PROCESS) 116. The allegations contained in paragraphs 1 through 115 above are incorporated herein. 117. The Fourteenth Amendment prohibits the states from depriving any person of life, liberty, or property without due process of law. 118. Incapacitated criminal defendants have liberty interests in freedom from incarceration and in receiving restorative treatment. 119. Due process requires that the nature and duration of confinement must bear a reasonable relation to the purpose for which an individual is committed. 120. Once an individual is found unable to aid and assist in his or her own defense, the only lawful purpose for further confinement is to assure treatment so as to return him or her to competency. 121. 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. 122. City and county jails do not have the capacity, the resources, or the expertise to provide the restorative mental health treatment required by the United States Constitution. 123. No legitimate state interest justifies the confinement of mentally incompetent criminal defendants in county jails for months on end. The nature and duration of their
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incarceration bear no reasonable relation to the restorative purpose for which the court has committed those individuals to treatment.
124. The Class Plaintiffs and the other members of the Class are entitled to an order of the Court declaring that, by requiring mentally incompetent defendants to remain in city and county jails for protracted periods, and by failing to provide restorative treatment in a reasonably timely manner, Defendants have violated the Fourteenth Amendment Due Process rights of the Class Plaintiffs and the other Class members.
125. Unless enjoined by the Court, Defendants will continue to violate the constitutional rights of the Class Plaintiffs and the other Class members. The Class Plaintiffs and the other members of the Class are therefore entitled to an order of the Court enjoining Defendants, and each of them, from all further violations of the Class’s rights of due process in relation to their continued confinement while awaiting treatment at USH.
SECOND CAUSE OF ACTION (VIOLATION OF UTAH CONSTITUTION, ARTICLE I, § 7) 126. The allegations contained in paragraphs 1 through 125 above are incorporated herein. 127. Article 1, Section 7 of the Utah Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. 128. The Class Plaintiffs and the other members of the Class are entitled to an order of the Court declaring that Defendants’ delays in admitting mentally incompetent defendants to Defendant USH’s Forensic Facility violate their rights under Article I, section 7, and that in failing to timely to treat mentally incompetent defendants from city and county jails, Defendants have violated the rights of mentally incompetent defendants to competency restorative treatment within a reasonable period of time.
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129. Unless enjoined by the Court, Defendants will continue to violate the state constitutional rights of the Class Plaintiffs and other Class members. The Class Plaintiffs and the other members of the Class are therefore entitled to an order of the Court enjoining Defendants, and each of them, from all further violation of the Class’s rights under Article I, section 7 in relation to their continued confinement while awaiting treatment at USH.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand relief as follows:
A. Plaintiffs demand an order certifying the Class, as defined above; B. Plaintiffs demand an order of the Court declaring that, by requiring mentally incompetent defendants to remain in city and county jails for protracted periods, and by failing to provide restorative treatment in a reasonably timely manner, Defendants are depriving Class Members of their due process rights under the Fourteenth Amendment to the United States Constitution and Article 1, § 7 of the Utah Constitution; C. Plaintiffs demand for the issuance of temporary, preliminary, and permanent injunctive relief restraining Defendants from violating the Fourteenth Amendment to the United States Constitution and Article 1, § 7 of the Utah Constitution in relation to the confinement of individuals awaiting competency restoration; D. Plaintiffs demand that this Court award reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988; and E. Plaintiffs demand for such other relief as the Court may deem just and proper.
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Case 2:15-cv-00645-RJS Document 2 Filed 09/08/15 Page 31 of 31 DATED this 8th day of September, 2015.
DISABILITY LAW CENTER /s/ Aaron M. Kinikini Aaron M. Kinikini Erin B. Sullivan Attorneys for Plaintiffs SNELL & WILMER L.L.P. /s/ Alan L. Sullivan Alan L. Sullivan Jared C. Fields Bret Evans Attorneys for Plaintiffs
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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS Disability Law Center; S.B., an individual; A.U., an individual; and S.W., an individual
(b) County of Residence of First Listed Plaintiff Salt Lake
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS State of Utah; Utah Department of Human Services; Ann Williamson, in official capacity; Utah Division of Substance Abuse and Mental Health; Douglas Thomas, in official capacity; Utah State Hospital; Dall
County of Residence of First Listed Defendant Salt Lake
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Snell & Wilmer L.L.P., 15 W. South Temple, Suite 1200, SLC, UT 84101 Disability Law Center, 205 North 400 West, Salt Lake City, Utah 84103

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 120 Marine

’ 310 Airplane

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

’ 130 Miller Act

’ 315 Airplane Product

Product Liability

’ 690 Other

28 USC 157

’ 140 Negotiable Instrument

Liability

’ 367 Health Care/

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

Pharmaceutical

PROPERTY RIGHTS

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

Personal Injury Product Liability

’ 820 Copyrights ’ 830 Patent

’ 152 Recovery of Defaulted

Liability

’ 368 Asbestos Personal

’ 840 Trademark

Student Loans

’ 340 Marine

Injury Product

(Excludes Veterans)

’ 345 Marine Product

Liability

LABOR

SOCIAL SECURITY

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 370 Other Fraud

Act

’ 861 HIA (1395ff) ’ 862 Black Lung (923)

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 371 Truth in Lending

’ 720 Labor/Management

’ 863 DIWC/DIWW (405(g))

’ 190 Other Contract

Product Liability

’ 380 Other Personal

Relations

’ 864 SSID Title XVI

’ 195 Contract Product Liability ’ 360 Other Personal

Property Damage

’ 740 Railway Labor Act

’ 865 RSI (405(g))

’ 196 Franchise

Injury

’ 385 Property Damage

’ 751 Family and Medical

’ 362 Personal Injury -

Product Liability

Leave Act

Medical Malpractice

’ 790 Other Labor Litigation

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS ’ 791 Employee Retirement

FEDERAL TAX SUITS

’ 210 Land Condemnation

’ 440 Other Civil Rights

Habeas Corpus:

Income Security Act

’ 870 Taxes (U.S. Plaintiff

’ 220 Foreclosure

’ 441 Voting

’ 463 Alien Detainee

or Defendant)

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 510 Motions to Vacate

’ 871 IRS—Third Party

’ 240 Torts to Land

’ 443 Housing/

Sentence

26 USC 7609

’ 245 Tort Product Liability ’ 290 All Other Real Property

Accommodations

’ 530 General

’ 445 Amer. w/Disabilities - ’ 535 Death Penalty

IMMIGRATION

Employment

Other:

’ 462 Naturalization Application

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 448 Education

’ 550 Civil Rights ’ 555 Prison Condition

Actions

’ 560 Civil Detainee -

Conditions of

Confinement

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original Proceeding

’ 2 Removed from State Court

’ 3 Remanded from Appellate Court

’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict

Reopened

Another District

Litigation

(specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 1983 VI. CAUSE OF ACTION Brief description of cause:
Deprivation of due process and restorative treatment to incompetent criminal defendants with mental illness

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
09/08/2015
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
Jared C. Fields

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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JS 44 Reverse (Rev. 12/12) Case 2:15-cv-00645-RJS Document 2-1 Filed 09/08/15 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

 
 Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

DISABILITY LAW CENTER, a Utah nonprofit corporation; S.B., an individual, by and through his next friend Margaret Goodman; A.U., by and through his next friend Mary Eka; and S.W., an individual,
Plaintiffs,
v.
STATE OF UTAH; UTAH DEPARTMENT OF HUMAN SERVICES; ANN WILLIAMSON, in her official capacity as Executive Director of the Utah Department of Human Services; UTAH DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH; DOUGLAS THOMAS, in his official capacity as Director of the Utah Division of Substance Abuse and Mental Health; UTAH STATE HOSPITAL; DALLAS EARNSHAW, in his official capacity as Superintendent of Utah State Hospital,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:15-cv-00645-RJS Judge Robert J. Shelby

This case is about the substantive due process rights of pretrial detainees who have been declared incompetent to stand trial. The State of Utah holds these pretrial detainees—who have been declared incompetent but have not been adjudicated guilty of a crime—in jail for extended periods while they wait to receive court-ordered competency restoration treatment. The question presented is whether the State is depriving these incompetent criminal defendants of their substantive due process rights under the United States Constitution and the Utah Constitution.
1

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 2 of 20
Plaintiffs bring this putative class action under 42 U.S.C. § 1983, seeking declaratory and injunctive relief against the State and related parties. The State now moves to dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the court denies the State’s motion.
BACKGROUND Before addressing the legal issues presented by the State’s motion, the court first introduces the parties to this lawsuit, outlines the State’s statutory procedure for identifying incompetent criminal defendants, and discusses the problem giving rise to this action.1 I. The Parties Plaintiff Disability Law Center (DLC) and Individual Plaintiffs S.B., A.U, and S.W. bring this putative class action on behalf of themselves and the class of incompetent defendants they seek to represent. Each member of the putative class has been declared mentally incompetent to stand trial and is being, or has been, detained in a county jail in State custody while awaiting transfer to Defendant Utah State Hospital (USH) for competency restoration treatment. USH is a state psychiatric hospital and the only facility in Utah that provides competency restoration treatment to criminal defendants who have been declared incompetent to stand trial. DLC is a federally authorized and funded nonprofit corporation established under the Protection and Advocacy for Mentally Ill Individuals Act of 1986.2 Utah’s Governor has designated DLC as the State’s protection and advocacy system. In that capacity, DLC advocates for and seeks to protect the rights of people with disabilities, including individuals with mental illness.
1 Because this matter is before the court on a motion to dismiss, the court accepts the well-pleaded factual allegations in the Complaint as true and views them in the light most favorable to the nonmoving party. See Carroll v. Lawton Indep. Sch. Dist. No. 8, 805 F.3d 1222, 1226 (10th Cir. 2015).
2 42 U.S.C. §§ 10801–10805.
2

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 3 of 20
S.B. is a criminal defendant charged with shoplifting. He is being held in State custody pending trial. A Utah trial court declared S.B. mentally incompetent to stand trial on March 11, 2015, and ordered that he be transferred to USH for competency restoration treatment. But because USH lacked space, it placed S.B. on its waiting list for admissions. S.B. was still incarcerated at the Utah County Jail when this case was filed on September 8, 2015.
A.U. is charged with violating the terms of his probation. On April 6, 2015, a Utah trial court declared A.U. mentally incompetent to stand trial and ordered that he be transferred to USH for competency restoration treatment. Yet, as it did with S.B., USH placed A.U. on its waiting list. A.U. remained in the custody of the Utah County Jail as of the filing of this case, even though the trial court ordered on June 8, 2015, that A.U. be released until space is available at USH.
S.W. is charged with shoplifting. A Utah trial court found S.W. mentally incompetent on May 7, 2015, and ordered that he be provided treatment, care, custody, and security that is adequate and appropriate for his needs and conditions. USH placed S.W. on its waiting list. S.W. was still held in the Salt Lake County Jail when this case was filed.
Defendants include the State, the Utah Department of Human Services (DHS), the Utah Division of Substance Abuse and Mental Health (DSAMH), and USH.3 DHS is charged by statute with providing competency restoration services to incompetent criminal defendants. DSAMH, which is a division of DHS, operates USH. Defendants also include three State officials who are sued in their official capacities: Ann Williamson, the Executive Director of DHS; Douglas Thomas, the Director of DSAMH; and Dallas Earnshaw, the Superintendent of USH.
3 The court refers to the Defendants collectively as the State.
3

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 4 of 20
II. The State’s Statutory Scheme for Competency Restoration
The State has established a statutory procedure for identifying incompetent persons
charged with a crime and for providing those persons with competency restoration treatment so
their guilt or innocence can be determined at trial.
Utah law provides that a criminal defendant declared incompetent to stand trial shall not be tried for a criminal offense.4 When a criminal defendant’s competency to stand trial is raised, the trial court must stay all proceedings and review the allegations of incompetency.5 If the court
determines that the allegations “raise a bona fide doubt as to the defendant’s competency to stand
trial,” the court “shall order an examination of the defendant and a hearing on the defendant’s mental condition.”6 At least two mental health experts must examine the defendant and provide
to the court and counsel within thirty days of the court’s order a report on the defendant’s competency.7 The court usually must hold a competency hearing between five and fifteen days after receiving the report.8
If the court concludes after the hearing that the defendant is incompetent to stand trial,
then “the court shall order the defendant committed to the custody of the executive director of
the Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency.”9 DHS, in turn, must transfer the defendant to USH, as it is the
only Utah facility designated for providing competency restoration treatment to incompetent
4 Utah Code § 77-15-1; see also United States v. DeShazer, 554 F.3d 1281, 1285 (10th Cir. 2009) (“The Constitution forbids the trial of a defendant who lacks mental competency.” (citation omitted)). A criminal defendant is incompetent under Utah law if he is unable to have a rational understanding of the proceedings against him or is unable to assist defense counsel and participate in his defense. Utah Code § 77-15-2; see also DeShazer, 554 F.3d at 1286 (“The test for competency to stand trial asks whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” (citation omitted) (internal quotation marks omitted)).
5 Utah Code § 77-15-5(1)(a)–(b). 6 Id. § 77-15-5(1)(b)(v). 7 Id. § 77-15-5(2), (6). 8 Id. § 77-15-5(9)(a). 9 Id. § 77-15-6(1).
4

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 5 of 20
criminal defendants. Treatment teams at USH provide intensive individualized care and treatment in an attempt to restore the defendant’s competency.
Once the defendant arrives at USH, an examiner must provide to the court and counsel within ninety days a report on the defendant’s progress.10 The examiner may receive an additional ninety days to provide the report if he provides a progress report informing the court that more time is necessary to complete the assessment.11
After receiving the USH progress report and assessment, the court must hold a hearing to determine the defendant’s current status. After the hearing, the court may do one of three things. First, if the court determines that the defendant has regained competency, the court must direct the defendant to stand trial.12 Second, if the court finds the defendant remains incompetent to stand trial with a substantial probability of regaining competency in the foreseeable future, then “the court may order that the defendant remain committed to the custody of the executive director of the Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency.”13 Third, if the court concludes the defendant is incompetent to stand trial without a substantial probability of regaining competency in the foreseeable future, then the court must order the defendant released from the custody of DHS unless the prosecutor informs the court that civil commitment proceedings will be initiated.14 But “[i]n no event may the maximum period of detention . . . exceed the maximum period of incarceration which the defendant could receive if the defendant were convicted of the charged offense.”15
10 Id. § 77-15-6(2). 11 Id. 12 Id. § 77-15-6(4)–(5). 13 Id. 14 Id. 15 Id. § 77-15-6(13).
5

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 6 of 20
III. The Problem The State’s statutory scheme is not working. And USH’s Forensic Facility is full. This
means USH must place incompetent criminal defendants on a waiting list until a bed at USH becomes available. As a result, Plaintiffs allege that many incompetent defendants must wait in jail for months after a court declares them incompetent before they are transferred to USH for treatment. It is not uncommon for these individuals to remain incarcerated in county jails for six months or more after a court orders them transferred to USH for treatment. And in some cases, incompetent defendants are held in jail awaiting transfer to USH for periods longer than the length of the sentence they would serve if found guilty of the crime with which they are charged.
Plaintiffs also allege that USH’s waitlist has doubled each of the past three years, even as USH has increased capacity from thirty beds in 1985 to one hundred beds in 2014. Wait times have grown from 30 days to 180 days over that period, and the number of defendants on the wait list has increased from fifteen individuals in 2013 to over fifty individuals as of late July 2015. At least five of those fifty individuals waited in jail for over six months after a court ordered them transferred for treatment. Seven individuals waited over five months, and twelve waited over three months.
Worse still, Plaintiffs assert that the mental health condition of many incompetent defendants deteriorates while they languish in jail without receiving adequate mental health treatment. According to Plaintiffs, this is because Utah’s jails are ill equipped to handle inmates with serious mental health issues. And to minimize disruption and maintain order, county jails frequently place incompetent defendants in protective custody or solitary confinement. Although confinement is often intended to protect incompetent defendants, it frequently only aggravates mental illness, causing significant distress and making it less likely the defendants’ competency
6

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 7 of 20
will be restored. For example, Plaintiffs claim that S.B.’s mental condition has deteriorated while waiting
in jail to the point where he hears voices and talks to himself. Jail staff has now placed S.B. on suicide watch. Plaintiffs similarly assert that A.U. has been placed in solitary confinement where he sits in his cell for twenty-three to twenty-four hours per day. A.U.’s condition has declined so much that he hears voices that tell him to kill himself, that nobody likes him, and that none of his family members care about him. Plaintiffs also allege that S.W. was placed in protective custody after jail staff physically abused him on three occasions.
The State began a pilot program in early July 2015 in an attempt to address this growing problem. Under the program, a USH staff member visits incompetent defendants in jail. But according to Plaintiffs, incompetent defendants do not receive competency restoration treatment as part of the program. Instead, Plaintiffs allege, a USH staff member periodically meets with incompetent defendants in jail for thirty minutes to discuss a booklet on competency. Plaintiffs assert that a USH staff member visits jails along Utah’s Wasatch Front on a weekly basis, while a staff member visits some of Utah’s rural county jails on a monthly basis.
Believing the situation faced by incompetent criminal defendants has reached a state of crisis, Plaintiffs sued the State under 42 U.S.C. § 1983 requesting declarative and injunctive relief. Plaintiffs claim that the State is depriving incompetent defendants of their substantive due process rights under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the Utah Constitution by holding these defendants—who have not been adjudicated guilty of a crime—in jail for unreasonable periods while they wait to receive court-ordered competency restoration treatment.
7

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 8 of 20
ANALYSIS
The State now moves to dismiss Plaintiffs’ Complaint under Federal Rule of Civil Procedure 12(b)(6).16 The court’s analysis proceeds in three parts. The court first provides the
legal standard applicable to the State’s motion to dismiss. The court then examines whether
Plaintiffs have stated a plausible claim for relief under the substantive due process component of
the Fourteenth Amendment to the United States Constitution. And third, the court examines
whether Plaintiffs have stated a plausible claim for relief under article I, section 7 of the Utah
Constitution. In the end, the court concludes that Plaintiffs have pled a plausible claim for relief
under both the United States Constitution and the Utah Constitution.
I. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs must “state a claim upon which
relief can be granted,” meaning their Complaint must allege “enough factual matter, taken as true, to make [their] ‘claim to relief . . . plausible on its face.’”17 In general, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”18 While the court “accept[s] all well-pleaded facts as true and view[s] them in the light most favorable to the plaintiff,”19 the
court will not accept as true “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”20
16 The State argues in its motion to dismiss that Plaintiffs failed to state a claim for relief under both procedural and substantive due process. But in their opposition papers, Plaintiffs clarify that they are alleging only a substantive due process violation. The court therefore analyzes only whether Plaintiffs have stated a valid claim for relief based on substantive due process.
17 Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 19 Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011) (quoting Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005)). 20 Iqbal, 556 U.S. at 678.
8

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 9 of 20
II. Federal Substantive Due Process Claim The court now turns to Plaintiffs’ federal substantive due process claim. The Due Process
Clause of the Fourteenth Amendment commands that “[n]o State shall . . . deprive any person of their life, liberty, or property, without due process of law.”21 Under the so-called substantive
component of the Due Process Clause, a state may not engage in conduct that “shocks the conscience” or otherwise “interferes with rights implicit in the concept of ordered liberty.”22 To
determine whether a state has violated a right that substantive due process protects, a court must
balance “the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty.”23
Here, Plaintiffs allege that the State is unconstitutionally infringing on incompetent
criminal defendants’ liberty interest in being free from incarceration absent a criminal conviction
as well as their liberty interest in receiving reasonably timely competency restoration treatment.
The State is doing so, Plaintiffs allege, by holding incompetent defendants in jail for months on
end after a court has ordered them committed to DHS’s custody for the purpose of receiving
competency restoration treatment. And while incompetent defendants are in jail awaiting
transfer to USH, they are not receiving adequate mental health treatment. Plaintiffs also allege
that no legitimate governmental interest justifies the lengthy detention of these defendants in jail
without adequate treatment while they await transfer to USH.
21 U.S. Const. amend. XIV, § 1. Constitutional challenges to the restrictions or conditions imposed on pretrial detainees are analyzed under the Fourteenth Amendment’s Due Process Clause. Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979); see also Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (“Where the State seeks to impose punishment without . . . an adjudication [of guilt], the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.”).
22 United States v. Salerno, 481 U.S. 739, 746 (1987) (citations omitted) (internal quotation marks omitted); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (stating that “the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government action regardless of the fairness of the procedures used to implement them” (citation omitted) (internal quotation marks omitted)).
23 Youngberg v. Romeo, 457 U.S. 307, 320 (1982).
9

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 10 of 20
The State argues that Plaintiffs have failed to state a plausible claim under the Fourteenth Amendment’s Due Process Clause because Plaintiffs have alleged neither an injury sufficient to demonstrate a substantive due process claim nor that the State has an unconstitutional interest in the incompetent defendants’ incarceration. In particular, the State disputes the existence of Plaintiffs’ asserted liberty interests. The State further argues that, even if incompetent criminal defendants enjoy the liberty interests asserted, the State’s interests outweigh Plaintiffs’ asserted liberty interests as a matter of law.
The court first examines whether incompetent criminal defendants enjoy the liberty interests Plaintiffs assert. The court then examines whether the State has a legitimate interest that justifies the alleged infringement on Plaintiffs’ interest in liberty.
A. Plaintiffs’ Asserted Liberty Interests Plaintiffs contend that incompetent criminal defendants who have been held in county
jails for extended periods while they wait to receive court-ordered competency restoration treatment have a liberty interest in being free from incarceration absent a criminal conviction, as well as a liberty interest in receiving reasonably timely competency restoration treatment.
As explained below, the court concludes that Plaintiffs have adequately pled a plausible claim that the State is violating the Fourteenth Amendment rights of incompetent defendants by unconstitutionally infringing on their liberty interest in being free from incarceration absent a criminal conviction. The court therefore declines to address at this time whether incompetent defendants also enjoy a protectable liberty interest in receiving timely competency restoration treatment.24
24 At the motion to dismiss stage, the court need only satisfy itself that Plaintiffs have pled a viable legal theory that entitles them to relief on the claim asserted, not that each of Plaintiffs’ asserted theories are viable in themselves. See Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (stating that a plaintiff survives a motion to dismiss so
10

Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 11 of 20
The court now begins its analysis by examining the contours of Plaintiffs’ asserted liberty
interest in being free from incarceration absent a criminal conviction.25 It is a “general rule” of
substantive due process that a state “may not detain a person prior to a judgment of guilt in a
criminal trial.”26 Three Supreme Court cases provide guidance on how the court is to interpret
and apply this liberty interest as Plaintiffs assert it here.
In Jackson v. Indiana,27 the Supreme Court held that “the nature and duration” of an
incompetent criminal defendant’s pretrial detention must “bear some reasonable relation to the
purpose for which the individual” is detained.28 And when a state detains a criminal defendant
pretrial based on his incapacity to proceed to trial, the state may not detain him “more than the
reasonable period of time necessary to determine whether there is a substantial probability that
he will attain that capacity in the foreseeable future.”29 If there is not a substantial probability
that he will attain capacity in the foreseeable future, then the state must either commence civil
long as the plaintiff’s complaint contains “allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory” (citation omitted) (internal quotation marks omitted)); see also Barrett v. Tallon, 30 F.3d 1296, 1299 (10th Cir. 1994) (“A complaint should not be dismissed under Rule 12(b)(6) merely because plaintiff’s allegations do not support the legal theory he intends to proceed on, . . . and certainly not when other theories are apparent on the face of the complaint.”).
25 See Reno v. Flores, 507 U.S. 292, 302 (1993) (“Substantive due process analysis must begin with a careful description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” (citation omitted) (internal quotation marks omitted)).
26 Salerno, 481 U.S. at 749; see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” (citing Foucha, 504 U.S. at 80 (“Freedom from bodily restrain has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”))); Ingraham, 430 U.S. at 673–74 (“While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment.” (citation omitted)).
27 406 U.S. 715 (1972). In Youngberg, 457 U.S. at 320 n.27, the Supreme Court noted that Jackson is a procedural—not a substantive—due process case. But in Youngberg, which is a substantive due process case, the Court cited to Jackson when it held that the involuntarily-committed respondent enjoyed “constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests,” and that “[s]uch conditions of confinement would comport fully with the purpose of respondent’s commitment.” Id. at 324 (citing Jackson, 406 U.S. at 738). The court concludes it may properly rely on Jackson in this context.
28 Jackson, 406 U.S. at 738. 29 Id.
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commitment proceedings or release the defendant.30 Where “the defendant probably soon will be able to stand trial, his continued [detention] must be justified by progress toward that goal.”31
Several years after deciding Jackson, the Court in Bell v. Wolfish considered a substantive due process challenge to the restrictions and conditions of pretrial detention.32 In stressing that a pretrial detainee “may not be punished prior to an adjudication of guilt,”33 the Court held that the
liberty component of the Due Process Clause protects a pretrial detainee from restrictions and conditions of detention that amount to punishment.34 To determine whether a particular
restriction or condition of pretrial detention amounts to punishment, “[a] court must decide
whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.”35 Unless there is evidence “of an expressed
intent to punish . . . , that determination generally will turn on whether an alternative purpose to
which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.”36
Similar to the analysis articulated in Jackson, courts evaluating whether a restriction or
condition of pretrial detention is excessive must determine whether “a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective.”37 If it is, then the imposition of the restriction or condition does not amount to punishment.38 But “if
a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or
purposeless—a court permissibly may infer that the purpose of the governmental action is
30 Id. 31 Id. 32 441 U.S. at 523. 33 Id. at 535. 34 Id. at 534–37. 35 Id. at 538 (citation omitted). 36 Id. (citation omitted) (internal quotation marks omitted). 37 Id. at 539 (footnote omitted). 38 Id.
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punishment that may not constitutionally be inflicted upon detainees.”39
Finally, the Court held in Youngberg v. Romeo that a court can perform the balancing
required under the substantive due process clause by ensuring that the restriction or condition imposed on a pretrial detainee is the result of judgment exercised by a qualified professional.40 A decision made by a professional is presumptively valid.41 And a court may impose liability
“only when the decision by the professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”42
These cases establish that incompetent criminal defendants—as pretrial detainees—have
a liberty interest in being free from incarceration absent a criminal conviction. Whether the State
has unconstitutionally infringed on that interest turns on whether it has imposed restrictions or conditions of confinement that amount to punishment.43 This requires the court to determine
whether the restrictions or conditions imposed are reasonably related to a legitimate government
interest. If they are, then the imposition of the restrictions or conditions does not amount to
punishment. But if they are not, then the court may infer that the State intended to impose
unconstitutional punishment. In performing this analysis, the court need only ensure that the
restrictions or conditions imposed are the result of judgment rendered by a qualified professional.
39 Id. (footnote omitted) (citation omitted). 40 457 U.S. at 322; see also Advocacy Ctr. for Elderly & Disabled v. La. Dep’t of Health & Hosps., 731 F. Supp. 2d 603, 609 (E.D. La. 2010) (“In Youngberg v. Romeo, the Court held that this balancing can be accomplished by making certain that the condition of the inmate’s confinement resulted from the exercise of professional judgment.”). 41 Youngberg, 457 U.S. at 323. 42 Id. 43 To determine whether restrictions or conditions of pretrial detention amount to punishment, the court ordinarily must first examine whether the State expressly intended to impose punishment. See Salerno, 481 U.S. at 747. The court need not undertake this examination, however, because Plaintiffs do not here allege that the State is intentionally imposing punishment on incompetent defendants.
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B. Whether the State Has a Legitimate Interest That Justifies the Alleged Infringement on Plaintiffs’ Interest in Liberty Having concluded that Plaintiffs have a protectable liberty interest in being free from
incarceration absent a criminal conviction, the next step in the court’s substantive due process analysis is to determine whether the State has a legitimate governmental interest that justifies holding incompetent criminal defendants in jail for extended periods while they await courtordered competency restoration treatment at USH.
The State asserts two interests.44 But before addressing those asserted interests, the court pauses to focus on the precise period during an incompetent defendant’s criminal proceeding at issue in this case. The court is not concerned here with the State’s initial decision to deny bail and detain a defendant pretrial based on a finding that he poses a substantial danger to the community or a risk of flight before trial. Nor does this case present issues involving a trial court’s declaration that a defendant is incompetent to stand trial. And the court is likewise unconcerned here with what occurs after a court has evaluated whether the defendant has attained competency or whether there is a substantial probability that he will attain competency in the foreseeable future. Instead, this case and the State’s motion to dismiss focus on the period between a court’s declaration that a defendant is incompetent to stand trial and that court’s later evaluation (after transfer to USH for assessment and treatment) of whether there is a substantial probability that he will attain competency in the foreseeable future.
The court now turns to the State’s first asserted interest. The State contends that its interest in initially denying bail and detaining criminal defendants who pose a danger to the community or a risk of flight before trial justifies its continued detention of criminal defendants
44 The State also contends that it has an interest in preserving its limited financial resources. The court declines to consider this argument, however, because the State made it for the first time in its reply brief. See Hornady Mfg. Co. v. DoubleTap Ammunition, Inc., 2013 WL 1622099, at *1 (D. Utah Apr. 15, 2013).
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after they have been declared incompetent to stand trial. To be sure, the State has a substantial interest in initially detaining a criminal defendant who is dangerous or a flight risk before trial.45
But once a court declares a defendant incompetent to stand trial, that interest is displaced by the
State’s interest in “determin[ing] whether there is a substantial probability that he will attain [] capacity in the foreseeable future.”46 Indeed, the court reads Jackson to suggest that a state’s
interest in, and sole justification for, continuing to detain a defendant pretrial after he has been
declared incompetent—opposed to releasing him—is to evaluate whether there is a substantial
probability that he will become competent in the foreseeable future.
The Utah Code confirms that this is the State’s relevant interest upon a declaration of
incompetency. Section 77-15-6 of the Utah Code provides that, after a trial court declares a
defendant incompetent to stand trial and the State elects to continue prosecuting the defendant,
the court’s next step is to evaluate whether the defendant has attained competency or whether there is a substantial probability that he will attain competency in the foreseeable future.47
Certainly, the State may later detain a defendant pretrial because of his dangerousness or risk of flight if he attains competency down the road and his criminal prosecution resumes.48 Or
the State may seek civil commitment under certain circumstances if there is not a substantial
probability that a defendant will become competent in the foreseeable future and he is likely to harm himself or others.49 But once a criminal defendant is initially declared incompetent to
45 See Utah Code § 77-20-1(c); see also Salerno, 481 U.S. at 747–50 (holding that the government may detain a criminal defendant pretrial if he presents a danger to the community); Bell, 441 U.S. at 536 (stating that the government may detain a criminal defendant pretrial to ensure his appearance at trial if he is a flight risk).
46 Jackson, 406 U.S. at 738. 47 See Utah Code § 77-15-6(2)–(5). 48 See id. § 77-15-6(5)(a) (stating that if the court finds that the defendant has regained competency, then “the court shall proceed with the trial or other procedures as may be necessary to adjudicate the charges”); see also id. § 77-20-1(5) (“A motion to modify the initial [bail] order may be made by a party at any time upon notice to the opposing party . . . .”) 49 See id. § 62A-5-311(1).
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stand trial, the State’s sole interest in further detaining him is to evaluate whether there is a substantial probability that he will attain competency in the foreseeable future. And until that evaluation occurs, it is unknown whether the criminal proceeding will ever resume, let alone whether the State’s interest in protecting the community or in assuring the defendant’s appearance at trial will be implicated again.
The State’s second asserted interest suffers from a similar defect. The State claims that it has an interest in efficiently restoring incompetent criminal defendants to competency so they may quickly and fairly be tried, and that this interest justifies holding those defendants in jail for months pending transfer to USH. But this interest is relevant to only a subset of incompetent defendants: those who have been evaluated and been found to have a substantial probability of attaining capacity in the foreseeable future. Stated otherwise, until a court evaluates whether there is a substantial probability that an incompetent defendant will attain competency in the foreseeable future, it is unknown whether the State’s interest in restoring that defendant to competency will be implicated at all.
Whether the State’s interest is in evaluating whether there is a substantial probability that incompetent defendants can be restored to competency, or whether its interest is in actually restoring them to competency, neither interest is reasonably related to the restrictions and conditions of incompetent defendants’ pretrial detention.50 To the contrary, Plaintiffs allege the
50 See, e.g., Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (holding that the state hospital had no “legitimate state interest in keeping mentally incapacitated criminal defendants locked up in county jails for weeks or months” while they awaited transfer to the hospital so they could receive competency restoration treatment); Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 73 F. Supp. 3d 1311, 1315 (W.D. Wash. 2014) (finding the State had no legitimate state interest in keeping incompetent criminal defendants in county jails for weeks or months while they awaited transfer to a state hospital to receive competency restoration treatment, and rejecting the State’s argument that they had a “legitimate interest in reasonable delays before provision of competency services”); Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 943 (E.D. Ark. 2002) (holding that the delay in transferring court-ordered pretrial detainees to the state hospital for competency restoration treatment “is not related to any legitimate goal” and “is purposeless”).
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State is undermining these interests by holding incompetent defendants in county jails for months without providing them adequate mental health treatment after a court has ordered them committed to DHS’s custody for restorative treatment.51
As discussed above, once a Utah trial court determines that a criminal defendant is incompetent to stand trial, the court must order the defendant committed to the custody of DHS “for the purpose of treatment intended to restore the defendant to competency.”52 After DHS has transferred the defendant to USH—the only facility in Utah that provides competency restoration treatment to incompetent criminal defendants—the court’s next step is to evaluate whether the defendant has attained competency or whether there is a substantial probability that he will attain competency in the foreseeable future.53
But because USH is currently full, Plaintiffs allege, incompetent defendants are placed on a lengthy waiting list. As a result, many incompetent defendants are forced to languish in county jails for months before being transferred to USH. These defendants are kept in jail not because they have been found guilty of a crime, but because there is simply no room for them at USH.
Plaintiffs also contend that incompetent defendants who are awaiting transfer to USH are not receiving any adequate mental health treatment while in jail, let alone treatment that is the result of professional judgment. These defendants are not receiving the intensive individualized care and treatment they would receive at USH. Nor are they are receiving any actual treatment under the State’s pilot program. Instead, under the program, a USH staff member periodically meets with incompetent defendants for about thirty minutes to discuss a booklet on competency.
51 See, e.g., Trueblood, 73 F. Supp. 3d at 1316 (“There is . . . no legitimate independent interest in delays within the system because delays undermine the state’s ‘primary governmental interest’ of bringing the accused to trial.”).
52 Utah Code § 77-15-6(1). 53 Id. § 77-15-6(4)–(5).
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Plaintiffs further assert that Utah’s jails are ill equipped to handle the challenges posed by inmates suffering from mental health disorders. Jails often place incompetent defendants in solitary confinement or protective custody to minimize disruption and maintain order. For example, Plaintiffs claim that S.B. hears voices, talks to himself, and has been placed on suicide watch; A.U spends twenty-three to twenty-four hours per day in solitary confinement and hears voices that tell him to kill himself; and S.W. has been placed in protective custody after suffering physical abuse at the hands of jail staff.
At bottom, between these conditions and the lack of adequate mental health treatment, Plaintiffs have sufficiently alleged facts showing that the mental health condition of many incompetent defendants deteriorates while in jail, making it unlikely that they will attain competency in the foreseeable future.
Plaintiffs’ allegations show that the restrictions and conditions of incompetent defendants’ detention amount to punishment. The State detains incompetent defendants for months without adequate mental health treatment after a court has ordered them committed to DHS’s custody to receive restorative treatment. This is neither to restore their competency nor to evaluate whether their competency can be restored. And there is no suggestion that the length of their detention, or the lack of adequate treatment, is the product of professional judgment. The State imposes these conditions on incompetent criminal defendants simply because there is no room at USH.
The lengthy detention of incompetent defendants in county jails without adequate mental health treatment is not reasonably related to the State’s interest in determining whether there is a substantial probability that the defendants’ competency can be restored in the foreseeable future
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or to its interest in actually restoring their competency so they may quickly and fairly be tried.54
The State is instead undermining these goals by holding incompetent defendants in jail for
months without providing them adequate treatment.
Taking the facts alleged in Plaintiffs’ Complaint as true, Plaintiffs have stated a plausible
claim for relief under the Due Process Clause of the Fourteenth Amendment.
III. State Substantive Due Process Claim
The court now turns to Plaintiffs’ claim that the State is depriving incompetent criminal
defendants of their substantive due process rights under the Utah Constitution.
Article I, section 7 of the Utah Constitution states that “[n]o person shall be deprived of
life, liberty or property, without due process of law.”55 Both parties urge the court to interpret the
Utah Constitution’s due process clause coextensively with the United States Constitution’s Due
Process Clause. The Utah Supreme Court has stated:
Since the due process clause of our state Constitution (Article I, Section 7) is substantially similar to the Fifth and Fourteenth Amendments to the federal Constitution, the decisions of the Supreme Court of the United States on the federal due process clauses are highly persuasive as to the application of that clause of our state Constitution.56
Based on the foregoing statement, the court finds that its analysis of Plaintiffs’ federal
54 See, e.g., Mink, 322 F.3d at 1122 (“Holding incapacitated criminal defendants in jail for weeks or months violates their due process rights because the nature and duration of their incarceration bear no reasonable relation to the evaluative and restorative purposes for which courts commit those individuals.”); Trueblood, 73 F. Supp. 3d at 1317 (“Defendants’ failure to provide timely competency evaluation and restoration services to Plaintiffs and class members has caused them to languish in city and county jails for prolonged periods of time, and . . . this failure violates their right to substantive due process under the Fourteenth Amendment.”); Advocacy Ctr. for Elderly & Disabled, 731 F. Supp. 2d at 621 (“[T]he continued imprisonment of the Incompetent Detainees in parish jails— even with the scant additional services provided by [the] jail-based treatment program—does not bear a reasonable relationship to either restoring the Detainees to competency or determining that they will never become competent.”); Terry, 232 F. Supp. 2d at 943 (holding that “the delay in transferring court ordered pretrial detainees” to the state hospital for restorative treatment “amounts to punishment of the detainees,” and that “the prolonged wait in confinement[] transgresses the constitution”).
55 Utah Const. art. I, § 7. 56 Terra Utils., Inc. v. Pub. Serv. Comm’n, 575 P.2d 1029, 1033 (Utah 1978) (citing Untermyer v. State Tax Comm’n, 129 P.2d 88, 885 (Utah 1942)).
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Case 2:15-cv-00645-RJS Document 51 Filed 04/07/16 Page 20 of 20 substantive due process claim applies with equal force to Plaintiffs’ due process claim under the Utah Constitution. Without delving into the issue further at this stage, the court concludes that Plaintiffs have stated a plausible claim for relief under article I, section 7 of the Utah Constitution.
CONCLUSION For the reasons stated above, the court DENIES the State’s motion to dismiss (Dkt. 37). SO ORDERED this 7th day of April, 2016.
BY THE COURT: ___________________________ ROBERT J. SHELBY United States District Judge
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 Case 2:15-cv-00645-RJS Document 71 Filed 09/27/16 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

DISABILITY LAW CENTER, a Utah nonprofit corporation; S.B., an individual, by and through his next friend Margaret Goodman; A.U., by and through his next friend Mary Eka; and S.W., an individual,
Plaintiffs,
v.
STATE OF UTAH; UTAH DEPARTMENT OF HUMAN SERVICES; ANN WILLIAMSON, in her official capacity as Executive Director of the Utah Department of Human Services; UTAH DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH; DOUGLAS THOMAS, in his official capacity as Director of the Utah Division of Substance Abuse and Mental Health; UTAH STATE HOSPITAL; DALLAS EARNSHAW, in his official capacity as Superintendent of Utah State Hospital,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:15-cv-00645-RJS Judge Robert J. Shelby

This case is about the substantive due process rights of pretrial detainees who have been declared incompetent to stand trial. Plaintiffs bring this putative class action against the State of Utah, the Utah Department of Human Services (DHS), the Utah Division of Substance Abuse and Mental Health, the Utah State Hospital (USH), and several related individuals (collectively, the State) under 42 U.S.C. § 1983, seeking declarative and injunctive relief. Plaintiffs allege that the State holds incompetent pretrial detainees in jails for extended periods while the detainees wait to receive court-ordered competency restoration services. Plaintiffs contend that these

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prolonged periods of detention violate the detainees’ constitutional rights. Defendants previously moved to dismiss Plaintiffs’ Complaint for failure to state a claim
upon which relief can be granted. The court denied that motion in a Memorandum Decision and Order issued on April 7, 2016. Plaintiffs now move the court to certify their proposed class and to appoint class counsel. For the reasons stated below, the court grants Plaintiffs’ Motion.
BACKGROUND The State has a statutorily defined procedure for identifying incompetent persons charged with a crime and for providing those persons with competency restoration treatment so their guilt or innocence can be determined at trial. This procedure does not appear to be working. Utah law provides that a criminal defendant declared mentally incompetent shall not be tried for a criminal offense.1 When a criminal defendant’s competency to stand trial is raised, the trial court must stay all proceedings and review the allegations of incompetency.2 If the court determines that the allegations raise a bona fide doubt concerning the defendant’s competency, then the court “shall order an examination of the defendant and a hearing on the defendant’s mental condition.”3 And if the court concludes after a hearing that the defendant is incompetent to stand trial, then “the court shall order the defendant committed to the custody of the executive director of [DHS] or a designee for the purpose of treatment intended to restore the defendant to competency.”4 The director or a designee must then “designate the specific placement of the defendant during the period of evaluation and treatment.”5 In most cases, the director transfers an incompetent defendant to USH, where treatment teams provide intensive individualized care and treatment in an effort to restore the defendant’s
1 Utah Code § 77-15-1. 2 Id. § 77-15-5(1)(a)–(b). 3 Id. § 77-15-5(1)(b)(v). 4 Id. § 77-15-6(1). 5 Id.
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competency. But USH is full—meaning that incompetent defendants cannot be transferred until space becomes available. Wait times to get into USH have grown from about 30 days to 180 days since 1985. And the wait list has fluctuated from 15 incompetent defendants in 2013, to over 50 in late July 2015, to 39 in early June 2016. Meanwhile, those waitlisted individuals most often wait in the county jails in which they are detained pretrial until space becomes available at USH. And they ordinarily do so without receiving restorative treatment.
In response to this growing problem, the State began a pilot program in July 2014, under which a USH staff member periodically visits incompetent defendants in jail for thirty minutes to discuss a booklet on competency. The pilot program became the current Outreach Program in July 2015. It is unclear at this early stage of the proceedings what in-jail treatment incompetent defendants receive under the Outreach Program. Nonetheless, 28 incompetent defendants have been restored to competency under the current Outreach Program, and a total of 38 incompetent defendants have been restored under both programs since July 2014.
Named Plaintiffs Disability Law Center (DLC), S.B., A.U., and S.W. bring this putative class action under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated. DLC is a federally authorized and funded nonprofit corporation. It advocates for and seeks to protect the rights of people with disabilities, including individuals with mental illness.
S.B. is a criminal defendant who was declared incompetent in March 2015. S.B. was on USH’s wait list for almost six months when Plaintiffs filed this lawsuit. S.B. has since gained admission to USH, been declared competent, and been discharged from USH. A.U. was also declared incompetent, and spent over five months in county jail while waiting to be admitted to USH. A.U. has since regained competency. S.W. similarly waited five months in jail after being declared incompetent before gaining admission to USH. S.W. was still receiving treatment at
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USH when the parties briefed the present Motion. Plaintiffs seek declarative and injunctive relief. They contend that the State is depriving
incompetent defendants of their substantive due process rights under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the Utah Constitution by holding these defendants in jail for unreasonable periods while they wait to receive court-ordered competency restoration treatment.
The State moved to dismiss Plaintiffs’ Complaint under Federal Rule of Civil Procedure 12(b)(6). The court denied the State’s motion in a Memorandum Decision and Order issued in April 2016.6 The court concluded that incompetent criminal defendants have a substantive due process right to be free from incarceration absent a criminal conviction.7 The court explained that “[w]hether the State has unconstitutionally infringed on that interest turns on whether it has imposed restrictions or conditions of confinement that amount to punishment.”8 And whether the State has imposed punishment depends on “whether the restrictions or conditions imposed are reasonably related to a legitimate government interest.”9 “In performing this analysis, the court need only ensure that the restrictions or conditions imposed are the result of judgment rendered by a qualified professional.”10
Having survived the State’s motion to dismiss, Plaintiffs now move for class certification and for the appointment of class counsel. Plaintiffs’ proposed class is defined as:
all individuals who are now, or will be in the future, (a) charged with a crime in Utah, (b) are determined by the court in which they are charged to be mentally incompetent to stand trial, and (c) are ordered to the custody of the executive director of [DHS] or a designee for the purpose of treatment intended to restore
6 Dkt. 51. 7 Id. at 13. 8 Id. (citation omitted). 9 Id. 10 Id.
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the defendant to competency but remain housed in a Utah county jail.11
ANALYSIS
Class actions are an exception to the general rule that only individually named parties may conduct litigation.12 To justify departure from that rule, the party seeking class certification must satisfy Rule 23’s “stringent” requirements under a “strict burden of proof.”13 Rule 23(a)
first requires the party seeking class certification to establish (1) numerosity: that “the class is so
numerous that joinder of all members is impracticable”; (2) commonality: that “there are
questions of law or fact common to the class”; (3) typicality: that “the claims or defenses of the
representative parties are typical of the claims or defenses of the class”; and (4) adequacy of
representation: that “the representative parties will fairly and adequately protect the interests of the class.”14 The party seeking certification must also establish “through evidentiary proof at least one of the provisions of Rule 23(b).”15 Plaintiffs here seek to certify a Rule 23(b)(2) class,
alleging that the State “has acted or refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”16
While the court “must accept the substantive allegations of the complaint as true,” “Rule 23 does not set forth a mere pleading standard.”17 Indeed, the court “need not blindly rely on conclusory allegations of the complaint which parrot Rule 23.”18 And the “party seeking class
certification must affirmatively demonstrate his compliance with the Rule—that is, he must be
11 Dkt. 18 at 2. 12 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). 13 Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 435 (10th Cir. 1978). 14 Fed. R. Civ. P. 23(a). 15 Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th Cir. 2013) (citation omitted) (internal quotation marks omitted). 16 Fed. R. Civ. P. 23(b). 17 Dukes, 564 U.S. at 350. 18 DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010) (citation omitted) (internal quotation marks omitted).
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prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”19
Further, the court must perform a “rigorous analysis” to ensure Rule 23’s requirements have been met.20 This analysis may overlap with the merits of the underlying claim,21 in which
case the court “is not limited to the pleadings but may ‘probe behind the pleadings’ and examine the facts and evidence in the case.”22 But “the court should not pass judgment on the merits of the case at the class certification stage.”23 And the court may alter, expand, or vacate a certified class as the case develops.24
Below, the court examines whether Plaintiffs have established Rule 23(a)’s requirements,
before analyzing whether Plaintiffs have satisfied Rule 23(b)(2). In the end, the court concludes
that Plaintiffs have met their burden under Rule 23, and that class certification is appropriate.
I. Rule 23(a)
As stated, “Rule 23(a) requires numerosity of class members, commonality of at least one
question of fact or law among the class, typicality of named plaintiffs’ claims or defenses to the
class’s claims or defenses, and adequacy of the named plaintiffs and their attorneys as class representatives.”25 The court addresses each requirement in turn.
A. Numerosity
The party seeking certification must establish that the proposed “class is so numerous that joinder is impracticable.”26 “The numerosity requirement requires examination of the specific
19 Id. 20 Id. at 350–51. 21 Id. at 351. 22 Tabor v. Hilti, Inc., 703 F.3d 1206, 1227–28 (10th Cir. 2013) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982)). 23 Devaughn, 594 F.3d at 1194. 24 Daigle v. Shell Oil Co., 133 F.R.D. 600, 602 (D. Colo. 1990). 25 Devaughn, 594 F.3d at 1194 (footnote omitted). 26 Fed. R. Civ. P. 23(a)(1).
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facts of each case and imposes no absolute limitations.”27 While there must be “some evidence
of established, ascertainable numbers constituting the class,” there is “no set formula” to proving that a class is sufficiently numerous.28
Several factors are relevant in determining whether a class is so numerous that joinder is impracticable.29 Those factors include the class size, the geographic diversity of class members,
the relative ease or difficulty in identifying class members, the nature of the action, the size of the individual claims, and the ability of class members to institute individual lawsuits.30 Each
factor weighs in favor of finding numerosity.
First, “[i]n determining class size, the exact number of potential members need not be shown.”31 Here, over 50 incompetent criminal defendants were on USH’s wait list in late July
2015, while 39 were on the wait list in early June 2016. The proposed class also includes future
criminal defendants who are declared incompetent, but remain housed in a county jail after being
placed in the custody of DHS’s director or a designee to receive restorative treatment. Although
the exact number of these future members cannot be ascertained, proof of “absolute numbers” is not required when the class proponent seeks injunctive or declaratory relief.32 The size of the
class weighs in favor of finding numerosity.
Second, “that a class is dispersed over several counties weighs in favor of a finding of
27 Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1214 (10th Cir. 2014) (citation omitted) (internal quotation marks omitted). 28 Rex, 585 F.2d at 436. 29 See Abercrombie, 765 F.3d at 1215. 30 See id.; Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 357 (D. Colo. 1999). 31 Taco Bell, 184 F.R.D. at 358. 32 Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 276 (10th Cir. 1977); see also Abercrombie, 765 F.3d at 1225 (McHugh, J., concurring in part and dissenting in part) (recognizing that “proof of absolute numbers is unnecessary, at least in the context of injunctive or declaratory relief” (citation omitted) (internal quotation marks omitted)); Jackson v. Danberg, 240 F.R.D. 145, 147–48 (D. Del. 2007) (finding numerosity in a § 1983 action where the proposed class consisted of only sixteen members, and noting that “the numerosity requirement has been relaxed in cases like this where injunctive and declaratory relief is sought by the class” and “the identity of the members of the putative class may change” while the class’s defining characteristics remain the same).
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numerosity.”33 Here, the proposed class includes incompetent defendants dispersed throughout Utah. The geographic diversity of class members weighs in favor of numerosity.
Third, joinder is impracticable where individual class members are difficult to identify.34 To be sure, the identity of many class members can be ascertained by examining the most recent USH wait list. But the class’s composition is fluid as incompetent defendants are added to the list and others are transferred to USH for treatment. Because the class includes individuals who will become members in the future, “[a]s members in futuro, they are necessarily unidentifiable,” making joinder impracticable.35 “[T]hat the class includes unknown, unnamed future members . . . weighs in favor of certification.”36
Finally, “if individual claims are small and/or class members are financially unable to fund litigation themselves, individual joinder may be practically impossible.”37 Plaintiffs here seek only injunctive and declaratory relief, meaning there is no economic incentive that would justify the cost of individual litigation. And although a prevailing party in a § 1983 action may recover attorneys’ fees under 42 U.S.C. § 1988(b), many class members are likely indigent and unable to fund a lawsuit at the outset. The court concludes that individual class members would be deterred from bringing individual lawsuits based on the nature of the action and the size of individual claims. The proposed class is sufficiently numerous that joinder is impracticable.
B. Commonality Next, the class proponent must establish that “there are questions of law or fact common
33 Taco Bell, 184 F.R.D. at 358. 34 See id. at 358–59. 35 Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002). 36 Jones v. Gusman, 296 F.R.D. 416, 465 (E.D. La. 2013) (quoting Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000)). 37 William B. Rubenstein, Newberg on Class Actions § 3:11 (5th ed. 2016); see also Taco Bell, 184 F.R.D. at 359 (recognizing that “one of the central tenets of Rule 23 is that a class action permits plaintiffs, if their claims for damages are too small to justify the costs of litigation, the ability to seek redress” (citing Deposit Guar. Nat’l Bank, Jackson, Miss.v. Roper, 445 U.S. 326, 338 n.9 (1980))).
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to the class.”38 To satisfy this requirement, the class members’ claims must turn on a common contention that “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”39 “What matters to class certification . . . [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”40 That said, “[a] finding of commonality requires only a single question of law or fact common to the entire class.”41
Here, common questions exist. The common questions of fact include whether incompetent defendants who are committed to the custody of DHS’s director or a designee to receive court-ordered competency restoration treatment spend extended periods in county jails before receiving adequate treatment; and if so, whether the State uses a procedure to ensure that those delays, and the place and manner of that treatment, are the product of judgment rendered by a qualified professional. The answers to those questions of fact may implicate a common question of law: whether the State violates the substantive due process right of incompetent defendants to be free from conditions or restrictions of confinement that amount to punishment absent a criminal conviction by keeping those defendants in jail for extended periods while they wait to receive competency restoration treatment that is the product of professional judgment.
The State argues that class certification is inappropriate because resolution of Plaintiffs’ claims requires individual analysis in view of the individualized assessment and treatment each incompetent defendant receives. After all, each incompetent defendant receives a competencyrestoration plan tailored specifically to his needs. And each defendant is evaluated individually to determine whether he has attained competency. Each of these individual circumstances, the
38 Fed. R. Civ. P. 23(a)(2). 39 Wal-Mart, 564 U.S. at 350. 40 Id. (citation omitted) (internal quotation marks omitted). 41 Devaughn, 594 F.3d at 1195.
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State maintains, introduces factual differences that make Plaintiffs’ claims unfit for classwide resolution.
But “[e]very member of the class need not be in a situation identical to that of the named plaintiff to meet Rule 23(a)’s commonality” requirement.42 And “[f]actual differences between class members’ claims do not defeat certification where common questions . . . exist.”43 While dissimilarities are relevant to whether a single common question exists,44 the State appears to detain all incompetent criminal defendants in county jails for extended periods irrespective of their individual circumstances and without reliance on a professional’s judgment. In view of the common questions identified above, the court concludes that the individual circumstances noted by the State do not defeat certification.
The State also contends that Plaintiffs’ asserted injury rests on the type of “allegation of systemic failures” the Tenth Circuit held in J.B. ex rel. Hart v. Valdez45 is insufficient to establish commonality. In Valdez, the named plaintiffs, mentally and developmentally disabled children, alleged that multiple state agencies failed to provide disabled children in the agencies’ custody the protections and therapeutic services required by several federal statutes and the United States Constitution.46 The district court ruled that the named plaintiffs failed to establish that there was a common question of law because “there [was] no one statutory or constitutional claim common to all named Plaintiffs and all putative class members.”47 The Tenth Circuit affirmed, and noted that the named plaintiffs “merely attempt[ed] to broadly conflate a variety of claims to establish commonality via an allegation of ‘systemic failures.’”48
42 Id. (citation omitted) (internal quotation marks omitted). 43 Id. 44 See Wal-Mart, 564 U.S. at 359. 45 186 F.3d 1280, 1289 (10th Cir. 1999). 46 Id. at 1282. 47 Id. at 1289. 48 Id.
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But here, Plaintiffs have not conflated a variety of legal claims based on an allegation of
systemic failures. Rather, their common claims are based solely on their substantive due process rights under the United States Constitution and the Utah Constitution.49 Plaintiffs have satisfied
the commonality requirement.
C. Typicality
A party requesting class certification must also establish that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”50 “To maintain a
class action, a ‘class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’”51 Even so, “[t]he interests and claims of Named Plaintiffs and class members need not be identical to satisfy typicality.”52 And “differing fact
situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.”53
The typicality requirement is met here. Plaintiffs and the proposed class members assert
the same interest: the right to be free from conditions or restrictions of pretrial confinement that
amount to punishment absent a criminal conviction. They also assert the same injury: denial of
that right due to their extended periods of pretrial detention in county jails after being declared
incompetent and being transferred to the custody of DHS’s executive director or a designee to receive restorative treatment.54 Also, Plaintiffs’ claims and the class members’ claims are based
49 The State also urges the court to rely on Shook v. Board of County Commissioners of El Paso (“Shook II), 543 F.3d 597 (10th Cir. 2008), to conclude that Plaintiffs have failed to satisfy the commonality requirement. But the Shook II court affirmed the district court’s decision to not certify the proposed class on Rule 23(b)(2) grounds, not on commonality grounds. See id.at 600–07. That case is therefore inapplicable here. 50 Fed. R. Civ. P. 23(a)(3). 51 Abercrombie, 765 F.3d at 1216 (quoting Wal-Mart, 564 U.S. at 348–49). 52 Devaughn, 594 F.3d at 1198. 53 Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). 54 See Abercrombie, 765 F.3d at 1217 (finding commonality and typicality satisfied where “[t]he interest asserted . . . is the same—the right to be free from disability discrimination in a place of public accommodation—as is the alleged injury—denial of that right by porches at Hollister stores,” and the claims of the named plaintiffs and the
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on the same legal and remedial theory: that the substantive due process right of incompetent defendants requires injunctive relief against the allegedly unconstitutional delays.55
The State again notes that each Plaintiff and each proposed class member receives, or will receive, an individualized competency-restoration plan based on each individual’s circumstances. The State argues that these individual circumstances preclude a finding of typicality. The Tenth Circuit’s decision in DG ex rel. Stricklin v. Devaughn is instructive.
In Devaughn, the named plaintiffs alleged that a state agency’s “agency-wide foster care policies and practices expose[d] all class members to an impermissible risk of harm,” in violation of their substantive due process and other constitutional rights.56 Each proposed class member received “an individualized and specific placement, treatment, and service plan that necessarily change[d] based on evolving circumstances and the unique characteristics of each child.”57 Even though the agency insisted that an individualized analysis of the claims was necessary in view of each proposed class member’s unique circumstances,58 the Tenth Circuit agreed with the district court that typicality existed because “all class members [were] at risk of being subjected to the same harmful practices, regardless of any class member’s individual circumstances.”59
Similarly, while each incompetent defendant receives an individualized treatment plan, each potential class member appears to be subject to the State’s practice of detaining incompetent defendants in county jails for extended periods before providing them restorative treatment.
Finally, the State maintains that Plaintiffs’ claims are not typical of class members’ claims because some class members are restored to competency under the Outreach Program. But “[a]
class members “are based on the same legal and remedial theory—that Title III of the ADA mandates injunctive relief against the porches”). 55 See id. 56 594 F.3d at 1192–93. 57 Id. at 1195. 58 Id. 59 Id. at 1199.
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class will often include persons who have not been injured by the defendant’s conduct.”60 And “[s]uch a possibility or indeed inevitability does not preclude class certification.”61 Plaintiffs have satisfied the typicality requirement.
D. Adequacy of Representation Rule 23(a)’s final prerequisite to certification requires a class proponent to establish that
“the representative parties will fairly and adequately protect the interests of the class.”62 Courts assess adequacy of representation by asking (1) whether “the named plaintiffs and their counsel have any conflicts of interest with other class members,” and (2) whether “the named plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.”63
First, neither Plaintiffs nor their counsel have any conflicts of interests with other class members. Plaintiffs and putative class members have a shared interest in ensuring that criminal defendants who are declared incompetent and are placed in the custody of DHS’s director or a designee do not wait in jails for extended periods before receiving restorative treatment.
Second, there is no dispute that Plaintiffs and their counsel will prosecute this action vigorously on behalf of the proposed class. Nor is there any dispute that Plaintiffs’ proposed class counsel—DLC’s counsel and the law firm Snell & Wilmer LLP—satisfy Rule 23(g)’s requirements.
Plaintiffs are adequate representatives of the proposed class. The court appoints DLC’s counsel and the Snell & Wilmer LLP law firm as class counsel. II. Rule 23(b)(2)
Having concluded that Plaintiffs satisfy Rule 23(a)’s four requirements, the court now
60 Id. at 1198 (citation omitted) (internal quotation marks omitted). 61 Id. (citation omitted) (internal quotation marks omitted). 62 Fed. R. Civ. P. 23(a)(4). 63 Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir. 2002) (citation omitted) (internal quotation marks omitted).
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examines whether Plaintiffs have satisfied the requirements of one of Rule 23(b)’s provisions.
Plaintiffs seek class certification under Rule 23(b)(2), which authorizes certification where the
proponent shows (1) that “the defendants’ actions or inactions [are] based on grounds generally
applicable to all class members,” and (2) that “final injunctive relief [is] appropriate for the class as a whole.”64
The Rule “authorizes an inquiry into the relationship between the class, its injuries, and the relief sought.”65 And it “demands a certain cohesiveness among class members with respect to their injuries.”66 This cohesiveness inquiry depends on whether a classwide injunction can
“state its terms specifically[,] and describe in reasonable detail . . . the act or acts restrained or required,”67 and whether “relief specifically tailored to each class member would be necessary to correct the allegedly wrongful conduct of the defendant.”68 At bottom, “the class members’
injuries must be sufficiently similar that they can be addressed in a single injunction that need not differentiate between class members.”69
These requirements are satisfied here. First, the State allegedly detains incompetent
defendants in county jails for extended periods after a court has committed them to the custody
of DHS’s executive director or a designee on grounds generally applicable to all class members:
there is no room at USH. While some class members may attain competency under the Outreach
Program, the State seemingly implemented that program for the same reason many incompetent
defendants must wait in jail for extended periods after being declared incompetent: USH is full.
64 Shook II, 543 F.3d at 604; see Fed. R. Civ. P. 23(b)(2) (authorizing class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”). 65 Shook II, 543 F.3d at 604. 66 Id. 67 Id. (quoting Fed. R. Civ. P. 65(d)(1)). 68 Id. (citation omitted) (internal quotation marks omitted). 69 Id.; see also Wal-Mart, 564 U.S. at 360 (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”).
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Second, proposed class members’ injuries are amply similar that they can be remedied through an injunction that does not differentiate between Plaintiffs or proposed class members. Plaintiffs’ chief complaint is that there is an unreasonable delay between the date a court declares a criminal defendant incompetent and the date that defendant receives competency restoration treatment in a place and manner that is the product of judgment rendered by a qualified professional. Plaintiffs here seek to remedy this delay through an injunction requiring the State to provide that treatment within a reasonable period from the date a court transfers a defendant to the custody of DHS’s director or a designee to receive treatment. If Plaintiffs can establish the State is violating the due process rights of incompetent defendants, and make their required showing under Rule 65, the court is confident it can fashion an injunction that states its terms specifically and describes in reasonable detail the acts restrained or required. The court is also confident that such an injunction would not require specific relief tailored to each member. The proposed class is cohesive.
The State urges the court to deny Plaintiffs’ request for certification of a Rule 23(b)(2) class for the same reason class certification was inappropriate in Shook II. There, jail inmates brought a class action seeking declaratory and injunctive relief to address a variety of conditions at the jail alleged to violate the Eighth Amendment rights of inmates with mental health issues.70 The Tenth Circuit held that the district court was within its discretion when it declined to certify a Rule 23(b)(2) class because “there was no single policy or procedure to which all [plaintiffs] were subject.”71 Indeed, some plaintiffs asserted “claims for denial of medication, some for lack of supervision, and others for use of excessive force.”72
Here, however, all class members are seemingly held in county jails for extended periods
70 Shook II, 543 F.3d at 600. 71 Id. at 603. 72 Id. at 602–03.
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after a court declares them incompetent and commits them to the custody of DHS’s director or a designee. It appears this occurs not because the States uses a procedure in which a qualified professional recommends this course of action, but because USH is full. Moreover, all named Plaintiffs assert claims based on their substantive due process right to be free from conditions or restrictions of confinement that amount to punishment absent a criminal conviction. Shook II poses no barrier to class certification.
Plaintiffs have satisfied Rule 23’s requirements. Class certification is appropriate. CONCLUSION
For the reasons stated, the court GRANTS Plaintiffs’ Motion to Certify as Class Action and to Appoint Class Counsel. (Dkt. 18.)
SO ORDERED this 27th day of September, 2016. BY THE COURT: __________________________________ ROBERT J. SHELBY United States District Judge
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Aaron M. Kinikini (10225) Erin B. Sullivan (15462) DISABILITY LAW CENTER 205 North 400 West Salt Lake City, Utah 84103 Telephone: (801) 363-1347 Fax: (801) 363-1437 Email: akinikini@disabilitylawcenter.org
esullivan@disabilitylawcenter.org
Alan L. Sullivan (3152) Bret R. Evans (15131) SNELL & WILMER L.L.P. 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101 Telephone: (801) 257-1900 Facsimile: (801) 257-1800 Email: asullivan@swlaw.com
brevans@swlaw.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DISABILITY LAW CENTER, a Utah nonprofit corporation; S.B., an individual, by and through his next friend Margaret Goodman; A.U., by and through his next friend Mary Eka; and S.W., an individual,
Plaintiffs,

JOINT MOTION FOR (1) APPROVAL OF SETTLEMENT AGREEMENT AND
CLASS NOTICES, (2) APPOINTMENT OF MONITOR, AND (3) STAY OF PROCEEDINGS
Case No. 2:15-CV-00645-RJS-BCW

vs.

Judge Robert J. Shelby

STATE OF UTAH; UTAH DEPARTMENT OF HUMAN SERVICES; ANN WILLIAMSON, in her official capacity as Executive Director of the Utah Department of

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Human Services; UTAH DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH; DOUGLAS THOMAS, in his official capacity as Director of the Utah Division of Substance Abuse and Mental Health; UTAH STATE HOSPITAL; DALLAS EARNSHAW, in his official capacity as Superintendent of Utah State Hospital, Defendants.
Pursuant to Rule 23(e)(3), Federal Rules of Civil Procedure, Plaintiffs S.B., A.U., S.W., and Disability Law Center (“DLC”) (collectively “Plaintiffs”) and Defendants State of Utah, the Utah Department of Human Services, Ann Williamson, the Utah Division of Substance Abuse and Mental Health, Douglas Thomas, the Utah State Hospital (“USH”), and Dallas Earnshaw (collectively “Defendants”) jointly move the Court for an order: (1) approving the proposed Settlement Agreement and the joint proposals for notice and comment attached to this motion as Exhibits 1, 2, and 3; (2) appointing Patrick K. Fox, M.D., as Monitor under the Settlement Agreement; and (3) staying all proceedings in this action during the five-year term of the proposed Settlement Agreement, with the Court retaining enforcement jurisdiction during that period.
Background 1. On September 8, 2015, Plaintiffs initiated this class action against Defendants for allegedly failing to admit mentally incompetent pretrial detainees to USH’s Forensic Unit for competency restoration treatment in a reasonably timely manner. (Docket No. 1).
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2. On October 3, 2015, Defendants moved to dismiss the complaint, arguing that it failed to state a plausible claim for relief under the Fourteenth Amendment’s Due Process Claim and Article I, section 7 of the Utah Constitution. (Docket No. 37). The Court denied Defendants’ motion to dismiss on April 7, 2016. (Docket No. 51).
3. The Court later certified the plaintiff class (“the Class”) to include all individuals who are now, or will be in the future, (i) charged with a crime in Utah, (ii) determined by the court in which they are charged to be mentally incompetent to stand trial, and (iii) ordered to the custody of the executive director of DHS or a designee for the purpose of treatment intended to restore the defendant to competency, but who remain housed in a Utah county jail. (Docket No. 71). On November 7, 2016, the United States Court of Appeals for the Tenth Circuit denied Defendants’ petition for interlocutory review of the Court’s certification of the Class. (Docket No. 75).
4. Since May 2016, the parties have been engaged in settlement discussions aimed at resolving all of the constitutional and remedial issues in this case. In their discussions, the parties have been assisted by two experts in the field, Dr. Patrick Fox of Colorado and Dr. Andrew Phillips of Washington. On June 9, 2017, the parties reached an agreement to resolve all claims, subject to this Court’s approval of the terms of settlement.
The Proposed Settlement Agreement and Strategic Plan 5. If approved, the proposed Settlement Agreement will be enforceable in this Court for a period of five years from the date of its approval. Settlement Agr. ¶ 30. The Settlement Agreement will establish a maximum allowable wait time – measured from the date on which USH receives the custody order to the date on which the Class member begins restoration
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treatment – for all Class members. Under the terms of the proposed Settlement Agreement, Defendants will adopt and implement a series of measures reflected in a Strategic Plan, a copy of which is annexed as Exhibit 1 to the Settlement Agreement, in order to reduce the time during which Class members must wait to receive competency restoration treatment, taking into consideration likely future increases in the number of pretrial detainees requiring treatment. Plaintiffs believe that the proposed Settlement Agreement and Strategic Plan will, if fully implemented, resolve all claims asserted by Plaintiffs, subject to the monitoring of Defendants’ compliance for the next five years.
6. The next seven paragraphs highlight the most critical features of the proposed Settlement Agreement and the Strategic Plan.
7. The proposed Settlement Agreement will establish a 72-hour screening deadline for all pretrial detainees who have been determined by a Utah state court to be mentally incompetent to stand trial. Settlement Agr. ¶ 19(a). It will also provide specific screening standards for the USH professionals who make treatment decisions so that Class members will be directed to the Utah State Hospital’s Forensic Unit or to one of several other defined treatment options, based on uniform diagnostic criteria. Id. See also Strat. Plan at p. 10.
8. One of the treatment options designated in the proposed Settlement Agreement is treatment in an “Offsite Forensic Facility,” one of which USH is now in the process of establishing in space to be leased from the Salt Lake County Metro Jail. Settlement Agr. ¶¶ 19(a) and 24. USH will build and operate this new facility with an appropriation of $3 million from the 2017 Utah Legislature. The facility will have capacity to treat 22 or more patients and will be operated by a multidisciplinary team consisting of a psychiatrist and other full-time
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professionals. Strat. Plan at pp. 6-7, 13-14. “[T]he anticipated staffing and training of the offsite forensic facility will be commensurate with their counterparts at the USH.” Id. at p. 6. Class members assigned to the facility will be segregated from the general jail population. Settlement Agr. ¶ 24(a). Under the Settlement Agreement, “Defendants shall establish and operate one or more Offsite Forensic Facilities with sufficient capacity to meet, in combination with other improvements, the Maximum Allowable Wait Time deadlines in paragraph 21.” Id. ¶ 24(c).
9. Another treatment option designated in the proposed Settlement Agreement will be in-jail treatment through USH’s “Outreach Program.” Settlement Agr. ¶¶ 19(a) and 25. Under the proposed Settlement Agreement, Class members may be provided treatment under this option only if a qualified USH professional concludes, at the time of screening, that the Class member “is likely to show meaningful progress toward restoration of competency within 30 days, [that the Class member’s] symptoms are stabilizing, and [that the Class member is] likely to be referred for re-evaluation and restored to competency within 60 days.” Id. ¶ 25(a); see also Strat. Plan at pp. 12-13. Class members may be disqualified from the Outreach Program based on specific diagnostic criteria and will instead be directed to USH, an Offsite Forensic Facility, or an Alternative Therapeutic Facility. Id.
10. DLC has previously raised questions concerning the efficacy of the Outreach Program. For this reason, the program’s performance will be watched carefully and re-evaluated by the Monitor (discussed below) at the end of the first year of the term of the proposed Settlement Agreement. If, after one year, the Monitor determines that the Outreach Program has not been effective, it will be terminated as a treatment option unless “the Monitor prescribes
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additional steps to improve [its] efficacy and USH complies with and implements those steps.” Id. ¶ 26.
11. Looking into the future, the Settlement Agreement and the Strategic Plan require the study of additional treatment options to address the needs of female members of the Class, and likely increases in general Class membership over time. See, e.g., Settlement Agr. ¶¶ 1 and 24(e).
12. The central requirement of the Settlement Agreement is that the maximum number of days during which Class members must wait to begin treatment must be dramatically reduced in several stages. When this case was filed in September 2015, wait time for Class members, as measured from the date of the custody order to the date on which treatment at USH or elsewhere begins, was about six months. Compl. ¶ 4. Under the proposed Settlement Agreement, the maximum wait time for all Class members will be reduced to 60 days within six months of the Court’s approval of the Settlement Agreement, to 30 days within twelve months of approval, and to 14 days within eighteen months of approval. Settlement Agr. ¶ 21.
13. Defendants’ compliance with these and all other requirements of settlement will be overseen by the Monitor, who will report quarterly to the parties. Settlement Agr. ¶ 20. The Monitor will base his reports on detailed monthly compliance reports from Defendants’ Designated Representative, together with any additional information brought to his attention. Id. ¶¶ 4 and 18.
14. Subject to the Court’s approval, the parties have named Patrick K. Fox, M.D. as Monitor. Settlement Agr. ¶ 8. Dr. Fox’s credentials are summarized in Exhibit 4. Dr. Fox is a trained psychiatrist with extensive experience in competency restoration and correctional
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psychiatry in the States of Connecticut and Colorado. He is the Chief Medical Officer of the Colorado Department of Human Services and one of the two professionals selected by the parties to advise them during negotiation of the Settlement Agreement.
15. The Settlement Agreement will provide a mechanism for dispute resolution and enforcement before this Court during its five-year term. Settlement Agr. ¶ 28. Thereafter, any party may move for dismissal of this case. Id. at ¶ 27. The present motion is brought pursuant to paragraph 27, which requires the parties jointly to move the Court for an order staying this case pending implementation of the Plan and compliance with the Settlement Agreement.
Compliance with Rule 23(a) 16. Rule 23(e) provides that “claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval.” The Court must “direct notice in a reasonable manner to all class members who would be bound by the proposal” and “[i]f the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1) and (2). Finally, because settlement of this case requires court approval, class members must be given the opportunity to object to the proposal. Id. 23(e)(5). 17. The parties jointly propose that the forms of notice attached to this motion as Exhibits 2 and 3 be used to give Class members notice of the proposed settlement under the following terms: a. To provide notice of the proposed settlement agreement to existing Class
members, the parties will rely on the waiting list for admission to the Utah State Hospital in effect at the time the Court grants the present motion.
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b. c.
4833-8398-5994

The parties will send, by first-class U.S. mail, a copy of the proposed “Notice of Proposed Class Action Settlement” attached to this motion as Exhibit 2 as well as a copy of the proposed Settlement Agreement attached to this motion as Exhibit 1 to all class members on the waitlist. The proposed “Notice of Proposed Class Action Settlement” allows class members affected by the proposed Settlement Agreement to make objections to the proposed Settlement Agreement, submit comments concerning the proposed Settlement Agreement, and indicate whether they intend to appear at the final settlement approval hearing. The parties will include a self-addressed stamped envelope for class members to submit written objections or comments to the Disability Law Center. The parties will mail a copy of the proposed “Notice of Proposed Class Action Settlement” attached to this motion as Exhibit 3 and a copy of the proposed Settlement Agreement to counsel of record for each class member. The parties will use Utah Courts’ Xchange Case Search to identify counsel of record for each class member at the time the “Notice of Proposed Class Action Settlement” is mailed. The proposed “Notice of Proposed Class Action Settlement” attached to this motion as Exhibit 3 allows defense counsel for class members to make objections to the proposed Settlement Agreement, submit comments concerning the proposed Settlement Agreement, and indicate whether they intend to appear at the final settlement approval hearing. The “Notice of Proposed Class Action Settlement” attached to this motion as Exhibit 3 expressly requests that defense counsel share the Notice and proposed Settlement Agreement with known family
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members and any known legal guardian of the class member and to encourage those individuals to submit any objections or comments to the proposed Settlement Agreement. d. All comments or objections to the proposed Settlement Agreement received by the Disability Law Center will be consolidated and saved in a separate file until the end of the comment period. Copies of the comments will be provided to counsel for Plaintiffs and counsel for Defendants. The original comments and objections regarding the proposed Settlement Agreement will be submitted in a single, hard copy filing with the Clerk of Court for the United States District Court for the District of Utah no later than two weeks before the fairness hearing. 18. After notice has been given, the parties respectfully request the Court to schedule a hearing regarding the fairness, reasonableness, and adequacy of the proposed Settlement Agreement. Based on the above, the parties request that this Court enter an order: (1) making a preliminary determination to ensure that the proposed Settlement Agreement attached to this motion as Exhibit 1 is fair, reasonable, and adequate; (2) approving the “Notice of Proposed Class Action Settlement” to class members, attached as Exhibit 2 to this motion; (3) approving the “Notice of Proposed Class Action Settlement” to defense counsel for class members, attached as Exhibit 3 to this motion; (4) scheduling a fairness hearing under Federal Rule of Civil Procedure 23(e), and thereafter (5) approving the Settlement Agreement, appointing Dr. Fox as Monitor, and staying all proceedings in this action during the five-year term of the proposed Settlement Agreement.
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Dated: June 12, 2017

SNELL & WILMER L.L.P.
/s/ Alan L. Sullivan Alan L. Sullivan Bret R. Evans Attorneys for Plaintiff
DISABILITY LAW CENTER
/s/ Erin B. Sullivan Aaron M. Kinikini Erin B. Sullivan Attorneys for Plaintiff
UTAH ATTORNEY GENERAL
/s/ Laura K. Thompson Laura K. Thompson David N. Wolf Parker Douglas Assistant Attorneys General for Defendants

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 11 of 72 Exhibits to Joint Motion for Approval of Settlement Agreement
1. Settlement Agreement (June 9, 2017) 2. Notice of Proposed Class Action Settlement (to Class members) 3. Notice of Proposed Class Action Settlement (to counsel for Class members) 4. Curriculum Vitae of Patrick K. Fox, M.D.
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EXHIBIT 1

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 13 of 72

Return

SETTLEMENT AGRE,EMENT

This Settlement Agreement is entered into by and between the Disability Law Center

(hereinafter "DLC"), an individual identified as S.8., an individual identified as 4.U., and an individual identified as S.W. (hereinafter collectively the "Named Plaintiffs"), on the one hand,

and the Utah Department of Human Services (hereinafter "DHS"), Ann V/illiamson in her

offrcial capacity as Executive Director of DHS, the Utah Division of Substance Abuse and

Mental Health (hereinafter the "Division"), Douglas Thomas in his offrcial capacity as Director

of the Division, the Utah State Hospital (hereinafter "USH"), and Dallas Earnshaw in his offrcial
capacity as Superintendent of USH (hereinafter collectively "Defendants"). Each of the

foregoing parties is sometimes referred to as a "paÍty" and collectively as "the parties."

Recitals
The parties jointly acknowledge the following undisputed facts, which form the

background for this Settlement Agreement:
A. DHS has the statutory obligation under Title 77, Chapter 15 of the Utah Code to
provide competency evaluations for persons charged with criminal offenses, and to provide

Restoration Treatment (as defined below) for persons found incompetent to proceed.
B. On behalf of the class of plaintifß described below, DLC and the other Named

Plaintiffs filed a civil action against the Defendants in the United States District Court for the

District of Utah (hereinafter the "Couft") Disabilitv Law Center. a Utah nonorofit cornoration. et

al.. vs. State of Utah. et al.. Case No. 2 : 1 5 -CV-00645 -RJS -BCW (hereinaft er the "Litigation"), to

challenge the length of time pretrial detainees in Utah's county jails must wait to receive

Restoration Treatment.

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C. The purposes of this Settlement Agreement are: (i) for the parties jointly to adopt
and implement a strategic plan that will significantly reduce the wait time for Class members (as defined below) to be admitted to Restoration Treatment; (ii) to resolve all claims asserted by the Named Plaintiffs on behalf of the Class in the Litigation; (iii) to provide a mechanism for
monitoring Defendants' compliance with this Settlement Agreement and the Plan; and (iv) to provide a mechanism for enforcement of this Settlement Agreement and the Plan.
D. As discussed below, the Named Plaintiffs claim on behalf of the Class that
Defendants violate the rights of criminal defendants who have been found incompetent to stand trial under the Fourteenth Amendment to the United States Constitution and Article I, $ 7 of the Utah Constitution, by infringing their liberty interests in being free from incarceration absent a criminal conviction. Defendants deny Plaintiffs' claims.
E. DLC is a federally authorized and funded nonprofit corporation established under
the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. $ 10801 et. seq. Plaintiffs S. 8., A. U., and S. W. were, at the time the complaint in the Litigation was filed, pretrial detainees who had been declared incompetent to stand trial in a criminal
proceeding and committed to the custody of the executive director of DHS for the purpose of
treatment intended to restore them to competency.
F. DHS is the agency of the State of Utah with responsibility to administer or
supervise the administration of competency Restoration Treatment under Utah Code Ann. $ 7715-6(1). The Division is the division of the State of Utah charged with responsibility to ensure the availability of services for people with mental health disorders and substance abuse issues. USH, which operates under the direction of DHS and the Division, is the Utah state psychiatric hospital. Currently, USH is the only state facility providing Restoration Treatment to Class

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members, although Restoration Treatment is also provided to Class members through the State's

Outreach Program designed to restore competency to individuals housed in Utah county jails.
G. In entering into this Settlement Agreement, Defendants do not admit any

wrongdoing or constitutional violation as to any Named Plaintiff or Class member. Defendants

do not admit that their conduct, whether actual or alleged, constitutes a legitimate ground for

liability against the State or any Defendant.
H. On September 27,2016, the Court in the Litigation certified the following

plaintiff class (the "Class"): all individuals who are now, or will be in the future, (i) charged with

a crime in Utah, (ii) iletermined by the court in which they are charged to be incompetent to stand trial, and (iii) ordered to the custody of the executive director of DHS or a designee for the

purpose of treatment intended to restore the defendant to competency, but who remain housed in
a Utah county jail. On November 7 ,2016, the United States Court of Appeals for the Tenth
Circuit denied Defendants' petition for interlocutory review of the Court's certification of the

Class.

I.

Under Utah Code Arm. $ 77-15-3(l), whenever a person charged with a public

offense is, or becomes, mentally incompetent to proceed, a petition for inquiry may be filed in

the state district court in which the charge is pending for the determination of the person's mental

competency. If the court determines that the person is incompetent to stand trial, the court must

order him or her committed to the custody of the executive director of DHS or a designee for

competency restoration treatment.
J. As the result of limitations on space at USH and limitations on DHS's resources,

some Class members have historically waited months after the state courl orders restorative

competency treatment to be admitted to USH for treatment. During this waiting period, Class

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members \¡/ere incarcerated in county jails, where they received little or no treatment to restore
competency from professionals employed by the jail. As a generalmafler, Utah's county jails are not specifically designed to provide competency restoration treatment, and jail staff do not
administer such treatment. Accordingly, since July 2014, the State has administered an Outreach Program designed to restore competency to individuals housed in Utah county jails.
K. With DLC's concurrence, Defendants have formulated and adopted a plan entitled
"A Strategic Plan for Providing Utah Adult Mental Health Competency Restoration Services"
(June 9, 2017) (the "Plan") to reduce the time during which Class members must wait to receive Restoration Treatment. A copy of the Plan is attached as Exhibit 1. The Plan consists of the following elements:
i. A process for promptly screening and identifying: (a) those Class members
who, because of the acuity and nature of their mental illness, should be
transferred from jail to the USH Forensic Unit for Restoration Treatment;
(b) those Class members whose mental illness is less severe and should be transferred to an Alternative Therapeutic Unit, as defined below, which may
be established by USH; (c) those Class members who may likely be restored to competency in a suitable Offsite Forensic Facility, as defined below, operated by USH or under contract with DHS; (d) those Class members who are likely to be restored to competency through the Outreach Program, as defined below, subject to the limits in paragraphs 25(a) and26, below; (e) those Class members with intellectual or developmental disabilities who should be directed to the Division of Services for People with Disabilities for Restoration Treatment ("DSPD"); (f) those Class members whose mental

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condition has stabilized since initial evaluation, with the result that a further

evaluation should be made to determine if these Class members are now

competent; and (g) those Class members who are unlikely to be restored to

mental competence and should be released from DHS custody so that civil

commitment, dismissal of charges, or other resolution can occur.
ii. USH's continued operation and fuither development of the Outreach

Program, as defined below, to screen, treat, assess, and monitor Class

members.
iii. USH's development of one or more Offsite Forensic Facilities for

Restoration Treatment of Class members for whom such programs are likely

to be a suitable means to restore competency.
iv. USH's development of one or more Alternative Therapeutic Units for

Restoration Treatment of Class members for whom such programs are likely

to be a suitable means to restore competency.
v. Measures to assure that all Class members begin receiving the timely

provision of appropriate Restoration Treatment after the state court orders

treatment for them.
vi. Measures to increase the efficient use of the USH Forensic Unit so as to

maximize its existing capacity.
vii. Measures to manage the anticipated growth in the number of people who are

likely to become Class members in years to come.

L.

The Court has jurisdiction over the Litigation under 42 U. S.C. $ $ 1 3 3 1 and

1343. The parties agree that venue is proper under 28 U.S.C. $ 1391(bX2). The parties will

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jointly submit this Settlement Agreement to the Court for approval, and its terms will not be effective until the Court approves it.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows:

Definitions
Return 1. "Alternative Therapeutic Unit " means any treatment unit established and
operated by USH or under contract with DHS for Restoration Treatment on or off of the USH Campus for Class members who, in USH's professional judgment, do not require hospitalization level of care, but are not appropriate for an Offsite Forensic Facility or the Outreach Program.
2. The "Class" means all individuals who are now or will in the future be: a. Charged with a crime in Utah state courts, b. Determined by the court in which they are charged to be mentally
incompetent to stand trial,
c. Ordered or committed by the court to the custody of the DHS executive
director or a designee for the purpose of treatment intended to restore the
individuals to competency, but who remain incarcerated in a county jail in
Utah, and
d. V/aiting to begin Restoration Treatment, 3. "Custody or Commitment Ordert'means a written order, issued by a court and
signed by a judge, which orders a Class member committed to the custody of the executive director of DHS or a designee for the purpose of treatment intended to restore the defendant to competency, as described in Utah Code Ann. $ 77-15-6(I).

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Return 4. "Defendants' Designated Representative" is Dallas Eamshaw, who has been
appointed by Defendants to perform the duties set forth inparagraph 18, below.
5. "Forensic Evaluator" means a licensed independent mental health professional
qualified to conduct court-ordered mental illness evaluations of adults in the criminal justice

system, who is familiar with and complies with the requirements of Utah Code Arur. $ 77-15-l et. seq., and who is not involved in the treatment of the Class member.
6. "Incompetent to proceed" has the same meaning as set forth in Utah Code Ann.

s 77-rs-2.
7.

"Maximum Allowable Wait Time" means the largest number of days thaf any

Class member is permitted to wait under paragraph2l tobe admiued into Restoration Treatment,

as measured from the date on which USH received the Custody Order until the date on which the

Class member began receiving Restoration Treatment at USH, at an Alternative Therapeutic

Unit, at an Offsite Forensic Facility, through the Outreach Program, or from DSPD. For

pu{poses of this Settlement Agreement, the wait times for class members who are already

incarcerated when the Plan is implemented, or September 30,2017, whichever is later, will be

tracked, but the wait times associated with those current Class members will not count towards

compliance with the deadlines established in paragraph 21, below.
Return 8. The "Monitor" is Patrick K. Fox, M.D., who has been appointed by the Court
based on the parties' stipulation to perform the duties set forth in paragraphs 20, 26 and28

below. Defendants and the Monitor shall promptly negotiate and enter into a retention

agreement pursuant to which Defendants shall pay the Monitor a reasonable hourly rate and all

necessary expenses incurred in performing those duties, with the exception of the duties set forth

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inparagraph 28, as the costs associated with Monitor-led mediation shall be shared by the parties

equally.
9.

The "Monitoring Period" means frve (5) years from the date on which the Court

approves this Settlement Agreement.
10. "Offsite Forensic Facility" means a program of Restoration Treatment

administered by USH forensic personnel, or by similarly qualified professionals employed by

DHS's contractor, at a location other than the USH Campus. Every Offsite Forensic Facility

established by Defendants pursuant to this Settlement Agreement must comply with the

requirements of paragr aph 24 below.
1 1. "Outreach Program" means USH's program of screening, treating, assessing
and monitoring Class members while they remain residents in county jails and are not residents

in any Offsite Forensic Facility. Outreach Program professionals will screen Class members for

the appropriate level of Restoration Treatment; treat Class members whose screening indicates

that they are likely to show meaningful progress towards restoration of competency within 30

days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and

restored to competency within 60 days; assess Outreach Program patients' progress; and monitor

Class members who have been restored to competency, wherever they are located, and assist

them in remaining competent to stand trial. Subject to the terms of paragraph 26, below, USH

may utilize the Outreach Program as an approved method of Restoration Treatment for a period

of one year from the date on which the court approves this Settlement Agreement
12. "Restoration Treatment" in this Settlement Agreement means competency

restoration treatment provided by USH forensic personnel or by similarly qualified professionals

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employed by DHS's contractor, to Class members in an effort to restore them to competency, in accordance with Utah Code Ann. $ 77-15-6(1), regardless of location or level of need.
13. "Status Report" means the written report issued by the Defendants' Designated
Representative on a monthly basis during the Monitoring Period, pursuant to paragraph 18, below.
14. "USH Forensic Unit" has the same meaning as set forth in Utah Code Ann.
s 624-1s-e01.
15. "Waitlist" means the list of individuals committed to the custody of the executive
director of DHS and waiting in jail for Restoration Treatment. Obiectives. Plan Implementation and Measures of Compliance
16. Timely Restoration Treatment - Defendants shall take all necessary steps to
meet the objective of providing all Class members with timely and appropriate Restoration Treatment. Pursuant to the screening procedures referenced inparagraph 19, below, and without any unnecessary delay, Defendants shall transport or direct transportation consistent with Utah Code Ann. Sect. 77-15 et seq., of Class members to the appropriate program or location for Restoration Treatment.
I7 . Implementation of the Plan - Subject to the Court's approval of this Settlement
Agreement, Defendants shall implement the Plan annexed hereto as Exhibit 1 no later than September 30,2017, and shall take all steps necessary to diligently follow the Plan during the term of this Settlement Agreement.
Return 18. Duties of Defendants' Designated Representative - No later than the tenth day
of the month following the end of every month during the Monitoring Period, the Defendants' Designated Representative shall transmit to the Monitor and DLC a Status Report accurately

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reporting the status of all Class members then waiting for Restoration Treatment. Each report

must include the following information for each Class member:

a. The Class member's name and criminal case number;

b. The name of the court that entered the Class member's Custody Order;

c. The date of the court's Custody Order;

d. The date USH received the Custody Order;

e. The name of the jail where the Class member is being held;

f.

The dates on which the Outreach Program screened the Class member and

the results of the screenings, including the current disposition of the Class

member for Restoration Treatment;
g. The date on which the Class member began receiving Restoration

Treatment and the location of the Class member's Restoration Treatment;
h. The date, if any, on which the Class member was terminated from DHS

custody for any reason;

i.

The reasons for the Class member's termination from DHS custody,

including the name and location of the facility or other setting to which the

Class member was transferred, if that information is known to DHS; and,

j

The number of days the Class member has spent on the Waitlist.

The report shall also state: (1) the longest wait time as among all Class members then on

the V/aitlist; (2) whether the Defendants have complied with the requirements of paragraph2l,

below, during the month; and, if applicable, (3) the reasons for Defendants' inability to comply

with the requirements of paragraph2l.

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Defendants' Designated Representative shall, on request, cooperate with the Monitor in

gathering any additional information necessary for the Monitor's reports, which are required in

paragraph20, below.

19. Screening deadlines and disposition of Class members -

Return

a. V/ithin seventy-two (72) hours, excluding weekends and holidays, of

DHS's receipt of the Custody Order with respect to a Class member, a

qualified USH Forensic Unit professional shall screen the Class member

using a screening tool approved by, and subject to modification and

replacement as determined appropriate by, Defendant's Designated

Representative and the Monitor. On the basis of the screening, the USH

Forensic Unit professional shall determine whether the Class member: (i) should be transferred from jail to the USH Forensic Unit for

Restoration Treatment due to the acuity and nature of the Class member's
mental illness; (ii) should be transferred to an Alternative Therapeutic

Unit; (iii) should be transferred to an Offsite Forensic Facility for

Restoration Treatment; (iv) subject to the limits in paragraph 26, below,

should be treated by the Outreach Program based on the standards set forth

in subparagraph25(a), below; (v) should be directed to DSPD for

Restoration Treatment because of the Class member's intellectual or

developmental disabilities; (vi) should be reevaluated by a Forensic

Evaluator to determine if the Class member is now competent; or

(vii) should be released from DHS custody because it is unlikely that

Restoration Treatment would be effective.

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b

As soon as the foregoing determination is made, Defendants shall take all

steps necessary to promptly effectuate the appropriate disposition of the

Class member.

c.

If the qualified USH Forensic Unit professional determines that the Class

member should be directed to DSPD for Restoration Treatment because of

the Class member's intellectual or developmental disabilities, USH shall
make the referral within 72 hours, excluding weekends and holidays, of

the screening determination. DSPD shall make a determination about

whether it is the agency best suited to provide Restoration Treatment to the Class member within 72hours, excluding weekends and holidays, of

the referral from USH. If DSPD does not accept the referral, USH shall

place the Class member back on the V/aitlist consistent with the date of

the court's Custody Order and comply with the Maximum Allowable Wait

Time deadlines in paragraph 21. The time spent towards the Class

member's referral and assessment will not count in computing the

Maximum Allowable V/ait Time.

d.

If the qualihed USH Forensic Unit professional determines that the Class

member should be reevaluated by a Forensic Evaluator to determine if the

Class member is now competent, a referral to a Forensic Evaluator shall

be made within 72hours, excluding weekends and holidays, of the

determination. If the reevaluation cannot be conducted within 72hours,

excluding weekends and holidays, of the referral, or if the Forensic

Evaluator recommends that the Class member is still not competent to

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proceed but there is a substantial likelihood that the Class member can be restored to competency in the foreseeable future, USH shall continue administering competency restoration services appropriate for the patient's level of need and shall have complied with the Maximum Allowable Wait Time deadlines in paragraph 21. The time spent towards the Class
member's referral and assessment will not count in computing the
Maximum Allowable V/ait Time.
e. If, at any time, the qualified USH Forensic Unit professional identifies an
emergent mental health need, the Defendant's Designated Representative shall expeditiously report the circumstances to DLC and the Monitor, describe any action taken by USH, and keep DLC and the Monitor apprised of any subsequent disposition of the Class member.
Return 20. Monitor's quarterly reports - No later than the hfteenth day of the month after
the end of each calendar quarter during the Monitoring Period, the Monitor shall report in writing to the Defendants and DLC on Defendants' progress during the preceding quarter in
implementing each specific provision of the Plan and in complying with each specific term of
this Settlement Agreement.
Return 21. Deadlines for reduction in Maximum Allowable Wait Time a. By March 31,2018, Defendants shall reduce the Maximum Allowable
Wait Time to sixty (60) days.
b. By September 30, 2018, Defendants shall reduce the Maximum Allowable
V/ait Time to thirty (30) days.

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c. By March 31,2019, Defendants shall reduce the Maximum Allowable
V/ait Time to fourteen (14) days.
22. Modification to the Plan - If Defendants believe that to achieve compliance with
the screening deadlines in paragraph 19 or the Maximum Allowable Wait Time deadlines in paragraph 21, above, they will require a modification of the Plan, the Defendants' Designated Representative shall provide the Monitor and DLC with a detailed written explanation of the necessary modihcation. If DLC objects to any proposed Plan modification, it will notiff
Defendants' Designated Representative of the objection in writing within fourteen (14) days of
its receipt of the notice of modif,rcation. DLC and Defendants' Designated Representative shall thereafter confer in good faith to resolve their differences. If they are unable to resolve their
differences in this manner, the parties will submit their differences to the Monitor for possible dispute resolution. If they are unable to resolve their differences in consultation with the Monitor, the Monitor will make a written report and recommendation to the parties. If, after conferring with the Monitor, the parties still disagree as to the proposed modification of the Plan,
either party may move the Court for relief, along with the Monitor's report and recommendation. In the absence of DLC's consent, Defendants shall not implement proposed changes to the Plan sooner than sixty (60) days following the issuance of the Defendants' Designated Representative's written notice required in this paragraph.
23. Suspension of deadlines because of special circumstances - Defendants' ability
to perform their obligations under this Settlement Agreement in a timely manner may depend on special circumstances beyond their control. Subject to the following terms and conditions, the deadline in paragraph 19(a) (hereinafter the "Screening Deadline") and the deadlines in

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paragraph2l (hereínafter the "Maximum Allowable Wait Time Deadlines") may be suspended with respect to one oÍ more Class members:
a. The Screening Deadline or the Maximum Allowable V/ait Time Deadlines if relating to an individual Class member may be temporarily suspended
Defendants conclude that they cannot meet the relevant deadlines because of factors beyond Defendants' control, including (but not limited to):
orders of a court that will delay Defendants' performance; motions filed on behalf of the Class member that will delay Defendants' performance; a jail's failure or refusal to clear the Class member for admission to one of Defendants' facilities; a jail's failure or refusal to allow Outreach Program
staff access in order to carry out its responsibilities with respect to a Class member; or medical conditions that prevent a Class member's admission to USH. Circumstances in this category shall be referred to as "Individual Special Circumstances."
b. The Screening Deadline or the Maximum Allowable Wait Time Deadlines if relating to a group of Class members may be temporarily suspended
Defendants conclude that they cannot meet the relevant deadline because of factors beyond their control, including (but not limited to) a national or local disaster impacting admissions to one oÍ more of Defendants' facilities, a labor action that substantially impedes the continued operation of a facility, or an extraordinary and unanticipated increase in the number of court-ordered competency restoration referrals. Circumstances in this category shall be referred to as "Departmental Special Circumstances."

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The failure or refusal of the Utah Legislature to adequately fund

Defendants' operations, programs, or the Plan shall not be considered a

Departmental Special Circumstance for purposes of this Settlement

Agreement.

c.

lf, at any time during the term of this Settlement Agreement, Defendants

conclude they must suspend either the Screening Deadline or the

Maximum Allowable Wait Time Deadlines on account of either an

Individual Special Circumstance or a Departmental Special Circumstance,

the Defendants' Designated Representative shall immediately give DLC

and the Monitor written notice thereof. The notice shall state the nature of

the special circumstance (that is, whether an Individual or Departmental

Special Circumstance), names of all of Class members who will be

affected by the proposed suspension, and all of the facts constituting the

special circumstance. The notice shall also state which specific deadlines

must be suspended and for what specific period.

d.

Any suspension proposed in the notice shall begin on the date on which

the notice is received by DLC and the Monitor and shall terminate at the

end of the temporary period of suspension, as set forth in the notice, unless

modified in accordance with subparagraphs f or g, below.

e

No suspension of any deadline shall last longer than is justified by the

special circumstance identified in the notice.

f.

If either DLC or the Monitor objects to the suspension, or the scope or

duration of the suspension, DLC or the Monitor may notify Defendants'

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Designated Representative of the objection in writing, and the parties shall

promptly confer with each other in good faith to resolve the issue.
g. If the parties are unable to resolve the issue after the consultation required

by subparagraph f above, they will submit the matter to the Monitor for

mediation. In the absence of an emergency requiring immediate relief,

none of the parties shall be entitled to file a motion in the Litigation to

enforce this Settlement Agreement based upon the suspension until the

expiration of thirty (30) days from the date on which the party notifies the

other parties of the alleged violation based upon the suspension and efforts

to resolve the situation, including Monitor-led mediation, have been

exhausted. The parties shall equally share the costs of Monitor-led

mediation.
Return 24. Offsite Forensic Facilify requirements - As part of the Plan, Defendants are
hereby authorized to develop and implement one or more Ofßite Forensic Facilities consistent

with the following principles:

Return a.

Each Ofßite Forensic Facility shall be a treatment program located in space that is suitable for Restoration Treatment. If the space is located in

or leased from a county jail, the space and the residents shall be segregated

from the jail's general inmate population.

b. Each Offsite Forensic Facility shall be operated by a multi-disciplinary

treatment team consisting of full-time forensic professionals, employed by

DHS or by a suitable contractor, of a number that is sufficient to provide

those Class members transferred to the Ofßite Forensic Facility with

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Return c
d.
e
Return

Restoration Treatment. A sufficient number of staff members shall remain on-site during operational hours. Each Offsite Forensic Facility shall meet the best practices of professional and clinical standards governing the operation of, and delivery of, Restoration Treatment services at the USH Forensic Unit. Defendants shall establish and operate one or more Offsite Forensic Facilities with sufficient capacity to meet, in combination with other improvements, the Maximum Allowable Wait Time deadlines in paragraph2T. The initial Offsite Forensic Facility should preferably be located in the Salt Lake County Metro Jail, in space previously inspected and approved by the representatives of the parties. The parties affirmatively represent that they are not presently aware of any def,rciencies in the management or operation of the Salt Lake County Metro Jail that would preclude, impede, or otherwise interfere with Defendants' ability to establish and operate an Offsite Forensic Facility at the Salt Lake County Metro Jail, or that would preclude, impede, or otherwise interfere with Class members' ability to receive reasonable and adequate medical and mental health care and services while they are housed in the Offsite Forensic Facility at the Salt Lake County Metro Jail. Defendants will carefully evaluate and, if needed, seek additional funding for a comparable facility for Class members who are women.

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Return 25. Outreach Program duties - Subject to the limits of parcgraph 26, below,
Outreach Program professionals shall conduct timely screening of Class members in accordance with paragraph 19 above and shall:
Return a. Treat Class members who, in the professional's judgment, are likely to show
meaningful progress towards restoration of competency within 30 days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within 60 days. Class members in the Outreach Program shall be re-assessed by Outreach Program professionals every two weeks to determine progress toward competency. Following 30 days of Restoration Treatment in the Outreach Program, Outreach Program professionals will reassess each Class member to determine if the Outreach Program remains the most clinically appropriate and effective level of care. A Class member will be disqualified from Restoration Treatment in the Outreach Program if he or she exhibits repeated suicidal ideations with intent to harm, engages in repeated acts of self-harm, persistently refuses medications necessary for competency restoration with no rational basis, exhibits a significant decline in clinical stability, or is diagnosed with a moderate to severe intellectual or developmental disability. If the Outreach Program professional determines at screening that a Class member should be disqualified from consideration for Restoration Treatment in the Outreach Program, the Class member must be transferred to USH, an Offsite Forensic Facility, or an Altemative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays. Similarly, if the Outreach Program professional determines that the Outreach Program is no longer

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clinically appropriate or effective for a Class member, the Class member must be transferred to USH, an Offsite Forensic Facility, or an Alternative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays, or referred to DSPD if appropriate;
b. Facilitate the prompt reevaluation of Class members by a Forensic
Evaluator, if j ustified;
c. Monitor former Class members as clinically necessary who have been
restored to competency and who await trial, to assist them in maintaining their competency until trial.
Return 26. Determination of the Outreach Program's effectiveness - The Outreach
Program may be utilized by USH as an approved altemative method of Restoration Treatment under this Settlement Agreement for a period of one year from September 30,2017. During this
one-year period, the Monitor will gather and analyze information about the Outreach Program's effectiveness in providing Restoration Treatment to Class members, including the number of patients who are restored or aÍe not restored within 60 days, together with any other factors the Monitor deems relevant. By the end of the one-year period, the Monitor will advise the parties
either: (a) that the Outreach Program is effective as a method of Restoration Treatment, in which event the Outreach Program will become a pennanent treatment option under this Settlement Agreement; or (b) that it is not effective, in which event its use as a treatment option under this Settlement Agreement will be promptly terminated unless the Monitor prescribes additional steps to improve the Outreach Program's efficacy and USH complies with and implements those steps.

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Approval by the Court and Enforcement
Return 27 . Court approval and stay of the Litigation - The parties will jointly move the
Court in the Litigation for an order approving this Settlement Agreement and staying all proceedings in the Litigation pending successful implementation of the Plan and compliance with the terms hereof. This Settlement Agreement shall become effective upon the Court's
issuance of an order approving it. The parties agree that the Court retains continuing jurisdiction
over the Litigation to enforce the terms of this Settlement Agreement for five (5) years from the
date on which the Court issues an order approving its terms. Subject to the requirements of
paragraph 28 below, any party may move the Court for an order to enforce the Settlement
Agreement andlor to lift the stay on the Litigation. Upon the expiration of the term of this
Settlement Agreement, any party may move for dismissal with prejudice of all claims in the Litigation. If, at the end of the term, no party moves for dismissal, the Court shall enter an order to show cause why all claims should not be dismissed with prejudice.
Return 28. Enforcement - If any party concludes that another party has violated any
material provision of this Settlement Agreement, the party will notify the Monitor and other parties, including Defendants' Designated Representative, of the alleged violation in writing. Thereafter the parties will promptly attempt to resolve the alleged violation by conferring with each other in good faith to resolve the issue. If the parties are unable to resolve the alleged violation, they will submit the matter to the Monitor for mediation. In the absence of an emergency requiring immediate relief, none of the parties shall be entitled to file a motion to enforce any provision of this Settlement Agreement until the expiration of thirty (30) days from the date on which the party notifies the other parties in writing of the alleged violation and

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 34 of 72
efforts to resolve the violation, including Monitor-led mediation, have been exhausted. The parties shall equally share the costs of Monitor-led mediation.
29. Attorney fees and costs regarding enforcement - Subject to the limitations
contained in paragraph 28, any party that obtains an order of the Court enforcing a provision of
this Settlement Agreement shall be entitled to an award of its reasonable attorney fees and costs incurred.
General Provisions
Return 30. Term - The term of this Settlement Agreement shall be five (5) years from the
date on which the Court issues an order approving its terms.
31. Persons bound - This Settlement Agreement shall be binding on all Defendants
and their successors, together with their officers, agents and employees, unless otherwise prohibited by state or federal law.
32. Integration - This Settlement Agreement constitutes the entire agreement among
the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, shall be enforceable.
33. Scope - This Settlement Agreement is not intended to resolve any actual or
potential violation of the rights of pretrial detainees other than those specifically addressed in the Litigation.
34. Authority of signatories - The persons signing this Settlement Agreement
represent that they have the authority to do so.
35. Representations and warranties - Each party to this Settlement Agreement
represents, warrants, and agrees as to itself as follows:

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 35 of 72
a. It has fully and carefully reviewed this Settlement Agreement prior to its
execution by an authorized signatory.
b. It has consulted with its attorneys regarding the legal effect and meaning
of this Settlement Agreement and all terms and conditions hereof, and that it is fully aware of the contents of this Settlement Agreement and its legal effect.
c. It has had the opportunity to make whatever investigation or inquiry it
deems necessary or appropriate in connection with the subject matter of
this Settlement Agreement.
d. It has not heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity any claims that it might have against the
other.
e. It is executing this Settlement Agreement voluntarily and free from any
undue influence, coercion, duress, or fraud ofany kind.
36. \üaiver - No waiver of any of the provisions of this Settlement Agreement shall
be deemed or constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
37. Counterparts - This Settlement Agreement may be executed in identical
counterparts, each of which for all purposes is deemed an original, and all of which constitute collectively one agreement. The parties intend that faxed signatures and electronically-imaged signatures such as PDF files shall constitute original signatures and are binding on all parties. An executed counterpart signature page delivered by facsimile or by electronic mail shall have

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 36 of 72

the same binding effect as an original signature page. This Settlement Agreement shall not be

binding until all parties have signed and delivered a counterpart of this Settlement Agreement

whether by mail, facsimile, or electronic mail.
38. Modification - Settlement Agreement may be modified if the parties are in
agreement. Any modification to this Settlement Agreement shall be in writing.
39. Attorney Fees - Subject to the provisions in paragraph29, above, each party
shall bear his, her or their own attorney fees and costs of court incurred in the matter to the

effective date of this Settlement Agreement.
40. Notices - Any notice or other communication required or permitted under this
Settlement Agreement shall be in writing and shall be deemed to have been duly given when

(a) mailed by United States registered or certified mail, return receipt requested, (b) mailed

overnight express mail or other nationally recognized ovemight or same-day delivery service,

(c) sent as PDF attachment to electronic mail, or (d) delivered in person, to the parties at the

following addresses:

If the Disability Center, to:

DISABILITY LAW CENTER 205 North 400 V/est Salt Lake city, utah 84103

Attention Email:

Aaron M. Kinikini Erin B. Sullivan
akinikini@di sabilitylawcenter. or g esullivan@disabilitylawcenter. org

With a copy to:

Alan L. Sullivan Bret R. Evans SNELL & WILMER L.L.P. 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 37 of 72

Email

asullivan@swlaw.com brevans@swlaw.com

If the Department, to:

DEPARTMENT OF HUMAN SERVICES 195 N. 1950 West,4th Floor Salt Lake City, Utah 84116
Attention: Ann V/illiamson
Lana Stohl

Email

annwilliamson@utah. gov lstohl@utah.gov

If the Division, to:

DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH 195 North 1950 V/est, 2nd Floor Salt Lake City, Utah 84116
Attention: Douglas Thomas Email: dothomas@utah.gov

If the State Hospital, to:

UTAH STATE HOSPITAL
1300 Center Street Prove, Utah 84603

Attention: Email:

Dallas Earnshaw dearnshaw@utah.gov

With a copy to

OFFICE OF THE UTAH ATTORNEY GENERAL Parker Douglas (8924) LauraThompson (6328) David Wolf (6688) 160 East 300 South, Sixth Floor Salt Lake city, utah 84114-0856

Email

pdouglas@agutah.gov lathomps@utah.gov

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 38 of 72

dnwolf@agutah.gov A party may change the names or address where notice is to be given by providing notice to the other parties of such change in accordance with this paragraph 40.

DATED thisdv+'ì^ day ort¡r"rrur-

t

ALAN L. S

AN (3152)

Attorney for Plaintifß

2017 onbehalf of Plaintifß:

M. KrNrKrNr (1 Attorney for Disability Law
arL DATED this I day of

e- 2017 onbehalf of Defendants:

LAURA Utah Assistant Attorney General

ANN

ON

Executive Director, Utah Department of Human Services

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Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 39 of 72
EXHIBIT 1

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 40 of 72

1

Return

A Strategic Plan for Providing

Utah Adult Mental Health Competency Restoration Services

Revised June9,2017

INTRODUCTION
The State of Utah provides competency restoration services to individuals court-ordered to the Department of Human Services (DHS) as Not Competent to Proceed (NCP) under Utah Code Ann. $$. 77-15-1 et. seq. This plan outlines the process for how these services are delivered and contains information regarding the clinical programs provided. Utah's system of competency restoration services is based on best practices and successful endeavors in Utah and other states. Utah is addressing the increased demand for forensic services by building capacity and programs that are clinically appropriate and cost effective. A best practice model is in the developmental stages nationally. The traditional inpatient approach is no longer viewed as the sole recommended model of care, as evidenced by the fact that at least 10 states now have some form
of competency restoration treatment that is conducted in a jail or adapted setting. Utah's model of care includes outpatient treatment; treatment at an offsite forensic facility; treatment at
alternative therapeutic units; and inpatient competency restoration treatment programs. This comprehensive system of care includes vital components for processing court orders, assigning court-ordered evaluations to forensic examiners, screening individuals found NCP for appropriate program placement, treatment plan development, clinical and educational competency restoration services, evaluating clinical progress, tracking outcomes data, and discharge planning. Ongoing communication and collaboration with the courts, correctional facilities, and attorneys is vital to operational efficiency.
COMPETENCY RESTORATION OVERVIEW
Historically, competency restoration services have been provided at the Utah State Hospital's
(USH) forensic inpatient unit. Over the past 30 years, the demand for forensic services in Utah
and nationwide has experienced exponential growth, creating a strain on existing resources.
Some of the circumstances that have contributed to this growth in Utah include an increase in 1) the number of competency petitions filed; 2) the number of people found NCP by the courts and
referred to DHS; and 3) the acuity level of patients entering the system. Some states have converted non-forensic inpatient beds into forensic beds to respond to the increased demand. In many states, competency restoration services are being provided in non-inpatient settings allowing provision for a more efficient and appropriate level of care for those individuals not needing an inpatient level of competency restoration services. According to a report by the
þr V/ashington State Institute for Public Policy (Standardizing Protocols Treatment to Restore
Competency to Stand Trial: Interventions and Clinically Appropríate Time Periods, January 2013), there are five treatment modalities in the literature to address the competency restoration needs of those found NCP that include:
(l) Medications;
(2) Treatment for individuals with developmental disabilities; (3 ) Educational treatment programs ;

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2
(4) Specialized/individual treatment programs; and (5) Cognitive remediation programs.
The study also describes incompetence as predicated on two components that are typically addressed in treatmenl (1) a mental disorder or cognitive impairment and (2) a deficit in one or more competence-related abilities (i.e., understanding, appreciation, reasoning, assisting counsel) that occur as a result of the mental disorder or cognitive impairment. Improvement in the underlying mental disorder or cognitive impairment often results in the improvement in competence-related deficits. This forms the basis for psychotropic medications being one of the
primary treatment modalities in competency restoration treatment. In addition, the use of
educational approaches to increase the patient's factual understanding of the legal proceedings and to assist in participating with their defense counsel is beneficial.
The Washington State Institute for Public Policy report revealed limited success in competency restoration outcomes for individuals with intellectual andlor developmental disabilities. Most programs that have been studied demonstrate a33 percent average competency restoration rate for individuals with intellectual disabilities compared to a70 percent average for those with mental illness. The "slater Method" is a competency restoration tool that is typically used to treat individuals with intellectual disabilities. Length of time to restoration is longer for people with intellectual disabilities than the time to restoration for people without intellectual disabilities. It has been DHS' experience that most individuals who require specialized services for intellectual disabilities do better when treated under the supervision of state agencies designed to treat the unique needs of this population. Utah identifies these individuals when referred to DHS and makes every effort to direct their competency restoration treatment to the Division of Services for People with Disabilities (DSPD).
Most research demonstrates that individuals who participate in education groups have a significantly higher rate of restoration than those who do not. Many states across the country have implemented education programs that are of varying structure and delivery styles. Yet, the basic components are similar. Programs in the North Coast Behavioral Healthcare System in Ohio; the Alton Mental Health and Development Center in Illinois; the Atascadero Hospital in California; the RISE program in Denver, Colorado; as well as others, include treatment modalities such as: educational groups; experiential modules, such as mock trials; medication management; and cognitive remediation. These best practice principles are incorporated into Utah's restoration program development. Another well recognizedprogram used to inform Utah's model of care is the 'Comp-Kit' restoration program developed and implemented in2006 by Florida's mental health forensic system.
Even though the literature is limited and does not specifically identify one national best practice model for competency restoration, current programs have similar components and outcomes. The National Judicial College in Reno, Nevada assembled a panel of experts to develop a Mental Competency Best Practice Program. Though the main tenet of their recommended approach is similar as that described above, it is recommended that clinicians assess the individual's need for competency restoration and tailor the program individually rather than placing all individuals into the same curriculum and treatment modalities.

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-)
SUMMARY of ESSENTIAL RESTORATION SYSTEM ELEMENTS:
1. Court-ordered competency restoration process
2. Court referral monitoring system 3. Initial treatment screening to determine appropriate level of service delivery 4. Initial mental health evaluation 5. Identification of barriers to competency restoration 6. Development of an individualizedtreatment plan 7. Engagement of treatment modalities 8. Ongoing progress towards competency assessments 9. Documentation of interventions and response to interventions
10. Re-evaluation of competency I 1. Court Referral and reporting process
STRATEGIC ACTION PLAN
In order to ensure the State of Utah has adequate resources available to provide competency restoration services to individuals who have been court-ordered to DHS, it is imperative that a

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4

strategic action plan be developed, implemented, and have ongoing evaluation to assure timely provision of treatment services

A wider array of stakeholders must be engaged to more fully address the competency restoration needs of the citizens of Utah. Successful implementation of a strategic plan requires cooperation, communication and collaboration with avanety of stakeholders and participants involved in the competency restoration process, including, but not limited to: the district courts; referring county and municipal courts; prosecutors; the defense bar; the counties/Local Mental Health Authorities (LMHAs); local sheriffs' offrces and jails; law enforcement; and the Utah
Legislature.

Outcomes used to assist in this determination will include service access wait times, restoration rates, and length of time for restoration. Each service delivery option will be evaluated for
effi ci encies and appropri ate patient placements.

Each year, DHS, in collaboration with other state leaders, will review these outcomes and make proposals when increased resources are necessary. Options may include: additional offsite forensic facilities; alternative therapeutic units located on or off the USH campus; additional beds at USH; and addressing timely and appropriate competency restoration treatment for women in a clinically appropriate setting. Counties are encouraged to consider pre-evaluation processes to facilitate access to mental health services for individuals with serious mental illness, prior to, or upon entering the criminal justice system, and redirect individuals from entering the
forensic system when community services are more appropriate.

I

Purposes and Implementation of the Strategic Plan

The purposes of this strategic plan are as follows:
(a) Outline the specific steps to be taken to reduce the period of time during which
patients committed to DHS must wait to receive competency restoration treatment;
(b) Comply with the timeframes established in the Settlement Agreement approved
by the Court in the matter of Disability Law Center, et. al. v. State of Utah, Department of Human Servíces, et. al., Case No. 2:15-cv-00645-RJS-BCW.
(c) Implement a series of indicators that will measure the quality and efficiency of
competency restoration treatment for patients committed to DHS for competency restoration treatment; and
(d) Monitor and adjust resource investment and allocation to achieve the purposes of
the strategic plan.

The implementation of this strategic plan is to be contemporaneous with the establishment of the first offsite forensic facility proposed at the Salt Lake County Metro Jail, or September 30,2017, whichever occurs later.

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5
2. Service Delivery Options
Like many other states, Utah has recognizedthe need for additional cost-effective and clinically appropriate services to meet the demand for forensic services. In2014, USH, in collaboration with the Division of Substance Abuse and Mental Health (DSAMH) and DHS, recommended four levels of treatment services that are appropriate for competency restoration. This was presented in response to a20I4legislative audit. They are listed in order from the least to highest associated clinical need:
a) Outreach Program: Providing competency restoration treatment to patients
i. on release from the court in the community; ii. in jail within their home community; or iii. in prison.
b) Offsite Forensic Facility: Providing competency restoration treatment to
patients in a specialized, structured competency restoration program within a jail or other secure setting.
c) Alternative Therapeutic Unit: Providing competency restoration treatment in
any treatment unit established and operated by USH or under contract with DHS on or off of the USH campus for patients who do not require hospitalization level of care.
d) Inpatient Forensic Beds at USH: There is capacity but not infrastructure for
expansion of inpatient hospital beds at the USH campus.
Not all patients referred to DHS for competency restoration treatment require hospital inpatient level of care and its associated interventions. Screening processes are designed to identiff persons found NCP who can, within a reasonable timeframe, be restored to competence in the least restrictive, clinically appropriate environment and without requiring admission to an inpatient setting.
There are identifiable advantages to offering outpatient competency restoration services to individuals with lower psychiatric acuity levels including:
a) Decreased incarceration time b) Decreased transportation costs c) Improved supports to assist in treatment within their local communities d) Enhanced access to community mental health treatments e) Facilitated access into ongoing outpatient treatment support systems
Ð Ongoing access to defense counsel, family, and other supports
g) Reduced stigma associated with psychiatric hospitalization,
If a patient is placed in any program or level of service based on screening criteria and
later is determined to either be progressing faster or not progressing as expected to meet
the required time frames, the patient will be transferred to the more appropriate level of
care based on their clinical status.

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6

3. Offsite Forensic Facilities

Return

(a) DHS is currently planning an offsite forensic facility with day competency restoration
treatment in a county jail. This is a five days per week, eight hours per day program to
provide competency restoration treatment to patients who need a structured environment, similar to a mental health unit, but do not need the services of an inpatient psychiatric
hospital. Patients will be identified according to their acuity, and treatment will be
individuali zed accor dingly.

(b) Based on the success of this initial program and in the assessment of future program needs, DHS may request funding for additional offsite forensic facilities (including, but not limited to, a female only offsite forensic facility) to meet the needs of the population. DHS will determine funding and staffing pattems following a review of the current program outcomes and inflationary costs. If DHS determines that there is a greater number of patients needing inpatient care, DHS will request funding for additional beds at USH or another appropriate alternative therapeutic unit. This funding request would be similar to the funding at that time for one USH forensic unit (current cost is approximately $4.5 million dollars). Staffing levels would be similar to a current forensic unit based on this budget information.

(c) In 2017, the first offsite forensic program will be developed in partnership with Salt Lake County due to its Metro Jail's central geographic location and the large number of competency restoration referrals that arise from Salt Lake County. This program has an annual operating budget of approximately $3 million. Funding will be available by July I,2017. DHS will begin to develop and coordinate operational procedures, recruitment
and implementation of the program as soon as funding is assured through the legislative
process. It is intended that actual program implementation will begin no later than
September 30,2017.

In developing contracts for ofßite forensic facilities, provisions will be included that address training for the correctional personnel including but not limited to: Crisis Intervention Team (CIT) training and training from the USH Psychiatric Technician training modules. The jail will
provide 24-hottr emergency psychiatric and emergency medical care of patients when forensic
staff are not on site and forensic programming is not being conducted. Subject to the terms of
the contract(s) for each offsite forensic facility and available funding, the anticipated staffing and training of the offsite forensic facility will be commensurate with their counterparts at the USH. Patient programming and staffing levels at each offsite forensic facility will be guided by a Program Manual that will soon be developed, subject to modification by the USH Forensic Director, based upon the physical environs of the facility, availability of security staff, and other
contract provisions to be determined once each offsite forensic facility is identified.

4. Outreach Program Services

Since 2015, the Utah Legislature has recognizedthe value of DHS' Outreach Program whereby clinicians provide competency restoration treatment to patients by conducting weekly visits to

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7

those who are: (1) released to the community by the court; (2) housed in their home community jail; or (3) in prison. These services are provided to patients whose screening indicates that they are likely to show meaningful progress towards restoration of competency within 30 days, whose
symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within sixty (60) days.

Some Outreach Program patients will remain in their own county based on the following factors (a) closeness to family and other supports; (b) desire to stay in the area; (c) upcoming hearing
and efficiency in time by not transporting to another area; (d) closeness to legal representation; (e) sig¡ificant progress with current situation; or (f) gender as the offsite forensic facility
programming is male only at this time.

5.

Projecting Future Needs

(a) USH has projected that the annual number of pretrial detainees in Utah's county
jails for which custody or commitment orders will have been issued will continue to increase. If the number of court-ordered pretrial detainees does not increase, USH will continue to monitor trends each year to revise projections.

(b) USH believes that, depending on system changes including the addition of new levels of care and program efficiencies decreasing length of stay in all programs and facilities, it may need additional competency restoration Outreach Program professionals who provide screening, assessment, and treatment services. This will be closely monitored and evaluated based on length of time to access these services and the length of stay in these services in the context of the entire system.

(c) USH believes that, depending on system changes including the addition of new levels of care and program efficiencies decreasing length of stay in all programs and facilities, it may need additional forensic evaluators who are employed to conduct evaluations for the Outreach Program if projections are accurate. This will be closely monitored and evaluated based on length of time to access these services and the length of stay in the Outreach Program in the context of the entire
system.

(d) USH will annually evaluate the state's ability to meet the respective service level
need and projected number of patients requiring competency restoration treatment, and request additional funding to adequately provide services to all those court-ordered to DHS for purposes of competency restoration treatment.
The amount to be requested will be determined by the level of service required to
meet the acuity needs of those committed to DHS, taking into consideration the outcomes of each program in meeting the timeframes for competency restoration in the Settlement Agreemen! and relevant statutes, inflationary costs, and other
factors.

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8
6. Expansion of USH Forensic Unit
In addition to the establishment of the offsite forensic facilities referenced in paragraph 3 of this strategic plan, the State projects that, depending on system changes including the addition ofnew levels of care and program efficiencies decreasing length of stay in all programs and facilities, there may be further need for increased inpatient treatment capacity. The current capacity of the USH forensic unit is 100 patients for all forensic
commitments required by law, including NCP, guilty and mentally ill, and not guilty by
reason of insanity. The current USH forensic unit was designed to expand by being able to add additional 25-bed units to the existing structure to a capacity of 200 beds. Based on the number of future court referrals and timeframes for competency restoration services, the State may need to request additional funding for the construction or procurement of another facility on or off the USH campus. This will be closely monitored and evaluated based on length of time to access inpatient services and the length of stay in the context of the entire system.
7. Post-Treatment Follow-up
DSAMH/USH will continue to evaluate the most efficient and cost-effective programs and interventions to assist pretrial detainees in maintaining their competency. USH staff will work with counties and provide case management to help monitor and support the patient in their restoration status and facilitate continuity of care.
8. Efficiency Improvements
Outcomes reflect operational efficiencies and clinical effectiveness. Utah's adult mental health competency restoration outcomes will be monitored monthly and evaluated on a quarterly basis at which time changes will be considered to strenglhen the results. Adjustments in screening, assessment, treatment, monitoring, program placements, and delivery of services will be made where deficiencies are identified. Outcome indicators are as follows:
1. Length of time from court-ordered referral to treatment program admission; 2. Length of stay in any of USH's competency restoration treatment programs; 3. Percent of court-ordered referrals screened in a timely manner (i.e., within
seventy-two (72) hours, excluding weekends and holidays, of DHS's receipt of
the district court order for competency restoration treatment);
4. Percent of patients screened into the Outreach Program who are restored or not
restored within 60 days; and
5. Percent of patients treated within USH's forensic system who are found
competent to proceed.
Targets are identified and adjusted based on best practice standards, baseline measurements and agreements made during system monitoring. Monitoring systems and outcome measures are utilized to ensure individuals within each level of service have
been properly placed into programming and changes in status result in reassessment of

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9
the patient. Monitoring also ensures that patients in each level of care are not "lost in the system." LOS and competency status data will receive ongoing utilization reviews to
flag those patients who may not be responding appropriately as expected in each level of
care. Nationally, outpatient and jail-based programs have shorter LOS than inpatient programs.
Ongoing utilization review means that treating clinicians are reassessing the appropriateness of the current treatment program for the patient with each treatment encounter, and making a determination about program placement or movement at the earliest and most appropriate time.
If at any time it is determined a patient is not progressing in treatment, USH will reassess for the appropriate level of service.
9. Forensic Evaluation System (FES)
When a district court judge orders a competency evaluation, the order should be entered into DHS' Forensic Evaluation System (FES), which is automated to coordinate with state examiners contracted to complete ordered evaluations. Some counties or courts may elect to assign evaluators independent of the FES. Regardless, all orders and evaluations are monitored in the FES. The examiners provide an initial report to the court and parties within 30 days of receipt of the court's order. The examiner may inform the court in writing that additional time is needed to complete the report. The examiner shall have up to an additional 30 days to provide the report if requested in writing. The examiner shall provide the report within 60 days from the receipt of the
court's order unless, for good cause shown, the court authorizes an additional period of time to complete the report. If after reviewing the forensic evaluation the judge
determines an individual is NCP, the court should send the order for competency restoration to DHS via email into the FES. USH and DSAMH monitor the FES to ensure that all components of the service delivery system are addressed and correspondence with the court and the parties is done in a timely manner under the current statutory scheme. Discovery and other documents and outcome data are also tracked through the FES.
10. Utah Competency Restoration Service Delivery System (See Flow Chart)
The district court should send orders for competency restoration to the USH Legal Service Office, which manages the FES system. Information regarding referrals and
evaluations is managed in the FES. All patients ordered to DHS for competency
restoration are screened to determine the appropriate level of care needed.
A. Screening Process
V/ithin seventy-two (72) hours, excluding weekends and holidays, of receiving the court order, USH forensic staff shall determine which level of service is appropriate for the patient using a screening tool approved by the USH Forensic Director. The screening process utilizes best practice evaluation tools to determine whether:

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10

Return

l. A patient is likely to be restored to competency through treatment available by the
Outreach Program;
2. A patient is likely to be restored to competency through treatment available at an
offsite forensic facility;
3. A patient needs inpatient hospital services at the USH forensic unit; 4. A patient is likely not restorable; 5. A patient requires referral to DSPD services; or 6. A patient has other dispositional needs, such as a nursing home placement.

The Initial Competency Restoration Screening tool to be used in the screening process is
attached as Appendix A. The screening process may undergo further development and
refinement, to include specific scoring guidelines for patient level of service.

Note: Female patients who have been found not competent to proceed will be referred to either the Outreach Program or USH unless and until another program is identified to meet the needs of females who would otherwise be screened to an offsite forensic facility, including, but not limited to, the establishment of a female only offsite forensic facility program.
B. Screening Criteria

The following represents general criteria used by USH Forensic Unit professionals to determine level of service needed:

a. Patient's attitude towards and consent to take medication; b. Patient's response to medication treatment; c. Level of risk (i.e., suicide, self-harm, harm to others, etc.); d. Physical health/medical concerns; e. Current progress towards competence; and f. Patient's willingness to engage in treatment.

If an individual is placed in the Outreach Program, competency restoration treatment
begins within 14 days of receiving the court order requiring such treatment, though
Outreach Program clinicians strive to begin treatment services within 7 days or less of receiving the court order. Part of that treatment is the engagement ofjail personnel to provide medication management services if such services are not already in place for patients in their home community jails. If the patient is screened for treatment in an
offsite forensic facility or referred to USH's forensic unit, the patient is transferred
into the first open bed within 14 days of receiving the court order requiring such
treatment.

C. TreatmentDisposition

If a patient is determined to be a candidate for the Outreach Program, an offsite forensic facility, an alternative therapeutic unit, or USH's forensic unit, an
individualized treatment plan (ITP) is established.

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11
If, at any time, a USH Forensic Unit professional determines that a patient is likely not restorable, the USH administrator will request a re-evaluation from a forensic evaluator. The forensic evaluator conducts the evaluation and a report is sent to the court for further disposition.
If, at any time, a USH Forensic Unit professional determines that a patient is not likely to restore to competency through the Outreach Program, at an ofßite forensic facility, or at an alternative therapeutic unit, then coordination is made with the USH staff for admission to inpatient level of care at USH. The USH Forensic Outreach Competency Progress Assessment tool is attached as Appendix B.
If it is determined that apatient may meet the criteria for an intellectual disability, a referral is made within seventy-two (72) hours, excluding weekends and holidays, to DSPD for competency restoration services. If DSPD does not accept the referral, the
patient is screened for USH treatment services and all timeframes apply.
If a patient is determined at any time throughout the screening or treatment process to meet the criteria to be found competent to proceed, the USH administrator will request a re-evaluation from a forensic evaluator. The forensic evaluator conducts the evaluation and a report is sent to the court for further disposition.
D. Treatment Servrces
The program administrators at each level of service coordinate with the treating staff and other agencies involved in the custody or care of the patient to develop an ITP and identiff necessary treatment modalities. Tlpes of competency restoration interventions may include, but are not limited to, individual instruction; individual therapy; goup therapy; educational or psychoeducational materials; assignments; recreational therapy; occupational therapy; and medication management. Treatment staff may also coordinate services with jail treatment providers or LMHAs for medication management and other appropriate medical services. The competency curriculum is consistent with criteria in Utah's competency statutes. The following
program outline describes the restoration treatment delivery system at each level of
service:
1. Referral Screening Process a. Each individual is screened by a qualified USH Forensic Unit
professional within seventy-two (72) hours, excluding weekends and holidays, of receiving a court order for competency
restoration.
b. A qualified USH Forensic Unit professional utilizes scoring
guidelines from the initial screening tool (Appendix A) to identify the appropriate level of service to which the individual should be
referred.

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t2

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c. A qualified USH Forensic Unit professional will continue to visit
with all referrals weekly while the individual is being evaluated for
the appropriate program.
2. Outreach Program a. The Outreach Program is designed for patients who are likely to
show meaningful progress towards restoration of competency within 30 days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within 60 days.
b. If the Outreach Program clinician determines that the patient is
appropriate for treatment through the Outreach Program and the
county jail is deemed a sufficient location in which to provide
competency restoration services, the Outreach Program clinician will commence treatment in the home community jail after considering the criteria outlined in Section 4 above, "Outreach
Program Services."
c. Outreach Program staff will atrange weekly treatment encounters
with patients who are on a release to the community by the court.
d. If the patient is female and is appropriate for the Outreach
Program, weekly visits will occur in the home community jail.
e. An ITP is established for each Outreach Program patient based on
individualized needs and identified barriers to competence.
f. Coordination among Outreach Program staff occurs weekly to
evaluate treatment progress, modiff the patient's ITP as indicated, and coordinate medication management with local county jails as
required in Utah Code Ann. Sect. 17-43-301(5)(a)(i) or pursuant to a contract anticipated to be entered with Salt Lake County for an offsite forensi c facility.
g. An Outreach Program clinician visits with the patient for at least
60 minutes weekly to provide competency restoration treatment
and psychoeducational material from the Outreach Competency
Training Program manual addressing barriers to competence
identified in the ITP. The manual is attached as Appendix C.
h. Patients are reassessed minimally every two (2) weeks to
determine progress towards competence.
i. Patients will be disqualified from competency restoration treatment
in the Outreach Program if he or she exhibits suicidal ideations with intent to harm, engages in repeated acts of selÊharm,
persistently refu ses medications necessary for competency restoration with no rational basis, exhibits a significant decline in clinical stability, or is diagnosed with a moderate to severe
intellectual or developmental disability.
j. If an Outreach Program clinician determines that a patient should
be disqualified from the Outreach Program, the patient will be transferred to USH's forensic unit, an Offsite Forensic Facility, or

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 52 of 72

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13
an Alternative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays.
k. Patients who are not ready to be referred for reevaluation for
restoration status within sixty (60) days will be re-assessed by USH staff for the appropriate level of competency restoration
services.
l. If a qualified USH Forensic Unit professional determines that the
Outreach Program is no longer clinically appropriate or effective for a patient, the patient must be transferred to USH's forensic unit, an Offsite Forensic Facility, or an Altemative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays.
3. Offsite Forensic Facilify a. An ofßite forensic facility is a competency restoration program
administered by USH forensic personnel, or by similarly qualified professionals employed by DHS's contractor, at a location other than the USH Campus. Expected capacity at an ofßite forensic facility is twenty-two (22) to forty (40) beds.
b. A competency restoration program can be established in any
secure offsite facility that has the availability of security staff. This is ty,pically a jail or other secure setting. Any site can be considered if it meets the need for a secure, structured environment. If the space is located in or leased from a county jail, the space and the residents must be segregated from the jail's general inmate population.
c. A competency restoration program at an offsite forensic facility is
designed for patients that are in need of more comprehensive treatment than those referred to the Outreach Program and are likely to be restored within two to four months. These patients are not considered a risk of immediate harm to self or others, do not have high acuity medical needs, and are demonstrating that they are willing to engage in treatment, including accepting medication
management.
d. Patients will be identified by psychiatric acuity for purposes of
bunking assignments, safety assessment, and in creating an ITP.
e. Patients receive day treatment services Monday through Friday.
Operational hours may vary but be minimally set from 8:00 a.m. to 5:00 p.m. DHS anticipates some programming may occur in the
evenings and on weekends.
f. A treatment team assesses and develops an ITP for each patient
based on individualized needs and identified barriers to
competence.
g. It is anticipated that the treatment team will consist of a
psychiatri st, p sycholo gi st, so cial workers, nursing staff, psychi atric technicians, recreation therapist, case worker, and offtce specialist,

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 53 of 72
t4
whose training and credentials will be commensurate with their
counterparts at the USH.
h. Treatment services may include any of the following: medication
management, individual therapy, group therapy, psychoeducation, recreation therapy, occupational therapy and other modalities identified as necessary for the patient's ITP. A schedule of USH programming is attached as Appendix D as an exemplar. Appendix D.
i. Patient programming and staffing levels at each offsite forensic
facility will be guided by a Program Manual that will soon be
developed, subject to modification by the USH Forensic Director,
based upon the physical environs of the facility, availability of
security staff, and other contract provisions to be determined once each offsite forensic facility is identified.
j. It is anticipated that a contractual arrangement with a county jail or
other appropriate offsite facility will provide the program with
security personnel, medical services, food, clothing, medications, and medical and mental health crisis services after hours.
4. USH Inpatient Restoration Services a. Patients who are not found to be appropriate for the Outreach
Program or an offsite forensic facility treatment program are referred to USH for inpatient services within seventy-two (72) hours, excluding weekends and holidays.
E. Evaluations
All court-ordered NCP patients will have an initial assessment once they are screened and admitted to one of USH's treatment programs. A report will then be sent to the
court pursuant to Utah Code Ann. Sect. 77-15-6,. Any time after the patient is found NCP but is showing significant progress towards restoration, a referral can be made for competency re-evaluation by a forensic evaluator. The referral should be made within seventy-two (72) hours, excluding weekends and holidays, of the determination by USH Forensic Unit professionals that the individual has made significant progress towards restoration. Once a referral for follow-up evaluation is made to a forensic evaluator, the evaluation will be completed within fourteen (14) working days. The evaluation report is sent to the court promptly upon completion. The USH Clinical Director or designee certifies all reports recoÍrmending the individual be found competent to proceed according to Utah's competency statutes.
F. Collaboration
USH Forensic Unit professionals work in consultation with jail staff, court personnel, families, LMHAs, or others involved in the care, custody or treatment to ensure continuity of care and communication. The USH Legal Services Office and Forensic Director ensure that the courts are kept apprised of the progress and status of all individuals ordered to DHS consistent with Utah's
statutory framework.

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 54 of 72

l.)
Defendant is Found Not €ompetent
Court ordered
tc DHF
Outreach Screening Completed within 72 hourc
Service Lwel Determined

Considered to be Non-
Restorable
Referral for Additional Competence/ Non- Restorabilîty
Evaluation
Refer to Court

Outreach Program
When criteria for competence îs me( referred for Fvaluation
Refer to Court

Jail Based Progrart
When criteria for competence ¡s met, referred for
Evaluation
Refer to Court

LJtah State Hospital (Outreãch v¡slts unt¡¡

When crheri¡ for competence i9 met, referred for
Fvaluation

When criteria for competence is rnet, referred for Evaluation
Refer to Court

Coordinate with outside agencies
for alternative plâcernents-
Coordinafe with the Caurts

If found Not Competent Refer back to program
*--+ At anytime a defendant is not progressing within a level of service a referral is made to the appropriate program that meets the needs of the individual
2/77

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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Disability Law Center, et al. v. State of Utah, et al. Case No. 2:15-CV-00645-RJS-BCW

You will be affected by the settlement of a class action lawsuit called Disability Law Center, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW. This notice summarizes the claim in the lawsuit, what the settlement entails, and your rights under the settlement.

The Court has scheduled a hearing to consider the settlement on [DATE] at [TIME] before the Honorable Judge Robert J. Shelby at Courtroom 7.300, United States District Court for the District of Utah, 351 South West Temple, Salt Lake City, Utah 84101. This hearing is referred to as the Final Settlement Approval Hearing.

SUMMARY OF THE LAWSUIT
The issue in this lawsuit is whether the Utah State Hospital (USH) has failed to timely provide court-ordered competency restoration treatment for individuals who have been found incompetent to stand trial.
A Class Member is any individual who is now, or will be in the future, (i) charged with a crime in Utah, (ii) determined by the court in which they are charged to be mentally incompetent to stand trial, and (iii) ordered to the custody of the executive director of the Utah Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency, but who remain housed in a Utah county jail.

The lawyers representing class members (“Class Counsel”) are Aaron M. Kinikini and Erin B. Sullivan of the Disability Law Center, 205 North, 400 West, Salt Lake City, UT 84103, and Alan L. Sullivan and Bret R. Evans of Snell & Wilmer, LLP, 15 W South Temple #1200, Salt Lake City, UT 84101.

DESCRIPTION OF THE PROPOSED SETTLEMENT AGREEMENT

The Plaintiffs and the State of Utah have reached a settlement that would release the State from any further liability related to this claim. The Settlement Agreement requires USH to do the following, subject to Court approval:

 Within 72 hours of learning that a criminal defendant is found incompetent to stand trial and ordered to the custody of the Utah Department of Human Services, a USH Forensic Unit professional must screen each class member to determine the appropriate level of competency restoration treatment;
 Within 6 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 60 days;
 Within 12 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 30 days; and
 Within 18 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 14 days.

1 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 57 of 72
The settlement also creates a system to monitor USH’s compliance with the Settlement Agreement and requires the State of Utah to pay fees to the court-approved monitor.
You have the right to learn more about the settlement. A copy of the preliminarily-approved Settlement Agreement is enclosed with this Notice. If you are unable to read or understand the Settlement Agreement, contact Class Counsel referred to in Question 6 below.
OBJECTIONS OR COMMENTS TO THE PROPOSED SETTLEMENT
The United States District Court for the District of Utah has preliminarily approved the Settlement Agreement but will hold a Final Settlement Approval Hearing to determine whether it is fair, reasonable, and adequate on [DATE] at [TIME] in Courtroom 7.300 of the federal courthouse located at 351 South West Temple, Salt Lake City, Utah 84101.
Class Members have a right to object to the terms of the settlement. If you have objections, comments, or statements about the proposed Settlement Agreement, you must make them in writing using the attached “Response to Proposed Class Action Settlement” form or your own paper. A selfaddressed stamped envelope is included for your convenience. Written objections, comments, and statements should be sent to the following address: Disability Law Center, 205 N 400 W, Salt Lake City, UT 84013. Objections must be submitted or postmarked no later than [DATE].
Objections must include all of the following information: (1) The objector’s contact information (name, address, offender number); (2) An explanation of the basis for the objector’s objection to the Settlement Agreement; and (3) Whether the objector intends to appear at the Final Settlement Approval Hearing on [DATE].
All information submitted to Class Counsel will be provided to counsel for the State of Utah and the District Court in advance of the Final Settlement Approval Hearing. It is not necessary for Class Members to appear at the Final Settlement Approval Hearing. Any Class Member who has submitted a timely objection as provided above and who wishes to appear at the Final Settlement Approval Hearing must give notice by calling the Disability Law Center, sending notice in writing, or using the attached “Response to Proposed Class Action Settlement” form. Objectors may withdraw their objections at any time. Any objections, comments, or statements that do not comply with the above procedures and timeline will not be heard or considered by the Court.
HOW TO GET MORE INFORMATION
This is a summary of the Settlement Agreement. If you have any questions about the matters contained in this notice or any questions regarding the settlement, you may write or call Class Counsel below:
DISABILITY LAW CENTER 205 North 400 West Salt Lake City, UT 84103 (801) 363-1347 Toll Free: (800) 662-9080
2 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 58 of 72
RESPONSE TO PROPOSED CLASS ACTION SETTLEMENT
DLC, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW
Full Name: ___________________________________________________________
Address: ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
Criminal Case No.: ___________________________________________________________ Criminal Attorney: ___________________________________________________________ Objections/Comments/Statements: __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________
(If you need additional space, you may continue writing on the other side of the page or attach additional pages.)
Do you want to provide oral testimony to the Court regarding the settlement? Yes __ No __
3 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 59 of 72

Date: _____________________

Signature: ______________________________________

4 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 60 of 72
EXHIBIT 3

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 61 of 72

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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Disability Law Center, et al. v. State of Utah, et al. Case No. 2:15-CV-00645-RJS-BCW

One or more of your clients will be affected by the settlement of a class action lawsuit called Disability Law Center, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW. This notice summarizes the claim in the lawsuit, what the settlement entails, and your client’s rights under the settlement. Please share this notice and the proposed Settlement Agreement with your client’s family members and any known legal guardian of your client, and encourage them to submit any objections, comments, and or statements that they may have regarding the proposed Settlement Agreement.

The Court has scheduled a hearing to consider the settlement on [DATE] at [TIME] before the Honorable Judge Robert J. Shelby at Courtroom 7.300, United States District Court for the District of Utah, 351 South West Temple, Salt Lake City, Utah 84101. This hearing is referred to as the Final Settlement Approval Hearing.

SUMMARY OF THE LAWSUIT
The issue in this lawsuit is whether the Utah State Hospital (USH) has failed to timely provide court-ordered competency restoration treatment for individuals who have been found incompetent to stand trial.
A Class Member is any individual who is now, or will be in the future, (i) charged with a crime in Utah, (ii) determined by the court in which they are charged to be mentally incompetent to stand trial, and (iii) ordered to the custody of the executive director of the Utah Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency, but who remain housed in a Utah county jail.

The lawyers representing class members (“Class Counsel”) are Aaron M. Kinikini and Erin B. Sullivan of the Disability Law Center, 205 North, 400 West, Salt Lake City, UT 84103, and Alan L. Sullivan and Bret R. Evans of Snell & Wilmer, LLP, 15 W South Temple #1200, Salt Lake City, UT 84101.

DESCRIPTION OF THE PROPOSED SETTLEMENT AGREEMENT

The Plaintiffs and the State of Utah have reached a settlement that would release the State from any further liability related to this claim. The Settlement Agreement requires USH to do the following, subject to Court approval:

 Within 72 hours of learning that a criminal defendant is found incompetent to stand trial and ordered to the custody of the Utah Department of Human Services, a USH Forensic Unit professional must screen each class member to determine the appropriate level of competency restoration treatment;
 Within 6 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 60 days;
 Within 12 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 30 days; and

1 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 62 of 72
 Within 18 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 14 days.
The settlement also creates a system to monitor USH’s compliance with the Settlement Agreement and requires the State of Utah to pay fees to the court-approved monitor.
You have the right to learn more about the settlement. A copy of the preliminarily-approved Settlement Agreement is enclosed with this Notice. If you are unable to read or understand the Settlement Agreement, contact Class Counsel referred to in Question 6 below.
OBJECTIONS OR COMMENTS TO THE PROPOSED SETTLEMENT
The United States District Court for the District of Utah has preliminarily approved the Settlement Agreement but will hold a Final Settlement Approval Hearing to determine whether it is fair, reasonable, and adequate on [DATE] at [TIME] in Courtroom 7.300 of the federal courthouse located at 351 South West Temple, Salt Lake City, Utah 84101.
If you have objections, comments, or statements about the proposed Settlement Agreement, you must make them in writing using the attached “Response to Proposed Class Action Settlement” form or your own paper. A self-addressed stamped envelope is included for your convenience. Written objections, comments, and statements should be sent to the following address: Disability Law Center, 205 N 400 W, Salt Lake City, UT 84013. Objections must be submitted or postmarked no later than [DATE].
Objections must include all of the following information: (1) The objector’s contact information (full name and address); (2) An explanation of the basis for the objector’s objection to the Settlement Agreement; and (3) Whether the objector intends to appear at the Final Settlement Approval Hearing on [DATE].
All information submitted to Class Counsel will be provided to counsel for the State of Utah and the District Court in advance of the Final Settlement Approval Hearing. It is not necessary for Class Members to appear at the Final Settlement Approval Hearing. Any Class Member who has submitted a timely objection as provided above and who wishes to appear at the Final Settlement Approval Hearing must give notice by calling the Disability Law Center, sending notice in writing, or using the attached “Response to Proposed Class Action Settlement” form. Objectors may withdraw their objections at any time. Any objections, comments, or statements that do not comply with the above procedures and timeline will not be heard or considered by the Court.
HOW TO GET MORE INFORMATION
This is a summary of the Settlement Agreement. If you have any questions about the matters contained in this notice or any questions regarding the settlement, you may write or call Class Counsel below:
DISABILITY LAW CENTER 205 North 400 West Salt Lake City, UT 84103 (801) 363-1347
2 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 63 of 72

Toll Free: (800) 662-9080
RESPONSE TO PROPOSED CLASS ACTION SETTLEMENT
DLC, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW

Your Name:

_________________________________________________________

Class Member’s Name: _________________________________________________________

Criminal Case No.:

_________________________________________________________

Relationship to Class Member: ________________________________________________________

Are you the Class Member’s Legal Guardian? Yes ___ No ___

Your Mailing Address:

_________________________________________________________

Your E-mail Address:

_________________________________________________________

Your Telephone No.:

_________________________________________________________

Objections/Comments/Statements:

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

(If you need additional space, you may continue writing on the other side of the page or attach additional pages.)

Do you want to provide oral testimony to the Court regarding the settlement? Yes __ No __

Date: _____________________

Signature: ______________________________________

3 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 64 of 72
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 

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 65 of 72

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CURRICULUM VITAE
Academic Year 2015-2016

NAME: Patrick K. Fox, M.D.
EDUCATION: B.S., Rutgers University, New Brunswick, NJ 1990 M.D., UMDNJ-New Jersey School of Medicine, Newark, NJ 1994

CAREER:
September 2014-Present: Colorado Department of Human Services
Chief Medical Officer
April 2013-Present: Colorado Department of Human Services
Deputy Director of Clinical Services, Office of Behavioral Health
October 2013-July 2014 and December 2014-June 2015: Colorado Department of Human Services
Acting Director, Office of Behavioral Health
April 1, 2012-March 31, 2013: Denver Health and Hospital Authority
Attending Psychiatrist, Van Cise Simonet Detention Facility
July 1, 2007-March 31, 2012: Yale University School of Medicine, Department of Psychiatry
Deputy Training Director, Forensic Psychiatry Fellowship
Director, Whiting Forensic Division, Connecticut Valley Hospital
July 1, 1999-June 30, 2007: Yale University School of Medicine, Department of Psychiatry
Consulting Forensic Psychiatrist, DMHAS, state of Connecticut
July 1, 1997-March 31, 2012: VA Connecticut Healthcare System
Employed as an Attending Psychiatrist on Duty, providing psychiatric care within the hospital, approximately fifteen hours per week.

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 66 of 72
June 1994-June 1999: Yale University School of Medicine, Department of Psychiatry Post-Doctoral
-PGY V, Residency in Forensic Psychiatry, Law and Psychiatry Division, CMHC -PGYIV, Chief Resident of PTSD/Anxiety Disorders Unit, West Haven VAMC
Psychiatrist for the New Haven Office of Court Evaluations -PGYIII, West Haven Veterans Affairs Mental Hygiene Clinic -PGY II, Inpatient Adult and Child Psychiatry Rotations -PGY I, Transitional Medicine/Psychiatry/Neurology Program
ACADEMIC APPOINTMENTS:
Yale University School of Medicine, Department of Psychiatry July 1, 1999-June 2008: Assistant Clinical Professor July 1, 2008-April 2012: Assistant Professor
University of Colorado School of Medicine, Department of Psychiatry April 1, 2012-Present: Senior Instructor
University of Denver, Graduate School of Professional Psychology December 2012-Present: Adjunct Faculty
BOARD CERTIFICATION:
American Board of Psychiatry and Neurology, General Psychiatry: 1999, 2009 American Board of Psychiatry and Neurology, Forensic Psychiatry: 2001, 2011
PROFESSIONAL HONORS & RECOGNITION: Recipient of the Laughlin Fellowship Award in Psychiatry-1998 Rutgers University Cooperative Academic Merit Scholarship-1990
DEPARTMENTAL, UNIVERSITY ACTIVITIES:
1999-2012: Weekly Supervisor for fellow/s, Fellowship in Forensic Psychiatry
1999-2012: Instructor, Law & Psychiatry Seminar, Fellowship in Forensic Psychiatry 1999-2012: Instructor, Seminar in Law and Psychiatry, Fellowship in Forensic
Psychiatry
2000-2012: Coordinator/Instructor, Public Sector Lecture Series, Yale Forensic Psychiatry Fellowship

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 67 of 72

2000-2012: Member, Yale Department of Psychiatry Resident Selection Committee
2003-2007: Case write-up and interview tutor, Yale School of Medicine, Clerkship in Psychiatry
2004-2012: Instructor, PGY II Seminar, Legal Regulation of Psychiatric Practice and Forensic Psychiatry
2006-2012: Coordinator/Instructor, Ethics in Research Module, Scholarship Seminar, Fellowship in Forensic Psychiatry
2007-2012: Deputy Training Director, Fellowship in Forensic Psychiatry
2007-2012: Member, Yale University Graduate Medical Education, Program Director Committee
2008-2010: Coordinator, Ethics in Research Seminar for Yale Fellows in Public Sector Psychiatry and Research
2007-2012: Instructor, Landmark Cases, Fellowship in Forensic Psychiatry
2007-2012: Clinical Instructor, Yale Medical School Psychiatry ER Clerkship, West Haven VA

PROFESSIONAL SERVICE:

Professional Organizations

Member, American Psychiatric Association, 2008-present Member, American Academy of Psychiatry and the Law, 2008-present Member, Connecticut Psychiatric Society, 2008-2012
-Council Member, 2010-2012 Member, Colorado Psychiatric Society, 2012-present Forensic Psychiatry Examination Committee, American Board of Psychiatry and Neurology, 2009-present

State of Colorado Committees

May 2013-July 2015:

National Governors’ Association, Prescription Drug Abuse Reduction Policy Academy

July 2013-October 2013: Co-chair, Civil Commitment Statute Review Task Force

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 68 of 72

August 2013-June 2015:

National Governors’ Association, Super-utilizer Policy Academy

January 2014-present:

Governor’s Marijuana Policy Workgroup

January 2015-present:

Commissioner, Suicide Prevention Commission-Colorado

May 2016-present:

Appointee, Mental Health/Point of Contact through Release from Jail Task Force, Commission on Criminal and Juvenile Justice

State of Connecticut Committees

1998-1999: Participant, Committee to Study Sexually Violent Persons, State of Connecticut Office of Policy and Management

1999-2000: Member, DMHAS Restraint/Seclusion Task Force, Best Practices Report and Recommendations: Working Toward the Elimination of Restraint & Seclusion.

1999-2000: DMHAS representative, Committee to Study Credentialing of Sexual Offender Treatment Providers, State of Connecticut Office of Policy and Management.

2000:

Member, Committee for Psychosexual Evaluation and Treatment, DMHAS-state of Connecticut.

2000-2001: DMHAS representative, Sex Offender Policy and Advisory Committee, state of Connecticut, Office of Policy and Management.

2001:

DMHAS representative, Special Populations Project: Model Development.

2002:

DMHAS-Division of Forensic Services representative, Preferred Practices Committee: Providing Services to those with Problem Sexual Behaviors.

2002:

DMHAS representative, Preferred Practices in Behavioral Health Workgroup.

2002:

DMHAS, Commissioner’s Policy Work Group: Limits to Confidentiality.

2002-2003: DMHAS representative, Sex Offender Policy and Advisory Committee, state of Connecticut, Office of Policy and Management.

2006-2012: Governor’s Appointee: Sex Offender Risk Assessment Board, state of Connecticut Judiciary Committee.

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 69 of 72
2007-2012: Member, DMHAS, Forensic Steering Committee. 2007-2012: DMHAS Commissioner’s Appointee, Lawyers Concerned for Lawyers-
Connecticut, Inc.

PRESENTATIONS:
October 1999: Jail Diversion, Balancing of the Court’s Interests, American Academy of Psychiatry and the Law, Annual Convention, Madelon Baranoski, Ph.D., Patrick K. Fox, M.D., Josephine Buchanan, Baltimore, MD

October 2000: Outpatient Civil Commitment, American Academy of Psychiatry and the Law, Annual Convention, Patrick K. Fox, M.D., Paul Amble, M.D., Vancouver, BC.

August 2001: DMHAS-Connecticut, Forensic Grand Rounds, Substance Abuse Relapse Prevention for Insanity Acquittees, Recent Research Findings, presented at Connecticut Valley Hospital.

January 2002: University of Connecticut, School of Medicine/Correctional Mental Health Conference, Sex Offenders: Risk Assessment, Management & the Possibilities for Treatment, presented at UCHC, December 2001 and at Cheshire Correctional Center.

June 2002:

Veterans Administration-Connecticut Healthcare System, Forensic Committee Conference, Violence Risk Assessment, and Violence Risk Management, presented at the West Haven Veterans Administration Hospital.

April 2004: Competency to be Executed, Yale Medical Student Psychiatric Association.

October 2004: Melissa’s Project: Probate Court-Monitored Treatment, American Academy of Psychiatry and the Law, Annual Convention, Patrick K. Fox, M.D., Paul Amble, M.D., Michael Makniak, J.D., Scottsdale, AZ.

March 2007: DMHAS Training Seminar-Sex Offender Training, A Clinical Perspective on Problem Psychosexual Behaviors, presented at Connecticut Mental Health Center.

Dec. 2008: Problem Sexual Behavior, Connecticut Valley Hospital Grand Rounds

January 2008: Physiological Response to Situations of Uncontrollable Stress, Connecticut Valley Hospital Trauma Initiative Series.

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 70 of 72

October 2009: Civil Rights and the Insanity Defense, Yale Medical Student Psychiatric Association.

April 2010: Festschrift for Howard Zonana: Attorney-Physician Collaboration, Yale Department of Psychiatry Grand Rounds

July 2010: Psychopathy and Sociopathy, Yale Department of Psychiatry Grand Rounds

October 2010: You Got Personality: Diagnostic Challenges in Forensics, American Academy of Psychiatry and the Law, Annual Convention, Howard Zonana, MD, Madelon Baranoski, PhD., Patrick K. Fox, M.D., Josephine Buchanan, Tucson, AZ.

Feb. 2011: Invited lecturer, Police Intervention with Persons with Mental Illness, Henry C. Lee Institute of Forensic Science, University of New Haven.

March 2011: Invited lecturer, Police Intervention with Persons with Mental Illness, Henry C. Lee Institute of Forensic Science, University of New Haven.

April 2011: Invited lecturer, Psychopathy, Eastern Connecticut State University.

July 2011: Physician-Assisted Suicide, Yale Department of Psychiatry Grand Rounds

October 2011: Thinking Outside the Witness Box: Novel Forensic Psychiatry Training Strategies, American Academy of Psychiatry and the Law, Annual Convention, Brian Cooke, M.D., Reena Kapoor, M.D., Patrick Fox, M.D., Boston, MA

October 2011: Restraint and Seclusion Reduction: Implications and Outcomes, American Academy of Psychiatry and the Law, Annual Convention, Patrick Fox, M.D., Traci Cipriano, Ph.D., J.D., Paul D. Whitehead, M.D., Charles Dike, M.D., Boston, MA

Feb. 2012:

Mental Health Policy in the United States, distinguished presenter to delegates from Fudan University, Shanghai Province, China, as part of the Yale Global Health Initiative

January 2013: Inside the Mind of the Mass Murderer, the Vail Symposium.

January 2014: Assessment and Management of Problem Sexual Behaviors, Colorado Mental Health Institute at Pueblo Grand Rounds

Feb. 2014: Trans-institutionalization: Treatment of Persons with a Behavioral Health Disorder within the Criminal Justice System, A Workshop of the Forum

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 71 of 72

on Global Violence Prevention. Institute of Medicine of the National Academies.

April 2015: The Times, They are a Changin’: State and National Developments and Trends in Behavioral Health Care Delivery, Colorado Psychiatric Society Annual Meeting, Denver, Colorado

July 2015:

Science and Conscience: The Role of Mental Health Evaluators in Death Penalty Cases, XXXIVth International Congress on Law and Mental
Health, Sigmund Freud University, Vienna, Austria

Sept. 2016: Managing a Limited Resource: Trends in Competency to Stand Trial Evaluations in Colorado, Colorado State Judicial Conference, Vail, CO.

Dec. 2016:

Mental Health Evaluators and the Death Penalty, American Bar Association National Summit on Severe Mental Illness and the Death Penalty, Georgetown University.

BIBLIOGRAPHY:

Morgan III, C.A., Hill, S.R., Fox, P.K., Kingham, P., & Southwick, S.M. Anniversary Reactions in Gulf War Veterans: A Follow-up Inquiry Six Years After the War. American Journal of Psychiatry 156:1075-1079, July 1999.

Charles A. Morgan III, Sheila Wang, John Mason, Steven M. Southwick, Patrick Fox, Gary Hazlett, Dennis M. Charney, and Gary Greenfield, Hormone Profiles in Humans Experiencing Military Survival Training. Biological Psychiatry 47:891-901, May 2000.

Patrick K. Fox, Commentary: Biases that Affect the Decision to Conditionally Release an Insanity Acquittee. Journal of the American Academy of Psychiatry and the Law 36:3379, 2008.

Patrick K. Fox, Commentary: Medicine, Law and Howard Zonana. Journal of the American Academy of Psychiatry and the Law 38:4:592-593 (2010)

Patrick K. Fox, Commentary: So the Pendulum Swings-Making Sense of the Duty to Protect. Journal of the American Academy of Psychiatry and the Law 38:4:474-478 (2010)

Faculty Reviewer: Stead L, Kaufman M, Yanofski J, First Aid for the Psychiatry Clerkship, third edition

Wasser, Tobias D., Fox, Patrick K. For Whom the Bell Tolls – Silver Alerts Raise Concerns Regarding Individual Rights and Governmental Interests. Journal of the American Academy of Psychiatry and the Law 170:9: (2013)

Case 2:15-cv-00645-RJS Document 85 Filed 06/12/17 Page 72 of 72
Martinez, R., Fox, P Chapter 10: Confidentiality in Psychiatric Practice, Textbook of Forensic Psychiatry, APA Publishing, In publication, (2016)

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 1 of 43
EXHIBIT 1

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 2 of 43
SETTLEMENT AGRE,EMENT This Settlement Agreement is entered into by and between the Disability Law Center (hereinafter "DLC"), an individual identified as S.8., an individual identified as 4.U., and an individual identified as S.W. (hereinafter collectively the "Named Plaintiffs"), on the one hand, and the Utah Department of Human Services (hereinafter "DHS"), Ann V/illiamson in her offrcial capacity as Executive Director of DHS, the Utah Division of Substance Abuse and Mental Health (hereinafter the "Division"), Douglas Thomas in his offrcial capacity as Director of the Division, the Utah State Hospital (hereinafter "USH"), and Dallas Earnshaw in his offrcial
capacity as Superintendent of USH (hereinafter collectively "Defendants"). Each of the
foregoing parties is sometimes referred to as a "paÍty" and collectively as "the parties." Recitals
The parties jointly acknowledge the following undisputed facts, which form the background for this Settlement Agreement:
A. DHS has the statutory obligation under Title 77, Chapter 15 of the Utah Code to
provide competency evaluations for persons charged with criminal offenses, and to provide Restoration Treatment (as defined below) for persons found incompetent to proceed.
B. On behalf of the class of plaintifß described below, DLC and the other Named
Plaintiffs filed a civil action against the Defendants in the United States District Court for the District of Utah (hereinafter the "Couft") Disabilitv Law Center. a Utah nonorofit cornoration. et al.. vs. State of Utah. et al.. Case No. 2 : 1 5 -CV-00645 -RJS -BCW (hereinaft er the "Litigation"), to challenge the length of time pretrial detainees in Utah's county jails must wait to receive
Restoration Treatment.

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C. The purposes of this Settlement Agreement are: (i) for the parties jointly to adopt
and implement a strategic plan that will significantly reduce the wait time for Class members (as defined below) to be admitted to Restoration Treatment; (ii) to resolve all claims asserted by the Named Plaintiffs on behalf of the Class in the Litigation; (iii) to provide a mechanism for
monitoring Defendants' compliance with this Settlement Agreement and the Plan; and (iv) to provide a mechanism for enforcement of this Settlement Agreement and the Plan.
D. As discussed below, the Named Plaintiffs claim on behalf of the Class that
Defendants violate the rights of criminal defendants who have been found incompetent to stand trial under the Fourteenth Amendment to the United States Constitution and Article I, $ 7 of the Utah Constitution, by infringing their liberty interests in being free from incarceration absent a criminal conviction. Defendants deny Plaintiffs' claims.
E. DLC is a federally authorized and funded nonprofit corporation established under
the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. $ 10801 et. seq. Plaintiffs S. 8., A. U., and S. W. were, at the time the complaint in the Litigation was filed, pretrial detainees who had been declared incompetent to stand trial in a criminal
proceeding and committed to the custody of the executive director of DHS for the purpose of
treatment intended to restore them to competency.
F. DHS is the agency of the State of Utah with responsibility to administer or
supervise the administration of competency Restoration Treatment under Utah Code Ann. $ 7715-6(1). The Division is the division of the State of Utah charged with responsibility to ensure the availability of services for people with mental health disorders and substance abuse issues. USH, which operates under the direction of DHS and the Division, is the Utah state psychiatric hospital. Currently, USH is the only state facility providing Restoration Treatment to Class

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members, although Restoration Treatment is also provided to Class members through the State's

Outreach Program designed to restore competency to individuals housed in Utah county jails.
G. In entering into this Settlement Agreement, Defendants do not admit any

wrongdoing or constitutional violation as to any Named Plaintiff or Class member. Defendants

do not admit that their conduct, whether actual or alleged, constitutes a legitimate ground for

liability against the State or any Defendant.
H. On September 27,2016, the Court in the Litigation certified the following

plaintiff class (the "Class"): all individuals who are now, or will be in the future, (i) charged with

a crime in Utah, (ii) iletermined by the court in which they are charged to be incompetent to stand trial, and (iii) ordered to the custody of the executive director of DHS or a designee for the

purpose of treatment intended to restore the defendant to competency, but who remain housed in
a Utah county jail. On November 7 ,2016, the United States Court of Appeals for the Tenth
Circuit denied Defendants' petition for interlocutory review of the Court's certification of the

Class.

I.

Under Utah Code Arm. $ 77-15-3(l), whenever a person charged with a public

offense is, or becomes, mentally incompetent to proceed, a petition for inquiry may be filed in

the state district court in which the charge is pending for the determination of the person's mental

competency. If the court determines that the person is incompetent to stand trial, the court must

order him or her committed to the custody of the executive director of DHS or a designee for

competency restoration treatment.
J. As the result of limitations on space at USH and limitations on DHS's resources,

some Class members have historically waited months after the state courl orders restorative

competency treatment to be admitted to USH for treatment. During this waiting period, Class

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members \¡/ere incarcerated in county jails, where they received little or no treatment to restore
competency from professionals employed by the jail. As a generalmafler, Utah's county jails are not specifically designed to provide competency restoration treatment, and jail staff do not
administer such treatment. Accordingly, since July 2014, the State has administered an Outreach Program designed to restore competency to individuals housed in Utah county jails.
K. With DLC's concurrence, Defendants have formulated and adopted a plan entitled
"A Strategic Plan for Providing Utah Adult Mental Health Competency Restoration Services"
(June 9, 2017) (the "Plan") to reduce the time during which Class members must wait to receive Restoration Treatment. A copy of the Plan is attached as Exhibit 1. The Plan consists of the following elements:
i. A process for promptly screening and identifying: (a) those Class members
who, because of the acuity and nature of their mental illness, should be
transferred from jail to the USH Forensic Unit for Restoration Treatment;
(b) those Class members whose mental illness is less severe and should be transferred to an Alternative Therapeutic Unit, as defined below, which may
be established by USH; (c) those Class members who may likely be restored to competency in a suitable Offsite Forensic Facility, as defined below, operated by USH or under contract with DHS; (d) those Class members who are likely to be restored to competency through the Outreach Program, as defined below, subject to the limits in paragraphs 25(a) and26, below; (e) those Class members with intellectual or developmental disabilities who should be directed to the Division of Services for People with Disabilities for Restoration Treatment ("DSPD"); (f) those Class members whose mental

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condition has stabilized since initial evaluation, with the result that a further

evaluation should be made to determine if these Class members are now

competent; and (g) those Class members who are unlikely to be restored to

mental competence and should be released from DHS custody so that civil

commitment, dismissal of charges, or other resolution can occur.
ii. USH's continued operation and fuither development of the Outreach

Program, as defined below, to screen, treat, assess, and monitor Class

members.
iii. USH's development of one or more Offsite Forensic Facilities for

Restoration Treatment of Class members for whom such programs are likely

to be a suitable means to restore competency.
iv. USH's development of one or more Alternative Therapeutic Units for

Restoration Treatment of Class members for whom such programs are likely

to be a suitable means to restore competency.
v. Measures to assure that all Class members begin receiving the timely

provision of appropriate Restoration Treatment after the state court orders

treatment for them.
vi. Measures to increase the efficient use of the USH Forensic Unit so as to

maximize its existing capacity.
vii. Measures to manage the anticipated growth in the number of people who are

likely to become Class members in years to come.

L.

The Court has jurisdiction over the Litigation under 42 U. S.C. $ $ 1 3 3 1 and

1343. The parties agree that venue is proper under 28 U.S.C. $ 1391(bX2). The parties will

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jointly submit this Settlement Agreement to the Court for approval, and its terms will not be effective until the Court approves it.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows:

Definitions
1. "Alternative Therapeutic Unit " means any treatment unit established and
operated by USH or under contract with DHS for Restoration Treatment on or off of the USH Campus for Class members who, in USH's professional judgment, do not require hospitalization level of care, but are not appropriate for an Offsite Forensic Facility or the Outreach Program.
2. The "Class" means all individuals who are now or will in the future be: a. Charged with a crime in Utah state courts, b. Determined by the court in which they are charged to be mentally
incompetent to stand trial,
c. Ordered or committed by the court to the custody of the DHS executive
director or a designee for the purpose of treatment intended to restore the
individuals to competency, but who remain incarcerated in a county jail in
Utah, and
d. V/aiting to begin Restoration Treatment, 3. "Custody or Commitment Ordert'means a written order, issued by a court and
signed by a judge, which orders a Class member committed to the custody of the executive director of DHS or a designee for the purpose of treatment intended to restore the defendant to competency, as described in Utah Code Ann. $ 77-15-6(I).

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4. "Defendants' Designated Representative" is Dallas Eamshaw, who has been

appointed by Defendants to perform the duties set forth inparagraph 18, below.
5. "Forensic Evaluator" means a licensed independent mental health professional
qualified to conduct court-ordered mental illness evaluations of adults in the criminal justice

system, who is familiar with and complies with the requirements of Utah Code Arur. $ 77-15-l et. seq., and who is not involved in the treatment of the Class member.
6. "Incompetent to proceed" has the same meaning as set forth in Utah Code Ann.

s 77-rs-2.
7.

"Maximum Allowable Wait Time" means the largest number of days thaf any

Class member is permitted to wait under paragraph2l tobe admiued into Restoration Treatment,

as measured from the date on which USH received the Custody Order until the date on which the

Class member began receiving Restoration Treatment at USH, at an Alternative Therapeutic

Unit, at an Offsite Forensic Facility, through the Outreach Program, or from DSPD. For

pu{poses of this Settlement Agreement, the wait times for class members who are already

incarcerated when the Plan is implemented, or September 30,2017, whichever is later, will be

tracked, but the wait times associated with those current Class members will not count towards

compliance with the deadlines established in paragraph 21, below.
8. The "Monitor" is Patrick K. Fox, M.D., who has been appointed by the Court

based on the parties' stipulation to perform the duties set forth in paragraphs 20, 26 and28

below. Defendants and the Monitor shall promptly negotiate and enter into a retention

agreement pursuant to which Defendants shall pay the Monitor a reasonable hourly rate and all

necessary expenses incurred in performing those duties, with the exception of the duties set forth

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inparagraph 28, as the costs associated with Monitor-led mediation shall be shared by the parties

equally.
9.

The "Monitoring Period" means frve (5) years from the date on which the Court

approves this Settlement Agreement.
10. "Offsite Forensic Facility" means a program of Restoration Treatment

administered by USH forensic personnel, or by similarly qualified professionals employed by

DHS's contractor, at a location other than the USH Campus. Every Offsite Forensic Facility

established by Defendants pursuant to this Settlement Agreement must comply with the

requirements of paragr aph 24 below.
1 1. "Outreach Program" means USH's program of screening, treating, assessing
and monitoring Class members while they remain residents in county jails and are not residents

in any Offsite Forensic Facility. Outreach Program professionals will screen Class members for

the appropriate level of Restoration Treatment; treat Class members whose screening indicates

that they are likely to show meaningful progress towards restoration of competency within 30

days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and

restored to competency within 60 days; assess Outreach Program patients' progress; and monitor

Class members who have been restored to competency, wherever they are located, and assist

them in remaining competent to stand trial. Subject to the terms of paragraph 26, below, USH

may utilize the Outreach Program as an approved method of Restoration Treatment for a period

of one year from the date on which the court approves this Settlement Agreement
12. "Restoration Treatment" in this Settlement Agreement means competency

restoration treatment provided by USH forensic personnel or by similarly qualified professionals

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employed by DHS's contractor, to Class members in an effort to restore them to competency, in accordance with Utah Code Ann. $ 77-15-6(1), regardless of location or level of need.
13. "Status Report" means the written report issued by the Defendants' Designated
Representative on a monthly basis during the Monitoring Period, pursuant to paragraph 18, below.
14. "USH Forensic Unit" has the same meaning as set forth in Utah Code Ann.
s 624-1s-e01.
15. "Waitlist" means the list of individuals committed to the custody of the executive
director of DHS and waiting in jail for Restoration Treatment. Obiectives. Plan Implementation and Measures of Compliance
16. Timely Restoration Treatment - Defendants shall take all necessary steps to
meet the objective of providing all Class members with timely and appropriate Restoration Treatment. Pursuant to the screening procedures referenced inparagraph 19, below, and without any unnecessary delay, Defendants shall transport or direct transportation consistent with Utah Code Ann. Sect. 77-15 et seq., of Class members to the appropriate program or location for Restoration Treatment.
I7 . Implementation of the Plan - Subject to the Court's approval of this Settlement
Agreement, Defendants shall implement the Plan annexed hereto as Exhibit 1 no later than September 30,2017, and shall take all steps necessary to diligently follow the Plan during the term of this Settlement Agreement.
18. Duties of Defendants' Designated Representative - No later than the tenth day
of the month following the end of every month during the Monitoring Period, the Defendants' Designated Representative shall transmit to the Monitor and DLC a Status Report accurately

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reporting the status of all Class members then waiting for Restoration Treatment. Each report

must include the following information for each Class member:

a. The Class member's name and criminal case number;

b. The name of the court that entered the Class member's Custody Order;

c. The date of the court's Custody Order;

d. The date USH received the Custody Order;

e. The name of the jail where the Class member is being held;

f.

The dates on which the Outreach Program screened the Class member and

the results of the screenings, including the current disposition of the Class

member for Restoration Treatment;
g. The date on which the Class member began receiving Restoration

Treatment and the location of the Class member's Restoration Treatment;
h. The date, if any, on which the Class member was terminated from DHS

custody for any reason;

i.

The reasons for the Class member's termination from DHS custody,

including the name and location of the facility or other setting to which the

Class member was transferred, if that information is known to DHS; and,

j

The number of days the Class member has spent on the Waitlist.

The report shall also state: (1) the longest wait time as among all Class members then on

the V/aitlist; (2) whether the Defendants have complied with the requirements of paragraph2l,

below, during the month; and, if applicable, (3) the reasons for Defendants' inability to comply

with the requirements of paragraph2l.

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Defendants' Designated Representative shall, on request, cooperate with the Monitor in gathering any additional information necessary for the Monitor's reports, which are required in
paragraph20, below.
19. Screening deadlines and disposition of Class members a. V/ithin seventy-two (72) hours, excluding weekends and holidays, of
DHS's receipt of the Custody Order with respect to a Class member, a qualified USH Forensic Unit professional shall screen the Class member using a screening tool approved by, and subject to modification and replacement as determined appropriate by, Defendant's Designated Representative and the Monitor. On the basis of the screening, the USH Forensic Unit professional shall determine whether the Class member: (i) should be transferred from jail to the USH Forensic Unit for Restoration Treatment due to the acuity and nature of the Class member's mental illness; (ii) should be transferred to an Alternative Therapeutic Unit; (iii) should be transferred to an Offsite Forensic Facility for Restoration Treatment; (iv) subject to the limits in paragraph 26, below, should be treated by the Outreach Program based on the standards set forth in subparagraph25(a), below; (v) should be directed to DSPD for Restoration Treatment because of the Class member's intellectual or developmental disabilities; (vi) should be reevaluated by a Forensic Evaluator to determine if the Class member is now competent; or (vii) should be released from DHS custody because it is unlikely that Restoration Treatment would be effective.

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b

As soon as the foregoing determination is made, Defendants shall take all

steps necessary to promptly effectuate the appropriate disposition of the

Class member.

c.

If the qualified USH Forensic Unit professional determines that the Class

member should be directed to DSPD for Restoration Treatment because of

the Class member's intellectual or developmental disabilities, USH shall
make the referral within 72 hours, excluding weekends and holidays, of

the screening determination. DSPD shall make a determination about

whether it is the agency best suited to provide Restoration Treatment to the Class member within 72hours, excluding weekends and holidays, of

the referral from USH. If DSPD does not accept the referral, USH shall

place the Class member back on the V/aitlist consistent with the date of

the court's Custody Order and comply with the Maximum Allowable Wait

Time deadlines in paragraph 21. The time spent towards the Class

member's referral and assessment will not count in computing the

Maximum Allowable V/ait Time.

d.

If the qualihed USH Forensic Unit professional determines that the Class

member should be reevaluated by a Forensic Evaluator to determine if the

Class member is now competent, a referral to a Forensic Evaluator shall

be made within 72hours, excluding weekends and holidays, of the

determination. If the reevaluation cannot be conducted within 72hours,

excluding weekends and holidays, of the referral, or if the Forensic

Evaluator recommends that the Class member is still not competent to

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proceed but there is a substantial likelihood that the Class member can be restored to competency in the foreseeable future, USH shall continue administering competency restoration services appropriate for the patient's level of need and shall have complied with the Maximum Allowable Wait Time deadlines in paragraph 21. The time spent towards the Class
member's referral and assessment will not count in computing the
Maximum Allowable V/ait Time.
e. If, at any time, the qualified USH Forensic Unit professional identifies an
emergent mental health need, the Defendant's Designated Representative shall expeditiously report the circumstances to DLC and the Monitor, describe any action taken by USH, and keep DLC and the Monitor apprised of any subsequent disposition of the Class member.
20. Monitor's quarterly reports - No later than the hfteenth day of the month after
the end of each calendar quarter during the Monitoring Period, the Monitor shall report in writing to the Defendants and DLC on Defendants' progress during the preceding quarter in
implementing each specific provision of the Plan and in complying with each specific term of
this Settlement Agreement.
21. Deadlines for reduction in Maximum Allowable Wait Time a. By March 31,2018, Defendants shall reduce the Maximum Allowable
Wait Time to sixty (60) days.
b. By September 30, 2018, Defendants shall reduce the Maximum Allowable
V/ait Time to thirty (30) days.

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c. By March 31,2019, Defendants shall reduce the Maximum Allowable
V/ait Time to fourteen (14) days.
22. Modification to the Plan - If Defendants believe that to achieve compliance with
the screening deadlines in paragraph 19 or the Maximum Allowable Wait Time deadlines in paragraph 21, above, they will require a modification of the Plan, the Defendants' Designated Representative shall provide the Monitor and DLC with a detailed written explanation of the necessary modihcation. If DLC objects to any proposed Plan modification, it will notiff
Defendants' Designated Representative of the objection in writing within fourteen (14) days of
its receipt of the notice of modif,rcation. DLC and Defendants' Designated Representative shall thereafter confer in good faith to resolve their differences. If they are unable to resolve their
differences in this manner, the parties will submit their differences to the Monitor for possible dispute resolution. If they are unable to resolve their differences in consultation with the Monitor, the Monitor will make a written report and recommendation to the parties. If, after conferring with the Monitor, the parties still disagree as to the proposed modification of the Plan,
either party may move the Court for relief, along with the Monitor's report and recommendation. In the absence of DLC's consent, Defendants shall not implement proposed changes to the Plan sooner than sixty (60) days following the issuance of the Defendants' Designated Representative's written notice required in this paragraph.
23. Suspension of deadlines because of special circumstances - Defendants' ability
to perform their obligations under this Settlement Agreement in a timely manner may depend on special circumstances beyond their control. Subject to the following terms and conditions, the deadline in paragraph 19(a) (hereinafter the "Screening Deadline") and the deadlines in

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paragraph2l (hereínafter the "Maximum Allowable Wait Time Deadlines") may be suspended with respect to one oÍ more Class members:
a. The Screening Deadline or the Maximum Allowable V/ait Time Deadlines if relating to an individual Class member may be temporarily suspended
Defendants conclude that they cannot meet the relevant deadlines because of factors beyond Defendants' control, including (but not limited to):
orders of a court that will delay Defendants' performance; motions filed on behalf of the Class member that will delay Defendants' performance; a jail's failure or refusal to clear the Class member for admission to one of Defendants' facilities; a jail's failure or refusal to allow Outreach Program
staff access in order to carry out its responsibilities with respect to a Class member; or medical conditions that prevent a Class member's admission to USH. Circumstances in this category shall be referred to as "Individual Special Circumstances."
b. The Screening Deadline or the Maximum Allowable Wait Time Deadlines if relating to a group of Class members may be temporarily suspended
Defendants conclude that they cannot meet the relevant deadline because of factors beyond their control, including (but not limited to) a national or local disaster impacting admissions to one oÍ more of Defendants' facilities, a labor action that substantially impedes the continued operation of a facility, or an extraordinary and unanticipated increase in the number of court-ordered competency restoration referrals. Circumstances in this category shall be referred to as "Departmental Special Circumstances."

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The failure or refusal of the Utah Legislature to adequately fund

Defendants' operations, programs, or the Plan shall not be considered a

Departmental Special Circumstance for purposes of this Settlement

Agreement.

c.

lf, at any time during the term of this Settlement Agreement, Defendants

conclude they must suspend either the Screening Deadline or the

Maximum Allowable Wait Time Deadlines on account of either an

Individual Special Circumstance or a Departmental Special Circumstance,

the Defendants' Designated Representative shall immediately give DLC

and the Monitor written notice thereof. The notice shall state the nature of

the special circumstance (that is, whether an Individual or Departmental

Special Circumstance), names of all of Class members who will be

affected by the proposed suspension, and all of the facts constituting the

special circumstance. The notice shall also state which specific deadlines

must be suspended and for what specific period.

d.

Any suspension proposed in the notice shall begin on the date on which

the notice is received by DLC and the Monitor and shall terminate at the

end of the temporary period of suspension, as set forth in the notice, unless

modified in accordance with subparagraphs f or g, below.

e

No suspension of any deadline shall last longer than is justified by the

special circumstance identified in the notice.

f.

If either DLC or the Monitor objects to the suspension, or the scope or

duration of the suspension, DLC or the Monitor may notify Defendants'

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Designated Representative of the objection in writing, and the parties shall promptly confer with each other in good faith to resolve the issue.
g. If the parties are unable to resolve the issue after the consultation required
by subparagraph f above, they will submit the matter to the Monitor for
mediation. In the absence of an emergency requiring immediate relief, none of the parties shall be entitled to file a motion in the Litigation to enforce this Settlement Agreement based upon the suspension until the expiration of thirty (30) days from the date on which the party notifies the other parties of the alleged violation based upon the suspension and efforts to resolve the situation, including Monitor-led mediation, have been exhausted. The parties shall equally share the costs of Monitor-led mediation.
24. Offsite Forensic Facilify requirements - As part of the Plan, Defendants are
hereby authorized to develop and implement one or more Ofßite Forensic Facilities consistent with the following principles:
a. Each Ofßite Forensic Facility shall be a treatment program located in
space that is suitable for Restoration Treatment. If the space is located in or leased from a county jail, the space and the residents shall be segregated from the jail's general inmate population.
b. Each Offsite Forensic Facility shall be operated by a multi-disciplinary
treatment team consisting of full-time forensic professionals, employed by DHS or by a suitable contractor, of a number that is sufficient to provide those Class members transferred to the Ofßite Forensic Facility with

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Restoration Treatment. A sufficient number of staff members shall remain

on-site during operational hours. Each Offsite Forensic Facility shall meet

the best practices of professional and clinical standards governing the

operation of, and delivery of, Restoration Treatment services at the USH

Forensic Unit.

c

Defendants shall establish and operate one or more Offsite Forensic

Facilities with sufficient capacity to meet, in combination with other

improvements, the Maximum Allowable Wait Time deadlines in

paragraph2T.

d.

The initial Offsite Forensic Facility should preferably be located in the

Salt Lake County Metro Jail, in space previously inspected and approved

by the representatives of the parties. The parties affirmatively represent

that they are not presently aware of any def,rciencies in the management or

operation of the Salt Lake County Metro Jail that would preclude, impede,

or otherwise interfere with Defendants' ability to establish and operate an

Offsite Forensic Facility at the Salt Lake County Metro Jail, or that would

preclude, impede, or otherwise interfere with Class members' ability to

receive reasonable and adequate medical and mental health care and

services while they are housed in the Offsite Forensic Facility at the Salt

Lake County Metro Jail.

e

Defendants will carefully evaluate and, if needed, seek additional funding

for a comparable facility for Class members who are women.

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25. Outreach Program duties - Subject to the limits of parcgraph 26, below,
Outreach Program professionals shall conduct timely screening of Class members in accordance with paragraph 19 above and shall:
a. Treat Class members who, in the professional's judgment, are likely to show
meaningful progress towards restoration of competency within 30 days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within 60 days. Class members in the Outreach Program shall be re-assessed by Outreach Program professionals every two weeks to determine progress toward competency. Following 30 days of Restoration Treatment in the Outreach Program, Outreach Program professionals will reassess each Class member to determine if the Outreach Program remains the most clinically appropriate and effective level of care. A Class member will be disqualified from Restoration Treatment in the Outreach Program if he or she exhibits repeated suicidal ideations with intent to harm, engages in repeated acts of self-harm, persistently refuses medications necessary for competency restoration with no rational basis, exhibits a significant decline in clinical stability, or is diagnosed with a moderate to severe intellectual or developmental disability. If the Outreach Program professional determines at screening that a Class member should be disqualified from consideration for Restoration Treatment in the Outreach Program, the Class member must be transferred to USH, an Offsite Forensic Facility, or an Altemative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays. Similarly, if the Outreach Program professional determines that the Outreach Program is no longer

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clinically appropriate or effective for a Class member, the Class member must be transferred to USH, an Offsite Forensic Facility, or an Alternative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays, or referred to DSPD if appropriate;
b. Facilitate the prompt reevaluation of Class members by a Forensic
Evaluator, if j ustified;
c. Monitor former Class members as clinically necessary who have been
restored to competency and who await trial, to assist them in maintaining their competency until trial.
26. Determination of the Outreach Program's effectiveness - The Outreach
Program may be utilized by USH as an approved altemative method of Restoration Treatment under this Settlement Agreement for a period of one year from September 30,2017. During this
one-year period, the Monitor will gather and analyze information about the Outreach Program's effectiveness in providing Restoration Treatment to Class members, including the number of patients who are restored or aÍe not restored within 60 days, together with any other factors the Monitor deems relevant. By the end of the one-year period, the Monitor will advise the parties
either: (a) that the Outreach Program is effective as a method of Restoration Treatment, in which event the Outreach Program will become a pennanent treatment option under this Settlement Agreement; or (b) that it is not effective, in which event its use as a treatment option under this Settlement Agreement will be promptly terminated unless the Monitor prescribes additional steps to improve the Outreach Program's efficacy and USH complies with and implements those steps.

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Approval by the Court and Enforcement
27 . Court approval and stay of the Litigation - The parties will jointly move the
Court in the Litigation for an order approving this Settlement Agreement and staying all proceedings in the Litigation pending successful implementation of the Plan and compliance with the terms hereof. This Settlement Agreement shall become effective upon the Court's
issuance of an order approving it. The parties agree that the Court retains continuing jurisdiction
over the Litigation to enforce the terms of this Settlement Agreement for five (5) years from the
date on which the Court issues an order approving its terms. Subject to the requirements of
paragraph 28 below, any party may move the Court for an order to enforce the Settlement
Agreement andlor to lift the stay on the Litigation. Upon the expiration of the term of this
Settlement Agreement, any party may move for dismissal with prejudice of all claims in the Litigation. If, at the end of the term, no party moves for dismissal, the Court shall enter an order to show cause why all claims should not be dismissed with prejudice.
28. Enforcement - If any party concludes that another party has violated any
material provision of this Settlement Agreement, the party will notify the Monitor and other parties, including Defendants' Designated Representative, of the alleged violation in writing. Thereafter the parties will promptly attempt to resolve the alleged violation by conferring with each other in good faith to resolve the issue. If the parties are unable to resolve the alleged violation, they will submit the matter to the Monitor for mediation. In the absence of an emergency requiring immediate relief, none of the parties shall be entitled to file a motion to enforce any provision of this Settlement Agreement until the expiration of thirty (30) days from the date on which the party notifies the other parties in writing of the alleged violation and

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Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 23 of 43
efforts to resolve the violation, including Monitor-led mediation, have been exhausted. The parties shall equally share the costs of Monitor-led mediation.
29. Attorney fees and costs regarding enforcement - Subject to the limitations
contained in paragraph 28, any party that obtains an order of the Court enforcing a provision of
this Settlement Agreement shall be entitled to an award of its reasonable attorney fees and costs incurred.
General Provisions
30. Term - The term of this Settlement Agreement shall be five (5) years from the
date on which the Court issues an order approving its terms.
31. Persons bound - This Settlement Agreement shall be binding on all Defendants
and their successors, together with their officers, agents and employees, unless otherwise prohibited by state or federal law.
32. Integration - This Settlement Agreement constitutes the entire agreement among
the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, shall be enforceable.
33. Scope - This Settlement Agreement is not intended to resolve any actual or
potential violation of the rights of pretrial detainees other than those specifically addressed in the Litigation.
34. Authority of signatories - The persons signing this Settlement Agreement
represent that they have the authority to do so.
35. Representations and warranties - Each party to this Settlement Agreement
represents, warrants, and agrees as to itself as follows:

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Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 24 of 43
a. It has fully and carefully reviewed this Settlement Agreement prior to its
execution by an authorized signatory.
b. It has consulted with its attorneys regarding the legal effect and meaning
of this Settlement Agreement and all terms and conditions hereof, and that it is fully aware of the contents of this Settlement Agreement and its legal effect.
c. It has had the opportunity to make whatever investigation or inquiry it
deems necessary or appropriate in connection with the subject matter of
this Settlement Agreement.
d. It has not heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity any claims that it might have against the
other.
e. It is executing this Settlement Agreement voluntarily and free from any
undue influence, coercion, duress, or fraud ofany kind.
36. \üaiver - No waiver of any of the provisions of this Settlement Agreement shall
be deemed or constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
37. Counterparts - This Settlement Agreement may be executed in identical
counterparts, each of which for all purposes is deemed an original, and all of which constitute collectively one agreement. The parties intend that faxed signatures and electronically-imaged signatures such as PDF files shall constitute original signatures and are binding on all parties. An executed counterpart signature page delivered by facsimile or by electronic mail shall have

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the same binding effect as an original signature page. This Settlement Agreement shall not be

binding until all parties have signed and delivered a counterpart of this Settlement Agreement

whether by mail, facsimile, or electronic mail.
38. Modification - Settlement Agreement may be modified if the parties are in
agreement. Any modification to this Settlement Agreement shall be in writing.
39. Attorney Fees - Subject to the provisions in paragraph29, above, each party
shall bear his, her or their own attorney fees and costs of court incurred in the matter to the

effective date of this Settlement Agreement.
40. Notices - Any notice or other communication required or permitted under this
Settlement Agreement shall be in writing and shall be deemed to have been duly given when

(a) mailed by United States registered or certified mail, return receipt requested, (b) mailed

overnight express mail or other nationally recognized ovemight or same-day delivery service,

(c) sent as PDF attachment to electronic mail, or (d) delivered in person, to the parties at the

following addresses:

If the Disability Center, to:

DISABILITY LAW CENTER 205 North 400 V/est Salt Lake city, utah 84103

Attention Email:

Aaron M. Kinikini Erin B. Sullivan
akinikini@di sabilitylawcenter. or g esullivan@disabilitylawcenter. org

With a copy to:

Alan L. Sullivan Bret R. Evans SNELL & WILMER L.L.P. 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101

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Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 26 of 43

Email

asullivan@swlaw.com brevans@swlaw.com

If the Department, to:

DEPARTMENT OF HUMAN SERVICES 195 N. 1950 West,4th Floor Salt Lake City, Utah 84116
Attention: Ann V/illiamson
Lana Stohl

Email

annwilliamson@utah. gov lstohl@utah.gov

If the Division, to:

DIVISION OF SUBSTANCE ABUSE AND MENTAL HEALTH 195 North 1950 V/est, 2nd Floor Salt Lake City, Utah 84116
Attention: Douglas Thomas Email: dothomas@utah.gov

If the State Hospital, to:

UTAH STATE HOSPITAL
1300 Center Street Prove, Utah 84603

Attention: Email:

Dallas Earnshaw dearnshaw@utah.gov

With a copy to

OFFICE OF THE UTAH ATTORNEY GENERAL Parker Douglas (8924) LauraThompson (6328) David Wolf (6688) 160 East 300 South, Sixth Floor Salt Lake city, utah 84114-0856

Email

pdouglas@agutah.gov lathomps@utah.gov

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Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 27 of 43

dnwolf@agutah.gov A party may change the names or address where notice is to be given by providing notice to the other parties of such change in accordance with this paragraph 40.

DATED thisdv+'ì^ day ort¡r"rrur-

t

ALAN L. S

AN (3152)

Attorney for Plaintifß

2017 onbehalf of Plaintifß:

M. KrNrKrNr (1 Attorney for Disability Law
arL DATED this I day of

e- 2017 onbehalf of Defendants:

LAURA Utah Assistant Attorney General

ANN

ON

Executive Director, Utah Department of Human Services

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EXHIBIT 1

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 29 of 43
1
A Strategic Plan for Providing Utah Adult Mental Health Competency Restoration Services
Revised June9,2017
INTRODUCTION
The State of Utah provides competency restoration services to individuals court-ordered to the Department of Human Services (DHS) as Not Competent to Proceed (NCP) under Utah Code Ann. $$. 77-15-1 et. seq. This plan outlines the process for how these services are delivered and contains information regarding the clinical programs provided. Utah's system of competency restoration services is based on best practices and successful endeavors in Utah and other states. Utah is addressing the increased demand for forensic services by building capacity and programs that are clinically appropriate and cost effective. A best practice model is in the developmental stages nationally. The traditional inpatient approach is no longer viewed as the sole recommended model of care, as evidenced by the fact that at least 10 states now have some form
of competency restoration treatment that is conducted in a jail or adapted setting. Utah's model of care includes outpatient treatment; treatment at an offsite forensic facility; treatment at
alternative therapeutic units; and inpatient competency restoration treatment programs. This comprehensive system of care includes vital components for processing court orders, assigning court-ordered evaluations to forensic examiners, screening individuals found NCP for appropriate program placement, treatment plan development, clinical and educational competency restoration services, evaluating clinical progress, tracking outcomes data, and discharge planning. Ongoing communication and collaboration with the courts, correctional facilities, and attorneys is vital to operational efficiency.
COMPETENCY RESTORATION OVERVIEW
Historically, competency restoration services have been provided at the Utah State Hospital's
(USH) forensic inpatient unit. Over the past 30 years, the demand for forensic services in Utah
and nationwide has experienced exponential growth, creating a strain on existing resources.
Some of the circumstances that have contributed to this growth in Utah include an increase in 1) the number of competency petitions filed; 2) the number of people found NCP by the courts and
referred to DHS; and 3) the acuity level of patients entering the system. Some states have converted non-forensic inpatient beds into forensic beds to respond to the increased demand. In many states, competency restoration services are being provided in non-inpatient settings allowing provision for a more efficient and appropriate level of care for those individuals not needing an inpatient level of competency restoration services. According to a report by the
þr V/ashington State Institute for Public Policy (Standardizing Protocols Treatment to Restore
Competency to Stand Trial: Interventions and Clinically Appropríate Time Periods, January 2013), there are five treatment modalities in the literature to address the competency restoration needs of those found NCP that include:
(l) Medications;
(2) Treatment for individuals with developmental disabilities; (3 ) Educational treatment programs ;

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2
(4) Specialized/individual treatment programs; and (5) Cognitive remediation programs.
The study also describes incompetence as predicated on two components that are typically addressed in treatmenl (1) a mental disorder or cognitive impairment and (2) a deficit in one or more competence-related abilities (i.e., understanding, appreciation, reasoning, assisting counsel) that occur as a result of the mental disorder or cognitive impairment. Improvement in the underlying mental disorder or cognitive impairment often results in the improvement in competence-related deficits. This forms the basis for psychotropic medications being one of the
primary treatment modalities in competency restoration treatment. In addition, the use of
educational approaches to increase the patient's factual understanding of the legal proceedings and to assist in participating with their defense counsel is beneficial.
The Washington State Institute for Public Policy report revealed limited success in competency restoration outcomes for individuals with intellectual andlor developmental disabilities. Most programs that have been studied demonstrate a33 percent average competency restoration rate for individuals with intellectual disabilities compared to a70 percent average for those with mental illness. The "slater Method" is a competency restoration tool that is typically used to treat individuals with intellectual disabilities. Length of time to restoration is longer for people with intellectual disabilities than the time to restoration for people without intellectual disabilities. It has been DHS' experience that most individuals who require specialized services for intellectual disabilities do better when treated under the supervision of state agencies designed to treat the unique needs of this population. Utah identifies these individuals when referred to DHS and makes every effort to direct their competency restoration treatment to the Division of Services for People with Disabilities (DSPD).
Most research demonstrates that individuals who participate in education groups have a significantly higher rate of restoration than those who do not. Many states across the country have implemented education programs that are of varying structure and delivery styles. Yet, the basic components are similar. Programs in the North Coast Behavioral Healthcare System in Ohio; the Alton Mental Health and Development Center in Illinois; the Atascadero Hospital in California; the RISE program in Denver, Colorado; as well as others, include treatment modalities such as: educational groups; experiential modules, such as mock trials; medication management; and cognitive remediation. These best practice principles are incorporated into Utah's restoration program development. Another well recognizedprogram used to inform Utah's model of care is the 'Comp-Kit' restoration program developed and implemented in2006 by Florida's mental health forensic system.
Even though the literature is limited and does not specifically identify one national best practice model for competency restoration, current programs have similar components and outcomes. The National Judicial College in Reno, Nevada assembled a panel of experts to develop a Mental Competency Best Practice Program. Though the main tenet of their recommended approach is similar as that described above, it is recommended that clinicians assess the individual's need for competency restoration and tailor the program individually rather than placing all individuals into the same curriculum and treatment modalities.

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-)
SUMMARY of ESSENTIAL RESTORATION SYSTEM ELEMENTS:
1. Court-ordered competency restoration process
2. Court referral monitoring system 3. Initial treatment screening to determine appropriate level of service delivery 4. Initial mental health evaluation 5. Identification of barriers to competency restoration 6. Development of an individualizedtreatment plan 7. Engagement of treatment modalities 8. Ongoing progress towards competency assessments 9. Documentation of interventions and response to interventions
10. Re-evaluation of competency I 1. Court Referral and reporting process
STRATEGIC ACTION PLAN
In order to ensure the State of Utah has adequate resources available to provide competency restoration services to individuals who have been court-ordered to DHS, it is imperative that a

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4

strategic action plan be developed, implemented, and have ongoing evaluation to assure timely provision of treatment services

A wider array of stakeholders must be engaged to more fully address the competency restoration needs of the citizens of Utah. Successful implementation of a strategic plan requires cooperation, communication and collaboration with avanety of stakeholders and participants involved in the competency restoration process, including, but not limited to: the district courts; referring county and municipal courts; prosecutors; the defense bar; the counties/Local Mental Health Authorities (LMHAs); local sheriffs' offrces and jails; law enforcement; and the Utah
Legislature.

Outcomes used to assist in this determination will include service access wait times, restoration rates, and length of time for restoration. Each service delivery option will be evaluated for
effi ci encies and appropri ate patient placements.

Each year, DHS, in collaboration with other state leaders, will review these outcomes and make proposals when increased resources are necessary. Options may include: additional offsite forensic facilities; alternative therapeutic units located on or off the USH campus; additional beds at USH; and addressing timely and appropriate competency restoration treatment for women in a clinically appropriate setting. Counties are encouraged to consider pre-evaluation processes to facilitate access to mental health services for individuals with serious mental illness, prior to, or upon entering the criminal justice system, and redirect individuals from entering the
forensic system when community services are more appropriate.

I

Purposes and Implementation of the Strategic Plan

The purposes of this strategic plan are as follows:
(a) Outline the specific steps to be taken to reduce the period of time during which
patients committed to DHS must wait to receive competency restoration treatment;
(b) Comply with the timeframes established in the Settlement Agreement approved
by the Court in the matter of Disability Law Center, et. al. v. State of Utah, Department of Human Servíces, et. al., Case No. 2:15-cv-00645-RJS-BCW.
(c) Implement a series of indicators that will measure the quality and efficiency of
competency restoration treatment for patients committed to DHS for competency restoration treatment; and
(d) Monitor and adjust resource investment and allocation to achieve the purposes of
the strategic plan.

The implementation of this strategic plan is to be contemporaneous with the establishment of the first offsite forensic facility proposed at the Salt Lake County Metro Jail, or September 30,2017, whichever occurs later.

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5
2. Service Delivery Options
Like many other states, Utah has recognizedthe need for additional cost-effective and clinically appropriate services to meet the demand for forensic services. In2014, USH, in collaboration with the Division of Substance Abuse and Mental Health (DSAMH) and DHS, recommended four levels of treatment services that are appropriate for competency restoration. This was presented in response to a20I4legislative audit. They are listed in order from the least to highest associated clinical need:
a) Outreach Program: Providing competency restoration treatment to patients
i. on release from the court in the community; ii. in jail within their home community; or iii. in prison.
b) Offsite Forensic Facility: Providing competency restoration treatment to
patients in a specialized, structured competency restoration program within a jail or other secure setting.
c) Alternative Therapeutic Unit: Providing competency restoration treatment in
any treatment unit established and operated by USH or under contract with DHS on or off of the USH campus for patients who do not require hospitalization level of care.
d) Inpatient Forensic Beds at USH: There is capacity but not infrastructure for
expansion of inpatient hospital beds at the USH campus.
Not all patients referred to DHS for competency restoration treatment require hospital inpatient level of care and its associated interventions. Screening processes are designed to identiff persons found NCP who can, within a reasonable timeframe, be restored to competence in the least restrictive, clinically appropriate environment and without requiring admission to an inpatient setting.
There are identifiable advantages to offering outpatient competency restoration services to individuals with lower psychiatric acuity levels including:
a) Decreased incarceration time b) Decreased transportation costs c) Improved supports to assist in treatment within their local communities d) Enhanced access to community mental health treatments e) Facilitated access into ongoing outpatient treatment support systems
Ð Ongoing access to defense counsel, family, and other supports
g) Reduced stigma associated with psychiatric hospitalization,
If a patient is placed in any program or level of service based on screening criteria and
later is determined to either be progressing faster or not progressing as expected to meet
the required time frames, the patient will be transferred to the more appropriate level of
care based on their clinical status.

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6
3. Offsite Forensic Facilities
(a) DHS is currently planning an offsite forensic facility with day competency restoration
treatment in a county jail. This is a five days per week, eight hours per day program to
provide competency restoration treatment to patients who need a structured environment, similar to a mental health unit, but do not need the services of an inpatient psychiatric
hospital. Patients will be identified according to their acuity, and treatment will be
individuali zed accor dingly.
(b) Based on the success of this initial program and in the assessment of future program needs, DHS may request funding for additional offsite forensic facilities (including, but not limited to, a female only offsite forensic facility) to meet the needs of the population. DHS will determine funding and staffing pattems following a review of the current program outcomes and inflationary costs. If DHS determines that there is a greater number of patients needing inpatient care, DHS will request funding for additional beds at USH or another appropriate alternative therapeutic unit. This funding request would be similar to the funding at that time for one USH forensic unit (current cost is approximately $4.5 million dollars). Staffing levels would be similar to a current forensic unit based on this budget information.
(c) In 2017, the first offsite forensic program will be developed in partnership with Salt Lake County due to its Metro Jail's central geographic location and the large number of competency restoration referrals that arise from Salt Lake County. This program has an annual operating budget of approximately $3 million. Funding will be available by July I,2017. DHS will begin to develop and coordinate operational procedures, recruitment
and implementation of the program as soon as funding is assured through the legislative
process. It is intended that actual program implementation will begin no later than September 30,2017.
In developing contracts for ofßite forensic facilities, provisions will be included that address training for the correctional personnel including but not limited to: Crisis Intervention Team (CIT) training and training from the USH Psychiatric Technician training modules. The jail will
provide 24-hottr emergency psychiatric and emergency medical care of patients when forensic
staff are not on site and forensic programming is not being conducted. Subject to the terms of
the contract(s) for each offsite forensic facility and available funding, the anticipated staffing and training of the offsite forensic facility will be commensurate with their counterparts at the USH. Patient programming and staffing levels at each offsite forensic facility will be guided by a Program Manual that will soon be developed, subject to modification by the USH Forensic Director, based upon the physical environs of the facility, availability of security staff, and other contract provisions to be determined once each offsite forensic facility is identified.
4. Outreach Program Services
Since 2015, the Utah Legislature has recognizedthe value of DHS' Outreach Program whereby clinicians provide competency restoration treatment to patients by conducting weekly visits to

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7

those who are: (1) released to the community by the court; (2) housed in their home community jail; or (3) in prison. These services are provided to patients whose screening indicates that they are likely to show meaningful progress towards restoration of competency within 30 days, whose
symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within sixty (60) days.

Some Outreach Program patients will remain in their own county based on the following factors (a) closeness to family and other supports; (b) desire to stay in the area; (c) upcoming hearing
and efficiency in time by not transporting to another area; (d) closeness to legal representation; (e) sig¡ificant progress with current situation; or (f) gender as the offsite forensic facility
programming is male only at this time.

5.

Projecting Future Needs

(a) USH has projected that the annual number of pretrial detainees in Utah's county
jails for which custody or commitment orders will have been issued will continue to increase. If the number of court-ordered pretrial detainees does not increase, USH will continue to monitor trends each year to revise projections.

(b) USH believes that, depending on system changes including the addition of new levels of care and program efficiencies decreasing length of stay in all programs and facilities, it may need additional competency restoration Outreach Program professionals who provide screening, assessment, and treatment services. This will be closely monitored and evaluated based on length of time to access these services and the length of stay in these services in the context of the entire system.

(c) USH believes that, depending on system changes including the addition of new levels of care and program efficiencies decreasing length of stay in all programs and facilities, it may need additional forensic evaluators who are employed to conduct evaluations for the Outreach Program if projections are accurate. This will be closely monitored and evaluated based on length of time to access these services and the length of stay in the Outreach Program in the context of the entire
system.

(d) USH will annually evaluate the state's ability to meet the respective service level
need and projected number of patients requiring competency restoration treatment, and request additional funding to adequately provide services to all those court-ordered to DHS for purposes of competency restoration treatment.
The amount to be requested will be determined by the level of service required to
meet the acuity needs of those committed to DHS, taking into consideration the outcomes of each program in meeting the timeframes for competency restoration in the Settlement Agreemen! and relevant statutes, inflationary costs, and other
factors.

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8
6. Expansion of USH Forensic Unit
In addition to the establishment of the offsite forensic facilities referenced in paragraph 3 of this strategic plan, the State projects that, depending on system changes including the addition ofnew levels of care and program efficiencies decreasing length of stay in all programs and facilities, there may be further need for increased inpatient treatment capacity. The current capacity of the USH forensic unit is 100 patients for all forensic
commitments required by law, including NCP, guilty and mentally ill, and not guilty by
reason of insanity. The current USH forensic unit was designed to expand by being able to add additional 25-bed units to the existing structure to a capacity of 200 beds. Based on the number of future court referrals and timeframes for competency restoration services, the State may need to request additional funding for the construction or procurement of another facility on or off the USH campus. This will be closely monitored and evaluated based on length of time to access inpatient services and the length of stay in the context of the entire system.
7. Post-Treatment Follow-up
DSAMH/USH will continue to evaluate the most efficient and cost-effective programs and interventions to assist pretrial detainees in maintaining their competency. USH staff will work with counties and provide case management to help monitor and support the patient in their restoration status and facilitate continuity of care.
8. Efficiency Improvements
Outcomes reflect operational efficiencies and clinical effectiveness. Utah's adult mental health competency restoration outcomes will be monitored monthly and evaluated on a quarterly basis at which time changes will be considered to strenglhen the results. Adjustments in screening, assessment, treatment, monitoring, program placements, and delivery of services will be made where deficiencies are identified. Outcome indicators are as follows:
1. Length of time from court-ordered referral to treatment program admission; 2. Length of stay in any of USH's competency restoration treatment programs; 3. Percent of court-ordered referrals screened in a timely manner (i.e., within
seventy-two (72) hours, excluding weekends and holidays, of DHS's receipt of
the district court order for competency restoration treatment);
4. Percent of patients screened into the Outreach Program who are restored or not
restored within 60 days; and
5. Percent of patients treated within USH's forensic system who are found
competent to proceed.
Targets are identified and adjusted based on best practice standards, baseline measurements and agreements made during system monitoring. Monitoring systems and outcome measures are utilized to ensure individuals within each level of service have
been properly placed into programming and changes in status result in reassessment of

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9
the patient. Monitoring also ensures that patients in each level of care are not "lost in the system." LOS and competency status data will receive ongoing utilization reviews to
flag those patients who may not be responding appropriately as expected in each level of
care. Nationally, outpatient and jail-based programs have shorter LOS than inpatient programs.
Ongoing utilization review means that treating clinicians are reassessing the appropriateness of the current treatment program for the patient with each treatment encounter, and making a determination about program placement or movement at the earliest and most appropriate time.
If at any time it is determined a patient is not progressing in treatment, USH will reassess for the appropriate level of service.
9. Forensic Evaluation System (FES)
When a district court judge orders a competency evaluation, the order should be entered into DHS' Forensic Evaluation System (FES), which is automated to coordinate with state examiners contracted to complete ordered evaluations. Some counties or courts may elect to assign evaluators independent of the FES. Regardless, all orders and evaluations are monitored in the FES. The examiners provide an initial report to the court and parties within 30 days of receipt of the court's order. The examiner may inform the court in writing that additional time is needed to complete the report. The examiner shall have up to an additional 30 days to provide the report if requested in writing. The examiner shall provide the report within 60 days from the receipt of the
court's order unless, for good cause shown, the court authorizes an additional period of time to complete the report. If after reviewing the forensic evaluation the judge
determines an individual is NCP, the court should send the order for competency restoration to DHS via email into the FES. USH and DSAMH monitor the FES to ensure that all components of the service delivery system are addressed and correspondence with the court and the parties is done in a timely manner under the current statutory scheme. Discovery and other documents and outcome data are also tracked through the FES.
10. Utah Competency Restoration Service Delivery System (See Flow Chart)
The district court should send orders for competency restoration to the USH Legal Service Office, which manages the FES system. Information regarding referrals and
evaluations is managed in the FES. All patients ordered to DHS for competency
restoration are screened to determine the appropriate level of care needed.
A. Screening Process
V/ithin seventy-two (72) hours, excluding weekends and holidays, of receiving the court order, USH forensic staff shall determine which level of service is appropriate for the patient using a screening tool approved by the USH Forensic Director. The screening process utilizes best practice evaluation tools to determine whether:

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10
l. A patient is likely to be restored to competency through treatment available by the
Outreach Program;
2. A patient is likely to be restored to competency through treatment available at an
offsite forensic facility;
3. A patient needs inpatient hospital services at the USH forensic unit; 4. A patient is likely not restorable; 5. A patient requires referral to DSPD services; or 6. A patient has other dispositional needs, such as a nursing home placement.
The Initial Competency Restoration Screening tool to be used in the screening process is
attached as Appendix A. The screening process may undergo further development and
refinement, to include specific scoring guidelines for patient level of service.
Note: Female patients who have been found not competent to proceed will be referred to either the Outreach Program or USH unless and until another program is identified to meet the needs of females who would otherwise be screened to an offsite forensic facility, including, but not limited to, the establishment of a female only offsite forensic facility program.
B. Screening Criteria
The following represents general criteria used by USH Forensic Unit professionals to determine level of service needed:
a. Patient's attitude towards and consent to take medication; b. Patient's response to medication treatment; c. Level of risk (i.e., suicide, self-harm, harm to others, etc.); d. Physical health/medical concerns; e. Current progress towards competence; and f. Patient's willingness to engage in treatment.
If an individual is placed in the Outreach Program, competency restoration treatment begins within 14 days of receiving the court order requiring such treatment, though Outreach Program clinicians strive to begin treatment services within 7 days or less of receiving the court order. Part of that treatment is the engagement ofjail personnel to provide medication management services if such services are not already in place for patients in their home community jails. If the patient is screened for treatment in an offsite forensic facility or referred to USH's forensic unit, the patient is transferred into the first open bed within 14 days of receiving the court order requiring such
treatment.
C. TreatmentDisposition
If a patient is determined to be a candidate for the Outreach Program, an offsite forensic facility, an alternative therapeutic unit, or USH's forensic unit, an
individualized treatment plan (ITP) is established.

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 39 of 43
11
If, at any time, a USH Forensic Unit professional determines that a patient is likely not restorable, the USH administrator will request a re-evaluation from a forensic evaluator. The forensic evaluator conducts the evaluation and a report is sent to the court for further disposition.
If, at any time, a USH Forensic Unit professional determines that a patient is not likely to restore to competency through the Outreach Program, at an ofßite forensic facility, or at an alternative therapeutic unit, then coordination is made with the USH staff for admission to inpatient level of care at USH. The USH Forensic Outreach Competency Progress Assessment tool is attached as Appendix B.
If it is determined that apatient may meet the criteria for an intellectual disability, a referral is made within seventy-two (72) hours, excluding weekends and holidays, to DSPD for competency restoration services. If DSPD does not accept the referral, the
patient is screened for USH treatment services and all timeframes apply.
If a patient is determined at any time throughout the screening or treatment process to meet the criteria to be found competent to proceed, the USH administrator will request a re-evaluation from a forensic evaluator. The forensic evaluator conducts the evaluation and a report is sent to the court for further disposition.
D. Treatment Servrces
The program administrators at each level of service coordinate with the treating staff and other agencies involved in the custody or care of the patient to develop an ITP and identiff necessary treatment modalities. Tlpes of competency restoration interventions may include, but are not limited to, individual instruction; individual therapy; goup therapy; educational or psychoeducational materials; assignments; recreational therapy; occupational therapy; and medication management. Treatment staff may also coordinate services with jail treatment providers or LMHAs for medication management and other appropriate medical services. The competency curriculum is consistent with criteria in Utah's competency statutes. The following
program outline describes the restoration treatment delivery system at each level of
service:
1. Referral Screening Process a. Each individual is screened by a qualified USH Forensic Unit
professional within seventy-two (72) hours, excluding weekends and holidays, of receiving a court order for competency
restoration.
b. A qualified USH Forensic Unit professional utilizes scoring
guidelines from the initial screening tool (Appendix A) to identify the appropriate level of service to which the individual should be
referred.

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t2
c. A qualified USH Forensic Unit professional will continue to visit
with all referrals weekly while the individual is being evaluated for the appropriate program.
2. Outreach Program a. The Outreach Program is designed for patients who are likely to
show meaningful progress towards restoration of competency within 30 days, whose symptoms are stabilizing, and who are likely to be referred for re-evaluation and restored to competency within 60 days.
b. If the Outreach Program clinician determines that the patient is
appropriate for treatment through the Outreach Program and the
county jail is deemed a sufficient location in which to provide competency restoration services, the Outreach Program clinician will commence treatment in the home community jail after considering the criteria outlined in Section 4 above, "Outreach
Program Services."
c. Outreach Program staff will atrange weekly treatment encounters
with patients who are on a release to the community by the court.
d. If the patient is female and is appropriate for the Outreach
Program, weekly visits will occur in the home community jail.
e. An ITP is established for each Outreach Program patient based on
individualized needs and identified barriers to competence.
f. Coordination among Outreach Program staff occurs weekly to
evaluate treatment progress, modiff the patient's ITP as indicated, and coordinate medication management with local county jails as required in Utah Code Ann. Sect. 17-43-301(5)(a)(i) or pursuant to a contract anticipated to be entered with Salt Lake County for an offsite forensi c facility.
g. An Outreach Program clinician visits with the patient for at least
60 minutes weekly to provide competency restoration treatment and psychoeducational material from the Outreach Competency Training Program manual addressing barriers to competence
identified in the ITP. The manual is attached as Appendix C.
h. Patients are reassessed minimally every two (2) weeks to
determine progress towards competence.
i. Patients will be disqualified from competency restoration treatment
in the Outreach Program if he or she exhibits suicidal ideations with intent to harm, engages in repeated acts of selÊharm, persistently refu ses medications necessary for competency restoration with no rational basis, exhibits a significant decline in clinical stability, or is diagnosed with a moderate to severe
intellectual or developmental disability.
j. If an Outreach Program clinician determines that a patient should
be disqualified from the Outreach Program, the patient will be transferred to USH's forensic unit, an Offsite Forensic Facility, or

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 41 of 43
13
an Alternative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays.
k. Patients who are not ready to be referred for reevaluation for
restoration status within sixty (60) days will be re-assessed by USH staff for the appropriate level of competency restoration
services.
l. If a qualified USH Forensic Unit professional determines that the
Outreach Program is no longer clinically appropriate or effective for a patient, the patient must be transferred to USH's forensic unit, an Offsite Forensic Facility, or an Altemative Therapeutic Unit within seventy-two (72) hours, excluding weekends and holidays.
3. Offsite Forensic Facilify a. An ofßite forensic facility is a competency restoration program
administered by USH forensic personnel, or by similarly qualified professionals employed by DHS's contractor, at a location other than the USH Campus. Expected capacity at an ofßite forensic facility is twenty-two (22) to forty (40) beds.
b. A competency restoration program can be established in any
secure offsite facility that has the availability of security staff. This is ty,pically a jail or other secure setting. Any site can be considered if it meets the need for a secure, structured environment. If the space is located in or leased from a county jail, the space and the residents must be segregated from the jail's general inmate population.
c. A competency restoration program at an offsite forensic facility is
designed for patients that are in need of more comprehensive treatment than those referred to the Outreach Program and are likely to be restored within two to four months. These patients are not considered a risk of immediate harm to self or others, do not have high acuity medical needs, and are demonstrating that they are willing to engage in treatment, including accepting medication
management.
d. Patients will be identified by psychiatric acuity for purposes of
bunking assignments, safety assessment, and in creating an ITP.
e. Patients receive day treatment services Monday through Friday.
Operational hours may vary but be minimally set from 8:00 a.m. to 5:00 p.m. DHS anticipates some programming may occur in the evenings and on weekends.
f. A treatment team assesses and develops an ITP for each patient
based on individualized needs and identified barriers to
competence.
g. It is anticipated that the treatment team will consist of a
psychiatri st, p sycholo gi st, so cial workers, nursing staff, psychi atric technicians, recreation therapist, case worker, and offtce specialist,

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 42 of 43
t4
whose training and credentials will be commensurate with their
counterparts at the USH.
h. Treatment services may include any of the following: medication
management, individual therapy, group therapy, psychoeducation, recreation therapy, occupational therapy and other modalities identified as necessary for the patient's ITP. A schedule of USH programming is attached as Appendix D as an exemplar. Appendix D.
i. Patient programming and staffing levels at each offsite forensic
facility will be guided by a Program Manual that will soon be
developed, subject to modification by the USH Forensic Director,
based upon the physical environs of the facility, availability of
security staff, and other contract provisions to be determined once each offsite forensic facility is identified.
j. It is anticipated that a contractual arrangement with a county jail or
other appropriate offsite facility will provide the program with
security personnel, medical services, food, clothing, medications, and medical and mental health crisis services after hours.
4. USH Inpatient Restoration Services a. Patients who are not found to be appropriate for the Outreach
Program or an offsite forensic facility treatment program are referred to USH for inpatient services within seventy-two (72) hours, excluding weekends and holidays.
E. Evaluations
All court-ordered NCP patients will have an initial assessment once they are screened and admitted to one of USH's treatment programs. A report will then be sent to the
court pursuant to Utah Code Ann. Sect. 77-15-6,. Any time after the patient is found NCP but is showing significant progress towards restoration, a referral can be made for competency re-evaluation by a forensic evaluator. The referral should be made within seventy-two (72) hours, excluding weekends and holidays, of the determination by USH Forensic Unit professionals that the individual has made significant progress towards restoration. Once a referral for follow-up evaluation is made to a forensic evaluator, the evaluation will be completed within fourteen (14) working days. The evaluation report is sent to the court promptly upon completion. The USH Clinical Director or designee certifies all reports recoÍrmending the individual be found competent to proceed according to Utah's competency statutes.
F. Collaboration
USH Forensic Unit professionals work in consultation with jail staff, court personnel, families, LMHAs, or others involved in the care, custody or treatment to ensure continuity of care and communication. The USH Legal Services Office and Forensic Director ensure that the courts are kept apprised of the progress and status of all individuals ordered to DHS consistent with Utah's
statutory framework.

Case 2:15-cv-00645-RJS Document 85-1 Filed 06/12/17 Page 43 of 43

l.)
Defendant is Found Not €ompetent
Court ordered
tc DHF
Outreach Screening Completed within 72 hourc
Service Lwel Determined

Considered to be Non-
Restorable
Referral for Additional Competence/ Non- Restorabilîty
Evaluation
Refer to Court

Outreach Program
When criteria for competence îs me( referred for Fvaluation
Refer to Court

Jail Based Progrart
When criteria for competence ¡s met, referred for
Evaluation
Refer to Court

LJtah State Hospital (Outreãch v¡slts unt¡¡

When crheri¡ for competence i9 met, referred for
Fvaluation

When criteria for competence is rnet, referred for Evaluation
Refer to Court

Coordinate with outside agencies
for alternative plâcernents-
Coordinafe with the Caurts

If found Not Competent Refer back to program
*--+ At anytime a defendant is not progressing within a level of service a referral is made to the appropriate program that meets the needs of the individual
2/77

Case 2:15-cv-00645-RJS Document 85-2 Filed 06/12/17 Page 1 of 5
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 

Case 2:15-cv-00645-RJS Document 85-2 Filed 06/12/17 Page 2 of 5
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Disability Law Center, et al. v. State of Utah, et al. Case No. 2:15-CV-00645-RJS-BCW
You will be affected by the settlement of a class action lawsuit called Disability Law Center, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW. This notice summarizes the claim in the lawsuit, what the settlement entails, and your rights under the settlement.
The Court has scheduled a hearing to consider the settlement on [DATE] at [TIME] before the Honorable Judge Robert J. Shelby at Courtroom 7.300, United States District Court for the District of Utah, 351 South West Temple, Salt Lake City, Utah 84101. This hearing is referred to as the Final Settlement Approval Hearing.
SUMMARY OF THE LAWSUIT
The issue in this lawsuit is whether the Utah State Hospital (USH) has failed to timely provide court-ordered competency restoration treatment for individuals who have been found incompetent to stand trial.
A Class Member is any individual who is now, or will be in the future, (i) charged with a crime in Utah, (ii) determined by the court in which they are charged to be mentally incompetent to stand trial, and (iii) ordered to the custody of the executive director of the Utah Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency, but who remain housed in a Utah county jail.
The lawyers representing class members (“Class Counsel”) are Aaron M. Kinikini and Erin B. Sullivan of the Disability Law Center, 205 North, 400 West, Salt Lake City, UT 84103, and Alan L. Sullivan and Bret R. Evans of Snell & Wilmer, LLP, 15 W South Temple #1200, Salt Lake City, UT 84101.
DESCRIPTION OF THE PROPOSED SETTLEMENT AGREEMENT
The Plaintiffs and the State of Utah have reached a settlement that would release the State from any further liability related to this claim. The Settlement Agreement requires USH to do the following, subject to Court approval:
 Within 72 hours of learning that a criminal defendant is found incompetent to stand trial and ordered to the custody of the Utah Department of Human Services, a USH Forensic Unit professional must screen each class member to determine the appropriate level of competency restoration treatment;
 Within 6 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 60 days;
 Within 12 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 30 days; and
 Within 18 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 14 days.
1 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85-2 Filed 06/12/17 Page 3 of 5
The settlement also creates a system to monitor USH’s compliance with the Settlement Agreement and requires the State of Utah to pay fees to the court-approved monitor.
You have the right to learn more about the settlement. A copy of the preliminarily-approved Settlement Agreement is enclosed with this Notice. If you are unable to read or understand the Settlement Agreement, contact Class Counsel referred to in Question 6 below.
OBJECTIONS OR COMMENTS TO THE PROPOSED SETTLEMENT
The United States District Court for the District of Utah has preliminarily approved the Settlement Agreement but will hold a Final Settlement Approval Hearing to determine whether it is fair, reasonable, and adequate on [DATE] at [TIME] in Courtroom 7.300 of the federal courthouse located at 351 South West Temple, Salt Lake City, Utah 84101.
Class Members have a right to object to the terms of the settlement. If you have objections, comments, or statements about the proposed Settlement Agreement, you must make them in writing using the attached “Response to Proposed Class Action Settlement” form or your own paper. A selfaddressed stamped envelope is included for your convenience. Written objections, comments, and statements should be sent to the following address: Disability Law Center, 205 N 400 W, Salt Lake City, UT 84013. Objections must be submitted or postmarked no later than [DATE].
Objections must include all of the following information: (1) The objector’s contact information (name, address, offender number); (2) An explanation of the basis for the objector’s objection to the Settlement Agreement; and (3) Whether the objector intends to appear at the Final Settlement Approval Hearing on [DATE].
All information submitted to Class Counsel will be provided to counsel for the State of Utah and the District Court in advance of the Final Settlement Approval Hearing. It is not necessary for Class Members to appear at the Final Settlement Approval Hearing. Any Class Member who has submitted a timely objection as provided above and who wishes to appear at the Final Settlement Approval Hearing must give notice by calling the Disability Law Center, sending notice in writing, or using the attached “Response to Proposed Class Action Settlement” form. Objectors may withdraw their objections at any time. Any objections, comments, or statements that do not comply with the above procedures and timeline will not be heard or considered by the Court.
HOW TO GET MORE INFORMATION
This is a summary of the Settlement Agreement. If you have any questions about the matters contained in this notice or any questions regarding the settlement, you may write or call Class Counsel below:
DISABILITY LAW CENTER 205 North 400 West Salt Lake City, UT 84103 (801) 363-1347 Toll Free: (800) 662-9080
2 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85-2 Filed 06/12/17 Page 4 of 5
RESPONSE TO PROPOSED CLASS ACTION SETTLEMENT
DLC, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW
Full Name: ___________________________________________________________
Address: ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
Criminal Case No.: ___________________________________________________________ Criminal Attorney: ___________________________________________________________ Objections/Comments/Statements: __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________
(If you need additional space, you may continue writing on the other side of the page or attach additional pages.)
Do you want to provide oral testimony to the Court regarding the settlement? Yes __ No __
3 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85-2 Filed 06/12/17 Page 5 of 5

Date: _____________________

Signature: ______________________________________

4 of 3 Notice to Class Members

Case 2:15-cv-00645-RJS Document 85-3 Filed 06/12/17 Page 1 of 4
EXHIBIT 3

Case 2:15-cv-00645-RJS Document 85-3 Filed 06/12/17 Page 2 of 4
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Disability Law Center, et al. v. State of Utah, et al. Case No. 2:15-CV-00645-RJS-BCW
One or more of your clients will be affected by the settlement of a class action lawsuit called Disability Law Center, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW. This notice summarizes the claim in the lawsuit, what the settlement entails, and your client’s rights under the settlement. Please share this notice and the proposed Settlement Agreement with your client’s family members and any known legal guardian of your client, and encourage them to submit any objections, comments, and or statements that they may have regarding the proposed Settlement Agreement.
The Court has scheduled a hearing to consider the settlement on [DATE] at [TIME] before the Honorable Judge Robert J. Shelby at Courtroom 7.300, United States District Court for the District of Utah, 351 South West Temple, Salt Lake City, Utah 84101. This hearing is referred to as the Final Settlement Approval Hearing.
SUMMARY OF THE LAWSUIT
The issue in this lawsuit is whether the Utah State Hospital (USH) has failed to timely provide court-ordered competency restoration treatment for individuals who have been found incompetent to stand trial.
A Class Member is any individual who is now, or will be in the future, (i) charged with a crime in Utah, (ii) determined by the court in which they are charged to be mentally incompetent to stand trial, and (iii) ordered to the custody of the executive director of the Utah Department of Human Services or a designee for the purpose of treatment intended to restore the defendant to competency, but who remain housed in a Utah county jail.
The lawyers representing class members (“Class Counsel”) are Aaron M. Kinikini and Erin B. Sullivan of the Disability Law Center, 205 North, 400 West, Salt Lake City, UT 84103, and Alan L. Sullivan and Bret R. Evans of Snell & Wilmer, LLP, 15 W South Temple #1200, Salt Lake City, UT 84101.
DESCRIPTION OF THE PROPOSED SETTLEMENT AGREEMENT
The Plaintiffs and the State of Utah have reached a settlement that would release the State from any further liability related to this claim. The Settlement Agreement requires USH to do the following, subject to Court approval:
 Within 72 hours of learning that a criminal defendant is found incompetent to stand trial and ordered to the custody of the Utah Department of Human Services, a USH Forensic Unit professional must screen each class member to determine the appropriate level of competency restoration treatment;
 Within 6 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 60 days;
 Within 12 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 30 days; and
1 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85-3 Filed 06/12/17 Page 3 of 4
 Within 18 months, provide court-ordered to competency restoration treatment to criminal defendants found incompetent to stand trial within 14 days.
The settlement also creates a system to monitor USH’s compliance with the Settlement Agreement and requires the State of Utah to pay fees to the court-approved monitor.
You have the right to learn more about the settlement. A copy of the preliminarily-approved Settlement Agreement is enclosed with this Notice. If you are unable to read or understand the Settlement Agreement, contact Class Counsel referred to in Question 6 below.
OBJECTIONS OR COMMENTS TO THE PROPOSED SETTLEMENT
The United States District Court for the District of Utah has preliminarily approved the Settlement Agreement but will hold a Final Settlement Approval Hearing to determine whether it is fair, reasonable, and adequate on [DATE] at [TIME] in Courtroom 7.300 of the federal courthouse located at 351 South West Temple, Salt Lake City, Utah 84101.
If you have objections, comments, or statements about the proposed Settlement Agreement, you must make them in writing using the attached “Response to Proposed Class Action Settlement” form or your own paper. A self-addressed stamped envelope is included for your convenience. Written objections, comments, and statements should be sent to the following address: Disability Law Center, 205 N 400 W, Salt Lake City, UT 84013. Objections must be submitted or postmarked no later than [DATE].
Objections must include all of the following information: (1) The objector’s contact information (full name and address); (2) An explanation of the basis for the objector’s objection to the Settlement Agreement; and (3) Whether the objector intends to appear at the Final Settlement Approval Hearing on [DATE].
All information submitted to Class Counsel will be provided to counsel for the State of Utah and the District Court in advance of the Final Settlement Approval Hearing. It is not necessary for Class Members to appear at the Final Settlement Approval Hearing. Any Class Member who has submitted a timely objection as provided above and who wishes to appear at the Final Settlement Approval Hearing must give notice by calling the Disability Law Center, sending notice in writing, or using the attached “Response to Proposed Class Action Settlement” form. Objectors may withdraw their objections at any time. Any objections, comments, or statements that do not comply with the above procedures and timeline will not be heard or considered by the Court.
HOW TO GET MORE INFORMATION
This is a summary of the Settlement Agreement. If you have any questions about the matters contained in this notice or any questions regarding the settlement, you may write or call Class Counsel below:
DISABILITY LAW CENTER 205 North 400 West Salt Lake City, UT 84103 (801) 363-1347
2 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85-3 Filed 06/12/17 Page 4 of 4

Toll Free: (800) 662-9080
RESPONSE TO PROPOSED CLASS ACTION SETTLEMENT
DLC, et al. v. State of Utah, et al., Case No. 2:15-CV-00645-RJS-BCW

Your Name:

_________________________________________________________

Class Member’s Name: _________________________________________________________

Criminal Case No.:

_________________________________________________________

Relationship to Class Member: ________________________________________________________

Are you the Class Member’s Legal Guardian? Yes ___ No ___

Your Mailing Address:

_________________________________________________________

Your E-mail Address:

_________________________________________________________

Your Telephone No.:

_________________________________________________________

Objections/Comments/Statements:

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

(If you need additional space, you may continue writing on the other side of the page or attach additional pages.)

Do you want to provide oral testimony to the Court regarding the settlement? Yes __ No __

Date: _____________________

Signature: ______________________________________

3 of 3 Notice to Defense Counsel for Class Members

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 1 of 9
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 

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 2 of 9
CURRICULUM VITAE
Academic Year 2015-2016
NAME: Patrick K. Fox, M.D.
EDUCATION: B.S., Rutgers University, New Brunswick, NJ 1990 M.D., UMDNJ-New Jersey School of Medicine, Newark, NJ 1994
CAREER:
September 2014-Present: Colorado Department of Human Services
Chief Medical Officer
April 2013-Present: Colorado Department of Human Services
Deputy Director of Clinical Services, Office of Behavioral Health
October 2013-July 2014 and December 2014-June 2015: Colorado Department of Human Services
Acting Director, Office of Behavioral Health
April 1, 2012-March 31, 2013: Denver Health and Hospital Authority
Attending Psychiatrist, Van Cise Simonet Detention Facility
July 1, 2007-March 31, 2012: Yale University School of Medicine, Department of Psychiatry
Deputy Training Director, Forensic Psychiatry Fellowship
Director, Whiting Forensic Division, Connecticut Valley Hospital
July 1, 1999-June 30, 2007: Yale University School of Medicine, Department of Psychiatry
Consulting Forensic Psychiatrist, DMHAS, state of Connecticut
July 1, 1997-March 31, 2012: VA Connecticut Healthcare System
Employed as an Attending Psychiatrist on Duty, providing psychiatric care within the hospital, approximately fifteen hours per week.

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 3 of 9
June 1994-June 1999: Yale University School of Medicine, Department of Psychiatry Post-Doctoral
-PGY V, Residency in Forensic Psychiatry, Law and Psychiatry Division, CMHC -PGYIV, Chief Resident of PTSD/Anxiety Disorders Unit, West Haven VAMC
Psychiatrist for the New Haven Office of Court Evaluations -PGYIII, West Haven Veterans Affairs Mental Hygiene Clinic -PGY II, Inpatient Adult and Child Psychiatry Rotations -PGY I, Transitional Medicine/Psychiatry/Neurology Program
ACADEMIC APPOINTMENTS:
Yale University School of Medicine, Department of Psychiatry July 1, 1999-June 2008: Assistant Clinical Professor July 1, 2008-April 2012: Assistant Professor
University of Colorado School of Medicine, Department of Psychiatry April 1, 2012-Present: Senior Instructor
University of Denver, Graduate School of Professional Psychology December 2012-Present: Adjunct Faculty
BOARD CERTIFICATION:
American Board of Psychiatry and Neurology, General Psychiatry: 1999, 2009 American Board of Psychiatry and Neurology, Forensic Psychiatry: 2001, 2011
PROFESSIONAL HONORS & RECOGNITION: Recipient of the Laughlin Fellowship Award in Psychiatry-1998 Rutgers University Cooperative Academic Merit Scholarship-1990
DEPARTMENTAL, UNIVERSITY ACTIVITIES:
1999-2012: Weekly Supervisor for fellow/s, Fellowship in Forensic Psychiatry
1999-2012: Instructor, Law & Psychiatry Seminar, Fellowship in Forensic Psychiatry 1999-2012: Instructor, Seminar in Law and Psychiatry, Fellowship in Forensic
Psychiatry
2000-2012: Coordinator/Instructor, Public Sector Lecture Series, Yale Forensic Psychiatry Fellowship

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 4 of 9

2000-2012: Member, Yale Department of Psychiatry Resident Selection Committee
2003-2007: Case write-up and interview tutor, Yale School of Medicine, Clerkship in Psychiatry
2004-2012: Instructor, PGY II Seminar, Legal Regulation of Psychiatric Practice and Forensic Psychiatry
2006-2012: Coordinator/Instructor, Ethics in Research Module, Scholarship Seminar, Fellowship in Forensic Psychiatry
2007-2012: Deputy Training Director, Fellowship in Forensic Psychiatry
2007-2012: Member, Yale University Graduate Medical Education, Program Director Committee
2008-2010: Coordinator, Ethics in Research Seminar for Yale Fellows in Public Sector Psychiatry and Research
2007-2012: Instructor, Landmark Cases, Fellowship in Forensic Psychiatry
2007-2012: Clinical Instructor, Yale Medical School Psychiatry ER Clerkship, West Haven VA

PROFESSIONAL SERVICE:

Professional Organizations

Member, American Psychiatric Association, 2008-present Member, American Academy of Psychiatry and the Law, 2008-present Member, Connecticut Psychiatric Society, 2008-2012
-Council Member, 2010-2012 Member, Colorado Psychiatric Society, 2012-present Forensic Psychiatry Examination Committee, American Board of Psychiatry and Neurology, 2009-present

State of Colorado Committees

May 2013-July 2015:

National Governors’ Association, Prescription Drug Abuse Reduction Policy Academy

July 2013-October 2013: Co-chair, Civil Commitment Statute Review Task Force

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 5 of 9

August 2013-June 2015:

National Governors’ Association, Super-utilizer Policy Academy

January 2014-present:

Governor’s Marijuana Policy Workgroup

January 2015-present:

Commissioner, Suicide Prevention Commission-Colorado

May 2016-present:

Appointee, Mental Health/Point of Contact through Release from Jail Task Force, Commission on Criminal and Juvenile Justice

State of Connecticut Committees

1998-1999: Participant, Committee to Study Sexually Violent Persons, State of Connecticut Office of Policy and Management

1999-2000: Member, DMHAS Restraint/Seclusion Task Force, Best Practices Report and Recommendations: Working Toward the Elimination of Restraint & Seclusion.

1999-2000: DMHAS representative, Committee to Study Credentialing of Sexual Offender Treatment Providers, State of Connecticut Office of Policy and Management.

2000:

Member, Committee for Psychosexual Evaluation and Treatment, DMHAS-state of Connecticut.

2000-2001: DMHAS representative, Sex Offender Policy and Advisory Committee, state of Connecticut, Office of Policy and Management.

2001:

DMHAS representative, Special Populations Project: Model Development.

2002:

DMHAS-Division of Forensic Services representative, Preferred Practices Committee: Providing Services to those with Problem Sexual Behaviors.

2002:

DMHAS representative, Preferred Practices in Behavioral Health Workgroup.

2002:

DMHAS, Commissioner’s Policy Work Group: Limits to Confidentiality.

2002-2003: DMHAS representative, Sex Offender Policy and Advisory Committee, state of Connecticut, Office of Policy and Management.

2006-2012: Governor’s Appointee: Sex Offender Risk Assessment Board, state of Connecticut Judiciary Committee.

Case 2:15-cv-00645-RJS Document 85-4 Filed 06/12/17 Page 6 of 9
2007-2012: Member, DMHAS, Forensic Steering Committee. 2007-2012: DMHAS Commissioner’s Appointee, Lawyers Concerned for Lawyers-
Connecticut, Inc.

PRESENTATIONS:
October 1999: Jail Diversion, Balancing of the Court’s Interests, American Academy of Psychiatry and the Law, Annual Convention, Madelon Baranoski, Ph.D., Patrick K. Fox, M.D., Josephine Buchanan, Baltimore, MD

October 2000: Outpatient Civil Commitment, American Academy of Psychiatry and the Law, Annual Convention, Patrick K. Fox, M.D., Paul Amble, M.D., Vancouver, BC.

August 2001: DMHAS-Connecticut, Forensic Grand Rounds, Substance Abuse Relapse Prevention for Insanity Acquittees, Recent Research Findings, presented at Connecticut Valley Hospital.

January 2002: University of Connecticut, School of Medicine/Correctional Mental Health Conference, Sex Offenders: Risk Assessment, Management & the Possibilities for Treatment, presented at UCHC, December 2001 and at Cheshire Correctional Center.

June 2002:

Veterans Administration-Connecticut Healthcare System, Forensic Committee Conference, Violence Risk Assessment, and Violence Risk Management, presented at the West Haven Veterans Administration Hospital.

April 2004: Competency to be Executed, Yale Medical Student Psychiatric Association.

October 2004: Melissa’s Project: Probate Court-Monitored Treatment, American Academy of Psychiatry and the Law, Annual Convention, Patrick K. Fox, M.D., Paul Amble, M.D., Michael Makniak, J.D., Scottsdale, AZ.

March 2007: DMHAS Training Seminar-Sex Offender Training, A Clinical Perspective on Problem Psychosexual Behaviors, presented at Connecticut Mental Health Center.

Dec. 2008: Problem Sexual Behavior, Connecticut Valley Hospital Grand Rounds

January 2008: Physiological Response to Situations of Uncontrollable Stress, Connecticut Valley Hospital Trauma Initiative Series.

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October 2009: Civil Rights and the Insanity Defense, Yale Medical Student Psychiatric Association.

April 2010: Festschrift for Howard Zonana: Attorney-Physician Collaboration, Yale Department of Psychiatry Grand Rounds

July 2010: Psychopathy and Sociopathy, Yale Department of Psychiatry Grand Rounds

October 2010: You Got Personality: Diagnostic Challenges in Forensics, American Academy of Psychiatry and the Law, Annual Convention, Howard Zonana, MD, Madelon Baranoski, PhD., Patrick K. Fox, M.D., Josephine Buchanan, Tucson, AZ.

Feb. 2011: Invited lecturer, Police Intervention with Persons with Mental Illness, Henry C. Lee Institute of Forensic Science, University of New Haven.

March 2011: Invited lecturer, Police Intervention with Persons with Mental Illness, Henry C. Lee Institute of Forensic Science, University of New Haven.

April 2011: Invited lecturer, Psychopathy, Eastern Connecticut State University.

July 2011: Physician-Assisted Suicide, Yale Department of Psychiatry Grand Rounds

October 2011: Thinking Outside the Witness Box: Novel Forensic Psychiatry Training Strategies, American Academy of Psychiatry and the Law, Annual Convention, Brian Cooke, M.D., Reena Kapoor, M.D., Patrick Fox, M.D., Boston, MA

October 2011: Restraint and Seclusion Reduction: Implications and Outcomes, American Academy of Psychiatry and the Law, Annual Convention, Patrick Fox, M.D., Traci Cipriano, Ph.D., J.D., Paul D. Whitehead, M.D., Charles Dike, M.D., Boston, MA

Feb. 2012:

Mental Health Policy in the United States, distinguished presenter to delegates from Fudan University, Shanghai Province, China, as part of the Yale Global Health Initiative

January 2013: Inside the Mind of the Mass Murderer, the Vail Symposium.

January 2014: Assessment and Management of Problem Sexual Behaviors, Colorado Mental Health Institute at Pueblo Grand Rounds

Feb. 2014: Trans-institutionalization: Treatment of Persons with a Behavioral Health Disorder within the Criminal Justice System, A Workshop of the Forum

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on Global Violence Prevention. Institute of Medicine of the National Academies.

April 2015: The Times, They are a Changin’: State and National Developments and Trends in Behavioral Health Care Delivery, Colorado Psychiatric Society Annual Meeting, Denver, Colorado

July 2015:

Science and Conscience: The Role of Mental Health Evaluators in Death Penalty Cases, XXXIVth International Congress on Law and Mental
Health, Sigmund Freud University, Vienna, Austria

Sept. 2016: Managing a Limited Resource: Trends in Competency to Stand Trial Evaluations in Colorado, Colorado State Judicial Conference, Vail, CO.

Dec. 2016:

Mental Health Evaluators and the Death Penalty, American Bar Association National Summit on Severe Mental Illness and the Death Penalty, Georgetown University.

BIBLIOGRAPHY:

Morgan III, C.A., Hill, S.R., Fox, P.K., Kingham, P., & Southwick, S.M. Anniversary Reactions in Gulf War Veterans: A Follow-up Inquiry Six Years After the War. American Journal of Psychiatry 156:1075-1079, July 1999.

Charles A. Morgan III, Sheila Wang, John Mason, Steven M. Southwick, Patrick Fox, Gary Hazlett, Dennis M. Charney, and Gary Greenfield, Hormone Profiles in Humans Experiencing Military Survival Training. Biological Psychiatry 47:891-901, May 2000.

Patrick K. Fox, Commentary: Biases that Affect the Decision to Conditionally Release an Insanity Acquittee. Journal of the American Academy of Psychiatry and the Law 36:3379, 2008.

Patrick K. Fox, Commentary: Medicine, Law and Howard Zonana. Journal of the American Academy of Psychiatry and the Law 38:4:592-593 (2010)

Patrick K. Fox, Commentary: So the Pendulum Swings-Making Sense of the Duty to Protect. Journal of the American Academy of Psychiatry and the Law 38:4:474-478 (2010)

Faculty Reviewer: Stead L, Kaufman M, Yanofski J, First Aid for the Psychiatry Clerkship, third edition

Wasser, Tobias D., Fox, Patrick K. For Whom the Bell Tolls – Silver Alerts Raise Concerns Regarding Individual Rights and Governmental Interests. Journal of the American Academy of Psychiatry and the Law 170:9: (2013)

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Martinez, R., Fox, P Chapter 10: Confidentiality in Psychiatric Practice, Textbook of Forensic Psychiatry, APA Publishing, In publication, (2016)

Case 2:15-cv-00645-RJS Document 85-5 Filed 06/12/17 Page 1 of 2

Aaron M. Kinikini (10225) Erin B. Sullivan (15462) DISABILITY LAW CENTER 205 North 400 West Salt Lake City, Utah 84103 Telephone: (801) 363-1347 Fax: (801) 363-1437 Email: akinikini@disabilitylawcenter.org
esullivan@disabilitylawcenter.org
Alan L. Sullivan (3152) Bret Evans (15131) SNELL & WILMER L.L.P. 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101 Telephone: (801) 257-1900 Facsimile: (801) 257-1800 Email: asullivan@swlaw.com
brevans@swlaw.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DISABILITY LAW CENTER, a Utah nonprofit corporation; S.B., an individual, by and through his next friend Margaret Goodman; A.U., by and through his next friend Mary Eka; and S.W., an individual,
Plaintiffs,
vs.
STATE OF UTAH; UTAH DEPARTMENT OF HUMAN SERVICES; ANN WILLIAMSON, in her official capacity as Executive Director of the Utah Department of Human Services; UTAH DIVISION OF

ORDER
Case No. 2:15-CV-00645-RJS-BCW Judge Robert J. Shelby

4846-4489-9658

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Case 2:15-cv-00645-RJS Document 85-5 Filed 06/12/17 Page 2 of 2
SUBSTANCE ABUSE AND MENTAL HEALTH; DOUGLAS THOMAS, in his official capacity as Director of the Utah Division of Substance Abuse and Mental Health; UTAH STATE HOSPITAL; DALLAS EARNSHAW, in his official capacity as Superintendent of Utah State Hospital, Defendants.
Based on the Joint Motion for (1) Approval of Settlement Agreement and Class Notices, (2) Appointment of Monitor, and (3) Stay of Proceedings (June 12, 2017) (hereinafter the “Joint Motion”), and good cause appearing therefor, the Court hereby orders as follows:
1. The Court preliminarily determines that the Settlement Agreement annexed as Exhibit 1 to the Joint Motion is fair, reasonable, and adequate.
2. The Court approves the notices annexed as Exhibits 2 and 3 to the Joint Motion. 3. The Court will hold a fairness hearing on the fairness, reasonableness, and adequacy of the Settlement Agreement on ___________________________________, 2017, at ____________ a.m./p.m. DATED this _____ day of __________________, 2017.
BY THE COURT:
__________________________________ Robert J. Shelby United States District Court Judge

4846-4489-9658

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